8. How are human rights protected at an international level? Flashcards
What is the Human Rights Council? What is its role?
- a) The Human Rights Council is the most important body within the UN system dealing with Human Rights issues.
It succeeded the Commission on Human Rights
b) It consists of 47 member States with an equitable geographic distribution. It applies to all UN members
c) It is a subsidiary body of the UN assembly.
d) Members are elected by the Assembly (through a private ballot) on the basis of State pledges and their contribution to human rights.
e) The Human Rights Council centralises charter based mechanisms that enable the enforcement of human rights amongst all UN members.
f) The Council is intended to be impartial - a) Its role is to address human rights violations and serve as a forum for making recommendations to the GA.
b) Its role is also to promote the effective coordination and implementation of human rights within the UN system, including promoting and protecting human rights through dialogue and cooperation.
c) Its role is to respond promptly to human rights emergencies
d) to work in close cooperation with govts and NGOs
e) to maintain a system of special procedures, expert advice and complaints
f) to undertake a Universal Periodoc Review to assess the extent to which each State is fulfilling its human rights obligations.
Human rights are enforced at the international level by charter based mechanisms and treaty based mechanisms. What is the difference between them?
Charter based mechanisms apply to all members of the UN, irrespective of the treaties that they have ratified. Treaty based mechanisms apply to the States that are the signatories to those treaties.
Why was the Commission on Human Rights replaced by the Human Rights Council? 2. How is the Council different?
The Commission lacked credibility due to the selective attention paid to the human rights records of the States.
2a) The Council was different as it was made directly dependent and a subsidiary of the General Assembly, thus elevating its status.
b) Membership is determined differently as each group of States is allocated a pre-determined number of seats.
c) While membership includes States with significant human rights violations, there is a provision which does allow for suspension of membership for gross violations which occurred with Libya in 2011
d) The Universal Periodic Review is considered one of the most important innovations since the Council was introduced as it imposes a peer review process on all States to assess their performance against their human rights obligations. This avoids the selectivity and subjectivity of previous arrangements.
What are the 3 tools used by the Human Rights Council?
a) Universal Periodic Reviews - an intergovernmental peer review assessing State compliance with their human rights obligations (UNDHR, UN Charter and Treaties), resulting in recommendations which the State is free to accept or reject.
b) Complaints mechanisms - addresses consistent, systematic and reliably attested gross human rights violations
c) Special Procedures - expert members (ie. Special Rapporteur or Independent Expert) appointed to report to the Council on certain thematic issues or countries considered problematic. Communications are sent to the State in the form of letters of allegation or urgent appeals
What is the Universal Periodic Review process? 2. To whom does it apply? 3. What is its process? 4. Is it binding?
The Universal Periodic Review process is a process of intergovernmental peer review assessing State’s compliance with the human rights treaties they are party to as well as the pledges and commitments of the State upon seeking membership to the Human Rights Council.
2 It applies to all States
3 a) It reviews State performance on the basis of obligations that apply universally (ie. the UDHR) as well as those that are specific to the State (eg. treaties; pledges; commitments).
b) Sources for the review include Special Procedures of the HR Council, NGOs and other reports that draw on independent sources.
c) The review must fully involve the country under review as well as other relevant stakeholders
d) it should not absorb a disproportionate degree of time and resources, nor should it duplicate any other human rights mechanisms
e) The process complements the Special Procedures and the treaty bodies (ie. HR Committees) by reinforcing the recommendations arising from these mechanisms
f) The review cycle is 4 years
4 States are free to accept and reject recommendations. Both the UDHR and the pledges, upon which the review is based, as well as the review process, are not legally binding per se, however the review draws from sources that are binding and there is considerable pressure on States to implement the findings of the review.
Who are Special Rapporteurs? 2. What are the tools deployed of Special Rapporteurs? 3. What are some of the shortcomings of this process?
Special Rapporteurs are appointed by the HR Council as independent experts to address specific country situations or thematic issues in all parts of the world. There is usually an independent expert or a working group of usually about 5 people - one from each region. They are expected to be practical and seek solutions. Their role is to help States improve their understanding of their human rights obligations.
2 Their tools include:
a) the preparation of reports to the Human Rights Council or to the Third Committee
b) Country missions lasting 10-15 days with the consent of the State concerned. These end with a press statement and a report to the HRC
c) addressing communications to the State in the form of letters of allegation (where alleged violations have occurred; requires the State to respond in 60 days) or urgent appeals (involving imminent or ongoing issues of a grave nature involving the loss of life; requires the State to respond within 30 days)
d) some working groups may receive complaints and issue opinions on specific cases. Alleged victims are not obliged to seek local remedies before corresponding directly with the mandate holder.
In 2018 there were 44 thematic and 12 country mandates.
In 2017 534 communications were sent to 177 States covering at least 1834 individuals. There was a 68% response rate from States.
- There is no follow up within the UN system to make this work. There is a code of conduct which primarily focusses on the conduct of the Rapporteurs and demands a respect of local laws and regs; providing the opportunity to give State reps the opportunity to comment on assessments and to represent these views when presenting reports.
What are the Guiding Principles on Business and Human Rights?
The guiding principles were developed in 2011 and are considered the authoritative global standard for States and business with regard to preventing and addressing business-related human rights impacts.
They are centred around 3 pillars:
a) The duty of the State to protect human rights against adverse impacts by businesses
b) The duty of corporate entities to respect human rights
c) The need to ensure greater access to remedies for victims of business-related human rights abuses
What are some of the human rights obligations imposed on businesses in accordance with the Guiding Principle on B&HR? (b) Which human rights are business obliged to adhere to?
a) Seek to prevent or mitigate human rights impacts occurring as a result of their operations, products, relationships or services
b) Businesses should have policies and processes in place that commit to meeting their human rights responsibility including a human rights due diligence policy that seeks to identify, protect and mitigate impacts on human rights.
c) This includes a concrete plan to address any issues. The business should also track the effectiveness of its responsiveness using quantitative and qualitative indicators, drawing feedback from internal and external sources.
d) Businesses may also be considered to be failing to meet their human rights responsibilities if it does not provide adequate compensation/remedy in the event of a breach
(B) Respecting human rights refers to the full range of rights listed in the UDHR, ICCPR, ICESCR and the Declaration on the Fundamental Principles and Rights at Work. Depending on the nature of the business, there may also be additional rights that require consideration eg. the rights of indigenous peoples
To whom do the Guiding Principles on Business and Human Rights apply?
The guiding principles relate to all sectors irrespective of their size, structure, sector or operational context
The core human rights treaties have bodies/committees of independent experts to supervise the implementation of the treaties. Ten such bodies are in operation. a) What are some examples? b) What is the main competency? c) What are some of their other functions? d) where is their role defined?
a) Committee on the Elimination of Racial Discrimination; Committee Against Torture, Human Rights Committee (CCPR), Committee on Economic, Social and Cultural rights, Committee on Enforced Disappearances, Committee on the Elimination of Discrimination Against Women, Committee on the Rights of the Child, Committee on Migrant Workers
b) The main competency is to receive States reports (ie. State Reporting) about the implementation of the human rights treaties they monitor and to adopt Concluding Observations.
c) They may also receive complaints/individual communications from alleged victims; they may also receive inter-State communications (ie. one State alleging violations by another State; was not the case before 2018) ; they may have the power to make enquiries into certain situations, they may have the power to make visits (with State consent) and provide recommendations as is the case with the Committee Against Torture; they may raise matters with the GA of the UN if they receive well-founded information
d) Their role is defined within the treaties they oversee with the exception of the Committee on ESCR which was defined by a Resolution
What are some of the challenges posed by the State Reporting received by Human Rights Treaty bodies/committees?
a) lack of resourcing which has not kept up with significant growth
b) limited time to dedicate to examining reports
c) late submissions (they are required within a 3 month timeframe)
d) the structures for State reporting adopted by the States which can sometimes result in a lack of coordination, resourcing and consistency
e) concluding observations are often ignored
What is the stated purpose and process of State Reporting?
a) the purpose is to develop State awareness of the issues that must be addressed to adhere to the treaty obligations as well as to develop a set of indicators to enable an assessment of the progress made
b) State reporting should be as participatory as possible involving orgs, NGOs, parliament
c) State reporting should encourage dialogue, particularly between the State’s reps and the HR experts on the Committee when drafting the Concluding Observations
d)NGOS should play a major role through ‘shadow reports’ and informal briefings
e) to make the Concluding Observations widely available within the country to facilitate debate, learning, recommendations and follow-up activities
What weight do domestic courts accord to the interpretations made by the UN Human Rights Treaty Bodies? b) Are the decisions adopted by human rights treaty bodies on the basis of individual communications binding? c) Are the interpretations considered sources of customary law?
a) While there is no obligation on the part of domestic courts to model its own interpretation of the Covenant on the interpretation of the Treaty Body, the International Law Association has found that domestic courts do attribute considerable weight to their interpretations
b) while there are some examples where people have tried to give effect to the findings made by human rights treaty bodies, these have failed. People generally accept that their interpretations are not binding
c) In contrast, there have been a number of cases where domestic courts have considered the treaty findings in making their judgements. In any given case, the status of the treaty body findings is dependent upon a detailed analysis of how States parties have responded and therefore may provide evidence of custom.
What are 6 of the conditions imposed on the admissibility of Treaty bodies/committees in receiving communications from individuals claiming human rights violations?
a) the State must have accepted this function through the process of treaty ratification
b) the alleged violation must not have taken place prior to the treaty being in force
c) the author of the communication must be an alleged victim
d) local remedies must be exhausted
e) the communication cannot be anonymous
f) the same matter must not have been examined under another procedure of international investigation or settlement or, at least, it must not be under examination under such procedure at the time of the communication
What challenge does the role of receiving individual communications authored by alleged victims pose for the treaty bodies/Committees?
The challenge posed is that findings that assert that a breach has occurred should be accompanied by a remedy/compensation and in some cases a legislative change. The State is not obligated to follow through so the extent to which findings have been implemented are mixed.
