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Moving Forward on the Development of Minimum Humanitarian Standards

Published online by Cambridge University Press:  27 February 2017

David Petrasek
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Extract

Regular readers of this Journal will be familiar with the idea of developing a set of minimum humanitarian standards to provide greater protection of human rights in situations of internal conflict. The idea was first put forward in 1983 by Professor Theodor Meron as both a necessary and an effective means of closing the gap in legal protection that exists in internal conflicts that fall outside the scope of applicability of international humanitarian law, and where human rights norms might be insufficient. The idea became more concrete in 1990 with the adoption of the Declaration on Minimum Humanitarian Standards in Turku/Åbo, Finland, now often referred to as the “Turku Declaration,” by a group of experts convened by the Institute for Human Rights at Abo Akademi University.

Type
Current Developments
Information
American Journal of International Law , Volume 92 , Issue 3 , July 1998 , pp. 557 - 563
Copyright
Copyright © American Society of International Law 1998

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References

1 See, in particular, Theodor, Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and the Need far a New Instrument , 77 AJIL 589 (1983)Google Scholar; Theodor, Meron & Allan, Rosas, A Declaration of Minimum Humanitarian Standards , 85 AJIL 375 (1991)Google Scholar; and Asbjørn, Eide, Allan, Rosas & Theodor, Meron, Combating Lawlessness in Gray Zone Conflicts Through Minimum Humanitarian Standards , 89 AJIL 215 (1995)Google Scholar.

2 The Turku Declaration was published in 89 AJIL 215 (1995).

3 For the report, see Analytical report of the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21, UN Doc. E/CN.4/1998/87 & Add.1. For the resolution, see Comm’n on Human Rights [CHR] Res. 1998/29.

4 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts.

5 At the universal level, derogation provisions are found in Article 4 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 [hereinafter ICCPR]; and at the regional level in Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221, and Article 27 of the American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123.

6 See N. Questiaux, Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, UN Doc. E/CN.4/Sub.2/1982/15. The special rapporteur, Leandro Despouy, was appointed in 1985 and reported annually to the Sub-Commission until 1997, providing both analytical studies and an annual list of states that had proclaimed, extended or terminated a state of emergency. See his final report for a comprehensive survey of the work undertaken and his various recommendations, UN Doc. E/CN.4/Sub.2/1997/19.

7 These comments are set out in UN Docs. E/CN.4/1996/80, E/CN.4/1996/80/Adds.1–3; and E/CN.4/ 1997/77, E/CN.4/1997/77/Adds.1–2.

8 The report of the Cape Town workshop was made available to the Commission on Human Rights at its 1997 session and is reproduced in UN Doc. E/CN.4/1997/77/Add.1.

9 See, e.g., the written statement submitted by the Friends World Committee for Consultation (Quakers) set out in UN Doc. E/CN.4/1997/77, at 15.

10 See, e.g., Peter, H. Kooijmans, In the Shadowland Between Civil War and Civil Strife: Some Reflections on the Standard-Setting Process , in Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven 225 (1991)Google Scholar; and Anna-Lena, Svensson-McCarthy, Minimum Humanitarian Standards: From Cape Town Towards the Future , Rev. Int’l Comm’n Jurists, Dec. 1997, at 1 Google Scholar.

11 Interestingly, one proposal to extend the list of nonderogable rights was explicitly rejected by the Human Rights Committee for precisely these reasons. The UN Sub-Commission had proposed that Articles 9(3), 9(4) and 14 of the ICCPR be added to the list of nonderogable rights set out in Article 4(2) of that instrument by means of the adoption of an optional protocol. In advising against the proposal, the Human Rights Committee (charged with monitoring the application of the ICCPR) made the point that

there is a considerable risk that the proposed draft third optional protocol might implicitly invite States parties to feel free to derogate from the provisions of article 9 of the Covenant during states of emergency if they do not ratify the proposed optional protocol. Thus the protocol might have the undesirable effect of diminishing the protection of detained persons during states of emergency.

Annual Report of the Human Rights Committee, UN GAOR, 49th Sess., Supp. No. 40, at 120, UN Doc. A/ 49/40 (1994).

12 CHR Res. 1998/29, supra note 3.

13 Analytical report of the Secretary-General, supra note 3, at 27.

14 See UN Doc. E/CN.4/1998/87/Add.1.