HUMR5140 Introduction to Human Rights LawAutumn 2011

Lecture 4:

United Nations Human Rights Systems: Charter bodies

Outline

1. Human rights in the UN Charter2. General features of the Charter Bodies3. Security Council4. General Assembly5. Office of the High Commissioner on Human

Rights6. 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 CouncilGeneva, Switzerland

General AssemblyNew York, USA

Office of the High Comm for HRGeneva, 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 under-secretary)

• 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: StructureUNGA 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 CouncilUNGA 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,

The Commission on Human Rights

(1946-2006)

MembershipCommission 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

MembershipHuman 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 ComparisonCommission on Human Rights & the Human Rights Council

Commission on HR Human Rights Council

Number of Members 53 47

Geographic Breakdown Africa=15Asia=12Eastern Europe=5Latin America=11Western Europe/Other=10

Africa=13Asia=13Eastern Europe=6Latin America=8Western 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

ComplaintsCommission 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;”

ComplaintsHuman 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 CouncilUniversal 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 CouncilUniversal 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