HR in the UN

Question 1

What does Felipe gomez argue about HR?

Answer 1

IHRL has foundations pre 1945 but the UDHR is the first to priories it

the UN charter is not legally binding because of the context of the contemporary west human rights abuses at the time of ratification.

somewhat legally viable

Question 2

Why was the UNDHR created?

Answer 2

from the atrocities of ww2 to ensure it never occurs- gone from being state responsibility to the ‘legitimate concern of the international community’ as written in the Vienna declaration.

Question 3

Name some prior HR mechanisms.

Answer 3

1. treaties such as the Geneva convention of 1864
2. League of Nations
3. declaration on the international rights of man 1929

Question 4

What did the League of Nations implement to protect HR?

Answer 4

• article 22 system of tutelages- abolishes the slave trade and guaranteed freedom of religion
• article 23- humans labour condition, human trafficking, and control of disease.
• International labour organisation (ILO) on employment rights and child exploitation
• gave more rights to minorities than the declaration of HR.

Question 5

How did the (or did not) the UN Charter protect HR?

Answer 5

• art 68 sets up ECOSOC so that does set up the HR commission.
• article 1.3 promotes respect for HR, so does art 55 which also establishes the principle of self-determination to all people.
• but despite latin American activism (Panama) at the the san Fransisco conference, the main powers didn’t want to set legal obligations because of HR abuses:
• generic references and no set definition of HR.
• Does not list these rights
• no set mechanisms

Question 6

Name other treaties established to protect HR.

Answer 6

1. International covenant of civil and political rights 1966
2. international covenant on economic, social and cultural rights 1966
3. rights of the child
4. rights of women
5. anti discrimination

Question 7

Analyse the main antecedents of IHRL pre 1945

Answer 7

1. treaties such as the Geneva convention of 1864
2. League of Nations
3. Dumbarton Oaks Conference (1944)- established UN

but no rights under IL (domestic jurisdiction)

Question 8

examine the crucial role of UN played in the internationalisation of HR norms and mechanisms

Answer 8

• different between the covenant of League of Nations and UN declaration is that HR is a focus from the beginning!
• came to some sort of consensus despite international divide.

Question 9

name the milestones that lead to the creation of UN.

Answer 9

1. Roosevelt Four Freedoms (1941)
2. Dumbarton Oaks Conference (1944)- established the IO that would become the UN.
3. The san Fransisco conference (1945)

Question 10

state some main points of the UN Charter.

Answer 10

• Preambles are not legally binding but they are ideologically important.

→ first time an international legal document mentions dignity.

Article 1.3 promotes respect for HR

Art 55 which also establishes the principle of self-determination to all people (set out genuine legal obligations)

• Art 56

> “All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”

Art 68 sets up ecosoc.

Question 11

state some features of The Universal declaration of HR

Answer 11

• universal bill of HR is made up of Declaration of HR and international covenant of civil and political rights 1966 and international covenant on economic, social and cultural rights 1966.
• created by the HR commission set up by ECOSOC (art 68)
• is a consensus of the east/ west divide
• the 6 countries of soviet Europe voted against the declaration in the general assembly p168
• Saudi Arabia abstained due to reasons of religious and family traditions
• South Africa was completely against social, economic and cultural rights being part of it

Question 12

Describe the creation of the UN Human Rights Council.

Answer 12

1. General Assembly- general competences of HR
2. ECOSOC → Created the commission of HR (subsidiary body of ecosoc) until 2006 then the HR council (subsidiary body of GA)
3. context of institutional evolution: attempts to reform the UN by Kofi Annan- but lack of political will but the HRC and peace building commission were established GA res 60/251 March 2006.

Question 13

Describe the features of the UN Human Rights Council.

Answer 13

• Technical and political body, although its political component prevailed (ColdWar…)
• Main Functions: Sets Standards, creation of special procedures (no power to take action doctrine), space for NGOs.
• Main features: was 53 member states now 47, elected for 3 years by secret ballot of GA, cannot be re-elected after 2 consecutive terms.

Question 14

name election criteria of the council.

Answer 14

contribution to promotion of HR and equitable geographic distribution.

Question 15

state the main criticism of the HR council.

Answer 15

politicisation and selectivity (double standards); lack of credibility… In spite of it, relevant role

Question 16

state the mechanisms in the mandate of the HR council

Answer 16

• Special Sessions (aim of prevention): at there quest of a member of the Council with the support of 1/3 of the Council. Significant improvement if compared with theCommission

Sub-Commision on HRs (26) to the Advisory Committee (18), the HRC’s Think-Tank. So far, marginal role. It acts at the request of the Council (more autonomy, in line with its predecessor?) was more automonous with commission.

Universal Periodic Review UPR: significant evolution of the new council → to avoid selectivity and politicisation

Question 17

evaluate the evolution of the HR commission to the current HR council.

Answer 17

-

Question 18

name the principles of the Universal Periodic Review UPR

Answer 18

1. Cooperative mechanism based onobjective and reliable information
2. Inter-active dialogue
3. Inter-governmental process- Gender perspective
4. Level of development and particularities
5. Participation of relevant stakeholders,including NGOs…

acknowledges that not all HR can be universally realised- western states didn’t want this but pressure from the global south

Question 19

describe the process of the UPR

Answer 19

• National report
• compliation of OHCHR
• Reliable info from other stakeholders (can get targeted in their countries for partipating).
• A group of 3 rapporteurs (Troika) from different regional groups facilitate the review and the inter-active dialogue.

→ reviewed by 47 states and actors and observer states can particpate

→ outcome is the report.

Question 20

Evaluate the success of the HR council.

Answer 20

cooperative mechanism - relies on the cooperation of states.

Achievements of the HRC: higher status;more time for meetings; potential of the UPR;special sessions as a preventive measure…

Inconsistencies: politicsation is stillpresent (bloc mentality: AF+OIC); thedynamic of the UPR is not conducive toa better commitment for HRs (need torethink it; 2011 as a lost opportunity)

Question 21

What are Special procedures?

Answer 21

• Also known as “extra-conventional mechanisms, because they do not derive from treaties (vs. treaty-bodies).SPs are created by the HRC (formerly CHR) Independent experts (SRs and WGs) that basically investigate serious HRs violations and report to the HRC and to the GA- NOT INDIVIDUAL CASES BUT SYSTEMATIC.They have interpreted broadly their mandates, and have expanded significantly their functions (receive petitions, interpret and develop HRs standards, on-site visits…)rely on consent of state.

Question 22

evaluate the evolution of the commission of HR.

Answer 22

Divergent expectations about the role of the CHR when it was created in 1946: promotional mandate vs.enforcement. In the end, the CHR adopted a very restrictive interpretation of its mandate (Cold War dynamics).

1. “No power to take action” (1946-66)
2. Creation of the SPs (1966-1977)

• influence of decolonisation and increase of membership of HRC in 1966.
• New scope of the HRC from ECOSOC to consider violations in ALL countries. (eg working group on South Africa 1967, WG Chile 1975)

3. Consolidation of the SPs (1978-91)

• structured into country and thematic investigations

4. New trends and developments

• SPs on a regional basisMore collaboration between the SPs (periodic meetings)
• Authorization to report to the UN Security Council: part ofa process that increasingly links HRs with the maintenanceof international peace and security
• New SPs on ESCRs (End of the Cold War and the ViennaConference): Poverty, Education, Development, SAPs, Rightto Food, Adequate Housing, Health…

Question 23

evaluate the effect of special procedures.

Answer 23

Advantages:

They changed the CHR’s attitude on HRs violations (no power to act)

Universal scope

Innovative methods of investigation

Broad interpretation of their mandate

They contribute to the progressive development of IHRL (soft-law…)

Potential in early warning

Disadvantages:

Lack of enforcement powers to implement their recommendations

Lack of adequate resources and support (not full-time)- special raptors not paid

They are fully dependant on the cooperation of states

Question 24

What do UN treaty bodies do?

Answer 24

1. Consideration of periodical reports
   - The most popular mechanism (and the least demanding)
   - Report made by the State (with fullparticipation, but…)
2. Inter-state communications- NEVER BEEN USED
   - Competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant

• Both States have to recognize this competence beforehand
• It is an optional mechanism

3. Individual communications
   - - The most demanding mechanism. It is usually optional- Used if an individual feels they have not had a fair trial in signatory country.
   - Admissibility criteria: Exhaustion of local remedies, The same matter is not being examined under another international procedure of investigation
4. Inquiry procedure
   - Only in some Conventions (CAT, CEDAW, ICESCRs, CRC)
   If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the

Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned

The Inquiry may include a visit to the territory of the concerned State (need of consent)

confidential → until report is published

Ends with report.

5. General Comments
   - An authoritative interpretation of theprovisions of treaties