The Law, Policy and Politics of the UN Human Rights Council [1 ed.] 9789004289031, 9789004289024

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The Law, Policy and Politics of the un Human Rights Council

International Studies in Human Rights VOLUME 112

The titles published in this series are listed at brill.com/ishr

The Law, Policy and Politics of the un Human Rights Council By

Bertrand G. Ramcharan

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Ramcharan, B. G., author.  The law, policy and politics of the UN Human Rights Council / By Bertrand G. Ramcharan.   pages cm. -- (International studies in human rights ; v. 112)  Includes bibliographical references and index.  ISBN 978-90-04-28902-4 (hardback : alk. paper) -- ISBN 978-90-04-28903-1 (e-book) 1. United Nations Human Rights Council. 2. Human rights monitoring. I. Title.  K3241.R36 2015  341.4’8--dc23 2015005528

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 0924-4751 isbn 978-90-04-28902-4 (hardback) isbn 978-90-04-28903-1 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.



To Spaj, A flower

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Contents Foreword ix Jiri Toman Preface xi Introduction: Mandates, Roles, Organization of the Human Rights Council 1 I

The Council and the Modern Human Rights Law of the Charter 13

II

Human Rights as International Constitutional Law 38

III Public Policy Role 55 IV

Human Rights and Security Challenges 65

V

The National Responsibility to Protect Human Rights 83

VI

National Protection in Practice? The ibsa Countries 121

VII International Cooperation: The Universal Periodic Review 150 VIII International Legislation 163 IX Prevention 182 X Fact-Finding 203 XI Protection 229 XII Justice 253 Conclusion 268 Appendix A 271 Appendix B 276 Bibliography 284 Index 286

Foreword It is a great pleasure for me to write these few lines about this important book, written not only by a leading scholar and practitioner of international human rights and humanitarian law, but also one of my longstanding friends. We met first at the International Institute of Human Rights in Strasbourg, France, in 1973, when he attended the courses and the training centre for human rights teachers. He earned the Diploma of the Hague Academy of International Law and the Diploma of the International Institute of Human Rights in the same summer of 1973. At Strasbourg I had the honour of teaching a course on international humanitarian law, in which he participated, and we have remained dear friends ever since. It was also at Strasbourg that he was identified for entry into the then Division of Human Rights of the un Secretariat and he went on to perform the functions of United Nations High Commissioner in 2003–2004. He tells people that I was his “teacher” but I have always considered him a partner in the cause of the worldwide implementation of international human rights and humanitarian law. The un Human Rights Council is the leading human rights organ of the United Nations and, ten years after it was established, it has attracted commendation as well as severe criticism. Its universal periodic review is widely recognized as a valuable process of international cooperation to advance the universal implementation of human rights. However, it has been criticized for not acting effectively and fairly in dealing with situations of shocking violations of human rights in many parts of the world. It is an international organ with the highest responsibilities to uphold universal values but, at the same time, it is a political organ of United Nations Member States, and it shows the characteristics of both a values-based body and a theatre of political drama. It is the merit of this book to present the Human Rights Council in terms of its mandates, roles and organization while seeking to remind the membership and the international community at large that the Council must be anchored in the modern human rights law of the Charter – of which the author gives a superb presentation. The book then proceeds to make the case that human rights are part of international constitutional law and this is exceedingly important at a time when universal values have come under stress from various quarters including from terrorist formations. The argument of the book is essentially that the modern human rights law of the Charter and the human rights provisions of international constitutional law must take precedence for everyone, everywhere.

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The book discusses the nexus between human rights and contemporary security challenges and then shows that the Human Rights Council is playing a useful public policy role. Well wishers of the Council should highlight this public policy role so that it becomes better known. The book then presents a central concept of international human rights law, namely, the national responsibility to protect and proceeds to discuss this in relation to three leading countries, the “ibsa” countries. Implicit in these two chapters is the reasoning that the Human Rights Council must insist on the national responsibility of all countries to protect human rights. The Chapter on “International Cooperation through the Universal Periodic Review” shows the Council performing one of its very valuable roles while the chapter on “International Legislation” shows the Council continuing the process of standard setting. It offers a policy framework for future legislative activity. The chapter on “Prevention” shows that the Council has been seeking to advocate prevention but that it has itself not yet developed a significant operational role of prevention. It will be essential for the Council, in the future, to develop a stronger preventive role. The Chapter on “Fact-finding” shows the Council, through it special procedures, the High Commissioner for Human Rights and Commissions of Inquiry at the forefront of gathering and publicizing information on gross violations of human rights. The chapters on “Protection” and “Justice” show that the Council aspires for protection and justice but still has a long way to go before it can be said to be an effective protection body or that it is applying the principle of justice. The author argues eloquently that justice must become the lode star of the Council in the future. The Council must strive to overcome its political instincts and to develop its instincts for justice. I commend this invaluable work to the community of international human rights and humanitarian lawyers and to the human rights community at large. Jiri Toman Professor of International Law Santa Clara University

Preface Next to the General Assembly and the Security Council, the Human Rights Council is the main human rights organ of the United Nations. It is in composition and practice a political body which, nevertheless, has a values-based mandate to advance the implementation of the human rights standards of the world community and to help provide protection in cases of need. There is both controversy and consensus within the Council. Adherence to international human rights law can help the Council overcome its contradictions. Can one speak of the Law of the Human Rights Council? We believe one can. In the first place there is institutional and procedural law. In the second place, there is substantive law governing the Council, as set out in the United Nations Charter, in the resolution of the General Assembly establishing the Council and subsequent decisions of the Assembly empowering it. In the third place the Council has activities that unquestionably lead to the progressive development of law through broad-based agreement and practice. In the fourth place, in a rapidly evolving world of unprecedented threats and challenges, the Human Rights Council should contribute to policies and norms for human survival on the foundations of human rights values. In the fifth place, the Council engages in significant drafting of new or modernised human rights norms. One can see the dynamic law-development role of the Council in its resolution 23/19, adopted without a vote, on 13 June, 2013, in which the Council considered that States should integrate their obligation under international human rights law into their national legislation in order to ensure that State action at the national level is effectively directed towards the promotion and protection of all human rights and fundamental freedoms. The Council considered that State action aimed at the full realization of human rights and fundamental freedoms at the national level is made most effective by drawing up and putting into practice national policies in conformity with obligations under international human rights law. The Council recognized the importance of developing, strengthening and evaluating relevant disaggregated national data as a useful tool for drawing up and assessing the impact of national policies aimed at the enjoyment of human rights and fundamental freedoms. At the same session of the Council, it adopted resolution 23/17, without  a  vote, recognizing the role of independent national institutions for the  ­promotion and protection of human rights in working together with their  Governments to ensure full respect for human rights at the national level,  including by contributing to follow-up actions, as appropriate, to the

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r­ ecommendations resulting from the international human rights mechanisms. The Council encouraged national institutions for the promotion and protection of human rights to continue to play an active role in preventing and ­combating all violations of human rights as enumerated in the Vienna Declaration and Programme of Action and relevant instruments.1 In a path-breaking work some years ago on the Development of International Law by the Political Organs of the United Nations, Professor (later Judge and President of the International Court of Justice) Rosalyn Higgins , demonstrated the law-clarifying and law-creating role of political organs such as the un General Assembly.2 Resolutions of the Human Rights Council such as those cited above help clarify and progressively develop the national responsibility to protect human rights and contribute to shaping the international human rights law of the future. This book will offer an initial presentation on the lawclarifying and law-creating roles of the Human Rights Council, drawing on resolutions adopted either without a vote or by overwhelming majorities in the Council. There are significant normative and policy pronouncements of the Council in resolutions adopted through majority or plurality votes. We shall leave these aside in this work. A crucial issue of international law and policy is the extent to which international human rights law is binding on the Human Rights Council and its Members. General Assembly resolution 60/251 establishing the Human Rights Council reaffirmed some of the essential foundations of international human rights law, including the Purposes and Principles of the United Nations Charter, the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action (1993), the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966). The General Assembly particularly noted that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms. The General Assembly emphasized the responsibility of all States, in conformity with the un Charter, to respect human rights and fundamental freedoms for all, without distinction of any 1 See on this, A.Wolman, “Welcoming a New International Human Rights Actor? The Participation of Subnational Human Rights Institutions at the un,” 20 Global Governance, 2014, pp. 437–457. 2 R. Higgins, The Development of International Law by the Political Organs of the United Nations (Oxford, oup, 1963).

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kind. The World Conference on Human Rights (1993) had earlier adopted similar positions. It will be recalled in this regard, using the terms of a classic presentation of the fundamental rules of international law, that a state is obliged to respect the human rights of persons subject to its jurisdiction: (a) that it has undertaken to respect by international agreements; (b) that states generally are bound to respect as a matter of customary international law; and (c) that it is required to respect under general principles of law common to the major legal systems of the world.3 A state violates international customary law if, as a matter of state policy, it practices, encourages, or condones: (a) genocide; (b) slavery or slave trade; (c) the murder or causing the disappearance of individuals; (d) torture or other cruel, inhuman or degrading treatment or punishment; (e) prolonged arbitrary detention; (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.4 The law concerning remedies for breaches of human rights is summarised in the same source as follows: “(1) A state party to an international human rights agreement has, as against any other state party violating the agreement, the remedies generally available for violation of an international agreement, as well as any special remedies provided by the agreement. (2) Any state may pursue international remedies against any other state for a violation of the customary international law of human rights. (3) An individual victim of a violation of a human rights agreement may pursue any remedy provided by that agreement or by other applicable international agreements.”5 The Human Rights Council and its Members must be faithful to these precepts of international law if it is to be respected in the world as a principled human rights body animated by principles of protection and justice. As will be shown in this work, the Human Rights Council does perform a significant public policy role, particularly in alerting the international community to new problems and challenges. However, the pulse that beats in the Council is a political one. On the one hand this imparts a ­measure of realism to the Council. On the other hand, it can lead the Council to pursue policies of dialogue and cooperation instead of principled stances against gross violations of human rights. To be fair, there are those Member States who believe that even when Governments are involved in gross violations of human rights the 3 Restatement of the Foreign Relations Law of the usa, Second Edition, American Law Institute (1965) Article 701. 4 Ibid, Article 702. 5 Ibid, Article 703.

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attitude of the international community should not be to condemn but to help them overcome problems. For the victims of criminal violations of human rights or for their loved ones, the wish for justice is strong. Law, Policy and Politics thus commingle in the Council, many times to the detriment of protection and justice. This will be the subject of inquiry in this book.

Introduction: Mandates, Roles, Organization of the Human Rights Council General Assembly resolution 60/251 establishing the Human Rights Council reaffirmed the essential foundations of international human rights law and reiterated its commitment to strengthen the United Nations human rights machinery with the aim of ensuring effective enjoyment by all of all human rights – civil, political, economic, social and cultural rights, including the right to development. There are thus good legal foundations for the work of the Human Rights Council, along with the General Assembly’s endorsement of the responsibility to protect. The General Assembly also indicated significant policy premises for the Council. The General Assembly affirmed the need for all States to continue international efforts to enhance dialogue and broaden understanding among civilizations, cultures and religions. It recognized that the promotion and protection of human rights should be based on the principles of cooperation and dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings. The core mandate given to the Council was to promote universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind. The Council was mandated to address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. The General Assembly decided that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation with a view to enhanced promotion and protection of all human rights. The Council was further mandated to promote human rights education and learning as well as advisory services, technical assistance and capacity building, to be provided in consultation and with the consent of the Member States concerned; to serve as a forum for dialogue on thematic issues; to make recommendations to the General Assembly for the further development of international law in the field of human rights; to promote the full implementation of human rights obligations undertaken by States and follow-up of the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits; to contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies; to work © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004289031_002

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in close cooperation in the field of human rights with governments, regional organizations, national human rights institutions, and civil society; to make recommendations with regard to the promotion and protection of human rights; and to undertake a universal periodic review of the fulfilment by each State of its human rights obligations and commitments.

Composition and Method of Selection of Members

The resolution of the General Assembly establishing the Council called for its members to be elected individually, instead of by regional slates. In practice, regional slates have continued without being so deemed. Countries aspiring to membership are expected to uphold the highest standards in the promotion and protection of human rights, to cooperate fully with the Council and to be reviewed under the universal periodic review mechanism during their term of membership. When electing members of the Council, Member States voting in the un General Assembly are required to take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments. The General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights. Candidate countries also, in most instances, make voluntary pledges upon seeking membership. So far, the Council itself has not sought to follow up on these pledges. This is theoretically possible under the system of universal periodic review which sees every un Member State being reviewed once every four and a half years.

Agenda, Methods of Work and Rules of Procedure

The agenda and framework for the Council’s work were agreed in 2007 keeping in mind the principles of universality, impartiality, objectivity, non selectivity, constructive dialogue and cooperation, predictability, flexibility, transparency, accountability, balance, inclusiveness/comprehensiveness, gender perspective and implementation and follow-up of decisions.6 The agenda consisted of the 6 See on this Luis Alfonso de Alba, First President of the Human Rights Council, Ambassador and Permanent Representative of Mexico to the United Nations, Geneva, “Reviewing the Process: Challenges in the Creation of the Human Rights Council,” in L. Muller (Ed.), The First

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following ten items: (a) Organizational and procedural matters, (b) Annual report of the United Nations High Commissioner for Human Rights and reports of ohchr and the Secretary-General, (c) Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, (d) Human rights situations that require the Council’s attention, (e) Human Rights Bodies and Mechanisms, (f) Universal Periodic Review, (g) Human rights situation in Palestine and other occupied Arab territories, (h) Follow-up and implementation of the Vienna Declaration and Programme of Action, (i) Racism, racial discrimination, xenophobia and related forms of intolerance, follow-up and implementation of the Durban Declaration and Programme of Action, and (j) Technical assistance and capacity-building. At least two issues are worth commenting upon regarding this agenda. First, at the request of the un General Assembly the former Commission on Human Rights had an item on its agenda since 1967 dealing with violations of human rights world-wide. Under this item, any Member of the Commission or Member of the un, or accredited ngo could raise any situation or issue of alleged gross violations of human rights. This annual debate allowed the possibility of reviewing human rights violations world-wide. A deliberate decision was taken by the majority of members of the Council not to include such an item on its agenda, although item (d) in the preceding paragraph could be said to cover this. However, a specific item was included on the agenda on the human rights situation in Palestine and other occupied Arab territories. Israel and its supporters have consistently protested that this amounts to inequitable and discriminatory treatment. In putting in place the institution-building measures that it brought into force on 19 June 2007, the Council repeatedly placed a premium on the principles of cooperation and genuine dialogue aimed at strengthening the capacity of Member States to comply with their human rights obligations. The Council recalled that, in accordance with ga resolution 60/251 which established the Council, the methods of work should be transparent, impartial, equitable, fair, pragmatic, lead to clarity, predictability and inclusiveness. In this spirit the Council called for briefings on prospective resolutions or decisions; Presidents’ open ended information meetings on resolutions, decisions and other related business, and informal consultations on proposals convened by the main sponsors. In a hotly contested provision the Council stated that proposers of a country resolution have the responsibility to secure the broadest possible 365 Days of the United Nations Human Rights Council. Published by the Swiss Ministry of Foreign Affairs, 2007, pp. 48–55.

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support for their initiatives (preferably 15 members) before action is taken. It is not clear whether this is an advisory or a mandatory provision. The Council signalled that there was need for early notification of proposals; early submission of draft resolutions; early distribution of all reports; and restraint in resort to resolutions in order to avoid the proliferation of resolutions. The Bureau of the Council consists of a President and four vice-presidents one of whom serves as rapporteur. The Bureau deals with procedural and organizational matters. The Bureau is required to share regularly the contents of its meetings through a timely summary report. This leaves open the question whether the Bureau, together with the President, could react to urgent situations requiring immediate action such as the despatch of fact-finders to brief the Council. As regards the role of the President the document states that ‘President’s open-ended information meetings on resolutions, decisions and other related business’ shall provide information on the status of negotiations on draft resolutions/decisions so that delegations can gain a ‘bird’s eye point of view’ on the status of such drafts. These consultations shall have a purely informational function, combined with information on the extranet, and shall be held in a transparent and inclusive manner. They shall not serve as a negotiating forum. The rules of procedure provide that the Office of the un High Commissioner for Human Rights shall act as Secretariat for the Council. This is without prejudice to the right of the High Commissioner as representative of the Secretary General to make statements on any matter before the Council. The Council meets regularly throughout the year and must schedule no fewer than three sessions per year, including a main session for a total duration of no less than ten weeks. The Council is based in Geneva. A High Level Segment of the Council is held once a year during the main session of the Council. It is followed by a General Segment in which delegations that did not participate in the High Level Segment can make general statements. Special sessions of the Council may be held at the request of a member of the Council with the support of one third of the membership of the Council. With a council membership of 47 this means that 15 other members must support the request. The special session must be convened as soon as possible after the formal request and in principle not earlier than two working days and not later than five working days after the formal receipt of the request. The duration of the special session shall not exceed three days (six working sessions) unless the Council decides otherwise. In principle the Council applies the rules of procedure established for the Main Committees of the General Assembly as applicable. The participation of, and consultation with, observers, including States that are not members of the

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Council, the specialized agencies, other inter-governmental organizations and national human rights institutions, as well as ngos, are based on arrangements and practices observed by the former Commission on human rights including ecosoc resolution 1996/31. The participation of national human rights institutions is based on arrangements and practices agreed upon by the former commission including its resolution 2005/74.

The Complaints Procedure

In the new arrangements that came into force on 19 June 2007, the Council established a confidential complaints procedure for dealing with allegations of consistent patterns of gross and reliably attested violations of all human rights and fundamental freedoms occurring in any part of the world and under any circumstances. The procedure was largely based on ecosoc resolution 1503 (XLVIII) as revised by ecosoc Resolution 2000/3. The revisions were professedly intended to ensure that the complaint procedure was impartial, objective, efficient, victims-oriented and conducted in a timely manner. The confidential nature of the procedure was retained “with a view to enhancing cooperation with the state concerned.” The admissibility criteria required that a communication not refer to a case that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional complaints procedure in the field of human rights. This inadmissibility criterion is new and its rationale is not entirely clear. The procedure calls for two working groups to examine the communications and to bring to the attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms. Both working groups are invited, to the greatest possible extent, to work on the basis of consensus and, in the absence of consensus, decisions shall be taken by simple majority of the votes. The first working group is a Working Group on Communications (wgc) consisting of five members of the Human Rights Council Advisory Committee, appointed for three years with the possibility of one renewal. The Chairperson of the Working Group on Communications is expected, together with the Secretariat, to undertake an initial screening of the communications based on the admissibility criteria before transmitting them to the states concerned. Manifestly ill-founded or anonymous communications are to be screened out by the Chairperson and not transmitted to the State concerned.

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The members of the wgc decide on the admissibility of the communication and assess the merits of the allegations of violations, including whether the communication alone or in combination with other communications appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. The Working Group on Situations (wgs) consists of five representatives of member states of the Council, one appointed by each regional group. Their appointment is for one year with the possibility of one renewal if the state concerned is a member of the Council. Members of the wgs are to serve in their personal capacity. The wgs is required, on the basis of the information and recommendations provided by the wgc, to present the Council with a report on consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms and to make recommendations to the Council on the course of action to take. All decisions of the wgs shall be duly justified and indicate why recommended action has been put forward or the consideration of a situation has been discontinued. Decisions of the wgs to discontinue consideration of a situation should be taken by consensus, if possible, or by simple majority of the votes. Both working groups are to meet at least twice a year for five working days each period in order to promptly examine the communications, including replies of states thereon as well as the situations which the council is already seized of under the complaint procedure. States concerned are expected to cooperate with the procedure and to make every effort to provide substantive replies in one of the United Nation’s official languages to any of the requests of the working groups of the Council. The State must make every effort to provide a reply not later than three months after the request has been made. If necessary this deadline may be extended at the request of the State concerned. The Working Group on Situations occasionally refers a situation to the plenary Council for discussion in confidential sessions.

Subsidiary Bodies: The Advisory Committee

In replacement of the former Sub-Commission on the promotion and protection of human rights the Council has established an Advisory Committee composed of 18 experts acting in their personal capacity to work as a think-tank to the Council and under its direction. All member states of the un can propose or endorse candidates from their own region. When selecting their candidates, States should consult their national human rights institutions and civil society

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organizations and, in this regard, include the names of those supporting their candidates. The aim is to ensure that the best possible expertise is made available to the Council. For this purpose technical and objective requirements for the submission of candidatures have been indicated. These include: – Recognized competence and experience in the field of human rights; – High moral standing; – Independence and impartiality. Individuals holding decision-making positions in Government or in any other organization or entity which could give rise to a conflict of interest with the responsibilities inherent to the mandate are to be excluded. Elected members of the Committee should act in their personal capacity. The principle of non-accumulation of human rights functions at a time is to be respected. The Council elects the members of the Advisory Committee, in secret ballot, from the list of candidates whose names have been presented in accordance with the agreed requirements. The list of candidates is closed two months prior to the election date. The Secretariat should make available the list of candidates and relevant information to member States and to the public at least one month prior to their election. Due consideration should be given to gender balance and to an appropriate representation of different civilizations and legal systems. The geographic distribution is as follows: African States: 5; Asian States: 5; Eastern European States: 2; Latin American and Caribbean States: 3; Western European and other States: 3. The members of the Advisory Committee serve for a period of three years. They are eligible for re-election once. The function of the Advisory Committee is to provide expertise to the Council in the manner and form requested by the Council, focusing mainly on studies and research-based advice. Further, such expertise shall be rendered only upon the latter’s request, in compliance with its resolutions and under its guidance. The Advisory Committee should be implementation-oriented and the scope of its advice should be limited to thematic issues pertaining to the mandate of the Council; namely promotion and protection of all human rights. The Advisory Committee shall not adopt resolutions or decisions. The Committee may propose within the scope of the work set out by the Council, for the latter’s consideration and approval, suggestions for further enhancing its procedural efficiency, as well as further research proposals within the scope of the work set out by the Council.

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The Council shall issue specific guidelines for the Advisory Committee when it requests a substantive contribution from the latter and shall review all or any portion of those guidelines if it deems necessary in the future. The Advisory Committee convenes up to two sessions for a maximum of 10 working days per year. Additional sessions may be scheduled on an ad hoc basis with prior approval of the Council. The Council may request the Advisory Committee to undertake certain tasks that could be performed collectively, through a smaller team or individually. The Committee will report on such efforts to the Council. Members of the Advisory Committee are encouraged to communicate intersessionally, individually or in teams. However, the Committee may not establish subsidiary bodies unless the Council authorizes it. In the performance of its mandate, the Advisory Committee is urged to establish interaction with States, national human rights institutions, ngos and other civil society entities in accordance with the modalities of the Council. Member States and observers, including States that are not members of the Council, the specialized agencies, other intergovernmental organizations and national human rights institutions, as well as non-governmental organizations shall be entitled to participate in the work of the Advisory Committee based on arrangements, including Economic and Social Council resolution 1996/31 and practices observed by the Commission on Human Rights and the Council, while ensuring the most effective contribution of these entities.

Expert Mechanism on the Rights of Indigenous People

In resolution No. 36, adopted at its sixth session on 14 December, 2007, the Human Rights Council decided to establish a subsidiary expert mechanism to provide the Council with thematic expertise on the rights of indigenous peoples in the manner and form requested by the Council. The mechanism focuses mainly on studies and research-based advice and may suggest proposals to the Council for its consideration and approval, within the scope of its work as set out by the Council. The mechanism reports annually to the Council on its work. The expert mechanism consists of five independent experts with due regard to experts of indigenous origin. The mechanism invites the Special Rapporteur of the Council on indigenous peoples and a member of ecosoc’s Permanent Forum on Indigenous Peoples to attend and contribute to its annual meeting. The members of the expert mechanism serve for a three-year period and may be re-elected for one additional period. Within its mandate, the expert mechanism on the rights of indigenous peoples should determine its own

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methods of work, although the expert mechanism may not adopt resolutions or decisions. The mechanism meets once annually for up to five days. Its sessions may be a combination of open and private meetings. The annual meetings of the expert mechanism are open to the participation, as observers, of States, United Nations mechanisms, bodies and specialized agencies, funds and programmes, intergovernmental organizations, regional organizations and mechanisms in the field of human rights, national human rights institutions and other relevant national bodies, academics and experts on indigenous issues, nongovernmental organizations in consultative status with the Economic and Social Council; the meeting shall also be open to indigenous peoples’ organizations and non-governmental organizations, whose aims and purposes are in conformity with the spirit, purposes and principles of the Charter of the United Nations, based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996, and practices observed by the former Commission on Human Rights, through an open and transparent accreditation procedure in accordance with the rules of procedure of the Human Rights Council, which will provide for the timely information on participation and consultation with States concerned.

Forum on Minority Issues

By resolution No. 15, adopted at its sixth session on 28 September, 2007, the Human Rights Council established a Forum on minority issues to provide a platform for promoting dialogue and cooperation on issues pertaining to persons belonging to national or ethnic, religious and linguistic minorities, and entrusted it with the task of providing thematic contributions and expertise to the work of the Council’s independent expert on minority issues. The Forum is expected to identify and analyse best practices, challenges, opportunities and initiatives for the further implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; The Forum is open to the participation of States, United Nations mechanisms, bodies and specialized agencies, funds and programmes, intergovernmental organizations, regional organizations and mechanisms in the field of human rights, national human rights institutions and other relevant national bodies, academics and experts on minority issues and non-governmental organizations in consultative status with the Economic and Social Council; the Forum shall also be open to other non-governmental organizations whose aims and purposes are in conformity with the spirit, purposes and principles of

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the Charter of the United Nations, based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996, and practices observed by the Commission on Human Rights, through an open and transparent accreditation procedure in accordance with the Rules of Procedure of the Human Rights Council, which will provide for timely information on participation and consultations with States concerned; The Forum meets annually for two working days allocated to thematic discussions. The President of the Human Rights Council appoints for each session, on the basis of regional rotation, and in consultation with regional groups, a chairperson of the Forum elected from among experts on minority issues, nominated by members and observers of the Council; the chairperson, serving in his/her personal capacity, shall be responsible for the preparation of a summary of the discussion of the Forum, to be made available to all participants of the Forum. The Council’s independent expert on minority issues is expected to guide the work of the Forum and prepare its annual meetings, and to include in his/ her report thematic recommendations of the Forum and recommendations for future thematic subjects, for consideration by the Human Rights Council.

The Social Forum

By resolution No. 13 adopted at its sixth session on 28 September, 2007, the Human Rights Council decided to preserve the Social Forum of the former Sub-Commission as a unique space for interactive dialogue between the United Nations human rights machinery and various stakeholders, including grass-roots organizations, and underlined the importance of coordinated efforts at national, regional and international levels for the promotion of social cohesion based on the principles of social justice, equity and solidarity as well as to address the social dimension and challenges of the ongoing globalization process. The Social Forum meets annually, focusing on questions relating to the eradication of poverty in the context of human rights; capturing best practices in the fight against poverty in the light of grass-roots presentations to the Social Forum; and the social dimension of the globalization process. It meets for three working days, in order that it may devote: (a) One day to thematic discussions on poverty and human rights and the work of the international human rights mechanisms in the field of economic, social and cultural rights and the right to development in relation to poverty, in order to receive feedback from civil society to provide to different mechanisms; (b) One day to discussion on

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the social dimension of the globalization process; (c) One day to an interactive debate with relevant thematic procedures mandate-holders of the Human Rights Council on issues related to the topics of the Social Forum, and to formulate conclusions and recommendations to be presented to relevant bodies through the Human Rights Council. The Social Forum is open for participation of representatives of United Nations Member States and all other interested stakeholders such as intergovernmental organizations, different components of the United Nations system, especially mandate-holders of thematic procedures and mechanisms of the human rights machinery, regional economic commissions, specialized agencies and organizations – in particular the United Nations Development Programme, the World Bank, the International Monetary Fund and the World Trade Organization, as well as representatives designated by human rights national institutions and non-governmental organizations in consultative status with the Economic and Social Council and other non-governmental organizations, in particular newly emerging actors such as small groups and rural and urban associations from the North and the South, anti-poverty groups, peasants’ and farmers’ organizations and their national and international associations, voluntary organizations, youth associations, community organizations, trade unions and associations of workers, as well as representatives of the private sector, regional banks, and other financial institutions and international development agencies, based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996, and practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities.

ngos and the Human Rights Council

The rules of procedure of the Council include the following provisions applicable to the participation of ngos. The Council shall apply the rules of procedure established for committees of the General Assembly, as applicable, unless subsequently otherwise decided by the Assembly or the Council, and the participation of and consultation with observers, including States that are not members of the Council, the specialized agencies, other intergovernmental organizations and national human rights institutions, as well as nongovernmental organizations, shall be based on arrangements, including Economic and Social Council Resolution 1996/31 of 25 July 1996, and

12

Introduction

practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities.7 The package of measures on institution building approved by the Human Rights Council on 18 June, 2007 contained other provisions concerning the participation of ngos. The principles concerning the Universal Periodic Review called for ensuring the participation of all relevant stakeholders, including ngos and national human rights institutions in accordance with ga resolution 60/251 and ecosoc resolution 1996/31, as well as any decisions that the Council may take in this regard. In the review the Council should take into consideration any credible and reliable information provided by other relevant stakeholders. Observer States can participate in the review, including the interactive dialogue. Other relevant stakeholders (ngos for example) can attend but not take part in the conduct of the review in the Working Group of the whole. In the phase of the adoption of the outcome of the review, ‘Other relevant stakeholders will have the opportunity to make general comments before the adoption of the outcome by the plenary.’ On the process of the selection and appointment of special procedures mandate-holders ngos may nominate candidates. The new Human Rights Council Advisory Committee is urged, in the performance of its mandate, to ‘establish interaction with…ngos and other civil society entities in accordance with the modalities of the Council’. The new Complaints Procedure provides for the author of the communication and the state concerned to be informed of the proceedings at key stages.

National Human Rights Institutions and the Council

National Human Rights Institutions have enhanced their participation in the Human Rights Council over their participation in the former Commission on Human Rights. In the Commission they were allocated one or part of a meeting to address the Commission and did so with much substance. Now they participate in larger numbers, speak not only at a dedicated session but may take the floor different items on the agenda, and may even participate when their country’s national report is being considered under the Universal Periodic Review process. They may submit documentation including reports and policy papers for the consideration of members of the Council. They may also submit written statements to the Council, of up to 2000 words in length. They may organize parallel events on items of relevance to the work of the Council. 7 un Human Rights Council, “Institution Building,” President’s Text, June 13 2007.

chapter I

The Council and the Modern Human Rights Law of the Charter

Introduction

The Human Rights Council is an organ of the United Nations and must follow the modern human rights law of the Charter. One can say that it does so partly, but it is in essence a political organ with a values-based mandate. We should look to it, in the future, to anchor its work more in the modern human rights law of the Charter. In this chapter we offer a statement of this governing law. The United Nations Charter is an international treaty8 and, under international treaty law, its provisions are to be interpreted according to the texts and with regard, if needed, to the object and purpose of the treaty as discussed at the time of drafting. The sources of international law enumerated in Article 38 of the Statute of the International Court of Justice, which is an integral part of the Charter, suggest that un Charter provisions may represent, or give rise to, norms of customary international law; may represent, or give rise to, general principles of international law. Treaties, customary international law, and general principles of international law recognized the world over are thus the sources of obligations in the international legal system. Judicial decisions of high international courts like the International Court of Justice or the writings of leading scholars or practitioners might help us understand the meaning of particular provisions of the Charter. But can one leave the matter there? Since the Charter was drafted, legal norms of international public policy have emerged and have been identified. The International Court of Justice has invoked the concept of obligations erga omnes, that is to say of obligations not only to particular countries but to the world as a whole. In the United Nations Millennium Declaration, adopted on 8 September 2000 by Heads of State and Government the world over, world leaders reaffirmed their faith in the United Nations and in the Charter as indispensable foundations of a more peaceful, prosperous and just world. They recognized that, in addition to their separate responsibilities to their individual 8 We leave aside, for the moment, the issue whether the Charter might be considered as international constitutional law as some scholars have asserted. This topic is discussed in Chapter II below.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004289031_003

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societies, they had a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. They considered certain fundamental values to be essential to international relations in the twenty-first century including freedom, equality, solidarity, tolerance, respect for nature, and shared responsibility. On human rights, specifically, they pledged that they would spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development; to respect fully and uphold the Universal Declaration of Human Rights. Five years later, in the Summit Outcome Document adopted by the un General Assembly, again at the highest levels, world leaders pledged to uphold the responsibility to protect (rtp), particularly against genocide, ethnic cleansing, crimes against humanity, and war crimes. The rtp entails prevention, response and rebuilding. Do developments such as these leave the Charter untouched, or might one conclude that, depending on the solemnity of particular pronouncements, and by whom made, they are giving contemporary interpretations to some Charter provisions and to the legal responsibilities of Member States thereunder? The un Human Rights Committee, in the Judge Case, upheld the principle that provisions of the International Covenant on Civil and Political Rights must be interpreted in keeping with contemporary circumstances and not necessarily those at the time of its drafting.9 Is it possible that some parts of solemn statements such as the un Millennium Declaration might give rise to instant customary international law? In such an instance, what would be the relevance of such an occurrence to the interpretation and application of related un Charter provisions. As we shall see later in this chapter, Article 56 of the un Charter commits Member States to take joint and separate actions to uphold the human rights provisions in Article 55. In the un Millennium Declaration, Heads of State and Government recognized their duty to the world’s people, especially the most vulnerable, and in particular the children of the world. Can one conclude that provisions of the Millennium Declaration help clarify the content of the obligations of Member States under Articles 1, 2, 55 and 56 of the Charter? In this chapter we shall focus on the human rights obligations of Member States under the Charter. We shall submit that the meaning of the Charter provisions on human rights must be given modern interpretations, keeping in 9 Roger Judge v. Canada, Communication No. 829/1998, un Doc. CCPR/C/78/D/829/1998 (2003). Available at University of Minnesota Human Rights Library, http://www1.umn.edu/ humanrts/undocs/829-1998.html.

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mind the subsequent emergence of new norms of customary international law – including possibly through the creation of instant customary law, the emergence of new general principles of international law, the identification of the content of international human rights law by the International Court of Justice or other authoritative human rights bodies, the identification of norms of international public policy, and the distillation by the International Court of Justice of obligations erga omnes. We offer a view of the un Charter as living law, absorbing contemporary elucidations, interpretations and applications. We advocate a position that, beyond the identification of particular obligations under treaty law, customary law, or general principles of law, un Charter provisions on human rights have to be given their contemporary meanings in an evolving international society.10 We advance the doctrine of incorporation in the living law of the Charter.11 To begin, we revisit the basis of obligation in international law. I

The Basis of Obligation in International Law

The principle of the supremacy of international law over municipal law has been included in the following provisions either drafted or subsequently accepted by the International Law Commission: Articles 13 and 14 of the Draft Declaration on Rights and Duties of States; Articles 27, 46, 53, 64 of the Vienna Convention on the Law of Treaties (1969), and the ilc’s draft Article 3 on State Responsibility. The Preamble of the Draft Declaration on the Rights and Duties of States affirmed that “the States of the world form a community governed by international law.” According to Article 13 of the Draft Declaration, “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.” According to Article 14, “Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law.”12 This principle 10

11 12

In an insightful pronouncement in the South West Africa cases of 1966, Judge Jessup noted that “…the standard to be applied by the Court must be of the contemporary international community.” Judge P. Jessup, South West Africa cases, icj Reports (1966), p. 17. Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, un Doc. A/CN.4/2, 15 December, 1948, p. 43.

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was based on postulate 4 of the “International Law of the Future,” published by the Carnegie Endowment for International Peace in 1944. The Commission approved these articles without any debate on their substance. The principles contained in them were taken as self-evident by the Commission. Mr Alfaro, in the draft he prepared, which was used as the basis of discussion in the Commission, commented on these provisions as follows: Article 14 “deals with the authority of international law including everything agreed upon in the Charter of the United Nations and in the Statute of the World Court, which are international treaty law.” Article 14 “proclaims that international law is obligatory for all States.”13 In the written comments of governments, the principle was accepted and, on the whole, taken as self-evident.14 Sir Gerald Fitzmaurice, in his course of lectures at the Hague Academy of International Law on “The General Principles of International Law Considered from the Standpoint of the Rule of Law,” took as his starting point Article 14 of the International Law Commission’s draft on Rights and Duties of States, which he commented on as follows: This provision enunciates the important principle of the subordination of the sovereignty of each State to the supremacy of international law – in short, of the sovereignty of the rule of law in the international field which might indeed be called the first and greatest principle of international law. From it all the rest follows: without it there may be customs, practices, habits, courtesies…but there is no law.15 Sir Gerald proceeded to demonstrate that this principle applied automatically, and that at the back of the principle, the ultimate source or basis of legal obligation in international law rested in the explanation of law as a social necessity. Professor Hans Kelsen, while making some emendations on the actual formulation of this principle by the International Law Commission, accepted it as part of general international law. The duty laid down in Article 14, he felt, “is implied in the concept of international law. … The concept of international 13 14 15

Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, un Doc. A/CN.4/2, 15 December, 1948, p. 43. Ibid. See the written comments of Mexico, p. 86, the United Kingdom, p. 86, Venezuela, p. 88. Sir Gerald Fitzmaurice, Q.C., “The General Principles of International Law Considered from the Standpoint of the Rule of Law,” 92 rcadi (1957, II), p. 6.

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law implies the duty of every State to behave in all its relations in accordance with international law.”16 He explained this more fully elsewhere: There is, above the commonwealth described as the State, a legal order which defines the respective scopes of power of individual States by forbidding the encroachment of one into the sphere of another…a legal order which regulates the relations of States by means of rules equally applicable to all. International law does this – but only when its supremacy over the legal systems of individual States is recognized, when…it is contemplated as a legal system standing above the States, i.e. when the legal systems of individual States are regarded as component parts of a universal legal order.17 Principle I of the Principles of International law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, as codified by the International Law Commission, stated that any person who committed an act which constitutes a crime under international law is responsible therefor and liable to punishment. In the commentary to Principle 1, the Commission stated that the general rule underlying it was that international law may impose duties on individuals directly without any interposition of internal law. In its commentary to Principle II, which affirmed that the fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the persons who committed the act from responsibility under international law, the Commission pointed out that “The principle that a person who has committed an international crime is responsible therefor and liable to punishment under international law, independently of the provisions of internal law, implies what is commonly called the ‘supremacy of international law over national law’.18 The Commission’s draft on jus cogens, which became Articles 53 and 64 of the Vienna Convention on the Law of Treaties, was also clearly based on the assumption that international law overrides municipal law in matters of international public policy.

16

H. Kelsen, The Draft Declaration of Rights and Duties of States, 44 a.j.i.l. (1950), pp. 259–276. 17 Der Begriff der Souveranitat und die Theorie des Volkerrechts (1920), cited in H. Lauterpacht, Private Law Sources and Analogies of International Law (1933), p. 55. 18 i.l.c. Report 1950, para. 102 of commentary to Principle II, ybilc 1950, Vol.II, p. 375.

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chapter I

Human Rights Obligations under the United Nations Charter

The Purposes of the United Nations as stated in Article 1 of the Charter are, among others, to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, language, sex, or religion. The un is to be a centre for harmonizing the action of nations in the attainment of these common ends. Article 55 of the Charter gives the United Nations a mandate to promote universal respect for and observance of human rights and fundamental freedoms for all. In Article 56, all members pledged themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55. In Resolution 2625 (xxv) of 24 October 1970, the un General Assembly adopted the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations. This declaration is widely considered a codification of the legal principles of the United Nations Charter. The General Assembly affirmed that States have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations in order to maintain international peace and security and to promote international stability and progress, the general welfare of nations and international cooperation free from discrimination based on such differences. To this end: states shall co-operate with other states in the maintenance of international peace and security; states shall co-operate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance; states shall conduct their international relations in the economic, social, cultural, technical and trade fields in accordance with the principles of sovereign equality and nonintervention; states members of the United Nations have the duty to take joint and separate action in cooperation with the United Nations in accordance with the relevant provisions of the Charter. Furthermore, states should co-operate in the economic, social and cultural fields as well as in the field of science and technology and for the promotion of international cultural and educational progress. States should co-operate in the promotion of economic growth throughout the world, especially that of the developing countries.19 19

ga Resolution 2625 (xxv), 24 October, 1970.

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Goodrich, Hambro and Simons, in their Commentary on the Charter, acknowledged that the United Nations was not intended to have the powers of a government; rather, its function was conceived as that of serving as a means of promoting cooperation between states in finding solutions to common problems and of achieving maximum support from members for the work of the Organization.20 On the legal content of Article 56 of the Charter, Goodrich, Hambro and Simons pointed out that, while the phrase “in cooperation with the Organization,” did not mean that recommendations of un organs become binding, it did mean “that members are obligated to refrain from obstructionist tactics and to cooperate in good faith to achieve the goals specified in Article 55.”21 The Commentary on the Charter of the United Nations edited by Bruno Simma noted that, as far as the protection of human rights is concerned, Article 1(3) had been invoked both with respect to the improvement generally within the United Nations system of the effective enjoyment of human rights and fundamental freedoms and with respect to particular human rights issues and situations.22 The same commentary concluded that Article 56 represented a specification of the obligations of member states set forth in Article 2(2) and Article 55. This specification dealt with the three elements of Article 56: joint action, separate action, and cooperation with the organization regarding the obligations assumed under Article 55. Wolfrum, the author of the Commentary on Article 56 in this volume, agreed with Goodrich, Hambro and Simons, that Article 56 did “require that member states cooperate with the un in a constructive way; obstructive policies are thus excluded.”23 Article 103 of the Charter clarified that in the event of a conflict between the obligations of the Members of the United Nations under the Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail.

20 21 22 23

L. Goodrich, E. Hambro and A. Simons, Charter of the United Nations: Commentary and Documents (New York, London: Columbia University Press, 1969), 35. L. Goodrich, E. Hambro and A. Simons, Charter of the United Nations: Commentary and Documents, Third Edition (New York, London: Columbia University Press, 1969), 381. B. Simma (Ed.), The Charter of the United Nations. A Commentary (Oxford: Oxford University Press, 1985), 55–56. B. Simma (Ed.), The Charter of the United Nations. A Commentary, 794.

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chapter I

International Judicial Organs on International Human Rights Obligations of Member States

The International Court of Justice, collectively and in the opinions of individual judges, has provided helpful clarifications of the legal content of the human rights provisions of the Charter. In an insightful pronouncement in the South West Africa cases of 1966, Judge Jessup noted that “…the standard to be applied by the Court must be of the contemporary international community.”24 In its Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of Genocide, the International Court of Justice (icj) provided important insights into the nature of international human rights treaty obligations that would be applicable to most of the human rights treaties in existence today. The icj, advancing the doctrine of the common interest of all humanity in the observance of international human rights treaty provisions, affirmed: The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as a ‘crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations. The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required ‘in order to liberate mankind from such an odious scourge’ (Preamble of the Convention). The Genocide convention was therefore intended by the General Assembly and by the Contracting Parties to be definitely universal in scope. It was in fact approved on December 9th, 1948 by a resolution which was unanimously adopted by fifty-six States. The objects of such a Convention must also be considered. The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a Convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups, and on the other to confirm and endorse the most elementary principles of 24

Judge P. Jessup, South West Africa cases, icj Reports (1966), pp. 440–441.

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morality. In such a Convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’etre of the Convention. Consequently, in a convention of this type, one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions.25 The International Criminal Tribunal for the Former Yugoslavia (icty) in the case of Kupreskic and others expressed similar views: The absolute nature of most obligations imposed by rules of inter­national humanitarian law reflects the progressive trend towards the so-called ‘humanisation’ of international legal obligations, which refers to the general erosion of the role of reciprocity in the application of inter­ national humanitarian law over the last century. After the First World War, the application of the laws of war moved away from a reliance on reciprocity between belligerents, with the consequence that, in general, rules came to be increasingly applied by each belligerent despite their possible disregard by the enemy. The underpinning of this shift was that it became clear to States that norms of international humanitarian law were not intended to protect State interests; they were primarily designed to benefit individuals qua human beings. Unlike other inter­ national norms, such as those of commercial treaties which can legitimately be based on the protection of reciprocal interests of States, compliance with humanitarian rules could not be made dependent on a reciprocal or corresponding performance of these obligations by other States. This trend marks the translation into legal norms of the ‘categorical imperative’ formulated by Kant in the field of morals: one ought to fulfill an obligation regardless of whether others comply with it or disregard it.26

25 26

icj, Reservations to the Convention on Genocide, Advisory Opinion, 28 May, 1951, icj Reports (1951), p. 15. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, Kupreskic et al. Case No. IT-95-16-T of 14 January, 2000, p. 201.

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The Inter-American Court of Human Rights, in the case of Villagran Morales and others, of 19 November, 1999, declared in respect of the right to life: The right to life is a fundamental human right, and the exercise of this right is essential for the exercise of all other human rights. If it is not respected, all rights lack meaning. Owing to the fundamental nature of the right to life, restrictive approaches to it are inadmissible. In essence, the fundamental right to life includes not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence. States have the obligation to guarantee the creation of the conditions required in order that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.27 The foregoing examples help us give contemporary interpretations to the human rights provisions of the un Charter. On the legal obligation of Member States to respect human rights, Judge Tanaka took the view in the South West Africa cases of 1966, that “…those who pledge themselves to take action in cooperation with the United Nations in respect of the promotion of universal respect for, and observance of, human rights and freedoms, cannot violate, without contradiction, these rights and freedoms. How can one, on the one hand, preach respect for human rights to others and, on the other hand, disclaim for oneself the obligation to respect them. From the provisions of the Charter referring to human rights and fundamental freedoms it can be inferred that the legal obligation to respect human rights is imposed on member States.”28 The International Court of Justice as a whole reasoned in a similar manner in the 1971 Namibia advisory opinion: “Under the Charter of the United Nations, the former mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, 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.”29 27 28 29

Inter-American Court of Human Rights, Villagran Morales et al. Case (the ‘Street Children’ case), Judgment, 19 November, 1999. Judge K. Tanaka, South West Africa cases, icj Reports (1966), p. 290. Ibid, p. 57.

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Furthermore, “…no factual evidence is needed for the purpose of determining whether the policy of apartheid as applied by South Africa in Namibia is in conformity with the international obligations assumed by South Africa under the Charter of the United Nations. In order to determine whether the laws and decrees applied by South Africa in Namibia, which are a matter of public record, constitute a violation of the purposes and principles of the Charter of the United Nations, the question of intent or governmental discretion is not relevant; nor is it necessary to investigate or determine the effects of those measures upon the welfare of the inhabitants.”30 On the content of individual and joint responsibilities, the icj advised in the 2004 Wall case that all States are under an obligation: (1) not to recognize the illegal situation resulting from the construction of the wall. (2) not to render aid or assistance in maintaining the situation created by such construction.31 More specifically, …all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.32 On the existence of jus cogens rights, Judge ad hoc Lauterpacht noted that “… the prohibition of genocide has generally been accepted as having the status not of an ordinary rule of international law but of jus cogens. Indeed, prohibition of genocide has long been regarded as one of the few undoubted examples of jus cogens.”33 On the existence of obligations erga omnes, the icj held in the Barcelona Traction case that “…an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the 30 31

icj Reports (1971), p. 57. Advisory Opinion of 9 July 2004 in the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj Reports (2004), para. 163. 32 Ibid. 33 Judge ad hoc E. Lauterpacht, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), icj Reports (1993), p. 440.

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importance of the rights involved, all States can be held to have a legal interest in their protection: they are obligations erga omnes.”34 On the existence of non-derogable rights, the International Court of Justice affirmed in the Nuclear Weapons case that “…the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not to arbitrarily be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.”35 On the emergence of international customary law, Judge Guillaume, then President of the icj, told the Legal Committee of the un General Assembly in 2002, “…the Court, by characterizing certain conventional obligations as customary ones and then treating such obligations as obligations erga omnes, has sought to impose on all States minimum norms deriving from the elementary considerations of humanity already invoked by the Court in the Corfu Channel case. It has thus given those considerations a specific content. In doing so, it has laid the foundations for a universal customary law which, without challenging conventional law, is binding.”36 The icj, in the Corfu Channel, had recognised the existence of elementary considerations of humanity. It invoked “…certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war:…”37 The icj, in the Hostages advisory opinion, recognized the principles of the Universal Declaration of Human Rights: “Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated 34 35 36

37

Barcelona Traction case, icj Reports (1970), p. 51. Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, icj Reports (1996), p. 240, para. 25. Address of Judge Gilbert Guillaume, President of the International Court of Justice to the Sixth Committee of the un General Assembly on 30 October, 2002, cited in S.R.S. Bedi, The Development of Human Rights Law by the Judges of the International Court of Justice (Hart Publishing, 2007), p. 368. Corfu Channel Case (United Kingdom v. Albania), Judgment of Merits, icj Reports (1949), p. 22.

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in the Universal Declaration of Human Rights.”38 As we saw earlier, the icj forcefully recognized the Charter principle of non-discrimination in its Namibia advisory opinion.39 On the relationship between international human rights law and international humanitarian law in situations of armed conflict, the icj, in its Advisory Opinion in the Wall case, noted that there might be three situations: (1) some rights may be exclusively mattes of international humanitarian law, (2) others may be exclusively matters of human rights law, and (3) yet others may be matters of both these branches of law.40 IV

International Legal Obligations and Domestic Law: From Dualism, Monism, and Coordination, to Responsibility

Dualist doctrine, as summarily presented by Ian Brownlie, “points to the essential differences of international law and municipal law, consisting primarily in the fact that the two systems regulate different subject-matter. International law is a law between sovereign states; municipal law applies within a state and regulates the relations of its citizens with each other and with the executive. On this view, neither legal order has the power to create or alter rules of the other. When municipal law provides that international law applies in whole or in part within the jurisdiction, this is merely the exercise of the authority of municipal law, an adoption or transformation of the rules of international law. In case of a conflict between international law and municipal law the dualist would assume that a municipal court would apply municipal law.”41 Monism, as advocated by the great Sir Hersch Lauterpacht, asserts the supremacy of international law even within the municipal sphere. International law “is seen as the best available moderator of human affairs, and also as a logical condition of the legal existence of states and therefore of the municipal systems of law within the sphere of the legal competence of states.”42 The theory of coordination was advanced, among others, by Sir Gerald Fitzmaurice, a former judge of the International Court of Justice. His view was that international law and municipal law did not come into conflict as systems 38 39 40 41 42

Case Concerning United States Diplomatic and Consular Staff in Tehran, icj Reports (1980), p. 30, para. 62. Ibid, p. 57. icj Reports (2004), p. 178, para. 106. I. Brownlie, Principles of Pubic International Law, Second Edition (1973), pp. 33–34. Ibid, p. 34.

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since they worked in different spheres. Each was supreme in its own field. However, there may be a conflict of obligations, an inability of the State on the domestic plane to act in the manner required by international law; the consequence of this will not be the invalidity of the internal law but the responsibility of the state on the international plane.43 It is our submission that while the two systems of law are essentially interdependent, the theory of coordination does not suffice in the circumstances of our contemporary world. There are areas involving, for example, planetary security, global threats such as terrorism, norms of jus cogens, the prevention of genocide, and fundamental guarantees of human rights, that require norms of municipal law which correspond to international law as a matter of fundamental obligation of the State within the international legal system. This is the doctrine of responsibility: the responsibility to prevent and to protect. In the draft articles on State responsibility which it adopted recently, the International Law Commission included the following provision in Article 3: The characterization of an act of State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law. This article was first proposed by the Commission’s then Special Rapporteur, Roberto Ago and discussed in the Commission in 1973.44 When the article was first discussed in the Commission at its 1209th and 1210th meetings in 1973 the principle contained in it received support from every member of the Commission who took part in the debate: Commissioners Ramangasoavina, Tsuruoka, Yasseen, Kearney, Sette Camara, Hambro, Ushakov, Elias, Vallat, Bartos, Ustor, Castaneda, Tammes, Bilge and Reuter. In drafting the article the Commission followed its own draft on rights and duties of States discussed above, as well as Article 27 of the Vienna Convention on the Law of Treaties, which provides that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” The African Commission on Human and Peoples’ Rights has taken a firm position on the primacy of international human rights law over national law. In a case involving restrictions on freedom of freedom of expression under national law, the Commission underlined that Governments should avoid 43 44

Ibid, p. 36. The article was discussed at the 1209th and 1210th meetings of the Commission in 1973.

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restricting rights, and have special care with regard to those rights protected by constitutional or international human rights law. No situation justified the wholesale violation of human rights. According to Article 9(2) of the African Charter on Human and Peoples’ Rights, dissemination of opinions may be restricted by law. This did not mean, the Commission held, that national law could set aside the right to express and disseminate one’s opinions: To allow national law to have precedence over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.45 v

Jus Cogens Rights and Rights that May Never be Suspended or Abrogated

The concept of peremptory norms of international law is that “certain overriding principles of international law exist, forming a body of jus cogens.”46 Examples cited by Brownlie include the prohibition of aggression, the prohibition of genocide, the principle of racial non-discrimination, crimes against humanity and the rules prohibiting trade in slaves.47 The concept of jus cogens was included by the International Law Commission in its final draft on the law of treaties in 1966. Article 50 of that draft provided that “a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” 45

46 47

Communications 105793, 128/94 and 152/96, Media Rights Agenda and Constitutional Rights Project v. Nigeria. Activity Report 1998–1999, Annex V. See also M. Evans and R. Murray, The African Charter on Human and Peoples’ Rights. The System in Practice, 1986–2000 (Cambridge, Cambridge University Press), p. 7. See generally, C. Thomas, M. Oelz and S. Beaudonnet, “The use of international labour law in domestic courts: Theory, jurisprudence and practical implications,” in ilo, Les normes internationales du travail: un patrimoine pour l’lavenir (Geneva: ilo, 2004), pp. 249–286. Brownlie, Second Edition, op. cit., p. 499. Ibid, p. 500.

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The Vienna Convention on the Law of Treaties defined a peremptory norm as “a norm accepted and recognized by the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Authoritative bodies of the international community have provided some guidance as to what norms of jus cogens are. In the Barcelona Traction case (Second Phase), the majority judgment of the International Court of Justice, supported by twelve judges, drew a distinction between obligations of a State arising vis-à-vis another State and obligations ‘towards the international community as a whole’. The Court said: Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and discrimination.48 In our submission, the domestic law of every Member State must incorporate peremptory norms of international law or norms of jus cogens. Under no circumstances should any Member State or its agents, including its courts, act at variance with peremptory norms of international law. There is a fundamental duty of care on the part of governments as well as their courts to be in compliance with such norms and to take special care not to act at variance with them. The European Court of Human Rights, in the Al-Adsani case of 21 November, 2001 affirmed the peremptory character of the prohibition of torture.49 The Inter-American Commission of Human Rights invoked the existence of jus cogens obligations in international human rights treaty law in the case of Michael Domingues, which dealt with the issue whether the death penalty could be carried out on someone who was below the age of 18 at the time of the commission of the offence. The Court declared: It has been proved that this norm has been recognized as a norm with sufficiently inalienable character as to constitute a jus cogens norm, evolution foreseen by the Commission in its Roach and Pinkerton decisions. As was pointed out, almost all the States have rejected the imposition of the death penalty to persons under 18 years, in its more explicit form through the ratification of the ccpr, the crc and the American Convention, treaties in which this proscription was recognized 48 49

icj Reports (1970), 3 at p. 32. Al-Adsani v. United Kingdom, Judgment of 5 November, 2001, 34 ehrr 273.

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as non-derogable. The acceptance of this norm covers the political and ideological frontiers and the attempts to run away from these norms have been strongly condemned by members of the international community as non-permissible according to contemporaneous norms of human rights…. Under this basis, the Commission considers that the United States is bound by a norm of jus cogens not to impose the death penalty to persons who had under 18 years at the moment of the commission of a felony. As a norm of jus cogens, this proscription obligates the international community, including the United States. The norm cannot be validly derogated whether by treaty or objection of a State, persistent or not.50 VI

Norms of International Customary Law

There is much case-law on this issue. We shall here call upon R. v. Hape,51 in which the Supreme Court of Canada provided important guidance on the place of international customary law in the domestic law of States, in this particular instance, Canada. The Supreme Court held that international custom, as the law of nations, was also the law of Canada unless, in a valid exercise of its sovereignty, Canada declared that its law was to the contrary.”52 In the assessment of Glen Linder: The majority also appears to endorse the view that if the rule of customary international law changes, so too will domestic law. Apparently endorsing the relevant passage from Lord Denning’s landmark judgment in Trendtex53 our highest court has now clarified that even where a common law precedent exists that is contrary to a newer customary international law rule, courts must follow the customary international law rule, and not the inconsistent common law precedent.54 If the legislature wishes to enact legislation that is inconsistent with international law, the majority held that there must be ‘unequivocal legislative intent to default on an international obligation’ 50

cidh, Case of Michael Domingues v. United States, Report 62/02, Case 12, 285 of 22 October, 2001. Annual Report of the Inter-American Commission, 2002. 51 (2007), scc 26. 52 Ibid, paras. 37–39. 53 Trendtex Trading Corp v. Central Bank of Nigeria (1977) 1 Q.B. 529. 54 Canadian Council on International Law, Case Comment, R.V. Hape, Accessible at http:// www.ccil-ccdi.ca/images/stories/ccil-hape-comment-070917.pdf.

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There is also respectable Commonwealth precedent for the proposition that, where there is uncertainty, international law may be used in ascertaining the meaning of national legislation, for example in the interpretation of human rights and fundamental freedoms.55 VII

Mandatory Decisions of the United Nations Security Council

Under Article 24, paragraph 1 of the United Nations Charter, Members of the United Nations, in order to ensure prompt and effective action by the United Nations, confer on the Security Council primary responsibility for the maintenance of international peace and security and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. The International Court of Justice, in the Expenses Case and the ‘Wall Case’, took the view that since, under Article 24 of the United Nations Charter, the Security Council had the primary responsibility for the maintenance of international peace and security, it could, in that regard impose on States ‘an explicit obligation of compliance if for example it issues an order or command…under Chapter VII’ of the Charter. The Council could, to that end, ‘require enforcement by coercive action’.56 Professor Ian Brownlie pointed out that “When competent organs of the United Nations make a binding determination that a situation is illegal, the states which are addressees of the resolution or resolutions concerned are under an obligation to bring that situation to an end.”57 According to Article 43 of the Charter, all Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. The mandatory decisions of the Security Council on anti-terrorism measures, adopted under Chapter VII of the Charter, provide solid examples of actions required by Member States within their national legal orders. 55

56 57

Michael Kirby, “The Road From Bangalore: The First Ten Years Of The Bangalore Principles On The Domestic Application Of International Human Rights Norms,” Speech to High Court of Australia. Available at: http://www.hcourt.gov.au/assets/publications/speeches/ former-justices/kirbyj/kirbyj_bang11.htm; and Michael Kirby, “The Impact of International Human Rights Norms: ‘A Law Undergoing Evolution’” (1995), 25 Western Australian Law Rev 130. See also the Bangalore Principles on the Domestic Application of Human Rights Norms. Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion of 20 July, 1962, icj Reports (1962), p. 163. Wall Opinion, para. 26. Brownlie, op. cit., Second Edition, p. 504.

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The Responsibility to Prevent and to Protect

The report of the International Commission on Intervention and State Sover­ eignty launched the concept of the responsibility to protect.58 In the Commi­ ssion’s view, the responsibility to protect embraced three specific responsibilities: the responsibility to prevent, namely, to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk; the responsibility to react, namely, to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention; the responsibility to rebuild, namely, to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert. The Commission was firm in its view that prevention was the single most important dimension of the responsibility to protect. Prevention options should always be exhausted before intervention was contemplated, and more commitment and resources must be devoted to it. The exercise of the responsibility to prevent and react should always involve less intrusive and coercive measures before more coercive and intrusive ones are applied. The United Nations Summit of world leaders, meeting to mark the organizations 60th anniversary in 2005 endorsed the responsibility to protect and declared their readiness, if need be, to refer to the un Security Council for its attention situations of genocide, ethnic cleansing, crimes against humanity and war crimes. It would be our submission that the national legal order of every country must provide adequate and effective guarantees against genocide, ethnic cleansing, crimes against humanity, and war crimes. IX

Obligations under International Human Rights Conventions59

What are the legal consequences of a state becoming a party to an international human rights convention? The Human Rights Committee, which 58

59

International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001. See also The Responsibility to Protect: Research, Bibliography, Background, December, 2001. Professor John Humphrey, one of the drafters of the Universal Declaration of Human Rights, had proposed that « The provisions of the International Bill of Rights shall be deemed fundamental principles of International Law and of the national law of every member state of the United Nations. »

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f­unctions under the International Covenant on Civil and Political Rights, has adopted a series of ‘General Comments’ spelling out the obligations of states. General Comment No 31/80 of 29 March 2004, although based on the Covenant, are reflective of the general obligations of a State Party to a human rights treaty. The Human Rights Committee recalled the legal obligations of States Parties under Article 2 of the Covenant under which, among other things, each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Human Rights Committee observed that while Article 2 is couched in terms of the obligations of States Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a un Charter obligation to promote universal respect for and observance of human rights and fundamental freedoms.’ It noted that a general obligation is imposed on States Parties to respect the Covenant rights and to ensure them to all individuals in their territory and subject to their jurisdiction. Pursuant to the principle articulated in Article 26 of the Vienna Convention on the Law of Treaties, States Parties are required to give effect to their obligations under the Covenant in good faith. The obligations in the Covenant in general and under Article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party. This understanding flows directly from the principle contained in Article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The obligation to respect and to ensure the rights recognized in the Covenant has immediate effect for all States Parties. Reservations to Article 2 would be incompatible with the covenant when considered in the light of its objects and purposes. The legal obligation under Article 2, paragraph 1, is both negative and positive in nature. States parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, states must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in

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order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right. Article 2 of the Covenant requires that States Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfill their legal obligations. The Committee believes that it is important to raise levels of awareness about the Covenant not only among public officials and state agents but also among the population at large. The positive obligations on States Parties to ensure Covenant rights will only be discharged if individuals are protected by the state not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by Article 2 would give rise to violations by States Parties of those rights as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. The beneficiaries of the rights recognized by the Covenant are individuals. Although, with the exception of Article 1 (the right of self-determination), the Covenant does not mention the rights of legal persons or similar entities or collectivities, many of the rights recognized by the Covenant may be enjoyed in community with others. States parties are required by Article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. The enjoyment of Covenant rights is not limited to citizens of States Parties, but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation. The Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be

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specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive. The Article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. Article 2, paragraph 2 of the Covenant requires that States Parties take the necessary steps to give effect to the Covenant rights in the domestic order. It follows that, unless the Covenant’s rights are already protected by their domestic law or practices, States Parties are required on ratification to make such changes to domestic laws and practices as are necessary to ensure their conformity with the Covenant. Where there are inconsistencies between domestic law and the Covenant, Article 2 requires that the domestic law or practice be changed to meet the standards required by the Covenant’s substantive guarantees. Article 2 allows a State Party to pursue this in accordance with its own domestic constitutional structure and accordingly does not require that the Covenant be directly applicable in the courts by incorporation of the Covenant into national laws. The Committee takes the view, however, that Covenant guarantees may receive enhanced protection in those states where the Covenant is automatically or through specific incorporation part of the domestic legal order. The Committee invited those States Parties in which the Covenant does not form part of the domestic legal order to consider incorporation of the Covenant to render it part of domestic law to facilitate full realization of Covenant rights as required by Article 2. The requirement under Article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the state. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States Parties establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law.

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The Human Rights Committee noted that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy. Article 2, paragraph 3 of the Covenant requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of Article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by Articles 9, paragraph 5, and Article 14, paragraph 6, the Committee considers that the Covenant generally, entails appropriate compensation. The Committee noted that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations. In general, the purposes of the Covenant would be defeated without an obligation integral to Article 2 to take measures to prevent a recurrence of a violation of the Covenant. Accordingly, it has been a frequent practice of the Committee, in its consideration of individual petitions, to include in its Views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State Party’s laws or practices. Where investigations reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (Article 7), summary and arbitrary killing (Article 6) and enforced disappearance (Articles 7 and 9 and frequently 6). Indeed, the problem of impunity for these violations, a matter of sustained

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concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (Rome Statute of the icc, Article 7). Accordingly, where public officials or state agents have committed violations of the Covenant rights just referred to, the States Parties concerned may not relieve perpetrators from personal responsibility. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. Other impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. States Parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law. The Committee further took the view that the right to an effective remedy may in certain circumstances require States Parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations. General Comment 31 is a magisterial summary of the idea of international obligation under international human rights treaties. It represents, in many respects, the heart of international human rights law. Its principles are applicable, subject to textual variations, to human rights treaties in general. Conclusion In light of the foregoing discussion, we may conclude that while international law and municipal law remain interdependent spheres, international law imposes upon Governments a number of obligations as regards their domestic law. The principle of self-determination indicates that it is for each people to define its own constitutional order in free choice. Freedom under democratic constitutional rule is increasingly claimed by peoples the world over. The principles of freedom and of free constitutional choice are our starting points. However, in an age of globalisation and global threats and challenges, and as a matter of hard law, we think it important to insist on the following propositions: 1.

National constitutional orders must integrate the principle of international cooperation in good faith with the competent organs of the United

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2. 3. 4.

5. 6.

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Nations in addressing global threats and in acting for the prevention of crises and conflicts. Municipal law must provide for adequate and effective safeguards for planetary security, protection of the environment and protection against genocide, ethnic cleansing, war crimes and crimes against humanity. Municipal law must incorporate international norms of jus cogens and a government is internationally responsible if it fails to ensure that this is the case. National constitutional and legal orders must respect and require respect for norms of international customary law. Municipal law must incorporate fundamental guarantees of respect for the human rights and fundamental freedoms consistent with international customary norms of human rights. Where a state fails to ensure that this is so, it is internationally responsible. Where ordered by the Security Council acting under Chapter VII of the Charter, municipal law must include legislation prohibiting internationally wrongful acts. National constitutional orders should demonstrate respect for the principles of the responsibility to protect and of justice, at least in respect of genocide, ethnic cleansing, crimes against humanity and war crimes.

In the next chapter we make the case for human rights as a core part of international constitutional law.

Chapter II

Human Rights as International Constitutional Law

Introduction

In the previous chapter we set out the modern human rights law of the Charter that should guide the Human Rights Council. In this chapter we go one step further and argue that human rights are part of international constitutional law and that the Council must help advance this concept as well. In its edition of 15/16 February, 2014, the Financial Times, under the title ‘The World in 2114’, serialised three extracts from a recent book, “In 100 years: Leading Economists Predict the Future, edited by Ignacio Palacios-Huerta and published by mit Press.60 The Financial Times gave its article the banner highlight “… In 100 Years, economists predict that geo-engineering, performance drugs and artificial intelligence will shape our future.” In his article, Professor Martin Weitzman, Professor of Economics at Harvard University, noted that there are several possible forms of purposeful geo-­ engineering including one that would offer a quick-fix to the problem of increasing temperatures. This is to create a ‘space sunshade’ by shooting reflective particles into the stratosphere that block out a small but significant fraction of incoming solar radiation. He encourages further study of this option, remarking that ‘The temptation may become very great for a nation to unilaterally engineer the planet out of high temperatures’.61 Nobel Laureate in economics, Alvin Roth, Professor of Economics at Stanford University, wrote that the biggest trend of the future history is that the world economy will keep growing and becoming more connected. Material prosperity will increase and healthy longevity will rise. Some people will opt for slower track living while, for others who wish to compete, there will be technological developments to help them. Families will remain one of the main “units of production – certainly of children – and of consumption of all sorts of household goods and comforts. Some of the big changes to medicine will be technological. Selecting the genetic characteristics of our children will become widely available and tempting.”62

60 61 62

Cambridge, Mass., 2014. Financial Times, 15/16 February, 2014, p. 7. Financial Times, 15/16 February, 2014, p. 7.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004289031_004

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Another Nobel Laureate in economics, Robert Shiller, Professor of Economics at Yale University, wrote that the next century carries with it any number of risks as an unprecedented number of people attempt to live well on a planet with limited resources, with more dangerous strategic weapons of mass destruction, and with the flourishing of new information technologies that stir up labour markets and create career risks. Whether it comes sooner or later, an important consequence of artificial intelligence will be a long trend towards unification of global culture. “Artificial intelligence will take us on a long trend towards unification of global culture.” There is likely to develop a cosmopolitan culture of the people most connected with artificial intelligence, a sort of world elite who, by their constant communications, will tend to develop some loyalties to each other rather than to their neighbours, while billions of others will form a worldwide string of ghettoes!63 Even among the elite, the globalisation of culture will not be complete, and there will still be ancient national and traditional ethnic and religious rivalries and the potential for war. But there will be no central authority to be in control of all of these processes that create risks for individuals and for larger society. ‘We must approach all these risks with all of the new kinds of risk management functions that we can invent’.64 In what can we anchor the world that is coming? It must be, in our submission, the anchor of international human rights. Hence the importance of human rights as the core of international constitutional law. The case for human rights norms as the core of international constitutional law is buttressed by the evolving threats and challenges facing human kind and the need for new political and legal thinking. We address these two issues before entering into a discussion of human rights as international constitutional law. i

Threats and Challenges

We are living in a time when the Earth and humanity are under threats never before experienced in human history. The historian Ian Morris, in his widely acclaimed book, Why the West Rules – For Now: The Patterns of History and What They Reveal About the Future,65 argues that “The great question for our times is…whether humanity as a whole will break through to an entirely new 63 Robert Schiller, Ibid. 64 Idem. 65 Ian Morris, Why the West Rules – For Now: The Patterns of History and What They Reveal About the Future (Profile Books, 2010).

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kind of existence before disaster strikes us down permanently.” In the twentyfirst century social development promises – or threatens- to rise so high that it will change what biology and sociology can do. We are approaching the greatest discontinuity in history. He recalled that the inventor and futurist Ray Kurzweil had introduced the concept of the Singularity – “a future period during which the pace of technological change will be so rapid, its impact so deep…that technology appears to be expanding at infinite speed.” By about 2045, Kurzweil estimated, computers would be able to host all the minds in the world, effectively merging carbon- and silicon-based intelligence into a single global consciousness. This will be the Singularity. We will transcend biology, evolving into a new, merged being as far ahead of Homo sapiens as a contemporary human is of the individual cells that merged to create her/ his body. While all of this is taking place, the five horsemen of the apocalypse all seem to be back: climate change, famine, state failure, migration, and disease. Morris thinks that there are many possible paths that our future might follow, but however much they wind around, most seem to lead ultimately to the same place, Nightfall: Nuclear Armageddon. The twenty-first century is going to be a race. In one lane is some sort of Singularity; in the other, Nightfall. One will win and one will lose. There will be no silver medal. Either we will soon (perhaps before 2050) begin a transformation even more profound than the industrial revolution, which may make most of our current problems irrelevant, or we will stagger into a collapse like no other. This means that the next forty years will be the most important in history. What the world needs to do to prevent Nightfall is not really a mystery. The top priority is to avoid all-out nuclear war, and the way to do that is for the great powers to reduce their nuclear arsenals. The second priority is to slow down ‘global wierding’ (the fate of Kyoto etc.). Here things are going less well. The most effective way to hold back Nightfall for another forty years may be by enmeshing states more deeply with non-state organizations, getting governments to surrender some of their sovereignty in return for solutions that they might be unable to reach independently. In the twenty-first century we must, first, restructure political geography to make room for the kinds of global institutions that might slow down war and global weirding; then we must use the time that buys to carry out a new revolution in energy capture, shattering the fossil-fuel ceiling. Carrying on burning oil and coal like we did in the twentieth century will bring on Nightfall even before the hydrocarbons run out. For the Singularity to win, we need to keep the dogs of war on a leash, manage global weirding, and see through a revolution in energy capture. Everything has to go right. For Nightfall to win only one thing needs go wrong. The odds look bad.

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As we set course to deal with the challenges that Morris presents, we need to recall that the United Nations’ universal norms on human rights represent the best thinking of humanity at the present stage of its development about how each person should live his or her life, and about how communities should coexist and cooperate nationally and internationally. Governing the World, is another important new book, by Professor Mark Mazower of Columbia University, published by Penguin in 2012, which has many insights that are sobering. We are, Mazower thinks, living in a time of extreme confusion about the purpose and durability of international institutions. We have moved from an era that had faith in the idea of international institutions to one that has lost it. While internationalism originated as an expression of Western political philosophies and Great Power needs, “it is clearly now moving beyond that into something much more multicentered and fissiparious.” “Today our very vocabulary for understanding where we stand in the world is hostage to confused thought and poorly articulated premises. What is ‘governance’? Who speaks for ‘civil society’? Is there such a thing as an ngo?”66 He considers that the institutions of international governance stand in urgent need of renovation. “Yet the fundamental nineteenth century insight that effective internationalism rests on effective nationalism remains pertinent.” Now we are on the verge of a new era, and as Western predominance approaches an end, there is much hand-wringing. But the mere fact that some states are gaining strength as others lose it says little. China, for example, has much to gain and little of any consequence to lose from participating in a system designed to favour leading nations. Like any great power, it will use these institutions to further its own ends, but like its predecessors, it will not always prevail. There is no need to think that the shift in the global balance need of itself mark the end of the international institutions established in the AngloAmerican ascendancy. The rising powers, China above all, have little liking for the imf, at least in its older incarnation, and attach much greater importance to the idea of preserving sovereignty and some space for domestic political discretion. If their influence grows, the institutions the United States created may be brought back under new direction to the principles that originally animated them. A broader array of voices and perspectives will enrich the rather rigid forms of economic thinking that have predominated since the 1970s.

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Mark Mazower, Governing the World: The Rise and Fall of and Idea 1815 to the Present (Penguin Press hc, 2012).

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Getting the institutional architecture right will require fundamental change. In the current crisis, politicians have essentially acted as underwriters, essential but subordinate to the dictates of communities of financial market makers they hesitate to contradict. More generally, the politicians have become policymakers who listen in the first place to private interests and their lobbyists and try to adjudicate among them. Time will show whether they are any longer capable of governing. Twentieth century total wars had been fought by states that had mobilized entire societies around shared perils and experiences, and, by creating models of equity, solidarity and sacrifice, they had transformed public attitudes in ways that had endured into peacetime. ‘Without a comparable transformation in our own views about the nature of government, the public good and the role of the state, without our developing a new kind of faith in our own collective capacity to shape the future, there is no real incentive for our politicians to change’. To the nineteenth century internationalists, the future had conjured up a new dispensation for mankind, a dispensation they had looked up to with a confidence based upon their control over the universe of facts. Hence Bentham’s vision of a perfect system of law that depended on the accumulation of all useful knowledge. To twentieth century institution builders the future could be planned and tackled with foresight on behalf of entire communities and nations, perhaps even for the world as a whole. Today, “where the primacy of the fact is challenged by the Web,” the future, more important than ever, has been privatized, monetized, and turned into a source of profit. An entire corporate sector is dedicated to commodifying and modelling it. Our financial markets in general take the future as the determinant of present values in a way that simply was not true a century ago. This money-driven individualistic future has crowded out an older vision of what the public good might look like. In the ongoing atomisation of society, citizens and classes have both vanished as forces for change and given way to a world of individuals, who come together as consumer of goods or information and who trust the Internet more than they do their political representatives or the experts they watch on television. Governing institutions today have lost sight of the principle of politics rooted in the collective values of a res publica, even as they continue to defend the “civilization of capital.” Professor Mazower concludes: “As for the rituals of international life, these are now well-established. The world’s heads of state flock annually to the un General Assembly. There are discussions of reform and grandiose declarations of global targets, and businessmen make their pilgrimage to Davos, seeking to

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confirm through this triumph of corporate sponsorship that a global ruling elite exists and that they belong to it. Our representatives continue to hand over power to experts and self-interested self-regulators in the name of efficient global governance while a sceptical and alienated public looks on. The idea of governing the world is becoming yesterday’s dream”! Again, we need the anchor of human rights even as we search for new political thinking. II

The Need for New Political Thinking

In his highly regarded book, Western Political Theory in Face of the Future, Professor Dunn laments, “We palpably do not know what we are doing.”67 In October, 2013 Oxford University’s Oxford Martin Commission for Future Generations published a report calling for a radical shake-up to deliver progress on climate change, reduce economic inequality, improve corporate practices and address the chronic burden of disease. Its recommendations included the creation of a coalition to counteract climate change, to fight communicable disease, end discrimination against future generations by revising discounting methods and adjusting them to take account of the uncertainties, risks and ethical implications for the long-term.68 Professor Ian Goldin, Director of the Oxford Martin School and Vice-Chair of the Commission said on the launching of the report: “Failure to address long-term issues exposes current generations to unacceptable instability and risk; it threatens our ability to build a sustainable, inclusive and resilient future for all.” For a number of years, Professor Andrew Dobson has been making the case for new political thinking. He advocates ‘Ecologism’, which makes the Earth as physical object the very foundation-stone of political intellectual edifice, arguing that its finitude is the basic reason why infinite population and economic growth are impossible and why, consequently, profound changes in our social and political behaviour need to take place. Political ecologists stress that consumption of material goods by individuals in ‘advanced industrial countries’ should be reduced, and that human needs are not best satisfied by continued economic growth as we understand it today. What sets ecologism apart from political ideologies such as liberalism, conservatism, and socialism, Dobson contends, is its focus on the relationship between human beings and the non-human natural world. No other modern 67 68

John Dunn, Western Political Theory in Face of the Future (Cambridge, cup, 1979). Oxford Martin School, Oxford University, “Now for the Long Term. The Report of the Oxford Martin Commission for Future Generations,” 16 October, 2013.

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political ideology, it is contended, has this concern. There are three principal thoughts related to the limits to growth thesis that have come to be of prime importance to the radical green position. They are: first, that technological solutions (i.e. solutions formulated within the bounds of present economic, social and political practices) will not in themselves bring about a sustainable society; second, that the rapid rates of growth aimed for (and often achieved) by the industrialised and industrialising societies have an exponential character, which means that dangers stored up over a relatively long period of time can very suddenly have a catastrophic effect; and third, that the interaction of problems caused by growth means that such problems cannot be dealt with in isolation – i.e. solving one problem does not solve the rest, and may even exacerbate them. A central question is whether a sustainable society can be brought about through the use of existing state institutions and political ideologies. Liberalism, it is argued, does not provide an answer, since the guiding idea of political ecology is that this is an ecological place rather than an evolutionary place. With the restoration of the ecological idea in politics, battle with the evolutionary view of political progress (liberalism) has once again been joined. Conservatism, it is contended, is interested in conserving and preserving the past whereas ecologism is interested in conserving and preserving for the future. Herein lies a signal difference between the conservative and ecological political imaginations. Socialism, for its part, he adds, identifies capitalism as the source of the ills of contemporary society. Political ecologists are much more likely to refer to ‘industrialism’ as the problem. One of the reasons the green movement considers itself to be “beyond left and right” is because it believes the traditional spectrum of opposition between socialism and capitalism to be inscribed in a more fundamental context of agreement: a ‘super-ideology’ called ‘industrialism’. Ecologists stress the similarities between capitalist and socialist countries in that they are both considered to believe that the needs of their respective populations are best satisfied by maximizing economic growth. Ecologism envisages a postindustrial future that is quite distinct from that with which we are most generally acquainted. While most post-industrial futures revolve around highgrowth, high-­technology, expanding services, greater leisure, and satisfaction conceived in material terms, ecologism’s post-industrial society questions growth and technology, and suggests that the Good Life will involve more work and fewer material objects. Fundamentally, ecologism takes seriously the universal condition of the finitude of the planet and asks what kinds of political, economic and social practices are possible and desirable.69 69

A. Dobson, Green Political Theory (Routledge, 2007).

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Professor Gregory Claeys, Professor of the History of Political Thought at the University of London and a prolific writer on political ideas has argued that we need a new political theory in which we create a new notion of the common good built on the preservation of the natural world. We need to create rights of nature, e.g. forests and animals, that proscribe undue exploitation such as overfishing or destruction of the rain forests. We need a new contract theory, revising our notion of a social contract built on the preservation of individual rights in light of the need to make preservation of the natural world a key priority. Our priority must be for the protection of nature as well as human beings. Popular sovereignty, he continues, is not, as such, the highest good but our collective survival is. We need to persuade the majority of this. Market theory should not be decisive. Rebuilding the forests, replenishing fish stocks, reducing pollution and creating alternative energy forms all can involve markets, and can be made profitable where the public provides financial incentives to develop such resources and penalties for those who continue the process of exploitation. Overpopulation, he adds, is such a central part of the green argument that we must necessarily combat any ideology, secular or religious, that either deliberately or incidentally promotes large families. We must construct a new vision of the future. In this regard, the triumphalist cry of victory by the free market ideal over central planning may be misplaced and premature. We have, he laments, virtually no models of international organizations upon which to try to imagine the implementation of such policies. We must be ready to deal with the growing wars over scarce resources, notably water and arable land; the movement of large populations seeking such resources, and the conflicts again that would ensue in such a case. The longer we wait to act, the more difficult will be the solution and the less likely the success. We can achieve utopia, but we will have to work hard for it. What will arrive if we do nothing is too unpleasant to contemplate further.70 As we contemplate such strands of new political thinking, human rights must remain our anchor and we must strive for human rights strategies of governance. III

Human Rights Strategies of Governance

We think that human rights strategies of governance offer a way of addressing  the new threats and challenges in a manner consistent with respect for the  integrity, dignity and rights of individuals, groups, and peoples. The 70

Professor Claeys advances these views in his course on Modern Political Ideas offered in the International Programme of the University of London.

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International Bill of Human Rights, consisting of the Universal Declaration and the two International Covenants, prescribes core standards of human rights for the conduct of governance in all countries, and the Universal Periodic Review process watches over the way in which each government is giving effect to its human rights obligations. The rights in the International Covenant on Civil and Political rights are to be respected and protected immediately. This also applies to some economic, social and cultural rights, particularly the right not to be discriminated against. In respect of other rights in the International Covenant on Economic, Social and Cultural Rights, Governments are to take measures in good faith to implement them progressively in light of the resources available and with the benefit of international cooperation. By taking the rights in the Universal Declaration and in the two International Covenants as their point of departure Governments can pursue policies and strategies of governance hat are best calculated to meet the needs of the twenty-first century and to anchor the future political society in the integrity, dignity and freedom of individuals, groups, and peoples. Human Rights strategies of governance involve recognizing: – The supremacy of international human rights law over national law – Organs of society nationally, regionally, and internationally, must cooperate in good faith to prevent threats to the existence and security of human kind and the planet – Governance in every country of the world must be in accordance with the principles of the Universal Declaration of Human Rights and human rights norms binding upon all governments. – Regional organizations everywhere must recognize as an inherent part of their mandate to protect human rights recognized in universal and regional norms. – International organizations everywhere must recognize as an inherent part of their mandate to protect human rights recognized in universal norms. The un Security Council must respect human rights norms in the course of its work and must act for the protection of human rights in situations or on issues engaging its attention. – Core norms of international human rights law, particularly norms of jus cogens, must be reflected in the constitution of every Member State of the United Nations. It is in light of this reasoning that the place of human rights in international constitutional law becomes so important.

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IV

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International Constitutional Law

As part of future-oriented policy and legal thinking I want to argue for human rights as international constitutional law. To do so, I need to address some gateway issues: Is international human rights law an independent system or is it part of international law. Jan Klabbers, one of the authors of a recent book, The Constitutionalization of International Law, thinks that “international human rights law has become a more or less self-contained system.”71 On the other hand, the late Professor Ian Brownlie, in his Principles of Public International Law, frowned on ‘international human rights law’ and saw the international law of human rights as part of overall international law. The next gateway issue I need to address is whether there is such a thing as international constitutional law, or the constitutionalisation of international law. The late Professors Ronald St. J Macdonald and Douglas M. Johnston championed the idea that the un Charter is international constitutional law. Professor Johnston wrote: “… (M)odern international law can be envisioned idealistically, in ethical and institutional terms, as a collective effort to achieve universal order through the development of constitutional structure and procedure among nations.”72 Prof. Johnston considered that “The international law of human rights is the ethical core of world constitutionalism. It is now the focus of numerous monitoring organizations around the world and of several international tribunals.”73 Macdonald and Morris considered that the world is no longer governable entirely by resort to the classical system of international law. Even more seriously, it seemed that the Purposes and Principles of the United Nations Charter were no longer being served sufficiently in light of new concerns. The text adopted in 1945 did not convey the image of a world tormented by terrorists. Nor did it reflect the most pressing commitments of our time: to democratic governance, to environmental responsibility, and to a freer and more equitable system of world trade. Increasingly the international law community acknowledges the need to set new priorities in the development of international law. To this end, they thought it timely to consider the case for strengthening the constitutional framework of norms and institutions established in the second half of the 20th century. The post-Cold War euphoria of the 1990s had virtually evaporated under the stress of new concerns at a time when states comprising the un system were no longer capable of addressing these challenges. They 71 72 73

J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalization of International Law (Oxford University Press, 2009), p. 2. R. St. J. Macdonald and D.M. Johnson, Towards World Constitutionalism (Martinus Nijhoff Publishers, 2005), p. 15. Ibid, p. 19, note 33.

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therefore presented their book, Towards World Constitutionalism, to argue the case for a more ‘constitutionalised’ system of international law and diplomacy. Human rights must be at the core of such an order. V

Human Rights as the Core of International Constitutional Law

The academic world has been probing issues touching on human rights and international constitutional law for some time. In 1987, the Akron Law Review carried the Proceedings of a Symposium held at the School of Law on 13 November, 1986 on “Human Rights as Comparative Constitutional Law.”74 The International Academy of Constitutional Law, Tunis, published in 2000 a volume, Constitution et Droit International, which carried learned presentations on this topic, including by former un Secretary-General Boutros BoutrosGhali.75 More recently a conference was held in France, and the proceedings published under the title, “Les droits de l’homme: ont-il constitutionalisé le monde? Participants referred to elements that might be considered constitutionalisation but, on the whole, left the matter open for the time being.76 Jan Klabbers himself recognizes, that ‘constitutionalisation and constitutionalism themselves are controversial notions’77 I want to side-step the issue of the constitutionalisation of international law as a broader process. I intend to submit that The International Bill of Human Rights, which consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, Cultural Rights contain norms of international constitutional law of our world.78 How can I support this submission? To begin with, we need to distil our understanding of what we mean by international constitutional law? They embrace those norms of public international law that regulate the governance of the world community nationally, regionally and internationally. Human rights are a part of international constitutional law. There are other parts dealing, for example, with issues of international security, for example Chapters 6 74

Human Rights as Comparative Constitutional Law, in Jacob W.F. Sundberg (Ed.), Akron Law Review, Vol. 20, No. 4, (Spring 1987). 75 International Academy of Constitutional Law, Tunis, Recueil des Cours, Vol. 8 (Constitution et Droit International, 2000). 76 Stephanie Hennette-Vauchez et Jean-Marc Sorel (Eds.), Les droits de l’homme ont-ils constitutionnalise le monde? (Bruxelles, Bruylant, 2011). 77 P. 6. 78 See, generally, B.G. Ramcharan, “The Legal Status of the International Bill of Human Rights,” 55 Nordic Journal of International Law (1986), pp. 366–383.

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and 7 of the un Charter. The essential rationale of international constitutional law is: to highlight structures and strategies of governance nationally, regionally and internationally. The sources of international law, as is well known, include: treaties, custom, and general principles of law, and judges and renowned publicists can help us clarify what the law is in cases of doubt. Treaties contain contractual obligations that may grow into international customary law. International customary law might further rise into norms of jus cogens. I cannot make the case that the Universal Declaration and the two international covenants as a whole represent international customary law or norms of jus cogens, although particular provisions might well do so. In identifying constitutional norms of international human rights law, the protection of humanity and human life must be our starting point. This raises issues of the right to life. The sustainability of life must be our next principle, raising issues of sustainable development and the right to development. The protection of endangered human species is the next principle, raising issues of the rights of minorities and indigenous populations. Cooperation and dialogue must be our next principle, raising rights issues such as the duty to cooperate in good faith. The principle of humanity, a core tenet of international law provides an indispensable foundation for us to build on. The prohibitions of state violence such as torture are likewise foundation elements. So are: freedom of conscience and belief; freedom of opinion and expression; the Responsibility to Protect; norms of jus cogens; and the principle of equality. The opening article of the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and should act towards one another in a spirit of brotherhood or sisterhood. In the Charter of the United Nations all Member States committed themselves to upholding human rights and fundamental freedoms at home, without discrimination, and to cooperate for their realization in all countries. The United Nations proclaimed the Universal Declaration of Human Rights as a common standard of achievement for all peoples. The Universal Declaration affirms that the will of the people shall be the basis of the authority of governments. Spelling out the content of the Universal Declaration in greater detail, a series of international covenants or treaties has been accepted by Member States containing obligations of result or of conduct. The International Convention on the Rights of the Child has been ratified or acceded to by 193 Member States, the iccpr by 167 States. There is a solid body of jurisprudence from human rights treaty bodies and from other authoritative sources on the content of human rights obligations. Under various treaties there are reporting procedures, petitions procedures,

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and some inter-state complaint procedures. Under the Universal Periodic Review process, which began in 2008 every Member State comes before the Human Rights Council once every four and a half years to explain what it is doing to implement its human rights obligations under the various international human rights instruments. Experiences are shared and recommendations offered and sometimes accepted and implemented. The Vienna World conference on human rights, 1993, affirmed that the universality of human rights is beyond question. In the Millennium Declaration, the leaders of the world committed themselves to specified human rights values to guide their conduct in the twenty-first century. In the World Summit outcome document of 2005, Heads of State and Government reaffirmed “that our fundamental values, including freedom, equality, solidarity, tolerance, respect for all human rights, respect for nature and shared responsibility, are essential to international relations.” In the same World Summit outcome document, world leaders declared the following: “We recommit ourselves to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations…” They further reaffirmed “the solemn commitment of our States to fulfill their obligations to promote universal respect for and the observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law. The universal nature of these rights is beyond question.” The world leaders affirmed that each individual State has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.” We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.” We have seen earlier, above, that the world leaders in affirming the universality of human rights and the obligations of governments, invoked the Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law. The Declaration on Principles of Inter­ national Law and Friendly Relations among States of 1970, codified the human rights obligations of Member States of the un under the un Charter. Every State, under international law, has specific legal obligations under: norms of jus cogens, norms of international customary law, norms under general principles

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law common to the major legal systems, and under particular treaties that they have subscribed to. The key question to be asked in a discussion of human rights as international constitutional law is the following: If Governments have repeatedly proclaimed these legal and policy commitments are they not under an obligation to make them part of their constitutional and legal orders? We submit that they are, and that this is the essence of human rights as international constitutional law. Concretely we need to build on the International Bill of Human Rights highlighting, in particular: – – – – – – – – – –

The Right to Life The Right to Security The Right to Dignity The Right to Equality The Right to Liberty The Right to Humane Treatment The Right to Diversity The Right to Protection The Right to Democracy The Right to the Rule of Law

This is the core of human rights as international constitutional law. We need dynamic, rather than static, thinking. Classical legal reasoning will not suffice. After the Second World War the Institute of International Law commissioned from the late Prof. Charles de Visscher a report on The Fundamental Rights of Man as the Basis for the Restoration of International Law. After considering this report the Institute adopted a resolution with the same title. Fundamental Human Rights must now be the bedrock in shaping the world that is coming. In short, Human Rights must provide the foundations of International Constitutional Law. We have no other choice! The United Nations’ role in shaping the future world is greatest in the human rights jurisprudence it has developed to help build a world of human dignity and progress based on respect for human rights. At the forefront of this work has been the un Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights (1966). The Human Rights Committee is in the process of humanizing sovereignty. The Committee insists that governments are not at liberty to act as they see fit but must conform to international human rights standards. The Human Rights Committee has held in a landmark case that the foremost United

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Nations organ, the Security Council, must comply with international human rights norms when its actions affect individuals. This is a breath-taking decision of the Human Rights Committee in the case of Sayadi and others v. Belgium (2008). In that case, Belgium argued that it was shielded from scrutiny because it was acting to implement a Security Council resolution. ‘No’, the Committee replied; Belgium must comply with its human rights obligations, which took precedence. The Security Council cannot act in breach of human rights. The Human Rights Committee has insisted that even in times of public emergency there can be no excuses for violating fundamental rights such as the right to life or not to be tortured. In a time when human rights are being flouted in the name of acting against terrorism, the Human Rights Committee holds aloft the banner of international human rights law and insists that no Government is above the law. Among the legal precepts developed by the Human Rights Committee are the following: – Governments are legally bound to take reasonable and appropriate measures to protect people within their jurisdiction or control. – The law must strictly control and limit the circumstances in which a person may be deprived of his or her life by the authorities of the State. – A State, by invoking the existence of exceptional circumstances, cannot evade the obligations it has undertaken under international human rights law by ratifying the Covenant. – A situation in which the functions and competences of the judiciary and the executive are not clearly distinguishable or where the executive is able to control or direct the judiciary is incompatible with the notion of an independent and impartial judiciary. – Governments are under a legal obligation to ensure that remedies for violations are effective. Expedition and effectiveness are particularly important in the adjudication of cases involving torture. – Where violations have taken place Governments must take measures to ensure that similar violations do not take place in the future. – Governments should take specific and effective measures to prevent the disappearance of individuals and establish effective facilities and procedures to investigate thoroughly by an appropriate and impartial body, cases of missing and disappeared persons. – Being subjected to incommunicado detention in an unknown location constitutes cruel and inhuman treatment. – Women and men are entitled to equal treatment in the application of laws.

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Conclusion We would conclude this chapter with the following submissions, grounded in the belief that human rights norms are part of international constitutional law: – National constitutional arrangements must be designed, and periodically reviewed, so as to ensure implementation, in good faith, of international human rights obligations. – International human rights law must take precedence over national law. This is the principle of the supremacy of international law. – National courts must be empowered to implement international human rights norms. – International organizations must recognize as an inherent part of their mandate to protect human rights recognized in universal norms. The un Security Council must respect human rights norms in the course of its work and must act for the protection of human rights in situations or on issues engaging its attention. – Regional organizations everywhere must recognize as an inherent part of their mandates to protect human rights recognized in universal and regional norms. – Norms of jus cogens must be incorporated within the constitutional and legal orders of every State. – The core of the udhr and the iccpr should be part of the constitutional and legal orders of every State. – The duty to cooperate, codified in the un Declaration on Principles of Friendly Relations and Cooperation (1970), should be reflected in the constitutional and legal orders of States. – Organs of society nationally, regionally, and internationally, must cooperate in good faith to prevent threats to the existence and security of humankind and the planet. – The duty to cooperate in respect of the Responsibility to Protect should be reflected in the national constitutional order of every State. – Norms of jus cogens and of international customary law should be incorporated into the legal orders of every Member State. – Every Government must be able to show that it has in place an adequate and effective national protection system. – Governance in every country of the world must be in accordance with the principles of the Universal Declaration of Human Rights and human rights norms binding upon all governments.

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The Human Rights Council, a political body with a values-based mandate, has so far not thought much in terms of human rights as part of international constitutional law. There are powerful states within its membership that would probably not wish to see it go down this route. But we believe that it must, for a simple reason: the sole framework of reasoning that exists to cover everyone in the international community is that the international public order is grounded in international human rights norms and that, at the end of the day, everyone must be held accountable to this legal architecture.

chapter III

Public Policy Role

Introduction

Ideally on the basis of the modern human rights law of the Charter and the human rights provisions of international constitutional law, the Human Rights Council has the potential to perform, alongside the un General Assembly, the Security Council, and possibly the Economic and Social Council, a useful international public policy function in highlighting emerging problems and issues affecting humanity as a whole or different groups of beings and making recommendations for dealing with them. The Council does this to some extent, as we shall show below, but it is not clear to what extent its efforts penetrate the wider international community or are having an impact on the ground. The Council’s efforts are hortatory for the most part but it can follow up on its policies when it considers reports of countries under the Universal Periodic Review process. Over time, the Council’s pronouncements can build up into normative provisions. The Council has a high-level segment each year, usually at its spring session, and Heads of Government and other senior national, international and regional leaders attend in large numbers. Each leader speaks on the issue of his or her interest or expertise but there is no thematic or other summary that can be consulted outside of the framework of the Council. Those interested in what was said need either to follow the speeches on the Council’s ‘extranet’ or to consult the texts of the addresses posted on the Council’s internet web-site. The Council also regularly organises panel discussions on thematic issues and there are Secretariat summaries on some of these sessions. These summaries are used mainly by participants in the Council. The summaries are available on the internet web-site of the Council. On occasions the panel discussion could be said to perform a public policy function. There is an issue for future consideration here, in relation both to the high-level segment and the panel discussions, as to how the deliberations of the Council can be better communicated to the world at large on its public policy contributions. Receptivity to the Council’s contributions is, unfortunately, negatively affected by the controversies that often swirl around the Council over its failure to protect those in need or over the allegation by some that the Council applies different weights and measures. While there are contested areas of the Council’s activities, the Council has registered a consensus on the position of principle that human rights and fundamental freedoms are the birthright of all human beings and that their

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004289031_005

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­ romotion and protection is the first responsibility of Governments.79 It has p reaffirmed that the will of the people shall be the basis of the authority of governments and that every citizen shall have the right and the opportunity to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot guaranteeing the free expression of the will of the electors.80 It has recognized the need for States, in cooperation with international organizations and civil society, including ngos and the private sector, to create favourable conditions at the national, regional and international levels to ensure the full and effective enjoyment of the right of everyone to the highest attainable standard of physical and mental health.81 It has affirmed the importance of applying a human rights-based approach to reducing and eliminating preventable child mortality and morbidity.82 In adopting resolutions and decisions on the broad gamut of rights in international human rights instruments, the Council seeks to highlight the need for more effective action to implement these rights and to indicate areas of concern. In the following sections we offer a selection, necessarily subjective and skeletal, on some of the broader policy emphases of the Council or to show the Council drawing attention to new problems, such as attacks on persons with albinism. I

The Role of Good Governance in the Promotion and Protection of Human Rights

The Council has highlighted the role of national policies on human rights, noting that States should integrate their obligations under international human rights law into their national legislation in order to ensure that State actions at the national level are effectively directed towards the promotion and protection of all human rights and fundamental freedoms. It has recognized that State action aimed at the full realization of human rights and fundamental freedoms at the national level is made most effective by drawing up  and putting into practice national policies in conformity with obligations  under international human rights law. It has further recognized the importance of developing, strengthening and implementing, as appropriate, 79 80 81 82

Council Resolution 24/2. Council Resolution 24/8. Council resolution 24/6. Council resolution 24/11.

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national s­ ystems for collecting, monitoring and evaluating relevant disaggregated national data as a useful tool for drawing up and assessing the impact of national policies aimed at the enjoyment of human rights and fundamental freedoms.83 It has recognized the role of independent national institutions for the promotion and protection of human rights at the national level, including by contributing to follow-up actions, as appropriate, to the recommendations resulting from the international human rights mechanisms. It has encouraged national institutions for the promotion and protection of human rights established by Member States to continue to play an active role in preventing and combating all violations of human rights.84 In a series of resolutions on the role of good governance in the promotion and protection of human rights, the Human Rights Council has noted the mutually reinforcing relationship between good governance and human rights. It has recognized that transparent, responsible, accountable, open and participatory government, responsive to the needs and aspirations of the people, is the foundation on which good governance rests and that such a foundation is one of the indispensable conditions for the full realization of human rights, including the right to development. The Council has stressed that good governance at the national and international levels is essential for sustained economic growth, sustainable development and the eradication of poverty and hunger. The Council has taken cognizance of the increasing awareness in the international community of the detrimental impact of widespread corruption on human rights through both the weakening of institutions and the erosion of public trust in government, as well as through the impairment of the ability of Governments to fulfill all their human rights obligations. The Council has noted that the fight against corruption at all levels plays an important role in the promotion and protection of human rights and in the process of creating an environment conducive to their full enjoyment. It has recognized that effective anti-corruption measures and the protection of human rights, including through strengthening transparency and accountability in government, are mutually reinforcing. The Council has stressed the importance of policy coherence and ­coordination in intergovernmental processes in the area of the promotion and ­protection of human rights, on the one hand, and of anti-corruption initiatives, on the other. The Council has reaffirmed the right of every citizen to 83 84

Council resolution 23/19. Council resolution 23/17.

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have access, in general terms of equality, to public service in his/her country as enshrined in article 21 of the Universal Declaration of Human Rights and article 25(c) of the International Covenant on Civil and Political Rights. The Council has recognized that a professional, accountable and transparent public service upholding the highest standards of efficiency, competence and integrity is one of the essential components of good governance. It has also recognized that the knowledge, training and awareness of public servants, as well as the promotion of a human rights culture within the public service, play a vital role in promoting respect for and the realization of human rights in society. The Council has underlined that the primary responsibility lies with States at the national level, including through their Constitutional provisions and other enabling legislation consistent with their international obligations, to ensure that professional public services uphold the highest standards of efficiency, competence and integrity, and are predicated on good governance principles, including impartiality, rule of law, transparency, accountability and combating corruption, and stressed the importance of human rights training and education in this regard.85 II

The Negative Impact of Corruption on the Enjoyment of Human Rights

The Council has highlighted its deep concern about the increasing negative impact of widespread corruption on the enjoyment of human rights. It requested its Advisory Committee to seek the views and inputs of Member States and organizations dealing with the issue of corruption, as well as national human rights institutions and to prepare a research-based report on the issue of the negative impact of corruption on the enjoyment of human rights and to make recommendations on how the Council and its subsidiary bodies should consider this issue.86 III

The Human Rights Role of National Parliaments

The Human Rights Council has noted the crucial role that parliaments play, among others, in translating international commitments into national policies 85 86

See Council resolution 25/8. Council resolution 23/9.

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and laws and in contributing to the fulfilment by each State Member of the United Nations of its human rights obligations and commitments and to the strengthening of the rule of law. It has advocated the further development of synergies to ensure that the universal periodic review has the greatest impact at the national level.87 At its twenty-third session it organized a panel discussion on the contribution of parliaments to the work of the Council and its universal periodic review. IV

National Policies and Human Rights

The Council, bearing in mind that States should integrate their obligations under international human rights law into their national legislations in order to ensure that State action at the national level is effectively directed towards the promotion and protection of all human rights and fundamental freedoms, has expressed its view that State action aimed at the full realization of human rights and fundamental freedoms at the national level is made most effective by drawing up and putting into practice national policies in conformity with obligations under international human rights law. It has recognized the importance of developing, strengthening and implementing, as needed, national systems for collecting, monitoring, and evaluating relevant disaggregated national data as a useful tool for drawing up and assessing the impact of national policies aimed at the enjoyment of human rights and fundamental freedoms.88 The Council has encouraged States to further the integration of human rights education and training into school and training curricula, as well as to provide human rights education and training for educators in formal and non-formal education and training, in particular those working with children and youth.89 V

Civil Society Space

The Council has recognized the important role of society at the local, national, regional and international levels, and that civil society facilitates the achievement of the purposes and principles of the United Nations. It has reaffirmed that special emphasis should be given to measures to assist in the ­strengthening 87 88 89

Council resolution 23/17. Council resolution 23/19. Council resolution 24/15.

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of a pluralistic civil society, including through the strengthening of the rule of law, social and economic development, the promotion of freedom of expression, the rights of peaceful assembly and freedom of association, and the administration of justice, and to the real and effective participation of the people in decision-making processes. It has urged States to create and maintain, in law and in practice, a safe and enabling environment in which civil society can operate free from hindrance and insecurity.90 VI

Justice for Women

In 1848, a full one hundred years before the adoption of the Universal Declaration of Human Rights, the first international convention on women’s rights, held at Seneca Falls, New York, adopted a remarkable declaration, The Declaration of Sentiments, which recorded the historic plight of women that continues in many respects even in our times in many parts of the world. The history of mankind, it complained, has been a history of repeated injuries and usurpations on the part of man towards woman, having in direct object the establishment of an absolute tyranny over her. It continued: “To prove this, let facts be submitted to a candid world: He has never permitted her to exercise her inalienable right to the elective franchise. He has compelled her to submit to laws, in the formation of which she had no voice; He has withheld from her rights which are given to the most ignorant and degraded men – both native and foreigner. Having deprived her of this first right of a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides. He has made her, if married, in the eyes of the law, civilly dead. He has taken from her all right in property, even to wages she earns…. He has denied her the facilities for obtaining a thorough education, all colleges being closed against her… He has endeavoured, in every way that he could, to destroy her confidence in her own powers, to lessen her self-respect and to make her willing to lead a dependent and abject life. The struggle for justice for women continues in our times. The Human Rights Council has called upon States to take concrete steps towards eliminating all forms of discrimination against women and girls, directed to achieve gender equality and the elimination of all forms of discrimination against women and 90

Council resolution 24/21.

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girls, including nationality laws.91 It has affirmed the fundamental role that freedom of opinion and expression plays in the ability of women to interact with society at large, in particular in the realms of economic and political participation and stressed that the active participation of women, on equal terms with men, at all levels of decision-making, is essential to the achievement of equality, sustainable development, peace and democracy.92 It has called for accelerated efforts to eliminate all forms of violence against women, particularly preventing and responding to rape and other forms of sexual violence.93 VII

Preventing and Eliminating Child, Early and Forced marriage

The Council has highlighted States human rights obligations and commitments to prevent and eliminate the practice of child, early, and forced marriage, which disproportionately affects women and girls. It convened at its 27th session a panel discussion on preventing and eliminating child, early, and forced marriage, with a particular focus on challenges, achievements, best practices and implementation gaps. VIII

Birth Registration and the Right of Everyone to Recognition Everywhere as Person before the Law

The Council has expressed concern at the high number of persons throughout the world whose birth is not registered. It has reminded States of their obligation to undertake birth registration without discrimination of any kind. It has urged States to identify and remove physical, administrative and any other barriers that impede access to birth registration, including late birth registration, paying due attention to barriers such as those relating to poverty, disability, multicultural contexts and persons in vulnerable situations.94 IX

The Human Rights of Older Persons

The Council has raised its voice in favour of the implementation of the human rights of older persons. It has recognized the challenges related to the 91 92 93 94

Council Resolution 23/7. Council Resolution 23/2. Council resolution 23/25. Council resolution 19/9.

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­enjoyment of all human rights that older persons face in areas such as prevention and protection against violence and abuse, social protection, food and housing, employment, legal capacity, access to justice, health support, long-term and palliative care, and that those challenges require in-depth analysis and action to address protection gaps. It has called upon all States to ensure the full and equal enjoyment of all human rights and fundamental freedoms for older persons, including by taking measures to combat age discrimination, neglect, abuse and violence, and to address issues related to social integration and adequate health care, bearing in mind the critical importance of family intergenerational interdependence, solidarity and reciprocity for social development. The Council has called upon all States to enhance their existing mechanisms related to the protection and protection of human rights for older persons, including by adopting, as appropriate, legal or other dedicated mechanisms.95 X

Attacks and Discrimination against Persons with Albinism

The Council has drawn attention to, and expressed its concern at, attacks against persons with albinism, including against women and children, which are often committed with impunity. It has urged States to take all measures necessary to ensure the effective protection of persons with albinism, and their family members. It has also called upon States to take effective measures to ensure accountability, through the conduct of impartial, speedy and effective investigation into attacks against persons with albinism falling within their jurisdiction, and to bring those responsible to justice, and to ensure that victims and family members have access to appropriate remedies. It has further called upon States to take effective measures to eliminate any type of discrimination against persons with albinism, and to accelerate education and public education and public awareness-raising activities.96 XI

The Human Right to Safe Drinking Water and Sanitation

The Council has supported recognition of the human right to safe drinking water and sanitation by the General Assembly. It has reaffirmed that the human right to safe drinking water and sanitation is derived from the right to an adequate standard of living and is inextricably related to the right to the 95 96

See also, Council resolution 24/20. Council resolution 23/13. See also resolution 24/33.

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highest attainable standard of physical and mental health, as well as the right to life and human dignity. The Council has invited States to continue to promote, at all levels, including at the highest level, the full realization of the human right to safe drinking water and sanitation in forthcoming national, regional and international initiatives.97 The Council has called upon States: (a) To prioritize in an appropriate way funding for safe drinking water and sanitation, with a particular focus on extending access to the unserved or underserved, including measures to identify the most marginalized, excluded and disadvantaged persons in terms of access to safe drinking water and sanitation, to develop the capacity of decision makers and practitioners for implementing strategies and concepts specifically focusing on the sustainable provision of safe drinking water and sanitation to the unserved poor, and to develop specific initiatives that are most likely to reach the most marginalized and disadvantaged and improve their situation. (b) To consider increasing the percentage of international aid allocated to safe drinking water and sanitation, and to incorporate a human rightsbased approach. (c) To monitor the affordability of safe drinking water and sanitation in order to determine whether specific measures are needed to ensure that household contributions are and remain affordable by means of, inter alia, effective regulation and oversight of all service providers. (d) To promote transparency of budgets and other funding, as well as of programmes and projects of all actors in the water and sanitation sector, in order to ensure an adequate basis for planning with regard to the most vulnerable and marginalized sectors of society and in order to inform decision-making and policymaking processes in both public and private sectors. (e) To consult with communities on adequate solutions to ensure sustainable access to safe drinking water and sanitation. (f) To ensure the sustainability of access to water and sanitation by, inter alia, capacity-building of Government authorities at all levels with regard to their responsibilities in the service delivery chain, adequate budgeting of costs, including costs of maintenance, and establishing an adequate and effective regulatory system. 97

Council resolution 21/2. See also resolution 24/18.

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Conclusion The foregoing does show that the Human Rights Council is performing, on the basis of general agreement, a useful international public policy function, drawing attention to problems affecting the enjoyment of human rights being encountered by different groups of people and advancing recommendations for addressing them. There are other examples of this. The Council has affirmed the importance of effective preventive measures as a part of overall strategies for the promotion and protection of human rights.98 It has urged States to create and maintain, in law and in practice, a safe and enabling environment in which civil society can operate free from hindrance and insecurity.99 It has recognized that cultural diversity and the pursuit of cultural development by all peoples and nations are a source of mutual enrichment for the cultural life of humankind.100 It has urged the integration of human rights education and training into school and training curricula.101 The Council has reaffirmed that the universal periodic review, together with the United Nations treaty bodies, are important mechanisms for the promotion and protection of human rights and, in that regard, encouraged effective follow-up to accepted universal periodic review recommendations.102

98 99 100 101 102

Council resolution 24/16. Council resolution 24/21. Council resolution 23/10. Council resolution 24/15. Council resolution 24/10.

chapter IV

Human Rights and Security Challenges

Introduction

We have so far looked at the modern human rights law of the Charter, human rights as international constitutional law, and the public policy role of the Human Rights Council. The Council now operates in the face of grievous security threats to the international community and to particular regions. The Council needs to develop a closer relationship with the Security Council, something that depends more on the readiness of the Security Council. Both Councils must anchor their responses to security challenges in the international law of human rights. The first part of this chapter discusses possibilities of partnership between the Security Council and the Human Rights Council. The second part will look at how the Council deals with the issue of terrorism and human rights. The third part will look at how the Council responded in September 2014 to the threats to human rights posed by the practices and ideology of a group calling itself the Islamic State and presenting itself as the global Islamic Caliphate. I

Partnership between the Security Council and the Human Rights Council

The Security Council has a long-standing practice of cooperation with regional institutions devoted to the prevention and management of conflict, such as the African Union and the osce. For a long time now, the President of the Council has received a monthly briefing from the International Committee of the Red Cross (icrc) on issues of humanitarian needs and humanitarian law in situations of concern to the Council. Special Representatives of the Secretary-General, such as the Special Representative on Children and Armed Conflict periodically brief the Security Council. For a number of years ohchr briefed the President of the Council monthly and successive High Commissioners have briefed the Council in informal as well as formal sessions. Although an effective partnership between the Human Rights Council and the Security Council cannot be said to have been established yet, different Special Procedures (fact-finders) of the Human Rights Council have briefed

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members of the Security Council under the ‘Arria formula’. The Security Council draws regularly on information from International human rights ngos such as Amnesty International and Human Rights Watch. Nowadays such organizations are utilizing satellite imaging to determine what is going on in particular situations and the question arises for reflection how the Security Council might benefit from this kind of information. a The Idea of Partnership in the Charter The Charter does not provide specific guidance on the issue of Security Council partnerships but some guidance may be derived from Articles 29 and 30 of the Charter and from the Provisional Rules of Procedure of the Security Council and its practice. Under Article 29 of the Charter, the Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions. Goodrich, Hambro and Simons, in their commentary on the Charter, noted that “in some instances individuals are designated; for example, the United Nations Representative for India and Pakistan.”103 Article 30 of the Charter provides that the Security Council shall adopt its own rules of procedure. Rule 39 of the Provisional Rules of Procedure of the Council states that the Council may invite ‘any other person whom it considers competent’ to participate in its proceedings The Commentary to the Charter edited By Bruno Simma noted that such other persons may not themselves submit a request for participation. Request for the participation of ‘other persons’ must be put forward by authorized un organs: “Since 1970, Rule 39 has been applied often, particularly in favour of organizations such as the former un Council for Namibia and the Anti-Apartheid Committee, as well as regional organizations (e.g. the oau and League of Arab States). In addition to conceding them the right to intervene at sc meetings, the sc may invite such persons in accordance with Rule 39 ‘to give (the sc) other assistance in examining matters’. Consequently, such persons may, in contrast to non-member states of the un, even be authorized by the sc to submit draft resolutions.”104 One could add, in addition to what is written above, that invitations could emanate from consultations and agreement among Members of the Security Council. For example, on 19 September, 2012, when the Council held a debate on Children and armed conflict, the President of the Council, with the prior agreement of its members, invited the following persons to participate in the 103 L. Goodrich, E. Hambro and A.P. Simons, Charter of the United Nations. A Commentary, Second Edition (New York, Columbia University Press, 1969), p. 23. 104 B. Simma (Ed.), The Charter of the United Nations. A Commentary (Oxford, Oxford University Press, 1995), p. 493.

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­ eeting under rule 39 of the Council’s rules of procedure: Ms Laila Zerrougi, m Special Representative of the Secretary-General for Children and Armed Conflict; Mr Herve Ladsous, usg for Peacekeeping Operations; Mr Anthony Lake, Executive Director of unicef; Mr David Tolbert, President of the International Centre for Transitional Justice (an ngo); Mr Thomas MayrHarting, Head of the Delegation of the European Union to the United Nations. b The Objectives of Partnership Having noted above that there is already some cooperation between the Security Council and human rights and humanitarian bodies, we need, especially when looking to the future, to ask what policy objectives the Security Council might aim for when it comes to future partnerships. Consideration of this question must start from the mandate of the Council, which is to consider taking action when it perceives a potential breach of international peace or security, to act in the face of actual breaches, to endeavour to address humanitarian needs and human rights problems in relation to situations within its purview and, if needed, to consider the application of sanctions of one kind or another as deemed appropriate in the judgment of the Council. With the establishment of the International Criminal Court the element of redress, or of justice, also needs to be kept in mind. The Security Council should also have a vision of the emerging world of the twenty-first century that it would need to keep in mind always, especially new threats and challenges before humanity. The Oxford History of the Twentieth Century contains a chapter, Towards a World Community? The United Nations and International Law,105 in which Prof. Adam Roberts noted that throughout the twentieth century there had been an underlying tension between two logically incompatible sets of ideas: the sovereignty of states, on the one hand, and the creation of a supranational order through international law and organization on the other. Sovereignty implied the right of each state to have its own rules and institutions, while International law and organization, especially when covering the vast range of matters they now encompass, imply a serious limitation of sovereignty. The experience of the twentieth century had been that neither approach could triumph over its opponent. If some kind of ordered and law-based international society had emerged, it had done so on a curious basis: It was founded on two logically incompatible sets of ideas, each of which needed the other in order to remedy its own inherent limitations.106 105 M. Howard and W.R. Louis (Eds.,) Oxford History of the Twentieth Century (Oxford, oup, 1998). 106 Ibid, pp. 317–318.

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The Security Council has to stand for international authority when it comes to threats to human security. In a chapter in the same volume, Towards the Twenty-First Century, Prof. Ralph Dahrendorf noted that Utopia had been one of the casualties of the twentieth century and offered three moral principles for the twenty-first century: First, that only open societies can be good societies. Second, we must acknowledge a duty to future generations; the ‘responsibility principle’ was necessary in the ‘risk society’ in which we are living. Third, there is the matter of underlying attitudes. Ernest Gellner, in his Uniqueness of Truth, had identified three underlying attitudes: the relativist, the fundamentalist, and the enlightenment puritan. Certainly, a wave of relativism was sweeping the world, especially the old developed world, where anything goes, either because it serves the self-interest of those who do not want to be told by others what not to do, or because it seems the logical end of the road from liberal to libertine predilection. Such relativism, however, would not help us square the circle in an age of globalization. We are living in a horizon of uncertainty. We do not know for sure what is right and good and just, but we must try to find out. We must never give up trying to enhance the quality of life.107 The horizon of uncertainty is something that should be constantly in the mind of the Security Council and the Human Rights Council. Information gathering and assessment must be keys when dealing with the age of uncertainty. In the following sections we shall address through the lens of partnership the issues of information-gathering and assessment, threats to inter­national peace and security, breaches of international peace and security, humanitarian needs and challenges, human rights challenges, issues of sanctions, redress or compensation, and issues of justice. Consideration of issues such as these should guide the future partnership of the Security Council with human rights and humanitarian bodies. c Information-Gathering and Assessment From the perspectives of the Security Council, it should be interested in receiving on a regular and organized basis four categories of human rights information: (1) Human rights violations that can lead to threats to, or breaches of, international peace and security. (2) Human rights information that can lead to the commission of international crimes, especially crimes proscribed under mandatory rules of international law or, in technical parlance, norms of jus cogens. (3) Information that can lead to massive refugee outflows or internal displacements. (4) Information about potential humanitarian disasters. 107 Ibid, pp. 342–343.

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The question that arises for reflection is whether the Security Council is currently receiving such information on a regular and organized basis. At the present time, there is a great deal of information in the media that members of the Council are exposed to and they can make their own assessments. But they need assistance in doing this. Members of the Council come to it with their own sources of information, particularly the permanent members of the Council, all five of whom have their intelligence services. But here, also, they need back up on analysis and assessments. The main provider of information to the Council in the current practice is the un Department of Political Affairs. But the Department faces many challenges of shortage of staff and lack of specialized expertise, and it will, in the nature of things, proceed cautiously. This is quite natural. This writer was a Director in the Department of Political Affairs whose Division had to brief the Secretary-General and the Security Council on potential situations of concern. It is not evident that the Department has available to it the requisite information on the four categories of issues referred to earlier. Furthermore, the members of the Council are entitled to expect a judicious approach on the part of dpa. In the nature of things, dpa will proceed with caution. The icrc has a long-standing practice of providing monthly briefings to the President of the Security Council but these have been, naturally, mainly on situations on the agenda of the Council. icrc is a very cautious organization and there is little in its practice that suggests that it engages much in assessments about likely problem situations. The High Commissioner for Human Rights has been quite active in briefing the Council on situations on its agenda. Previously, the Office used to provide a monthly briefing to the President of the Council, mainly on situations on the agenda of the Council. This was, rather perplexingly, discontinued in recent years. Such a monthly briefing could provide an avenue for ohchr to alert the Council to impending or projected situations of possible concern. This is a matter on which the Office might wish to think again. Keeping in mind the four categories of situations we referred to earlier, the first, namely human rights violations that could lead to threats to, or breaches of, international peace and security, could be covered by ohchr. Its contributions could be supplemented by inputs from respectable international human rights organizations such as Amnesty International or Human Rights Watch. When it comes to information about situations that could lead to the commission of international crimes, an organization like the International Crisis Group could be helpful. One would need to think carefully about whether the Office of the Prosecutor of the International Criminal Court could provide information on this category of issues. We tend to think not, on the ground that

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it would be healthy to maintain lines of discretion between the Office of the Prosecutor and the Security Council. On the third category of issues, situations that could lead to massive refugee outflows or internal displacement, the Office of un High Commissioner for Refugees could be expected to be the lead organization here, with a possible role also for the un Department of Humanitarian Affairs. icrc would have information and insights on this category of issues but, because of the discreet role that it plays in conflict and humanitarian situations, one might need to proceed with prudence here. On the fourth category of situations, those that might involve potential humanitarian disasters, the un Department of Humanitarian Affairs, and also the Department of Political Affairs, might play the lead roles. Regional and sub-regional organizations, especially those with conflict prevention systems, can play a useful role as regular providers of information and analyses to the members of the Security Council. When discussing information-gathering and assessment thus far we have had in view that the Security Council of the future must have at its disposal stronger information and analyses that can help it to develop its collective thinking, particularly about thematic phenomena such as climate change and potential disasters, natural and man-made. Beyond such background information and analyses, there is the issue of how the Council might be assisted in dealing with human rights situations that might be on the verge of leading to threats to or breaches of international peace and security. We discuss the issue of threats next. d Threats to International Peace and Security What is involved here are serious human rights emergencies or violations that might threaten international peace and security. For a start it is necessary to recognize that the Security Council is, understandably, a highly political body that does not lend itself easily to speculative initiatives. When, therefore, one is considering this issue, it is important to do so with care and deliberation. It is the un Secretary-General who should be the lead actor here. The Charter provides in Article 99 that the Secretary-General may bring to the attention of the Security Council any situation that he considers might threaten or breach international peace and security. This competence has not been used much in practice, barely about ten times since the establishment of the un. However, in more recent practice, informal consultations in the Security Council, which are quite frequent, provide opportunities for the SecretaryGeneral or the Department of Political Affairs to share concerns with members

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of the Council. The Secretary-General also has other informal occasions to do so, as for example, during his monthly luncheon with the members of the Council. Entities with information on human rights situations that might threaten international peace and security include the leading human rights ngos, or an organization such as the International Crisis Group, the High Commissioner for Human Rights, instrumentalities of the Human Rights Council such as its Special Procedures, unhcr, the Department of Political Affairs and possibly other departments or agencies such as unicef, and possibly regional organizations, especially those with conflict prevention or human rights arrangements. It would be important that information in their possession be transmitted to the Secretary-General with their recommendation, if that is their judgment, that he consider bringing the situation to the attention of the Council in one form or another. In the nature of things, it can be expected that the Department of Political Affairs would examine and assess the information thus transmitted and make a recommendation to the Secretary-General, using their political judgment, whether the situation reaches the threshold for attention by the SecretaryGeneral and whether, in all the political circumstances, it is advisable for the Secretary-General to act, or for action to be taken in his name. It is inevitable that information transmitted be processed through political lens. As a former Director in the Department of Political Affairs responsible for African countries, we are familiar with the mindset of the Department and with the ­political judgment that must be brought to these matters. It is important to emphasize, however, that there be a conscious procedure for transmitting information from human rights and related agencies to the Office of the Secretary-General. We have left open in this section the issue of whether the Human Rights Council should formulate and transmit for the attention of the Security Council its assessment that a human rights emergency threatens international peace and security. On balance, we think that this is something that the Council should do only after very careful consideration and that it should opt to transmit information at its disposal to the Secretary-General for consideration under Article 99, as discussed earlier. We have come to this judgment on the ground that when the Human Rights Council acts formally it should rather be in relation to situations that it considers does actually breach international peace and security. The assessment of the Human Rights Council should have a seriousness and solemnity before it takes the decision to draw the attention of the Security Council to such situations. We discuss this matter further in the next section.

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e Breaches of International Peace and Security What is at issue here are human rights emergencies or violations that can be considered to have resulted in breaches of international peace and security. From the discussion in the previous section, we can immediately say that a leading actor in alerting the Security Council to such situations might be the un Secretary-General. Regional intergovernmental organizations, especially those with conflict prevention arrangements could conceivably decide to bring situations of human rights emergencies to the attention of the Security Council. An issue that deserves attention here is whether, in appropriate situations, the Human Rights Council might choose to alert the Security Council formally that, in its opinion, a situation of human rights emergency or violation constitutes a breach of international peace and security. We think that in appropriate situations this is something that the Human Rights Council might, and possibly should, do, but that it should not be done lightly and that it should be the exception rather than the norm. It needs to be said that, from a formal point of view, it is for the Security Council to make the determination whether a situation breaches international peace and security. Formally the Human Rights Council has no such competence. But there is nothing to prevent it from formulating its views and sharing them with others, in this instance the Security Council. It will always be left to the judgment of the Security Council whether to act on such information or advice from the Human Rights Council. The Security Council is a political body and it is expected to apply political assessments and judgments in its analysis and handling of situations. There can be no automaticity in the way the Security Council discharges its functions. We saw earlier when discussing the concept of partnership in the Charter, the Commentary in the volume edited by Professor Bruno Simma that requests for the participation of ‘other persons’ in the deliberations of the Security Council can be put forward by authorized un organs and that Rule 39 of the Security Council’s Provisional Rules of Procedure has been applied often, particularly in favour of organizations such as the former un Council for Namibia and the Anti-Apartheid Committee, as well as regional organizations (e.g. the oau and League of Arab States). In addition to conceding them the right to intervene at sc meetings, the sc may invite such persons in accordance with Rule 39 to give the sc other assistance in examining matters. Consequently, such persons may, in contrast to non-member states of the un, even be authorized by the sc to submit draft resolutions.108 108 B. Simma (Ed.), The Charter of the United Nations. A Commentary (Oxford, Oxford University Press, 1995), p. 493.

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Now, if a situation is already on the agenda of the Security Council there would be no need for the Human Rights Council to draw it formally to the attention of the Security Council. But it can choose to make its assessment known to the Security Council. At the present time it is the High Commissioner for Human Rights who has been briefing the Security Council on the human rights aspects of situations on its agenda. The question arises for reflection whether, in appropriate instances, the Human Rights Council might decide to ask that its President or other designee be heard by the Security Council. We think that it would, as a matter of policy, be legitimate and possibly even wise on occasions, for the Human Rights Council to request that one or more of its special procedures be heard by the Security Council. This is uncharted territory and we are here engaging in policy reflections that might guide future practice. We are still left with the issue whether, in appropriate situations, the Human Rights Council might on occasion formally decide to draw the attention of the Security Council to a situation that it considers breaches international peace and security. We think that this is an option that should be kept open as a possibly wise one, depending on the situation, but that if the Human Rights Council were to decide to make such a referral, it should do so by consensus, that it to say, without dissenting vote. Were this threshold to be achieved, the Human Rights Council, in its decision, could also request that its President or other designee be heard by the Security Council. Humanitarian Needs and Challenges in the Application of International Humanitarian Law We have so far taken the tack that the responsibility of the Security Council relates to situations involving threats to or breaches of international peace and security. When it comes to humanitarian needs, the responsibility of the Security Council would arise mainly in relation to such situations. There are three aspects to be considered: First, in relation to situations on the agenda of the Security Council it would naturally be interested in the humanitarian dimensions because this is a matter not only of conscience but also of the management of the situation from the perspectives of the restoration or maintenance of international peace and security. Information and advice in relation to such situations can be expected from the Secretary-General, backed up by ocha, dpa, icrc, ohchr and institutions such as unhcr, unicef, regional organizations, and ngos such as the International Crisis Group. Each situation will have its own dynamic and pragmatic dynamism would be needed, bearing in mind that the Security Council might be better able to absorb and act on information the more there is discretion on the part of all concerned.

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When it comes to breaches of international humanitarian law during situations of armed conflicts, the lead role here is played by the icrc, ohchr, and human rights and humanitarian organizations. The Security Council has a fairly good record of emphasizing the importance of the application of international humanitarian law and has on several occasions called parties to order on this score. It is in the nature of its practice that the icrc will be discreet in providing information and analyses on respect or non-respect for international humanitarian law in situations of armed conflict. icrc’s monthly briefings of the President of the Council have proven their worth over the years and can be expected to continue to do so in the future. The un High Commissioner for Human Rights has also played a valuable role in briefing the Council about violations of human rights and humanitarian law during armed conflicts. The Secretary-General’s Special Adviser on Children and Armed Conflict has developed a solid working relationship with the Security Council, participating in the Council’s periodic debates on this topic. The question arises for reflection whether the Security Council might be more pro-active when dealing with humanitarian needs and violations of international humanitarian law. We think that what is important here is that the Council have at its disposal the best information and analyses available so that it might consider the most appropriate political responses within the framework of its responsibilities for the maintenance of international peace and security. The element of political judgment will always be present, for that is the nature of the Security Council. g Human Rights Challenges We have already discussed above the issues of information-gathering and analysis on human rights matters, particularly in relation to situations involving threats to, or breaches of, international peace and security. We have adverted to the potential roles of the High Commissioner for Human Rights, the Human Rights Council, its Special Procedures, regional and sub-regional organizations, and reputable ngos. The question that needs to be posed now is whether the Security Council, as a matter of policy, can raise its profile higher when it comes to human rights issues, always bearing in mind that its responsibility relates to threats to or breaches of international peace and security. We think that this matter might be considered in relation to global threats of such a magnitude that they could affect the basic human rights of humanity as a whole. Issues that might be reflected upon include global pandemics, ­climate change, population trends, and terrorism. The Security Council, not

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without some controversy, has discussed the issue of hiv/aids through the lens of the maintenance of international peace and security. It would probably be right, as a matter of policy, to say that issues of this nature should be dealt with in the first instance by the specialized bodies and that they should engage the attention of the Security Council only when there is a good case to be made that issues related to the maintenance of international peace and security might be involved. Climate change is already much discussed in the un system and the issue is not without controversy. To date, the Security Council has not had much debate on the topic. But if the trends continue to be dire, there can be little doubt that it would involve serious issues of international peace and security and would be deserving, at the least, of a watching brief on the part of the Security Council. Scientific and technological developments that could involve global human security would also be deserving of a watching brief on the part of the Security Council, even if there are specialized bodies, including the Human Rights Council keeping an eye on it. h Issues of Sanctions, Justice and Redress When it comes to issues of sanctions, justice, and redress, they need to be considered on a case by case basis. As much as one would like to lay down grand principles, one must recognize that the task of the Security Council is invariably to deal with very complex situations, and with only the assets that Member States might be ready to put at its disposal. Furthermore, putting an end to conflicts can be quite difficult and often does not lend itself readily amenable to understandable desires for justice or redress. As to sanctions, the Charter of the United Nations provides for their employment in situations where the Security Council, in the exercise of its judgment, considers that they might be useful. The question that arises for reflection here is the role that human rights partners might play in calling for the application of sanctions or in monitoring the human rights dimensions of their application once they have been instituted. It would be a reasonable proposition that human rights partners might, in the exercise of their judgment, call for the application of sanctions when they consider that this could be useful. Human rights partners should do so with some restraint so as to avoid the charge that they are acting politically. If they judge that sanctions could be useful, they should consider indicating this through informal channels to the Members of the Security Council. This might even facilitate the role of the Members of the Security Council in considering such sanctions: they would not be seen to be acting under pressure.

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When it comes to monitoring the human rights dimensions of the application of sanctions there is a distinct role for human rights partners here. In the first place, human rights partners, to the extent that they have the opportunity, should help the Security Council to build in a human rights dimension into the sanctions regime. The case for such a human rights dimension has been amply demonstrated with regard to the placement of individuals on the list of persons deemed culpable for supporting terrorism. There have been judgments of reputable international and regional human rights bodies holding that the regime was in breach of fundamental human rights norms. Furthermore, the Human Rights Council’s Special Rapporteur on Human Rights and Terrorism has on various occasions pointed out that the sanctions regime was in violation of basic human rights. On the issues of justice and redress, all the human rights partners can play a role in expressing their views for the benefit of the Security Council for its consideration. The un High Commissioner for Human Rights and the Prosecutor of the International Criminal Court merit particular consideration. The High Commissioner for Human Rights has a good track record in this area. The New York Times of 19 January, 2013 carried an item, “Commissioner Urges Action on Syria.” According to the article, the then High Commissioner, Navi Pillai, had expressed dismay the previous day over the lack of Security Council action on the killings and human rights abuses in Syria, where the death toll had surpassed 60,000. The High Commissioner told reporters after she briefed the Security Council: “the figures speak for themselves – 60,000 deaths is not a matter that should be treated lightly.” She urged the Security Council to refer the situation of Syria to the International Criminal Court for investigation. She declared: I firmly believe that war crimes and crimes against humanity are being committed, have been committed and should be investigated. The Times continued: “Nearly 60 countries sent the Security Council a letter this month urging that Syria be referred to the court for investigation. Russia has made it clear that it will veto any such action.”109 The High Commissioner was doing what her post required: seeking to ­activate the international conscience in a highly politicized world. She had previously done this in relation to other situations such as in Libya. 109 New York Times, 19 January, 2013, p. A.7.

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On the same page of the New York Times that carried the article mentioned above with the comments of the High Commissioner, there was a lengthy interview with the Prosecutor of the International Criminal Court, Ms Fatou Bensouda. In an interview with the paper, Ms Bensouda stated: “What has to be recognized is that even though we are a judicial institution, we operate in a political environment, whether we like that or not… Those who do not understand the limitations of the i.c.c. jurisdiction – they are the ones who think the i.c.c. is picking and choosing.”110 The article pointed out that a third of the countries in the United Nations, including the biggest, like the United States and China, as well as many smaller countries, where leaders were suspected of rights abuses, like Syria and Sudan, had not ratified the Rome Statute that created the court. The article noted that the Prosecutor could pursue crimes in countries that had not signed the Rome Statute if requested by the Security Council, as had happened in Sudan and Libya, for example. “By contrast, the prosecutor has no authority to prosecute crimes in the Syria conflict because the Security Council has not requested it.” Anyone reading the article would have understanding for the predicament of the Prosecutor of the icc and that should lead to a dose of modesty in considering ideas for possible partnership between the Prosecutor and the Security Council. The Prosecutor needs to build up confidence in her office and in the icc itself. We would offer for consideration two recommendations when it comes to cooperation between the office of the prosecutor and the Members of the Security Council. In the first place it might be useful for the Office of the Prosecutor to provide periodic informal briefings to Members of the Security Council. This could only be done with the willingness of the Council but it is something on which confidence could be built over time. In the second place, might it be possible for the Prosecutor to submit to Members of the Security Council informally, based on her investigations, special dossiers on issues of genocide, ethnic cleansing, crimes against humanity and war crimes that might be taking place in situations of intense conflict? This could be justified under the heading of the role of the Security Council in implementing its Responsibility to Protect. How the Security Council would decide to react to such briefings would be a matter for the exercise of its judgment, but it would at least have the relevant facts at its disposal. The suggestion we make here could also be applicable to the un High Commissioner for Human Rights. 110 Ibid: “A lifelong passion is now put to practice in The Hague,” interview with the i.c.c. Prosecutor Fatou Bensouda.

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i Appraisal In discussing the issue of partnership between human rights and humanitarian bodies and the Security Council we have been mindful of the need to recognize the human rights imperatives that should influence the Security Council while recognizing the political realities and dynamics that impact on its performance. At the end of the day, the Security Council is a political body called upon to deploy its best endeavours for the maintenance of international peace and security. Peacemaking is a complex process and there is a lively debate about the extent to which human rights imperatives should influence peacemakers.111 We have sought to indicate a policy framework that might influence the future evolution of the partnership and have sought to make what we hope will be considered sensible recommendations in this regard. We would end by noting the importance of confidence-building and professionalism. All human rights actors seeking to impact on the Security Council, while respecting their respective duty of conscience, would need to consider ways of acting calculated to inspire confidence on the part of Members of the Council. Furthermore, whatever is put before the Council must have the highest level of professionalism and reliability. When the Council acts it should be on the best information available and on the best assessment. Professionalism and quality are their own advocates. II

Terrorism and Human Rights

The Human Rights Council inherited from its predecessor a Special Rapporteur on the topic of terrorism and human rights. It also inherited a normative framework from the Security Council, the General Assembly, and the former Commission on Human Rights, which it continues to invoke and to apply. The policy of the Council has been similar in most respects to that of its predecessor, the former Commission. We cite as an example of the positions of the Human Rights Council its resolution 19/19 adopted without a vote on 23 March, 2012. In that resolution The Council called upon States to ensure that any measure taken to counter terrorism complies with international law, in particular international human rights, refugee and humanitarian law. The Council expressed serious concern at the

111 See, e.g. B.G. Ramcharan, Human Rights in un Peacemaking and Peacekeeping in Yugoslavia (Martinus Nijhoff, Leiden, 2012).

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violations of human rights and fundamental freedoms, as well as refugee and international humanitarian law, in the context of countering terrorism. The Council expressed its unequivocal condemnation of all acts, methods, practices and financing of terrorism, in all its forms and manifestations, wherever and by whomsoever committed, regardless of their motivation, as criminal and unjustifiable, and renewed its commitment to strengthen international cooperation to prevent and combat terrorism and, in that regard, called upon States and other relevant actors, as appropriate, to continue to implement the United Nations Global Counter-Terrorism Strategy and its four pillars, which reaffirm, inter alia, respect for human rights for all and the rule of law to be the fundamental basis of the fight against terrorism. The Council called upon States, while countering terrorism, to protect all human rights, including economic, social and cultural rights, bearing in mind that certain counter-terrorism measures may have an impact on the enjoyment of those rights. The Council particularly called upon States, while countering terrorism, to ensure that any person whose human rights or fundamental freedoms have been violated has access to an effective remedy and that victims will receive adequate, effective and prompt reparations where appropriate, including by bringing to justice those responsible for such violations. The Council called upon States, while countering terrorism, to safeguard the right to privacy in accordance with international law, and urged them to take measures to ensure that interferences with the right to privacy are regulated by law, subject to effective oversight and appropriate redress, including through judicial review and other means. The Council noted with concern measures that can undermine human rights and the rule of law, such as the detention of persons suspected of acts of terrorism in the absence of a legal basis for detention and due process guarantees, the unlawful deprivation of liberty that amounts to placing a detained person outside the protection of the law, the trial of suspects without fundamental judicial guarantees, the illegal deprivation of liberty and transfer of individuals suspected of terrorist activities, and the return of suspects to countries without individual assessment of the risk of their being substantial grounds for believing that they would be in danger of subjection to torture, and limitations to effective scrutiny of counter-terrorism measures. The Council stressed that all measures used in the fight against terrorism, including the profiling of individuals and the use of diplomatic assurances, memorandums of understanding and other transfer agreements or arrangements, must be in compliance with the obligations of States under international law, including international human rights, refugee and human­itarian law.

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The Council urged States, while countering terrorism, to respect the rights to be equal before the courts and tribunals and to a fair trial, as provided by international law, including international human rights law, such as article 14 of the International Covenant on Civil and Political Rights and, as applicable, international humanitarian law and refugee law. III

The Practices and Ideology of the ‘Islamic State’

In June 2014 the world came face to face with the brutal practices of a group that had wrested armed control of a third of the territory of Syria and Iraq, then proclaimed itself the ‘Islamic State’ and presented itself as the global ‘Islamic Caliphate’. The ideology of the group called for the forced conversion or extermination of individuals or groups not professing the Sunni faith. Large numbers of people were ‘converted’, killed or forced to take flight and the group engaged in brutal practices of mass killings and beheadings. The very idea of human rights came under challenge by the practices and ideology of the group. How did the Human Rights Council react to this shocking manifestation? At the request of Iraq, of twenty-nine Member States of the Council, and of twenty nine Observer States, the Council held a special session, its twenty-­ second, on 1 September, 2014, to discuss the human rights abuses committed by the Islamic State in Iraq and the Levant (isil) and Associated Groups. The Council was provided with a briefing by the un Deputy High Commissioner for Human Rights who told the Council that over one million people had fled their homes in terror from the so-called Islamic State in Iraq and the Levant group (isil). Christian, Yezidi, Turkmen, Shabak, Kaka’e, Sabaens and Shi’a communities were being targeted through particularly brutal persecution, as isil ruthlessly carried out what might amount to ethnic and religious cleansing in areas under its control. The systematic and intentional attacks on civilians might constitute war crimes and crimes against humanity. The Special Representative of the un Secretary-General for Children and Armed Conflict briefed the Council that the most reported violation by isil was the killing and maiming of children. There were reports of children, especially young boys, being executed by armed opposition groups including isil, of schools and hospitals being destroyed and of young girls from minority groups being abducted for the purposes of sexual violence and forced marriage. The Special Representative expressed deep concern over reports of the recruitment of child soldiers, including in some cases to be used as suicide bombers. She also stressed the dire situation of the 1.2 million displaced people, of whom half were children.

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The Council’s Special Rapporteur on the Rights of Internally Displaced Persons briefed the Council that a humanitarian crisis of huge proportions was unfolding: an estimated 1.5 million Iraqis had been internally displaced to date and over the past weeks over 250,000 members of religious groups had been forced to flee their homes. The situation in some locations such as Dohuk city, with 150,000 refugees, was critical. The international community must be prepared for a rapid escalation in the humanitarian crisis as the conflict continued. Atrocities currently ongoing in Iraq appeared to amount to war crimes and crimes against humanity and revealed a risk of genocide. The Iraqi Minister of Human Rights told the Council that isil was attempting to change the demographic and cultural composition of Iraq. The massacres of isil were an affront to humanity. isil was not an Iraqi phenomenon. It was transnational and threatened all countries in the world. isil had committed crimes that amounted to genocide and crimes against humanity. During the ensuing discussion in the Council numerous States and ngos condemned the widespread and systematic violations of human rights committed by isil and associated groups which, some said, might amount to genocide and crimes against humanity. The international character of isil posed a threat to the region and put regional and international peace and security at risk. At the end of the discussion, the Human Rights Council adopted without a vote a resolution condemning in the strongest possible terms systematic violations and abuses of human rights and violations of international humanitarian law resulting from the terrorist acts committed by the so-called Islamic State in Iraq and the Levant and associated groups that had taken place since 10 June, 2014 in several provinces of Iraq. Those violations might amount to war crimes and crimes against humanity, and in particular all violence against persons based on their religious or ethnic affiliation as well as violence against women and children. The Council requested the Office of High Commissioner for Human Rights to urgently dispatch a mission to investigate alleged violations and abuses of international human rights law committed by the so-called Islamic State in Iraq and the Levant and associated terrorist groups, and to establish the facts and circumstances of such abuses and violations, with a view to avoiding impunity and ensuring full accountability. The Council requested the Office of High Commissioner to provide a report on its findings to the Council during its twenty-eighth session, and also requested the High Commissioner to provide an oral update during the twenty-seventh session due to take place from 8 o 26 September, 2014. The Council stressed that those responsible for the violations that had taken place must be held to account and called on the Government of Iraq to ensure

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that all perpetrators were brought to justice. It called on the international community to assist the Iraqi authorities to ensure the protection of, and assistance to those fleeing the areas affected by terrorism. It took some three months for the Council to meet to deal with the shocking violations of human rights cited above. It was still important that it met when it did. The widespread condemnation of the violations was significant inasmuch as it recorded the revulsion of the world at what was taking place. The Council’s request for a fact-finding report from the Office of High Commissioner showed it providing its classic response to situations of gross violations: to record the facts for possible prosecutions, for history, and as the basis for further deliberations within the Council. The Council’s maintenance of the issue on its agenda also signaled its intention to keep focusing on the situation. At the end of the day this is probably as much as the Council can do. Stronger action, if possible, fell within the realm of its senior partner, the Security Council. Conclusion This chapter took a look at opportunities for partnership between the Human Rights Council and the Security Council. One could say that the Human Rights Council and the Security Council operate according to their own internal dynamics and logic. One way forward to bringing these two bodies closer together might be for the Presidents of the two Councils to meet monthly for an informal exchange of information and views so that the two bodies can get to know one another better and to develop synergies, mindful of the political contexts often circumscribing many situations of gross violations of human rights. We saw the rather progressive positions of the Council on the issue of terrorism and human rights and then looked at the Council’s response to a particularly acute security situation affecting human rights: the practices and ideology of isil. We saw the Council deliberating, condemning the violations taking place, mandating further fact-finding, and calling for the prosecution of those responsible: in short, doing the best it could in the circumstances.

chapter V

The National Responsibility to Protect Human Rights Introduction The Human Rights Council has to operate on the premise that every Government has a national responsibility to protect human rights. Implicitly, the Council does so when it examines the reports of Governments under the Universal Periodic Review and when it scrutinises the performance of governments in situations where there have been allegations of gross violations of human rights within particular countries. In this chapter we seek to elucidate this fundamental concept of the national responsibility to protect. It is a widely supported tenet in the world today that national, regional, and international activities should be geared towards the respect, realization, and protection of internationally agreed norms of human rights. By human rights are meant all rights, civil and political as well as economic, social and ­cultural.112 In the un Millennium Declaration113 leaders the world over committed themselves to values for the twenty-first century which give priority to respect for human rights and fundamental freedoms. The Millennium Development Goals114 sought to halve the number of people living in poverty in the world by 2015. In a follow-up summit held five years later, in 2005, world leaders committed themselves to the concept of the responsibility to protect and pledged to take action against genocide, ethnic cleansing, war crimes and crimes against humanity. The responsibility to protect, as presented by an independent international commission in December, 2001, entails the responsibility to prevent violations of human rights, the responsibility to react and remedy them, and the responsibility to rebuild societies devastated by conflict and gross violations of human rights.

112 See, the Universal Declaration of Human Rights (1948). International Covenant on Civil and Political Rights (1966); International Covenant on Economic, Social and Cultural Rights (1966). 113 un General Assembly resolution 55/2. 114 un General Assembly resolution, Millennium Development Goals, 2000.

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Much attention has been given in international discussions to the implementation of the responsibility to protect at the international level, and the concept continues to be treated with caution by many countries, particularly developing ones that fear intervention into their affairs by powerful countries. But far less attention has been given to the national responsibility to protect, where the debate needs to be. For it is at home, in each country, that we should seek to build up the protection of human rights. Whatever debates take place over the international dimensions of the responsibility to protect, there can be no doubt that there is a national responsibility to protect that rests with every Government in the world. This is by virtue of their acceptance of international human rights obligations under the United Nations Charter and international human rights instruments, and their overwhelming affirmations of the universality of human rights in major world gatherings such as the Vienna World Conference on Human Rights, 1993, the Millennium Summit, and the Summit of World Leaders, 2005. The primary responsibility for the prevention of violations of human rights lies with the national protection system of each State. As has been correctly noted, the first obligation of a Government is to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the iccpr.115 A state complies with the obligation to respect the recognized rights by not violating them. The duty to ensure imposes an affirmative duty on the state and calls for specific activities by the state to enable individuals to enjoy the recognized rights.116 The second obligation is for the state to take the necessary steps, in accordance with its constitutional processes and with the provisions of international human rights treaties it has ratified to adopt such legislative or other measures as may be necessary to give effect to these rights and freedoms.117 The third obligation is to ensure that any person whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative, or legislative authorities, or by the legal system, and to develop the possibilities of judicial review; and to ensure that the competent authorities shall enforce such remedies when granted.118 115 N. Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. (2003), p. 46. 116 Ibid, p. 48. 117 Ibid, p. 49. 118 Ibid, pp. 49–50.

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Interpreting Article 13 of the European Convention on Human Rights, which requires that everyone whose rights are violated ‘shall have an effective remedy before a national authority’, the European Court of Human Rights has observed that the authority referred to may not necessarily be a judicial authority, but, if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. For a remedy to be ‘effective’, it is not sufficient that it be provided for by the constitution or by law or that it be formally recognized; it must be truly effective in establishing whether there has been a violation of a right and in providing redress. In this chapter we shall seek to define the scope of the national responsibility to protect based on international, regional and national norms. We shall first offer a statement of the concept of a national protection system and then proceed to discuss the implications of international human rights law for a national protection system, the prevention of human rights violations, remedies for human rights violations, the role of the courts, the role of law enforcement agencies, the role of national human rights institutions, the role of human rights education, and the role of national human rights plans of action. These and some additional propositions on the concept of a national protection ­system will be summarized in the concluding part of the chapter. I

The Concept of a National Protection System

The protection of human rights should take place in one’s country, where one lives and comes face to face with authority or power. Every country should have in place an adequate and effective national protection system. This is a basic duty of governments, which exist to advance and protect the dignity and rights of their people. It was in this sense that Article 21 of the Universal Declaration of Human Rights affirmed that the will of the people shall be the basis of the authority of government. This will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 25 of the International Covenant on Civil and Political Rights states that everyone shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) to have access, on general terms of equality, to public service in his or her country.

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The concept of the national protection system is one of the most strategic for the universal realization of human rights. It is thus understandable that the Summit of world leaders, meeting on the occasion of the sixtieth anniversary of the United Nations in 2005, highlighted the right to be protected and that Secretary-General Kofi Annan, in his last report on conflict prevention, emphasized the responsibility to prevent gross violations of human rights.119 A national protection system has the following key dimensions that we shall discuss below: constitutional, legislative, judicial, institutional, educational, and preventive. In addition, it requires an independent and efficient judiciary and law enforcement systems, and human rights education. National human rights plans of action can also help reinforce a national protection system. A Constitutional Dimension The constitutional structure of a country is a matter for the sovereign choice of its people. However, three issues require particular attention and scrutiny from the perspectives of international human rights law: first its fundamental human rights guarantees; second, its judicial institutions; and third, its national institutions for the protection of human rights. Fundamental human rights guarantees in the constitution or the bill of rights, if there is one, should not be less but may be more than what is provided for in international human rights law. Each country should be able to show that it has done two things: first, that it has methodically made a comparison between the provisions of its fundamental human rights guarantees and those in the principal international human rights instruments; second that rights guaranteed in international customary law, particularly norms of jus cogens, are among its constitutional human rights guarantees. The Second Restatement of the Foreign Relations Laws of the usa provides a good summary of rights that are guaranteed in international law: A state is obliged to respect the human rights of persons subject to its jurisdiction that it has (a) undertaken to respect by international ­agreements; (b) that states generally are bound to respect as a matter of customary international law; and (c) that it is required to respect under general principles of law common to the major legal systems of the world.120 A state violates international customary law if, as a matter of state policy, it practices, encourages, or condones: 119 A/61/891, 18 July, 1961. 120 Article 701.

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(a) Genocide. (b) slavery or slave trade. (c) the murder or causing the disappearance of individuals (d) torture or other cruel, inhuman or degrading treatment or punishment. (e) prolonged arbitrary detention (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.121 B Legislative Dimension International law gives a discretion to States whether they would make treaties they have accepted to be bound by directly applicable in their legal systems or whether they would reflect the provisions of those treaties in national legislation. Whichever route a country chooses, there is an obligation to make sure that its national laws correspond to its legal commitments under international human rights law or international human rights treaties. National parliaments should exercise oversight over whether this obligation has been met and, where action is required, see to it that legislative changes or enactments are done. The human rights treaty bodies operating under particular international conventions often make suggestions for legislative updating and national parliaments should require regular reports from the Executive about the recommendations of the human rights treaty bodies. There is role for parliamentary oversight over Governmental compliance with international human rights obligations. Each parliament should ideally establish a human rights committee to perform this role. C Judicial Dimension The judicial dimension requires that courts be independent and effective. There are United Nations declarations and statements on the meaning of judicial independence and effectiveness, which we shall discuss later in this chapter. As already indicated, international law leaves it to the choice of a Government whether it makes a treaty directly applicable in its legal system or whether it enacts legislation incorporating the obligations under the treaty. It would be our submission, however, that international human rights norms of jus cogens status, and human rights norms that have the status of international customary law should be directly applicable in national courts. International law makes it obligatory that each State provide adequate guarantees for human rights violations. This responsibility falls, in the first place, 121 Article 702.

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primarily upon the national judiciary. In the event that there is a failure to protect, there may be remedies under international law. The Second American Restatement, which we cited earlier, summarized these remedies as follows: (1) A state party to an international human rights agreement has, as against any other state party violating the agreement, the remedies generally available for violation of an international agreement, as well as any special remedies provided by the agreement; (2) Any state may pursue international remedies against any other state for a violation of the customary international law of human rights. (3) An individual victim of a violation of human rights agreement may pursue any remedy provided by that agreement or by other applicable international agreements.122 It is of great importance that judges and legal practitioners be provided with access to the key decisions of international human rights bodies in local languages so that they may be aware of them and may draw upon them. This is a task with which international human rights organizations and ngos may assist. But it would be important also that national ministries of justice, or their equivalent, pay attention to this matter so that judges may have access to the latest human rights precedents and reasoning. D Institutional Dimension Experience has shown that, in addition to the courts, institutions such as national human rights commissions, national human rights commissioners or ombudspersons can be quite helpful in advancing and protecting human rights.123 International law does not make such institutions mandatory but, as a matter of policy, a country should periodically assess its institutional arrangements, or lack thereof to see whether the establishment of national human rights bodies could be helpful for the protection of human rights. The Paris Principles, which we shall discuss later, provided that national human rights institutions could perform, among others, key tasks such as: seeking an amicable settlement of human rights grievances through conciliation, binding decision or other means; informing the complainant of his or her rights and of available means of redress, and promoting access to such redress; 122 Article 703. 123 See, generally, B.G. Ramcharan (Ed.), The Protection Roles of National Human Rights Institutions. (Martinus Nijhoff, 2005). J.A. Mertus, Human Rights Matters. Local Politics and National Human Rights Institutions (Stanford, Stanford University Press, 2009).

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hearing complaints or referring them to a competent authority; and making recommendations to the competent authorities, including proposals for amendment of laws, regulations, or administrative practices that obstruct the free exercise of rights. E Monitoring Dimension The responsibility to protect and to prevent demands that every country monitor itself to detect situations of distress and to address them well before they erupt into violations of human rights or conflict.124 This calls for independent bodies that will systematically watch out for such distress situations and draw attention to them. A national human rights commission could be given the mandate to do this. In multi-ethnic countries special arrangements may need to be devised. But the concept of self-monitoring is a vital part of a national protection system. A national protection system should provide for adequate and effective remedies to prevent violations of human rights and to provide redress in cases of breach. The absence of a remedy available to test an arguable claim for breach amounts to a violation of human rights.125 The right to an effective remedy may, in certain circumstances, require Governments to provide for, and implement, provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been done.126 A national protection system should be particularly attentive to the risks of genocide, ethnic cleansing, crimes against humanity and war crimes and should provide effective guarantees against them. As the Human Rights Committee stated in its General Comment 6/16 of 27 July, 1982, States have the supreme duty to prevent wars, acts of genocide, and other acts of mass violence causing arbitrary loss of life. A national protection system should provide for a system of regular visits by national, regional or international bodies to all places of detention. In the event of a violation of human rights the national protection system must provide for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State’s laws or practices.127 124 See, generally, B.G. Ramcharan, Preventive Human Rights Strategies in a World of New Threats and Challenges (London, Routledge, 2009). 125 See the Annual Report of the Human Rights Committee, 2001, Faure v. Australia . 126 See General Comment 31 of the Human Rights Committee. 127 See General Comment 31 of the Human Rights Committee.

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A national protection system should provide for investigations of gross violations of human rights and for justice to the victims. A national protection system should provide for safeguards against deportation or extradition to a state where the deportee/extraditee may face serious risks of torture or arbitrary execution. A national protection system should be particularly protective of human rights defenders. A national human rights system should be grounded in international human rights law, to which we turn next. II

International Human Rights Norms and the Content of the National Responsibility to Protect

The Bloemfontein Statement adopted by leading Commonwealth lawyers and judges in 1995 offered the following superb statement of the relevance of international human rights law to the content of the national responsibility to protect: In democratic societies fundamental human rights and freedoms are more than paper aspirations. They form part of the law. And it is the special province of judges to ensure that the law’s undertakings are realized in the daily life of the people. In a society ruled by law, all public institutions and officials must act in accordance with the law. The judges bear particular responsibility for ensuring that all branches of government – the legislature and the executive, as well as the judiciary itself, conform to the legal principles of a free society. Judicial review and effective access to courts are indispensable, not only in normal times, but also during periods of public emergency threatening the life of the nation. It is at such times that fundamental human rights are most at risk and when courts must be especially vigilant in their protection. The Human Rights Committee, which functions under the International Covenant on Civil and Political Rights, has adopted a series of ‘General Comments’ spelling out the obligations of states. General Comment No 31/80 of 29 March 2004 deals with the obligations of states parties to a human rights treaty. The principles contained in General Comment No. 31, although based on the Covenant, are reflective of the obligations of States Parties to a human rights treaties generally and to the obligations of Governments under international human rights law.

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The Human Rights Committee recalled the legal obligations of States Parties under Article 2 of the Covenant under which, among other things, each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Committee observed that while Article 2 is couched in terms of the obligations of States Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the rules concerning the basic rights of the human person are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a un Charter obligation to promote universal respect for and observance of human rights and fundamental freedoms. It noted that a general obligation is imposed on States Parties to respect the Covenant rights and to ensure them to all individuals in their territory and subject to their jurisdiction. Pursuant to the principle articulated in Article 26 of the Vienna Convention on the Law of Treaties, States Parties are required to give effect to their obligations under the Covenant in good faith. The obligations in the Covenant in general and under Article 2 in particular are, in the views of the Committee, binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party. This understanding flows directly from the principle contained in Article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The obligation to respect and to ensure the rights recognized in the Covenant has immediate effect for all States Parties. Reservations to Article 2 would be incompatible with the covenant when considered in the light of its objects and purposes. The legal obligation under Article 2, paragraph 1, is both negative and positive in nature. States parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, states must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.

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Article 2 of the Covenant requires that State Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfill their legal obligations. The Committee believes that it is important to raise levels of awareness about the Covenant not only among public officials and state agents but also among the population at large. The positive obligations on State Parties to ensure Covenant rights will only be discharged if individuals are protected by the state not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights insofar as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by Article 2 would give rise to violations by State Parties of those rights as a result of State Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. The beneficiaries of the rights recognized by the Covenant are individuals. Although, with the exception of Article 1 (the right of self-determination), the Covenant does not mention the rights of legal persons or similar entities or collectivities, many of the rights recognized by the Covenant may be enjoyed in community with others. State parties are required by Article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. The enjoyment of Covenant rights is not limited to citizens of State Parties, but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation. The Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.

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The Article 2 obligation, requiring that State Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control, entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. Article 2, paragraph 2 of the Covenant requires that State Parties take the necessary steps to give effect to the Covenant rights in the domestic order. It follows that, unless the Covenant’s rights are already protected by their domestic law or practices, State Parties are required on ratification to make such changes to domestic laws and practices as are necessary to ensure their conformity with the Covenant. Where there are inconsistencies between domestic law and the Covenant, Article 2 requires that the domestic law or practice be changed to meet the standards required by the Covenant’s substantive guarantees. Article 2 allows a State Party to pursue this in accordance with its own domestic constitutional structure and accordingly does not require that the Covenant be directly applicable in the courts by incorporation of the Covenant into national laws. The Committee takes the view, however, that Covenant guarantees may receive enhanced protection in those states where the Covenant is automatically or through specific incorporation part of the domestic legal order. The Committee invited those State Parties in which the Covenant does not form part of the domestic legal order to consider incorporation of the Covenant to render it part of domestic law to facilitate full realization of Covenant rights as required by Article 2. The requirement under Article 2, paragraph 2, to take steps to give effect to the Covenant rights is unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural or economic considerations within the state. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights State Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including, in particular, children. The Committee attaches importance to State Parties establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Human Rights Committee noted that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many

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different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy. Article 2, paragraph 3, of the Covenant requires that State Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of Article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by Article 9, paragraph 5, and Article 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee noted that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations. In general, the purposes of the Covenant would be defeated without an obligation integral to Article 2 to take measures to prevent a recurrence of a violation of the Covenant. Accordingly, it has been a frequent practice of the Committee, in its consideration of individual petitions, to include in its views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State Party’s laws or practices. Where investigations reveal violations of certain Covenant rights, State Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (Article 7), summary and arbitrary killing (Article 6) and enforced disappearance (Articles 7 and 9 and frequently 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or

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systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (Rome Statute of the icc, Article 7). Accordingly, where public officials or state agents have committed violations of the Covenant rights just referred to, the State Parties concerned may not relieve perpetrators from personal responsibility. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. Other impediments to the establishment of legal responsibility should also be removed, such as the defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. State Parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law. The Committee further took the view that the right to an effective remedy may in certain circumstances require State Parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations. General Comment 31 is a magisterial summary of the heart of international human rights law. III

The Prevention of Human Rights Violations

The national responsibility to protect entails prevention, reaction, remedies, and measures to prevent recurrence. National legal systems provide for preventive remedies such as judicial review, quashing orders (certiorari), mandatory orders (mandamus), prohibiting orders (prohibition), Habeas corpus, statutory mechanisms of challenge, and injunctions.128 Section 6 of the Hong Kong Bill of Rights, for example, provides that a court or tribunal may grant such remedy or relief in respect of such a breach, violation, or threatened violation as it has power to make or grant…and as it considers appropriate and just in the circumstances. The national responsibility to protect requires that Governments fulfill their obligations under international human rights treaties with preventive requirements such as: the Convention for the Prevention and Punishment of Genocide; the Convention against Torture; the Optional Protocol to the Convention 128 See, e.g. Clive Lewis, Judicial Remedies in Public Law. London, Sweet and Maxwell (2008).

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against Torture (opcat),129 which provides for regular visits by national bodies and by the Subcommittee for the Prevention of Torture to prisons and places of detention. There are also preventive obligations under other international human rights norms that we discuss next. A Preventive Protection of the Right to Life Article 6 of the International Covenant on Civil and Political Rights (1966) protects the right to life, which the Human Rights Committee, the monitoring body established under the Covenant, has deemed ‘the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (Article 4)’.130 The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to avert the danger of war, especially thermo nuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life. In this respect the Committee notes, in particular, a connection between Article 6 and Article 20, which states that the law shall prohibit any propaganda for war or incitement to violence.131 The Committee continued: The protection against arbitrary deprivation of life which is explicitly required by the third sentence of Article 6(1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities. States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation 129 The European Convention for the Prevention of Torture also provides for a system of visits. 130 General Comment 6/16 of 27 July, 1982. Reproduced in M. Novak, The International Covenant on Civil and Political Rights. A Commentary, Engel Publishers, 2006, p. 1092. 131 Ibid.

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of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.132 B Preventive Dimensions of the Right to an Effective Remedy Professor Manfred Novak has noted that whether a remedy is effective may ultimately be determined only on the basis of concrete cases, taking into consideration all relevant circumstances. In some cases, the formal chain of judicial appeals is the only possible effective protection; in others, informal, preventive measures (e.g., against the application of torture or against arbitrary executions) are much more effective than a subsequent determination by a constitutional court. On the other hand, when judicial case law functions well and is adhered to by administrative organs, it may in the long term be far more effective in preventing similar violations in the future than, e.g. largescale efforts to train civil servants.133 Professor Novak has raised the question whether the right to an effective domestic remedy requires that a violation of the Covenant has occurred, albeit not yet officially determined, and at what point it can be said that a violation has taken place. Does violation of Article 13, for example, arise upon deportation, with detention prior to this, or when a residency prohibition is enacted? Is personal liberty violated with imprisonment or upon sentencing to incarceration? Is the result different in the case of the death penalty because it is irreversible, whereas a prison sentence is reversible.134 Does the right to an effective remedy, ensured by Art. 2, refer, as suggested by the formulation of para. 3(a), only to a repressive remedy after violation of a substantive right has occurred, or are States parties also required to take preventive measures? The Human Rights Committee dealt extensively with this problem in C.F. et al v. Canada (No. 113/198). In implementing Art. 25 of the Covenant, the Quebec Election Act had been amended in 1979 to recognize the right of inmates to vote. However, the implementation of the specific voting procedures was made subject to an administrative agreement, which the Solicitor General initially refused to sign for federal inmates. As a result, three inmates filed a request for a temporary injunction with the Federal court of first instance to force the Solicitor-General to conclude the administrative agreement in time for the provincial elections, but this was denied.

132 Ibid. 133 Novak, op. cit., p. 65. 134 Ibid, p. 67.

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The issue subsequently came before the Human Rights Committee. With respect to whether Article 2 affords preventive remedies and whether a declaratory judgment in favour of the authors following the election would have been an effective remedy within the meaning of Article 2(3) of the Covenant and Art. 5(2) of the Optional Protocol, the Committee stated: With respect to Article 5, paragraph 2(b) of the Optional Protocol the Committee observed that, although the authors might not have been able to obtain a declaratory judgment before the elections of 13 April, 1981, a subsequent judgment could nevertheless in principle have been an effective remedy in the meaning contemplated by Article 2, paragraph 3 of the Covenant and Article 5 paragraph 2(b) of the Optional Protocol. The Covenant provides that a remedy shall be granted whenever a violation of one of the rights guaranteed by it has occurred; consequently, it does not generally prescribe preventive protection, but confines itself to requiring effective redress ex post facto. Professor Novak commented critically on this finding: In other words, the Committee reached the problematic conclusion from Article 2(3)(a) that this provision is limited to repressive remedies and ‘generally’ does not require preventive protection. …The reasoning behind this decision is so unjustifiably broad as to miss the purpose of providing individuals with effective remedies. Would the Committee have decided differently if – instead of the right to vote – a deportation, the right to personal liberty, the prohibition of torture or even the right to life had been affected? Novak noted, however, that following its General Comment on the right to life, referred to earlier, the Committee subsequently made it known in Herrera Rubio v. Colombia that as regards this right, Art. 2 also requires preventive measures, such as deterring the disappearance of persons. It may also be recalled that in its General Comment 31, the Committee stated the following: The right to an effective remedy may in certain circumstances require States Parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations.

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C Interim Measures of Protection Interim measures of protection are a valuable method of preventive protection practiced by international judicial and human rights bodies, including the International Court of Justice, the European Court of Human Rights, the InterAmerican Court of Human Rights, the un Human Rights Committee, the United Nations Committee against Torture, and the Inter-American Commission on Human Rights. In the words of one scholar, An author of interim measures may require that the State take positive action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not extraditing a person or delaying the execution of prisoners until their cases have been resolved before the international body. The purpose of interim measures in international human rights law is most often to protect the persons involved in a case from urgent danger of grave and irreparable injury. The author continues that, in general, many States have accepted the decisions of international courts that interim measures are binding on the States that are parties to the applicable treaties. However some States have not. The author contends that interim measures are implied in the constituent documents that provide the right of individual petition and must be considered to be binding on States that are parties.135 Deportation and Extradition to Countries Where There is Risk of Serious Violation of Human Rights: Preventive Protection The jurisprudence of international and regional human rights bodies provides for preventive protection in the event that a potential deportee/extraditee would be liable to suffer inhuman treatment, for example political persecution in the country to which they are to be sent, or the death penalty.136 In the Soering case, decided by the European Court of Human Rights, Jens Soering, a German national, was 18 when he and his girl friend were alleged to have killed her parents in Virginia in the usa. Soering was subsequently arrested in England and his extradition was sought to the United States. The State of Virginia had the death penalty for murder, and it was usual for prisoners to spend between six and eight years on death row before being executed. Were

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135 J.M. Pasqualucci, “Interim Measure in International Human Rights: Evolution and Harmonization,” Vanderbilt Journal of International Law, January, 2005. 136 See F. Jacobs, et al., The European Convention on Human Rights (Oxford: oup, 2006), p. 101.

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he to be extradited, Soering might face the death penalty and death row phenomenon. An extradition order obtained in the English courts was put into suspense pending determination of Soering’s application to the then European Commission on Human Rights. The case eventually reached the European Court of Human Rights, which apparently took into consideration that Soering could have been extradited to Germany, his country of nationality. The Court held: .

(H)aving regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3. A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration.137 The Court therefore held that the uk Secretary of State’s decision to extradite Soering to the United States would, if implemented, give rise to a breach of Article 3 of the European Convention on Human Rights. With regard to prevention strategies in the future, it would be essential that every country, once every five years or so, commission an analysis of threats of gross violations of human rights with a view to taking preventive action. Such an analysis could be done by the national human rights commission, where it exists. National human rights commissions in existence should include a threat assessment in their annual reports. Poverty alleviation strategies should, in the future, be built on preventive approaches, with the accent being on preventing poverty where this could be done using existing resources within a country. At the end of the day, this is a task of efficient governance. With new threats and challenges facing the world, national prevention systems should also have in view the human rights dimensions of issues such as − Climate change − Water shortage − Pandemics − Mass migration 137 Ibid, p. 103.

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It is also important for national prevention systems to be vigilant in respect of − Violence against women, trafficking − Breaches of human rights and humanitarian law during armed conflicts. − Gross violations of human rights. IV

Remedies for Human Rights Violations

The World Conference on Human Rights (1993) expressed grave concern about continuing human rights violations in all parts of the world in disregard of standards as contained in international human rights instruments and international humanitarian law and about the lack of sufficient and effective remedies for the victims.138 This situation, unfortunately, has not changed. Remedies for violations of human rights may be found in the areas of constitutional law, public law, criminal law and the law of torts. The constitution may provide for remedies for breach and, in Commonwealth jurisdictions, the courts will review an exercise of power to ensure that a public body has not made an error of law; has considered all relevant factors, and not taken into account any irrelevant factors; has acted for a purpose expressly or impliedly authorized by statute; has not acted in a way that is so unreasonable that no reasonable public body would act in that way; and that the public body has observed statutory procedural requirements and the common law principles of natural justice or procedural fairness. These grounds were summarized by Lord Diplock as illegality, irrationality, and procedural impropriety.139 As indicated earlier, judicial review may take the form of a quashing order, a mandatory order, a prohibiting order, a declaration or injunction, damages, restitution, or recovery of money. The prerogative writ of habeas corpus is still available in Commonwealth countries as a means of challenging the legality of the detention of an individual by a public body. Furthermore, Statute may provide a means by which the legality of decisions of public bodies may be challenged in the courts.140 There may also be remedies in tort for human rights abuses.141

138 Vienna Declaration (1993), para. 29. 139 See Clive Lewis, Judicial Remedies in Public Law. London, Sweet and Maxwell, 2008. 140 Ibid. 141 See on this, G.P. Fletcher, Tort Liability for Human Rights Abuses (Oxford, Hart Publishing, 2008).

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The Basic Principles and Guidelines which the un General Assembly adopted in 2006 provide an authoritative statement of the duty of Governments to provide remedies for human rights violations. The adoption of the Basic Principles and Guidelines followed years of study by independent experts and governmental comments.142 The Basic Principles and Guidelines contain thirteen chapters with core provisions of international human rights law. Because of the clarity and firmness of the statements in the document, we summarize key provisions below. The document is a magisterial summary of the contemporary international law of human rights generally and of the ideas of justice, redress and reparation in particular. Obligation to Respect, Ensure Respect for, and Implement International Human Rights Law and International Humanitarian Law The Basic Principles and Guidelines recall that the obligation to respect, ensure respect for, and implement international human rights law and international humanitarian law as provided for under the respective bodies of law emanate from: treaties to which a State is a party; customary international law; the domestic law of each State. The document urges that if they have not already done so, States must, as required under international law, ensure that their domestic law is consistent with their international legal obligations by: (a) Incorporating norms of international human rights law and international humanitarian law into their domestic law, or otherwise implementing them in their domestic legal system; (b) Adopting appropriate and effective legislative and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice; (c) Making available adequate, effective, prompt, and appropriate remedies, including reparation, as defined below; and (d) Ensuring that their domestic law provides at least the same level of protection for victims as required by their international obligations. A

B Scope of the Obligation The Basic Principles and Guidelines specify that the obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to: (a) Take appropriate legislative and adminis­ trative and other appropriate measures to prevent violations; (b) Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with 142 General Assembly resolution 60/147.

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domestic and international law; (c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including reparation, as described below. Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law that Constitute Crimes under International Law The Basic Principles and Guidelines underline that in cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations. To that end, where so provided in an applicable treaty or under other international law obligations, States shall incorporate or otherwise implement within their domestic law appropriate provisions for universal jurisdiction. Moreover, where it is so provided for in an applicable treaty or other international legal obligations, States should facilitate extradition or surrender offenders to other States and to appropriate international judicial bodies and provide judicial assistance and other forms of cooperation in the pursuit of inter­ national justice, including assistance to, and protection of, victims and witnesses, consistent with international human rights legal standards and subject to international legal requirements such as those relating to the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment. C

D Statutes of Limitations The Basic Principles and Guidelines specify that where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law. Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive.

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Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law The Basic Principles and Guidelines defines victims as persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim.

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F Treatment of Victims The Basic Principles and Guidelines specifies that victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation. G Victims’ Right to Remedies The Basic Principles and Guidelines includes as remedies for gross violations of international human rights law and serious violations of international humanitarian law the victim’s right to the following as provided for under international law: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. H Access to Justice The Basic Principles and Guidelines registers that a victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law. Other remedies available to the victim include access to administrative and other bodies, as well as mechanisms, modalities and proceedings conducted in accordance with domestic law.

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Obligations arising under international law to secure the right to access justice and fair and impartial proceedings shall be reflected in domestic laws. To that end, States should: (a) Disseminate, through public and private mechanisms, information about all available remedies for gross violations of international human rights law and serious violations of international humanitarian law; (b) Take measures to minimize the inconvenience to victims and their representatives, protect against unlawful interference with their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during and after judicial, administrative, or other proceedings that affect the interests of ­victims; (c) Provide proper assistance to victims seeking access to justice; (d) Make available all appropriate legal, diplomatic and consular means to ensure that victims can exercise their rights to remedy for gross violations of international human rights law or serious violations of international humanitarian law. In addition to individual access to justice, States should endeavour to develop procedures to allow groups of victims to present claims for reparation and to receive reparation, as appropriate. An adequate, effective and prompt remedy for gross violations of international human rights law or serious violations of international humanitarian law should include all available and appropriate international processes in which a person may have legal standing and should be without prejudice to any other domestic remedies. I Reparation for Harm Suffered The Basic Principles and Guidelines stipulates that adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.

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States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the party liable for the harm suffered is unable or unwilling to meet their obligations. States shall, with respect to claims by victims, enforce domestic judgments for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgments for reparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms for the enforcement of reparation judgments. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning pot­ential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services. Rehabilitation should include medical and psychological care as well as legal and social services. Satisfaction should include, where applicable, any or all of the following:

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(a) Effective measures aimed at the cessation of continuing violations; (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; (c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; (d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; (e) Public apology, including acknowledgement of the facts and acceptance of responsibility; (f) Judicial and administrative sanctions against persons liable for the violations; (g) Commemorations and tributes to the victims; (h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention: (a) Ensuring effective civilian control of military and security forces; (b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality; (c) Strengthening the independence of the judiciary; (d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders; (e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces; (f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;

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(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution; (h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law. Access to Relevant Information Concerning Violations and Reparation Mechanisms The Basic Principles and Guidelines calls upon States to develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by the Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access. Moreover, victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.

J

K Non-Discrimination The Basic Principles and Guidelines underline that the application and interpretation of its provisions must be consistent with international human rights law and international humanitarian law and be without any discrimination of any kind or ground, without exception. V

Transitional Justice

There is growing emphasis in the international human rights movement that victims of gross violations of human rights and/or their families have the right to a process that establishes the facts of what took place and draws lessons for the prevention of similar occurrences in the future. This is sometimes given the label of ‘transitional justice’. According to the organization, Transitional Justice, the major approaches to transitional justice include the following: – Domestic, hybrid, and international prosecutions of perpetrators of human rights abuse. – Determining the full extent and nature of past abuses through truth-telling initiatives, including national and international commissions.

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– Providing reparations to victims of human rights violations, including compensatory, restitutionary, rehabilitation, and symbolic reparations. – Institutional reform, of which one measure is the vetting of abusive, corrupt, or incompetent officials from the police and security services, the military, and other public institutions including the judiciary. Vetting refers to the process of excluding from public employment those known to have committed human rights abuses or been involved in corrupt practices. – Promoting reconciliation within divided communities, including working with victims on traditional justice mechanisms and forging social reconstruction. – Constructing memorials and museums to preserve the memory of the past. – Taking into account gendered patterns of abuse to enhance justice for female victims.143 VI

The Role of the Courts and of Law Enforcement Agencies

We have already alluded to the foundational importance of the role of the courts and of law enforcement agencies. In this section we shall touch on the essentiality of these institutions upholding and conforming to international human rights standards. The Basic Principles on the Independence of the Judiciary, endorsed by the United Nations General Assembly on 13 December, 1985,144 called for the independence of the judiciary to be guaranteed by the State and enshrined in the Constitution or law of the country. It is the duty of governmental and other institutions to respect and observe the independence of the judiciary. The judiciary, for its part, must decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts of judicial tribunals. 143 See http://www.ictj.org/en/tj/. 144 un General Assembly resolution 40/32.

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The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. It is the duty of each Government to provide adequate resources to enable the judiciary to properly perform its functions. The Code of Conduct for Law Enforcement Officials adopted by the un General Assembly on 17 December, 1979145 states that law enforcement officials shall at all times fulfill the duties imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. In the performance of their duty, they shall respect and protect human rights and maintain and uphold the human rights of all persons. They may use force only when strictly necessary and to the extent required for the performance of their duty. Matters of a confidential nature in the possession of law enforcement officials shall be kept confidential, unless the performance of duty or the needs of justice strictly require otherwise. No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other pubic emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment. Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. Law enforcement officials shall not commit any act of corruption. They shall also rigorously oppose and combat all such acts. Law enforcement officials shall respect the law and the principles in the Code of Conduct. They shall also, to the best of their ability, prevent and rigorously oppose any violations of them. Law enforcement officials who have reasons to believe that a violation of the Code has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities or organs vested with reviewing or remedial power. It is sad to admit that the Basic Principles on the Independence of the Judiciary and the Code of Conduct for Law Enforcement Officials are violated in the great majority of countries. That, however, does no diminish their validity, and it is precisely the challenge of all national protection systems to strive to live up to them. 145 un General Assembly resolution 34/169.

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The Role of National Human Rights Institutions

Even before the adoption of the Universal Declaration of Human Rights on 10 December 1948, the Economic and Social Council, in 1946, had recognized that national implementation arrangements and human rights information and education would be essential to take forward the task of implementing the provisions of the Declaration universally. The Council invited Member States to consider the desirability of establishing information groups or local human rights committees to collaborate with them in furthering the work of the Commission on Human Rights. The former Commission on Human Rights, early on, highlighted these two aspects and decided to give them particular attention. The attention given to both subjects, however, would be spasmodic in subsequent years. The Commission did call for reports from the Secretariat on the topic and also mandated the organization of world-wide seminars on the role of national institutions in the promotion and protection of human rights. A un Seminar on National Institutions for the Promotion and Protection of Human Rights, held in 1978, put forward a set of helpful guidelines for the functioning of national human rights institutions. Those guidelines were further built upon in the Principles relating to the Status of National Institutions (The Paris Principles), which were endorsed by the General Assembly in its resolution 48/134 of 20 December, 1993. The Paris Principles called for national institutions to have responsibilities such as: submitting recommendations, proposals and reports on matters relating to human rights to the Government, Parliament, or other competent bodies; promoting conformity of national laws and practices with international human rights standards; encouraging ratification and implementation of international standards; contributing to the reporting procedure under international instruments; assisting in formulating and executing human rights teaching and research programmes and increasing public awareness of human rights through information and education; and cooperating with the United Nations, regional institutions and national institutions of other countries. In 2003, the then High Commissioner for Human Rights wrote to all Governments inviting them to provide concise summaries of their national protection systems under the following headings: 1. In what ways are the provisions of the principal human rights instruments and treaties reflected in the constitution of the country? 2 Is there an oversight process on the reflection of international human rights norms in national legislation? 3. What is the experience of the judiciary in drawing upon the provisions of international human rights norms when considering cases before them? 4. Are there any specific arrangements to promote human rights education in the country? 5. What

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s­ pecialized national human rights institutions are in existence and which of their good practices can be highlighted? 6. Are there arrangements to detect and anticipate threats to human rights of groups at risk? A report that the Office of High Commissioner submitted to the Commission in 2004 summarized the replies of some three dozen countries. It showed that each country had positive experiences to report but that few of them had previously thought methodically about the six questions in their policy and governmental frameworks. The aim of the exercise was precisely to encourage each country to consider the six questions as a policy framework and, eventually, to publish a world report on the national protection systems of each country.146 As part of his reform programme, and as suggested by the Office of High Commissioner, Secretary-General Kofi Annan had called on the different parts of the United Nations system to concert their strategies to support the efforts of Governments to develop, or enhance, their national protection systems. Pursuant to this decision, a programme of cooperation was worked out, which is still continuing, to help support the enhancement of national protection systems. The aim of the process was two-fold: to respond positively to requests by Governments for support in strengthening their national protection systems; and to follow the recommendations of the human rights treaty bodies and the human rights special procedures and to see discreetly in what areas a government might be in need of assistance. A national protection system, as advanced by the Office of High Commissioner and by the Secretary-General, has six dimensions, that we discuss briefly in turn. National human rights institutions are an essential component of a national protection system. Each National Commission could map and analyze the human rights history of the country and the contemporary and future challenges of protection. Each National Commission could do a study on the state of economic, social and cultural rights and identify issues and situations of concern. National Commissions could do a study of situations where there is evidence of a consistent pattern of gross violations of human rights. National Commissions could do a study of population groups at risk. National Commissions could offer policy recommendations for the advancement of women’s rights. National Commissions could offer policy recommendations for the advancement of women’s rights. National Commissions could maintain, as a principal focus, policies and strategies for the prevention of gross violations of human rights. National Commissions could encourage and 146 un doc. E/CN.4/2004/12. Add.1

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s­upport the work of judges in the protection of human rights. National Commissions could disseminate the core international human rights norms and jurisprudence to judges and magistrates. National Commissions could develop a policy for spreading human rights education in schools and higher institutions of learning. National Commissions could enhance their cooperation with protection partners. The Ninth International Conference of National Institutions for the Promotion and Protection of Human Rights held in Nairobi from 21–24 October, 2009, adopted the Nairobi Declaration in which they underlined that the State has the primary responsibility to protect, promote and respect human rights and ensure that the administration of justice is in full compliance with both international and domestic obligations. They felt that National Institutions can support Governments in the application of international standards and follow-up. They considered that the Rule of law and administration of justice were of fundamental importance and saw an important role for the judiciary in applying human rights norms and in the development of a strong national system for human rights protection. They thought that National Institutions can help in ensuring an effective administration of justice, in particular with regard to access to justice. The rule of law should be based on a Constitution and on national legislation that is consistent with international standards and principles. They considered that nhris should play an oversight role over law enforcement agencies and seek to protect the rights of prisoners and detainees. They felt that nis should monitor their Government’s obligation to respect, protect and fulfill the rights of all people in detention, especially vulnerable or marginalized groups, and support their reintegration within society. nhris should strive to strengthen the correctional system and its personnel. They supported the role of nhris in receiving cases of human rights violations and assisting victims. They also supported the role of nhris in seeking informal legal redress mechanisms through conciliation or through binding decisions. They saw for themselves a role in publicizing the findings of treaty bodies and human rights rapporteurs of the un Human Rights Council. They also saw a role in promoting incorporation of international norms into national law. Furthermore they saw a role in providing recommendations to strengthen the legal system and judiciary and in promoting adherence and compliance of the judiciary with international human rights norms, including through amicus briefs and legal education. They thought they could help in encouraging and supporting the establishment of legal aid centres.

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The Preventive Role of National Human Rights Institutions For the most part, national human rights institutions remain fledgling institutions, especially in developing countries. Their protection role is still largely undeveloped.147 Their explicit prevention role is even thinner. However, as with all human rights activities, one can always claim that promotional work is meant to serve the cause of prevention, in the here and now, and in the future. One can say that national human rights institutions nowadays contribute to prevention in one or more of the following ways: – Undertaking surveys and studies of issues and making recommendations on them. – Drawing attention to problems in their annual reports or in periodic statements they might issue. – Undertaking historical analysis of the experience of a country with regard to human rights and drawing lessons from the analysis. – Undertaking visits to prisons and places of detention. – Calling for the enactment of laws to correct problems in the society. – Engaging in good offices activities with governments and law enforcement agencies. However, much more preventive work is required inside all countries. National institutions should undertake regular risk analysis from the perspectives of human rights. The following checklist of issues could be kept in mind when undertaking risk assessment through human rights lens: (a) What is the ethnic composition of the country? Is there a minority population? Is there an indigenous population? Is there a migrant population? (b) Is there a unifying vision of the country? (c) What is the state of governance? Is there a functioning democracy? (d) What is the state of the rule of law and the courts? (e) Is there an effective national protecting system? (f) Are there major grievances within the population? (g) Is there an internal system of early warming and alert to head off grievances? (h) Is there a de jure or de facto state of emergency? (i) Are there gross violations of human rights? 147 See on this, B.G. Ramcharan (Ed.), The Protection Roles of National Human Rights Institutions (Martinus Nijhoff, 2005).

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(j) (k) (l) (m) (n) (o)

What is the state of human rights of women? Is there a problem of human trafficking in the country? What is the state of respect for the rights of the child? What is the state of the freedoms of expression, religion or belief? What is the national security doctrine of the state? What are the un human rights treaty bodies and the un human rights investigations reporting about the country? (p) What are the leading international human rights organizations reporting about the country? (q) Are there reputable human rights ngos in the country and what are they reporting? (r) Are perpetrators of gross violations of human rights being brought to ­justice? VIII

The Role of Human Rights Education in a National Protection System

Human rights education in primary and secondary schools, in universities and other higher institutions of learning, and in professional education of law enforcement personnel can help instill respect for a culture of human rights in each country and lay the foundations for societies aspiring to, and living up to international, regional, and national human rights norms. While there are courses on human rights in some law schools and other university departments, there is still a sad lack of human rights education in all countries. It is vital to remedy this situation. The un Human Rights Council, early on initiated the process of drafting a declaration on human rights education which it has since adopted. One idea behind this project was to work towards the conclusion of an international convention on human rights education.148 Such a process would have in mind some simple objectives: every teacher at the primary, secondary or university level should be provided with a teaching manual, in local languages, so that she or he might discuss the core human rights ideas with students and thereby impart the values of the Universal Declaration. This may appear a modest objective. But it is not. Human rights education is very infrequent world-wide. 148 This author, when serving in the position of un High Commissioner for Human Rights, called for a Convention on Human Rights Education in his address at the opening of the then Commission on Human Rights in 2004. He was subsequently associated with the proposal for the declaration on human rights education.

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Countries struggling with economic and social problems do not normally think of allocating the resources needed to provide human rights teaching aids to instructors. A convention on human rights education would eventually help make the case for priority in the allocation of resources. World-wide human rights education will help spread a universal culture of human rights. It will help shape tomorrow’s leaders by instilling in them an understanding that the purpose of government is to strive for the realization of the economic, social and cultural rights of their people while respecting, protecting and ensuring their civil and political rights. Human rights education thus has a powerful strategic objective. Another strategic objective must be to push more and more for national human rights action plans in all countries. IX

The Role of National Human Rights Plans of Actions in National Protection Systems

The Vienna World Conference on Human Rights (1993) recommended that each State consider the desirability of drawing up a national action plan identifying steps whereby that State would improve the promotion and protection of human rights. According to a un Handbook on National Human Rights Plans of Action,149 the fundamental purpose of a national human rights action plan is to improve the promotion and protection of human rights in a particular country. It does this by placing human rights improvements in the context of public policy, so that governments and communities can endorse human rights improvements as practical goals, devise programmes to ensure the achievement of those goals, engage all relevant sectors of government and society, and allocate sufficient resources. The benefits of this approach, the Handbook continued, include the following: – A national action plan should stimulate a more comprehensive assessment of needs in the country concerned and, by making plans explicit both to the government itself and to the general public, can generate a commitment to achievement that would otherwise not exist; – National action plans are practical in orientation: they set achievable targets and propose realistic activities aimed at reaching these objectives;

149 Office of the High Commissioner for Human Rights, Professional Training Series No. 10, Handbook on National Human Rights Plans of Action. United Nations. New York and Geneva, 29 August, 2002.

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– National action plans can be a tool of sound public administration and governance leading to a stronger rule of law, enhancing management of the State and economic performance as well as the rights of citizens; promotion of national cohesion by encouraging an environment of tolerance, harmony and common purpose even where there is diversity; effective promotion of programmes in areas such as education, health, housing, nutrition, social services and administration of justice, thereby enhancing the quality of life for all; reduced risk of catastrophic unrest and conflict that can have longlasting adverse impacts on the State and its people. – A national action plan necessarily mobilizes a wide range of people and organizations in support of human rights activity. It therefore raises awareness and positive interest both with government and in the wider community; – A comprehensive and structured approach is more likely to ensure that the concerns of specific or vulnerable groups, such as women, children, minorities and indigenous peoples, are more effectively addressed; – A national action plan can facilitate the mobilization of domestic and international resources, including through United Nations and other programmes of technical cooperation, for countries that need resources, training and expertise to achieve their human rights goals; – National action planning takes an essentially non-confrontational approach to the consideration of human rights issues. By avoiding the recriminations that sometimes make human rights work more controversial, it may be possible to achieve their human rights goals. The Handbook continued that more specific purposes are: – To provide guidance to government officials, non-governmental organizations (ngos), professional groups, educators, advocates and other members of civil society regarding the tasks that need to be accomplished to ensure that human rights are effectively observed and to promote cooperation among these groups; – To establish or strengthen national or issue-specific institutions dealing with human rights; – To promote the universal ratification of international human rights treaties, facilitate the effective observance by governments of their obligations and promote conformity of national legislation with international standards; – To promote wider awareness of human rights standards and mechanisms, including among those whose actions are particularly critical, such as

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police, security forces, prison staff and politicians as well as government officials and other workers in social fields; – To promote and maintain a high level of awareness of the state of human rights observance in the country; – To develop programmes specifically directed towards alleviating the human rights situations of vulnerable groups in society. – To emphasize the role of human rights in national development.150 Conclusion To conclude this chapter, we may offer the following recapitulation of the main points developed above supplemented by additional elements of a national protection system, of which space did not permit discussion, but which are essential for the adequate and effective protection of human rights inside each country. A national protection system, while anchored in national law, should be consistent with, and reflective of, international human rights law. A national protection system functions best under democracy and the rule of law. The legislature, the executive, the judiciary, the legal profession, dedicated institutions such as national human rights commission, and ngos, all have roles to play in the efficient design and performance of the national protection system. The national constitution should include provisions reflecting international human rights norms of public policy (jus cogens), such as the total prohibition of torture in any circumstance. National legislation should incorporate all international human rights obligations of the State under international customary law, international treaties, and under mandatory decisions of the United Nations Security Council. The national protection system should provide for effective safeguards against violations of international human rights norms from which no derogation is permissible under international law, such as the absolute prohibition of slavery. The judiciary should be able to invoke international human rights norms as reflected in international customary law, international treaties binding on the State, or general principles of law.151 The law enforcement system should be efficient and should observe and protect human rights. In the words of the un Code of Conduct for Law Enforcement Officials, “In the performance of their duty, law enforcement 150 Ibid, pp. 9–11. 151 See on this, Article 38 of the Statute of the International Court of Justice.

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o­ fficials shall respect and protect human dignity and maintain and uphold the human rights of all persons.”152 Human rights education should be provided in all schools and higher institutions of learning. Human rights education should be viewed as an integral part of a national protection system. Human rights action plans should also be seen as an integral part of a national protection system. In periodic human rights action plans a society sets priority goals for achievement in the area of human rights and should work assiduously to achieve them. A national protection system should include institutions such as a national commission on human rights or an ombudsperson. With a national commission on human rights a country gives a signal that it wishes to work methodically for the promotion, protection and realization of human rights. A national protection system should include arrangements to detect potential gross violations of human rights or conflicts and to prevent them. Prevention arrangements are particularly important in multi-ethnic societies. A national protection system should provide for adequate and effective remedies to prevent violations of human rights and to provide redress in cases of breach. The absence of a remedy available to test an arguable claim for breach amounts to a violation of human rights.153 The right to an effective remedy may, in certain circumstances, require Governments to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been done.154 A national protection system should be particularly attentive to the risks of genocide, ethnic cleansing, war crimes and crimes against humanity, and should provide effective guarantees against them. As the Human Right Committee stated in its General Comment 6/16 of 27 July, 1982, States have the supreme duty to prevent wars, acts of genocide, and other acts of mass violence causing arbitrary loss of life. The Summit Outcome Document adopted by world leaders at the United Nations in 2005 affirmed the commitment of the international community to the responsibility to protect, especially in respect of genocide, ethnic cleansing, war crimes, and crimes against humanity. A national protection system should provide for a system of regular visits

152 Code of Conduct for Law Enforcement Officials, adopted by un General Assembly resolution 34/169 of 17 December 1979. 153 See on this the case of Faure v. Australia in the Human Rights Committee, 2001; Annual Report of the Human Rights Committee, 2001. 154 General Comment 31 of the Human Rights Committee, supra.

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by national, regional or international bodies to all prisons and places of detention.155 In the event of a violation of human rights, the national protection system should provide for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State’s laws or practices.156 A national protection system should provide for investigations of gross violations of human rights and for justice to the victims. A national protection system should provide for safeguards against deportation or extradition to a state where the deportee/­ extraditee may face serious risks of torture or arbitrary execution. A national protection system should be particularly protective of human rights defenders. A country should be constantly reviewing and updating its national protection system so as to ensure that it provides the highest standard of protection of human rights and protection systems. After all, Governments are meant to serve the people and to protect their dignity and rights, not to trample on them.

155 See on this, The Optional Protocol to the Convention against Torture (opcat), which provides for such a system of regular visits. 156 See General Comment 31 of the Human Rights Committee, supra.

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National Protection in Practice? The ibsa Countries Introduction The Human Rights Council has reaffirmed the importance of the establishment and strengthening of effective, independent and pluralistic national institutions for the promotion and protection of human rights.157 It has encouraged Member States to establish effective, independent and pluralistic national institutions or, where they already exist, to strengthen them for the promotion and protection of all human rights and fundamental freedoms. It has recognized the role of independent national institutions in working together with Governments to ensure full respect for human rights at the national level, including by contributing to follow-up actions, as appropriate, to the recommendations resulting from the international human rights mechanisms. It has encouraged national institutions to continue to play an active role in preventing and combating all violations of human rights. It has recognized the important role played by national institutions in the Human Rights Council, including its universal periodic review mechanism. It has stressed the importance of financial and administrative independence and the stability of national human rights institutions.158 This chapter will look at how the Council’s encouragement of the role of national protection is playing out within countries, taking the cases of three leading ‘emerging’ countries India, Brazil and South Africa (ibsa). I

Historical Background

Some historical background would help situate the policies of the three countries. India was a founding member of the former Commission on Human Rights and, at the time of the drafting of the Universal Declaration of Human Rights, advocated policies that would have had the Commission refer situations to the Security Council. After the adoption of the Universal 157 A/HRC/20/2, para. 2. 158 A/HRC/20/2.

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Declaration of Human Rights India led the fight at the United Nations for the condemnation of apartheid in South Africa. India has always been defensive about international discussions of the caste system but it has not been loathe to raise issues of discrimination in other countries, particularly in the context of migration. India at one stage brought to the former Commission incidents of British immigration officers administering ‘virginity tests’ on Indian women seeking to join their proposed spouses in the uk. India has generally sat on the fence with it comes to criticising other countries for gross violations of human rights. In 2012, however, after being reluctant to take a position against Sri Lanka, it joined, largely under domestic political pressure from the State of Tamil Nadu, in the adoption of a draft resolution expressing concern about that country’s treatment of Tamils as the civil war concluded. India often highlights its democracy (the largest democracy in the world) in the Human Rights Council. Being often on the receiving end of criticisms from Pakistan over the latter’s charge of a lack of self-determination in Kashmir, India seeks to garner support from other developing countries and therefore has to run with the pack for the most part. India has chaired the former un Commission on Human Rights. Brazil, like India, was a founding member of the United Nations and its representatives at the San Francisco conference made a strong case for the un to stand for social justice. As a prominent member of the Organization of American States, Brazil subscribed to human rights law-making and to the promotion and protection of human rights in Latin America. In the 1960s, 1970s, and 1980, Brazil experienced military coups and military dictatorships and the practice of torture was widespread. Brazil was often under scrutiny for its human rights practices in complaints procedures operated by the former Commission on Human Rights and defended itself with professionalism – thanks to the quality of its diplomats. One of its defenders, Ambassador Carlos Calero Rodriguez, later a member of the un International Law Commission, chaired the Commission on Human Rights and, as the situation in Brazil improved, was a widely respected figure on the Commission. South Africa, perhaps more than any other country in the United Nations, benefited from the championship of human rights and the condemnation of apartheid by the then Commission on Human Rights. With the attainment of independence and the dismantling of apartheid, South Africa provided inspiring leadership on the Commission on Human Rights and its former Ambassador in Geneva J. Selebi, chaired the Commission with distinction. Unfortunately, after his departure, South Africa turned away from a leadership role and became rather negative, asking why so many African countries were being investigated in the then Commission on Human Rights. Whatever the reasons for doing so, South Africa has been a negative force when it comes to taking

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principled stances against gross violators of human rights. South Africa, however, has sought to provide leadership in the international struggle against racism and racial discrimination, hosting the 2001 Durban conference on this topic and leading on follow-up action to implement the programme of Durban. South Africa also led a breakthrough on the Human Rights Council on the issue of the rights of gays and lesbians. II

Self-images and International Policies

Keeping in mind the foregoing historical background, it would be interesting to begin our consideration of how the ibsa countries are interacting with the Human Rights Council by noting how the three countries present themselves nowadays and also to note their core international policies on human rights issues. (a) India India considers that as the largest democracy in the world, Indian polity “weaves diversity into the fabric of a civilizational ethos of tolerance, respect, and mutual understanding. India is home to 1.2 billion people. India has a very large population of Hindus (80% of the population), Muslims (13.4% i.e. 138 million) and a great many followers of other faiths, including Christians (2.3% i.e. 24 million), Sikhs, Jains, Parsis and others. India has 22 scheduled languages, but more than 1,650 dialects are spoken across the country…. India is not only the largest democracy, but is also distinguished by a vibrant and evolving Constitutional system which is founded on the recognition of human rights placed in the forefront of the Constitution.”159 The spirit is the recognition and the need to balance the immense diversity of India with the imperative of maintaining the fabric of civilization and progress, coupled with tolerance, respect, mutual understanding and recognition of the importance of human life and individual rights. Foremost among these are measures for the removal and eradication of inequality.160 In the view of India, it “continues to play an active and constructive role in all human rights related issues in the un, including the Human Rights Council. India has extended a standing invitation to Special Procedures Mandate Holders during the 18th Session of hrc in September 2011, in keeping with our Voluntary Pledges and Commitments made to the hrc in May 2011.”161 159 India’s second upr report, A/HRC/WG.6/13/IND/1, paras 1 and 7. 160 Ibid, para. 7. 161 Ibid, para 118.

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(b) Brazil Brazil considers that “it has demonstrated its commitment to ­protecting human rights by acceding to most international conventions and extending a standing invitation to the special procedures and mechanisms to visit the country and monitor compliance with its international obligations. The Brazilian Constitution serves as a model in relation to the recognition of rights and fundamental guarantees…. With a view to reducing poverty and social inequality, in recent years Brazil has integrated social principles into economic growth strategies, fostering sustainable and inclusive development. Consequently, 39.6 million people were incorporated to the middle class between 2003 and 2011. Income inequality declined as well. Between 2001 and 2009, the ratio of household per capita income of the richest 20% against the poorest 20% dropped from 24.3 to 17.8. Similarly, the Gini Index fell162 from 0.59, in 1999, to 0.54 in 2009. Finally, the resumption of dynamic economic growth vaulted Brazil’s economy from the world’s 13th largest, in 2000, to the 6th ­largest, in 2011.” Brazil considers that it “has made enormous efforts to promote sustainable development with social inclusion and fulfilment of human rights, based on the belief that this strategy provides the path to a more equal, just and peaceful society….” It noted that In a global scenario marked by crisis and change, the same principles that have guided the government’s actions on the domestic front have inspired its efforts on the international sphere. The human rights perspective, which has been historically used to translate social demands into policies and actions that promote and fulfill the fundamental rights of all people, is equally relevant beyond the nation’s borders. For, ultimately in a multi-polar world, human rights emerge as a fundamental pillar in the pursuit of lasting peace.163 (c) South Africa Following the South African elections of 22 April 2009, the new government assessed the performance of government over a period of fifteen years since the dawn of democracy in 1994 and “reaffirmed the existing good policies which deal with the domestic challenges facing South Africa and the fulfilment of its international obligations. The new government identified the need to improve its ability to implement its policies and programmes and identified the need to improve its ability to implement its policies and ­programmes and identified five priorities for the Medium Term Strategic Framework period, 162 Human Rights Council, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* Brazil. A/HRC/WG.6/13/BRA/1, para 58. 163 126–127. 

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2009–2014 in accordance with the electoral mandate, being education, health, growing the economy and creation of decent jobs, fighting corruption and crime, and rural development and land reform. Out of these priorities, the new government formulated twelve outcomes to focus key p ­ rogrammes of its work.”164 Additionally, and with a view to enhancing its promotion, protection and fulfilment of human rights, the new government established a number of new departments, including a department of women, children and people with disabilities, department of traditional affairs, and a department of basic education and higher education.165 The South African government considers that “the practical enjoyment of human rights and fundamental freedoms is, first and foremost the responsibility of government’s at the national level. The roles of regional and international human rights mechanisms in complementing national efforts in this regard are appreciated in the South African government system.”166 III Framework It is necessary to note, at the outset, that the Human Rights Council is a political body with a human rights mission. The human rights treaty-based bodies are, in principle, legal bodies, called upon to apply their particular human rights conventions. The Office of High Commissioner for Human Rights is a hybrid entity encompassing legal, political and moral dimensions. It is legitimate to expect that Governments will comply with their legal obligations under the un Charter and under international human rights law when participating in un organs, even political ones, and that they will carry out their obligations in good faith under human rights treaties. In political organs such as the Human Rights Council Governments are under legal obligation to comply with norms of international public policy or, in technical parlance, norms of jus cogens, with norms of international customary law, and with their constitutional obligations under the United Nations Charter. Governments are also expected to be mindful of their normative obligations under human rights treaties to which they are parties. The foregoing having been said, Governments, in the normal course of things, will exercise political judgment in their participation in political organs.

164 Human Rights Council, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* South Africa, A/HRC/WG.6/13/ZAF/1, para. 58. 165 Ibid, para. 5. 166 Ibid, para. 58.

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This opens the door to political gymnastics. Unfortunately, all Governments engage in such gymnastics, even the ones with high-sounding moral tones. When it comes to complying with obligations under human rights treaties, these are usually put into two categories: obligations of result and obligations of conduct. Every Government is to be judged according to whether it has achieved results to which it has committed itself or courses of conduct to which it has agreed. In the midst of all of this stands a curious hybrid: the Universal Periodic Review process. It is professedly promotional and political, but it should not detract from the legal obligations to which Governments have committed themselves. This is an issue on which clarity is lacking in the process and in the Human Rights Council. IV Perspectives Having noted the foregoing, it would be useful to consider some benchmarks against which we might consider our subject-matter. We shall borrow three insights from the Oxford History of the Twentieth Century. In a chapter, The Growth of Global Culture, Prof. Alan Ryan notes that just as no two households in a village lead exactly the same lives as each other, in the same way we can expect different national households, even as the world becomes truly a global village, to be insistent as ever on what distinguishes each of them from all the others. In short, countries will approach issues and situations through the lens of their own experiences, even if they are obliged in principle to uphold international human rights law.167 In a chapter, Towards a World Community? The United Nations and Inter­ national Law, Prof. Adam Roberts noted that throughout the twentieth century there had been an underlying tension between two logically incompatible sets of ideas: the sovereignty of states, on the one hand, and the creation of a supranational order through international law and organization on the other. Sovereignty implied the right of each state to have its own rules and institutions, while International law and organization, especially when covering the vast range of matters they now encompass, imply a serious limitation of sovereignty. The experience of the twentieth century was that neither approach could triumph over its opponent. If some kind of ordered and law-based international society had emerged, it had done so on a curious basis: It was founded on two logically incompatible sets of ideas, each of which needed the other in order to remedy its own inherent limitations.168 167 M. Howard, et al. (Eds), Oxford History of the Twentieth Century (Oxford, 1998, 2002), p. 76. 168 Ibid, pp. 317–318.

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In a chapter, Towards the Twenty-First Century, Prof. Ralph Dahrendorf noted that Utopia had been one of the casualties of the twentieth century and offered three moral principles for the twenty-first century: First, that only open societies can be good societies. Second, we must acknowledge a duty to future generations and that the ‘responsibility principle’ was necessary in the ‘risk society’ in which we are living. Third, there is the matter of underlying attitudes. Ernest Gellner, in his Uniqueness of Truth, had identified three underlying attitudes: the relativist, the fundamentalist, and the enlightenment puritan. Certainly, a wave of relativism was sweeping the world, especially the old developed world, where anything goes, either because it serves the self-interest of those who do not want to be told by others what not to do, or because it seems the logical end of the road from liberal to libertine predilection. Such relativism, however, would not help us square the circle in an age of globalization. We are living in a horizon of uncertainty. We do not know for sure what is right and good and just, but we must try to find out. We must never give up trying to enhance the quality of life.169 The foregoing insights should at least warn us against any temptation to sanctimoniousness when discussing the approaches of the ibsa countries to human rights issues. V

The Historical Journeys of the ibsa Countries

We need to take account of the historical journeys of all three countries. Indians point to their colonial legacy, the high levels of poverty at the time of independence, and the challenges of nation-building in the midst of much diversity. Ramachandra Guha, in his book on post-independence India, goes into details of the drafting of the independence constitution, a process that produced one of the longest and a rather innovative constitution when it comes to protecting the rights of the down-trodden. Former Brazilian President F.H. Cardoso, in a book on the Brazil of his youth and his life and Presidency, tells a moving story of the quest to make Brazil a democracy grounded in the rule of law and respect for human rights. It is not a long time ago that Brazil under military rule was the focus of complaints of gross violations of human rights before the former un Commission on Human Rights. Nowadays, Brazil is a leader in the quest at the United Nations for universal realization of human rights. It was only two decades ago that South Africa recovered its independence from a brutal repressive regime. It has maintained a democratic order, fostered 169 Ibid, pp. 342–343.

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the rule of law, and has a Constitutional Court that is a world leader when it comes to the implementation of human rights, particularly economic and social rights. Even if they are democratic emerging powers they all three have fragile pasts and are confronted by daunting economic and social problems still. All three also have significant levels of corruption, at varying levels, that scar their bodies politic. This is relevant when one is considering the quality of their participation in international human rights bodies. VI

The Three Countries Quest to Implement the Right to Development at Home

The ibsa countries all actively support the implementation of the right to development world-wide in the Human Rights Council and in other un fora and it would be fair to say that all three countries have pursued national strategies in this area, even if they do not specifically use the language of the right to development internally. One can point to India’s successive national development plans, to Brazil’s impressive policies and performance in reducing the levels of poverty, and to the nedlac arrangements within South Africa when it comes to developing consensus on economic and social policies. It would be fair to expect all three countries to be sensitive to the problems of developing countries as regards implementation of the right to development in all countries, especially in view of the enormous challenges of poverty reduction that continue to face all three ibsa countries. What we are dealing with here is an attitude of mind, of countries approaching issues and situations through the lens of their own experiences. India Justice A.S. Annand, Chairperson of the National Human Rights Commission of India and former Chief Justice of India addressed the un Human Rights Council during its first session, on 27 June, 2006 on the ‘Right to Development’. The Indian Commission, he explained, had taken the view that the right to development is inherent to a life with dignity under Article 21 of the Indian Constitution, which is an enforceable right. Elaborating on this, he explained that for a programme of poverty eradication one had to look at a number of indices together, and a right to d­ evelopment approach would imply considering improvement in each of the indices through schemes that had to be implemented following the rights approach

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where the beneficiaries were empowered to participate in the decision-­making and executing the different schemes, transparently and accountably, and ­sharing the benefits equitably. Non-discrimination, he noted, was central to the implementation of the right to development. Another important factor having a bearing on the development debate was the issue of corruption as a violator of human rights. Good governance was not possible unless it was free from corruption. He added: It would be in the fitness of things that we aim at ensuring distributive j­ustice in the national as well as the global context. To achieve that, there has to be a paradigm shift from Human Development as seen merely in terms of economic growth, to Human Development as a basic human right. The universality of human rights with focus on human dignity and concern for accountability, he continued, made them uniquely appropriate for re-shaping development cooperation, fostering good governance and combating discrimination, disease and despair with the ultimate aim of reaching the goal of achieving ‘human rights for all’.170 The Indian Planning Commission has worked for economic and social justice in India, and in effect for the implementation of the right to development for the past sixty years. In the spirit of advancing economic and social justice and human rights, the latest, the eleventh five year plan of India’s Planning Commission aims at: – Rapid growth (at 9 per cent per annum) that can reduce poverty and create employment opportunities; – Access to essential services in health and education especially for the poor. – Equality of opportunity; – Empowerment through education and skill development; – Employment opportunities underpinned by the National Rural Employment Guarantee; – Environmental sustainability; – Recognition of women’s agency; and – Good governance. 170 Intervention on Behalf of the National Human Rights Commission of India on ‘Right to Development’ at First Session of the United Nations Human Rights Council by Dr Justice A.S. Annand, Chairperson, National Human Rights Commission of India (former Chief Justice of India) on 27 June, 2006 at Geneva. Original text on the Internet.

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The goal of access to essential services in health and education, especially for the poor, is worthy of some elaboration. The thinking of the Indian Planning Commission is that access to basic facilities such as health, education, clean drinking water, etc., impacts directly on welfare in the short-run while in the longer-run it determines economic opportunities for the future. Since access to these services for the mass of the population depends not only upon their income levels but upon the delivery of these services through publicly funded systems, the Eleventh Plan envisages a major expansion in the supply of these services. It hopes that the high growth being targeted over the plan period will help in providing ample resources to fund these programmes by way of higher tax revenues that would become available and a larger borrowing capability. The Planning Commission, the supreme planning body in India, was set up in March, 1950 by a Resolution of the Central Government. It is not a statutory or constitutional body. It was placed outside of the conventional Ministries and departments with a view to preventing it from falling into a rut and to facilitate development of supra-departmental views. The Commission format was intended to provide flexibility in response to emerging needs and to build up a brains trust for development. Its functions from the outset were five-fold: – Formulation of five-year plans for the most effective and balanced utilisation of the country’s resources; – Working out priorities in the plan; – Assessment of national resources and devising ways and means of augmenting them; – Determination of the best machinery to secure the successful implementation of the plan; – Periodic evaluation of the progress of the plan with a view to suggesting adjustments if necessary. The composition and structure of the Commission have evolved since its establishment some sixty years ago. More recently the Commission has consisted of a full-time Deputy Chairman and eight other full-time members. The day to day work of the Commission is in the hands of the Deputy Chairman, who has the rank of a Cabinet Minister, while the other full-time Members have the rank of Ministers of State (equivalent to a junior minister). The Chair of the Commission is the Prime Minister who, however, only participates from  time to time on matters of special importance. Different Ministers have,  from time to time, served as part time ex officio Members. There are

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those who have criticised the membership of the Prime Minister and the Ministers. The Deputy Chairman, who is also Minister of Planning, is invited to attend all Cabinet meetings and when necessary other members also attend the meetings of the Cabinet or its Committees. The Planning Commission is an advisory body to the Government. It may take the initiative in suggesting new policies and programmes and in coordinating those originating from other agencies of government. To support the Planning Commission there is also a small Ministry of Planning. We shall not go into details of its composition here. There is a Minister of State in this Ministry whose main task is to act as spokesman of the Commission and to be answerable to Parliament for the Commission’s work. The main work of the Planning Commission is organized through Divisions which include a General Planning Division responsible for a comprehensive study of the country as a whole and whose work and conclusions are prerequisites for studies relating to individual sectors. Special Planning Divisions are concerned with the study of particular sectors of social and economic development. Other Divisions include those on educational, health, and family welfare; labour, employment and manpower; rural development; village and small industries; rural energy; development policy; and backward classes. South Africa As we saw in the preceding section, the Indian Human Rights Commission considers that the right to development is an inherent part of an enforceable right in the Indian constitution protecting human dignity. The South African constitution includes in its Bill of Rights Article 10 which states that everyone has inherent dignity and the right to have their dignity respected and p ­ rotected. Article ll adds that Everyone has the right to life. The South African Constitutional Court has had occasion to pronounce on dignity and life-related issues on different occasions and three of its judgments are of direct relevance to the subject-matter of our discussion. In Government of rsa v. Grootboom & Others171 the Constitutional Court noted that the Constitution obliges the state to act positively to ameliorate the plight of the hundreds of thousands of people living in deplorable conditions throughout the country. It must provide access to housing, health care, sufficient food and water, and social security to those unable to support themselves and their dependents. All the rights in the Bill of Rights were interrelated and mutually supporting. Human dignity, freedom and equality are denied to those without food, clothing or shelter. The State must also foster conditions that enable 171 2001 (1) SA 46 (CC).

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c­ itizens to gain access to land on an equitable basis. However, this does not oblige the state to go beyond the available resources or to realize these rights immediately. Nevertheless, the state must give effect to these rights and in appropriate circumstances the courts can and must enforce these obligations. The question is always whether the measures taken by the state to realize the rights afforded by section 26 are reasonable. In Soobramoney v. Minister of Health, the Constitutional Court had held that the State had a duty to show that it had a system in place for the allocation of limited health resources in a manner that was reasonable.172 In Minister of Health & Others v. Treatment Action Campaign and Others, the Constitutional Court similarly held that the State must act reasonably to provide access to the socio-economic rights identified in sections 26 and 27 of the constitution on a progressive basis.173 South Africa also has an innovative institution of social dialogue that plays an important role in nation-building and development: nedlac, the National Economic Development and Labour Council. nedlac was established in law through the National Economic Development and Labour Council Act, Act 36 of 1994. It has a unique role and status in the promotion of national cohesion in South Africa. As apartheid was ending and the new, democratically elected, government was taking over in 1994, South Africans realised that their society had deep divisions and fault lines, that labour relations had been catastrophic in the past and that trade policy had to be drastically re-oriented. They would, they concluded, have to institutionalise cooperation for a new South Africa. Institutionalised social dialogue was needed to help undo the damaging legacies of apartheid and address the challenges of economic performance, more especially with reference to growth, job creation and poverty. Professor Raymond Parsons of the University of Pretoria, an authority on nedlac, has noted that “nedlac was intended to provide the socio-economic dimension of the reconciliation and nation-building to which President Mandela was strongly committed” South Africans therefore decided on the establishment of nedlac as the v­ ehicle by which government, labour, business and community organizations would seek to cooperate, through problem solving and negotiations, on economic, labour and development issues and related challenges facing the country.

172 1998 1 SA 765 CC. 173 (No.2) 2002, (5) SA 721.

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nedlac conducts its works in four broad areas, covering: (i) public finance and monetary policy; (ii) labour market policy; trade and industrial policy; (iv) development policy. It has a Development Chamber, a Labour Market Chamber, a Trade and Industry Chamber, and a Public Finance and Monetary Policy Chamber. Government departments, organized labour, and organized business participate in all four chambers. Community-based organizations have a legal right to participate in the Development Chamber but in practice also participate in the other three chambers. There is an annual summit of partners, an executive council, and a management committee. Upon commencing its work in 1995 nedlac set itself five objectives that shaped its agenda in the next decade and a half. These were to: (1) Promote economic growth, participation in economic decision-making and social equity, (2) Seek policy to reach consensus and conclude agreements on social and economic policy. (3) Consider all proposed labour legislation relating to labour market policy before it was introduced into Parliament. (4) Consider all significant changes to social and economic policy before it was implemented or introduced into Parliament. (5) Promote the formulation of coordinated policy on social and economic issues. From the outset it was acknowledged that in order for the negotiation process in nedlac to succeed it was crucial to place the emphasis on securing agreement. Every effort would be made to negotiate agreed policies. nedlac was conceived as an agreement-making body rather than an advisory one. Nevertheless, it was recognized by all participants that the nedlac process was not supposed to be a substitute for Parliament. Whilst agreements could be reached between the social partners, such agreements, to be binding, required Parliamentary debate and adoption. It is of crucial importance, however, that the search for agreement took place within nedlac, where the social partners were present. An external review of the nedlac process between 1995 and 2006, conducted by Professor Edward Webster of the University of Witwatersrand, ­concluded that nedlac had deepened democracy by creating new labour market institutions that had included constituencies previously excluded from the policy-making process. In the process of building these institutions a remarkable generation of social entrepreneurs had developed networks of trust. The nedlac had provided an opportunity for the four constituencies of organised business, government, organised labour and the organised community, to shape the content, sequence and pace of a range of economic and social policies before they were debated in Parliament. This had improved the quality of decisions, built political bases of support for the reform strategy and channelled political conflicts within democratic institutions.

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South Africa, Professor Webster underlined, had chosen in 1994 the policy option of consultation and negotiation beyond the parliamentary actors. This policy process of drawing non-state interest groups into policy formulation and governance had played a central role in promoting good policy practices. As the ilo has noted, “The best solutions arise through social dialogue in its many forms and levels, from national tripartite consultations and cooperation to plant-level collective bargaining. Engaging in dialogue, the social partners also fortify democratic governance, building vigorous and resilient labour ­market institutions that contribute to long-term social and economic stability and peace.” Professor Webster made the following assessment: “nedlac’s major achievement in the first 11 years of South Africa’s democracy is its cost-effective contribution to the sustainability of the reform process. This has deepened democracy, created new labour market institutions and contributed to longterm economic and social reform.” Brazil Brazil is the fifth-largest country in the world and the ninth-largest economy. Brazil faces many social challenges, of which the most significant are the inequities in the distribution of income, low educational attainments, poor health, and limits to the decision-making participation of its citizens. The Brazilian Agenda 21 was signed in July, 2002 by then President Fernando Henrique Cardoso in preparation for the World Summit on Sustainable Development. A Commission of Policies for Sustainable Development and the of the National Agenda 21 (cpds) coordinated by the Ministry of the Environment and comprising 10 members evenly distributed between the civil society and the government worked on the creation of the Brazilian Agenda 21 since 1997 in response to the 1992 Rio Conference. Six central themes were selected as a basis for the initial consultation process including: sustainable agriculture, sustainable cities, infrastructure and regional integration, natural resources management; reduction of social inequalities; and science and technology for sustainable development. The objectives of Brazil Agenda 21 included: The economy of savings in the society of knowledge. Priority actions under this objective included sustainable production and consumption against the waste culture; information and knowledge for sustainable development. Social inclusion for a solidarity society. Priority action under this objective included permanent education for work and life; promotion of

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health and prevention of diseases; social inclusion and income distribution; universalisation of environmental sanitation to protect the environment and health. Strategy for the urban and rural sustainability. Priority action under this objective included the sustainable development of rural Brazil; and the promotion of sustainable agriculture. Strategic natural resources: water, biodiversity and forests. Priority action under this objective included preserving the quantity and improving the quality of the water in the hydrographic basins. Governability and ethics for the promotion of sustainability. Priority actions under this objective included the promotion of civic culture and new identities in the communication society. VII

Participation in the un Human Rights Treaty System

The un Human Rights Treaty system constitutes the strongest body of international human rights law on record. Whatever a country might do in political organs such as the Human Rights Council or in general promotional activities, it binds itself in international human rights conventions to produce obligations of conduct or result.174 It is therefore appropriate to start by considering the extent to which the ibsa countries are participating in this system and with what results. India is a State Party to the icerd, icescr, iccpr, cedaw, crc, op-crcac, op-crc-sc, crpd. It has made reservations to icerd, Article 22, and declarations and /or understandings to the icescr, iccpr. cedaw, crc. It has not accepted any of the complaints procedures under the human rights treaties: icerd, article 14, op.icescr, iccpr.op.1, op-cedaw, cat, art. 22, icrmw, article 77, op-crpd, ced, article 3. It has not ratified iccpr-op.2, op-cat, icrmw, ced (signature only, in 2007). Brazil is a State Party to icerd, icescr, iccpr, cedaw, cat, op-cat, crc, op-crc-ac, op.crc-sc. It has not so far ratified icrmw. It has accepted complaints procedures under icerd, article 14, cat, art. 22, and op-cedaw. However, it has not yet accepted so far the complaints procedures under op-icescr, ced, Article 3, icrmw, art. 77. The Sub-Committee on the Prevention of Torture (spt) visited Brazil in September 2011 and has made confidential report.175 174 See, generally, B.G. Ramcharan, The Fundamentals of International Human Rights Treaty Law (The Hague, Martinus Nijhoff, 2011). 175 A/HRC/WG.6/13/BRA/2, para. 1.

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South Africa is a State Party to icerd, iccpr, iccpr-op 2, cedaw, cat, crc, op-crc/sc, crpd. It has made a Declaration in respect of article 30 of cat. It has accepted the complaints procedures under icerd, article 14, iccpr – op 1, op-cedaw, cat, op-crpd, and iccpr, article 41. It has not yet accepted the icescr (signature only, 1994), op-cat (signature only, 2006), icrmw, and ced. It has not yet accepted the complaints procedures under the op-icescr, ced, article 31, icrmw, art. 77, opic.176 VIII

Participation in the Special Procedures System of the Human Rights Council

The Special Procedures of the un Human Rights Council are the strongest protection actors among the un human rights bodies.177 The Human Rights Council inherited them from the former Commission on Human Rights. Historically, Governments have sought to shun them and to minimise their impact. There were even efforts when the Human Rights Council began it work to do away with them or to curtail them. Fortunately, those efforts did not succeed and the special procedures – basically human rights fact-finders – ­continue to function vibrantly. It is therefore interesting to see to what extent the ibsa countries are participating with the special procedures mandate holders. India has extended a standing invitation to thematic human rights special procedures to visit the country when they choose to do so. In recent years it has received visits by the Special Rapporteurs on Health, Food, Violence against women, freedom of religion, toxic waste, human rights defenders, and arbitrary and summary executions, sale of children. It has also agreed in principle to receive visits in the future from the special procedures on adequate housing and arbitrary detention. It still has to respond to requests for visits by the special procedures on torture (requested in 2010), racism (renewed request in 2008) and indigenous people (requested in 2008), water and sanitation (requested 2009), trafficking (requested 2010), disappearances (requested 2010, with reminder in 2011), independence of judges and lawyers (requested in 2011) and violence against women (requested in 2012).178 During four years covered by India’s second upr review, 2008–2012, India had received 98 communications about alleged human rights concerns from 176 A/HRC/WG.6/13/ZAF/2, p. 1. 177 See, generally, B.G. Ramcharan, The Protection Roles of the un Human Rights Special Procedures (The Hague, Martinus Nijhoff), 2010. 178 A/HRC/WG.6/13/IND/2, para. 11.

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special procedures and had replied to 76 of them. In 2012 the Working Group on Disappearances noted that since its establishment, it had transmitted 433 cases to the Government of India, 12 of which had been clarified on the basis of information provided by the sources, 68 cases had been clarified on the basis of information provided by the Government of India. The Government had not responded to a request for follow-up information on freedom of religion.179 Brazil has made a standing invitation to thematic special procedures to visit the country. During the four years covered by Brazil’s second report under the upr process, special procedures did not make any requests for visits to the country. During the same period special procedures sent 35 communications on alleged concerns. The Government replied to 8 of these communications.180 South Africa has extended a standing invitation to special procedures to visit the country. During the four years covered by its second upr report it received visits from the Working Group on Mercenaries, the special rapporteur on the human rights of migrants, and the special rapporteur on the right to food. During the same period special procedures sent 9 communications on issues of concern. The Government replied to 2 of these.181 IX

Participation in the Universal Periodic Review Process of the Human Rights Council

All three countries have participated in both cycles of the upr The upr system gives an opportunity for a Government to tell its peers about its efforts to promote and protect human rights at home and with what results, for the un Secretariat to recapitulate the recommendations of human rights treaty bodies and special procedures, and also to summarise the submissions of national human rights institutions, and for the other Governments to offer their views and observations within the framework of the Human Rights Council, first in a Working Group of the whole and then in the plenary Council. Each government is free to accept or to decline recommendations by its peers. ngos participate by providing written materials beforehand and are given limited time to make comments in the plenary of the Council. In the following section we draw on the three country reports under the second round of the upr and on the submissions of national human rights 179 Ibid, paras. 11–12. 180 A/HRC/WG.6/13/BRA/2, para. 7. 181 A/HRC/WG.6/13/ZAF/2, p. 1.

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institutions in the case of India and South Africa, which have such bodies, and of other bodies in the case of Brazil, which has not yet established a national human rights institution but has announced its intention to establish one. We  do not consider the comments or recommendations of individual peer Governments because they are too disparate and, in any case, a reporting Government is free to accept or decline those recommendations. (a) India India, in its second upr report, sought to identify various steps taken by it in the ongoing effort of making fundamental rights real and meaningful. It provided in an Annex a summary of some important judicial pronouncements which had enabled the progressive evolution of the fundamental rights incorporated in the Constitution.182 India reported that in recent years it had taken several important initiatives aimed at securing human rights, including: the enactment in 2010 of the National Green Tribunal Act to provide for effective legal protection for the environment, forests and other natural resources; the introduction into Parliament in 2010 of a Protection of Women against Sexual Harassment at Workplace Bill; the enactment in 2009 of the Right to Education Act, which introduced a new fundamental right for free and compulsory education of children in a neighbourhood school; the introduction in 2010 of a Constitutional amendment Bill to reserve for women nearly one-third of seats in the Lok Sabha, (the Lower House of Parliament); the establishment in 2007 of a National Commission for the Protection of Child Rights; the enactment in 2006 of Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act; the establishment in 2005 of “the landmark Mahatma Gandhi National Rural Employment Guarantee Act” aimed at conferring a right to livelihood to the poor; the enactment, in 2003, of the Protection of Women from Domestic Violence Act; and the enactment in 2003 of a “historic Right to Information Act.”183 India further reported that the judiciary had been a major catalyst for change, including through its Public Interest Litigation for protection against grave violation of human rights. “The judiciary has also ensured that even if India has not signed or ratified any particular international instrument/protocol, cognizance of these is taken through its various judgments.”184 India has promulgated Citizen’s Charters. Their main objective is letting people know the mandate of each Ministry/Department/Organization, how 182 A/HRC/WG.6/13/IND/1, para. 9. 183 Ibid, para. 10. 184 Ibid, para. 11.

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one can get in touch with its officials, what to expect by way of services and how to seek a remedy.185 India reported that it had borne the brunt of terrorist activities over the last three decades from across the border. Insurgency in some parts had added another dimension. Terrorists and insurgents had taken advantage of India’s open and democratic society to perpetrate violence and killings with deleterious effect on the population and on their enjoyment of human rights.186 Nevertheless, “The Government of India remains committed to fulfill its obligations to secure to its citizens all civil and political rights.”187 The National Human Rights Commission of India, in its submission to the ohchr and the Human Rights Council, provided its assessment of the Government of India’s response to the eighteen recommendations that had been made to India in the first round of upr. According to the nhrc, there was no evidence that India intended to ratify ced. Enforced disappearance had not been enacted as a criminal offence in domestic law, nor were extant provisions of law used to deter the practice. The nhcr reported that the ‘Prevention of Torture Bill, (2010), which was originally weak, had been strengthened by a Select Committee of Parliament’s Upper House.’ If the Bill eventually adopted were to dilute the revisions proposed by the Select Committee, India’s commitment to the cat would be called into question. The nhrc was concerned that there had been no developments to amend the Special Marriage Act and to give equal rights to property accumulated during marriage. According to the nhrc, the Government continued to allow the National Commission to function independently but had given them no additional powers or greater resources. The State Human Rights Commissions ‘were mostly moribund and few human rights courts had been set up’.188 According to the nhrc there was still no national action plan for human rights. There had been little progress in strengthening human rights education and almost none of the States in India had given education priority. The nhrc was unaware of any programmes of the government on sharing its experience in promoting and protecting human rights.189 The nhrc stated that the Human Development Report 2011 of the Planning Commission had included some disaggregated data, but not on caste and 185 186 187 188 189

Ibid, para 17. Ibid, para. 22. Ibid, para. 24. Ibid, paras. 2–5. Ibid, paras. 5&7.

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related discrimination. The nhrc believed that such data was essential in key areas such as: crimes committed against women and children from the Scheduled Castes and Scheduled Tribes, violence against women other than rape, bonded labour, child labour and manual scavenging, custodial violence, illegal detention and torture.190 It would be fair to say that the nhrc was here pointing to serious problems in the protection of human rights in India. The feet of the nhcr were touching the ground. Whether one could say the same of the Government’s upr report is open to discussion. The compilation prepared by the ohchr on the findings of treaty bodies and special rapporteurs, and the compilation of submissions received from civil society give a realistic picture of what is taking place on the ground as regards the actual enjoyment of human rights. In the following sections we provide only glimpses of this material, but hopefully telling ones. The cescr has expressed deep concern that despite the Constitutional guarantee of non-discrimination as well as the criminal law provisions punishing acts of discrimination, widespread and, often, socially accepted discrimination, harassment and/or violence persisted against members of certain disadvantaged and marginalized groups, including women, scheduled castes and tribes, indigenous peoples, the urban poor, informal sector workers, internally displaced persons, religious minorities, such as the Muslim population, persons with disabilities and persons living with hiv/aids. The Special Rapporteur on the situation of human rights defenders had indicated that defenders working on such issues faced particular risks. cescr had recommended that India strengthen enforcement of existing legal prohibitions on discrimination and consider enacting comprehensive anti-discrimination legislation prohibiting discrimination in employment, social security, housing, health care and education. cescr had urged India to step up efforts to remove obstacles faced by victims of discrimination when seeking redress through the courts.191 In 2012, the Special Rapporteur on the situation of human rights defenders referred to reports that the functioning of the judiciary was hampered by a backlog and significant delays in administrating cases of human rights violations due to a lack of capacity, manpower and resources. High costs of litigation had reportedly restrained access to justice for victims. Police intimidation was said to play a role in deterring victims from filing cases.192 190 Ibid, para. 6. 191 A/HRC/WG.6/13/IND/2, para. 16. 192 Ibid, para. 35.

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(b) Brazil Brazil, in its second upr report, said that it had demonstrated its commitment in protecting human rights by acceding to most international conventions and extending a standing invitation to the special procedures and mechanisms to visit the country and monitor compliance with its international obligations. The Brazilian Constitution served as a model in relation to the recognition of rights and fundamental guarantees. Article 5 sets forth a number of provisions defined as entrenchment clauses, preventing their suppression. Under its aegis, human rights treaties have been invested with the status of constitutional amendments since 2004. In 2009 the Convention on the Rights of Persons with Disabilities became the first international instrument enacted into domestic law with constitutional force.193 Achieving development with respect for human rights, in a manner that ensures empowerment of individuals and groups, was a priority for the Government of Brazil. The best development policy was to combat poverty while the best human rights policy was to reduce inequality and discrimination among people, regions, races and genders. Guided by these principles and in partnership with social movements and the international community, Brazil had fulfilled the commitment it had undertaken before the un and met virtually all millennium development goals before 2015, integrating the human rights perspective in their fulfilment.194 With a view to reducing poverty and social inequality, in recent years Brazil had integrated social policies into economic growth strategies, fostering sustainable and inclusive development.195 Equally crucial has been the implementation of international and domestic legal frameworks. Thus, in 1996, Brazil had instituted the National Human Rights Programme, pursuant to the 1993 Vienna Declaration and Programme of Action. The programme established commitments and guidelines for State action, consolidating the perspective of human rights as a cross-cutting axis of public policy. The third version of the Programme had grown out of a broad – ranging discussion between various organizations and spheres of government, involving 33 ministries in its approval and execution and with the active engagement of civil society. The National Human Rights Programme was an extensive programme, in which all recommendations of the upr First Cycle were being addressed through programmatic government actions.196 193 194 195 196

A/HRC/WG.6/13/BRA/1, para. 5. Ibid, paras. 6–7. Ibid, para. 8. Ibid, para. 9.

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One of the significant innovations of the National Human Rights Programme lay in its cross-cutting approach to human rights, thereby affirming their indivisible and interdependent character. In order to more effectively coordinate and monitor execution of the Programme, in September, 2010 an InterMinisterial Committee for Follow-Up and Monitoring of the Programme had been established. In November 2011, the Government had pledged to strengthen public oversight of the Programme’s execution by enhancing social participation in the Committee. Efforts were underway to establish a National Human Rights Institution in accordance with the Paris Principles.197 Since there is no National Human Rights Institution in Brazil there was no submission by such a body to the Human Rights Council. However, several Brazilian organizations joined together and made a joint submission. The joint submission noted that Brazil lacked institutions compliant with the Paris Principles and that civil society organizations were finding little space for human rights in the political arena. Amnesty International noted that legislation to create a National Institution had been pending since 1994 ‘and did not guarantee independence from the Executive’.198 The ohchr report on civil society submissions stated: Several organizations have discussed the impact of development projects…on public policy and the human rights situation. Joint Submission 17…points out that the budget for human rights has been reduced by 30 per cent compared with 2010, undermining the Programme to Combat Sexual Violence, and recommends that the public resources made available to fund projects benefiting children and young persons should be proportionate to the country’s economic growth. The National Association of Centres for the Defence of Children’s Rights…expresses similar concerns and adds that the north of the country…has suffered the most from violence against children. js5 asserts that the Growth Acceleration Programme needs a proper yardstick for assessment and should be subject to social oversight.199 (c) South Africa South Africa, in its second upr report, stated that the South African Cons­ titutional framework on the respect for, promotion, protection and f­ ulfilment of all human rights and fundamental freedoms was provided for under Chapter 2 197 Ibid, paras. 10 and 11. 198 A/HRC/WG.6/13/BRA/3, para. 6. 199 Ibid, para. 10.

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(Bill of Rights) of the Constitution of the Republic of South Africa. The South African Constitution was predicated on core values and principles of (a) human dignity, the achievement of equality and the advancement of human rights and freedoms, (b) non-racialism and non-sexism, (c) supremacy of the Constitution and the rule of law, and (d) universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness. The South African Constitution, in the view of the Government, has given international momentum to the evolution for universal recognition of the notion of justiciability of economic, social and cultural rights.200 The Constitutional Court, the Government continued, has powers to declare any legislation invalid to the extent that it is inconsistent with the constitution. The South African judiciary continued to discharge its constitutional mandate impartially and independently, including adjudicating over seminal cases involving the promotion, protection and fulfilment of human rights. “The contestations between the duty bearer and the rights holders before the courts have affirmed the notion of progressive realisation, in a balanced manner, of all human rights whose full enjoyment is subject to the availability of resources.”201 The Government stated that the negative societal impact emanating from the deep seated divisions occasioned by 350 years of discrimination, in particular racial discrimination and hatred are not easy to erase in 18 years. Cognisant of this result, South Africans had adopted a constitution whose fundamental values and principles represented a bridge between a divided past and a united future sensitive to the need for social cohesion, national reconciliation and identity, healing and nation building. The scourges of poverty and underdevelopment, the abuse of substances especially among the youth, the residual and subtle forms of racism, xenophobia and homophobia are some of the factors impeding the attainment of social cohesion.202 The Government had, over the past 18 years, worked consistently and tirelessly to ensure gradual improvement in addressing both procedural and substantive gaps in its quest for the promotion, protection and fulfilment of its national and international human rights obligations. The attainment of social cohesion was one of South Africa’s key priorities in its programmes for nation building.203

200 201 202 203

A/HRC/WG.6/13/ZAF/1, para. 8. Ibid, para. 19. Ibid, para. 20. Ibid, para. 21.

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In its submission, the South African Human Rights Commission stated that despite previous upr recommendations, xenophobia remained a significant challenge and that measures taken to address it had failed. The Commission reported an increase in hate crimes perpetrated not only on grounds of race but also on the basis of nationality and sexual orientation. There was an urgent need to address hate crimes through legislation and adopt measures to raise public awareness about these crimes.204 The Commission observed that the Draft Combating of Torture Bill had yet to be placed before Parliament, after many years. It said that the traditional cultural practice of ukuthwala, by which older men abduct young women for purposes of marriage, was the subject of serious concern. The Commission considered that this practice should be strongly condemned and called on the Government to enact legislation to ensure that women, and particularly children, are protected from such a practice. It also urged the eradication of the practice of killing ‘witches’. It further noted that the practice of polygamous marriages had been subject to considerable debate.205 The South African Human Rights Commission highlighted the issue of widespread poverty, the difficult position of women in rural areas and continuing challenges with service delivery in rural parts of the country. It noted current trends suggesting that maternal mortality was increasing. It recommended that South Africa determine and address the causes of maternal mortality. It recommended the adoption of additional measures to ensure that all citizens have access to water and sanitation. It noted the need to urgently address the impact of acid mine drainage on the right of access to water. The Commission noted that poverty remained a significant barrier to education and that the quality of education was uneven, largely to the detriment of poor children. It highlighted the need for a comprehensive monitoring and evaluation system to track progress and areas of concern. It urged the Government to ensure that all children with disabilities enjoy access to education.206 X

Positions in the un Human Rights Council

The former Commission on Human Rights was replaced ten years ago by the current Human Rights Council and three features of the Council are worth singling out in the present context. First, out of the membership of 47 states, 204 A/HRC/WG.6/13/ZAF 3, para. 4 205 Ibid, para. 7. 206 Ibid, paras. 9–14.

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Africa and Asia, with 13 seats each, have an outright majority on the Council and can hold sway on the major issues. Latin America as a group lost seats in comparison with the former Commission. So did the European groups, West and East. In short, Afro-Asia can call the shots on the Council. Second, while the General Assembly in establishing the Council did call upon it to act for the prevention of gross violations of human rights and to respond to human rights emergencies, the Council’s mandate is to promote universal respect for the protection of human rights. This wording is significant, inasmuch as it places the emphasis on promotion rather than on protection. Furthermore, the General Assembly resolution establishing the Council expressly calls on it to pursue strategies of dialogue and cooperation. This is very much up the street of India, Brazil, and South Africa. It is probably inevitable that a political body such as the Council would pursue largely political approaches to the discharge of its mandate. That is a foundation issue influencing one’s perception of the Council as an organ of politics rather than of principle. Suffice it to register the point when examining the approaches of India, Brazil, and South Africa. A Interests, Vulnerabilities and Aspirations India, Brazil and South Africa all have massive human rights problems in the areas of both economic, social and cultural rights and civil and political rights. All three countries have large segments of their population living in dire poverty. In India’s case, caste discrimination is still rampant in the country, notwithstanding legislation and policies designed to curtail this practice. Brazil and South Africa also have massive problems of poverty and deprivation. In all three countries there are allegations of widespread brutality by lawenforcement forces and allegations of torture and mistreatment abound in all three countries. Brazil has the massive problems of street children and economic and social deprivations in the favelas. In South Africa, twenty years after independence, large masses of its people plead for alleviation of their economic and social plight. India and Brazil are technological innovators and their products are sought world-wide. South Africa inherited a highly respected industrial base from the former apartheid rulers and it also has a great deal to offer the rest of the world. Whether it has been as inventive as India and Brazil in recent times is something for others to comment upon. India has massive security challenges, with the dispute over Kashmir and insurrections in the north-east. Besides, India has experienced repeated attacks from international terrorists and is quite vigilant on this topic. India, during

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its  membership of the un security council, chaired the counter-­terrorism ­committee. India will always have these security issues prominently in mind in international fora, including in the Human Rights Council. Brazil and South Africa do not have similar security problems and can afford to be more relaxed on this front. Both Brazil and South Africa have the issue of foreign migration and the treatment of migrants within their countries is something to which they will be sensitive. All three countries aspire to membership on the un Security Council and this undoubtedly influences their policies and postures in fora such as the Human Rights Council. All three countries are contested as potential members of the Security Council from within their own regions and must seek to shore up international support for their candidacies. It is against the foregoing background that one would need to assess the approaches of the three countries on the Human Rights Council. B Voluntary Pledges All three countries, in seeking membership on the Human Rights Council, have made voluntary pledges that are not particularly outstanding in comparison with those of other countries. C Initiatives on the Human Rights Council India, Brazil and South Africa have all championed the right to development and an Indian national was the independent expert of the council on this topic. Brazil has taken important initiatives on the Council. One that may be singled out is its resolution that members of the Council and un members as a whole should undertake voluntary goals in the establishment and implementation of their human rights policies. Brazil has also sponsored resolutions on hiv/aids and human rights, malaria, tuberculosis and access to medicines, and on the incompatibility between racism and democracy. Brazil has also played a leadership role on the impact of the global financial crisis on the universal enjoyment of human rights. South Africa has been active in promoting the idea that there is need for new standards against racism and racial discrimination to supplement the existing international convention on the elimination of racial discrimination. As mentioned above, South Africa took the lead in getting the Human Rights Council to adopt its first-ever resolution on sexual orientation and human rights. In India’s case, as on the Security Council, it has provided leadership on the issue of terrorism and human rights.

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D Responding to Human Rights Emergencies When it comes to responding to human rights emergencies all three countries have been criticised by domestic and international human rights ngos. In June, 2011, following India’s re-election to the human rights council, Human Rights Watch wrote to its Prime Minister drawing attention to serious violations of human rights in India and appealing to him for India to provide leadership in the council when it came to responding to human rights emergencies. Human Rights Watch stated: …(w)e hope very much that India will use its considerable global influence to address human rights problems in other countries and, as a member of the Human Rights Council, to assert leadership in the promotion of human rights at the Council. in the past, India has often opposed strong international action to address serious human rights problems in specific countries. India’s growing regional and global influence should be matched by an increasing commitment to protect human rights abroad. Similarly, on the occasion of President Lula’s visit to the Human Rights Council in 2009, Human Rights Watch issued a statement, “Brazil: support victims, not abusers.” The communique stated: When President Lula da Silva of Brazil addresses the un Human Rights Council on June 15,2009, he should explain why Brazil is using its vote in the Council to protect countries with appalling human rights records… Brazil seems more concerned about not offending abusers than it is about implementing the Council’s mandate to address human rights violations…Brazil has preferred to align itself with countries like China, Cuba and Pakistan that question the value of country-specific action at the Council. Brazil has turned its back on countries like Argentina, Mexico, and Chile that have had a much more committed approach to human rights in the un. In similar vein, the Brazilian human rights organization, Connectas, issued a statement in which it noted that “Brazil’s track record on the Council…has been marked by ambiguities, particularly when it comes to cases of grave and persistent human rights abuses in specific countries. the recent cases of North Korea and Sri Lanka exemplify this paradox.” South Africa, at independence, took a principled stance on human rights issues in United Nations fora such as the former un Commission on Human

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Rights. South African Ambassador Jacob Selebi chaired the Commission with much respect and admiration. Subsequently, South Africa began to lead the charge at the Commission that it was taking up too many African situations. Principle counted less than expediency. Since then South African foreign policy has been seen as quite erratic. On 6 November, 2012, the Financial Times carried a supplement on South Africa and Africa that had an article, “Continental policy pulled in different directions,” which stated: “For a country that set out under Nelson Mandela to place freedom, democracy and human rights at the centre of its foreign policy, South Africa has championed some unlikely causes in recent times.” The article noted South Africa’s support for former Ivorian President Gbagbo. “When it came to Libya, South Africa’s position was even more confusing.”

Conclusion and Assessment

What assessment can one provide, overall, of the approaches of the ibsa countries to the handling of human rights issues? 1. 2. 3.

4. 5. 6.

7.

First, we must recognize that all three countries are genuine political democracies, with respectable legal systems but with serious problems as regards access to justice and the speed of justice. Second, all three countries have serious problems at home when it comes to the respect of civil and political rights as well as economic, social and cultural rights. Third, all three countries are in quest of economic development and greater equality at home and attach importance to the realization of economic, social and cultural rights. Brazil is probably faring better than the other two in this domain. Fourth, it would be fair to say that all three countries lead by example in participating in human rights treaties, in the special procedures, and in the upr process. Fifth, as regards the Human Rights Council, all three countries favour approaches emphasising dialogue and cooperation, avoiding confrontation. Sixth, all three countries are reluctant to speak out against Governments committing gross violations of human rights and only do so when they feel they have no other choice. India stoutly opposes any attempt to place the issue of caste discrimination on the ­international agenda. Seventh, one could say that Brazil provides some global leadership on international human rights issues but it would be hard to say the same of

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India and South Africa. Brazil is ready to provide human rights technical assistance and makes substantial voluntary contributions to ohchr. India and South Africa make nominal contributions. 8. Eighth, India is in a strategic alliance with the usa and shares similar views with it on the struggle against global terrorism. The threats against India from terrorists makes this understandable. India shares the us and Western emphasis on the importance of democratic governance. 9. Ninth, all three countries have led policy initiatives on particular issues in the Human Rights Council. South Africa has led on the issue of racial discrimination and discrimination against persons with different sexual orientations. Brazil has led on the issue of countries making national commitment to promote and protect human rights. India has been a prominent supporter of resolutions on the issue of terrorism and human rights. India’s support for the resolution of the Council at its twentieth session on human rights issues in Sri Lanka is considered to have been ground-breaking inasmuch as it allowed the Council to establish the point that it would, if need be, adopt country resolutions where there are concerns about gross violations of human rights. 10. National protection, in practice, is weak in all three countries.

chapter VII

International Cooperation: The Universal Periodic Review

Introduction

The Universal Periodic Review Process has met with optimism as well as scepticism. Optimists think that it can help, over time, to steer every country in the direction of better implementation of international human rights norms. Skeptics argue that it is a procedure without teeth which is tolerated and ‘managed’ by many governments with tarnished human rights records. Both points of view have grains of truth in them. Nevertheless, the upr process has significant strategic value in a world in which the ground is shifting under the feet of the global human rights movement. Stated succinctly, the upr process validates the international human rights norms promulgated by the United Nations since it was founded and shields them from frontal attack by Governments that, given room, would like to re-write the ground rules regarding the place of human rights in international relations. The upr process therefore is one of the most significant areas of activities of the Human Rights Council. The process bolsters universality, encourages the strengthening of national protection systems, provides space for the engagement of civil society and ngos, exposes violations, encourages cooperation, dialogue and facilitation, can lead to improvements through the acceptance and implementation of the recommendations of peers, can lead to the strengthening of national human rights institutions, stimulates technical assistance, and can reinforce the international human rights treaty system as well as the system of human rights special procedures of the Human Rights Council. Before proceeding to discuss each of these items in turn, let us look at the parameters of the process as they have developed so far. I The upr Parameters According to the upr system, every Government is required to submit once every four and a half years a twenty page report on its efforts to uphold human rights. Three hours are devoted to the discussion of this report in a working © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004289031_009

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group of the whole and one hour in plenary. Some governments under review have sought to pack the speaker’s list with their supporters. There are tight speaking limits, 5 minutes for governments and less for ngos – which may only participate in the plenary stage but not at the working group stage. At the end of the discussion in the plenary an identical, bland decision is adopted by the Council. Suggestions made by commentators may be accepted or rejected by the Government under review. The objectives of the upr, as stated in the governing instrument(s) are the improvement of the human rights situation on the ground, fulfilment of the States human rights obligations and commitments, and assessment of positive developments and challenges faced by the States; enhancement of the States’ capacity and technical assistance in consultation, and with the consent of, the States concerned; sharing of best practices among states; support for cooperation in the promotion and protection of human rights and encouragement of full cooperation and engagement with the Council, other human rights bodies and ohchr. The bases of the review are the un Charter, the Universal Declaration of Human Rights, human rights instruments to which a State is party; voluntary pledges and commitments made by states including those undertaken when presenting their candidatures for election to the Human Rights Council; international human rights law; and international humanitarian law as applicable. The principles of the upr envisage that it would be a cooperative mechanism based on objective and reliable information and on interactive dialogue; ensure universal coverage and equal treatment of all states; “be an intergovernmental process, United Nations Member-driven and action oriented”; fully involve the country under review; “be conducted in an objective, transparent, non-selective, constructive, non-confrontational and non-politicised manner.” It should not diminish the Council’s capacity to respond to urgent human rights situations, ensure a gender perspective and take into account the level of development and specificities of countries. It should ensure participation of all relevant stake holders including ngos and national human rights institutions. The periodicity of the review for the first cycle was four years. For the second cycle it was increased to four and a half years. This has required the consideration of (about four dozen) states per year during three sessions of a working group of the whole of two weeks each. All member states of the Council are to be reviewed during their term of membership. A mix of member and observer states of the council should be reviewed. The period between review cycles “should be reasonable so as to take into account the capacity of states to prepare and the capacity of other stake-holders to respond to the requests arising from the review.”

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The documents on which the review is based are information prepared by the State concerned; a compilation of up to ten pages prepared by ohchr of information contained in the reports of treaty bodies, special procedures, and other relevant official United Nations documents; additional credible and reliable information provided by other relevant stakeholders which ohchr summarizes in a document of up to ten pages. The review is conducted in a Working Group of the whole composed of 47 member states of the Council chaired by the Council’s President. Observer States can and do participate in the review in large numbers, including in the interactive dialogue. Other relevant stakeholders can attend the conduct of the review in the working group. A group of three rapporteurs composed of states representatives selected by drawing lots among the members of the Council from different regional groups (a troika) is formed to facilitate each review. The interactive dialogue between the country under review and the Council takes place in the working group. The rapporteurs could collate issues or questions to be transmitted to the state under review to facilitate its preparation and to focus the interactive dialogue. The duration of the review before the working group is three hours for each country in the working group. Additional time of up to one hour is allocated for the consideration of the outcome by the Council plenary. Half an hour is allocated for the adoption of the report of each country under review in the working group. The final outcome is adopted by the plenary of the Council. Before the adoption of the outcome by the plenary of the Council the state concerned is offered the possibility to present replies to questions or issues that were not sufficiently addressed during the interactive dialogue. The State concerned and the member states of the Council as well as observer states, are given the opportunity to express their view on the outcome of the review before the plenary takes action on it. Other relevant stake holders have the opportunity to make general comments before the adoption of the outcome by the plenary. The outcome of the upr, “as a cooperative mechanism,” “should be implemented primarily by the State concerned and, as appropriate, by other relevant stake holders.” Subsequent, follow-up reviews, should focus, inter alia, of the implementation of the preceding outcome. Many countries send high-level delegations to the Council when their reports are considered. During the process pertinent comments are made by fellow Member States as well as by representatives of civil society. Useful recommendations are put forward and ngos make trenchant criticisms where there is a case for it. The report of the upr Working Group records views expressed during the Working Group stage. The reports of the plenary council record these views and they are there for the future.

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As between the presenting State and their peer Member States there is a mainly diplomatic process of dialogue. Recommendations are usually made with a light touch and the State under review is free to accept or not to accept those recommendations. Notwithstanding this, many structural issues are discussed and important institutional recommendations advanced. Should the country establish a national human rights institution? Should the country ratify particular conventions? Should the country (in the case of Monaco), become a member of the International Labour Organization? Should the country be more humane in its treatment of migrants? Should the country have stronger guarantees against torture? Numerous recommendations are accepted by states under review. In some instances the acceptance rate reaches from seventy to 90 percent. The fact that these commitments are made before other Member States of the un is of some importance. Time will tell whether the implementation rate matches the acceptance rate. Follow up will be crucial and this should not await the second or subsequent rounds. Notwithstanding these positive features of the upr process, it has one Achilles heel: many member states with atrocious human rights records are treated by their peers with kid gloves – notwithstanding the plaintive cries of ngos. There could be a rationale for what is taking place: it could be argued that it is useful for all member States to go through a process of dialogue and cooperation in the Council with a view to encouraging them to walk the human rights road. But this must be matched by a strong procedure for dealing with countries guilty of gross violations of human rights. Without such a ‘violations’ component, the upr process runs the risk of being a sham, and a human rights body cannot survive if it is a sham. II Universality The international human rights regime developed since the establishment of the United Nations is, in the second decade of the twenty-first century, undergoing considerable strains from many quarters. Although this has so far not become a frontal challenge, there are those who would be minded to call in question many of the norms and practices being applied at the present time. Some Governments have launched initiatives within the un General Assembly and elsewhere challenging the practices and interpretations of human rights treaty bodies. Human rights special procedures have come under great pressure when they expose or denounce gross violations. They are encouraged to engage in cooperation and dialogue, instead of confrontation, when addressing human rights violations.

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In an important book published in 2014, Geoff Dyer presents The Contest of the Century, a work about the new era of competition between China and the usa. A key part of this contest is over the ground rules of international relations, particularly on issues such as human rights. Dyer writes: If the twentieth century saw fierce ideological battles between fascism and liberal democracy and between capitalism and communism, then one of the central dividing lines in this century will be the issue of state sovereignty. As China has become more powerful over the last decade, Washington and Beijing have started to compete over the basic rules at the heart of the international system, about the duties and responsibilities of what is sometimes called ‘the international community’. In part, it is a battle for the soul of the United Nations, where many of these disputes are played out, but it is also a bigger discussion about the role of human rights in international affairs. In one corner, the u.s. and Europe urge greater intervention in states that are conducting massive abuses against their citizens; in the other corner, China and Russia defend a belief that absolute sovereign rights are the bedrock for a stable international system…. Beijing would like to use its new influence to set the tone for how international politics will be organized and to check what it sees as Western moralising and meddling.207 Dyer added, in fairness, that China believes it is creating a more equitable world, a ‘democracy between nations’ in which each state is treated equally by the rest of the international community: “Whereas the West values human rights and transparent governance, China places emphasis on stability. Beijing argues that only when a poor country has a solid government, whose sovereignty is respected by other nations, can it then introduce the sorts of coherent, long-term policies needed to promote growth and reduce poverty.”208 Mindful of the foregoing considerations, it is of some importance that every Member State of the United Nations has participated in the upr process on the normative basis laid down by the un General Assembly, namely the un Charter, the Universal Declaration of Human Rights, human rights instruments to which a State is party; voluntary pledges and commitments made by states including those undertaken when presenting their candidatures for election to the Human Rights Council; international human rights law; and 207 G. Dyer, The Contest of the Century. The New Era of Competition with China – and How America can Win (New York. Knopf, 2014), pp. 201–202. 208 Ibid, p. 204.

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international humanitarian law as applicable. Every national report submitted to date has proceeded from the premise of the validity of the core normative human rights framework developed by the United Nations and has sought to underline the country’s attachment to this normative framework.209 A note of caution needs to be entered here. In a Press Release issued on 27 June, 2013, the International Service for Human Rights reviewed the recent achievements and challenges of the Human Rights Council and highlighted problems with the promotion of ‘traditional values’. ishr saw as a challenge the push by some States “towards fundamentally regressive goals,” one of which, it said, was organised around the concept of so-called traditional values: “The Council has adopted several resolutions on this subject, led by Russia, the thrust of which has been to attempt to establish traditional values as a legitimate way to interpret human rights. We see this as a serious and insidious attempt to undermine the universal human rights framework, and it has particular repercussions for those who challenge societal ‘norms’, particularly women and lgbt defenders, but also any group whose views or identities lie outside mainstream society.”210 III

The Strengthening of National Protection Systems

Governments participating in the process in good faith can, and do endeavour to strengthen their national protection systems. At the 25th session of the Council, in March, 2014, the representative of Botswana, speaking in the highlevel segment, informed the Council that in light of a recommendation made in the upr process it had established a national human rights institution. The Government of Ireland noted that it had distributed an interim report on the recommendations made during its previous Universal Periodic Review, many of which related to prison conditions. Ireland, it said, was taking a number of actions to improve conditions and avoid prison crowding and the imprisonment of children. A referendum to amend the constitution to include the rights of children had passed and Ireland hoped that this change would soon be effected, providing additional protection. A new state agency dedicated to children and the family represented a response to protection failings and service provision. 209 Interview with ohchr upr official Luca Lupoli, Geneva, 25 March, 2014. 210 International Service on Human Rights, “The Human Rights Council: Recent Achievements, Challenges, and a Look Ahead,” 27 June 2013. http://www.ishr/human rights council-recent achievements – challenges-and-look-ahead, accessed 07/12/2013, pp. 2–3.

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The Irish Human Rights Commission, however, told the Council that insufficient progress was being made by Ireland on the establishment of the new human rights and equality commission. The Constitution perpetuated stereotypes against women. There had been no progress on a consolidated legislative framework on migration and asylum issues. Steps had not been taken on considering Travellers as a minority. There were no proposals on a national action plan for human rights, on human rights education and training or on racism. Poor hygiene facilities and crowding continued to be features of prisons in Ireland. The Australian Human Rights Commission informed the Council about developments and achievements in a number of areas, including the National Action Plan on Human Rights, commencement of the National Disability Insur­ ance Scheme and appointment of the first National Children’s Commissioner. One of Australia’s biggest human rights challenges was the ongoing mandatory immigration detention and transfer of asylum seekers, including unaccompanied children, to third countries for processing. Romania addressed the Council on how parliaments could contribute to the promotion and protection of human rights and briefed the Council on a seminar it had held on translating international human rights commitments into national human rights realities, including the role of parliaments in the upr process. The above instances show that the upr process has the potential of influencing governments acting in good faith to take action to strengthen national protection systems. However, not all governments necessarily act in good faith, as we shall see next. IV

The Engagement of Civil Society and ngos

ngos and civil society do play an important part in the upr process but they are also experiencing serious problems. ngos submit to ohchr information on the facts on the ground in countries being reviewed and this information is summarised and placed before the Council. ngos are able to make representations to individual members of the Council even if they are not allowed to participate formally in the working group stage of the upr process. At the plenary stage ngos are given, all together, twenty minutes to make submissions to the Council and they are the ones who carry the load in informing the Council about gross violations of human rights, as we shall see in the next section. However, ngos and their representatives experience severe problems in many countries and this is undoubtedly a barometer of the lack of good faith

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on the part of many governments participating in the upr process. At the 25th session of the Council, during the general debate on the upr process, Uruguay, speaking on behalf of a Group of 58 Countries, said that having witnessed the very constructive participation of civil society and ngos in the upr process, the mechanism had been enriched by their contributions. However, the Group of Countries expressed deep concern for those cases in which civil society had been threatened in various ways. Everyone had the right to communicate with and access the United Nations. All States should refrain from, prevent and prosecute any act of intimidation or reprisal against anyone who cooperated with the United Nations, or their families. At the same session, the International Service for Human Rights had made representations to the Council about an ngo representative from China en route to the Council to participate in the Council’s consideration of China’s report who had been taken off the plane and imprisoned where she had died some six months later. The Czech Republic told the Council that unfortunately the openness of the upr process vis a vis civil society stakeholders was under attack, and that there had been highly disturbing reports of persecution, harassment and criminalization of people involved in it. The Czech Republic was appalled by the harassment, arrest and recent death in jail of Ms Cao Shunli in China and called for a prompt and independent investigation into her death. China firmly rejected any attempt to use the upr process to achieve ‘politicised objectives’. Such politicization, it said, ran contrary to the principles of the upr process and was an affront to the objectivity and transparency of the upr mechanism. The facts here speak for themselves. The contrast between diplomacy and reality on the ground is also attested to by the exposure of gross violations, in which ngos play the leading role, as we shall see next. V

Exposure of Violations

Peer governments participating in the upr process do not, for the most part, draw attention to gross violations inside the country being reviewed, but some do. Those wishing to do so can draw upon the findings and recommendations of human rights special procedures. Even though the time and space allocated to ngos to participate in the process is limited, they invariably, in the plenary stage, draw attention to violations that have taken place inside the country. To this extent, therefore, the process provides some room for the exposure of gross violations of human rights. The report of the Human Rights Council on its 24th session records Human Rights Watch expressing deep disappointment that the Government of

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Turkmenistan had rejected many of the recommendations that cut to the core of its repressive policies and that it continued to deny the existence of widelyrecognized problems, including the longstanding use of imprisonment as a tool for political retaliation. Because human rights defenders could not work openly, and the lack of external scrutiny, it was impossible to estimate the number of political prisoners. Human Rights Watch regretted the rejection of recommendations which would have had a real impact on freedom of expression, including protection for journalists and media workers, and of the recommendations to decriminalize sexual relations between consenting adults of the same sex. It called for an end to the blocking of websites offering a plurality of views and the creation of a country specific mechanism by the Human Rights Council.211 Amnesty International, for its part, welcomed the acceptance of recommendation to guarantee freedom of expression, association and peaceful assembly and improvements in national legislation, but was concerned that there had been no genuine attempt to guarantee these rights in practice. Journalists, human rights defenders and other activist continued to be subjected to harassment, arbitrary detention, torture and other ill-treatment, and imprisonment after unfair trials. Turkmenistan, it added, had also failed to reform the registration process for ngos and not allowed them to work freely. It was deeply disappointed that recommendations to provide information on the whereabouts of prisoners had been rejected and that there were relatives who had had no news of their relatives for 10 years. Amnesty International welcomed the acceptance of the recommendations relating to torture, but noted that impunity for perpetrators of torture prevailed.212 VI

Cooperation, Dialogue and Facilitation

The strength of the upr process is said to be cooperation, dialogue and facilitation. There is some measure of this, but the process has its limitations. During the negotiations leading to the establishment of the upr process, Morocco had moderated the deliberations. During the 25th session of the Council, in the general debate on the upr process, Morocco made a statement on behalf of a Group of States in which it recalled that the upr process should not be overly burdensome and should be conducted in a constructive atmosphere. The Group of States proposed to uphold the following measures to improve the process: to exercise restraint in the number of recommendations in order to bring recommendations to a more manageable level; to offer high quality recommendation, ensuring they 211 A/HRC/24/2, para. 312. 212 Ibid, para. 313.

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were practical, forward looking, and implementable; and to provide follow-up reports. In similar vein, the ngo upr-Info, in a joint statement on behalf of some ngos, said that, while there was universality of the upr, there was now needed a qualitative leap regarding the precision of recommendations. There was concern that without a specific action contained in a recommendation, it was hard for a State under review to understand what was required from it. The varying perspectives on the upr process were reflected in the debate in the statements of different delegations. Sudan cautioned that exploiting the Review and using it as a tribunal for politicization and for achieving different goals could harm its reputation and credibility. Sudan warned against the creation of legal requirements, when countries did not accept this approach, as this could damage the enthusiasm of countries to act efficiently and implement recommendations. Yemen, speaking on behalf of the Arab Group, underlined the importance of preserving the mechanism and ensuring its effectiveness as a space for dialogue and constructive interaction, which required impartiality and avoidance of politicization or ‘instrumentalisation’ for purposes other than human rights. However, the United States said that the review process should ensure the participation of all relevant stakeholders, and the participation of civil society was essential to provide an accurate picture, data and plural perspectives. ngos often spoke for those who lacked a voice. All participants should be able to participate openly and without fear of retribution or reprisals. No individuals should feel threatened for participating, and States must respect the rights of those contributing to the Council. Greece, speaking for the European Union, said that meaningful participation had to be followed by action on the ground. In similar vein, Amnesty International said that follow-up and implementation were essential if the upr process was to live up to its potential, and welcomed the presentation of mid-term reviews in this regard. The involvement of the international community and recommending States should not end after an examination in Geneva. National human rights institutions should assist Governments to live up to their commitments and to facilitate the involvement and contributions from civil society. The debate, once more, provides a barometer of what the upr is in reality. VII

The Acceptance and Implementation of the Recommendations of Peers

In varying degrees, every government that participates is the upr process accepts some recommendations of its peers. Some of these recommendations might be structural or deal with core issues; others might be more cosmetic.

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In a resolution that it adopted without a vote at its 24th session, dealing with indigenous peoples, the Human Rights Council ‘reaffirmed that the universal periodic review, together with the United Nations treaty bodies, are important mechanisms for the promotion and protection of human rights and, in that regard, encourages effective follow-up to accepted universal periodic review recommendations…as well as serious consideration to follow up on treaty body recommendations…’213 VIII

Technical Assistance and Follow-up by un Country Teams

The upr process contributes to the provision of technical assistance to Governments seeking it. In Vietnam, for example, undp, at its request, has been supporting it with projects to strengthen national legislation and to reinforce the prohibition of torture.214 According to a knowledgeable ohchr official, one of the significant developments as a result of the upr process has been the interest shown in it by un Country Teams in formulating their projects of cooperation inside countries. Country teams are paying particular attention to the upr discussion of the countries they are stationed in and have been using recommendations and acceptances by Governments in formulating cooperative programmes designed to strengthen national laws and national protection systems and to integrate human rights in the development process.215 IX

Reinforcing the International Human Rights Treaty System

The upr process has the potential of reinforcing the international human rights treaty system. In the first place ohchr provides the Human Rights Council with a succinct report containing the principal recommendations of human rights treaty bodies on each State. This recapitulatory report places before the world what the human rights treaty bodies have found regarding a particular state and allows other Governments and ngos, as well a national human rights institutions, to remind a State Party about recommendations that it has not yet implemented. In the second place, human rights treaty bodies in turn can consider and take account of the deliberations of the Human 213 A/HRC/24/2, resolution 24/10, para. 13. 214 Interview with ohchr official Eric Tistounet, Geneva, 2 April 2014. 215 Interview with ohchr official Craig Mokhiber, Geneva, 9 April, 2014.

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Rights Council when they come next to consider reports from the Government in question. In the third place, ohchr and other entities in a position to do so could offer advice and technical assistance on national follow-up to the recommendations of human rights treaty bodies. The upr process makes other modest contributions to the system of international human rights treaties. Besides the contributions just mentioned, the process can and does serve as an incentive for Governments to ratify treaties that they have not yet accepted. The process can and does act as a stimulus for States Parties with outstanding reports under particular human rights treaties to submit their outstanding report(s) before appearing before the Human Rights Council. Comments during the consideration of national reports under the upr process can lead to the withdrawal of reservations made under treaties. The upr process can strengthen the hands of national human rights institutions and civil society in their efforts for the national implementation of human rights treaties. These are admittedly modest contributions and we must await further experience with the upr process to see what the long-term impact will be. X

Reinforcing Human Rights Special Procedures of the Human Rights Council

The upr process also has the potential of reinforcing the role of the human rights special procedures. In the first place, as for human rights treaty bodies, ohchr provides the Human Rights Council with a succinct report containing the principal recommendations of human rights special procedures on each State. This recapitulatory report places before the world what the special procedures have found regarding a particular state and allows other Governments and ngos, as well a national human rights institutions, to remind a State Party about recommendations that it has not yet implemented. In the second place, human rights special procedures in turn consider and take account of the deliberations of the Human Rights Council when they come next to consider reports from the Government in question. In the third place, ohchr and other entities in a position to do so could offer advice and technical assistance on national follow-up to the recommendations of human rights special procedures. Conclusion The upr process does add some value to the un human rights programme. Every un Member State is required to prepare a report on its efforts to promote

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and protect human rights. Alongside this report are two documents of some importance: a summary of the findings and recommendations of un treaty bodies and un special procedures and another summary of the views of civil society. Taken together, these three documents provide a useful snapshot of the situation of human rights inside the country. Many countries put a positive spin on their reports but this is balanced by the other two documents. Taken together, these documents collectively amount to a world report on human rights. This is a useful spin-off of the upr process.

chapter VIII

International Legislation

Introduction

In a rapidly evolving international society the drafting of new norms to meet emerging problems and challenges must be counted among the core functions of the Human Rights Council. The Council has indeed continued the process of drafting and promulgating new human rights standards but has so far demonstrated little awareness of the need to develop a long-range policy in this area. In this chapter we look briefly at the drafting record of the Council thus far and then proceed to discuss some policy issues that the Human Rights Council would need to take into account as it develops its future legislative role. I

The Drafting Role of the Human Rights Council in its First Decade

The Human Right Council, like the Commission on Human Rights before it, is a forum where Governments, ngos, the un Secretariat and others might initiate informal and formal discussion about the adoption of new instruments. The initiation process has, since the establishment of the United Nations, been done on a case by case basis, and this continues with the Council. One advantage of this approach is that it is pragmatic. A de-merit is that there is no vision of the future, no planning document, and no systematic process for the preparation of studies or background papers before the initiation of the drafting process. Usually, a Government or an ngo comes up with a draft instrument and then discussion proceeds on the basis of this draft. It was understandable that the former Commission on Human Rights proceeded on a case by case basis. The founding conference of the United Nations at San Francisco in 1945 had passed on to it the idea of the drafting of an International Bill of Human Rights and the Commission gave a three part content to the International Bill: A universal declaration, one or more covenants followed by other treaties, and measures of implementation. There was so much ground to cover that the Commission had its work cut out for it for years. In addition, its Sub-Commission, which did a series of global studies on human rights issues, often concluded them with recommendations for new norms. The Commission would then initiate the governmental drafting process that

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would eventually culminate in the adoption of instruments in the General Assembly. In the dispensation that came into force following the establishment of the Council, it is still be possible for its Advisory Committee to conduct studies at the request of the Council, or to scan the scene for normative insights and to make recommendations to the Council. The Council has, however, decided that the Advisory Committee can only take up issues at the express request of the Council and therefore the search for vision, for a game plan, would need to be initiated in the Council itself. Since its establishment in 2006 the Human Rights Council has sent up to the General Assembly for finalisation and adoption the following instruments that now form part of the international code of human rights: the Convention on disappearances; the Optional Protocol to the economic and social covenant; the Optional Protocol to the convention on the rights of the child; and a declaration on human rights education. The Council has also adopted instruments on the right to peace and the rights peasants. The Council has been deliberating the possible need for supplementary standards to combat racism and racial discrimination. An interesting contribution of the Council was its adoption of Guiding Principles on extreme poverty and human rights. In its resolution 21/11, the Council took note with appreciation of the report of its Special Rapporteur on extreme poverty and human rights on the guiding principles on extreme poverty and human rights216 and adopted the guiding principles on extreme ­poverty and human rights contained in that report as a useful tool for States in the formulation and implementation of poverty reduction and eradication policies. The Council transmitted the guiding principles to the General Assembly for its consideration. The novelty of this precedent is that the d­ rafting work was done mainly by the special rapporteur and that the inter-governmental filtering process would be done in the General Assembly itself. Four instruments adopted in a decade, and one under consideration, is a respectable performance even if the convention on enforced disappearances and the Optional Protocol to the covenant on economic, social and cultural rights were already being drafted by the predecessor Commission. There has so far not been any targeted reflection inside the Council on the policy dimensions of the legislative drafting process and, with a view to facilitating future deliberations on this topic, we discuss next some issues related to the international human rights legislative process. 216 A/HRC/21/39.

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Characteristics of the Legislative Process in the Area of Human Rights

The law-making process in the area of the international law of human rights has special characteristics that set it apart from most other areas of international law. It shares with international law in general the idea of the ­international rule of law and a quest for justice for humanity. But its focus is on individuals, on groups, on people. And it bears the imprint of individuals, groups, and ­peoples. Individuals like Professor Charles de Visscher sought to build the postwar international order on the foundations of human rights: the Fundamental Rights of Man as the Basis for the Restoration of International Law.217 Individuals like Professor Sir Hersch Lauterpacht formulated the vision of an International Bill of Human Rights,218 a strategic presentation that still guides the international human rights movement. Individuals like Raphael Lemkin,219 who coined the term and offence of genocide, and worked indefatigably for its adoption by  the un General Assembly. Groups like minorities and indigenous populations have helped in the development of norms for their protection. Peoples like those of the former colonies and non-self-governing territories who fought for realization of the right to self-determination and made this right the opening article of the two international covenants on human rights. This people-based, missionary characteristic of the international law of human rights has influenced the law-making processes: an idea comes from within the human rights movement, it is formulated as a possible draft declaration or convention, a draft is floated, there is lobbying for the relevant un body to take up the proposal, and after this is done there are different contributors to the drafting process: individuals, experts, organizations, governmental experts or representatives, members of the un Secretariat, and then the deliberative bodies of the United Nations, culminating in the un General Assembly, where governments are in charge but experience the lobbying of human rights actors.220 Unlike, say, the International Law Commission, there is, for the most 217 Prof. De Visscher’s report may be found in the Report of the Institute for International Law on its 1947, Lausanne session. 218 Subsequently published as his book, An International Bill of the Rights of Man, oup, (1945) 2014. 219 See the study by William Korey on Raphael Lemkin, An Epitaph for Ralph Lemkin, published by the Jacob Blaustein Institute for Human Rights. Available at http://ajcarchive .org/AJC_DATA/Files/7A16.PDF. 220 This process has been described by international relations specialists as a “constructivist” approach to norm formation in the international community. See Steve Ropp and Kathryn

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part, no mid-, or long-term, plan of action for law-making, and not a conscious process of drafting in an expert body before the draft is taken up at the governmental level. The former Sub-Commission of the then Commission on Human Rights (now the Human Rights Council) did do some expert studies and recommended drafts to the Commission, and if the current Human Rights Council so chooses, its Advisory Committee might work out a draft, as it did recently with a draft declaration of human rights education.221 The former Commission on Human Rights, at the outset, in 1947, did adopt a plan for an International Bill of Human Rights222 and did produce drafts of the Universal Declaration and of the two Covenants. The un Secretariat contributed to this process. But unlike, say, the un Commission on International Trade Law, it is largely a process of innovation and improvisation bearing the imprint of members of the international human rights movement.223 Solid examples of initiative within the human rights movement are the Declaration and then the Convention against Torture. Amnesty International judged that the fight against torture would be helped if there were a un Declaration against Torture. It lobbied for work on this to be undertaken within the un Committee on Crime Prevention and Control and provided drafting suggestions. Based on the work within this Committee, the quinquennial un Crime Congress then adopted the Declaration against Torture. Amnesty International then followed this up by lobbying for a Convention against Torture. This work was then taken up in another forum, the then Commission on Human Rights, and based on the work within the Commission – with drafting inputs from Amnesty International – the General Assembly subsequently adopted and opened for signature and ratification, or accession, the Convention against Torture. This pattern has been repeated on numerous occasions, for example, more recently, as regards the Convention against Enforced and Involuntary Disappearances. It is an interesting question whether, on the foundations of the present international human rights normative order, it might be an idea for the un Human Rights Council to consider periodic work-plans for new standard-setting backed up by expert studies before the decision is made to commence a drafting Sikkink, The Power of Human Rights: International Norms and Domestic Change. (Cambridge: Cambridge University Press, 1999). 221 Based on the work of the Advisory Committee and the Human Rights Council, the General Assembly subsequently adopted a Declaration on Human Rights Education. 222 See the Report of the Commission on its First Session in 1947. 223 For a discussion of the multilateral treaty-making process in the field of human rights, see B.G. Ramcharan, The Fundamentals of International Human Rights Treaty Law (Martinus Nijhoff, 2011).

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exercise.224 Reasons of planning and orderliness could support such an approach. However we should never diminish a rather special feature of the law-making process that is invaluable: namely that when the human rights movement assesses that there is a problem and that the drafting of standards could help in dealing with it, it should have the freedom to mount an initiative for the drafting of new standards. Here again, the law-making process is, and should remain, in the hands of members of the human rights movement. With the foregoing observations in mind, we provide next a conspectus of the drafting process in relation to both declarations and conventions; consider the contributions of declarations and conventions to the codification and progressive development of international law; consider the passage of provisions of declarations to international customary law; discuss the same in respect of provisions of conventions; and offer some general reflections on the human rights law-making process. III

The Drafting Process for Declarations and Conventions

From the outset of the United Nations, flexible approaches have been followed when it comes to the drafting of declarations and conventions. Drafts of declarations and treaties have been prepared in the former Commission on Human Rights, at its request in its former Sub-Commission, in the Committee on Crime Prevention and Control and the quinquennial Congresses on Crime Prevention and Control, in the Commission on the Status of Women, and in the Third (Social and Humanitarian) and Sixth (Legal) Committees of the un General Assembly. In most instances the final adopting body has been the General Assembly, but in some instances this has been done elsewhere, for example in the un Crime Congress, in the case of the Declaration against Torture. There have been few, if any, instances, of drafting conferences such as the un conferences on the law of treaties, diplomatic relations, or the law of the sea. At one stage the Office of un High Commissioner for Refugees did convene a world-wide conference on the issue of the definition of asylum, but it did not come to agreement. Some years ago the United Nations issued a publication on the multilateral treaty-making process with an extensive chapter, written by this author, on the multilateral treaty-making process in the field of human rights.225 That ­chapter 224 See B.G. Ramcharan, The Human Rights Council. (Routledge, 2011). 225 See the Review of the multilateral treaty-making process, (1985), Book 21 of un Legislative Series. Forthcoming on the un Legislative Series website: http://legal.un.org/ legislativeseries/book22.html#.

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examined the drafting process of human rights-related treaties from the time of the League of Nations until the mid-1980s and found great diversity in the approaches and processes followed. The same finding would in all probability still hold today, some twenty-five years later. One can therefore register the principle of flexibility in the drafting of both declarations and conventions. Going beyond this, it might be helpful to touch on some thematic issues related to the drafting process. A Plans of Action for the Drafting of New Norms When the United Nations International Law Commission began its work shortly after the establishment of the United Nations, the un Secretariat commissioned an expert Survey of international law, prepared by Professor Sir Hersch Lauterpacht, which did an extensive review of possible topics that could be considered by the Commission for inclusion in its work programme.226 The Commission eventually adopted a long-range work plan that it more or less adhered to. Subsequently, there has been at least one other expert Secretariat survey and there have been periodic updatings of the Commission’s work-plans. This approach has not been followed in the human rights field. When the then Commission on Human Rights began its work, it did decide to work on the preparation of an International Bill of Human Rights that would contain what eventually became the Universal Declaration of Human Rights, the two Covenants, and some measures of implementation. This vision guided the Commission in its first decade. However, while working on the International Bill, the Commission did work on other normative drafts and the process of drafting of other declarations and conventions has continued ever since. A certain measure of planning could be detected in the former SubCommission of the Commission. In the early days of United Nations human rights work there were massive problems to be dealt with. The Sub-Commission, at the request of the Commission, did a series of studies on issues of equality, on the rights of minorities and indigenous populations and similar topics. The Commission guided the work-plans of the Sub-Commission inasmuch as it was the Commission which decided whether the Sub-Commission should work on a topic. The Commission did, from time to time, request the SubCommission to update it on the status of its work and in particular on studies under consideration. This was more a form of rationalization, but there were some shades of planning in it. The Sub-Commission’s successor, the Advisory Committee of the Human Rights Council, takes up topics at the request of the 226 un doc. A/CN.4/1.

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Council. As far as the normative drafting process is concerned there has not, so far, been a work plan in the Advisory Committee for the drafting of new norms. Beyond the above there has not been a practice of normative work plans in other human rights-related bodies. Nor, unlike in the International Labour Organization, have there been instances of expert reports from the United Nations secretariat reviewing, or discussing, the normative drafting processes in the human rights area. Keeping in mind the flexibility that has so far characterized the drafting process, a case could be made for periodic studies from the un Secretariat, or Expert Surveys, that might influence bodies like the Human Rights Council in their choice of topics to work on in the future. There has been no such study to date. A particular issue that has arisen and that might be mentioned is the following: proposals for Protocols or supplementary treaties to existing treaties. When the initiative arose for the drafting of what is now the Convention against Torture, the Government of Sweden had the idea that it could be a supplement to the International Covenant on Civil and Political Rights, supervised by the Human Rights Committee. This issue was studied within the then Centre for Human Rights and questions arose whether a new treaty could add monitoring responsibilities to an existing treaty organ. Eventually, the sponsors decided to go for a treaty on its own, with its own monitoring body, today’s Committee against Torture. More recently, there have been quite a few additional protocols to existing treaties such as the Convention on the Rights of the Child, and the International Covenant on Economic, Social and Cultural Rights. The initiatives for such protocols have come from within the human rights movement and the drafting processes have been as for human rights instruments generally. A case could be made that when an optional protocol or supplementary convention is proposed it would be helpful for an expert study to be made by the un Secretariat so that issues of compatibility might be taken into account by the drafters. Related to this is the issue of the views of existing treaty bodies. They do find a way, usually, of making any views they have on the proposed protocols or supplementary instruments known. A case could be made, however, for this to be formalized with a view to assuring the integrity and coordination of related instruments. In a recent instance, the drafting of supplementary standards to the Inter­ national Convention on the Elimination of All Forms of Racial Discrimination has been the subject of some differences of views. Some governments, and the monitoring body, the cerd, have been in favour of the preparation of supplementary standards while some governments have differed. At the time of writing this issue is under active consideration in a working group of the Human Rights Council.

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B Expert Studies Some Expert studies have been done prior to the initiation of a drafting process in the former Sub-Commission of the former Commission on Human Rights,227 in the former Commission itself,228 and in Committee on Crime Prevention and Control. But for a great number of treaties there have been no such expert studies prior to the commencement of the drafting process. Human Rights ngos, which initiate many drafting exercises, do base themselves, often, on expert reports that they have drawn up. A good case in point relates to what eventually became the Convention against Enforced and Involuntary Disappearances. Human Rights ngos called for such an instrument for years and did a number of reports on the concept and the need for standards. Keeping in mind the relationship between protection strategies and drafting processes, and also the principle of flexibility mentioned earlier, one should avoid generalizing on the need for expert studies before a normative drafting process is initiated. Nevertheless, it could be useful to keep in mind the possible contribution of such studies when contemplating the drafting of new instruments. C The Collection of Relevant Materials In drafting global instruments it is important to keep in mind the circumstances and experiences of countries and societies the world over. When the un Secretariat commenced work for the drafting of the Universal Declaration of Human Rights it collected materials and provisions in the constitutions and laws of some fifty countries. This helped it to prepare the Secretariat’s first draft of a Declaration. Global Studies of the former Sub-Commission on topics such as the rights of minorities and the rights of indigenous populations were based on country monographs on numerous countries the world over. In more recent practice, the collection of relevant materials from countries, international organizations and ngos has varied. Sometimes a draft is put forward, the discussion begins in a body like the Human Rights Council, and then relevant materials or insights are injected in the discussion stage. The relevance of the collection of materials from different countries might vary from topic to topic, and one wants to retain the flexibility of members of the human rights movement to propose the drafting of new instruments. One could also say that during the discussion of drafts in different governmental 227 United Nations Action in the Field of Human Rights, u.n. Pub. ST/HR/2, Sales no. E. 74. XIV2, at 183 (1973). 228 For example on the right to development, a prior study by the un Secretariat: E/CN.4/1334.

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bodies, especially the un General Assembly, insights from countries the world over would be brought to bear on the drafts under consideration. But it is a relevant issue to pose the question, at some stage of the drafting process, whether a sufficient effort has been made to draw on experiences and insights from countries the world over. Of course, when one is seeking to raise the level of protection against torture, for example, the insights and experiences of numerous countries might be a negative one. D The Role of the Secretariat The role of the Secretariat is invariably a supportive one, substantively as well as in the provision of services. The Secretariat provides a partner for consultations and for expert views. At times the role of the Secretariat might be mainly a servicing one, as when a Working Group of the Third Committee of the General Assembly drafted what became the Convention on the Rights of Migrant Workers and their Families. In this instance the Mexican delegation suggested the initiative, chaired a working group of the General Assembly on the topic, provided a draft convention, and pressed for its adoption – in many instances over the objections of some delegations. This is one of the reasons why this convention has not been widely ratified to date. The International Code of Human Rights is now an extensive one, consisting of declarations, bodies of principle, treaties, and such instruments. Ideally, there should be an entity watching over the integrity and coordination of the diverse instruments. There is also the open issue of the possible systematization of international human rights law. This is an area where it would be natural to expect a contribution from the un Secretariat. So far there has been no such contribution. This is something that might be kept in mind for the future. E The Role of the un Office of Legal Affairs The United Nations Office of Legal Affairs has consistently provided, upon request, legal opinions on issues arising during the drafting of human rights instruments. In practice there has been a distinction between the substantive human rights department and the Office of Legal Affairs. The substantive department has a broader role to play. The role of ola is to provide detached legal opinions on issues from the point of view of the content of existing international law. Comments from Governments, International Organizations and ngos As indicated earlier, governments, international organizations and ngos have opportunities of commenting on drafts during the various stages of the F

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drafting process. In some instances they are provided opportunities for ­making such comments in writing and their views are circulated formally. But this is done on a case by case basis. G Stages in the Process of Governmental Deliberations Governments are involved in the drafting process almost throughout the drafting process. Even when topics are being discussed in expert bodies like the former Sub-Commission, or in the contemporary Advisory Committee of the Human Rights Council, Governments have opportunities or avenues of making their views known. They control the deliberations in the Human Rights Council. But because the Council, like the former Commission, has a membership that is much smaller than the un General Assembly, when a draft from the Council reaches the Assembly it varies whether the passage is smooth or more involved. That is because, in the case of the Human Rights Council, for example, the membership of the General Assembly is four times its membership and drafts have to attract the agreement the wider membership. When the un Declaration on Religious Freedom was being discussed, a draft reached the General Assembly having worked its way through the then Sub-Commission and the then Commission. But its passage through the General Assembly only came about after protracted discussions and the good offices of the Chairperson of the Third Committee. H Final Adoption In the un General Assembly drafts are usually scrutinized in the Third (Social and Humanitarian) Committee before they reach the plenary. In most instances issues are worked out before they reach the plenary, where they are formally adopted and, in the instances of treaties, open for signature and ratification or accession depending on the provision of the particular treaty in question. Sometimes there is fanfare at the time of the adoption of an instrument, as when the Universal Declaration was adopted, or the Covenants. At others the event goes by the general public largely unnoticed! IV

The Contributions of Declarations and Conventions to the Progressive Development and Codification of International Law

Human rights instruments, declarations, bodies of principle and conventions represent, a major chapter of international law. The un Compilation of

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International Instruments in the Field of Human Rights229 brings this out forcefully. Human rights instruments elaborated and adopted within the un system, as well as in regional organizations cover practically every aspect of the relationship between the individual and the State. And the process of discussing and elaborating new normative instruments is continuing. It probably is the case that the bulk of these instruments represents the progressive development of the international law of human rights. As will be discussed in the following section, only selected parts these instruments have the status of international customary law. It is probably the case that there has been more progressive development, rather than codification, of the international law of human rights, unless one considers the various treaties to be codifications of the law in a general sense. The numerous instruments cover different issues and to date there has been little effort at systematization or consolidated codification. Having regard to political complexities it may not be wise to attempt a comprehensive codification of the international law of human rights because some may be tempted to try to renegotiate salient provisions of instruments such as the Universal Declaration. There would, however, be a strong case for an academic systematization or Restatement of the International Law of Human Rights. V

The Passage of Provisions of Declarations and Conventions to International Customary Law

The emergence of international customary law through international lawmaking processes has been the subject of long-standing jurisprudence of the International Court of Justice, notably the North Sea Continental Shelf Cases of 1969. The principles enunciated by the court would be the same governing the passage of provisions of declarations and conventions to international customary law. In the North Sea Continental Shelf Cases, the International Court of Justice concluded that the Geneva Convention on the law of the sea of 1958 did not embody or crystallize any pre-existing or emergent rule of customary law, according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agreed, be carried out on an 229 The late Professor Ian Brownlie considered that there was no such thing as international human rights law as such. Rather, human rights law is part of international law. See, Ian Brownlie, Principles of Public International Law Sixth Edition (Oxford: oup, 2003).

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equidistance – special circumstances basis. While a rule was embodied in Article 6 of the convention, it was as a purely conventional rule. The Court then proceeded to consider whether it had since acquired a broader basis. Denmark and the Netherlands had put forward an argument that even if there was, at the date of the Geneva Convention no rule of customary international law in favour of the equidistance principle and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule had come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State practice, and that this rule, being a rule of customary international law binding on all States, including the Federal Republic of Germany, should be declared applicable to the delimitation of the boundaries between the Parties’ respective continental shelf areas in the North Sea. The Court commented that in so far as the Danish and Dutch contention was based on the view that Article 6 of the Convention had had the influence, and had produced the effect, described, it clearly involved treating that Article as a norm-creating provision which had constituted the foundation of, or had generated a rule which, while only conventional or contractual in its origin, had since passed into the general corpus of international law, and had been accepted as such by the opinio juris, so as to have become binding even for countries, such as Germany, which had never, and did not become parties to the Convention. The Court declared: There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.230 This reasoning would undoubtedly be applicable equally in the area of the international law of human rights. The further reasoning of the World Court therefore holds particular significance to our subject matter. The Court eventually found that the equidistance rule in the Convention had not passed into international customary law. However, its reasoning provides guidance on the possible process of passage of a treaty rule into international customary law. In the first place, in order to prove the passage of a normative provision (and by the same token a declaratory provision) into the corpus of customary international law, it would in the first place be necessary 230 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands). icj Reports, 1969, paras. 69–70.

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that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Secondly, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. The Court further clarified: 74. As regards the time element, the Court notes that it is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964,and that when the present proceedings were brought it was less than three years, while less than one had elapsed at the time when the respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke down on the question of the application of the equidistance principle. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; − and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.231 The Court examined the particular facts of the case and found that these tests had not been met. In the case of Nicaragua v. the usa which concerned Military and Paramilitary Activities in and Against Nicaragua, the World Court considered the Nicaraguan submission that, leaving aside the United Nations Charter in the particular circumstances of the case, the non-use of force was a principle of customary law similar in content to the law of the un Charter.232 The Court held as follows: 186. It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs. The Court does not 231 Ibid, para. 74. 232 icj Report 1986, 14.

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consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.233 There has been lively discussion in the literature about the process of passage of provisions of declarations or conventions to customary law in the human rights area.234 Three observations may be offered in this regard. In the first place, the most authoritative body from which guidance may be taken is the International Court of Justice. As seen in the two cases discussed above, the Court has affirmed that passage from declarations or conventions to customary law is perfectly possible and that it is a matter to be determined on a case by case basis. In the second place, the Court has on occasions expressly held that a norm, e.g. in the Universal Declaration of Human Rights has concretized into a norm of customary law. In the case concerning United States Diplomatic and Consular Staff in Tehran, the Court stated the following: Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enumerated in the Universal Declaration of Human Rights.235 In the third place, we would offer the standard that if authoritative organs such as human rights treaty bodies express a view on the customary law status of a particular norm or set of norms and if there is widespread acquiescence in the 233 Ibid, para. 186. 234 See, e.g. the Georgia Journal of International and Comparative Law, vol. 25, 1995–1996. The introductory article by the late Prof. Richard Lillich is particularly illuminating. 235 icj Reports, 1980, p. 42.

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international community on this, then this would be fairly convincing evidence of the existence of the customary rule or rules in question. We would go further and assert that if one or a few states indicate a contrary understanding then the presumption should still stand in favour of the interpretation of the authoritative human rights treaty organ. This is because the entire history of the international law of human rights since the establishment of the United Nations has been one of dynamic advances in the articulation of norms and in the confirmation by authoritative human rights treaty organs of the binding status of a particular norm or norms. This is as it should be. Human rights norms are distilled from the experiences and views of states world-wide and this distillation of norms must be supported and defended. Otherwise one would be left with the narrow-minded views of conservative or reactionary governments. If there is clear evidence of the objection of a large-enough group of States then one should not lightly conclude that a norm of customary law exists. But if there is widespread acquiescence in the understanding of the law as stated by an authoritative human rights treaty body then the dissent of one or a few states should not be allowed to stand in the way of the concretisation of a customary norm as representing the higher view of the international community as a whole. Let us take the case of the un Human Rights Committee for example. In its General Comment No. 24 of 1994 on reservations to the International Covenant on Civil and Political Rights (1966), the Committee affirmed that states parties to the Covenant may not make reservations to provisions in it that represent international customary law: …a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience or religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess, profess their own religion, or use their own language.236 The Legal Adviser of the us Department of State wrote to Chairman of the Human Rights Committee on 28 March, 1995 that the Committee had asserted 236 Human Rights Committee, General Comment No. 24 (52), un doc. CCPR/C/21/Rev.1/ Add.6 (1994), p. 3.

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in conclusive fashion that a number of propositions are customary international law which, “to speak plainly, are not.” He thought that such “a cavalier approach to international law (raised) serious concerns about the methodology of the Committee as well as its authority.”237 Who is to say that simply because the Legal Adviser of the us State Department took this view in March 1995 this should counter the views of the Human Rights Committee world-wide. Perhaps a subsequent us Administration or a later Legal Adviser would take a different view. Perhaps the normative consensus among the American people at large has evolved. We think that in instances such as these one should accord persuasive value to the views of the Human Rights Committee and that there should be a rebuttable presumption on the customary law nature of the norms in question. If the issue were to arrive before the International Court of Justice, for example, it would be open to a country like the usa to assert its dissent and to convince the Court that norms of international customary law had not concretized. As the icj stated in the Nicaragua case, the Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.238 VI

Reflections on Possible Improvements to the Human Rights Law-Making Process: Moving to Prevention

Keeping in mind the foregoing discussion about the law-making process in the field of human rights, it would be appropriate to raise for reflection the issue whether improvements could be made in the process. For a start, we think that it is important to keep open and flexible the initiative to propose new standards. This is because one of the key ways in which the international human 237 Cited by Richard Lillich in 25 Georgia Journal of International and Comparative Law, 1995– 96, p. 20, fn. 101. 238 Supra.

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rights movement can respond to emerging human rights problems is to examine the adequacy of standards and to propose new standards as a response to new problems. In the second place, might it be useful to have a systematic, thematic compilation of the existing standards? We think that this could be useful but that it should be done, to begin with, in the academic and research community. A good example is the American Restatement of the Foreign Relations Law of the usa. An objective research institute from an appropriate country could do this. The Asser Institute in The Netherlands comes to mind. They have the track record and the expertise and, with The Hague emerging as the Justice capital of the world, it would fit well. Perhaps the newly-established Hague Institute for Global Justice could sponsor such a systematization. Third, it could be useful to have an academic compilation of core norms of international customary law containing pre-existing international customary law and identifying norms that might have passed from declarations or treaties to international customary law. By the same token, fourth, an academic compilation of general principles of international human rights law would be helpful. Fifth, a periodic survey of the International Law of Human Rights, similar to the periodic surveys done for the International Law Commission could be helpful to the governmental bodies such as the Human Rights Council. Sixth, it would be helpful for the un Secretariat to publish Digests of the jurisprudence of un human rights bodies similar to the ilo’s Digest of Decisions on Freedom of Association.239 Seventh, the un Secretariat could also initiate a Repertory of the Practice of the Human Rights Council so as to facilitate the identification of the emergence of norms of international customary law, if any, in the practice of that body. Eighth, the human rights treaty bodies functioning under the principal human rights treaties could be encouraged to comment on the passage of provisions of their treaties into international customary law. The foregoing reflections may be said to apply to the law-making process seen in classical perspectives. However, we think that at the advent of the twenty-first century one cannot leave the matter there and that international lawyers in general, and in this instance human rights lawyers in particular, must add a new category when discussing the law-making process: the category of prevention. In a generic sense, the whole of international law, it could be argued, already has a preventive rationale. By inviting Governments to the 239 See ilo, Freedom of Association. Digest of Decisions and principles of the Freedom of Association Committee of the Governing Body of the ilo. Fifth (revised) Edition. (2006).

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rule of law international law seeks to head off conflicts and problems in the relations among States. The international law of human rights has a similar rationale when it comes to preventing human rights violations and some treaties, such as the Convention against Torture and the Optional Protocol to the Convention seek to prevent the commission of this international crime. But this will not suffice in the future. In a chapter in the Oxford History of the Twentieth Century, titled “Towards the Twenty-First Century,” Prof. Ralph Dahrendorf offered three moral principles for the twenty-first century: First, that only open societies can be good societies. Second, we must acknowledge a duty to future generations and that the ‘responsibility principle’ was necessary in the ‘risk society’ in which we are living. Third, we are living in a horizon of uncertainty and do not know for sure what is right and good and just, but we must try to find out and we must never give up trying to enhance the quality of life.240 Former un High Commissioner for Human Rights, Mary Robinson, devoted her 2000 annual report to the then Commission on Human Rights to a discussion of preventive human rights strategies. The report, drafted by specialists in ohchr and coordinated by this author as the then Deputy High Commissioner, contained chapters offering strategies for the prevention of the crime of genocide, prevention of racism and racial discrimination, the right to development and the prevention of human rights violations, prevention of gross violations of civil and political rights, fundamental standards of humanity, prevention of slavery, prevention of trafficking in women and children, prevention of violations through human rights education, and combating impunity as a preventive approach. The report concluded: The prevention of gross violations of human rights and of conflicts is a defining issue of our time. As we begin the new millennium, it must be a matter of the utmost priority that we seek, at the national, regional and international levels, to develop societies fashioned in the image of international norms of human rights.241 The law-making process of the future must endeavour to deal with the grievous threats facing humanity, some of which we discuss in the next chapter.

240 M. Howard, et al., (Eds), Oxford History of the Twentieth Century (Oxford, 1998, 2002), pp. 342–343. 241 E/CN.4/2000/12, para. 92. The report is reproduced in B.G. Ramcharan, A un High Commissioner in Defence of Human Rights. Leiden, Martinus Nijhoff, 2004, Appendix iii.

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Conclusion This chapter has shown that the Human Rights Council continues to draft new human rights norms for consideration by the un General Assembly. In its first decade the Council has done four instruments adopted by the General Assembly and a fifth that is under consideration by it. The Council has not yet had occasion to debate the legislative drafting process as such, and would be well advised to do so in the near future. To facilitate such a debate, we have set out some considerations that it might keep in mind, and we have advocated that the Council, in its legislative work in the future, pursue a preventive strategy in the drafting of new instruments to deal with the grievous threats facing humankind.

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Prevention

Introduction

The resolution establishing the Human Rights Council gives it an explicit mandate to act for the prevention of violations of human rights. The Council has so far adopted a few general and some other thematic resolutions touching on selected aspects of prevention but it has not yet been able to develop an operational strategy of prevention. At its request, the Secretariat organized a workshop on prevention242 and, at its twenty-fifth session the Council had a panel discussion on the topic. This chapter will first set out the policy elements so far put down by the Council and then offer some ideas that might help develop the preventive role of the Council. I

Preventive Policies of the Human Rights Council to Date

Since its establishment the Council has begun the process of putting down a policy on prevention. It has adopted three general resolution and a few resolutions touching on some aspects of prevention. The Council has signalled the importance of preventive actions at the national level and reiterated the responsibility of each individual State to protect its population from ­genocide.243 It has stressed the importance of combating impunity in order to prevent violations of international human rights law and international humanitarian law against civilians in armed conflicts. It has drawn attention to the need for the prevention of maternal mortality and morbidity.244 It has said that it is essential to place the protection of human rights at the centre of measures taken to prevent and end trafficking in persons, and to protect, assist and ­provide access to adequate redress to victims, including the possibility of obtaining compensation from the perpetrators.245 242 A/HRC/18/24. 243 Resolution 7/25, adopted without a vote on 28 March, 2008. 244 See Council resolution 21/6: “Preventable Maternal Mortality and Morbidity and Human Rights.” The Council requested all States to renew their political commitment to eliminate preventable maternal mortality and morbidity at the local, national, regional and international levels. 245 More details on these decisions are given in Chapter viii below.

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In its resolution 21/4 on enforced or involuntary disappearances, the Council urged States (a) To prevent the occurrence of enforced disappearances, including by guaranteeing that any person deprived of liberty is held solely in officially recognized and supervised places of detention, guaranteeing access to all places of detention by authorities and institutions whose competence in this regard has been recognized by the concerned State, maintaining ­official, accessible, up-to-date registers and/or records of detainees, and ensuring that detainees are brought before a competent authority promptly after detention as provided for by article 10 of the Declaration on the Protection of All Persons from Enforced Disappearance. (b) To work to eradicate the culture of impunity for the perpetrators of enforced disappearances and to elucidate cases of enforced disappearances as a crucial step in effective prevention. (c) To prevent and investigate with special attention the enforced disappearance of persons belonging to vulnerable groups, especially children, and the enforced disappearance of women, as they may become particularly vulnerable to sexual violence and other forms of violence, and to bring the perpetrators of those enforced disappearances to justice. At its fourteenth session, in June, 2010, the Council adopted a resolution on The role of prevention in ensuring human rights. Expressing concern about continued gross violations of human rights around the world, the Council acknowledged the importance of effective preventive measures as part of the overall strategies for the promotion and protection of human rights. The Council recognized that States have the primary responsibility for the promotion and protection of human rights, including prevention of human rights violations, and that this responsibility involves all branches of the State. The Council stressed that States should promote supportive and enabling environments for the prevention of human rights violations, including by: (a) ensuring strong and independent national human rights institutions; (b) promoting human rights education and training; (c) ensuring free and vibrant civil society and media; (d) ratifying and fully implementing international human rights instruments; (f) ensuring appropriate national frameworks, institutions and mechanisms, consistent with the principles of good governance, democracy, the rule of law and accountability; and (g) addressing factors that increase v­ulnerability, including inequality, poverty and all forms of discrimination. The Council welcomed the role of national human rights institutions in contributing to the prevention of human rights violations; encouraged States

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to contribute to further strengthen the contribution of the Council and its mechanisms to the prevention of violations of human rights; requested the Office of the un High Commissioner for Human Rights to request, compile and publish a report on the views of different stakeholders on the role of prevention in the promotion and protection of human rights; requested the Office of the High Commissioner to convene a workshop on the role of prevention for the promotion and protection of human rights; and decided to continue its discussion of the role of prevention. At its 18th and 24th sessions the Council adopted additional resolutions on prevention with substantially the same content.246 In the rest of this chapter we set out some considerations that the Council might take into consideration in developing future preventive policies and strategies. II

The Politics of Prevention

On 18 September, 2014, the Human Rights Council organized a panel discussion on the role of prevention in the promotion and protection of human rights, with the aim of further developing the concept of prevention of human rights violations. At its request, ohchr was in the process of preparing a research report on prevention that would be issued later. One could see both the possibilities and the politics of prevention during in the discussion. On policies for prevention Panellists told the Council that it was urgent to prevent human rights violations before they escalated into mass atrocities. Emphasis was placed on the State’s primary responsibility to prevent violations and protect human rights. Prevention was primarily the responsibility of the Government of the State and stress was laid on the responsibilities of States to respond earlier. The creation of an enabling human rights framework at the national level was highlighted, meaning the existence of legal provisions which could be invoked in court. Good governance and the rule of law were important for the prevention of human rights violations. Human rights education was a key for prevention. Accountability for human rights violations was crucial. Women and vulnerable groups had to be included in policy making in order to make it more practical and implementable The need was stressed for both direct prevention, or mitigation, of violations through reducing risk factors to such violations, and indirect prevention to avoid violations through prosecution, litigation and sanctions to hold those 246 Council resolutions 18/13 and 24/16.

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responsible accountable. There was an important role to be played in identifying and sharing best practices, particularly about things so engrained in societies that people themselves did not recognise what was happening. Part of this awareness-raising was required not just between the Government, people, and different institutions in the country, but was also required at the national, regional and international levels. Early warning signs of upcoming violence and genocide were mentioned, such as exclusion, deficiency of good governance and the rule of law, hate speech, denial or deprivation of citizenship, harmful actions of non-State actors, and armed conflicts. The Council was urged that prevention of violence against children was morally compelling. Education, formal and informal, and the participation of children were said to be crucial for the prevention of violence against children. There was, the Council was told, a lack of human rights awareness in every sector of the education system, including in terms of teacher training, but also of armed forces or even in the training of national intelligence services. During the broader discussion involving Member States, speakers said that the Council had a crucial role to play in strengthening national protection mechanisms and contributing to the prevention of human rights ­violations. Delegations underscored the role of civil society and the importance of actions to combat impunity, implement the rule of law to prevent violations and strengthen the role of national human rights institutions. It was said that the International Criminal Court could play a preventive role and might be in a position to intervene in situations of tangible threats of atrocity crimes. Some speakers linked the responsibility to protect and the responsibility to prevent and stressed that they did not undermine the ­sovereignty of States. The European Union said that the Council had a central role to play in strengthening national protection mechanisms and contributing to the prevention of human rights violations, including through the Universal Periodic Review and technical assistance. The European Union underlined the central role played by civil society organizations for the prevention of violations. States should strengthen the role and mandate of national human rights institutions. Senegal, speaking on behalf of the Group of Francophone African states, said that the adoption of preventive measures was an absolute necessity. The promotion and protection of human rights was primarily the responsibility of States. However, United Nations human rights mechanisms and bodies played a crucial role in assisting States in preventing violations. Moreover, it stressed the importance of actions to combat impunity and implement the rule of law in order to prevent violations and to strengthen the role of national human

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rights institutions. Other delegations from Africa, Asia, and Europe spoke in similar terms. On the politics of prevention, it was notable that several delegations said that the concept of prevention was not clear and needed to be defined in a better and consensual manner. The Russian Federation, speaking on behalf of the ‘Like-Minded Group’ (a group that generally takes a cautious and carefully calibrated position to the competence of the Council), said that the concept of prevention was not clear and needed to be defined in a better and consensual manner. There was a need to do more research to understand all aspects of prevention and develop tools involving all stakeholders, in particular Member States, which bore the primary responsibility to promote and protect human rights. The development of those tools should avoid politicization and be based on the principles of universality and non-selectivity. Like the Russian Federation, Venezuela thought that the promotion and protection of human rights required efforts beyond monitoring and public denunciation. It was essential that there be international solidarity, along with  efforts for national capacity-building. The preventive approach should ­comprise clearly established and defined criteria, adopted by consensus. The Organization for Islamic Cooperation stated that it supported the importance of defining a preventive approach in more explicit terms. However, universal agreement should take into account suggestions and concerns of all Member State. It asked what measures could be taken to assuage the concerns of States regarding the need for universal acceptance of approaches to prevention. Algeria considered that, faced with the increasing number of crises around the world leading to human rights violations, it was necessary to understand better various aspects of prevention and to provide practical tools to States. Concern was expressed about the danger of prevention becoming a ‘naming and shaming’ exercise. To this it was replied that it was not a naming and shaming exercise, but a way of looking at root causes, risk factors and addressing them in a responsible way, and bringing different actors together to find solutions. A certain openness was required. The politics surrounding future efforts for prevention were thus placed squarely before the Council.247 From the above it may be seen that notwithstanding the policy resolutions on prevention adopted by the Council, as related in the previous section, the 247 ohchr will prepare and submit to the Council a summary of the discussions. This account is based on the information release, “Human Rights Council holds panel discussion on the role of prevention in the promotion and protection of human rights,” 18 September 2014. Accessed on 24 October 2014, http://www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=15060&LangID=E.

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road to prevention in the Council is still strewn with political pot-holes and precarious twists and turns. With a view to possibly contributing to future reflections in the Council on prevention we discuss below some elements that might be taken into account. III

The Need for Preventive Strategies

In a chapter in a recent book on future security strategy, Stephen Van Evera of mit argued that the world’s major powers should organize themselves into a grand alliance, or concert, along the lines of the 1815 Concert of Europe, to take united action against Weapons of Mass Destruction (wmd) proliferation, wmd terrorism, and threats to the global commons. He wrote: If unchecked, climate change could wreak large injury to civilization. Vast damage to global agriculture and to coastal regions could ensue. Scores or hundreds of millions of people could be made homeless by rising ocean waters and desertification of farmlands. The danger is shared by all humanity as every society will suffer, albeit to different degrees from the calamity. Other common threats include the H5Nl avian flu virus, other emerging infectious diseases, and the appearance of antibiotic resistance among known infectious diseases. …These diseases pose a common threat because they will ignore borders and threaten everyone. The danger they pose is growing with greater interaction between the human and animal worlds and with irresponsible use of medicine, which is creating antibiotic-resistant strains.248 The need for preventive strategies is being felt on broad fronts. At the outset of the 2008 global financial crisis, un Secretary-General Ban Ki-Moon called upon the international financial institutions to develop early-warning and early response capabilities.249 In an article in the Financial Times on 17 October, 2008, at the height of the financial crisis, one of the leading economists of our  times argued that we need to guard against destructive creation. He suggested: 248 M. Leffler and J.W. Legro, eds., To Lead the World: American Strategy After the Bush Doctrine (New York: Oxford University Press, 2008), 16. 249 Xinhua News Agency, “UN chief writes to G20 leaders on financial crisis,” 26 March 2009.  Available  at  http://www.china.org.cn/business/financial-crisis/2009-03/26/ content_17503450.htm.

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We…need a truly independent commission of experts to look closely at each financial innovation and work out its potential downside… This commission would be charged with trying to narrow the range of the unexpected.250 Frank Biermann and Ingrid Boas, in a paper submitted to the 2008 annual conference of acuns called for advance thinking about a blueprint for governing the future climate refugee (or migration) crisis and suggested that this be done on the basis of the following principles: – – – – –

The principle of planned relocation and resettlement. The principle of resettlement instead of temporary asylum. The principle of collective rights for local populations. The principle of international assistance for domestic measures. The principle of international burden-sharing.251

Ideally, an authoritative international source should periodically offer discussion papers on the human rights dimensions of these and similar problems, giving due emphasis to preventive approaches that might be pursued in the future. We are already in a quite different world and human rights thinking will need to evolve to meet its needs. IV

The Case for a Comprehensive Global Watch

Secretary-General Pérez de Cuéllar in his Perspectives for the 1990s, advocated the establishment and maintenance of a global watch over human security encompassing disarmament and international law, development and international economic cooperation, social advancement, basic rights and fundamental freedoms, and human well being. The Secretary General argued for coherent and integrated policies and preventive strategies in the economic and social areas at the national, regional and international levels.

250 J. Bhagwati, ‘We Need to Guard against Destructive Creation’, Financial Times, 17 October, 2008, p.ll. See generally, on the international financial system, The Economist, October 18–24, 2008, pp. 75–78: A short history of modern finance. 251 Frank Biermann and Ingrid Boas, 2007. Preparing for a Warmer World. Towards a Global Governance System to Protect Climate Refugees. Global Governance Working Paper No. 33, Amsterdam et al.: The Global Governance Project. Available at www.glogov.org.

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He emphasized the role of human rights protection as a preventive strategy and argued that respect for basic human rights and for the dignity and worth of the human person as called for in the Charter was a fundamental element in the vibrant and productive global society towards which United Nations efforts must continue to be directed. The challenge of promoting respect for human rights was global. The goal of United Nations bodies must be to translate the wide commitment to human rights into an increasingly persuasive means to eliminate abuses wherever they occurred. He submitted further that there was much that could be foreseen in the economic and social fields for which advance planning was increasingly essential. A crowded world of strained resources could not be managed on an ad hoc basis. The United Nations must be able to meet emergencies that called for collective effort, whether to contain violent political conflicts or to meet natural or man-made disasters. The United Nations should serve all Member States as a reliable source of timely information across the range of human activities. It must have the capacity to communicate effectively with its constituents and with its associated agencies and organizations. The Secretary General saw the Organization working on problems susceptible of multilateral alleviation and coordinating a comprehensive global watch over issues of peace and security, protection of the environment, economic and social welfare, and human rights protection. His concept of a Global Watch over human security is one that is even more needed if the world organization is to be able to respond to contemporary threats and challenges. V

Agenda for Peace

In 1992, Secretary General Boutros Boutros Ghali issued his Agenda for Peace, written at the request of the Security Council.252 An Agenda for Peace contained a range of ideas for the use of preventive diplomacy at the United Nations. Among these were the following: – To ease tensions before they result in conflict. – If conflict breaks out, to act swiftly to contain it and resolve its underlying causes. – Preventive diplomacy may be performed by the Secretary-General personally or though senior staff or specialized agencies and programmes, by the 252 See on this B.G. Ramcharan, Preventive Diplomacy at the un (Indiana University Press, 2008).

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Security Council or the General Assembly, and by regional organizations in cooperation with the United Nations. – Preventive diplomacy requires measures to create confidence. – Preventive diplomacy needs early warning based on information gathering and informal or formal fact-finding. – Preventive diplomacy may involve preventive deployment and in some situations, demilitarized zones. VI

The Case for National Prevention Systems

In his final ‘comprehensive’ report on the prevention of armed conflict,253 prepared at the request of the General Assembly, Secretary-General Kofi Annan argued that prevention was a shared responsibility that did not ­diminish the primary obligation of Member States to exercise their sovereign duties to their citizens and neighbours. In the case of both intra- and interState armed conflict the key was to equip States and societies to manage their own problems in ways most appropriate to them. He argued for internally driven initiatives for developing local and national capacities for ­prevention, fostering home-grown, self-sustaining infrastructures for peace. The aim, he explained, should be to develop the capacity in societies to resolve disputes in internally acceptable ways, reaching a wide constellation of actors in government and civil society. External support for such efforts must be informed by an understanding of the countries and the societal dynamics concerned. He stressed the importance of democracy as a universal value. He felt that countries prone to armed conflict merited special assistance with respect to democratization. Democratic governance depended both on a legal framework that protected basic human rights and provided a system of checks and balances and on functioning rule-of-law institutions. It was the absence of precisely these characteristics that often led people to feel they must resort to violence to be heard. Individual Governments must find their own path to democracy, but the United Nations and its partners offered a variety of important services, at the request of Member States. These included electoral assistance, constitutional assistance, human rights capacity-building, support for good governance, anti-corruption initiatives and reforms in key sectors, including the security and judicial sectors. 253 un doc. A/60/891, 18 July, 2006.

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The High-Level Panel on New Threats and Challenges

At the beginning of December, 2004, a High-Level Panel on Threats, Challenges, and Change reported to the then un Secretary-General with its assessment and recommendations. The Panel stressed that all states must recommit themselves to the goals of eradicating poverty, achieving sustained economic growth and promoting sustainable development.254 It endorsed the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious ­violations of humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.255 The Panel recommended that the United Nations High Commissioner for Human Rights should be called upon to prepare an annual report on the situation of human rights worldwide.256 It urged that all combatants must abide by the Geneva Conventions. All Member States should sign, ratify and act on all treaties relating to the protection of civilians, such as the Genocide Convention, the Geneva Conventions, the Rome Statute of the International Criminal Court and all refugee conventions.257 The Panel recommended that in considering whether to authorize or endorse the use of military force, the Security Council should always address – whatever other considerations it may take into account – at least five basic criteria of legitimacy: Seriousness of threat; Proper purpose; Last Resort; Proportional mean; and balance of consequences: Is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction? It called for the development of better instruments for global counter-­ terrorism cooperation, all within a legal framework that is respectful of civil liberties and human rights, including in the areas of law enforcement, intelligence-­ sharing, where possible; denial and interdiction, when required; and financial controls. It called upon the General Assembly to complete negotiations rapidly on a comprehensive convention on terrorism.258

254 255 256 257 258

Recommendation 1. Recommendation 55. Recommendation 93. Recommendation 66. Recommendation 44.

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The Panel recommended that States begin to phase out environmentally harmful subsidies, especially fossil fuel use and development.259 It urged Member States to begin new negotiations to produce a new long-term strategy for reducing global warming beyond the period covered by the Kyoto Protocol. It recommended that the Security Council host a second special session on hiv/aids as a threat to international peace and security, to explore the future effects of hiv/aids on States and societies, generate research on the problem and identify critical steps towards a long-term strategy for diminishing the threat.260 The Panel recommended that Member States should expedite and conclude negotiations on legally binding agreements on the marking and tracing, as well as the brokering and transfer of small arms and light weapons.261 It recommended that the United Nations work with national authorities, international financial institutions, civil society organizations and the private sector to develop norms governing the management of natural resources for countries emerging from, or at risk of, conflict.262 The Panel recommended that States Parties to the Biological and Toxin Weapons Convention should negotiate a new bio-security protocol to classify dangerous biological agents and establish binding international standards for the export of such agents.263 It also recommended that the Conference on Disarmament move without further delay to negotiate a verifiable fissile material cut-off treaty that, on a designated schedule, ends the production of highly enriched uranium for non-weapons use, as well as on any serious concerns they have which might fall short of an actual breach of the Treaty on the NonProliferation of Nuclear Weapons and the Chemical Weapons Convention.264 The Panel called for a comprehensive international convention on moneylaundering, bank secrecy and financial havens to be negotiated and endorsed by the General Assembly.265 It urged that the United Nations establish a robust capacity-building mechanism for rule of law assistance.266 The Panel urged the Security Council to be ready to use the authority it has under the Rome Statute to refer cases of suspected war crimes and crimes against 259 260 261 262 263 264 265 266

Recommendation 10. Recommendation 7. Recommendation 15. Recommendation 13. Recommendation 34. Recommendation 36. Recommendation 47. Recommendation 49.

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humanity to the International Criminal Court.267 It recommended that the Security Council, in instances of verified, chronic violations, impose secondary sanctions against those involved in sanctions-busting.268 The Secretary-General, in consultation with the Security Council, should ensure that an appropriate auditing mechanism is in place to oversee sanctions administration. The Panel recommended that States with advanced military capacities should establish standby high readiness, self-sufficient battalions at up to brigade level that can reinforce the United Nations, and should place them at the disposal of the United Nations.269 It further recommended that the Security Council establish a Peace building Commission, which has since been done.270 VIII

Preventive Human Rights Strategies in the Future

Historically, the human rights movement has worked with strategies of promotion and protection. Both have had some results but the state of human rights is still a sad one. Promotional and protecting strategies both have some e­lements of prevention within them but, in the future, there will be need for more pronounced preventive strategies in human rights work. In the contemporary world human rights are affected by eight phenomena: environmental changes, migratory movements, poverty, conflicts, terrorism, gross violations, inequality, and poor governance. It will be crucial to develop preventive strategies in respect of all eight of these phenomena if we are to ever hope to achieve the universal realisation of human rights. Threats to Humanity that Call for the Articulation of their Human Rights Dimensions With global threats such as climate change, natural disasters, and global competition for depleting resources, it is imperative to address and articulate their human rights dimensions and call attention to the need for responses that are anchored in respect for human rights and fundamental freedoms. There are estimates that, depending on the degree of global warming, millions of people could be forced to seek refugee on safer ground. Some have even mentioned the figure of 300 million.

A

267 268 269 270

Recommendation 12. Recommendation 50 (e). Recommendation 60. Recommendations 82 and 83.

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In the response to natural disasters such as Hurricane Katrina in the usa there was clearly inequity in response. While the usa has thoughtful policies for responding to natural disasters the human rights dimensions were clearly missing. Following the devastation caused by Hurricane Sandy in November 2012, the policy community in the usa began to sound the call for more prevention, preparedness and planning. The un Human Rights Council has taken some incipient steps towards the discussion of future preventive human rights strategies but this has so far not developed much traction. In our work on Preventive Human Rights Strategies we discussed a dozen threats to humankind that would warrant discussion of their human rights dimensions beforehand.271 B The Protection of Vulnerable Groups In the contemporary world groups such as minorities, indigenous populations, and migrants face numerous vulnerabilities. There are normative instruments and un bodies devoted to promoting and protecting their human rights. The un High Commissioner has a spearheading and crystallizing role to play. At any one time the world should be put on notice through alert statements and studies from ohchr drawing attention to the dangers to particular communities. Such alerts can be brought to the attention of the General Assembly, the Security Council, and the Human Rights Council, as well as to regional bodies. The aim here should be to head off and prevent violations of human rights. Vulnerable groups facing imminent problems should be able to address the High Commissioner and to seek the articulation of their concerns. This would be prevention in action. C The Preventive Dimensions of the Responsibility to Protect The high-level group of experts that first advocated the doctrine of the responsibility to protect saw it as having three core components: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. The un Secretary-General has established the positions of Special Adviser on the Responsibility to Protect and Special Adviser on the Prevention of Genocide. They have both made useful contributions. 271 B.G. Ramcharan, Preventive Human Rights Strategies (London, Routledge, 2011). See, also, B.G. Ramcharan, Preventive Diplomacy at the un (Indiana, Indiana University Press, 2008). The Human Rights Council has, since its establishment, adopted general resolutions on prevention and a few other resolutions dealing with, e.g. prevention of maternal mortality. The Council has not yet worked out a clear-cut policy on preventive human rights strategies. See, generally, B.G. Ramcharan, The un Human Rights Council (London, Routledge, 2012).

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The concept of the responsibility to protect, as approved by the un General Assembly in 2000 covered genocide, ethnic cleansing, crimes against humanity and war crimes. As a political choice this was understandable in the circumstances. But the responsibility to prevent, generically, must reach far beyond these four offences to the entire gamut of threats to human rights. The un High Commissioner for Human Rights must surely shoulder the responsibility for the responsibility to prevent world-wide, drawing upon the complementary efforts of the Special Advisers of the un Secretary-General and of regional officials such as the osce High Commissioner on National Minorities. D The Preventive Roles of National Protection Systems A national human rights system should consist of constitutional, legislative, judicial, educational, institutional, and preventive pillars. ohchr has a good programme of cooperation with national human rights institutions, regionally and internationally. But the cooperation has been generic so far. There has, to date, been little or no highlighting of the preventive pillar of national protection systems. But this is the key to the future protection of human rights world-wide. Competent national human rights institutions should be expected to take the lead in heading off and preventing gross violations of human rights. ohchr needs to commission as soon as possible a study of the preventive pillar of national human rights systems and to place this issue under the spotlight. The High Commissioner should take personal charge of efforts to highlight the importance of the preventive dimension of national protection systems and to foster their development in every country of the world. E Using the upr Process to Advance Prevention The upr has valuable features inasmuch as, once every four and a half years, every Member state of the un prepares a report, supplemented by two reports from ohchr, on efforts to advance human rights in the country and on problems being encountered. The report is reviewed within the Human Rights Council, with the participation of the country concerned and, at the plenary stage, with the participation of ngos. The system is now only in its second cycle and one must withhold judgment on its eventual efficacy. There are strong political currents that make this more of a diplomatic than a legal process, in comparison to the consideration of reports by human rights treaty bodies. ohchr is still in the process of developing a policy of building on the upr. So far its efforts have veered in the direction of capacity-building within countries. That is understandable. But ohchr can make a decisive difference by

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focusing on the strengthening of national protection systems and on national efforts for the prevention of gross violations of human rights. ohchr could, for example, commission a global study on national policies, strategies and institutions for the prevention of human rights violations. The study could be cast in terms of the sharing of experiences among countries and the identification of good practices. At the end of the day, however, the aim should be to assist each country to define and operate a policy of prevention. That would be genuine human rights protection at work. Capacity building sounds good, and can be useful. But it can also be vague and ephemeral. Prevention is concrete, and of the real stuff of human rights protection. Injecting Human Rights Dimensions into Regional Preventive Regimes Regional mechanisms for the prevention of conflict and violence exist today in asean, au, ecowas, sadc, the oas, osce, and other regional and subregional organizations.272 The au Charter specifically supports au action in the event of gross violations of human rights. In addition to these conflict and violence-prevention mechanisms, regional institutions for the promotion and protection of human rights exist in asean, au, the Council of Europe, oas, and osce. F

272 See, generally, B.G. Ramcharan (Ed.), Conflict Prevention in Practice. Essays in Honour of Jim Sutterlin. Leiden, Martinus Nijhoff, 2005. See also International Peace Institute, Preventive Diplomacy in Focus. New York, ipi, 2011. See also, “Preventive Diplomacy: Delivering Results. Report of the Secretary-General.” un Doc. S2011/552, 26 August, 2011: “In the past five years, we have deepened existing or established new conflict prevention and mediation partnerships with the African Union, the European Union, osce, oas, the Caribbean Community (caricom), ecowas, sadc, asean, oic and others. Partly through the use of extra-budgetary resources, we have been able to undertake initiatives to help build regional capacities and learn from regional experiences. Joint training programmes on a broad range of peace and security issues are now available. Still, synergies take time and hard work to attain and are not rendered easier by the fact that, with very few exceptions, the United Nations, regional organizations and other actors have no shared mechanism or procedure to decide, in real time, who should do what in a given case. As we work to improve our formal institutional channels and protocols in that regard, we are also investing in key personal relationships with regional partners, which form the bedrock of closer cooperation.” – para. 52. The question that deserves to be posed is: where does ohchr fit into all of this. So far, the answer would be very little. This should change in the future. ohchr should be a key player in all these processes.

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ohchr and the High Commissioner have spasmodic cooperation with some of these bodies but there is no evidence of spearheading and leadership provided by the High Commissioners. For this to happen there must be policy choices. General cooperation can degenerate into courtesies. We suggest that the policy choice should be for prevention. The High Commissioner should periodically visit each of the regional preventive mechanisms and address them with human rights insights and recommendations. The High Commissioner should also periodically visit regional and sub-regional human rights institutions and beckon them to stronger preventive efforts. The thrust of prevention would define the relationship and help give sharper definition to ohchr in the process. G Leadership on Preventive Treaties Such as opcat Historically, the relationship between the High Commissioner and the human rights treaty bodies has been an ambiguous one. We are here not entering into  this broader relationship. We are, rather, making the case that High Commissioners should take a special interest and place their shoulders to the wheel when it comes to treaties with pronounced preventive thrusts. The opcat, for example, provides for States Parties to establish national preventive mechanisms, regular visits by national bodies, and regular visits by the opcat sub-committee. In their contacts with national authorities, High Commissioners should highlight the importance of the opcat arrangements and seek to use their influence to strengthen them. There can be no more important human rights work than preventing torture. High Commissioners should be identified with this. This would, again, help sharpen the definition of ohchr. H Cooperating with Partners to Advance Prevention We have argued above for stronger emphasis on preventive strategies by ohchr and by High Commissioners and we have already made the point that High Commissioners should develop cooperation with regional preventive and human rights mechanisms to help prevent gross violations of human rights world -wide. There are other actors active in the field of prevention with whom ohchr and High Commissioners should also have more pronounced cooperation. These include the major human rights ngos and organizations with a pronounced preventive focus. ohchr could invite these organizations to periodic meetings on cooperation for prevention, with a view to drawing insights and suggestions from them and with a view to building up a culture of cooperation for the prevention of human rights violations. With a view to demonstrating that there is fertile ground for ohchr to work with these partners on future preventive strategies, we set out below the

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preventive focus of a number of them, it being understood that there are other organizations that also support preventive human rights work. The Jacob Blaustein Institute for the Advancement of Human Rights, for example, has actively supported the efforts of the un Special Adviser for the Prevention of Genocide through research, policy initiatives, and publications. The Worldwatch Institute, an independent research organization, has the mission of generating and promoting insights and ideas that empower decision makers to build an ecologically sustainable society that meets human needs. Operating since 1974, the Institute’s research is based on the best available evidence and focuses on the challenges that climate change, resource degradation, and population growth pose for meeting human needs in the 21st century. Worldwatch seeks innovative solutions to intractable problems emphasizing a blend of government leadership, private sector enterprise, and citizen action that can make a sustainable future a reality. Survival International supports tribal peoples worldwide. It has operated since 1969. It works for tribal peoples’ rights in three complementary ways: education, advocacy and campaigns. It also offers tribal people themselves a platform to address the world. It works closely with local indigenous organizations, and focus on tribal peoples who have the most to lose, usually those most recently in contact with the outside world. Minority Rights Group works to secure rights for ethnic, religious, and linguistic minorities and indigenous people around the world. It works with minority communities, providing education and training to enable them to claim their rightful place in society. It lobbies governments and the United Nations alongside and on behalf of minorities. It publishes authoritative reports that are widely valued by academics and journalists, while its pioneering legal cases programme is advancing the protection of minorities under international law Founded in 1839, the Anti-Slavery Society is the world’s oldest international human rights organization working exclusively against slavery and related abuses. It works at the local, national and international levels to eliminate the system of slavery around the world by urging governments of countries with slavery to develop and implement measures to end it; lobbying governments and intergovernmental agencies to make slavery a priority issue; supporting research to assess the scale of slavery in order to identify measures to end it; working with local organizations to raise public awareness of slavery; and educating the public about the realities of slavery and campaigning for its end. The International Crisis Group, operating since 1995, is a leading independent source of analysis and advice to governments and intergovernmental

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bodies like the United Nations, the European Union and the World Bank on the prevention and resolution of deadly conflict. icg contributes in six main ways: – Ringing early warning alarm bells in its monthly CrisisWatch bulletin, and in specific crisis alerts. – Contributing behind the scenes support and advice to critical peace negotiations. – Producing detailed analysis and advice on specific policy issues in scores of conflict or potential conflict situations around the world. – Providing detailed information on developments regarding conflict, mass violence and terrorism. – Offering new strategic thinking on some of the world’s intractable conflicts and crises. – Supporting a rules-based, rather than a force-based, international order, seeking to influence un resolutions and institutional structures in relation to the ‘responsibility to protect’. International Alert is an independent peacebuilding organization working directly with people affected by violent conflict and government, eu and un levels to shape policy and practice in building sustainable peace. It works to strengthen the expertise, impact and public profile of the peacebuilding sector. It organizes training courses and publishes resources on peacebuilding. The World Organization Against Torture was established in 1986 as a coalition of international non-governmental organizations fighting against torture, summary executions, enforced disappearances and all other cruel, inhuman or degrading treatment. With 282 affiliated organizations in its sos Torture Network and many tens of thousands correspondents in every country, omct coordinates a network working for the promotion and protection of human rights in the world. omct’s International Secretariat provides personalized medical, legal and/or social assistance to hundreds of torture victims and ensures the daily dissemination or urgent appeals across the world in order to protect individuals and to fight against impunity. The Association for the Prevention of Torture (apt), since 1977, has worked for a world in which no one is subjected to torture or other cruel, inhuman or degrading treatment or punishment. The apt has campaigned for the entry into force and effective implementation of the Optional Protocol to the un Convention against Torture (opcat), an international legal instrument that seeks to open all places of detention to international and national scrutiny. The apt provides training, legal advice and practical tools, facilitating exchanges and advocating for preventive measures and mechanisms.

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The icj is dedicated to the primacy, coherence and implementation of international law and principles that enhance human rights. The icj provides legal expertise at both the international and national levels to ensure that developments in international law adhere to human rights principles and that international standards are implemented at the national level. The Global Center on the Responsibility to Protect, opened on 14 February, 2008, was established by key supporters from government, ngos and academia to ensure that the rtp doctrine is understood and put into practice by governments and at the United Nations. Its mission is to promote and catalyze international action to help countries to prevent or halt mass atrocities. Amnesty International is a worldwide movement of people who campaign for internationally recognized human rights for all. It has more than 2.2 million members and subscribers in more than 150 countries and regions and coordinates this support to act for justice on a wide range of issues. Human Rights Watch, operating for the past 30 years, is dedicated to defending and protecting human rights. By focusing international attention where human rights are violated, it seeks to give voice to the oppressed and hold oppressors accountable for their crimes. Its investigations and strategic, targeted advocacy seek to build intense pressure for action and raise the cost of human rights abuse. It has also sought to lay the legal and moral groundwork for deep-rooted change and has fought to bring greater justice and security to people around the world. The International Federation of Human Rights is a federation of non-governmental human rights organizations whose core mandate is to promote respect for all the rights set out in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Founded in 1922, it is now a Federation of 155 human rights organizations in nearly 100 countries. fidh coordinates and supports the activities of its member organizations. fidh has a joint programme with the World Organization Against Torture (omct) that works for the implementation of the un Declaration on Human Rights Defenders. In 2005 the Observatory dealt with almost 850 cases, in approximately 60 countries, with the collaboration of about 400 human rights organizations, and sent 11 fact-finding and trial observation missions. The International Institute of Strategic Studies is an internationally renowned British institute (or think tank) in the area of international affairs. Founded in 1958, it seeks to be a primary source of accurate, objective information on international strategic issues for politicians and diplomats, foreign affairs analysts, international business, economists, the military, defence commentators, journalists, academics and the informed public. The iiss publishes The Military Balance,

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an annual assessment of nation’s military capabilities; the Armed Conflict Database; Survival, a journal on global politics and strategy; Strategic Survey, the annual review of world affairs; the Adelphi Papers series of monographs; and Strategic Comments, online analysis of topical issues in international affairs. sipri, established in 1966, is an independent international institute for research into problems of peace and conflict, especially those of arms control and disarmament. The sipri Yearbook was first published in 1969 and is now in its 45th edition. The sipri 2008 Yearbook, for example, presented a combination of original data in areas such as world military expenditure, international arms transfers, arms production, nuclear forces, major armed conflicts and multilateral peace operations. The Institute’s research programme centers on: armed conflicts and conflict management; arms transfers; Euro-Atlantic, Regional and Global Security; military expenditure and arms production; nonproliferation and export control; arms control and disarmament documentation survey; it projects, including the first (Facts on International Relations and Security Trends) online database. I Using the Voice of the un High Commissioner for Prevention Finally, whenever the un High Commissioner for Human Rights considers that a group or people are in particular danger she or he should be ready to use the voice of the High Commissioner by issuing public statements, calling for the attention of the Human Rights Council, the Security Council, the SecretaryGeneral, or of the leadership of regional or sub-regional organizations with a view to heading off dangers of gross violations. Through such a practice over time the High Commissioner and ohchr would become more sharply defined as preventive actors.

Conclusion: Making Prevention the Decisive Rationale of a Human Rights Grand Strategy

Human rights work can be grouped under the categories of seed-planting, firebrigade, or preventive. The Human Rights Council, High Commissioners and ohchr have done much in the areas of seed-planting and fire-brigade reactions. However, we would submit that there has so far been little efforts for prevention. We would make a call for prevention to become a defining priority of the Human Rights Council, of ohchr and of High Commissioners. We think that global threats to humanity make this imperative. And we have set out areas where we think that there is room for the development of preventive policies and strategies.

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Secretary-General Ban Ki-Moon made a strong case for more prevention in his 2011 report on preventive strategies: We should build on the improvements that have been made in the United Nations and in various regional and sub-regional organizations in developing early warning mechanisms. The establishment of regular and informal early warning dialogues between the United Nations and regional and other partners would allow us to pool information and help us to anticipate ‘threshold moments’, when key actors might decide to use violence. However, early warning is useful only if it leads to early action, and we need to consider a broader range of options for addressing an emerging threat, including seemingly small steps, such as multi-actor statements of concern or fact-finding missions, which can affect the calculations of parties on the ground early on.273 273 Op. cit., para. 66.

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Fact-Finding Introduction There is much fact-finding work that is done within the framework of the Human Rights Council. The Council entrusts fact-finding to its special procedures, to the un High Commissioner for Human Rights, and to ad hoc factfinding commissions. Human rights fact-finding is at the heart of efforts for the international protection of human rights. Unfortunately, it is a recurring phenomenon that governments responsible for gross violations of human rights frequently seek to defend themselves by highlighting and exaggerating mistakes or discrepancies, even minor ones, while side-stepping evidence presented about the violations they have committed. The method of defence resorted to in such instances is to attack the fact-finding report rather than to accept ­responsibility for the violations perpetrated. For these reasons, it is crucial that careful attention be paid to the substantive and methodological integrity of fact-finding reports. The internal ground rules for each report should be explained and respected consistently. The human rights fact-finder must not give openings to unscrupulous governments to deflect attention from their responsibility for violations. The fact-finder must be professional, especially in the face of egregious violations of human rights. Protection of the victims demands this in the face of history. The need for ground rules is particularly important in international or regional organizations. In the United Nations there are some fifty ‘special procedures’ who essentially engage in fact-finding and, while the un Human Rights Council has a Code of Conduct for them, it would be fair to say that many fact-finders, influenced by passion, basically follow their own ground rules.274 From the outset of un human rights fact-finding it was thought that there were certain clearly established principles by which fact-finding should be guided on all occasions. Among these were the independence, objectivity and impartiality of fact-finders; propriety in form and in substance; legality and 274 Historically, the un Special Rapporteurs on Torture have followed solid internal ground rules. The Working Group on Arbitrary Detention has also been a methodical, quasi-­ judicial group.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004289031_012

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due process; equity and fairness; and responsiveness to, and effectiveness in dealing with human rights violations. This was one of the central messages of a book edited by this author, International Law and Fact-Finding in the Field of Human Rights, first published in 1982 and reissued in 2014.275 Since the establishment of the un Human Rights Council it has frequently resorted to fact-finding commissions of inquiry, whose members serve with heart and dedication, but also follow their own ground rules in each instance. One should never seek to hem in these commissions of inquiry with rigid rules, but essential rules of fairness and due process are of great importance for the integrity and weight of their work. In 2014, for instance, a commission of inquiry presented a riveting and damning report on a situation of systemic violations of human rights in an Asian country. The members of the commission are of great integrity and the highest qualifications. But at the same time as it delivered its report, it wrote to the leaders of two countries warning them that they might be held responsible for international crimes. The question arises whether this was proper procedure. Was it for the Commission to write to the two governments concerned or should they have advised the Human Rights Council to do so – or sought its go-ahead before doing so ? Presenting the evidence is for fact-finders; acting on those facts is for the parent body. A fact-finding body should avoid becoming prosecutorial. I

Ground Rules

Fact-finding in the field of human rights is, in principle, a quasi-judicial process, guided by the relevant rules of international law. At the same time, a flexible approach should be adopted by fact-finding bodies and legal criteria should usually yield to humanitarian considerations. Nevertheless, the rules of procedure in international fact-finding should remain consistent with principles of due process in order to retain the credibility of the procedure.276 The need for carefully observed ground rules of human rights fact-finding is probably greater these days because the human rights movement is operating in a period when the ground is shifting under its feet. In the un Human Rights Council the governing majority advocates approaches grounded in cooperation and dialogue, even when dealing with egregious violations of human 275 Martinus Nijhoff, 1982. Reissued in 2014. 276 B.G. Ramcharan (Ed.), International Law and Fact-Finding in the Field of Human Rights (Martinus Nijhoff, 1982, 2014).

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rights. In the broader United Nations there is a vigorous controversy over The Responsibility to Protect. The majority of un members has served notice that they prefer softer approaches when dealing with human rights problems within Member States. Within the un Human Rights Council’s Universal Review Process, ‘constructive dialogue’ is the mantra. One thing has become crystal clear: the human rights movement must seek to act with scrupulous objectivity in the new political environment. This is particularly true of human rights fact-finders. International Law and Fact-Finding in the Field of Human Rights, published in 1982,277 advised, on the sources of law applicable in fact-finding, that these include sources indicated by any particular constitutional or treaty regime within which the fact-finding body may have been established; sources expressly mentioned in the constitutive instrument; relevant legal pronouncements of parent organs; the laws of the State concerned, in so far as they are consistent with the international standards; the sources of law enumerated in Article 38 of the Statute of the International Court of Justice namely, international conventions, international custom, the general principles of law, judicial decisions and the teachings of highly qualified publicists; and the binding parts of international human rights standards. It added that the international standards of human rights are fully invocable by fact-finding bodies. On sources of information and evidentiary issues, International Law and Fact-Finding advised that the rules of evidence applicable to any fact-finding exercise depend in the first place upon any relevant provisions in the constitutive instrument initiating the exercise. If the constitutive instrument gives the fact-finding body the power to draw up its own rules of procedure, then the fact-finding exercise will be governed by such rules of evidence as are included in the rules of procedure. In the absence of any, or sufficiently express, provisions in the constitutive instrument, fact-finding bodies should be guided by the following general principles, both in drawing up their rules of procedure and in their practical operations: – The standard of proof is usually a ‘balance of probability’. Probability in this sense may be defined as an evaluation of the likelihood of a past event having happened, given the facts and assumptions expected or adopted for the purposes of the evaluation. However, in adversarial contexts, the standard ‘beyond all reasonable doubt’ may be applied. – Fact-finding exercises in the field of human rights often being more inquisitorial than adversarial, there is usually no onus or burden of proof upon any 277 Martinus Nijhoff, 1982.

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particular complainant. However, upon the establishment of a prima facie case that breaches of human rights have occurred, a burden of proof may rest upon the government concerned to show that this was not the case or that government agents were not responsible for such violations. – Flexible admissibility criteria should be applied. A fact-finding body is free to employ for enlightening itself all the kinds of evidence that it deems necessary. It has the unlimited right of admitting all methods of proof that may be considered in conscience as sufficient and necessary. – As regards the communication of evidence to the government concerned, a fact-finding body should, as a general rule, communicate to the government concerned for its comments such evidence as it may receive. However, it always possesses a discretion as to whether or not to communicate a particular piece of evidence to the government and may decide not to do so, in order to protect the source of information or to protect other ­persons from reprisals. – As regards the evaluation of evidence this is a matter that rests exclusively within the competence of the fact-finding body, or after it has submitted its report, upon its parent organ (if any). International Law and Fact-Finding also offered detailed guidance on on-site observation and hearings. These included: – Freedom investigation – Freedom of movement – Guarantees of safety and security as well as of privacy and security of premises, possessions, records. – Involability of premises and accomodation – Privacy of interviews or hearings – Protection of witnesses – Privileges and immunities of the members of the Group and secretariat staff. – Maintenance of records. – Press communiques. On hearings, International Law and Fact-Finding advised the following: – Hearings, be they in an inquisitorial or adversarial context, should be conducted in a quasi-judicial manner. – After establishing their identity, witnesses should be required to make an oath or affirmation to tell the truth.

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– Witnesses should preferably give an oral account of their story instead of reading out prepared statements. – Witnesses should be examined by the Chairman or members with a view to checking for reliability, veracity, or corroboration. – The fact-finding body may decide whether the hearing shall be public or private. – Due attention should be paid to the need to protect witnesses against reprisals. If necessary, hearings may be conducted in locations or in circumstances designed to protect witnesses. – The fact-finding body decides for itself on witnesses whom it wishes to hear and may call witnesses of its own volition. – A fact-finding body may advise on interim measures of protection if necessary or may suggest that urgent measures be taken in order to ensure respect for human rights. – In hearings in an adversarial context, the principle of equality of arms should be respected. – Appropriate arrangements should be made for maintaining records. II

Fact-Finding in the Human Rights Council

Fact-finding in the Human Rights Council takes place in one of three main ways: first through the special procedures established by the Council to examine global problems such as extreme poverty, to investigate thematic violations of human rights such as torture, or to investigate particular country situations where gross violations are alleged to be taking place; second, through the un High Commissioner for Human Rights; third, through ad hoc commissions of inquiry that the Council establishes from time to time to look into particular situations such as that in the Democratic People’s Republic of Korea or through reports requested from the Office of High Commissioner for Human Rights. A The Special Procedures The Rapporteurs, Representatives, Envoys, Working Groups and similar ‘special procedures’ of the Council are among the most important human rights protection actors of the United Nations in the world today. They deal with issues of civil and political rights, economic and social rights and invoke international human rights law as well as international humanitarian law, as pertinent to the situations or issues they deal with. They focus on thematic issues or on country situations, as decided upon by the Council.

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In their initial conception, ‘special procedures’ were meant to perform one or more of four crucial functions: studies and analyses of situations, fact-­ finding and reporting, urgent action to protect those at risk, and advice to government(s) directly concerned, as well as to the then Commission on Human Rights, now the Human Rights Council. Although these four functions are at the heart of the concept, over the years the tasks assigned to them have expanded.278 The ‘special procedures’ in existence perform one or more of the following protection functions: They contribute to protection through studies, analyses, recommendations and the development of norms. They contribute to protection in providing channels and fora for the victims of human rights violations to publicize their plight. They contribute to protection through fact-finding. They contribute to protection through advocacy. They contribute to protection through their efforts for the prevention of violations, including urgent action and appeals. They contribute to containment and mitigation through their transmittals of complaints to Governments and through visits on the spot. They contribute to protection through their efforts for justice and reconciliation. They contribute to protection through their efforts to promote and in some instances provide redress and remedies. They contribute to protection through their follow-up activities. They are pioneering new approaches to the protection of economic, social and cultural rights. This is being done by mandate holders on food, health, shelter, extreme poverty, development, and international solidarity. Special procedure mandate-holders are expected to discharge their functions with independence, impartiality, integrity and in accordance with standards of fairness and due process and in the quest for justice. The special procedures place the protection of those in need high among their priorities and pursue a victims-oriented perspective. They have the tasks of analysing human rights situations, making relevant recommendations and striving for justice for the victims, actual and threatened. Special procedure mandate-holders operate on the basis of international cooperation with governments, specialised agencies, regional organisations, national human rights institutions, non-governmental organisations, civil society and other partners and also pursue cooperative approaches among 278 See, generally, B.G. Ramcharan, The Quest for Protection: A Human Rights Journey at the United Nations (Geneva, The Human Rights Observatory, 2005).

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themselves. With a view to facilitating and harmonising their work, the Special procedures have established a Coordinating Committee, which supports joint activities among them and interacts with the Human Rights Council and other actors in enhancing the system of special procedures. Increasingly, special procedures concert their efforts in joint and constructive approaches towards governments and other partners and, through their Coordinating Committee are further developing joint efforts in a constructive manner in their interactions with governments and others. The functions of special procedures include the gathering and analysis of information and trends on emerging and actual human rights issues, acting upon the recommendations of human rights treaty bodies, contributing to the development of international standards, responding to urgent situations referred to them by the Human Rights Council, gathering and reacting to reliable information concerning allegations of human rights violations, reporting on State implementation of human rights obligations, identifying best practices, undertaking country visits, making recommendations for improved enforcement of human rights at the national level and communicating on behalf of victims. The special procedures are also attentive to the importance in their work of contributing to human rights education and training and to the dissemination of information on human rights. They communicate with, respond to and interact with civil society, national human rights institutions, non-­ governmental organisations, media and other actors in the implementation of their mandates. The efficacy of the work of special procedures depends upon effective and timely cooperation from governments, particularly in providing relevant infor­ mation expeditiously, responding effectively to their communications, enabling them to have unhindered access to the country to asses the field situation, and in giving effect to their recommendations in a sustained and faithful manner. The standing invitations by countries pledging to accept visits of thematic special procedures is an important way of strengthening the system and all countries should consider issuing such standing invitations. Special procedures contribute to the protection of human rights by responding in a timely manner to situations of actual or threatened violations of human rights, by contributing to the identification of threats to population groups and individuals, by undertaking visits to trouble spots, by making recommendations on law, policy, practice and corrective measures to governments and to the Human Rights Council, by calling for the wide dissemination of their findings, and by calling upon the governments and peoples of the un to act effectively for the protection of human rights in discharge of the Charter’s mandate on the universal protection of human rights.

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The special procedures mobilise the global community to protect the rights of actual and potential victims. The information and analysis from their reports and related recommendations helps to empower groups and individuals in protecting their rights. They also alert the international community to urgent human rights situations which require effective measures to protect human rights. Visits by special procedures to victims, key locations and places where situations of concern manifest themselves such as situations where the right of self-determination is involved, prisons and places of detention, situations of displacement and locations where people are threatened with evictions and displacement, are, among others, an important part of the protection activities they engage in. Implementation of the recommendations of special procedures is crucial to the success of the system. Inadequate implementation of the recommendations coming from the special procedure system weakens the efficacy and credibility of the un and the international community and impedes the realisation of human rights. The Governments concerned, interested governments – in pursuance of their obligation of international cooperation under the Charter – and international and regional organisations, should do their utmost to implement, and follow up on, the recommendations of special procedures. At a minimum, Governments should explain why they have chosen not to implement recommendations, both to the Special Procedure mandate holder and to the Human Rights Council. Civil society has an important role to play in encouraging and monitoring follow up to the implementation of special procedures recommendations. Urgent actions are an essential part of the work of special procedures. They concern actual and impending threats which need to be responded to expeditiously and effectively. It is crucial to identify governmental focal points which can address such actions in a timely and responsive manner. B Methods of Fact-Finding Theo van Boven, then Special Rapporteur against Torture, in a report submitted to the Council’s predecessor, the Commission on Human Rights, in 2002– 2003, provided a magisterial illustration of the methods of work of a professional special rapporteur.279 His work as Special Rapporteur, he reported to the Commission, was characterized by the following main types of activity: 279 un doc. E/CN.4/2003/68, 17 December, 2002: Torture And Other Cruel, Inhuman Or Degrading Treatment, Report Of The Special Rapporteur On The Question Of Torture Submitted In Accordance With Commission Resolution 2002/38.

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(a) “Seeking and receiving credible and reliable information from Governments, specialized agencies and intergovernmental and non-governmental orgnizations as well as private individuals; (b) Sending urgent appeals to Governments to clarify the situation of individuals whose circumstances give grounds to fear that treatment falling within the Special Rapporteur’s mandate might occur or be occurring; (c) Transmitting to Governments information of the sort mentioned in (a) above indicating that acts falling within his mandate may have occurred or that legal or other measures are needed to prevent the occurrence of such acts: (d) Exploring the possibility of undertaking fact-finding visits to States where information suggested that torture may involve more than isolated and sporadic incidents, with a view to gaining more direct knowledge of the situation and practice relating to matters falling within his mandate and identifying measures to prevent the recurrence of such cases and to improve the situation; and (e) Submitting annual reports on his activities and mandate, as well as his conclusions and recommendations, to the then Commission on Human Rights and the General Assembly.280 He expanded upon his methods of work as follows:281 Sources of Information With respect to the credibility and reliability of the information that comes before him, the Special Rapporteur takes into account a number of factors, any one of which may be sufficient, through generally more than one will be present. These factors include: (a) the established previous reliability of the source of information; (b) the internal consistency of the information; (c) the precision of the factual details included in the information; (d) the consistency of the information as compared with information on other cases from the country in question that has previously come to his attention; (e) the existence of authoritative reports of torture practices from national sources, such as official commissions of inquiry and national commissions on human rights/ombudsperson’s offices; and (f) the findings of other international bodies, such as United Nations country rapporteurs and representatives, human rights treaty-monitoring bodies and regional human rights bodies. The 280 Ibid, pp. 3–4. 281 Ibid, un doc. E/CN.4/2003/68, 17 December, 2002, pp. 4–8.

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Special Rapporteur may also rely on assessments made by professionals of the Office of the High Commissioner for Human Rights (ohchr) as well as of other United Nations agencies. With respect to information pertaining to individual cases, it should be noted that a number of basic requirements must be contained in the information submitted to him, such as the identity of the alleged victims, the date and place of the incident, a description of the alleged perpetrators and of the situation, and the identity of the source of information. It should be stressed that the last element will remain confidential. Urgent Appeals With respect to the “urgent appeals” procedure, the Special Rapporteur acknowledged that his work had been considerably facilitated by the creation within ohchr of a Quick Response Desk which allowed information to be processed in a more timely and consistent manner and also facilitated the sending of joint appeals with other special procedures of the Commission. These appeals served urgent humanitarian purposes in their request for clarification and relief. The urgent appeal procedure was not per se accusatory, but rather essentially preventive in nature and purpose. The Government concerned was requested to look into the matter and to take steps aimed at protecting the right to physical and mental integrity of the person concerned, in accordance with the international human rights standards. The circumstance that led to urgent appeals were diverse, but they had in common that they indicated, on the basis of information of the sort mentioned above, that an identifiable risk of torture or other cruel, inhuman or degrading treatment or punishment existed. Such circumstances included incommunicado detention, prolonged solitary confinement, use of physical constraints in circumstances contrary to international standards, lack of essential medical care and treatment, imminent corporal punishment, and serious risk of extradition or deportation to a State or territory where the person in question would reportedly be in danger of being subjected to torture. The Special Rapporteur might also address the enactment of legislation or other measures that may undermine the prohibition of torture. Owing to the time-sensitive nature of such an appeal, the Special Rapporteur transmitted it directly to the Minister for Foreign Affairs of the country concerned, urging the Government in question to take the necessary measures to ensure the physical and mental integrity of the persons concerned but without drawing any conclusions as to the facts.

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Because urgent appeals served immediate humanitarian purposes, the Special Rapporteur might exceptionally decide to send such appeals to entities other than official de jure authorities in cases where the entities in question, as well as a channel of communication for reaching them, had been clearly identified. In the past, situations of armed conflicts had provoked such action. The Special Rapporteur recalled that all parties to an armed conflict, be it of an international or an internal character, were bound by the minimum standards of humanitarian law that prohibited violence to life and person, in particular cruel treatment and torture, as well as outrages upon personal dignity, by any party to the conflict at any time and in any place whatsoever. The Special Rapporteur stressed that such urgent humanitarian appeals did not in any way determine the international legal status of such entities. Allegation Letters Information alleging torture received by the Special Rapporteur which did not require him to take immediate action was transmitted to Governments in the form of “allegation letters.” These letters contained summaries of individual cases of torture and, where applicable, included general references to the phenomenon of torture, such as alleged systematic patterns of practice of torture, patterns relating to a specific group of victims or of perpetrators, or specific legislation deemed not sufficient to guarantee the right to physical and mental integrity. In these letters, the Special Rapporteur would request the Government concerned to clarify the substance of the allegations and urge it to take steps to investigate them, to prosecute and impose appropriate sanctions on any persons guilty of torture regardless of any rank, office or position they may hold, to take effective measures to prevent the recurrence of such acts, and to compensate the victims or their relatives in accordance with the relevant international standards. Because of the limited staff resources, such communications were usually sent once a year – at the end of the Summer – to Governments, which were given some two months to respond. The Special Rapporteur hoped that he would be in a position to send such communications more regularly during the course of the year and would do his utmost to facilitate the processing of these communications by Governments concerned. He noted that it was desirable for Governments to receive relevant information as expeditiously as possible and to have their replies thereto in the same report that contained the summary of the original information transmitted by the Special Rapporteur. Thus, reports of the Special Rapporteur would provide the reader with a balanced perspective on the matter.

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Individual cases regarding which no reply had been received were r­ e-sent the following year until a reply was received. The Special Rapporteur noted with concern that a number of Governments had failed to provide any replies on cases originally sent in 1997 and 1998. The Special Rappor­ teur analysed responses from Governments and transmitted the contents to the sources of the allegations, as appropriate, for comment. This practice mainly concerned cases where the facts appeared to be contradicted. If required, dialogue with the Government was then pursued further. The Special Rapporteur made it clear communications regarding individual cases – urgent appeals and allegations – did not constitute any judgment on his part concerning the merits of the cases. In transmitting those communications, the Special Rapporteur did not associate himself with or condone in any way acts or activities of the persons on whose behalf he intervened. No matter how wrongly, dangerously, or even criminally a person might act, every human being is legally and morally entitled to protection on the basis of internationally recognized human rights and fundamental freedoms. This applies a fortiori where a non-derogable right, such as the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, was involved. Fact-Finding Missions The Special Rapporteur carried out visits to countries on invitation, but also tooks the initiative of approaching Governments with a view to carrying out visits to countries concerning which he had received information indicating the existence of a significant incidence of torture. Such visits should allow the Special Rapporteur to gain more direct knowledge of situations falling within his mandate, and were intended to enhance the dialogue between the Special Rapporteur and the authorities most directly concerned, as well as with the alleged victims, their families and legal representatives and non-governmental organizations, with a view to making detailed recommendations. When contemplating whether to request an invitation, the Special Rapporteur took into account, first and foremost, the number, quality and gravity/nature of the allegations received and the potential impact that a mission to the country concerned might have on the overall human rights situation. The Special Rapporteur welcomed the decision by an increasing number of States to extend a standing invitation to all thematic special procedures and urged others to seriously consider extending such an invitation. The Special Rapporteur did not, as a rule, seek to visit a country in respect of which the United Nations had established a country-specific

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mechanism such as a special rapporteur/representative for the country, unless a joint visit seemed to both to be indicated. For countries where the mandates of other thematic mechanisms might also be affected, the Special Rapporteur consulted with the latter with a view to exploring with the Government in question, whether jointly or in parallel, the possibility of a joint visit. Where the Committee against Torture was considering the situation in a country under Article 20 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, especially if that consideration involved a visit or possible visit by the committee to the country in question, the Special Rapporteur did not seek a visit. In accordance with the terms of reference for fact-finding missions by special rapporteurs/representatives of the former Commission on Human Rights adopted by the fourth meeting of special rapporteurs/­ representatives, independent experts and chairpersons of working groups of the special procedures (E/CN.4/1998/45, annex V), before a factfinding mission took place, the Government concerned was asked to guarantee the following to the Special Rapporteur and accompanying United Nations staff: freedom of movement throughout the country; freedom of inquiry, especially in terms of access to all detention centres and places of interrogation; free contact with central and local authorities of all branches of Government; free contact with representatives of nongovernmental organizations, other private institutions and the media; confidential and unsupervised contacts with witnesses and other private individuals, including persons deprived of their liberty; and full access to all documentary material relevant to the mandate. The Government was also asked for assurance that no persons, be they officials or private individuals, who had been in contact with the Special Rapporteur in connection with the mandate would suffer threats, harassment or punishment on that account or be subjected to judicial proceedings. As stated by the meeting, these terms of reference “are the minimum necessary to ensure the independence, impartiality and safety of visits by the Special Rapporteurs to the field. These terms of reference did not exclude additional safeguards, depending on the mandates or circumstances.” During the mission, the Special Rapporteur met with representatives of the Government, non-governmental organizations and the legal profession, alleged victims of torture and relatives of the victims. He visited places of detention and of interrogation to obtain first-hand knowledge of how the criminal legal process operated, from arrest to enforcement of the sentence. Confidential and unsupervised interviews were conducted

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with victims of torture, witnesses and other private persons, including those deprived of their liberty. In the mission report, the Special Rapporteur might give an account of individual allegations received. Although the monitoring of conditions of detention was not specifically mentioned in the mandate, they might well be pertinent, especially when they constituted a grave risk to the life or health of detainees. With regard to countries in which visits had been carried out, the Special Rapporteur periodically reminded the Governments concerned of the observations and recommendations formulated in the respective reports, requesting information on the consideration given to them and the steps take to implement them, or the constraints which might prevent their implementation. The Special Rapporteur also welcomed information from non-­ governmental organizations and other interested parties regarding measures taken in follow-up to his recommendations. Thus a dialogue on measures that might be undertaken by the concerned authorities could be established. Reports The Special Rapporteur was mandated by the Commission (now the Human Rights Council) and the General Assembly to report on an annual basis to both organs. Reports to the Commission/Council contained summaries of all communications (urgent appeals and allegation letters) transmitted to Governments and the latter’s replies thereto. The Special Rapporteur might also include general observations on specific countries. Nevertheless, no conclusion as to individual cases were drawn. He might also address specific issues of concern and development that had an impact on the fight against torture and usually drew general conclusions and made recommendations. Because of financial constraints and limitations on the length and time of submission of documentation, summaries of communications sent to Governments and replies received by the Special Rapporteur had in recent years not been translated; they appeared in addendum 1 to the main report of the Commission/Council in the original working language of the United Nations Secretariat used to communicate with the respective Governments. Interim reports to the General Assembly outlined overall and recent development of relevance to the Special Rapporteur’s mandate. In the mission reports, which were addenda to the main report, the Special Rapporteur outlined legislation of relevance to the prohibition of torture such as provisions making torture a crime and provisions ­governing arrest and detention. Special attention was paid to p ­ eriods of

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i­ncommunicado detention, disciplinary sanctions, access to qualified legal representation and legal aid, access to family members and medical care, bail provisions, witnesses protection, the admissibility of confessions, the status and independence of medical experts and forensic services, and access of members of civil society to places of detention. As indicated in his first report to the Commission (E/CN.4/2002/137, para.6), the Special Rapporteur attached great importance to follow-up activities and considered them to be an essential requirement of his mandate. He therefore intended to seek ways to enhance the quality of such activities, in particular in cooperation with the Quick Response Desk of ohchr. He also paid particular attention to cooperation with other mechanisms, especially other special procedures mandate-holders, with a view to taking concerted actions and avoiding duplication of work. In that respect, he sought the cooperation of other special rapporteurs/representatives when sending communications, be they urgent appeals or allegation letters, regarding information that fell within other special procedures mandates. C Code of Conduct for the Special Procedures In the institutional measures brought into force on 19 June 2007, the Human Rights Council provided guidance on the objectives and orientation of the system of special procedures. Mandates, it noted, should always offer a clear prospect of an increased level of human rights promotion and protection as well as coherence within the system of human rights. Equal attention should be given to all human rights. The balance of thematic mandates should broadly reflect the equal importance of civil and political rights and economic, social and ­cultural rights including the right to development. Thematic mandates are to be of three years duration and country mandates of one year duration. The Council stated its intention to consider a uniform nomenclature of mandate holders. Decisions to create, review or discontinue country mandates should take into account the principles of cooperation and genuine dialogue aimed at strengthening the capacity of Member States to comply with their human rights obligations. In a Code of Conduct for special procedures mandate holders the Council urged all sates to cooperate with, and assist the special procedures in the performance of their tasks and to provide all information in a timely manner, as well as respond to communications transmitted to them by the special procedures without delay. Mandate holders, according to the code of conduct, must seek to establish the facts based on objective, reliable information emanating from

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r­elevant, credible sources that they have duly cross checked to the best extent possible.282 They should take into account in a comprehensive and timely manner in particular information provided by the State concerned on situations relevant to their mandate. They should evaluate all information in the light of internationally recognised human rights standards relevant to their mandate, and of international conventions, to which the State concerned is a party. They are entitled to bring to the attention of the Council any ­suggestion likely to enhance the capacity of special procedures to fulfil their mandate. On sources of information the mandate holders should be guided by the principles of discretion, transparency, impartiality and even-handedness. They should preserve the confidentiality of sources, of testimonies if their disclosure could cause harm to the individuals involved. The should “rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are called upon to draw up.” They should give representatives of the state concerned the opportunity of commenting on their assessment and of responding to the ­allegations made against the state and to annex the States written summary responses to their reports. Mandate holders may resort to urgent appeals in cases where the alleged violations are time-sensitive in terms of involving loss of life, life-threatening situations or other imminent or ongoing damage of an extremely grave nature to victims that cannot be addressed in a timely manner by the procedure prescribed in Article 9 for letters of allegation. During their field visits mandate holders should seek to establish a dialogue with the relevant government authorities and with all stake-holders, the promotion of dialogue and cooperation to ensure the full effectiveness of special procedures being a shared obligation of the mandate holders, the concerned state and the stake-holders.283 In the fulfilment of their mission, mandate holders are accountable to the Council.284 The Council considered “that one should distinguish between on the one hand, the independence of mandate-holders, which is absolute in nature, and on the other hand, their prerogatives, as circumscribed by their mandate, the mandate of the Human Rights Council, and the provisions of the United Nations Charter.”285 282 283 284 285

Code of Conduct, Article 6. Article 11. Article 15. Code of Conduct Human Rights Council resolution A/HRC/5/2, Preambular Paragraph 13.

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The Council urged all states to cooperate with, and assist, the Special Procedures in the performance of their tasks and furnish all information as well as respond to communications transmitted to them by the Special Procedures without undue delay. According to Article 3 of the Code of Conduct, mandate holders are independent United Nations experts. While discharging their mandate, they shall: (a) act in an independent capacity; and exercise their functions in accordance with their mandate, through a professional, impartial assessment of facts based on internationally recognized human rights standards, free from any kind of extraneous influence, incitement, pressure, threat or interference, either direct or indirect, on the part of any party, whether stake-holder or not, for any reason whatsoever, the notion of independence being linked to the status of mandate-holders, and to their freedom to assess the human rights questions that they are called upon to examine under their mandate; (b) keep in mind the mandate of the Council, which is responsible for promoting universal respect for the protection of all human rights and fundamental freedom for all, through dialogue and cooperation as specified in General Assembly Resolution 60/251; (c) exercise their functions in accordance with their mandate and in compliance with the un Regulations governing the Status of Experts on mission as well as with the present Code; (d) focus exclusively on the implementation of their mandate, constantly keeping in mind their fundamental obligations of truthfulness, loyalty and independence pertaining to their mandate; (e) uphold the highest standards of efficiency, competence and integrity, meaning, in particular, though not exclusively, probity, impartiality, equity, honesty and good faith; (f) neither seek nor accept instructions from any Government, individual, governmental or non-governmental organisation or pressure group whatsoever; (g) adopt a conduct that is consistent with their status, at all times; (h) be aware of the importance of their duties and responsibilities, taking the particular nature of their mandate into consideration and behaving in such a way as to maintain and reinforce the trust they enjoy from all stakeholders; (i) not use their office or knowledge gained from their functions for private gain, financial or otherwise, or for the gain and/ or detriment of any family member, close associate, or third party; (j) not accept any honour, decoration, favour, gift or remuneration from any governmental or nongovernmental source for activities carried out in pursuit of his/her mandate. Article 4 of the Code of Conduct stipulated the following on the status of mandate-holders. (a) Mandate-holders exercise their functions on a personal basis, their responsibilities not being national but exclusively international; (b) When exercising their functions, the mandate-holders are entitled to the  privileges and immunities provided for under relevant international

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i­nstruments including under Section  22 of Article VI of the United Nations Convention on Privileges and Immunities; (c) Without prejudice to these privileges and immunities, the mandate-holders shall carry out their mandate while fully respecting the national legislation and regulations of the country wherein they are exercising their mission. Where an issue arises in this regard, mandate-holders shall adhere strictly to the provisions of Regulation 1(e) of the Regulations Governing Status, Basic Rights and Duties of Officials and Experts on Mission, adopted by General Assembly resolution 56/280. Prior to assuming their functions, mandate-holders shall, in accordance with Article 5 make the following solemn declaration in writing: I solemnly declare that I shall perform my duties and exercise my functions from a completely impartial, loyal and conscientious standpoint, and truthfully, and that I shall discharge these functions and regulate my conduct in a manner totally in keeping with the terms of my mandate, the United Nations Charter, the interests of the Organization of the United Nations and with the objective of promoting and protecting human rights, without seeking or accepting any instruction from any other party whatsoever. Article 6 of the Code of Conduct laid down that without prejudice to prerogatives for which provision is made as part of their mandate, the mandate-­ holders shall: (a) always seek to establish the facts, based on objective, reliable information emanating from relevant credible sources, that they have duly cross-checked to the best extent possible; (b) take into account in a comprehensive and timely manner, in particular information provided by the State concerned on situations relevant to their mandate; (c) all information in light of internationally recognized human rights standards relevant to their mandate, and of international conventions to which the State concerned is a party; (d) be entitled to bring to the attention of the Council any suggestion likely to enhance the capacity of Special Procedures to fulfil their mandate. According to Article 7: It is incumbent on the mandate-holders to exercise their functions in strict observance of their mandate and in particular to ensure that their recommendations do not exceed their mandate or the mandate of the Council itself. According to Article 8, in their information-gathering activities the ­mandate-holders shall: (a) be guided by the principles of discretion, transparency, impartiality, and even-handedness; (b) preserve the confidentiality of sources of

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t­ estimonies if their divulgation could harm witnesses; (c) rely on o­ bjective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are called upon to draw up; (d) give representatives of the concerned State the opportunity of commenting on mandate-holders’ assessment and of responding to the allegations made against this State, and annex the State’s written summary responses to their reports. According to Article 9, with a view to achieving effectiveness and harmonization in the handling of letters of allegations by special procedures, mandate-holders shall assess their conformity with reference to the following criteria: (a). The communications should not be manifestly unfounded or politically motivated: (b). The communication should contain a factual description of the alleged violations of human rights; (c). The language in the communication should not be abusive; (d). The communication should be submitted by a person or a group of persons claiming to be victim of violations or by any person or group of persons, including ngos, acting in good faith in accordance with principles of human rights, and free from politically motivated stands irrelevant or contrary to, the provisions of the un Charter, and claiming to have direct or reliable knowledge of those violations supported by clear evidence; and (e). The communication should not be exclusively based on reports disseminated by mass media. Mandate-holders may, under Article 10, resort to urgent appeals in cases where the alleged violations are time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of an irreparable nature to victims that cannot be addressed in a timely manner by the procedure under Article 9. According to Article 11, Mandate-holders shall: (a) Ensure that their visit is conducted in compliance with the terms of reference of their mandate; (b) Ensure that their visit is conducted with the consent, or at the invitation, of the concerned State; (c) Prepare their visit in close collaboration with the Permanent Mission of the concerned State accredited to the United Nations Office in Geneva except if another authority is designated for this purpose by the concerned State; (d) Finalize the official programme of their visits directly with the host country officials with administrative and logistical back-up from the local United Nations Agency/Representative of the High Commissioner for Human Rights who may also assist in arranging meetings with private witnesses; (e) Seek to establish a dialogue with the relevant Government authorities and with all other stakeholders, the promotion of dialogue and cooperation being a shared obligation of the mandate-holders, the concerned State and the said stakeholders; (f) Have access upon their own request, in consultation with

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ohchr and after approval by the host Government or upon the decision of the latter, in light of its assessment of the security situation, to official security protection during their visit without prejudice to the privacy and confidentiality that mandate-holders require to fulfill their mandate and to their freedom of movement within the itinerary agreed to with the host Government; According to Article 12, mandate-holders shall: (a) Bear in mind the need to ensure that their personal political opinions are without prejudice to the execution of their mission, and base their conclusions and recommendations on objective assessments of human rights situations; (b) in implementing their mandate, therefore, show restraint, moderation and discretion so as not to undermine the recognition of the independent nature of their mandate or the environment necessary to properly discharge the said mandate. According to Article 13, mandate-holders shall: (a) while expressing their considered views, particularly in their public statements concerning allegations of human rights violations, report fairly on the responses of the concerned State; (b) while reporting on a concerned State, ensure that their declarations on the human right situation in the country are at all times compatible with their mandate and the integrity, independence and impartiality which their status requires, and which is likely to promote a constructive dialogue among stakeholders as well as cooperation for the promotion and protection of human rights; (c) ensure that the concerned Government authorities are the first recipients of their conclusions and recommendations concerning the State and are given adequate time to respond, and that likewise the Council is the first recipient of conclusions and recommendations addressed to this body. According to Article 14, mandate-holders shall address all their communications to concerned Government through diplomatic channels unless agreed otherwise by individual Government with the ohchr; According to Article 15, in the fulfilment of their mission, mandate-holders are accountable to the Council. D The High Commissioner for Human Rights At the request of the Council or on his/her own volition, the un High Commissioner for Human Rights does serious fact-finding work that is of great assistance to the Council. At the time of writing, the High Commissioner had just submitted a detailed report to the Council on human rights violations in Iraq being committed, mainly, by the so-called Islamic State in Iraq and the Levant (isil or is).286 286 Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July–10 September, 2014. See Council Resolution S-22/1 on the same.

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In September, 2014, ohchr and the United Nations Assistance Mission for Iraq (unami) jointly published a Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July–10 September 2014. The report recorded that the conflict between the Iraqi Security Forces (isf) and affiliated forces, on the one hand, and the Islamic State in Iraq and the Levant (isil) and associated armed forces, on the other, continued to take a heavy toll on civilians. “Gross human rights abuses and acts of violence of an increasingly sectarian nature, committed by armed forces, have exacerbated the effect on civilians and contributed to the deterioration in the human rights situation and the rule of law, in many parts of the conflict.”287 unami/ohchr had received reports of serious violations of international humanitarian law and gross abuses of human rights that had been perpetrated by isil and associated groups, with an apparent systematic and widespread character. These included attacks directly targeting civilians and civilian infrastructure, executions and other targeted killings of civilians, abductions, rape and other forms of sexual and physical violence perpetrated against women and children, forced recruitment of children, destruction or desecration of places of religious or cultural significance, wanton destruction and looting of property, and denial of fundamental freedoms. Members of Iraq’s diverse ethnic and religious communities, including Turkmen, Shabak, Christians, Yezidi, Sabaeans, Kaka’e, Faili Kurds, Arab Shi’a, and others had particularly been affected by the situation. isil and associated armed groups intentionally and systematically targeted these communities for gross human rights abuses, at times aimed at destroying, suppressing or cleansing them from areas under their control. isil and associated armed groups also murdered captured soldiers and other security forces or government personnel. Many of the violations and abuses perpetrated by isil and associated groups might amount to war crimes or crimes against humanity. unami/ohchr had also received some reports of serious violations of international humanitarian law and gross violations or abuses of international human rights law committed by isf and affiliated armed groups. These included air strikes and shelling as well as conduct of particular military operations or attacks that might have violated the principles of distinction and proportionality under international humanitarian law. Armed groups affiliated to, or supporting, the Government had also carried out targeted killings, including of captured fighters from isil and its associated armed groups, and abductions of civilians.288 287 Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July–10 September, 2014, p. i. 288 Ibid.

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E Commissions of Inquiry There is both solid good work and contested work carried out by fact-finding commissions in the Council. It might be fair to conclude that the trend is in the direction of quality fact-finding. Two recent examples bear this out. A commission of inquiry established by the Council showed great quality and professionalism in its work. In its resolution 22/13, adopted on 21 March 2013, the Council established a Commission of Inquiry on human rights in the Democratic People’s Republic of Korea and mandated it to investigate the systematic, widespread and grave violations of human rights in the State, with a view to ensuring full accountability, in particular for violations that may amount to crimes against humanity. The Commission was chaired by Judge Michael Kirby of Australia and the other two members were Ms Sonja Biserko of Serbia and Mr Marzuki Darusman of Indonesia. Mr Darusman was also Special Rapporteur of the Council on the dprk. The Government of the dprk did not cooperate with the Commission. Owing to its lack of access to the dprk, the commission obtained first-hand testimony through public hearings ‘that were transparent, observed due process and protected victims and witnesses’. More than 80 witnesses and experts testified publicly and provided information ‘of great specificity, detail and relevance, in ways that often required a significant degree of courage’. The Commission and its Secretariat conducted more than 240 confidential interviews with victims and witnesses. The Commission made a call for written submissions to all States Members of the United Nations and relevant stakeholders. Eighty such submissions were received. The Commission conducted official visits to five countries and sought access to China in order to conduct inquiries and to consult with officials of the Government and local experts. Its request was declined. The commission based its findings on a ‘reasonable grounds’ standard of proof: ‘It concluded that there are reasonable grounds establishing that an incident or pattern of conduct had occurred whenever it was satisfied that it had obtained a reliable body of information consistent with other material, based on which a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred’. In para. 21 of its report the commission stated the following: The commission finds that systematic, widespread and gross violations have been and are being committed by the Democratic People’s Republic of Korea. In many instances, the violations found entailed crimes against humanity based on State policies. The main perpetrators are officials of the State Security Department, the Ministry of People’s Security, the

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Korean People’s Army, the Office of the Public Prosecutor, the judiciary and the Workers’ Party of Korea, who are acting under the effective control of the central organs of the Workers’ Party of Korea, the National Defence Commission and the Supreme Leader of the Democratic People’s Republic of Korea. The work of this commission of inquiry was of undoubtedly high quality. In the summer of 2014 another high-quality commission of inquiry into violations of human rights committed in Syria reported its finding based on 480 interviews and evidence collected between 20 January and 15 July 2014. The commission established that the conduct of the warring parties in the Syrian Arab Republic had caused civilians immeasurable suffering. Government forces had continued to perpetrate massacres and conduct widespread attacks on civilians, systematically committing murder, torture, rape and enforced disappearance amounting to crimes against humanity. Government forces had committed gross violations of human rights and the war crimes of murder, hostage-taking, torture, rape and sexual violence, recruiting and using children in hostilities and targeting civilians. Government forces disregarded the special protection accorded to hospitals and medical and humanitarian personnel. Indiscriminate and disproportionate aerial bombardment and shelling had led to mass civilian casualties and spread terror. Government forces used chlorine gas, an illegal weapon. Non-state armed groups, named in the report, had committed massacres and war crimes, including murder, execution without due process, torture, hostage-taking, violations of international humanitarian law tantamount to enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups had besieged and indiscriminately shelled civilian neighbourhoods, in some instances spreading terror among civilians through the use of car bombings in civilian areas. Members of the Islamic State of Iraq and Al-Sham (isis) had committed torture, murder, acts tantamount to enforced disappearance, and forcible displacement as part of an attack on the civilian population in Aleppo and AL Raqqah governorates, amounting to crimes against humanity.”289 In the work of the Council over the past decades there has, unfortunately, been evidence of different weights and measures being applied as between a government favoured by the majority of the Council and one disfavoured by 289 “Report of the Independent Commission of Inquiry on the Syrian Arab Republic,” A/HRC/27/60, 13 August, 2014.

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them. This comes out vividly in a comparison between the High-Level Panel of Experts on Darfur and the Goldstone commission of inquiry. In 2007, the Council established a High-level Panel of Experts to examine the situation of human rights in Darfur after much horse-trading. The Government of Sudan, supported by Council members belonging to the Organization of the Islamic Conference, insisted on the panel including members favourable to it, including the Ambassadors of Algeria and Indonesia. It reached an understanding with the President of the Council that the report of the panel would be drafted by the Ambassador of Algeria. The membership of the two ambassadors seems to have been negotiated with leading m ­ embers of the Council belonging to the ‘Western’ group. Subsequently, the leadership of the Western group changed its position and opposed the inclusion of serving ambassadors in Geneva on a panel of experts. There was protracted discussion in which the Government of Sudan insisted that it had reached an understanding on the matter. In the end, the President of the Council replaced the Algerian Ambassador with the Ambassador of Gabon and the two ambassadors ended up serving on the panel, alongside a Nobel peace prize laureate (the Chairperson), a Latvian member of parliament, an Afghan expert, and this author, who had previously exercised the functions of un High Commissioner for Human Rights. The members of the panel worked harmoniously as a group of people.290 However, there were undisputed political limits to some aspects of its work. The Government of Sudan, in the end, did not allow the panel to enter Darfur and some members of the panel, proposed that the panel visit the headquarters of the African Union in Addis Ababa and visit camps with refugees from Darfur on the Chadian side of the border with Sudan. The two ambassadors politely indicated that their Governments would not allow them to go to Chad and they left the mission after the visit to Addis Ababa. The other members of the panel proceeded to make the visit to the refugee camps in Chad. As a matter of principle, a High-level panel of eminent experts should never have been in a position in which two of its members could not undertake part of the mission because their government would not allow it. One of the ambassadors resigned from the panel because of differences with the Chairperson and took no further part in the consideration and adoption of the report. The report of the panel was a principled one and analysed the situation in Darfur in detail through the lens of the responsibility to protect. The report contained sensible recommendations. 290 The author was a member of the panel.

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Continuing the political saga, when the report reached the Council, the majority of members denounced it, refused to endorse it, and did not follow its recommendations. The criticism of some members of the Panel for allegedly being prejudiced was harsh and nasty. In the end, the Council gave no follow up to the report. Instead, it decided that a group of special rapporteurs should work with the Government of Sudan on the implementation of recommendations previously made by different special procedures. This exercise continued for two years and was then discontinued. In the meantime, the human rights situation in Darfur continued to deteriorate. The position of the Council was a completely unprincipled one and raw politics reigned. One might compare this approach with the position of the Council towards two fact-finding missions established to deal with situations in Palestine: the Tutu fact-finding mission and the Goldstone inquiry. In both instances Israel refused to cooperate with the inquiries. In the case of the Tutu inquiry, Israel charged that both Tutu and his college on the inquiry, Professor Christine Chinkin, were biased. In the case of the Goldstone commission, Israel protested that the Council had first condemned Israel and then ordered the inquiry and that some members of the commission of inquiry were biased. For the purposes of this book we do not need to discuss these contentions. Two issues, however, point to serious problems in the fact-finding approach of the Council. First, like in the case of the panel on Darfur, the Council had followed a flawed approach in designating members of the inquiry bodies. In the case of the Darfur panel, the Government of Sudan had insisted on the appointment of two ambassadors favourable to it. In the case of the Goldstone inquiry, three members of the panel had reportedly written letters being overtly critical of the conduct of Israel in relation to matters that were the subject of the inquiry. We do not take a position on this and do not in any way impugn the integrity of these members, all of whom are high-standing lawyers of great repute. But it would be fair that the Council should avoid the appointment of members of a commission of inquiry who are on written record as having pronounced on the very matters they are supposed to investigate. The report of the Goldstone commission was bitterly attacked by Israel and its supporters.291 This aspect of the matter need not concern us here. The point that we wish to make here is that whereas in the case of the panel report on Darfur the Council took an unprincipled stance in not being willing to endorse it and to follow-up on its recommendations, in the case of the Goldstone 291 Goldstone later said that he had altered his assessment of the situation. This was bitterly rejected by the other members of the Commission.

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inquiry, by contrast, the Council was unhesitating in its endorsement and severe in its condemnation of Israel.292 Conclusion The fact-finding work of the special procedures is without doubt among the strongest protection activities of the United Nations. Fact-finding undertaken by the High Commissioner for Human Rights greatly assists the Council. So does fact-finding carried out by commissions of inquiry. The trend would seem to be in the direction of greater quality in fact-finding by commissions of inquiry. It is essential that all fact-finders be seen to be applying objective ­standards of inquiry, some of which we have discussed in this chapter. 292 By its resolution S-12/1 of 16 October, 2009 the Council “Endorses the recommendations contained in the report of the Independent International Fact-Finding Mission, and calls upon all concerned parties including United Nations bodies, to ensure their implementation in accordance with their respective mandates.” The Council further recommended that “the General Assembly consider the report of the Independent International FactFinding Mission during the main part of its sixty-fourth session.”

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Protection Introduction To what extent can one say that the Human Rights Council engages in the actual protection of human rights? This is a difficult question of conscience for anyone seeking to answer it. Without a doubt, many of the activities of the Council have promotion, prevention and protection in view. But to those facing grievous violations of human rights what counts is whether someone can place a protective shield around them in their moment of dire need and save them from atrocities. There are very few international bodies that are actually able to do this. At the time of writing the people of Kobani in Syria are living this experience, with an invasion by isis and air strikes against isis by an international coalition led by the usa.293 Their fate is hanging in the balance. On a scale of one to ten, very few international or regional actors are able to rise above two or three when it comes to actual protection. Coalitions of the powerful might be able to do better on rare occasions. But even the United Nations Security Council remains, for the most part, an exhortatory actor. The same is the case for the Human Rights Council. In order to be able to assess the role of the Human Rights Council we must look at the idea of protection historically and then come back to take stock of what the Council has been doing in its first decade. I

The Idea of Protection

The idea of the protection of human rights is one of the foundation ideas of the contemporary human rights movement and of the international law of 293 bbc, “Syria: Kobane situation remains ‘dangerous’ says us,” 12 October 2014, Consulted on 14 October 2014, available at http://www.bbc.com/news/world-middle-east-29586675; James Rush, “Isis in Kobani: Air Strikes will Not Save Syrian Town from Militants, uk and us Warn,” The Independent, 9 October, 2014, Consulted on 14 October 2015 at http://www.independent .co.uk/news/world/middle-east/isis-in-kobani-air-strikes-will-not-save-syrian-town-from -militants-uk-and-us-warn-9783954.html; Ayla Jean Yackley and Tom Perry, “Kurds Urge More Air Strikes in Kobani; Monitor Warns of Defeat,” Reuters, 12 October, 2014. Available at: http://www.reuters.com/article/2014/10/12/us-mideast-crisis-idUSKCN0HX0XF20141012.

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human rights that the human rights movement must fight for.294 Its essence is that everything possible should be done to protect human rights where they are at risk. Protection has preventive, curative and remedial or compensatory aspects. Protection is, in the first instance, for the national authorities. Where this is lacking, protection may be exercised regionally pursuant to regional human rights conventions where this option exists, and internationally pursuant to the United Nations Charter or to international human rights conventions where applicable. In its judgment in the Nottebohm Case (Second Phase), the International Court of Justice, referring to the institution of diplomatic protection, commented that ‘to exercise protection, is to place oneself on the plane of international law. It is international law which determines whether a state is entitled to exercise protection…’295 On an earlier occasion, in the Reparation Case, the Court had expressly recognized the capacity of the United Nations to engage in international protection.296 A third strand of the jurisprudence of the Court is provided in the Barcelona Traction Case, where it drew attention to the existence of obligations ‘towards the international community as a whole’ deriving in contemporary international law, inter alia, from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. ‘Some of the corresponding rights of protection’, it affirmed, ‘have entered into the body of general international law’.297 These three cases of the world court suffice to indicate that the concept of international protection is an established part of international customary law. As every discussed in Chapter III above, every country should be able to show that it has in place an adequate and effective national protection system with constitutional, legislative, judicial, educational, institutional, and preventive components. The concept of the national protection system is, strategically, one of the most important for future human rights strategies. It is a key concept towards preventive human rights strategies, another approach that should be emphasized in future human rights work. Based on the work of international human rights treaty bodies, special procedures, and the empirical work of United Nations institutions like undp and ohchr, more and more 294 See generally K. Tomasevski, Responding to Human Rights Violations 1946–1999 (The Hague, Boston, London, Martinus Nijhoff Publishers, 2000). 295 I.C.J. Reports, 1955, 4 at 20–21. 296 I.C.J. Reports, 1949, 174 at 183. 297 Emphasis added. Barcelona Traction Light and Power Co. Ltd, Judgement of the I.C.J., 5 February 1970, I.C.J. Reports, 1970, 1 at 32.

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efforts should be deployed on the strengthening of national protecting systems in the future. II

The Continuing Need for International Protection

While it is an accepted rule of international law that each government is primarily responsible for protecting the human rights of persons within its jurisdiction, the need for the international protection of human rights is an empirically observable fact that has continually manifested itself and which continues to be in evidence today. The sheer number and scale of situations involving shocking violations of human rights are proof, if any were needed, that the international protection of human rights is not a mere desirability but an utter necessity. The following basic reasons for international protection may be noted. There may, first of all, be simply a breakdown of government, resulting in excesses being committed against persons within its jurisdiction. For such persons, international protection may be the only line of defence. The spate of extra-judicial killings in the world is an example. Second, national laws or judicial policies may themselves be inconsistent with internationally recognized standards on human rights and the only way to get them altered may be to resort to an international forum. Third, the domestic judicial system may simply fail, for example, when a person is unable to obtain any remedy for a violation of his or her human rights or fundamental freedoms. Fourth, in highly charged situations, such as in international or internal conflicts, or in emergency situations, an international presence may be indispensable if excesses or inhumane actions are to be avoided or minimized. Fifth, in a world undergoing unprecedented political, economic, social and cultural transformations, the pressures upon governments are manifold and this can easily lead to harsh treatment of some parts of the population. The refugee and displacement crises in many parts of the world come to mind. In the absence of international protection and assistance, the innocent victims of such situations would be without hope. Sixth, the potential for barbarism continues to manifest itself in human beings and to break out frequently. Wanton disregard for the elementary principles of humanity is ­rampant. The incidents of piracy against refugees are vivid examples. Such manifestations of inhumanity must be combated internationally. Seventh, there are some particularly vulnerable groups whose protection, experience has shown, can only be assured by urgent international action. This is the case for victims of institutionalized racism and racial discrimination, victims of slavery and ­slavery-like practices, trafficking, minorities and indigenous populations.

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Antecedents of International Protection

The notion of protection (initially domestic protection) may be traced back to very early times as organized human societies were emerging and notions of law and justice were evolving. In his study, Freedom in the Ancient World, H.J. Muller showed how law codes, written or unwritten, provided protection to the individual and he traced ‘the efforts of kings to protect ordinary men against the abuses of power and privilege’.298 Bello has found notions akin to protection in African customary humanitarian law and has reported that, while not generally the case, during armed conflicts in certain parts of Africa some tribes ‘took pride in according respect and human rights to women, ­children and old persons’.299 In Asia, Alexandrowicz found that there existed, historically, high standards of protection of foreigners irrespective of religion or civilization.300 In Europe the sixteenth century saw the development of the institution of ‘Protecting Powers’ as European powers obtained through capitulation treaties ‘ the right to exercise exclusive, extra-territorial jurisdiction over their nationals in the Ottoman Empire, and later on in the other independent countries of the Middle and Far East’. The institution of protecting powers, which could also be found in diplomatic and consular practice evolved, subsequently, and grew into the ‘cornerstone of the system of implementation of the Geneva Conventions’ of 1949 on the laws of armed conflicts.301 The use of treaties providing for the protection of human rights, which was known even in the practice of the ancient Greeks, began to assume prominence in the seventeenth century. The Treaty of Westphalia (1648) sought to ensure equality of rights for Roman Catholics and Protestants in Germany. During the seventeenth century, some governments undertook in peace treaties to respect the rights of Roman Catholic subjects of Protestant princes. In 1774 Turkey undertook vis-à-vis Russia to protect the Christian religion and its churches within its territory. The Congress of Vienna of 1815 provided for the free exercise of religion and for equality, irrespective of religion, in various 298 H.J. Muller, Freedom in the Ancient World (London: Secker and Warburg, 1962), 58–59. See also, J. Shotwell, The Long Way to Freedom (New York, Columbia University Press, 1960). 299 E. Bello, African Customary Humanitarian law (1980), 29. 300 C.H. Alexandrowicz, “The Afro-Asian World and the Law of Nations (Historical Aspects),” 123, R.C.A.D.I (1968), I, 117–214, at 151. 301 For a concise and useful history of the institution of Protecting Power, see G. Abi-Saab, “The Implementation of Humanitarian Law” in A. Cassese (Ed.), The New Humanitarian Law of Armed Conflict (The Hague: Martinus Nijhoff, 1979), 310–348 at 311–318.

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c­ antons of Switzerland as well as for the equality of Christian denominations in Germany. The Congress also contained provisions aiming at the ­improvement of the civil status of Jews.302 The doctrine and practice of “humanitarian intervention” may also be included among the antecedents of the concept of “international protection.” In previous centuries, when the treatment by a state of its own population was so abusive and cruel that it shocked the conscience of humanity, other states claimed the right to threaten or use force in order to assist the oppressed persons. Setting aside the issue of the validity of such interventions in contemporary international law, the practice does at least offer guidance with regard to one set of circumstances when international protection would be warranted: when atrocities reach such a scale as to shock the conscience of humanity. The concept of international protection may, furthermore, be traced in the movements for the abolition of slavery, for the establishment of international humanitarian law concerning the conduct of hostilities and the protection of human rights during periods of armed conflict, and for the development of international social and labour legislation which the ilo has pioneered since its establishment. The institution of diplomatic protection, one of the hallowed institutions of international law, has also contributed to the development of the concept of international protection of human rights. Diplomatic protection proceeds from a state’s right to protect its nationals abroad. As the Permanent Court of International Justice stated in the Mavrommatis Palestine Concession Case, “It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by acts contrary to international law committed by another state, from whom they have been unable to obtain satisfaction through the ordinary channels.”303 In traditional international law, the responsibility of states for damage done in their territory to the person or property of foreigners rested on the international standard of justice, and the principle of the equality of nationals and aliens. As the General Claims Commission held in the Neer Case, the propriety of governmental acts should be put to the test of international standards. In an important submission, F.V. Garcia-Amador, former Rapporteur of the International Law Commission, argued that what was formerly the object of these two principles – the protection of the person and of his property – is now intended to be accomplished by the international recognition of the essential rights of human beings.304 302 See E. Schwelb, “Human Rights,” in Encyclopedia Britannica, Vol. 8, 1974, 1183–1189. 303 Mavrommatis Pelestine Concessions Case, P.C.I.J., ser A. No.2 (1924), 12. 304 F.V. Garcia-Amador, “Report on State Responsibility,” Y.B.I.L.C. (1956), Vol.II, 173–231, at 203.

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In some of the peace treaties, in special minorities treaties and in declarations made after World War i, some states of central and eastern Europe and a state in the Middle East (Iraq) accepted obligations towards their racial, linguistic and religious minorities to the effect that all of their nationals were to be equal before the law and were to enjoy the same civil and political rights without distinction as to race, language or religion. The relevant treaties provided that their provisions constituted obligations of international concern rather than domestic ­matters and all were placed under the guarantee of the League of Nations. At the drafting of the United Nations Charter in San Francisco, the question arose expressly whether the Charter should define the role of the United Nations in terms of ‘promotion’ or ‘protection’. The drafters opted for language calling for the achievement of international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms. Notwith­ standing the use of the term ‘promotion’, the practice of the United Nations has confirmed the competence of the Organization to act for the protection of human rights. As an authoritative commentator wrote in 1972: In the actual practice of the various organs of the United Nations over the past 25 years the obstacles to taking action based on the human rights provisions of the Charter have proved to be far less formidable than the cleavage of theoretical opinions of scholars and of abstract statements by governments would lead one to assume. In the practice of the United Nations and its Members neither the vagueness and generality of the human rights clauses of the Charter nor the domestic jurisdiction clause have prevented the United Nations from considering, investigating, and judging concrete human rights situations, provided there was a majority strong enough and wishing strongly enough to attempt to influence the particular development…305 IV

The Responsibility to Protect

The report of the International Commission on Intervention and State Sovereignty launched the concept of the responsibility to protect.306 In the 305 E. Schwelb, “The International Court of Justice and the Human Rights Clauses of the Charter,” 66 A.J.I.L. (1972), 337–351, at 341. 306 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001. See also The Responsibility to Protect: Research, Bibliography, Background, December 2001.

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Commissions view, the responsibility to protect embraced three specific responsibilities: the responsibility to prevent, namely, to address both the root causes and direct causes of internal conflict and other man-made crises p ­ utting populations at risk; the responsibility to react, namely, to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention; the responsibility to rebuild, namely, to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert. The Commission was firm in its view that prevention was the single most important dimension of the responsibility to protect. Prevention options should always be exhausted before intervention was contemplated, and more commitment and resources must be devoted to it. The exercise of the responsibility to prevent and react should always involve less intrusive and coercive measures before more coercive and intrusive ones are applied. The United Nations Summit of world leaders, meeting to mark the organizations 60th anniversary in 2005 endorsed the responsibility to protect and declared their readiness, if need be, to refer to the unsc for its attention ­situations of genocide, crimes against humanity and war crimes. V

Preventive, Curative and Remedial or Compensatory Protection

International protection may be grouped into three categories: anticipatory or preventive, mitigatory or curative, remedial or compensatory. Preventive protection means that the national authorities, regional organizations, or the United Nations, should try to anticipate and head off potential situations of gross violations of human rights before they occur. This is a newer thrust in the efforts of the human rights movement and prevention is still in its infancy.307 Prevention should be an essential part of any national protection system. Among the preventive measures taken by international bodies, mention may be made of urgent appeals addressed on behalf of victims or of interim measures undertaken on their behalf. On some occasions the unsc has met to consider a situation and to bring its influence to bear on those involved. Special Procedures of the hrc address urgent appeals to Governments in 307 See, L-A Sicilianos, Ed., The Prevention of Human Rights Violations (The Hague, New York, Martinus Nijhoff Publishers, 2001).

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cases of concern. The un High Commissioner for Human Rights may do likewise or may make public statements expressing concern. The SecretaryGeneral may intercede if he considers that this could be helpful. In the European Commission and the Inter-American Commission on Human Rights, the secretaries of these organs have an established practice of interceding urgently with a government if, from the facts reported to them, they conclude that an individual is in serious danger of having irreparable harm done to them. The good offices of international officials such as the DirectorGeneral of the ilo may be called upon.308 Aside from these limited measures, such as appeals, interim measures, or the use of humanitarian good offices, the area of anticipation and prevention represents one of the major gaps in the arrangements for the international protection of human rights. Let us cite, in this regard, the following statement which was made by Dr. Theo C. van Boven, the then Director of the United Nations Division of Human Rights to the chr in 1980: We are frequently faced in the United Nations with serious and urgent problems of violations of human rights which arise in different parts of the world, but, apart from statements of the Secretary-General issued in a humanitarian spirit, or the exercise of his good offices in certain cases, the organization is mostly unable to take action in a situation where every day counts heavily notwithstanding the hope and expectations of the international community for such action. In the ilo, for example, the Director-General has been granted the competence, in urgent cases, to approach the government concerned to receive a mission from the organization urgently to look into allegations of violations of trade unions rights within the country in question.… We, in the United Nations, similarly receive many complaints and disturbing reports about grave human rights problems in this as well as in other countries…but there is no similar possibility for action open to us. In my view, this is a major deficiency in the arrangements.309 The situation has not changed markedly since then. Curative protection involves efforts to mitigate and stop gross violations of human rights that may be taking place. The unsc, the hrc, Special Procedures of the hrc, the United Nations High Commissioner for Human Rights, and the 308 See B.G. Ramcharan, Humanitarian Good Officers in International Law (The Hague, Martinus Nijhoff, 1983). 309 T.C. van Boven, People Matter (Meulenhoff, 1982), 73.

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United Nations Secretary-General endeavour to engage in mitigatory and curative protection. Various procedures exist within different international organizations, whose aims may be said to stop or to mitigate excesses being committed, or to cure or redress situations giving rise to such excesses. Among these may be mentioned: the United Nations procedures for dealing with complaints of violations of human rights; ilo’s complaints procedures; unesco’s complaints procedures; Inter-governmental complaints procedures, such as those under the European Convention on Human Rights, the American Convention on Human Rights or the International Covenant on Civil and Political Rights; investigation and fact-finding under various procedures in the United Nations, ilo, the Council of Europe and the oas, visits on-the spot or the establishment of international presences; the activities of the icrc, and the United Nations High Commissioner for Human Rights, the unhcr; the activities of non-­ governmental organizatons; the exercise of good offices; and public denunciations of violations of human rights. Some of the procedures within the different international organizations may be said to have the objective of providing protection through remedies or compensation. Of particular significance in this regard are the petition systems under the European and American Conventions on Human Rights and under the Optional Protocol to the International Covenant on Civil and Political Rights. Judicial measures of protection such as those provided by the European Court and the Inter-American Court of Human Rights are also relevant in this regard. Also related are the efforts currently being made within the United Nations to provide reconstruction assistance to countries which have experienced extensive violations of human rights, as well as to individuals who have been subjected to such violations.310 Remedial and compensatory protection involves processes of establishing the truth about what took place in a situation of gross violations of human rights, bringing perpetrators to justice where possible, and providing redress to victims of gross violations of human rights or to their families. Truth and reconciliation commissions are bodies that seek to ascertain and record what took place. National or hybrid courts may deal with justice issues. So might the icc or ad hoc tribunals such as the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the Sierra Leone Court and the Cambodia Court. It should be pointed out that although we have referred to some proce­ dures under the headings of preventive/anticipatory; curative/mitigatory and 310 A United Nations Fund for Victims of Torture has been in existence since 1991.

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r­ emedial/compensatory, many procedures in fact perform functions belonging to more than one of these categories. VI

International Protection

The international protection of human rights is called into the picture when there has been a failure of national protection It may be exercised even if regional bodies are seized of the situation. If a situation of gross violations of human rights threatens or breaches international peace and security, the primary, though not the exclusive, protection actor should be the unsc. The Security Council usually engages in political protection, namely, it acts as it sees appropriate according to the political circumstances. The unsc may engage in a higher standard of protection if it considers this appropriate and it may even decide to refer situations to the icc, as it did in the case of Darfur. Further, it may choose, acting under the mandatory chapter of the Charter, Chapter 7, to establish an international criminal tribunal to try those accused of criminal violations of human rights. Among the contemporary agencies of international protection may be included: the United Nations, (including the unsc, the Human Rights Council, the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, the United Nations High Commissioner for Refugees, the United Nations High Commissioner for Human Rights, and the Office for the Coordination of Humanitarian Affairs); ilo; unesco; the icrc; the Council of Europe; the echr; the Organization of American states (the Inter-American Commission and the Court of Human Rights); the Organization of African Unity; the League of Arab States; and ngos such as Amnesty International, Human Rights Watch, the International Commission of Jurists, the Inter­ national Association of Democratic Lawyers and the International League for Human Rights. The degree of protection actually provided by these bodies is not commensurate with the needs on the ground. VII

Shades of Protection: Direct and Indirect

The international protection of human rights in the contemporary world may be said to be either direct or indirect. By direct international protection is meant the intercession of an international entity either at the behest of a victim or victims concerned, or by persons on their behalf, or on the volition of

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the international protecting agency itself to halt a violation of human rights. As examples of direct international protection mention may be made of the activities of the United Nations High Commissioner for Refugees, the un High Commissioner for Human Rights, of the icrc, or of the various petitions or complaints procedures such as that provided under the Optional Protocol to the International Covenant on Civil and Political Rights. However, much of the protecting activities undertaken in the international community may be classified into the category of indirect protection. Among these may be included: the creation of an international environment which is conducive to the realization of human rights; the elaboration of norms and standards; education, teaching, training, research and the dissemination of information,311 and the provision of advisory services in the field of human rights. In the following section we examine how various organizations and procedures have approached the application of ‘direct protection’. VIII

The United Nations

At the San Francisco Conference, in 1945, draft proposals on human rights were considered by two committees. Committee I/1 adopted the Sponsoring Powers’ proposal for the promotion and encouragement of respect for human rights, with only minor drafting changes. In its discussion, however, several important issues were raised. Some delegations commented on the meaning of the terms “promotion” and “protection,” and it was suggested that “to promote” human rights be replaced by stronger expressions, such as “to assure” or “to protect” human rights. But Sub-Committee I/1/A held that “assuring or protecting such fundamental rights is primarily the concern of each state. If, however, such rights and freedoms were grievously outraged so as to create conditions which threaten peace or to obstruct the application of provisions of the Charter, then they cease to be the sole concern of each State.”312 Committee II/3 incorporated into the text of Article 55 of the Charter an Australian proposal that the Organization should promote not only respect for human rights but also their “observance.” When this provision was later 311 See on this, the Report of the ila Sub-Committee on the International Protection of Human Rights by the Mobilisation of Public Opinion, submitted to the ila conference in 1976. 312 L.B. Sohn and T. Buergenthal, International Protection of Human Rights (Indianapolis, New York, Bobbs-Merrill Company, 1973), 510–511.

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d­ iscussed in the Co-ordination Committee, it was explained that the intention of the Committee II/3 was “to reinforce ‘respect’, which has the connotation of passive acceptance, by ‘observance’ which is intended to imply active implementation.” It was added that “‘observance’ implies an obligation to change the laws of one’s own country to implement this article, whereas ‘respect’ merely means respecting the laws of other countries in this regard.”313 International organizations are not static but living and growing institutions and their competences and functions evolve and grow through practice, over time.314 Thus it was that the ga of the United Nations noted, in 1980, “the growing awareness of the international community of the need to ensure effective promotion and protection of human rights”315 and affirmed “that the efforts of the United Nation and its member states to promote and to protect civil and political rights, as well as economic, social and cultural rights, should continue.”316 There can be little doubt that the United Nations is competent to act for the protection of human rights, particularly in situations where there exists a consistent pattern of gross violations of human rights and fundamental freedoms. The efforts of the United Nations to halt such violations are clear proof of this. On 4 March 1966, the ecosoc, by its resolution 1102 (xl), invited the former Commission on Human Rights, to consider as a matter of importance and urgency the question of the violation of human rights and fundamental freedoms and to submit to the Council its recommendations on measures to halt such violations. In response to this resolution the chr adopted resolution 2 (xxii) of 25 March 1966 by which it informed the ecosoc that it will be necessary for the Commission to consider fully the means by which it may be more “fully informed” of violations of human rights with a view to devising recommendations for measures to halt them. The next year the Council in resolution 1164 (lxi) of 5 August 1966 welcomed the Commission’s decision to consider its tasks and functions and its role in relation to violations of human rights, and concurred in the Commission’s view that it would be necessary for the Commission to consider the means by which it might be kept more fully informed of violations of human rights, with a view to devising recommendations for measures to put a stop to those violations. 313 Ibid. 314 “Throughout its history, the development of international law has been influenced by the requirements of international life.” International Court of Justice, Reparations For Injuries Suffered in the Service of the United Nations, 11 April 1949, icj Reports 1949, 174 at 178. 315 ga resolution 35/176. 316 ga resolution 35/174, para 4. See similarly ga resolution 41/131, paras 12–14.

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On the recommendation of the ecosoc, made in the same year, the ga adopted resolution 2144 (xxi) of 26 October 1966 in which, inter alia, it invited the ecosoc and the chr to give urgent consideration to ways and means of “improving the capacity of the United Nations” to put a stop to violations of human rights wherever they might occur. Stemming from Council resolutions 1102 and 1164, and ga resolution 2144, the chr interpreted its competence as including “the power to recommend and adopt general and specific measures to deal with violations of human rights…” (Commission resolution xxiii, para 1). The Economic and Social Council noted Commission resolution (xxiii) in the preamble to its resolutions 1235 (xlii) and in paragraph 1 of the same resolution the Council also: Welcomed the decision of the Commission on Human Rights to give annual consideration to the item entitled “question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid in all countries, which particular reference to colonial and other dependent countries and territories…” Paragraph 2 of the Council’s resolution authorized the Commission to examine information relevant to gross violations of human rights and to make a through study of situations which reveal a consistent pattern of violations of human rights. From 1966 until its last substantive session in 2005 the Commission publicly considered the question of violations of human rights each year. During the annual debates, allegations of violations of human rights were made publicly against various countries. Situations of gross violations of human rights were also considered in the ga, the unsc, the ecosoc and in other organs. Many situations have moreover been considered confidentially within the procedure established by Council resolution 1503 (xlviii). Indeed, in 1979, the ga “conscious of the responsibility of the United Nations…in dealing with situations of mass and flagrant violations of human rights,” reaffirmed “that mass and flagrant violations of human rights are of special concern to the United Nations” and urged “the appropriate United Nations bodies, within their mandates, particularly the Commission on Human Rights, to take timely and effective action in existing and future cases of mass and flagrant violations of human rights.” The Assembly stressed “the important role that the Secretary-General can play in situations of mass and flagrant violations of human rights.”317 317 ga resolution 34/175.

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The United Nations High Commissioner for Human Rights has a mandate from the ga to act for the promotion and the protection of human rights. High Commissioners have issued public statements about situations of concern to them, have established investigations into some such situations, and have sought to exercise their good offices for the protection of human rights where, in their judgment, this might be useful.318 The United Nations Secretary-General sometimes also acts for the protection of human rights. The Secretary-General may speak out on occasions, establish investigations, or use his good offices where he considers this appropriate.319 IX

The United Nations Human Rights Council

In its resolution establishing the Human Rights Council the ga affirmed the need for all states to continue international efforts to enhance dialogue and broaden understanding among civilizations, cultures and religions. It recognized that the promotion and protection of human rights should be based on the principles of cooperation and dialogue and aimed at strengthening the capacity of member states to comply with their human rights obligations for the benefit of all human beings. The core mandate given to the Human Rights Council was to promote universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind. The Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. The ga decided that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation with a view to enhanced promotion and protection of all human rights. The Council is further mandated to promote human rights education and learning as well as advisory services, technical assistance and capacity building, to be provided in consultation and with the consent of the ­member states concerned; to serve as a forum for dialogue on thematic issues; to make ­recommendations to the ga for the further development of 318 See, B.G. Ramcharan, A un High Commissioner in Defence of Human Rights (Martinus Nijhoff, 2005). 319 See B.G. Ramcharan, Humanitarian Good Offices. The Good Offices of the un SecretaryGeneral in the Field of Human Rights (Dordrecht: Martinus Nijhoff, 1983).

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international law in the field of human rights; to promote the full ­implementation of human rights obligations undertaken by states and the follow-up of the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits; to contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies; to work in close cooperation in the field of human rights with governments, regional organizations, national human rights institutions, and civil society; to make recommendations with regard to the promotion and protection of human rights; and to undertake a universal periodic review of the fulfilment by each state of its human rights obligations and commitments. Since its establishment the following features have marked the Council’s performance when it comes to discharge of the responsibility to protect: first, the Council has been criticized for failing to take preventive action against gross violations of human rights; second the Council has been strongly criticized for not being willing to take firm action against countries grossly violating human rights, except Israel in respect of the Palestinian occupied territories; third, the Council has been criticized for allegedly wanting a soft approach from its special procedures when dealing with countries allegedly committing gross violations of human rights; fourth the Council has been criticized for stifling the voices of ngos calling for principled action against gross violators of human rights; fifth, the Council has adopted some resolutions that could be considered as containing building blocks for a future policy on the responsibility to protect. On the first criticism, we discussed this in an earlier chapter above. On the second criticism, it is fair to say that the Council has been markedly reluctant to adopt resolutions against countries accused of gross violations of human rights, except Israel for its actions in occupied Palestine. There are those who argue that the adoption of country resolutions is an outdated approach and that dialogue and cooperation are preferable towards countries accused of gross violations. This view, however, does not hold in respect of Israel. It is also pointed out by supporters of the Council that it does discuss numerous country situations of gross violations, even if it may not adopt resolutions on them. In this view, country issues are very much the cornerstone of any given Council session with an average of 42 countries being dealt with in the context of: (a) updates by the High Commissioner as well as reports by the Secretary-General and the High Commissioner; In his updates to the Council the High Commissioner refers to quite a large number of countries from all regions where human rights difficulties are being faced. This is based on the

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philosophical precept that no State is free of human rights violations and that there is no human rights paradise on earth. To take a sample year, in 2014, an average of around 20 country situations per session were referred to by the High Commissioner. (b) general debates under items 4 and 7. In March 2014, around 30 country situations were addressed in discussions under item 4. (c) Special sessions devoted to country issues; Many special sessions have focussed on country issues, i.e. M ­ iddle-East related matters, Myanmar, Darfur/ Sudan, drc and Sri Lanka. Special sessions have been convened to deal with pressing thematic ­matters (global food crisis and global financial crisis). (d) the consideration of mission reports submitted by thematic special rapporteurs; In 2014, an average of around 20 mission reports per session were considered. (e) interactions with country-specific special rapporteurs; To date, there are several country specific srs. (f) the upr; The whole un membership has undergone the upr. (g) the complaint procedure; Between 1–2 countries are considered under the complaint procedure in closed meetings normally at the March and September sessions. (h) ad hoc tools. The human rights situation at the country level has also been dealt with in the context of fact finding missions and joint reports by srs on behalf of the Council. Supporters of the Council point out that it has a responsibility to ensure that these tools are utilized in all relevant situations to account for human rights violations in a factual and impartial manner. With the exception of the upr, the toolbox available to the Council remains more or less the same as at the time of the Commission. However they acknowledge that the level of ­politicization on these issues is still extremely high and there is room for improvement in this regard: They suggest the following: take full advantage of discussion opportunities, including inter-sessional briefings, special s­ ittings during sessions, and presidential declarations and fact-finding m ­ issions on behalf of the Council. Visits by the President alone or together with his Bureau could be added as a useful mechanism to the tool-box of the Council. Reference is made to visits by former Presidents to Brazil or Bahrain as well as visits of the Bureau of the former Commission on Human Rights to Cuba. Foster repre­ sentation at special sessions from experts, other agencies, and civil society. One should accord fair attention to these arguments. At the end of the day, however, a fundamental policy issue remains: can the Council remain credible unless it is ready to take a principled position when countries are accused of gross violations of human rights? We think not and that the public will judge the Council harshly for not being ready to be forthright against gross violations of human rights. The standard set by the General Assembly in its resolution 34/179 must be applicable to the Council and the General Assembly should reiterate its resolution and call on the Council to abide by it.

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The Council is clearly having problems in discharging the responsibility to protect. There are, however, some strands in its practice that represent building blocks to a future policy in this area and we review them next. A Normative Protection The Human Rights Council has taken forward the standard-setting role of its predecessor and has so far contributed a fair set of new standards, including the following: the International Convention for the Protection of all Persons from Enforced Disappearances (prepared during the time of the former Commission); the declaration on the rights of indigenous peoples (prepared during the time of the former Commission); the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (started during the time of the former Commission but brought to conclusion with significant negotiations in the Council); the Optional Protocol to the Convention on the Rights of the Child; the convention on disabled persons, un guidelines for alternative care for children (under preparation); the declaration on. human rights education and training (6/10). The Council has also called for complementary standards to reinforce the Convention on the Elimination of all Forms of Racial Discrimination (­ resolution 6/21) The protection approaches in these new instruments are basically a continuation of patterns set earlier in the human rights programme and one ­cannot say that the Council has introduced any particularly innovative protection concept. However, it has been in existence for barely a decade and it is already significant that it has continued this standard-setting activity. In time, with changed circumstances, one would be able to judge whether it is able to enhance the protection concept through standard-setting. B Structural Protection It would probably be accurate to say that the strongest contribution of the Human Rights Council to protection so far has been in the area of what we would term structural protection, namely highlighting structural international factors having an impact, actual or potential, on the universal realisation of human rights. The Council, however, has been less willing to deal with structural factors impeding protection within particular Member States of the United Nations, where the real challenges of human rights protection exist. However, it has dealt with this issue generically. At its eleventh session, the Council reaffirmed that the peoples of our planet have a sacred right to peace and also reaffirmed that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of all States. It stressed the importance of peace for the promotion and protection of all human rights for all.

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The Council further stressed that the deep fault line that divides human society between the rich and the poor and the ever-increasing gap between the developed and developing worlds posed a major threat to global prosperity, peace, human rights, security and stability. The Council added that that peace and security, development and human rights were the pillars of the United Nations system and the foundations for collective security and well-being. It emphasized that ensuring the exercise of the right of peoples to peace and its promotion demand that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use or threat of use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations The Council affirmed that all States should promote the establishment, maintenance and strengthening of international peace and security and an international system based on respect for the Principles enshrined in the Charter and the promotion of all human rights and fundamental freedoms, including the right to development and the right of peoples to self-determination. It urged all States to respect and to put into practice the Principles and Purposes of the Charter in their relations with all other States, irrespective of their political, economic or social systems, or of their size, geographical location or level of economic development. It reaffirmed the duty of all States, in accordance with the Principles of the Charter, to use peaceful means to settle any dispute to which they are parties and the continuance of which is likely to endanger the maintenance of international peace and security, and encourages States to settle their disputes as early as possible, as an important contribution to the promotion and protection of all human rights of everyone and all peoples;. It underlined the vital importance of education for peace as a tool to foster the realization of the right of peoples to peace, and encourages States, United Nations specialized agencies and intergovernmental and non-governmental organizations to contribute actively to this endeavour; Structural Measures at the National Level: Human Rights Voluntary Goals In resolution No. 12, adopted without a vote at its ninth session,320 the Human Rights Council encouraged States to accomplish progressively a set of human rights voluntary goals that included the following: Universal ratification of the core international human rights instruments; Strengthening of the legal, institutional and policy framework at the national level in order

C

320 Resolution 9/12, adopted without a vote on 24 September, 2008.

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to ensure the promotion and protection of all human rights; Establishment of human rights national institutions; Elaboration of national human rights programmes and plans of action; Adoption and implementation of programmes of human rights education; Strengthening national capacity to fight hunger and poverty. At its eleventh session, the Council called upon States to enact and, where necessary, reinforce or amend domestic legislation, including measures to enhance the protection of victims, to investigate, prosecute, punish and redress the wrongs done to women and girls subjected to any form of violence, whether in the home, the workplace, the community or society, in custody or in situations of armed conflict, to ensure that such legislation conforms with relevant international human rights instruments and international humanitarian law, to abolish existing laws, regulations, customs and practices which constitute discrimination against women, to remove gender bias in the administration of justice, and to take action to investigate and punish persons who perpetrate acts of violence against women and girls. Resolutions of the Council on structural issues have been passed on topics such as climate change; access to water; democracy; the right to development; economic, social and cultural rights; international peace and security; the enhancement of international cooperation; globalization; extreme poverty; racism; the integrity of the judicial system; the right to housing; the right to health; freedom of religion or belief, hiv/Aids; foreign debt. D Anticipatory and Preventive Protection As discussed in Chapter VIII above, the Council has put down some initial building blocks on preventive protection. (a) Combatting Impunity as a Preventive Strategy In resolution No. 9 adopted at its ninth session on the protection of the human rights of civilians in armed conflict, the Council, called upon all States to respect the human rights of civilians in armed conflicts and stressed the importance of combating impunity in order to prevent violations of international human rights law and international humanitarian law against civilians in armed conflicts, and urged States, in accordance with their international obligations, to bring perpetrators of such crimes to justice. (b) Preventable maternal mortality and morbidity In resolution 11/8; para. 2: the Council recognized that most instances of maternal mortality and morbidity are preventable and that preventable maternal mortality and morbidity is a health, development and human rights challenge

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that also requires the effective promotion and protection of the human rights of women and girls, in particular their right to life, to be equal in dignity, to education, to be free to seek, receive and impart information, to enjoy the benefits of scientific progress, to freedom from discrimination, and to enjoy the highest attainable standard of physical and mental health, including sexual and reproductive health. At its eleventh session, the Council affirmed that it was essential to place the protection of human rights at the centre of measures taken to prevent and end trafficking in persons, and to protect, assist and provide access to adequate redress to victims, including the possibility of obtaining compensation from the perpetrators. The Council has also adopted resolutions on the role of human rights in the context of counter-terrorism strategies. E Mitigatory and Curative Protection The Council has put down exploratory building blocks on mitigatory protection. (a) Protection of the human rights of civilians in armed conflict In resolution No. 9 adopted at its ninth session on the protection of the human rights of civilians in armed conflict, the Council, acknowledging that human rights law and international humanitarian law are complementary and mutually reinforcing, expressed deep concern at the violation of human rights d­ uring armed conflicts, and of international humanitarian law, which undermined the ­protection of civilians in armed conflicts. It called upon all States to respect the human rights of civilians in armed conflicts and stressed the importance of combating impunity in order to prevent violations of international human rights law and international humanitarian law against civilians in armed conflicts, and urged States, in accordance with their international obligations, to bring perpetrators of such crimes to justice. (b) The right to food In a resolution that it adopted at its seventh special session, which dealt with the world food crisis in 2008, the Council expressed grave concern at the worsening food crisis which, in its assessment, seriously undermined the realization of the right to food for all. It called upon States, individually and through international cooperation and assistance, relevant multilateral institutions and other relevant stakeholders, to take all necessary measures to ensure the realization of the right to food as an essential human rights objective, and to consider reviewing any policy or measure which could have a negative impact on the realization of the right to food, particularly the right of everyone to be

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free from hunger, before instituting such a policy or measure. The Council stressed that States have a primary obligation to make their best efforts to meet the vital food needs of their populations, especially of the vulnerable groups and households.321 The Council resolved to address, in accordance with its mandate established by the General Assembly in its resolution 60/251, systematic and gross violations of the human rights of civilians in armed conflicts. Other resolutions of the Council have addressed counter terrorism; the arbitrary deprivation of nationality; internally displaced persons and country situations. In the case of Mali, for example, the Council condemned the human rights violations and other acts of violence committed in northern Mali, in particular by the rebels, terrorist groups and other organized transnational crime networks, including the violence perpetrated against women and children, the killings, hostage-takings, pillaging, theft and destruction of religious and cultural sites, as well as the recruitment of child soldiers, and calls for the perpetrators of these acts to be brought to justice.322 In the case of Eritrea the Council expressed its deep concern at the ongoing reports of grave violations of human rights by the Eritrean authorities against their own population and fellow citizens, including violations of civil and political rights, as well as economic, social and cultural rights, and the alarming number of civilians fleeing Eritrea as a result of those violations.323 In the case of Cote d’Ivoire, the Council took note of the establishment of a National Commission of Inquiry to investigate the facts and circumstances surrounding the allegations of serious abuses and human rights violations in Cote d’Ivoire following the presidential election of 28 November 2010, which should address the causes of violence and ensure equity in the justice system for all Ivorians affected by the aforementioned human rights violations.324 F Remedial and Compensatory Protection The Council has also put down some initial building blocks on remedial and compensatory protection.

321 Resolution S-7/1, The negative impact of the worsening of the world food crisis on the realization of the right to food for all, adopted without a vote on 22 May, 2008. 322 Resolution 20/17, para.2. 323 Resolution 20/20, preamble. 324 Resolution 20/19, para. 5.

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(a) Right to truth In resolution No 11, on the right to truth, adopted at its ninth session, the Council recognized the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights. It encouraged States to consider establishing specific judicial mechanisms and, where appropriate, truth and reconciliation commissions to complement the justice system, to investigate and address gross violations of human rights and serious violations of international humanitarian law. (b) Transitional justice In resolution No. 10, on transitional justice, adopted without a vote at its ninth session, the Council welcomed the importance and urgency of national and international efforts to restore justice and the rule of law in conflict and postconflict situations and, where relevant, in the context of transitional processes. It underlined the need for the rights of both victims and accused persons to be respected, in accordance with international standards, with particular attention paid to those most affected by conflicts and the breakdown of the rule of law, among them women, children, migrants, refugees, persons with disabilities and persons belonging to minorities and indigenous peoples, and to ensure that specific measures are taken for their free participation and protection and for the sustainable return of refugees and internally displaced persons in safety and dignity.325 Conclusion The Human Rights Council’s failure to discharge its responsibility to protect is its Achilles heel. The majority in the Council has opted for dialogue and cooperation instead of condemnatory actions against Governments guilty of committing gross violations of human rights (except in respect of Israel). This is a fundamental problem that will bring the Council to grief unless it is able to find a way of bridging dialogue and cooperation with principled commitment against gross violators of human rights wherever they may take place. One option for dealing with this problem could be to call in aid the model of a non-compliance procedure under the 1987 Montreal Protocol on Substances 325 Resolution 9/10, Human rights and transitional justice, adopted without a vote on 24 September, 2008.

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that Deplete the Ozone Layer.326 In accordance with Article 8 of the Montreal Protocol, the Meeting of the Parties decided in 1990 to establish a non-compliance procedure to complement the traditional mechanism for dispute settlement (icj adjudication, arbitration, conciliation). The procedure provides for an Implementation Committee consisting of 10 state representatives elected by the Meeting of the Parties for two consecutive two-year terms on the basis of equitable geographical distribution. The Committee is entrusted with the task of monitoring compliance of the states parties with their obligations under the Protocol and is assisted by a Secretariat. As presented by Professor Sands and his colleagues, the non-­ compliance procedure is largely non-confrontational and aimed at securing an amicable settlement and facilitating compliance. To this end, its meetings involve not only representatives of the party or parties concerned, but also relevant sources of financial and technical assistance, including the Multilateral Fund of the Montreal Protocol and the Global Environment Facility. Any party to the Protocol may submit to the Secretariat its reservations regarding the implementation of the Protocol by another state Party. The Secretariat will then invite the party concerned to reply (within three months). The complaint and the reply, and supporting information, are then referred to the Implementation Committee. A case can also be referred to the Committee by the Secretariat, acting on its own initiative (after giving an opportunity to the state concerned to respond to the allegation), or by a state party itself. The Implementation Committee considers information brought before it alleging failure on the part of states parties to comply with the Protocol. It may request further information and undertake, with the consent of the state ­concerned, on-site information gathering. The states parties to the dispute are entitled to participate in the proceedings before the Committee. The Implementation Committee is to try to find an amicable settlement of the matter on the basis of respect for the provisions of the Montreal Protocol. The Committee submits its recommendations, which may include the identification of the facts and causes relating to individual cases of non-compliance and steps that the party concerned should take in order to bring itself into compliance on the matter in the form of a report presented to the Meeting of the Parties. The reports of the Implementation Committee are public (except parts containing confidential information). The Meeting of the Parties may 326 See on this, P. Sands, R. Mackenzie and Y. Shany (Eds.), Manual on International Courts and Tribunals. Tottel Publishing, Haywards Heath 2006, Chapter 28, Non-compliance ­procedure under the Montreal Protocol on Substances that Deplete the Ozone Layer.

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decide after receiving the report of the Committee to take steps to ensure ­compliance with the Protocol. Such steps can include provision of special assistance to the non-complying state, issuing of cautions and suspension of rights and privileges under the Protocol. The Implementation Committee gives primary focus to finding pragmatic solutions to the problems of parties having difficulty in complying with their commitments. One could easily envisage an Implementation Committee, adapted to the circumstances of the Human Rights Council, that would be mandated to deal with allegations of gross violations of human rights brought by one or more member of the Council against any other State. Its rules of procedure would take account of the policy thrusts in the Council but its essential rationale would be to try to bring States encountering gross violations of human rights back into compliance with international human rights law. At the end of this chapter we must return to the question posed at the outset: to what extent can one say that the Human Rights Council is actually engaging in protection. On a scale of one to ten we would say ‘three’. The Council is doing various things to encourage promotion, prevention, and protection. But, in the face of egregious violations of human rights it practices dialogue and cooperation. It has begun to put down some markers on prevention but does very little prevention in practice. It responds to some situations of gross violations of human rights and not to others. Even when it does, its actions are heavily contested from within the membership. It often applies different weights and measures when assessing situations. ngos are cramped in the time allocated to them to expose violations and are often obstructed from doing so. Protection must be principled. In the Council it is not. Rather, it is political. Politicking is the domineering hand when it comes to the delivery, or rather, mostly no-delivery, of protection.

chapter XII

Justice Introduction Justice is the raison d’être of human rights. It should therefore be the very essence of the Human Rights Council. But there is a lot of politicking in the Council. What can one make of the role of justice in the Council in these circumstances? The answer is probably five-fold: first, the un’s Basic Principles and Guidelines on Remedies and Reparations have so far had little practical application inside the Council. The broad thrust of the Council, through its promotional and standard-setting activities, is in the direction of aspirational justice, meaning that the Council professedly strives for a fairer world. In postviolations situations, the Council has a distinctly chequered record. It has sought to advocate the pursuit of truth about violations that have taken place in post-conflict situations: the Council advocates and has been developing a concept of transitional justice. In what should be its protection role it sometimes acts in a principled manner while in others it is often an organ of expediency or crass politics; and in respect of some situations that it deals with it might occasionally call for compensatory justice for victims. In this chapter we shall seek to touch upon these five aspects of the justice issue in the Council. I

un Basic Principles and Guidelines on Remedy and Reparation

The remedy and reparation ideas affirm that victims of violations of human rights are entitled to be compensated for their pain and suffering if the circumstances make this possible. The former chr adopted, in 2005, after years of study by independent experts and governmental comments, a set of Basic Principles and Guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law.327 The document was subsequently endorsed by the ecosoc and adopted by the United Nations GA.328 The principles may be far from application in practice but they are vital to the attainment of j­ ustice in the future. 327 Commission resolution 2000/35, adopted by 40 votes to none with 13 abstentions. 328 GA resolution 60/147.

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The Commission recommended that states take the Basic Principles and Guidelines into account, promote respect of them and bring them to the attention of members of the executive bodies of Government, in particular law enforcement officials and military and security forces, legislative bodies, the judiciary, victims and their representatives, human rights defenders and lawyers, the media and the public in general; The Commission recalled that the Rome Statute of the icc required the establishment of “principles relating to reparation to, or in respect of, victims, including restitution, compensation and rehabilitation,” called for the establishment of a trust fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, and mandated the Court “to protect the safety, physical and psychological well-being, dignity and privacy of victims” and to permit the participation of victims at all “stages of the proceedings determined to be appropriate by the Court.” The Commission affirmed that the Principles and Guidelines were directed at gross violations of international human rights law and serious violations of international humanitarian law which, by their very grave nature, constituted an affront to human dignity. It recalled that international law contained the obligation to prosecute perpetrators of certain international crimes in accordance with international obligations of states and the requirements of national law or as provided for in the applicable statutes of international judicial organs, and that the duty to prosecute reinforces the international legal obligations to be carried out in accordance with national legal requirements and procedures and supports the concept of complementarity, The Commission declared its conviction that, in adopting a victim-oriented perspective, the international community affirmed its human solidarity with victims of violations of international law, including violations of international human rights law and international humanitarian law, as well as with humanity at large, in accordance with the following Basic Principles and Guidelines. The Basic Principles and Guidelines, as eventually adopted by the GA, contained thirteen chapters with core provisions of international human rights law. Because of the clarity and firmness of the document, we summarize key provisions below. The document is a magisterial summary of the contemporary international law on human rights generally and of the ideas of justice, redress and reparation in particular. The Basic Principles and Guidelines (bpg) recall that the obligation to respect, ensure respect for, and implement international human rights law and international humanitarian law as provided for under the respective bodies of law emanate from: treaties to which a state is a party; customary international law; or the domestic law of each state. The bpg urges that if they have not

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already done so, states shall, as required under international law, ensure that their domestic law is consistent with their international legal obligations by: (a) Incorporating norms of international human rights law and international humanitarian law into their domestic law, or otherwise implementing them in their domestic legal system; (b) Adopting appropriate and effective legislative and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice; (c) Making available adequate, effective, prompt, and appropriate remedies, including reparation, as defined below; and (d) Ensuring that their domestic law provides at least the same level of protection for victims as required by their international obligations. The bpg specifies that the obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to: (a) Take appropriate legislative and administrative and other appropriate measures to prevent violations; (b) Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; (c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including reparation, as described below. The bpg underlines that in cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, states have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, states should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations. To that end, where so provided in an applicable treaty or under other international law obligations, states shall incorporate or otherwise implement within their domestic law appropriate provisions for universal jurisdiction. Moreover, where it is so provided for in an applicable treaty or other international legal obligations, states should facilitate extradition or surrender offenders to other states and to appropriate international judicial bodies and provide judicial assistance and other forms of cooperation in the pursuit of international justice, including assistance to, and protection of, victims and witnesses, consistent with international human rights legal standards and subject to international legal requirements such as those relating to the p ­ rohibition of

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torture and other forms of cruel, inhuman or degrading treatment or punishment. The bpg specifies that where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law. Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive. The bpg defines victims as persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim. The bpg specifies that victims should be treated with humanity and respect for their dignity and human rights, and appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. The state should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation. The bpg includes as remedies for gross violations of international human rights law and serious violations of international humanitarian law the victim’s right to the following as provided for under international law: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. The bpg registers that a victim of a gross violation of international human rights law or of a serious violation of international humanitarian law shall have equal access to an effective judicial remedy as provided for under international law. Other remedies available to the victim include access to administrative and other bodies, as well as mechanisms, modalities and proceedings

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c­onducted in accordance with domestic law. Obligations arising under ­international law to secure the right to access justice and fair and impartial proceedings shall be reflected in domestic laws. To that end, states should: (a) Disseminate, through public and private mechanisms, information about all available remedies for gross violations of international human rights law and serious violations of international humanitarian law; (b) Take measures to minimize the inconvenience to victims and their representatives, protect against unlawful interference with their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during and after judicial, administrative, or other proceedings that affect the interests of victims; (c) Provide proper assistance to victims seeking access to justice; (d) Make available all appropriate legal, diplomatic and consular means to ensure that victims can exercise their rights to remedy for gross violations of international human rights law or serious violations of international humanitarian law. In addition to individual access to justice, states should endeavour to develop procedures to allow groups of victims to present claims for reparation and to receive reparation, as appropriate. An adequate, effective and prompt remedy for gross violations of international human rights law or serious violations of international humanitarian law should include all available and appropriate international processes in which a person may have legal standing and should be without prejudice to any other domestic remedies. The bpg stipulates that adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a state shall provide reparation to victims for acts or omissions which can be attributed to the state and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the state if the state has already provided reparation to the victim. States should endeavour to establish national programs for reparation and other assistance to victims in the event that the party liable for the harm suffered is unable or unwilling to meet their obligations. States shall, with respect to claims by victims, enforce domestic judgments for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgments for reparation in accordance with domestic law and

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international legal obligations. To that end, states should provide under their domestic laws effective mechanisms for the enforcement of reparation judgments. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as: physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; costs required for legal or expert assistance, medicine and medical services, and psychological and social services. Rehabilitation should include medical and psychological care as well as legal and social services. Satisfaction should include, where applicable, any or all of the following: (a) Effective measures aimed at the cessation of continuing violations; (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; (c) The search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities; (d) An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; (e) Public apology, including acknowledgement of the facts and acceptance of responsibility; (f) Judicial and administrative sanctions against persons liable

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for the violations; (g) Commemorations and tributes to the victims; (h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels. Guarantees of non-repetition should include, where applicable, any or all of the following measures, which will also contribute to prevention: (a) Ensuring effective civilian control of military and security forces; (b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality; (c) Strengthening the independence of the judiciary; (d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders; (e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces; (f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises; (g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution; (h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law. The bpg calls upon states to develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access. Moreover, victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations. The bpg underlines that the application and interpretation of its provisions must be consistent with international human rights law and international humanitarian law and be without any discrimination of any kind or ground, without exception. The ideas of justice, redress and reparation buttress the whole human rights movement and should, in the future, influence the Human Rights Council in its day to day work. In its first ten years, however, the Council has mostly ­operated at the level of aspirational justice.

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Aspirational Justice

In general terms the Council has emphasized that justice, peace, democracy and development are mutually reinforcing imperatives.329 It has underlined the importance and urgency of national and international efforts to end human rights violations, restore justice and the rule of law in conflict and postconflict situations and, where relevant, in the context of transitional processes.330 The Council, without consensus, has appointed a Special Rapporteur on the establishment of a more democratic and equitable international order who has submitted a number of informative reports under this rubric to the Council and the General Assembly.331 III

The Right to the Truth and Transitional Justice

In a resolution on the Right to the Truth, the Council has underlined the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights.332 In resolution 15 adopted without a vote at its twenty-first session, the Council stressed the importance of a comprehensive process of national consultation, particularly with those affected by human rights violations, in contributing to a holistic transitional justice strategy that takes into account the particular circumstances of every situation and is in conformity with human rights. It has emphasized the importance of a comprehensive approach to transitional justice incorporating the full range of judicial and non-judicial measures, including, among others, individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law. 329 Resolution 21/15, para. 11. 330 Ibid, para. 13. 331 Special Rapporteur Alfred Maurice de Zayas has, in a scholarly manner, sought to ventilate various issues relevant to the establishment of a more democratic and equitable international order. 332 Resolution 21/7.

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It underlined that when designing a transitional justice strategy, the specific context of each situation has to be taken into account with a view to preventing the recurrence of crises and future violations of human rights, and to ensure social cohesion, institution-building, ownership and inclusiveness at the national and local levels. It stressed the need, within a sustainable transitional justice strategy, to develop national prosecutorial capacities that are based on a clear commitment to combat impunity, to take into account the victim’s perspective and to ensure compliance with human rights obligations concerning fair trials. The Council reaffirmed the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law, with a view to ending impunity. It called upon States, in particular, to comply with their obligations under applicable international law when prosecuting persons for gender-based and sexual violence, to ensure that all victims of such violence have equal access to justice, and stressed the importance of ending impunity for such acts as part of a comprehensive approach to seeking truth, justice, reparation and guarantee of non-recurrence. The Council reaffirmed that remedies for gross violations of international human rights law and serious violations of international humanitarian law include, as provided for under international law, the victims right to (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; (c) Access to relevant information concerning violations and reparation mechanisms. The Council emphasized that a human rights based approach should be incorporated into vetting processes as part of institutional reform aiming at preventing the recurrence of human rights violations and at building confidence in State institutions. IV

Justice for Victims

There have been occasions when the Council has pronounced in favour of justice for the victims of gross violations of human rights. In a resolution adopted at its twenty first session on the Situation of human rights in the Republic of Mali the Council condemned the excesses and abuses committed in the Republic, particularly in the north of the country, by, among others, rebels, terrorist groups and other organized transnational crime networks, and including violence against women and children, killings, hostage-taking, pillaging, theft,

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the destruction of cultural and religious sites and the recruitment of child ­soldiers, as well as all other human rights violations.333 In another resolution adopted at the same session on the situation of human rights in Somalia, the Council strongly condemned the grave and systematic human rights abuses and violations perpetrated against the civilian population, including women, children, journalists and human rights defenders, in particular by Al-Shabaab and its affiliates, and called for their immediate cessation. The Council emphasized the need to hold perpetrators of human rights violations and abuses accountable and to bring them to justice.334 The Council’s handling of the situation of human rights in the Democratic People’s Republic of Korea is instructive of the crass politics inside the Council. In its resolution 22/13, adopted on 21 March 2013, the Council had established a Commission of inquiry on human rights in the Democratic People’s Republic of Korea and mandated it to investigate the systematic, widespread and grave violations of human rights in the State, with a view to ensuring full accountability, in particular for violations that may amount to crimes against humanity. The Commission was chaired by Judge Michael Kirby of Australia and the other two members were Ms Sonja Biserko of Serbia and Mr Marzuki Darusman of Indonesia. Mr Darusman was also Special Rapporteur of the Council on the dprk. The Government of the dprk did not cooperate with the Commission. Owing to its lack of access to the dprk, the commission obtained first-hand testimony through public hearings ‘that were transparent, observed due process and protected victims and witnesses’. More than 80 witnesses and experts testified publicly and provided information ‘of great specificity, detail and relevance, in ways that often required a significant degree of courage’. The Commission and its Secretariat conducted more than 240 confidential interviews with victims and witnesses. The Commission made a call for written submissions to all States Members of the United Nations and relevant stakeholders. Eighty such submissions were received. The Commission conducted official visits to five countries and sought access to China in order to conduct inquiries and to consult with officials of the Government and local experts. Its request was declined. In assessing the situation of human rights in the dprk the commission relied on the binding legal obligations that the country had voluntarily assumed as a State Party to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the 333 Resolution 21/25. 334 Resolution 21/31.

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Elimination of all Forms of Discrimination against Women. Matters related to crimes against humanity were assessed on the basis of definitions set out by customary international criminal law and in the Rome Statute of the International Criminal Court. The commission based its findings on a ‘reasonable grounds’ standard of proof: ‘It concluded that there are reasonable grounds establishing that an incident or pattern of conduct had occurred whenever it was satisfied that it had obtained a reliable body of information consistent with other material, based on which a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred’. The Commission, in preparing its report, considered violations of the right to food, violations associated with prison camps, torture and inhuman treatment, arbitrary arrest and detention, discrimination, violations of the freedom of expression, violations of the right to life, violations of the freedom of movement, and enforced disappearances, including in the form of abductions of nationals of other States. The Commission presented its report to the Council at its 25th session in 2014.335 Prior to this the Commission had shared its detailed findings with the Government of the dprk and wrote to the Supreme Leader of the country drawing attention to the principle of command and superior responsibility under international criminal law. It urged the Supreme Leader to prevent and suppress crimes against humanity, and to ensure that perpetrators were prosecuted and brought to justice. The commission carried out its inquiry with a view to ensuring full accountability, in particular where violations might amount to crimes against humanity. The commission stated in its report that it was neither a judicial body nor a prosecutor. It could not make final determinations of individual criminal responsibility. It could, however, determine whether its findings constituted reasonable grounds establishing that crimes against humanity had been committed so as to merit a criminal investigation by a competent national or international organ of justice.336 According to that standard, the commission found that the body of testimony and other information it received had established that crimes against humanity had been committed in the dprk pursuant to policies established at the highest level of the State. In para. 21 of its report the commission stated the following: The commission finds that systematic, widespread and gross violations have been and are being committed by the Democratic People’s Republic 335 A/HRC/25/63. 336 Para. 74.

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of Korea. In many instances, the violations found entailed crimes against humanity based on State policies. The main perpetrators are officials of the State Security Department, the Ministry of People’s Security, the Korean People’s Army, the Office of the Public Prosecutor, the judiciary and the Workers’ Party of Korea, who are acting under the effective control of the central organs of the Workers’ Party of Korea, the National Defence Commission and the Supreme Leader of the Democratic People’s Republic of Korea. The Commission wrote to the Supreme Leader of the dprk in the following terms: The Commission wishes to draw to your attention that it will therefore recommend that the United Nations refer the situation in the Democratic People’s Republic of Korea to the International Criminal Court to render accountable all those, including possibly yourself, who may be responsible for the crimes against humanity referred to in this letter and in the Commission’s report.337 How did the Human Rights Council deal with such a well-documented and damning report? On 17 March, 2014, the Council held an interactive dialogue with the Commission of Inquiry. Introducing the report to the Council, the Chair­person, Justice Michael Kirby, told it that the Commission had found systematic, ­widespread and grave human rights violations occurring in the Democratic People’s Republic of Korea, and a disturbing array of crimes against humanity. Those crimes arose from policies established at the highest level of the State. The gravity, scale, duration and nature of the unspeakable atrocities committed in the country revealed a totalitarian State that did not have any parallel in the contemporary world. The rest of the world had ignored the evidence for too long. What was important next was now the international community would act on the report. He urged the Member States of the United Nations and the international community to accept their responsibility to protect and implement all the recommendations contained in the report addressed to them, especially those related to accountability, including referral of the situation of the dprk to the International Criminal Court. The representative of the dprk condemned and categorically rejected the report, asserting that the socialist system of the dprk guaranteed 337 Annex i.

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human rights and fundamental freedoms for all, both legally and in practice. Several Government representatives expressed grave concern about the findings of the Commission of Inquiry and urged the Government of the dprk to take immediate steps to halt the violations and to implement the recommendations f the Commission. They also urged the international community to use all the mechanisms at its disposal to ensure accountability for the crimes against humanity found by the Commission of Inquiry, including referral of the situation to the International Criminal Court. The European Union expressed grave concern over the findings in the report of serious violations of human rights in the dprk and urged the Government to take immediate steps to halt those violations. It referred to the important role of the International Criminal Court in tackling impunity for crimes against humanity and supported the recommendation that the situation be referred to the icc. Austria urged that the report be treated with the greatest urgency. The international community should use all the mechanisms at its disposal to ensure accountability for the crimes that had been committed, including referral of the situation to the International Criminal Court. Australia believed that the report deserved the Security Council’s consideration. France thanked the Commission of Inquiry for the presentation and quality of the report. France urged the dprk to immediately shut political prisoners’ camps and called upon the dprk to put an end to all the violations. It urged that the report deserved the attention of the Security Council. Several other governments spoke in the same sense. The representatives of some other Governments took the view that constructive dialogue should be the way to address human rights issues. The setting up of the Commission of Inquiry had been a mistake. Human rights should not be used as a means of interfering in the internal affairs of States using selective mechanisms and double standards to deal with human rights. The Universal Periodic Review was the only forum to review the situation of human rights of a country on an equal basis and should serve as the constructive forum in this regard. China took the position that constructive dialogue should be the way to address human rights issues. The setting up of the Commission of Inquiry had contravened this. The inability of the Commission to get the support and cooperation from the country concerned had made it impossible for the Commission to conduct its work in an objective and impartial manner. Such an inquiry could not be truly credible. Many recommendations were divorced from reality in the dprk. Cuba objected to the imposition of selective resolutions and mandates against countries of the South, with clear political motivation and

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no real concern about the human rights situation. Cuba reiterated that ­cooperative mechanisms, such as the Universal Periodic Review, were the ideal methods to analyse the human rights situation in all countries. Belarus rejected all country-specific procedures without the consent of the State. Syria reiterated its rejection of the use of human rights as a means of interfering in the internal affairs of States using selective mechanisms and double standards to deal with human rights. Human Rights Watch, one of the ngos that participated in the discussion, told the Council that rarely was it confronted with a report like that of the Commission on the situation in the dprk. The world could not remain indifferent to the suffering of the people described in the report. The United Nations Security Council must now act and protect the people in the dprk. Following these deliberations the Council showed its political colours. It could not muster a resolution without a vote even after such a damning report and adopted a strong but contested resolution, on a vote of 30 in favour, 6 against, and 11 abstentions, condemning the violations that had taken place and recommending that the un General Assembly request the un Security Council to refer the situation to the International Criminal Court. At the same session, the Council had contested votes on resolutions dealing with the situations in, among other places, Iran, Sri Lanka, Syria, where serious violations of human rights were being seen in television screens the world over. Politics trumped justice in these, as in other instances. It is this triumph of politics over justice that defines the Council at the end of the day. V

Compensatory Justice

Being, at base, a political organ, the Council’s practice does not show much evidence of activity in the area of compensatory justice. Conclusion It would probably be fair to conclude that the Council, so far, does not have a pronounced justice concept but that it is inching its way towards one. Its ­promotional and standard-setting activities are animated by sentiments of aspirational justice, and it has begun to indicate the role of Truth and of Transitional Justice. There are those who would say that its hand is heavy when

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condemning violations in some situations and more nuanced when dealing with other situations. As a body that is, at base, a political body, it might take a long time for it to develop a practice on issues of compensatory justice. It has been firm and principled when dealing with some situations of gross violations of human rights such as those committed by isil and Al Shabaab. At the end of the day, its justice role is expedient, often selective and crassly political. It would behove the Council to strive to develop a stronger justice role.

Conclusion This work has sought to trace the evolving law and policies of the Human Rights Council and we have found that, while there is much controversy in and around the Council, there is much of both. In seeking to identify the legal and policy foundations of the Council it is hoped that its protection role can be strengthened in the future. We have seen that there is a commanding modern human rights law of the Charter within which the Council must function and which the Council should seek to uphold and strengthen. There is also institutional and procedural law of the Council. We have argued that key human rights norms are part of international constitutional law and that the Council must take this into account in its work. As a body that is, at base, a political body, legal reasoning such as those about international constitutional law have so far not found significant reflection in the deliberations of the Council. But it is still a young body and there is time for its evolution in this direction. The Council has had to respond to security situations such as those caused by terrorist groups in different parts of the world and its resolutions on the Al Shabaab and isil groups were principled and forthright. isil, in particular, represented a frontal challenge to the validity of international human rights norms. The Council has been performing an important public policy role, alerting the international community to new human rights challenges and calling for the emplacement, within countries, of adequate and effective policies and institutions to give effect to international human rights norms. It is unclear to what extent this public policy role is recognized in the international community and this is an issue that well-wishers of the Council might wish to reflect upon. We outlined the dimensions of the national responsibility to protect human rights and examined the policies and practices of three leading emerging countries, India, Brazil and South Africa (ibsa). We have seen these countries striving to implement human rights against the background of extensive poverty. International cooperation under the Universal Periodic Review, in their cases, and across the board, helps take forward the process of national implementation of international human rights norms. We have seen that the Council continues to perform an important standardsetting role, on a case by case basis. When it comes to the prevention of gross violations of human rights we have seen that the Council has been trying to encourage Governments to

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implement preventive strategies while the Council itself has, so far, played more of an exhortatory than an operational role when it comes to prevention. There is significant fact-finding activity within the framework of the Council and, at the end of the day, it is one of the strongest roles the Council can play. Often, faced with situations of shocking violations of human rights, the Council can lend a voice to the victims, seek to record their plight, and thereby lay the foundations for prosecution of the perpetrators if possible. It follows from this that the Council’s protection role is still an incipient one. It has been putting down markers on protection and will hopefully develop these over time. The Council, so far, does not have a pronounced justice concept or practice but is inching its way with small steps. Its promotional and standard-setting activities are animated by sentiments of aspirational justice, and it has begun to indicate the role of Truth and of Transitional Justice. Its justice practice is a pragmatic and, at times, selective one. It would behove the Council to strive to develop a stronger justice role faithful to the un General Assembly’s Basic Principles and Guidelines on remedies and reparations. The Council should, in the future, be judged by how faithful it is to these principles and guidelines of justice.

Appendix A

Resolution Adopted by the General Assembly on 15 March 2006 60/251. Human Rights Council

The General Assembly, Reaffirming the purposes and principles contained in the Charter of the United Nations, including developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and achieving international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all, Reaffirming also the Universal Declaration of Human Rights338 and the Vienna Declaration and Programme of Action,339 and recalling the International Covenant on Civil and Political Rights,340 the International Covenant on Economic, Social and Cultural Rights341 and other human rights instruments, Reaffirming further that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing, and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis, Reaffirming that, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms, Emphasizing the responsibilities of all States, in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status, Acknowledging that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and wellbeing, and recognizing that development, peace and security and human rights are interlinked and mutually reinforcing, Affirming the need for all States to continue international efforts to enhance dialogue and broaden understanding among civilizations, cultures and religions, and emphasizing that States, regional organizations, non-governmental organizations, 338 Resolution 217 A (III). 339 A/CONF.157/24 (Part I), Chap. III. 340 See resolution 2200 A (XXI), annex. 341 Ibid.

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religious bodies and the media have an important role to play in promoting tolerance, respect for and freedom of religion and belief, Recognizing the work undertaken by the Commission on Human Rights and the need to preserve and build on its achievements and to redress its shortcomings, Recognizing also the importance of ensuring universality, objectivity and nonselectivity in the consideration of human rights issues, and the elimination of double standards and politicization, Recognizing further that the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings, Acknowledging that non-governmental organizations play an important role at the national, regional and international levels, in the promotion and protection of human rights, Reaffirming the commitment to strengthen the United Nations human rights machinery, with the aim of ensuring effective enjoyment by all of all human rights, civil, political, economic, social and cultural rights, including the right to development, and to that end, the resolve to create a Human Rights Council, 1

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Decides to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly; the Assembly shall review the status of the Council within five years; Decides that the Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner; Decides also that the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote the effective coordination and the mainstreaming of human rights within the United Nations system; Decides further that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development; Decides that the Council shall, inter alia: (a) Promote human rights education and learning as well as advisory services, technical assistance and capacity-building, to be provided in consultation with and with the consent of Member States concerned; (b) Serve as a forum for dialogue on thematic issues on all human rights;

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(c) Make recommendations to the General Assembly for the further development of international law in the field of human rights; (d) Promote the full implementation of human rights obligations undertaken by States and follow-up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits; (e) Undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies; the Council shall develop the modalities and necessary time allocation for the universal periodic review mechanism within one year after the holding of its first session; (f) Contribute, through dialogue and cooperation, towards the prevention of human rights violations and respond promptly to human rights emergencies; (g) Assume the role and responsibilities of the Commission on Human Rights relating to the work of the Office of the United Nations High Commissioner for Human Rights, as decided by the General Assembly in its resolution 48/141 of 20 December 1993; (h) Work in close cooperation in the field of human rights with Governments, regional organizations, national human rights institutions and civil society; (i) Make recommendations with regard to the promotion and protection of human rights; (j) Submit an annual report to the General Assembly; Decides also that the Council shall assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights in order to maintain a system of special procedures, expert advice and a complaint procedure; the Council shall complete this review within one year after the holding of its first session; Decides further that the Council shall consist of forty-seven Member States, which shall be elected directly and individually by secret ballot by the majority of the members of the General Assembly; the membership shall be based on equitable geographical distribution, and seats shall be distributed as follows among regional groups: Group of African States, thirteen; Group of Asian States, thirteen; Group of Eastern European States, six; Group of Latin American and

274

8

9

10

11

12

13

14

Appendix A Caribbean States, eight; and Group of Western European and other States, seven; the members of the Council shall serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms; Decides that the membership in the Council shall be open to all States Members of the United Nations; when electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto; the General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights; Decides also that members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council and be reviewed under the universal periodic review mechanism during their term of membership; Decides further that the Council shall meet regularly throughout the year and schedule no fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks, and shall be able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council; Decides that the Council shall apply the rules of procedure established for committees of the General Assembly, as applicable, unless subsequently otherwise decided by the Assembly or the Council, and also decides that the participation of and consultation with observers, including States that are not members of the Council, the specialized agencies, other intergovernmental organizations and national human rights institutions, as well as non-governmental organizations, shall be based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996 and practices observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities; Decides also that the methods of work of the Council shall be transparent, fair and impartial and shall enable genuine dialogue, be results-oriented, allow for subsequent follow-up discussions to recommendations and their implementation and also allow for substantive interaction with special procedures and mechanisms; Recommends that the Economic and Social Council request the Commission on Human Rights to conclude its work at its sixty-second session, and that it abolish the Commission on 16 June 2006; Decides to elect the new members of the Council; the terms of membership shall be staggered, and such decision shall be taken for the first election by the drawing of lots, taking into consideration equitable geographical distribution;

Appendix A 15

16

275

Decides also that elections of the first members of the Council shall take place on 9 May 2006, and that the first meeting of the Council shall be convened on 19 June 2006; Decides further that the Council shall review its work and functioning five years after its establishment and report to the General Assembly. 72nd plenary meeting 15 March 2006

Appendix B

5/2. Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council. A/HRC/RES/5/2

The Human Rights Council, Guided by the aims and principles of the Charter of the United Nations and the Universal Declaration of Human Rights and recognizing the ensuing obligations inter alia of States to cooperate in promoting universal respect for human rights as enshrined therein, Recalling the Vienna Declaration and Programme of Action adopted on 25 June 1993 by the World Conference on Human Rights, Recalling also that in resolution 60/251 of 15 March 2006, entitled “Human Rights Council,” the General Assembly: (a) Reaffirmed that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing and that all human rights must be treated in a fair and equal manner on the same footing and with the same emphasis; (b) Acknowledged that peace and security, development and human rights are the pillars of the United Nations system and that they are interlinked and mutually reinforcing; (c) Decided that members elected to the Council shall uphold the highest standards in the promotion and protection of human rights and shall fully cooperate with the Council; (d) Stressed the importance of “ensuring universality, objectivity and n ­ on-selectivity in the consideration of human rights issues, and the elimination of double standards and politicization”; (e) Further recognized that the promotion and protection of human rights “should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings”; (f) Decided that “the work of the Council shall be guided by the principles of universality, impartiality, objectivity, and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development”; (g) Also decided that “the methods of work of the Council shall be transparent, fair and impartial and shall enable genuine dialogue, be results-oriented, allow for

Appendix B

277

subsequent follow-up discussions to recommendations and their implementation and also allow for substantive interaction with special p ­ rocedures and ­mechanisms”; Underlining the centrality of the notions of impartiality and objectivity, as well as the expertise of mandate-holders, within the context of special procedures, along with the need to give the required degree of attention to all human rights violations, wherever they may be taking place, Bearing in mind that the efficiency of the system of special procedures should be reinforced through the consolidation of the status of mandate-holders and the adoption of principles and regulations taking the specificities of their mandate into consideration, Considering that it is necessary to assist all stakeholders, including States, national human rights institutions, non-governmental organizations and individuals, to better understand and support the activities of mandate-holders, Recalling Articles 100, 104, 105 of the Charter of the United Nations, section 22 of Article VI of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 and paragraph 6 of General Assembly resolution 60/251, Noting decision 1/102 of 30 June 2006, in which the Council decided to extend exceptionally for one year the mandates and mandate-holders of the special procedures of the Commission on Human Rights, of the Sub-Commission for the Promotion and Protection of Human Rights as well as the procedure established pursuant to Economic and Social Council resolution 1503 (XLVIII) of 27 May 1970, Noting also decision 1/104 of 30 June 2006, in which the Council established the Open-ended Intergovernmental Working Group entrusted with the task of formulating recommendations on the issue of the review and possibly the enhancement and rationalization of all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights, in order to maintain a regime of special procedures in accordance with paragraph 6 of General Assembly resolution 60/251, Noting further resolution 2/1 of 27 November 2006, in which the Council requested the Open-ended Intergovernmental Working Group to “draft a code of conduct regulating the work of the special procedures,” Considering that this code of conduct is an integral part of the review, improvement and rationalization called for in General Assembly resolution 60/251 that, inter alia, seeks to enhance the cooperation between Governments and mandate-holders which is essential for the effective functioning of the system, Considering also that such a code of conduct will strengthen the capacity of ­mandate-holders to exercise their functions whilst enhancing their moral authority and credibility and will require supportive action by other stakeholders, and in p ­ articular by States,

278

Appendix B

Considering further that one should distinguish between, on the one hand, the independence of mandate-holders, which is absolute in nature, and, on the other hand, their prerogatives, as circumscribed by their mandate, the mandate of the Human Rights Council, and the provisions of the Charter of the United Nations, Mindful of the fact that it is desirable to spell out, complete and increase the visibility of the rules and principles governing the behaviour of mandate-holders, Noting the Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission that was adopted by the General Assembly in resolution 56/280 of 27 March 2002, Noting also the draft Manual of the United Nations Human Rights Special Procedures adopted in 1999 by the sixth annual meeting of mandate-holders, as revised, Taking note of the deliberations and proposals of the Open-ended Intergovern­ mental Working Group on Review of Mandates, 1.

2.

Urges all States to cooperate with, and assist, the special procedures in the performance of their tasks and to provide all information in a timely manner, as well as respond to communications transmitted to them by the special procedures without undue delay; Adopts the Code of Conduct for Special Procedures Mandate-Holders of the Human Rights Council, the text of which is annexed to the present resolution and whose provisions should be disseminated by the Office of the United Nations High Commissioner for Human Rights, to the mandate-holders, to the Member States of the United Nations and to other concerned parties. 9th meeting 18 June 2007 [Resolution adopted without a vote.]342

Annex Draft Code of Conduct for Special Procedures Mandate-Holders of the Human Rights Council



Article 1 – Purpose of the Code of Conduct

The purpose of the present Code of Conduct is to enhance the effectiveness of the system of special procedures by defining the standards of ethical behaviour and professional

342 See A/HRC/5/21, Chap. III, para. 62.

Appendix B

279

conduct that special procedures mandate-holders of the Human Rights Council (hereinafter referred to as “mandate-holders”) shall observe whilst discharging their mandates.



1.

2. 3.



Article 2 – Status of the Code of Conduct

The provisions of the present Code complement those of the Regulations ­Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission (ST/SGB/2002/9) (hereinafter referred to as “the Regulations”); The provisions of the draft manual of United Nations Human Rights Special Procedures should be in consonance with those of the present Code; Mandate-holders shall be provided by the United Nations High Commissioner for Human Rights, along with the documentation pertaining to their mission, with a copy of the present Code of which they must acknowledge receipt.

Article 3 – General Principles of Conduct

Mandate-holders are independent United Nations experts. While discharging their mandate, they shall: (a) Act in an independent capacity, and exercise their functions in accordance with their mandate, through a professional, impartial assessment of facts based on internationally recognized human rights standards, and free from any kind of extraneous influence, incitement, pressure, threat or interference, either direct or indirect, on the part of any party, whether stakeholder or not, for any reason whatsoever, the notion of independence being linked to the status of mandateholders, and to their freedom to assess the human rights questions that they are called upon to examine under their mandate; (b) Keep in mind the mandate of the Council which is responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, through dialogue and cooperation as specified in General Assembly resolution 60/251 of 15 March 2006; (c) Exercise their functions in accordance with their mandate and in compliance with the Regulations, as well as with the present Code; (d) Focus exclusively on the implementation of their mandate, constantly keeping in mind the fundamental obligations of truthfulness, loyalty and independence pertaining to their mandate; (e) Uphold the highest standards of efficiency, competence and integrity, meaning, in particular, though not exclusively, probity, impartiality, equity, honesty and good faith; (f) Neither seek nor accept instructions from any Government, individual, ­governmental or non-governmental organization or pressure group what­soever; (g) Adopt a conduct that is consistent with their status at all times;

280

Appendix B

(h) Be aware of the importance of their duties and responsibilities, taking the ­particular nature of their mandate into consideration and behaving in such a way as to maintain and reinforce the trust they enjoy of all stake­ holders; (i) Refrain from using their office or knowledge gained from their functions for private gain, financial or otherwise, or for the gain and/or detriment of any family member, close associate, or third party; (j) Not accept any honour, decoration, favour, gift or remuneration from any governmental or non-governmental source for activities carried out in pursuit of his/her mandate.



1. 2.

3.



Article 4 – Status of Mandate-holders

Mandate-holders exercise their functions on a personal basis, their responsibilities not being national but exclusively international. When exercising their functions, the mandate-holders are entitled to privileges and immunities as provided for under relevant international instruments, including section 22 of Article VI of the Convention on the Privileges and Immunities of the United Nations. Without prejudice to these privileges and immunities, the mandate-holders shall carry out their mandate while fully respecting the national legislation and regulations of the country wherein they are exercising their mission. Where an issue arises in this regard, mandate-holders shall adhere strictly to the provisions of Regulation 1 (e) of the Regulations.

Article 5 – Solemn Declaration

Prior to assuming their functions, mandate-holders shall make the following solemn declaration in writing: I solemnly declare that I shall perform my duties and exercise my functions from a completely impartial, loyal and conscientious standpoint, and truthfully, and that I shall discharge these functions and regulate my conduct in a manner totally in keeping with the terms of my mandate, the Charter of the United Nations, the interests of the United Nations, and with the objective of promoting and protecting human rights, without seeking or accepting any instruction from any other party whatsoever.



Article 6 – Prerogatives

Without prejudice to prerogatives for which provision is made as part of their mandate, the mandate-holders shall:

Appendix B

281

(a) Always seek to establish the facts, based on objective, reliable information ­emanating from relevant credible sources, that they have duly cross-checked to the best extent possible; (b) Take into account in a comprehensive and timely manner, in particular information provided by the State concerned on situations relevant to their mandate; (c) Evaluate all information in the light of internationally recognized human rights standards relevant to their mandate, and of international conventions to which the State concerned is a party; (d) Be entitled to bring to the attention of the Council any suggestion likely to enhance the capacity of special procedures to fulfil their mandate.



Article 7 – Observance of the Terms of the Mandate



Article 8 – Sources of Information

It is incumbent on the mandate-holders to exercise their functions in strict observance of their mandate and in particular to ensure that their recommendations do not exceed their mandate or the mandate of the Council itself.

In their information-gathering activities the mandate-holders shall: (a) Be guided by the principles of discretion, transparency, impartiality, and evenhandedness; (b) Preserve the confidentiality of sources of testimonies if their divulgation could cause harm to individuals involved; (c) Rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are called upon to draw up; (d) Give representatives of the concerned State the opportunity of commenting on mandate-holders’ assessment and of responding to the allegations made against this State, and annex the State’s written summary responses to their reports.



Article 9 – Letters of Allegation

With a view to achieving effectiveness and harmonization in the handling of letters of allegation by special procedures, mandate-holders shall assess their conformity with reference to the following criteria: (a) The communication should not be manifestly unfounded or politically motivated; (b) The communication should contain a factual description of the alleged violations of human rights;

282

Appendix B

(c) The language in the communication should not be abusive; (d) The communication should be submitted by a person or a group of persons claiming to be victim of violations or by any person or group of persons, including non-governmental organizations, acting in good faith in accordance with principles of human rights, and free from politically motivated stands or contrary to, the provisions of the Charter of the United Nations, and claiming to have direct or reliable knowledge of those violations substantiated by clear information; (e) The communication should not be exclusively based on reports disseminated by mass media.



Article 10 – Urgent Appeals



Article 11 – Field Visits

Mandate-holders may resort to urgent appeals in cases where the alleged violations are time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims that cannot be addressed in a timely manner by the procedure under Article 9 of the present Code.

Mandate-holders shall:

(a) Ensure that their visit is conducted in compliance with the terms of reference of their mandate; (b) Ensure that their visit is conducted with the consent, or at the invitation, of the State concerned; (c) Prepare their visit in close collaboration with the Permanent Mission of the concerned State accredited to the United Nations Office at Geneva except if another authority is designated for this purpose by the concerned State; (d) Finalize the official programme of their visits directly with the host country officials with administrative and logistical back-up from the local United Nations Agency and/or Representative of the High Commissioner for Human Rights who may also assist in arranging private meetings; (e) Seek to establish a dialogue with the relevant government authorities and with all other stakeholders, the promotion of dialogue and cooperation to ensure the  full effectiveness of special procedures being a shared obligation of the ­mandate-holders, the concerned State and the said stakeholders; (f) Have access upon their own request, in consultation with the Office of the High Commissioner for Human Rights and after a common understanding between the host Government and the mandate-holder, to official security protection during their visit, without prejudice to the privacy and confidentiality that ­mandate-holders require to fulfil their mandate.

Appendix B



283

Article 12 – Private Opinions and the Public Nature of the Mandate

Mandate-holders shall:

(a) Bear in mind the need to ensure that their personal political opinions are without prejudice to the execution of their mission, and base their conclusions and recommendations on objective assessments of human rights situations; (b) In implementing their mandate, therefore, show restraint, moderation and discretion so as not to undermine the recognition of the independent nature of their mandate or the environment necessary to properly discharge the said ­mandate.



Article 13 – Recommendations and Conclusions

Mandate-holders shall:

(a) While expressing their considered views, particularly in their public statements concerning allegations of human rights violations, also indicate fairly what responses were given by the concerned State; (b) While reporting on a concerned State, ensure that their declarations on the human rights situation in the country are at all times compatible with their mandate and the integrity, independence and impartiality which their status requires, and which is likely to promote a constructive dialogue among stakeholders, as well as cooperation for the promotion and protection of human rights; (c) Ensure that the concerned government authorities are the first recipients of their conclusions and recommendations concerning this State and are given adequate time to respond, and that likewise the Council is the first recipient of conclusions and recommendations addressed to this body.



Article 14 – Communication with Governments



Article 15 – Accountability to the Council

Mandate-holders shall address all their communications to concerned Governments through diplomatic channels unless agreed otherwise between individual Governments and the Office of the High Commissioner for Human Rights.

In the fulfilment of their mandate, mandate-holders are accountable to the Council.

Bibliography Alston, Philip. “Re-conceiving the un Human Rights Regime: Challenges Confronting the New un Human Rights Council,” 7 Melb. J. Int’l L. 185 (2006). American Society of International Law. “Just Back from the Human Rights Council,” 102 Am. Soc’y Int’l L. Proc. 329 (2008). American Society of International Law Proceedings. “Is the un Security Council Bound by Human Rights Law?” 103 Am. Soc’y Int’l L. Proc. 199 (2009). Baehr, Peter R. “The Security Council and Human Rights.” Schermers Collection III, in The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of Henry G. Schermers, R. Lawson and M. de Blois, eds. Vol. 3. Dordrecht: Nijhoff, 1994. Baehr, Peter R. “Human Rights Council: A Preliminary Evaluation,” 28 Neth. Q. Hum. Rts. 329 (2010). Besant, Alexander and Malo, Sebastien. “Dim Prospects for the United Nations Human Rights Council,” 4 Yale J. Int’l Aff. 144 (2009). Boyle, Kevin. “United Nations Human Rights Council: Politics, Power and Human Rights,” 60 N. Ir. Legal Q. 121 (2009). Boyle, K. (Ed.). New Institutions for Human Rights Protection. Oxford, Oxford University Press, 2009 (Chapter I deals with the Origins, Antecedents and Prospects of the Human Rights Council). Brett, R. “A Curate’s Egg.” un Human Rights Council Year 3, 19 June 2008 to 18 June, 2009. Quaker un Office, Geneva (An annual report assessing the work and performance of the Council prepared by a seasoned ngo representative) (2009). Burci, Gian Luca. “The United Nations Human Rights Council,” 15 Italian Y.B. Int’l L. 25 (2005). Ehrenbeck, Mirelle. “The United Nations Human Rights Council: Establishment and First Steps,” 31 S. Afr. Y.B. Int’l L. 209 (2006). Flinterman, Cees. “Three Cheers for the New Human Rights Council,” 23 Neth. Q. Hum. Rts. 547 (2005). Freedman, Rosa. “New Mechanisms of the un Human Rights Council,” 29 Neth. Q. Hum. Rts. 289 (2011). Freedman, Rosa. “The United Nations Human Rights Council: More of the Same,” 31 Wis. Int’l L.J. 208 (2013–2014). Freedman, R. The United Nations Human Rights Council: A Critique and Early Assessment. London, Routledge, 2013. Gibney, Mark and Wood, Reed. “Prospects for the New un Human Rights Council,” 4 Int’l Stud. J. 1 (2007–2008). Le Mon, Christopher J. and Taylor, Rachel S. “Security Council Action in the Name of Human Rights,” 11 Afr. Y.B. Int’l L. 263 (2003).

Bibliography

285

Mallory, Conall, “Membership and the un Human Rights Council,” 2 Can. J. Hum. Rts. 1 (2013). Nader, Lucia. “The Role of ngos in the un Human Rights Council,” 7 sur – Int’l J. Hum Rts. 7 (2007). Rahmani-Ocora, Ladan. “Giving the Emperor Real Clothes: The un Human Rights Council,” 12 Global Governance 15 (2006). Ramcharan, Bertrand G. The Human Rights Council. London & New York: Routledge, 2011. Reber, F. La Suisse et Le Conseil Des Droits de L’Homme. Une analyse du role et de l’engagement de la Suisse durant le processus du reforme (2009). Schmidt, Markus. “United Nations,” in International Human Rights Law, Shaw Moeckli and Sivakumaran, eds. Oxford Univ. Press, 2010, pp. 391–432. Schmidt, Markus. “Is the United Nations Human Rights Council Living up to the International Community’s Expectations,” in Making Peoples Heard – Essays on Human Rights in Honour of Gudmundur Alfredsson, A. Eide, J.Th. Möller and I. Ziemele, eds. Nijhoff, 2011, pp. 99–114. Spohr, Maximilian, “United Nations Human Rights Council,” 14 Max Planck Y.B. U.N. L. 169 (2010). Sweeney, G. and Saito, Y. “An ngo Assessment of the New Mechanisms of the un Human Rights Council,” 9 Hum. Rights Law Rev. 203–222 (2009), No. 2. Terlingen Y. “The Human Rights Council: A New Era in un Human Rights Work?” 21 Ethics Int’l Affairs 168–178 (2007), No. 2. Thiele, Bret and Gomez, Mayra, “un Human Rights Council,” 27 Neth. Q. Hum. Rts. 61 (2009). un Watch, Dawn of a New Era? Geneva: un Watch, May 7, 2007. United Nations. Reports of the Human Rights Council on Its First to Twenty-Seventh Sessions to Date, un docs. A/HRC/1 to 27 (2006–2014). Also, reports of 22 special sessions to date. A/HRC/S 1 to S.22. upr Info, Analytical Assessment of the Universal Periodic Review. Geneva, 2010. upr Info, On the Road to Implementation. Geneva, 2012. Upton, Helen. “Human Rights Council: First Impressions and Future Challenges,” 7 Hum. Rts. L. Rev. 29 (2007). Viegas e Silva, Marisa. “United Nations Human Rights Council: Six Years On,” 18 sur – Int’l J. Hum Rts. 97 (2013). Wolman, A. “Welcoming a New International Human Rights Actor? The Participation of Subnational Human Rights Institutions at the un,” 20 Global Governance 437–457 (2014). Zakerian, Medhi. “What We Learned from the Construction of Human Rights Council,” 3 Int’l Stud. J. 1 (2006).

Index Access to Water 63, 144, 247 Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of Genocide 20 African Charter on Human and Peoples’ Rights 27 African Commission on Human and Peoples’ Rights 26 African States 7, 273 African Union 65, 226 Ago, Roberto 26 Alexandrowicz, C.H. 232 Algeria 226 Al Shabaab 267–268 American Commission of Human Rights 28 Michael Domingues 28 American Convention on Human Rights 28,  237 Amnesty International 66, 69, 142, 158–159,  166, 200, 238 Anti-Slavery Society 198 Apartheid 23, 122, 132, 145, 241 Arbitrary Deprivation of Life 24, 96 Argentina 147 asean 196 Asian States 7, 273 Association for the Prevention of Torture 199 au Charter 196 Austria 265

Castaneda Commissioner (ilc) 26 Chad 226 Chile 147 China 41, 77, 147, 154, 157, 224, 262, 265 Claeys Gregory 45 Climate Change 40, 43, 70, 74, 187, 193,  198, 247 Code of Conduct 219–220. See also Code of Conduct for Special Procedures Code of Conduct for Special Procedures 217 Commission on Human Rights 3, 8–9, 11–12,  78, 99–100, 111, 121–122, 127, 136, 144, 148, 163, 165–168, 170, 180, 208, 210–211, 214–215, 236, 241, 244, 272–274, 277 See also Human Rights Council Complaints procedure 5 Conflict of obligations 26 Convention on the Elimination of all Forms of Racial Discrimination 245 Convention on the Prevention and Punishment of Genocide 20 Cote d’Ivoire 249 Council of Europe 196, 237–238 Crimes against humanity 14, 27, 31, 36–37,  50, 76–77, 80–81, 83, 89, 94, 119, 192, 195, 224, 235, 262–265 Cruel, inhuman or degrading treatment or punishment xiii, 87, 103, 110, 177, 199, 212,  214, 256. See also Torture Cuba 147, 244, 265

Bahrain 244 Ban Ki-Moon, Secretary General 187, 202 Bartos, Commissioner (ilc) 26 Bentham, Jeremy 42 Bilge, Commissioner (ilc) 26 Biserko, Sonja 224, 262 Brazil 121–122, 124, 127–128, 134–135, 137–138,  141–142, 145–149, 244, 268 Brownlie, Ian 25, 27, 30, 47

Darfur 225–227, 238, 244 Darusman, Marzuki 224 Death penalty 28–29, 97, 99–100 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States 18 Democracy 14, 50, 61, 114, 118, 122–124,  127, 133–134, 146, 148, 154, 183, 190, 247, 260 Disappearance xiii, 35, 52, 87, 94, 96, 98,  139, 183 Dobson, Andrew 43 Draft articles on State responsibility 26 Draft Declaration on the Rights and Duties of States 15

Camara, Commissioner (ilc) 26 Cambodia 237 Canada 29, 97 Supreme Court 29 R. v. Hape 29

Index Dualism 25 Dunn, John 43 Durban Declaration and Programme of Action 3 Eastern European States 7, 273 Ecologism 43–44 Economic and Social Council (ecosoc) 5,  8, 12, 240–241, 253 Economic, Social and Cultural Rights 1, 3,  10, 46, 79, 112, 116, 142, 145, 148, 164, 208, 217, 240, 247, 249, 272, 276 ecowas 196 Elias, Commissioner (ilc) 26 Erga omnes obligations 13, 15, 23–24, 32, 91 Eritrea 249 Ethnic cleansing 14, 31, 37, 50, 77, 83, 89, 119,  191, 195 European Convention on Human Rights 85,  100, 237 European Court of Human Rights 28, 85,  99–100 Al-Adsani 28 European Union 67, 159, 199, 265 Fact-finding 82, 190, 200, 202–208, 211, 215,  227–228, 237, 244, 269 ground rules 150, 154, 203–204 guidance on on-site observation 206 Fitzmaurice, Gerald (Sir) 16, 25 Forum on minority issues 9 France ix, 48, 265 Freedom of Religion 136–137, 247, 271 Gabon 226 Garcia-Amador, F.V. 233 General Assembly 211, 216, 219–220 General Claims Commission 233 Neer Case 233 Genocide xiii, 20, 87, 95, 191, 194, 198 Germany 100, 174, 232–233 Global Center on the Responsibility to Protect 200 Goldstone Inquiry 227 Goodrich, L 19, 66 Hague Academy of International Law ix, 16 Hambro, Commissioner (ilc) 26 Hambro, E. 19, 26, 66 Higgins, Rosalyn. Justice xii

287 High Commissioner for Human Rights x,  3–4, 69, 71, 73–74, 76–77, 80–81, 111, 125, 180, 184, 191, 195, 201, 203, 207, 211, 221–222, 226, 236–239, 242, 273, 278–279, 282–283 hiv/Aids 247 Humanitarian law ix, 21, 23, 25, 33, 65, 73, 74,  78–81, 92, 101–108, 151, 154, 182, 191, 207, 213, 225, 232–233, 247–250, 253–259, 261 civilians in armed conflict 248 law applicable in armed conflict 24 Human rights 211–212, 214, 219–222 Human Rights Committee 14, 31–32, 35,  51–52, 89–91, 93, 96–99, 169, 177–178, 238 General Comment 31, 36 Human Rights Council ix–xiii, 1, 5, 8–13, 38,  50, 54–55, 57–58, 60, 64–65, 68, 71–76, 78, 80–83, 113, 115, 121–123, 125–126, 128, 135–139, 142, 144–151, 154–155, 157, 160–161, 163–164, 166, 168–170, 172, 179, 181–182, 194–195, 201, 203–204, 207–210, 216–218, 238, 242, 245–247, 250–253, 259, 264, 268, 271–272, 276, 278 Advisory Committee 5–8, 12, 58, 164, 166,  168, 172 Bureau of the Council 4 complaints procedure 5, 12 expert mechanism 8–9 geographic distribution 7 High Level Segment 4 rules of procedure 4, 9, 11, 66, 204–205, 252, 274 Working Group on Communications 5 Human Rights Grand Strategy 201 Human Rights Movement 108, 150, 165–167,  169–170, 178, 193, 204–205, 229, 235, 259 Human Rights Watch 69, 147, 157, 200,  238, 266 India 66, 121–123, 127–130, 135–140, 145–149,  268 Indigenous peoples 8–9, 117, 140, 160,  245, 250 Indonesia 224, 226, 262 Inter-American Court of Human Rights 21,  99, 237 Villagran Morales 22 International Academy of Constitutional Law, Tunis 48 International Alert 199 International Commission of Jurists 238

288 International Committee of the Red Cross 65, 69–70, 73–74, 237–239 International Court of Justice xii, 13, 15,  20, 22, 24–25, 28, 30, 99, 173, 176, 178, 205, 230 Barcelona Traction case 23, 28 Corfu Channel 24 Hostages advisory opinion 24 Mavrommatis Palestine case 233 Nottebohm Case 230 Reparation Case 230 South West Africa cases 20, 22 Statute 16 Wall case 23, 25 International Covenant on Civil and Political Rights xii, 14, 24, 31, 48, 51, 58, 85, 90, 96,  169, 177, 200, 237, 239, 262, 271 International Covenant on Economic, Social and Cultural Rights xii, 46, 169, 200, 245,  262, 271 International Criminal Court 67, 69, 76–77,  191, 193, 263–266 International Criminal Tribunal for the Former Yugoslavia (icty) 21 Kupreskic and others 21 International Crisis Group 69, 71, 73, 198 International customary law xiii International Federation of Human Rights 200 International Human Rights Law x–xii, 1, 14,  25–26, 36, 46–47, 49, 52, 56, 59, 80–81, 85–87, 90, 95, 99, 102–108, 118, 125–126, 135, 151, 154, 171, 179, 182, 207, 248–249, 252, 254–261 supremacy of 46 International Institute of Human Rights ix International Institute of Strategic Studies 200 International Labour Organization 134, 179,  233, 236–238 International Law Sources 49 International Law Commission 15–17,  26–27, 122, 165, 168, 179, 233 International League for Human Rights 238 International Monetary Fund 11 International Peace and Security 18, 30,  68–75, 78, 81, 96, 192, 238, 246–247

index Islamic State (isil) 80–82, 222, 267–268 Israel 3, 23, 227, 243, 250 un Fact Finding Mission on the Gaza Conflict 243 Jacob Blaustein Institute for the Advancement of Human Rights 197 Jessup, P. Judge 20 Jiri Toman x Johnston, Douglas 47 Jus cogens 17, 23, 26–29, 37, 46, 49–50, 53,  68, 86–87, 118, 125 Justice x, xiii, 10, 35–37, 59–60, 62, 67–68,  75–76, 79, 81, 88, 90, 94–95, 101–105, 108–110, 113, 115, 117, 120, 122, 129, 140, 148, 165, 183, 200, 208, 232–233, 237, 247–250, 253–257, 259–263, 266–267, 269 Transitional Justice 67, 108, 260, 266, 269 Kelsen, Hans 16 Kirby, Michael. Judge 224, 262 Klabbers, Jan 47–48 Korea, Democratic People’s Republic of 207,  224, 262–266 Kurzweill, Ray 40 Kyoto Protocol 40, 192 Latin American and Caribbean States 7, 273 Latvia 226 Lauterpacht, H. 23, 25, 165, 168 League of Arab States 66, 72, 238 League of Nations 234 Liberalism 43–44 Libya 76–77, 148 Linder, Glen 29 Macdonald, Ronald St. J 47 Mali 249, 261 Mazower, Mark 41–42 Mexico 147 Millennium Declaration 13–14, 50, 83 Minority Rights Group 198 Monism 25 Montreal Protocol on Substances that Deplete the Ozone Layer 251 Morocco 158 Morris, Ian 39–41, 47 Muller, H.J. 232 Myanmar 244

Index Namibia 22–23, 25, 66, 72 National Human Rights Institutions 12, 111, 114 Non Governmental Organizations (ngos) 3, 5, 8, 11–12, 56, 66, 71, 73–74, 81,  88, 115, 117–118, 137, 150–153, 156–161, 163, 170–171, 195, 197, 200, 221, 238, 243, 266 Nuremberg Tribunal 17 oas 196, 237 Optional Protocol to the Convention against Torture 96, 197, 199 Organization of the Islamic Conference 226 osce 65, 195–196 Overpopulation 45 Pakistan 66, 122, 147 Palacios-Huerta, Ignacio 38 Palestine 3, 227, 233, 243 Poverty 10–11, 57, 61, 83, 100, 124, 127–129,  132, 141, 143–145, 154, 164, 183, 191, 193, 207–208, 247, 268 Preventive measures 64, 97–98, 183, 199, 235 Problem of impunity 35, 94 Protection x–xi, xiii, 1–3, 6–7, 19, 21, 23–24,  28, 33, 34, 37, 45–46, 49–50, 53, 56–57, 59, 61–62, 64, 79, 82–86, 88–91, 93, 96–99, 102–103, 110–114, 116, 118–122, 125, 136, 138, 140, 142–143, 145, 150–151, 155–157, 160, 165, 170–171, 182–184, 189, 191, 193, 195–196, 198–199, 203, 207–210, 214, 217, 219, 222, 228–240, 242–243, 246–248, 250, 253, 255, 268–269, 272–274, 276, 279, 282–283 curative protection 236 remedial and compensatory 237 Racial discrimination xiii, 3, 18, 87, 122, 143,  146, 149, 164, 180, 230–231, 241 Racism 3 Ramangasoavina, Commissioner (ilc) 26 Rape 61, 140, 225 Refugee 68, 70, 78–80, 188, 191, 193, 226, 231 Remedies xiii, 34, 52, 62, 84–85, 87–89, 93,  95, 98, 101–105, 108, 119, 208, 237, 253, 255–257, 259–261, 269 Reservations 20, 32, 91 Responsibility to protect x, xii, 1, 14, 31, 37,  50, 83–85, 89–90, 95, 113, 119, 191, 194–195, 199, 226, 234–235, 243, 245, 250, 264, 268

289 Reuter, Commissioner (ilc) 26 Rights of minorities 49, 168, 170 Right to development 1, 3, 10, 14, 49, 57, 128–129,  131, 146, 180, 217, 246–247, 272, 276 Right to food 137, 248–249, 263 Right to health 247 Right to housing 247 Right to life 22, 24, 49, 52, 62, 96–98, 131,  248, 263 Rome Statute 36, 77, 95, 191–192, 254, 263 Roth, Alvin 38 Russia 76, 154–155, 232 sadc 196 Sands, Philip 251 Sexual violence 61, 80, 183, 225, 261 Shiller, Robert 39 Simma, Bruno 19, 66, 72 Simons, A. 19, 66 sipri 201 Slavery xiii, 28, 87, 118, 177, 180, 198,  230–231, 233 Social Forum of the former Sub-Commission 10 Somalia 262 South Africa 23, 121–122, 124–125, 127–128,  131–134, 136–138, 142–146, 148–149, 268 Special Procedures x, 12, 73, 112, 124, 136–137,  141, 148, 150, 152–153, 157, 161–162, 203, 207–210, 212, 214–215, 217–218, 221, 227–228, 230, 243, 273–274, 276–278, 281–282 Code of Conduct 217 Sri Lanka 122, 147, 149, 244, 266 Sudan 77, 159, 226–227, 244 Summit Outcome Document 14 Survival International 198 Switzerland 232 Syria 76–77, 80, 225, 229, 266 Kobani 229 Syrian Arab Republic 225 Systematic violations 1–2, 81, 242, 272, 274 Tammes, Commissioner (ilc) 26 Torture xiii, 28, 35, 49, 52, 79, 87, 90, 94,  97–98, 103, 110, 118, 120, 122, 136, 140, 145, 153, 158, 160, 166, 171, 177, 197, 199, 207, 210–216, 255, 263

290 Treaty of Westphalia 232 Tsuruoka, Commissioner (ilc) 26 Turkey 232 Tutu, Bishop 227 un Charter ix, xii, 13–15, 22, 32, 47, 49–50,  91, 125, 151, 154, 175, 221 Article 14 18–19, 55, 239 human rights provisions of the un Charter 22 obligations of Member States 14 obligations of Member States under the Charter 14 Principles and Purposes of the Charter 246 un Educational, Scientific and Cultural Organization 237–238 un General Assembly xi, xii, 1–4, 11, 14, 18,  20, 24, 42, 55, 62, 78, 102, 109–111, 144–145, 153–154, 163–167, 171–172, 181, 190–192, 194–195, 244, 249, 260, 266, 269, 271–279 United Nations ix, xi–xii, 1–2, 5, 9–11, 13, 16,  18–20, 22–24, 30–31, 36–37, 41, 46–47, 49–51, 58–59, 64, 66–67, 75, 77, 79, 84, 86–87, 99, 109, 111–112, 117–119, 121–122, 125–127, 150–154, 157, 160, 163, 165, 167–169, 171, 175–176, 189–193, 198, 200, 202–204, 207, 211, 214–216, 218–221, 224, 228, 230, 234–243, 245–246, 253, 262, 264, 266, 271–274, 276–280, 282 United Nations Charter 18, 230 United Nations Development Programme 11 United Nations Secretary-General 236 United States 29, 41, 77, 99–100, 159, 176 Universal Declaration of Human Rights xii,  14, 24, 46, 48–50, 53, 58, 60, 85, 111, 121, 151, 154, 168, 170, 176, 200, 271, 276

index Universality 1–2, 50, 84, 129, 150, 159, 242,  272–273, 276 Universal Periodic Review ix, x, 2–3, 12, 45,  49, 55, 59, 64, 83, 121, 126, 137, 150, 155, 160, 243, 265–266, 268, 273–274 Universal respect for the protection of human rights 1, 242, 272, 279 un Security Council xi, 30–31, 37, 46, 52–53,  55, 65–78, 82, 118, 121, 146, 189, 191–194, 201, 235–236, 238, 241, 265–266 Ushakov, Commissioner (ilc) 26 Ustor, Commissioner (ilc) 26 Vallat, Commissioner (ilc) 26 van Boven, Theo 210, 236 Vienna Convention on the Law of Treaties 15, 17, 26, 28, 32, 91 Vienna Declaration and Programme of Action xii, 3, 141, 271, 276 War crimes 14, 31, 37, 50, 76–77, 80–81, 83,  89, 119, 192, 195, 235 Weitzman, Martin 38 Western European and other States 7, 274 Women 60–62, 81, 101, 112, 115, 117, 122, 125,  129, 136, 138, 140, 144, 155–156, 177, 180, 183, 232, 247–250, 261–262 Working Group on Arbitrary Detention 203 Working Group on Situations 6 World Bank 11, 199 World Conference on Human Rights xii, 84,  101, 116, 276 World Organization Against Torture 199–200 World Trade Organization 11 Worldwatch Institute 198 Xenophobia 3, 143–144