Russian Federation: reinstate disbarred lawyer Aleksey Ladin and protect legal professionals from reprisals
The undersigned international lawyers’ rights and human rights organisations strongly condemn the Tyumen Regional Bar Council’s decision to disbar Russian human rights lawyer Aleksey Ladin in retaliation for his human rights work. We call on the Russian authorities to...
Tunisia: ICJ makes a “follow-up” submission to the UN Human Rights Committee
On 18 December 2023, the International Commission of Jurists (ICJ) filed a submission to the Human Rights Committee (the Committee) on Tunisia’s implementation of the Committee’s 2020 concluding observations regarding the Constitutional Court and the use of counter-terrorism provisions in the context of the Committee’s follow-up procedure.
“Since July 2021, President Kais Said has systematically eroded all checks on his authority, including by curtailing the powers of the Constitutional Court under the 2022 Constitution and by instigating arbitrary prosecutions against those suspected of opposing his rule , including judges, journalists, human rights defenders, and political opponents,” said Said Benarbia, ICJ MENA director. “The Tunisian authorities must abide by their obligations under international law, immediately reinstate a democratic constitutional order, and end the use of the criminal process and counter-terrorism measures to crackdown on dissent and free speech.”
In April 2022, pursuant to the Committees’ request to the State party to provide follow-up information on the implementation of its recommendations regarding the Constitutional Court, the state of emergency and counter-terrorism, and freedom of peaceful assembly and excessive use of force by the State’s agents, Tunisia submitted further information regarding its obligations under the International Covenant on Civil and Political Rights (ICCPR) as they pertain to the above-mentioned concerns. During the Committee’s 140th session between 4 and 28 March 2024, this information, and Tunisia’s implementation of the Committee’s recommendations on the same, will be reviewed.
The ICJ’s submission to the Committee highlights a number of ongoing human rights concerns with respect to the country’s implementation of and compliance with the provisions of ICCPR, which are not adequately addressed in the State’s submission of further information, including:
- Article 2(3). By failing to establish a Constitutional Court, and by severely limiting the independence and powers of the Constitutional Court under the new Constitution – should one ever be established – Tunisia has failed to provide recourse to resolve disputes about the constitutionality of the exceptional decrees promulgated by the President under the state of exception, including by removing the power of the legislature to challenge the constitutionality of such decrees in the new Constitution;
. - Article 4(1) and (3). By failing to specify the nature of the public emergency that purportedly necessitated the suspension of the Constitution in July 2021 per article 80 of the 2014 Constitution on state of exception, and the corollary interference with ICCPR rights, and by failing to notify the derogation to these rights, Tunisia has failed to meet its obligations to prove and ensure that the exceptional measures adopted by the President were “strictly required by the exigencies of the situation”;
. - Article 9(1). By arbitrarily detaining perceived political opponents, lawyers or judges under counter-terrorism provisions without reliable evidence, Tunisia is unlawfully interfering with their right to liberty;
. - Article 19 (1) and (3). By arbitrarily investigating and prosecuting members of the judiciary, political opponents and lawyers under counter-terrorism provisions, Tunisia is unlawfully interfering with their right to express their opinions both in their professional and personal capacity; and
. - Article 14(1). Through interference in the appointment, career, disciplining and dismissal of judges, prosecutors and High Judicial Council members, the President has undermined the independence and impartiality of tribunals presiding over criminal investigations and prosecutions, including with respect to counter-terrorism proceedings against perceived political opponents and members of the judiciary.
Contact
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3800; e: said.benarbia(a)icj.org
The EU agrees to compromise human rights of migrants and refugees
Today, the ICJ condemned aspects of the agreement reached by the EU Member States and the European Parliament on the last five instruments from the EU Pact on Migration and Asylum, stressing that it will effectively strip away core human rights and refugee protections for persons from vulnerable populations.
The ICJ calls on the EU and its Member States to adhere strictly to their international legal obligations, particularly under human rights law and refugee law, in implementing any new legislative measures.
The Pact, a major set of legislative proposals on the EU’s migration policy initially proposed by the European Commission in September 2020, aims to update the existing rules of the Common European Asylum System (CEAS), which was renegotiated just a few years prior to this proposal.
« The agreement reached today between the co-legislators, the Council of the EU and the European Parliament sends a worrying signal on the state of EU’s commitment to human rights protection, » said Karolína Babická, Senior Legal Adviser of the ICJ Europe and Central Asia Programme. « Although a final text of the legislative instruments is yet to be seen, the agreement waters down protection and safeguards for the rights of migrants and refugees, that oblige the EU Member States under international law. »
Based on the agreement reached today on the Asylum Procedures Regulation, applicants will not have access to free legal assistance, including in border procedures, as it will only be available for certain persons at the appeals stage, where for many it will be too late. Other points agreed include more fast-track procedures with fewer individual safeguards for the migrants and refugees in question. The Council and the European Parliament also agreed with the proposal of a fiction of “non-entry” to the territory, which is intended have the effect of removing migrants and refugees from the protective of spheres of the state on the grounds that they are not really in the country.
« These are in breach of international human rights standards and rules on jurisdiction and will lead to more administrative detention, which effectively punishes those in most need of protection, » said Babická, « It appears that the instruments are intended to allow for border procedures with nearly no procedural safeguards, resulting in quick deportations. However, even in border zones or transit zones, the State’s human rights law obligations remain fully applicable. »
The asylum border procedure as agreed would apply to asylum seekers who are either “unlikely to be granted asylum”, whose claim is fraudulent or abusive, or who are considered a security risk. This provision undermines the key principle of refugee protection, ensuring an individual assessment of one’s asylum claim. Regardless of the general recognition rate, many individuals are still refugees in need of protection status due to circumstances of their individual case. Equally in assessing whether the application is fraudulent, abusive or potentially a security risk, an individualised assessment must be in place.
Indeed, it is difficult to assess any of the purported criteria without fair hearing based on equal protection and the rule of law.
A further problematic aspect includes the disparate treatment and safeguards for available for children below the age of twelve and those twelve and older. Under the Convention on the Rights of the Child, a child is considered a person under the age of 18 must be afforded the protections due to them. Under these rules, older children would for instance not be exempted from border procedures.
The ICJ has previously warned about harmful provisions in the proposals regarding detention in the Screening and Asylum Procedures Regulation.
The Regulation on Asylum and Migration Management, replacing the current Dublin Regulation, will now exclude the possibility for applicants to be transferred to the Member State where they have a sibling or other family member with a legal residence. This provision seriously worsens the situation of asylum applicants in the EU CEAS so far, in breach of international legal standards, especially the right to family life.
Thailand: Authorities must do more to ensure access to justice and effective remedies for extraterritorial corporate human rights abuses
The conclusion drawn at a workshop hosted by the International Commission of Jurists (ICJ) and Thailand’s Ministry of Justice on 30 November and 1 December 2023, in Ayutthaya province, was that Thailand should step up efforts to provide real access to justice for victims of corporate human rights abuses involving Thai companies abroad. This is imperative to make sure that Thailand meets its international legal obligations and fulfills the commitment it made in adopting a National Action Plan on Business and Human Rights Phase 2 (NAP), aimed at regulating the conduct of Thai companies abroad.
The workshop advanced a crucial component of the set of action points outlined in the NAP, engaging nearly 30 members from the justice sector, relevant authorities across various departments, academics, lawyers, and civil society actors.
“This workshop holds particular importance as it contributes to the global initiative aimed at addressing the lack of human rights regulation and the accountability of transnational corporations, a significant gap in human rights protection,” remarked Santiago A. Canton, ICJ’s Secretary-General in an opening statement.
“The state’s obligation to prevent human rights abuses committed by the companies it may influence does not stop at the border. The adoption of the Maastricht Principles in 2011 revealed evidence of State obligations to protect economic, social, and cultural rights beyond its borders, including in the context of corporate conduct, and this obligation binds the judiciary of the State. These principles have subsequently been confirmed by several jurisprudences of the UN treaty bodies,” said Sandra Epal Ratjen, ICJ’s UN Senior International Legal Adviser.
During the workshop, participants discussed existing challenges, covering areas such as corporate veils, conflicts of law, jurisdictional issues, statutes of limitations, and remedies.
“When an abuse occurs, the legal separation of corporate entities often allows parent companies and their representatives to evade responsibility for human rights abuses committed by them, leaving victims with no means to enforce compensation awards,” said Sanhawan Srisod, ICJ’s Legal Adviser.
“Courts in the parent company’s home country may serve as an alternative forum for claims seeking remedy or reparation. However, affected foreign citizens generally encounter greater barriers than Thai citizens in accessing justice due to several reasons, including language barriers, lack of understanding of the Thai legal system, financial constraints, short statutes of limitation, and the unavailability of access to legal aid, local lawyers, and internal corporate documents,” added Srisod.
Proposals from the participants included amending laws to shift the burden of proof, especially when critical facts or documents necessary to resolve a claim reside exclusively within the knowledge of the corporate defendant. This involves considering the potential influence parent companies exert over their subsidiaries in relevant actions. Other recommendations involved extending the statute of limitations for cases involving victims of transnational corporate human rights abuses, acknowledging the existence of corporate veils under Thai law, strengthening the enforcement of foreign judgments against parent companies in Thailand.
Effective measures aimed at ensuring remedies could include requiring businesses to obtain insurance coverage or establishing preventive remedial funds for Thai businesses before embarking on overseas investment. The eligibility criteria of existing funds and grievance mechanisms could be widened within Thailand to explicitly allow affected persons outside the country access to such remedies and mechanisms. There were also suggestions to explicitly broaden the scope of duties of the National Human Rights Commission of Thailand (NHRCT) to investigate and reconcile abuses occurring abroad.
Further recommendations included establishing standards for remedies with a human-centered approach and exploring the implementation of social sanction measures.
Participants considered how best to implement measures through bodies such as the Securities and Exchange Commission (SEC) and the Board of Investment (BOI), whose representatives attended the Workshop. This encompassed proposals for sustainable disclosure of corporate information to both the SEC and BOI. Additionally, there were suggestions to strengthen the BOI’s role or assign a permanent mandate to the NAP Committee for overseeing Thai investments abroad. Participants also explored the idea of incorporating human rights challenges faced in foreign investment as mandatory disclosure points in the SEC’s One-Report, which listed companies are required to submit annually. Furthermore, there were discussions regarding the Stock Exchange of Thailand (SET) assuming a more influential role in regulating transnational corporations.
Background
Thailand’s National Action Plan on Business and Human Rights Phase 2 (2023-2027) outlines various activities within the Action Plan on Cross Border Investment and Multinational Enterprises.
Its Action Point 1.3 designates the Ministry of Justice, supported by the Ministry of Foreign Affairs and the Office of the Attorney General, with the responsibility of conducting a study. This study aims to offer recommendations for amending laws or establishing measures aimed at ensuring access to the justice system and effective civil, criminal, and administrative remedies for communities, both locally and overseas, affected by the operations of Thai companies or state enterprises abroad.
This workshop was the second of its kind. The first meeting was conducted on 10 and 11 September 2022 by the ICJ and Thailand’s Ministry of Justice.
Speakers at the Workshop included:
- Darunee Paisanpanichkul, Deputy Dean, Faculty of Law, Chiang Mai University
- Ruangsak Suwaree, Director-General, Rights and Liberties Protection Department, Ministry of Justice
- Sandra Epal Ratjen, Senior International Legal Adviser and UN Representative, ICJ
- Sanhawan Srisod, Legal Adviser, ICJ
- Santiago A. Canton, Secretary-General, ICJ
- Sayamol Kaiyoorawong, National Human Rights Commissioner of Thailand
- Teerachai Sanjaroenkijthaworn, Co-ordinator, Extra-Territorial Obligation Watch Coalition
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
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