INTERNATIONAL HUMAN RIGHTS END TERM NOTES

 International HR Organization Type

 International Non-Governmental Organizations (INGOs) – These
organizations are established by national law and function as domestic
organizations. They become important in the international arena due to
their transnational activities. INGOs typically focus on various social,
environmental, or human rights issues, and they may collaborate with
governments, international agencies, or other non-governmental
organizations. Examples of INGOs include Amnesty International, World
Wildlife Fund (WWF), and Oxfam.

 International Governmental Organizations (IGOs) – These

organizations are established by interstate agreements, meaning they are
created and governed by multiple countries. They tend to have significant
power and influence, often reflecting the interests of major global powers.
IGOs face two categories of mutually constitutive problems:

a) Problem of organizational structure (Constitutive problem) – This refers to the

challenges that arise in establishing and maintaining the structure and governance of an IGO.
It involves determining the membership, decision-making processes, distribution of power
and resources, and how the organization operates within the international system.

b) Substantive problem – This refers to the specific issues that an IGO is designed to
address. These problems can range from promoting peace and security, facilitating
international trade, or addressing global environmental and health concerns. Examples of
IGOs include the United Nations (UN), the World Trade Organization (WTO), and the World
Health Organization (WHO).
  WHY INTERNATIONAL HR ORGANISATIONS

 International organisation of both types play an important role in

establishment of international norm and institutions.

1) Without international organisations institutions would rely completely

on domestic avenues of enforcement
2) Less enforcement incentives for HR lead to weaker enforcement
domestically.
3) Arguments over structure of IO’s have been most acerbic.
4) IO are a distinctive aspect of modern would politics, an organic
product of modern state system.

 INSTITUTIONS: KEY TO MODERN INTERNATIONAL LAW

 International institutions provide sovereign engagement.

 International law allows autonomous generation of norms.
 Two functions blurred- engagement + norms.

 Norms sometimes directly engage states and

 Institutions become frequent venue of generating norms.
 Offering “a move from politics through text to institutional action”
 Voting translates to membership into action, moving from
sovereign autonomy to cooperation.

In summary, international institutions and international law are closely intertwined, with
institutions providing a platform for sovereign engagement and the generation of norms. This
relationship can sometimes blur the distinction between the functions of engagement and
norm creation, as norms directly engage states, and institutions become frequent venues for
generating norms. Voting within these institutions further translates membership into action,
fostering cooperation among nations.
 VOTING METHODS

 Unanimity voting – favoured in early period of IGO formation.

 Allows autonomous sovereigns to sit in standing plenaries without
forswearing their sovereign prerogative- It allows countries to maintain
their sovereignty, as they can reject any decision that goes against their
interests. FAVOURED IN EARLY DAYS OF IGO.
 Majority decisions- one state cannot hold the matter hostage.
 It prevents a single state from blocking a decision, ensuring smoother
decision-making. However, there is a risk of majority tyranny, where the
majority can impose its will on the minority, potentially undermining the
sovereignty of individual states.
 So, shift to weighted majority with veto: immobility? (UNSC)- While
this approach can help balance power among states, it can also lead to
immobility, as decisions can be easily blocked by the veto-wielding
countries.
 Consensus- may encourage support but water down output?
 In consensus-based decision-making, states try to reach a decision that all
members can support, even if they do not fully agree. This method fosters
cooperation and encourages discussion among members. However, it can
lead to watered-down decisions, as countries may have to compromise on
their positions to reach a consensus.
 SHIFT FROM UNANIMITY TO MAJORITY VOTING AS TRUST
DEVELOPED.

 ENFORCEMENT

 For commercial or environmental institutions, the enforcement incentive is

high but for human rights its low.
 Sovereignty claims can often get in way of HR
 Difficult to encourage compliance in the HR area, as compliance depends
on domestic institutions or outside pressure
  Little incentive for other states to horizontally seek to enforce. - There is
generally less incentive for other countries to enforce human rights rules
on a horizontal level
 The ability of a country to enforce human rights norms within its borders
often depends on its level of development. Countries with stronger
institutions and more resources may be better equipped to enforce human
rights norms.
 Attempts to enforce human rights norms through international pressure can
sometimes be met with resistance from the targeted country, which may
view such efforts as an infringement on its sovereignty.
 A system of mutual tolerance of violation may emerge- In some cases, a
system of mutual tolerance of human rights violations may emerge, where
countries turn a blind eye to each other's violations in order to avoid
scrutiny of their own actions.

 ACTIVE UN CHARTER BASED INSTITUTIONS AND STANDARD

SETTING

Active UN Charter-based institutions play a crucial role in setting standards and

promoting human rights around the world. These institutions work together to
create a global framework for protecting and promoting human rights. Some of
the most prominent institutions are:

1) HR COMMISSION – This institution, which has now been replaced by

the Human Rights Council, was responsible for drafting many human
rights treaties. It played a significant role in shaping the international
human rights framework.
2) Eleanor Roosevelt chaired the working group drafting UDHR
3) UN Security Council & UN Secretary-General: The Security Council and
the Secretary-General have a substantial voice in matters related to
security and human rights. They are involved in authorizing interventions
and peacekeeping operations to protect human rights and maintain
international peace and security.
 4) HIGH COMMISSIONER OF HR- Under UNSG- authorised to investigate
and mediate HR issues wherever they arise.
5) UN General Assembly: The General Assembly has broad powers to
address various issues, including human rights. It can initiate studies, make
recommendations, and adopt resolutions on human rights matters. The
General Assembly has six standing committees, with three of them
actively working on human rights issues. – social , humanitarian , culture,
administrative , budget and legal.
6) Human Rights Council: Replacing the Human Rights Commission, the
Human Rights Council is responsible for promoting and protecting human
rights worldwide. It is the most active UN organ in this area, investigating
human rights violations through both public and confidential procedures.

 Several organs have little or no role in HR area-

1) Trusteeship Council: This organ was initially responsible for overseeing

the process of decolonization, helping territories transition to self-
government or independence. As decolonization has largely been
completed, the Trusteeship Council is now suspended and does not play a
direct role in human rights issues.
2) International Court of Justice (ICJ): The ICJ primarily deals with legal
disputes between states and provides advisory opinions on legal questions.
While it occasionally hears cases related to human rights, such as self-
determination or genocide, its involvement in human rights issues is
limited compared to other UN institutions.
3) Economic and Social Council (ECOSOC): ECOSOC was previously
responsible for overseeing the Human Rights Commission, which has now
been replaced by the Human Rights Council. Although ECOSOC remains
involved in various aspects of economic, social, and environmental issues,
its direct role in human rights has been diminished due to the creation of
the Human Rights Council.
4) Commission on the Status of Women (CSW): The CSW is a subsidiary
body of ECOSOC and is dedicated to promoting gender equality and the
 empowerment of women. While its work is related to human rights, the
CSW primarily focuses on gender issues and may not have a broad scope
in addressing other human rights concerns.

These UN Charter-based institutions work together to establish and enforce human rights
standards across the globe. Their collective efforts have helped create a robust international
framework for the promotion and protection of human rights.

 FORMER HR COMISSION

 Established in 1946 and has left an important legacy.

 Under ECOSOC had 53 representatives member governments for 3 years term

The Commission's work can be divided into two main phases:

 Treaty drafting: In its first 20 years, the Human Rights Commission focused
on drafting key human rights treaties, such as the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social, and Cultural Rights (ICESCR). These treaties have had a
lasting impact on the development of international human rights law.
 Violations and referrals: After the initial treaty-drafting phase, the
Commission began addressing human rights violations, investigating cases
referred to it by member states or other sources.
 The Human Rights Commission had three main procedures for
addressing human rights violations:
 3 procedures – 1503 confidential procedures, 1235 open debate procedure and
Thematic rapporteurs

 Advisory body: Commission v. Council

 Comission advised by expert Sub commission on the promotion and

protection of HR
  Council advised by expert HRC ADVISORY COMITEE (HRCAC)

- Which is now constrained not to openly report its conclusions ,

- Eliminating the naming and shaming.

 The now defunct HR commission contained working groups dealing with-

- Communications, rights of indegineous people , slavery, minorities ,

transnational corporations, justice and terrorism.

 Both have 3 approaches –

- fact finding and documentation.

- prosecutorial publicity
- conciliation

 HR COMMISSION AND VIOLATIONS

• Commission's techniques for responding to HR violations included:

1) confidential considerations under ECOSOC Res 1503;

2) public debate under ECOSOC Res 1235,

• which often lead to the appointment of a Special Rapporteur, a Special

Representative of the UNSG or other designated individuals or working groups;

• a public debate most countries sought to avoid,

3) designation of experts to address a specific theme; or

4) the appointment of an expert to consider a specific condition in a country to give

expert advice.
 Reform: View from the South

• The Chinese led the South counterattack on the Commission.

⁃ Claimed it was a venue for North imposition on the South.

⁃ The Chinese ambassador complained of the developed countries'

unshirkable responsibility for HR violations in the South.

• Born of centuries of colonialism and slavery by the North.

⁃ "Developing countries are fed up with the atmosphere of confrontation and

politicization of the HR Commission."

- His solutions is less confrontation more cooperation over HR

 Reform: View from the North

• North and civil society viewed the Commission as impotent.

- The most extreme violations were simply ignored,

- In 2001 when the Bush administration, long hostile to multilateralism,
failed to get elected to the Commission they attacked it as the home of
HR violators.
- Even Libya once chaired the Commission;

 Note preoccupation with Israel:

⁃ Israel had attracted the most 1235-like resolutions.

⁃ Country-specific procedures are otherwise difficult to get passed.

⁃There are sometimes special sessions, eg. to take reports from Special
Rapporteurs, commissions of inquiry, and fact-finding commissions.
 Council Replaces UN HR Commission

• Both leading Western powers and developing countries favored reform.

- The former said it was too soft, the latter said it was to hard.

⁃ The South more often the target and

⁃ The great powers generally insulated.

• In 2004 Res. 1235 resolutions against Russia over Chechnya,

• China over a general pattern of HR abuse, and

• the US over Guantanamo (withdrawn in anticipation) all failed.

Debates over the adequacy of the HR Commission

⁃ that it exceeded or failed its mandate

⁃ lead to replacement by the HR Council.

 Who won the battle over reform?

 UN Human Rights Council--Structure

• The HR Council has 47 member governments, one-third of which are elected

each year by a majority of the UNGA.

• States are limited to two consecutive three year terms,

• The Council must meet three times per year for a minimum total of ten
weeks. One-third of the members can call a special session.
  The Council is divided into five regional groups on Asia, Africa,
Eastern Europe, Latin American and Western Europe and others.
 Working Groups of five will have one member from each regional
group.
 The Presidency of the Council rotates among the regions.
 Regions will also caucus regularly during sessions.
 The Council answers to the UNGA.
 The old Sub-commission is replaced by a new HR Advisory
Committee.

 HR Council-Member Election Criteria?

• Council membership criteria for election of state members:

⁃ election on an individual basis--avoiding regional slates;

•Though there is equitable regional distribution: Africa 13, Asia Pacific 13,
Latin America Caribbean 8, Western Europe and other states 7,Eastern Europe 6, for
total of 47.

⁃ election by a majority of all members of the UNGA (96 votes);

⁃eliminating defacto permanent membership -rotation after two terms;

⁃ requiring candidates take pledge to take HR initiatives if elected (Art. 8);

⁃ the possibility of suspension for violations;

⁃ review of their HR record for election.

 OHCHR Recommendations

• OHCHR suggested list of HR initiatives include:

⁃ Cooperation with special procedures and with treaty monitoring bodies

⁃ Contribution to human rights initiatives,

⁃Cooperation with OHCHR,Contribution to deliberation in international fora,

⁃Commitment to fully engage with the HR Council, the UPR process and
NGOs.

• Regarding National Practice the OHCHR suggest:

⁃ Description of national HR policy;

⁃ Presenting evidence of independent NHRIs and effective HR remedies in

practice;

⁃ Plus some final statements of commitment to engage HR.

 Debate Over UPR Mechanism

• Adopted by Res. 5/1 on 6/18/2007

• The outcome of a debate-ultimately adopts:

⁃ a weak "interactive dialogue model" supported by the South;

⁃ rejecting a "comprehensive approach" of expert review and reporting

promoted by the HR community.

• The former requires:

⁃ reports from the OHCHR and a report from the state under review, and
 ⁃ allows discussion from all participants in the HR review meeting.

• Who won? Clearly China with some civil society inclusion added.

 HR Council and Violation?

• ECOSOC 1235 and 1503 were replaced by UNGA Res. 60/251.

⁃ The resolution Creating the HR Council, art. 6, requires the maintenance of

special procedures.

⁃ The June 2007 HR decision preserved special procedures by requiring

mandate holders be appointed for 6 years by a Consultative Group made up of 5
government reps assisted by OHCHR.

• HRC replaced Sub-commission with a new Human Rights Council Advisory

Committee (HRCAC)consisting of 18 experts.

⁃ Specified geographic distribution serving a max of two 3-year terms.

 Advising the HRC: HRCAC

• The HRCAC is to provide expert advice to the HRC.

⁃ It is precluded from adopting resolutions or decisions, and

⁃ Is prohibited from establishing working groups on its own volition.

⁃ It meets for a maximum of 10 working days per year.

⁃ Retains a 1503-like procedure with same confidentiality guidelines.

 Council's Two Working Groups

• Working Group on Communications made of five independent experts from

the HRCAC; and

•Working Group on Situations with five government representatives.

•The former recommends action to the latter, and

• the latter reports to the Council on situations involving "consistent patterns

of gross and reliably attested violations of human rights and Fundamental freedoms."

 Thematic Mechanisms

1st used to overcome Argentina's avoidance of country-inquiry.

⁃Thematic inquiries offer common route around country specific inquires.

⁃ Countries that reject targeted inquiry may agree to weaker thematic one.

⁃Can be from the UNSG or the Council, aided by UNHCHR secretariat

• Thematic inquiries have a number of names:

⁃Working group,

⁃Special rapporteur,

⁃Independent expert,

⁃Special representative...

•Initiated by:
 ⁃request for information,

⁃urgent action procedures,

⁃ site visit,

⁃report recommendations, or

⁃joint WG actions.

•Three functions under thematic mandates include:

⁃Presentation of an annual report,

⁃ Fact finding missions, and

⁃Complaints investigation.

• Special Rapporteur on housing offers guidelines, including

⁃States to conduct housing impact assessments for vulnerable groups,

- States to be sure marker forces do not harm such vulnerable groups,

⁃ Preserving rights of return and resettlement for such groups.

⁃ See other thematic reports in readings.

  Draft Manual on Special Procedures

• Draft Manual of the UN on HR Special Procedures with Guidelines, 2007 for

fact finding:

⁃ Two types of communications:

• allegations seeking response and

• urgent action letters.

⁃ Emphasize the importance of states issuing invitations to such UN

representatives.

⁃ Stress importance of meetings, briefings, press coverage and

dissemination of report.

⁃ Communicate in non-accusatory language aiming to solicit

information.

 High Commissioner for HR

HCHR post resulted from the Vienna World Conference on HR and was enacted by
UNGA

Resolution 48/141 of 1993.

⁃ This is the principle UN official on HR answerable to the UNSG.

⁃ Supervises the UN Center for HR (700+ staff) and carries out a variety
of assignments, both representative and advisory, for the UN.
 ⁃ Must file an annual report through the HRC to the UNGA.

⁃ Should the HCHR be a coordinator, a manager or a standard-bearer?

⁃ Or should she be all three and thereby set the UN priorities?

⁃ Note the previous HCHR resigned citing lack of commitment.

• This position had been recommended at the founding of the UN but

was not carried out.

 UN Security Council (UNSC)

• UNSC has 15 members, 5 permanent, 10 voted for 2 year terms.

• Veto in 5 permanent.

• Substantive passage requires 9/15 votes.

• UNSC has "Primary responsibility" for "maintenance of international peace

and security" guided by:

• Chapter VI to achieve pacific settlement; and

• Chapter VIl on threats to peace, breach of peace or acts of aggression.

• States cannot use force against others, Art 2(4),

• Except, under Art 51, in self-defense.

• Regional arrangements to intervene under Chapter VIlI require UNSC

approval.

• Now in doubt after Kosovo and adoption of the "responsibility to protect.

 •Leading up to World Summit Outcome suggestions were made that a regional
grouping might first take urgent action and then obtain approval.

 UNSC: Critical Issues

• Two key issues continue to plague the UN Charter security regime:

• The relationships between HR obligations and domestic jurisdiction,

Art. 2(7);

• When gross domestic human rights violations can be considered a

"threat to international peace" justifying UNSC action

• Can adequate guidelines be articulated?

• Or whether regional groupings should go ahead when UNSC fails to

act?

• Should the UNGA take the lead when the UNSC fails to act, as it did
in South Africa?

• In South Africa did the UNGA redefine the boundary of a "threat to

peace?"

 Humanitarian Intervention?

• Defined: "use of force justified by reference to an overriding

humanitarian emergency."

• When countries act unilaterally to help an ally humanitarian

intervention may be combined with a self defense claim.
 • Does humanitarian intervention by members or regional grouping of
members survive the charter?

• In the face of UNSC paralysis should regional groupings proceed

without UNSC authorization?

⁃ And seek approval later?

⁃ As a matter of Charter interpretation?

 UNSC Humanitarian Intervention

• The UNSC was paralyzed during the Cold War:

⁃ Breaches of peace found only in Korea and Falklands, Declarations of

aggression were made against Israel, and

⁃ Found seven cases of threats to international peace: Palestine, Congo,

Rhodesia, Bangladesh, Cyprus, South Africa and Israel.

• After Cold War more active, authorizing force in the 1990s in Iraq,
Somalia, Yugoslavia, Rwanda and Haiti.

• Peace keeping operations have proliferated, though there was more

activity in the early 1990s

⁃ 17 operations 70,000 troops.

• The International Criminal Court has been added to the mix.

  Responsibility to Protect

• The R2P principle: (Originated in Canada's 2001 Report)

⁃ "The primary responsibility for the protection of its people lies with the
state."

⁃ But where a state is "unwilling or unable" to halt or avert serlous harm

to its own population, "the principle of non-intervention yields to the international
responsibility to protect."

• Five basic criteria of legitimacy in exercising this responsibility:

⁃ Seriousness of the threat;

⁃ proper purpose;

⁃ last resort;

⁃ proportional means; and

⁃ balance of consequences.

• When should intervention begin and by what means?When masses of

refugees are fleeing is it already too late?

 Whose Responsibility to Protect?

• What to do about humanitarian crises when UN fails to act?

• Should we stand by and watch genocide?

• Should the UN develop guidelines?

 • Also for termination of UN action?

• Is regional action without UN approval agreeable?

• Will regional action occur in any event?

• Kosovo legal? Legitimate?

• Has China's tough stand on HI helped or hurt sovereignty?

• Should a UN multinational rapid reaction force be created?

• Should the UNSC be able to act without unanimous approval?

• Is responsibility to protect such a mechanism?

• Should the UNGA take the lead when the UNSC fails to act?

• Can gross HR violations be considered a threat to international peace

and security?

 Antonio Cassese has suggested guidelines for Regional action:

• Only when gross violations involving the lives of hundreds of

thousands of people;

• Must be proof that the central authorities are unable to do anything

about it;

• The UNSC is unable to take action because of disagreement;

All peaceful alternative avenues have been employed;

• There is substantial unanimity among the regional group of states;

 • Use only enough force to stop the acts in question,

⁃ ie armed force only for the limited purpose of stopping atrocities and
restoring respect for HR

 Sanctions: Increasingly Used

• Problems with sanctions include:

⁃ bluntness of the weapon;

⁃ porosity of sanctions;the nationalistic or xenophobia use of sanctions;

⁃ disproportionate impact on the most vulnerable.

• Impact of sanctions on economic and social rights:

⁃ Are humanitarian exemptions really effective?Are countries targeted

for sanctions responsible to address effects?

⁃ Are those countries who use sanctions bound to ensure non-

discrimination and other social and economic rights?Must there be effective
monitoring to protect vulnerable groups?

• Is the UN responsible for conditions that arise from sanctions?