FLEUR VAN LEEUWEN
The United Nations (UN): a promotor and protector of human rights? Most of my students snort at the suggestion. Their scepticism is understandable. They see a world in which wars rage on, refugees search for shelter by the millions, police violence often goes unpunished, political opponents are arrested, and countries unilaterally attack other countries without repercussions. The UN may serve as a forum for political debates but it does nothing for the realisation of human rights on the ground, they argue. Are they right? In order to answer that question one should first know what the UN has done in the past 70 years to further the human rights of all. Below I provide a concise overview of the activities the UN has undertaken to promote and protect human rights. For reasons of space and time, I have limited myself to the mechanisms established by the UN that have as their sole purpose the furtherance of human rights; therefore I do not discuss, for example, resolutions or measures adopted by the UN Security Council or the UN General Assembly (UN GA). Although this overview will not provide the reader with an answer as to whether the UN de facto realises human rights (which would require much more research than has currently been done), it does provide a better insight into the institutional measures the UN has taken to further the human rights of all. I first have a brief look at the history of the UN’s involvement with human rights, going back to the 1940s when the Organisation was established. I then highlight the main features of the system in place to monitor the human rights situation in member states of the UN. Finally, I shed some light on a number of challenges that the system is facing.
1. HOW IT ALL BEGAN
Proudly, Eleanor Roosevelt presented the UN General
Assembly with the Universal Declaration of Human Rights (UDHR) on 10 December 1948. She noted that it could well become ‘the Magna Carta of all mankind’. She was right in the sense that little over half a century later the document forms the basis of our modern understanding of human rights and has been translated into over 460 languages. The UDHR paved the way for a multitude of regional and international human rights treaties, and made it so that human rights are no longer considered only as philosophical notions of right and wrong, but also as norms of – legally binding – international law.
It was nearly the case that there was no UDHR at all – or at least not in the 1940s. The original proposal for the new global organisation worked out by the United States, the United Kingdom, the Soviet Union, and China at Dumbarton Oaks in 1944, mentioned human rights only in one of the last chapters, and in only one place, where it said that ‘the Organisation should facilitate solutions of international economic, social and other humanitarian problems and promote respect for human rights and fundamental freedoms’. The United Kingdom and the Soviet Union had opposed an American proposal to insert into the Charter a statement of principle about respecting human rights, and a Chinese proposal to write into the Charter the principle of equality of all races was opposed by the United States (Burgers 474). Burgers notes that far stronger language on human rights was included in the Charter at the San Francisco Conference in 1945 mainly thanks to two sets of actors: Latin American States (excluding Argentina, which was pro-Axis and therefore not invited to the Conferences) and NGOs from the United States (Burgers 475).
Article 1 (3) of the UN Charter stipulates that one of the purposes of the international organisation is:
‘To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.
Throughout the Charter more references to human rights are to be found, albeit not in a single chapter or in an annex (as was originally the idea). What these human rights actually entailed, however, remained at the time unclear. No international document existed that stipulated the human rights of all. The Economic and Social Council (ECOSOC), established under chapter X of the UN Charter, was given the task of setting up a Commission on Human Rights (henceforth: the Commission). This body was – like the ECOSOC – to be made up of states’ representatives whose first task would be to draft a list enumerating the ‘universal human rights’. Although there had been some discussion as to whether the document should be a declaration (not legally binding for signatory states) or a treaty (legally binding), it was decided to opt for the non-binding version. Morsink notes that at the first session of the Commission, the two Superpowers – the United States and the Soviet Union – took the initiative against a treaty (Morsink 15). It was the Canadian John Humphrey – at that time the newly appointed director of the UN Secretariat’s Division on Human Rights – who provided the first draft of the UDHR. He grounded his first draft in existing material and in the instructions he received from the first session of the Commission and from the ECOSOC. Morsink observes that Humphrey borrowed freely from these documents, and that this explains why social, economic, and cultural rights were included in the UDHR (Morsink 5). After seven drafting stages the UDHR was adopted by the UN GA on 10th December 1948. To this day 10th December is celebrated worldwide as human rights day.
The idea at the time was that the Declaration, once adopted, could easily be transposed into a treaty, making the promotion and protection of the rights binding upon the states that ratified the document. This, however, turned out not to be that easy. The cold war and conflicting ideologies prevented the acceptance of a ‘Universal Human Rights Treaty’. The Soviet Union and like-minded states insisted on including economic and social rights (so called second generation rights) in the Treaty, arguing that ‘first generation rights’ like the freedom of expression and the right to life were futile if these were not accompanied by, for example, a right to education and a right to health. The US and like-minded states, on the other hand, argued that economic and social rights were not real ‘rights’, in the sense that individuals could not be said to be entitled to services such schooling and health care. Surely, they argued, these matters concerned the state budget and so fell within the discretion of the state. It took many years for the UN to overcome this impasse. Whereas the Soviet Union wanted a single treaty enumerating both first and second generation rights, the US wanted a treaty only listing first generation rights, or – alternatively – two separate treaties. It was the latter proposal of two treaties that ultimately found its way through and hence in 1966 the UN GA adopted two human rights Covenants: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The two Covenants, together with the UDHR, are known as the international ‘Bill of Rights’, the foundation of our modern understanding of human rights.
2. HUMAN RIGHTS TREATY MONITORING
2.1 Human rights treaty bodies
Although a very important step – for the first time in history there now existed two legally binding international documents that listed the human rights of all regardless of race, nationality, language, religion, etc. – the efforts of the UN might have been futile if it had not ensured a system of human rights monitoring. Instead of leaving it up to states to ensure compliance with the norms and obligations deriving from the two treaties, the UN opted for the establishment of treaty monitoring bodies to oversee the implementation of and compliance with these human rights treaties by states parties. Both 1966 Covenants stated that a Committee would be established to monitor the compliance of states parties with their obligations under the Covenant. The Committees were to be made up of independent experts – hence not state representatives – in the field of human rights. The ICCPR is monitored by the Human Rights Committee (not to be confused with the Human Rights Council, about which more later) and the ICESCR by the Committee on Economic, Social and Cultural Rights. Today, there are nine of these treaty monitoring bodies – or treaty bodies – overseeing the implementation by states parties of nine core UN human rights treaties. Besides the two aforementioned bodies there are the:
Committee on the Elimination of Racial Discrimination (CERD;
Convention on the Elimination of All Forms of Racial Discrimination of 1965);
Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW;Convention on the Elimination of All Forms of Discrimination Against Women of 1979);
Committee Against Torture (CAT; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984);
Committee on the Rights of the Child (CRC; Convention on the Rights of the Child of 1989);
Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW; Convention on the Protection of the Rights of Migrant Workers and Members of their Families of 1990);
Committee on the Rights of Persons with Disabilities (CRPD; Convention on the Rights of Persons with Disabilities of 2006);
Committee on Enforced Disappearance (CED; Convention for the Protection of all Persons from Enforced Disappearance of 2006).
Each treaty body generally consists of 18 members, with exceptions of the CAT (10 members), the CED (10 members), the CMW (14 members), and the CEDAW (23 members). The members are elected by the states parties of the respective human rights treaty and the composition of the treaty body needs to reflect the five regions of the world (the UN employs a division of five regional groups for elections of their treaty and charter-based bodies. The regional groups – dating back to the cold war period – are: Asia, Eastern Europe, Africa, Latin America and Caribbean, and Western Europe and Others. In 2011, the Asia Group was renamed Asia-Pacific). Generally, the treaty bodies convene two or three times a year.
Each of these Committees have a set of procedures at their disposal to monitor the compliance of states parties with their obligations under the respective human rights treaties. Arguably the most important one – because of its perpetual character – is the reporting procedure. Each treaty denotes that states, upon ratifying the respective human rights treaty, need to hand in a report with the corresponding treaty body indicating the human rights situation in their jurisdiction and explaining how they ensure and respect the rights laid down in the human rights treaty. Every three or four years (depending on the human rights treaty) states have to hand in another report. These reports typically refer to laws that have been adopted, studies conducted, and measures taken, in order to give effect to the human rights treaty in question. The Netherlands, for example, noted in its last report to the CEDAW that:
‘Women’s image in the media impacts on gender norms in society. In order to discuss this issue, on 4 and 5 July 2013, the Council of Europe and the Dutch government held an international gender equality conference entitled ‘‘Media and the Image of Women’’.’
‘Services provided under the Work and Care Act have made it easier to combine work and care. In 2008, the Fourth Balkenende Government published a fact-finding study of work and care schemes (Work and Care Act and the Working Hours (Adjustment) Act (WAA)). The study led to the drafting of the modernisation of leave and working hours adjustment schemes bill, which was sent to the House of Representatives for approval.’ (CEDAW)
The treaty body will examine the report and provide the state party with a list of questions, called a ‘list of issues’. Non-governmental organisations (NGOs) in the meantime are free to hand in their own ‘shadow reports’ presenting their views on the compliance of the state party with the human rights treaty in question. A delegation of the state party and the Committee will then meet in Geneva (where the Office of the UN High Commissioner for Human Rights is located) and have what is called a ‘constructive dialogue’ in which they discuss the implementation of the human rights treaty in the state party and the hurdles it faces in doing so. The treaty body then sets itself to writing ‘concluding observations’ which characteristically start with some positive points and subsequently denote the ‘areas of concern’.
In its concluding observations of 2009, for example, the Human Rights Committee commented on the Netherlands’ adoption of the Equal Treatment in Employment (Age Discrimination) Act of May 2004, which bans age discrimination in employment, occupation and vocational training. In the same observations it also expressed concern at the finding of the Data Protection Authority that recordings of telephone conversations involving professionals who have a confidentiality duty, especially lawyers, are not safeguarded in a manner that preserves lawyer-client confidentiality. It noted that:
‘The State party should apply the law on wire and telephone tapping in a manner which is compatible with article 17 of the Covenant and should ensure the exclusion of communications protected by the privilege of confidentiality from tapping.’ (HRC)
These concluding observations are not binding. Treaty bodies provide the state in question with recommendations. During the next reporting cycle, the state party will have to inform the treaty body of how it addressed these recommendations. This reporting procedure (fig. 1) thus offers a way for the treaty body to monitor the human rights situation in a state party on a continuous basis.
Figure 1. (OHCHR)
2.3. Individual and inter-state complaints
Besides the reporting procedure, there is the possibility for individuals to file complaints about human rights violations in states parties with the treaty bodies. But unlike the reporting procedure, the complaint procedure is optional. This means that states have to expressly allow for this function of the respective treaty body. For most treaties the complaint procedure is arranged in a separate protocol and only when a state ratifies this protocol can individuals complain about human rights violations that that state has allegedly committed. The treaties or protocols list a specific set of requirements that must be met for a complaint to be admissible. One of these is the exhaustion of domestic remedies: an individual can only take his complaint to a treaty body after he has tried all possible revenues for justice at a domestic level. This means that if an individual could, for example, still go to a state’s Supreme Court the complaint is inadmissible. Once a complaint has been found admissible, the treaty body will look at the merits of the case: has there actually been a violation of the treaty in question? The complaint procedure does not result in a judgment. After all, the treaty body is not composed of judges and cannot make binding decisions. But the treaty body does provide an answer on the merits in a ‘view’. This view will state whether human rights have been violated or not and if so what is expected of the state party in question. The treaty body may request the state to pay damages, but it can also ask it to take certain actions, like reviewing a certain law or training police officers. For example, in the case of Bamboeram et al. versus Suriname of 1985, concerning the ‘December Murders’ by the Surinam military regime in Fort Zeelandia in Paramaribo on 8 December 1982, it found that the victims were arbitrarily deprived of their lives contrary to article 6 (1) of the ICCPR and it urged the State party, Suriname, to:
‘take effective steps (i) to investigate the killings of December 1982; (ii) to bring to justice any persons found to be responsible for the death of the victims) (iii) to pay compensation to the surviving families; and (iv) to ensure that the right to life is duly protected in Suriname.’
Although there is also the possibility for inter-state complaints under the respective treaties and protocols, this procedure has never been used. This is not particular to the UN: also within the Council of Europe system the number of inter-state complaints before the European Court of Human Rights is next to nothing.
2.4. In situ investigations
Finally there one other procedure deserves mentioning: the in situ investigating possibilities of the CAT and CEDAW, allowing the treaty bodies to travel to a state party and examining an alleged large scale and/or systematic human rights violation on site. The results of their examination are not public, but can be published if the state in question allows it.
3. HUMAN RIGHTS COUNCIL
3.1. From Commission to Council
Besides the treaty bodies, there is a political body whose sole task it is to monitor human rights compliance by states party to the UN: the Human Rights Council (HRCouncil or Council). Unlike the treaty bodies, the Council is not made up of independent experts, but of state representatives. And – contrary to the treaty bodies – the Council was not established by a treaty but by a resolution of the General Assembly. The Council is considered to be a Charter-based body, which is interesting because no reference to the Council is found in the Charter. The reason for this is that the Council is a relatively new organ of the UN. It was established only in 2006. The HRCouncil is often referred to as a Charter-based body because it succeeds the former Commission of Human Rights (the body which, amongst other things, developed the text of the UDHR) which was established by the ECOSOC, a body which was established by the UN Charter.
Human Rights Council (UN)
In 2005, the former UN Secretary General, Kofi Annan, published his report ‘In Larger Freedom: towards development, security, and human rights for all’ in which he spoke of abolishing the Commission on Human Rights. He argued that the Commission had become ineffective in the face of massive scale human rights violations and was too politicised. He foresaw a body that would be more decisive and that operated on the same level as the two other Councils of the UN: the Security Council and the ECOSOC. This, he held, would finally give human rights the importance in UN policy that they deserved (until then the Commission had been reporting to the ECOSOC instead of directly to the GA). He also wanted the future Human Rights Council to be: smaller in terms of members than the Commission; standing (meaning that it could meet whenever required to do so – unlike the Commission which met only once a year); and located in Geneva, where the OHCHR is situated. Members for the Council should be directly elected by the GA and not by the ECOSOC, he proposed, and he was in favour of a peer review function in which countries comment and criticise each others’ human rights policies. Whereas proposals like these can easily take years to be realised, Annan’s recommendations were swiftly accepted and in 2006 the Commission on Human Rights was abolished and the Council established.
The Council consists of 47 member states of the UN and is therefore not much smaller then the former Commission, which consisted of 53 members. But unlike the Commission, the Council meets three times a year and can convene ad hoc in special sessions when deemed necessary. Special sessions were, for example, summoned with regards to the human rights situation in the Syrian Arab Republic; the human rights situation in Iraq in light of abuses committed by the Islamic State in Iraq and the Levant and associated groups; and with regards to the terrorist attacks and human rights abuses and violations committed by the terrorist group Boko Haram. Although the HRCouncil cannot make (legally) binding decisions, it can, inter alia, adopt resolutions, establish fact finding missions, and make recommendations.
3.2. Special rapporteurs and working groups
The Human Rights Council has various procedures at its disposal to monitor the human rights situation in UN member states. Like the former Commission, it has thematic and country rapporteurs and working groups that inform the Council about the status of human rights either in specific countries or with regards to certain topics. The thematic mandates cover, inter alia, the right to health, human rights and transnational corporations, and arbitrary detention. The country mandates focus, among others, on the Islamic Republic of Iran, Belarus, and Myanmar. The special rapporteurs – independent experts – inform the Council annually about the research they have conducted on the topic, their country visits, and the complaints they have received. The UN Special Rapporteur on Violence against Women (VAW) has for example in the past presented studies on the due diligence obligation to prevent VAW and the way in which the UN has addressed VAW in the past twenty years.
The Council can also receive complaints, either from individuals or NGOs. Unlike the procedure before the treaty bodies, the compliant procedure of the Human Rights Council is confidential and needs to concern a pattern of gross human rights violations. A compliant should, inter alia, not be politically motivated or contain abusive language. Nor should it be exclusively based on reports disseminated by mass media, or have been dealt with by another international or regional human rights body (like a UN treaty body or the European Court of Human Rights). A Working Group on Communications needs to declare the complaint admissible after which the Working Group on Situations examines the plausibility of a large scale human rights violation in a member state. Only after these two working groups accept the complaint does it end up on the agenda of the Council, who will examine the complaint behind closed doors. The Council cannot reach a judgement on the matter – they are not judges – but rather they enter into a dialogue with the member state concerned and discuss the situation and possible solutions. One of these could be financial or technical assistance from the UN. If the state in question is unwilling to cooperate with the Council, the latter can start consideration of the matter in public, meaning that it will address the issue in its regular sessions and make (public) recommendations about the respective human rights situation. This naming and shaming functions in that sense as a punitive measure for the uncooperative state.
3.4. Universal Periodic Review
The most innovative of the Council’s procedures is without doubt the Universal Periodic Review (UPR) (fig. 2). In cycles of four and a half year’s states must present a report to the Council denoting the human rights situation in their territory and the measures they have taken to ensure and respect the human rights of all. Unlike the reporting procedure of the treaty bodies – which only applies to the states party to those treaties – all member states of the UN are bound to hand in reports to the Council. The reviews are conducted by the UPR Working Group which consists of the 47 members of the Council and any UN Member State that wishes to take part in the discussion with the reviewed State. Each review is assisted by groups of three states, known as ‘troikas’, who serve as rapporteurs. They make a report of the interactive dialogue – the ‘outcome report’ – which provides a summary of the actual discussion and therefore consists of the questions, comments, and recommendations made by States to the country under review, as well as the responses by the reviewed State. Before the report is adopted, the reviewed state has the opportunity to make preliminary comments on the recommendations, choosing to either accept or note them. Both accepted and noted recommendations are included in the report. After this has been done the report has to be adopted at a plenary session of the HRCouncil.
As is clear, the UPR is not intended as a legal procedure in which the member state under review is either cleared of all allegations or found guilty of human rights violations. Rather it is intended as a forum in which member states are treated as each others’ equals and are able to freely discuss each others’ human rights policies and problems.
Figure 2: UPR cycle (worldcoalition.org)
4. FINAL REMARKS, CHALLENGES AND PROSPECTS
The human rights landscape has changed a lot since the day that Eleanor Roosevelt presented the UN GA with the UDHR. An elaborate system of human rights monitoring has been put into place by the UN in the past seventy years, with most outcome reports – be it views, resolutions, fact finding reports, or concluding observations – freely available to the public on the internet (see ohchr.org). NGOs can find themselves supported in their domestic causes by the work of the UN human rights bodies and use the reports of these bodies to confront their own governments. When, for example, the CEDAW told the Netherlands in their 2001 concluding observations that it noted:
‘(…) with concern that, in the Netherlands, there is a political party represented in the Parliament that excludes women from membership, which is a violation of article 7 of the Convention.’
And that it recommended the state party to:
‘take urgent measures to address this situation, including through the adoption of legislation that brings the membership of political parties into conformity with its obligations under article 7.’ (CEDAW)
A Dutch coalition of women’s rights NGOs, headed by the Clara Wichmann Test Case Fund (a case triggered by the Government’s refusal to act on these recommendations), started legal proceedings against both the State of the Netherlands and the political party in question. The case went up to the Supreme Court (the ‘Hoge Raad’) which referred to the CEDAW in its judgment underscoring the direct application of the Convention and ruling that this meant that the state should take effective measures in order to ensure that the political party would grant passive voting rights to women, provided that these measures would infringe as little as possible upon the fundamental rights of the party in question.
Besides providing ammunition for NGOs, the work of the human rights bodies may also directly bring about justice when states comply by themselves with, for example, views or recommendations of human rights experts. Although not enough research has been conducted on the overall compliance of states parties with views and recommendations of the treaty bodies, there are numerous examples in which states parties adhere to the recommendations and requests of human rights bodies. The idea that an individual could go to an international body and complain about a (sovereign) state and obtain justice was hard to imagine in the 1940s. In that sense the human rights system has come a long way.
Yet, there is also still plenty of room for improvement. The UN human rights system faces numerous challenges, ranging from a lack of resources (states parties are required to pay an annual fee but many do not do so on time or at all); a serious backlog in state reports and views (some of the treaty bodies cannot cope with the number of state reports and views that require handling); reservations by states parties to provisions of the human rights treaties; non-implementation of human rights treaties by states parties; to a backlash to the notion of human rights and human rights monitoring by treaty bodies spurred by neoconservative governments.
Concurrently, states party to the UN human rights treaties are complaining about the vast number of reports they have to hand in each year to the different human rights bodies. A country like the Netherlands, which is a party to most of the treaties, needs to hand in seven state reports to seven different treaty bodies, as well as another one to the HRCouncil (for the UPR), every three to four years. If one adds to this the number of complaints that require response; the visits to Geneva and New York for the ‘constructive dialogues’ and UPR sessions; and the required translation and publication of all views and concluding observations, one can easily imagine the discontentment of states parties with their reporting burden.
Over the past decades several proposals have been made to address these challenges, but except for a ‘common core document’, none of the ideas have been put into practice. In April 2014, the UN GA adopted resolution 68/268 on strengthening the ‘Treaty Body system’. In it the UN GA decides, inter alia:
‘to establish a limit of 10,700 words for each document produced by the human rights treaty bodies, and further recommends that word limits also be applied for relevant stakeholders’
And also decides:
‘to establish word limits for all State party documentation submitted to the human rights treaty body system, including State party reports, of 31,800 words for initial reports, 21,200 words for subsequent periodic reports and 42,400 words for common core documents, as endorsed by the human rights treaty bodies, and calls upon the treaty bodies to set a limit on the number of questions posed, focusing on areas seen as priority issues to ensure the ability of States parties to meet the aforementioned word limits’
And requests the UN Secretary General to support states parties by
‘(p)roviding direct assistance to States parties at the national level by building and developing institutional capacity for reporting and strengthening technical knowledge through ad hoc training on reporting guidelines at the national level.’ (UN GA)
We have yet to see whether these recommendations will bring about the required change. But for now the UN human rights system is operating at full steam, with a new UPR session held in January this year, a HRCouncil session scheduled for February, and a rotation of treaty bodies occupying the building of the OHCHR in Geneva every month of the year. The UN may not have been able to prevent the outbreak of another war after 1945 or prevent more human rights catastrophes, but it did not remain idle either. Whether the action of the UN in the field of human rights can be considered a success I leave up to the reader to decide.
Worked as a researcher and lecturer at the Netherlands Institute of Human Rights and at the former Clara Wichmann Institute – expert centre on women and law Since 2009 she has been lecturing human rights at universities throughout Turkey
For her research see: independent.academia.edu/FleurVanLeeuwen
Burgers, J.H., ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century’, (1992) Human Rights Quarterly 14 (4), p. 447 – 477.
Morsink, J., The Universal Declaration of Human Rights: Origins, Drafting, and Intent, (1999) Philadelphia: University of Pennsylvania Press.
CEDAWa, State Report Netherlands of 2014, UN Doc. CEDAW/C/NLD/6.
CEDAWb, Concluding observations on the Netherlands of 2001, UN Doc. CEDAW A/49/38.
HRC, Concluding observations on the Netherlands of 2009, UN Doc. CCPR/C/NLD/CO/4.
UN GA, Resolution 68/268, UN Doc. A/RES/68/268.