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International Human Rights Law

(LG523)

TOPIC 3: UN Charter Based System of Human


Rights Protection
Lecture Outline

1. Difference between charter based protection and treaty


based protection
2. Charter of the United Nations and the Protection of Human
Rights
3. The role of the Charter bodies in the protection of human
rights
Human Rights Protection

 Charter-based  Treaty Based


 Non-conventional  Conventional
 Applicable to all member  Applicable to State Parties
states of the UN
UN Charter

 UN – established at San Francisco


Conference, June 1945: Charter of the
United Nations
 A proposal to include a declaration of
fundamental rights in the Charter itself
was opposed by the great powers and
rejected.
 http://www.un.org/en/documents/cha
rter/index.shtml
The Charter and Human Rights

 Preamble:
 We the Peoples of the United Nations determined to save
succeeding generations from the scourge of war, which twice
in our lifetime has brought untold sorrow to mankind, and to
reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and
women and of nations large and small, and to establish
conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can
be maintained, and to promote social progress and better
standards of life in larger freedom…’
The Charter and Human Rights

 Purposes and Principles:


 Art. 1. The purposes of the United Nations are…
(3) ‘To achieve international cooperation in solving international
problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion…’
The Charter and the Principle of Non-Intervention

 All of these statements have to be discussed in light


of Article 2(7) – the principle of non-intervention
 Art. 2(7) states:
 ‘Nothing contained in the present Charter shall authorise the
United Nations to intervene in matters which are essentially within
the domestic jurisdiction of any state.’
 UN Bodies have to ensure that they do not intervene
in matters that intervene in the domestic jurisdiction
of the state – does this extend to violations of human
rights?
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Commission Economic and Council
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United Nations Bodies and HR protection

 General Assembly
 192 Member States
 Each MS has one vote
 Reflects the priorities of Governments
 Non-binding resolutions – can form customary law
 Art. 13 (1) The General Assembly shall initiate studies
and make recommendations for the purpose of…
b. Promoting international cooperation in the
economic, social, cultural, educations, and health
fields, and assisting in the realisation of human rights
and fundamental freedoms for all without distinction as
to race, sex, language, or religion…
Could this amount to intervention in certain cases?
GA and “intervention”?

 Racial discrimination in South Africa


 Argument of The Government of South Africa: the UN was not authorized to deal with a question
involving the politics of apartheid, and, that recommendations which single out one state were not
consistent with the UN Charter. General Assembly did not have the power to take measures with
respect to human rights violations as this would amount to ‘dictatorial interference’ and that only
the Security Council possessed the competence to interfere ‘dictatorially’. The idea was that if the GA
could intervene in HR matters, it could also intervene in other matters and no state could tolerate
this.
 The report by the United Nations Commission on the Racial Situation in the Union of South Africa —
which was adopted by the Assembly — drew the conclusions: that the General Assembly has the
competence to make any kind of investigation and recommendation in the field of
human rights; that such recommendations do not constitute an intervention in the domestic affairs
of states; and that the competence of the Commission on Human Rights to study concrete cases and
to report on them was likewise not hampered by the operation of Article 2(7).
 Now it would seem that discussion on any human rights issue is not intervention.
Current GA Concerns

 http://www.un.org/ga/search/view_doc.asp?symbol
=A/65/251 - agenda of the 65th session
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Security Council

 According to Art. 24, the Council


has ‘primary responsibility for the
maintenance of international
peace and security’
 No reference to Human Rights in
provisions dealing with the SC
(Arts. 23 – 54)
SC and HR

 Creates binding obligations for MS


 5 permanent members – China, France, Russia,
United States, United Kingdom
 10 non-permanent members -
http://www.un.org/sc/members.asp
SC and HR

 The Security Council can override non-intervention principle -


Article 2(7) - ‘shall not prejudice the application of
enforcement measures under Chapter VII’.
 SC can apply enforcement measures in certain cases to deal
with certain issues.
 E.g. Security Council has:
 applied sanctions,
 authorized the use of force by Member States,
 sent peace-keepers with a mandate to use force,
 established ad hoc criminal tribunals for the former Yugoslavia and
Rwanda,
 authorized a referral of the situation in Darfur to the International
Criminal Court.
SC and HR in Libya

 The United Nations Security Council will meet today


to discuss the situation in Libya.
 The consultations are scheduled to start at 9 a.m. in
New York.
 Ibrahim Dabbashi, deputy ambassador and second
in command at the Libyan mission, broke with
Tripoli and called on the UN to establish a “no-fly
zone” around the country to prevent mercenaries
and arms from going to the government.
 In a 40-minute phone conversation with Libyan
leader Muammar Qaddafi, Ban “forcefully urged
him to stop violence against demonstrators.”
 The International Federation for Human Rights says
more than 300 people have been killed. Planes and
helicopters fired on protesters and witnesses
reported massacres in two neighbourhoods of
Tripoli, (Al Arabiya TV)
SC and HR in Darfur

 The mandate for the UN force in Darfur is:


 ‘To contribute towards international efforts to protect,
promote and monitor human rights in Darfur, as well as to
coordinate international efforts towards the protection of
civilians with particular attention to vulnerable groups
including internally displaced persons, returning refugees, and
women and children’.
 The enforcement measures include a decision to the effect that
the UN force is authorized to use all necessary means to protect
civilians under threat of physical violence and to prevent
attacks and threats against civilians.
Responsibility to Protect Principle

 Genocide in Rwanda:
 The UN did not make an enquiry into the attack.
 For several weeks, the international community did not
intervene
 In January 1994, Rwanda obtained a representative in
the Security Council. For the duration of the genocide,
the Rwandan representative, from the government
which was leading the genocide, attended the debates of
the security council.
 The Guardian on April 12, 1994 stated that when viewing
a woman "being hauled along the road by a young man
with a machete":
 "none of the troops moved. 'It's not our mandate,' said one,
leaning against his jeep as he watched the condemned
woman, the driving rain splashing at his blue United
Nations badge. The 3,000 foreign troops now in Rwanda
are no more than spectators to the savagery which aid
workers say has seen the massacre of 15,000 people"
SC and R2P

 2005 Summit (the High-Level Meeting of the 60th session of the UN


General Assembly) – Outcome Document
 138. Each individual State has the responsibility to protect its populations
from genocide, war crimes, ethnic cleansing and crimes against humanity.
This responsibility entails the prevention of such crimes, including
their incitement, through appropriate and necessary means. We
accept that responsibility and will act in accordance with it.
 139. The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and
other peaceful means, in accordance with Chapters VI and VIII of the
Charter, to help to protect populations from genocide, war crimes,
ethnic cleansing and crimes against humanity. In this context, we are
prepared to take collective action, in a timely and decisive manner, through
the Security Council, in accordance with the Charter, including Chapter VII,
on a case-by-case basis and in cooperation with relevant regional
organizations as appropriate, should peaceful means be inadequate and
national authorities are manifestly failing to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity.
SC and R2P

 Intention
 to commit to capacity-building and assistance to help states fulfil
their own responsibility to protect their own populations;
 to use, as the ‘international community’, the appropriate diplomatic
and humanitarian means to help protect populations from atrocities;
 to take collective action through the Security Council in accordance
with the UN Charter.
 As Schabas points out, even if the endorsement of responsibility to
protect does nothing to confirm the legitimacy of the use of force
without an authorization from the Security Council: ‘Nevertheless,
the pledge, in the Outcome Document, is an important reminder to
the Security Council of its responsibility to intervene in appropriate
cases, where minorities are at great risk and human dignity is in
jeopardy’.
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Secretary General and Human Rights

 Right of initiative to design peace-


keeping missions with a meaningful
human rights mandate,
 Right to publicize and take up
human rights information which is
produced by UN operations
 Right to support the High
Commissioner for Human Rights,
 Right to take up individual cases
under his ‘good offices’ mandate
Good Offices

 The UN Secretary-General has at his disposal a


confidential diplomatic mechanism — good offices —
by which he may raise urgent human rights problems
with Governments of Member states.
 Cases might include the release of a political prisoner
or the commutation of a death sentence.
 The Secretary-General’s efforts to intercede are
discreet and rarely, if ever, publicized, but he
continues, at the same time, to make public appeals
on behalf of respect for human rights in general.
Examples of the SG and Good Offices

 Annan appealed to African Governments to see human rights through the


victim’s eyes
 He developed the idea of the Global Compact which called on business to
respect human rights;
 He endorsed the inclusion of certain human rights principles as guidelines for
the UN’s political work.
 Towards the end of his mandate Secretary-General Annan issued reports on
‘The rule of law and transitional justice in conflict and post-conflict societies’.
 The report presented ‘considerations for negotiations, peace agreements and
Security Council mandates’ and suggested those concerned with drawing up
peace agreements and Security Council resolutions: give priority attention to
the restoration of and respect for the rule of law; apply international standards
for fairness, due process and human rights in the administration of justice;
reject any endorsement of amnesty for genocide, war crimes, or crimes against
humanity; and ensure that the United Nations does not establish or directly
participate in any tribunal for which capital punishment is included among
possible sanctions
 The detailed human rights policies are, however, usually designed and
implemented by the High Commissioner for Human Rights
SG and R2P

 The latest Secretary-General, Ban Ki-moon has inherited an


expectation that he should, not only make the responsibility to
protect his mission statement, but also that he should build a
capacity to fulfil this mission.
 He has proposed to reinforce the office of his Special Adviser
for the Prevention of Genocide and Mass Atrocities and
created a new post of Special Adviser on the Responsibility to
Protect.
 These posts are to work with the UN High Commissioner for
Human Rights and the UN treaty bodies and the special
procedures of the Human Rights Council.
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Economic and Social Council

 Fifty-four MS belong to ECOSOC


 elected by the GA to 3-yr terms
 Authorises a variety of human rights initiatives
 Art. 55. With a view to the creation of conditions of stability
and well-being which are necessary for peaceful and
friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples,
the United Nations shall promote…
c. Universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language or religion
 Article 62(2). [The Economic and Social Council] may
make recommendations for the purpose of promoting
respect for, and observance of, human rights and
fundamental freedoms for all.
 Art. 68. The Economic and Social Council shall set up
commissions in economic and social fields and for the
promotion of human rights, and such other commissions as
may be required for the performance of its functions.
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ICJ

 Principal Judicial Organ of the UN


 fifteen judges elected by the GA to a 9-
yr term, renewable once (and,
exceptionally, ad hoc judges)
 Advisory Opinions
 self-determination, nuclear weapons,
‘the wall’
 Contentious Cases, e.g. universal
jurisdiction (DRC/Belgium, Congo/France,
Liberia/Sierra Leone, Bosnia and
Herzegovina v. Serbia and Montenegro)
 See
http://www.universaljurisdiction.or
g/
Subsidiary organs

 OHCHR
 Special Representatives
 Special Courts
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UN High Commissioner for Human Rights

 The Office of the High Commission for Human


Rights (OHCHR) was established in 1993 by General
Assembly Resolution 48/141.
 To redress the historical imbalance in the UN’s
human rights programme so that development and
economic issues would be given as much attention as
civil and political rights.
 http://www.ohchr.org/EN/Pages/WelcomePage.asp
x
Role

 Resolution 48/141:
 No activity for the High Commissioner is specifically prohibited.
 Mostly dependent on the Commissioner’s own vision and the policies developed by the
OHCHR staff and the UN secretariat as a whole.
 Implementation on the ground through field presences - By the end of 2007 the High
Commissioner had more people working in the field than at the Headquarters in Geneva (484 in
the field versus 442 in Geneva).
 Amount to small representation offices to full-scale investigative and monitoring operations
 The country offices are selected according to ‘seriousness of the human rights situation, the
potential for OHCHR to positively influence the situation, OHCHR’s ability to operate under
a broad mandate, and the openness of the government and civil society to work with
OHCHR to close implementation gaps’.
• knowledge gap focused on working with governments on how to translate their human rights
obligations into effective laws, policies, and programmes;
• a capacity gap to be filled by OHCHR helping governments to identify their needs and building
capacities to address human rights problems through its technical cooperation programme;
• a commitment gap which occurs when a government is either determined to act in breach of its
international human rights obligations, or when a government acknowledges being in breach but fails
adopt the necessary measures;
• a security gap which calls for protection short of the use of force for individuals whose personal security
is threatened. Such protection could be offered, by example, through the deployment of human rights
officers.
 Responsibility for treaty bodies and HR Council
Subsidiary Organs of ECOSOC

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Commission Economic and Council
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Human Rights Council

 Replaced the Commission on Human Rights in 2006


 Commission made up of governmental representatives from 18 elected UN Member States – very political -
This membership of government representatives was expanded to 32 in 1967, and later to 53 members
 Involved in standard-setting – drafted Universal Declaration on Human Rights and the International
Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights
 No power to take any action in regard to any complaints concerning human rights
 1947 – 1967 was informed of complaints but failed to publicly discuss these violations or the situation in named
countries
 Resolution 1235 in 1967 - authorized the Commission “to make a thorough study of cases revealing consistent
patterns of human rights violations” – mostly Southern Africa, Israel, Vietnam
 Resolution 1503 in 1970 - the confidential ‘1503 Procedure’ to deal with communications relating a consistent
pattern of gross and reliably attested violations of human rights” - two options: to order a study as provided for
in Resolution 1235, or to conduct an investigation by an ad hoc committee working with the consent of the state
concerned. In reality the Commission often exercised other options: referring the situation to the Commission
for public debate, appointing an independent expert, or keeping the situation under review while more
information was obtained from the government. Governments often found it convenient to keep discussion of
the country off the public agenda by promising co-operation under the confidential procedure.
 Special Procedures: Country or Thematic Experts – crown jewel of the system
 Country mandates:
Problems with the Commission

 Perception - a bloc of states was shielding themselves and


their allies from being condemned by the 53-member
Commission.
 It was alleged that governments were seeking election to the
Commission in order to table procedural motions and swap votes to
insulate themselves from condemnation.
 Failure to act in certain situations.
 ‘condemning repression in Chechnya, or slavery and repression in
Sudan, or murder and violation of rights in Zimbabwe, or the
continued victimization of the Falun Gong in China’.
 over the resistance by the United States and the EU to allow the
Commission to consider properly the invasion and occupation of Iraq
and the human rights situation in Afghanistan.
 The criticism was that the UN body had become selective in its
examination - the foxes were guarding the chicken coup.
 .
Human Rights Council

 Sits throughout the year in short blocks (rather than one 6-week block)
 Special sessions can be called at the initiative of one member with the
support of one-third of the membership. In its first two years of
existence the Council held seven special sessions.
 General Assembly may (by a two-thirds majority) suspend membership
in the Council of a state that commits gross and systematic violations of
human rights.
 Members are elected for three-year terms and are not eligible for
immediate re-election after serving two consecutive terms.
 The Council now has a new procedure called ‘universal periodic review’
initiated in 2008, whereby the Council reviews every UN Member
State’s compliance with its human rights obligations and commitments.
The theory is that this procedure will avoid the Commission’s previous
selectivity by examining every state in the world with respect to the full
range of its human rights obligations.
Universal Periodic Review

 every UN Member State will be reviewed;


 all states can participate in the review;
 all rights (civil and political as well as economic and
social and cultural) are examined
Every State can be reviewed

 The review is universal and selectivity is by lot not by


vote.
 The cycle covering the whole world is to take four
years, with 48 states being examined each year.
 Each review is to last three hours in the Council’s
working group with an extra hour dedicated to the
outcome document in the plenary.
All States can participate

 The interactive dialogue takes place over three hours in a


working group of the Council between the state under review
and its ‘peers’, the members states of the Council and observer
states. The state under review has one hour which it can use as
it wishes, member states have three minutes each and
observer states two minutes each.
 produce a draft report
 The Economist concluded after the first round of reviews that
most states had prepared carefully and that ‘[s]erial offenders
may tell their critics to get lost, but that does not mean that
the process isn’t being taken seriously — by the accused or by
the accusers. The review could sway decisions on multilateral
aid, and embolden local activists
All rights examined

 The review process is based on: the Charter of the


United Nations, the Universal Declaration of Human
Rights, human rights instruments to which the state
is party, voluntary pledges and commitments made
by states, and applicable international humanitarian
law
Advisory Committee

 The Council has a new ‘think tank’ of 18 independent


experts comprising a Human Rights Council
Advisory Committee.
 elected by secret ballot from a list of individuals who,
again, may not hold positions which might give rise
to a conflict of interest.
 The new body, however, may not adopt resolutions
or decisions
 Can draft treaties or reports for discussion
Subsidiary Organs of ECOSOC

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Subsidiary Organ of GA-
International Law Commission

 Expert body established by GA charged with


‘progressive development and codification of
international law’
 Meets annually
 Touches on human rights issues, e.g. definition of
international crimes
Subsidiary Organs of ECOSOC

 Subcommission on the Promotion and Protection of Human


Rights
 Meets in annual sessions
 Reports to HRC
 Commission on Crime Prevention and Criminal Justice
 Est. 1991, 40 members
 Meets annually
 Considers issues eg capital punishment
 Commission on Status of Women
 Does no consider individual petitions
 45 experts – annual sessions
The Non-Conventional Complaints Procedure

 Successor to the 1503 procedure


 The aim remains a procedure for complaints which reveal ‘consistent
patterns of gross and reliably attested violations of all human rights and
all fundamental freedoms occurring in any part of the world and under
any circumstances’.
 They must provide a factual description of the alleged violations and the
relevant human rights norms.
 They must be submitted by a person or a group of persons claiming to
be the victims of violations of human rights or by anyone including
non-governmental organizations with knowledge or evidence of the
violations concerned.
 The communication cannot be exclusively based on reports
disseminated by mass media and cannot refer to a case already being
dealt with by a special procedure, a treaty body or other United Nations
or similar regional complaints procedure in the field of human rights.
 Domestic remedies must be exhausted.
Results of the Complaint

 Five options are foreseen for the Council (a) to discontinue


consideration of the situation; (b) to keep the situation under review
and request the state concerned to provide further information within a
reasonable period of time; (c) to keep the situation under review and
appoint an independent and highly qualified expert to monitor the
situation and report back to the Council; (d) to discontinue reviewing
the matter under the confidential complaint procedure in order to take
up the matter in public; (e) to recommend to OHCHR to provide
technical cooperation, capacity-building assistance or advisory services
to the state concerned.
 It is perhaps too early to say whether these new arrangements will lead
to a more satisfying set of inquiries and condemnations. Those who
worked on the new procedure would claim that it is at least more
transparent, has a tighter schedule, and offers more feedback to the
complainants.

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