HUMAN RIGHTS AND INTERNATIONAL ORGANISATIONS

Human Rights question came up on the international political forum in

70s. Human Rights policy which has been developed at the time of President
Carter against socialist block, known as Carter Doctrine was a policy which
aimed at exploiting human rights for political goals only. It was an insincere and
double standard policy with no real content. In fact the member countries of
socialist block were severely criticized for their commitments under the third
basket of the Conference for the Security and Cooperation in Europe, while pro-
western leaders of Third world countries were committing grave human right
violations, and continuing to receive economic and technical assistance from the
USA. Had it been insincere, this policy turned out to be one of the important
dimensions of international relations. In fact those critics addressed to the
socialist countries in 70s, started to be directed to other countries’ human right
violations as well.
Non-governmental organizations played an important role in this
development. These organizations which had efficient activities in the
international scale, with Amnesty International at the head, started to affect
foreign policy decisions in Western countries. At this stage the international law
showed up in this area, in the United Nations first, in Council of Europe and
Organization of American States later. An autonomous branch of law shaped up
as the law of human rights. States which found themselves bound through
treaties and conventions were from now on under the control of these
international legal instruments. Thus respect to human rights became an
obligation independent of politics. The best example to this is the control
mechanism established by the European Convention for Respect to the Human
Rights and Fundamental Freedoms. On the other hand, decisions of international

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instances, like, to start with the General Assembly of the United Nations,
Parliamentary Assembly of the European Council and European Parliament (of
the European Communities), though they were not binding legally, started to be
determining on the political and ideological choices. Brief, shape of political
and legal organization in a State and relations of the State with its citizens were
no more issues of domestic jurisdiction, and interventions of other States and
non-governmental organizations in that avenue were no more considered
intervention to domestic affairs1.

I. WHAT ARE HUMAN RIGHTS?

Human rights are rights inherent to all human beings, whatever our
nationality, place of residence, sex, national or ethnic origin, color, religion,
language, or any other status. We are equally entitled to our human rights
without discrimination.
Human beings have special features and natural capabilities other
creatures do not have. The idea is that persons should behave towards each other
so that every body can realize these features and capabilities he or she has
because he or she is a human being. In fact the majority of persons (1) does not
behave in this way or (2) hamper the circumstances necessary for the realization
and development of these features and capabilities. We can say that human
rights are those rights which bring about these two requirements: all people (1)
must be able to realize special features and natural capabilities which are
inherent to him as a human being and (2) can claim that the circumstances
necessary for the realization and development of these features and capabilities
should be given to every body.2

1
Bkn. Baskın Oran Türk Dış Politikası, iletişim yayınları, cilt II, s.188-191
2
Ionna Kucuradi, İnsan Hakları kavramları ve sorunları, Türkiye Felsefe Kurumu, 2007, s.57

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 We call human dignity the consciousness of the human being of his
inherent values differentiating him from other living creatures. This
consciousness necessitates to those people who have this consciousness to
behave adequately to all other human beings, those who are not conscious of
this fact included. We may say that this consciousness is our sole common
identity. Different human rights are consequence of what the human dignity
necessitates in practice. They require every body to behave in a manner to
protect human values. That is why they are universal norms. They are different
from other human values which change from human groups to other human
groups (according cultural, religious, political etc values) and we call ‘cultural
values’. At that point we can discuss the notion of human dignity and the notion
of honor. Honor refers to the respect of the worth or the assumed worth of a
person. This worth may due to the virtues of this person or may depend on the
cultural values of the society he or she lives in. Consequently, honor is
individual or valid for a group of persons while human dignity comes from the
human nature and is universal. Here we can give the example of the attitude of
Iraqis face to tortures by US solders. They said they would accept to be put
under electric shocks as it was the case under Saddam regime rather then to be
obliged to stay naked before a wall, because the first does not touch their honor
while the second does. Another human group may think differently, due their
social, cultural or ethic values. In fact both acts are against human dignity,
whatever are the groups the victims belong to.
I have to draw your attention on the notion of Pride which is a feeling of
a person in relation with himself. A person conscious of his human dignity,
faced with a denigrating act can not feel denigrated, because he knows his or her
real values being part of humanity, but a person who is not conscious can feel
denigrated, face to an act violating the image he makes of himself (pride), even
when he deserves such an act.

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 As you will understand from the explanations above, the basic character
of human rights which distinguishes them from other individual or cultural
rights is their universality. This principle is the cornerstone of international
human rights law. It is emphasized first in the Universal Declaration on Human
Rights in 1948, has been reiterated in numerous international human rights
conventions, declarations, and resolutions. They are inalienable. They should
not be taken away, except some special conditions and according due process.
(For example, the right to liberty may be restricted if a person is found guilty of
a crime by a court of law.) Non- discrimination is a cross-cutting principle in
international human rights law. The principle applies to every one in relation to
all human rights and freedoms and it prohibits discrimination on the basis of a
list of non-exhausted categories such sex, race, color and so an. This principle is
complemented by the principle of equality: ‘All human beings are born free and
equal in dignity and rights.’3
All these rights are interrelated, interdependent and indivisible. The
improvement of one right facilitates advancement of the others. Likewise, the
deprivation of one right adversely affects the others.
Human rights entail both rights and obligations. States assume obligations
and duties under international law to protect, to respect and to fulfill human
rights. The obligation to respect means that States must refrain from
interfering with or curtailing the enjoyment of human rights. The obligation to
protect requires states to protect individuals and groups against human right
abuses. The obligation to fulfill means that States must take positive action to
facilitate the enjoyment of basic human rights. At the individual level, while we
are entitled our human rights, we should also respect the human rights of
others.4

II. STATES AND HUMAN RIGHTS

3
Universal Declarataion of Human rights,Article 1.
4
UN. www.oneni/org/EN/Pages/WhatareHumanRights.aspx

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 Who can protect or violate the human rights? The answer is: persons.
Who can prevent these persons to violate human rights of others? At this point
we have to examine the notion of ‘State’.
What is ‘State’? Since the First World War State used to be seen as a
political institution, a political entity independent of those people who form it,
an a political sovereign entity which oppresses its citizens, which interferes
with all what its citizens are doing, restricting their freedoms, or protecting its
citizens, but dictating its will to them.
But is that definition of the State is a right one? This definition of State is
not compatible with democracy. If we look at the notion of State from the
human rights angle, State is an institution founded by human beings and been so
can not be considered apart from them. In other words, State is a human
institution born from the natural proprieties of the human being and been so, its
aims and functions should be to convert social relations which come up by
themselves among individuals leaving together in groups, in legal relations
based on justice and to exploit all which are public (which means belonging to
all and every one at the same time in the group.) According to this new
understanding of State, State is a human institution, the raison d’être of which is
to protect its citizens one from the others and to manage the public affairs with
justice. From that point of view State is an institution of law.5 Its aims will be to
guarantee basic (human) rights of its citizens.
At the start I stated that these basic rights can be protected or violated by
persons. If that is true, what is the role of the State in protection or violation of
basic rights? Normally we can talk about the protection of these rights only
when o if they are under threat or violated. State should put under legal
guarantee (by the Constitution, by laws) that human rights requirements can not
be neglected what the circumstances may be, and can not be restricted in any

5
Ayrıntı için bkz.Kuçuradi, age. S.42-53

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condition. State should make the relevant laws function in order to curtail all
interventions to individuals or groups in the realization and development of their
human capabilities.
In fact restrictions to these rights on some conditions are subject of long
discussions. Restrictions are generally to prevent abuses of them which are
frequent. Some thinkers claim that abuses can be prevented without restrictions,
first by giving adequate education either to the citizens or to the state officers on
the matter of human rights.
Sometimes violation of human rights comes from state officers either as a
part of policies followed by the high authorities of the State or directly as an
abuse of power by these officers. For the first, we can say that State itself is the
author of the violations and only international solidarity and non governmental
civil organizations can exercise pressings on the state authorities to remedy the
situation. For the second, it is again due to the state itself to take necessary
measures to control its officers, to educate them on the human right questions
and to stop these atrocities.
Other kind of individual rights are related to requirements relative to the
preconditions of the realization and the development of natural human
capabilities, like right to health, to education. These rights are also rights every
human being has only because he or she is a human being. The difference with
others is that this kind of rights (rights to retirement, to establish trade unions;
some social, economic and political rights) can only be protected by the
intermediary of some other institutions. They are protected indirectly. To protect
them means to realize them. If the State does not make this rights available,
majority of its citizens are deprived of the possibility to develop their human
capabilities. These group of rights are individual rights and not human rights
(they are not universal, they change from one country to the other), because they
are recognized in the limits of the possibilities of the state. Important is these

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limits should be drawn according basic human rights and applied equally to all
the citizens.
Another matter related directly to human rights, is terrorism. In fact
terrorism whatever is its origins, is a kind of action neglecting human rights. It
is a method to make some demands prevail by use of terror. It is use of violence.
(All use of violence is not terrorism. What a mother who burn some parts of the
body of her child, or what a man who violate and kill a child commits is use of
violence, but not terrorism.) Terrorism is used today (1)by some political groups
to each others (2) by some States to other States, (3)by some groups to some
States, and (4)by the ruling groups in some states to other groups in the country.
It is an instrument sometimes to make authorities accept some claims or to
obtain some rights or some advantages or to make a cause known by the local or
world public opinion and it ends by killing innocent people without hesitation.
Terrorism does not aim people it gives harm. An other particularity of terrorism
is that it does not manifest in inter-persons relations, but in the relations between
organizations. Last, terrorism is not one individual act, but systematic acts one
after other.
Struggle against terrorism is a duty of the State as well. Some thinkers are
saying that the raison why terrorism exists is that there is no other way to
overcome State which is ‘a political sovereign entity by itself’. This means that
if the State is taken up as an organization created and controlled by the citizens,
claims that push some people to terrorist acts would be more easily understood
by these citizens. Personally I think it is not more than a theory.

III. DEVELOPMENTS IN THE FİELD OF HUMAN RİGHTS.

Let us give a look now at how the idea of human rights has developed
before taking up some of these rights individually.
Out of the wreckage of World War II, the world’s nations were
determined to create an international system of laws and treaties to prevent the

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violent excesses of the recent past. UN Charter, Article 1(3) states that the
Organization purpose is ‘ to achieve international cooperation in solving
international problems of economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex ,language, or
religion.’ Thus the Charter made the human rights an international concern,
rather than strictly domestic one. Gradually the UN was provided with legal
authority to codify these rights.
First comprehensive human right instrument issued by the UN in 1948:
UNİVERSAL DECLARATİON OF HUMAN RİGHTS, adopted by the
General Assembly of the UN. We have to note that this Universal declaration is
one of great documents of human liberty, holding place along side Magna
Carta, France’s Declaration of the Rights of Man and the Citizen, and
America’s Declaration of Independence. However the Universal Declaration
was not a treaty and did not have binding force. General Assembly adopted in
1966 the International Covenant on Economic, Social and Cultural Rights
and the International Covenant on Civil and Political Rights and OPTIONAL
Protocols to the Covenant on Civil and Political Rights in 1966 and 1989 to
give the rights contained in the Declaration force of law. Together with the
Charter of the UN all these documents are known as The International Bill of
Human Rights.6
The Universal Declaration divides rights into two:

6
Covenant is a signed agreement, convention or promise between two or more parties by which the parties
pledge themselves to acourse of action and to refrain from other courses of action.
Convention is an agreement among large number of States, more usealy in some technical fields.
Treaty is an agreement between two or more States, construed as to give full force and effect to all its
constituent parts
Protocol is a brief addition to a treaty,convention or covenant
Accord is a politically binding agreement among States and its application is made through diplomatic rather
juridical maens.
Act is an expression of will or purpose, something done volunrtarily by a State or person.
Declarations, Recommandatios, Principles, Guidelines, Codes of Conduct are not binding documents but
statement of intent, usually aimed at specific fields.

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 1. Human rights : right to life, liberty, security of persons, the prohibition

of slavery, torture and cruel, inhuman or degrading treatment, and such

due process and equal protection provisions as the right not to be
subject to arbitrary arrest, detention, or forced exile, a presumption of
innocence until proven guilty, and strictures against the application of
ex post facto laws and penalties, privacy, ownership of property rights,
free speech, religion, assembly and freedom of movement, freedom of
opinion and expression.
2. Social rights: right to take part in the government of his country

through free and fair elections, economic, social and cultural rights,
including social security (in accordance with the resources of each
State), right to work, free choice of an employment, a reasonable
limitation of working hours, a standard of living adequate for the
health and well being of himself and of his family, education,
participation to cultural life. ‘Every one is entitled to a social and
international order in which the rights and freedoms set forth in this
declaration can be fully realized.
As I have said earlier the declaration is not a binding document but give us a
clear idea of the approach of the majority of the UN member countries on the
human right issues. That is why we shall find the same rights and more then
them in other UN binding documents.
Before entering into these documents I must draw your attention that the UN
is not the only organization which deals with the issue. Council of Europe
adopted in 1950 the Convention for the Protection of Human Rights and
Fundamental Freedoms, followed later by a number of conventions, protocols,
declarations and recommendations. Apart these two organizations the
Organization for Security and Cooperation in Europe (OSCE) adopted
number of documents on this issue. Here we have maybe to remember why and
how the Conference on Security and Cooperation in Europe (CSCE) held in

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order to understand better the political significance of the resolutions adopted in
this last framework. Normally all the participants of the Conference were
member of the UN at the same time and work done at the UN could be
sufficient. The conference was between the two military blocks of the old cold
war, and Western countries wanted to get profit of the Conference to
democratize the Warsaw Pact countries.
Now the question is: among the many intentional human rights charters,
covenants, declarations, treaties and accords, which one is most important?
Which one must a country, like Turkey, member of UN and the Council of
Europe, participating country of the CSCE, should obey? Countries like Turkey
have binding legal obligations being member of the UN and the European
Council and binding political commitments in joining the OSCE. Therefore
there is not hierarchy of rights, or priority among rights. We have accepted all
these human rights standards and committed to implement them locally. But I
must point out that among all these binding legal instruments the European
Convention is the principle one. It is more comprehensive of the three sets of
documents. Its provisions are binding law on any country that becomes a party
to the Convention. European Convention Human Rights standards are
actionable in both local courts and, once domestic possibilities have been
exhausted, through the Strasbourg mechanisms.7 We can say that ‘The European
Convention was the first international human right instrument to aspire to
protect a broad range of civil and political rights at the domestic level. Its most
revolutionary contribution perhaps lies in its inclusion of a provision under
which a High Contracting Party may accept supervision of the European
Commission of Human Rights in instances where an individual, rather than a
State, initiates the process. One measure of the Convention’s success is the
acceptance by the High Contracting Parties of this right of individual petition.’8
As to the UN documents, we may say that if they address a larger number of
7
Frederick Quinn. Human Rights and You. OSCE/ODIHR. S.145
8
Dona Gomien, Short Guide to European Commission on Human rights,Council of Europe Pres,1993ş s.14

10
States or they are universal, this is also their weakness, because they represent a
consensus among larger number of States. In the same way, complaint
procedure UN mechanism includes is more political than judiciary. (We shall
come back to these questions later). The OSCE accords do not include an
individual complaint process or an adjudicative process and do not have the
force of law. They represent politically binding agreements among the
participating nations, as such, they are used each year at the implementation
meetings, by individual OSCE missions, and by election observers. Also, they
provide benchmarks by which jurists, journalists, educators, parliamentarians
and international missions evaluate rule of law standards in a country9. Their
violation produces political implications rather than legal or juridical.

IV. HUMAN RIGHTS AS REFLECTED IN INTERNATIONAL

HUMAN RIGHTS BINDING DOCUMENTS (UN and EUROPEAN
COUNCİL)

- States shall secure rights and freedoms for everyone within their
jurisdiction (Article 1, European Con. for Pro. of HR and FF). We have to point
out to this article of the European Convention before given a look some
important human rights individually. It is to be noted that, while international
conventions, treaties or agreements apply primarily to the citizens of a given
country within that country’s boundaries, the language of this article is much
more expansive, securing rights and freedoms to everyone within their
jurisdiction. Subsequently these rights were secured not only for citizens, but for
aliens, stateless persons, children and those lacking legal capacity. It is quite
understandable: if human rights arise from inherent human differences, they
should be applied to all human being without discrimination, and without a
request from him. In addition Article 64 of the same Convention allow

9
Frederick Quinn, age, s.145

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Contracting Parties (States) to broaden the Convention’s coverage to ‘ all or any
of the territories for whose international relations it is responsible’. Jurisdiction
on Human Rights matters is then not territorially limited, but encompasses the
idea of State jurisdiction over individuals through the activities of State organs
or authorities10.

- Right to life. Right to life is the more important, a sine quoi non of all
the human rights. In order to realize and develop the inherent human capabilities
a person should first live. International Covenant on Civil and Political Rights of
1966 states in its Article 6 : Every human being has the inherent right to life.
This right shall be protected by law. No one shall be arbitrarily deprived of his
life. The same principle is reiterated by the Convention for the Protection of
Human Rights and Fundamental Freedoms, concluded in 1950 within the
Council of Europe.
Do all acts of killing constitute a violation of this right? Some says if the act
of killing is committed by a State officer it is a violation, otherwise it’s a crime.
(Here by the act of killing we understand to commit this act deliberately, with
the intent of killing and not without intent, or accidental killings). In fact both of
them are violations of the right and States have not only to control its officers
but to take all necessary legal measures to prevent killings in general, from the
health controls included psychic health of the citizens to their education on
ethics and human rights.
What about the death penalty? Is it not to respond to a violation by the same
violation? I think the answer is yes. However The International Covenant does
not abolish the death penalty (which is impossible under the UN taking into
account that some member countries, the USA at the head, applies this penalty),
but try to bring restrictions to its implementations. The UN General Assembly

10
Frederick Quinn, age. S.154

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adopted 1n 1989 an Optional Protocol11 aiming at the abolition of the death
penalty. Death penalty will be abolished in the Council of Europe, Protocol 6
adopted in 1983 and entered in force in1985, Article 1 of which states: The
death penalty shall be abolished. No one shall be condemned to such penalty or
executed. Exceptions: in respect to acts committed in time of war or of imminent
threat of war, according to law. In that case the State shall communicate to the
Secretary General of the Council of Europe the relevant provisions of that law.
The Convention for the protection of Human Rights and Fundamental
Freedoms states that deprivation of life shall not be regarded as inflicted.
a. in defense of any person from unlawful violence
b. in order to effect a lawful arrest or prevent the escape of a person
lawfully detained
c. in action lawfully taken for purpose of quelling a riot or insurrection
d. in execution of a sentence of a court following his conviction of a crime
for which this penalty is provided by the law.
According to the Covenant Art.6/3 states: when deprivation constitutes the
crime of genocide, it is understood that nothing in this article shall authorize
any State ……. to derogate in any way from the obligations assumed under the
provisions of the Convention on Prevention and Punishment of the crime of
Genocide, which is ratified by the General Assembly in 1948 and entered into
force in1951. Article II of this Convention defines Genocide as ‘any of the
following acts committed with the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group as such’ including:
a) Killing members of the group
b) Causing serious bodily or mental harm to members of the group
c) Deliberately inflecting on the group conditions of life calculated to
bring about its physical destruction in whole or in part
d) Imposing measures intended to prevent births within the group
11
Optional Protocol: A protocol (agreement) attached to an international instrument, parties to that
instrument can adhere to only if they opt so.

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e) Forcibly transferring children of the group to another group
The Convention states that are punishable: the acts of genocide,
conspiracy to commit genocide, direct and public incitement and attempt to
commit genocide, complicity in genocide are punishable, whether
committing persons are responsible rulers, public officers or private
individuals. These persons shall be tried by a competent tribunal of the State
in the territory of which the act is committed, or by such international penal
tribune as may have jurisdiction with respect to those contracting parties
which shall have accepted its jurisdiction.
Both 1966 Covenant and 1948 Convention clearly indicate that shall not be
considered as political crime for the purpose of extradition. Contracting
Parties pledge themselves in such cases to grant extradition.

Other discussion under this chapter is whether euthanasia is compatible with

the right to life. Is application of euthanasia to a patient who prefers to die
acceptable? Modern Law does not have a definitive answer to that question
yet.
The same is valid for the transplantations of organs. To take an organ of
a living human, even if it is done by the approval of the interested, can be
considered as a violation of the corporal integrity of the interested person,
and consequently a violation of the right to life. Is this true? There is no
answer to that question either.
Does abortion take away the right to live of the fetus? Some thinkers are
of the idea that protection given to the right of life should start from fetus.
This idea did not gather support for practical reasons. Moreover there is the
question whether the fetus is a human being or not. Other thinkers are
pointing out to the article 1 of the Universal Declaration which states that all
human beings are born equal from the point of view of dignity and rights.
This implies that rights start by the birth and, if so, fetus has no such a right

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before his birth. In fact, The European Convention does not state that life
begins with conception. The discussion continues. In the practice the
European Commission agreed that recognizing the unconditional right to life
of the fetus would be contrary to the intent of the convention.
Last, it is for sure that to protect human beings from interventions which
contain violence is one of the necessities of the right to life: Human beings
should not be killed, tortured, mutilated. But these are not the only threat to
the right of life. There are hunger, aids, and nuclear vests and so on which
constitute threat to the human life. This means that right to life should not be
taken up as a negative right (protection) but also as a positive right and
conditions for personal security in the general meaning of every one should
be provided.

- Right of self-determination. This right includes according Art.1

of the 1966 Covenant, 1. Freedom of all people to determine their political
status, 2 Freedom of enjoyment of their natural wealth and resources.

- Right to effective remedy, in case one’s rights and freedoms are

violated (1966 I. Cov. and Con)

- Equal rights of men and women to the enjoyment of all civil

and political rights (1966 I. con)
- Personal liberty and security. Everyone has the right to
liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. Arrested person shall be informed of the reasons for his arrest.
(1966 I. Cov). He or she shall be brought promptly before a judge, and shall
be entitled to trial within a reasonable time. Anyone who has been the victim
of unlawful arrest or detention shall have an enforceable right to
compensation. Similar Provisions exist in the Con. For the Prot.of HR and

15
FF (CE) and at the Protocol 4 (CE,1963) in a little more detailed way The
convention states also cases of detention which are permissible:
a. after conviction by a competent court
b. in case of no compliance with the lawful order of a court or in
order to secure the fulfillment of any obligation prescribed by the law
c. for bringing him before the competent legal authority.
Protocol 4 (CE) indicates that ‘no one shall be deprived of his
liberty merely on the ground of inability to fulfill a contractual obligation. It
allows everyone the liberty of movement and freedom to choose his
residence, the liberty to leave the country, including his own. No one shall
be expelled from the territory of the State of which he is a national.
Collective expulsion of aliens is prohibited.

All persons deprived of their liberty shall be treated with humanity

and with respect for the inherent dignity of the human person.
(1966 I. cov). Accused persons should be segregated from convinced persons
and should be treated according their status. Accused juveniles should be
separated from adults. No one shall be imprisoned merely on the ground of
inability to fulfill a contractual obligation. (1966 I.Cov).

- Equal treatment before the courts and tribunals. (1966

I.Cov.) Additional guarantees: a. to be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against
him. b. to have adequate time and facilities for the preparation of his defense.
c. to be tried without undue delay. d. to be tried in his presence and to defend
himself in person or through legal assistance of his choosing. e. to examine
the witnesses against him. f. to have free assistance of an interpreter. g. not to
be compelled to testify against himself or to confess guilty. The same rights
figure in the Con. for the Pro. of HR and FF (C.E) which states also that:

16
 ‘In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to(1) fair and public
hearing (2) within a reasonable time (3) by an independent and impartial
tribunal (4)established by law. Judgment shall be pronounced publicly but
the press and public may be excluded from all parts of the trial in the
interest of morals, public order or national security………………….’
Everyone charged with a criminal offense shall have the right to
be presumed innocent until proved guilty according the law.(1966 I.Cov. and
Con. for Pro.of HR and FF)
Protocol 7 (CE, 1984, entered in force 1988) states:
‘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.
Everyone convicted of a criminal offense by a tribunal shall have
the right to have his conviction or sentence reviewed by a higher tribunal.
No one shall be liable to be tried or punished again in criminal
proceedings under the jurisdiction of the same State for which he has
already been fully acquitted or convicted in accordance with the law and
penal procedure of that State.

Prohibition to heavier penalty than the one that was applicable

when the criminal offence was committed. ( Both 1966.I.Cov. and Con.for
Pro.of HR and FF)

- Right to privacy. Prohibition to arbitrary or unlawful interference

with one’s privacy, family, home or correspondence. The Convention has

more detail and point out to exceptions to this right: the interest of national
security, public safety, economic well-being of the country, for the

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 prevention of disorder and crime, for the protection of health or morals, or
the rights and freedoms of others.

- Right of thought, conscience and religion. ‘Everybody has the

right to bring new ideas or knowledge regardless how contrary they are to
the dominant ideas, knowledge’.12 This right put under the guarantee forms
the right of thought. The term thought contains in it different products of
thinking: ideas, understandings, convictions, beliefs, etc. Only product it
does not contain is knowledge which is independent from those who put
them forth. A new idea put forth by somebody gain importance when the
propagation and instruction of this ides is on the agenda. Here we meet the
problem of tolerance in public affairs. In fact, the right to thought should
protect the owner of this thought, not the thought itself. I mean if persons are
protected through this right against all kind of oppressive and restrictive
measures, propaganda and teaching of some thoughts can be prohibited or
restricted once a scientific evaluation of the thought has been made.
This right includes freedom to have or adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.( Cov. And Con) This right includes the freedom to
change its religion, or believes. (Con.) However the manifestation of one’s
religion can be restricted by law to protect public safety, order, health, or
morals or fundamental rights and freedom of others (Cov and Con). Respect
for the liberty of parents to ensure the religious and moral education of
their children with their own conviction.(1966 I.Cov)
Here it will be useful to point out to the relationship between
secularism and right to religion, or right to conscience. Generally,
secularism is understood as the separation of State affaires and religious

12
Ioanna Kucuradi, age. S110

18
 affairs, or non intervention of the religion in State affairs, or not only non
intervention of the religion in State affairs, but also non intervention of State
to religion. This is a very superfluous understanding of the secularism. To
understand secularism correctly we have to look back to see why and under
which circumstances this principle came out.
In French laicité is derivate from Greek world laikos which
designated a person who was not clergyman (Clericos). The meaning of
adjective laique (in Turkish laik) is then ‘which do not come out of the
religion whatever are its other sources’. Laik can come out of every thing,
but never from religion. When we say laik State, we mean that State
organization, functioning of which are not determined by the beliefs,
understandings and norms of any religion. The term laik does not say
anything about how this State is organized, how is its legal system etc. The
only information it gives is that all these have nothing to do with a religion or
religious belief. In a laik State citizens can have or not a religion. This makes
no difference, because in the foundations of a laik there are not norms of any
religion. As a principle of the modern State, requirement of laicisme is that
organization of a State, formation of its law system and its functioning
should not be determined by the norms of any religion. Thus it is a negative
notion. But what will determine the organization of a State, its system of
Law and its functioning, if not the religion? The answer to that question lies
in an other world with Latin root : secularism.
Secular is laique in English. But the notion secularism has an additional
connotation in its meaning. Saecularis means in Latin century. Thus
Secularism means to be compatible with the century, with the time we live in
(çağdaşlaşma). It is a positive notion. It requires that subject be brought at
the level of the time we live in. In a sense the two worlds used with the same
meaning in two languages are complementary.13 From the angle of Human

13
Bknz. Ioanna Kucuardi, age. S76-86

19
rights, and especially right of religion and conscience, modern State is
secular (laik) and combining these positive and negative notions, constitute
the guarantee of these rights.

- Right to the freedom of expression and to hold opinions without

interference. This right includes the freedom of expression, freedom to

seek, receive, and impart information and ideas of all kinds. The
exercise of this right can be subject to certain restrictions provided by law: a)
for respect of the rights or reputation of others; b) for the protection of
national security or public order, or public health or moral. (1966.I.Cov)
Convention for the pro. of HR and FF (CE) gives priority to the
right to freedom of expression and states that this right includes freedom to
hold opinions: ‘This right (right to freedom of expression) shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.
‘However this article shall not prevent States from requiring licenses of
broadcasting, television or cinema enterprises. Restrictions to this right are
more detailed in the Convention than in the Covenant: a. in the interests of
national security, territorial integrity or public safety, b. for the prevention
of disorder and crime, c. for the protection of health, or morals, d. for the
protection of the reputation or rights of others, e. for preventing the
disclosure of information received in confidence, or f. for maintaining the
authority and impartiality of the judiciary.
The UN General Assembly adopted in 1981 a Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief. The Declaration, after giving the definition of intolerance
and discrimination enumerates freedoms in this area.
According this declarations (article 1) intolerance and
discrimination based on religion or belief means ‘any distinction, exclusion,

20
 restriction or preference based on religion or belief and having as its
purpose or as its direct effect nullification or impairment of the recognition,
enjoyment or exercise of human rights and fundamental freedoms on an
equal basis’. Then what is tolerance?
We can take up tolerance from to different angles:
- Tolerance as an attitude of an individual: Here the notion
tolerance is closely related to the consideration that individuals which are all
distinct from each others are human beings, each of them unique, different
from each others, whatever are their differences. A tolerant person is the one
who does not give harm, or who does not want to give harm to other persons
different from him, who has ideas, thoughts, convictions different from those
he approves, who has behaviors different from his, or from those behaviors
he approves. What tolerant person tolerates are not these ideas, thoughts,
convictions and behaviors, he tolerates the existence of the owner of these
ideas, thoughts, convictions or author of the behavior he does not approve.
An intolerant person is one who can not tolerate the existence of such a
person and damage or harm him when he is able to do so. He can kill him or
assassinate him. Tolerance in that meaning has no limits.
- Tolerance as acceptation by a person of the existence of
thoughts and behaviors he does not approve: It is difficult to distinguish
before hand which thoughts, ideas, convictions and behaviors are tolerable,
which are not. The limit starts at the point where these ideas, thoughts,
convictions, cultural or religious norms or behaviors damage fundamental
individual rights.14

- Prohibition of the propaganda for war. (1966. I.Cov.)

14
Bknz. Ioanna Kuçuradi, age, s.87-97

21
 - Right to freedom of peaceful assembly and Right to
association. Everyone has the right to freedom of peaceful assembly and to
the freedom of association with others, including the right to join trade
unions for the protection of his interest. (Cov. and Con.) Restrictions
can be imposed only by law, if necessary for the national security or public
safety, public order, the protection of public health or morals or the
protection of the rights and freedom of others. (1966 I.Cov.)
No restrictions shall be placed on the exercise of these rights other than such
are prescribed by law and are necessary… in the interest of national security
or public safety … and so on (like for the right to freedom to expression).
(Con.) This article shall not prevent the imposition of lawful restrictions on
the exercise of these rights by the member of the armed forces, of police or
the administration of State.

- Right to have family. This includes right of men and women

of marriageable age to marry. ( Cov. and Con) Full consent of intending
spouses is necessary for the marriage. Spouse will have equal rights and
responsibilities as to marriage, during the marriage and at its dissolution, In
the case of dissolution of marriage, provisions shall make for the protection
of children. (1966 I.Cov) Similar provision exist in Protocol 7 of the CE.

- Rights of Child. Every child shall have without

discrimination the right to such measures of protection as are required by his
status as a minor, shall be registered and shall a name, shall acquire a
nationality.(1966 I.Cov)
In 1989 the UN General Assembly voted the Convention on the
Rights of the Child. According to this Conventions provisions,
- In all action concerning children the best interest of the
child shall be a primary consideration;

22
 - The child will be registered immediately after birth, shall
have right by his to a name, nationality, the right to know and be cared for
parents;
- State Parties shall take measures to combat the illicit
transfer and non-return of children abroad;
- The children shall have the right to seek, receive and
impart information and ideas;
- State Parties shall respect the right of the child to
freedom of thought, conscience and religion;
- Recognize the right of the child to freedom of
association
- Calls for State Parties to protect the child from all
forms of sexual exploitation and sexual abuse.

- Right to be equal before the law without discrimination. (1966

I.Cov)

- Elimination of racial discrimination. In 1965 the UN

General Assembly adopted the International Convention on the
Elimination of All forms of Racial discrimination. According to that
convention: Definition of Racial Discrimination: ‘any distinction,
exclusion, restriction or preference based on race, color, descent, or
national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural
or any other field of public life’. State Parties undertook to pursue all
appropriate means and without delay a policy of eliminating racial
discrimination in all its forms. They agreed to declare an offence punishable
by law all dissemination of ideas based on racial superiority or hatred,

23
 incitement to such acts against any race or group of persons of another
color or ethnic origin, and also the provision of any assistance to racist
activities, including the financing thereof’. Convention foresees equal civil,
economic, social and cultural rights for all races. The Convention creates a
Commission on the Elimination of racial discrimination.

- Rights of women. UN General Assembly initiated in 1979 a

Convention on the elimination of All Forms of Discrimination against
Women which describe the discrimination against Women as ‘any
distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality
of men and women of human rights and fundamental freedoms in the
political, social, cultural, civil or any other field.’ State Parties are required
to embody these rights into their Constitutions and to abolish all legislation
against them. State Parties shall take all appropriate measures to suppress
all forms of traffic in women and exploitation of prostitution of women.
Additional articles elaborate on place of women, without discrimination, in
political and international life, education, employment, health care, economic
and social life. Women’s equality before the law is affirmed, as is the
equality in the important sphere of marriage and family life. Other provisions
removes discrimination against women in the field of employment, included
the right to equal remuneration, social security and the right to protection of
health and to safety in working conditions, including the safeguarding of the
function of reproduction.
In order to prevent discrimination on the ground of marriage States
Parties shall undertake:
a. To prohibit, dismissal on the grounds of pregnancy or of
maternity leave and discrimination in dismissals on the basis of marital status.

24
 b. To introduce maternity leave with pay…..
c. To encourage social services to enable parents to combine
family obligations with work responsibilities, in particular through
promoting child-care facilities.
d. To provide special protection to women during pregnancy in
types of work proved to be harmful to them.
The Convention contains provisions on the particular problems faced
by rural women.
Article 16.1 gives women and men the same rights to enter marriage; to
freely choose espouse and to enter into marriage only with their free and
full consent; the same right and responsibilities during marriage and its
dissolution; as parent in matters relating to their children, in all cases
the interest of the children shall be paramount; with regard to
guardianship, trusteeship and adoption of children; the same personal
rights as husband and wife, including the right to choose a family name, a
profession and an occupation; the same rights on the number and spacing
of their children; the same rights of both espouses in respect of the
ownership, acquisition, management, administration, enjoyment and
disposition of property.

- Suppression of traffic in persons. Convention for the

Suppression of the traffic in Persons and the Exploitation of the
prostitution of Others has been concluded in 1949 under the auspices of
the UN General Assembly. The Convention states that prostitution and the
accompanying evil of the traffic in person for the purpose of prostitution are
incompatible with the dignity and worth of the human person….With its
Article 1 State Parties agree to punish any person who, to gratify the passion
of another :

25
 a. procures, entices or leads away, for purpose of prostitution,
another person, even with the consent of that person
b. exploit the prostitution of another person, even with the consent
of that person.
These offenses shall be regarded as extraditable offenses.
Convention foresees measures to prevent the traffic in persons and to
protect the victims of international traffic in persons.

- Prohibition of torture and other Cruel, Inhuman or

Degrading Treatment or punishment. A Convention with this title has
been concluded in 1984 through a UN General Assembly resolution. The
Convention defines the Torture as ‘any act by which severe pain of suffering,
whether physical or mental, is intentionally inflicted on a person for such
purpose as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflected by or at the instigation of or with the consent or
acquiescence of public officials or other person acting in an official
capacity. It does not include pain or suffering arising from, inherent in or
incidental to lawful sanctions.
The Convention,
a. disallows the use of torture even in times of war or national
emergency;
b. eliminates the ‘I was just obeying orders’ defense; mandates
proper training for law enforcement personal;
c. States that each State Party shall ensure that any individual
who allege he has been subjected to torture ….. has the right to complain to,
and to have his case promptly and impartially examined by its competent

26
 authorities. The complainant and his witnesses shall be protected against ill-
treatment or intimidation as a consequence of his complaint or any evidence
given;
d. Foresees adequate compensation for the victims of torture.

Convention for Protecting of HR and FF (C.E) also states: no one

shall be subjected to torture or inhuman or degrading treatment or
punishment. It set up the Committee against Torture examines and decide
upon individual petition related to violations of the Convention. In case in it
obtains important information that torture is used systematically in the
territory under jurisdiction of a State Party, it has right to investigate secretly
sur place, invite the State to collaborate, and if necessary to make public a
résumé of its report.( This last measure had been realized for the first time
against Turkey)15

In 1987 another convention has been adopted within the Council of

Europe: European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment which provides a non-
judicial mechanism of a preventive character with a view to strengthening
the protection of persons deprived of their liberty against torture and
inhuman or degrading treatment or punishment. A Committee for the
prohibition of torture, set up under the 1987 Convention is entitled to visit
any place where such persons are held by a public authority in order to
examine their treatment. It may interview in private persons deprived of their
liberty and communicate freely with any person whom it believes can supply
relevant information. The information gathered during these visits is
confidential. If a State party refuses to cooperate or does not bring
improvements following the recommendations of the Committee, this latter

15
Baskın Oran , Türk Dış Politikası, age. S.532

27
 can decide to make public declaration on the matter. (The committee made
such a public declaration only once and against Turkey)16 Cooperation with
competent authorities is one of the guiding principles recognized by the
Convention. Nevertheless, if a country fails to cooperate or refuse to improve
the situation in the light of the European Committee’s recommendation, the
Committee may decide to make public statement.

- Right to property. Protocol 1to Cov. (1952) Every natural or

legal person is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except the public interest and subject to
the conditions provided by law and bythe general principles of international
law.

- Right to education. Prot.1. to Con. No person will be denied

the right to education.( Turkish reserve: unity of education in Turkey)

- Protection of civilians in time of War. There is Geneva

Convention Relative to the Protection of Civilian Persons in
Time of War. Concluded in 1949, this Convention foresees that in
case of armed conflict not of an international character occurring in
the territory of one of the Contracting Parties, each party to the
conflict shall treat humanly all persons taking no active part in the
hostilities, included members of armed forces who laid down their
arms and those placed hors d combat by sickness etc. and forbids:
a. Violence to life and person, murder of all kind, mutilation,
cruel treatment, torture
b. Taking hostages

16
Baskın Oran, Turk Dış Politikası,age. S.532

28
 c. Outrages upon personal dignity, humiliating and degrading
treatments
d. Passing of sentences and carrying out of excursions without
previous judgments.
Women shall be especially protected against any attack on their
honor, in particular against rape, enforced prostitution, or any form of
indecent assault.
Part III of the convention deals with the Status and Treatment of
Protected Persons in occupied territories. There are some 50 provisions
for the occupying power to observe including prohibition against
coercion, collective punishment and torture, against taking hostages.
Protected persons who have lost their employment shall be granted an
opportunity to find paid employment. Occupying Power may not alter the
status of public officials or judges. Penal issues and conduct of trials are
treated as well.

- Prohibition of slavery or servitude. (Conv. For the Prot.of HR

and FF (C.E).
- Prohibition to perform forced labor or compulsory labor.
(Conv.for the Prot. Of HR and FF (CE). (excluded: during detention and
services of military character and in case of conscientious objectors service
exacted instead of compulsory military service, in case of emergency and
calamity, civic obligations.)

- Right of Minorities. In those States in witch ethnic, religious or

linguistic minorities exist; persons belonging to these minorities shall not be

denied the right, in community with the other members of the group, to enjoy
their own culture, to profess and practice their own religion or to use their
own language. (1966, I.Cov.)

29
 Before studying rights of minorities, it would be opportune to answer
the questions who are groups and who are minorities. Group is a collective
identity the limits of which are drawn according the common particularity of its
members. All single persons are member of different groups. He shares one
identity with the members of one given group, and another identity with the
members of another group. These identities are scarcely natural, unchangeable
identities. Some of them are occasional, some others chosen by the interested
himself, they are all changeable identities. Minority is a group of people with
different particularities then the majority of people in which the group lives, in a
determined geographic place. The term minority is used today, from the point
of view of human rights, to mean generally religious, linguistic or ethic
minorities. In other terms it defines a human group living in a State, with
different religious, linguistic or ethnic roots.17 What we call today minority
rights are necessities resulting of fundamental individual rights of the members
of such groups, in the condition prevailing in a State in a given time. They are
not privileges recognized to a minority group, but they are norms related to
public arrangements enabling members of groups possessing particularities
different then those of the majority of the citizens (different religion, different
language, and different ethnic root) in a State, to develop their own inherent
human capabilities.
If we look to the minorities from that angle, it is not possible to
speak of all the minority rights for a given minority. It is necessary to take into
consideration the kind of majority to determine what kind of request they may
have.
Ethnic root is only one of the particularities an individual can
have. We have a common identity with all other citizens as the citizens of the
State, of which we are nationals, but we have another different identity,
unchangeable, we share with some other fellow citizens who are either in

17
I.Kuçuradi, age. S.143

30
majority or minority. Today the more important sign of belonging to an ethic
group is the mother tongue of the interested person. The freedom to use the
mother tongue is a fundamental individual right. This fundamental right requests
the possibility for the individual to develop his mother tongue. In other words,
an individual belonging to an ethnic minority with a language different than that
of the majority should be given the possibility of using and developing his
mother tongue in addition to the language of the majority.
In a country those who believe in a religion different than the
religion the majority believes in (or atheists) should not be discriminated. The
human right requirements of religious minorities from State are different than
those of ethnic minorities. The most important necessity in a State with religious
minorities is the complete attachment of the State to the principle of secularism.
Secularism requires that in a State any religion, to start with the religion of the
majority, does not interfere with the social relations, with the public affairs, and
elaboration of laws. Secularism rejects the role of religious norms whether they
are compatible with the human rights or not in public affairs.
Another point is that, in case of religious minority, it suits more to
speak of the tolerance rather then minority rights. Here tolerance we are talking
about is not the tolerance members of different religious groups should have for
each other, but tolerance as a principle in the elaboration of the public affaires.
The question is to determine which religious views either from minority or
majority should not be tolerated. In fact the limits of the tolerance are drawn by
the science and knowledge.
Lausanne Treaty at establishing the new republic of Turkey
contains seven articles aimed at the protection of minorities in Turkey with the
obligation to Turkey to recognize these stipulations (article 37-44) as
fundamental laws, superior to any Turkish law. Turkey accepted not to
promulgate any legislation, not to apply any measures against these stipulations.
Article 38 states the engagement of the Turkish Government to give complete

31
protection to everyone living in Turkey as to their life and freedoms, regardless
their place of birth, nationality, language, race or religion. Everyone living in
Turkey shall have the freedom to exercise openly or in private, the requirements
of his or her belief, religion or sect, provided that these do not disturb the public
order. It is interesting to note that the Treaty recognize these rights not only for
the minorities, but for all persons leaving in Turkey. With this the allied
countries were aiming at protecting their nationals with residence in Turkey and
accepted Turkish refusals to criteria based on race, language, religion when
Turkish Delegation accepted this article. It seems that for them Muslims were
not important and they were ready to ignore Muslim minorities. Accordingly,
Non-Muslim minorities should enjoy the freedoms of circulation and emigration
recognized to all Turkish citizens, not any restrictions would be brought on the
use of any language by the Turkish citizens in publications and in conferences.
Although the official language of Turkey would be Turkish, Turkish citizens
speaking other language then Turkish would be provided with a translator
before tribunals. We may point out that this right is the only right in the
Lausanne Treaty applicable to linguistic groupes other than non-Muslim
minorities in Turkey. Non-Muslims could establish charity and other religious
or social institutions, schools of all kinds and use their language therein.
Furthermore Turkey undertakes to make all the facility to non-Moslems with
Turkish citizenship to ensure education in their tongues in their schools. Non-
Muslims would have the right to have a part from the governmental allowances
for expenses related to education or religious services. Turkish Government
undertakes to ensure complete protection to churches, synagogues.
It is clear that rights recognized to Non-Muslim communities in
Turkey by the Lausanne Treaty are not human rights, but political rights. In fact,
Muslim minorities are not considered minority by the Treaty. As Turkey opted
for secular legal system, these privileges recognized to non-Moslem minorities
lost their validity and they disappeared. But the fact that Moslem communities

32
with different particularities than the majority were not considered minority in
the Lausanne Treaty, gave Turkey longtime a strong argument in the
international arena against Kurdish human right claims.

Now let us to give a look to international developments in this

matter.
During years 1990s, nationalism which had spread away strongly
after the dissolution of the USSR and other socialist regimes in Europe, created
important problems for minorities living in the continent. International
community had to find solutions to these problems safeguarding peace and
stability. Thus, rights of minorities took place in Helsinki final act in 1975 with
a comprehensive arrangement on the matter. In 1990 Copenhagen document
adopted in the human dimension meeting of CSCE brought more
comprehensive arrangements on the matter. Following year was adopted Report
of experts in Geneva which decided that minority problems would no more be
under the unique authority of the State where these problems had occurred.
Following year CSCE decided to establish a High Commissary for National
Minorities.
In 1992, the UN General Assembly adopted a Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities. With this Declaration States have shown that they were ready to
accept further rights for minorities as participation in decisions on the national
or regional level, concerning their group; right to establish their own
associations and so on. The same year entered into force European Charter for
minority and regional languages and Framework Convention for the protection
of National Minorities.
Framework Convention for the Protection of National
Minorities, opened for signature in Strasbourg in 1995 and entered into force
the following year, sees the protection of national minorities as an integral part

33
of human rights , and such falling within the scope of international cooperation.
Turkey did not sign it. It states that every person belonging to a national
minority shall have the right to freely choose to be treated or not be treated as
national minority, and no disadvantage shall result from the choice. Rights
recognized to national minorities can be exercised individually or in community
with others.
The parties to the Convention shall adopt full and effective
equality between persons belonging to a national minority and those belonging
to majority. Specific conditions of persons belonging to national minority shall
be taken in due account.
The Parties, vis a vis national minorities,
- undertake to promote the conditions necessary for them to maintain
and develop their culture, and preserve the essential elements of
their identity, namely their religion, language, traditions, and
cultural heritage
- Shall refrain from policies or practices aimed at assimilation
against their will
- Shall ensure respect for their right to freedom of peaceful
assembly, freedom of association, freedom of expression, and
freedom of thought, conscience and religion.
- Shall ensure they are not discriminated against in their access to the
media. They shall not hinter the creation and use of printed media
by persons belonging to a national minority. In the legal framework
of sound radio and television broadcasting, they shall ensure that
they are granted the possibility of creating and using their own
media.
- Shall ensure conditions enabling them to use the minority
language in relations with the administrative officers, in areas
inhabited by persons belonging to national minorities traditionally

34
 or in substantial numbers, if those persons so request and where
this request correspond to a real need.
- Undertake to guarantee the right…..to be informed promptly, in a
language he or she understands, of the reasons of his or her arrest,
and of the nature and cause of any accusation against him or her,
and to defend himself or herself in this language.
- Undertake to recognize to them the right to use his or her surname
and first name in the minority language
- Undertake to recognize their right to display in his or her minority
language signs, inscriptions…
- Shall endeavor, in the framework of its legal system, to display
traditional local names, street names and other topographical
indications intended for the public also in the minority language,
where there is sufficient demand for such indications.
- Shall take measures in the field of education and research to foster
knowledge of culture, history, language and religion of their
national minorities
- Shall refrain from measures which alter the proportions of the
population in areas inhabited by national minorities
- Undertake not to interfere with their right to participate in the
activities of non- governmental organizations, both at the national
or international levels;
The convention stipulate also that any person belonging to a national
minority shall respect the national legislation and rights of others, in particular
those of persons belonging to the majority or to other national communities.
As Turkey did not sign the Convention until today, it is not in force for
us. However it is interesting to note its articles, to see how the majority of the
international community in Europe is looking to the question and to try to
deduct what problems we shall meet in this area in a near future.

35
 - Social Rights. When the European Convention on
Human Rights was written in the late 1940, its authors, reflecting the political
realities of the era, did not include economic, social and cultural rights in the
Convention. Coming in the wake of World War II’s devastation, drafters’ main
priority was to establish standards for human rights and the norms applicable to
political democracy. The additional presence of the Iron Curtain made any to
elaborate statement of rights illusory. Thus it was decided, following the
formula adopted by the United Nations, that two separate treaties would be
appropriate, one political, the other economic-social.
European Social Charter Signed in Turin in 1961, and entered in force
in 1965) set out the Worker rights:
1. to have opportunity to earn his living in an occupation freely
entered upon.
2. to just condition of work
3. to safe and healthy working conditions
4. to a fair remuneration sufficient for a decent standard of
living for themselves and their families
5. to freedom of association in national or international
organizations
6. to bargain collectively ( for the employees also)
7. (Children and young persons) to a special protection against
the physical and moral hazards to which they are exposed
8. (Employed women) to a special protection in their work
9. to appropriate facilities for vocational guidance to help him
choose an occupation suited to his aptitude and interests
10. to appropriate facilities for vocational training
11. to benefit from any measures enabling him to enjoy the
highest possible standards of health attainable

36
 12. (and dependents) to social security
13. to social and medical assistance
14. to benefit from welfare services
15. (disabled persons) to vocational training, rehabilitation and
resettlement, whatever the origin and nature of their
disability
16. (the family) to appropriate social, legal and economic
protection to ensure its full development
17. (mothers and children) to appropriate social and economic
protection
18. The nationals of any one of the Contracting Parties have the
right to engage in any gainful occupation in the territory of
any one of the others on a footing of equality with the
nationals of the latter, subject to restrictions based on cogent
economic or social reasons.
19. Migrant workers who are nationals of a Contracting Party
and their families have the right to protection and assistance
in the territory of any Contracting Party.
An Additional Protocol to the European Social Charter (signed
in1992, entered in force in 1988) contains rights:
- to equal opportunities and equal treatment in matters of
employment and occupation without discrimination on the ground
of sex;
- to information and consultation
- to take part in the determination and improvement of
the working conditions and working environment
- (elderly persons) to protection.
The Social Charter has been revised in 1996. The main innovations include:
- Strengthening equality between men and women

37
 - The right of disabled persons to individual social integration,
personal independence and participation in the life of the community
- Strengthening the right of children and young persons to social,
legal and economic protection
- The right to protection in cases of dismissals
- The right to dignity at work
- The right of workers with family responsibilities to equal
opportunities and treatment
- The right to protection against poverty and social exclusion
- The right to adequate housing
- A widening ban on discrimination.

There is no individual role in the development or enforcement of

the charter, unlike in the system established by the European Convention on
Human Rights. The Collective Complaints Protocol allows organizations to
play an active role in implementing the Charter. Their active intervention in
concrete situations will allow cases of individual rights to reach a wider forum.
Although the Convention is well-established as the principle human
rights instrument on the European continent, the Charter has never caught hold
to the same extent. There are reasons for this, mainly the lack of political will on
the part of member States to take on panoply of economic and social questions
as legal issues. Additionally, the Charter was never publicized the way the
Convention was, and the possibilities of individuals utilizing it as a legal
document to better the situation was not realized. Finally, the parallel
development of European Communities’ law, now Europeans Union’s law,
addresses some of the issues presented by the Charter. However there was great
interest in revitalizing the Charter. An Amending Protocol has been adopted,
creating more realistic system of Charter supervision. A revised Charter
includes new rights as follows:

38
 - protection in cases of termination of employment
- protection of workers; claims in case of employer insolvency
- the right to dignity at work
- equal opportunities and equal treatment for workers with family
responsibilities
- the right to information and consultation when layoffs are been
considered
- protection against poverty and social exclusion
- the right to housing
- three weeks annual paying holiday
- fourteen weeks maternity leave
- a prohibition against discrimination in enjoyment of Charter rights
on ground of race, sex, language, religion, association with a
national minority, national or social origin, and other grounds.18

V. HUMAN DIMENTION OF THE ORGANIZATION FOR SECURITY

AND COOPERATION IN EUROPE

Organization for the Security and Cooperation in Europe is a

product of end-cold war. NATO countries which were deploying efforts to draw
the USSR and the Warsaw pact countries to negotiations in order to obtain
mutual force reductions in Europe between the two military blocs agreed to hold
the Conference for the Security and the Cooperation in Europe proposed by the
Warsaw Pact, but tried to get political advantages in convincing theses countries
to accept to implement in their countries some democratic and humanitarian
principles which were not in force in these countries. In fact the NATO
countries had already adopted the quasi totality of these principles earlier, and

18
Frederick Quinn, Human Rights and you. Age.s.201-202

39
those relative to the human rights within the ONU or the European Council and
they were implementing them as well. There are then some differences between
instruments relative to human rights issued in ONU, Council of Europe and
OSCE established by CSCE:
1. ONU is a worldwide organization were all kind of regimes,
political and economic systems are represented. In such an organization it is not
easy to prepare documents, especially in a sensitive issue like human rights,
because every word to be used in such documents should satisfy numerous
countries at the same time to obtain larger adherence. That is why sometime
words with general meanings are preferred to specific expressions. Against this
disadvantage, instruments adopted by the ONU gather larger number of States
approval and constitute a pressing on those member countries which are
reluctant to accept them. Infringement of commitment undertaken through
document under ONU can lead to general condemnation before the world
opinion and not any country would like to be in that situation.
2. Council of Europe is a regional organization with members more or
less harmonious in their culture, and is a more technical organization than
political. The result is that the documents or instruments issued through the
Council of Europe are more technical and specific. Even if they are valid among
Counsel of Europe member countries which signed and ratified them, much less
numerous then ONU members, commitments undertaken with these document
have to be honored with almost care, especially if interested country does not
want to have political problems with countries in the region she is. It is added to
that the efficient control mechanisms of the Council of Europe, with concrete
sanctions that we shall take up later.
3. Commitments taken within the OSCE are among OSCE members,
old NATO and Warsaw Pact countries (today, countries issued from the
dislocation of the USSR included) plus the USA and Canada. They are more
political goals than technical or humanitarian. Human rights dealt with in the

40
documents of the OSCE are those which already figure in earlier ONU or
Council of Europe instruments. We can say that, in a way compatible with
political goal of CSCE negotiations, political and civil rights are more
emphasized in the OSCE documents. In OSCE terminology, the term ‘human
dimension’ is used to describe the set of norms and activities related to human
rights and democracy, which are regarded within the OSCE as one of three
dimensions of security, together with the politico-military and the economic
and environmental dimensions19. The term also indicates that the OSCE norms
in this field cover a wider area than traditional human rights law.

What is the contribution of CSCE-OSCE in the development of human

rights?
Final act of the CSCE(Helsinki Final Act, 1975) included Respect for
human rights and fundamental freedoms, including freedom of thought,
conscience, religion or belief among the principles it adhered to. In a section on
Human Contacts Participating States make it their aim to facilitate contacts
among persons, institutions and organizations of participating States and to
contribute to the solution of humanitarian problems that arise in that contact.
This includes a. contacts on the basis of family ties, b. reunification of family’s
c. Marriage between citizens of different States. Travel, d. Improvement of
tourism possibilities, f. Meeting among young persons, g. Sport, h. Expansion of
contacts. With the Document of Copenhagen Meeting on Human rights in 1990,
participant States have agreed on a number of civil rights (which already existed
in western countries) as well as some judiciary principles which were not new
for the Western countries and which were in earlier Human rights documents.
On purely Human Right issues, the Copenhagen Document included:
- Freedom of expression including the right of communication
- The right of peaceful assembly

19
OSCE Human Dimentions Committments, a reference guide. ODIHR/OSCE Warsaw 2001

41
 - The right of association
- The freedom of thought
- The right to leave the country
- The right to enjoy peacefully his property
- The right to seek, receive and impart information
- The right to study and discuss the observance of human rights
- Transfer of sentenced persons
- To prohibit torture and other cruel, inhuman or depredating
treatment or punishment
- Free movements and contacts among their citizens
- Rights of migrant workers
- Human rights of national minorities
And so on.
As it is seen noting is new in this list.
The head of States and governments of the countries participating in the CSCE
adopted in 1990, when the era of confrontation and division has ended, the
Charter of Paris by which they state that the protection of human rights is the
first responsibility of the Governments. They affirm that, without
discrimination, every individual has the right to:
- Freedom of thought, conscience and religion or belief
- Freedom of expression
- Freedom of association and peaceful assembly
- Freedom of movement
No one will be:
- Subject to arbitrary arrest or detention
- Subject to torture or cruel, inhuman or degrading treatment or
punishment
Everyone also has the right:
- to know and act upon his rights

42
 - to participate in free and fair elections
- to a fair and public trial if charged with an offense
- to own property alone or in association and to exercise individual
enterprise
- to enjoy his economic, social and cultural rights

They affirm that

- the ethnic, cultural, linguistic and religious identity of national
minorities will be protected and that persons belonging to national
minorities will be protected and that persons belonging to national
minorities have the right freely to express, preserve and develop
that identity without any discrimination and in full equality before
the law.
- Everyone will enjoy recourse to effective remedies against any
violation of his rights
- Economic liberty, social justice and environmental responsibility
are indispensable for prosperity.
Paris Charter takes up again the question of national minorities, combat against
racial, ethnic hatred, anti-Semitism, xenophobia and discrimination against
anyone as will as persecution on religious and ideological grounds. Free
movement of persons, human dimension of migrant workers and the role played
by non governmental organization are mentioned in the document as well.
Document issued following the Moscow meeting in 1991 is rather a long text
elaborating in a more detailed way civil and human rights, judiciary
organization and guarantees and so on. The following year at the Helsinki
submit Head of States and Government of the Participating Countries adopted a
concluding declaration which reiterates their strong determination to ensure the
respect for human rights and fundamental freedoms and establish the Office of
Free Elections,in Warsaw, with original mandate to assist new countries of

43
central and eastern Europe in holding free elections. CDCE’s Council of
Ministers, meeting in Prague in 1992, expanded the Office into Office for
Democratic Institutions and Human Rights (ODIHR) ,as the main institution
for realizing Human Dimension initiative , including serving as a venue for
bilateral meetings, being a channel of information on the Human Dimension
mechanism, and conducting seminars and other activities aimed at building
democratic institutions. Each Participating CSCE State furnishes an official list
of experts from which the Office may draw for mission to report on human right
problems. This is done by activating the Human Right mechanism wit the
support of member countries.

The OSCE plays an active role in the fight against trafficking in

human beings. All participating States have agreed on numerous political
commitments that confirm their primary responsibility for addressing trafficking
in human being. The States have tasked the OSCE institutions, structures and
field operations to assist in the implementation of those commitments.

The Office of the Special Representative and Coordinator for Combating

Trafficking in Human Being closely co-operates, in a coordinating role, with
relevant OSCE institutions, structures and field operations mandated to combat
trafficking. One of its goals is to avoid duplication, ensure complementarity and
coherence, and, as appropriate, to seek to develop an integrated approach in
preventing and combating trafficking in human beings in the OSCE region.

The Office of the Special Representative and Co-ordinator for Combating

Trafficking in Human Beings assists participating States in their anti-trafficking
effort by providing support at four levels: policy-making, field work, technical
expertise and co-ordination of international actors.

The Office of special Rep. works with governments, motivating them

to intensify action to curb human trafficking and assisting them with policy-

44
making information. The mandate of the Office of the Special Rep. includes
assistance with setting up national strategies for efficient internal and
international co-operation. At the same time, the Special Representative
continues to raise awareness of the complexity of the problem and suggest
comprehensive approaches to solving complex problems.

The Office of the Special Representative is committed to addressing all

forms of trafficking as identified in the UN Trafficking Protocol, and to looking
for cross-cutting and comprehensive solutions that engage all dimensions of the
OSCE.

Bearing in mind that the key to sustainable solutions in the fight against
trafficking in human beings is co-operation and co-ordination, the first Special
Representative (Dr. Helga Konrad) initiated a close partnership with relevant
international actors under the heading of the Alliance against Trafficking in
Persons.

The Alliance against Trafficking in Persons is a broad international forum

which aims at combining the efforts of all relevant interlocutors to prevent and
combat human trafficking. The spirit of the Alliance has been to develop
effective joint strategies, combine efforts of relevant interlocutors in setting a
common agenda, and to provide all the OSCE participating States as well as the
Partners for Co-operation with harmonized approaches and decision-making
aids.

Participants in the Alliance include numerous national authorities, regional,

international and intergovernmental, as well as non-governmental organizations.
They contribute with their expertise and specialized knowledge to the
development of effective legal, social and economic anti-trafficking strategies at
the political and implementation levels.20
20
www.OSCE.org

45
 Furthermore, CSCE created in 1992 the office of the High
Commissioner on National Minorities, but the High Commissioner does not
deal with individual human right complaints. Instead, he seeks solutions
acceptable to both a minority population and the government of the state in
which they live. Here again the main concern is more political, stability of new
democracies issued after the dislocation of the USSR then human rights of
minorities.

VI. MECANISMS HANDLİNG WİTH HUMAN RİGHT VİOLATIONS

IN INTERNATİONAL ORGANISATIONS

1. ONU
1966 Civil and Political Covenant established a 18 member
Human Rights Committee with an active role in State Party compliances with
treaty obligations. With Optional Protocol to that covenant the same year,
States parties recognized the competence of the Committee to receive and
consider communications from individuals subject to its jurisdiction who claim
to be victims of violations by that State party of any set of the rights set forth in
the said covenant. There is a detailed reporting system and a right of individual
petition to the Committee. Committee reports spotlight potential human rights
violations by States. Eventually serious compliance problems work their way
before the UN General Assembly trough the Committee’s Annual report, which
also attacks international media attention as well.
It is to be noted that negotiations and decisions of the Committee,
including drafting of its annual reports depend largely on its compositions,
human right records of the Committee Member States and to what extend
interested countries representatives can influence the Committee members. With

46
this in mind, we can say that the Committee is a political institution rather than a
technical and impartial organ up to treat human right violations brought before it
solely on the light of UN biding Human Right Instruments and report
consequently. The Committee has no possibility of applying sanctions to those
states it found faulty then to report it to the UN General Assembly which would
only take not of it. However States do not lake to be exposed before the world
States’ representatives and world mass media and make efforts not to figure in
the report or, if it seems not possible, lessen the weight of condemnations
against them in the report.

3. COUNCİL OF EUROPE
Convention for the protection of Human Rights and Fundamental
Freedoms established with its Article 19 The European Commission of
Human Rights and the European Court of Human Rights. The European
Commission was the first instance where the applications on Human Right
violations. It was examining claims of violations which were under protection of
the Convention, from the angle of their admissibility and if they were found
them admissible, used to start to examine them in essence. During this period of
examinations the Commission used to try to bring together the applicant and the
interested State to find a friendly settlement between them. If it fails to find a
friendly settlement it has to prepare a report on the essence of the claim with its
evaluation on the violation. After that there were two possibilities: Either the
interested State has to apply to the European Court of Human Rights which
decides on the matter, or, if the State does not apply to the Court, the Committee
of Ministers which is a political instance has to examine the case and to decide
on it. The Commission could deal with the matter after all domestic remedies
have been exhausted, and within a period of six months after the date on which
a final decision was taken. On the other hand the Commission could accept
petitions of individuals if the State applicant is citizen had accepted individual

47
applications to the Commission. The decisions of the Court were binding. The
Court had no jurisdiction on States which had not accepted this jurisdiction.
When the case cannot be brought before the Court, the only solution remains
with the Committee of Ministers who has to examine and decide on the claim.
All the member States of the Council of Europe been committed inter
alias, to ensure every body under its jurisdiction to enjoy the human rights any
fundamental freedoms, in case a member State fails gravely in the fulfillment of
its commitments the Committee of Ministers could suspends its member rights
or ask it to quit the Organization.21
This mechanism proved to be too slow. In 1998 a reform took place by
the Protocol no 11, which abolished the European Commission. According to
that protocol, The Court will be a permanent body to having jurisdiction in al
matters concerning the interpretation and application of the Convention,
included inter-State cases and individual applications.
The number of judges on the Court will be equal the number of State
Parties to the Convention Judges will be elected to six year terms and can be
reelected. They will be elected by the Parliamentary Assembly upon nomination
of their separate State Parties. When hearing cases the Court will sit in panel of
three judges, Chamber of seven judges, or a Grand Chamber of seventeen
judges. The Court will receive applications from any person, non-governmental
organization or group of individuals claiming to be victim of a violation of the
Convention by one of the State Parties, or a State Party in case of inter-State
application.
As at present, a registry will communicate with applicants in the
preparation of filing and, once an application is registered, a judge rapporteur
will be designated to prepare the case, communicate with the interested parties
and, after the case had been declared admissible, take steps towards a friendly
settlement if possible.

21
Baskın Oran, Türk ş Politikası, iletişim yayınlaı,2001, cilt2, s190

48
 In cases with serious implications, a Chamber may relinquish its
jurisdiction to the Grand Chamber any time before a judgment is reached,
unless one of the parties objects. Once judgment has been rendered by a
Chamber, a party may request a rehearing by the Grand Chamber’ if the case
raises serious questions concerning the interpretation of the Convention or its
protocols, or if the case raises an issue of general importance’ A panel of five
judges of the Grand Chamber will decide on whether a case is to be accepted for
re-examination. The Grand Chamber’s judgment will be final, final judgments
of the Court will be binding; the Committee of Ministers will supervise their
execution.
This mechanism is more efficient and has sanctions: Political sanctions
for those States which fail to fulfill their commitments undertaken vis a vis the
Organization, and financial sanctions as indemnities to be paid to victims,
decided by the Court in case of violation of Human Rights.22
As to the European Social Charter, the revised version calls for an
elaborate reporting system. Contracting Parties to the Charter prepare at two
years intervals reports and submit them to a nine-member Committee of
Independent Experts witch prepare a set of Conclusions on each and makes
suggestions about ways to bring the country’s law and practices into conformity
with international standards. The Committee reports next go to a Governmental
Social Committee of the Council of Europe composed of the representatives of
each Contracting Party. Committee’s conclusions could also be forwarded to the
Parliamentary Assembly.
As indicated above, the right of individual petition is not available under
the Charter, although collective complaint is allowed under the Additional
Protocol. Complaints may be filed by (1) international organizations of
employers or trade unions, (2) other international non-governmental
organizations with consultative status, (3) representative national employer and

22
Frederick Quinn, age.s.204

49
trade union organizations. These complaints are heard by the Committee of
Independent Experts who compiles their finding for the Committee of Ministers.
Intent is to bring solution to problems by persuasion and publicity.

3. OSCE
As it was pointed out earlier, commitments of States undertaken within
the CSCE or OSCE are political commitments aiming at ensuring stability in
member countries by promoting democracy and Human Rights, especially at the
eastern part of Europe (old Warsaw pact countries). Secondly, most of the
document issued is declarations, recommendations, and final acts and so on, and
these documents do not have the character of treaty. The intention of the parties,
as expressed at the end of the Helsinki conference in 1975, clearly points out to
the fact that the Final Act has to be considered as a political, not a legal
document.23 We can say that The OSCE process is essentially a political process
which does not create legally binding norms and principles. Unlike many other
human rights documents, OSCE human dimension commitments
are politically rather than legally binding. This is an important distinction since
it limits the legal enforceability of OSCE standards. In other words, OSCE
commitments cannot be enforced in a court of law. However, this should not be
mistaken as indicating that the commitments lack binding force. The distinction
is between ‘legal’ and ‘political’ and not between ‘binding’ and ‘non-
Binding’. This means that the OSCE commitments are more than a simple
declaration of will or good intention, but a political promise to comply with
these standards. We have to admit that if violation of politically binding
24

agreements is as inadmissible as violating binding legal agreement, there is

however a difference as to their consequences. And thirdly, these political
agreements are valid among party countries only.

23
Arie Bloed, Martinus Nijhoff Publishers, Dordrecht,1990,p.11
24
OSCE Human Dimensions Committments, age.

50
 In the Helsinki Final Act of 1975, the participating States
declared their resolve to continue the multilateral process initiated by the first
Conference on Security and Co-operation in Europe. They therefore decided to
organize follow-up meetings and conferences. As there were no formal CSCE
institutions at that time, these conferences were the essence of the CSCE process
between 1977 and 1989. This also explains why they lasted a considerable time.
In the Charter of Paris for a New Europe (1990), it was decided that
the follow-up meetings would take place every two years and would last a
maximum of three months. Two years later, the Helsinki Summit changed the
name of the follow-up meetings to "review conferences" and decided that they
would precede the summits. In the Budapest Document 1994, the term "review
meeting" is used. Monitoring of human right questions in 53 member countries
are done through these meetings. It is understood that sanctions against human
right violations remain political. Two mechanisms were considered by the
CSCE, the Vienna and the Moscow mechanisms:
The Vienna mechanism allows a participating State through a set of procedures
to raise questions relating to the human dimension in another OSCE
participating State. The Moscow mechanism builds on this and provides for the
additional possibility to establish ad hoc missions of independent experts to
assist in the resolution of a specific human dimension problem. This includes
the right to investigate alleged violations of human dimension commitments, in
exceptional circumstances even without the consent of the accused State.
The human dimension mechanism has practically fallen into abeyance, partly
due to the development of the OSCE into a permanently functioning
organization and partly due to the political considerations involved in invoking
such ad hoc mechanisms.25

25
OSCE Human rights Dimensions Committments, age.

51
 V. PROTECTION OF REFUGEES AND DISPLACED PERSONS

During the II. World War big number persons were obliged to leave
their country and faced with a lot of problems in the countries were they tried to
find refuge and met difficulties to return to their countries. United Nations’
General Assembly established on December 1950 the United Nations High
Commissioner for Refugee which took its place in the Convention relating to
the status of refugees in 1951. This Convention had restricted refugee status to
those whose circumstances had come about "as a result of events occurring
before 1 January 1951", as well as giving States party to the Convention the
option of interpreting this as "events occurring in Europe" or "events occurring
in Europe or elsewhere", In 1967 The Protocol Relating to the Status of
Refugees entered into force and removed both the temporal and geographic
restrictions. (However, The Protocol also gave those States which had
previously ratified the 1951 Convention and chosen to use the geographically
restricted definition, the option to retain that restriction.)

UNHCR is mandated by the United Nations to lead and coordinate

international action for the worldwide protection of refugees and the resolution
of refugee problems. UNHCR’s primary purpose is to safeguard the rights and
well-being of refugees. In its efforts to achieve this objective, UNHCR strives to
ensure that everyone can exercise the right to seek asylum and find safe
refuge in another State, and to return home voluntarily. By assisting refugees
to return to their own country or to settle permanently in another country,
UNHCR also seeks lasting solutions to their plight.
In support of its core activities on behalf of refugees, UNHCR’s
Executive Committee and the UN General Assembly have authorized the
organization’s involvement with other groups. These include former refugees

52
who have returned to their homeland; internally displaced people; and people
who are stateless or whose nationality is disputed.
UNHCR seeks to reduce situations of forced displacement by
encouraging States and other institutions to create conditions which are
conducive to the protection of human rights and the peaceful resolution of
disputes. In pursuit of the same objective, UNHCR actively seeks to consolidate
the reintegration of returning refugees in their country of origin, thereby
averting the recurrence of refugee-producing situations.
UNHCR is an impartial organization, offering protection and assistance to
refugees and others on the basis of their needs and irrespective of their race,
religion, political opinion or gender. In all of its activities, UNHCR pays
particular attention to the needs of children and seeks to promote the equal
rights of women and girls. In its efforts to protect refugees and to promote
solutions to their problems, UNHCR works in partnership with governments,
regional organizations, international and non governmental organizations.
UNHCR is committed to the principle of participation, believing that refugees
and others who benefit from the organization’s activities should be consulted
over decisions which affect their lives.
The protection of 32.9 million uprooted people is the core mandate of
UNHCR. The agency does this in several ways. Using the 1951 Geneva
Refugee Convention as its major tool, it ensures the basic human rights of
vulnerable persons and that refugees will not be returned involuntarily to a
country where they face persecution. Longer term, the organization helps
civilians repatriate to their homeland, integrate in countries of asylum or resettle
in third countries. Using a world wide field network, it also seeks to provide at
least a minimum of shelter, food, water and medical care in the immediate
aftermath of any refugee exodus.

53
 Currently made up of 76 member States, The Executive Committee of the
Agency meets in Geneva annually to review and approve UNHCR's programs
and budget, advise on international protection and discuss a wide range of other
issues with UNHCR and its intergovernmental and non-governmental partners.
The Executive Committee's Standing Committee meets several times each year
to carry on Executive Committee's work between plenary sessions.

UNHCR reports to the Generall Assembly of the UN and General

Assembly resolutions and decisions relating to UNHCR.

What was once a one–day meeting where NGOs strategized over their
interventions for Executive Committee, the Annual Consultations with NGOs
now runs over three days and involves dialogue on a wide variety of subjects of
interest to NGOs and UNHCR.
Each year over 200 representatives from more than 150 organizations
attend the consultations. Participants include representatives of small and large,
national and international, UN, and assistance and advocacy organizations
(including those specialized in resettlement). It provides an important forum for
NGOs to raise issues, network, and exchange views with UNHCR.

VI. INTERNATIONAL CRIMINEL COURT

This past century has seen some of the worst atrocities in the history of
humanity.

In too many cases, these crimes have been committed with impunity, which
has only encouraged others to flout the laws of humanity. States representative
of the international community met in order to negotiate and agree upon the

54
establishment of a treaty based International Criminal Court to help end
impunity and the gross violations of international humanitarian law.

The International Criminal Court was established by the Rome Statute of the
International Criminal Court, so called because it was adopted in Rome, Italy on
17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court. The Rome Statute is
an international treaty, binding only on those States which formally express
their consent to be bound by its provisions. These States then become “Parties”
to the Statute. In accordance with its terms, the Statute entered into force on 1
July 2002, once 60 States had become Parties. Today, 106 States have become
Parties to the Statute. The States Parties meet in the Assembly of States Parties
which is the management oversight and legislative body of the Court.

Following the adoption of the Rome Statute, the United Nations convened
the Preparatory Commission for the International Criminal Court. As with the
Rome Conference, all States were invited to participate in the Preparatory
Commission. Among its achievements, the Preparatory Commission reached
consensus on the Rules of Procedure and Evidence and the Elements of Crimes.
These two texts were subsequently adopted by the Assembly of States Parties.
Together with the Rome Statute and the Regulations of the Court adopted by the
judges, they comprise the Court’s basic legal texts, setting out its structure,
jurisdiction and functions.

Based in the Hague, The Nederlands, the International Criminal Court is

the first ever permanent international institution, with jurisdiction to prosecute
individuals responsible for the most serious crimes of international concern :
genocide, crimes against humanity and war crimes. The Court shall exercise
jurisdiction over the crime of aggression once a provision is adopted defining
the crime and setting out the conditions under which the Court shall exercise

55
jurisdiction with respect to it.
The Court is an independent institution. The Court is not part of the United
Nations, but it maintains a cooperative relationship with the U.N. The
jurisdiction of the ICC will be complementary to national courts, which means
that the Court will only act when countries themselves are unable or unwilling
to investigate or prosecute.

. The Court is composed of four organs. These are the Presidency, the judicial
Divisions, the Office of the Prosecutor and the Registry.

• Presidency
• Judicial Divisions consists of eighteen judges organized into the Pre-
Trial Division, the Trial Division and the Appeals Division. The judges
of each Division sit in Chambers which are responsible for conducting the
proceedings of the Court at different stages. Assignment of judges to
Divisions is made on the basis of the nature of the functions each
Division performs and the qualifications and experience of the judge.
This is done in a manner ensuring that each Division benefits from an
appropriate combination of expertise in criminal law and procedure and
international law.
• Office of the Prosecutor is responsible for receiving referrals and any
substantiated information on crimes within the jurisdiction of the Court,
for examining them and for conducting investigations and prosecutions
before the Court.
• Registry is responsible for the non-judicial aspects of the administration
and servicing of the Court. The Registry is headed by the Registrar who is
the principal administrative officer of the Court. The Registrar exercises
his or her functions under the authority of the President of the Court. The
current Registrar, elected by the judges for a term of five years, is Bruno

56
 Other Offices The Court also the Court includes a number of semi-
autonomous offices such as the Office of Public Counsel for victims and the
Office of Public Counsel for Defense. These Offices fall under the Registry for
administrative purposes but otherwise function as wholly independent offices.
The Assembly of States Parties has also established a Trust Fund for the benefit
of victims of crimes within the jurisdiction of the Court and the families of these
victims.

The Court may exercise jurisdiction over genocide, crimes against humanity and
war crimes. These crimes are defined in detail in the Rome Statute. In addition,
a supplementary text of the Elements of Crimes” provides a breakdown of the
elements of each crime.
“
The Court has jurisdiction over individuals accused of these crimes. This
includes those directly responsible for committing the crimes as well as others
who may be liable for the crimes, for example by aiding, abetting or otherwise
assisting in the commission of a crime. The latter group also includes military
commanders or other superiors whose responsibility is defined in the Statute.

The Court does not have universal jurisdiction. The Court may only exercise
jurisdiction if:

• The accused is a national of a State Party or a State otherwise accepting

the jurisdiction of the Court;

• The crime took place on the territory of a State Party or a State otherwise
accepting the jurisdiction of the Court; or

• The United Nations Security Council has referred the situation to the
Prosecutor, irrespective of the nationality of the accused or the location of
the crime.

57
 The Court’s jurisdiction is further limited to events taking place since 1 July
2002. In addition, if a State joins the Court after 1 July 2002, the Court only has
jurisdiction after the Statute entered into force for that State. Such a State may
nonetheless accept the jurisdiction of the Court for the period before the
Statute’s entry into force. However, in no case can the Court exercise
jurisdiction over events before 1 July 2002.

Even where the Court has jurisdiction, it will not necessarily act. The
principle of “complementarity” provides that certain cases will be inadmissible
even though the Court has jurisdiction. In general, a case will be inadmissible if
it has been or is being investigated or prosecuted by a State with jurisdiction.
However, a case may be admissible if the investigating or prosecuting State is
unwilling or unable to genuinely to carry out the investigation or prosecution.
For example, a case would be admissible if national proceedings were
undertaken for the purpose of shielding the person from criminal responsibility.
In addition, a case will be inadmissible if it is not of sufficient gravity to justify
further action by the Court.

States Parties or the United Nations Security Council may refer situations of
crimes within the jurisdiction of the Court to the Prosecutor. The Prosecutor
evaluates the available information and commences an investigation unless he
determines there is no reasonable basis to proceed.

The Prosecutor may also begin an investigation on his own initiative. In

doing so, he receives and analyzes information submitted by a variety of reliable
sources. If the Prosecutor concludes there is a reasonable basis to proceed with
an investigation, he asks a Pre-Trial Chamber to authorize an investigation.

The Prosecutor’s investigations cover all facts and evidence relevant to an

assessment of criminal responsibility. The Prosecutor investigates incriminating

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and exonerating circumstance equally and fully respects the rights of the
accused.

Throughout the Pre-Trial and Trial phases, the accused, the Prosecutor or a
concerned State may appeal decisions of the Chambers as specified by the
Statute. Following the decision of the Trial Chamber, the Prosecutor or the
accused may appeal the decision or sentence as provided in the Statute. Legal
representatives of victims, the convicted person or bona fide owners of
adversely-affected property may appeal reparations orders. All appeals are
decided by the Appeals Chamber of five judges.

In all of its activities, the Court relies on international cooperation, in particular

from States.

States Parties are obliged to cooperate fully with the Court in its investigations
and prosecutions. States Parties may cooperate in, inter alia, arresting persons
wanted by the Court, providing evidence for use in proceedings, relocating
witnesses, and enforcing the sentences of convicted persons. The Court may
also receive cooperation from non-States Parties, and may enter into
arrangements or agreements to provide cooperation.

International organizations also provide important support to the Court.

Foremost among these is the United Nations. On 4 October 2004, the President
of the ICC Philippe Kirsch and the Secretary-General of the United Nations
Kofi Annan concluded the Negotiated Relationship Agreement between the
International Criminal Court and the United Nations. This Agreement provides
for institutional relations, cooperation and judicial assistance between the Court
and the United Nations while reaffirming the independence of the Court.

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 VI. ROLE OF INTERNATIONAL AND NATIONAL NON-
GOVERNMENTAL ORGANİZATİONS

VII. TURKEY AND HUMAN RIGHTS

Human Rights did not constitute for Turkey an important question before
the coup of 12 September 1980. Turkey was a democratic country with a
constitution on international standards, member of the Council of Europe with
no pretension, party to the European Court of Human Rights even if she didn’t
recognize its jurisdiction and the right to individual petition. She had not any
problem which would draw the attention as to human rights, may be apart her
military presence in Cyprus. With the coup the parliament and the government
were abolished, militaries took up all legislative and governmental powers,
abolished parliamentary immunities, and banned travels to foreign countries. At
first Western countries adopted a cautious attitude. It was a period was eyes
were directed to the occupation of Afghanistan by the USSR; struggle of the
polish trade union Solidarity and to military dictatorships in Chile and Argentina
and militaries in Turkey were exploiting this situation for their profit. Soon,
Parliamentary Assembly of the Council of Europe would express in October
1980 its preoccupation for the abolition of the Parliament, ban to all activities of
political parties, restrictions brought to trade unions in Turkey. Turkey was
discussed frequently in the Internationals Labor Organizations due to the
restrictions on trade unions and at the European Commission for Human rights
due to the claims related to human right violations in Cyprus. Parliamentary
Assembly stated that Turkish parliamentarians whose mandate was expiring few
mouths later (and who were no more parliamentarians in Turkey) would

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continue to sit in the Assembly and asked the political committee to survey with
attention the situation in Turkey and ensure that Turkish parliamentarians were
not be prevented to participate in the work of the Assembly. In January 1983 it
made public that new Turkish constitution was incompatible with the principles
of the Council of Europe, together with its intend not to accept newly elected
Turkish Parliamentarians due to the interventions to the elections and the right
to veto of Council of National Security hampering the free formation of the new
Turkish Parliament.
In November 1983 with the formation of the new parliament in Turkey
Council of National Security’s functions and authorities came to end.
Parliamentary assembly accepted new Turkish parliamentary representatives.
But this was not the end of problems. Turkey was under martial law. Trials of
detained persons during the military regime were lasting. During the military
regime were Courts of Martial Law which were continuing to exist. Adding to
that, new special courts under the name of Court of State Security were
established. If the last execution of death penalty dated 1984, capital punishment
was not prohibited. Number of claims of tortures never diminished. In that
climate the USA in its 1982 annual human rights report referring large Kurdish
minority, pretended that Kurds in Turkey could participate in political life freely
if they accept Turkish national identity, some Kurdish towns at the frontiers had
been evacuated by forces of order and pointed out to restrictions on Kurdish.
1985 report too contained similar statements and pretended that citizens other
then Turkish root were exposed to assimilation policies in Turkey. Turkey was
not taking EC and European Parliament seriously, but was considering
important the Council of Europe. Under pressings coming from this
organization Turkey realized some improvement on human rights and made
some promises of progress on that field which received positively by the
members of the Council of Europe. In 1987 Turkey accepted the right to
individual petition. This was a step taken in order to get support for Turkey’s

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candidacy or the membership of European Union. Next year Turkey would
ratify European and UN instruments against torture. In 1990 she accepted
jurisdiction of the European Court of Human Rights, ratified European Social
Carter, and abolished death penalty for certain offenses, but promulgated decree
of Emergency. This decree opened way to systematic violations of human rights
in the region where the emergency regime (OHAL) was applied. (All kind of
printed matters could be banned by the simple decision of the governors who
had authority to transfer every body out of the region under simple suspicions
that they could disturb the public order.) Noting had been done in the Turkish
legislation against torture, despite the adoption of the two documents stated
above. In 1990 Committee against Torture of the United Nations opened secret
investigations against Turkey and Committee for the prohibition of Torture
created within the Council of Europe started a process of surveillance in Turkey.
Austria made operational OCSE mechanisms against Turkey.
Nearly 100 people died during the celebrations of Nevruz in Cizre, Şırnak
and Nusaybin in 1992. This made the Kurdish question one of main problems of
the Turkish foreign policy. Federal Germany put an embargo to its arms sales to
Turkey. As a result of these developments, the European Parliament adopted a
decision on the ‘rights of Kurdish populations’, and the Parliamentary assembly
of the Council of Europe adopted a comprehensive decision noting that in
Turkey grave human right violations, including torture and lost persons, were
continuing and stressed its preoccupation for the augmentation of violence in the
south-east of Turkey, condemned PKK terrorist attacks, but recalled that in
democratic country all reply to terrorist provocations should be given within the
limits of law. Parliamentary Assembly together with some recommendations for
the prevention of torture asked Turkey:
- To put an end to the state of emergency in the South-east;

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 - To withdraw her communication suspension of the application of
the article 15 of European Convention for the protection of Human
Rights
- To respect fully the identity, freedoms and rights of the Kurdish
population, including the use of Kurdish language in the television.
- To enter in dialogue with those identify themselves as Kurd and
request to develop their ethnic, cultural and linguistic identities
peacefully and to obtain political rights.
In December 1992 some improvements was made in the penal procedure
law with the view especially to prohibit the torture, but this was not enough for
the Committee for the Prohibition of Torture which, for the first time in its
existence, made a public announcement stating that in Turkey torture and
degrading treatment were widely applied.
In1993, forced evacuations of towns continued. In Elazığ two person
who were first declared lost found dead, and the European Court of human
rights considering that right to life and right to be protected from torture had
been violated , deaths could not efficiently investigated, there were no domestic
legal procedures and declared Turkey responsible for violation of relevant
articles of the Convention. The same year Lice remained under fire during two
days and some ten people died, hundreds of houses and place of employment
were demolished. Turkish Government had to pay some indemnities of more
than 4 trillion liras. The same year Committee against the Torture made public
that it detained special evidences shoving the existence of wide and systematic
torture in Turkey.
In 1994 deputies from Kurdish origin of DEP were deprived of their
parliamentary immunities and later, arrested European Parliament and
Parliamentary Assembly condemned the arrests and asked Turkish Government
to liberate the arrested Kurdish parliamentarians. Though the Government
elaborated a packet of democratization, abolishment of DEP by the

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Constitutional Court escalated the crisis. Parliamentary Assembly asked Turkey
to amend her constitution according European norms. Parliamentarian Assembly
of the OSCE wanted Moscow mechanisms be put in function against Turkey.
In 1965 Turkish military intervention on Northern Iraq with 35.000
solders drew severe reaction of Western countries. Germany suspended sales of
arms and all military financial aids to Turkey. European Parliament asked
immediate withdrawal of Turkish security forces from Iraq. Parliamentary
Assembly of the Council of Europe asked Turkey to find a political solution to
the Kurdish problem. Parliamentary Assembly of Western European Union
proposed a form of autonomy for curds within the territorial integrity of Turkey.
All these were in acceptable for Turkey. However Turkey initiated some
amendments in the Constitution improving to some extend political conditions
imposed to political parties. There was noting among the amendments related to
human rights. Problems with the European institution over human right
applications in Turkey continued the following year as well.
IN 1997 Turkish Parliament elaborated a report ( Susurluk raporu)
containing important human rights notes, and founded a High Council of
Coordination on Human Rights. Turkish Ministry of Foreign Affairs prepared a
report on Human Rights which was a comprehensive human rights program. But
all these activities died down when membership of Turkey to the European
Union was not admitted in the Luxemburg summit.
In June 1998 Parliamentary Assembly of the Council of Europe made
some recommendations for Turkey and invited her, inter allia.
- To find a non military solution to problems in south- eastern turkey
- To protect the civil population living in that region from all kind
armed violence
- To make efforts to realize social end economic reforms there
- To be party to two European Conventions on minorities and apply
their provisions for Kurds.

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 - To clarify the fate of lost persons
- To take necessary measures enabling citizens from Kurdish origine
to enjoy their cultural and political rights
- To ensure supremacy of law in the South- East
- To abolish the system of köy koruyuculuğu
- To take measures for the reconstruction of the regional economy
- To take measures to construct anew the schools and hospitals
- To cooperate with international organizations to facilitate the return
of the Kurdish population who desires to return to their villages.
European Parliament changed its policy towards Turkey at the end of
1998 and wanted to reopen the political dialogue with Turkey. The thought was
that if Turkey was isolated, it would not be possible to ensure in Turkey progress
in her political system, neither in the conditions of life of her population.
New claims came up after the arrest of Abdullah Öcalan in 1999. Critics
from Europe were on the right to be judged with justice, and on death penalty.
Turkey was obliged to amend the law related to the State Security Courts to
exclude military judges from them, in order to alleviate critics in this regard.26
As explained above Human rights violations records of Turkey are not
good.
To give an idea :
Petitions against Turkey to the E. Court of H.R. in 1999 : 665 ( 18 found valid)
0 (invalid)
Petitions against Turkey to the E. Court of H.R. in 2000 : 735 (23 found valid)
3 (invalid)
Until June 2001 Turkey had been found responsible of violations of the
Right of life (20), ban to torture (26), right to security and freedoms (17), right to
just judgment (26), right to protection of private life (6), right to recourse,
(27),right to assembly 3 , right to private property 81 , right to education (1 ),

26
Bknz. Baskın Oran, age. S.188-200, s.524-539.

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right to expression (18) , right to thought, conscience and religion (2) , right to
punishment as shown in the law (3) , right to petition ( 6) , suspension of rights in
emergency (1). More over, the amount of money Turkey paid as indemnities to
obtain friendly settlements until that date was some $ 5.239.000.27

27
Bknz. Baskın Oran, age. S.525-526

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