There are different ways of looking at the evolution of human rights norms and machinery in the United Nations. It is, certainly, an imperfect system, and one might point out the imperfections. It is, also, a story of the impact of politics, and politicization, and one could spend time discussing these aspects. It is a story in which violations of the rights of large groups of humankind have been left unattended, and one could highlight these failures. It is also the story of striving, in the midst of adversity, to take forward the idea that societies should be governed on the basis of respect for the human rights of all, without discrimination on grounds of race, sex, language, religion, or related prejudices. It is this story of striving that we shall try to discuss in this presentation of the evolution of human rights norms and machinery. Whatever its imperfections, the Commission on Human Rights' initial vision of an International Bill of Human Rights consisting of a Declaration, one or more Covenants, and Measures of Implementation, has inspired the human rights movement throughout the history of the United Nations and continues to do so. Whatever the political factors that led the General Assembly to decide on two covenants, one on civil and political rights, and another on economic, social and cultural rights, the contemporary challenge remains one of seeing to it that Governments do not violate the basic rights of their people, that national resources are used efficiently and fairly to give everyone in the country equitable life chances, that there be no discrimination in the allocation of national resources, and that countries cooperate for their mutual welfare. It is one of the struggles of our times to uphold these standards in a world of international economic inequalities and in a world where the operations of the market takes precedence over basic minimum standards of economic, social and cultural rights as well as civil and political rights. It is also one of the challenges of our times to uphold the idea of international protection when gross violations of human rights take place in any part of the world but Governments plead that it is a matter of their internal affairs. There are many complexities here. Many new States emerged from colonialism with arbitrary borders drawn up for them by colonial powers. The challenges of nation building are many. During the cold war, the major powers competed for influence in many developing countries, supporting one or another side in the local power struggle. With the end of the cold war, these nations have been left fragile and have to struggle with the difficulties of nation building. On top of all of this, with the end of the cold war, market capitalism has emerged internationally as the dominant economic system. But many developing countries have not had the opportunity to develop their infrastructures or human capital so as to be able to compete on fair terms with more developed countries, or to withstand the onslaught of the major international corporations. How are they to uphold basic standards of economic, social and cultural rights and civil and political rights in these circumstances? Given the difficulties they are facing, they contend that the United Nations should strive to promote cooperation among countries rather than putting countries experiencing human rights problems in the dock. There are difficult issues to be dealt with here. On the one side there are issues of principle: in no circumstance should one tolerate gross violations of human rights, for example, the right not to be tortured. One needs to be forthright in condemning such violations. At the same time, with leading developing countries arguing for cooperative instead of confrontational approaches in dealing with human rights problems, one needs to be imaginative in devising in approaches, bearing in mind that the developing countries make up a majority at the United Nations. One needs to build on the principles of respect, confidence-building and protection: one must, as a general rule, be respectful of those one is dealing with, one must strive for approaches and methods that inspire and attract confidence, and at the same time, one must be faithful to the principle of protection: one must come to the aid of those whose rights are being violated. At a time when the challenges of protection have become intertwined with challenges of poverty and with the problems of international political divisions between countries of the North and the South, the Summit of world leaders assembled at the United Nations in September, 2005, has placed on the international agenda two issues that will influence future debate: the responsibility to protect, and transforming the Commission on Human Rights into a Human Rights Council. It was relatively easier for the summit to agree on the responsibility to protect, even though some developing countries are still wary that it is a concept that could lead to interventions by major powers into the internal affairs of smaller countries. This argument takes place against the backdrop of the debate over claims by powerful countries that, in a time of dangers of terrorism combined with weapons of mass destruction, pre-emptive strikes are permissible against terrorist targets wherever they maybe! The debate over reforming the Commission on Human Rights has been more acrimonious. Developing countries resent the fact that they are being demonized in the Commission on Human Rights at a time when they are facing massive economic and social problems. Developed countries, with the United Nations Secretary-General as their cheer-leader, argue that the Commission must be rid of members that egregiously violate human rights. On the one side there is pride and numbers; on the other there is principle and power. How this battle will end up no one knows. It is a time for wise counsel and prudent steps. What needs to be done is, through careful diplomacy, to build a consensus widely shared that the human rights norms developed over the past sixty years must be upheld by all, and that this includes civil and political rights as well as economic, social and cultural rights. As part of this consensus, there must be agreement on how to tackle situations of gross violations of human rights. In recent years the human rights movement has placed the emphasis on naming and shaming. There are situations when this will be inevitable. But the question that arises for reflection is whether there are ways other than naming and shaming that might allow the international community to express concern over situations of gross violations of human rights. This chapter will have these twin perspectives in mind when discussing the evolution of human rights norms and machinery: building on the universality of the core international norms developed since the establishment of the United Nations and examining ways of vindicating the principle of protection while mindful of the principles of respect and confidence-building. We begin with the San Francisco choices on human rights. As the San Francisco conference convened in 1945 to draft the Charter of the United Nations there was a groundswell in civil society in many countries that the new world order should be built on the foundations of human rights. Blueprints for an international bill of human rights were developed by leading academics, civil society organizations, and by some governments. The leading powers assembled at San Francisco; however, almost all had many human rights skeletons in their cupboard. In the southern parts of the United States segregation and racial discrimination were rife. Great Britain and France had colonies in which all manner of human rights violations were taking place. The evidence that has subsequently come to light about atrocities committed against local populations in countries such as Kenya is heart-rending. France also had a similar history. The then Union of Soviet Socialist Republics had Gulags and whole nations in subjection. On top of all of this, the cold war had descended on the San Francisco conference and the leading powers were more concerned with the looming struggle for supremacy. It was not an environment conducive to inspiring human rights choices and the major powers would have preferred not to have to deal with the subject. But civil society would not let them get away with this.
How would the United Nations take forward the choices made at San Francisco into practical courses of action for their realization? The first effort was made by the Commission on Human Rights, which laid down the vision of an International Bill of Human Rights, which we turn to next. II. The Vision of an International Bill of Human Rights At the San Francisco Conference, when the Charter of the United Nations was being drafted, some governments, especially from Latin America, had proposed that the Charter should contain an International Bill of Human Rights. The topic of human rights, as was seen earlier, had given rise to difficult debates at the Conference and partly for this reason, and partly because of shortage of time, it was decided that the issue would be referred to the new Commission on Human Rights provided for under Article 68 of the Charter. After the Commission was formally constituted it retained this idea of an international bill of human rights and set forth the vision of an international bill that would contain three parts: a declaration of moral principles, one or more treaties that, after ratification by governments, would contain obligations legally binding on them; and measures of implementation. The Universal Declaration of Human Rights was adopted in 1948, the Convention against Genocide that same year, the International Convention on the Elimination of Racial Discrimination in 1965, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and an Optional Protocol thereto in 1966, and thereafter, by a series of human rights treaties. Measures of implementation would prove difficult to conceptualize and to set in place. The challenge of implementation remains six decades after the founding of the United Nations, as we shall see later in this chapter. Nevertheless, the idea of an International Bill of Human Rights proved, from the outset, a rallying vision and remains so to this day. III. The Development of International Human Rights Norms The development of international human rights norms has been one of the great success stories of the United Nations. Cumulatively, we now have a veritable international code of human rights governing practically every area of the relationship between the individual and the state, and the process of drafting new norms continues at the present time with a convention under preparation banning enforced and involuntary disappearances, one of the terrible forms of gross violations of human rights prevalent since the 1970s. The development of human rights norms has been influenced by many factors. In the first place, concepts of human rights from different parts of the world were drawn upon in giving content to the Universal Declaration, including the historic English, French and American declarations of human rights. In the second place, there was a strong push for an approach to human rights that recognized the interrelationship among civil and political rights and economic, social and cultural rights. However, Western countries, mainly, argued that civil and political rights were interdictions upon Governments, whereas economic, social and cultural rights were programmatic aspirations to the realization of which a progressive approach should be taken. This, basically, was the reason why the international community ended up eventually with two Covenants instead of one. Governments such as those of Great Britain, France, and the USA were reluctant to recognize equality rights during an era in which the first two had colonies still while the third had corrosive segregation in the South. The protection of minorities and indigenous populations was also a difficult topic to grapple with, especially as Latin American countries insisted that they did not have minority populations and were reluctant to recognize the rights of indigenous populations. It would take years to overcome some of these difficulties and this has been achieved only partially in some instances. To this day, for example, some Western countries deny the character of human rights to economic, social and cultural rights. The developing countries, for their part, pressed hard for recognition of the right to self-determination and the right to development. These countries saw the development of human rights norms as having a role to play in consecrating as international public policy major aspirations of large parts of humanity for peace, self-determination, development, and justice. A tension between classical, restrictive approaches to human rights and more dynamic, public order approaches to human aspirations and rights continues to be felt in our time, particularly as regards the implementation of the right to development. Whatever the difficulties, we are now the inheritors of great normative human rights instruments, with pride of place belonging to the Universal Declaration of Human Rights. Some authors have argued that the Declaration is an elaboration upon the human rights provisions of the Charter and therefore deserves to be ranked alongside the United Nations Charter as one of the basic constitutional documents of the contemporary world order. Views differ as to whether the Universal Declaration, in part or as a whole, is a legally binding document but most commentators agree that some parts of it represent binding international law. The Universal Declaration, the two International Covenants, the Convention against racial discrimination, the Convention against torture, the Convention on the rights of the child, the Convention on the elimination of discrimination against women, and the Convention on the rights of migrant workers and their families are the principal human rights treaties to date. The first six conventions are widely ratified, with the convention on the rights of the child being the one subscribed to by all but two states. The convention on the rights of migrant workers and their families is the least ratified of all because Western countries in particular have consistently objected to many of its provisions. From the principal human rights declarations and conventions may be distilled a number of principles of international human rights law which we present next. IV. Principles of International Human Rights Law General principles of law found in the major legal systems of the world are a source of international law that international courts and tribunals may invoke. General principles of law include: The Rule of law: Society shall be governed through laws and everyone is subject to the law. Constitutionalism: governance that advances the rights of the people. Democratic Governance: The will of the people shall be the basis of the authority of governments. The Principle of Responsibility for Unlawful Acts. In the Chorzow Factory case the Permanent Court of International Justice declared that it was a principle of international law that any breach of an engagement involves an obligation to make reparation. Principles of international public policy (jus cogens) have been recognized in international law. The International Court of Justice has asserted the existence of obligations of a state towards the international community as a whole. "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 racial discrimination." Professor Ian Brownlie considers that the least controversial examples of principles of international public policy (jus cogens), are the prohibition of the use of force, the law of genocide, the principle of racial non-discrimination, crimes against humanity, and the rules prohibiting trade in slavers and piracy. We would the international outlawry of torture. International humanitarian law seeks to uphold the principle of humanity in armed conflicts. The principles pervading international humanitarian law are, as classically developed in the International Red Cross movement, the principles of humanity, impartiality, neutrality, independence, voluntary service, unity, and universality. In the Nicaragua case the International Court of Justice invoked general principles of humanitarian law based upon Article 3 common to the four Geneva Conventions on humanitarian law. Expounding on the general principles of humanitarian law, the Court held that the Geneva Conventions were in some respects a development and in other respects no more than the expression, of such principles. Common article 3 of the four Geneva conventions provides that in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum the following provisions:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture: Turning, specifically, to principles of international human rights law, we may identify the principles of: universality, democratic legitimacy, justice, protection, legality, respect and ensure, equality and non-discrimination and remedy. In view of their importance we present these principles next. The World Conference on Human Rights, held in 1993, succinctly expressed the consensus of the international community on the universality of human rights as follows: "The universality of these rights and freedoms is beyond question" It went on to say: "While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights." Article 21, paragraph 3 of the Universal Declaration of Human Rights provides 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 rights 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. The principle of justice is at the heart of the human rights movement and has been taken forward with the establishment of institutions such as the International Criminal Court. In A.v.Australia, the Human Rights Committee recalled that the notion of 'arbitrariness' must not be equated with 'against the law' but be interpreted more broadly to include such elements as inappropriateness and injustice. D. Protection A. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk. As seen earlier in this chapter, the General Assembly has now explicitly endorsed the responsibility to protect. In General Comment No. 27, the Human Rights Committee provides general principles applicable in the interpretation of restrictions or limitation clauses in human rights treaties. Where, for example, one finds the expression 'as provided by law', the law itself has to establish the conditions under which the rights may be limited. Further, the restriction must not impair the essence of the right, should use precise criteria and may not confer unfettered discretion on those charged with their execution. In the same vein, a restriction must be legitimate and necessary. 'Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.' The Committee puts particular emphasis on the fundamental principles of equality and non-discrimination whenever restrictions are made.
The principle of equality and non-discrimination is a hallowed principle of international human rights law. In its General Comment No. 18, the Human Rights Committee provided the following definition of the term discrimination: "(T)he Committee believes that the term 'discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." G. Respect and Ensure "Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1. During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State's emergency powers. The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances." Article 8 of the Universal Declaration of Human Rights states the fundamental principle that "Everyone has the right to an effective remedy by the competent national tribunal…" The World Conference on Human Rights (1993) emphasized that "Every State should provide an effective framework of remedies to redress human rights grievances or violations. In its views under the Optional Protocol the Human Rights Committee has consistently retained its position that in a case where a violation of the Covenant has been established through the Optional Protocol procedure, the State Party in Question has a legal obligation to provide an effective remedy. Having recapitulated key principles of international human rights law, we may now turn to a discussion of the third part of the International Bill of Human Rights as envisioned by the Commission on Human Rights, namely, measures of implementation. As we have seen previously, the vision of the Commission on Human Rights for an International Bill of Human Rights placed emphasis on measures of implementation to follow the adoption of the Universal Declaration and the International Covenants on Human Rights. This third part of the International Bill of Human Rights would prove the hardest part to achieve and even though some incipient steps have been made, the quest for measures of implementation remains problematic to this day. Shortly after the United Nations General Assembly adopted the Universal Declaration of Human Rights and the Convention against Genocide, it registered an important success on the route to implementation. India had brought the issue of Apartheid in South Africa before the General Assembly. South Africa argued strenuously that this was a matter within its internal jurisdiction and that the General Assembly lacked competence to consider it. In one of its historic rulings, the General Assembly decided that it was competent to discuss the matter. Thus was established the principle of international concern with situations of gross violations of human rights. Thereafter, the United Nations would set in train a variety of investigative working groups and a Special Committee against Apartheid and would stay the course until the end of Apartheid had been achieved in South Africa. The Commission on Human Rights, however, would fail dismally in dealing with allegations of gross violations of human rights. As it drafted the Covenants it placed emphasis on reporting procedures to be monitored by treaty-based organs such as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights in existence today. But how would it respond to the thousands of petitions coming in to the United Nations alleging gross violations of human rights in different parts of the world? In the time of the cold war, of colonies, and of segregation in the southern United States of America, the Commission on Human Rights declared that ii lacked competence to deal with those petitions. It was an historic betrayal from which the Commission only ever partially recovered. It would take the newly-independent countries coming in to the United Nations in the mid 1960s to press for the United Nations to deal with allegations of gross violations of human rights in colonial and dependent territories and in Apartheid South Africa. Thus it was that the Commission on Human Rights decided in 1967 that it would consider annually the question of violations of human rights and fundamental freedoms in any part of the world. This would lead to annual debates on the item in the Commission, to the establishment of working groups and rapporteurs, to the adoption of resolutions of concern and condemnation, to the generation of technical advice and assistance to countries, and to other approaches intended to deal with the problems of gross violations of human rights. As the developing countries pressed for action on situations of gross violations of human rights in colonial and dependent territories and in Apartheid South Africa, non-governmental organizations and independent experts in the Sub-Commission of the Commission on Human Rights pressed for a system of dealing with the petitions reaching the United Nations complaining about violations of human rights. Thus it was that a confidential procedure was established to deal with those petitions. What might be the outcome of such consideration? A dialogue with the countries concerned, the initiation of a study into the situation, or the provision of advice or assistance. This was not much, but it was something and, since the establishment of this confidential petitions procedure in 1970, some one hundred countries have been brought before the Commission for scrutiny. Meanwhile, under the principal human rights treaties, countries have been reporting on their efforts to implement those treaties and the treaty-monitoring bodies have been providing country-specific comments as well as general comments providing guidance on the implementation of the treaties. A few of these treaties also provide for individual petitions procedures. This is the case for the Optional Protocol to the International Covenant on Civil and Political Rights, Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture, and the Optional Protocol to the Convention on the Elimination of Discrimination Against Women. Under these petitions procedures important jurisprudence has been developed of lasting value and global relevance. Alongside the specifically human rights machinery known as the Charter-based machinery and the treaty-based human rights monitoring bodies, a modest implementation role is played by the General Assembly, and a developing role by the Security Council. The General Assembly has been inconsistent on this issue of measures of implementation. In the first place, under the pressure of the newly independent countries, it led the call for the United Nations to deal with gross In this matter the General Assembly has echoed the voices of the developing countries and others in the Commission on Human Rights, which now argue that the role of the United Nations is not to engage in confrontation about human rights but to promote dialogue and cooperation. It is this issue, coupled with the increasing tendency for countries accused of gross violations of human rights to secure election as members of the Commission for self-protection, that has caused a crisis in the Commission, leading to calls for its abolition and replacement by a Human Rights Council, an issue we discuss below. We are therefore living through a veritable crisis when it comes to measures of implementation and protection. The adoption of the Statute of the International Criminal Court, and the commencement of operations of the Court are important milestones in the quest for stronger protection but have been marred by the hostile and uncooperative attitude of the United States of America towards the court. As for the human rights treaty bodies, which are part-time institutions, there is an on-going process aiming at the greater efficiency and rationalization of these bodies. It would certainly help if these bodies were not to exclude political nominees or officials owing their loyalties to governments. It would also assist for these bodies to have the support of more staff. Whether it is wise, at this relatively early stage, to call for the consolidation of the treaties or of the various treaty bodies is open to discussion. In the quest for measures of implementation, the call for an institution such as a High Commissioner for Human Rights has been with the United Nations ever since 1947, and was finally achieved in 1993, with the first High Commissioner, Jose Ayala Lasso, commencing operations in 1994. We discuss the Office of the High Commissioner later. However, in view of the debates taking place at the time of writing about how the international community should deal with allegations of gross violations of human rights we look specifically at this issue next. VI. Strategies for dealing with situations of gross violations of human rights What, it may be asked are the main strategies that have been developed in international and regional bodies since 1948 to deal with situations of gross violations of human rights? Human rights strategies in use at the present time include the drafting of norms to deal with new problems, which continues in areas of need, the conduct of research and studies into contemporary problems, the provision of advisory services and technical assistance to governments to help them strengthen national capacity for the protection of human rights, the consideration of state reports, the operation of some regional and international petitions procedures, the conduct of fact-finding into problem situations, naming and shaming governments and non-state actors responsible for gross violations of human rights, the development of human rights education, and the dissemination of information about human rights. An examination of the methods in use by international and regional human rights bodies shows the following. Reporting systems are in operation under the seven principal human rights treaties and in the African Commission on Human and Peoples Rights. The Secretary-General of the Council of Europe may call for reports but has rarely done so. A reporting system is provided for under the Arab Charter on Human Rights but has not taken off so far. The Inter-American Commission on Human Rights does not have a reporting system. A monitoring role in respect of states reports is being carried out by the seven international treaty bodies and by the African Commission. A Peer Review Process has begun operations within the framework of NEPAD. Country studies are carried out by the Inter-American Commission on Human Rights on its own initiative. The Commission has a long-standing practice in the conduct of such studies. A system of country studies as such does not exist under other regional systems or in international organizations. However, the Peer Review Process under the NEPAD has begun to produce country studies. Early warning, preventive procedures, strategies or policies exist under some treaties or in some of international or regional bodies. The Convention on the Prevention of Genocide, the European Convention on the Prevention of Torture and the Inter-American Convention on the Prevention of Violence against Women are examples of treaties with a preventive orientation. The first Summit of the Americas, held in Miami, called for preventive capacity in the Inter-American human rights system. The OSCE High Commissioner on National Minorities has a preventive role as does the OSCE Representative on Freedom of the Media. Emergency measures may be taken by the United Nations Security Council and this aspect is being emphasized in the discussions about the proposed Human Rights Council. The African Commission has developed a significant practice when it comes to emergency measures. Petitions procedures are in operation in the African, European and Inter-American regional systems, in optional procedures established by the Convention on the Elimination of Racial Discrimination, the Optional Protocol to the International Covenant on Civil and Political Rights, the Convention Against Torture, and under procedures established within the ILO and UNESCO. There is a growing body of international and regional human rights case law. There are admissibility rules before petitions may be considered. These include that petitions should not be anonymous or abusive. Local remedies must have been exhausted where they exist. In the European Court of Human Rights petitioners participate in all stages. This is also the case in the Inter-American Court. Provisional or interim measures of protection may be indicated by international treaty bodies considering petitions or under the African, European or Inter-American regional systems. The American Convention expressly authorizes the issuance of temporary restraining orders. The other bodies have indicated such measures as part of their practice. Inter-State Complaint Procedures exist under the African, European, and Inter-American systems, in under treaties such as the International Covenant of Civil and Political Rights. They have been most successfully used under the European regional system. A United Nations human rights commission has existed since 1947 and discussions are under way to replace it by a stronger body, a Human Rights Council. Regional Human Rights Commissions are functioning under the African and Inter-American, systems. Previously there had been a European Commission but its role has been taken over by the European Court of Human Rights. The Arab Charter provides for an Arab Commission and the Commonwealth of Independent States established a human rights commission in 1993. The last two commissions have not yet taken off. The Asia-Pacific region does not have a regional commission. The Office of United Nations High Commissioner for Human Rights organizes an annual Asia-Pacific Forum which concentrates on human rights education, national human rights plans of actions, economic and social rights, and the right to development. General or country-specific recommendations are put forward by the United Nations Commission on Human Rights or by the African and Inter-American Commissions. Regional human rights courts are operational in the European and Inter-American regional systems. An African Court of Human Rights has been agreed upon but is in the process of being merged with the African Court of Justice. There is, as yet, no international human rights court. The African, European and Inter-American courts may consider petitions referred to them under their respective procedures and may also give advisory opinions. The enforcement of judgments of the European Court of Human Rights is followed up by the Committee of Ministers of the Council of Europe. There is no similar arrangement in the African or Inter-American systems or in the United Nations. A High Commissioner for Human Rights exists within the United Nations. The High Commissioner has promotional and protecting functions. The Council of Europe has a Commissioner on Human Rights with promotional functions. The OSCE has a High Commissioner on National Minorities and a Representative on Freedom of the Media. The UN High Commissioner for Human Rights has regional representatives in Africa, Asia and the Pacific, the Arab region, Central Africa, Central Asia and in Latin America. Fact-finding and thematic rapporteurs and groups function in the United Nations and in the African and Inter-American regional systems. The push for equality and non-discrimination has been a consistent strand of the efforts of the United Nations ever since its establishment and we look at this issue next. VII. The Struggle for Equality and Non-Discrimination The struggle for equality and non-discrimination has been a hallmark of the United Nations human rights programme ever since its establishment. The Charter included among of the purposes of the world organization to develop friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples and to promote and encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. It has been one of the historic achievements of the United Nations that it led the process of steering dozens of former colonies and dependent territories to independence. The principles of equality and self-determination breathed life into this struggle. The United Nations fought against Apartheid in South Africa and undoubtedly helped bring down that odious regime. The United Nations has championed the equal rights of women from the earliest days of its existence. It pioneered studies and standards on the nationality and political rights of women. It launched decades of action and successive world conferences on the equal rights of women. It promulgated the International Convention on Elimination of Discrimination Against Women and an Optional Protocol to that convention providing for a system of individual petitions where women consider that they had failed to achieve justice within their own countries. The United Nations has also fought for racial equality through mobilization and standard-setting. The International Convention on the Elimination of All Forms of Racial Discrimination calls for resolute action in each State Party to stamp out prejudice and racial inequality. The United Nations has launched successive decades of action against racial discrimination and has held successive world conferences on this topic, the last having been held at Durban, South Africa, in 2001. The jurisprudence of the Committee on the Elimination of Racial Discrimination and of the Committee on the Elimination of Discrimination Against Women provide normative and policy statements of enduring value in the continuing struggle for equality. The United Nations has also championed the equal rights of minorities, indigenous populations and disadvantaged groups. It has placed particular emphasis on the right to development, which we discuss next. VIII. The Right to Development and the Millennium Development Goals The right to development is a rallying concept that calls upon the international community and each country to act in a concerted manner to advance the development aspirations of every individual and all nations. It is a concept given varying emphases by different group of countries. For the developing countries, they place the emphasis on transfers of resources from the developed countries. For the developed countries it is the totality of human rights, requiring efforts to implement all human rights, civil and political and economic, social and cultural. Variations of emphasis notwithstanding, it must be right to suggest that all countries should use their resources so as to advance the right to development for their people in an equitable manner and that all countries should cooperate for the mutual achievement of the right to development. The alternative to such a policy framework is a Darwinian world of market-oriented capitalism with no social or human rights safety nets. How can developing countries survive in such a world? The Millennium Development Goals are closely related to the implementation of the right to development. The Millennium Development Goals are an appeal to humanity. They integrate human rights and look to human rights strategies to help bring about their implementation. The core human rights idea is one that centralises human dignity and rights within strategies of governance. Stated simply, it calls for governance to proceed from the premise that everything must be done to achieve human dignity and fundamental human rights for everyone. These rights were crystallised in the International Bill of Human Rights, which consists of the Universal Declaration, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Historically, the human rights idea has contributed to development goals through norms articulating policy goals and standards, advocacy, supervision, studies and the activation of the international conscience. The question that arises for reflection is how the human rights emphasis might help in the implementation of the Millennium Development Goals in the future. The United Nations campaign for the achievement of the Millennium Development Goals places emphasis on human rights in broad terms. It emphasizes the human rights underpinning of the Millennium Goals and notes that injustice and discrimination of one kind or the other are increasingly seen as key determinants of poverty, and that it is not by coincidence that the very same determinants account for most human rights abuses. The Millennium Development Goals Campaign also presses the point that the human rights approach 'implies that we are talking not of welfare or charity, but of rights and entitlements. This means that taking action to achieve the goals is an obligation. And the approach also creates a framework for holding various actors, including governments, accountable. Moreover it is widely acknowledged that sustainable development requires the active involvement of the poor and civil society. Thus without respect and fulfillment of human rights such as non-discrimination, right to participation, freedom of expression and assembly, achieving - and even more importantly - sustaining the Millennium Goals will not be possible.' How can practical and concrete human rights approaches contribute to the achievement of the Millennium Development Goals. We would advance six suggestions. The first relates to the national human rights protection system of each country and how it covers key economic, social and cultural rights. There should be human rights focal points in key Government Ministries such as Agriculture, Health, and Housing devoted to advancing a human rights approach and watching over the principle of equality and non-discrimination. One should also place more emphasis on the role of the courts in protecting key economic, social and cultural rights. Second, one should bring to the fore more the concept of preventable poverty. Preventive human rights strategies are not given the attention they deserve. They have an especial role to play when it comes to basic economic, social and cultural rights. Preventable poverty is something that one could also focus on in advocacy campaigns. Third, there is an important role for the principle of non-discrimination. When the International Covenant on Economic, Social and Cultural Rights was drafted the obligation not to discriminate was made a mandatory obligation on States Parties. The issue can be put simply: alongside preventive strategies, a society must be watching out for pockets of the population that are facing discrimination with regard to basic human rights and act urgently to ameliorate this. This can bring about tangible relief. Fourth, one needs to place the spotlight more on vulnerable groups of the population such as minorities, indigenous populations, migrants, and historically disadvantaged communities. Placing the spotlight on them brings their plight to the fore and enables the forging of a national consensus to act for their relief and protection. Fifth, the concept of a consistent pattern of gross violation of economic, social and cultural rights could be put into practice. In 1975 the United Nations Commission on Human Rights adopted a decision that I would henceforth pay attention to gross violations of economic, social and cultural rights alongside civil and political rights. There has been little follow-up to this decision. However, nationally, regionally, and internationally, one should place the spotlight in the future on situations where there is a consistent patter of gross violation of economic, social and cultural rights attributable to the policies of Governments or other actors, such as corporations. This would give expression to the principle of protection on the ground. Sixth, there is a case for the periodic publication of a World Report on Economic, Social and Cultural Rights. Such a report would help show, through human rights lens, what could be done to prevent and reduce poverty and act for the relief of the vulnerable and the poor. We have thus far discussed the quest for implementation and protection and also looked at the issue of taking forward the implementation of the right to development and of the Millennium Development Goals. We return to the quest for stronger protection of human rights by looking next at the Office of High Commissioner for Human Rights, an institution recommended by the World Conference for Human Rights in 1993 and established by the General Assembly that same year. IX. The Office of High Commissioner for Human Rights The Office of High Commissioner was recommended by the World Conference on Human Rights that met in Vienna in 1993 and was established by the United Nations General Assembly later that year. At the time there was in existence a human rights part of the United Nations Secretariat, the Centre for Human Rights and the Office of High Commissioner and the Centre for Human Rights were consolidated in 1998. That meant that the High Commissioner was called upon to fulfill different roles: moral leadership, political sensitivity, and bureaucratic-managerial duties. These roles are contradictory and this has been felt in practice. The major contributions of the position of High Commissioner to the quest for measures of implementation and protection have been to provide a voice for victims, to exercise initiative in launching investigations into gross violations of human rights, and to exercise a spearhead function for the human rights movement, interacting with bodies such as the Security Council and the International Criminal Court. Some gains have been made on these fronts. But the Office of High Commissioner is still in the early stages of its establishment. It receives meager allocations from the regular budget of the United Nations and spends two-thirds more from voluntary contributions. This reflects adversely on its staffing structure and on its ability to plan and act independently. As of the time of writing, the High Commissioner has proposed a plan of action to double the resources of the Office from the regular budget in five years and one hopes that the United Nations membership will follow-through on this. Unfortunately, the High Commissioner has been squeezed on the budgetary front in the past on account of initiatives taken for the protection of human rights and at the present time, the debate is still going on as to whether, and how, the United Nations should deal with gross violations of human rights. When this writer occupied the functions of High Commissioner and condemned the Government of Sudan for gross violations of human rights in Darfur, the Permanent Representative of Sudan circulated to the General Assemby a formal complaint that international officials should not make pronouncements on the behaviour of governments! The discharge of the responsibility to protect is thus a matter of great importance to the future, and we turn next to this issue. X. The Responsibility to Protect The Heads of State and Government gathered at United Nations Headquarters from 14-16 September. 2005 acknowledged that each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility, they acknowledged, entailed the prevention of such crimes, including their incitement, through appropriate and necessary means. They accepted that responsibility and pledged to act in accordance with it. They called upon the international community, as appropriate, to encourage and help States to exercise this responsibility and to support the United Nations to establish an early warning capability. The Heads of State and Government declared that the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapter VI and Chapter VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, they declared their preparedness to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the United Nations Charter, including Chapter VII, on a case by case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means he inadequate and national authorities manifestly failing to protect their population from genocide, war crimes, ethnic cleansing and crimes against humanity. The Heads of State and Government stressed the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. They also expressed their intention to commit themselves, as necessary and appropriate, to help states build capacity to protect their populations from genocide, ar crimes, ethnic cleansing and crimes against humanity and to assist those which are under stress before crises and conflicts break out. XI. Reforms: Towards a Human Rights Council The United Nations Summit of world leaders, meeting to mark the sixtieth anniversary of the Organization, resolved to create a Human Rights Council to take over from the Human Rights Commission, which has done invaluable work over the past six decades but which has now fallen into disrepute because some countries accused of gross violations of human rights have been successful in getting themselves elected members of the Commission and thereby engaging in vote-trading for their self-protection. Human rights are at the centre of the contemporary world order and must be the driving force of nation building, equity and justice in all countries. Like the original Human Rights Commission, the new Human Rights Council must take forward the challenges of building a world on the foundations of justice. That will be its historic mission. The peoples of the world expect positive results from this reform. The world leaders have set for the new Council the responsibility of 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. The Council should address situations of violations of human rights, including gross and systematic violations and make recommendations thereon. It should also promote effective coordination and the mainstreaming of human rights within the UN system. At the time of writing, negotiations are underway on a resolution of the General Assembly establishing the Council. Negotiations on the establishment of the new Council present an opportunity to modernize the roles of the principal UN human rights body and thus can be to the common good if the results come out right. The role of the new Council should influence its composition and working methods. In addressing the roles of the new body it needs to be kept in mind that other organs will continue to play their part, including the Security Council, the General Assembly, and the human rights treaty bodies established under the seven main human rights treaties drafted at the United Nations. One is therefore looking to a leadership and spearheading orientation for the new Council, as well as protection and coordination roles. The emphasis of the international community is rightly placed these days more and more on preventive actions and one should therefore expect the Human Rights Council to use its best endeavours for the prevention of gross violations of human rights. A preventive orientation should therefore characterize the Council. By prevention we mean detecting potential gross violations before they occur and acting to head them off, in cooperation with regional and other partners. The prevention of genocide is a case in point. The new Human Rights Council should play a leading role in the formulation of strategies and programmes to combat discrimination. The founders of the United Nations made the principle of non-discrimination a foundation tenet of the world body and there remains a great deal of discrimination on grounds of race, gender, language, religion and other grounds. A world of widespread discrimination is not a world of human rights. Human rights education has a key role to play in combating discrimination and in advancing universal values of respect and tolerance. The Human Rights Council should take the lead in encouraging human rights education in the schools, universities and other educational institutions of every country, in local languages. This is an immense task that has hardly begun. Working together with UNESCO and UNICEF, the Human Rights Council should make this a priority issue for consideration. The Human Rights Council is expected to act on the basis of the human rights norms in the Charter, the Universal Declaration, and the United Nations human rights treaties. It would be expected to work to advance the implementation of these treaties, in cooperation with the human rights treaty bodies, which should have appropriate participation in the membership of the Council. A central concept of recent human rights reforms at the UN has been the strengthening of national protection systems. This looks to constitutions and laws that are reflective of international human rights norms, to their application by national and local courts, to human rights education and institutions like human rights commissions, and to early-warning and urgent-response arrangements where needed, particularly in multi-ethnic societies. The Human Rights Council must make it a central part of its work to contribute to the strengthening of national protection systems in every country. It is on this issue of national protection systems that a Peer Review Process can have an important role in the new Council. The national protection system should be expected to take the lead in preventive strategies, supported by regional and international bodies. The world leaders have rightly called for the new Human Rights Council to address situations of gross violations of human rights. This should cover economic and social rights as well as civil and political rights. We argued above for an emphasis on prevention. The new Human Rights Council must take forward and improve upon the system of special procedures - rapporteurs and working groups working against torture, arbitrary executions, disappearances, arbitrary detention, violence against women and children, and other blots on our civilization. The new Human Rights Council must work in close partnership with civil society and assure optimal participation for human rights NGOs. It should enhance the parliamentary role of the Human Rights Commission. The Council should also work in closer partnership than did the Human Rights Commission in recent years with regional human rights bodies such as the African Commission on Human Rights, the European Court of Human Rights and the Inter-American Commission and Court of Human Rights. The principal specialized agencies of the UN will continue to have a valuable contribution to make to the human rights work of the UN in its principal human rights body. This cooperation should be institutionalized in the Human Rights Council. Related to this, the mainstreaming of human rights in all parts of the UN system should be the avenue for cooperation with the principal programmes of the UN and particularly with the IMF, the World Bank and the IMF. Mainstreaming can help greatly in taking forward the implementation of the right to development, which will undoubtedly be given pride of place in the new Human Rights Council. The right to development englobes civil and political rights and economic, social and cultural rights and provides a rallying banner for the peoples of the earth, especially those stricken by extreme poverty - the wretched of the earth, to use a famous expression. The situation of human rights in a country must be a central dimension of risk analysis pertaining to that country - whether it be for the purposes of the prevention of conflict, assessment of the stability of the country, or assessment of opportunities for business. In the literature on risk assessment, one sees discussion of the meaning of risk, examination of political or investment risks, but one finds very little consideration of the relevance of human rights to risk assessment. Risk assessment of a country must start with consideration of its human rights infrastructure, record, and problems. A. The Adequacy of the National Protection System In the human rights strategies of the United Nations these days, increasing emphasis is placed on the concept of the national protection system. By this concept is meant that one should look at the constitution, laws and courts of a country to see the extent to which they are reflective of the international human rights norms. One must also look to see whether the country has specialized human rights institutions such as a national human rights commission or an ombudsman, whether the country is providing for the teaching of human rights in primary and secondary schools in particular, and whether the country has monitoring arrangements to detect grievances on the part of a group or groups of the population with a view to heading off those grievances. If significant parts of the national protection system of a country are missing, then one can conclude that the country is likely to be shaky and unstable and, depending on its configuration, could easily erupt into violence. B. The Degree of Acceptance of the Core International Human Rights Conventions The role of the Universal Declaration of Human Rights and of the core international human rights conventions is to require States to live up to international minimum standards of human rights protection in key areas, such as respect for civil and political rights; the prohibition of torture; the prohibition of racism and racial discrimination; the prohibition of discrimination against women; protection of the rights of the child; protection against torture; and protection of the rights of migrants. These are all the subjects of major international human rights conventions. The national protection system of a country should be built on the Universal Declaration of Human Rights and on these core human rights conventions. If a country has not ratified the key conventions, then it is already an indicator that the national consensus within the country might be shaky because the country has not yet begun to internalize what the international community has distilled as the key values that should guide nation-building and that should arbitrate relations between the Government and its subjects or between the subjects themselves. That a country has not ratified one or more of these conventions may not necessarily indicate potential instability. The United States of America, for example, largely because of the relations between the Federal and State governments, has ratified very few international conventions. Even in such instances, however, it would be fair to say that by staying outside of the conventions, a country is denying itself the opportunity of engaging in a dialogue with the international community on how key values are faring within the country. C. The State of Governance in the Country If a country is democratically governed under the rule of law, the chances are that the state of respect for human rights might be better - although even this is not assured, depending on the country in question and its political maturity. Nevertheless a good indicator in risk assessment of a country is whether it has genuine periodic elections and whether the courts operate freely and independently of the Government. If either of these conditions is absent, one can be pretty certain that the level of grievances in the country will be high and the risk of instability and even conflict serious. Political corruption and inefficient courts foment dissatisfaction and grievances and invariably lead to a weak social fabric. D. The National Vision E. The National Security Doctrine The national security doctrine of a government can often provide an indicator of how stable or equitable the country is. In the contemporary world, a national security doctrine must be grounded in international human rights norms and must give priority to upholding human rights nationally, regionally and internationally. In a world of terrorist threats and global mobilization against terrorism, it is particularly important that there be safeguards against the risks of trampling upon human rights in protecting national security or of countering terrorism. F. The State of Freedom of Expression and Freedom of Religion or Belief If freedom of expression is being stifled and freedom of religion or belief is not respected it would be fairly safe to say that there would be grievances lurking beneath the surface in the country that could erupt at any time. If people cannot practice their religion or give expression to their beliefs they are often ready to fight for it, and, if necessary to die. G. Findings of International Treaty Bodies Under the principal human rights conventions, States are required to submit reports on their actions to implement the conventions and these reports are considered by treaty monitoring bodies, such as the Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Discrimination against Women, and the Committee on the Elimination of Racism and Racial Discrimination. The comments, conclusions and recommendations of these treaty monitoring bodies can often be quite telling about the state of protection of human rights in the country and about whether there are seething problems or problems beneath the surface waiting to erupt. Those engaged in risk analysis must therefore have in view for every country what the international human rights treaty bodies are saying about the state of human rights within the country. H. Findings of United Nations Human Rights Investigations In the United Nations these days, there are thematic human rights rapporteurs and working groups producing reports once or twice a year on problems such as: extrajudicial executions, torture, enforced disappearances, arbitrary detention, violence against women, religious freedom, the right to food, the right to education, the right to health, and on housing issues. These thematic special procedures of the United Nations Commission on Human Rights, in their annual reports, cover a range of some 60-70 countries per year. In 2003, the Special Rapporteur on Violence against Women did a survey on this problem for every country of the world. The reports of these thematic special procedures can give a pretty good indication of whether or not there are serious problems within a country. Evidence of extrajudicial executions, torture, enforced disappearances or arbitrary detention can tell one straightaway that the storm clouds are over the country and are about to burst if they have not already done so. I. States of Emergency If a country has a de facto or de jure state of emergency, then that would tell that there are particular reasons to look closer at the country. If a country is democratically governed under the rule of law, a state of emergency might not necessarily indicate instability. Under article 4 of the International Covenant on Civil and Political Rights "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." J. Early Warning and Prevention Especially in today's world where people are moving across frontiers and cultures are intermingling, it would be advisable for each country to have arrangements to detect and head off grievances that could erupt in a strife or conflict. One way of achieving this might be for a national commission on human rights to provide an annual assessment of the state for respect for human rights within the country. Risk assessment of a country could look at whether such arrangements for early warning and prevention exist within the country. K. Civilian Control of the Police and the Military An important question to ask in risk assessment of a country is whether the police and the military are under civilian control. If this is not the case, as night follows day, one can expect that the police and the military will be engaging in excesses on the civilian population leading to potentially explosive situations. Even if there is civilian control of the police and military, it would be important to ask if there is abuse of power by either. Abuse by the police or the military will certainly foment discontent and possibly strife and conflict. L. Prevention of Genocide, Ethnic Cleansing or Mass Killings In a recent initiative, the Secretary-General of the United Nations, Kofi Annan, informed the Commission on Human Rights on 7 April 2004 that he intended to designate a Special Adviser on the prevention of genocide, ethnic cleansing and mass killings. This is a major innovation which leads to the thought that in risk assessment of a country, it would be necessary to ask about the danger of genocide, ethnic cleansing or mass killing. A related indicator is whether there is torture or arbitrary detention or enforced disappearances in the country. If any evidence exists that such pernicious practices are taking place then it can be safely concluded that the country presents major risks of instability and possibly strife or conflict. This presentation of the evolution of human rights norms and machinery has sought to trace the intellectual and policy journey of the human rights programme of the United Nations since its establishment in 1945 with a view to assessing where we have come from and what are the challenges that lie ahead. It has, we hope, brought out the quest to take forward the protection of human rights in a world of mass poverty, conflicts, terrorism, inequality, state violence and bad governance all of which present daunting challenges for the vindication of the human rights idea. It is fair, we think, to say that the normative and institutional foundations have been laid, even if the latter will require modernization in the period ahead. The responsibility to protect will remain a central concept, albeit broader than in its definition by the summit of world leaders in 2005. The broader concept is to be found in a resolution adopted by the United Nations General Assembly at its thirty-fourth session, dealing with mass and flagrant violations of human rights. There, the General Assembly declared that... The United Nations will continue to have delicate balances to strike in the protection of human rights. In the first place, a world organization that is not seen as faithful to the protection of human rights will lose the public trust and its legitimacy. At the same time, it must operate on the basis of the principles of respect, confidence- building and protection. United Nations organs must show respect for their interlocutors, whatever one thinks of them. United Nations organs must seek to build confidence in the membership and among the peoples of the United Nations in the methods and approaches used. And the United Nations must be faithful to the principle of protection which has national, regional, and international dimensions. There must be on-going diplomacy at the United Nations to foster understanding of, and trust in, these three principles. Lecturing the world will not serve to advance these principles. Patient and persistent work will. While working at these principles, the United Nations must increasingly place emphasis on universal human rights education, the strengthening of national protection systems in each country, and the implementation of the principal human rights treaties. The human rights treaty bodies provide an invaluable service through their human rights expertise. One must build on their work, using the international conventions as normative platforms on which to build strong national protection systems. Policies and strategies will be called for on a wide front. This is as it should be for a world of infinite variety and complexity. Markkula Center Fellow Bertrand G. Ramcharan is Former United Nations High Commissioner for Human Rights. |
Bertrand G. Ramcharan
Jan 1, 2006
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