Human Rights and Chapter VII A presentation by Karen Irle and Tim Schmidt

Human Rights and Chapter VII Structure: A. The Law : The Protection of HR in the UN System a. HR in the UN system and the Charter (Chapter 7) b. SC Resolutions and Principles of Dealing with HR B. Application: HR in the Actions of the Security Council a. HR in Peacekeeping as one of the main SC activities b. Example : Res. 940 (1994), Haiti

a. Human Rights in the UN system and the Charter (Chapter VII) Human Rights in the UN-Charter:  United Nations objectives with regard to HR in Articles 1(3), 55(c) and 76(c)

a. Human Rights in the UN system and the Charter (Chapter VII) Article 1(3):  Purpose of the UN is inter alia ‘to achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms (…)’

a. Human Rights in the UN system and the Charter (Chapter VII) Article 55(c):  The UN shall promote ‘universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. ’

a. Human Rights in the UN system and the Charter (Chapter VII) Article 76(c):  The basic objectives of the trusteeship principle shall be ‘to encourage respect for human rights and fundamental freedoms for all (…). ’

a. Human Rights in the UN system and the Charter (Chapter VII) Article 2(7) Principle of Non-Intervention:  ‘Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state (…) but this principle shall not prejudice the enforcement measures under Chapter VII.’

a. Human Rights in the UN system and the Charter (Chapter VII) Chapter VII Art. 39:  ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression (…).’

a. Human Rights in the UN system and the Charter (Chapter VII) Obligation for Member-States under the Charter? ‘The Language used by the Charter in this respect does not allow the interpretation that the members are under legal obligations regarding the rights and freedoms of their subjects ’ (Kelsen 1950: The Law of the United Nations)

a. Human Rights in the UN system and the Charter (Chapter VII) Clear Ambivalence within the Charter: ‘in the Charter a clear distinction is drawn between the promotion (…) of human rights, and the actual protection of these rights ’ (Schwarzenberger 1964: Power Politics)

b. The resolutions of the SC: Principles for dealing with Human Rights issues In practice:  The Council qualifies e.g. a humanitarian crisis as a threat to peace (e.g. Haiti)  However, there are no clear criteria for a „breach of peace“ resulting from human rights violations  One has to analyze the resolutions of the SC to look for tendencies in the practice of the Council

b. The resolutions of the SC: Principles for dealing with Human Rights issues Resolution 1100 (1997), Liberia, Extension of mandate :  Council continually stresses the importance of integration of Human Rights in Conflict resolution “the council urged all Liberian parties to cooperate with the peace process, including by respecting human rights and facilitating humanitarian activities and disarmament”

b. The resolutions of the SC: Principles for dealing with Human Rights issues Resolution 1079 (1996), Croatia: “the importance of the full compliance by the parties with their commitments as specified in the Basic Agreement to respect the highest standards of human rights and fundamental freedoms (…) and to ensure respect for the rights of all national ethnic groups”

b. The resolutions of the SC: Principles for dealing with Human Rights issues Resolution 1193, 1998 Afghanistan The Council “urges the Afghan factions to put an end to the discrimination against girls and women and to other violations of human rights as well as violations of international humanitarian law and to adhere to the internationally accepted norms and standards in this sphere”

b. The resolutions of the SC: Principles for dealing with Human Rights issues  The Council has on many occasions underlined the “obligation of all concerned strictly to respect the relevant provisions of international humanitarian law”  Res (1996) on the Great Lakes region of Africa  Res (1998) Guinea Bissau, self-proclaimed military junta

b. The resolutions of the SC: Principles for dealing with Human Rights issues ► Res. S/PRST/1996/29 (1996) Croatia  Council said that it was “deeply concerned at the failure by the Croatian Government to take sufficient measures to safeguard the rights of the local Serb population and to ensure their safety and well-being”  Protection of minority rights

b. The resolutions of the SC: Principles for dealing with Human Rights issues  Conclusion:  No clear set of criteria  Few if any resolutions rest on human rights violations as the consituting criterion for establishing a threat to peace - Haiti resolution may be the first of that kind  Does human rights protection remain a „byproduct“ of SC resolutions in establishing a threat to peace?  Human rights protection is fairly standard in the council with regard to follow up resolutions

B. Application: Human Rights in the Actions of the Security Council: a. Do human rights play a role in the Security Councils peacekeeping efforts?

a. Peacekeeping as the Main Activity of the SC with regard to Human Rights 1. Debate in UN circles in recent years: How and to what extent should human rights be integrated? Again: There were no clear criteria Several peace-keeping operations have had a HR component in their mandate, trend will probably continue 2. OHCHR pushes since early 1998 improved coordination between OHCHR and the Department of Peace-Keeping Operations (DPKO) in the implementation of SC resolutions ► Result: so-called DPKO-OHCHR Memorandum of Understanding

a. Peacekeeping as the Main Activity of the SC with regard to Human Rights  Differing positions:  OHCHR position:  wants an explicit UN HR strategy for virtually any peace-keeping presence  Training programs for peace-keepers should be included  DPKO: more cautious approach  Question is largely out of hands of the Secretariat  Mandates are shaped by the parties, little opportunities to interfere  Training program should not include specific info on human rights  Focus should be on institution building rather than monitoring of human rights, “keep human rights separate from the political mandate”

a. Peacekeeping as the Main Activity of the SC with regard to Human Rights Memorandum of Understanding, Nov 5 th, HR components of PKO should normally combine monitoring and promotion so as to ensure a comprehensive HR approach 2. SC shall determine the specific mandate of a PKO, including tasks relating to HR 3. Early involvement of IHCHR in the planning and implementation of HR activities! 4. HR components enjoy the same status as other components 5. Informational rights, heads of HR components of PKO are required to submit periodic reports 6. Head of the PKO should ensure that all staff abide by international HR and humanitarian law standards 7. Human-rights training shall be provided to all deployed peace- keeping personnel

a. Peacekeeping as the Main Activity of the SC with regard to Human Rights Conclusion: The integration of human rights with peace-keeping operations is becoming -more effective and -fairly standard in the Council

B. Application: Human Rights in the Actions of the Security Council: b. Example : Res. 940 (1994), Haiti Brazilian UN-Troops in Haiti

b. Example : Res. 940 (1994), Haiti Historical Context:  1990: transition from dictatorship with ‘free and fair’ election of Jean-Bertrand Aristide  1991: Coup d'état and military junta  Failure of Economic Sanctions by SC  1994: Res. 940 authorizes military action  U.S.-led force intervenes and reinstalls President Aristide

b. Example : Res. 940 (1994), Haiti Resolution 940: Gravely concerned by the significant further deterioration of the humanitarian situation in Haiti, in particular the continuing escalation by the illegal de facto regime of systematic violations of civil liberties (…), 4. Acting under Chapter VII of the Charter of the United Nations, authorizes Member States to form a multilateral force (…) to use all necessary means (…) to establish a secure and stable environment (…).

b. Example : Res. 940 (1994), Haiti Were Criteria for Application of Chapter VII met?  Strictly internal character of the conflict - no other states involved, no indication of any threat to peace beyond Haiti’s borders (refugees?)  Effective control of the government – Haiti neither a failing nor a failed state  Humanitarian Organizations had (limited) access  But: systematic violations of civil liberties, desperate plight of Haitian refugees  Internal human rights violation did constitute ‘threats to peace’ according to Art. 39

Bibliography Stavrinidesa, Z., « Human Rights under the United Nations Charter », The International Journal of Human Rights », 1999, pp ; Clapham, A., « UN Charter-Based Protection of Human Rights », 2009, pp ; Hannum, H., « The UN and Human Rights », 2006, pp ; Reisman, W.M., « Haiti and the Validity of International Action », 1995, pp ; Corten, O., « L’autorisation de recourir à la force à des fins humanitaires: droit d’ingérence ou retour aux sources ? », 1993, pp ; Kelsen, H., « The Law of the United Nations – A Criticial Analysis of Its Fundamental Problems », 1950, p.29 f;

Thank you for your attention!

Questions 1. Does a legitimization for SC action under Chapter VII based on gross internal human rights violations constitute a breach of the principle of state sovereignty? Is that breach justifiable under international law? 2. Is the Human Rights activity of the security council merely a byproduct or a systematic approach taken by the SC?