For effective national protection systems

Dr. Bertrand Ramcharan, Deputy High Commissioner for Human Rights 

I wanted to be here and to congratulate you on this initiative that you launch in issuing this publication article 2.

Allow me to say that there is book edited by Professor Louis Henkin and there is a chapter in this book by Professor Oscar Schachter, in which he looks at the duty to respect and to ensure human rights, including the issue of remedies. There is a good part on the drafting history of the International Covenant on Civil and Political Rights (ICCPR), and article 2 on remedies. Allow me to remind you of some of the things he has to say.

While the text of the Covenant does not specify the nature of such domestic remedies, we may assume that undoing, repairing, and compensating for violation constitute appropriate remedies (as well as ways of giving effect to the rights in accordance with paragraph 2). If a violation is found, it must be ended and undone (if possible), and its fruits not used or repaired.

I just want to cite some of the ideas that were in the minds of the drafters, mainly, first of all the importance of the remedies. Secondly he says that

The drafting of subparagraph (b) raised two issues: (1) whether judicial remedies should be mandatory and (2) whether the guarantee of effective remedies could be adequately met by recourse to administrative and legislative authorities. Within the drafting committees strong sentiment was expressed in favour of judicial remedies.

I will come back to this topic in a little while. Then he points out that

There are other implications of the obligation in Article 2(3) to ensure an effective remedy and to provide for the determination of individual rights by judicial or other competent authority. If the courts are necessarily bound by legislative enactments and may never set them aside whatever their incompatibility with the Covenant, can it be said that a truly effective remedy exists for the violation of the rights of an individual?

He goes on to reveal the notion of remedies, going back to the time of the English Revolution of 1688. He concludes by saying ?hat the significance (of article 2) lies precisely in the unequivocal obligation to provide an effective remedy to ?ny person?whose rights are recognized? I thought that I would revisit this because the notion of the Covenant is that states should take the norms in the Covenant home, to establish national protection systems that should embrace constitutional compliance, legislative compliance, the possibility of going before the courts to protect one? rights, educating about human rights, monitoring communities that are in need of protection and finally, paying particular attention to institutions that can help to protect the individuals or the group such as ombudsperson. So this notion of the norms that are elaborated internationally and then taken home nationally goes with the notion of a national protection system. And the significance of article 2 and the right to a remedy is precisely this. If you can? go before the courts and get vindication of your rights then what are you left with? Then the notion of a national protection system will be an artificial notion.

I will not talk about any country but my own, Guyana. I just wrote a book on the highest court of my country, which came out in the last two months or so. My country became independent in 1966 and it abolished appeals to the Privy Council in 1969. I did this research for reasons that I will not go into here, but I was particularly interested in the following issues. Could one say that the courts were performing a role to stitch together a multi-ethnic society? Could one say that the international norms had penetrated the courts? And if there are situations in which individuals felt that they were in need of protection, and then they went to the courts, did they get that protection? I have to tell you that the answers to all three of these questions, in our instance, were in the negative. And so basing myself in my own country I came to the view that if the courts are not performing their role then the protection of human rights in a country is seriously deficient.

Let me take you back a little bit in time, to the mid-70s when the United Nations was investigating violations of human rights in Chile. I worked on the early investigations and as the situation was sliding the question arose, were the courts helped to provide the remedy of habeas corpus? Were the courts helped to stem the slide towards gross violation of human rights? And quite frankly the courts were not. If we go back to the early report of the working group of the United Nations on human rights in Chile you will see in those chapters under the judiciary?nd the first chapter I wrote myself?here is this notion that the courts?failure to protect human rights would result in a slide towards the abyss that they were eventually to experience in that country.

When I was doing the research for this book [on courts in Guyana], I came across a book written on the famous chief justice of Tanzania. The book is written as a biography and I think the chief justice? name is Dr. Francis Nyalali. There you see a country struggling with nation building. Then you see the heroic efforts of Chief Justice Nyalali trying to uphold the role of the judiciary in that country. I actually think, ladies and gentlemen, in the United Nations we must pay particularly more attention in the future to the role of the courts in the protection of human rights.

Inter-Rights and the Commonwealth Secretariat organised a series of six or eight judicial colloquiums. They brought together judges from different parts of the world to look precisely at the issue of how it is that one can impart information and exchange experiences among judges on their role in the protection of human rights. And the last of these series was organised in the capital of my country, Georgetown, and I happened to be there. They came up with the Georgetown conclusions on the role of the judiciary in the protection of human rights. And there you see the following proposition: judges should be aware of international human rights law; judges should provide relief where needed; judges should understand, particularly in developing countries, that they have a role in helping to hold the country together. Colloquiums were held in Bangalore, Cambridge, Georgetown and other parts of the world, and judges themselves were expressing and attaching importance to the judicial protection of human rights.

Since you gentlemen who are organising this are coming from Asian backgrounds I would invite your attention to the meeting of Asian chief justices and the report of this workshop published as a background document of the Vienna Conference. There you see the importance that they attach to the role of judges in the protection of human rights.

I want to conclude by thanking you a) for launching this publication; b) for echoing the importance of remedies, particularly judicial remedies and c) for sharing the sense of breakdown in judicial protection in different parts of the world that is a leading cause for the failure to protect human rights. Finally, I hope that in the future together we will be able to stimulate more activities. I never say for one moment ?rain judges? because I never think that we will have to train judges, but I would say to you that we must attach much more importance to giving them basic information about norms of jurisprudence.

Comments arising out of questions from the floor

I often tell myself that the story of human rights is a story of concentric circles. There is a commitment to human rights in the United Nations Charter and in the Universal Declaration. And the centre of these concentric circles I would call the principle of commitment. I think it is fair to say that countries far and wide share this commitment to human rights. And outside this centre of commitment there is this first circle which I would say is the circle of achievements. We have made some progress when it comes to the norms, when it comes to the acceptance of basic norms and when it comes to developing a culture of rights globally. Outside of it we have this second circle which I would call circle of immediate opportunities. These are the things that we might be able to achieve in the coming period. And beyond that there is a much larger circle, the circle of the ground still to be achieved. The UN and the international community are there to bring the states of the world and the international human rights movement together, but they will never replace protection within countries. That? why I place before you this notion of a protection system within each country. At the end of the day I would like to say by placing this imagery of expanding circles before you is to say that there is a little circle of some achievements and there are much larger circles outside that we still have to cover to have effective protection. So it is the challenge of each generation to push the first circle outwards.


* Edited text of a speech at the International Launch of article 2