Professional Documents
Culture Documents
Evolution
of
Human
Rights
Norms
and
Machinery
By
Bertrand
G.
Ramcharan
Introduction
I.
The
San
Francisco
Choices
II.
The
Vision
of
an
International
Bill
of
Human
Rights
III.
The
Development
of
International
Human
Rights
Norms
IV.
Principles
of
International
Human
Rights
Law
A.
Universality
B.
Democratic
Legitimacy
C.
Justice
D.
Protection
E.
Legality
F.
Equality
and
Non-‐disclosure
G.
Respect
and
Ensure
H.
Remedy
V.
Measures
of
Implementation
VI.
Strategies
for
Dealing
with
Situations
of
Gross
Violations
on
Human
Rights
VII.
The
Struggle
for
Equality
and
Non-‐discrimination
VIII.
The
Right
to
Development
and
the
Millennium
Development
Goals
IX.
The
Office
of
High
Commissioner
for
Human
Rights
X.
The
Responsibility
to
Protect
XI.
Reforms:
Towards
a
Human
Rights
Council
XII.
Preventive
Strategies
Conclusion
Introduction
There
are
different
ways
of
looking
at
the
evolution
of
human
rights
norms
and
machinery
in
the
United
Nations.
It
is,
certainly,
an
imperfect
system,
and
one
might
point
out
the
imperfections.
It
is,
also,
a
story
of
the
impact
of
politics,
and
politicization,
and
one
could
spend
time
discussing
these
aspects.
It
is
a
story
in
which
violations
of
the
rights
of
large
groups
of
humankind
have
been
left
unattended,
and
one
could
highlight
these
failures.
It
is
also
the
story
of
striving,
in
the
midst
of
adversity,
to
take
forward
the
idea
that
societies
should
be
governed
on
the
basis
of
respect
for
the
human
rights
of
all,
without
discrimination
on
grounds
of
race,
sex,
language,
religion,
or
related
prejudices.
It
is
this
story
of
striving
that
we
shall
try
to
discuss
in
this
presentation
of
the
evolution
of
human
rights
norms
and
machinery.
It
is
also
one
of
the
challenges
of
our
times
to
uphold
the
idea
of
international
protection
when
gross
violations
of
human
rights
take
place
in
any
part
of
the
world
but
Governments
plead
that
it
is
a
matter
of
their
internal
affairs.
There
are
many
complexities
here.
Many
new
States
emerged
from
colonialism
with
arbitrary
borders
drawn
up
for
them
by
colonial
powers.
The
challenges
of
nation
building
are
many.
During
the
cold
war,
the
major
powers
competed
for
influence
in
many
developing
countries,
supporting
one
or
another
side
in
the
local
power
struggle.
With
the
end
of
the
cold
war,
these
nations
have
been
left
fragile
and
have
to
struggle
with
the
difficulties
of
nation
building.
On
top
of
all
of
this,
with
the
end
of
the
cold
war,
market
capitalism
has
emerged
internationally
as
the
dominant
economic
system.
But
many
developing
countries
have
not
had
the
opportunity
to
develop
their
infrastructures
or
human
capital
so
as
to
be
able
to
compete
on
fair
terms
with
more
developed
countries,
or
to
withstand
the
onslaught
of
the
major
international
corporations.
How
are
they
to
uphold
basic
standards
of
economic,
social
and
cultural
rights
and
civil
and
political
rights
in
these
circumstances?
Given
the
difficulties
they
are
facing,
they
contend
that
the
United
Nations
should
strive
to
promote
cooperation
among
countries
rather
than
putting
countries
experiencing
human
rights
problems
in
the
dock.
There
are
difficult
issues
to
be
dealt
with
here.
On
the
one
side
there
are
issues
of
principle:
in
no
circumstance
should
one
tolerate
gross
violations
of
human
rights,
for
example,
the
right
not
to
be
tortured.
One
needs
to
be
forthright
in
condemning
such
violations.
At
the
same
time,
with
leading
developing
countries
arguing
for
cooperative
instead
of
confrontational
approaches
in
dealing
with
human
rights
problems,
one
needs
to
be
imaginative
in
devising
in
approaches,
bearing
in
mind
that
the
developing
countries
make
up
a
majority
at
the
United
Nations.
One
needs
to
build
on
the
principles
of
respect,
confidence-‐building
and
protection:
one
must,
as
a
general
rule,
be
respectful
of
those
one
is
dealing
with,
one
must
strive
for
approaches
and
methods
that
inspire
and
attract
confidence,
and
at
the
same
time,
one
must
be
faithful
to
the
principle
of
protection:
one
must
come
to
the
aid
of
those
whose
rights
are
being
violated.
At
a
time
when
the
challenges
of
protection
have
become
intertwined
with
challenges
of
poverty
and
with
the
problems
of
international
political
divisions
between
countries
of
the
North
and
the
South,
the
Summit
of
world
leaders
assembled
at
the
United
Nations
in
September,
2005,
has
placed
on
the
international
agenda
two
issues
that
will
influence
future
debate:
the
responsibility
to
protect,
and
transforming
the
Commission
on
Human
Rights
into
a
Human
Rights
Council.
It
was
relatively
easier
for
the
summit
to
agree
on
the
responsibility
to
protect,
even
though
some
developing
countries
are
still
wary
that
it
is
a
concept
that
could
lead
to
interventions
by
major
powers
into
the
internal
affairs
of
smaller
countries.
This
argument
takes
place
against
the
backdrop
of
the
debate
over
claims
by
powerful
countries
that,
in
a
time
of
dangers
of
terrorism
combined
with
weapons
of
mass
destruction,
pre-‐emptive
strikes
are
permissible
against
terrorist
targets
wherever
they
maybe!
The
debate
over
reforming
the
Commission
on
Human
Rights
has
been
more
acrimonious.
Developing
countries
resent
the
fact
that
they
are
being
demonized
in
the
Commission
on
Human
Rights
at
a
time
when
they
are
facing
massive
economic
and
social
problems.
Developed
countries,
with
the
United
Nations
Secretary-‐General
as
their
cheer-‐leader,
argue
that
the
Commission
must
be
rid
of
members
that
egregiously
violate
human
rights.
On
the
one
side
there
is
pride
and
numbers;
on
the
other
there
is
principle
and
power.
How
this
battle
will
end
up
no
one
knows.
It
is
a
time
for
wise
counsel
and
prudent
steps.
What
needs
to
be
done
is,
through
careful
diplomacy,
to
build
a
consensus
widely
shared
that
the
human
rights
norms
developed
over
the
past
sixty
years
must
be
upheld
by
all,
and
that
this
includes
civil
and
political
rights
as
well
as
economic,
social
and
cultural
rights.
As
part
of
this
consensus,
there
must
be
agreement
on
how
to
tackle
situations
of
gross
violations
of
human
rights.
In
recent
years
the
human
rights
movement
has
placed
the
emphasis
on
naming
and
shaming.
There
are
situations
when
this
will
be
inevitable.
But
the
question
that
arises
for
reflection
is
whether
there
are
ways
other
than
naming
and
shaming
that
might
allow
the
international
community
to
express
concern
over
situations
of
gross
violations
of
human
rights.
This
chapter
will
have
these
twin
perspectives
in
mind
when
discussing
the
evolution
of
human
rights
norms
and
machinery:
building
on
the
universality
of
the
core
international
norms
developed
since
the
establishment
of
the
United
Nations
and
examining
ways
of
vindicating
the
principle
of
protection
while
mindful
of
the
principles
of
respect
and
confidence-‐building.
We
begin
with
the
San
Francisco
choices
on
human
rights.
I.
The
San
Francisco
Choices
As
the
San
Francisco
conference
convened
in
1945
to
draft
the
Charter
of
the
United
Nations
there
was
a
groundswell
in
civil
society
in
many
countries
that
the
new
world
order
should
be
built
on
the
foundations
of
human
rights.
Blueprints
for
an
international
bill
of
human
rights
were
developed
by
leading
academics,
civil
society
organizations,
and
by
some
governments.
The
leading
powers
assembled
at
San
Francisco;
however,
almost
all
had
many
human
rights
skeletons
in
their
cupboard.
In
the
southern
parts
of
the
United
States
segregation
and
racial
discrimination
were
rife.
Great
Britain
and
France
had
colonies
in
which
all
manner
of
human
rights
violations
were
taking
place.
The
evidence
that
has
subsequently
come
to
light
about
atrocities
committed
against
local
populations
in
countries
such
as
Kenya
is
heart-‐rending.
France
also
had
a
similar
history.
The
then
Union
of
Soviet
Socialist
Republics
had
Gulags
and
whole
nations
in
subjection.
On
top
of
all
of
this,
the
cold
war
had
descended
on
the
San
Francisco
conference
and
the
leading
powers
were
more
concerned
with
the
looming
struggle
for
supremacy.
It
was
not
an
environment
conducive
to
inspiring
human
rights
choices
and
the
major
powers
would
have
preferred
not
to
have
to
deal
with
the
subject.
But
civil
society
would
not
let
them
get
away
with
this.
Thanks
largely
to
civil
society
pressure
upon
the
delegates,
particularly
the
American
delegation
at
San
Francisco,
the
Charter
of
the
United
Nations
as
finally
adopted,
included
several
human
rights
provisions
that
would
be
significant
for
the
future
world
order:
First,
the
United
Nations
would
be
based
on
the
principles
of
equality
of,
and
self-‐determination
for,
all
peoples.
The
principle
of
self-‐determination
would
be
the
bedrock
for
pursuing
the
independence
of
colonial
countries
and
territories,
one
of
the
great
achievements
of
the
United
Nations.
Second,
the
United
Nations
would
be
based
on
the
principle
of
non-‐discrimination
among
nations
and
peoples.
There
was
to
be
no
discrimination
on
grounds
of
race,
sex,
language,
or
religion.
This
commitment
to
equality
has
characterized
the
United
Nations
ever
since
its
existence
and
would
also
be
one
of
the
great
foundation
principles
of
the
new
world
order.
Third,
Member
States
committed
themselves
to
the
pursuit
of
international
cooperation
for
the
promotion
of
human
rights.
The
aim
was
the
universal
realization
of
human
rights
for
all
peoples.
Fourth,
all
Member
States
pledged
themselves
to
take
measures
jointly
and
separately
for
the
achievement
of
universal
respect
for
human
rights
and
fundamental
freedoms.
This
commitment,
in
Articles
55
and
56
of
the
Charter
of
the
United
Nations
was
of
great
significance.
Implicit
in
these
Articles
are
the
principles
of
international
cooperation
and
international
solidarity
for
the
advancement
of
human
welfare
and
for
the
universal
realization
of
human
rights.
At
San
Francisco
and
in
subsequent
debates
in
the
General
Assembly,
delegates
of
the
major
powers,
including
the
much
venerated
Mrs.
Eleanor
Roosevelt,
argued
that
the
United
Nations
could
only
act
for
the
promotion
of
human
rights,
not
their
protection.
This
would
lead
to
a
great
struggle
in
the
evolution
of
international
norms
and
machinery.
To
begin
with,
protection
had
to
be
tackled
under
the
guise
of
promotion.
The
protective
capacity
of
the
world
organization
would
have
to
be
built
up
through
practice.
The
word
protection
was
rarely
used
in
United
Nations
documents
and
parlance
until
1993,
after
the
end
of
the
cold
war,
when
the
General
Assembly
gave
the
newly-‐established
United
Nations
High
Commissioner
for
Human
Rights
the
competence
to
act
for
the
promotion
and
protection
of
human
rights.
This
San
Francisco
choice
for
promotion
over
protection
had
major
consequences
throughout
the
cold
war.
The
Commission
on
Human
Rights,
with
Mrs.
Roosevelt
herself
in
the
driver's
seat,
first
took
the
view
that
it
had
no
competence
to
act
on
the
thousands
of
petitions
reaching
it
complaining
about
gross
violations
of
human
rights
in
different
parts
of
the
world.
It
took
great
ingenuity
to
establish
procedures
for
dealing
with
allegations
of
gross
violations
of
human
rights,
including
the
procedure
still
in
existence
in
the
Commission
on
Human
Rights
(up
to
2005)
whereby
it
held
an
annual
debate
to
discuss
gross
violations
in
any
part
of
the
world.
It
took
great
ingenuity
also,
and
persistence
as
well,
to
develop
the
system
of
special
rapporteurs
and
working
groups
who
engage
in
fact-‐finding
into
allegations
of
gross
violations
of
human
rights
in
different
parts
of
the
world.
The
newly
independent
countries
entering
the
United
Nations
in
the
mid
1960s
pushed
for
procedures
to
deal
with
gross
violations
of
human
rights
in
the
colonies
and
in
Apartheid
South
Africa.
Their
push
gave
the
foundation
for
the
procedures
and
mechanisms
subsequently
developed.
Now,
in
an
ironic
twist
of
history,
it
is
those
very
developing
countries
which
are
arguing
that
the
United
Nations
should
not
seek
to
condemn
countries
but
to
assist
them:
cooperation
rather
than
confrontation
promotion
rather
than
protection.
The
Charter's
choice
for
promotion
had
been
championed
by
the
developed
countries.
The
developing
countries
championed
the
cause
of
protection.
Now
they,
in
turn,
opt
for
promotion.
The
way
forward
must
be
a
balance
between
promotion
and
protection.
The
key
must
surely
lie
in
prevention
through
efforts
to
build
up
in
each
country
of
the
world
an
effective
national
protection
system
covering
civil
and
political
rights
as
well
as
economic,
social
and
cultural
rights.
This
is
a
challenge
of
human
rights
and
also
a
challenge
of
nation
building
and
a
challenge
of
development.
The
San
Francisco
choices
are
thus
still
with
us
and
the
key
lies
in
Articles
55
and
56
of
the
Charter.
How
would
the
United
Nations
take
forward
the
choices
made
at
San
Francisco
into
practical
courses
of
action
for
their
realization?
The
first
effort
was
made
by
the
Commission
on
Human
Rights,
which
laid
down
the
vision
of
an
International
Bill
of
Human
Rights,
which
we
turn
to
next.
II.
The
Vision
of
an
International
Bill
of
Human
Rights
At
the
San
Francisco
Conference,
when
the
Charter
of
the
United
Nations
was
being
drafted,
some
governments,
especially
from
Latin
America,
had
proposed
that
the
Charter
should
contain
an
International
Bill
of
Human
Rights.
The
topic
of
human
rights,
as
was
seen
earlier,
had
given
rise
to
difficult
debates
at
the
Conference
and
partly
for
this
reason,
and
partly
because
of
shortage
of
time,
it
was
decided
that
the
issue
would
be
referred
to
the
new
Commission
on
Human
Rights
provided
for
under
Article
68
of
the
Charter.
After
the
Commission
was
formally
constituted
it
retained
this
idea
of
an
international
bill
of
human
rights
and
set
forth
the
vision
of
an
international
bill
that
would
contain
three
parts:
a
declaration
of
moral
principles,
one
or
more
treaties
that,
after
ratification
by
governments,
would
contain
obligations
legally
binding
on
them;
and
measures
of
implementation.
The
Universal
Declaration
of
Human
Rights
was
adopted
in
1948,
the
Convention
against
Genocide
that
same
year,
the
International
Convention
on
the
Elimination
of
Racial
Discrimination
in
1965,
the
International
Covenant
on
Economic,
Social
and
Cultural
Rights,
the
International
Covenant
on
Civil
and
Political
Rights,
and
an
Optional
Protocol
thereto
in
1966,
and
thereafter,
by
a
series
of
human
rights
treaties.
Measures
of
implementation
would
prove
difficult
to
conceptualize
and
to
set
in
place.
The
challenge
of
implementation
remains
six
decades
after
the
founding
of
the
United
Nations,
as
we
shall
see
later
in
this
chapter.
Nevertheless,
the
idea
of
an
International
Bill
of
Human
Rights
proved,
from
the
outset,
a
rallying
vision
and
remains
so
to
this
day.
III.
The
Development
of
International
Human
Rights
Norms
The
development
of
international
human
rights
norms
has
been
one
of
the
great
success
stories
of
the
United
Nations.
Cumulatively,
we
now
have
a
veritable
international
code
of
human
rights
governing
practically
every
area
of
the
relationship
between
the
individual
and
the
state,
and
the
process
of
drafting
new
norms
continues
at
the
present
time
with
a
convention
under
preparation
banning
enforced
and
involuntary
disappearances,
one
of
the
terrible
forms
of
gross
violations
of
human
rights
prevalent
since
the
1970s.
The
development
of
human
rights
norms
has
been
influenced
by
many
factors.
In
the
first
place,
concepts
of
human
rights
from
different
parts
of
the
world
were
drawn
upon
in
giving
content
to
the
Universal
Declaration,
including
the
historic
English,
French
and
American
declarations
of
human
rights.
In
the
second
place,
there
was
a
strong
push
for
an
approach
to
human
rights
that
recognized
the
interrelationship
among
civil
and
political
rights
and
economic,
social
and
cultural
rights.
However,
Western
countries,
mainly,
argued
that
civil
and
political
rights
were
interdictions
upon
Governments,
whereas
economic,
social
and
cultural
rights
were
programmatic
aspirations
to
the
realization
of
which
a
progressive
approach
should
be
taken.
This,
basically,
was
the
reason
why
the
international
community
ended
up
eventually
with
two
Covenants
instead
of
one.
Governments
such
as
those
of
Great
Britain,
France,
and
the
USA
were
reluctant
to
recognize
equality
rights
during
an
era
in
which
the
first
two
had
colonies
still
while
the
third
had
corrosive
segregation
in
the
South.
The
protection
of
minorities
and
indigenous
populations
was
also
a
difficult
topic
to
grapple
with,
especially
as
Latin
American
countries
insisted
that
they
did
not
have
minority
populations
and
were
reluctant
to
recognize
the
rights
of
indigenous
populations.
It
would
take
years
to
overcome
some
of
these
difficulties
and
this
has
been
achieved
only
partially
in
some
instances.
To
this
day,
for
example,
some
Western
countries
deny
the
character
of
human
rights
to
economic,
social
and
cultural
rights.
The
developing
countries,
for
their
part,
pressed
hard
for
recognition
of
the
right
to
self-‐determination
and
the
right
to
development.
These
countries
saw
the
development
of
human
rights
norms
as
having
a
role
to
play
in
consecrating
as
international
public
policy
major
aspirations
of
large
parts
of
humanity
for
peace,
self-‐
determination,
development,
and
justice.
A
tension
between
classical,
restrictive
approaches
to
human
rights
and
more
dynamic,
public
order
approaches
to
human
aspirations
and
rights
continues
to
be
felt
in
our
time,
particularly
as
regards
the
implementation
of
the
right
to
development.
Whatever
the
difficulties,
we
are
now
the
inheritors
of
great
normative
human
rights
instruments,
with
pride
of
place
belonging
to
the
Universal
Declaration
of
Human
Rights.
Some
authors
have
argued
that
the
Declaration
is
an
elaboration
upon
the
human
rights
provisions
of
the
Charter
and
therefore
deserves
to
be
ranked
alongside
the
United
Nations
Charter
as
one
of
the
basic
constitutional
documents
of
the
contemporary
world
order.
Views
differ
as
to
whether
the
Universal
Declaration,
in
part
or
as
a
whole,
is
a
legally
binding
document
but
most
commentators
agree
that
some
parts
of
it
represent
binding
international
law.
The
Universal
Declaration,
the
two
International
Covenants,
the
Convention
against
racial
discrimination,
the
Convention
against
torture,
the
Convention
on
the
rights
of
the
child,
the
Convention
on
the
elimination
of
discrimination
against
women,
and
the
Convention
on
the
rights
of
migrant
workers
and
their
families
are
the
principal
human
rights
treaties
to
date.
The
first
six
conventions
are
widely
ratified,
with
the
convention
on
the
rights
of
the
child
being
the
one
subscribed
to
by
all
but
two
states.
The
convention
on
the
rights
of
migrant
workers
and
their
families
is
the
least
ratified
of
all
because
Western
countries
in
particular
have
consistently
objected
to
many
of
its
provisions.
From
the
principal
human
rights
declarations
and
conventions
may
be
distilled
a
number
of
principles
of
international
human
rights
law
which
we
present
next.
IV.
Principles
of
International
Human
Rights
Law
General
principles
of
law
found
in
the
major
legal
systems
of
the
world
are
a
source
of
international
law
that
international
courts
and
tribunals
may
invoke.
General
principles
of
law
include:
The
Rule
of
law:
Society
shall
be
governed
through
laws
and
everyone
is
subject
to
the
law.
Constitutionalism:
governance
that
advances
the
rights
of
the
people.
Democratic
Governance:
The
will
of
the
people
shall
be
the
basis
of
the
authority
of
governments.
The
Principle
of
Responsibility
for
Unlawful
Acts.
In
the
Chorzow
Factory
case
the
Permanent
Court
of
International
Justice
declared
that
it
was
a
principle
of
international
law
that
any
breach
of
an
engagement
involves
an
obligation
to
make
reparation.
In
the
Nicaragua
case
the
International
Court
of
Justice
invoked
general
principles
of
humanitarian
law
based
upon
Article
3
common
to
the
four
Geneva
Conventions
on
humanitarian
law.
Expounding
on
the
general
principles
of
humanitarian
law,
the
Court
held
that
the
Geneva
Conventions
were
in
some
respects
a
development
and
in
other
respects
no
more
than
the
expression,
of
such
principles.
Common
article
3
of
the
four
Geneva
conventions
provides
that
in
the
case
of
armed
conflict
not
of
an
international
character
occurring
in
the
territory
of
one
of
the
High
Contracting
Parties,
each
Party
to
the
conflict
shall
be
bound
to
apply,
as
a
minimum
the
following
provisions:
"Persons
taking
no
part
in
the
hostilities,
including
members
of
armed
forces
who
have
laid
down
their
arms
and
those
placed
hors
de
combat
by
sickness,
wounds,
detention,
or
any
other
cause,
shall
in
all
circumstances
be
treated
humanely,
without
any
adverse
distinction
founded
on
race,
colour,
religion
or
faith,
sex,
birth,
or
wealth,
or
any
other
similar
criteria.
"To
this
end,
the
following
acts
are
and
shall
remain
prohibited
at
any
time
and
in
any
place
whatsoever
with
respect
to
the
above-‐mentioned
persons:
(a)
violence
to
life
and
person,
in
particular
murder
of
all
kinds,
mutilation,
cruel
treatment
and
torture:
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d)
the
passing
of
sentences
and
the
carrying
out
of
executions
without
previous
judgment
pronounced
by
a
regularly
constituted
court,
affording
all
the
judicial
guarantees
which
recognized
as
indispensable
by
civilized
peoples.
"(2) The wounded and sick shall be collected and cared for."
A.
Universality
The
World
Conference
on
Human
Rights,
held
in
1993,
succinctly
expressed
the
consensus
of
the
international
community
on
the
universality
of
human
rights
as
follows:
"The
universality
of
these
rights
and
freedoms
is
beyond
question"
It
went
on
to
say:
"While
the
significance
of
national
and
regional
particularities
and
various
historical,
cultural
and
religious
backgrounds
must
be
borne
in
mind,
it
is
the
duty
of
States,
regardless
of
their
political,
economic
and
cultural
systems,
to
promote
and
protect
all
human
rights."
B. Democratic Legitimacy
Article
21,
paragraph
3
of
the
Universal
Declaration
of
Human
Rights
provides
that
the
will
of
the
people
shall
be
the
basis
of
the
authority
of
government:
this
will
shall
be
expressed
in
periodic
and
genuine
elections
which
shall
be
by
universal
and
equal
suffrage
and
shall
be
held
by
secret
vote
or
by
equivalent
free
voting
procedures.
Article
25
of
the
International
Covenant
on
Civil
and
Political
Rights
states
that
Everyone
shall
have
the
rights
and
the
opportunity,
without
any
of
the
distinctions
mentioned
in
article
2
and
without
unreasonable
restrictions
(a)
to
take
part
in
the
conduct
of
public
affairs,
directly
or
through
freely
chosen
representatives;
(b)
to
vote
and
to
be
elected
at
genuine
periodic
elections
which
shall
be
by
universal
and
equal
suffrage
and
shall
be
held
by
secret
ballot,
guaranteeing
the
free
expression
of
the
will
of
the
electors;
(c)
to
have
access,
on
general
terms
of
equality,
to
public
service
in
his
or
her
country.
The
World
Conference
on
Human
Rights
declared
that
democracy,
development
and
respect
for
human
rights
and
fundamental
freedoms
are
interdependent
and
mutually
reinforcing.
It
emphasized
that
"The
international
community
should
support
the
strengthening
and
promoting
of
democracy,
development
and
respect
for
human
rights
and
fundamental
freedoms
in
the
entire
world."
C. Justice
The
principle
of
justice
is
at
the
heart
of
the
human
rights
movement
and
has
been
taken
forward
with
the
establishment
of
institutions
such
as
the
International
Criminal
Court.
In
A.v.Australia,
the
Human
Rights
Committee
recalled
that
the
notion
of
'arbitrariness'
must
not
be
equated
with
'against
the
law'
but
be
interpreted
more
broadly
to
include
such
elements
as
inappropriateness
and
injustice.
D. Protection
A.
The
responsibility
to
prevent:
to
address
both
the
root
causes
and
direct
causes
of
internal
conflict
and
other
man-‐made
crises
putting
populations
at
risk.
C.
The
responsibility
to
rebuild:
to
provide,
particularly
after
a
military
intervention,
full
assistance
with
recovery,
reconstruction
and
reconciliation,
addressing
the
causes
of
the
harm
the
intervention
was
designed
to
halt
or
avert.
As
seen
earlier
in
this
chapter,
the
General
Assembly
has
now
explicitly
endorsed
the
responsibility
to
protect.
E. Legality
In
General
Comment
No.
27,
the
Human
Rights
Committee
provides
general
principles
applicable
in
the
interpretation
of
restrictions
or
limitation
clauses
in
human
rights
treaties.
Where,
for
example,
one
finds
the
expression
'as
provided
by
law',
the
law
itself
has
to
establish
the
conditions
under
which
the
rights
may
be
limited.
Further,
the
restriction
must
not
impair
the
essence
of
the
right,
should
use
precise
criteria
and
may
not
confer
unfettered
discretion
on
those
charged
with
their
execution.
In
the
same
vein,
a
restriction
must
be
legitimate
and
necessary.
'Restrictive
measures
must
conform
to
the
principle
of
proportionality;
they
must
be
appropriate
to
achieve
their
protective
function;
they
must
be
the
least
intrusive
instrument
amongst
those
which
might
achieve
the
desired
result;
and
they
must
be
proportionate
to
the
interest
to
be
protected.'
The
Committee
puts
particular
emphasis
on
the
fundamental
principles
of
equality
and
non-‐discrimination
whenever
restrictions
are
made.
The
principle
of
equality
and
non-‐discrimination
is
a
hallowed
principle
of
international
human
rights
law.
In
its
General
Comment
No.
18,
the
Human
Rights
Committee
provided
the
following
definition
of
the
term
discrimination:
"(T)he
Committee
believes
that
the
term
'discrimination'
as
used
in
the
Covenant
should
be
understood
to
imply
any
distinction,
exclusion,
restriction
or
preference
which
is
based
on
any
ground
such
as
race,
colour,
sex,
language,
religion,
political
or
other
opinion,
national
or
social
origin,
property,
birth
or
other
status,
and
which
the
purpose
or
effect
of
nullifying
or
impairing
the
recognition,
enjoyment
or
exercise
by
all
persons,
on
an
equal
footing,
of
all
rights
and
freedoms."
In
today's
world
of
pervasive
terrorist
threats,
the
Human
Rights
Committee
has
provided
invaluable
guidance
on
the
balance
to
be
struck
between
security
and
human
rights.
Referring
to
Article
4
of
the
International
Covenant
on
Civil
and
Political
Rights,
the
Committee
declared
in
General
Comment
No.
29:
"Not
every
disturbance
or
catastrophe
qualifies
as
a
public
emergency
which
threatens
the
life
of
the
nation,
as
required
by
article
4,
paragraph
1.
During
armed
conflict,
whether
international
or
non-‐international,
rules
of
international
humanitarian
law
become
applicable
and
help,
in
addition
to
the
provisions
in
article
4
and
article
5,
paragraph
1,
of
the
Covenant,
to
prevent
the
abuse
of
a
State's
emergency
powers.
The
Covenant
requires
that
even
during
an
armed
conflict
measures
derogating
from
the
Covenant
are
allowed
only
if
and
to
the
extent
that
the
situation
constitutes
a
threat
to
the
life
of
the
nation.
If
States
parties
consider
invoking
article
4
in
other
situations
than
an
armed
conflict,
they
should
carefully
consider
the
justification
and
why
such
a
measure
is
necessary
and
legitimate
in
the
circumstances."
H.
Remedy
Article
8
of
the
Universal
Declaration
of
Human
Rights
states
the
fundamental
principle
that
"Everyone
has
the
right
to
an
effective
remedy
by
the
competent
national
tribunal…"
The
World
Conference
on
Human
Rights
(1993)
emphasized
that
"Every
State
should
provide
an
effective
framework
of
remedies
to
redress
human
rights
grievances
or
violations.
In
its
views
under
the
Optional
Protocol
the
Human
Rights
Committee
has
consistently
retained
its
position
that
in
a
case
where
a
violation
of
the
Covenant
has
been
established
through
the
Optional
Protocol
procedure,
the
State
Party
in
Question
has
a
legal
obligation
to
provide
an
effective
remedy.
Having
recapitulated
key
principles
of
international
human
rights
law,
we
may
now
turn
to
a
discussion
of
the
third
part
of
the
International
Bill
of
Human
Rights
as
envisioned
by
the
Commission
on
Human
Rights,
namely,
measures
of
implementation.
V.
Measures
of
Implementation
As
we
have
seen
previously,
the
vision
of
the
Commission
on
Human
Rights
for
an
International
Bill
of
Human
Rights
placed
emphasis
on
measures
of
implementation
to
follow
the
adoption
of
the
Universal
Declaration
and
the
International
Covenants
on
Human
Rights.
This
third
part
of
the
International
Bill
of
Human
Rights
would
prove
the
hardest
part
to
achieve
and
even
though
some
incipient
steps
have
been
made,
the
quest
for
measures
of
implementation
remains
problematic
to
this
day.
Shortly
after
the
United
Nations
General
Assembly
adopted
the
Universal
Declaration
of
Human
Rights
and
the
Convention
against
Genocide,
it
registered
an
important
success
on
the
route
to
implementation.
India
had
brought
the
issue
of
Apartheid
in
South
Africa
before
the
General
Assembly.
South
Africa
argued
strenuously
that
this
was
a
matter
within
its
internal
jurisdiction
and
that
the
General
Assembly
lacked
competence
to
consider
it.
In
one
of
its
historic
rulings,
the
General
Assembly
decided
that
it
was
competent
to
discuss
the
matter.
Thus
was
established
the
principle
of
international
concern
with
situations
of
gross
violations
of
human
rights.
Thereafter,
the
United
Nations
would
set
in
train
a
variety
of
investigative
working
groups
and
a
Special
Committee
against
Apartheid
and
would
stay
the
course
until
the
end
of
Apartheid
had
been
achieved
in
South
Africa.
The
Commission
on
Human
Rights,
however,
would
fail
dismally
in
dealing
with
allegations
of
gross
violations
of
human
rights.
As
it
drafted
the
Covenants
it
placed
emphasis
on
reporting
procedures
to
be
monitored
by
treaty-‐based
organs
such
as
the
Human
Rights
Committee
and
the
Committee
on
Economic,
Social
and
Cultural
Rights
in
existence
today.
But
how
would
it
respond
to
the
thousands
of
petitions
coming
in
to
the
United
Nations
alleging
gross
violations
of
human
rights
in
different
parts
of
the
world?
In
the
time
of
the
cold
war,
of
colonies,
and
of
segregation
in
the
southern
United
States
of
America,
the
Commission
on
Human
Rights
declared
that
ii
lacked
competence
to
deal
with
those
petitions.
It
was
an
historic
betrayal
from
which
the
Commission
only
ever
partially
recovered.
It
would
take
the
newly-‐independent
countries
coming
in
to
the
United
Nations
in
the
mid
1960s
to
press
for
the
United
Nations
to
deal
with
allegations
of
gross
violations
of
human
rights
in
colonial
and
dependent
territories
and
in
Apartheid
South
Africa.
Thus
it
was
that
the
Commission
on
Human
Rights
decided
in
1967
that
it
would
consider
annually
the
question
of
violations
of
human
rights
and
fundamental
freedoms
in
any
part
of
the
world.
This
would
lead
to
annual
debates
on
the
item
in
the
Commission,
to
the
establishment
of
working
groups
and
rapporteurs,
to
the
adoption
of
resolutions
of
concern
and
condemnation,
to
the
generation
of
technical
advice
and
assistance
to
countries,
and
to
other
approaches
intended
to
deal
with
the
problems
of
gross
violations
of
human
rights.
Meanwhile,
under
the
principal
human
rights
treaties,
countries
have
been
reporting
on
their
efforts
to
implement
those
treaties
and
the
treaty-‐monitoring
bodies
have
been
providing
country-‐specific
comments
as
well
as
general
comments
providing
guidance
on
the
implementation
of
the
treaties.
A
few
of
these
treaties
also
provide
for
individual
petitions
procedures.
This
is
the
case
for
the
Optional
Protocol
to
the
International
Covenant
on
Civil
and
Political
Rights,
Article
14
of
the
International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination,
the
Convention
against
Torture,
and
the
Optional
Protocol
to
the
Convention
on
the
Elimination
of
Discrimination
Against
Women.
Under
these
petitions
procedures
important
jurisprudence
has
been
developed
of
lasting
value
and
global
relevance.
In
this
matter
the
General
Assembly
has
echoed
the
voices
of
the
developing
countries
and
others
in
the
Commission
on
Human
Rights,
which
now
argue
that
the
role
of
the
United
Nations
is
not
to
engage
in
confrontation
about
human
rights
but
to
promote
dialogue
and
cooperation.
It
is
this
issue,
coupled
with
the
increasing
tendency
for
countries
accused
of
gross
violations
of
human
rights
to
secure
election
as
members
of
the
Commission
for
self-‐protection,
that
has
caused
a
crisis
in
the
Commission,
leading
to
calls
for
its
abolition
and
replacement
by
a
Human
Rights
Council,
an
issue
we
discuss
below.
We
are
therefore
living
through
a
veritable
crisis
when
it
comes
to
measures
of
implementation
and
protection.
The
adoption
of
the
Statute
of
the
International
Criminal
Court,
and
the
commencement
of
operations
of
the
Court
are
important
milestones
in
the
quest
for
stronger
protection
but
have
been
marred
by
the
hostile
and
uncooperative
attitude
of
the
United
States
of
America
towards
the
court.
As
for
the
human
rights
treaty
bodies,
which
are
part-‐time
institutions,
there
is
an
on-‐
going
process
aiming
at
the
greater
efficiency
and
rationalization
of
these
bodies.
It
would
certainly
help
if
these
bodies
were
not
to
exclude
political
nominees
or
officials
owing
their
loyalties
to
governments.
It
would
also
assist
for
these
bodies
to
have
the
support
of
more
staff.
Whether
it
is
wise,
at
this
relatively
early
stage,
to
call
for
the
consolidation
of
the
treaties
or
of
the
various
treaty
bodies
is
open
to
discussion.
In
the
quest
for
measures
of
implementation,
the
call
for
an
institution
such
as
a
High
Commissioner
for
Human
Rights
has
been
with
the
United
Nations
ever
since
1947,
and
was
finally
achieved
in
1993,
with
the
first
High
Commissioner,
Jose
Ayala
Lasso,
commencing
operations
in
1994.
We
discuss
the
Office
of
the
High
Commissioner
later.
However,
in
view
of
the
debates
taking
place
at
the
time
of
writing
about
how
the
international
community
should
deal
with
allegations
of
gross
violations
of
human
rights
we
look
specifically
at
this
issue
next.
VI.
Strategies
for
dealing
with
situations
of
gross
violations
of
human
rights
What,
it
may
be
asked
are
the
main
strategies
that
have
been
developed
in
international
and
regional
bodies
since
1948
to
deal
with
situations
of
gross
violations
of
human
rights?
Human
rights
strategies
in
use
at
the
present
time
include
the
drafting
of
norms
to
deal
with
new
problems,
which
continues
in
areas
of
need,
the
conduct
of
research
and
studies
into
contemporary
problems,
the
provision
of
advisory
services
and
technical
assistance
to
governments
to
help
them
strengthen
national
capacity
for
the
protection
of
human
rights,
the
consideration
of
state
reports,
the
operation
of
some
regional
and
international
petitions
procedures,
the
conduct
of
fact-‐finding
into
problem
situations,
naming
and
shaming
governments
and
non-‐state
actors
responsible
for
gross
violations
of
human
rights,
the
development
of
human
rights
education,
and
the
dissemination
of
information
about
human
rights.
Country
studies
are
carried
out
by
the
Inter-‐American
Commission
on
Human
Rights
on
its
own
initiative.
The
Commission
has
a
long-‐standing
practice
in
the
conduct
of
such
studies.
A
system
of
country
studies
as
such
does
not
exist
under
other
regional
systems
or
in
international
organizations.
However,
the
Peer
Review
Process
under
the
NEPAD
has
begun
to
produce
country
studies.
Early
warning,
preventive
procedures,
strategies
or
policies
exist
under
some
treaties
or
in
some
of
international
or
regional
bodies.
The
Convention
on
the
Prevention
of
Genocide,
the
European
Convention
on
the
Prevention
of
Torture
and
the
Inter-‐
American
Convention
on
the
Prevention
of
Violence
against
Women
are
examples
of
treaties
with
a
preventive
orientation.
The
first
Summit
of
the
Americas,
held
in
Miami,
called
for
preventive
capacity
in
the
Inter-‐American
human
rights
system.
The
OSCE
High
Commissioner
on
National
Minorities
has
a
preventive
role
as
does
the
OSCE
Representative
on
Freedom
of
the
Media.
Emergency
measures
may
be
taken
by
the
United
Nations
Security
Council
and
this
aspect
is
being
emphasized
in
the
discussions
about
the
proposed
Human
Rights
Council.
The
African
Commission
has
developed
a
significant
practice
when
it
comes
to
emergency
measures.
Inter-‐State
Complaint
Procedures
exist
under
the
African,
European,
and
Inter-‐
American
systems,
in
under
treaties
such
as
the
International
Covenant
of
Civil
and
Political
Rights.
They
have
been
most
successfully
used
under
the
European
regional
system.
A
United
Nations
human
rights
commission
has
existed
since
1947
and
discussions
are
under
way
to
replace
it
by
a
stronger
body,
a
Human
Rights
Council.
Regional
Human
Rights
Commissions
are
functioning
under
the
African
and
Inter-‐American,
systems.
Previously
there
had
been
a
European
Commission
but
its
role
has
been
taken
over
by
the
European
Court
of
Human
Rights.
The
Arab
Charter
provides
for
an
Arab
Commission
and
the
Commonwealth
of
Independent
States
established
a
human
rights
commission
in
1993.
The
last
two
commissions
have
not
yet
taken
off.
The
Asia-‐
Pacific
region
does
not
have
a
regional
commission.
The
Office
of
United
Nations
High
Commissioner
for
Human
Rights
organizes
an
annual
Asia-‐Pacific
Forum
which
concentrates
on
human
rights
education,
national
human
rights
plans
of
actions,
economic
and
social
rights,
and
the
right
to
development.
General
or
country-‐specific
recommendations
are
put
forward
by
the
United
Nations
Commission
on
Human
Rights
or
by
the
African
and
Inter-‐American
Commissions.
Regional
human
rights
courts
are
operational
in
the
European
and
Inter-‐American
regional
systems.
An
African
Court
of
Human
Rights
has
been
agreed
upon
but
is
in
the
process
of
being
merged
with
the
African
Court
of
Justice.
There
is,
as
yet,
no
international
human
rights
court.
The
African,
European
and
Inter-‐American
courts
may
consider
petitions
referred
to
them
under
their
respective
procedures
and
may
also
give
advisory
opinions.
The
enforcement
of
judgments
of
the
European
Court
of
Human
Rights
is
followed
up
by
the
Committee
of
Ministers
of
the
Council
of
Europe.
There
is
no
similar
arrangement
in
the
African
or
Inter-‐American
systems
or
in
the
United
Nations.
A
High
Commissioner
for
Human
Rights
exists
within
the
United
Nations.
The
High
Commissioner
has
promotional
and
protecting
functions.
The
Council
of
Europe
has
a
Commissioner
on
Human
Rights
with
promotional
functions.
The
OSCE
has
a
High
Commissioner
on
National
Minorities
and
a
Representative
on
Freedom
of
the
Media.
The
UN
High
Commissioner
for
Human
Rights
has
regional
representatives
in
Africa,
Asia
and
the
Pacific,
the
Arab
region,
Central
Africa,
Central
Asia
and
in
Latin
America.
Fact-‐finding
and
thematic
rapporteurs
and
groups
function
in
the
United
Nations
and
in
the
African
and
Inter-‐American
regional
systems.
Targeted
approaches
have
been
used
for
dealing
with
the
situations
of
particular
sectors
of
the
population.
The
rights
of
the
child
and
the
rights
of
women
are
cases
in
point.
So
are
the
rights
of
minorities,
indigenous
populations
and
migrants.
An
Inter-‐
American
Commission
of
Women
has
been
in
existence
since
1928.
Its
mission
is
to
promote
and
protect
women's
rights,
advancing
equality
of
participation
by
women
and
men
in
all
aspects
of
society.
The
push
for
equality
and
non-‐discrimination
has
been
a
consistent
strand
of
the
efforts
of
the
United
Nations
ever
since
its
establishment
and
we
look
at
this
issue
next.
VII.
The
Struggle
for
Equality
and
Non-‐Discrimination
The
struggle
for
equality
and
non-‐discrimination
has
been
a
hallmark
of
the
United
Nations
human
rights
programme
ever
since
its
establishment.
The
Charter
included
among
of
the
purposes
of
the
world
organization
to
develop
friendly
relations
among
nations
based
on
respect
for
the
principle
of
equal
rights
and
self-‐
determination
of
peoples
and
to
promote
and
encourage
respect
for
human
rights
and
for
fundamental
freedoms
for
all
without
distinction
as
to
race,
sex,
language,
or
religion.
It
has
been
one
of
the
historic
achievements
of
the
United
Nations
that
it
led
the
process
of
steering
dozens
of
former
colonies
and
dependent
territories
to
independence.
The
principles
of
equality
and
self-‐determination
breathed
life
into
this
struggle.
The
United
Nations
fought
against
Apartheid
in
South
Africa
and
undoubtedly
helped
bring
down
that
odious
regime.
The
United
Nations
has
championed
the
equal
rights
of
women
from
the
earliest
days
of
its
existence.
It
pioneered
studies
and
standards
on
the
nationality
and
political
rights
of
women.
It
launched
decades
of
action
and
successive
world
conferences
on
the
equal
rights
of
women.
It
promulgated
the
International
Convention
on
Elimination
of
Discrimination
Against
Women
and
an
Optional
Protocol
to
that
convention
providing
for
a
system
of
individual
petitions
where
women
consider
that
they
had
failed
to
achieve
justice
within
their
own
countries.
The
United
Nations
has
also
fought
for
racial
equality
through
mobilization
and
standard-‐setting.
The
International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination
calls
for
resolute
action
in
each
State
Party
to
stamp
out
prejudice
and
racial
inequality.
The
United
Nations
has
launched
successive
decades
of
action
against
racial
discrimination
and
has
held
successive
world
conferences
on
this
topic,
the
last
having
been
held
at
Durban,
South
Africa,
in
2001.
The
right
to
development
is
a
rallying
concept
that
calls
upon
the
international
community
and
each
country
to
act
in
a
concerted
manner
to
advance
the
development
aspirations
of
every
individual
and
all
nations.
It
is
a
concept
given
varying
emphases
by
different
group
of
countries.
For
the
developing
countries,
they
place
the
emphasis
on
transfers
of
resources
from
the
developed
countries.
For
the
developed
countries
it
is
the
totality
of
human
rights,
requiring
efforts
to
implement
all
human
rights,
civil
and
political
and
economic,
social
and
cultural.
Variations
of
emphasis
notwithstanding,
it
must
be
right
to
suggest
that
all
countries
should
use
their
resources
so
as
to
advance
the
right
to
development
for
their
people
in
an
equitable
manner
and
that
all
countries
should
cooperate
for
the
mutual
achievement
of
the
right
to
development.
The
alternative
to
such
a
policy
framework
is
a
Darwinian
world
of
market-‐oriented
capitalism
with
no
social
or
human
rights
safety
nets.
How
can
developing
countries
survive
in
such
a
world?
The
Millennium
Development
Goals
are
closely
related
to
the
implementation
of
the
right
to
development.
The
Millennium
Development
Goals
are
an
appeal
to
humanity.
They
integrate
human
rights
and
look
to
human
rights
strategies
to
help
bring
about
their
implementation.
The
core
human
rights
idea
is
one
that
centralises
human
dignity
and
rights
within
strategies
of
governance.
Stated
simply,
it
calls
for
governance
to
proceed
from
the
premise
that
everything
must
be
done
to
achieve
human
dignity
and
fundamental
human
rights
for
everyone.
These
rights
were
crystallised
in
the
International
Bill
of
Human
Rights,
which
consists
of
the
Universal
Declaration,
the
International
Covenant
on
Civil
and
Political
Rights
and
the
International
Covenant
on
Economic,
Social
and
Cultural
Rights.
Historically,
the
human
rights
idea
has
contributed
to
development
goals
through
norms
articulating
policy
goals
and
standards,
advocacy,
supervision,
studies
and
the
activation
of
the
international
conscience.
The
question
that
arises
for
reflection
is
how
the
human
rights
emphasis
might
help
in
the
implementation
of
the
Millennium
Development
Goals
in
the
future.
The
United
Nations
campaign
for
the
achievement
of
the
Millennium
Development
Goals
places
emphasis
on
human
rights
in
broad
terms.
It
emphasizes
the
human
rights
underpinning
of
the
Millennium
Goals
and
notes
that
injustice
and
discrimination
of
one
kind
or
the
other
are
increasingly
seen
as
key
determinants
of
poverty,
and
that
it
is
not
by
coincidence
that
the
very
same
determinants
account
for
most
human
rights
abuses.
The
Millennium
Development
Goals
Campaign
also
presses
the
point
that
the
human
rights
approach
'implies
that
we
are
talking
not
of
welfare
or
charity,
but
of
rights
and
entitlements.
This
means
that
taking
action
to
achieve
the
goals
is
an
obligation.
And
the
approach
also
creates
a
framework
for
holding
various
actors,
including
governments,
accountable.
Moreover
it
is
widely
acknowledged
that
sustainable
development
requires
the
active
involvement
of
the
poor
and
civil
society.
Thus
without
respect
and
fulfillment
of
human
rights
such
as
non-‐discrimination,
right
to
participation,
freedom
of
expression
and
assembly,
achieving
-‐
and
even
more
importantly
-‐
sustaining
the
Millennium
Goals
will
not
be
possible.'
How
can
practical
and
concrete
human
rights
approaches
contribute
to
the
achievement
of
the
Millennium
Development
Goals.
We
would
advance
six
suggestions.
The
first
relates
to
the
national
human
rights
protection
system
of
each
country
and
how
it
covers
key
economic,
social
and
cultural
rights.
There
should
be
human
rights
focal
points
in
key
Government
Ministries
such
as
Agriculture,
Health,
and
Housing
devoted
to
advancing
a
human
rights
approach
and
watching
over
the
principle
of
equality
and
non-‐discrimination.
One
should
also
place
more
emphasis
on
the
role
of
the
courts
in
protecting
key
economic,
social
and
cultural
rights.
Second,
one
should
bring
to
the
fore
more
the
concept
of
preventable
poverty.
Preventive
human
rights
strategies
are
not
given
the
attention
they
deserve.
They
have
an
especial
role
to
play
when
it
comes
to
basic
economic,
social
and
cultural
rights.
Preventable
poverty
is
something
that
one
could
also
focus
on
in
advocacy
campaigns.
Third,
there
is
an
important
role
for
the
principle
of
non-‐discrimination.
When
the
International
Covenant
on
Economic,
Social
and
Cultural
Rights
was
drafted
the
obligation
not
to
discriminate
was
made
a
mandatory
obligation
on
States
Parties.
The
issue
can
be
put
simply:
alongside
preventive
strategies,
a
society
must
be
watching
out
for
pockets
of
the
population
that
are
facing
discrimination
with
regard
to
basic
human
rights
and
act
urgently
to
ameliorate
this.
This
can
bring
about
tangible
relief.
Fourth,
one
needs
to
place
the
spotlight
more
on
vulnerable
groups
of
the
population
such
as
minorities,
indigenous
populations,
migrants,
and
historically
disadvantaged
communities.
Placing
the
spotlight
on
them
brings
their
plight
to
the
fore
and
enables
the
forging
of
a
national
consensus
to
act
for
their
relief
and
protection.
Fifth,
the
concept
of
a
consistent
pattern
of
gross
violation
of
economic,
social
and
cultural
rights
could
be
put
into
practice.
In
1975
the
United
Nations
Commission
on
Human
Rights
adopted
a
decision
that
I
would
henceforth
pay
attention
to
gross
violations
of
economic,
social
and
cultural
rights
alongside
civil
and
political
rights.
There
has
been
little
follow-‐up
to
this
decision.
However,
nationally,
regionally,
and
internationally,
one
should
place
the
spotlight
in
the
future
on
situations
where
there
is
a
consistent
patter
of
gross
violation
of
economic,
social
and
cultural
rights
attributable
to
the
policies
of
Governments
or
other
actors,
such
as
corporations.
This
would
give
expression
to
the
principle
of
protection
on
the
ground.
Sixth,
there
is
a
case
for
the
periodic
publication
of
a
World
Report
on
Economic,
Social
and
Cultural
Rights.
Such
a
report
would
help
show,
through
human
rights
lens,
what
could
be
done
to
prevent
and
reduce
poverty
and
act
for
the
relief
of
the
vulnerable
and
the
poor.
We
have
thus
far
discussed
the
quest
for
implementation
and
protection
and
also
looked
at
the
issue
of
taking
forward
the
implementation
of
the
right
to
development
and
of
the
Millennium
Development
Goals.
We
return
to
the
quest
for
stronger
protection
of
human
rights
by
looking
next
at
the
Office
of
High
Commissioner
for
Human
Rights,
an
institution
recommended
by
the
World
Conference
for
Human
Rights
in
1993
and
established
by
the
General
Assembly
that
same
year.
IX.
The
Office
of
High
Commissioner
for
Human
Rights
The
major
contributions
of
the
position
of
High
Commissioner
to
the
quest
for
measures
of
implementation
and
protection
have
been
to
provide
a
voice
for
victims,
to
exercise
initiative
in
launching
investigations
into
gross
violations
of
human
rights,
and
to
exercise
a
spearhead
function
for
the
human
rights
movement,
interacting
with
bodies
such
as
the
Security
Council
and
the
International
Criminal
Court.
Some
gains
have
been
made
on
these
fronts.
But
the
Office
of
High
Commissioner
is
still
in
the
early
stages
of
its
establishment.
It
receives
meager
allocations
from
the
regular
budget
of
the
United
Nations
and
spends
two-‐thirds
more
from
voluntary
contributions.
This
reflects
adversely
on
its
staffing
structure
and
on
its
ability
to
plan
and
act
independently.
As
of
the
time
of
writing,
the
High
Commissioner
has
proposed
a
plan
of
action
to
double
the
resources
of
the
Office
from
the
regular
budget
in
five
years
and
one
hopes
that
the
United
Nations
membership
will
follow-‐through
on
this.
Unfortunately,
the
High
Commissioner
has
been
squeezed
on
the
budgetary
front
in
the
past
on
account
of
initiatives
taken
for
the
protection
of
human
rights
and
at
the
present
time,
the
debate
is
still
going
on
as
to
whether,
and
how,
the
United
Nations
should
deal
with
gross
violations
of
human
rights.
When
this
writer
occupied
the
functions
of
High
Commissioner
and
condemned
the
Government
of
Sudan
for
gross
violations
of
human
rights
in
Darfur,
the
Permanent
Representative
of
Sudan
circulated
to
the
General
Assemby
a
formal
complaint
that
international
officials
should
not
make
pronouncements
on
the
behaviour
of
governments!
The
discharge
of
the
responsibility
to
protect
is
thus
a
matter
of
great
importance
to
the
future,
and
we
turn
next
to
this
issue.
X.
The
Responsibility
to
Protect
The
Heads
of
State
and
Government
gathered
at
United
Nations
Headquarters
from
14-‐16
September.
2005
acknowledged
that
each
individual
State
has
the
responsibility
to
protect
its
populations
from
genocide,
war
crimes,
ethnic
cleansing
and
crimes
against
humanity.
This
responsibility,
they
acknowledged,
entailed
the
prevention
of
such
crimes,
including
their
incitement,
through
appropriate
and
necessary
means.
They
accepted
that
responsibility
and
pledged
to
act
in
accordance
with
it.
They
called
upon
the
international
community,
as
appropriate,
to
encourage
and
help
States
to
exercise
this
responsibility
and
to
support
the
United
Nations
to
establish
an
early
warning
capability.
The
Heads
of
State
and
Government
declared
that
the
international
community,
through
the
United
Nations,
also
has
the
responsibility
to
use
appropriate
diplomatic,
humanitarian
and
other
peaceful
means,
in
accordance
with
Chapter
VI
and
Chapter
VIII
of
the
Charter,
to
help
protect
populations
from
genocide,
war
crimes,
ethnic
cleansing
and
crimes
against
humanity.
In
this
context,
they
declared
their
preparedness
to
take
collective
action,
in
a
timely
and
decisive
manner,
through
the
Security
Council,
in
accordance
with
the
United
Nations
Charter,
including
Chapter
VII,
on
a
case
by
case
basis
and
in
cooperation
with
relevant
regional
organizations
as
appropriate,
should
peaceful
means
he
inadequate
and
national
authorities
manifestly
failing
to
protect
their
population
from
genocide,
war
crimes,
ethnic
cleansing
and
crimes
against
humanity.
The
Heads
of
State
and
Government
stressed
the
need
for
the
General
Assembly
to
continue
consideration
of
the
responsibility
to
protect
populations
from
genocide,
war
crimes,
ethnic
cleansing,
and
crimes
against
humanity
and
its
implications,
bearing
in
mind
the
principles
of
the
Charter
and
international
law.
They
also
expressed
their
intention
to
commit
themselves,
as
necessary
and
appropriate,
to
help
states
build
capacity
to
protect
their
populations
from
genocide,
ar
crimes,
ethnic
cleansing
and
crimes
against
humanity
and
to
assist
those
which
are
under
stress
before
crises
and
conflicts
break
out.
XI.
Reforms:
Towards
a
Human
Rights
Council
The
United
Nations
Summit
of
world
leaders,
meeting
to
mark
the
sixtieth
anniversary
of
the
Organization,
resolved
to
create
a
Human
Rights
Council
to
take
over
from
the
Human
Rights
Commission,
which
has
done
invaluable
work
over
the
past
six
decades
but
which
has
now
fallen
into
disrepute
because
some
countries
accused
of
gross
violations
of
human
rights
have
been
successful
in
getting
themselves
elected
members
of
the
Commission
and
thereby
engaging
in
vote-‐trading
for
their
self-‐
protection.
Human
rights
are
at
the
centre
of
the
contemporary
world
order
and
must
be
the
driving
force
of
nation
building,
equity
and
justice
in
all
countries.
Like
the
original
Human
Rights
Commission,
the
new
Human
Rights
Council
must
take
forward
the
challenges
of
building
a
world
on
the
foundations
of
justice.
That
will
be
its
historic
mission.
The
peoples
of
the
world
expect
positive
results
from
this
reform.
The
world
leaders
have
set
for
the
new
Council
the
responsibility
of
promoting
universal
respect
for
the
protection
of
all
human
rights
and
fundamental
freedoms
for
all,
without
distinction
of
any
kind
and
in
a
fair
and
equal
manner.
The
Council
should
address
situations
of
violations
of
human
rights,
including
gross
and
systematic
violations
and
make
recommendations
thereon.
It
should
also
promote
effective
coordination
and
the
mainstreaming
of
human
rights
within
the
UN
system.
At
the
time
of
writing,
negotiations
are
underway
on
a
resolution
of
the
General
Assembly
establishing
the
Council.
The
new
Human
Rights
Council
should
play
a
leading
role
in
the
formulation
of
strategies
and
programmes
to
combat
discrimination.
The
founders
of
the
United
Nations
made
the
principle
of
non-‐discrimination
a
foundation
tenet
of
the
world
body
and
there
remains
a
great
deal
of
discrimination
on
grounds
of
race,
gender,
language,
religion
and
other
grounds.
A
world
of
widespread
discrimination
is
not
a
world
of
human
rights.
Human
rights
education
has
a
key
role
to
play
in
combating
discrimination
and
in
advancing
universal
values
of
respect
and
tolerance.
The
Human
Rights
Council
should
take
the
lead
in
encouraging
human
rights
education
in
the
schools,
universities
and
other
educational
institutions
of
every
country,
in
local
languages.
This
is
an
immense
task
that
has
hardly
begun.
Working
together
with
UNESCO
and
UNICEF,
the
Human
Rights
Council
should
make
this
a
priority
issue
for
consideration.
The
Human
Rights
Council
is
expected
to
act
on
the
basis
of
the
human
rights
norms
in
the
Charter,
the
Universal
Declaration,
and
the
United
Nations
human
rights
treaties.
It
would
be
expected
to
work
to
advance
the
implementation
of
these
treaties,
in
cooperation
with
the
human
rights
treaty
bodies,
which
should
have
appropriate
participation
in
the
membership
of
the
Council.
A
central
concept
of
recent
human
rights
reforms
at
the
UN
has
been
the
strengthening
of
national
protection
systems.
This
looks
to
constitutions
and
laws
that
are
reflective
of
international
human
rights
norms,
to
their
application
by
national
and
local
courts,
to
human
rights
education
and
institutions
like
human
rights
commissions,
and
to
early-‐warning
and
urgent-‐response
arrangements
where
needed,
particularly
in
multi-‐ethnic
societies.
The
Human
Rights
Council
must
make
it
a
central
part
of
its
work
to
contribute
to
the
strengthening
of
national
protection
systems
in
every
country.
It
is
on
this
issue
of
national
protection
systems
that
a
Peer
Review
Process
can
have
an
important
role
in
the
new
Council.
The
national
protection
system
should
be
expected
to
take
the
lead
in
preventive
strategies,
supported
by
regional
and
international
bodies.
The
world
leaders
have
rightly
called
for
the
new
Human
Rights
Council
to
address
situations
of
gross
violations
of
human
rights.
This
should
cover
economic
and
social
rights
as
well
as
civil
and
political
rights.
We
argued
above
for
an
emphasis
on
prevention.
The
new
Human
Rights
Council
must
take
forward
and
improve
upon
the
system
of
special
procedures
-‐
rapporteurs
and
working
groups
working
against
torture,
arbitrary
executions,
disappearances,
arbitrary
detention,
violence
against
women
and
children,
and
other
blots
on
our
civilization.
The
new
Human
Rights
Council
must
work
in
close
partnership
with
civil
society
and
assure
optimal
participation
for
human
rights
NGOs.
It
should
enhance
the
parliamentary
role
of
the
Human
Rights
Commission.
The
Council
should
also
work
in
closer
partnership
than
did
the
Human
Rights
Commission
in
recent
years
with
regional
human
rights
bodies
such
as
the
African
Commission
on
Human
Rights,
the
European
Court
of
Human
Rights
and
the
Inter-‐
American
Commission
and
Court
of
Human
Rights.
Mainstreaming
can
help
greatly
in
taking
forward
the
implementation
of
the
right
to
development,
which
will
undoubtedly
be
given
pride
of
place
in
the
new
Human
Rights
Council.
The
right
to
development
englobes
civil
and
political
rights
and
economic,
social
and
cultural
rights
and
provides
a
rallying
banner
for
the
peoples
of
the
earth,
especially
those
stricken
by
extreme
poverty
-‐
the
wretched
of
the
earth,
to
use
a
famous
expression.
XII.
Preventive
Strategies
The
situation
of
human
rights
in
a
country
must
be
a
central
dimension
of
risk
analysis
pertaining
to
that
country
-‐
whether
it
be
for
the
purposes
of
the
prevention
of
conflict,
assessment
of
the
stability
of
the
country,
or
assessment
of
opportunities
for
business.
In
the
literature
on
risk
assessment,
one
sees
discussion
of
the
meaning
of
risk,
examination
of
political
or
investment
risks,
but
one
finds
very
little
consideration
of
the
relevance
of
human
rights
to
risk
assessment.
Risk
assessment
of
a
country
must
start
with
consideration
of
its
human
rights
infrastructure,
record,
and
problems.
In
the
human
rights
strategies
of
the
United
Nations
these
days,
increasing
emphasis
is
placed
on
the
concept
of
the
national
protection
system.
By
this
concept
is
meant
that
one
should
look
at
the
constitution,
laws
and
courts
of
a
country
to
see
the
extent
to
which
they
are
reflective
of
the
international
human
rights
norms.
One
must
also
look
to
see
whether
the
country
has
specialized
human
rights
institutions
such
as
a
national
human
rights
commission
or
an
ombudsman,
whether
the
country
is
providing
for
the
teaching
of
human
rights
in
primary
and
secondary
schools
in
particular,
and
whether
the
country
has
monitoring
arrangements
to
detect
grievances
on
the
part
of
a
group
or
groups
of
the
population
with
a
view
to
heading
off
those
grievances.
If
significant
parts
of
the
national
protection
system
of
a
country
are
missing,
then
one
can
conclude
that
the
country
is
likely
to
be
shaky
and
unstable
and,
depending
on
its
configuration,
could
easily
erupt
into
violence.
B. The Degree of Acceptance of the Core International Human Rights Conventions
The
role
of
the
Universal
Declaration
of
Human
Rights
and
of
the
core
international
human
rights
conventions
is
to
require
States
to
live
up
to
international
minimum
standards
of
human
rights
protection
in
key
areas,
such
as
respect
for
civil
and
political
rights;
the
prohibition
of
torture;
the
prohibition
of
racism
and
racial
discrimination;
the
prohibition
of
discrimination
against
women;
protection
of
the
rights
of
the
child;
protection
against
torture;
and
protection
of
the
rights
of
migrants.
These
are
all
the
subjects
of
major
international
human
rights
conventions.
The
national
protection
system
of
a
country
should
be
built
on
the
Universal
Declaration
of
Human
Rights
and
on
these
core
human
rights
conventions.
If
a
country
has
not
ratified
the
key
conventions,
then
it
is
already
an
indicator
that
the
national
consensus
within
the
country
might
be
shaky
because
the
country
has
not
yet
begun
to
internalize
what
the
international
community
has
distilled
as
the
key
values
that
should
guide
nation-‐building
and
that
should
arbitrate
relations
between
the
Government
and
its
subjects
or
between
the
subjects
themselves.
That
a
country
has
not
ratified
one
or
more
of
these
conventions
may
not
necessarily
indicate
potential
instability.
The
United
States
of
America,
for
example,
largely
because
of
the
relations
between
the
Federal
and
State
governments,
has
ratified
very
few
international
conventions.
Even
in
such
instances,
however,
it
would
be
fair
to
say
that
by
staying
outside
of
the
conventions,
a
country
is
denying
itself
the
opportunity
of
engaging
in
a
dialogue
with
the
international
community
on
how
key
values
are
faring
within
the
country.
If
a
country
is
democratically
governed
under
the
rule
of
law,
the
chances
are
that
the
state
of
respect
for
human
rights
might
be
better
-‐
although
even
this
is
not
assured,
depending
on
the
country
in
question
and
its
political
maturity.
Nevertheless
a
good
indicator
in
risk
assessment
of
a
country
is
whether
it
has
genuine
periodic
elections
and
whether
the
courts
operate
freely
and
independently
of
the
Government.
If
either
of
these
conditions
is
absent,
one
can
be
pretty
certain
that
the
level
of
grievances
in
the
country
will
be
high
and
the
risk
of
instability
and
even
conflict
serious.
Political
corruption
and
inefficient
courts
foment
dissatisfaction
and
grievances
and
invariably
lead
to
a
weak
social
fabric.
It
is
a
good
indicator
of
the
health
of
a
country
to
ask
whether
one
can
point
to
a
unifying
vision
embracing
all
parts
of
the
population
-‐
whether
they
be
from
different
political,
economic,
social,
racial,
ethnic
or
religious
backgrounds.
In
today's
multicultural
world,
it
is
fundamentally
important
that
each
country
project
a
national
vision
that
can
give
all
parts
of
the
population
a
feeling
that
they
have
a
stake
in
the
future
of
the
country.
In
countries
where
there
is
the
danger
of
ethnic
or
religious
conflict,
such
a
unifying
national
vision
is
vital
and
can
only
be
constructed
on
the
basis
of
the
international
human
rights
norms
guaranteeing
the
principles
of
the
rule
of
law
and
non-‐discrimination
and
respect
for
the
rights
of
minorities,
indigenous
populations,
migrants
and
other
such
groups.
The
national
security
doctrine
of
a
government
can
often
provide
an
indicator
of
how
stable
or
equitable
the
country
is.
In
the
contemporary
world,
a
national
security
doctrine
must
be
grounded
in
international
human
rights
norms
and
must
give
priority
to
upholding
human
rights
nationally,
regionally
and
internationally.
In
a
world
of
terrorist
threats
and
global
mobilization
against
terrorism,
it
is
particularly
important
that
there
be
safeguards
against
the
risks
of
trampling
upon
human
rights
in
protecting
national
security
or
of
countering
terrorism.
F. The State of Freedom of Expression and Freedom of Religion or Belief
Under
the
principal
human
rights
conventions,
States
are
required
to
submit
reports
on
their
actions
to
implement
the
conventions
and
these
reports
are
considered
by
treaty
monitoring
bodies,
such
as
the
Human
Rights
Committee,
the
Committee
against
Torture,
the
Committee
on
the
Elimination
of
Discrimination
against
Women,
and
the
Committee
on
the
Elimination
of
Racism
and
Racial
Discrimination.
The
comments,
conclusions
and
recommendations
of
these
treaty
monitoring
bodies
can
often
be
quite
telling
about
the
state
of
protection
of
human
rights
in
the
country
and
about
whether
there
are
seething
problems
or
problems
beneath
the
surface
waiting
to
erupt.
Those
engaged
in
risk
analysis
must
therefore
have
in
view
for
every
country
what
the
international
human
rights
treaty
bodies
are
saying
about
the
state
of
human
rights
within
the
country.
In
the
United
Nations
these
days,
there
are
thematic
human
rights
rapporteurs
and
working
groups
producing
reports
once
or
twice
a
year
on
problems
such
as:
extrajudicial
executions,
torture,
enforced
disappearances,
arbitrary
detention,
violence
against
women,
religious
freedom,
the
right
to
food,
the
right
to
education,
the
right
to
health,
and
on
housing
issues.
These
thematic
special
procedures
of
the
United
Nations
Commission
on
Human
Rights,
in
their
annual
reports,
cover
a
range
of
some
60-‐70
countries
per
year.
In
2003,
the
Special
Rapporteur
on
Violence
against
Women
did
a
survey
on
this
problem
for
every
country
of
the
world.
The
reports
of
these
thematic
special
procedures
can
give
a
pretty
good
indication
of
whether
or
not
there
are
serious
problems
within
a
country.
Evidence
of
extrajudicial
executions,
torture,
enforced
disappearances
or
arbitrary
detention
can
tell
one
straightaway
that
the
storm
clouds
are
over
the
country
and
are
about
to
burst
if
they
have
not
already
done
so.
If
a
country
has
a
de
facto
or
de
jure
state
of
emergency,
then
that
would
tell
that
there
are
particular
reasons
to
look
closer
at
the
country.
If
a
country
is
democratically
governed
under
the
rule
of
law,
a
state
of
emergency
might
not
necessarily
indicate
instability.
Under article 4 of the International Covenant on Civil and Political Rights
"In
time
of
public
emergency
which
threatens
the
life
of
the
nation
and
the
existence
of
which
is
officially
proclaimed,
the
States
Parties
to
the
present
Covenant
may
take
measures
derogating
from
their
obligations
under
the
present
Covenant
to
the
extent
strictly
required
by
the
exigencies
of
the
situation,
provided
that
such
measures
are
not
inconsistent
with
their
other
obligations
under
international
law
and
do
not
involve
discrimination
solely
on
the
ground
of
race,
colour,
sex,
language,
religion
or
social
origin."
J.
Early
Warning
and
Prevention
Especially
in
today's
world
where
people
are
moving
across
frontiers
and
cultures
are
intermingling,
it
would
be
advisable
for
each
country
to
have
arrangements
to
detect
and
head
off
grievances
that
could
erupt
in
a
strife
or
conflict.
One
way
of
achieving
this
might
be
for
a
national
commission
on
human
rights
to
provide
an
annual
assessment
of
the
state
for
respect
for
human
rights
within
the
country.
Risk
assessment
of
a
country
could
look
at
whether
such
arrangements
for
early
warning
and
prevention
exist
within
the
country.
An
important
question
to
ask
in
risk
assessment
of
a
country
is
whether
the
police
and
the
military
are
under
civilian
control.
If
this
is
not
the
case,
as
night
follows
day,
one
can
expect
that
the
police
and
the
military
will
be
engaging
in
excesses
on
the
civilian
population
leading
to
potentially
explosive
situations.
Even
if
there
is
civilian
control
of
the
police
and
military,
it
would
be
important
to
ask
if
there
is
abuse
of
power
by
either.
Abuse
by
the
police
or
the
military
will
certainly
foment
discontent
and
possibly
strife
and
conflict.
This
presentation
of
the
evolution
of
human
rights
norms
and
machinery
has
sought
to
trace
the
intellectual
and
policy
journey
of
the
human
rights
programme
of
the
United
Nations
since
its
establishment
in
1945
with
a
view
to
assessing
where
we
have
come
from
and
what
are
the
challenges
that
lie
ahead.
It
has,
we
hope,
brought
out
the
quest
to
take
forward
the
protection
of
human
rights
in
a
world
of
mass
poverty,
conflicts,
terrorism,
inequality,
state
violence
and
bad
governance
all
of
which
present
daunting
challenges
for
the
vindication
of
the
human
rights
idea.
It
is
fair,
we
think,
to
say
that
the
normative
and
institutional
foundations
have
been
laid,
even
if
the
latter
will
require
modernization
in
the
period
ahead.
The
responsibility
to
protect
will
remain
a
central
concept,
albeit
broader
than
in
its
definition
by
the
summit
of
world
leaders
in
2005.
The
broader
concept
is
to
be
found
in
a
resolution
adopted
by
the
United
Nations
General
Assembly
at
its
thirty-‐fourth
session,
dealing
with
mass
and
flagrant
violations
of
human
rights.
There,
the
General
Assembly
declared
that...
The
United
Nations
will
continue
to
have
delicate
balances
to
strike
in
the
protection
of
human
rights.
In
the
first
place,
a
world
organization
that
is
not
seen
as
faithful
to
the
protection
of
human
rights
will
lose
the
public
trust
and
its
legitimacy.
At
the
same
time,
it
must
operate
on
the
basis
of
the
principles
of
respect,
confidence-‐
building
and
protection.
United
Nations
organs
must
show
respect
for
their
interlocutors,
whatever
one
thinks
of
them.
United
Nations
organs
must
seek
to
build
confidence
in
the
membership
and
among
the
peoples
of
the
United
Nations
in
the
methods
and
approaches
used.
And
the
United
Nations
must
be
faithful
to
the
principle
of
protection
which
has
national,
regional,
and
international
dimensions.
There
must
be
on-‐going
diplomacy
at
the
United
Nations
to
foster
understanding
of,
and
trust
in,
these
three
principles.
Lecturing
the
world
will
not
serve
to
advance
these
principles.
Patient
and
persistent
work
will.
While
working
at
these
principles,
the
United
Nations
must
increasingly
place
emphasis
on
universal
human
rights
education,
the
strengthening
of
national
protection
systems
in
each
country,
and
the
implementation
of
the
principal
human
rights
treaties.
The
human
rights
treaty
bodies
provide
an
invaluable
service
through
their
human
rights
expertise.
One
must
build
on
their
work,
using
the
international
conventions
as
normative
platforms
on
which
to
build
strong
national
protection
systems.
Policies
and
strategies
will
be
called
for
on
a
wide
front.
This
is
as
it
should
be
for
a
world
of
infinite
variety
and
complexity.
January 2006