HUMR5140 Introduction to Human Rights Law
Autumn 2011
Lecture 4:
United Nations Human Rights
Systems: Charter bodies
Outline
1.
2.
3.
4.
5.
Human rights in the UN Charter
General features of the Charter Bodies
Security Council
General Assembly
Office of the High Commissioner on Human
Rights
6. Human Rights Council (and Commission)
HUMAN RIGHTS IN
THE UN CHARTER
UN Charter (1945)
• Preamble: Determined … to reaffirm faith in
fundamental human rights, in the dignity and
worth of the human person, in the equal
rights of men and women …
• Art. 1.3 on “purposes”: To achieve
international co-operation … in promoting
and encouraging respect for human rights
and for fundamental freedoms for all without
distinction as to race, sex, language, or
religion;
Chapter IX: International Economic and Social
Co-operation
• Art. 55: the United Nations shall promote …
universal respect for, and observance of,
human rights and fundamental freedoms for
all without distinction as to race, sex,
language, or religion.
• Art. 56: All Members pledge themselves to
take joint and separate action in co-operation
with the Organization for the achievement of
the purposes set forth in Article 55.
”Purposes and principles”
• The purposes and principles as a substantive
limitation of Charter bodies’ competence
– A similar limitation as jus cogens
• Fundamental human rights, or all human
rights contained in UN instruments?
• To the founders of the UN; was the
protection of human rights equally important
as the protection of peace and security?
Mainstreaming
• UN Secretary-General (1997): ”Renewing the
United Nations: A Programme for Reform”:
– “the issue of human rights has been designated as
cutting across each of the four substantive fields of the
Secretariat’s work programme”
– “a major task for the United Nations, therefore, is to
enhance its human rights programme and fully
integrate it into the broad range of the Organization’s
activities”
• The so-called ”mainstreaming” of human rights
in the UN: The human rights dimension must be
considered in all UN activities
GENERAL FEATURES OF THE
CHARTER BODIES
Who sits in the Charter bodies?
Where are the Charter bodies?
Human Rights Council
Geneva, Switzerland
General Assembly
New York, USA
Office of the High Comm for HR
Geneva, Switzerland
THE SECURITY COUNCIL
Competence
• Art. 24:
– Primary responsibility for the maintenance of international
peace and security
– Shall act in accordance with the Purposes and Principles of
the United Nations.
• Chapter VI: Pacific settlement of disputes
• Chapter VII: Art. 39:
– Shall determine the existence of any threat to the peace, etc
– Shall make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
• Human rights as a trigger of UNSC competence
Four periods?
•
•
•
•
1945-1989: the “dormant period”
1989-1995: the “awakening period”
1995-1998: the “active period”
1998-2011: the “assertive period”
• But references to human rights law remain a
rare occurrence
Related issue: The protection of
civilians in armed conflicts
• Background: The genocides of the 1990’s;
Rwanda, Bosnia
• 1999: The protection of civilians in armed
conflicts explicitly included as a regular topic
on the Security Council’s agenda
– Example: Resolution 1894 (2009)
• Protection of women, children
– Resolution 1325 (2000)
– Resolution 1998 (2011)
International peace operations
• Human rights functions of peacekeepers
ordinarily included in mandates
• Resolutions tend to focus on the duties of
other actors
Humanitarian intervention
• Can the UN Security Council authorise military
intervention in states on humanitarian grounds?
• Threat to international peace and security?
• The ”Responsibility to Protect” (R2P)
• Libya
– Resolution 1973 (2011): Authorizes Member States …
to take all necessary measures … to protect civilians
and civilian populated areas under threat of attack in
the Libyan Arab Jamahiriya
Article 103
• In the event of a conflict between the
obligations of the Members of the United
Nations under the present Charter and their
obligations under any other international
agreement, their obligations under the
present Charter shall prevail.
–
–
–
–
Treaties vs. customary law
Obligations vs. authorisation
”under the present Charter” includes resolutions
Prevail
GENERAL ASSEMBLY
The General Assembly’s human rights
role
• Article 10: ‘May discuss any questions or any
matters within the scope of the present Charter’.
• Article 13: ‘shall … make recommendations for
the purpose of … (b) … assisting in the
realization of human rights and fundamental
freedoms for all’.
• Adopt HR treaty texts before being open to State
accession.
• Non-binding Declarations
• Country-specific or thematic resolutions
Anything goes…
Hugo Chavez, President of Venezuala calls
U.S. President George W. Bush ”the devil”
(20 Sept 2006)
Nikita Khruschev, First Secretary of the USSR,
bangs shoe on table (12 Oct. 1960)
HIGH COMMISSIONER
Office of the High Commissioner on
Human Rights
• Established as a functional body of the
UNSG in 1993 (HC is considered an undersecretary)
• Acts as the secretariat to the Human Rights
Council and the treaty bodies.
• Independent mandate to promote human
rights
• Oversees the ‘mainstreaming’ of human
rights in the UN system
HUMAN RIGHTS COUNCIL
(AND COMMISSION)
Human Rights Council: Creation
• The 2005 World Summit (September 2005)
– Create a Human Rights Council, leaving all details to be
determined by the UN General Assembly with ”open,
transparent and inclusive negotiations.”
• General Assembly Resolution 60/251 (15 March 2006)
– Established the Human Rights Council (terminated the
CHR)
– Voting
• 170 votes in favor, 4 against (Israel, USA, Palau, and
Marshall Islands), 3 abstentions (Belarus, Iran, and
Venezuela)
• HRC Resolution 5/1 (18 June 2007) and General Assembly
Resolution 62/434 (22 Dec 2007): Institution-building
Human Rights Council: Structure
UNGA Res 60/251 (15 March 2006): (1) Decides to establish the Human Rights Council, based in
Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General
Assembly; the Assembly shall review the status of the Council within five years;
http://www.un.org/en/aboutun/structure
/pdfs/un_system_chart_colour_sm.pdf
The Basis of the Human Rights Council
UNGA Res. 60/251 (2006):
“Recognizing the work undertaken by the Commission on Human Rights and the need to
preserve and build on its achievements and to redress its shortcomings,”
Recognizing further that the promotion and protection of human rights should be based
on the principles of cooperation and genuine dialogue and aimed at strengthening the
capacity of Member States to comply with their human rights obligations for the benefit
of all human beings,
United Nations
Economic &
Social Council
Commission on
Human Rights
The Commission on
Human Rights
(1946-2006)
Sub-commission on
Human Rights
(Experts)
Special Procedure
Recommendations
(NGOs)
Resolutions
Resolutions
Studies
Working Groups
Special Procedures
(Appointed by Chair
or UNSG)
Complaints
Membership
Commission on Human Rights
•
•
Election of states with dubious HR records
• Sudan elected in 2001
• Libya elected to chair in 2003
• Sudan re-elected in 2004
High Level Panel Report, A More Secure World: Our Shared Responsibility
(A/59/2005), § 283 (also Kofi Annan’s report, In Large Freedom (A/59/2005), §
182):
• “In recent years States have sought membership of the Commission not to
strengthen human rights but to protect themselves against criticism or to
criticize others.”
• The question of membership is “the most difficult and sensitive issue
relating to the Commission.”
• Membership should become universal
• States should designate prominent and experienced human rights figures
as heads of their delegations
Membership
Human Rights Council
• Suggested universal membership
– Focus on cooperation (by all) not confrontation
(by ’judges’)
• Suggested membership limitation criteria
– ”…states against which the UNSC had adopted
measures under Chapter VII.” (A/60/PV.72, USA)
• Suggestion that membership alterations are
not the issue to be addressed by a HRC
Structural Comparison
Commission on Human Rights & the Human Rights Council
Commission on HR
Human Rights Council
Number of Members
53
47
Geographic Breakdown
Africa=15
Asia=12
Eastern Europe=5
Latin America=11
Western Europe/Other=10
Africa=13
Asia=13
Eastern Europe=6
Latin America=8
Western Europe/Other=7
Meetings
6 weeks (March/April)
As needed (10-week min.)
Election
ECOSOC
General Assembly
Re-election
No limit
2-term limit
Election Method
Majority of ECOSOC
Majority of UNGA
Election Campaign
None
Voluntary pledges and
commitments
Suspension
None
By 2/3 of UNGA
Complaints
Commission on Human Rights
•
•
•
•
•
No-power doctrine (1947): “no power to take any action in regard to any
complaints concerning human rights.”
• Lauterpacht: “an extraordinary abdication of the UN’s proper functions.”
ECOSOC Resolution 8 (1967)
• Added to the agenda “Human rights violations anywhere in the world.”
ECOSOC Resolution 1235 (1967)
• Annual public debate on gross violations in particular states
ECOSOC Resolution 1503 (1970)
• Confidential complaints procedure for “situations which appear to reveal a
consistent pattern of gross and reliably attested violation of human rights
requiring consideration […].”
UNGA Resolution 60/251 (15 March 2006)
• “Decides also that the [Human Rights] Council shall […] maintain a […]
complaint procedure;”
Complaints
Human Rights Council
•
•
•
•
•
Complaint
– Must address ”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”
– Cannot be anonymous
– Cannot have political motives or otherwise abusive of the UNC
– Must have factual basis (but not just mass media accounts)
– Victim can be individual or group (& can be brought by an NGO)
– Cannot have abusive language
– Must exhaust domestic remedies
Confidential procedure
Working Group on Communications (expert-based)
Working Group on Situations (state-based)
Human Rights Council (plenary)
Human Rights Council
Universal Periodic Review
•
Signicant potential
– Louise Arbour, Former HCHR: the UPR is a formidable response to the
weaknesses of the CHR. It could ”provide a vehicle for scrutiny of the
implementation of rights and norms beyond anything ever attempted by the
CHR.”
– Ban Ki-moon, UNSG: the UPR is ”strong and meaningful.” It is capable of
sending a ”clear message that all countries will have their human rights record
and performance examined at regular intervals.” It ‘has great potential to
promote and protect human rights in the darkest corners of the world’
– Joint NGO Statement: ”One of the most signficant innovations in the new HRC.”
•
•
Every UN member is reviewed once every four years
Information considered
– Info submitted by state being reviewed (can be a ’national report’)
– Info submitted by UN entities (special procedures, treaty bodies…)
– Info from others (NGOs and NHRIs)
•
Standards applied
– UN Charter, UDHR, HR instruments, HR voluntary pledges (humanitarian law)
Human Rights Council
Universal Periodic Review
• Conducted by the UPR Working Group (the HRC)
– Review is a discussion with the state
– All UN members can join discussion
– Discussion lasts 3 hours
• A ’troika’ of states acts as rapporteur and prepares ’outcome
report’
– All submitted recommendations included in the report (not just those
accepted)
– ’Attribution’ of recommendations
• UPR Working Group considers report for max 30 minutes
– State can either accept or reject conclusions in report
• Report is considered and adopted by the HRC in plenary for 60
min.
– State under review=20 min.; other states=20 min.; other stakeholders=20
min.
• Outcome report ”should be implemented”
– HRC has discretion to deal with non-implementation (e.g. in next UPR)
A ”mutual praise society”?
Discussion
• Read the Concluding Observations of the Human
Rights Committee to the Russian Federation, 24
November 2009
• Read the Concluding Observations of the Committee
on Economic, Social and Cultural Rights to the
Russian Federation, 1 June 2011
• Read the Report of the Working Group on the
Universal Periodic Review of the Russian
Federation, 5 October 2009
• Be prepared to discuss similarities and differences