Conducting a National Inquiry into Systemic Patterns of Human Rights Violation 4.3. THE OVERVIEW OF THE SITUATION The overview should provide a broad introduction to the issue or situation to be addressed. It should describe the key factors of the situation, including how widespread the situation is in the country, how severe it is, who is affected and how deeply entrenched it is. The overview should provide statistics to support the description wherever they are available. In listing the groups especially affected, the overview should pay particular attention to differences in experience associated with gender, ethnicity, socio-economic status, disability and other similar status. In describing how entrenched the situation is, the overview should look at the history, the measures taken to rectify the situation and how successful those measures have been. The overview should also draw on the NHRI’s own work in relation to this particular issue or situation. Its complaint handling may provide data and statistics about the nature of the situation and the incidence of human rights violations. There may be relevant information available from other inquiries conducted by the institution and from its other activities. For example, it may have undertaken previous research projects or education activities that informed its understanding of the situation or issue. It could also draw on its wide-ranging contacts with NGOs, governmental authorities, academic institutions and other civil society organisations. In many respects the overview will explain why the NHRI has decided to undertake a national inquiry on this subject. 4.4. INTERNATIONAL HUMAN RIGHTS LAW In presenting relevant international human rights law, the overview will identify the relevant treaties that the country has ratified and other relevant international obligations and commitments. In examining treaties, it should draw attention to the specific provisions of ratified treaties that arise or may arise in relation to the issue or situation. It should also indicate the particular aspects of each right that may be at risk of violation or that may have been violated in the situation. Because the inquiry is a human rights inquiry, it will place particular emphasis on international human rights treaties. A State is clearly required to meet its binding obligations under treaties that it has ratified. It also has broader responsibilities in relation to many “soft law” instruments that are associated with provisions in ratified treaties.12 For example, the obligation to provide humane conditions of detention under the International Covenant on Civil and Political Rights (ICCPR) is given substance in the provisions of the Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.13 The Mandela Rules and the Body of Principles themselves do not impose direct obligations on States. But the ICCPR does and, through its provisions, the Mandela Rules and the Body of Principles take on the nature of obligations. The consideration of international human rights law, therefore, cannot be restricted to the consideration of treaties. It must also include “soft law” provisions and the requirements of customary international law.14 18 12 In international law, treaties are considered to be “hard law” in that they impose direct binding obligations on States that ratify them. In addition to these binding norms of international law, there are non-binding norms, known as “soft law”. They can be found in other international instruments, such as declarations, principles, standard minimum rules, resolutions and other instruments that have persuasive value but are not directly binding on States. 13 International Covenant on Civil and Political Rights; article 9. The website of the UN High Commissioner for Human Rights contains the texts of all international human rights instruments; see: www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx. 14 Customary international law is binding international law that has not been codified in a treaty. It is identified from the practice of States. It is the conduct of States that over time develops into a set of legal norms that States accept as binding on them. It is a universal set of norms, binding all States. It is now well-accepted that at least some provisions of the Universal Declaration of Human Rights (UDHR) have become incorporated into customary international law. Some scholars argue that the whole UDHR is now part of customary international law.