An Introduction to the International Protection of Human Rights, A Textbook

Hanski and Suski

 

A Summary of Chapters 1 – 20 by Marcel Stoessel

Click here to order the book.

 

Preparation for the exam of International Human Rights Law and Practice.

More scripts for students of international relations at http://www.stoessel.ch/hei

 

 

Part I: Introduction

 

The Concept of HR and their Extra-Legal Justification

Piechowiak

 

HR = Rights which belong to any individual as a consequence of being human, independently of acts of law

HR = Complex of relations which is constituted of real relations between individuals who have the duty to act (or refrain from acting) towards each other, and the relations of every human being to certain goods (things, circumstances) securing his or her well-being. This complex of relations exists independently of acts of law, and independently of whether any individual apprehends it or not. The law of HR indicates these relations and aims at formulating legal norms ensuring appropriate goods.

Fundamental instruments: Universal Declaration of Human Rights (UDHR), 1948; International Covenants of Human Rights, 1966. Semi-legal instruments: Vienna Declaration and Programme of Action, 1993.

à Universality confirmed

 

Basic Properties of HR

 

Specific Conception of State

Central place given to the individual, his or her dignity prevails over the good of a group and over that of the State à dignity = basis of justice

Liberal State: democratic State governed by the rule of law, realizing an appropriate social policy.

M Not absolute will of the majority

 

Why do HR exist?

 

Why do relations of duty exist?

 

Positive HR law

Usually subjective rights, which legally embrace protected claims, liberties, powers, privileges

 

 

Human Dignity and Human Rights

Zajadlo

 

Philosophical (why?), sociological, political and normative (how?) planes of discussion.

How to translate the axiology proposed by the philosophy of law into the language of law, and how to move from these normative solutions to the world of values?

Universal character of HR based upon natural law. Not accepted by those who see supra-positive norms or those who reject Western individualistic, philosophy. Legal positivism. But also more sophisticated concepts.

 

Origins of Human Rights

 

 

Source

Natural Law

Universality

Religion

 

Supra-positive law

 

X

Natural Law, Natural Rights

Stoics, Aristotle, Grotius, Pufendorf, Locke

Humans as social and rational beings; law exists even without God

X

X

Legal positivism

Bergbohm

State legislator

 

 

Marxism

 

Hardly recognizable

-

X

Sociological school

 

Rights provided for goods in order to accomplish goals

-

-

 

Human Dignity in Instruments of HRL

1st type of dignity: “Inherent dignity of human being” (UDHR) vital element in definition of HR both soft and hard law. UNC necessity “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”.

2nd type of dignity: ‘Dignity’ independent of other international law instruments

ICCPR and ICESCR: “inherent dignity and ... equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world” (normative, binding). References in Art. 10(1) ICCPR (detention) and in Art. 13(1) ICESCR (goal of education)

Other instruments: Convention on the Elimination of All Forms of Discrimination against Women, 1979; Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, 1981; Convention on the Suppression and Punishment of the Crime of Apartheid, 1973.

M Statute Council of Europe, European Convention on Human Rights, European Social Charter: “inherent dignity” not used; but appears in Preamble and Art. 5 of African Charter on Human and Peoples’ Rights, 1981; also American Declaration of the Rights and Duties of Man, 1948; American Convention on Human Rights, 1969.

In humanitarian law: four Geneva Conventions, 1949 (common Art. 3(1)) & two Additional Protocols, 1977 (Art. 75 and 4, respectively) ban any infringement of human dignity

 

Normative Functions of Inherent Human Dignity?

Principle “inherent human dignity” both a principle (goal for the whole system) and a rule. (Specific directive for an interpretation)

 

 

Internationalisation of HR and Their Juridization

Drzweicki

 

Emergence of HR

Eide:

1)      Idealization

1a) [Conceptualisation: Examination of the theoretical and feasibility aspects of positivisation

2)      Positivisation (first domestic, then also gradually international law)

2a) [Normativization: Examining the quality of a legal rule]

2)      &  2a)  Juridization

3)      Realisation (transformation of whole social, economic and political order)

 

Resolution 41/120, GA, 1986, criteria and guidelines for standard-setting in HR:

a)      Consistent with existing IHRL

b)      Be of fundamental character and derive from inherent dignity

c)      Sufficiently precise to give identifiable and practicable rights and obligations

d)      Realistic and effective implementation machinery

e)      Attract broad international support

 

Abi-Saab: From ‘value into law’. Threshold will be passed when:

1)      Degree of achieved consensus about social values

2)      Degree of concreteness of the value

3)      Existence and effectiveness of the mechanism of realization and supervision

 

HR as a normative standard and legal relationship  = legal category

 

Vertical (classical): Public law relationship between human beings and public authorities

Horizontal (emerging): Relationship between private parties.

 

3 classical elements of HR:

1)      Active subject (beneficiary)

2)      Passive subject (duty-holder)

3)      Object (content)

 

Slightly different, Abi-Saab:

1)      Definite subject

2)      Precise and feasible object

3)      Should be opposed to a determined entity obliged to respect it (opposabilité)

 

Problems: Implementation component; ‘active’ and ‘passive’ distinction of subjects not up-to-date; active subjects ¹ beneficiaries (e.g. child, bearer of rights, but unable to claim it himself).

 

New:

1)      Right-holder (individual, group of individuals or NGO)

2)      Duty-holder (entity [normally states]; can be opposed to a Right-holder)

3)      Object (content of rights and duties of bi-polar parties)

4)      Implementation (set of measures aimed at realizing and supervising the realization of the rights concerned)

à Only right-holder and object are commonly found in formulations of HR

à Duty-bearer (together with right-holder and object) formulated regularly in the context of economic, social, and cultural rights

à Increasing number of treaties provide for supervision, reporting

à Self-executing rule: must be sufficiently clear, complete and precise for direct applicability by domestic authorities, including judicial enforcement

 

Classical distinction of State’s obligations:

 

New: Obligations of States to:

 

Principle of International Respect for HR

 

UNC, 1945: Movement towards lasting and stable internationalisation of HR. Framework for progressive development and codification of HR. Principle of Respect for HR not explicit, but implicit in many UNC Articles

Declaration on Principles Guiding Relations between Participating States, CSCE, 1975: Principle of ‘respect for human rights and fundamental freedoms’

Declaration also refers to Respect for HR as one of the principles embodied in the UNC; so does Vienna Convention on the Law of Treaties, 1969.

 

The Dimensions and Stages of Progressive Development and Codification of HR

 

Universal Dimension

 

1st stage (1945-48): Principle of international respect for HR recognized. Implementation: Art. 68 UNC Commission on HR. First instruments:

 

2nd stage (1949-66): Codifying the programme set out in the UDHR

 

3rd stage (1967 – 1989): Four trends:

1)      Entry into force of Covenants and Optional Protocol (1976); implementation measures

2)      Further treaties

·  Convention on the Suppression and Punishment of the Crime of Apartheid, 1973

·  Convention on the Elimination of All Forms of Discrimination against Women, 1979

·  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, 1984

·  Convention on the Rights of the Child, 1989

3)      Strengthen implementation, its bodies and mechanisms

4)      Quest for new areas and ways of protecting and promoting HR (background of peace, development, environment)

à Reflected at debates and conclusions of International Conference on Human Rights, Teheran, 1968

 

4th stage (1989 – present): Wind of change

·        World Conference on Human Rights, Vienna, 1993

·        Continued priority of implementation over further standard-setting

·        Preventive diplomacy and early-warning

 

Regional Dimension

Three mechanisms based on a binding treaty and with its own implementation mechanisms:

European system:

·        Statute of the Council of Europe, 1949
Members must be representative democracies, respecting the rule of law and ensuring fundamental HR and freedoms

·        Convention for the Protection of Human Rights and Fundamental Freedoms, 1950
Mainly civil and political rights; European Commission; Court of Human Rights

·        11 Subsequent Protocols to ECHR

·        European Social Charter, 1961
Economic, Social and Cultural Rights

American system:

·        Organization of American States (OAS)

·        American Convention on Human Rights, 1969
Civil and political rights and freedoms; Inter-American Commission; Court of Human Rights

African system:

·        Organization of African Unity (OAU)

·        African Charter on Human and Peoples’ Rights, 1981
Civil, political, socio-economic and third generation rights; African Commission on Human and Peoples’ Rights

·        Protocol for the establishment of a Court

 

 

The Emergence of International HRL

Separate branch of IPL: ILHR

General conventions; specific conventions; conventions on group protection; conventions concerning discrimination.

Some rules ius cogens[1] (peremptory rules: binding the whole international community, no derogation possible)

Also soft law: resolutions, declarations, basic principles, model treaties, etc. Can be declaratory or first step towards the transformation of their provisions into ‘hard law’

 

Conventional and extra-conventional trends of international HR evolution

1.      Internationalisation of HR as a Reflection of the Anthropocentrism of modern IL: Art. 2(7) vs. globalisation of crucial problems

2.      Coexistance and Parallel Development of Universalism and Regionalism in HR: smallest common denominator higher on regional level

3.      Evolution of Substantive Standards of HR towards Special Regimes: personalization of rules on human rights

4.      Evolution towards Strengthening Implementation Standards of HR: universal: reporting; regional: individual petitions and State complaints (except Africa). Resolutions of international organizations. Strengthening existing bodies and creating new organs.

5.      Recognition of the Indivisibility and Interdependence of All HR: Priorities, hierarchy à wrong dispute. I&I: Resolution 32/130, GA, 1977

6.      Linking Human Rights with Armed Conflicts: HR law extended application of non-derogatory rules; humanitarian law à also non-international conflicts

7.      Promotion of New HR: Privacy, etc. Third generation rights (peace, development, environment)

HRH

Categories and Beneficiaries of HR

 

Indivisibility

Three ‘generations:

1.      Civil and Political Rights: easier to enforce domestically; claims against own State; states have negative obligations. Simple relations between rights and duty-holders.

2.      Economic, Social and Cultural Rights: objective or ‘programmatic’ rights; positive State obligations

3.      Collective rights

à Simplistic characterization: also semi-horizontal and horizontal application of HR

 

HR instruments

Covenants divided into two for political reasons; e.g. ‘property’ lack in both conventions

Difficulties to classify

ECHR, ESC, 1961. ECHR, 1979: “There is no water-tight division separating that sphere from the field covered by the Convention”

Distinctions between negative and positive, individual and collective rights do not follow the three categories. But implementation mechanisms differ. Reporting systems vs. complaints.

 

Third Generation

‘Rights of Solidarity’, ‘collective rights’.

Not expressively recognized in ICESCR.

Right to development has come furthest: Declaration on the Right to Development, GA, 1986; Vienna Declaration and Programme of Action, 1993: ‘reaffirms right to development’.

 

Beneficiaries and addresses of HR

Right to self-determination

Minority rights

Cultural rights of minorities and indigenous peoples

HRC: Art. 27 ICCPR interpretation: although formulated in a negative way, requires positive measures not only of the State party itself, but also against the acts of other persons

HRO for World Bank, IMF, WTO?

Recent armed conflicts à responsibility for non-governmental actors. Turku Declaration of Minimum Humanitarian Standards, UN Commission on HR, 1990: must be respected by, and applied to all persons, groups and authorities, irrespective of their legal status and without any adverse discrimination

 


Part II: The United Nations: The Charter-Based and Treaty-Based Procedures

 

The UNC and the UDHR

Drzewicki

 

Broad and ambitious objectives: HR significant but ambivalent reflection. Move towards internationalisation of HR.

Preamble, paragraph 3

Reaffirm fundamental HR; dignity of human person; equal rights for men and women in nations large and small

Art. 1(3)

One of the substantive and long term objectives of the UN: Promote and encourage respect for HR and FF without distinction as to race, sex, language and religion

Art. 55

Art. 56

International economic and social cooperation: UN promotes universal respect and observance of HR and FF for all; cooperation with UN

Art. 76(c)

Trusteeship system: Encourage respect for HR and FF for all

Art. 13(1)(b)

Functions and Organs: General Assembly studies and recommendations, assisting in the realization of HR and FF for all

Art. 62(2)

Functions and Organs: ECOSOC recommendations à promote respect for, and observance of, HR and FF for all

Art 62(3)

Functions and Organs: ECOSOC prepare conventions for submission to the GA

Art. 68

Functions and Organs: ECOSOC commissions for the promotion of HR à UN Commission on Human Rights [composed of government representatives]

à Covenant of LoN silent on HR; large number and scope of provisions in UNC

 

Legal character and significance of UNC HR provisions

+

Mandatory wording Art. 13, 55, 56, 68 à permanent and dynamic attitude of UN

Legally binding

HR in broader background: prerequisites for ensuring international peace and security, friendly relations among nations, welfare of peoples, other socio-economic objectives. Interdependence lifted to the level of UN’s purposes

 

-

Lack of provisions on colonialism (only trusteeship)

Definition of HR and FF missing; no machinery to secure observance

Weak wording on purpose: ‘promoting’, ‘encouraging’, ‘assisting in the realization of’ instead of ‘protecting’, ‘maintaining’, ‘safeguarding’, ‘guaranteeing.

No power functions (recommendations, studies) to GA and ECOSOC

Art. 2(7) Prohibition of intervention by the UN in matters which are essentially within the domestic jurisdiction of States (construed in terms of force).

No explicit formulation principle of international respect for HR

 

à Framework conductive to the formation of UN global HR policy

 

UDHR: Adoption and Content

Agenda: International Bill of Human Rights

1947 Commission on HR

1948 Draft declaration à ECOSOC à General Assembly (& Third Committee) à adoption 10th of December

Resolution 217(III):

A. Text of declaration

B. Right of Petition

C. Fate of Minorities

D. Publicity

E. Preparation of a Draft Covenant on Human Rights and Draft Measures of Implementation

 

In favour: 48; against: 0; abstentions: 8 à USSR, Byelorussia, Ukraine, Czechoslovakia, Poland, Yugoslavia, Saudi Arabia, South Africa

 

Preamble

Inherent dignity & Inalienable nature of HR = philosophical basis

Common understanding important; common standard of achievement

Reference to pre-1945

Confirmation of customary right of people to resist oppressive governance

 

Art. 1

Free and equal in dignity and rights: Affirmation of the philosophical foundations of HR

Art. 2

Principle 1: equality and non-discrimination

Art. 28

Principle 2: Duties of states à Right of everyone to a social and international order in which the rights and freedoms of the Declaration can be fully realized

Art. 29

Principle 3: Duties of everyone to the community (Art. 29(1)) and permissible limitations in the exercise of HR and FF (Art. 29(2))

Art. 30

Principle 4: Prohibition of activities by any State, group or person aimed at the destruction of the rights and freedoms of the Declaration

Art. 3

Life, liberty and security of person

Art. 4

Slavery and servitude

Art. 5

Torture and cruel, inhuman or degrading treatment or punishment

Art. 9

Arbitrary arrest, detention or exile

Art. 10 – 11

Fair trial, equality before the law

Art. 12

Privacy

Art. 13

Freedom of movement and residency

Art. 14

Seek and enjoy in other countries asylum from persecution

Art. 15

Nationality

Art. 16

Gender discrimination as to marriage

Art. 17

Property

Art. 18

Freedom of thought, conscience and religion

Art. 19

Freedom of opinion and expression

Art. 20

Freedom of assembly and association

Art. 21

Representation in government

Art. 22

Social Security

Art. 23

Right to work

Art. 24

Rest and Leisure

Art. 25

Adequate standard of living

Art. 26

Right to education

Art. 27

Participation in cultural life

Art. 3 – 21 Civil and Political Rights: Extensive

Art. 22 – 27 Economic, Social and Cultural Rights: Rather modest

à First internationally adopted definition (missing in UNC) of HR

à Great normative maturity

 

Legal and Political Status and Significance of the Declaration

Has the UDHR become legally binding?

YES: customary law; absence of opposition to the principles

NO: customary law needs a general, uniform and consistent practice followed by the emergence of an opinio iuris; world-wide violations of HR before and after 1948

 

·        Influence of or inclusion in domestic legal systems

·        Reference for domestic courts

·        Resort to the content by non-governmental actors

·        Quasi-authentic interpretation of HR provisions in UNC

·        Basis for further international law-making in HR field

·        Created opportunities for developing international procedures and mechanisms for implementation

 

 

The International Covenant on Civil and Political Rights (ICCPR)

Nowak

 

Ratified by 144 States

47 accepted inter-State complaints

95 accepted individual complaints

36 accepted not to re-introduce the death penalty

 

Impact of HRC on domestic HR problems (legally non-binding)

 

History

Initially only one HR treaty envisaged à Cold War à West succeeded in obtaining two separate Covenants with different monitoring bodies and procedures à Commission on HR submitted draft in 1954

16 December 1966: 106 States adopt both Covenants unanimously; First Optional Protocol (possibility of individual complaints) adopted with 66 to 2 votes (38 abstentions)

15 December 1989 Second Optional Protocol (abolition of the death penalty) adopted 59 to 26 votes (48 abstentions)

1976 Covenants and first protocol entry into force

1979 inter-State complaints procedure entry into force

1991 Second protocol entry into force

1997 HRC: denunciation of Covenants or withdrawal against international law (no provision), but possible for First Optional Protocol

 

Substantive Provisions ICCPR (Italics = no derogation allowed)

Preamble

Inherent dignity; reference to UNC and UDHR

Art. 1

Self-determination (colonial context, more political than economic) [only collective right; case law: not subject to monitoring by means of individual complaint]

Art. 2(1)

Prohibition of any discrimination in the enjoyment of the rights

Each State Party undertakes to respect [negative] and to ensure [positive] to all individuals within its territory and subject to its jurisdiction the rights

Progressive realization of economic, social, and cultural rights

Art. 2(2)

Obligation to adopt necessary legislative and other measures

Art. 2(3)

Obligation to provide effective remedy to victims of HRV

Art. 2, 3, 23

No gender discrimination as to rights of Covenant, obligation of states to ensure equal right of men and women; marriage.

Art. 4

Temporary derogation in public emergencies

Art. 6

Right to life

Death penalty only for most serious crimes; not against juveniles; not carried out on pregnant women

Art. 7

Torture or cruel, inhuman or degrading treatment or punishment

Art. 8

Slavery or servitude

Art. 9

Liberty and security of person

Arbitrary arrest and detention

Art. 10

Human treatment of detained people

Art. 11

No imprisonment for debt

Art. 12

Freedom of movement

Art. 13

Arbitrary expulsion

Art. 14

Criminal procedure: Equality before the courts; Presumption of innocence; Prompt trial

Art. 15

No punishment without crime (national or international) at the time of offence

General principles of law recognized by the community of nations

Art. 16

Recognition of legal personality

Art. 17

Privacy

Art. 18

Freedom of thought, conscience, religion and belief

Art. 19

Freedom of opinion, expression and information

Art. 20

Prohibition of propaganda for war and advocacy of national, racial or religious hatred

Art. 21

Freedom of assembly

Art. 22

Freedom of association; including freedom to join trade unions

Art. 23 – 24

Marriage, family, child.

Art. 25

Representation and participation [for citizens]

Art. 26

Equality before the law

Art. 27

Rights of ethnic, religious or linguistic minorities

Art. 28 – 45

Human Rights Committee

à Obligation to respect [negative], to ensure/protect [positive]; procedural guarantees; legal institutions

à Horizontal (e.g. slavery) and vertical ‘articles’ (e.g. right to protection before the law)

à No right to property, nationality, and asylum

à Formulation in rather general terms

 

First optional protocol

Art. 1, 2

Only individuals may address communications to HRC

Art. 2, 3, 5

Admissibility requirements

Art. 4

Admitted communications must be brought to the attention of the government concerned

Art. 5(1)

Confidentiality.

Art. 5(2)

No simultaneous submission to different complaints procedures

Art. 5(4)

‘Final views’ of HRC

Art. 6

Obligation for HRC to submit annual reports to ECOSOC

 

Second Optional Protocol

Amendment Art. 6 ICCPR.

 

Derogation and limitation clauses

Only few rights = absolute, and even then some room for interpretation

Most of the Covenant subject to reservations, derogations, restrictions and limitations in conformity with the relevant provisions à fair balance between the aims of universalism and cultural relativism.

Formal way of allowing restrictions and limitations: ‘arbitrary’, limitation clauses. Decisive criterion: proportionality

Reservation: Half of State parties have submitted 150+ reservations. Art. 19(c) VC: only permissible to the extent that = compatible with the object and purpose of the Covenant.

1994 HRC highly controversial general comment: Reservations contrary to CIL and to some other provisions not permissible. M Provisions of VC inappropriate to address the problem of reservations in HRT (principle of inter-State reciprocity has no place). HRC considers itself as the only body entrusted by the Covenant to judge reservations. If reservation deemed incompatible, HRC will not apply the reservation.

Public emergency: Art. 4 allows measures derogating from obligations. Conditions and restrictions; publicly declared emergency, information to SG of UN; proportionality; consistent with other obligations under international law; not based on discrimination. Art. 4(2): No derogations from right to life, prohibition of torture, slavery, servitude, detention for debt and retroactive criminal laws, rights of recognition of legal personality and freedom of thought, conscience, religion and belief.

When derogation was abused, the HRC considered the derogation measures as a violation of the Covenant

 

Human Rights Committee (HRC)

¹ UN organ

= Treaty monitoring body, established by Art. 28 ICCPR.

Task: Monitoring the compliance of State Parties with their obligations under the treaty. Examination of State reports and individual complaints (no inter-State complaints have been submitted so far)

Similar to Racial Discrimination Committee, Committee on the Rights of the Child

18 independent experts elected for four years, represent all geopolitical regions and major legal systems of the world

HRC started working in 1977. Own rules of procedure, normally decision by consensus.

 

Reporting procedure

Art. 40. Submission and examination of State reports only mandatory monitoring procedure. Including about problems of implementation (Art. 40(2)).

Useful purposes:

·        Forces governments to reflect on implementation in domestic legal systems

·        Examination in public sessions

·        Principle of constructive dialogue

·        Country-specific comments

·        General comments Art. 40(4): views of HRC on substantive and procedural provisions. Consensus à important and authoritative source of interpretation.
Most controversial, 1984: against nuclear weapons.

 

Inter-State Complaints Procedure

Art. 41/42

Optional à not very effective

HRC has to seek a friendly solution à ad hoc Conciliation commission only with the consent of the states

à Pure mediation or conciliation procedure

à Designed to respond to gross and systematic HRV

 

Individual Complaints Procedure

First optional protocol: Jurisdiction of HRC in cases of alleged individual HRV

Admission stage: First exhaust all available domestic remedies; no simultaneous submission to different complaints procedures; case law: allegations must be sufficiently substantiated

Examination stage: Confidential/written; governments may respond to allegations; HRC gives ‘final views’; HRC may ask governments for remedy, e.g. release from prison.

1990 HRC appointed a Special Rapporteur for the Follow-Up of Views

 

Conclusions

à More than 2/3 of UN members = parties to the ICCPR

à Excellent framework for a truly universal acceptance of first generation HR

à Lack of legally binding effects; HRC can’t force governments to cooperate in a proper manner and to comply with its recommendations resulting from the examination of State reports or with its final views relating to individual complaints

à Most effective HR complaints system at the universal level thanks to its quasi-judicial practise

à No clear separation between judicial and political functions like under ECHR

 

 

The International Covenant on Economic, Social and Cultural Rights (ICESCR)

Craven

 

141 State Parties (January 1999)

 

“The enjoyment of civil and political freedoms and economic, social and cultural rights are interconnected and interdependent”, GA, 1952.

 

Differences ICCPR – ICESCR:

 

ICCPR

ICESCR

Obligation clauses (Art 2)

Undertakes to respect and to ensure rights…

Undertakes to take steps, to the maximum of its available resources, with a view to achieving progressively…..

Implementation systems

Immediate

Progressive

Supervision

HRC (independent experts)

ECOSOC (political organ of the UN)

Reporting

Yes

Yes

Complaints

State and Individual

N/a

Common Articles

Preambles, Art. 1 (self-determination), 3 (non-discrimination between men and women), 5 (general savings clause), 22/8 (join and form trade unions), 23/10 (protection of the family)

 

Content of the ICESCR (Articles in Italics = substantially same norm like in ICCPR)

Preamble

Framework for interpretation

Inherent Dignity

Recalls UDHR; places ICESCR in the framework of UNC

Interdependence and indivisibility

Art. 1

Self-determination (colonial context; economic more than political)

Art. 2(1)

Take steps, individually and through international assistance and co-operation, ... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights

But: Steps must be immediate and to the maximum of available resources; obligation = seeking assistance and international cooperation. [ECOSOC: a number of ‘resource-free’ rights are capable of immediate implementation.]

Art. 2(2)

Prohibition of discrimination of any kind to race, colour, sex, language, religion, political or other opinion, national social origin, property, birth or other status.

Art. 2(3)

Permission for developing countries [undefined] to determine extent to which they would guarantee the economic rights [undefined] to non-nationals (colonial context)

Art. 3

Equal rights of men and women

Art. 4

Limitations: compatible with nature of rights; solely for promoting the general welfare in a democratic society

Art. 5

General savings clause

Art. 6

Right to work

Art. 7

Fair conditions of employment

Art. 8

Join and form trade unions

Art. 8(1)(d) Right to strike

Art. 9

Social security

Art. 10

Protection of the family

Art. 11

Adequate standard of living, including the right to food, clothing, and housing

Art. 12

Health

Art. 13

Education

Art. 15

Culture

Art. 16 & 17

Obligation to submit reports (measures, progress) to SG of UN à ECOSOC à maybe Commission on HR (study, recommendation, information) à maybe invite UN specialized agencies

ECOSOC general reports and recommendations to GA

à Only universal HRI, which deals extensively with the whole range of economic, social and cultural rights

à A number of rights also in other instruments: International Convention on the Rights of the Child, Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women; regional instruments

à Very general wording

à No identification of groups that may need special protection, e.g. women, children, aliens, migrant workers, and elderly; but: non-discrimination guaranteed

à Possibilities of inconsistencies: Form and join trade unions = can be derogated under ICCPR, not under ICESCR

à No remedies foreseen

 

Supervision system

Only reporting, no individual complaints

Supervision by ECOSOC, a UN political organ

à Not clearly identified which organ has central responsibility for supervision

à No body can interpret ICESCR in a way that is binding for State Parties

 

Sessional Working Group

ECOSOC not able to fulfil its tasks under Covenant à Sessional Working Group, hampered by political differences, only superficial evaluation of State reports.

 

UN Committee on Economic, Social, and Cultural Rights

Established by ECOSOC in 1985 à UN organ

Composition: 18 independent experts, equitable geographic distribution

Process: Report every five years à requests for further information à plenary session with State representative present à further questions à concluding observations: principal subjects of concern, suggestions, and recommendations.

Evaluation:

States often don’t cooperate, can’t be forced to; information only from State reports

Committee officially invited all concerned bodies and individuals to submit relevant and appropriate documentation à UN specialized agencies, NGOs

à Increasingly quasi-judicial function

à Increasingly attempt to prevent future violations

à Has requested to accept investigative missions

 

No individual complaints:

 

Draft Optional Protocol

1996 Draft Optional Protocol adopted to allow for the receipt of individual or group complaints; written communications; receivability, admissibility; domestic remedies; reaction of State; adoption of a ‘set of views’, interim measures of protection

à Ambitious but likely to be more restrictive if adopted

 

Conclusion

à Marginalized and ignored as a HRT; prevalent conception that economic, social and cultural rights = programmatic, progressive realization

à Vastly more limited supervision system

à Committee on Economic, Social and Cultural Rights, from 1985: Much better reporting system. View that certain rights are non-resource dependent or have non-resource dependent dimension and may be capable of judicial scrutiny

 

 

Special Human Rights Treaties

Flinterman and Henderson

 

Convention on the Elimination of All Forms of Racial Discrimination, 1965

à 153 ratifications (January 1999); 28 States accept individual complaints procedure

 

Historical background:

World emerging from the Holocaust; struggle of Third World countries against colonialism; apartheid in South Africa. UN becomes an important forum.

 

Art. 1

Definition of racial discrimination

Distinction citizens – non-citizens allowed

Temporary affirmative action allowed

Art. 2

Duties of State Parties to condemn racial discrimination and to implement policies

Art. 3

Apartheid

Art. 4

Duties to declare punishable by law certain offences concerning racism and racial discrimination & prohibit racist organizations

Art. 5

Take steps to prohibit and eliminate racial discrimination & guarantee certain rights (list provided) to everyone; equality before the law

Art. 6

Effective protection; remedies

Art. 7

Duty to adopt immediate and effective policy measures (teaching, education, culture, information)

Art. 8 – 10

Committee on the Elimination of Racial Discrimination

Art. 11, 12 & 13

State complaints

Art. 14

Optional individual complaints procedure

 

Three supervisory mechanisms:

à 1st time committee of experts

à 1st time individual complaints

 

Convention on the Elimination of All Forms of Discrimination Against Women, 1979

Historical background: Women especially affected by poverty, lack of health care, education, food. Trend towards non-discrimination since WWII in various instruments, but rarely regarding socio-economic rights

 

Preamble

Change in traditional role of men as well as the role of women in society required

Art. 1

Definition of discrimination: 1) Effect and purpose; 2) not limited to State; 3) and other fields

Art. 2

Condemnation; obligation to pursue policy of eliminating discrimination against women without delay

Art. 3

Full development and advancement of women; equally benefit from HR

Art. 4

Affirmative action and maternity protection ¹ discrimination

Art. 6

Traffic in women, exploitation of prostitution

Art. 7

Eliminate discrimination in the political and public life

Art. 8

Representation

Art. 10

Education

Art. 11

Employment, e.g. equal pay for equal work

Art. 12

Health care

Art- 14

Rural women

Art. 15

Equality before the law

Art. 16

Marriage and family relations

Art. 17 – 22

Committee on the Elimination of Discrimination against Women [23 independent women’s rights experts]

Art. 24

All necessary measures at the national level aimed at achieving the full realization of the rights

Art. 28(2)

Reservation incompatible with object and purpose not permitted

 

Committee on the elimination of Discrimination against Women: 23 women’s rights experts

Reporting procedure: States must detail measures, difficulties. Annual review of reports; reports to GA through ECOSOC

Reservations: HRI with the most reservations, even no Art. 28 prohibits reservations that are not compatible with the object and the purpose of the Convention. E.g. reservations of Bangladesh, Egypt, Libya (Sharia Law > Convention). Sweden & others objected to the reservation. Problem of objectivity: States themselves judge if an objection is contrary to object and purpose through their objections or acquiescence.

Vienna Declaration and Programme of Action, 1993: Recommendation that Women Committee continues to examine reservations; urges States to withdraw incompatible reservations

Draft Optional Protocol: 1995 approved by Women Committee, 1999 revised draft approved by Commission on the Status of Women, 1999 to go before GA. Individual and group complaints. Admission stage à (interim measures) à report à statement of State Party à (conduct inquiries where allegations are grave and systematic) à findings

 

à Interrelation civil-political and economic-social rights

à Also non-governmental sectors and activities included

à Underdeveloped supervisory mechanisms

à Insufficient resources

à Reservations about many sustentative provisions

 

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

à 113 State Parties (January 1999), 42/40 accepted complaints procedures

 

Historical background: Universal and regional instruments recognize prohibition of torture or degrading treatment or punishment (ius cogens norm), but couldn’t stop HRV. AI report in early 70’s à before GA.

 

Art. 1

Definition of torture, all forms of severe physical or mental pain

M: 1) Must be intentionally inflicted for specific purposes, like obtaining information; 2) No horizontal effect; 3) Not included: Pain or suffering arising from lawful sanctions

Art. 2

Obligation to take effective measures to prevent acts of torture

No derogation possible whatsoever; order from superior irrelevant

Art. 3

Obligation not to expel, return or extradite a person to another State where there are substantial grounds for believing that he would be subjected to torture

Art. 4

Obligation to punish acts of torture or attempts or complicity

Art. 5 – 7

Details of universal jurisdiction: obligation to persecute or extradite

Art. 8

Extradition to other State Parties

Art. 9

Assistance to other State Parties in connection with criminal proceedings

Art. 14

Obligation to ensure compensation of victims in domestic legal systems

Art. 15

Obligation not to invoke a statement established as a result of torture in any proceedings

Art. 16

Prevent also acts of cruel, inhuman or degrading treatment or punishment not necessarily on purpose; lawful sanctions not excluded

Extension of Art. 10, 11, 12, 13 to other forms of cruel, inhuman or degrading treatment or punishment.

Art. 17 – 24

Committee against Torture

Art. 20

Optional: Inquiry procedure by Torture Committee (information from individuals or NGOs)

Art. 21

Optional State complaints procedure

Art. 22

Optional individual complaints procedure

Art. 28

Opting out clause for Art. 20.

 

Reporting obligation for States Parties (measures to implement obligations) à transmitted to all States Parties à Torture Committee: may make comments to a State Party

Other supervision mechanisms are optional: Inquiry, State complaints, individual complaints

 

Conclusion

à Number of ratifications not satisfactory

à Optional supervision procedures widely rejected

à Reporting procedure serious shortcomings (seldom precise and objective)

 

 

Extra-Conventional Standard-Setting and Implementation in the Field of Human Rights

Flinterman

 

GA = ‘legislative HR organ’ of the UN – adopted an impressive body of treaties and declarations on HR, including UDHR, ICCPR, ICESCR, Racial Discrimination Convention,  CEDAW, Torture Convention.

Names can vary: standard minimum rules, basic principles, body of principles, code of conduct, guidelines.

 

Non-conventional instruments

 

 

Non-binding instruments (resolutions, declarations, bodies of principles, codes of conduct) may be followed by binding treaties or conventions (Racial Discrimination, Torture)

 

Legal value as interpretation and elaboration of the general HR provisions in the HRC depend on:

·        Number of states that have voted in favour

·        Geographical distribution

 

E.g. Declaration on the Right of Peoples to Peace, GA, 1984 / Declaration on the Right to Development, GA, 1986 à both opposed by most Western States

 

Covers a wide area.

Also relevant:

Proclamation of Teheran, 1968

Vienna Declaration and Programme of Action, 1993

à Great importance in the further development of international HRN.

 

Charter-based procedures

The Public 1235 Procedure:

ECOSOC Resolution 1235, 1967: Commission and Sub-commission authorized to debate question of the violation of HR and FF

Information from: States; members of the Sub-Commission, NGOs with consultative status at the UN

Course of action: a) special rapporteur; b) thematic rapporteur or working group (torture, judicial executions, arbitrary detentions, freedom of expression, xenophobia and racism, violence against women. Annual reports to commission.

The Confidential 1503 Procedure:

ECOSOC Resolution 1503, 1970: confidential process designed to deal with a consistent pattern of gross and reliably attested violations of HR and FF. Complaints from: individuals, groups and organizations. Working group sub-commission à sub-commission à working group commission à commission  (private annual sessions) à ECOSOC

Course of action: a) keep the matter under review; b) further study; c) special rapporteur; d) transfer to public 1235 procedure. May also make recommendations to ECOSOC

à Gradually overshadowed by 1235 Procedure

 

Conclusion

à Non-binding instruments adopted at GA by a consensus à important elements in the creation of CIL. Internationalisation of a subject matter à restriction of domestic jurisdiction of states.

à Since late 60’s emphasis on further refinement of supervisory mechanisms

à Reserved domain in HR area decreasing


Part III Other United Nations Action in the Field of Human Rights

 

Human Rights in the Wider UN System

Gallagher

 

In many parts of the UN à HR too troublesome and too politically costly

Overview of recent developments

 

The UN Secretariat

Vienna Declaration, 1993 à UN agencies, bodies and institutions must engage themselves in the formulation, promotion and implementation of HR

Programme for Reform, 1997 à Mainstream HR throughout the UN system, enhance HR programme and fully integrate it into the broad range of activities. 1) Adoption of a right-based approach; 2) Programmes or projects addressing specific HR issues; 3) Reorienting existing programmes; 4) Broader policy development and coordination should take HR into account

 

HR in the UN Development Activities

Early acknowledgements of the link between development cooperation and HR, true attempts for integration only in the 90’s.

Rights-based approach = Situations must be analysed and responded to not just in terms of needs or development objectives, but also in terms of a State’s legal obligations to protect and realize the HR of individuals [e.g. right to education] à justice = entitlement ¹ charity

UNDP: Shift from economic development (failing to confront States with their own responsibilities and legal obligations) to sustainable human development (including the recognition of the fundamental link between development cooperation and HR)

UNICEF: One of the first agencies to identify HRT (CEDAW, Children’s Convention) as the policy framework for all its activities & one of the first to develop a rights-based approach

United Nations Population Fund (UNFPA): Sex education; maternal mortality; adolescent reproductive health practices; HIV/AIDS. Increasingly reference to CEDAW. Same applies to United Nations Development Fund for Women (UNIFEM).

Common country assessment à United Nations Development Assistance Framework (UNDAF): translate global commitments into country-level action plans; provisional guidelines reference to ‘international conferences, GA resolutions, global summits and Conventions’ [Where are HRT?]

 

HR in the UN Peace and Security Work

HR have not played a significant role in UN peace and security work. In the past few years, HR have become a critical element in the dispute settlement process partly due to the nature of the conflicts. UN beginning to acknowledge that threats to security include poverty, discrimination and inequality in access to resources.

UN increasingly trying to prevent conflicts. Not just external threats, also human security: poverty, disasters, ethnic tension and large-scale HRV. So far, political will and resources to expand preventive capacities not abound.

Link conflict prevention – development cooperation: Institution building, good governance, poverty reduction = preventive peace-building.

Conflict economic sanctions – HR: Recognized by SG and ECOSOC.

 

HR in the UN Humanitarian Action

Link HR – Humanitarian Action: Assistance and protection by UN can’t be undertaken in a legal or moral vacuum à IHR and humanitarian law principles

Organization and Coordination of Humanitarian Action: Office for the Coordination of Humanitarian Affairs (OCHA), 1997 with the functions of 1) Policy development [based on UNC, HR and IHL]; 2) Humanitarian advocacy; 3) Coordination of humanitarian action.

Executive Committee on Humanitarian Affairs: brings together all bodies in the UN concerned with humanitarian policy; includes High Commissioner for HR.

UN High Commissioner for Refugees (UNHCR): Long recognized HR as key part of mission. Strategy 1) Prevention [promotion and adoption of international standards for the treatment of refugees]; 2) Emergency response; 3) Solutions.

UNICEF: Health, nutrition and education to children and women; fight against child soldiers. Impartial delivery as a basic right (rights-based approach).

Role of Protection in Humanitarian Action: Identifying HRV or threats à efforts to ensure that obligations to protect and respect HR are fulfilled

 

HR in Specialized Agencies

FAO, ILO, UNESCO, WHO, WTO, (IMF, WB), …

WTO has refused to admit a HR dimension of international trade

 

Conclusion

HR à change the UN’s thinking and work

Programme of Reform à still no concrete results

Rights-based approach must be developed

 

 

The Office of the United Nations High Commissioner for Human Rights

Schmidt

 

Proposals already 40 years ago. Part II, §18 of Vienna Declaration, 1993 à recommendation to GA to begin consideration for the question of creating a HCHR à GA special working group à GA Resolution 48/141, December 1993

Mandate:

à Some right of initiative

à Greatly depends on personality, leadership, vision and courage

 

Preventive Mechanisms in the Field of HR

Since 1st HC, market shift from monitoring to preventive mechanisms

HR field presence: Invented in 90’s; can be effective early-warning system; exact intersection with peace keeping & electoral assistance unclear. Memorandum of understanding with host country difficult to negotiate. Financing not yet on y regular basis.

Technical cooperation: UNDP and others need to coordinate with OHC

Human rights education: Police, military, prison officials, private actors, UN staff. Develop national plans of action. (Need be encouraged and assisted)

 

Implementation Mechanisms

Vienna Declaration stresses implementation, both Commission and treaty-based

HC for rationalization and increased effectiveness & maximal use of UN system to promote universal ratification of principal HR conventions.

Commission: special procedures, rapporteurs, experts and working groups broadened and strengthened; new thematic mandates (women, children in armed conflicts, right to education, etc.)

Treaty-based bodies: progress in streamlining, simplifying and extending procedures

UNHCHR delicate position: must support the strengthening of existing mechanisms and can’t oppose the creation of new ones by Commission; only limited support to treaty bodies.

Financing of treaty-body and special procedures activities through regular UN budget does not suffice if financial obligations by Member states are not met. Solution: plans of action with voluntary contributions. Example: HC’s plan of action for the Committee on the Rights of the Child for its discussions with State Parties to the Convention on the Rights of the Child.

Increasing interaction OHCHR & UNDP

Strengthening of implementation mechanisms for particularly vulnerable groups: HC urged field offices to include components specifically to the rights of women and children.

à Need to review all mechanisms to

 

Right to Development and Economic, Social and Cultural Rights

First World Conference on Human Rights, Teheran, 1968

Declaration on the Right to Development, 1986

Second World Conference on Human Rights, Vienna, 1993: Universal consensus that right to development is part of fundamental HR and universal

Right to Development high on the OHCHR’s list of priorities; content and scope of Right to Development will have to be spelled out further; should be more horizontal cooperation

HR & sustainable human development = interdependent & mutually reinforcing

 

Mainstreaming and coordination of UN HR activities

Part of mandate.

1993-97: UNICEF, UNESCO, UNDP, UNHCR important developments

Programme for Reform, 1997, proposes OHCHR’s concrete action:

à If implemented à effective integration of HR into all UN activities

Proposed memoranda of understanding, letters of intent, with all UN programmes and agencies

 

The Road Ahead

Broad mandate = chance to take radical initiatives and strengthen UN’s role

Third Committee of the GA supports the development of the UN’s HR programme; the 5th Committee refuses more funds

Challenge 1: secure adequate financial and manpower resources for conflict prevention; while consolidating and strengthening the mechanisms of the Commission on HR and the treaty bodies

Challenge 2: Development of cooperation with programme partners & implementation of Programme for Reform

 

 

The Standard-Setting and Supervisory System of the International Labour Organization

Samson and Schindler

 

Founded in 1919 to advance social justice [interpreted to incorporate HR] and better living conditions throughout the world. In 1946 it became the first specialized agency associated with the United Nations. It is a tripartite organization: workers' and employers' representatives take part in its work with equal status to that of governments. The number of ILO Member States is 174 as of February 2000. No direct obligations in Constitution; framework for elaborating conventions and recommendations

Relations between employer and workers; labour standards and international trade

 

Existing ILO Standards

1919 – 1998: 181 Conventions and 189 recommendations on almost all labour-related subjects

Widely ratified:

Recommendation no binding force, but if they supplement a Convention, their provisions can be drawn upon by States and supervisory bodies as indicative of the type of measures needed

 

Tripartite Approach

International Labour Conference: 2 government, 1 worker, 1 employer representative; governing body same principle

 

ILO Declarations

1919 – 1998: four Declarations

Declaration = expression of the official policy of the organization and of the consensus of the social partners. More than a recommendation, less than a binding instrument.

 

Adoption of ILO standards

Standard-setting = on-going process; International Labour Conferences; comprehensive body of standards covering most areas of social concern

Fixed procedure for adopting standards: Governing Body, suggestions by the Office, sets agenda for ILC, well in advance; Conference decides with 2:1:1 ratio à recommendation or Convention

Disagreements: Type of instrument to be used; level at which to set international standards; degree of flexibility to be allowed in their implementation

Effect: Communicated to all Member states; must be brought before legislator within 18 months [public]

Obligations in Case of Ratification: Make effective in law and practise (Art. 19); submit Annual Reports (Art. 22)

 

Supervision of Compliance with ratified ILO Conventions

Periodic reports on the application of ratified conventions: Detailed and general reports

Committee of Experts on the Application of Conventions and Recommendations = committee of 20 independent experts charged, amongst other things, with the examination of reports by governments on the measures taken to implement ratified ILO Conventions. Can issue observations or direct requests.

Conference Committee on the Application of Standards = tripartite committee of the International Labour Conference constituted each year and charged with examination of the Report of the Committee of Experts on the Application of Conventions and Recommendations and, amongst other things, with the discussion of cases involving individual country's application of ratified ILO Conventions.

Tripartite Conference committee discusses it

Legal force: Interpretation = ICJ (Art. 37); persuasive moral but no legal value

Investigation into allegations that a State has failed to secure the effective observance of a Convention

Representation = allegation made under article 24 of the ILO Constitution to the ILO that a Member State is not implementing the terms of a Convention which it has ratified. A representation must be made by an industrial organization of employers or workers. Examined by Governing Body.

Complaints = what an allegation made under article 26 of the ILO Constitution is called. Such an allegation, made by another State or any delegate to the ILO Conference, asserts that an ILO Member State is not applying fully within its territory the terms of a convention that it has ratified. Governing Body can set up Inquiry Commission. Three months afterwards, government can either accept the recommendations or refer it to the ICJ. If government fails to comply, Governing Body can recommend to the Conference measures (Art. 33).

Special Freedom of Association Complaints Procedure: against any State, even when it has not ratified the relevant conventions. Fact-finding and Conciliation Commission on Freedom of Association = tripartite committee of the ILO's Governing Body responsible for the examination of complaints alleging violation of the principles of freedom of association. Only with consent of State.

Consequences: In many cases, political and judicial consequences in individual countries.

 

General Evaluation

à Persistence of serious difficulties in securing the full observance of ILO conventions

à Individual and collective improvements in many cases

à Ratification of ILO Conventions due to will to make them effective?

à Not legally binding determinations

à ILO standards » international common law available as a source of guidance

 

 

UNESCO and Human Rights

Coomans

 

Specialized UN agency. Contribute to peace and security by promoting collaboration among nations through education, science, and culture in order to further universal respect for justice, the rule of law, HR and FF without discrimination.

 

Mandate

Broad and general mandate outlined in Art I(1) of the Constitution.

Legal basis found in Constitution, conventions and recommendations, resolutions of the General Conference and decisions of the Executive board.

Promotion: Advancing the mutual knowledge and understanding of peoples; impetus to popular education and the spread of culture, and maintaining, increasing and diffusing knowledge and information. Programmes, studies, conferences, publications.

Protection: Adoption of international standards and the establishment of supervisory mechanisms and procedures relating to HR, which fall within UNESCO’s field of competence. Art IV(4) Constitution: Conventions and recommendations. Art I(3): Prohibited from intervening in matters, which are essentially within the domestic jurisdiction of a State. But competence in HR now not exclusively domestic or international.

 

Standard-Setting Activities of UNESCO

General Conference of UNESCO à recommendations, conventions

Right to Education:

Right to share in scientific advancement, culture and Communication:

Right to participate freely in cultural life:

Right to information, including freedom of opinion and expression:

Racial Discrimination:

Safeguarding HR for future generations:

-          

Supervisory mechanisms and procedures within UNESCO

Periodic reporting by Members:

Communication procedure to be used by victims of alleged HRV: Art. VIII periodic reports on action taken. General Conference examines reports. Committee on Conventions and Recommendations (CCR). Composed by government’s representatives. No dialogue.

Complaints procedure: Individual and collective complaints made possible in 1978. Cases = individual, specific [private meetings]; questions = massive, systematic or flagrant HRV or accumulation of individual cases according to a consistent pattern [public meetings]. Main concern: dialogue with gvmt. Executive Board will discuss Committee’s confidential report. Fields: Education, science, culture, information, freedom of thought, conscience and religion.

Looking for an amicable solution throughout the complaints procedure.

à All Member states subject to this mechanism, whether or not they have ratified the relevant HRT or not

à Wide access to individuals, groups and NGOs

à Not really public pressure

à Not a priority within UNESCO; little known procedure; secrecy, isolation and obscurity

 

 

The Position of the World Bank and The International Monetary Fund in the Fields of Human Rights

Skogly

 

World Bank

IMF:

à Two most prominent sources of financial assistance or catalyst of financial assistance to LDC’s

 

HR an issue for two reasons

 

The Current Approach of the World Bank

Projects & adjustment lending à increased hardship for vulnerable groups (= HRV). Not recognize the importance of HR promotion as such (no rights-based approach). Never a HR evaluation of any programme.

Defence of Bank: Promote economic, social and cultural rights » economic, social and cultural development

 

Official policy directives and Inspection Panels

Operational Directives on Involuntary Resettlement

Operational Directive on Indigenous Peoples: ensure that the development process fosters full respect for … dignity, HR, and cultural uniqueness. Sometimes special project components necessary.

Operational Directives on Poverty Reduction

Inspection Panel of the Executive Directors: Can receive a request for inspection from an affected party in the territory of the borrower à rights or interests have been or are likely to be affected by an action or an omission of the Bank in regards to its operational policies and procedures? Not a judicial body. But: also individual/NGO, also at an early stage.

Blurred distinction between broadly defined environmental protection and HR.

Example: Arun III Hydroelectric Project, Nepal, 1994, complaint by local NGO: no consultation with those affected by project, no adequate compensation for involuntarily resettled people, no benefits for indigenous communities [all written down in some Directive]. Investigation Panel recommends to Executive Directors an investigation of the environmental, indigenous, and involuntary resettlement issues. Bank decides to withdraw IDA’s offer to fund the project.

Board of Executive Directors may still go ahead and ignore recommendation à not independent mechanism

 

The Current IMF Approach

HR = completely outside its activities

Critics à increase attention to impact on vulnerable groups; no real evidence of change in IMF’s attitudes

 

Legal Arguments

No rationale for possible human rights concerns in the Articles of Agreements. But:

à Minimum claim: they have to respect HR in their operations

 

Making the Bank and the Fund Accountable for HR

Conceptual ways:

Procedural changes:

 

 

 

United Nations HR field operations

Gallagher

 

Until 80’s: Second or third-hand information received by Headquarters for reports

80’s: First ‘special’, ‘extra-conventional’ investigatory mechanisms to monitor and report HRV

1993: Special Rapporteur for the Former Yugoslavia

1994: First HR field operation under OHCHR, Rwanda

90’s: Central part of the wider HRS à increase governmental accountability by documenting and exposing violations; new way of constructing peace agreements; peace-keeping operations sometimes intertwined with HR operations

Country-specific or thematic procedures; most created by Commission on HR. Authorized to receive information from a variety of sources, including NGOs & make recommendations regarding prevention or amelioration

 

HR Components of Peace-Keeping and Political Missions

First wave of HR field presences in El Salvador, Haiti, Cambodia and Guatemala.

 

El Salvador

UN Observer Mission in El Salvador (ONUSAL), 1991, HR division

Oversee peace agreement that includes the guarantee of HR

Verification and investigation; Receive complaints from anyone

Institution-building

à Marked decrease in severity and level of HRV

 

Cambodia

UN Transitional Authority in Cambodia (UNTAC), 1992; monitors, civilian police part of UNTAC

Prevent recurrence of gross violations; contribute to the establishment of a neutral political environment

Education programme, general monitoring

Post-UNTAC: Commission establishes a Special Representative of the SG on HR in Cambodia

Large OHCHR office established à important protection role, both independently and also as supporter of the Special Representative of the SG on HR in Cambodia

 

Haiti

1993 UN-OAS International Civilian Mission, gradual transition of power back to Aristide

Main task: protect and promote HR

Complaints & investigation without cooperation of police or army

Obstruction by de facto government

à No sustainable achievements; but HR situation would have been worse

 

Guatemala

MINUGUA, 1994

Oversee peace process; verify HR Agreement

Complaints

 

HR and Other ‘Peace-Keeping’ Operations and Political Missions

HR = integral to the effective discharge of basic peace-keeping and peace-building responsibilities; sometimes explicit, sometimes footnote

United Nations Operation in Mozambique (ONUMOZ), 1992; UNOSOM II: small role

Angola, SC allows greatly expended HR component with 55 officers

 

Field Operations and Field Offices of the UNHCHR

1993, Commission asks for field presence to support Special Rapporteur

Since then offices in Sarajevo, Zagreb, Belgrade & Skopje.

1994, Commission establishes Special Rapporteur to investigate HR situation in Rwanda; supplemented by 147 HR monitors; investigation; monitoring; return of refugees, technical cooperation; 1995 Special Investigation Unit à hands over information to ICTR

à Political difficulties

à Vacillation of the international community

à Poor management by OHCHR

1994 small field office in Burundi; Mission of Observation & limited technical assistance

1996 OHCHR office in Colombia following pressure; monitoring, institution-building, training, …

1994 small field office in Democratic Republic of the Congo; monitoring; training

à Each mission double mandate: monitoring and technical assistance

 

Technical Cooperation

1996 Gaza institution-building, rule of law

1997 El Salvador strengthening democracy & rule of law

1997 Mongolia

1998 South Africa & regional office in Pretoria for Southern Africa/Indian Ocean

1998 Indonesia

 

Key functions of UN HR field operations

 

Monitoring HR

Acquisition of independent information on the HR situation; underlying goal: promote change by reporting facts

Important due to these reasons:

How to monitor: information collection; information analysis; information dissemination (usually to UN’s political organs SC and/or GA).

Need for high standards of credibility; ascertain responsibility; & principle ‘do no harm’

 

Technical Assistance for HR

Empower States to deal with HR issues:

TA of HR field operations mostly go host governments, increasingly to civil society

 

Conclusion

à Frontier of effective HR protection and promotion today

à UN must remain committed to integrating HR into all aspects of its work

à More effective structure of field work

à Quality of staff must be assured

à Highly political and arbitrary nature of current decision-making processes à Development of detailed, objective and transparent criteria to guide the UN in the process of deciding when and how HR field presence is to be established


Part IV European Systems

 

Promotion and Protection of HR within European Arrangements

Merrills

 

Council of Europe

Peaceful association of democratic States committed to the rule of law and their common spiritual and moral traditions. Aims (Art. 1 of Statute) include ‘the maintainance and further realization of HR and FF’.

Instruments (universal approval)

Parliamentary Assembly (Legal Affairs Committee) usually proposes new measures to CoM.

Committee of Ministers (& committees of governmental experts) decides.

Convention for the Protection of HR and FF (ECHR), 1950

European Social Charter, 1961

Convention for the Prevention of Torture, 1987

Some conventions allow accession for non-members; EU has become a party to certain conventions.

CoE participates at sessions of the UN Commission on HR and its Sub-Commission on Prevention of Discrimination and Protection of Minorities

 

ECHR

List of core civil and political rights

Initial supervision: European Commission, Court of HR, Committee of Ministers

Protocol 11 supervision: European Court of HR, Committee of Ministers

 

ESC

Economic, social and cultural rights

Complex supervision mechanism

Impact of ESC less than ECHR

 

European Convention for the Prevention of Torture, 1987 (1989)

Committee may visit any place within jurisdiction; taking into account NGO information; no judicial function.

Confidential report can be published at the request of a party or my a 2/3 majority decision in the Committee

à Can prevent torture

 

Framework Convention for the Protection of National Minorities, 1995

Bring treatment of minorities into CoE jurisdiction Statement of objectives, no details for implementation. Periodic reports evaluated by CoM.

 

HR and the OSCE

Final Act of Helsinki, 1975

Sets out essentially political undertakings that are not judicially binding.

Membership of OSCE much wider than CoE

 

EU and HR

Treaty of Maastricht

Jurisprudence of European Court of Justice: Reference to principles of ECHR

à Supra-national organization with strong institutional support

 

Conclusion

à A lot is going on in the HR area

à HR in Europe = historical patchwork rather than a single all-embracing system

 

 

The Council of Europe (I): The European Convention on Human Rights

Merrills

 

Most fully developed and observed HR instrument; first step in collective enforcement of UDHR

To join the ECHR, a State needs to be a Member of the CoE. To become a Member of CoE à need to show commitment to the values of a free society & necessary institutional support for democracy

 

Protocol 9: Individuals can take complaints to the Court in certain circumstances

Protocol 11: Reconstruction of the whole system of control

 

The 25 Rights and Freedoms guaranteed

Art. 2

Life

Art. 3

Torture and inhuman or degrading treatment or punishment

Art. 4

Slavery and servitude

Art. 5

Liberty and security of person

Art. 6

Fair trial

Art. 7

Retroactivity of criminal law

Art. 8

Private and family life, home and correspondence

Art. 9

Freedom of thought, conscience and religion

Art. 10

Freedom of expression

Art. 11

Freedom of assembly and association, including join and form trade unions

Art. 12

Marriage

Art. 13

Effective remedy in case of violation of rights

Art. 14

Prohibition against discrimination

Art. 15

Emergency situations threatening the life of the nation

Art. 17

General savings clause

Art. 18

Restrictions may not be applied for any purpose other than those for which they have been prescribed

Art. 34

Petitions from individuals, NGOs or group of individuals (victims)

Art. 35

Admissibility

Art. 46

Binding force; execution of judgements supervised by CoM

Art. 57

Reservations: General r. not permitted

P1 Art. 1

Property

P2 Art. 2

Right to education & parents

P2 Art. 3

Right to free elections

P4 Art. 1

Imprisonment for debt

P4 Art. 2

Liberty of movement

P4 Art. 3

Freedom from exile and the right to enter the country of which one is a national

P4 Art. 4

Collective expulsion of aliens

P6 Art. 1 & 2

Prohibition of the death penalty in time of peace

P7 Art. 1

Right of an alien not to be expelled from a State without due process of law

P7 Art. 2

Appeal in Criminal cases

P7 Art. 3

Compensation for a miscarriage of justice

P7 Art. 4

Immunity from being prosecuted twice for the same offence

P7 Art. 5

Equality of rights and responsibilities of spouses as regards matters of private law & in relations with their children

 

Supervision before Protocol 11

Commission: inter-State complaints; optional [but accepted by all Parties] right of individual petition (Art. 25), also NGOs or groups may bring complaints

Conditions for admission (Art. 26):

Additional conditions for individual cases (Art. 27):

Afterwards: Asserting the facts (Art. 28) à trying to achieve a friendly settlement à if no solution detailed report à CoM

Committee of Ministers: If a case not referred to Court, CoM can decide whether a violation has occurred (Art. 32) à quasi-judicial function.

Afterwards: Prescribe a period for correction of violation à review

Final weapon: Can suspend or expel from membership any State that has seriously violated respect for the rule of law and enjoyment of HR (Art. 8 Statute CoE)

European Court of HR: General or ad hoc declaration necessary

Originally only Commission or a State, with P9 also individuals under certain conditions

 

Supervision since Protocol 11, 1994 (1998)

Commission and European Court of HR à Court able to perform all functions of the original organs

Chamber of seven

Grand Chamber of 17

Individual complaints now mandatory

Committee of Ministers supervises the execution of judgements but is not dealing with cases not referred to the Court anymore

 

Some essential case law

Lawless case, 1961: Detention without trial justified in emergency

Greek case, 1967: No true emergency; withdrawal of Greece from CoE until 1974

Golder case, 1975: Access to a Court of law; seeing a lawyer while in detention

Luedicke, Belkacem and Koç: Free interpretation for the defendant in a criminal case

Marckx case, 1979: Inheritance rights for children born out of wedlock

Campbell and Cosans, 1982: Schools can provide objective sex education in Denmark

Soering cse, 1989: Prolonged detention on ‘death row’ may involve inhuman treatment; extradition from GB into USA would be a violation of obligation under Art. 3.

 

Conclusion

à A System of international supervision is necessary and desirable for all States

à Convention = most effective international system for protecting HR

 

 

The Council of Europe (II): The European Social Charter

Harris

 

22 Contracting Parties, revised ESC entry into force in 1999

States have to accept at least half of the provisions and five out of seven Articles considered as essential

 

Substantive Guarantees in Revised ESC (Italics = essential articles)

Art. 1

Right to work

As high and stable level of employment [public and private] as possible

Protect effectively right of worker to earn his living in an occupation freely entered upon [¹ forced labour]

Art. 2

Just conditions of work [paid holidays]

Art. 3

Safe and healthy working environment

Art. 4

Fair remuneration

Art. 5

Right to organize [trade unions]

Only armed forces and, to some extent, police exempted

Individual right of workers; collective right of unions

Negative and positive obligation

Art. 6

Right to bargain collectively

Promote joint consultation ¹ real right

Promote, where necessary and appropriate, machinery for voluntary negotiations

Promote appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes

Right of workers and employers to collective action, including strike

Art. 7

Right of children and young persons to protection

Art. 8

Right of employed women to protection [maternity leave]

Art. 9 & 10

Vocational guidance and vocational training

Art. 11

Right of protection of health

Art. 12

Right to social security

Endeavour to raise progressively … to a higher level

Art. 13

Right to social and medical assistance

Creates a subjective right

Art. 14

Right to benefit from social welfare services

Art. 15

Vocational training, rehabilitation and social resettlement of physically or mentally disabled persons

Art. 16

Rights of the family

Promote the economic, legal and social protection of family life [social and family benefits, fiscal arrangements, provision of family housing, etc.]

Art. 17

Right children and young persons to social and economic protection

Art. 18

Right to engage in gainful occupation in the territory of other Contracting Parties

Art. 19

Rights of migrant workers

MW and their families who have jobs or are looking for them have the right to protection and assistance; some extent of preferential treatment

Art. 20

Gender discrimination

Art. 23

Elderly persons

Art. 24

Termination of employment

Art. 26

Dignity at work

Art. 27

Equal opportunities and treatment for workers with family responsibilities

Art. 30

Right of protection against poverty and social exclusion

Art. 31

Housing

 

Omissions in original ESC

 

System of supervision

Amending Protocol, 1991

 

National Reports

Complicated reporting arrangements

 

Committee of Independent Experts

Similar kind of role like ILO Committee of experts

Discover what the law and practice of the Parties is à ‘legal’ findings

Dialogue CIE – States at the request of either one of them

 

Governmental Committee

GC supposed to check out reports à sometimes other decisions than CIE

Amending protocol:  allocates to the CIE the competence to interpret and apply the ESC. GC advises the CoM as to the cases in which a recommendation should be made to a Party

 

Parliamentary Assembly

May present its views on CIE’s conclusions to CoM

 

Committee of Ministers

Supposed to make recommendations to individual States in the light of the CIE’s conclusions and the GC’s report. Didn’t do it.

 

 

The OSCE and Human Rights

Amor and Estebanez

 

Comprehensive approach to security; cooperative approach to security (Inter-State dialogue)

Decision by consensus

Final Act of Helsinki, 1975 (has been called ‘politically binding)

  1. Security in Europe
  2. Cooperation in economic, scientific, technological and environmental field
  3. Cooperation in humanitarian and other fields (human dimension)

Human dimension’ in third basket includes HR and FF, but also 1) human contacts; 2) information; 3) cooperation and exchanges in the field of culture; 4) cooperation and exchanges in the field of education. Development: Pluralist democracy, rule of law.

HD inside participating States increasingly object of legitimate concern to the other OSCE states

 

Standard-Setting

Main focus: individuals, but no specific list of rights

National minorities; Self-determination of peoples; Right of religious communities; Non-discrimination

Second Conference on the Human Dimension, 1990: national minorities à appropriate local or autonomous administrations / protection against manifestations of intolerance, including violence

Charter of Paris for a New Europe, 1990: Culture, migrant workers

Conference on the Human Dimension, 1991: Commitments in the field of HD = matters of direct and legitimate concern to all PS, not internal affairs; possibility to request that the ODIHR inquire whether a PS would agree to invite a mission of experts

Lisbon Declaration on a Common and Comprehensive Security Model for Europe in the 21st Century, 1996: Violations of rights of persons belonging to national minorities = threat to stability, respect for minority rights = important contribution to security

à Large number of States not yet bound by international legal standards

à One of the most effective inter-State systems for monitoring

 

Implementation monitoring

Permanent Council regularly deals with HD issues (Budapest, 1994)

Secretary General

High Commissioner on National Minorities: address conflictual situations at the earliest possible stage

Office for Democratic Institutions and Human Rights: election observation, organization of ‘implementation meetings’ on HD issues

OSCE Representative on Freedom of the Media

OSCE Parliamentary Assembly

Missions of experts (1991)

 

 

The European Union and HR

Woods

 

Protection of HR not primary function of EU

1997 Treaty of Amsterdam à Justice, Home Affairs, Common Foreign and Security Policy

 

Civil and Political Rights

Treaty of Rome:

M Must be in community sphere

 

Treaty on European Union (Maastricht), 1993

Increasingly direct link between individuals and the EU

 

Single European Act, 1986 (-92)

 

Treaty of Amsterdam:

Joint Declaration on HR: Approve the ECJ’s approach in case law

 

European Parliament (Human Rights sub-commission), ACP Assembly

 

Economic, Social and Cultural Rights

Not all precise enough to be justiciable; programmatic rights…

Community Social Charter, 1989

European Economic and Monetary Union: shift away from Keynesian welfare State

 

Third Generation Rights

Treaty of Rome:

 

Treaty on European Union:

 

Enforcement

ECJ jurisprudence:

M Jurisprudence of ECHR and ECJ sometimes conflicting

M Critics: Treats Community more favourable than States

M Uneven level of judicial control

 

Conclusion

 


Part V: Extra-European Systems

 

The OAS System for the Protection of HR

Van der Wilt and Kristicevic

 

History

 

ACHR (Italics = rights not generally present in other instruments)

Art. 1

Duty to respect and to ensure [also private individuals] rights

Art. 2

Obligation of states to adapt legislative or other measures to comply with ACHR à self-executing [AO]

Art. 3

Right to judicial personality

Art. 4

Right to life

Art. 5

Torture or cruel, inhuman or degrading punishment or treatment

Art. 6

Slavery and servitude

Art. 7

Personal liberty and security

Art. 8

Fair trial

Art. 9

Non-retroactivity of criminal law

Art. 11

Privacy

Art. 12

Freedom of conscience and religion

Art. 13

Freedom of thought and expression

Art. 15 & 16

Assembly and Association

Art. 17

Family

Art. 18

Right to a name

Art. 20

Right to a nationality

Art. 21

Right to property

Art. 22

Freedom of movement and residence

Art. 22(7)

Right to seek and be granted asylum

Art. 23

Right to participate in government

Art. 24

Equal protection

Art. 27

Derogation clause: ‘independence or security’ in danger

Art. 26

Achieve progressively the full realization of economic, social and cultural rights in OAS Charter [e.g. culture, work, remuneration, leisure time]

Art 29(d)

Savings clause for American Declaration on the Rights and Duties of Man

Art. 30

Derogation restrictions in accordance with purpose of restrictions; list of non-derogable rights

Art. 41

Right of petition for any person or group of persons or any NG entity; victim or not

Art. 42

[Commission: Non-cooperation of government à facts held as true as long as other evidence does not lead to a different conclusion]

May watch over the promotion of economic, social and cultural rights

Art. 46

Conditions for admissibility of individual petitions: exhaustion of local remedies; not pending before another international procedure for settlement

Art. 48

Friendly settlement procedure

Art. 62

Competence of IACHR: only with explicit consent of States

Art. 63

If breach: reversal; remedy and fair compensation

Art. 64

Advisory jurisdiction

Art. 68

Compensation part of judgement has executory force

 

Inter-American Commission on HR

Seven independent HR experts elected by General Assembly

Main functions:

 

Inter-American Court of HR

Contentious jurisdiction

May only examine individual communications if the States Parties involved have recognized the Court’s competence.

Only States and Commission can present cases.

If breach à injured party must be ensured those rights denied and, where appropriate, remedy and fair compensation [executory force]

Advisory jurisdictions

Member states or OAS organs can request AO on interpretation of AHCR or other HR treaties

 

Some distinctive features of the Inter-American system

Similarities with ECHR and ICCPR, special rights listed above.

Commission relatively extensive powers; Commission allowed itself to take precautionary measures, e.g. halting the deportation of a journalist in Panama

Velasquez Rodriguez case, 1988: Burden of proof less formal in international proceedings when establishing State responsibility (States frequently control all relevant information and evidence)

Extensive derogation clause but must be in accordance with purposes of derogation & long list of non-derogable rights

 

Supervision of the Observance of Economic, Social and Cultural Rights

Few such rights in ACHR, but broad protection in ADRDM [State Parties also bound by Declaration]

Not clear-cut system of supervision and control.

Protocol of San Salvador, 1988: Petition system applicable to trade union rights and the right to education; keep reporting procedure for other rights; more economic, social and cultural rights

 

Conclusion

à Evolution from promotion to protection; important contribution of Commission: 1) Global assessment of HR situation in OAS Member States; 2) Develop petition system

à Commission power to start investigations on its own

à NGO can lodge complaints

 

 

The African Charter on Human and Peoples’ Rights

Flinterman and Henderson

 

Adopted 1981 (1986)

Under auspices of the Organization for African Unity (OAU)

Particular attention to African tradition and the peoples’ right to development

 

Promote and protect individual HR and collective peoples’ rights

 

Individual rights

Art. 2

Non-discrimination

Art. 3

Equality before the law; protection of the law

Art. 4

Life

Art. 5

Slavery, torture and other cruel, inhuman and degrading punishment or treatment

Art. 6

Arbitrary arrest and detention

Art. 7

Due process of law

Art. 8

Freedom of conscience, profession and religion ‘subject to law and order’

Art. 9

Freedom of information, opinion and expression ‘within the law’

Art. 10

Association … ‘abides by the law’

Art. 11

Assembly ‘necessary restrictions by the law’

Art. 12

Freedom of movement; right to seek asylum; prohibition of mass expulsion of non-nationals ‘which is aimed at national, racial, ethnic or religious groups’.

Art. 14

Property

Art. 15

Work; equal pay for equal work

Art. 16

Health

Art. 17

Right to education

Art. 18

Family; Women [reference to other international declarations and conventions]

 

Peoples’ Rights

Art. 20

Self-determination; Right to free themselves from domination

Art. 21

Wealth and natural resources

Art. 22

Development

Art. 24

General satisfactory environment favourable to their development

 

Duties

Art. 27

Duties towards society, the State and other legally recognized communities

Art. 28

Duty not to discriminate

Art. 29

Duty to preserve and strengthen social and national solidarity, particularly when the latter is threatened…

 

à Emphasis on negotiation; no Court established

 

African Commission (1987)

Usually senior government officers in individual capacity

Mandate:

 

African Court on Human and Peoples’ Rights (1998)

Complement and reinforce Commission

AO & optional contentious jurisdiction

Receives communications from States somehow affected & African inter-governmental organization & Commission à can bring a case before Court if no solution

Execution of judgements monitored by Council of Ministers of OAU

 

Conclusion

No effective HR protection

à Clawback clauses

à Duties could be interpreted as prerequisites

à Lack of enforcement and monitoring mechanisms

à OAU’s Assembly of Heads of State and Government (political body) entrusted with implementation

à Charter = 1st step



[1] Binding the whole international community ; no derogation is possible, unless modified by a subsequent ius cogens norm. See Art. 53 of VC, 1969; Barcelona Traction, ICJ, 1970.