DEVELOPMENT OF HUMAN RIGHTS STANDARDS

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In addition and complementary to its regional programmes, Interights aims to improve legal protection of certain key rights world-wide through development of jurisprudence, strengthening relevant mechanisms and providing education and training. The rights it prioritises are those to freedom of expression, liberty and security of the person and equal treatment without discrimination and economic, social and cultural rights. In the first of these areas, Interights has developed a dedicated programme, and this year it has started to develop a similarly strategic approach with regard to equal treatment without discrimination. In the other two areas, work is conducted primarily under the regional programmes, except as noted below.

FREEDOM OF EXPRESSION

EQUAL TREATMENT WITHOUT DISCRIMINATION

LIBERTY AND SECURITY OF THE PERSON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

FREEDOM OF EXPRESSION (top)

Freedom of expression remains a fragile right in many places, despite the fact that it is guaranteed by national constitutions and international human rights agreements throughout the world. Violations of the right continue to arise in each of Interights' regional programmes, with journalists thrown in jail for criticising political leaders, activists and human rights defenders targeted for disseminating information about violations of basic human rights, and local lawyers defending those journalists and activists similarly prosecuted for speaking out to ensure independent and fair procedures.

Interights' Freedom of Expression Litigation and Education Project seeks to redress and prevent such violations by strengthening protection of the right to free expression offered by the law. To achieve this aim, the Project engages in strategic litigation, provides legal support on individual cases, disseminates information and engages in programmes targeted at educating judges and lawyers about standards protecting the right to freedom of expression.

In particular, the Project has focused on repression of political speech, and has done so by providing support and advice on the use of international and comparative law to lawyers defending the right to free expression. By targeting cases and areas where repression may be addressed through legal means, and with guidance from a seven member International Advisory Panel, the Project seeks to secure stringent international legal standards for free expression with global impact.

Development of international standards

European Court of Human Rights

Article 10 of the European Convention on Human Rights remains the most widely litigated of the international protections of the right to free expression. As such, it has influenced courts and legislatures not only throughout Europe but also in Africa, Asia and the Caribbean. Because of the broad influence of its jurisprudence, the Project has targeted the European Court of Human Rights for strategic case work, and filed amicus curiae submissions in important free expression cases over the years. This year, we filed submissions in two such cases, Togu� and ors v Turkey and Nikula v Finland.

The applicants in Togu� were elected members of parliament who were stripped of their status and whose party was dissolved based solely on certain public statements on Kurdish rights. The case raised important issues concerning the rights to freedom of expression and association as well as the meaningful political participation of elected representatives in government, and the extent to which such representatives may legitimately be restricted in expressing - or associating with others who express - views on governmental reform and the rights of minorities based on the grounds of national security and territorial integrity. The Project submitted an amicus brief to the Court in Togu� reviewing relevant jurisprudence from Australia, Belgium, Canada, Germany, Hungary, South Africa, Spain, UK and USA.

Nikula v Finland involved the conviction of a criminal defence lawyer for criminal defamation based on courtroom statements she made criticising the prosecutor in her client�s case. Because the European Court has not yet addressed the important issue of the extent of protection afforded a lawyer in expressing herself fully and zealously in furtherance of a client�s case - even when such expression may be very critical of the authorities - the Project submitted an amicus brief outlining the practices of ten jurisdictions in this regard. An oral hearing for this case is scheduled for September 2001.

UN Human Rights Committee

While the jurisprudence of the UN Human Rights Committee (HRC) has developed in recent years, it has not yet explicitly addressed the important issue of whether speech that concerns a matter of public interest is granted a wider level of protection than other speech under Article 19 of the International Covenant for Civil and Political Rights. Because of the importance of establishing this doctrine under HRC cases - as it was established before the European Court in Lingens v. Austria (in which Interights submitted an amicus brief) - the Project has been active in supporting free expression cases before the Committee. This year, it assisted in developing submissions on behalf of a journalist convicted for statements in which he was critical of his government, and on behalf of a newspaper challenging censorship regulations. More details concerning these cases will be provided once they are filed and made public.

Legal advice and assistance

The Project provided legal support to lawyers in a variety of domestic free expression cases over the course of the year.

• In the Caribbean, we worked with lawyers challenging the constitutionality of sedition and criminal libel laws in Grenada by providing relevant international and comparative legal support. In both cases, prosecutors brought charges against local journalists for statements they had published regarding matters of public interest. While the sedition case remains pending, a Grenada High Court struck down the country's criminal intentional libel law as unconstitutional, citing international and comparative jurisprudence in support of its position. Although the Court of Appeal reversed this decision, the case will be heard later this year by the Privy Council.
  
• As in recent years, the Project continued to provide assistance to lawyers defending those charged with the crime of spreading 'false news'. In particular, the Project continued in its efforts to assist lawyers in Ghana and Malaysia defending two editors and a human rights activist respectively against such charges. The latter case, involving the criminal prosecution of Irene Fernandez, a human rights activist who has worked to expose the torture and degrading treatment of migrant workers in Malaysia, is now entering its sixth year.
  
• The Project also continued in its efforts to support lawyers fighting the improper use of contempt powers to repress speech that is critical of government action, providing relevant international and comparative material to lawyers in South Africa and India.

In addition to these cases, relevant jurisprudence was provided to lawyers in the Ukraine who were examining draft legislation setting limits on damages for defamation actions and imposing restrictions on the distribution of foreign publications. Support was also provided to a lawyer in Gibraltar representing a journalist excluded from government press conferences. Finally, the Project contributed to a legal opinion for Women on Waves, exploring ways in which that non-governmental organisation might challenge restrictions in Ireland on the provision of information regarding pregnancy terminations.

Education and Resources

In an effort to complement its strategic litigation and litigation support work, the Project also continued to engage in the education of judges and lawyers on standards regarding the right to free expression.

In particular, the Project participated in a workshop for judges from the Baltic states and Poland in Vilnius, Lithuania, organised jointly by the Constitutional and Legal Policy Institute and the Lithuanian Association of Judges. The workshop focused on the independence of the judiciary and the relationship between the media and the judiciary, and included the presentation and discussion of a paper by the Project on transparency in court proceedings, including freedom to access and comment on court proceedings.

Continuing its intern programme, this year the Project hosted an experienced constitutional rights lawyer and journalist from Sri Lanka, Kishali Pinto Jayawardena in the spring of 2001. Such internships afford Interights a valuable opportunity to work with human rights lawyers from different parts of the world while also equipping the interns with increased practical knowledge of the use of international and comparative law to further the right to freedom of expression in their own regions.

The Project also contributed its annual survey of European Convention on Human Rights jurisprudence relating to free expression for the Oxford University Press� Yearbook of Copyright and Media Law.

Strategic Planning

In late March 2001, the Project hosted the fourth meeting of its International Advisory Panel, providing an opportunity to revisit goals and methods and for Panel members to exchange information and ideas on legal developments concerning free expression in their jurisdictions. In an effort to ensure that new perspectives inform our discussions, the composition of the Panel was altered, with the addition of Paul Schabas, an experienced free speech litigator from Canada. Two guest experts were invited to participate in the meeting: Justice Solomy Bossa from Uganda and Hilaire Sobers, formerly of the Independent Jamaican Council for Human Rights and currently counsel for the Jamaica Observer. Papers were presented by the Project by each Panel member and guest expert concerning significant developments in free expression law in international and domestic courts. The Panel helped in setting priorities and developing strategies for its future work. The Panel approved a more inclusive definition of the Project's mandate, noting that it should focus its work on the protection of expression that is in the 'public interest' rather than simply focusing on the protection of so-called 'political' speech.

In an effort to initiate proactive strategies designed to build on developments in international and comparative anti-discrimination law, and to ensure that such developments are fully utilised in other jurisdictions and in the fight against different forms of discrimination, Interights this year began a new strategic thematic programme focusing on equality. While the right to equal treatment has been evident in each of Interights' regional programmes, such work has been largely ad hoc in nature, rather than strategic. The primary focus of the programme in its early months was to build on recent historic European legal developments, while consultations began in other regions.

European Project to Implement Anti-Discrimination Legislation

Jointly with the European Roma Rights Center (ERRC) in Budapest and the Migration Policy Group (MPG) in Brussels, Interights began a three-year project in January 2001 to implement anti-discrimination legislation throughout the 15 European Union (EU) member states and 11 EU candidate countries. The Project attempts to capitalise on two landmark European legal instruments that both came into existence in the year 2000.

Specifically, in late June 2000, the Council of the EU adopted Directive 2000/43/EC, 'implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.' Significantly, within three years, all EU member states must conform their legislation to implement the Directive's principles. In addition, each of the EU candidate countries will be required to enact legislation to meet the Directive's standards, which include, inter alia, the prohibition of direct and indirect discrimination by both state and private actors, and significant procedural requirements such as a shift in the burden of proof from complainant to defendant in civil cases. Also in June 2000, the Committee of Ministers of the Council of Europe adopted Protocol No. 12 to the European Convention on Human Rights, broadening the scope of the Convention�s Article 14 on non-discrimination, which presently prohibits discrimination only in the enjoyment of the rights already enshrined in the Convention. Unlike the Race Equality Directive, however, this Protocol enters into force only after ten states have ratified it.

The joint Project aims to support local and regional groups and individuals in making the most of the historic opportunity for enhanced anti-discrimination efforts created by the recently adopted Directive and Protocol No. 12. Working in conjunction with local NGOs and individuals, the Project engages in three principal activities, each designed to promote the Directive's effective application and the Protocol�s timely entry into force:

• Workshops
for judges, lawyers, NGO anti-discrimination advocates, government officials, members of parliament and representatives of specialised bodies to provide key actors throughout Europe with information about the legal obligations flowing from the Directive and the Protocol, support for their creative use and application, and the opportunity for individuals from different countries to discuss approaches and methods;

• Test litigation
before selected constitutional and Supreme Courts, the European Court of Human Rights and the European Court of Justice, to ensure the adoption in judicial case law of the various elements of the Directive and the Protocol; and

• Legislative advocacy
(conducted by ERRC and MPG) before individual governments and relevant EU institutions to ensure that the requirements of the Directive are swiftly and adequately complied with, and that Protocol No. 12 to the ECHR is speedily ratified by at least the minimum ten states required for its entry into force. Interights provides support for legislative drafting, providing comparative anti-discrimination statutes and commentary on draft legislation.

All three components are predicated on high-quality research conducted by local lawyers to identify the principal legal and institutional issues in each country. To this end, the Project began working with lawyers from each of the 26 countries to prepare a detailed country-by-country analysis of existing legal provisions and relevant jurisprudence pertaining to racial and other forms of discrimination.

The Project's first transnational workshop is scheduled to take place in November 2001 just outside Bucharest, with activists, lawyers, selected government officials and others from Finland, Italy, The Netherlands, Romania and Slovakia in attendance. In addition, litigation support and legislative advocacy has been ongoing, with Interights staff providing advice and comparative materials to Slovakian lawyers drafting anti-discrimination legislation and litigation support to lawyers in several anti-discrimination cases in Central and Eastern Europe.

In addition to extensive anti-discrimination work through the European Project, Interights also provided assistance in fighting discrimination in South Asia through its Equality Programme, in conjunction with the South Asia Programme. In particular, Interights participated in a workshop in Bangalore, India, Practical Strategies Workshop Addressing Caste Discrimination from Human Rights Perspectives, organised by Minority Rights Group and the National Campaign on Dalit Human Rights. In addition to providing advice and input on the use of Special Rapporteurs and other international mechanisms to Dalit activists at the workshop itself, follow up litigation support was provided in several cases of discriminatory treatment of Dalits in India. One such case involved the closure of certain gold mines by the state, effectively destroying any means of livelihood for the Dalit community, most of whom were first moved to the area many years before, specifically to engage in the dangerous and low-paying mine work.

Much of Interights� work in its regional programmes addresses liberty and security of the person. While we do not have a dedicated thematic programme on this issue, certain central issues are pursued across programme areas, particularly those relating to the consequences of conflict.

Interights staff members worked with the Human Rights and Justice Centre of the University of Rwanda in Butare to draft guidelines and legislation for a possible compensation fund for the victims of the Rwanda Genocide. They also advised on the concept and production of documentation on violations of the of human rights and the laws of war in the conflict between Eritrea and Ethiopia and advised the Commonwealth Human Rights Initiative on the preparation and deployment of a field mission to evaluate needs in reconstructing the administration of justice sector in post-conflict Sierra Leone. More generally, they participated in a Swiss-sponsored consultation, co-ordinated by the Harvard Centre for Population and Development Studies, on generating new policy at the UN level on intervention in humanitarian emergencies.

In Nigeria, staff provided advice to the Legal Resources Consortium and the Commission investigating gross abuses of human rights under successive military regimes in Nigeria since 1966 on the question of reparations for victims of human rights violations. They also advised on the conduct of inquests into killings by soldiers of over 200 members of the Odi Community in Nigeria in November 1999.

On the question of refugees, staff co-authored a section on African regional human rights mechanisms in a manual by Professor Joan Fitzpatrick of the University of Washington Law School on the protection of human rights of refugees and internally displaced persons in international human rights mechanisms.

 

ECONOMIC, SOCIAL AND CULTURAL RIGHTS (top)

Interights� work on the role of law in implementing economic, social and cultural rights (ESCR) world-wide gained momentum this year. Through three complementary areas of activity, it aimed to elaborate and expand the potential for legal enforcement of ESCR, while strengthening the ability of Interights' staff to offer advice and assistance to those litigating rights in this increasingly important field. We deliberately decided, at least initially, against establishing a separate programme for the enforcement of ESCR to ensure that, as an organisation, we put into practice the commitment in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993 to the indivisibility of human rights by integrating civil, political, economic, social and cultural rights in each of our regional programmes.

Realising Economic, Social and Cultural Rights under the African Charter

Following consideration of a legal opinion submitted by Interights to the African Commission on Human and Peoples' Rights on some of the legal and practical issues arising in relation to the implementation of ESCR under the African Charter, the African Commission requested Interights to assist it in preparing and organising a seminar to formulate strategies for implementing ESCR under the African Charter. This is described full under the Africa programme above.

European Social Charter's Collective Complaints Procedure

Interights was one of a small group of NGOs awarded the right to submit collective complaints under the new complaints procedure of the European Social Charter. It is important that this mechanism be used, in order to test and develop the procedure and the jurisprudence. Interights has accordingly advised partners of the availability of this mechanism and its willingness to support efforts to submit complaints. Preparatory work began this year on one such complaint, against Bulgaria.

Judicial Colloquium Series on ESCR and Access to Justice in South Asia

At the request of senior judges in South Asia, Interights and the New Delhi-based Commonwealth Human Rights Initiative (CHRI) are jointly facilitating a series of Judicial Colloquia on the Domestic Application of International Human Rights Norms within the region. At a preliminary consultation in Bangladesh in May 2000, involving key judges from each country and selected lawyers, a Contact Group of six judges, set up to guide the project, agreed that main focus of the colloquia should be on economic and social rights and access to justice. During the past year, on the basis of these recommendations and further consultations, Interights and CHRI have developed detailed plans for the project, identified partners and participants, initiated background research and secured funds for the first phase, leading to the first Colloquium.

Casebook on Economic, Social and Cultural Rights in South Asia

With partners in Sri Lanka and India, Interights designed and began development of a casebook on economic, social and cultural rights in South Asia, described above under that programme. Provisionally entitled Economic, Social and Cultural Rights in South Asia: Cases and Materials, this is intended as a reference work on the practical aspects of enforcing ESCR through national courts.

Preparatory work on the South Asia Casebook will serve as a pilot project for a broader initiative to prepare a Casebook on Economic, Social and Cultural Rights focussing on key and illustrative cases from jurisdictions world-wide.

The Judicial Role in the Implementation of Economic, Social and Cultural Rights.

Views among judges differ greatly as to their role in implementing ESCR. Some argue that the role of the court is necessarily limited in relation to rights where standards have not yet been clearly defined and where questions arise about redistribution of resources, which judges are fundamentally unsuited to make and which need political rather than judicial resolution. Others respond that ESCR cannot be viewed as being of an entirely different nature from civil and political rights; while there is a legitimate concern about courts being over-assertive in forcing government expenditure and about potential political backlash, the implementation of economic, social and cultural rights as human rights cannot be left to the political process alone, but must involve a role for the courts, as there is in respect of civil and political rights.

Following a lively discussion on this issue at a meeting of Interights' Advisory Council, we invited members of the Council and other distinguished judges to contribute their views. The collection will be published as a booklet and also made available on our website.

Interights� Bulletins on ESCR

During the past year, two issues of the Bulletin have focussed primarily on ESCR, while other issues have included articles on new developments in ESCR. The first issue, entitled Implementing Economic, Social Cultural Rights in Practice, was dedicated wholly to the legal implementation of ESCR, with articles on practice in South Africa, in the Inter-American human rights regional system and in Francophone civil law systems. It also carried smaller articles on the Special Rapporteur on Education and references to other new developments in this area. Another issue on Property Rights, Restitution and Compensation dealt mainly with ESCR issues associated with property and dispossession.

Through its regional programmes, Interights has been involved in litigating economic, social and cultural rights under the European Social Charter, before the African Commission on Human and Peoples' Rights and before national courts in Asia and Africa. Its role in such cases, mentioned in the Appendix, varies from providing material and advising lawyers to co-representation or sole representation.