The role of the Lawyer in the Use of Convention-related Mechanisms

The lawyer plays a central role in the legal system of any country. When the lawyer feels that his role is marginalized in enabling citizens to get their right, it could be said that the legal and judiciary system of a certain society at a certain time is seriously damaged, which might lead to chaos and hinder the progress of society at large in the end. There is no real development except under the rule of law which applies to the governors and the governed alike. We are reminded of this by the international declaration of human rights adopted by the U.N. General Assembly on December 10, 1948. The preamble to the declaration says that it is essential that human rights enjoy the protection of the judiciary system if people were not to be forced into rebellion in reaction to oppression and suppression.

Stressing the role of the lawyer in the protection of human rights and helping them lift all forms of injustice, the U.N. conference on the prevention of crime and the treatment of violators held in Havana, Cuba in the period August 27 - September 7, 1990, established the basic principles on the role of lawyers which were adopted by the U.N. General Assembly in its resolution # 45/121 of January 14, 1990, and called on governments to take these principle into account when drafting their laws and policies. Article 14 of these principles states that "lawyers work, through protecting the rights of their clients and achieve the purpose of justice, towards strengthening respect for human rights and the basic principles of freedom recognized by national and international laws; and they work at all times freely and actively and in accordance with the law, approved criteria, and principles of regulating the profession" 1.

My paper will focus on the treatment of a number of practical issues that the lawyer should consider in the areas of international conventions before using the mechanisms of conventions on the protection of human rights; then the paper will look into the nature of these mechanisms and the way they are used.

1. Practical considerations in the area of international conventions

A. All ways of appeal and internal review provided for by the national law should be exhausted before resorting to international law and using the mechanisms provided for by international conventions. For instance, a person cannot complain if one of his rights, guaranteed by an international convention, like the right not to subjected to torture and other forms of cruel, inhuman, or humiliating treatment of 1984. A person cannot complain to the United Nations, to the special committee on this convention, formed under article 17 of the above mentioned convention and called, "the Anti-torture committee" even if his country had ratified the convention and accepted without reservations the authority of the committee, according to article 22 on receiving and considering complaints from individuals subject to the judiciary authority of that state. This person cannot lodge a complaint with the committee before resorting to the national authorities in the concerned state in order to remove this violation of his rights.

Although Syria has not ratified the United Nations convention on the prevention of torture and other forms of cruel or humiliating treatment or punishment of 1984, the Syrian constitution protects individuals' rights in complete physical safety and prohibits subjecting any person to torture. Article 28 of the Syrian constitution of 1973 states: "No one should be tortured physically or morally, and the law specifies the punishment of those who do that." The Syrian judicial system does not accept evidence taken by coercion. This is similar to the adoption of "the fruit of the poisonous tree" by American judges, which does not allow judges to accept evidence taken from the accused in an unlawful manner 2.

B. It should be ascertained whether or not the concerned state has ratified the convention whose protection mechanism will be used, and whether the convention has entered into force in national legislation. In general, one cannot hold to the provisions of a convention and the protection mechanisms it provides before the national judiciary as long as the state before whose courts these provisions are argued has not ratified the convention. Syria has ratified and joined a number of international conventions regulating human rights, like the international convention on economic, social, and cultural rights of 1966 and the international convention on civil and political rights of 1966, which it ratified in 1976. Bu Syria has not ratified the first optional protocol annexed to the international convention on civil and political rights related to accepting the jurisdiction of the human rights and the international convention on civil and political rights related to the accepting the jurisdiction of the human rights commission in receiving and considering complaints from individuals under the authority of the state, and who claim that they were victims of the violation of any of the rights covered by this convention. It has also not ratified the second optional protocol to the international convention on civil and political rights of 1990 on abolishing the death penalty. Syria ratified in 1969 the international convention on the elimination of all forms of racial discrimination and the prevention and punishment of genocide of 1951. Syria also ratified in 1993 the U.N. convention on the protection of children rights.

In Syria, as in France, the executive authority ratifies international conventions with the exception of important treaties like those of peace and alliance and treaties related to sovereignty and granting concessions to foreign companies and other important treaties which are ratified by the People's Assembly 3. In the United States, the president signs treaties with the approval and advice of the Senate 4. Despite the fact that the Syrian constitution does not include an article similar to article 6 in the American constitution on the reception of provisions of international law, and which considers the constitution and all the treaties signed by the United States are the supreme law of the state, article 311 of the Syrian courts procedures states the precedence of treaties joined by Syria officially. The above mentioned article 311 states that "commitment to the above mentioned rules does not contravene provisions of treaties held between Syria and other states in this regard". Article 25 of the Syrian law also states that "Provisions of the previous articles apply only where there is no text stating the contrary in any special law or international treaty in force in Syria." Provisions of the treaty which was ratified or joined by Syria become part of the internal law and should be implemented. This means that when there is contradiction between Syrian law and provisions of international treaties and conventions officially joined or ratified by Syria means that the latter should be implemented since it has precedence over national legislation.

Texts of international treaties and the states that joined them could be found on internet sites like that of the United nations,, or the Human Rights High Commission, where one can see the texts of international conventions on human rights and the countries which ratified them; or they can be seen in the official bulletin where the publication is a condition for it to come into force.

Although the general principle is that the state is bound by the conventions and treaties it signed. An exception of that can be to site the text of an international convention on human rights in international for a and before the national courts of the concerned state, even if that country has not ratified the convention if the rights protected in that convention became jus cognes or if they became part of customary international human rights law which cannot be violated. The Vienna convention on the law of treaty noted the possibility that the convention becomes binding to the state even if the state has not joined or ratified it. Article 38 of the Vienna convention, which was joined by Syria in accordance with legislative decree # 184 of 9/8/1980 states that "there is nothing to prevent any provision in a convention becoming binding to a non-member state as a customary provision of international law and recognized as such". One of these provisions which has become jus cogens is the banning of genocide, slavery, long administrative detention, and systematic racial discrimination.

Although the international declaration of human rights was approved through a U.N. General Assembly resolution on January 10, 1948, it was not drafted or accepted as an international convention. But during the fifty years that passed after it approved it acquired a widespread normative significance and became part of humanitarian customary international law. It is certainly part of the general principles of the law approved by "civilized nations" as article 38/1/F3 of the statute of the International Court of Justice5.

C. One should know the reservations expressed by the state on the provisions of the convention. If a state had reservations on a protection mechanism approved by a provision in the convention, this means that the state has not accepted to use that mechanism to face it. Article 19 of the Vienna convention on the law of treaty of 1969 identifies the reservations that a state can express on an international convention as:The state can have a reservation on the convention upon signing, ratifying, accepting, approving or joining it, with the exception of the following conditions:

  1. If reservation was prohibited through a text in the convention;
  2. If the convention allowed certain kinds of reservations that did not include the desired reservation;
  3. If reservation went against the subject of the convention and its purpose.

D. A study should be conducted on which of the texts is better in implementation and should be held before national courts, on rulings of national courts on these conventions, and instructions made by executive authorities which should not contravene provisions of the international convention accepted by the state. Article 27 of the Vienna convention of 1969 states that "The state cannot use its national law as an excuse to wriggle out of its commitments to the provisions of an international convention it has accepted" 6. In some cases, the national law can provide guarantees and protection mechanisms that exceed those provided by international conventions on human rights and their mechanisms. In any case, as we mentioned earlier, these mechanisms should not be resorted to unless all methods of internal appeal are exhausted. In the end, it is not the number of conventions that the country has ratified and the guarantees to individual freedom secured in national texts; it is rather the extent of commitment to implement these conventions and public and government awareness of the necessity of respecting these freedoms. A lawyer should, therefore examine all available and most effective methods in order to secure the rights of his clients.

2. Using individual rights protection mechanisms regulating human rights

The United Nations awards great importance to the support and development of human rights and basic human freedoms. This is made clear in the emphasis made in the international declaration of human rights on the belief in basic human rights, the dignity and equality of men and women and big and small nations, the necessity to strengthen social progress and improve the quality of life in an atmosphere of freedom. The United Nations, as an organization, is committed to strengthening these rights, while individual countries are committed to cooperate with the United nations in order to achieve that objective before identifying the apparatuses responsible for that and the authorities of each apparatus 7. The United Nations has a special system for the protection of human rights and special mechanisms for each convention in order to protect the special rights of that convention and monitoring the degree of commitment of the parties which ratified the convention. Since we are examining the conventions' protection mechanisms, we should refer briefly to the resolution of the Economic and Social Council # 1503 of 27/5/1970 8, through which the Council allowed the sub-committee for the prevention of discrimination and the protection of minorities to set up a work team consisting of five people, taking into account the principle of geographic distribution to look into all complaints submitted to the Secretary General, including state responses to them in order to draw the attention of the sub-committee to might be proven by documented evidence as a systematic pattern of serious human rights and basic liberties violation, within the mandate of the sub-committee. The sub-committee put conditions on accepting complaints on 13/8/1971. Theses conditions are:

  1. The objective of the complaint should not be at variance with the relevant principles stated in the united Nations' conventions;
  2. They and the responses to them should contain reasonable grounds for believing that they would show through documented evidence a systematic pattern of serious violations of human rights;
  3. They should be presented by an individual or individuals who might be assumed to be victims of violations. Anonymous letters are not accepted.
  4. The letters should not be politically motivated and should not be based solely on media reports;
  5. National methods of redress should be exhausted.

It should be pointed out that the Economic and Social Council set up, according to Article 68 of the UN Convention, the human rights committee in 1946, which monitors human rights violations in the world and reports them to the Council 9.

In addition to the UN mechanisms, each convention sets up a special committee to monitor and supervise the implementation of the contracting parties according to the convention and insure that these rights are respected. The text of each convention should be studies separately in order to know the complaint mechanism before each committee set up according to the convention. The human rights committee was set up in 1977 in implementation of Article 28 of the international convention on civil and political rights. The committee looks into the reports filed by the states which have joined the convention in which they state the measures taken on the national level for the activation of the rights provided for in this convention. States can, in accordance with article 41 of the convention, declare at any time their recognition of the competence of the committee to look into complaints presented by a state against another state in which it declares that the concerned state has violated one of its commitments under the convention. If the state has expressed reservations on the article, the committee cannot accept the complaint against the state which expressed reservation.

Individual complaints can be presented to the human rights committee if the violating state has ratified the optional protocol annexed to the international convention on civil and political rights. The human rights committee has elaborated a special complaint system for individual complaints. After accepting the complaint, the committee examines it, contacts the concerned state and draws its attention to the violation. The committee files an annual report of the complaints to the UN General Assembly.

The same applies to the international convention on economic, social, and cultural rights. The states which commits itself to reporting, in accordance with articles 16 and 17 of the convention report to the Economic and social Council, which established in 1985 the convention committee which supervises the implementation of its provisions and looks into the reports presented by states on commitment to the convention.

The convention prohibiting torture and other forms of cruel or inhumane treatment provides for establishing a committee for the prohibition of torture consisting of 10 members nominated and elected by states parties to which member states report on the measures taken in implementation of their commitments under the convention. The committee examines these reports and complaints presented to it. The committee also investigates secretly through a member it sends for this purpose the credibility of the information reported and the existence of evidence that systematic torture is being practiced on the territories of the state party. It makes a brief statement of the findings in its annual report to the general Assembly 10. According to article 22 of the convention for the prohibition of torture and other forms of cruel, and inhuman or humiliating treatment, any state party can declare its recognition of the mandate of the committee to receive and examine complaints from individuals or on behalf of individuals under its legal authority and claim that they have been victims of violation of their rights on the part of a member state.

That is why the point of departure in the use of the mechanisms provided for in the conventions is to review the working mechanisms of the committees according to these conventions, and to examine the procedures of filing a complaint to them, taking into account the formal procedures of filing the complaint. A large number of complaints have been rejected because they have not fulfilled the procedures of filing complaints to the concerned committees, like not exhausting the possibilities of internal appeal, or when the same complaint had been examined by the same committee before.

Since all member states have to file reports to the special committee of each convention that show the commitment of member states to the provisions of the convention; and since these reports are governmental and present the views of the government; and since governments in developing and developed countries alike present the view of the government of its performance and does not project a real picture of human rights conditions in the country. The UN concerned committees have called, in their guidelines, on governments to involve NGOs in preparing their reports. Nevertheless, governments tend to exclude any role for the NGOs in the preparation of these reports. Here comes the role of the lawyer in cooperating with NGOs in preparing their reports in response to government reports and giving an accurate an objective and unbiased picture of human rights conditions in the country party, in order to encourage governments to implement their contractual commitments for the purpose of strengthening and protecting human rights in the reporting countries. The lawyer has to be honest and impartial and should document all the information mentioned in the non-government report. This should also happen after a careful reading of the government report. NGOs play an important role in the protection of human rights according to the UN system, particularly those which acquired a consultative status with the UN Economic and Social Council (ECOSOC). The number of these NGOs is 2379 which help and support the Council in its work and enjoy special privileges like the possibility of presenting their special reports on human rights violations in a certain country. These organizations are invited side by side with governments to the UN conferences; and they have the right to address ECOSOC. The lawyer should, while dealing with such organizations, be careful to consider national laws in order to make sure not to violate any of these national texts.

In conclusion, the role of Bar Associations should be highlighted in raising awareness of human rights and in studying conventions and holding seminars in order to raise people awareness of the protection mechanisms provided by a certain convention. The also play a role in training lawyers on how to use them and provide them with protection and support when they are subjected to any violation of their rights as a result of their work. It was once said that it is far better to light a candle than to curse darkness. Thank you for your attention.


Razi Antoine Diab is a lawyer, member of the Syrian bar Association. He holds a Master's degree in international commercial law from the University of Kent at Canterbury, United Kingdom, and a Master's degree in American law from the University of Boston, U.S.A.

[1] "Basic United Nations principles on the role of lawyers", 1990, CIJL, Geneva, Switzerland.

[2] Federal American Evidence Law.

[3] Article 71, paragraph 5 of the Syrian constitution says, "Approving international conventions and treaties related to the safety of the state, which are treaties of peace, alliance and all treaties which involves costs to the treasury of state that are not included in its budget, or those which are in breach of laws in force, or those which require passing a new legislation." Article 104 of the permanent Syrian constitution of 1973 states that the president signs and abolishes treaties and conventions in accordance with provisions of the constitution.

[4] Madkhal ila al-Kanoun al-Dawli al-Aam, Mohammad Aziz Shukri, Damascus University Publications, 1986. (in arabic).

[5] "The Customary International Law of Human Rights", Dinah Shelton, visiting Professor of law at Stanford University. Recueil des Cours, 22eme Session d'enseignement, Strasbourg, 1991.

[6] "Blackstone's International Law Documents", 3rd edition, Malcolm D. Evans, 1991 (VCL).

[7] Articles 55 and 56 of the "International Convention of Human Rights" approved by the U.N. General Assembly on 10/12/1948.

[8] Article 8 of the UN Convention and the major bodies of the United Nations which are: the general Assembly, the Security Council, the Economic and social Council, the Custody Council, the International Court of Justice, and the General Secretariat. It also stated the possibility of setting up subsidiary bodies according to need.

[9] "La Protection International des Droits de l'homme", Précis Thomas Burgenthal, Alexanre Kiss, Kehl am Rhein; Strasbourg, Arlington, Va. Ed. Engel, 1991.

[10] "The International Protection of Human Rights" (Studies, Lectures, Basic Texts) Coordinated by Mohammed Amin Al-Midani, Strasbourg, 1988.