Human Rights Committee

Eighty-ninth Session

2430^th & 2431^st Meetings (AM & PM)

CONCLUDING REVIEW OF CHILE’S REPORT, HUMAN RIGHTS COMMITTEE EXPRESSES CONCERNS

OVER AMNESTY DECREE, PRISON CONDITIONS, INDIGENOUS PEOPLE’S RIGHTS

Afternoon Discussion Focuses on States’ Reservations to Treaties,

Harmonization of Working Methods with Those of Other Treaty Bodies

While Chile had made rapid and sweeping reforms since the re-establishment of democracy in 1990 following a 17-year military regime, concerns remained regarding the decree that provided amnesty for those guilty of committing serious human rights abuses during the dictatorship, prison conditions and the rights of indigenous peoples.

The 18-member Human Rights Committee this morning concluded its consideration of steps the South American country had taken to comply with the International Covenant on Civil and Political Rights and its two Optional Protocols.

One expert expressed concern that not one of the more than 27,000 perpetrators in torture cases had been prosecuted.  The fact that an amnesty decree was not being implemented was a step forward, but as long as it remained on the books, there was a real danger of backsliding.

As for indigenous issues, experts and delegates agreed that, while the Indigenous People’s Act of 1993 was a significant step, it addressed demands that had since become outdated.  Chile’s legislative framework had proven insufficient for dealing with Mapuche demands and preventing the gradual loss of their lands, said one expert.  A member of the delegation pointed out that no community had been deprived of land since 1990 and the Government was working towards restitution.

Several experts expressed concern about the fact that civilians could still be brought before military courts, though a member of the delegation emphasized that Chile was seeking to change that.  Representatives also stressed that there had been wide-ranging penal reform, including adjustments relating to those with mental disabilities.  A pending draft law would set up psychiatric units within penal establishments.  Experts, however, expressed concerns about overcrowding, the fact that male and female prisoners were sometimes kept together, and the fact that people could be held incommunicado for up to 10 days.

A criticism levelled at the delegation by one expert was the fact that its responses often pointed to draft laws, whose future was uncertain.  Chile’s electoral system was such that legal changes could be prevented by political blocs that controlled as little as one third of the seats in Congress.  The Committee Chairman also reminded the delegation that, even though Chile’s Government involved a separation of powers, the responsibility to implement the Covenant lay with the entire State, not only with the different branches of Government.

In the afternoon, Nigel Rodley, expert from the United Kingdom, presented the report of the working group on reservations, which met in Geneva on 14 and 15 December 2006 (document HRI/MC2007/5), having represented the Human Rights Committee in that group.  A discussion ensued on the draft recommendation of the working group concerning States’ reservations to treaties, specifically how strong a basis a State should demonstrate for entering a reservation. 

The expert from the United States, Ruth Wedgwood, expressed concern that requiring a State to establish its intention “incontrovertibly” at the time it entered a reservation would be nearly impossible, and could even make States and their parliaments less inclined to join treaty regimes in future.  Mr. Rodley, on the other hand, said he thought he had taken on board the view of the Committee that the working group’s initial recommendation on reservations had been too “light”.  He agreed that States’ views should be considered, but added that a legal position was not necessarily that of the lowest common denominator. 

Mr. Abdelfattah Amor, expert from Tunisia, presented the report of the working group on the harmonization of working methods of treaty bodies, which met in Geneva on 27 and 28 November 2006 (document HRI/MC/2007/2).  In the ensuing discussion, widespread objections were raised to the report’s proposal to establish a working group to consider creating a unified body for communications.  Iulia Antoanella Motoc, expert from Romania, asked what the working group would achieve, other than creating another body that would lead to backsliding in human rights.

In the end, it was agreed that Mr. Rodley would formulate a document that expressed the concerns of all members of the Committee about the proposed working group on communications, and that would replace the report text with agreed language.  Several experts insisted that that document should carry an official United Nations number, in order that it would have the same weight as the report.

The Committee will meet again at 10 a.m. on Friday, 16 March.

Background

The Human Rights Committee met this morning to conclude its examination of the fifth periodic report of Chile, as part of the Committee’s eighty-ninth session, which is scheduled to run through 30 March.  It will present its concluding observations at the end of the session.  For background, see Press Release HR/CT/681 issued on 8 March and HR/CT/684 issued on 14 March.

Delegation’s Response to Initial Round of Questions

Responding to questions on the penal system, a member of Chile’s delegation said that penal reform had been far reaching and included adjustments relating to those with mental disabilities.  A pending draft law would set up psychiatric units within the penal establishments, in order to provide special attention to those in the inmate population who needed it and to examine the possible culpability of those presented to court.

Responding to questions about gender minorities, another member of the delegation said that Chile was advancing in that area through several legal initiatives.  A bill on sexual discrimination, which added new crimes and aggravating factors, was in the advanced stages of working its way through the legislature.  Meanwhile, another draft bill, which was yet to be presented to Congress, would regulate civil unions to provide a platform for same-sex couples. 

As for the national human rights institute, she said that it was compatible with the Paris Principles.  It was constituted as a corporation of public law with its own legal personality and assets.  Its leadership was elected by law school deans, Chile’s President, the two houses of Congress and various human rights institutes.  The institute had a specific sphere of competence to protect human rights and its operations were transparent, with all acts and recommendations open and public.

Experts’ Questions and Comments

MICHAEL O’FLAHERTY, expert from Ireland, said he had taken note of the expressions of strong will to correct the problems, particularly through the legislative route.  That was very welcome.  He hoped that, in what seemed to be a very heavy programme, the issue of discrimination against sexual minorities and mentally disabled persons would not “fall down the priority list”. 

He asked whether the procedures for voluntary incarceration and the appointment of guardians in that regard could be reviewed.  Also on the issue of sexual minorities, while welcoming the news that sexual orientation would be one of the prohibited categories in the new anti-discrimination bill, it seemed that the problem had to be dealt with in the context of the very wide social prejudice.  All the laws in the world would not correct the problem.  The legislative initiatives should be matched by very widespread public awareness and education programmes, he stressed.

WALTER KÄLIN, expert from Switzerland, thanked the delegation for its detailed answers, but requested copies of legislation pertaining to terrorism, particularly the text of the articles that defined crimes of terrorism, plus copies of the articles that set out specific procedures for cases, trials and so forth that related to terrorist acts. 

NIGEL RODLEY, expert from the United Kingdom, referring to torture and reparations, asked why the National Commission for Political Detentions and Torture could not identify the perpetrators of the torture.  Were the reasons the same as why the National Commission on Truth and Reconciliation had not been allowed to identify the perpetrators of disappearances and extrajudicial executions?  Had he understood correctly that not one of the more than 27,000 perpetrators in the cases of torture had been prosecuted?  And was there no intention to review the power of judges for “incommunicado detention” for up to 10 days?

On the question of prison abuse, it was not clear whether the 61-day sentence was final or whether it was still under appeal, he said.  For compensation, were separate judicial proceedings required, or was that part of the same judicial process against the alleged perpetrators?

JOSE LUIS SANCHEZ-CERRO, expert from Peru, noted that the Supreme Court had recommended non-implementation of the decree law on amnesty and that it had also annulled the sentences of the military courts that had implemented that amnesty decree.  He asked if that decree law had been repealed since it was incompatible with a State that had the rule of law as Chile now did.  Also, did that decree law continue to be enforced?  Were crimes against civilians heard in military courts?

CHRISTINE CHANET, expert from France, felt the responses of the delegation had been somewhat vague, and it had not always been possible to “get to the essence of things”.  She drew the delegation’s attention to the fact that often its answers concerned draft laws, and, in response to Mr. O’Flaherty’s questions, that was a pre-draft law.  The Committee considered that positive law could modify provisions, but draft laws were considered in a “lesser light”. 

Moreover, she said, drafts could sometimes be delayed for several years.  The matrimonial regime for example was very complicated.  She wanted to know what institutional process had been blocked for 12 years and how the Senate had been able to block it, as well as how inter-American “instances” had been able to intervene in that area.

Committee Chairman, RAFAEL RIVAS POSADA of Colombia, informed the delegation that, in accordance with standard practice, it would have until Tuesday to respond to those additional questions in writing, in order to give it time to consult with its capital, or it might wish to supply some answers right now.

Delegation’s Response

On the subject of identifying the perpetrators of torture, disappearances and executions, a member of the delegation said that the relevant commissions did not have the same characteristics as courts of law.  Another member clarified that the decree creating the commissions had as its goal the identification of victims for purposes of providing reparations.  As for identifying the guilty parties, that was a judiciary matter.  To sanction those who were guilty of torture, there had been investigations but those were part of broader initiatives.  He could find out more information about that topic and provide it to the Committee.

As for the question about the 61-day sentence for prisoner abuse, another representative said that the sentence was not subject to appeal.  He added that the person convicted was a warden of a penitentiary, not just a policeman or guard.  In addition to the 61-day sentence, he had also been permanently relieved of his duties.  As for whether civil indemnification was a separate process, he said that, under the new penal process, a person could bring a civil suit against the perpetrator but not against the State.  As for third parties, the law followed the classic measures on liability.

On the amnesty law, another member of the delegation said that the Supreme Court had reaffirmed the application of that law.  Another member clarified that the amnesty law had not been revoked.  Previously, there had been no possibility of revoking it.  Following the 2005 constitutional reform, a constitutional court could declare a general annulment or revocation of a law, but that had not been applied to the amnesty decree.  Some draft bills had been presented to nullify or revoke the amnesty law, but they would not succeed.

As for judges’ power to confer incommunicado detention, he said that the rules were strict.  All individuals must be brought to court within 24 hours.  Once there had been a judicial review of detention, a judge could order pretrial detention, but a person could not be prevented from communicating with legal counsel and family members.

As for the congressional stalemate on property under the marriage regime, he clarified that the 1994 law had established a new system providing for joint ownership of assets.  What was under discussion was not the establishment of an additional regime but a supplementary one.

On the subject of civilians being brought before military courts, another member of the delegation said that Chile was seeking to change that.  The current power of military courts made it possible to bring civilians before them for specific crimes.  Legal modifications were being examined that would grant military courts the competence only to address situations involving military officers. 

Continuing, the head of the delegation said that, as of 2000, the Chilean Government had decided to address the issue of deteriorating prison conditions by adopting non-traditional measures, which were based in a public-private investment partnership.  Some $249 million had been invested in the construction of 10 new penitentiaries, and more than 16,000 new places had been made available for inmates.  Hopefully, that had put an end to the old housing conditions in many of the penitentiaries.  There was a table in the fifth periodic report, which provided a detailed breakdown of how the investment programme was being applied.

Regarding reform of the criminal proceedings, he said there was an organic law in place, which regulated the duties and powers of the judges.  In 2000, a reform had supplemented the penal procedural law to ensure proper supervision and monitoring of prison living conditions for which certain actions had been taken.  Those had included weekly visits of one judge per court to each prison unit, with the aim of investigating whether detainees were suffering from any form of undue pressure, deprived of the right to defence, or whether due process had been delayed without grounds.  Moreover, the hygiene and state of security and safety were also monitored in the context of the weekly and monthly visits.  Clergy also visited the prisons when deemed necessary.

An organic code on courts also requested that the Office of the Prosecutor monitor and supervise whether adequate penal proceedings were being pursued by the courts of appeal, he noted.  In 2002, information officers had been assigned to take on board suggestions and complaints of inmates.  Those officers had been dispersed throughout the country.  In addition, a procedural manual had been elaborated.  It governed the way the officers worked.  Finally, the national directorate of the Chilean gendarmes provided compulsory training for the criminal judiciary personnel.

Responding to the series of questions yesterday and today about the military courts, he said that an inter-ministerial expert group had formulated new norms commensurate with international standards.  Nevertheless, there had not yet been a comprehensive reform of military justice.  However, the Government had sought to correct many of its deficiencies, and numerous decree laws had been issued to restrict the military court’s power.  For example, journalists formerly could be brought to trial for freedom of expression, and now they no longer could.  The independence and impartiality of the courts must be guaranteed, he stressed. 

On the legal treatment of juvenile offenders, a special criminal proceeding had been created to be applied to juvenile offenders between the ages of 16 and 18, he said.

On discrimination, the 1980 Constitution, which had been ushered in during the military regime, had established a bi-nominal electoral system applicable to congressional elections, he said.  That system needed to be overhauled, in order to bring it in line with the larger electoral system because it resulted in insufficient representation of minorities.  The system also made it difficult to forge political alliances.

Also, he drew attention to a draft law containing measures against discrimination and it was well under way, now in its second constitutional phase.  In essence, it was aimed at the prevention and elimination of all forms of discrimination against any person and made it the duty of the State to establish policies to ensure that all persons fully enjoyed their rights.  The law defined arbitrary discrimination, required legal implementation and established the grounds for appeals.

Regarding the indigenous population, he said that, until 2003, nearly 30 per cent were living in poverty, with a more than 10-point separation from the non-indigenous population.  That had been an “alert point” for the State, which had now narrowed that disparity.  The problem had stemmed from the “strong economic and social discrimination” suffered by the indigenous population until the 1980s.  Now, the indigenous people in Chile enjoyed approximately 10 per cent of the State’s benefits, as well as policies of “positive discrimination”, such as the inter-cultural health and education programmes, the return of lands, scholarships and special housing provisions. 

He said that indigenous people did have rights that had been acknowledged under the law, including those regarding land, water, cultural diversity and identity.  One of the main legal objectives had been to enhance indigenous lands.  The 2005 law dealing with coastal lands had been drafted with the input of Mapuche organizations and had consecrated their right to coastal access.  As stated previously, Chile was determined to ratify the universal declaration on the rights of indigenous peoples.  Owners of indigenous lands enjoyed all rights under the law, with the exception of the right to transfer land to non-indigenous persons.  Mineral resources remained the property of the Chilean State.  The Indigenous People’s Act of 1993 addressed the main demands put forth by the indigenous peoples, but those demands had changed in the last 14 years.  Recent debates had focused on political representation, sustainable development, the historical truth process and other issues. 

Experts’ Questions and Comments

Mr. RODLEY, expert from the United Kingdom, said he desired further clarification on the subject of incommunicado detentions.  Was there concrete information on periodic prison visits?  To what extent had ad hoc visits by senior judges occurred, and what results had been produced thereby?  Had there been any similar efforts in the area of detentions in police custody?  Where were people held after being brought before a judge?

On the subject of prison building and overcrowding, he asked what the rate of incarceration per 100,000 people in Chile was.  New prisons were being built and existing ones needed refurbishment.  How many prisoners were accommodated in them?  It was not possible to build oneself out of overcrowding.  There were alternatives to imprisonment and he invited the delegation to consider them.

Under Chile’s political system, if a party had 33 per cent of the seats, it could block legislation, which explained why there had been a hold-up in many of the proposed changes, he said.  Where were the votes to change the law going to come from if the country’s system provided such a blocking capacity?  What were the prospects for changing that system? 

EDWIN JOHNSON LOPEZ, expert from Ecuador, expressed concern about the jurisdiction of military courts and whether that contributed to the impunity of military personnel for gross human rights violations.  Granting military courts the ability to try civilians was not in compliance with the Covenant.  The law needed to be changed.  He expressed concerns about allegations of torture, excessive use of force by police and other forces, and the lack of independent mechanisms for investigation.  The State should create an independent body to investigate such excessive use of force. 

He added that the 1993 law on indigenous populations was now considered obsolete in view of the enhanced acknowledgment of the rights of indigenous peoples in international law.  Chile’s legislative framework had proven insufficient for dealing with Mapuche demands and preventing the gradual loss of their lands. 

On the issue of sexual minorities, he referred to the case of the judge who was a biological mother of three and had a partner of the same sex.  The Supreme Court had granted custody to the children’s father because she was a lesbian, which ran counter the normal practice of giving custody to the mother unless she was a drug addict, alcoholic or a prostitute.  He would like further clarification on that issue.

As for union rights, he said that those were only guaranteed at the company level.  The 2001 law, rather than providing for national collective bargaining, only provided for voluntary collective bargaining, and then only if the employer gave its consent.  In the public sector, employees did not have the right to go on strike and agricultural workers could not go on strike during the harvest season.  Instead of preventing firings, labour codes prevented workers involved in such actions from defending themselves.  Anti-unionization activities continued and proceedings in the case of unfair dismissals were so slow and expensive that workers often abandoned them.  He wanted to know what measures were being taken to resolve all of the above issues.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, said that, following the last report, the Committee had noted the existence of sexual harassment in the workplace.  The delegation had said that a law would be passed making that an offence.  What action had been taken on that recommendation?

In the judiciary, what was the representation of women?  In the last report, the Committee had said that women’s representation was inadequate and that something should be done to improve that, if necessary, by affirmative action.  He also wanted to know what major reforms had been taken as a result of the new Code of Criminal Procedure.  What were the qualifications for granting legal aid?  Was that done by statute or executive order, and when would the new legal aid bill be enacted?  He also wanted to know more about the family courts and the judicial academy for the training of judges. 

IVAN SHEARER, expert from Australia, said that the prison visits by members of the judiciary had been greatly appreciated.  He knew of one magistrate who had drawn attention to several inmates sleeping out in the open and others living in unhealthy conditions.  Another district attorney had revealed serious human rights violations following her visit.  He was wondering what the State party had done to follow up those very recent reports.  He had also been told that female prisoners were not always kept in special facilities, but sometimes in sections where the male prisoners were kept.

In the tables set out in the report in response to the Committee’s question 13, a special section had been devoted to the category of prisons classified for “homosexuals-HIV-insane”.  That was a rather strange and unfortunate grouping on the face of it.  Insane prisoners often were held, not in prisons, but in special sections of mental hospitals.  Those persons infected with HIV might need special care, and he doubted whether homosexuals should be in a section all to themselves unless they had been convicted of assaults on children, but that would apply to heterosexuals as well. 

He also had a series of questions about conscientious objectors to the military service, including why Congress had rejected such a measure and whether it was possible to reconsider it, not necessarily the abolition of compulsory service, but perhaps an alternative service in the form of community service.

Mr. O’FLAHERTY shared his disappointment that that legislative initiative had failed and asked whether it might be reintroduced.  Also, could Congress consider a reformulation ensuring that there be no punitive consequences for objection to military service, not just before military service commenced, but also during the time it was operational?

On indigenous issues, he said that, while he was reassured that the State party recognized that those issues were very important, he felt the Government should seek once more to ratify the International Labour Organization’s Convention 169.

Also on that matter, the State party had said it did not intend to ensure coverage of ancient land within the framework of regulating indigenous lands, he noted.  However, not recognizing ancient land had been a catalyst for many social problems and tensions.  Several references had been made today to matters of land, but not to other resources, such as water and maritime use, on which indigenous people traditionally depended.  Did the delegation agree with the position by the Special Rapporteur on the human rights of indigenous peoples on that issue, and, if so, what was it doing to act upon that? 

ABDELFATTAH AMOR, expert from Tunisia, asked several questions about voter lists, noting the statement that the Government was moving towards “proportional representation”.  Specifically, he wanted to know whether that meant national voters lists or only proportional lists at the district level.  Also, did they imply a simple vote or a preferential vote?  In addition, might proportional representation, even with a 3 per cent threshold, entail the risk of placing too much emphasis on minorities?

ZONKE ZANELE MAJODINA, expert from South Africa, asked about what happened at the moment of an arrest.  There were still reports of physical mistreatment and psychological torture by police, especially among the poor.  What measures had the State party taken to deal with that residual subculture of police violence within the framework of the new criminal procedures?

Also on the indigenous population, she queried continuing reports of violations in the context of land ownership, including cases of intimidation and even death threats when those complaints were brought to the authorities.

JULIA ANTOANELLA MOTOC, expert from Romania, asked how, if the Government supported the Declaration on Indigenous Peoples, it did not then support the International Labour Organization’s Convention 169 since the former text was far more progressive and forward-looking.

She also asked how the Government obtained informed consent with regard to investment projects to be undertaken on the territory of indigenous persons.

Mr. SANCHEZ-CERRO, expert from Peru, noting that the delegation had mentioned that there was a constitutional reform under way to introduce five changes to provide for greater proportionality in the elections, asked whether that was an executive or congressional initiative.  If it was an executive initiative, did the delegation foresee another rejection by Congress?  Efforts to change that “perverse system” since 1992 had so far failed, so what did the State party envisage in that respect, given that the election system was “in the very least, unfair”? he asked.

YUJI IWASAWA, expert from Japan, thanked the delegation for their replies thus far, adding that his question had already been asked, and for the sake of time, he would not repeat it.

RUTH WEDGWOOD, expert from United States, noting that, although there had not yet been any prosecutions for torture, asked whether an administrative process had in some way assured the retirement of all persons so involved and some process to maintain a historical record.

More generally, she said that the report had been very welcome because of the high-profile accorded Chile owing to the “Pinochet incident”.  Thus, Chile was of huge importance, not just for Chile, but for the rest of global society, and the country’s success in dealing with its problems was “a kind of class action in a global sense” -– “a kind of model for other societies”.

Responses of Delegation

On questions regarding the penal system, a member of the delegation said that far-reaching reform was under way to bring it into line with international norms.  Access to justice services had improved considerably.  Since 2002, more than 500,000 persons had received legal aid before the penal courts.  There had been more than 17,000 visits to penal institutions in northern Chile alone by public defenders and defence attorneys, clear evidence that there was day-to-day monitoring of conditions.

There was a 24-hour limit to the amount of time someone could be held before appearing before a judge, and police must report arrests to the prosecutor’s office within 12 hours, he said.  Once the court heard a case, it determined what measures were to be implemented.  If a preventive prison sentence was handed down, it would be in the appropriate penal system under control of gendarmes, not the police.  Chile was not proud of its rate of incarceration but was taking measures to build new penitentiary facilities to solve overcrowding and help in rehabilitation.

On the topic of prisoners held incommunicado, another representative said that, during the former regime, people could be held indefinitely.  The 2000 law introduced important modifications.  For example, prisoners could not be prevented from communicating with their lawyers.

On the case of the judge whose children were taken away because she was a lesbian, another representative said that that decision could be repealed or reviewed.  The judge had appealed to the court of human rights and the case was pending.  Currently, she was in negotiations with the State.  Since both sides had reached a confidentiality agreement on the talks, he was unable to reveal more information.

On sexual harassment, another member of the delegation said that, since the re-characterization of that crime in 2004, many cases had been filed under the heading of sexual abuse.  The percentage of women serving on the higher courts was gradually on the rise.  While the President was working to achieve gender balance in distributing portfolios at the various ministries, such affirmative action had not yet been applied to the judiciary.  Another factor was that access to judiciary posts required the completion of training in the judicial academy.

On the question of indigenous issues, another member of the delegation said that the new indigenous policy had been drawn up to expand recognition of indigenous rights.  Hopefully, further discussions would be launched in the current year.  The President hoped to see the indigenous people’s declaration submitted to Congress and ratified.  As for land issues, no community had been deprived of land since 1990 and there had been no accusations that that had happened.  Rather than appropriating indigenous lands, the Government was working towards restitution, which was not covered by prior legislative mechanisms.  So far, some 500,000 hectares had been returned to indigenous ownership. 

She recognized that there had been institutional delays in applying the measure that applied to purchasing land in order to transfer it to the indigenous community.  The situation had since improved greatly, as institutions had been streamlined.  Land could be held collectively, if a community so decided.  The law also provided for recognition of ancestral waters and their restitution.  A draft bill submitted last year recognized preferential access to the coastal community for indigenous people.  It was currently undergoing a second reading and being examined by the Senate; hopefully, it would be adopted by the end of the year.  While the indigenous law was limited, it did require that communities be consulted on investment projects in their areas or in neighbouring ones.  Chile was working on improving that mechanism.

As for detentions of indigenous peoples, she said that nine regional offices had been set up to make sure that they were getting proper protection and being provided with interpretation.  The police force had undertaken significant efforts when operating in indigenous areas to make sure that they took account of local customs.

On labour laws, another member of the delegation said that additional information would be provided to the Committee at a later time.  The number of unions was a problem and Chile was working to address that.  Extended collective bargaining did take place, though not in the public sphere.  Nonetheless, there were associations of officials within all ministries, and there was also an extensive system within the Ministry of Planning which in practice meant that the collective bargaining process was provided for.  It was also important to distinguish between strike and stoppage.  Strikes took place during collective bargaining and were provided for in the Labour Code. 

He added that an outsourcing law had entered into force a month ago.  It enshrined the principle of solidarity between the contracting and contracted parties and the fact that the parent company, not the subcontractor, must ensure that all requirements were met. 

On the subject of prisons, another member of the delegation said that new places had been made in the Santiago 1 prison, which had resolved the overcrowding situation.  As for inmates sleeping in the open, changes had been made to ensure that adequate follow-up was given to visiting and reporting.  The rate of incarceration was approximately 238 inmates per 100,000 population.  Chile was working on the reduction of sentences and other limited measures; by the end of the year, the Ministry of Justice would submit further proposals.

He added that further information would be provided to the Committee at a later time on the electoral system, voters’ lists and conscientious objection.  Another member of the delegation clarified that conscientious objection would be addressed in an independent draft bill, which was currently before the Chamber of Deputies.

Concluding Remarks by Committee Chairman and Head of Delegation

The Committee Chairman thanked the delegation for the information it had provided and took note of the quality of the report, the earnestness of the issues elaborated and efforts to disseminate the information.  He hoped that the next report would be submitted in a timely manner.

Highlighting some of the Committee’s lingering concerns, he touched on the need for wide-ranging reforms to the legislative, constitutional and social systems following the military regime.  The Committee had highlighted the immense efforts made in legislative reforms to rectify the previous situation and install the rule of law in the most perfect sense.  The delegation had acknowledged that its mandate was not limited to legislative measures. 

The Committee assigned equal importance to the implementation of legislative measures and addressing human rights abuses, which was why it insisted on having information about the practical results of legislative measures.  In the case of Chile, there were clearly obstacles to the speedy adoption of constitutional and legal reforms.  He reiterated the hope that political difficulties could be overcome as soon as possible. 

He said he still harboured serious concerns about the persistence in the law of provisions such as the amnesty decree.  While non-implementation was a step forward, there was a real danger of reversion to measures that contradicted the Covenant as long as it remained on the books.  He hoped that situation would be done away with as soon as possible.

Restrictions on abortion remained a concern, he said.  As long as such criminalization existed in the legislature, it would impinge on article 6 of the Covenant.  In countries with a separation of powers, there were often difficulties when it was not the executive branch’s responsibility to respect the Covenant.  The delegation must recognize that the responsibility to implement the Covenant must lie with the state, not with the different branches of Government.  Doubts remained about the treatment of indigenous peoples and property rights within marital unions.  Further clarifications of reforms in those areas were needed.

EDGARDO RIVEROS, Subsecretary in the Ministry of the General Secretariat of the Presidency of Chile, thanked the Committee for the dialogue and said that Chile had a stake in the internationalization of human rights.  Globalization could not just be economic and commercial; it must have a human face, which would be provided by respect for the basic rights of persons and the cooperation of the international community.  Strengthening of Chile’s democracy was based on the defence of human rights. 

Summary of Discussion on Working Methods

This afternoon, Mr. RODLEY, expert from the United Kingdom, presented the report of the working group on reservations, which met in Geneva on 14 and 15 December 2006 (document HRI/MC2007/5), having represented the Human Rights Committee in that group.  He said the fourth inter-committee meeting and the seventeenth meeting of the chairpersons of the human rights treaty bodies had requested the working group’s establishment to examine the report on the practice of human rights treaty bodies with respect to reservations to international human rights treaties and report on its work to the fifth inter-committee meeting.  As a result, the working group had met for the first time on 8 and 9 June 2006 in Geneva and adopted several recommendations contained in its first report (document HRI/MC/2006/5/Rev.1). 

Following his presentation, the Committee Chairman noted that the work on the subject of reservations was still very far from complete and there would be future developments.

In large part, the ensuing discussion among the experts centred on the different wording in the recommendation between the working group’s first and second report on the invalidity of a State’s reservation.

According to Ms. WEDGWOOD, the 2006 report said that the consequences of having an invalid reservation depended on the intention of a State at the time it entered the reservation, while in the 2007 document, a State would not be able to rely on such a reservation unless it was “incontrovertibly established” and, thus, would remain a party to the treaty without the benefit of reservation. 

She said that an incontrovertibly demonstrated intention was “almost impossible to meet”, adding that, while treaty law as a whole generally did not favour reservations, dynamic interpretation created a pressure for dynamic doctrine. 

Mr. RODLEY pointed out that, concerning recommendation 7 to which Ms. Wedgwood was referring, the formulation initially agreed in June 2006 had been considered by the Committee to have been “much too weak”, so he saw the new wording as having been his “mandate to redress things”.  If he had misrepresented the Committee’s intention in that regard he would be happy to redress that.

He said he did not make an issue of taking up a reservation for its own sake; no one in the Committee saw the need for a confrontation with States, especially in the context of periodic reviews, which were aimed at dialogue.  However, the Committee needed to know what the obligations of a State might be, and then one had to “bite the bullet, and this would be the basis on which the bullet might be bitten”, he said.

Ms. WEDGWOOD urged understanding that States did not like to be “radically surprised”.  If the proper standard was incontrovertible intent, one issue was what proved that, and, if a State at the time of entering a reservation had not anticipated a contentious situation, it might not have prepared a litigation record.  That would essentially make it impossible for a State to meet the test of proof.  Her caution was not intended to be obstructive.  Rather, she was interested in “real life wording; there’s politics out there, there’s States out there”. 

She said she did not want to make it impossible to meet a standard of proof that was extremely high.  States had a way of reacting if they felt they were pushed too far into the corner.  The extent to which States parties should be assured so they had some idea of what they were getting into when they joined a treaty regime should be considered.  It had become harder and harder to persuade a parliament to join a treaty regime.  States did not like unpredictability.  She was not sure more was more under these circumstances; sometimes, less was more.

Mr. RODLEY said that Ms. Wedgwood was right to draw attention to the issue of States, adding “we’re not operating in a vacuum here.  We have to take on board the position of States”.  Although, often that was not consistent, and a legal position was not necessarily that of the lowest common denominator, especially if that was based wholly on the founding father’s approach to treaty interpretation as a living instrument that took account of subsequent State practice.

He agreed that incontrovertible intent was a high standard.  He did not believe, however, that anything separate was being carved out for human rights.  The position of the working group with respect to human rights was reflected in recommendation 3.  The working group recognized that, despite the specific nature of human rights treaties, general treaty law remained applicable to human rights instruments; however, that law could only be applied taking fully into account their specific nature, including their content and monitoring mechanisms. 

The argument, therefore, of the threshold notion of incontrovertibility of intent flowed rather from the content of the treaty, he said.  It would be extremely rash to assume that every reservation was incompatible with the object and purpose of a treaty, making it impossible for the State to join the regime.  The recommendation of the working group on reservations was “light in the first instance –- too light, according to the Committee, and he had taken that on board”. 

However, he said he did not want to downplay the importance of Ms. Wedgwood’s words.  States were ultimately the determinant of their own obligations, and “we’re best off bringing them with us rather than staking out a position that probably wouldn’t be able to hold”.  However, he felt he should be trying to take States “somewhere rather than leave them stuck still where they are”.

Ms. Wedgwood reiterated that States might not have made a record, so the Committee would have to think through in a principled way what to do with statements by States parties as to what they believed their intention was at the time they entered a reservation. 

Next, the Committee Secretary read out a letter from the International Law Commission about a meeting it envisaged for 15 and 16 May in Geneva with human rights treaty bodies on issues relating to human rights treaties.  The format, an exchange of views, would focus solely on the question of reservations, specifically on the preliminary conclusions adopted by the Commission in 1997.

The Committee then turned to the report of the working group on the harmonization of working methods of treaty bodies.

Introducing the report, Mr. AMOR said that various issues had been raised in the meeting, including what methods could be used to achieve harmonization, how many meetings constituted a session, how long members should be appointed for and what powers a harmonization body should have.  He said there had been an underestimation of the phenomenon of communications, of which the Committee had had more than 1,000. 

After hearing the report’s introduction, several Committee members objected to paragraph 27, which proposed establishing a working group to consider creating a unified body for communications.  Ms. MOTOC, for example, asked what the working group would achieve, other than creating another body that would lead to backsliding in human rights.

The Chairman, RAFAEL RIVAS POSADA of Colombia, noted that the points of agreement in the report were considered “preliminary” and could still be changed, but Mr. RODLEY argued that they should be considered to have no status since it was clear that the Committee did not accept the idea of a single working group on communications.  Next time the Secretariat should not be tasked with writing up the conclusions of a meeting from which there was no agreement; experts from the treaty bodies should be drafting their own recommendations. 

Ms. WEDGWOOD and Ms. CHANET expressed concern about the fact that the report was an official United Nations document, and people around the world would therefore take its conclusions at a face value.  Any objections the Committee raised could not have the same force unless they were also put in an official document.

Ms. WEDGWOOD added that there was a sense that the Human Rights Council was on “very thin ice”; it could not agree on anything and had rejected a report on Darfur.  Now was the time for the High Commissioner to insist that the Council adopt treaty body recommendations for universal periodic review.  “We’re letting one brand new baby choke to death, and we are engaged in busy work.”  There were many things to do in life besides rationalize treaty bodies.

Mr. AMOR said he agreed that the report text should be done away with and replaced with one that contained agreed language. 

Mr. O’FLAHERTY disagreed with the idea of circulating a negative rival document, which would seem like a blocking action.  He cautioned that the “train of the Council is moving fast”; it was developing its own understanding of its relationship with the Committee, making the matter of treaty bodies an urgent one.  The working group proposal would die its own death; the Committee should formulate a decision emphasizing positive aspects and make a positive contribution.

In the end, Mr. RODLEY and the Chairman, Mr. POSADA, agreed that a document would be formulated that expressed the concerns of all members of the Committee about the working group.

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For information media • not an official record