The United Nations Human Rights System
While the last 60 years has witnessed a dramatic expansion in the tabulation of international human rights and in state acceptance of international human rights, the existence of rights and freedoms can only go so far. Few would question the importance of the UDHR1 in establishing a ‘common standard of achievement’ for all peoples and all nations. However, what use are human rights to you, me or any of the millions whose rights are violated, if there is no possibility of enforcing them? Part of the General Assembly Resolution by which the UDHR was adopted, requested further examination of the ‘problem of petitions’ when considering measures of implementation. A piecemeal approach evolved, lacking coherence – as the former Chief of the United Nations (UN) Human Rights Communications Branch comments wryly, ‘[c]ould it be that, while all governments are ready at all times to talk about human rights, most find it difficult to walk their talk?’.2
Six decades after the adoption of the UDHR, the laudable aspirations of the international community seem intangible. As some entries in this book have shown, many human rights remain unrealized. Undoubtedly, considerable advancements have been made in promoting and protecting human rights at the national, regional and international level. As Steiner and Crawford remarked at the dawn of this millennium, ‘[i]n human rights terms the twentieth century yielded a valuable legacy of internationally agreed standards and the creation of a set of institutional arrangements designed to monitor compliance with those standards. But the overriding challenge for the future is to develop the effectiveness of those monitoring systems’.3 The chapters in this part of the book consider the progress made towards implementing human rights and identify many of the challenges faced in the twenty-first century.
This chapter will focus on the UN Human Rights system, ‘a multitude of entities which vary greatly in their range, remit and composition. Established ad hoc in response to concrete needs rather than as part of any master plan, such institutions have experienced sustained, yet mostly unplanned and uncoordinated, growth and internal development’.4 Much of the UN’s system fits this description, although, in its defence, human rights as agreed international standards have proliferated to an extent hitherto unforeseeable. The systems discussed herewith are more involved with monitoring than enforcing, in accordance with the extent to which states allow limitations to their sovereignty.
Over six decades, what was once a novel concept, that states could be held accountable on the international stage for how they treat individuals, has been transformed into accepted, if sometimes controversial, policy and practice. Government leaders, previously considered to enjoy sovereign immunity, are now increasingly being indicted for atrocities committed during their term of office: Slobodan Milošević, former president of Yugoslavia, died during his trial before the International Criminal Tribunal for the Former Yugoslavia;5 Saddam Hussein was executed following conviction by the Iraqi High Tribunal;6 and Donald Rumsfeld was challenged over the detention of individuals in Guantánamo Bay.7 National laws have also been used to secure a form of justice for victims of international human rights law abuses.8 Beyond the scope of criminal prosecutions, continuing attempts are being made to monitor state compliance with human rights in an attempt to raise the threshold of the standard of rights and freedoms worldwide. How does the UN actively promote and protect human rights within its institutional framework?
Gudmundur Alfredsson suggested that early UN human rights work was characterized by ‘the “minimum flying speed” necessary for barely keeping the human rights plane aloft’,9 though now due to ‘[p]opular support, democracy trends and demands for good governance as prerequisites for development and economic well-being [such perceptions are changing with calls for] faster implementation and more effective monitoring’.10 Taking a more idealistic approach, Zdzisław Kędzia remarks that effective protection of human rights is indispensable to the UN goal of saving succeeding generations from the devastating scourge of war, and thus ‘human rights standards should not remain simply ‘law in books’ – just a beautiful promise’, and that an ‘impressive international human rights framework has developed’.11 International mechanisms should not be deemed a panacea for global ills – ‘they are not a substitute for effective national mechanisms. At best international mechanisms can only supplement effective domestic mechanisms’.12
Implementation of human rights under the auspices of the UN generally falls into two divisions: UN Charter-based bodies and treaty-based bodies. The former refers to those entities deriving their authority from the UN Charter and bodies founded thereunder, and the latter to those bodies established by the core human rights treaties concluded under the auspices of the UN. Obviously, the charter systems apply to all UN member states while the treaty bodies only have authority over those states which have accepted their jurisdiction through ratifying the relevant treaty (or, as appropriate, the relevant optional protocol).
The principal organs of the UN are the Security Council, the General Assembly, the International Court of Justice (ICJ), the Economic and Social Council (ECOSOC), and the (now disbanded) Trusteeship Council. None of these bodies are explicitly responsible for human rights monitoring. Indeed, their competency to consider human rights is mired in controversy – the UN Charter explicitly provides that ‘[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter’.13 The inclusion of ‘human rights’ in the Charter (e.g. Articles 1(3), 13(1), 55) thus was seen as tangential to the foremost issues surrounding the maintenance of peace and security, and therefore human rights were not something the UN organs would directly comment on. That changed in 1971 when the ICJ found South Africa in violation of its charter obligations to observe and respect human rights for all without discrimination in its South West Africa opinion: ‘To establish […] and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter’.14 Those ‘scattered, terse, even cryptic’15 clauses in the UN Charter were metamorphosing into legal commitments. While politics may preclude a comprehensive system of monitoring and enforcing human rights, there is ever more evidence of human rights emerging as a pillar of twenty-first-century international law.
2.1 Security Council
The Security Council has primary responsibility for ensuring the maintenance of international peace and security,16 though this includes international human rights given that so many conflicts escalate from or with human rights abuses.17 Therefore, the Security Council cannot avoid being enmeshed in human rights discussions. A more intractable problem is the power of veto enjoyed by the permanent members of the Security Council (France, the People’s Republic of China, the Russian Federation, the UK and the USA), the last-named a power which, regrettably, has so often paralysed the decision-making process, by producing ‘weak’ conciliatory compromises, rather than penetrating condemnations of human rights infringements. Nevertheless, the powers of the Security Council to authorize action (whether passive or active) offer an important ‘last resort’: the Security Council declared the (former) Constitution of South Africa null and void on account of racial discrimination18 – although the legal effect of such a resolution is debatable; it authorized the establishment of the Special Court for Sierra Leone;19 and has extended mandates for nationbuilding work in Iraq.20
There is also evidence that the Security Council acknowledges humanitarian concerns when approving enforcement actions,21 notably sanctions – contrast the broad raft of sanctions imposed on Iraq,22 with those imposed more recently on North Korea.23 Not all such measures are successful – the Oil for Food Programme24 in Iraq was introduced to mitigate the civilian impact of the sanctions, while action on Somalia has not resulted in any major improvements.25
As the foregoing demonstrates, the Security Council has tentatively embraced human rights, cultivating a broad approach to peace and security, and recognizing the significant role adherence to internationally agreed human rights standards plays in realizing the purposes of the UN. However, although politics presently precludes it from human rights enforcement, there are mounting indications of a ‘responsibility to protect’ justifying deployment of military force as a last resort to prevent crimes such as genocide.26
2.2 General Assembly
A radical breakthrough in promoting human rights was undoubtedly the General Assembly’s adoption of the UDHR in 1948, since supplemented by a raft of human rights resolutions and treaties.27 Monitoring and enforcing those rights is inevitably a different matter. As Tomuschat notes, ‘[p]olitical bodies have great difficulties in satisfying the requirement to act in a fair and objective manner, above all when they are called upon to assess the situation in a given country. On the other hand, their voice carries much more weight than assessments by expert bodies’.28 This paradox shapes much of the work of the General Assembly – greater political weight reinforces its declarations and resolutions yet precludes agreement on monitoring and enforcement. In general, human rights fall within the remit of the Third Committee of the General Assembly, but, inevitably, human rights issues penetrate deeper, and it is not uncommon for other committees and indeed the main assembly to discuss human rights issues.
In 1949, the General Assembly used the UDHR to condemn the USSR’s restrictions on Russian wives of foreign diplomats leaving the Soviet Union – Articles 13 and 16 of the UDHR were explicitly cited.29
Frequently, the General Assembly is not seized of human rights issues ab initio; rather, the matter being discussed will have stemmed from a report submitted by the Office of the High Commissioner for Human Rights (OHCHR), the Secretary-General, the treaty bodies, or any of the other agencies which report to the General Assembly. However, the agenda of the General Assembly suffers from overload, and many of its resolutions are passed without open debate, yet they impact on monitoring and enforcing of human rights.30 The power of the General Assembly to raise the political profile of human rights is unparalleled.31 It has made commendable use of its powers to ‘initiate studies and make recommendations’ on human rights.32
2.2.1 Office of the High Commissioner for Human Rights (OHCHR) The General Assembly also established the OHCHR.33 Under the leadership of the High Commissioner for Human Rights,34 the OHCHR has grown in importance, and it (and its website) is now the first port of call for those seeking information on human rights. The OHCHR provides vital secretariat support for the treaty bodies35 though it has been deemed to work within a ‘mandate between servant and shield’.36
2.3 Economic and Social Council (ECOSOC)
In terms of the UN Charter, ECOSOC can initiate studies and reports on ‘economic, social, cultural, education, health and related matters’ as well as making recommendation for ‘promoting respect for … human rights and fundamental freedoms’.37 Given the scope of the workload, ECOSOC lost little time in establishing a number of functional commissions to assist in carrying out its mandate. The first communications concerning human rights were circulated to ECOSOC in 1946,38 though responding to them was a task soon delegated to the Commission on Human Rights, which largely eclipsed ECOSOC in raising the profile of human rights. The Commission on Human Rights, politicized though it was, enjoyed the most transparently human rights-focused mandate.39 However, ECOSOC repeatedly undermined the work of the Commission (e.g. on individual communications) but generally endorsed its standard-setting initiatives.40
Gender-mainstreaming and promotion of the equal enjoyment of rights for men and women were singled out for particular attention, and they form the focal point of the work of the Commission on the Status of Women.41 This commission has made considerable progress in a number of fields for the advancement of women and girl children within the framework set by the World Conferences on Women.42 Until recently, the commission secretariat serviced the Committee on the Elimination of Discrimination Against Women (CEDAW), a practice which some commentators felt alienated women’s rights from mainstream human rights.43
2.3.1 ECOSOC Initiative A number of other fora established under the auspices of ECOSOC strengthen human rights promotion and protection. Erica-Irene A. Daes,44 former Chairperson of the UN Working Group on Indigenous Populations,45 has long led the call for a Permanent Forum on Indigenous Peoples. This call was answered in 2000.46 Given that the General Assembly rejected the Draft Declaration on the Rights of Indigenous Peoples, despite its adoption by the Human Rights Council in June 2006, this body provides a welcome voice for indigenous peoples within the UN system.
More recently, the Forum on Minority Rights was established,47 inter alia, to identify and analyse best practices and challenges for implementing the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities.48 The forum will complement the work of the independent expert on minority issues. Its first session (December 2008) focused on the perennial matter of realizing the right to education, while its second session (November 2009) focused on effective political participation.
2.4 Human Rights Council
Arguably, the principal body with responsibility for monitoring compliance with human rights is now the Human Rights Council49 (established in 2006), following the dissolution of the derided Commission on Human Rights. The principal criticisms of the commission included the charges that it was biased and secretive50 and that it had become excessively politicized, causing a ‘credibility deficit’,51 perhaps not so unsurprising for a body comprised of member states. Nevertheless, it did achieve considerable success, especially in standard-setting (not least in drafting the UDHR) and profiling human rights, by itself or through the work of its Sub-Commission on the Promotion and Protection of Human Rights (initially titled for discrimination and minorities).
The Human Rights Council is a subsidiary body of the UN General Assembly, to which it reports (status to be reviewed in 2011). Its 47 elected states are ‘responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without any distinction of any kind and in a fair and equal manner’.52 Most states seeking election to the council produce written commitments to human rights rhetoric, and the resultant membership reflects geographical, political and cultural diversity. It is thus not a guaranteed body of states persons bestowing or indeed offering a panoply of wisdom in the manner being evinced by, for example, ‘The Elders’.53 As a monitor of human rights, the impact of the Human Rights Council has yet to be determined.54 It can draw not only on the undoubted expertise of the OHCHR secretariat but also on the Human Rights Council Advisory Committee – 18 independent experts operating as a ‘think tank’ – which, in contrast to the former sub-committee, has little autonomous authority, reinforcing the inter-governmental nature of the Human Rights Council.
2.4.1 Universal Periodic Review A significant innovation is the Human Rights Council’s mandate to undertake a universal periodic review of the fulfilment by each state of its human rights obligations and commitments. States will be specifically reviewed while serving as members of the council, though all states will be reviewed in each 4-year cycle.55 This system is heralded as complementing the work of the treaty bodies (see below) and not ‘overly burdensome’ to those involved.56 Compliance with international human rights law and, more controversially, international humanitarian law will be examined. States will submit a report, the OHCHR will compile relevant reports of treaty bodies and special procedures, and additional credible and reliable information provided by ‘other relevant stakeholders’ as summarized by the OHCHR may be used when drafting the outcome document.
If we consider the initial outcomes (2008/9), the fact that a cross-section of countries can contribute by tabling questions and recommendations is clearly positive, while the litany of ‘predictable’ comments is perhaps less helpful. In the case of the UK, key topics were extrapolated from the UK report57 and from external sources with frank responses elucidated from the UK authorities.58 Although an exchange of rhetoric has some merit, the real test will be whether any of the recommendations are followed by the state concerned and whether the recommendations are followed up – in other words, whether the council’s work is complementary to, and integrated into, existing human rights systems which examine states periodically.59 The sheer range of rights and freedoms, policies and laws conceivably falling within the remit of the council may prove a major obstacle, as there is no benchmarking per se, and the examination cannot be thorough. Its very existence is an exciting development, as, in effect, all states are now having their policies and practices scrutinized against the web of rights and freedoms stemming from the UDHR. States can no longer avoid UN monitoring.
2.4.2 Special Mechanisms The Human Rights Council assumed responsibility for the country and thematic rapporteurs (the special mechanisms), which had previously operated under the auspices of the Commission on Human Rights. These are currently being reviewed and a number of changes are currently being implemented to render the system more transparent: general criteria have now been published for nominating, selecting and appointing mandate holders,60 and thematic mandates are now initially approved for three years, and country mandates for only one year. Hurst Hannum suggests that the mandates are ‘an important part of the overall scheme of human rights protection and promotion within the UN system’.61 Arguably, the country mandates have emerged from the original 1253 public process,62 through which ECOSOC charged the former commission with investigating violations of human rights at a time before the treaty bodies were established (indeed, before core treaties were drafted and/or ratified). Most mandate-holders receive individual petitions although their investigative powers are limited.
Perhaps inevitably, the fate of individual mandates is tied to the identity and enthusiasm of its holder. However, finance is always tricky – the special mechanisms are not operated by salaried employees of the UN, and this, although positive for ensuring independence, exacerbates existing UN funding problems. A further impediment is the need for consent. Visits can only be carried out with the prior approval of the state concerned. However, some states issue standing (open) invitations.63 In 2005, Manfred Nowak, special rapporteur on torture and two colleagues,64 after four years of negotiations, rejected outline permission to visit Guantánamo Bay detention facility in Cuba due to the strictures placed on the visit by the USA. When governments refuse to cooperate, other sources of information are drawn upon to provide as accurate as possible information on the human rights situation of the state concerned.65 Fact-finding has considerable value: the late Sergio Vieira de Mello commented that the special mechanisms are ‘a constructive, critical approach to imperfect human rights standards’.66
2.4.3 Special Sessions The council can also act swiftly in response to evolving situations. Many special sessions have been held in the short period since the council was inaugurated. For example, it authorized the dispatch of a fact-finding mission to investigate violations of international human rights law throughout the Occupied Palestinian Territory in January 2009.67 There has been some criticism that Israel and the Palestinian Occupied Territories have been singled out for criticism.68 While that region has been the subject of a number of special session resolutions, the US power of veto has rendered the Security Council virtually impotent; thus, the Human Rights Council opens an avenue of public discussion and scrutiny, albeit not with substantive enforcement powers. It is nevertheless true that many other areas are experiencing devastating human rights violations but eliciting no response from the council. Other special sessions have considered the human rights situation in Myanmar,69 Sudan (Darfur),70 Sri Lanka71 and the Democratic Republic of the Congo.72
2.4.4 Investigations The Human Rights Council also has competence to receive complaints addressing ‘consistent patterns of gross and reliably attested violations’73 of human rights and freedoms. This procedure draws heavily on its predecessor (the former commission’s 1235/1503/2000 procedures74), the original international human rights investigation system. Now the council follows in the footsteps of the commission which initially restricted itself to condemnatory comments on South African apartheid and the ongoing tensions and human rights violations in south-west Africa (Namibia) and Southern Rhodesia (Zimbabwe)75 before including Israel and the Occupied Territories in spreading the geographical net, thereby freeing the ‘entire human rights system … of its one-sided orientation towards South Africa … and Israel’.76 The 1503/2000 process has now been revamped, apparently to increase its efficiency as the Human Rights Council builds on it with expectations of greater objectivity and impartiality, though with the confidential nature of the former mechanism maintained. The threshold for admissibility remains high, but it must be remembered that this system operates alongside the special mechanisms and the treaty bodies.
Communications undergo an initial admissibility review by a working group of independent experts (from the Human Rights Council Advisory Committee), consideration by a working group on situations (drawn from council members), and review and/or action by the Human Rights Council. No information on the nature of the complaints or the discussions of the council will be made public (unless, of course the state consents).77 The entire process is required to take no more than two years78 with the complainant informed of progress, welcome improvements on the former system. The range of options open to the council reflects the status quo ante under the commission, including review of the situation and request for further information from the state, appointment of an independent expert to monitor and report on the situation, and recommendation to the OHCHR on technical cooperation or capacity-building assistance.79