MA in Theory and Practice of Human Rights

LW990Law Core CourseDiscussion Groups

2013-2014

Module Director: Judith Bueno de Mesquita Module Coordinator: Daragh Murray

This document contains the topics of discussion as well as the outline and reading list for the discussion groups. The Discussions are designed to further enhance your ability to critically examine human rights issues by way of role-play exercises and discussions in smaller groups. You should come to the discussion groups ready to discuss the concepts and ideas covered in the lecture and the readings. During the discussion groups you are all expected to participate in general discussions, role-play exercises, and presentations. Please make sure that you do the essential reading for the discussion group and prepare the assigned exercise.

Please take care to find out which group you are assigned to and make a careful note of the time and dates of the meetings.

Group 1 meets in every other week, Thursdays 4:00-6:00 in TC1.6 (starting from 24th October)Group 2 meets in every other week, Thursdays 4:00-6:00 in TC1.6 (starting from 31st October)

Please note that once you have been assigned to a group, you will not be allowed to move to another one unless you are experiencing a clash with another course. We regret we cannot accommodate changes for other reasons.

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Discussion Group 1: Week 4 (Group 1) Week 5 (Group 2)

PUBLIC INTERNATIONAL LAW: CUSTOMARY INTERNATIONAL LAW

This discussion group is an opportunity to review weeks 2 “General Introduction to International Law” and 3 “The Sources of International Law” and answer questions on these topics.

Carefully read the following paragraph of the Inter-American Court on Human Rights Advisory Opinion 18 on the Juridical Condition and Rights of the Undocumented Migrants, and answer the questions below.

A. “101. Accordingly, this Court considers that the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws. Nowadays, no legal act that is in conflict with this fundamental principle is acceptable, and discriminatory treatment of any person, owing to gender, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable. This principle (equality and non-discrimination) forms part of general international law. At the existing stage of the development of international law, the fundamental principle of equality and non-discrimination has entered the realm of jus cogens.” Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, September 17, 2003, Inter-Am. Ct. H.R. (Ser. A) No. 18 (2003).

1. What is jus cogens?2. What is general international law?3. Is an advisory opinion a source of international law?4. Do you consider that all the grounds of non-discrimination mentioned in the advisory

opinion have the same status under international law? If not, why? How would you prove that something is custom under international law?

5. Assume you are a lawyer working for an NGO which is considering using Advisory Opinion 18 of the Inter-American Court to support the view that discrimination based on sexual orientation is prohibited under international law and that such a prohibition has customary international law status. The NGO you are working for is currently defending a man who has been denied inheritance rights in relation to his male partner with whom he has been living for over 20 years before his death. You are consulted by the NGO. In particular the NGO asks two questions and for a piece of advice:

i. What is the legal force of the Advisory Opinion?ii. Is what it says an accurate reflection of international law or only of

regional custom? iii. The NGO would like to know how to prove that, under international law,

the prohibition of discrimination on the ground of sexual orientation has customary law status.

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Read the following statement by Philip Alston in an article he wrote for the Human Rights Quarterly:

B. “[…] At first glance it would seem relatively easy to make the case that the aim of ensuring that the MDGs (Millennium Development Goals) are met within their respective time frames has assumed the status of a binding obligation upon governments by virtue of the fact that they have reiterated the commitment so frequently and on so many solemn occasions.”

Answer the following questions:

1. What are the arguments for and against considering that the MDGs reflect parts of customary international law?

2. Which parts of the MDGs can or should be considered customary international law?3. Compare and contrast the MDGs with the Universal Declaration of Human Rights

(UDHR). 4. Which parts of the UDHR are customary international law?5. Why, in your opinion, has it been less controversial to consider the MDGs as customary

international law than it is to consider the UDHR as such?

Readings:

The UN Millennium Development Goals, available online

Universal Declaration of Human Rights

Alston, P., ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals’, Human Rights Quarterly 27 (2005), 755-829 – read with particular attention to pages 771-775

Rodley, N., ‘Soft Law, Tough Standards: Non-Treaty Instruments Relevant to the Protection of the Rights to Life and Humane Treatment’, Interrights Bulletin, (1993) Vol.7, No.3, pp.43-46 – this article is available in the LW990 reading pack.

Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, September 17, 2003, Inter-Am. Ct. H.R. (Ser. A) No. 18 (2003)

Further readings:

Nankani, G., Page, J., and Judge, L., ‘Human Rights and Poverty Reduction Strategies: Moving Towards Convergence?, in Alston, P., and Robinson, M. (eds.), Human Rights and Development: Towards Mutual Reinforcement (Oxford, Oxford University Press: 2005)

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Discussion Group 2: Week 6 (Group 1) Week 7 (Group 2)

PUBLIC INTERNATIONAL LAW: NON-STATE ACTORS, IMMUNITIES, JURISDICTION and STATE RESPONSIBILITY

At the end of the first DG, each class will be divided into three groups, A, B, and C. Each group will take responsibility for preparing the corresponding question below (ie. Group A will prepare question A, Group B will prepare question B, and Group C will prepare question C). You will present your advice in the DG session. Each group will also read and discuss the other two questions for the purpose of your own learning and for discussion during the seminar.

A. Owing to serious disturbances in Arcadia, the government has declared a state of emergency. The government of Arcadia has hired a private security company incorporated in Bognia to provide security around government buildings. During the course of a peaceful demonstration outside the Ministry of Defence, an employee of the company opened fire without any provocation and killed Fred, a by-stander who was not even taking part in the demonstration.

After Fred’s killing, his widow (Flossie) and children left Arcadia and went to live in Cornucopia. Whilst in Cornucopia, they sought to institute civil proceedings before the courts of Cornucopia against the company for the death of Fred. The company asserted that it was entitled to sovereign immunity.

Advise the Court as to whether the company is entitled to rely on sovereign immunity.

B. Fred’s widow, worried that she may not be able to recover compensation from the courts in Cornucopia, wants to bring a human rights complaint before the Human Rights Committee. Arcadia has ratified both the ICCPR and the first Protocol. Her complaint is that Arcadia is either responsible for killing Fred or that it failed to protect his right to life. She is worried that Arcadia will argue that the private security company was completely independent of the government and that they are therefore not responsible for Fred’s death.

Advise Flossiea. whether Arcadia is directly responsible for the killing of Fred, ANDb. whether Arcadia is indirectly responsible, not for the killing itself but for the failure

to protect the right to life of Fred.

C. Flossie also wants the individual who shot Fred to be prosecuted. The killing, along with many other killings, acts of torture and disappearances, has not been properly investigated by the Arcadian authorities. They have simply opened an investigation file. It is clear that there is no prospect of the killer being tried in Arcadia.

Assume for the purposes of this question that a. the situation in Arcadia constitutes a non-international armed conflict and b. the evidence strongly suggests that the perpetrator intentionally and knowingly shot dead an innocent civilian. The intentional killing of a civilian in a non-international armed conflict is both a war crime and an international crime.

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Flossie wants to know whether there is any prospect of getting Bognia or Cornucopia to try the individual. Both States have extradition treaties with Arcadia. The suspected perpetrator is a Bognian national.

What information do you need to know about the domestic law in Bognia and Cornucopia in order to know whether there is any prospect of the suspected killer being tried in those courts?

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Discussion Group 3: Week 8 (Group 1) Week 9 (Group 2)

HOW CAN THE UN, IN PARTICULAR THE HUMAN RIGHTS COUNCIL AND ITS SPECIAL PROCEDURES, RESPOND TO GROSS OR WIDESPREAD HUMAN RIGHTS VIOLATIONS?

Hegemonia is a country consisting of various linguistic, religious and ethnic groups. It is a federated State, and is federated into eight provinces, each of which has a majority of one of these groups and substantial minorities from the other groups. For fifty years the federal state and the provinces were under the control of a single political party, backed up by a powerful military. One of the provinces, Separatia, declares its independence as a sovereign state. Five others follow Separatia with unilateral declarations of independence. The federal government refuses to accept these declarations, brands the provincial leaders as traitors, arrests them, and threatens to arrest and prosecute as traitors any citizen of Hegemonia supporting the attempted secessions. Armed groups, supported by the police in the secessionist provinces, spring up in those provinces and attack violently federal property and personnel, military and civilian alike.

By way of reaction, the federal military round up anyone they suspect of supporting the secessions and especially the pro-secessionist armed groups. Some of those arrested are detained in camps, some “disappear”, others are murdered and most are tortured for the purpose of extracting information and confessions, or by way of general intimidation of the populations of the secessionist provinces.

A number of governments in neighbouring states, some of which are being compelled to receive thousands of refugees, decide to bring the matter to the United Nations. What are the options? In particular, some seek a special session of the UN Human Rights Council, sixteen of whose members agree to the session. At such a session, what might take place?

Hegemonia has secured influence over a number of allied States that are Members of the Human Rights Council. These States have promised to vote on the basis of Hegemonia’s position.

Shortly before the Commission on Human Rights was replaced by the Human Rights Council, the Commission established a country specific Special Rapporteur on Hegemonia. This Rapporteur, however, has not yet visited Hegemonia. The Government of Hegemonia has said that the Rapporteur is welcome to visit but has declined to find a convenient time for the mission to take place. Hegemonia, not a member state of the Human Rights Council, is also scheduled to present its universal periodic review to the Council during the next session of the UPR mechanism in 2013.

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At the end of the second DG, the following roles will be assigned to be played at a special session of the Human Rights Council:

1. Hegemonia. (2 people) 2. The secessionist provinces (members to clarify how they can participate

in the negotiation?) (2 people)3. Neighbouring countries who are concerned by the refugee problem and

wish to ensure a speedy resolution to the conflict. (2/3+ people)4. Countries whose priority is to protect Hegemonia’s territorial integrity

and/or who fear creating a “dangerous precedent”. (2/3+ people)5. Allies of Hegemonia (2 people)6. International human rights NGOs. (Human Rights Watch; International

Commission of Jurists and the Minority Rights Group – 1 person per organisation)

7. The UN High Commissioner for Human Rights. (1 person)8. The UN High Commissioner for Refugees. (1 person)9. The Special Rapporteur on Hegemonia. (1 person)

2 days before the DG is due to take place, representatives from the first group of neighbouring countries and representatives from the second group of States seeking to protect Hegemonia’s territorial integrity should each prepare and circulate a draft resolution from their group (i.e. one resolution from each of the two groups) to ALL the people identified above. In order to ensure that there is adequate time for negotiation and discussion in the seminar, please limit your resolutions to four preambular paragraphs and six operative paragraphs.

All participants in the special session should prepare a one-page written statement setting out their positions on the issue and on the resolutions. The NGOs (group 5) should prepare a joint-statement. Statements should be circulated in advance. The DG will start with the initial statements from all parties: each group has a maximum of 2 minutes to present key points.

Groups will then begin a period of negotiation and lobbying on the basis of the draft resolutions. During your preparation, one of your tasks will be to establish whether your group can vote, or take the floor of the Council during drafting of the resolution. If you are not able to do so, please consider how you might influence the outcome of the resolution before the DG, or during discussion. The goal of the DG is to come up with a resolution acceptable to all the members of the Human Rights Council present. Explanations of votes may be made at the end of class, during voting on the final resolution.

Readings :

Go to the website of OHCHR, click on the Human Rights Council, click on the special sessions (19 in total between July 2006 and September 2012) that the Council has convened since it was established. Look particularly at the resolutions of the ninth special session (January 2009 on the occupied Palestinian Territories), the fourth special session (December 2006 on Darfur), the eleventh special session (May 2009 on Sri Lanka), the fifteenth special session (February 2011 on Libya) and the seventeenth special session (August 2011 on Syria).

Information is available online: http://www.ohchr.org/EN/HRBodies/HRC/Pages/Sessions.aspxLook at the UPR website and States reports:

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http://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx

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Discussion Group 4: Week 10 (Group 1) Week 11 (Group 2)

UN TREATY MONITORING BODIES

The following case deals with the situation in the state of Minos. The creation of a suitable action plan to be implemented before the UN treaty monitoring bodies will be discussed in plenary during the Discussion Group. The class will be divided into four groups, and it is your job to prepare for this discussion prior to class.

The case of the state of Minos

Minos is a state in the region of Legoland, member of the United Nations and party to the ICCPR and its first Optional Protocol, ICESCR, CAT and its Optional Protocol, CERD, CRC, CEDAW and its Optional Protocol and the ICRMW. All of these instruments were ratified before the facts of this case took place.

The population of Minos is made up of two ethnic groups – the Minervas who are non white (30%) and the Eras (70%) who are white. The government of Minos, which has been in power for 7 years, is entirely comprised of Minervas. Persons belonging to the Era group are not allowed to occupy any public position as domestic law 15/2004, prohibits their recruitment by any state institution.

2 years ago, the Eras, who live in the western province of Solfeo, formed the Solfeo Liberation Army (SLA). The SLA was established to fight for Eras’ right to self-determination in Solfeo. Since the SLA commenced operations a brutal internal armed conflict has raged between the Minos government and the SLA. Reports indicate that both sides have used tactics that violate international humanitarian law and that Minos is engaged in serious human rights violations.

Alongside Minos governmental forces, a militia, known as the Itacas has formed in opposition to the SLA. The Itacas are actively fighting the SLA in Solfeo. The government of Minos denies that it has any connections with the Itacas.

In addition to the discrimination described above, press reports have indicated over the past years that governmental forces and the Itacas have engaged in a campaign of terror, disappearances, torture, arbitrary killings and arbitrary detention of Eras. Indeed, during the last year, it is alleged that more than 2,000 persons in the region have disappeared while there are more than 500 complaints of torture under detention.

In this context, local human rights defenders have also been targeted by the parties to the conflict. Sabrina, one of them, lives in Solfeo and is the Director of a local NGO called “Life First” (LF). Three months ago, the Minos police stormed the offices of LF as part of a campaign to shut down organisations that help victims in the region as they believe that those are persons supporting the SLA. Sabrina was arrested and has been detained ever since without charge. Sabrina informed her lawyer that she was raped when she was under incommunicado detention for 15 days at the beginning of her deprivation of liberty. She does not have access to her family. The pattern and situation described by Sabrina is similar to that of other female human rights defenders.

Furthermore, Tatiana, a 14 years old girl, was present at the NGO “Protect the Children of Solfeo” (PCS) when the Minos police stormed the office. The police detained Tatiana and her father who

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works for the NGO. Tatiana was detained as she was considered to be helping the SLA. Tatiana was taken to a detention centre for adults and has been deprived of her liberty for more than 2 months. NGO reports indicate that children have been targeted by the authorities of Minos and by the Itacas. It is believed that if they are not punished now, they will become SLA members in the future. In fact, many children have been arbitrarily detained and separated from their parents. Some have disappeared. Equally, children cannot go to school due to the ongoing conflict.

A regional NGO called “Humanity and Dignity for All” (HDA) is seriously concerned with the situation in Minos and especially in Solfeo. HDA has been contacted by several persons claiming to be victims of human rights abuses, many of whom are in a similar situation to that of Sabrina and Tatiana. The NGO would like to use the UN treaty monitoring bodies to try to ameliorate the suffering of people in Minos but it has never used them and does not know how to proceed.

You are an expert on international human rights law and organisations. You have been appointed by HDA as a consultant to design the best possible strategy, using all tools available at the treaty bodies (and not only the individual and inter-state complaints mechanisms).

During the discussion group, you will discuss the different options open to the NGO, and the comparative merits of these options; each group will have 10 minutes to present its proposals. This will be followed by a more general discussion about the usefulness of the treaty monitoring bodies to deal with serious human rights violations.

Readings:

Besides the reading for the International Human Rights Law lecture, the following materials should be read:

Human Rights Committee, Concluding Observations (Thailand), CCPR/CO/84/THA, 8 July 2005.

Committee Against Torture, Conclusions and recommendations (Nepal), CAT/C/NPL/CO/2, 15 December 2005.

Human Rights Committee, Sarma v. Sri Lanka, 950/2000, Committee Against Torture, Report on Mexico under Article 20 of the Convention, CAT/C/75.

Committee on the Elimination of Discrimination against Women, Report on Mexico under Article 8 of the Optional Protocol, CEDAW/2005/OP.8/Mexico.

Committee on the Elimination of Racial Discrimination Early Warning Measures and Urgent Procedures,

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Discussion Group 5 - Week 18 (Group 1) Week 19 (Group 2)

NON-DISCRIMINATION AND EQUALITY

Xanda is a country where democracy has recently been established after a long period of military rule. During the period of military rule political participation was confined to local district Boards and women were prohibited from participation as candidates for such elections. Xanda has one dominant ethnic group, the Xandese, but it also has a small territorially concentrated indigenous population, the Letho people, who have historically been neglected and whose traditional lands have been encroached upon by state and private companies to grow soya beans. As a result many Letho people who have their own language have moved to the cities where they experience poverty and discrimination, not least because they do not speak the majority language Xandese.

In January 2008 the country adopts a new Constitution by referendum of all adult citizens. Xanda has a Constitutional Court with the power to invalidate any national law incompatible with the Constitution through judicial review proceedings. Article 21 of the Constitution provides:

“In the event of any conflict with any provision of the Constitution or of any national law concerning the human rights of citizens, international human rights law, including any human rights treaties ratified by Xanda, prevail over domestic law and will be applied by the Constitutional Court. The Constitutional Court may have resort to relevant international jurisprudence or relevant jurisprudence of comparable national courts on international human rights law for interpretative purposes”.

The Constitution lists the seven core United Nations human rights treaties and all protocols of such treaties as those that would be ratified following the coming into force of the Constitution. These treaties and protocols were duly ratified in December 2008.

The constitutional referendum also served to approve of the formation of what the Constitution describes as “a Transitional Government of National Reconciliation” to be in office for 12 months and to prepare for national elections to be held in January 2010.

In May 2008 the Transitional Government adopted a ‘Transitional Elections law” to apply for ten years to all elections for local district Boards and for elections to the National Assembly.

The Transitional Election Law includes the following provision:

Article 10

The right to participate in public affairs and to stand for election:

1. The electorate shall consist of all citizens of Xandu who have registered to vote and who being male have reached the age of 21 years and female 18 years by the date of any election.

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2. Candidates for election must have reached the age of 25 years and have been a member of a registered political party for at least one year.

3. Only candidates who speak Xandese may stand for election.4. No minister of any religion may stand as a candidate in any election. 5. For any election to the National Congress registered political parties must put forward in

their candidate list an equal number of duly qualified women and men. Failing this requirement will result in the party being ineligible to participate in the elections.

A case is being presented before the Constitutional Court of Xandu. Each discussion group should divide into three groups:

A. Members of an international human rights law firm presenting the case before the Constitutional Court on behalf of their client.B. Lawyers representing the Government before the Constitutional Court C. Members of the Constitutional Court

Each Discussion Group (DG) should prepare for a Constitutional Court hearing on one problem below as follows:

DG A should prepare scenario 1 and DG B should prepare scenario 2 as indicated below:

1. Claudio is an experienced political activist who was not selected by his political party because he was not selected in the male 50 per cent quota. He sought to stand as an independent candidate to challenge what he termed discrimination on grounds of sex but was refused by the Electoral Commission citing the Electoral Law.

2. Claudia is a teacher and a member of the Letho tribe. She is 22 years old and speaks Xandese but she wishes to complain (a) on her own behalf that she is ineligible to stand by reason of age and (b) on behalf of the Letho people over their exclusion from standing in elections as the majority do not speak Xandese.

Presentations of the international firm’s and government’s arguments and the Court’s judgment should avoid exceeding fifteen minutes. Five additional minutes may be allowed for questions to be put by the Court and one side to the other side. The Constitutional Court members should conduct research related to any potential judgment in advance of the class, but will also be given a few minutes during the class to confer after they have heard the arguments presented by the international firm and government and before presenting their judgment.

The remaining time will be spent in open discussion of the issues. Readings:

Universal Declaration of Human Rights, Article 25

International Covenant on Civil and Political Rights, Articles 2, 3, 25, 26 and 27.

International Convention on the Elimination of Discrimination against Women

International Convention on the Elimination of Racial Discrimination

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American Convention on Human Rights, Article 23.

Convention on the Political Rights of Women

United Nations Declaration on Indigenous Peoples Rights (General Assembly Resolution 61/295 13 September 2007)   

Human Rights Committee, General Comment 18, non discrimination

Human Rights Committee, General Comment 25, Article 25 Participation in Public Affairs 1996.

CEDAW Committee, General Recommendation No. 25, on Temporary Special Measures (2004)

Gillot et al v France, Human Rights Committee, 932/2000

Matyus v Slovakia, Human Rights Committee, 923/00

Diergaardt v. Namibia, Human Rights Committee 760/1997

Yatama v. Nicaragua, Inter-American Court of Human Rights, 23 June 2005, Series C. No. 127.

Mathieu-Mohin and Clerfayt v. Belgium, European Court of Human Rights, Judgment of 2 March 1987 ( esp. para 52) Zdanoka v Latvia, Grand Chamber European Court of Human Rights 16 March 2006 (esp. para 106)

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Discussion Group 6 - Week 20 (Group 1) Week 21 (Group 2)

LIMITATIONS ON FREEDOM OF EXPRESSION – PROTECTION OF RELIGIOUS BELIEFS

At the 13th session of the Human Rights Council on 25 March 2010 the Council adopted under Agenda Item 9, Resolution 13/16 on Defamation of Religion in a recorded vote of 20 to 17, with 8 abstentions The text and the voting by country is to be found below.

The text of the resolution will be used during the DG to explore the legal tension between limitations on freedom of expression and the protection of freedom of religion. Students should divide into three groups before the DG meets: Group A will be the team voting for the resolution and justifying that vote, Group B will be the team voting against the resolution and justifying their vote and Group C will be the team that abstains and in turn will seek to justify their vote.

Each team should prepare their roles in the light of the content of the Resolution taking into account the question of its compatibility with international human rights law. In particular each group should take into account its compatibility with

a) the International Covenant on Civil and Political Rights, the International Convention on the Elimination of Racial Discrimination, the European Convention on Human Rights, the American Convention on Human Rights and the African Charter of Human and Peoples Rights (and their authoritative interpretations and case-law) and

b) Customary international law

Each team will speak in justification of its vote for 15 minutes which will be followed by questions from the opposite group and the DG leader.

The second hour of the DG will be dedicated to discussing the legal and broader issues raised by this ongoing controversy. In sum is the central issue a straight clash between two freedoms – that of expression and of freedom of religion or belief or is there another way of understanding and even resolving the evident legal, political and cultural tensions between these freedoms that now manifest themselves in some many forms and with such frequency?

Reading:

Human Rights Resolution 13/16 on Defamation of Religion 25 March 2010. Text follows below.

The UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information, Joint Declaration on Defamation of Religions and Anti-Terrorism and Anti-Extremism Legislation (2008), available online

Readings for the session of the General Seminar on Freedom of Thought, Conscience and Religion, and Freedom of Expression, in particular,

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Sejal Parmer, “The Challenge of ‘Defamation of Religions’ to Freedom of Expression and the International Human Rights System” (2009) 3 European Human Rights Law Review (Special Issue on Freedom of Expression) 353-375.

Further readings:

American Convention on Human Rights, arts. 12, 13 and 14.

Inter-American Court of Human Rights, The Last Temptation of Christ v. Chile, 5 February 2001, merits and reparations. Otto–Preminger-Institut v Austria, European Court of Human Rights judgment of 20 September 1994.

Alliance of Civilizations, http://www.unaoc.org/

 

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Resolution adopted by the Human Rights CouncilResolution 13/16 Combating defamation of religions

The Human Rights Council,

Reaffirming the pledge made by all States under the Charter of the United Nations to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,

Reaffirming also that all human rights are universal, indivisible, interdependent and interrelated,

Recalling the 2005 World Summit Outcome adopted by the General Assembly in its resolution 60/1 of 16 September 2005, in which the Assembly emphasized the responsibilities of all States, in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind, and acknowledged the importance of respect and understanding for religious and cultural diversity throughout the world,

Recognizing the valuable contribution of all religions to modern civilization and the contribution that dialogue among civilizations can make towards improved awareness and understanding of the common values shared by all humankind,

Welcoming the resolve expressed in the United Nations Millennium Declaration, adopted by the General Assembly in its resolution 55/2 on 8 September 2000, to take measures to eliminate the increasing acts of racism and xenophobia in many societies and to promote greater harmony and tolerance in all societies, and looking forward to its effective implementation at all levels,

Underlining in this regard the importance of the Durban Declaration and Programme of Action adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa, in 2001 (A/CONF.189/12) and the Outcome Document of the Durban Review Conference, held in Geneva in April 2009 (A/CONF.211/8), and welcoming the progress achieved in implementing them, and emphasizing that they constitute a solid foundation for the elimination of all scourges and manifestations of racism, racial discrimination, xenophobia and related intolerance,

Welcoming all international and regional initiatives to promote cross-cultural and interfaith harmony, including the Alliance of Civilizations, the International Dialogue on Interfaith Cooperation for Peace and Harmony and the Dialogue among the Followers of World Religions and Cultures, and their valuable efforts towards promoting a culture of peace and dialogue at all levels,

Welcoming also the reports of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance submitted to the Council at its fourth, sixth and ninth sessions (A/HRC/4/19, A/HRC/6/6 and A/HRC/9/12), in which the Special Rapporteur highlighted the serious nature of the defamation of all religions and the need to complement legal strategies,

Noting with deep concern the instances of intolerance, discrimination and acts of violence against followers of certain faiths occurring in many parts of the world, including cases motivated by

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Islamophobia, anti-Semitism and Christianophobia, in addition to the negative projection of certain religions in the media and the introduction and enforcement of laws and administrative measures that specifically discriminate against and target persons with certain ethnic and religious backgrounds, particularly Muslim minorities following the events of 11 September 2001, and that threaten to impede their full enjoyment of human rights and fundamental freedoms,

Stressing that defamation of religions is a serious affront to human dignity leading to a restriction on the freedom of religion of their adherents and incitement to religious hatred and violence,

Noting with concern that defamation of religions and incitement to religious hatred in general could lead to social disharmony and violations of human rights, and alarmed at the inaction of some States in combatting this burgeoning trend and the resulting discriminatory practices against adherents of certain religions and, in this context, stressing the need to effectively combat defamation of all religions and incitement to religious hatred in general and against Islam and Muslims in particular,

Convinced that respect for cultural, ethnic, religious and linguistic diversity, as well as dialogue among and within civilizations, is essential for global peace and understanding, while manifestations of cultural and ethnic prejudice, religious intolerance and xenophobia generate hatred and violence among peoples and nations,

Underlining the important role of education in the promotion of tolerance, which involves acceptance by the public of and its respect for diversity,

Noting the various regional and national initiatives to combat religious and racial intolerance against specific groups and communities and emphasizing, in this context, the need to adopt a comprehensive and non-discriminatory approach to ensure respect for all races and religions, as well as various regional and national initiatives,

Recalling its resolution 10/22 of 26 March 2009 and General Assembly resolution 64/156 of 18 December 2009,

1. Takes note of the report of the United Nations High Commissioner for Human Rights on the possible correlation between defamation of religions and the upsurge in incitement, intolerance and hatred in many parts of the world (A/HRC/13/57) and the report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (A/HRC/12/38) presented to the Council at its twelfth session;

2. Expresses deep concern at the negative stereotyping and defamation of religions and manifestations of intolerance and discrimination in matters of religion or belief still evident in the world, which have led to intolerance against the followers of these religions;

3. Strongly deplores all acts of psychological and physical violence and assaults, and incitement thereto, against persons on the basis of their religion or belief, and such acts directed against their businesses, properties, cultural centres and places of worship, as well as targeting of holy sites, religious symbols and venerated personalities of all religions;

4. Expresses deep concern at the continued serious instances of deliberate stereotyping of religions, their adherents and sacred persons in the media, as well as programmes and agendas pursued by extremist organizations and groups aimed at creating and perpetuating stereotypes about certain religions, in particular when condoned by Governments;

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5. Notes with deep concern the intensification of the overall campaign of defamation of religions and incitement to religious hatred in general, including the ethnic and religious profiling of Muslim minorities in the aftermath of the tragic events of 11 September 2001;

6. Recognizes that, in the context of the fight against terrorism, defamation of religions and incitement to religious hatred in general have become aggravating factors that contribute to the denial of fundamental rights and freedoms of members of target groups, as well as to their economic and social exclusion;

7. Expresses deep concern in this respect that Islam is frequently and wrongly associated with human rights violations and terrorism and, in this regard, regrets the laws or administrative measures specifically designed to control and monitor Muslim minorities, thereby stigmatizing them and legitimizing the discrimination they experience;

8. Strongly condemns in this regard the ban on the construction of minarets of mosques and other recent discriminatory measures, which are manifestations of Islamophobia which stand in sharp contradiction to international human rights obligations concerning freedoms of religion, belief, conscience and expression, and stresses that such discriminatory measures would fuel discrimination, extremism and misperception leading to polarization and fragmentation with dangerous unintended and unforeseen consequences;

9. Reaffirms the commitment of all States to the implementation, in an integrated manner, of the United Nations Global Counter-terrorism Strategy, adopted without a vote by the General Assembly in its resolution 60/288 of 8 September 2006 and reaffirmed by the Assembly in its resolution 62/272 of 5 September 2008, and in which it clearly reaffirms, inter alia, that terrorism cannot and should not be associated with any religion, nationality, civilization or group, as well as the need to reinforce the commitment of the international community to promote, among other things, a culture of peace and respect for all religions, beliefs, and cultures and to prevent the defamation of religions;

10. Deplores the use of the print, audio-visual and electronic media, including the Internet, and any other means to incite acts of violence, xenophobia or related intolerance and discrimination against any religion, as well as the targeting of religious symbols and venerated persons;

11. Emphasizes that, as stipulated in international human rights law, including articles 19 and 29 of the Universal Declaration of Human Rights and articles 19 and 20 of the International Covenant on Civil and Political Rights, everyone has the right to hold opinions without interference and the right to freedom of expression, the exercise of which carries with it special duties and responsibilities and may therefore be subject to limitations only as provided for by law and are necessary for respect of the rights or reputations of others, protection of national security or of public order, public health or morals and general welfare;

12. Reaffirms that general comment No. 15 of the Committee on the Elimination of Racial Discrimination, in which the Committee stipulated that the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with freedom of opinion and expression, is equally applicable to the question of incitement to religious hatred;

13. Strongly condemns all manifestations and acts of racism, racial discrimination, xenophobia and related intolerance against national or ethnic, religious and linguistic minorities and migrants and the stereotypes often applied to them, including on the basis of religion or belief, and urges all States to apply and, where required, reinforce existing laws when such xenophobic or intolerant

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acts, manifestations or expressions occur, in order to deny impunity for those who commit such acts;

14. Urges all States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions and incitement to religious hatred in general, and to take all possible measures to promote tolerance and respect for all religions and beliefs;

15. Underscores the need to combat defamation of religions and incitement to religious hatred in general by strategizing and harmonizing actions at the local, national, regional and international levels through education and awareness-building;

16. Calls upon all States to make the utmost effort, in accordance with their national legislation and in conformity with international human rights and humanitarian law, to ensure that religious places, sites, shrines and symbols are fully respected and protected, and to take additional measures in cases where they are vulnerable to desecration or destruction;

17. Recognizes that the open, constructive and respectful debate of ideas, as well as interfaith and intercultural dialogue at the local, national and international levels, can play a positive role in combating religious hatred, incitement and violence;

18. Calls for strengthened international efforts to foster a global dialogue for the promotion of a culture of tolerance and peace at all levels, based on respect for human rights and diversity of religions and beliefs, and urges States, non-governmental organizations and religious leaders as well as the print and electronic media to support and foster such a dialogue;

19. Takes note with appreciation the intention of the High Commissioner to provide further support for the progressive development of international human rights law in respect of freedom of expression and incitement to hatred, discrimination and violence;

20. Welcomes in this regard the plan of the Office of the High Commissioner to hold a series of expert workshops to examine legislation, judicial practices and national policies in different regions, in order to assess different approaches to prohibiting incitement to hatred, as stipulated in article 20 of the International Covenant on Civil and Political Rights, without prejudice to the mandate of the Ad Hoc Committee on complementary standards, and requests the High Commissioner to continue to build on such initiatives, with a view to contributing concretely to the prevention and elimination of all forms of incitement and its consequences of negative stereotyping of religions or beliefs and their adherents which affect the enjoyment of human rights of concerned individuals and communities;

21. Requests the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to report on all manifestations of defamation of religions, and in particular on the ongoing serious implications of Islamophobia, for the enjoyment of all rights by their followers, to the Council at its fifteenth session.

42nd meeting 25 March 2010

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[Adopted by a recorded vote of 20 to 17, with 8 abstentions. The voting was as follows:

In favour:

Bahrain, Bangladesh, Bolivia (Plurinational State of), Burkina Faso, China, Cuba, Djibouti, Egypt, Indonesia, Jordan, Kyrgyzstan, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa;

Against:Argentina, Belgium, Chile, France, Hungary, Italy, Mexico, Netherlands, Norway, Republic of Korea, Slovakia, Slovenia, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Zambia;

Abstaining:Bosnia and Herzegovina, Brazil, Cameroon, Ghana, India, Japan, Madagascar, Mauritius.]

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Discussion Group 7 - Week 22 (Group 1) Week 23 (Group 2)

COUNTER-TERRORISM

Arcadia is a sovereign state. The border area between Arcadia and Bognia is economically and socially less developed than the rest of the state. In that area, loyalties are, to a significant extent, based on clan affiliations. The sons of three of the clan leaders were detained and charged with subverting the Arcadian state. That appears to have been based on their attendance at a public meeting and the fact that they constituted a study group for the study of globalisation. Protests over the arrests in the border region have taken the form of weekly large demonstrations. The demonstrations were peaceful for three months. On 1 November 2007, a small number of persons in the crowd threw bricks at the police. Others in the crowd said that those throwing bricks did not come from the area and were plain-clothed policemen. The police reacted with baton charges and the firing of tear gas and later live ammunition. Fifteen demonstrators were killed and seventy injured. Three policemen were injured. A substantial number of demonstrators, fearing reprisals, fled across the border to Bognia. The local media called for a judicial inquiry into the killings.

Arcadia has declared a state of emergency in the border region and has sent a notice of derogation to the UN Secretary General, which states,

"In view of the level of terrorist activity, Arcadia is derogating with regard to Article 9 of the International Covenant on Civil and Political Rights. It reserves the right to detain suspected terrorists until they are thought no longer to pose a threat. There is no possibility of judicial review of the decision to detain because the evidence cannot be produced in court, since it relies on secret intelligence material. In order to ensure political accountability, each decision to detain on this basis will be taken personally and jointly by the Ministers of Security and Justice."

Arcadia is seeking the return of those who fled. It has announced that it will detain them as suspected terrorists. There is a bilateral executive agreement between Arcadia and Bognia which provides that persons will be transferred from one state to the other on condition that 1. The requesting state establishes that there is a case to answer and 2. The offence in relation to which they are to be transferred is a crime in each jurisdiction. Arcadia requested the transfer of 12 demonstrators. Bognia has detained them.

Your task

As the legal adviser of the Government of Arcadia, prepare a briefing supporting Arcadia’s request. As the legal adviser of the President of Bognia, prepare a briefing recommending Bognia not to allow the transfer. The views of Arcadia and Bognia will be discussed at a special negotiation table to be held in Bognia between the two governments. The Bognian field Office of the High Commissioner for Human Rights has been invited to the meeting to present its views to both countries. Bognia and Arcadia have both ratified the ICCPR and CAT and accepted the right of individual petition under each treaty.

Each DG group will be divided in 3 groups: group 1 = Arcadia; group 2 = Bognia and group 3 = OHCHR (Bognian Office). Each group will have 15 minutes to present its position followed by 30 minutes of negotiation.

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The last 50 minutes of the DG will be used to discuss some of the key legal issues that Arcadia and Bognia face.

Reading

Refer to materials of the International Human Rights Law Lecture.

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Discussion Group 8 - Week 24 (Group 1) Week 25 (Group 2)

THE RIGHT TO HEALTH

Arcadia, a poor sub-Saharan African country, has ratified all the major international human rights treaties, including ICESCR and CEDAW. Assume it has entered no reservations in relation to any of these instruments. It has also committed to adhere to international development commitments, such as the Millennium Development Goals (MDGs), including MDG5 (which commits the country to reduce the maternal mortality ratio by three quarters, between 1990 and 2015, and to ensure universal access to reproductive health by 2015). The Bill of Rights in Arcadia’s Constitution recognises the right to life, the right of access to healthcare, and equality and non-discrimination. There are a number of donors providing development cooperation in Arcadia. All bar one of the donors are States parties to ICESCR. Both Arcadia and the donors have signed up to the Paris Declaration on Aid Effectiveness.

In 2006, a new Government was democratically elected in Arcadia for a four-year term. Among its legislative programme were health reforms. The Minister introduced a National Health Policy and Programme of Action, for the period 2006-2010. Amongst others, the document sets out plans for enhancing the provision of emergency obstetric care (EmOC), which is essential for the treatment of many complications that can arise during pregnancy and childbirth. The provision of EmOC is a key intervention for the prevention of maternal mortality

The Government plans, by 2016, to increase its provision of EmOC across the whole country in line with the WHO standards, namely to provide at least five EmOC facilities, including at least one “comprehensive facility” per 500,000 population.1.

Arcadia has made progress in reducing the maternal mortality ratio, from 800 maternal deaths per 100,000 live births in 1993, to 700 in 2008. However, this ratio is still one of the highest in the world.

Arcadia was devastated by an earthquake in 2009, which destroyed much of the country’s infrastructure, including its health facilities. Following the earthquake, the international community, including donors, committed significant resources to reconstruction and pledged long-term aid, amongst others to help rebuild the health system. However, the Government of Arcadia has been widely accused of high-level and widespread corruption. The Government has not made significant efforts to reduce corruption. Some donors have withheld or reduced aid to the Government, although much of this aid is still being channelled to country, particularly to civil society organisations working in areas of the country with the worst health outcomes.

As a result of the earthquake, as well as dwindling international support, the Government, which was re-elected in 2010, says it has no alternative but to reduce its budget including for health by 30 percent. In the National Health Policy and Programme of Action (2011-15) the Government has scaled back its commitment to EmOC. The Government argues it needs to focus on reconstructing primary healthcare facilities. While it still aims to provide at least five EmOC facilities, including at least one “comprehensive facility” per 500,000 population in the capital city and in the relatively

1 Monitoring emergency obstetric care: a handbook. Geneva, World Health Organization, 2009. At: www.who.int/reproductivehealth/publications/monitoring/9789241547734/en/. This handbook includes indicators which incorporate and update those indicators contained in UNICEF, UNFPA, WHO Guidelines for monitoring the availability and use of obstetric services (New York, United Nations Children’s Fund, 1997)

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prosperous and populous coastal counties, it has abandoned this commitment in relation to the much poorer inland counties. It is these counties which have the highest maternal mortality ratios in the county. They are also the home to the majority of Arcadia’s indigenous population, the Wandinka. There is no statistical data on the level of maternal mortality amongst the Wandinka, but it is thought to be significantly higher than the national average.

The second most important cause of maternal mortality in Arcadia is unsafe abortion. Arcadia’s penal code criminalizes abortion, although it recognises the following exceptions in which the procedure may be carried out: to preserve the life or safeguard the health of the woman; and when pregnancy results from rape. There is a lack of information available to the public about legal abortion in Arcadia, which obstructs access to legal abortion. Many women, both those who would and would not qualify for legal abortion, seek illegal abortions in unsafe conditions.

The Special Rapporteur on the right to the highest attainable standard of health is undertaking a mission to Arcadia, focusing on the issue of maternal mortality. Each DG should divide into four groups, to represent:

1. Representatives of the Ministry of Health and Justice. Please justify the current policy and legal framework as regards maternal mortality in view of Arcadia’s international right to health obligations.

2. The international donor community. Please explain your development cooperation decisions in respect of your right to health obligations in relation to Arcadia.

3. Arcadian Health Rights, a local NGO. Please provide your analysis of the Government’s and donors’ human rights obligations and whether they are being fulfilled in the current circumstances.

4. The Special Rapporteur. Please provide some initial recommendations in respect of the Government and donors, explaining their human rights obligations.

Groups 1-3 will have 15 minutes to present their cases. This will then be followed by 15 minutes of questions and discussion, prior to Group 4 presenting its initial recommendations (15 minutes). The remaining hour will be used to discuss the key human rights legal issues raised in Arcadia.

Readings:

Refer to the General Seminar readings on the right to the highest attainable standard of health. CESCR General Comment 14 will be of particular use and importance. Please additionally consult, as required:

Christina Zampas and Jaime Gher, “Abortion as a Human Right – International and Regional Standards”, 8(2) Human Rights Law Review (2008), 249-294.

Bueno de Mesquita, J., Hunt, P., and Khosla, R., “The Human Rights Responsibility of International Assistance and Cooperation in Health”, in Gibney, M., and Skogly, S., (eds), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press, Philadelphia, 2010), pp. 104-129.

Paris Declaration on Aid Effectiveness (2005) and the Accra Agenda for Action (2008)

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