1. TOPIC 3: UN Charter Based System of Human Rights Protection International Human Rights Law (LG523)

2. 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

3. Human Rights Protection Charter-based Non-conventional Applicable to all member states of the UN Treaty Based Conventional Applicable to State Parties

4. 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 http://www.un.org/en/documents/cha rter/index.shtml

5. 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…’

6. 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…’

7. 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?

8. UN Charter System General Assembly Economic and Social Council Security Council ICJ OHCHR Special Rep Sec Gen Special Courts International Law Commission Human Rights Council

9. 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?

10. 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.

11. Current GA Concerns http://www.un.org/ga/search/view_doc.asp?symbol =A/65/251 - agenda of the 65 th session http://www.un.org/ga/search/view_doc.asp?symbol =A/65/251

12. Charter System General Assembly Economic and Social Council Security Council ICJ OHCHR Special Rep Sec Gen Special Courts International Law Commission Human Rights Council

13. 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)

14. 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 http://www.un.org/sc/members.asp

15. 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.

16. 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)

17. 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.

18. 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"

19. 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.

20. 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’.

21. Charter System General Assembly Economic and Social Council Security Council ICJ OHCHR Sec Gen Special Courts International Law Commission Human Rights Council

22. 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

23. 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.

24. 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

25. 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.

26. Charter System General Assembly Economic and Social Council Security Council ICJ OHCHR Special Rep Sec Gen Special Courts International Law Commission Human Rights Council

27. 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.

28. Charter System General Assembly Economic and Social Council Security Council ICJ OHCHR Special Rep Sec Gen Special Courts International Law Commission Human Rights Council

29. 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/ http://www.universaljurisdiction.or g/

30. Subsidiary organs OHCHR Special Representatives Special Courts

31. Charter System General Assembly Economic and Social Council Security Council ICJ OHCHR Special Rep Sec Gen Special Courts International Law Commission Human Rights Council

32. 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 http://www.ohchr.org/EN/Pages/WelcomePage.asp x

33. 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

34. Subsidiary Organs of ECOSOC General Assembly Economic and Social Council Security Council ICJ OHCHR Special Rep Sec Gen Special Courts International Law Commission Human Rights Council

35. 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:

36. 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..

37. 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.

38. 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

39. 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.

40. 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

41. 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

42. 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

43. Subsidiary Organs of ECOSOC General Assembly Economic and Social Council Security Council ICJ OHCHR Special Rep Sec Gen Special Courts International Law Commission Human Rights Council

44. 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

45. 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

46. 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.

47. 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.