Permanent Mission of Canada to the United Nations Geneva 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. obligations of Governments to act in certain ways or to refrain from certain acts. Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law , general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.

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.

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

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? Purposes: 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 (and Article 55(c) (the UN shall promote … universal respect for, and observance of, human rights …)

The Universal Declaration of 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? First draft prepared by Secretariat official, Canadian John Humphrey First task of Commission on Human Rights, chaired by Eleanor Roosevelt Adopted by the General Assembly on Dec. 10, 1948 (Human Rights Day) – 60th anniversary in 2008 Legal status: non-binding but at least large parts of it have been incorporated into treaties and also represent customary international law (general practice of States accepted as law) Ground-breaking: first comprehensive, intergovernmentally-agreed international human rights instrument Political and moral weight – use as advocacy tool esp. re non-parties World’s most-translated document: 360+ languages Led to subsequent development of several international human rights treaties – on-going progressive development and codification of international human rights law Influential: inspired domestic developments including constitutions Criticisms: when adopted, UN had only 50 members – Western bias? VDPA reaffirmed 1993

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 Decolonization in 1960 allowed the UN to gain momentum again on the HR front: UN membership doubled, and developing countries became the largest voting bloc in the GA; they stimulated HR rights activities. ICCPR: International Covenant on Civil and Political Rights (1966, EIF 1976) plus 1st OP (individual complaints), 2nd OP (death penalty) ICESCR: International Covenant on Economic, Social and Cultural Rights (1966, EIF 1976) – OP (complaints) in progress ICERD: International Convention on the Elimination of Racial Discrimination (1965, EIF 1969) CEDAW: Convention on the Elimination of all Forms of Discrimination Against Women (1979, EIF 1981) plus OP (individual complaints) CAT: Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984, EIF 1987) plus OP (domestic and international visiting mechanisms) CRC: Convention on the Rights of the Child (1989, EIF 1990) Plus OP-Children and armed conflict, OP-sale of children ICCP and ICESCR (1966, in force 1976) - Political disagreements led to the drafting of two separate documents - ESCR covers HR in areas like education, food, housing and health care - ICCPR safeguards rights like R2 life, liberty, fair trial, freedom of movement, thought, conscience, peaceful assembly, family, privacy, and prohibits slavery, torture et al, arbitrary arrest, imprisonment for debt CERD (force 1969) CEDAW (force 1981): to ensure women have equal access to political and public life as well as to education, health and employment. CAT (force 1987): includes a definition of torture, specific measures to prevent and prosecute ICRC (force 1990): persons under 18 unless under law, majority is attained earlier; to protect children from practices that endanger their welfare, like economic exploitation, trafficking, illicit use of drugs, sexual exploitation and abuse. - Only Somalia and the US have not ratified it

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. MWC: International Convention on Migrant Workers –(1990, EIF 2003) CRPD: International Convention on the Rights of Persons with Disabilities (2006) CPED: International Convention on Protection of All Persons from Enforced Disappearances (2006) IC Migrant Workers (force 2003) - Unfortunately, the States that have accepted obligations are mostly those that export migrant workers, not those who host them; this diminishes effectiveness and scope Two new treaties adopted at the end of 2006: - IC on the Rights of the Persons with Disabilities - IC on Protection of All Persons from Enforced Disappearances

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

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. There are seven human rights treaty bodies that monitor implementation of the core international human rights treaties. 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) Committee on the Rights of the Child (CRC) Committee on Migrant Workers (CMW) These committees examine the reports of governments on how they fulfil their HR obligations. This involves “constructive dialogue” over 2 or 3 days and results in “concluding observations” from the relevant committee. Some do fact-finding missions and country visits. Relying on TB to better HR protection remains unsatisfactory, especially since the monitoring of governments’ compliance with their treaty obligations largely depends on self-reporting and “parallel reporting” (formerly known as “shadow reporting”) from NGOs. In the context of a State’s stubborn refusal to cooperate, TBs have only the power of publicity. (Comment on utility of naming and shaming – backlash). Difficult to test impact of the treaties, as the translation of principles is subtle and progressive, and often implies the internalisation of norms (See SPIRAL MODEL). But concrete improvements such as changes in national policies, laws and practice, e.g.: decriminalisation of sexual activity between men in Northern Ireland, abolition of corporal punishment in all schools, ban on interrogation techniques against suspected terrorists (wall-standing, hooding, white noise) in the UK. Are important, since provide framework against which we can legitimately judge the HR performance of governments; without TBs, would be too easy to dismiss HR as nonsense or imposition of foreign values.

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 Non-respect undermines entire international human rights protection system

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 Created in 1993 by UNGA resolution HQ in Geneva and offices in New York (850 staff) located in Geneva with liaison office in NY Mandated To promote and protect the enjoyment and full realization, by all people, of all rights established in the Charter of the United Nations and in international human rights laws and treaties. Also supports the work of the United Nations human rights mechanisms, such as the Human Rights Council and the core treaty bodies set up for monitoring State Parties' compliance with international human rights treaties 11 country offices - Established through negotiations and approval of host country - Role : monitoring, public reporting, provision of technical assistance, and the monitoring and development of long-term national capacities to address HR issues - Angola, Bolivia, Cambodia, Colombia, Guatemala, Mexico, Nepal, the Occupied Palestinian Territories, Kosovo (Serbia), Togo, and Uganda 8 regional offices - Promote and protect human rights in countries of their region, including by working with regional bodies, such as the African Union. - Offices cover East Africa (Addis Ababa), Southern Africa (Pretoria), Central America (Panama City), Latin America (Santiago de Chile), South East Asia (Bangkok), the Middle East (Beirut), and the Pacific (Suva) + Regional Centre for Human Rights and Democracy for Central Africa in Yaoundé, Cameroon. 400 international HR officers serving in 17 UN peace missions - OHCHR seeks to integrate human rights in all components of UN Peace Missions with four priorities: ensuring justice and accountability in peace processes; preventing and redressing human rights violations; building capacities and strengthening national institutions; and mainstreaming human rights in all UN programmes - Afghanistan, Burundi, the Central African Republic, Côte d'Ivoire, Democratic Republic of the Congo, Ethiopia/Eritrea, Georgia/Abkhazia, Guinea Bissau, Haiti, Iraq, Liberia, Sierra Leone, Somalia, Sudan, Tajikistan, Timor-Leste, and the UN Office for West Africa (Senegal) 10 Human Rights Advisers Experts deployed by OHCHR to the field to support UN Country Teams following the request of UN Resident Coordinators. They follow up and analyze the human rights situation in the country in which they serve and advise the UN Resident Coordinator and the UN Country Team as a whole on strategies to build or strengthen nations' capacities and institutions in promoting and protecting human rights. They engage with national actors (governments and civil society) on how to best promote and implement human rights standards. Ecuador , Georgia , Guyana , Indonesia, Kyrgyzstan, Maldives, Pakistan, Rwanda, Somalia, Sri Lanka; and national staff in Country Teams in Azerbaijan, FYR Macedonia, and Russia. High Commissioner (Louise Arbour, Canadian, since 2004) is the principal human rights official of the United Nations. She heads OHCHR and spearheads the United Nations' human rights efforts.

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. (regular budget in process of doubling to about $80 million/yr, now at $66 million, with $100 million/yr voluntary contributions).

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 UNGA has 6 committees - First Committee (Disarmament and International Security Committee) is concerned with disarmament and related international security questions; - Second Committee (Economic and Financial Committee) is concerned with economic questions; - Third Committee (Social, Humanitarian and Cultural Committee) deals with social and humanitarian issues; - Fourth Committee (Special Political and Decolonization Committee) deals with a variety of political subjects not dealt with by the First Committee, as well as with decolonization; - Fifth Committee (Administrative and Budgetary Committee) deals with the administration and budget of the United Nations; and - Sixth Committee (Legal Committee) deals with international legal matters HR addressed in the Social, Humanitarian and Cultural Affairs Committee, aka 3C Annual session (October-November) Discusses HR, advancement of women, the protection of children, indigenous issues, the treatment of refugees, the promotion of fundamental freedoms through the elimination of racism and racial discrimination, and the promotion of the right to self- determinatio Social advancement, women, children, racism, refugees, questions (eg torture, death penalty) and situations (eg. Iran, Burma) Also addresses important social development questions such as issues related to youth, ageing, disabled persons, family, crime prevention, criminal justice, and drug control. Resolutions adopted by HRC must be approved here before going to UNGA

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 Established in 1946 to “weave the international legal fabric that protects our fundamental rights and freedoms” Proposal: to be composed of 9 members, who would have acted as independent experts; rejected by governments Decide CHR to be composed of governmental representatives from 18 elected UN member States; expanded to 32 in 1967, and later to 53 Abolished in 2006 and replaced with 47-member HRC CHR responded to shifts in the international system: - The first years focused on standard setting, which it accomplished through the drafting of the UDHR and the international covenants - With the arrival of members from developing countries in the 1960s, issues of racial discrimination in South Africa and the Israeli occupation came to the forefront of its agenda. - With the rise of military dictatorships in South America and subsequent human rights violations (e.g., in Chile and Argentina), the Commission adapted in the 1980s to include public and confidential discussion of such country situations. The CHR developed a series of “special procedures” for monitoring violations through individuals acting as country or thematic experts. More on this in the HRC section. Why was the Commission abolished? - Around 2001, the perception began to grown that a bloc of States was shielding themselves from being condemned by the CHR. It was alleged that they sought to be elected in order to table procedural motions and swap votes to insulate themselves from condemnation - Perception of the CHR’s collective failure to act in certain situations: repression in Chechnya, slavery in Sudan, but also the US-UK invasion of Iraq and the HR situation in Afghanistan. - Hence criticism that CHR had become selective in its examination and that the selection was being operated by the same governments that ought to be condemned (“foxes were guarding the chicken coup”

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

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

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 (ie focus on some developing countries for political reasons)

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

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 …

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 Established in March 2006; replaces the CHR Is subsidiary organ of the UNGA, but first reports to 3C (see below) Innovations - More sustained scrutiny: HRC sits throughout the year in short blocks for no less than 10 weeks (rather than in one 6-week block) - Less selectivity: With UPR, each country will be reviewed for its compliance with its HR obligations and commitments Fewer foxes?: Election process for membership is more difficult… UPR mechanism - Under UPR, the HRC will “undertake a universal periodic review, based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all State” - i.e., the HRC will assess the HR records of all States, both members and non-members of the Council, in a peer review exercise. - Goal is to improve HR situation on the ground; help States fulfill their obligations and commitments; enhance capacity; share best practices - UPR will start this year in 2008 - 48 countries will be reviewed in 2008 (16 countries * 3 UPR working groups in April, May, December) - Each reviewed country undergoes a 3 hour session, which will result in an outcomes report that includes recommendations and summaries. - Participation of the reviewed country that submits a “national report”; of OHCHR in preparing summaries of UN reports to inform the review; of Member States who will facilitate the review; of NGOs who provide input and can attend; Observer States can participate in the review… The HRC assumed the Special Procedures of the CHR - Special procedures are either an individual (called “Special Rapporteur”, “Special Representative of the Secretary-General”, “Representative of the Secretary-General” or “Independent Expert”) or a working group usually composed of five members (one from each region) . - Mandate-holders serve in their personal capacity, work pro bono, and are independent in order to fulfill their functions in all impartiality - Mandate holders are called on to examine, monitor, advise and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations worldwide, known as thematic mandates. There are currently 28 thematic and 10 country mandates * Here you could hand out the list - Various activities can be undertaken by special procedures, including conducting country visits, responding to individual complaints, conducting studies, providing advice on technical cooperation at the country level, and engaging in general promotional activities. - They also correspond with governments through urgent appeals and letters of allegation. These communications often generate responses from governments (a 46% response rate in 2005). Even if the letters are ignored, the process of putting governments on notice that the UN’s watchdogs have been alerted has led to releases and changes in policy. The HRC also inherited the Complaint procedures (1503 procedure) - Pursuant to Council resolution 5/1, the Complaint Procedure is being established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. - It retains its confidential nature, with a view to enhancing cooperation with the State concerned. The procedure, inter alia, is to be victims-oriented and conducted in a timely manner. - Two distinct working groups - the Working Group on Communications and the Working Group on Situations - are established with the mandate to examine the communications and to bring to the attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms. - There are a number of criteria for the WGs to decide if the communications are admissible, e.g., they must not be politically-motivated or be based exclusively on reporting from the mass media. Challenges (e.g., new numbers making coalitions of like-minded difficult, credibility, relations with New York…)

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

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

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

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.

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.

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

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

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

Challenges Sovereignty vs Responsibility Cultural relativism vs Universality Human rights as politics Rights without remedies Collective vs individual Non-state actors Security vs freedom? Defamation of religions vs free speech

Questions?