Supplementary memorandum from Minority
Rights Group International (DCH 327)
ADVANCEMENT OF HUMAN RIGHTS IN THE DRAFT
CHARITIES BILL
At the close of last Wednesday's oral evidence
session, Mr Milburn invited witnesses to write to the committee
to expand upon any of the points made. I am therefore taking this
opportunity to provide some clarification on my comment that despite
the passage of this proposed legislation there may be many areas
of the advancement of human rights that the Charity Commission
will still not regard as being charitable even though they concern
grave, mass violations of rights. This is something on which two
members of the committee approached me after the session.
As you will know, the Charity Commission has
in recent years recognised the promotion of human rights as a
charitable purpose in its own right, working by analogy with existing
charitable purposes. On 11 June the Commission issued for consultation
revised guidance on "The Promotion of Human Rights".
The paper notes that human rights is included as "one of
the descriptions of charitable purposes" in the draft Charities
Bill, and then usefully goes on to explain the Commission's intended
approach towards deciding the charitable status of organisations
wishing to promote human rights. It is my understanding that this
is the approach the Commission would follow if the Bill becomes
law.
The guidance states: "Since the promotion
of human rights is a broad concept which is apt to apply to non-charitable
purposes (including, of course, political purposes), it is important
that an organisation seeking to establish itself as a charity
should set out the ways in which it will promote human rights"
(paragraph 19). The guidance then goes on to outline ways in which
a charity might promote human rights. Although the guidance notes
that the list is not exhaustive, the implication is that other
ways of promoting human rights may be disallowed; and here the
Commission appears particularly wary of work to end infringements
of human rights (as opposed to work which is about generally promoting
rights).
Of particular concern is the Commission's attempt
to make a distinction between some human rights and others. In
paragraph 37 it states that "eliminating infringements of
the prohibitions on torture, slavery, extra-judicial killing,
arbitrary detention and disappearance" are charitable. The
clear implication is that eliminating infringements of other human
rights may not be held to be charitable. The justification for
this is not clear, although the guidance refers both to these
particular rights being "basic" human rights, and also
notes that "These prohibitions form part of what is known
in international law as the `peremptory norms'."
The attempt to make distinctions between different
human rights offends against a principle of international law
that human rights are indivisible and inter-dependent. All the
human rights contained in the Universal Declaration of Human Rights
and subsequent multilateral treaties of universal application
are "basic": they are the rights that the nations of
the world have agreed are held by every living person in recognition
of our common humanity.
The notion of peremptory norms of general international
law, or jus cogens, is principally a concept applying to
the interpretation of treaty obligations. Jus cogens are
defined in the 1969 Vienna Convention on the Law of Treaties as
those norms which are "accepted and recognized by the international
community of states as a whole as norms from which no derogation
is permitted [. . .]". However, there is no settled list
of jus cogens norms in international law (the International
Law Commission refused to draw one up specifically because of
the conclusions that might be drawn from omission), and the Charity
Commission list does not match any list of which I am aware. Leading
authorities on international law including the International Court
of Justice and the Restatement of Foreign Relations Law of the
United States have in this context referred to particular human
rights norms that do not appear on the Charity Commission list,
for example the prohibition of apartheid or racial discrimination.[3]
The International Convention on the Elimination of Racial Discrimination
is the oldest and one of the most widely ratified of all UN human
rights treaties.
The real source of paragraph 37 of the guidance
appears to be previous ad hoc decisions of the Charity
Commission and of course the Amnesty case (McGovern v Attorney
General [1981] 3 All ER 493). The sort of mess that results
from relying on this case law is demonstrated by the objects clause
of a recently registered charity, the Human Rights Watch Charitable
Trust (no 1100101): over 400 words of complex, self-contradictory
legalese that does nothing to help the task of charity trustees
or to advance public understanding of charity.
There is therefore a serious concern that, even
after the passage of this legislation, the Charity Commission
would not regard as charitable many human rights purposes, for
example:
— The release of prisoners of conscience
(that is, those individuals imprisoned solely on account of their
conscientiously-held beliefs, or because of their ethnicity, colour
or language)—this was the original object of Amnesty on
its foundation in 1961;
— Procuring the abolition of apartheid
or racial discrimination;
— Procuring the abolition of capital
punishment for juvenile offenders.
Seeking to end many other gross violations of
rights may also not be accepted as charitable. Take the recent
practice in Burundi of "regroupment" in which some 300,000
people were detained in concentration camps solely on account
of their Hutu ethnic origin where they were subjected to consistent
patterns of further gross human rights abuse, including systematic
rape. Seeking to end the infringement of human rights violations
of this nature would surely not be regarded by the British public
as anything other than a humanitarian mission, deserving of charitable
status. But it is not covered by the Charity Commission guidance.
I am of course aware that some aspects of human
rights may be politically contentious, just as there continues
to be healthy political controversy over education, religion and
the prevention of poverty. However, we have come a long way in
the near quarter century since the Amnesty case, including the
fall of the Berlin wall, the end of the Cold War and the abolition
of apartheid in South Africa, and my own experience indicates
that work to end infringements of grave violations of human rights
abroad is not regarded by the general public in this country as
political. It would be an historic opportunity missed if the Charities
Bill did not reflect this change but instead left us where we
were in 1981.
I would therefore recommend that:
1. "the elimination of racial discrimination"
is included as a charitable purpose in clause 2 (2) of the draft
Bill;
2. it is made clear that "the advancement
of human rights" includes "the elimination of infringements
of human rights", either by an amendment to this effect in
clause 2(2)(h) of the draft Bill or by means of a Parliamentary
statement by the Minister during the passage of the legislation.
July 2004
3 See the list of erga omnes obligations (a
related concept to jus cogens) in Barcelona Traction, Light
and Power Co Case, ICJ Reports 1970, p3; and the list of prohibitions
under customary norms in Restatement (Third) of Foreign Relations
Law of the US, vol 2 (1987), p165, which also includes "a
consistent pattern of gross violations of internationally-recognized
human rights". Back
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