Words into Action

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Using the experience of the Jewish people to promote the human rights of all peoples

The Consultative Council of Jewish Organizations (CCJO) was founded in 1946 by the Nobel Peace Prize Laureate, René Cassin, who was also its President for many years. As an NGO in consultative status with the United Nations, it has played an active role in the growth of international human rights, both by participating in UN activities, and by lending its weight to human rights campaigns worldwide. For more information see the website www.ccjo.org.

The cover shows the European Court of Human Rights, located in Strasbourg.

Louis Bloch is the CCJO delegate to the Council of Europe.

Clemens N Nathan is the Chairman of the Clemens Nathan Research Centre.

Words into Action

The Clemens Nathan Research Centre is an organisation dedicated to the promotion of international human rights. It is the research arm of the Consultative Council of Jewish Organisations.

Its constituent organisations are the Anglo-Jewish Association, the Alliance Israelite Universelle and CCJO René Cassin. It is named after Clemens Nathan, who is also its first chairman. The activities of both organisations have included holding lectures and conferences, and sponsoring books on human rights. For more information seee www.clemensnathanresearchcentre.org.

La parole, l’écrit & l’action La parole, l’écrit et l’action

In September 2010, the CCJO and the Clemens Nathan Research Centre organised a colloquium in Strasbourg on La parole, l’écrit et l’action. Eminent professors of international law, President Hans-Gert Poettering and Mme Catherine Trautmann, members of the European Parliament and key figures in European institutions, addressed the issue of how to compel a State to uphold the commitments it has made with respect to Human Rights and Humanitarian Law. This book brings together those papers. At the same event a presentation of the René Cassin medal was made to Hans-Gert Poettering by Clemens Nathan.

Words into Action Papers from a conference organised in Strasbourg by The Consultative Council of Jewish Organisations & The Clemens Nathan Research Centre Edited by Clemens N Nathan and Louis Bloch With a presentation by the former President of the European Parliament, Hans-Gert Poettering

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Conference Papers Strasbourg 2010

La parole, l’écrit & l’action Words into Action Clemens N Nathan, Chairman, Clemens Nathan Research Centre Maitre Louis Bloch, CCJO delegate at the Council of Europe

Clemens Nathan Research Centre

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Š Clemens Nathan Research Centre 2011 www.clemensnathanresearchcentre.org All rights reserved; no part of this publication may be reproduced in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the permission of the Publisher.

Typeset by Words by Design Limited www.wordsbydesign.co.uk Printed in the United Kingdom Cover image by The Council of Europe

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The Consultative Council of Jewish Organisations and The Clemens Nathan Research Centre The CCJO, as it is commonly known, was founded in 1946 by Jewish organisations from both sides of the Atlantic to encourage recognition of human rights for all people and the protection of Jews from persecution in all parts of the world. It is an NGO with consultative status at the United Nations and the Council of Europe, and its constituent organisations at present are the Anglo-Jewish Association and the Alliance Israelite Universelle. A recently-formed younger members’ group, CCJO-RenÊ Cassin, is affiliated to it.

Through its constituent organisations, the CCJO played a central role from the beginning of the negotiations in the defence of the rights of surviving victims of the Nazi Holocaust to reparation and restitution. In the 1970s, it lent its weight to the campaign to highlight the plight of the persecuted Jews of the Soviet bloc. The CCJO was also particularly concerned with the situation of former slave workers who had not received compensation. It is now following closely the development of UN guidelines on reparations, restitution and compensation which will underlie the right of all victims of international human rights violations to recourse to justice for the evils they have suffered. iii

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The CCJO has been an active supporter of efforts to increase the effectiveness of the UN’s human rights treaties and institutional mechanisms in the intervening decades. From the 1940s to the 1970s it was involved in the creation of some of the United Nations human rights instruments which form the basis of the UN human rights protection work today. The CCJO keeps a watching brief on international human rights problems and developments, and took a particular interest in the establishment of the International Criminal Court to deal with gross human rights violations. CCJO briefings have been presented to various international bodies on subjects ranging from the conflicts in former Yugoslavia to problems relating to laws dealing with the migration of workers.

More recently, the CCJO has held lectures in London given, among others, by Dr Bertrand Ramcharan, Deputy UN Human Rights Commissioner, and by M. Robert Badinter, the former French Minister of Justice. Its representatives have taken part in the Durban Conference on Racism, on Conferences on Counterterrorism in Israel, and meetings and conferences on anti-semitism held by the Organisation for Security and Cooperation in Europe (OSCE). The CCJO has also sponsored a collection of essays on Racism and Human Rights for the first Durban Conference, and a work by Professor Anne Bayefsky entitled How to Complain to the UN Human Rights Treaty System launched at the UN in New York.

The Clemens Nathan Research Centre was established as the research arm of the Consultative Council of Jewish Organisations (CCJO). It is named after Mr Clemens Nathan, its first chairman, as a tribute to his many years of activity in the field of international human rights, starting with his iv

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collaboration with the eminent human rights pioneer, René Cassin, a Nobel Peace Prize Laureate, and a principal drafter of the UN Declaration of Human Rights. Clemens Nathan is the joint chairman of the CCJO and (among many other activities) chaired the Cambridge Centre for Jewish Christian Relations for many years.

The Clemens Nathan Research Centre has initiated a number of projects. In February 2005, together with the Commonwealth Institute of the University of London, and Martinus Nijhoff Publishers, it held a Colloquium on Religion and Human Rights entitled, ‘Does God Believe in Human Rights?’. The papers, delivered by distinguished experts, were published by Martinus Nijhoff.

Since then it has successfully organised conferences on Terrorism, Foreign Policy, International Development and Reparations for Victims of Genocide. The Clemens Nathan Research Centre is also carrying out a long-term research project, in collaboration with the International Bar Association and the Raoul Wallenberg Institute, University of Lund, Sweden, on formulating rules for the conduct of international factfinding missions.

Prior to the Centre’s establishment, such projects had been part of the range of activities undertaken directly by the CCJO. The activities of both the Clemens Nathan Research Centre and the CCJO have benefited from the very generous support of the Carnagie Foundation, the Ford Foundation and the Shoresh Charitable Trust.

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Preface Louis Bloch The importance of human commitment has been emphasised since time immemorial: “…if a man makes a vow, he shall not break his word, he shall do according to all that proceedeth out of his mouth” (Numbers XXX, 3), “Beasts are taken by their horns and men by their words” (Antoine Loysel, French legal adviser (1536-1617)). The undertaking of a commitment, either orally or in writing, is peculiar to human beings. And when the CCJO learned of violations of human rights or humanitarian law by States that have signed up to international treaties or declarations enshrining these rights, our NGO was profoundly shocked. Relationships based on power were replacing those based on the rule of law, and human law was being superseded by the law of the jungle.

In order to explore remedies for this situation, it was decided to hold a Colloquium and invite individuals with special expertise in the field to participate: these included lawyers, members of the European Parliament, a high-ranking European official and a representative of the International Committee of the Red Cross. Keeping in mind that “Justice without force is powerless; force without justice is tyrannical” (Blaise Pascal), the CCJO chose Strasbourg, France, the seat of the European Court of vii

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Human Rights, as the location for a debate on “La parole, l’écrit et l’action” (‘The Spoken Word, Writing and Action’, or more easily, ‘Words into Action’). As President Hans-Gert Poettering has declared, “In Europe, it is not might which is right, but right which is mighty.”

The CCJO would like to express its sincere thanks to all those who have contributed to the success of this event with their participation, advice and assistance. Professors Patrick Wachsmann, Emmanuel Decaux and Jean Waline, specialists in international public law; Ms Ghislaine Doucet, the legal counsel representing the President of the International Committee of the Red Cross; Dr Hans-Gert Poettering and Ms Catherine Trautmann, Members of the European Parliament; Mr Philippe Boillat, Director General of Human Rights and Legal Affairs at the Council of Europe; Mr Eric Elkouby, representing the Mayor of Strasbourg; lawyer Maître Claude Weil and his assistant Ms Béatrice Campari. To all of you, our most profound gratitude.

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Contents Preface, Louis Bloch

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Contents

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Welcome, Eric Elkouby

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Presentation of Rene Cassin Medal, Clemens N Nathan

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Acceptance Speech, Hans-Gert Poettering

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Patrick Wachsmann

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Emmanuel Decaux

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Ghislaine Doucet

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Catherine Trautmann

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Philippe Boillat

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Summary, Jean Waline

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List of Contributors

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Appendices Conference Announcement

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European Convention on Human Rights, 1950

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Welcome Eric Elkouby, Deputy Mayor, Strasbourg In opening and welcoming you to the colloquium organised by the CCJO, allow me first to extend greetings on behalf of Roland Ries, Mayor of Strasbourg.

The colloquium, which focuses on the core theme of international law and the promulgation of international agreements in the matter of human rights and humanitarian law, places the idea of human rights firmly at the centre of social concerns.

Professor Marc Agi, President of the International Academy of Human Rights, wrote, “A free man is in no way free if he does not primarily use his freedom to help other men achieve theirs.�

It is in this spirit that here in Strasbourg, the European capital and headquarters of the European Convention on Human Rights (ECHR), we have strengthened our ties with those who defend our indisputable and inalienable values: those of respect for humans because they are human.

You have succeeded in bringing together a remarkably distinguished assembly to construct, establish and advance the very essence of law which will be the creative engine of freedom, in the fervent hope that peace may finally unite 1

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peoples. However, as René Cassin emphasised, “There will not be peace on this planet while human rights are violated in any part of the world.” That is why we in Strasbourg are aiming to be the voice of the voiceless, the voice of engagement, the voice of people who are eager and passionate for peace, all of which is the role of the Council of Europe, an underestimated patron of human rights. It is also the role of the ECHR, which has developed a protective jurisprudence for all people; in this way, our Town Council has strengthened its ties with these two bodies.

Our role as a driving force in this is further illustrated by the pact for respect signed in the Town Hall here by leaders of the four major monotheistic religions: the Strasbourg Appeal, which was drawn up as a result of events taking place in Gaza.

Our city has also welcomed Nobel Peace prize winners, Elie Wiesel and Vaclav Havel. In addition, the award of the Sakharov prize demonstrates the transformation in our philosophy to become a city, where the idea of understanding and sharing predominates: in the spirit of the 18th century philosophers: “Light springs from debate.”

May this light illuminate your work, which I hope will prove productive, innovative and profound, so that this conference hall will resound to the idea championed by Jean Jaures in 1908 – the basic principle of human rights is freedom, freedom of the individual, freedom of thought, freedom of work and freedom to live.

May this freedom bear hope and be a portent of real development, such as we seek from the discussions recently initiated in America by President Obama with countries of the Middle East, and those led by the UN to resolve the problem of 2

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borders in the Far East, as well as those instituted by Russia on the subject of energy.

In short, you will therefore appreciate my concluding thoughts, which go out to Hervé Guegière, Stéphane Taponier, Florence Cassez and Guilat Shalit, and all those who are held arbitrarily as hostages throughout the world.

This is why your work today is so significant. May words, writing and action (‘La Parole, L’écrit et L’action’) guide your day, so that solutions may be found in the implementation of international treaties, so that human rights are not usurped by the law of the jungle – because when man is no longer master of the deed, man is no longer a man. That is what you are setting out to prove.

This was also the thought of Vaclav Havel, who, in his work, “Summer Meditations”, writes, “Human rights and universal civil rights will only be respected on one condition: man must comprehend that he is responsible for the whole world.” Or, as is written in the Torah, “He who saves one life, saves all of humanity.”

May your discussions see these ideals turn into reality.

Thank you for having chosen Strasbourg for your work. I wish you a fruitful debate and I extend to you a warm welcome to Strasbourg.

Thank you.

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Presentation Clemens N Nathan The René Cassin Medal is important in that it reminds us of the Declaration of Human Rights which was mainly drafted by René Cassin in 1948. Eleanor Roosevelt and René Cassin received the Nobel Peace Prize for this in 1968. Cassin was also the first Chairman of our organisation, the Consultative Council of Jewish Organisations. It was his passionate desire that the appalling suffering during the First and Second World Wars should one day stop. It became clear to him and to other people working at UNESCO and at the Human Rights Commission that there must be protection for individual’s human rights in the future wherever this was. A State could no longer be trusted alone to protect its citizens. To Cassin each human being was sacred irrespective of race, religion or nationality. It was this ideology which motivated him to put all his energy into this work and encourage us to reach out to those suffering today.

In Cassin’s words: “As a corollary to the right of every individual to life and full participation in society the Declaration incorporated in the list of human rights the right to work and a certain number of economic, social and cultural rights.” He hoped after the endless debates, drafting and re-drafting it would become a beacon of hope for humanity after it was approved 5

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with only eight abstentions and no dissenting votes. There are still too many nations and peoples who pick and choose those articles of the 30 which suit themselves, ignoring the totality of the Universal Declaration of Human Rights.

John Peter Humphries, the Director of the Secretariat of the Division of Human Rights at the UN, commented after the Declaration: “There is a fundamental link between human rights and peace. There will be peace on earth when the rights are respected.” Another outstanding diplomat involved was Charles Habib Malik. He was President of the Security Council between 1954 and 1958 and President of the 13th session of the General Assembly in 1958. He described the Declaration in this way: “This is the first time the principles of human rights as fundamental freedom are spelt out authoritively in precise detail.”

Amongst the recent distinguished recipients of the René Cassin Medal have been:Robert Badinter, Chief Justice of France, for his outstanding work in the abolition of capital punishment.

Bertie Ramcharan, the acting High Commissioner of the Human Rights Commission at the UN. Rolf Ekéus from Sweden, for his difficult work in Iraq and elsewhere in dealing with the problems of weapons of mass destruction before Hans Blick took over this delicate position at the UN. It is today an enormous privilege to be able to award this medal to Hans-Gert Pöttering. He entered the European parliament in 1979 as one of the first groups of elected members and has been a member there ever since. For several years he led the 6

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Christian Democratic Group with great skill, dealing with many nationalities and issues. His empathy with diverse types and styles of people oiled many wheels. At the same time, he was hard-headed and tackled difficult issues. Most recently he was President of the Strasbourg Parliament and well-respected by leaders across Europe. He greatly increased the standing of this multi-country body.

Dr PĂśttering, I am deeply honoured in presenting you with this award on behalf of my organisation. You surely are an example of what has been achieved by an individual from the Federal Republic of Germany in making remarkable strides towards furthering human rights, reconciliation and bringing further countries into the fold of the European Parliament. Let us hope that this work will develop in other parts of the world as well.

Hans-Gert PĂśttering receives the RenĂŠ Cassin Medal from Clemens N Nathan 7

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Hans-Gert Pรถttering, Clemens N Nathan, Louis Bloch and Tobias Winkler

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Acceptance Speech Dr. Hans-Gert Pöttering “In the European Union, it is not the law of the mighty, but the might of the law, which prevails.”

I am delighted that in your announcement of the colloquium, my words were quoted, since they reflect my strong conviction that the power of the law is the greatest achievement of the European Union as a community of values. In former times, the principle of might governed European politics. Today, it is our common law which affords protection to the weak and which binds all European countries together. Only the law can ensure peace for us all!

At the heart of my understanding of Europe as a community of values are human beings and their inalienable dignity. We have the capacity to violate or debase our own dignity, and it may also be injured by the behaviour of others. However, human beings cannot be stripped of their dignity and it is for this reason that the highest priority of politics must be to ensure human dignity and to promote its development. My commitment to the protection of human rights is based on the conviction that freedom cannot exist without respecting the rights of others and that we cannot have peace without a fair and equitable balance among ourselves. Freedom, peace, rights and social welfare are 9

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possible only if we work together, and not against each other.

Our founding fathers understood this when they created Europe as a community of nations under the rule of law.

For us Europeans, the roadmap for dialogue between cultures and our relationship with other States is unequivocally enshrined in our foreign policy: we regard it as is our clear remit to defend human rights anywhere and everywhere in the world. Human rights are inalienable and form the basis for our international cooperation as Europeans within the European Union. Our understanding of human rights is not as a privilege of the West, but as the fundamental cornerstone of all our common relationships.

Those who violate human rights cannot then rely on the pursuit of any other purpose, however great or good this may be.

Violations of human rights must be condemned as a scandal of our times. In the European Parliament, across all the parties, we are unanimous in our agreement that a universal commitment to human rights is absolutely key to the credibility of European politics. We would be abandoning our ideals, forgetting the lessons of our own past to become shabby opportunists of global politics, if the violation of human rights anywhere in the world did not touch us.

This is not only a moral issue. We know that without human rights and a state of law, economic and social progress, and human development are simply not possible. And this applies to every nation on earth, but in particular, to those among the poorest.

The miracle of our generation is that we have overcome the division of our continent. The fall of the iron curtain and acceptance of twelve countries into the European Union were 10

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made possible because the yearning for freedom and democracy, and the prospect of equal rights for all human beings were stronger than the inhuman ideologies of the twentieth century.

The nations and peoples of Europe have learned an important lesson from the calamitous history of Europe. Never again should there be war in Europe. Never again should totalitarian ideologies rule, not to speak of totalitarian regimes. The disaster wrought by national socialism, and even communism, across a wide swathe of Europe should remain a constant warning to us.

It is our aim to ensure peace and freedom throughout Europe, precisely because with the breakdown of peace and the erosion of civil liberties, we have experienced the devastating assault on the human dignity of so many individuals. Ultimately, this also damaged Europe’s standing in the global community. Since we have placed human dignity at the heart of Europe, we must be consistent and unbending in our efforts to ensure that Europe is and always remains a stronghold of commitment to the dignity of humanity.

It is for this reason that we have to speak up for freedom and democracy in Belarus, where the last authoritarian regime in contemporary Europe still rules.

This is also why we should give consideration to minorities and by respecting all peoples, groups and human beings, show that life in Europe has universal value for all.

It is why we must engage with human rights all over the world, whether in Sudan, the Middle East or Tibet; nor should the future of Africa leave us untouched.

What form does the European Parliament’s commitment to defend human rights take in concrete terms?

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As the single democratic and directly elected organ of the European Union, the European Parliament ensures that rights and civil liberties are protected and promoted both in and beyond Europe. We members of Parliament take this important task very seriously, because the citizens we represent expect us to speak up when – and wherever in the world – violations of human rights occur.

In particular, the European Union Charter of Fundamental Rights, which came into force in the context of the Lisbon Treaty on 1 December 2009, makes it clear that by establishing the European Union, we have drawn the ultimate lesson from Europe’s history. Still today, the driving force behind the European Union remains respect for the dignity of the individual, the preservation of the freedom, peace and democracy won, and living by the rule of law.

For the European Parliament, legally binding acceptance of the Charter of Fundamental Rights was an unequivocal component element of any agreement on European Treaty reforms, and in this regard, the European Parliament has prevailed. The existence of a comprehensive catalogue of fundamental and human rights which are equally binding and inalienable for every citizen of the Union is not only a matter of course in twentyfirst century Europe, but is at the very core of our understanding of ourselves as Europeans.

To underline our commitment to human rights, since 1988 the European Parliament has been awarding the annual Sakharov Prize for Freedom of Thought to individuals engaged in the fight against intolerance, fanaticism and persecution.

In recent years, recipients of the award have included the Russian human rights organisation, ‘Memorial’, the Chinese 12

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human rights activist, Hu Jia, and the Sudanese lawyer, Salih Mahmoud. As President of the European Parliament I had the honour of handing over the award to Salih Mahmoud personally.

In addition, the work of the President of the European Parliament further includes letters and plenary speeches, emergency resolutions and participation in a wide-ranging variety of discussions on different committees.

An important forum in this respect is the ‘Human Rights’ subcommittee, which reports to the committee for foreign affairs.

The European Parliament also has under its aegis a number of different standing committees, such as the committee for foreign affairs, the development committee, the committee for civil liberties, justice and home affairs, the committee for the rights of women and gender equality, all of which deal with violations of human rights.

As early as 1950, when the European Convention of Human Rights was signed by all the member States of the European Council, it was clear that the binding nature of the convention represented a milestone in the politics of peace and in the preservation of human rights. Since then, the creation of the European Court of Human Rights in Strasbourg has given us a court which, in addition to providing countries with the possibility of lodging a ‘national complaint’, also gives individual citizens the opportunity of bringing a case. Here also, the Lisbon Treaty signalled an important step forward and with its coming into force on 1 December 2009, the European Union acquired the status of a legal entity. This also cleared the way for admission of the EU to the European Human Rights Convention. Previously only open to member States of the 13

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Council of Europe, this changed with the ruling adopted in the 14th supplementary protocol to the European Human Rights Convention, which came into force on 1 June this year. While it is clear that it will take some time for the European Union to become a member of the European Human Rights Convention, these negotiations represent a historic step. It will create a connective thread in the European system of protection of fundamental values and at the same time ensure the coherence of the overarching successful strategies of the Council of Europe and the European Union. Admission to the Convention also has enormous symbolic, as well as practical, significance.

Symbolic, because by its admission, the EU in its capacity as an authority will be subjecting all its dealings in matters relating to human rights to external legal scrutiny and verification. This will add to the credibility of human rights’ protection in Europe and EU external relations policy. Practical, because by joining the European Human Rights Convention, any citizens of the European Union who believe their fundamental rights to have been violated, will have further legal recourse to lodge a claim.

In the context of the European External Action Service currently being established, in future human rights will also be comprehensively considered at the behest of the European Parliament. At the plenary session of the European Parliament in Strasbourg on 29 June this year, Catherine Ashton, the High Representative for Foreign Affairs and Security Policy and VicePresident of the European Commission, undertook that in future, the European External Action Service would give high priority to the defence of human rights and responsible government worldwide. Consequently, all EU delegations will establish structures to monitor the human rights situation in order to achieve effective and coherent implementation of EU 14

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human rights policy. In the negotiation of trade agreements, too, the human rights situation will be given a more prominent role.

This will mean that, in the event of any violations of human rights, pressure can be effectively exerted on other States interested in trading with the European Union.

To us, all these aspects are components of a single endeavour: the preservation of universal human values, an objective to which we are entirely committed and which we shall continue to pursue in the future.

The Berlin Declaration, which was adopted on 25 March 2007 on the occasion of the 50th anniversary of the signature of the Treaty of Rome, contains an important statement. Today, “we, the citizens of the European Union, have united for the better� – and it is our good fortune that freedom, democracy and human rights have become a reality for all of us in the European Union.

Let us all do our utmost to ensure that this good fortune can be shared by every one of our fellow human beings, within, as well as beyond Europe, and in every part of the world.

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Patrick Wachsmann I have been asked to talk on the subject of effectiveness, if I have understood rightly, the effectiveness of commitments made by States regarding human rights, and I shall discuss this with respect to regional organisations, while my friend Emmanuel Decaux will look at the subject from the universal perspective.

When speaking about the respect for commitments undertaken

by States regarding human rights, this presupposes, logically, that a commitment has been made. This allows us to draw a basic distinction between declarations and treaties.

From the legal point of view, this is an essential distinction.

Where treaties are concerned, the ‘pacta sunt servenda’ ruling is applied, which Kelsen described as fundamental to international law: States which solemnly agree to be bound by treaties are obliged to respect their provisions.

For declarations, it is another matter. It is all very well as far as principles are concerned, but there is no legal obligation; this means that the Universal Declaration of Human Rights of 1948 and other documents, the final act of the Helsinki Conference in 1975, and all the declaratory documents adopted under the 17

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auspices of the Organization for Security and Co-operation in Europe are important in that they demonstrate a political will, although they have no legal force to make States agree to commitments. So, the Soviet Union under Stalin, and later under Brezhnev, could proclaim freedom of expression, freedom of movement, etc., whereas we know that in practice, it followed neither of these principles.

In contrast, States that are party to a treaty grant every individual under their jurisdiction enjoyment of the rights enshrined in that treaty; there is a legal obligation to which these States have contracted.

But, as human beings, we know that there is some discrepancy between what we undertake to do and what we actually do, between the Sollen and the Sein, to put it in Kelsenian terms.

Where sovereign States are concerned, there are unfortunately quite a few discrepancies.

Before we come to this question of discrepancies in the conduct of contracting States, I should like first to point out that the very existence of texts on human rights, and even, at the outset, the mention of human rights in an international treaty, amounted to an extraordinary innovation under international law.

The first time we saw this in general terms, was in the Charter of the United Nations – and of course, this was no accident; in 1945 the nightmare of Nazism was still fresh in people’s minds and the effort to promote human rights from 1945 onwards rested on the concept of ‘never again’, which followed on from the discovery of the extermination camps.

René Cassin was one of the important architects in promoting the rights of man. The term ‘rights of man’ was of course 18

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borrowed from French history, from the truly revolutionary document which constituted the Declaration of the Rights of Man and of the Citizen, adopted by the National Assembly on 26 August 1789. Reprising this terminology of the rights of man, or human rights, meant sanctioning its appropriation by the international community, which was being established on new foundations. It also referred to a philosophical concept which postulates that all men, all human beings as such, have rights which the State must respect.

These terms comprise – and this has bothered many lawyers – some natural law connotations, in particular the idea that there are things that the State must refrain from doing, including henceforth at an international level.

There was also, pragmatically, the idea that the failure of the League of Nations was due, in large part, to the fact that it was not sufficiently interested in what was happening within States.

René Cassin recalled the terrible episode which he witnessed in Geneva, at the League of Nations itself: a delegate challenged the anti-Semitic policy of the Nazi regime and the representative from Nazi Germany who was, I believe, Goebbels, stood up and said, “A man is master in his own home”, with the implication that no international court could concern itself with the fate that Germany was inflicting on its citizens.

That was considered an internal matter and only subject to German sovereignty; consequently, it could not be subject to any international scrutiny whatsoever, including within the very organisation entrusted with maintaining peace – peace through justice, as it was described in the idealism that existed at the end of the first world war.

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It was just this type of objection that Cassin wished to oppose – it was because of this very response that he insisted that the founding agreement of the international community following the Holocaust should expressly and repeatedly declare the guarantee of human rights for all, without discrimination.

In 1948, the Universal Declaration of Human Rights defined these rights as civil and political rights on the one hand, and economic, social and cultural rights on the other.

And then, the efforts of the United Nations were cut short as the Cold War increased its grip, having lain dormant since 1945.

Events took a graver turn in particular with the Prague uprising and so it became apparent that attempts to draft a universal convention on human rights were not about to succeed in the short term.

The reaction, particularly among liberal European States, was to consider whether, failing a universal guarantee of human rights, perhaps one could be constructed at regional, namely European, level.

Firstly, this offered a more limited framework – after a long and painful history, States had discovered shared values of liberal democracy, given the appalling experiences since the 1920s and certainly the 1930s. Secondly, a political signal had been given: the liberal democracies of the West were standing up for their values in opposition to Stalinism and, here again, the prospect of seeing the Red Army engulf Western Europe and impose the Soviet order led many to seek a ‘closer union’ (the programme set by the founders of the Council of Europe) based on the noble values of European civilisation.

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This was the hugely important proposal in 1948 of the Hague Congress of the European Movement. This Congress united many former resistance fighters to help build a world where a return to totalitarianism would prove impossible. Alongside affirmations regarding the unity of a European continent and European values, the idea was born to create a European Court of Human Rights. Let us recall here the tireless and passionate support which Pierre-Henri Teitgen gave to this proposal; Professor of Law, resistance fighter, Minister serving under General de Gaulle at the liberation, Vice President of the Council and leader of the People’s Republican Movement (MRP).

When the Council of Europe was created in 1949 in London, the stated aims of the organisation made repeated mention of the guarantee and development of human rights, and in an extremely short time frame (about 18 months), a convention of a revolutionary nature was created which lent substance to this reference to human rights. This made Strasbourg, the headquarters of the Council of Europe and also of the European Court of Human Rights, the ‘capital’ of human rights.

The European Convention on Human Rights allowed the reference to human rights contained in the Charter of the United Nations to be embodied for the first time in the form of an international treaty. This treaty was valid at regional European level and, as such, it obliged States party to it to respect the rights clearly defined in the convention. That was its first principle.

The second, essential, principle was the institution of a legal mechanism for monitoring the authenticity of this commitment – the creation of a legal court, which was charged with monitoring the manner in which States respect the European 21

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Convention on Human Rights. For the first time, it was possible for a ruling to be issued on the question of whether a State that is party to the Convention has or has not respected the laws inscribed in it.

This formula was all the more revolutionary because the Convention also introduced the right of individual appeal. This meant that an individual could apply for an international protection mechanism, which was certainly not a given at that time, and this could, under certain conditions, lead to the pronouncement of a judgement by the European Court of Human Rights. The individual could therefore challenge the State and force it to respond to its claims before an international legal court.

The revolution which this represented, in relation to traditional international law and all concepts which existed until that time, was considerable.

In 1950, of course, many insurance guarantees had to be introduced, because sovereign States were not ready to abdicate in favour of human rights. This explains why, in its original form, the Convention offered a number of guarantees to the benefit of sovereign States. The first of these involved the intervention of an independent body between the applicant and the Court, in the shape of the European Commission of Human Rights. It was entrusted in particular with examining the admissibility of claims and, on this basis especially, with eliminating ‘abusive’ claims, such as, for example, those arising from war criminals who would have claimed during their hearings to have been victims of a violation of human rights.

This may have meant that the State being challenged would have had to defend its actions before the European Court of Human 22

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Rights. This concession to sovereign States has nonetheless given rise to some positive results – the dynamic judicial work of the Commission must be applauded for its decisive interpretation of the Convention and for substantiating the guarantee of human rights.

The 1950 text covered another concession to sovereign States – the optional nature of the individual’s right to appeal. The necessary innovation in relation to international law was such that it was not acceptable with immediate effect as a constituent element of the system of the European Convention on Human Rights. So, the need for each State to explicitly accept the individual’s right to appeal was introduced, in the same way that recognising the competence of the European Court of Human Rights was optional. These guarantees, and others, meant that the first commentaries on the Convention, which appeared at the beginning of the 1950s, were not exactly optimistic in tone!

Re-read the commentary by Marcel Merle, which appeared in the Journal of Public Law, or that of Robertson in the British Yearbook of International Law – it is clear that these authors were not very optimistic about the fate of the mechanism which had just been created, in particular because they were doubtful that States would accept all the optional mechanisms.

Well, for once, their pessimism proved to be unfounded – although it worked in the end the system took some while to become fully operational .

Little by little, all the member States of the Council of Europe ratified the European Convention on Human Rights, even France – but not until 1974. It took practically 25 years for the country to agree to ratify the Convention. Why this shameful delay?

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First, there were the problems of decolonisation, with a volley of texts outlining various exceptions and exemptions, of which the least one can say is that they were in no way inspired by the spirit of the European Convention on Human Rights. Then there was the failure, despite all the efforts made in this regard

by René Cassin, to make General de Gaulle accept that France could pool its sovereignty and that an international court could pass judgement on its actions. We therefore had to wait for the very end of Georges Pompidou’s shortened term of office before the French Parliament authorised the ratification of the Convention. This allowed Alain Poher, who had participated in the Hague Congress in 1948, to assume the honour on behalf of France of ratifying the European Convention on Human Rights during his interim presidency of the Republic. It was another seven years before France accepted the right of individual appeal – this time, it was Robert Badinter who was to sign the acceptance of the right of individual petition.

The 11th protocol to the European Convention on Human Rights was to benefit from these developments by making the right of individual appeal compulsory; it did this by disbanding the European Commission of Human Rights and by allowing all individuals under the jurisdiction of States party to the Convention to lodge an individual appeal directly before the Court. As a permanent addendum, the task of examining the admissibility of petitions was introduced, as well as conducting pre-trial judgements and, if the petition was declared admissible, delivering a judgement on whether the defending State had conformed to the obligations of the Convention binding it. A judgement, based on evidence before lawyers, is binding on the litigants.

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Article 46 § 1 of the European Convention on Human Rights confirms this, by stating that, “The High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are parties.”

But does the effort to render effective the obligations contracted by the States stop there? The evidence shows that it cannot.

There are court orders which remain unheeded. We know that there are excellent judgements which have not been implemented. What is important is not so much the enunciation of what the rights are in a particular area, but above all the guarantee that actions will conform to their demands. In English this is known as the rule of law.

Another admirable characteristic of the Convention is, precisely, that it provides for the execution of judgements. Article 46 § 2 stipulates, “The final judgement of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” This means that the Committee of Ministers of the Council of Europe, formed by the union of all the ministers for foreign affairs of member States or their representatives, and consequently an inter-governmental body, will monitor to ensure that the decisions of the Court have not gone unheeded, and that they have been followed. Here again, we see reflected the ambition of the founding fathers – to present the world with a model for drawing up a universal convention relating to human rights.

This model has not really prospered, or rather has prospered only to a very limited extent. I am not going to encroach upon the remarks which Emmanuel Decaux will be making soon on the universal level, but we all know of it, of course – there is no

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universal court of human rights – the legal model was too advanced to be practicable as a global organisation.

There are, however, two other regional courts: an InterAmerican Court of Human Rights and, more recently, an African Court on Human and Peoples’ Rights.

Where America is concerned, it was in 1948 and on the eve of the adoption of the Universal Declaration of Human Rights by the General Assembly of the United Nations that an American Declaration of the Rights and Duties of Man was drafted. This also remained just a declaration and we had to wait until 1969 for the Organization of American States to adopt an American convention relating to human rights, largely inspired by the European model.

In addition, the Court which sits at San José in Costa Rica, the Inter-American Court of Human Rights, often refers to the jurisprudence of the European Court of Human Rights, which acts as its role model to a large extent. The same is true, but to a lesser degree, on the African continent with, in 1981, the adoption of an African Charter on Human and Peoples’ Rights, and then an additional protocol to this Charter in 1998, which established an African Court on Human and Peoples’ Rights.

This institution has only very recently begun its work.

But the European framework remains unique, partly by the strength of its guarantee mechanism (immediate access for individuals to international jurisdiction) and partly through the effectiveness of its provisions. For example, with regard to the inter-American system, we should point out that no provision is made for monitoring the execution of judgements. The InterAmerican Court itself is responsible for monitoring the execution of its rulings, but that does not always produce very 26

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probative results and many officials in the American system for the protection of human rights deplore the fact that there is no equivalent for monitoring the execution of judgements by a body other than the Court itself. The Court can only create multiple decrees and judgements in charging States to conform to its rulings. There is a need for a third party body which could exert adequate political pressure.

That said, we should at least put the European situation in perspective. Firstly, we should guard against the idea that legal rulings are the panacea for human rights. Because, in the first place, a judicial system is only viable if it is founded in a suitable environment, that is within a framework which will attract States so that they feel supported by the judgements pronounced by the Court which has been established. Even if a universal court of human rights had been created, the effectiveness of judgements made by this court could in no way have been guaranteed, given the vast heterogeneity of the global community. It is because the conditions for becoming a member of the Council of Europe were so strict that the system has been able to prosper. The Statute of the Council demands that candidate States must be able and willing to respect the ideals of authentic, that is to say pluralist, democracies, the pre-eminence of law and human rights. The founders had the wisdom to make the organisation a closed club, reserved for genuine, liberal democracies, which means that applications are filtered on entry.

This ensures, in as much as filtering can be effective, that members of the club truly agree, and not just in rhetoric, to certain common values. It is thanks to their proximity that the member States of the Council of Europe have been able to create a favourable environment for strengthening human rights and for the respect of judgements made by the Court.

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Secondly, the saying that prevention is better than cure should not be forgotten, especially where human rights are concerned.

Urgent measures aside, legal rulings are only delivered a posteriori, to qualify a situation where the rights enshrined in the Convention have already been infringed. Human rights are badly suited, if at all, to judgements after the event – it is to prevent their violation that priority is required, which is where the effort of the Council of Europe comes in, to complement legal guarantees with other mechanisms. For example, in 1999 the position of Commissioner for Human Rights was created, even though for many years there had been a legal guarantee by the Court. Where certain aspects of the protection of human rights are concerned, a legal guarantee is inadequate, because it is either premature or inappropriate.

For example, within the framework of the Council of Europe there is a European Social Charter, intended to complement the European Convention on Human Rights in the area of social rights. It does not provide, even in its revised version, for the establishment of a European court of social rights, and any attempts to add certain social rights to the list of rights protected by the European Convention on Human Rights, in the form of an additional protocol, have never succeeded. This is doubtless because, by definition, social rights presuppose the implementation of a policy on the part of party States and it is very difficult, if not impossible, to impel States to follow such a policy by legislative means. Consequently, a form of monitoring of the execution of commitments arising from the European Social Charter has been adopted, and this is carried out by an expert body. This body was at first called the Committee of Independent Experts, and later the European Committee of Social Rights. It carries out a regular examination of the 28

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situation of various States through a system of reports and may be accessed through collective claims arising from trade union representative organisations, at European or national level.

But let us return to the case of the European Court of Human Rights and, more particularly, to the question of executing its judgements. To claim that the effectiveness of commitments made by European States on the subject of human rights is assured by the very existence of a Court which pronounces judgement on a large number of cases each year would, alas, be wildly optimistic.

There are, in fact, practices or even texts which constitute what we could call structural violations of the rights inscribed in the European Convention on Human Rights. Such violations do not disappear if a magic wand is waved in the form of a ruling which condemns such behaviour in one or even several individual cases. Some convictions require important legislative changes, which the Court has recognised by issuing ‘pilot judgements’ which provide for necessary reforms and grant the State a certain period of time in which to achieve them. During this period, the examination of certain aspects of the matter and that of other, often multiple, requests – which in turn give rise to identical questions – is suspended. Others propose, as in the matter of social rights, the implementation by the State of a voluntary policy, capable of altering the situation. The fact that, for example, the European Court of Human Rights states that conditions of detention in France do not conform to the requirements of article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment, will not bring about an improvement of

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the said conditions unless the necessary financial aid is given to detention centres to bring them up to standard.

What should we expect from the Committee of Ministers as regards its monitoring of the execution of judgements? I do not wish to encroach upon the paper which M. Boillat will be presenting on this subject, but I should like to put forward a certain number of facts.

First of all, we need to ensure that the States pay to the victims of an established violation the amount the Court has fined them, on the basis of what is called just satisfaction (article 41 of the European Convention on Human Rights).

But fortunately, the Committee of Ministers has always wanted to go further than that. It has wanted to ensure that States, following the sentence pronounced by the Court, take all necessary measures to avoid the repetition of such a violation.

This presupposes that the State in question has an acute understanding of what its duties are as party to the Convention, in particular, that it will remove from its legislation everything that the Court has judged to be contrary to the requirements of the Convention.

When France was sentenced for its lack of legislation on telephone tapping in 1990 by the Kruslin and Huvig rulings, the legislator decided to adopt a law governing all telephone tapping – this law had been demanded by doctrine for several years. It took a sentence against France by the European Court of Human Rights and, in addition, the threat of several further penalties for the same reason, for France to finally decide to adopt legislation which would restrict and define telephone tapping (which still does not mean that this legislation is 30

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respected under all circumstances – but the rule of law, at least, has been amended under European influence).

The introduction of such measures is verified by the Committee of Ministers, which effectively ensures that the State has put in the effort expected of it to avoid further penalties for the same reasons, in particular with regard to changes made to the legislation of tribunals, where the latter has been at the root of a violation of the Convention.

As you can see, there are many dimensions to the problem of the execution – or the absence of execution – of a judgement by the Court – a fortiori, conventions relating to human rights in general.

In any case, what we can say, again without anticipating how M. Boillat may develop the subject, is that there are very few cases of persistent non-execution of judgements by the Court. Some States may appear reticent, if the matter is politically very sensitive or/and if they are sentenced to pay the victim large sums of money, especially in cases of loss of property, but the patience and tenacity of the Committee of Ministers tends, in almost all cases, to overcome such reticence, even if some time is needed.

There are of course, inevitably, certain situations where the political dimension is such that States rebel against judicial rulings. Despite numerous judgements from the European Court of Human Rights condemning Russia for the behaviour of its armed forces in Chechnya – violation of the right to life, violation of the right not to be subjected to torture or inhumane or degrading treatment, violation of the right to individual freedom and violation of the right to appeal – the situation in 31

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this region of Russia has shown no noticeable improvement, even though any progress, however slight, is of course welcome.

All we can say is that the European system generally makes a considerable contribution to the progress of human rights, even in Russia. But we cannot ask the Court and, more generally the law, for more than they are able to give. We all lament this fact, but we must remember that no legal mechanism has ever, in itself, brought peace to the world (contrary to the splendid utopia of 1919 when it was thought that the League of Nations would bring peace through justice – lawyers were crowing over this superb formula, but we all know what became of it) nor the assurance of a situation which conforms totally to its demands.

The law alone cannot make what we want happen, which is for all human rights to be guaranteed for all, in all States which have made this commitment. But it still makes a considerable contribution to achieving this end, which is a fine thing in itself.

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Emmanuel Decaux Mr. President, first of all, I should like to say how honoured and pleased I am to participate in this day, especially since your association was founded by René Cassin and as it so happens – and this is not just a coincidence – I have been privileged to take part in two initiatives which are the legacy of René Cassin. The first of these is the National Consultative Commission on Human Rights, a national organisation created at Cassin’s instigation in 1947 for the purposes of helping to elaborate the French stance on monitoring adoption of the Universal Declaration of Human Rights. And then at international level, I have also participated in the United Nations Sub-Commission on Human Rights, a subsidiary body composed of independent experts reporting to the Commission on Human Rights on which Cassin was particularly active, and of which he was even President in the mid-fifties. The Sub-Commission was disbanded in 2006, as was the Commission on Human Rights, and was superseded by the Consultative Committee of the United Nations Human Rights Council, to which I was elected as an independent expert. It is difficult to judge whether this reform represented progress, since I am not in a position to give an impartial opinion; however, I am inclined to believe in this 33

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notion of independence, to the extent that if we operate within the United Nations system, we are not responsible for all that the United Nations does, or does not, do.

Just now, in referring to the European system, Patrick Wachsmann stressed the notion of a ‘club’. It is my belief that the States are one family, sharing the same principles and the same values, as well as the same legal culture. Primarily, it is important to understand that there are 192 member States in the United Nations, both large and small, reflecting a strong heterogeneity, from the United States of America to China, with regional blocs and emerging powers like Brazil and India – where the issue of human rights is not an altogether simple one, and where there may be diverse other ‘stakeholders’ involved, as current UN jargon puts it. Any talk of the universality of human rights, of ‘executing’ or defending the rights of man at universal level, requires all these States to be on board with all their political, or even demographic weight, given the number of third world countries which now constitute an automatic majority – and this has been a reality since the 1960s – or in the case of the major powers, with their full might. Indeed, what could the United Nations do today against China, India or Brazil? Not to speak of the United States, so often the convenient scapegoat?

Beyond this notion, which invites modesty as well as vigilance, I believe that the primary principle is to recall the notion of subsidiarity, of defending and keeping alive human rights in one’s own country. All the international juridical texts make provision for the exhaustion of internal methods of recourse – this is not simply a procedural measure, but a necessity and a demand for a realistic approach. In other words, for a country like France, internal guarantees and constitutional reforms 34

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taking place, such as the recent Priority Question of Constitutionality (QPC), which reinforces the controlling powers of the Constitutional Council in its capacity as the guardian of human rights, are essential elements. Even if French justice is far from perfect, and we know this only too well, these juridical guarantees do function.

The same is true of the European mechanisms which we have discussed and which, notwithstanding their failings, still maintain their effectiveness. It is only at another level that international recourse has a useful role to play. This accounts for very few of the ‘cases’ concerning France, to deliberately use a vague term, which are brought before the UN courts. It is not because, by definition, we are ‘better’, but because we tend to put our own house in order.

Paradoxically, the countries of the third world highlight this imbalance, using a strategy to gain power for their argument by propaganda and pandering to emotions, prejudices and public expectations to say that it is always the same States which are involved, and to insist that it is always the West which is acting as the lesson giver. The response, which is doubtless not politically correct, is to recall the existence of effective and useful recourse at national and regional level, making international recourse superfluous. When the African system is as developed as the Latin American or European system, and when Asia has its own regional mechanism, the UN system will not represent the sole safety net for all these countries. In the absence of synergy between what happens at national, regional and international level, all the issues tend to surface at international level, with very convenient accusations of interference in domestic affairs!

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To simplify matters, in this instance, I shall speak only of the United Nations, which is already a large subject. Indeed, it means dealing with the General Assembly, the Security Council, the Economic and Social Council, the International Court of Justice, the Secretariat, as well as all the subsidiary bodies. Since 2006, the Human Rights Council has become a subsidiary board of the General Assembly, giving it far higher political visibility, while the Commission for Human Rights highlights the sphere of economic and social cooperation under the aegis of ECOSOC. Whatever the case, the underlying principle behind all the bodies involved is a willingness on the part of the States to act or not to act, with the inherent risk of permanent confrontation, paralysis or overstatement.

However, the actual logic of the organisation should be stressed, which, at juridical level, may be secondary to international law, but which above all enshrines an objective reality conferring a degree of room to manoeuvre in the name of the principles and objectives of the Charter. The international officers do not take instruction from the States, but are primarily judges and experts elected on the basis of their competence, their independence and their impartiality. This individual independence may sometimes appear fragile, but collective independence is very strong, to the extent that the experts remain under the permanent supervision of their colleagues, with the risk of discrediting themselves with their peers, not to speak of the States or other players, such as the NGOs, or the media, whose critical eye may be quite decisive. To put it another way, the United Nations is so much more than a united nations.

My second preliminary remark is that litigation is not a panacea – by definition, it is even the mark of a failure at domestic level 36

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as well as on the international stage. Having failed to foresee and protect, the issue then becomes one of punishment and reparation. Non-litigious mechanisms may be more flexible and effective, since they may anticipate or channel a crisis. The trend is towards the development of independent international authorities, such as the Office of the High Commissioner for National Minorities of the OSCE, or the Commissioner for Human Rights of the Council of Europe. In a way, the Office of the High Commissioner for Human Rights of the United Nations was created in a similar vein; however, its role is more ambiguous, to the extent that it is an international functionary which must remain neutral and impartial, but whose sole mission is to defend human rights, to “be the voice of human rights� in such cases where the Secretary General must balance priorities which may sometimes be contradictory, and it must also be in a position to maintain permanent contact with all the States.

A complete range of monitoring mechanisms based on cooperation with the States has also been developed, such as the system of periodic reporting to the treaty bodies, or the newly introduced Universal Periodic Review (UPR) before the Human Rights Council. The network of special procedures and working groups, which are really commissions of enquiry, can be effective in appraising and mobilising the States in the face of a given difficulty or national situation. This may be more effective than naming and shaming, insofar as third world countries are particularly sensitive to anything which might constitute a form of stigmatisation, and it is sometimes very easy to denounce States without providing for a supporting mechanism to assess the situation and rectify any failures or violations of human rights.

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This work – at times a thankless task – demands patience and courage in the area of juridical cooperation and the long-term reconstitution of the rule of law. The same applies to education and training in matters of human rights, which might only bear fruit in the longer term, and where those responsible are mobilised as a matter of urgency and there is a need to react with immediacy.

My final preliminary remark is to highlight the importance of the time factor. While there is a legitimate impatience in matters pertaining to human rights, within the international system, everything takes time. This is very frustrating at individual level, even if time in the context of the States cannot be equated with individual time. This was evident in the European Convention on Human Rights signed in 1950 and ratified in 1974 in France, a State with a long history of the rule of law, nourished by the ideology of the rights of man over centuries. It is understandable that for other States, the stages required to move beyond a form of juridical nationalism or introverted assertion of identity take that much longer. By placing human rights at the heart of the new international order, the 1945 Charter signals a very real cultural revolution, a paradigmatic change. It is a juridical revolution whose consequences are far from complete.

The Universal Declaration of 1948 marks an essential stage which still today serves as the basis for the quasi-legal procedures accepted by all the States, but we tend to forget that it took almost 30 years for the two Covenants which translated the principles of the Declaration into contractual obligations to come into force for the 35 States which ratified them, in 1977.

Not until the World Conference on Human Rights of Vienna in 1993 was a Declaration adopted and a program of action put in 38

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place for universal ratification of the international instruments relating to human rights. We need only look back at the virulent discourse of the Soviet representative, Vichinski, pointing his finger at René Cassin during the debates of the United Nations General Assembly in December 1948, when the Iron Curtain came down across Europe and cut the world in two, to see how far we have come.

If international public order has moved beyond the sphere of cooperation between equal and sovereign States to preserve the values shared by an international community in the making, open to “all peoples and all nations” as well as to “every individual and every organ of society”, the United Nations organisation, despite its imperfections, limitations and evident failings, still provides the necessary legal framework and the most legitimate arena in which to defend the universality of human rights. The progress in human rights enshrined in the United Nations Charter is embodied in the “continuity of the law”, that is to say, its effectiveness as well as its efficacity.

1. The Effectiveness of UN Law for Human Rights.

Sixty-five years after the adoption of the Charter in 1945, it is all too often forgotten that it was the United Nations itself which enshrined human rights in the aims and principles of its nascent organisation. In particular, this is evident in article 1 §. 3, which speaks of achieving “international cooperation... in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language, or religion.” There are specific provisions regarding the competencies of the General Assembly, in article 13 §.1b, of ECOSOC, notably in article 55c; however, the general mandate 39

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concerns not only the organisation as such, but all its bodies, starting with the Security Council and the Secretariat. In effect, the Cold War meant that the aims assigned to the organisation could not be accomplished to the full effect, although one might have thought that the given admission criteria specifying “all other peace-loving States” would include acceptance of States governed by the rule of law, striving for progress in matters of human rights. The Kantian line between cosmopolitan law and the universal democracy at the heart of the preamble to the Charter was obliterated under the weight of the realities and the rule of the three major Yalta powers which short-circuited the multilateral diplomacy of San Francisco. And even if Yalta specifically mentioned free elections, we have seen what happened in Poland and elsewhere in the absence of international guarantees. Even more so, the clauses referring to human rights in the peace treaties of 1947 remained mere words, despite the fruitless attempts to invoke them before the Security Council or the International Court of Human Rights.

Suffice it to say that human rights were very swiftly marginalised in the international system – more or less relegated to the sphere of international cooperation as defined under chapter IX of the Charter. However, in this rather more technical than political territory, the development of human rights found a favourable breeding ground. Primarily, because according to article 56, “Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.” This places international cooperation at the service of “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion,” as indicated under article 55. In this light, human rights no longer 40

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remained the exclusive preserve of the State and were not solely a matter of national competence, but became the legitimate object of international cooperation. Certainly, it is very difficult to define such cooperation between States or with the international organisation, which is not military intervention or unilateral interference, and which also condemns any negation of fundamental rights. The first instance of such international cooperation was to be the Commission on Human Rights, a subsidiary body set up “for the promotion of human rights” whose creation was expressly provided for under article 68.

However, cooperation goes beyond State level, across the role of the NGOs whose consultation is provided for under article 71 of the Charter, thereby clearing the path for recognition of a genuinely international ‘civil society’.

The best means of consolidating such cooperation was to affirm human rights by establishing reference texts prepared by the Commission on Human Rights and adopted by the General Assembly. Since the end of the forties, a three-pronged plan of action has been drafted by the members of the Commission on Human Rights – a declaratory phase, an instrument of agreement and a regime of guarantees. The course of history determined that these three prongs would become three stages extended over time. However, the British draft for a mechanism of recourse is contemporaneous with the preparatory work of the Universal Declaration of Human Rights.

Beyond this, the historical presentation of development by successive stages aimed at translation into qualitative leaps forward also has a reductive effect on the legal scope of the 1948 Declaration by reducing it to a simple attempt which still required a legal commitment in proper and due form. It is well 41

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known that this is the dominant doctrine in France, even if, when speaking at the General Assembly to mark its 60th anniversary on 10 December 2008, the permanent representative of France, in his capacity as President of the European Union, paid tribute to the progressive commitment to the Universal Declaration by its enshrinement in customary law. To be sure, the various provisions of the Declaration do not have the same juridical scope. This was a focus of the argument between John Humphrey and RenĂŠ Cassin, the Secretary of the Commission fearing that the moral considerations and vague formulas introduced by the ‘philosophers’ of the Commission would dilute the legal content. In addition, in its ruling of 24 May 1980 on the diplomatic and consular personnel of the United States in Tehran (USA v. Iran), the International Court of Justice did not hesitate to mention both the Charter and the Declaration in the same breath as sources of mandatory obligations. At doctrinal level, Theodor Meron extended this analysis by seeing in the Declaration the official interpretation of the commitment deriving from the Charter. If the Charter invokes the legal commitment of the States to cooperation in matters of universal and effective respect for human rights, the Declaration lays down the explicit material content of this general obligation.

However, the issue shifted with the development of international instruments relating to human rights. It serves no useful purpose to enumerate the list of treaties dealing with human rights as such, or more generally, those protecting the rights of the individual, to arrive at the more neutral formula adopted by the International Court of Justice in its ruling of 27 June 2001 in the LaGrand case (Germany v. USA). Suffice it to say that the political dynamics of the Vienna World Conference on Human Rights in 1993 and taken up by the reform initiatives 42

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of 2006 in the form of ‘pledges’ in the elections to the Human Rights Council have largely borne fruit. In the first instance, the two Covenants of 1966 which only came into force in 1976, ten years after their adoption, which itself was long delayed, and which were limited to a circle of 35 pioneering States, have since been ratified by most of the member States, even in the face of certain blatant exceptions. The International Covenant on Civil and Political Rights has been ratified by 166 States, while the International Covenant on Economic, Social and Cultural Rights has now been ratified by 160 States. Although the two groups are not wholly concomitant, the indivisibility of human rights has been restored by the avoidance of an ideological separation between two groups of States. As signatories of one or the other Covenant, whether this is the USA or China, Cuba or Pakistan, in accordance with article 18 of the Vienna Convention of 1969 on the Law of Treaties, States are obliged not to strip these treaties of their aims and objectives. Moreover, recent work carried out by the International Law Commission, notably in the 15th report by Professor Alain Pellet, presented in 2010, has contributed to reinforcing supervision of the organs monitoring human rights to ensure prevention of any measures which might be contrary to the aims and objectives of the treaty.

In the second instance, adoption of the optional protocol to the International Covenant on Economic, Social and Cultural Rights establishing a system of individual communications has now recreated the symmetry between the two Covenants and the unity of the juridical system relating to human rights. This has dealt the fatal blow to theories based on the radical dichotomy held dear by classic liberals and long defended by Marc Bossuyt, such as the ‘theory of three generations’ advanced by Karel Vasak on the need for peaceful coexistence. It could be said that 43

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adoption of the optional protocol by the General Assembly on the symbolic date of 10 December 2008 marked the completion of the juridical structure drafted some 60 years prior, with the Universal Declaration. Although the preamble of the two Covenants contained cross-referencing, and the indivisibility and universality of human rights had been placed on a par since the Tehran Conference in 1968, at ideological level, as well as at technical level, it appeared that their separability still outweighed this. To speak of ‘the rights of man’ rather than of human rights is to reject any rewriting of the Declaration in line with circumstances or contemporary convention or any dilution of the rights of man, to preserve a common ideal founded on “the dignity and worth of the human person, and equal rights of men and women,” and to promote “social progress and better standards of life in larger freedom.”

The Human Rights Committee itself has underlined this profound unity in its definitive observation n.26 of 1997 on the continuity of the commitments, proposing an ‘International Charter of Human Rights’ to encompass the Declaration, the two Covenants and their protocols. In other words, when Théodor Meron linked the Declaration in with the Charter to give it his blessing, inasmuch as the law is derived from article 103, the Committee consigned the Charter to posterity as the encapsulation of contractual obligations which had become intangible. Both cases are a long way from the jurisprudence of the Council of State, Dame de Nolay, of 1950. It would be paradoxical if France were the last country to accept the legal scope of the Universal Declaration, while so many States have adopted it into their own constitution and in light of the multiple international references, including at world conferences 44

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on human rights and General Assembly summits in 2000 and 2005, which have translated it into a widely shared legal opinion.

Resolution 5/1 of the Human Rights Council gives the definition of the “basis of the Universal Periodic Review” as: “The basis of the review is: a) b) c) d)

The Charter of the United Nations; The Universal Declaration of Human Rights; Human rights instruments to which a State is party; Voluntary pledges and commitments made by States, including those undertaken when presenting their candidatures for election to the Human Rights Council.”

Certainly, this is a diplomatic exercise and the ‘basis’ of the UPR refers as much to the legal obligations as to the political commitment, and no-one can dispute the ‘pertinent’ character of the Universal Declaration as a point of convergence between the Charter and the treaties. During the debates on the raft of reforms which took place in 2006 and which were implemented five years later, none of the States questioned the body of universal references. In fact, China insisted on a balance to be maintained between civil and political rights on the one hand and economic, social and cultural rights on the other. All the States accepted the given objectives. However, opinions on the method of achieving these differed, with some complaining of the politicisation of human rights and some preferring international cooperation and constructive dialogue to the denunciation of violations.

At a more technical level relating to a quasi-litigious procedure, the procedure defined by resolution 5/1 makes reference to, “The Charter of the United Nations, the Universal Declaration of Human Rights and other applicable instruments in the field 45

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of human rights law.” Here again – and I am not giving away any secrets here – none of the States questioned the Declaration as the sole basis for the procedure when the Covenants do not apply. The same applies to the communications procedure instigated by the Working Group on Arbitrary Detention, which, at the request of Cuba, had to relinquish its references to the principles of the covenant for the purposes of proper administration of justice in order to comply with the standards of the Universal Declaration.

In tandem with the common root of the two Covenants, numerous instruments for universal application have been developed over the course of time, from the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 to the Convention for the Protection of all Persons From Enforced Disappearance of 2007, and the Convention on the Elimination of all Forms of Racial Discrimination of 1965 to the Convention on the Right of Persons with Disabilities of 2007. The only obvious failure seems to be the International Convention on the Rights of all Migrant Workers and Members of their Families, which was not ratified by their host countries.

In all other cases, the order of the day has been a move towards universal ratification, with supplementary protocols issued to reinforce the basic instruments, as in the case of the Convention on the Rights of the Child, which is supported by two protocols integrating humanitarian law and criminal law.

However, the conundrum threatening the coherence of the entire juridical corpus by the attempt to issue ‘supplementary standards’ to combat religious defamation meant that even here, the passage in force could only result in a flawed instrument, which was, in any case, to remain unheeded in the absence of a 46

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sufficient number of ratifications. In similar, but more insidious vein, the area of soft law was also subjected to the same offensive by modification of the mandate of the special rapporteur on freedom of expression, thereby setting a dangerous precedent and questioning the very synthesis which had formed the basis of consensus arrived at by the World Conference in 1993: “While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.” (I, §.5).

Despite the risks linked to a return to religious particularism and cultural relativism, the entire juridical landscape is very different today from that which it might be in another 30 years’ time.

From now on, the issue of human rights primarily covers a complete but equally complex arsenal of treaties and conventions which link the States and contain a commitment to ‘hard law’. Human rights are not – or not only – a juridical ideal, deriving as they do from positive law. The system of presentation of national reports, optional acceptance of the competence of the treaty organs to examine ‘individual communications’ and constructive dialogue with independent experts do not devolve from diplomatic courtesy, but constitute the response to the primary obligations of the States and their commitment to their international responsibilities.

It should not be forgotten that the Charter is itself a ‘constituent treaty’, to use an expression dear to Paul Reuter. Alongside the network of contractual agreements undertaken by the circle of party States, the organs of the United Nations have instituted 47

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procedures which apply to all the member States. From 1970, the confidential procedure known as 1503 was created by ECOSOC as an attempt to respond to systematic violations of human rights. Reformed in 2000 and then in 2006, the complaint procedure which this provides for still responds to the need for an ultimate safety net when all national possibilities or international mechanisms have failed. The Commission on Human Rights has itself publicly looked into situations in which massive violations of human rights have taken place. These denunciations resulted in monitoring procedures, through the appointment of special rapporteurs or working groups on South Africa and Chile, before the list of country rapporteurs got to the point that it provoked Cuba into raising a strong objection to the 2006 reform. One need only recall the role of the special rapporteur on Iraq, Max van der Stoël, or Sergio Pinheiro, special rapporteur on Myanmar, to see that a mandate of this nature, which is eminently political, interferes with the competencies of the Security Council and the ‘good offices’ of the Secretary General. The investigations of Roberto Garreton on the situation in DRC (Democratic Republic of Congo) form the basis of the review which the United Nations is currently trying to publish. It should be stressed that the 500-page ‘Mapping’ report describes violations of human rights committed in the DRC between the years 1993 and 2006, and gives the investigations into the current situation in full, notwithstanding the efforts of the Human Rights Council to mobilise thematic rapporteurs.

The Commission on Human Rights has also introduced special measures of a thematic character. These procedures are extremely diverse but the most effective, such as the Working Group on Enforced Disappearance set up in 1980 or the 48

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Working Group on Arbitrary Detention created in 1991, can investigate communications. The same applies to some special rapporteurs, who can be equally proactive and launch urgent appeals. For a long time, the independent experts of the SubCommission on Human Rights played a central role in this system. This took the form of publicly investigating the most blatant national violations, systematically analysing failures in the system for the protection of human rights and then proposing exhaustive investigation of guiding principles, including investigation of the administration of justice – such as, in the case of regimes of exception, by Nicole Questiaux and Léandro Despouy, by Louis Joinet on the issue of combating impunity from punishment, and by Théo van Boven to determine collective reparation for violations of human rights – as well as the defence of vulnerable groups, ethnic minorities and indigenous peoples, individuals in conditions of extreme poverty, etc. Very often, the work of the Sub-Commission has generated soft law before ultimately ending in treaties, such as in the case of enforced disappearance. Far from being in conflict with declaratory and conventional law, this means identifying the explicit legal commitments assumed by the States under secondary law. Reduced to the role of a think tank in 2006, and in the absence of a reactive function, the Human Rights Consultative Committee has assumed this essential task of analysis and proposal.

In any event, the treaty organs, such as special rapporteurs, are intended to constitute quick response instruments for the whole of the system. The Commission and Human Rights Council have attempted to react to situations of crisis by convening extraordinary sessions, which most frequently led to the creation of commissions of enquiry. The Secretary General and the High 49

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Commissioner for Human Rights are also mandated to set up commissions of enquiry. However, all these initiatives may fall at the first fence, which is the cooperation of the State concerned, and the lack of political willingness of the international community. This then leads us to the starting point with the undertaking at the heart of the Charter, which obliges the States to “take joint and separate action” to cooperate with the Organisation in good faith. A lack of cooperation prejudices the effectiveness of the entire system.

2. The Efficacity of UN Law for Human Rights.

The application of the juridical arsenal which has been drafted does not depend solely on the international courts. The principle of subsidiarity finds application here, as in other areas. This is not merely a question of a procedural measure linked to the exhausting of internal methods of recourse, “unless it appears that such remedies would be ineffective or unreasonably prolonged,” to quote the wording of resolution 5/1 referring to the complaint procedure, but forms a capital requirement, to the extent that international recourse can only be the last resort.

Suffice it to say that the primary condition for any international treaty to achieve the desired effect is its application in internal law. Incorporation of international treaties in French law does not depend solely on the provisions of article 55 of the Constitution – the obligations must also be considered by internal judges as self-executing. The fact that, like the State Council, in their rulings of 8 May and 14 June 2005, the civil chambers of the French High Court returned to their previous jurisprudence in recognising the direct applicability of certain provisions of the Convention on the Rights of the Child, was 50

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welcomed as doctrinally sound. However, recently the social chamber of the High Court has been even more audacious when, for the first time, it referred to the direct applicability of a provision of the International Covenant on Economic, Social and Cultural Rights in a ruling given on 1 December 2008. The same is true of international agreements on working, where the High Court anticipated ‘criticism’ from the committee of independent experts of the ILO on the first employment agreement. In this way, internal judges can direct the application and interpretation of international treaties relating to human rights, fully subscribing to the ‘dialogue between judges’ developed at European level.

But it must be accepted that if this dialogue is biased, it is the quasi-juridical organs which are to blame. Even if the 113 States which are party have now accepted the ‘individual communications’ provided for by the first supplementary protocol, the legal scope of the undertaking remains weak. The ‘deliberations’ of the Human Rights Committee have no formal authority in terms of the subject of the judgement, although their material interpretation is in no way to be ignored. In their general observations nos. 31 of 2004 and 33 of 2008, the committee of experts echoed Louis Henkin in emphasising the obligations placed on the State in the matter of ‘conservation measures’, quoting by example the undertakings of article 2 of the Covenant and the provisions of the supplementary protocol.

Moreover, there remains much to do to transform the Human Rights Committee into a true organ of jurisdiction, like the regional courts.

The generally accepted idea that there is no international judge for human rights is not quite right. While one might dream of 51

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transforming the Human Rights Committee into an international human rights court, at this moment in time, the International Court of Justice is a court of human rights by any other name, like Molière’s Monsieur Jourdain. The international treaties relating to human rights are increasingly referred to before the court, for example, within the context of the consultative procedure, in the ruling of 8 July 1996 on the legality of the use of nuclear weapons and above all, the ruling of 9 July 2004 on the legal ramifications of the building of the wall on occupied Palestinian land. More recently, this has been apparent in proceedings concerning treaties relating to human rights, including as the grounds for competence, with numerous cases brought under the Convention against Genocide of 1948 and even more recently, the case of Georgia v. Russia of the summer of 2008, which is solely based on the 1965 Convention on the Elimination of all Forms of Racial Discrimination.

In this way, the court has been led to clarify the relationship between human rights and humanitarian law, thereby moving beyond the Manichean duality of two hermetically separate systems. The court also extrapolated instruments of human rights to situations of foreign occupations, such as in its the ruling on the Israeli wall, as well as to international armed conflicts, such as its ruling of 19 December 2005 relating to military activities on the territory of the Democratic Republic of Congo (DRC v. Uganda). It should be stressed that the bodies of the United Nations, and in particular, the Human Rights Committee, the Committee against Torture, the working group on arbitrary detention and the working group on communications have adopted the same interpretation in the context of the universal period reviews or individual complaints, and applied the instruments of human rights which are pertinent 52

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to situations of military occupation or armed conflicts, including those outside the territory of the State concerned.

The States remain reluctant to bring a case before the International Court of Justice when this involves human rights, far less to allow any intervention, as is evident in successive cases where, in the context of the 1963 Convention on Consular Relations, the provision referring to foreigners under threat of the death penalty was involved. In the same way, the system of interstate communications provided for by numerous international treaties relating to human rights has remained unheeded, just like the provisions concerning enquiry, conciliation or good offices. It is evident that the States prefer to forget about their obligations pursuant to article 33 of the Charter in favour of cobbling together dubious private solutions, including with regard to victims of terrorism or kidnapping, for example with Libya, for the sake of saving the reputation of their interlocutors, but to the detriment of justice.

The enshrinement of human rights in international justice also finds its limitations in the area of international responsibility. On one hand, the International Court of Justice may refer to the UN reports in a general way, and to the work of the special rapporteurs or treaty bodies, but such reference remains at merely declaratory level and is limited to condemning blatant violations of human rights or humanitarian law, wherever these may be taking place. In this way, the court practises ultra petita, showing no hesitation in dismissing both sides equally, as in the ruling of 2005, but stops short at drawing the consequences at juridical level. The issue of international responsibility, with the classic question of identifying the damage suffered, and the scope of reparation to be imposed, is left aside, as was indicated 53

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by ad hoc judge Joe Verhoeven in an individual declaration. In this territory, the court may seem to be retreating from the jurisprudence of its ruling of 9 April 1949 in the Corfu Channel case (UK v. Albania). Moreover, in the judgement of 3 February 2006 in the case of DRC v. Rwanda, the court accepted the existence of jus cogens standards for the first time, but stopped short of drawing any concrete consequences in terms of its own competence. The court accepts that the obligations are absolute and universal, only to give them up lightly when States do not recognise its jurisdiction.

It is striking to compare the two rulings of the International Court of Justice and the recent ‘Mapping’ report published by the High Commission, covering roughly the same period. The court referred in general terms to alleged violations, including in the context of specific incidents, while the report gave a detailed description of the atrocities committed. However, an additional stage is required and this is at criminal level, in order to demonstrate that the rule of international public law where the States are concerned and that of international criminal law concerning individual responsibilities, remain inalienable.

Already, Louise Arbour, the former UN High Commissioner for Human Rights at whose instigation the report was compiled, has suggested that the competence of the ICTR should be extended ratione temporis and ratione loci to cover the situation in DRC, in the absence of the power to retroactively involve the ICC. The question is, is the international Court of Justice really best placed to call on international responsibility in cases of blatant abuses of human rights? In a certain respect, international responsibility remains neutral and is solely aimed at reestablishing the prior status quo, either by restitutio in integrum 54

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or by reparations where the damage is irreversible, without any distinction between illicit acts, or integrating a hierarchy of crimes and infringements, as suggested by Roberto Ago. This contradiction was at the heart of the dispute between BosniaHerzegovina and the Federal Republic of Yugoslavia, which involved international responsibility, or the ‘complicity’ of a State in respect of the crime of genocide, even when the international criminal tribunal on the former Yugoslavia ruled that those responsible for crimes against humanity or crimes of genocide bore individual responsibility, and that this included heads of State. From this, might not the conclusion be drawn that a distinction is emerging between the two branches of international justice – ‘civil’ and ‘criminal’, and that this should be defined, in particular, with regard to the communication of evidence, as stressed by ad hoc judge Ahmed Mahiou in his strongly argued dissident opinion?

It is also necessary to question the issue of penalties in international law. To a certain extent, the failure of the system for the protection of human rights led the Security Council to establish ad hoc jurisdictions, such as in 1993 for the former Yugoslavia, then in 1994 for Rwanda, after the creation of commissions of enquiry by the latter, which realised the mechanisms introduced by the Commission on Human Rights, as recommended by the special rapporteurs. In other situations, such as Darfur, the procrastinations of the Commission on Human Rights led to long delays in the adopting of any stance, in spite of the efforts of the High Commission in 2004.

Ultimately, it was the Security Council which set up a commission of enquiry before taking the case to the recently established International Criminal Court. However, it has to be said that much time was lost by the prosecutor of the 55

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International Criminal Court, and so the window of political opportunity closed again. The same could be said of the tribunal for the Lebanon, set up after the assassination of prime minister Hariri, when the three individuals responsible for the enquiry adopted contradictory tactics before the tribunal dismissed them.

In light of these experiences of international or hybrid legal systems, the Secretary General created the post of Special Advisor on the Prevention of Genocide in 2004, to mark the 10th anniversary of the Rwanda genocide. This office is aimed at obtaining an early warning of potential crises, even if such preventative diplomatic missions might not appear to be in line with the criminal nature of ‘genocide’. The special advisor has been working with the CERD for the purposes of early warning and has visited various territories on a number of occasions, notably Sudan. In similar spirit, the Secretary General has appointed a Special Representative for Children and Armed Conflict, while the Security Council has focused attention on violence towards women, and has developed subjective expertise in the area of human rights. On occasion, the Secretary General has had to exercise more prudence and place the imperatives of peace or security above those of human rights, temporarily, it is to be hoped. For instance, in Sierra Leone, among other examples, it was evident that peace could not be bought at the price of silence and impunity. However, the creation of the special tribunal for Sierra Leone allowed the pursuit of justice for the blatant violations of human rights committed since 1996.

Whatever the basis of legal undertakings and obligations of the States, and irrespective of the technical arsenal of mechanisms and enquiry procedures, the final say remains with the political 56

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willingness of the States. The debate on the right of intervention has for too long obscured the real issues. It has been discredited by the military intervention in Iraq and more recently, in spite of the efforts of Kofi Annan, any deliberations on international responsibility for protection were scarcely reflected in the texts adopted in 2005 and 2006. The long awaited reform of the United Nations has only brought with it two innovations: the creation of a Commission for consolidation of peace and the establishment of a Human Rights Council. Imperfect as these instruments are, they are least credited with putting human rights back at the heart of the debate.

The priority given to urgent humanitarian action as a sop to moral panic, and the reduction of diplomacy in matters of human rights in favour of solidarity with individual cases strongly highlighted by the media, tend to make us forget that human rights will remain with us as a permanent issue. This implies a need for long-term educational and training programs, for reforms to ensure proper administration of justice and the construction of a state of law, and financial and humanitarian efforts to promote international cooperation. If it is necessary to denounce violations of human rights, to multiply the legal guarantees, it is no less essential to set an example by ourselves complying with international agreements, supporting international cooperation, holding a dialogue with other States and opening ourselves to civil societies through independent institutions and defenders of human rights on the ground. The reform of 2006, as an extension of the Declaration on Human Rights Defenders of 1998, has assigned a place to each of the different stakeholders for the protection and promotion of human rights, involving them formally with the Universal 57

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Periodic Reviews which, without them, would remain a mere ‘scrutiny by peers’.

In this, the diplomacy of human rights extends beyond the State – it depends on all the powers in the public arena, and this includes parliaments as much as local governments, NGOs and corporate organisations. The regulatory power of the State quickly finds its limits when it comes to financial subsidies and political intervention. Moreover, the confusion between humanitarian and military action can be dramatic, just as crisis management must improvise on what is required as a matter of urgency to deal with events, be these hostage takings or a natural disaster. It is multilateral cooperation, including in the juridical arena, which must be strengthened in the longer term, and given clear objectives and precisely defined priorities. There can be no diplomacy in human rights without identification of its missions, the means used and the results. Finding the right words, registering a denunciation and indignation are soon at an end, when the king is in the altogether and an arsenal of weapons replaces one of words.

This is to say that human rights should be a matter for all of us, and certainly, this includes the States. According to the program defined by Javier Perez de Cuellar at the 40th anniversary of the Universal Declaration, we must translate the ideal into law and law into reality. In summary, we need to rediscover the practical idealism of a René Cassin, and make the law a useful tool and a necessity.

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How to Make States Keep to Their Commitments to International Humanitarian Law Ghislaine Doucet Explanatory Notes Before going any further, on behalf of Mr. Jakob Kellenberger, Chairman of the International Committee of the Red Cross, I would like to thank those who organised this day most warmly, and in particular Maitre Louis Bloch, delegate of the Council of Jewish Organisations to the Council of Europe, for having invited me to be involved.

I found the subject selected for this presentation rather attractive, as, whatever the field, we always find a distinction, more or less pronounced, between the spoken word, writing and action, if only because the spoken word comes before writing, that it is so immediate, so spontaneous, that we may regret it, erase it and fail to keep to it.

The value of written commitments varies too, however, depending on their subject, their nature and their audience. It is clear that, if a statement is made or signed by a State, and concerns its nationals or even, as in the case of international humanitarian law, if the subject matter and content of these written commitments is about protecting people and the rules to be observed at times of armed conflict, the question raised by 59

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this day of reflection becomes absolutely crucial, as keeping to these written commitments involves not only those directly concerned but the international community as a whole.

In the field of International Humanitarian Law (IHL) in particular, one of the main challenges today, is how to deal with those who act contrary to it. How can we compel them to comply? Can States be compelled and, if so, how? Is international humanitarian law aimed at States alone?

To help answer these questions, allow me to start by making some remarks.

• Firstly, even if some provisions of IHL need to be strengthened or redefined1 to be more in line with the nature of modern armed conflicts, it must be stressed that IHL is extremely relevant to today’s wars and the major risks involved in remodelling it.

• Even if today’s armed conflicts seem to respect international rules less and less, in fact, it is still the case that the Geneva Conventions of 1949 have shown and still show they are useful at times of international armed conflicts or occupations, but also in cases of noninternational armed conflicts: Article 3, which all these Conventions have in common, is still the only normative standard in most cases.

Let us, for example, emphasise the work the ICRC has done for persons detained in the course of armed conflicts, whatever their status may be, prisoners of war or civilian internees, given that the ICRC visits around 500,000 people each year. This extremely specific task delegated to the ICRC makes it possible, in particular, to 60

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monitor the substantive conditions in which detained, re-establish family links, but also people being ‘disappeared’, executed out tortured and suffering other inhuman, treatment.

people are to prevent of court, degrading

• The usefulness of IHL can also be measured by the evils it enables us to avert. The protection provided by the Red Cross/Red Crescent sign, to which we have to add Red Crystal2 since 2005, has made it possible to save many civilian buildings, but also to bring medical aid or food to people, thanks to the protection humanitarian personnel enjoy.

• And, finally, to help clarify the scope of IHL, we need to remember how it came about. The day after the bloody Battle of Sorrento, on June 24th, 1859, what Henry Dunant did was not to invent IHL, but to make it possible to apply the rule of law to more or less all countries, all religions and all civilisations. The innovative nature of this represented the secularisation of pre-existing unwritten rules, often divine in order, and of values, whether ethical or religious.

This move from morality to law, from speaking to writing, is what makes IHL the essential foundation of what the ICRC does, since, at the same time, Henry Dunant created, at a time of peace, a world help and assistance network which led to the ICRC being founded in 1863.3 Having this network of local partners is absolutely essential to the ICRC in meeting the new challenges it faces today.

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So, there can be no doubt that the universality of the idea of humanising war came before the universality of international humanitarian law as we know it today, and that today it still prevails over faiths. • These are the reasons why we have to argue without ceasing that IHL must be implemented and complied with: because, while this cannot be totally achieved, it is still the most sound foundation, in that it is lay and universal, and hence non-negotiable. ***** Having completed these formalities, I propose, before showing how IHL can be enforced and observed (and in so doing, the role and modus operandi of the ICRC if it is violated), to recall briefly its definition and scope, to indicate in particular how it relates to the law of human rights, the other wing of this colloquium.

1. Recalling the Definition, Scope and Content of International Humanitarian Law A basic foundation of human action, IHL is a set of rules intended to protect those who are not involved in hostilities, or will cease to be so. In other words, IHL is intended to apply at times of armed conflict, between nations or otherwise.

Conventional foundations A branch of general international public law, IHL consists essentially of the four Geneva Conventions of August 12th, 19494 and their two Supplementary Protocols of June 8th, 1977.

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Apart from Article 3, common to them all, the four Conventions of 1949 are intended to apply in cases of international armed conflict, that is, conflicts involving one or more States. To give some recent examples, let us mention the conflict between Russia and Georgia in 2008, the conflict in Southern Lebanon of 2006, the conflict in Iraq between 2003 and 2004, and the conflict in Afghanistan in 2001-2002.

The Conventions also apply to ‘occupations’, and the fourth Convention specifically applies to civilians.

One hundred and ninety-four States, to which we must add Palestine,5 have ratified these instruments, which reflects their universality, so essential if they are to be observed.

These Conventions were supplemented and clarified by two Protocols in 1977, on protecting victims of armed international conflicts (Protocol I) and non-international armed conflicts (Protocol II). These Protocols do not enjoy the universality which characterises the four 1949 Conventions, however. So far, in fact, since Afghanistan joined in August 2009 and Lesotho in July 2010, 170 States have ratified Protocol I and 165 Protocol II. Protocol I refines and extends the definition of international armed conflict to include those in which peoples fight for autonomy in the terms of international law.6 As for Protocol II, it supplements Article 3, common to all four Conventions, and applies at times of non-international armed conflicts, which it defines as conflicts ‘which occur in the territory of [a State]’, and in which the armed forces of that State are faced with one or more groups of armed rebels, or,

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without involving the State, involve a number of armed nongovernmental groups, provided other conditions are met.7 There are many examples of non-international armed conflicts; but this Protocol II rarely applies, either because the State in whose territory an internal armed conflict is in progress has not ratified it, or because it does not recognise that there is a noninternational armed conflict in its territory. And nongovernmental armed groups do not necessarily feel themselves bound by conventions they have not signed.

The outcome in such situations is that the legal framework is limited to Article 3, common to the four Conventions8 and the ICRC in its capacity as guardian of IHL and to which States have given a mandate for the protection of people at the heart of armed conflicts, can then only act on the basis of its right to take the initiative as stated in the Articles of the Movement of the Red Cross and Red Crescent.9 The same applies to the situations referred to as ‘internal disturbances and internal tensions’,10 which are expressly excluded from the scope of application of this Protocol II. In these situations, the law of the rights of man takes up the baton.

The rules of customary international humanitarian law Beyond treaties and conventions, there are some provisions of IHL which are considered as being of customary value, that is to say, they are so fundamental that they can be invoked universally, against States and non-governmental armed groups, whether armed conflicts are international or not.

A ten-year study by the ICRC at the request of governments and assisted by academic and governmental experts, resulted in the publication of 161 rules of customary IHL. They were 64

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published in the Study which appeared in 2005,11 and are available on the ICRC’s website and updated on a regular basis.

Some of these rules are intended to provide better protection for people, and let us stress, given the subject of our colloquium, that section VI of the Study is devoted to implementing IHL and prosecuting infringements.

In August 2010, the ICRC launched a new database which allowed anyone, anywhere to access these rules easily, quickly and without charge. Simply stating them helps spread understanding of IHL and, hence, promotes compliance with it.

We may therefore hope this will help protect victims of armed conflicts.12 2. Distinctions From Adjacent Branches of General International Law IHL is thus a law of protection guided by the principle of humanity and a number of other fundamental principles of prohibition and respect for persons, whether combatants or civilians, which applies equally to all parties to conflict, irrespective of the reasons for that conflict or whether the cause defended by one party or another is just, and which must be distinguished from other adjacent branches of general international law. • IHL is not the law of peace. It is not intended to prevent wars or decide whether a State has the right to resort to force or not: these questions are governed by another branch of international law, and in particular by the United Nations Charter (law of New York).13 65

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• Nor does IHL govern the use of arms, even if, since 1977 in particular, some of the provisions of Protocol I have limited the means and methods of war.

• And, finally, even if fundamental human rights were strengthened by introducing ‘fundamental guarantees’ in 1977, as listed in Article 75 of Protocol I and 6 of Protocol II, this does not make IHL a branch of the international law of Human Rights.

Even if IHL and the law of Human Rights have a common origin and vocation, since both branches of international law aim to protect the life, health and dignity of the human person, and although they complement one another, they are not precisely similar. This is important in terms of control and implementation mechanisms.

What are the differences?

- The main difference resides in their scope of application: IHL applies only in situations of armed conflict, while Human Rights, or some of them at least, apply all the time. Nor does the law of human rights extend to conducting hostilities.

- While some treatises on Human Rights allow governments to waive certain rights in circumstances of exceptional public danger, IHL cannot be waived, as this law was specifically designed to apply in emergencies, that is, armed conflicts. The fundamental guarantees make up what is called the hard core, as these are absolute rights which must always be observed.

- The rules of IHL also impose constraints. IHL imposes obligations on all the parties to a conflict towards those in 66

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their power, whereas human rights are intended mainly to protect people against arbitrary behaviour by their own government.

- IHL is also universal, and cannot be ‘waived locally’ by regional normative arrangements, as is the case with the law of human rights.

- Finally, as Emmanuel Decaux says, the mechanisms by which the international law of human rights is applied are complex, and are hardly compatible with the obligation to confidentiality which the ICRC observes. While on this subject, let us stress that the way the ICRC works is different, without being contrary, to that of the NGOs that defend human rights.

However, in the field of operations, the boundary between these two branches of international law is more difficult to define. In situations which are not regarded as armed conflicts, the ICRC may refer expressly to the provisions of the law of human rights; but if the ICRC is mandated by the 194 States which have signed the Conventions to play a key role at a time of war, it does not hold that mandate with respect to the international law on human rights.

To conclude on this point, let us also underline that the complementarity between IHL and human rights is reflected in the case law of national and international courts, which refer increasingly frequently to the ‘international law of human rights which apply in situations of armed conflict’ and which helps define some of the obligations of the parties to armed conflict.14

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The European Court of Human Rights for its part has given a number of judgments, some of which, recently, have referred directly to IHL.15 And let us remember, finally, that, in its consultative opinion on the ‘consequences in law of building a wall in occupied Palestinian territory’ rendered on July 9th, 2004, found that: “More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.”16 ***** Despite this perfectly consistent, pertinent and complete body of law, we have to note that wars are still continuing, that they are even more devastating in their effects and that too many people are suffering the effects of armed conflicts. It is therefore appropriate, as this colloquium invites us to, to ask ourselves why international humanitarian law is still not observed and how its proper application can be monitored.

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3. Can We Identify Why International Humanitarian Law is Still Not Being Observed?

Without being exhaustive, there are a number of reasons we can identify why international humanitarian law is not being observed, and even being rejected.

The fact that IHL is unsuited to today’s armed conflicts Some people claim this alleged lack of suitability to argue that IHL, and particularly the 1949 Conventions, is obsolete, unsuited to the ‘new’ armed conflicts, that it needs remodelling, adapting. This is a line of reasoning which should not be trusted, as it might lead, and sometimes already does lead, to justify failing to comply with the provisions that exist. All these arguments are good for putting oneself outside the law, more or less insidiously, and avoiding openly saying that it is irrelevant, but by saying that, in a given situation, IHL does not apply to that situation because it does not come under the conventions.

It is rather rare, for example, for a State to recognise the existence and legal status of a non-international armed conflict in its own territory. So, even if that State ratified the relevant IHL instruments applicable in such a situation (Protocol II and common Article 3), it would not recognise that they applied in that case.

This finding is even more blatant when we look at the international fight against terrorism, which is otherwise known, without any basis in law, as a ‘war’, where anything goes to escape the framework of international law, leaving the way open to new practices to destroy liberty, and to a subtle mix of legal and political definitions, which sow the seeds of confusion and

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which could justify some actions that are hardly in accordance with law.

We must still distinguish, in particular, between acts of terrorism which are prohibited under IHL at times of armed conflict, whether between or within nations, whoever commits them, and using the epithet ‘terrorist’ to apply to an individual, a group, or even a State to describe one’s worst enemy, both politically and pejoratively. At times of armed conflict, likewise, we must not be too quick to call a legitimate act of war, that is, one which is lawful in IHL, an act of terrorism.

Prohibited at times of armed conflict as a means of combat, recourse to terror is equally prohibited in times of peace (there are thirteen international instruments on the subject). Nor does it make the offences these instruments describe ‘acts of war’.

Applicability of the rules to armed non-governmental armed groups, belligerents This is a key issue, because, by their very nature, such groups are not party to international IHL instruments, which can only be binding on States.

Let us note here, however, that Article 96 § 3 of Protocol I of 1977 provided the possibility for an authority representing a people involved in an armed conflict against a high contracting party to ‘commit itself to applying the Conventions and Protocol to that conflict by making a unilateral declaration to the depository’. However, no such commitment has been recorded by the depository State, Switzerland, to that effect to date.

How can we persuade these armed groups under such circumstances, that the IHL rules are relevant, and how can we compel them to observe these rules?

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Seen in this light, the customary IHL study is absolutely invaluable, because the rules it arrives at can be applied to nongovernmental armed groups, that they must respect them and have them respected, on pain of rendering themselves liable and their members being individually prosecuted.

Dismissing IHL as Western law Like other humanitarian organisations, in operations in the field, the ICRC is finding some non-governmental people and belligerents are somewhat resistant to, even dismissive of, IHL and humanitarianism in general. That may be because they are unaware of the rules that apply, but this behaviour is sometimes deliberate, violating the principle of non-reciprocity which is fundamental to IHL, some of those involved being tired of finding that some States do not observe the law, exasperated by their impunity, convinced that might is right and that IHL is nothing but a reflection of the Western ideas they reject.

This is precisely why so much work is still required on acceptance of IHL and on how it is regarded by some people, who need to be reminded where humanitarianism comes from and that it is universal.

Having said that, however, it is not only non-governmental groups who act in violation of IHL. We find IHL is not respected, including by Western States, whereas the resources are available to implement and comply with its provisions.

4. How Does IHL Propose to Promote Its Observance and Implementation?

There are two main arms to IHL: prevention and suppression.

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Prevention aims to prevent crimes being committed, and has a number of aspects As a general rule, IHL requires States to ‘take measures to avoid offences being committed, and not encourage them’.17 Viewed in these terms, States are responsible, in particular, for integrating the provisions of IHL in their national law by bringing this into line with international standards. Under the terms of Articles 49, 50, 129 and 146 of the four Conventions, signatory States commit themselves to ‘take all legislative steps necessary to set adequate penal sanctions’. States are also bound to disseminate IHL rules, in times of peace and, a fortiori, in times of armed conflict. In fact, for it to be respected and applied, the military,18 in particular, must be aware of IHL, but it is just as important that others, such as healthcare staff, humanitarians, journalists, diplomats, private sector workers and, generally speaking, anyone liable to find themselves facing an armed conflict directly at any time, should be made aware of the rules that apply.19 Let us note here that this obligation to disseminate is customary by nature, that it applies at times of armed conflict, whether between or within States, and that it applies to both States and non-governmental armed groups. Rules 142 and 143 of the customary IHL study require States and non-governmental groups to ‘instruct all their armed forces in IHL’ and ‘encourage teaching IHL to civilians’.

The ICRC plays a key role here: as part of its mission as the ‘guardian of IHL’, the ICRC engages in specific preventive work in times of peace and war, by promoting and disseminating the rules in contract and custom which are mandatory when applied 72

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to armed conflicts, to those involved and, in particular, those who can have a direct influence over what happens to people.

Where prevention has failed, and faced with serious violations, IHL sets up investigation and prosecution mechanisms Under the 1949 Conventions, ‘if a party to the conflict so demands’, ‘an enquiry must be opened, using procedures to be agreed between the parties involved, on any alleged violation of the Convention’, and ‘the parties to the convention will put an end to it and suppress it as soon as possible.’20 Under rule 158 of the customary IHL study, ‘States must hold enquiries into war crimes which are said to have been committed by their nationals or armed forces, or in their territory.’

Independently of these obligations, which still apply to any alleged violation of IHL, let us note that Article 90 of Protocol I 1977 set up the International Humanitarian Fact-Finding Commission (IHFFC), which has powers to “investigate any facts alleged to be a grave violation of the Conventions and the present Protocol or any other grave violation of the Conventions or the present Protocol and to assist in restoring compliance with the provisions [of IHL].” States must declare expressly that they are bound by Article 90 to be so, and 72 have done so to date;21 but the IHFFC has never been called in, although it is operational.

At the same time as these mechanisms of enquiry, IHL provides for prosecution of serious violations of its provisions at times of armed conflict and as listed by the Conventions of 1949 and Protocol I 1977 which defines them as ‘war crimes’.22 The customary IHL study, following the case law of the Criminal Tribunal for the former Yugoslavia,23 extends the 73

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concept of serious violation of IHL to non-international armed conflicts.

First, IHL provides that States are responsible if violations of IHL are attributable to them and, in particular, as described in rule 149 of customary IHL, if they involve ‘violations committed by their own bodies, including their armed forces, by persons or organisations they have authorised to exercise the prerogatives of the public powers, by persons or groups acting de facto on their instructions, their directions or under their control or by persons or groups it recognises and adopts as its own behaviour.’

In that case, the State responsible must indemnify the losses caused to the victims in full.24 It should be emphasised, however, that, should there be a serious violation of IHL and the State’s responsibility at the same time, contractual IHL holds those who ordered and commanded it liable individually in criminal law, whatever their capacity, position or rank, and these principles have been considered as being of customary value.25 Since 1949, therefore, the Geneva Conventions have considered what is the right course of action to use in prosecuting and punishing those who commit serious violations of IHL, as there is one provision which is common26 to them all, which reads as follows: ‘Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the 74

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provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned.’ This provision, which is very contemporary, obliges States which have signed up to the Conventions to act, whatever the nationality of the victim or offender may be, wherever they may be and wherever the violation is committed.

Under IHL, therefore, it is national criminal jurisdictions which are primarily competent, and this principle is upheld by rule 158 of the customary IHL study, which provides that States must prosecute suspects as the case may be. They must also investigate other war crimes within their jurisdiction and prosecute suspects as the case may be.

Let us emphasise here that this mechanism, which is based on cooperation between States, has nothing optional about it: the signatory States are bound to do so by law. On the other hand, this procedure, also known as the procedure of universal jurisdiction, is still highly disputed and rarely applied, as it collides with a complex combination with some immunities still allowed to Heads of State and government, notwithstanding Article 27 of the articles of the IPC.27 Violations of IHL can now be prosecuted by the International Criminal Court The International Criminal Court has jurisdiction to try war crimes, crimes against humanity and genocide, and can try violations of IHL committed at times of armed conflict, whether international or intra-national, as its Articles list, exhaustively.

On the model of IHL, the articles of the International Criminal Court hold that national criminal jurisdictions have primacy, and 75

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that it is only if these fall short that its jurisdiction can be exercised in full. The International Criminal Court can therefore only intervene at a subsidiary level, assuming the principle of complementarity enshrined in the Preamble to its Statutes28 is interpreted to that effect.29 ***** Although IHL is mandatory, compelling law, how can States and non-governmental armed groups be made to observe IHL and prosecute violations committed?

5. How Can Observance of the Provisions of IHL Be Monitored?

There are a number of provisions IHL provides to ensure it is observed, and which the ICRC endeavours to implement in accordance with the extremely specific mandate it has been granted by States.

First, the Geneva Conventions and Protocol I 1977 establish cooperation between States ‘in accordance with the UN Charter’.30 This is a kind of delegated control,31 if the contracting State does not meet its primary obligation to ‘respect and have respected’ IHL which it is required under Article 1 common to the Conventions and Protocols.

This control by delegation of the UN is exercised by way of recommendations, usually made by the Security Council based on Chapter VII of the Charter (‘Action in cases of threats to peace, disturbance of the peace and acts of aggression’); the latter can go as far as deciding on or authorised armed intervention.

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On the other hand, this control raises a number of questions, in particular: can violations by nationals of a State justify, even demand, armed intervention by the UN? And is such intervention compatible with the principle of the sovereignty of the State? And what are the limits to that sovereignty?

The ICRC, guardian of IHL Comforting, protecting and helping people in times of armed conflict are the ICRC’s duties. But our institution’s job, in its capacity as guardian of IHL, is to promote it and verify that this is observed. This most specific mandate, which the 194 signatory States conferred on the Geneva Conventions, makes the ICRC an extremely specific humanitarian and original player at times of armed conflict, both in the field of operations and in normative terms.

As you know, it is not the ICRC’s job to prevent wars. The ICRC is not a pacifist movement. And I would add, moreover, that being a guardian of IHL does not make the ICRC a ‘guardian angel’32 or enable it to guarantee absolutely that it will be observed. While our Institution tries always and everywhere to promote the rules of IHL and see they are observed, it cannot be held liable for any violations committed, and even if it is often the only witness, it is not the ICRC’s job to judge or prosecute.

The ICRC is concerned, within its remit, first and foremost, to do everything it can to ensure the rules of IHL are observed and, second, to prevent violations. If these are identified, the ICRC’s modus operandi is complementary to other resources and, in particular, to court proceedings. These are not mutually contradictory.

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To perform this difficult mandate as consistently and effectively as possible, the ICRC has had guidelines as to what action can be taken in the event of violations of international humanitarian law since 1981.33 These guidelines were revised and extended in 2005 to reflect the reality of the ICRC’s operational activities, and published, so that all concerned have an understanding of how it works.34 As the ICRC deals with all violations of IHL, including situations in which IHL does not formally apply, these guidelines distinguish between actions the ICRC instigates of its own accord and the responses to be made to the requests it receives.

As far as actions the ICRC takes of its own accord, it is stated that the ICRC must take ‘all appropriate measures to put an end to violations of international humanitarian law or other fundamental rules protecting people in violent situations, or to prevent such violations occurring. These actions are taken at a number of levels, and using different approaches, depending on the nature and scope of the violations.’

The ICRC acts mainly through confidential, bilateral approaches to representatives of the party or parties concerned aimed at convincing them to change their behaviour and comply with the provisions of IHL. The ICRC’s approaches are not always necessarily confidential.

However, if the ICRC believes they are not having any effect, it reserves the right to resort to other means. The guidelines provide three options here: • Mobilise humanitarians: the ICRC can share its concerns as to violations of IHL with others involved who might be able to influence how the parties to a conflict are 78

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behaving, and who the ICRC believes will not disclose that information. While States may be the first to be approached in this way, the ICRC may also share its concerns with regional and international organisations, non-governmental organisations and even individuals, if it believes they may be able to exercise a favourable influence to improve the fate of the people concerned.

• Public statements: the ICRC may express its concerns as to the quality of the confidential bilateral dialogue it is involved in with a party to a conflict, without mentioning the violations concerned or stating what they are.

• Public denunciation: finally, the ICRC reserves the right to denounce specific violations of IHL in public. This recourse is very rarely used, and can only be employed if a number of conditions stated in the guidelines are met.

Before it can denounce violations of IHL publicly, they must be ‘significant and repeated, or liable to be repeated’, that ‘delegates have witnessed these violations for themselves, or it has been established from sound, verifiable sources that such violations exist, and how extensive they are’, that ‘the bilateral approaches made confidentially and any efforts to mobilise humanitarians have not succeeded in putting an end to these violations’, and that revealing them must be in the interests of the individuals or peoples affected or at risk.

This is very rarely used: by way of example, let us cite the statements on Myanmar in June 200735 and, more recently, on the conflict in the Middle East on June 14th, 2010.36 The ICRC remains more reserved in response to third party initiatives.

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As for court proceedings, the ICRC’s representatives have immunity from testifying in national and international criminal courts,37 and the ICRC will not disclose confidential documents.

If asked to investigate, the ICRC considers it is not within its remit to act as primary investigator, and the ICRC does not, in principle, cooperate with enquiry procedures instigated by other bodies.

On the other hand, under Article 5 para. 2 c) of the Articles of the International Movement of the Red Cross and Red Crescent, the ICRC is authorised to consider ‘any complaints of alleged violations [of IHL].’ Nor will the ICRC, in principle, forward complaints which emanate from a party to a conflict or a national company of any party to a conflict or complaints by third parties. Likewise, the ICRC will not agree if it is asked to establish the effects of violating IHL. These very specific characteristics of the ICRC’s approach are guided by a permanent, constant concern to protect peoples from the effects of armed conflicts, to improve their position and not to exacerbate it under any circumstances.

Monitoring by third party States Article 1 common to the Conventions and Protocols requires States to observe the rules of IHL and cause them to be observed, whatever the circumstances. Those who have commented on the Conventions and Protocols agree this provision creates an obligation to ensure, which must be performed both individually and collectively, as there is a community of interests here which transcends the interests of the individual.

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Having said that however, we might rightfully ask whether, by failing to act and failing to speak out, third party States do not become accomplices to violations and, ultimately, as guilty as the offenders themselves.

Let us note there that the four Geneva Conventions of 1949 share a common provision which states ‘No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches [committed] […]’38 Seen in this light, it is clear that the positive involvement of States resides, in the first instance, in the action they take to meet their commitments and affirm their responsibilities. Seen from this angle, it is likely that new approaches can be sought in terms of the positive role mere citizens can play in inciting, even obliging, their respective governments to ensure IHL is observed. In other words, would third party States not be guilty of ‘aiding and abetting’ if they fail to comply with common Article 1 and other subsequent provisions? And is it not, therefore, up to the citizens who are the indirect victims of violations of IHL to hold their State responsible, in civil law this time, if it fails to meet its international commitments?39 Monitoring by victims And, finally, the direct victims and associations which bring them together have an increasing role to play, insofar as they are able, in investigating, prosecuting and publishing those who violate international humanitarian law.

Their action, especially in the courts, is capable of making third party States or States whose nationals have committed serious 81

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violations of IHL actively involved. It is then up to those States to offer victims effective, efficacious recourse.

In conclusion, as you can see, international humanitarian law is mandatory, compelling law, which does not, in theory allow any distinction between written words and actions. While some ways of ‘observing it and ensuring it is observed’ have yet to be invented, it is still the case that effective monitoring and prosecution mechanisms already exist.

“Action is what is needed, not words” wrote Jean Racine in Iphigénie. And, for my part, while concerned that ideas should not stray too far from reality, I feel rather close to Victor Hugo when he says in Actes et Paroles that ‘there is only one necessity, truth: that is why it has no force, the law.’

This is, undoubtedly, the only course of action which is consistent with the thought of Henry Dunant that we should not sleep our way into a ‘bloody future’.40 ***** 1. Let us mention, for example, the clarification of the concept of civilians being directly involved in hostilities. See on this subject the ICRC Interpretational Guide, ICRC, Geneva 2009, which can be found at http://www.icrc.org/web/fre/sitefre0.nsf/html/p0990. But also the clarification of certain fundamental concepts, such as ‘military objective’, ‘the proportionality principle’, ‘precautions to be taken before attacking’, developing procedural guarantees to be applied to detainees in the event of non-international armed conflict. On these subjects, see the statement by the Chairman of the ICRC of September 21st, 2010 Strengthening protection in law of victims of armed conflicts and the ICRC’s current study on the current status of international humanitarian law. Available at: http://www.icrc.org/web/fre/sitefre0.nsf/html/ihi-developmentstatement-201910.

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2. Supplementary protocol III to the Geneva Conventions of December 8th, 2005 3. Then known as the International Committee for Relief to the Wounded.

4. The four Conventions of 1949 concern the amelioration of the condition of the wounded and sick in armed forces in the field (Convention I); the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea (Convention II), the treatment of prisoners of war (Convention III) and the protection of civilian persons in time of war (Convention IV).

5. In its letter addressed to the depository of June 21st, 1989, Palestine declared that “the Executive Committee of the Palestine Liberation Organisation, charged with exercising the functions of Government of the State of Palestine by order of the Palestine National Council, has decided, as of May 4th, 1989, to ratify the four Geneva Conventions of August 12th, 1949 and their two additional Protocols.” It should be noted that the Federal Swiss Council informed the States, on September 13th 1989, that it could not settle the issue as to whether this was an instrument of ratification, ‘given that the international community is uncertain as to whether a State of Palestine exists or not’.

6. Cf. Article § 4 of Protocol I: “… armed conflicts in which peoples re fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.”

7. Armed groups must be placed ‘under the conduct of a responsible leadership’ and ‘[exercise] control over some of their territory such that they are able to pursue continuous, concerted military operations’ (Protocol II Art. 1 para 1).

8. Article 3 common to the four Geneva Conventions of 1949 was introduced in extremis in 1949. Often called a mini-convention, it covers protecting people in the event of internal conflicts and lists the fundamental guarantees which must be met in all cases, which the International Court of Justice has called ‘fundamental human 83

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considerations’. This article also authorises the ICRC to offer its services to the parties involved in armed conflicts.

9. Cf. Article 5 para. 3 of the Articles of the International Movement of the Red Cross and Red Crescent: “The International Committee may take any humanitarian initiative which comes within its remit of specifically neutral, independent institution and intermediary and to consider any question which such an institution ought to examine.”

10. According to Article 1, para. 2 of Protocol II, ‘riots and isolated, sporadic acts of violence and other analogous acts’ are not regarded as armed conflicts.

11. Study of customary international humanitarian law: ICRC and Cambridge University Press, 2005 (English publication) and ICRC and Bruylant, 2006 (French version). Available at: http://www.icrc.org/Web/fre/sitefre0. nsf/htmlall/custom/$File/CRC_001_PCUSTOM.PDF. 12. Available at: http://www.icrc.org/customary-ihl/eng/docs/home.

13. We distinguish between jus ad bellum (the rules on conditions in which it is permitted to or prohibited from resorting to armed force) and jus in bello (rules on reciprocal relations between the parties to armed conflicts, otherwise known as the ‘laws and customs of war’).

14. Many decisions have defined the essential concepts in armed conflicts as arbitrary detention, the principle of non-retaliation and the fundamental distinction between combatants and civilians.

15. See the ECHR’s decisions in Kononov v. Lithuania (2008 and 2010), Korbely v. Hungary (2008) and Van Anraat v. The Netherlands (2010).

16. ICJ, Reports of Judgments, Advisory Opinions and Orders, Legal consequences of the construction of a wall in the occupied Palestinian territory, Advisory Opinion of 9 July 2004: Available at: http://www.icjcij.org/docket/files/131/1670.pdf ?PHPSESSID=be7530ad45823436f7 d44543e85fa40.

17. Cf. Rule 144 of the customary IHL study, op. cit.

18. Article 87 § 2 of the Protocol I of 1977 states, “In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, 84

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commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.”

19. Convention I Article 47, Convention II Article 48, Convention III Article 127, Convention IV Article 144 and P I Article 83 state that, “The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.”

20. Cf. Convention I Article 52, Convention II Article 53, Convention III Article 132 and Convention IV Article 149.

21. France still has not made this declaration, for example.

22. Protocol I Article 85 § 1 states, “Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.”

23. Appeals Chamber, ICTY, Re The Prosecutor v. Dusko Tadic, alia ‘Dule’, judgment of October 2nd, 1995 on the appeal by the defence concerning the prejudicial objection of non-jurisdiction.

24. As Rule 150 of the IHL Study puts it, “The State which is responsible for violations of IHL is bound to indemnify all the losses or prejudice caused.”

25. See rules 151 of the customary IHL Study, “Those who commit war crimes are criminally liable,”, 152, “Commanders and other superiors are criminally liable for war crimes committed on their orders”, and 153, “Commanders and other superiors are criminally liable for war crimes committed by their subordinates [in certain circumstances].”

26. Cf. Convention I Article 49, Convention II Article 50, Convention III Article 129 and Convention IV Article 146.

27. Cf. Article 27 of the Statutes of the International Criminal Court, Lack of relevance of official capacity, which provides, “1. The present Statute 85

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is equally applicable to all, without distinction as to official capacity. In particular, the official capacity of head of State or government, member of a government or parliament, elected representative or agent of a State does not provide any exoneration from criminal liability under the present Statute, nor does it as such constitute any grounds for mitigation. 2. The immunities or special procedural rules which may attach to the official capacity of a person by virtue of internal or international law will not prevent the Court from exercising its jurisdiction over that person.”

28. Cf. § 6 of the ICC Preamble, which states, “Recalling that it is the duty of each State to bring those responsible for international crimes before its criminal courts”, and § 10 “Emphasising that the International Criminal Court which these Statutes create is complementary to the national criminal courts.”

29. While on this subject, let us emphasise that Article 8 of French law no.

2010-930 of August 9th, 2010 modifying criminal law to include the institution of the International Criminal Court, JORF 0183 August 10th, 2010, establishes extra-territorial jurisdiction in favour of the French criminal courts, particularly, but not only, refusing to recognise that the ICC has jurisdiction (new Article 689-11 of the Criminal Procedural Code).

30. Protocol I 1997 Article 89 provides that, “In situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.”

31. Cf. Gh. Doucet, [The positive, obligatory involvement of States in applying international humanitarian law: a guarantee for the future], p.

122, Proceedings of the colloquium “[Has humanitarianism failed]?”, Sorbonne, Paris, February 4th, 2999.

32. As Yves Sandoz put it in [The International Committee of the Red Cross: guardian of international humanitarian law], 31.12.1998, ICRC site.

33. See [The procedures of the International Committee of the Red Cross in cases of violations of international humanitarian law], IRRC, 728, MarchApril 1981, pp. 79-86. For the period prior to that, see [Memorandum on the activity of the International Committee of the Red Cross in respect of violations of international humanitarian law, September 12th, 1939, 86

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IRRC, 249 September 1939, pp. 766-769; [The International Committee of the Red Cross and alleged violations of international law], Memorandum, November 23rd, 1951, IRRC 396, December 1951, pp.

932-936.

34. See [The procedures of the International Committee of the Red Cross in cases of violations of international humanitarian law or other fundamental rules protecting people in situations of violence], International Review of the Red Cross, June 2005, no. 858, p. 393-400.

Available online at http://www.icrc.org/Web/fre/sitefre0.nsf/ htmail/review-858-p393/$File/irrc_858_Faits_et_doc.pdf.

35. Press release 82/07, June 29th, 2007: “Myanmar: the ICRC denounces major, repeated violations of international humanitarian law”, available at http://www.cicr.org/web/fre/sitefre0.nst/htmlall/myanmar-news290607?opendocument.

36. Press release 10/103, June 14th, 2010, [“Gaza blockade: not one year more”], available at: http://www.cicr.org/web/fre/sitefre0.nsf/htmlall/ palestine-update-140610?opendocument.

37. Cf. Article 37 of the procedural and evidential rules of the ICC. 38. Cf. Convention I Article 51, Convention II Article 52, Convention III Article 151 and Convention IV Article 148.

39. Cf. Gh. Doucet, op. cit. p. 127.

40. Un avenir sanglant, Henry Dunant, 1892.

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Catherine Trautmann First of all, I should like to thank Monsieur Bloch for organising this colloquium and also to express my appreciation to all the preceding speakers.

The subject of the application of human rights is vast, and you have already heard from legal specialists. I shall not be developing my arguments along these lines, but will give them from the perspective of the legislator.

The European Parliament is the only supranational parliament and it is important to examine how it can promote progress in the matter of the application of human rights. We at the European Parliament have a conviction that we must remain true to our existential purpose. The Europe of today was borne out of the Second World War:;the European Convention on Human Rights and subsequent Charter of Fundamental Rights are the response to crimes against humanity, and are dedicated to prevention of such crimes by democracy and by the most stringent rules committed to the inalienability of the human condition. These essential texts and the values which they enshrine constitute the basis for agreement between nations and are at the heart of the European citizenship which is under 89

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development and of all our policies, which ally economic aims with social progress.

The issue of human rights is at our core and our aim has been to resolve this very rapidly and permanently. Our Parliament is the sister organisation of the Council of Europe, which, with the European Convention on Human Rights, has established the legal basis for our directives and our legal system. This progressively introduces a supranational rule of law, which is not without its problems for the States who may find themselves in conflict with either the letter of the law or its practice. We pay great attention to these fundamental rights and their application.

In addition, some may consider that the European Parliament, with its Commission on Civil Liberties and Subcommittee on Human Rights, is in competition with the Council of Europe.

However, from our perspective, this is not the case. There are two remits which we must establish: one interior to the European Union and one exterior to it.

More precisely, I shall be emphasising three terms: continuity, progress and publicity.

In order to establish true respect for the European Convention on Human Rights, the first condition is to sign up to it in perpetuity. Human rights extend beyond national sovereignty and borders. The basic texts and the case law refer primarily to universality, before giving consideration to particularities. It is this which allows judges competent to do so to form judgements, including on the behaviour of a State.

This development has generated some reticence in certain States, as well as a desire to retreat back within their own borders; however, it has also provoked an aggressive rejection by some social groups cultivating a nationalistic or extreme right wing 90

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ideology. Indeed, this development is inclined to affirm the supremacy of ethics over the interests and behaviour of a State.

But can a State lay claim to moral values?

In the majority of democracies, there are fundamental legal texts or constitutions which establish the reference criteria or values on which the laws will ultimately be based. Therefore in essence, and this is the reason for the existence of our European Parliament, we should take this source as our inspiration and consolidate it, by considering that we must act in perpetuity for all time and in every location, so that we miss nothing, observe everything and consequently remain faithful to the meaning of the European rulings on human rights. We have been able to identify the sticking points of the Charter. For example, the UK has refused its integration into the constitutional treaty and is permanently finding means to circumvent it or to reject any reference to it.

In this Charter of Fundamental Rights, we have tried to set out the complete panoply of civil liberties and rights devolving from the European Convention and the Universal Declaration, such as freedom of movement, expression, information and protection, and we have also attempted to supplement these with concrete social laws on the right to work, to education and housing. This striving for the progressive development of rights and liberties has led us to go further in the acceptance of equality, such as equality between men and women, and the rejection of any type of discrimination relating to gender, disability or origins. The more that citizens and civil society as a whole seize on these rights and demand their correct application, the more delicate it becomes, politically speaking, for States to decline them. However, in actual fact, it is evident 91

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that the right to abortion, for example, or respect for freedom of expression, are called into question.

The second term is progress. Like our friends and colleagues at the Council of Europe, we consider that the legislator is there not to damage laws, but to improve them. And we are also tasked with generating decisions and texts in the quest to ensure the best possible international equilibrium, for the purposes of expanding democracy and certainly, to establish peace wherever we can.

Peace: we do not believe that it has been established once and for all. There are sources of conflicts and differences of opinion, as is evidenced by the disputes between States. This may even be the case between regions. Therefore, to choose to advance human rights and their application is not simply to have a body of well-developed references, but also and not least, to pursue the work in every policy of the European Union. Here, I can give a recent example in which I was particularly involved.

We achieved a compromise in the ‘telecoms package’ (a raft of directives relating to electronic communications), which admits the notion that access to the internet is an essential means of exercising a fundamental freedom and therefore confirms the right to judicial proceedings, rather than the taking of sanctions without respect for the presumption of innocence in the case of an accusation of illegal downloading, such as the Hadopi law in France provides for.

This is how progress can be made today, by taking account of the application of human rights in the context of the new digital age. In some cases, the States have tried to bend the rules or question such progress, mostly ‘for good reason’, such as security, or the fight against terrorism. For some years, there has 92

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been a recurrent debate with the heads of State on the explicit or surreptitious limits to human rights and their enshrinement in law, and this is one of the reasons which convinced us to request co-decision in matters of security, which we were successful in obtaining. However, the battle has not been systematically concluded to the advantage of the Parliament, as we have seen in questions associated with immigration, where the Council balks at adopting an overall policy, circumvents the debate by dismantling the examination of the directives, and advances on a practical, and frequently problematic, level, rather than on the basis of an explicit framework.

The debate on the French attitude to the Roma demonstrated this perfectly. If, as the Parliament reminded the European Commission, the texts containing the principles are not accompanied by clear directives and national provisions, as well as practices whose legality is verifiable, there will be little point to exercising our remit of vigilance and democratic supervision.

The Roma population is based in several countries and is thus composed of a number of different nationalities. However, they have one language, one culture and a similar situation of poverty.

It is this similarity, the fact that they live in and move around Europe, which implies that they have the same rights and obligations as all Europeans. This is an important issue, since it is always in a marginal situation that the coherence of our legal mechanisms is tested, in particular, for any incoherence or breach of application to be rectified between the moral issue, the general rule and the law.

It is because our assemblies of the Council of Europe and the European Parliament are vigilant to changes in the defence of human rights and themselves exercise very real monitoring and 93

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awareness, or where relevant, publicly denounce failings, that we believe that this vigilance should not tolerate the least hindrance.

No area should escape our attention. As we are tasked with investigating compliance with basic legal texts, we have to look anywhere and everywhere.

How can we advance beyond parliamentary controls and oblige a State to honour its commitments in the matter of human rights? Well, by means of information and publicity, which is the third term on which I shall be expounding.

First, I should like to explain the internal action undertaken by the Union. We are progressively developing our credibility in the way in which we obtain our information and the incontestable and objective quality of such information. Then, there is the manner in which we present the problems associated with human rights, where we offer political solutions, and sometimes, issue condemnations. This stance gives us an obligation vis-Ă -vis the European Commission, as well as governments.

Where the European Commission is concerned, Parliament made its point when it refused to appoint a candidate to the Commission (M.Buttiglione), because of his homophobic and profoundly misogynistic views. At the time, we did not have the competence to effectively validate the Commission, or appoint commissioners, but as Mr. Barroso said at the time, at the moment when the Parliament with all its authority refused to ratify the appointment of an individual as a commissioner, the Commission had to accede. At the time, Parliament reminded the Commission of its duty to set an example.

The second example is the Sakharov prize, which was launched twenty years ago. The European Parliament wanted to 94

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demonstrate its commitment to human rights and chose to give the award the name of a scientist well known for his ethical commitment and his courage, as well as the quality of his work and the independence of his research. The prize illustrates our conviction and at the same time, giving it the name of the Russian scientist is an open gesture towards the eastern part of Europe, from which we were so long cut off. The award is given to individuals all over the world whose fight for liberty and for human rights is remarkable and represents a source of progress.

We can also underpin our authority with regard to the issue by means of resolutions, which we seek to pass with the greatest possible consensus, enabling us to highlight the power of our vote, thanks to our work with the commissions involved and to public statements and the publicity we can garner for the stance we adopt and the resolutions we propose.

Our influence has increased, thanks to the Lisbon Treaty, which has conferred on us the role of co-decision maker alongside the Council in matters of interior security and justice policy. This is the fruit of a long battle, equivalent to that for the Charter of Fundamental Rights. We have had to fight very hard for this right of co-decision and indeed, it could even be said that it remains a permanent struggle, since the Council is always ready to erode our prerogatives.

In addition, the co-decision which we have been granted pursuant to the Treaty of Lisbon also entitles us to validate or reject international trade agreements, to pronounce on the content of a treaty or agreement when the issue at stake relates to justice, security and by extension, civil liberties. This led us, for instance, to cause an uproar by refusing to rubber stamp the SWIFT agreement, which should have been passed with the 95

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United States. SWIFT is the name of an organisation whose remit is to manage and store personal data. The fact that we refused to validate the agreement unleashed a veritable political storm of seismic proportions and has made the American authorities and public opinion very aware of our capacity to act.

I went to the US three weeks later, and the members of Congress whom we met asked us how we had been able to accomplish this. The White House invited us for an urgent confidential exchange on human rights within international agreements in the context of our discussions on the ACTA (anti-counterfeiting trade agreement) agreement.

We now have new instruments at our disposal, as well as competencies granted under the Treaty of Lisbon. We also have Lady Ashton, Vice-President of the Commission in charge of the exterior and diplomatic policies of the European Union, who can speak in a single voice for the Union and introduce its concerns relating to the respecting of human rights into the discussions in which she is involved. And it should be added that the European Commission and the European Council need the Parliament, as has already been evident in several different situations. For example, I could mention the international discussions on internet governance which raise the difficult issue of freedom, such as cases of censorship, intrusion into private life or deprival of the freedom to use the internet. Internet governance presents not only technical problems, but also linguistic issues and problems relating to language, human rights and to the behaviour of States, companies and individuals. For this reason, the United Nations is grateful for the participation of European parliamentarians, since we are all part of civil society and are experienced in conflict resolution by dialogue 96

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and work founded on respect for our interlocutors and the application of the principles of universal law.

The Roma population are not all attached to one particular country or nationality, but live in and circulate around Europe and are thus part of Europe, with the same rights and obligations of any other European. This is an important issue, since it is always in a marginal situation that the coherence of our legal mechanisms can be tested, in particular, for any incoherence or breach of application between the moral issue, the general rule and the law, in other words, if the principles and values of our fundamental legal texts are being respected.

In conclusion, I would say that our interventions are conscientious and faithful to our ethical conduct, and that with their laws, the European Parliament and the Council of Europe contribute to generating a political and juridical culture which conforms to our initial engagement, and is in accordance with our historical commitment to the European construction in its truest sense. It is in the area of human rights that each country has the duty of applying itself to the development of international law and a culture of peace, restoring to each individual the dignity of a human being.

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Philippe Boillat May I firstly say how very honoured and delighted I am to be associated with this symposium, which has been organised by the Consultative Council of Jewish Organisations, and thank you, Mr. Chairman, for having agreed to act as Chairman. I should like also to thank Maitre Louis Bloch, who was the instigator, organiser, kingpin and coordinator of this symposium. It is thanks to him that this event has been possible.

We have just heard two remarkable speeches, which have revealed a degree of political insight into the contribution of the European Union and the European Parliament to the protection and promotion of human rights. In my capacity as Director General of human rights and legal affairs at the Council of Europe, you will understand that I was particularly touched by the emotive tribute paid to the Council of Europe by President Poettering and Mme Trauttman. They are both to be congratulated on the cooperation which increases daily between our two organisations.

After these two political speeches, I should like to touch on more prosaic, but fundamental issues for the protection of human rights in Europe. As M. Bloch just said in his introduction, I am going to talk to you about the monitoring 99

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system introduced by the European Convention on Human Rights, a mechanism which is without peer in the modern world.

There are of course international mechanisms for protecting human rights, in particular on the American and African continents, but they cannot be compared with the monitoring system of the European Convention on Human Rights.

‘La parole, l’écrit, l’action.’

‘La parole’ first! The European Convention on Human Rights (ECHR) was born out of the horror witnessed in the atrocities of the Holocaust and the vile crimes committed against humanity: ‘never again!’ The Convention is the first tangible result of the desire of Europeans to respect freedom and the pre-eminence of the law, taking appropriate measures to ensure the collective guarantee of certain rights outlined in the Universal Declaration of Human Rights of 1949. Having said that, the aim of my talk is not to recall the material content of the European Convention on Human Rights. I shall be concentrating only on its method of monitoring at the international level.

What are the characteristics and the original thought behind this monitoring mechanism? Let me say straight away that I shall not be talking about its historical progress. I am going to talk about the Convention as it is in force today, that is, as it has been amended in particular by Protocol no. 11, which came into force on 1 November 1998 and fundamentally altered the mechanism, and by Protocol no. 14, which came into force on 1 June 2010.

The first characteristic: an international court of justice, operating full time: the European Court of Human Rights. This Court comprises 47 judges, one judge for each party state, with 100

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its headquarters in Strasbourg: a complete legislative system since the introduction of Protocol no.11.

The second characteristic: anyone subject to the jurisdiction of one of the States party to the Convention, the 47 member States of the Council of Europe, having exhausted all available internal methods of appeal and within a period of 6 months following the ruling of the last national court, may apply to the European Court of Human Rights with an individual request. I say ‘anyone’, independent of their nationality. Today, this statement would appear unremarkable in Europe, but we should remember that in the 1950s, this was a real revolution, because the sacred principle of reciprocity was being abandoned. States granted rights to non-nationals only in so far as the States of origin of these people granted the same rights to their own nationals.

Within the system of the European Convention on Human Rights, based on the equal human dignity inherent in everyone, each human being owns all the rights and freedoms guaranteed by the European Convention on Human Rights, whatever their race, language, religion or nationality. Every individual may thus apply to the European Court of Human Rights if they are subject to the jurisdiction of one of the 47 member States of the Council of Europe.

The third characteristic: the enforceable nature of the rulings made by the Court, which is expressly recognised by the party States. The States undertake to implement in full those rulings in which the Court has recognised a violation of the Convention in their respect.

And finally, the fourth characteristic: in addition to the commitment to implement the rulings, the States accept that they will oversee the implementation of these rulings subject to 101

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the supervision of the Committee of Ministers of the Council of Europe. This body is composed of the Ministers for Foreign Affairs of the 47 member States or their representatives.

As we have now come to the second part of the triptych of this symposium, ‘l’écrit’, I shall quote the pertinent provision of the European Convention on Human Rights, given that it is quite short. I am referring to article 46, paragraphs 1 and 2. The first paragraph of this provision provides that, “The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” As for paragraph 2, it states that, “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” The formula of these two paragraphs has not altered since 1950. The scope of these two provisions, however, has been defined over the years, in particular with the focus on the general principles of public international law, through the practice of member States themselves who have carried out these rulings, by the Committee of Ministers, who monitor their enforcement, and by the Court which, from time to time, provides definitions regarding the enforcement of the rulings. Protocol no. 14 has complemented article 46 by adding provisions which should facilitate the enforcement of the rulings. I shall come back to this point shortly.

After ‘l’écrit’, ‘l’action’. What does the obligation to comply with rulings of the Court consist of ? What is the commitment of the party States? Without going into too much technical detail, the rulings give rise to two types of measures, which are then subjected to monitoring by the Committee of Ministers: measures of an individual nature and measures of a general nature.

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Individual measures cover the obligation of the defending State to remove the consequences, for the applicant, of violations established by the Court, so as to allow for restitutio in integrum. In other words, the applicant is to be replaced, as far as possible, in the situation in which he or she would have found themselves, had there been no violation. These individual measures comprise four parts.

The first part deals with payment of fair satisfaction to the applicant. The amount of this fair satisfaction is determined by the Court in its ruling. Firstly, it covers the reimbursement of costs and expenses, namely the costs which the applicant has incurred nationally – legal costs, lawyers’ fees – and those incurred at the European Court of Human Rights, to bring the case for violation. The second aspect concerns, if relevant, moral wrong. This wrong is not always compensated by the Court in monetary form. The Court may in fact consider that the publication of the ruling constitutes in itself, through the publicity which it will receive in the media in particular, an adequate form of satisfaction equal to the moral wrong. The third aspect of this fair satisfaction consists of compensation, if appropriate, for material damage. In certain exceptional cases relating to the law of property, several millions of euros have been awarded to applicants. The Court has always very carefully avoided ‘merchandising’ human rights.

The second part of individual measures affects the individual much more directly. This concerns additional measures which need to be taken by the defending State when payment of the sum of money is not sufficient in itself to replace the applicant in the situation he or she would have been in had the violation not taken place. One of the steps that States may take to satisfy 103

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this obligation is to re-open a penal procedure which has come into force at national level, when, for example, the ruling at the national level has been delivered following an unfair process.

This is particularly the case when witnesses for the defence, vital to the outcome of the procedure, have not been heard. In this situation, the States undertake to re-open the process at national level, so as to conduct a (legal) process which, this time round, will take place in a fair manner. Re-opening an internal procedure does not, however, necessarily mean that the individual will be found not guilty at the close of the new procedure. He or she will, instead, be found to have been judged and, if relevant, sentenced following a fair hearing.

Other examples of individual measures: the destruction of information collected in violation of the right to the respect for privacy, the revoking of an expulsion measure or prohibition to extradite an individual to a State where there is good reason to suppose that this individual would be subject to inhumane or degrading treatment, torture, or, worse still, that their life could be placed in danger. In this respect, I would draw your attention to a provision in the Court Ruling, article 39, which provides that a Chamber or the President of the Court may request that the State defer such expulsion or extradition measures, until the Court has passed a ruling on the matter, so as to preserve the individual’s right to appeal. But, it may also be a case of civil rights, such as a change of first name or surname, the right to transmit a television commercial, or the right to a correction or response in the media.

I come now to general measures. These measures are those which States must take to avoid a similar violation arising in the future. The adoption of such measures often takes time because, 104

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in numerous cases, they require legislative or even constitutional amendments. Recently, Bosnia-Herzegovina was condemned, because the Court considered that the constitutional rules governing the application for candidacy for the presidency of the State were discriminatory. In this framework, BosniaHerzegovina must now look to modify its Constitution to render it compatible with demands of the Convention and the jurisprudence of the Court. These general measures can at times be pragmatic ones, such as the refurbishment of prison buildings, where the Court has noted that detention conditions involved inhuman or degrading treatment. It could also be a case of increasing numbers of prison staff, when the violation refers to non-respect of the basic rights of detainees, such as the right to exercise in fresh air on a daily basis, owing to a lack of staff.

Another example: the requirement to increase the number of judges in States where lengthy legal procedures constitute a violation of the right to be judged within a reasonable time frame.

I would emphasise, because this is important, that the obligations arising from a ruling for States are obligations referring to the result and not obligations relating to means. In other words, States are compelled to achieve the result expected by the ruling, whilst preserving a certain freedom in the choice of methods in reaching it. This obligation on the result responds to the principle of subsidiarity, a principle which underpins the whole European Convention on Human Rights. In fact, it is up to the States to apply the Convention. The mechanism of Strasbourg only intervenes at a subsidiary level, in the event that States fail to meet their conventional obligations.

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Let us now look at the working methods of the Committee of Ministers in carrying out the functions conferred on them under article 46, paragraph 2 of the ECHR, monitoring the implementation by States of rulings of the Court. The Committee of Ministers sits in what is known as the ‘CM-DH’ formation (Committee of Ministers on Human Rights); it sits four times a year, for a total of 12 days. These four sessions are devoted entirely to monitoring the implementation of rulings by the Court.

Relatively straightforward cases which are carried out in a satisfactory manner are generally examined without discussion on the basis of information supplied by the defending State. It may be a case, for example, of the violation of reasonable delay in legal procedures, there being thousands of such cases.

On the other hand, other cases require extensive discussion before the Committee of Ministers can determine the measures to be taken to compel the State to carry out rulings. Inter-State cases, namely those in which the request has been made by a State or a group of States against another state, are among those requiring enhanced supervision. The same applies to what is known as ‘pilot cases’. I shan’t go into detail here, but I would just say that this is a new Court procedure which consists in identifying, in a given situation, structural loopholes or systematic shortcomings in the legal order or the practice of a State. These loopholes may give rise to numerous cases of the same kind (repetitive cases, or cloned cases). The first pilot case was the Broniovski versus Poland case, which involved a property question. If the ‘pilot ruling’ had not been delivered, there would have been a risk of seeing 80,000 similar cases brought before the Court. What is a ‘pilot ruling’? It is a ruling 106

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in principle in which the Court provides concrete indications not only on the violation of the Convention, but also on the measures which should be taken to remedy the said violation at national level. It is then up to the Committee of Ministers to see that the state, wherever possible, removes from its legislation or its practice the source of this violation and then puts in place effective measures, so that victims of a similar violation may obtain reparation at national level, thus avoiding their having to appeal to the Court of Strasbourg. Other cases of violation, which are always examined with much discussion, are those which require urgent individual measures which directly concern the applicant, for example the liberation of an applicant who has been detained arbitrarily.

Without going into all the details of this implementation process, I would say that there is a continuous dialogue between the authorities of the defending State and the Committee of Ministers, through the department for implementing rulings of the European Court of Human Rights. In principle, before a case can be registered for the first time on the agenda of the Committee of Ministers, the authorities of the defending State have to have made an assessment, in cooperation with the department for enforcing rulings, of the enforcement methods required. So there is a continuous dialogue set up between the Committee of Ministers and the State concerned. The Committee of Ministers expects governments to supply plans of action, or if the necessary action has already been taken, an action report, relative to individual and general measures. At the end of this procedure, when the Committee of Ministers is convinced that the ruling has been implemented in full, it adopts a final Resolution which places a final deadline on the examination of the case at international level.

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What means are at the disposal of the Committee of Ministers to compel States to carry out rulings? The Council of Europe has no real coercive power to compel States to carry out rulings as it has for the other obligations which apply to them because they are members of the Council of Europe. The Council of Europe is an intergovernmental organisation. We therefore depend on the loyalty of States towards their commitments.

Having said that, the Committee of Ministers has progressive means to oblige the State concerned to carry out rulings.

So the Committee of Ministers will intervene while the ruling is being monitored to express its concern or its encouragement to the State concerned to forge ahead. It can also make proposals relating to the enforcement. These interventions may take different forms, for example, statements from the Presidency, letters from the Presidency addressed to the Minister for Foreign Affairs of the State in question, top-level meetings, Statements adopted after discussions within the Committee of Ministers or even interim Resolutions which are made public. All these measures are aimed at prompting the State concerned to take the necessary measures for enforcement. Another effective measure is to adopt press releases detailing the non-enforcement of the ruling. President Poettering and Mme Trautmann have demonstrated how little States care to be condemned or to have a finger pointed at them. So, a simple press release can exert considerable pressure on the State concerned. You will appreciate that we are talking here of political pressure, pressure through the media and the pressure of public opinion.

The three measures at the disposal of the Committee of Ministers are legal in nature. The first, sometimes known as the ‘atomic bomb’ stems from article 8 of the Statute of the Council 108

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of Europe. This provision allows the Committee of Ministers to exclude from the Organisation any member who does not respect their fundamental obligations, including the obligations contained in the European Convention on Human Rights. This ‘weapon’ has never been used. But, it almost was once! At the time of the ‘Greek colonels’, the Greek authorities, having learned that a large majority was emerging within the Committee of Ministers in favour of expelling Greece from the Council of Europe, decided, rather than to confront this humiliation, to themselves denounce the Statute of the Council of Europe.

Since Protocol no. 14 came into force on 1 June this year, two new provisions should facilitate the enforcement of rulings. The first, article 46, paragraph 3 of the ECHR, henceforth allows the Committee of Ministers, when it believes that the enforcement of the final ruling is held up by a difficulty in interpreting the said ruling, to appeal to the Court, so that it may decide on the question of interpretation. The second, article 46, paragraph 4 of the ECHR, allows the Committee of Ministers henceforth to appeal to the High Court with a default action against a State which persists in its refusal to conform to a final ruling in a dispute to which it is party. This is a dramatic measure which will probably only be applied in rare cases, as an ultimo ratio. That said, the simple perspective of ‘censure’ inflicted by the Court should, in itself, prompt States to comply with their obligations.

In reality, States undertake to implement rulings but, very often, they need time. I gave you a few examples just a while ago: the refurbishment of prisons – that can’t be done in a day; amending legislation, or even the Constitution – that takes time, as parliamentary procedures are often ponderous and lengthy. I repeat, the States do really want to cooperate and implement 109

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rulings. I do however understand the frustration of the public and the media, who sometimes have the impression that procedures go on for ever. It is true that results are not immediately impressive.

As an extension to these last remarks, allow me to make some final observations to highlight some of the stumbling blocks which may get in the way of the rulings made by the Court. First of all, I believe that it is imperative for the Committee of Ministers to maintain the exclusively legal nature of the enforcement of these rulings. To assure the authority of the jurisprudence of the Court, it is imperative that enforcement be governed by clear principles, implemented in a clear and irreproachable manner, and with full impartiality. There should be no double standards, because if States had the feeling that one State was treated one way, while another was treated in another way, the whole credibility of the enforcement of the rulings, and therefore its very legitimacy, would be in question.

Another risk to the enforcement is what I would call the risk of ‘jurisdictionalising’ the enforcement. The legal approach that I have been talking about should in no way be confused with a jurisdictional approach. There is only one jurisdictional body which defines the rights and freedoms guaranteed by the Convention – the European Court of Human Rights. The competences of the Committee of Ministers are strictly limited to the requirements of enforcement. If the Committee of Ministers is unsure about an interpretation, it now has, as I have just explained, a provision which allows it to request the interpretation of a ruling from the Court. The Committee of Ministers can also expect a new ruling or a new sentence from

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the Court, which will provide sufficient clarification for it to interpret the ruling under review.

Another risk is one which I would qualify as ‘politicisation’ of the enforcement. The watchword of the enforcement department is ‘the whole enforcement, but only the enforcement’. Many cases relate to political problems, bitterly contested at national level or in other international bodies. In such situations, we cannot exclude the risk of instrumentalising the enforcement of rulings, so as to promote causes foreign to the requirements of the Convention. It is of course not a question here of disputing the legitimacy of these ‘causes’, but they should in no way be linked to the implementation of the ruling as such.

Here again, this affects the credibility of the Committee of Ministers.

Finally, the last risk that I would mention is that of a minimalist interpretation of the consequences of rulings. For example, if the Court condemns the absence of supervision of the legality of a detention and if the response of the State is to put in place a legal monitoring mechanism without granting the detainee the right to appear before the judge, the Committee of Ministers would pursue their monitoring of the ruling.

To sum up, I would say that the legally constraining nature of rulings and the supervision of their implementation by the Committee of Ministers are, in truth, the keystone of the whole control mechanism set up by the European Convention on Human Rights. What would be the point of rulings by the Court, however remarkable they are, if they remained unheeded because they were not implemented by the States? The jurisprudence of the Court would, I believe, be quite soon 111

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reduced to the role of simple recommendation by the Court to member States. It would no longer be legally binding! It is therefore absolutely essential, not only to guarantee this implementation, but to reinforce it. This was the clear message delivered by the Ministerial Conference held in February this year at Interlaken under the Swiss presidency of the Committee of Ministers. The Ministers reiterated the fundamental importance of fast and efficient implementation of rulings from the Court, to guarantee, in the long term, an efficient monitoring system instituted by this Convention.

Can this mechanism be exported to fields other than that of human rights? Could one mutatis mutandis have a system which would take its inspiration from the mechanism of the Convention in the field of human rights? These are questions which are not for me to answer now, but are there to make us think.

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Summary Jean Waline I should like to start by thanking the Consultative Council of Jewish Organisations (a non-governmental organisation founded by RenĂŠ Cassin in 1946) for having chosen Strasbourg when organising this colloquium. I would add immediately that, for me, it is the most natural choice, as Strasbourg is, at the very least, the European capital of human rights. This has been abundantly proved by the people drawn to the International Institute of Human Rights, founded in Strasbourg in 1969 by RenĂŠ Cassin, and of which I have the honour to serve as President. To give you just one illustration, the educational forum it held last July drew an audience of some 300 people, coming from around sixty countries.

I also wish to express, at the start of the proceedings, or in limine litis, to use the language of lawyers, my admiration and warmest thanks to dear Louis Bloch, delegate to the Council, who has worked tirelessly for months to organise this colloquium. I should also like to extend my thanks to Claude Weil, who has played such an important role here too.

Louis Bloch has asked me to present a summary on all that has been said during this fine and rewarding day. I am sorry to tell you that... this will truly represent a summary, with all the serious 113

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drawbacks this entails! In fact, as we are all aware, ‘good’ summaries are those which are drawn up before the event. As it happens, I was unable to do this, as the variety of communications did not lend themselves to any preconceived ideas.

However, let me first say a few words on the title of the colloquium: ‘la parole, l’écrit et l’action’. This is a magnificent theme, which will give rise to much thought. The word, as everyone knows, like the language of Aesop, is the best or the worst of things. ‘In the beginning was the Word’, as they used to say in the liturgy of the Catholic Church. But, it is also well known that words can fly and it is for that reason that they can, and should, be translated into writing, which is, incidentally, a double-edged sword. Yet even when the words have been set down in writing, nothing has been achieved: the written word has to be transformed into action. As General de Gaulle once remarked, “A man of character renders an action noble. Without him, it is merely the dismal task of a slave; thanks to him, it becomes the divine play of heroes.”

But this colloquium has a sub-title: ‘La parole, l’écrit et l’action regarding the application of international conventions and treaties relating to human rights and humanitarian law.’ The first two papers were devoted to the issue of human rights, the third to that of humanitarian law.

The issue running through these three contributions like one continuous thread is one which is fundamental to the lawyer: the effectiveness of the rule of law, or more broadly, the law itself.

Some believe that in essence, the problem relates more to the provisions of public international law – which is irrefutable – and far less to internal law. These people are either optimists or 114

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ignorant! To growing degree, the effectiveness of the rule of law is further from satisfactory under internal law than one might believe. For example, the difficulty of having legal judgements executed by administrations, or even more, the impotence of the law caused by a lack of the decrees necessary for their application. However, the question of effectiveness is of singular importance, when it comes to the question of human rights and humanitarian law.

Professor Patrick Wachsmann has, as usual, notably and brilliantly put our work in context. According to the programme devised by the organisers, he has carefully drawn a distinction between the application of Conventions and Treaties at universal and at regional levels.

My colleague, Emmanuel Decaux, was given the highly sensitive task of exposing just what is – and, I would add, what is not done at the universal level. His focus was within the framework of the United Nations, which means that the report did not cover those countries situated outside of it. Nevertheless, I should like to recall to mind that even there, we were able to identify some good examples of sanction of violations of the most elementary rights of man by the creation of some international penal jurisdiction or other (for example, for the former Yugoslavia or even, Rwanda).

Emmanuel Decaux lent emphasis to the nature of a simple ‘Declaration’, which covers the Universal Declaration of Human Rights of 1948, reprising here the words of Patrick Wachsmann, reminding us of the gulf where lawyers are concerned between a ‘Declaration’ and a ‘Treaty’. This fact was not lost on René Cassin – one of the founding fathers of the Universal Declaration – who fought, unfortunately in vain, for a genuine 115

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Treaty and not just a simple Declaration. As I have brought up the role of RenĂŠ Cassin in this matter, I should like to take the opportunity to remind you that it was he who, at the last meeting of the Commission entrusted with drafting the Declaration, proposed the vote to change its name to: Universal Declaration instead of International Declaration.

Henceforth, as Emmanuel Decaux pointed out, the actions of the United Nations can only be of a secondary nature: they can only intervene in the absence of other means of action at regional level. In addition, as there is no universal court, which means that the only recourse is to non-contentious means. He did emphasise that the most positive features within the framework of the United Nations are contained in the special mechanisms (OIT) or the two Pacts.

There is also, of course, action by the Commission on Human Rights. We are always fairly tolerant of our own, which may be natural for Emmanuel Decaux, but for my part, I am more stringent than he in terms of the actions of the Commission, if only because of its composition.

And then, there is the system, and most importantly, the experts, auditors, special rapporteurs and working groups.

In brief, I can only reiterate the conclusion by Emmanuel Decaux: all this is far from negligible, but we need to go further.

And here, for my part, I would add: but is this even possible?

I come now to the problem of the effectiveness of action by regional organisations and the excellent review which Patrick Wachsmann presented to us.

He began by reminding us that we should not forget the context in which the European Convention of Human Rights arose. It 116

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was born in the aftermath of the Second World War and all its appalling denials of the most elementary rights of human beings, and in particular, the Shoah, during which these violations were perpetrated. We must do all we can to ensure that it ‘never happens again’. In particular, he emphasised the role played here by the Congress of the European Movement of The Hague in 1948, as well as the action of Pierre-Henri Teitgen, the great lawyer, who underlined the need for a European Court. On a personal note, I would add that it would also be interesting to examine, from the point of view of the defence of human rights, the programme on liberation of the National Council for Resistance.

As we all know, the great strength of the European Convention on Human Rights lies in the mechanism for sanctions that it can impose. In 1950, it was felt important to put many precautionary measures in place, including a first stage to be passed by the European Commission for Human Rights and transmission to the Council of Ministers. Then, with the 11th Protocol, the European Court was inaugurated. We should, of course, stress the hitherto unique character of the right of individual appeal to the Court, after the possibilities of recourse under internal law have been exhausted, which have given rise to a number of inadmissible cases. Patrick Wachsmann had no difficulty in outlining just how this possibility has changed the whole of our legal system. He also emphasised the huge problems in implementing judgements made by the Court. But on this point, much progress has been made, not least due to the fear inspired in member States by the Court, with the Council of Ministers overseeing the execution of these rulings.

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Patrick Wachsmann regretted to note that the European regional model for protecting human rights has scarcely prospered.

There is, of course, the Inter-American Court, charged with applying and interpreting the provisions of the American Convention relating to human rights. This makes for very interesting rulings, but, most unfortunately, it cannot be accessed by individuals. As for the African Court, which is responsible for overseeing the application of the African Charter for Human Rights, the protocol which founded the organisation only came into effect very recently, making it too soon to make any judgement.

Mme Doucet, representative of the International Committee of the Red Cross, has rightly dwelt on the special and therefore, autonomous, nature of humanitarian international law with respect to the international law of human rights. She has emphasised how challenging this was, and that the challenges were often well met. Humanitarian international law is a law of protection, which can be applied in times of armed conflict to the Geneva Convention (in particular, art. 3 of the latter), supplemented by two protocols, to which 194 States are party.

For myself, I must say how essential I find the protection which is provided by this Convention: for example, Jewish prisoners of war interned in Oflags and Stalags during the Second World War, benefited from it.

For good reason, Mme Doucet has asked the basic question as to whether humanitarian law has been able to adapt itself to modern situations. This concerns, among others, the issue of the war on terrorism. But it seems to me that if terrorism were to accept the legislation of humanitarian law, then it wouldn’t be terrorism! Mme Doucet also stressed the importance of 118

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preventive action by enshrining humanitarian law in national legislation. Finally, it is essential that the most serious infringements should be subject to penal responsibility.

Mme Catherine Trautmann, an important representative of the European Parliament, has shared her thoughts with us. She has reminded us that the European Parliament associates itself closely with the defence of Human Rights, as they appear in the Charter for Fundamental Rights of the European Union. She stated that on this subject, there is no conflict with the Council of Europe, an opinion which I do not totally share, because I feel that it would have been more expedient and sufficient for the Union to adhere to the European Convention, even if it means supplementing it on some points, for example, social rights. Mme Trautmann underlined the progress made regarding the competence and authority of the European Parliament by the work of the Treaty of Lisbon and the power of ‘codecision’.

Your reporter is willing to acknowledge this formally, but wishes to add that a ‘co-decision’ power is really a strict minimum for a legislator, especially as the Commission plays a legislative, as well as an executive, role. She also spoke about the role played by the European Parliament in the defence of public rights and liberties in written texts, as for example, the Directive on telecommunications. This point should really be emphasised because, for my part, I believe it is possibly the most effective weapon wielded by the European Parliament in the matter of the defence of human rights. By minutely examining the draft directives placed before it, the parliament is able to stand in the first line of battle for human rights and even take the initiative on the subject.

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In presenting his report on the monitoring system carried out by the European Court of Human Rights, M. Philippe Boillat, Director General of Human Rights and Legal Affairs at the Council of Europe, made the task of your summary reporter somewhat easier, since he provided such a detailed and exhaustive analysis. He told us that this system (unfortunately, I would say) has no peer. For this reason, I see no need to review the monitoring methods used by the Court so as not to dwell on the number of inadmissible cases declared thus, because the internal appeal stages had not been exhausted, and also because in some ways, the Court is a victim of its own success. Indeed, there has been a steep rise in the number of outstanding cases awaiting judgement. At European level, the speed of justice is one aspect of its effectiveness.

M. Boillat was good enough not to marginalise the stumbling blocks which can threaten the European Court: decisions which, at the least, may lead to debate, the risk of politicisation or the temptation of ‘legalism’ (I am thinking, for example, of the affair of the crucifix in Italian schools, still pending before the High Court, which does not seem, as it happens, to mistake speed for haste. Or yet again, the dispute of the Government Commissioner before the French administrative courts of law).

As far as I am concerned, I believe we could also question ourselves on the admission of dissident opinions in the judgements of the Court, not because they are contrary to French legal tradition, but because it seems to me, their very impossibility would compel members of the courts of law to deliberate further so as to arrive at a solution acceptable to the majority.

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For me, the conclusion I draw from the conclusion is a most comforting one: yes, Strasbourg is a fortunate location for the defence of human rights and, yes, we are indeed lucky to live in States which are subject to the jurisdiction of the Court!

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Contributors Louis Bloch is French and a graduate of the Faculty of Law in Strasbourg. He practised as a lawyer in Strasbourg for over 40 years and is now an honourary lawyer. He is the representative of the CCJO at the Council of Europe and the European Parliament, and publishes many articles on a wide range of subjects concerning human rights. He also writes poetry.

Philippe Boillat is Swiss, a graduate of the Faculty of Law in Lausanne. He has made a career in the Federal Office of Justice in Berne. He is a representative of the Swiss Government at the European Court of Human Rights and on the United Nations Committee Against Torture. At the moment he is Director General of the Human Rights and Legal Affairs of the Council of Europe, and the author of numerous articles and works on human rights.

Prof. Emmanuel Decaux is a graduate of the Institute for political studies of Paris (Sciences Po), Doctor of Law from the University Panthéon-Assas Paris II and “agrégé” of public law.

He is professor at the University Pantheon-Assas Paris II since 1999, director of the Center for Research on Human Rights and 123

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Humanitarian Law (CRDH) and editor of the electronic review Droits Fondamentaux. Prof. Decaux published a handbook on Droit international public (6ème ed, Dalloz, Paris, 2008), edited Les Nations Unies et les droits de l’homme, enjeux et défis d’une réforme (Pedone, Paris, 2006) and L’OSCE, trente ans après l’Acte final de Helsinki, bilan et perspectives de la nouvelle Europe (under press). He is also coordinating a collective commentary of the International Covenant on Civil and Political Rights. Prof. Decaux is a member of the new Consultative Committee of the Human Rights Council for a third year mandate (2008-2010), after being a member of the UN SubCommission on human rights, its working group on communications, and of the working group on contemporary forms of slavery. He has been also special rapporteur on the universal application of human rights treaties and rapporteur on the administration of justice by military courts. Prof. Decaux is the author of numerous articles on international organizations, settlement of disputes and human rights.

Ghislaine Doucet is a Doctor of Law specialising in international human rights and penal law. She is a legal adviser for the French Delegation of the CICR, and a graduate of the Hague International Law Academy, where she wrote her doctoral thesis on terrorism. She has, amongst other things, negotiated texts for victims of terrorism in times of civil war, and been adviser to various cabinet ministers between 1989 and 1993. In her capacity as legal adviser to the Association SO5 Paris she has followed her research work for improving the rights of victims of terrorism through the UNOOC. In 2003 she produced a collective work on terrorism victims and responsibilities in international penal law, which has been 124

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translated into four languages. She has also written many articles, and worked on serious breaches of international human rights law.

Clemens Nathan is Chairman of the CCJO which is represented at the Coucnil of Europe, UNESCO, the United Nations and the European Parliament. Clemens Nathan worked under RenĂŠ Cassin when he was President of the Alliance Insraelite Universelle and carried on his tradition of human rights, not only for Jewish people but for others. He is Council Member Britain in Europe (formerly the Bow Group) and a Board Member Conference on Jewish Material Claims, Chairman Centre for Jewish Christian Relations, Cambridge (Honorary Fellow 2003), and Chairman of the Clemens Nathan Research Centre. He has spoken and written on a wide range of topics, and in 2007 published his major work, The Changing Face of Religion and Human Rights.

Hans-Gert Poettering is one of six MEPs to have served continuously in the European Parliament since the first direct elections in 1979. He studied law, politics and history at the universities of Bonn and Geneva, as well as at Columbia University in New York. He obtained his doctorate in 1974, was a research assistant, and then was appointed lecturer at the University of Osnabrueck in 1989. He has been a member of the European Parliament for the Osnabrueck, Emsland, Ostfriesland region since 1979, Chairman of the European Parliament Subcommittee on Security and Defence, 1984-1994, and Vice-Chairman of the EPP Group in the European Parliament, 1994-1999; Chairman of the Europa-Union Deutschland, 1997-1999; Chairman of the EPP-ED Group in 125

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the European Parliament (re-elected after the European elections of July 2004), and Vice-Chairman of the European Peoples’ Party. He is currently Director of the Konrad Adenauer Stiftung.

Catherine Trautmann has been a Member of the European Parliament for the Party of European Socialists (PES, now part of S&D group) since 2004, and had already been seated from 1989 to 1994. She is a substitute member of the Industry, Research and Energy Committee as well as a full member of the Fisheries Committee. She is also Head of the French Socialist Delegation in the European Parliament. She studied theology in Strasbourg specialising in the history of religion as well as Coptic language and literature. During her political career she has been a member of the French parliament (1986 to 1988), Secretary of State for the Elderly and Disabled (1988) as well as president of the Inter-Ministerial Working Party on (Drug) Addiction (1988 to 1989). From 1989 to 1997 as well as from 2000 to 2001 she was Mayoress of Strasbourg. She stepped down from office in 1997 when the Prime Minister Lionel Jospin appointed her as Minister of Culture and Communications (until 2000) as well as government spokeswoman (until 1998). Since 2000 she has been a member of the French party ‘Bureau National’. She is currently a member of Strasbourg’s city council as well as Second Vice President of Strasbourg’s urban community, in charge of university and economic development. She is also a Chevalier de la Légion d’Honneur, Commandeur des Arts et des Lettres.

Patrich Wachsmann is Professor of law at the Université Robert Schuman de Strasbourg, Director of Research Centre

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administrative and financial unit associated with CNRS (1994).

Jean Waline is an associate of the Faculties of Law, former Chairman and Professor Emeritus at the University of Strasbourg. With a prestigous academic law and political career, Jean Waline has been Chairman of the International Institute of Human Rights since 2005 and held senior positions in Strasbourg government since 1988. He has published widely on administrative law.

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Announcement: CONSULTATIVE COUNCIL OF JEWISH ORGANISTIONS “Using the experience of the Jewish people to promote the human rights of all peoples” Mr. Clemens N. Nathan, Chairman of the CCJO, Maitre Louis Bloch, CCJO delegate to the Council of Europe, have pleasure in inviting you to participate in a colloquium on “La parole, l’écrit et l’action” which will be held on Monday 6 September 2010 from 9 am to 6 pm at the Josephine Pavilion (Orangerie Park) in Strasbourg.

Eminent professors of international law, President Hans-Gert Poettering and Mme Catherine Trautmann, Members of the European Parliament and key figures in European institutions, will address us on the issue under discussion in the attached paper: how to compel a State to uphold the commitments it has made with respect to Human Rights and Humanitarian Law. The session will close with a reception given by the Mayor of the City of Strasbourg.

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Convention for the Protection of Human Rights and Fundamental Freedoms, as Amended by Protocols No 11 and 14 Rome, 4.11.1950 The governments signatory hereto, being members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared; Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms; Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend; Being resolved, as the governments of European countries which are like minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration, Have agreed as follows: Article 1 – Obligation to respect human rights The High Contracting Parties shall secure to everyone within their 129

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jurisdiction the rights and freedoms defined in Section I of this Convention.

Section I – Rights and freedoms Article 2 – Right to life 1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a

in defence of any person from unlawful violence;

b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3 – Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 – Prohibition of slavery and forced labour 1 No one shall be held in slavery or servitude.

2 No one shall be required to perform forced or compulsory labour.

3 For the purpose of this article the term “forced or compulsory labour” shall not include: 130

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a any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; b any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; c any service exacted in case of an emergency or calamity threatening the life or well being of the community; d any work or service which forms part of normal civic obligations.

Article 5 – Right to liberty and security 1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: a

the lawful detention of a person after conviction by a competent

court; b the lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; c the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or 131

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drug addicts or vagrants; f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5 Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Article 6 – Right to a fair trial 1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

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2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3 Everyone charged with a criminal offence has the following minimum rights: a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b to have adequate time and facilities for the preparation of his defence; c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 7 – No punishment without law 1 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2 This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 8 – Right to respect for private and family life 133

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1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 – Freedom of thought, conscience and religion 1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression 1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the 134

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disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association 1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 12 – Right to marry Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 13 – Right to an effective remedy Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Article 14 – Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

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Article 15 – Derogation in time of emergency 1 In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3 Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

Article 16 – Restrictions on political activity of aliens Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

Article 17 – Prohibition of abuse of rights Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Article 18 – Limitation on use of restrictions on rights The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

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Section II – European Court of Human Rights Article 19 – Establishment of the Court To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights, hereinafter referred to as "the Court". It shall function on a permanent basis.

Article 20 – Number of judges The Court shall consist of a number of judges equal to that of the High Contracting Parties.

Article 21 – Criteria for office 1 The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence.

2 The judges shall sit on the Court in their individual capacity.

3 During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court.

Article 22 – Election of judges The judges shall be elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting Party.

Article 23 – Terms of office and dismissal 1 The judges shall be elected for a period of nine years. They may not be re-elected.

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2 The terms of office of judges shall expire when they reach the age of 70.

3 The judges shall hold office until replaced. They shall, however, continue to deal with such cases as they already have under consideration.

4 No judge may be dismissed from office unless the other judges decide by a majority of two-thirds that that judge has ceased to fulfil the required conditions.

Article 24 – Registry and rapporteurs 2 1 The Court shall have a registry, the functions and organisation of which shall be laid down in the rules of the Court.

2 When sitting in a single-judge formation, the Court shall be assisted by rapporteurs who shall function under the authority of the President of the Court. They shall form part of the Court’s registry.

Article 25 – Plenary Court The plenary Court shall a elect its President and one or two Vice-Presidents for a period of three years; they may be re-elected; b set up Chambers, constituted for a fixed period of time; c elect the Presidents of the Chambers of the Court; they may be re-elected; d adopt the rules of the Court; e

elect the Registrar and one or more Deputy Registrars;

f

make any request under Article 26, paragraph 2.

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Article 26 – Single-judge formation, committees, Chambers and Grand Chamber 1 1 To consider cases brought before it, the Court shall sit in a singlejudge formation, in committees of three judges, in Chambers of seven judges and in a Grand Chamber of seventeen judges. The Court’s Chambers shall set up committees for a fixed period of time.

2 At the request of the plenary Court, the Committee of Ministers may, by a unanimous decision and for a fixed period, reduce to five the number of judges of the Chambers.

3 When sitting as a single judge, a judge shall not examine any application against the High Contracting Party in respect of which that judge has been elected.

4 There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge.

5 The Grand Chamber shall also include the President of the Court, the Vice-Presidents, the Presidents of the Chambers and other judges chosen in accordance with the rules of the Court. When a case is referred to the Grand Chamber under Article 43, no judge from the Chamber which rendered the judgment shall sit in the Grand Chamber, with the exception of the President of the Chamber and the judge who sat in respect of the High Contracting Party concerned.

Article 27 – Competence of single judges 1 A single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination.

2 The decision shall be final.

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3 If the single judge does not declare an application inadmissible or strike it out, that judge shall forward it to a committee or to a Chamber for further examination.

Article 28 – Competence of committees 1 In respect of an application submitted under Article 34, a committee may, by a unanimous vote, a declare it inadmissible or strike it out of its list of cases, where such decision can be taken without further examination; or b declare it admissible and render at the same time a judgment on the merits, if the underlying question in the case, concerning the interpretation or the application of the Convention or the Protocols thereto, is already the subject of well-established case-law of the Court.

2 Decisions and judgments under paragraph 1 shall be final.

3 If the judge elected in respect of the High Contracting Party concerned is not a member of the committee, the committee may at any stage of the proceedings invite that judge to take the place of one of the members of the committee, having regard to all relevant factors, including whether that Party has contested the application of the procedure under paragraph 1.b.

Article 29 – Decisions by Chambers on admissibility and merits 1 If no decision is taken under Article 27 or 28, or no judgment rendered under Article 28, a Chamber shall decide on the admissibility and merits of individual applications submitted under Article 34. The decision on admissibility may be taken separately.

2 A Chamber shall decide on the admissibility and merits of inter-State applications submitted under Article 33. The decision on admissibility shall be taken separately unless the Court, in exceptional cases, decides otherwise.

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Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.

Article 31 – Powers of the Grand Chamber The Grand Chamber shall a determine applications submitted either under Article 33 or Article 34 when a Chamber has relinquished jurisdiction under Article 30 or when the case has been referred to it under Article 43; b decide on issues referred to the Court by the Committee of Ministers in accordance with Article 46, paragraph 4; and c

consider requests for advisory opinions submitted under Article

47.

Article 32 – Jurisdiction of the Court 1 1 The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.

2 In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.

Article 33 – Inter-State cases Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party.

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The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

Article 35 – Admissibility criteria 1 1 The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

2 The Court shall not deal with any application submitted under Article 34 that a

is anonymous; or

b is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.

3 The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that : a the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or b the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

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4 The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

Article 36 – Third party intervention 1 In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.

2 The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.

3 In all cases before a Chamber or the Grand Chamber, the Council of Europe Commissioner for Human Rights may submit written comments and take part in hearings.

Article 37 – Striking out applications 1 The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that a

the applicant does not intend to pursue his application; or

b the matter has been resolved; or c for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.

2 The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.

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Article 38 – Examination of the case The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.

Article 39 – Friendly settlements 1 At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.

2 Proceedings conducted under paragraph 1 shall be confidential.

3 If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.

4 This decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision.

Article 40 – Public hearings and access to documents 1 Hearings shall be in public unless the Court in exceptional circumstances decides otherwise.

2 Documents deposited with the Registrar shall be accessible to the public unless the President of the Court decides otherwise.

Article 41 – Just satisfaction If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

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Article 42 – Judgments of Chambers Judgments of Chambers shall become final in accordance with the provisions of Article 44, paragraph 2.

Article 43 – Referral to the Grand Chamber 1 Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

2 A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.

3 If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

Article 44 – Final judgments 1 The judgment of the Grand Chamber shall be final.

2 The judgment of a Chamber shall become final a when the parties declare that they will not request that the case be referred to the Grand Chamber; or b three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or c when the panel of the Grand Chamber rejects the request to refer under Article 43.

3 The final judgment shall be published.

Article 45 – Reasons for judgments and decisions 145

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1 Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.

2 If a judgment does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

Article 46 – Binding force and execution of judgments 1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

3 If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the Committee.

4 If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

5 If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.

Article 47 – Advisory opinions 1 The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto.

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2 Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention.

3 Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the Committee.

Article 48 – Advisory jurisdiction of the Court The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its competence as defined in Article 47.

Article 49 – Reasons for advisory opinions 1 Reasons shall be given for advisory opinions of the Court.

2 If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

3 Advisory opinions of the Court shall be communicated to the Committee of Ministers.

Article 50 – Expenditure on the Court The expenditure on the Court shall be borne by the Council of Europe.

Article 51 – Privileges and immunities of judges The judges shall be entitled, during the exercise of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the 147

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Council of Europe and in the agreements made thereunder.

Section III – Miscellaneous provisions Article 52 – Inquiries by the Secretary General On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.

Article 53 – Safeguard for existing human rights Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.

Article 54 – Powers of the Committee of Ministers Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers by the Statute of the Council of Europe.

Article 55 – Exclusion of other means of dispute settlement The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.

Article 56 – Territorial application 1 Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.

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2 The Convention shall extend to the territory or territories named in the notification as from the thirtieth day after the receipt of this notification by the Secretary General of the Council of Europe.

3 The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements.

4 Any State which has made a declaration in accordance with paragraph 1 of this article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Court to receive applications from individuals, nongovernmental organisations or groups of individuals as provided by Article 34 of the Convention.

Article 57 – Reservations 1 Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this article.

2 Any reservation made under this article shall contain a brief statement of the law concerned.

Article 58 – Denunciation 1 A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months' notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties.

2 Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the 149

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denunciation became effective.

3 Any High Contracting Party which shall cease to be a member of the Council of Europe shall cease to be a Party to this Convention under the same conditions.

4 The Convention may be denounced in accordance with the provisions of the preceding paragraphs in respect of any territory to which it has been declared to extend under the terms of Article 56.

Article 59 – Signature and ratification 1 This Convention shall be open to the signature of the members of the Council of Europe. It shall be ratified. Ratifications shall be deposited with the Secretary General of the Council of Europe.

2 The European Union may accede to this Convention.

3 The present Convention shall come into force after the deposit of ten instruments of ratification.

4 As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the deposit of its instrument of ratification.

5 The Secretary General of the Council of Europe shall notify all the members of the Council of Europe of the entry into force of the Convention, the names of the High Contracting Parties who have ratified it, and the deposit of all instruments of ratification which may be effected subsequently.

Done at Rome this 4th day of November 1950, in English and French, both texts being equally authentic, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General shall transmit certified copies to each of the signatories.

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