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Human Rights

Human Rights. John von Kaufmann Counsellor Permanent Mission of Canada to the United Nations Geneva. What are human rights?. OHCHR view: Inherent to all human beings. We are all equally entitled to our human rights without discrimination .

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Human Rights

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  1. Human Rights John von Kaufmann Counsellor Permanent Mission of Canada to the United Nations Geneva

  2. What are human rights? OHCHR view: • Inherent to all human beings. • We are all equally entitled to our human rights without discrimination. • obligations of Governments to act in certain ways or to refrain from certain acts.

  3. What are human rights? • The principle of universality: it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.

  4. Do human rights matter? Security, development, and human rights are interlinked. “We will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights.” In Larger Freedom

  5. The UN Charter • Article 1(3): To promote respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. • But: Article 2(7): Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisprudence of any state … • Enshrines the fundamental and continuing dilemma: how to promote respect for human rights within other sovereign states?

  6. The Universal Declarationof Human Rights (UDHR) (1948) • First task of Commission on Human Rights • First draft prepared by Canadian John Humphrey • Non-binding but large parts incorporated into treaties and represent customary international law • Political and moral weight • First comprehensive, intergovernmentally-agreed international human rights instrument • World’s most-translated document: 360+ languages • Inspired domestic developments • Criticisms: Western bias?

  7. Core international human rights treaties • ICCPR: International Covenant on Civil and Political Rights • ICESCR: International Covenant on Economic, Social and Cultural Rights • CERD: International Convention on the Elimination of Racial Discrimination • CEDAW: Convention on the Elimination of all Forms of Discrimination Against Women • CAT: Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment • CRC: Convention on the Rights of the Child

  8. Additional human rights instruments • MWC: International Convention on Migrant Workers • CRPD: International Convention on the Rights of Persons with Disabilities • CPED: International Convention on Protection of All Persons from Enforced Disappearances • All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties, reflecting consent of States to binding international legal obligations and giving concrete expression to universality.

  9. Human rights treaties: common features • Scope of application – Article 2 ICCPR: “individuals within its territory and subject to its jurisdiction” • Obligation – Article 2 ICESCR: “take steps … with a view to achieving progressively the full realization of the rights …” • Rights – substantive provisions • Enforcement: non-binding • the UN human rights treaty bodies • Periodic Reporting • Complaint mechanisms

  10. The UN Human Rights Treaty Bodies • Human Rights Committee (CCPR) • Committee on Economic, Social and Cultural Rights (CESCR) • Committee on the Elimination of Racial Discrimination (CERD) • Committee on the Elimination of Discrimination Against Women (CEDAW) • Committee Against Torture (CAT) and SubCommittee on Prevention (OP-CAT) • Committee on the Rights of the Child (CRC) • Committee on Migrant Workers (CMW) • Committee on the Protection of all Persons from Enforced Disappearances and • Committee on the Rights of Persons with Disabilities to be established.

  11. The UN Human Rights Treaty Bodies Composition: • independent experts elected by States Parties Functions: • Review periodic reports by States Parties and issue Concluding Observations • General Comments • Complaints mechanisms (eg. ICCPR-OP1, ICERD, CAT, OP-CEDAW) • Views/recommendations are non-binding but can carry political and moral weight • Can contribute to formation of customary international law

  12. The UN High Commissioner for Human Rights and the OHCHR • Established by GA res 48/141 (1993) • Appointed by the Secretary-General and approved by the GA. Mandate: • Promote universal respect for all human rights • Principal responsibility for UN human rights activities • Reports to CHR/HRC and GA • OHCHR Capacity-building: technical cooperation and advisory services • Advocacy and dialogue www.ohchr.org

  13. The UN High Commissioner for Human Rights and the OHCHR • OHCHR Plan of Action and Strategic Management Plan 2006-2007: • Greater country engagement to implement human rights on the ground; • Stronger leadership role; and • closer partnerships with civil society and UN agencies. • Supports the UN human rights mechanisms, the Human Rights Council and the treaty bodies. • More than 850 staff in Geneva, NY, and approx. 50 field presences (including country offices, regional offices, human rights advisers in UN country teams and UN peace missions). • Funded from the United Nations regular budget and from voluntary contributions.

  14. Intergovernmental bodies: • UN General Assembly: • Human Rights Council • Third Committee • Economic and Social Council (NY/Geneva) • Commission on the Status of Women • Security Council • Deals with human rights issues and situations that threaten international peace and security • Advantages: small, able to respond rapidly, binding decisions, sanctions, enforcement action • Disadvantages: P5 veto, no explicit human rights mandate

  15. The Commission on Human Rights (CHR) • Established in 1946 as a subsidiary body of ECOSOC • Eventually 53 Member States, based in Geneva • One annual session (6 wks) • Possibility of Special Sessions (East Timor, Middle East) • SubCommission on human rights • Confidential ‘1503’ complaint procedure • Item 9 (serious violations) and 19 (technical cooperation) country resolutions • Working Groups • Special Procedures

  16. The Commission on Human Rights (CHR) • Accomplishments: • Standard setting: the international human rights framework: the UDHR, the Covenants, other treaties and instruments • Implementation: the system of human rights ‘special procedures’ • Focus international attention on situations (South Africa, Chile, Argentina, Nigeria, DRC, Rwanda, Iran, Burma, Chechnya, DPRK, Cuba, Belarus, Sudan etc) • Forum for dialogue including NGO participation from around the world

  17. The Special Procedures • established by the CHR, assumed by the HRC • Individual ‘independent experts’, ‘special rapporteurs’, ‘special representatives’, or ‘working groups’ • address specific country situations (10, eg Sudan, Myanmar) or thematic issues (28, eg torture, freedom of religion, food, health) • Examine, monitor and report, technical advice, dialogue • Respond to allegations of human rights violations • Country visits – with consent • Independent: serve in personal capacity, no salary • Supported by OHCHR • HRC review of mandates: new selection process with criteria and screening by a ‘Consultative Group’ of States and a Code of Conduct • ‘eyes and ears’ • Depend on cooperation by States

  18. The Commission on Human Rights (CHR) Criticized by developing countries for: • Selectivity, double standards, and politicization • ‘Naming and shaming’ • Confrontation • Neglect of needs of developing countries • Led to backlash vs country resolutions

  19. The Commission on Human Rights (CHR) Criticized by developed countries for: • Failing to adequately address serious human rights situations • Disproportionate and unbalanced focus on Israel and OPTs • Did not often react to crises in a timely manner (although warned of Rwandan genocide) • Membership included serious violators who acted to protect themselves

  20. UN Reform • UN Secretary-General Kofi Annan’s March 2005 report ‘In Larger Freedom’ called for the establishment of a ‘Human Rights Council’ to replace the CHR • Endorsed by leaders at 2005 UN World Summit • World Summit also committed to doubling the budget of OHCHR and recognized human rights as one of the three pillars of the UN (alongside security and development) • Opportunity to attempt to remedy the perceived shortcomings of the CHR • Details left to be negotiated …

  21. The Human Rights Council (HRC) • Established by General Assembly resolution 60/251 of March 15, 2006 adopted by vote called by USA of 170 Y - 4 N - 3 A. • Preserves system of special procedures, complaints procedure, expert advisory body (all reviewed and re-negotiated), NGO participation • Broad mandate to promote and protect human rights, address situations of violations, promote coordination of human rights in UN system, development of international law, prevention • Emphasis on non-selectivity, dialogue and cooperation • First session June 2006, based in Geneva

  22. The Human Rights Council (HRC) • Innovations: • Virtual standing body: no fewer than 3 sessions for no less than 10 weeks • More responsive to crises: one-third membership to hold special sessions • Universal Periodic Review (UPR) • Subsidiary body of GA: higher status • More selective membership: elected by a majority of the GA, taking into account contribution to human rights and pledges • 2/3 majority GA can suspend members

  23. Universal Periodic Review (UPR) • Address criticism of selectivity • Promote implementation of human rights • Review the fulfilment by each of the 192 UN Member States of its human rights obligations and commitments every 4 years • Conducted by a working group of the HRC in 3 annual sessions of 2 weeks each • 48 countries per year, 16 per working group session • Three-hour inter-active dialogue • Based on a 20-page report by the State, and 10-page summaries by OHCHR of existing UN info, and NGO input

  24. Universal Periodic Review (UPR) • Each review to be facilitated by a ‘troika’ of 3 rapporteurs selected randomly from HRC Members • Full involvement of country concerned • Outcome to include an assessment of human rights situation including progress and challenges, conclusions and recommendations, including capacity-building • Outcome to be adopted by HRC in plenary • Complement not duplicate the work of the treaty bodies • Five sessions held to date have reviewed 80 countries

  25. Universal Periodic Review (UPR) • The launch of UPR was on the whole a success. • Most countries engaged in extensive domestic preparations, and sent high-level delegations. • Positive steps already taken • Webcasting - involves people on the ground. • An assessment of this new mechanism will have to give time to evaluate progress on the ground.

  26. Universal Periodic Review (UPR) There already appears to be a clear added-value: • Many human rights issues were discussed in a serious manner. • Governments engaged on domestic human rights issues. • Added political pressure to promote implementation of human rights • Serious, systemic, and cross-cutting issues highlighted • Recommendations made which can be used to engage States. • Many positive steps or commitments have already been made. • Signature and ratification of human rights instruments; • agreement to visits by human rights special procedures; • establishment national human rights action plans and mechanisms. • Many States engaged civil society domestically on human rights issues, increasing awareness of human rights within governments and in society at large. • National human rights institutions have also seized the UPR as an opportunity to engage governments.

  27. The Human Rights Council (HRC) Was reform successful? • Intergovernmental body: affected by political interests of States • Change in membership to 47 (13 Asia, 13 Africa, 8 GRULAC, 7 WEOG, 6 EEG) - shift in balance of power to LDCs • Membership continues to include violators but Iran, Belarus, Sri Lankan candidacies defeated • Regional blocs (African Group, OIC, NAM, EU) dominate

  28. The Human Rights Council (HRC) Results: • First year dominated by efforts to weaken mechanisms, eliminate country mandates • Agenda item on OPTs • Focus on Israel and OPTs in wake of crises in Lebanon, Gaza

  29. The Human Rights Council (HRC) Results: • Virtual standing body and UPR provide new opportunities to promote human rights • HRC moving to address human rights situations and issues • Special Sessions: Darfur Dec. 2006, Burma Oct. 2007, DRC Nov 2008, Sri Lanka May 2009, Food Crisis May 2008, Financial Crisis Feb. 2009 • Six special sessions on the Middle East • More than half of country resolutions on Middle East

  30. Challenges • Sovereignty vs Responsibility • Cultural relativism vs Universality • Human rights as politics • Rights without remedies • Collective vs individual • Non-state actors • Security vs freedom?

  31. Questions?

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