The Law, Policy and Politics of the un Human Rights Council

International Studies
in Human Rights
VOLUME 112

The titles published in this series are listed at brill.com/ishr

The Law, Policy and Politics of the

un Human Rights Council
By

Bertrand G. Ramcharan

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data

Ramcharan, B. G., author.
The law, policy and politics of the UN Human Rights Council / By Bertrand G. Ramcharan.
pages cm. -- (International studies in human rights ; v. 112)
Includes bibliographical references and index.
ISBN 978-90-04-28902-4 (hardback : alk. paper) -- ISBN 978-90-04-28903-1 (e-book) 1. United Nations
Human Rights Council. 2. Human rights monitoring. I. Title.
K3241.R36 2015
341.48--dc23
2015005528

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To Spaj,
A flower

Contents
Forewordix
Jiri Toman
Prefacexi
Introduction: Mandates, Roles, Organization of the Human Rights
Council1
I

The Council and the Modern Human Rights Law of the Charter13

II

Human Rights as International Constitutional Law38

III Public Policy Role55

IV

Human Rights and Security Challenges65

The National Responsibility to Protect Human Rights83

VI

National Protection in Practice? The ibsa Countries121

VII International Cooperation: The Universal Periodic Review150

VIII International Legislation163
IX Prevention182
X Fact-Finding203
XI Protection229
XII Justice253
Conclusion268
Appendix A271
Appendix B276
Bibliography284
Index286

Foreword
It is a great pleasure for me to write these few lines about this important book,
written not only by a leading scholar and practitioner of international human
rights and humanitarian law, but also one of my longstanding friends. We met
first at the International Institute of Human Rights in Strasbourg, France, in
1973, when he attended the courses and the training centre for human rights
teachers. He earned the Diploma of the Hague Academy of International Law
and the Diploma of the International Institute of Human Rights in the same
summer of 1973.
At Strasbourg I had the honour of teaching a course on international
humanitarian law, in which he participated, and we have remained dear friends
ever since. It was also at Strasbourg that he was identified for entry into the
then Division of Human Rights of the un Secretariat and he went on to perform the functions of United Nations High Commissioner in 20032004. He
tells people that I was his teacher but I have always considered him a partner
in the cause of the worldwide implementation of international human rights
and humanitarian law.
The un Human Rights Council is the leading human rights organ of the
United Nations and, ten years after it was established, it has attracted commendation as well as severe criticism. Its universal periodic review is widely
recognized as a valuable process of international cooperation to advance the
universal implementation of human rights. However, it has been criticized for
not acting effectively and fairly in dealing with situations of shocking violations of human rights in many parts of the world. It is an international organ
with the highest responsibilities to uphold universal values but, at the same
time, it is a political organ of United Nations Member States, and it shows the
characteristics of both a values-based body and a theatre of political drama.
It is the merit of this book to present the Human Rights Council in terms of
its mandates, roles and organization while seeking to remind the membership
and the international community at large that the Council must be anchored
in the modern human rights law of the Charter of which the author gives a
superb presentation. The book then proceeds to make the case that human
rights are part of international constitutional law and this is exceedingly
important at a time when universal values have come under stress from various quarters including from terrorist formations. The argument of the book is
essentially that the modern human rights law of the Charter and the human
rights provisions of international constitutional law must take precedence for
everyone, everywhere.

Foreword

The book discusses the nexus between human rights and contemporary
security challenges and then shows that the Human Rights Council is playing
a useful public policy role. Well wishers of the Council should highlight this
public policy role so that it becomes better known.
The book then presents a central concept of international human rights law,
namely, the national responsibility to protect and proceeds to discuss this in
relation to three leading countries, the ibsa countries. Implicit in these two
chapters is the reasoning that the Human Rights Council must insist on the
national responsibility of all countries to protect human rights.
The Chapter on International Cooperation through the Universal Periodic
Review shows the Council performing one of its very valuable roles while the
chapter on International Legislation shows the Council continuing the process of standard setting. It offers a policy framework for future legislative activity. The chapter on Prevention shows that the Council has been seeking to
advocate prevention but that it has itself not yet developed a significant operational role of prevention. It will be essential for the Council, in the future, to
develop a stronger preventive role.
The Chapter on Fact-finding shows the Council, through it special procedures, the High Commissioner for Human Rights and Commissions of Inquiry
at the forefront of gathering and publicizing information on gross violations of
human rights. The chapters on Protection and Justice show that the Council
aspires for protection and justice but still has a long way to go before it can be
said to be an effective protection body or that it is applying the principle of
justice.
The author argues eloquently that justice must become the lode star of the
Council in the future. The Council must strive to overcome its political instincts
and to develop its instincts for justice.
I commend this invaluable work to the community of international human
rights and humanitarian lawyers and to the human rights community at large.
Jiri Toman
Professor of International Law
Santa Clara University

Preface
Next to the General Assembly and the Security Council, the Human Rights
Council is the main human rights organ of the United Nations. It is in composition and practice a political body which, nevertheless, has a values-based mandate to advance the implementation of the human rights standards of the
world community and to help provide protection in cases of need. There is
both controversy and consensus within the Council. Adherence to international human rights law can help the Council overcome its contradictions.
Can one speak of the Law of the Human Rights Council? We believe one
can. In the first place there is institutional and procedural law. In the second
place, there is substantive law governing the Council, as set out in the United
Nations Charter, in the resolution of the General Assembly establishing the
Council and subsequent decisions of the Assembly empowering it. In the third
place the Council has activities that unquestionably lead to the progressive
development of law through broad-based agreement and practice. In the
fourth place, in a rapidly evolving world of unprecedented threats and challenges, the Human Rights Council should contribute to policies and norms for
human survival on the foundations of human rights values. In the fifth place,
the Council engages in significant drafting of new or modernised human rights
norms.
One can see the dynamic law-development role of the Council in its resolution 23/19, adopted without a vote, on 13 June, 2013, in which the Council considered that States should integrate their obligation under international
human rights law into their national legislation in order to ensure that State
action at the national level is effectively directed towards the promotion and
protection of all human rights and fundamental freedoms. The Council considered that State action aimed at the full realization of human rights and fundamental freedoms at the national level is made most effective by drawing up
and putting into practice national policies in conformity with obligations
under international human rights law. The Council recognized the importance
of developing, strengthening and evaluating relevant disaggregated national
data as a useful tool for drawing up and assessing the impact of national policies aimed at the enjoyment of human rights and fundamental freedoms.
At the same session of the Council, it adopted resolution 23/17, without a vote, recognizing the role of independent national institutions for
the promotion and protection of human rights in working together with
their Governments to ensure full respect for human rights at the national
level, including by contributing to follow-up actions, as appropriate, to the

xii

Preface

r ecommendations resulting from the international human rights mechanisms.

The Council encouraged national institutions for the promotion and protection of human rights to continue to play an active role in preventing and
combating all violations of human rights as enumerated in the Vienna
Declaration and Programme of Action and relevant instruments.1
In a path-breaking work some years ago on the Development of International
Law by the Political Organs of the United Nations, Professor (later Judge and
President of the International Court of Justice) Rosalyn Higgins , demonstrated
the law-clarifying and law-creating role of political organs such as the un
General Assembly.2 Resolutions of the Human Rights Council such as those
cited above help clarify and progressively develop the national responsibility
to protect human rights and contribute to shaping the international human
rights law of the future. This book will offer an initial presentation on the lawclarifying and law-creating roles of the Human Rights Council, drawing on
resolutions adopted either without a vote or by overwhelming majorities in the
Council. There are significant normative and policy pronouncements of the
Council in resolutions adopted through majority or plurality votes. We shall
leave these aside in this work.
A crucial issue of international law and policy is the extent to which international human rights law is binding on the Human Rights Council and its
Members. General Assembly resolution 60/251 establishing the Human Rights
Council reaffirmed some of the essential foundations of international human
rights law, including the Purposes and Principles of the United Nations Charter,
the Universal Declaration of Human Rights, the Vienna Declaration and
Programme of Action (1993), the International Covenant on Civil and Political
Rights (1966) and the International Covenant on Economic, Social and Cultural
Rights (1966).
The General Assembly particularly noted that while the significance of
national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all
human rights and fundamental freedoms. The General Assembly emphasized
the responsibility of all States, in conformity with the un Charter, to respect
human rights and fundamental freedoms for all, without distinction of any
1 See on this, A.Wolman, Welcoming a New International Human Rights Actor? The
Participation of Subnational Human Rights Institutions at the un, 20 Global Governance,
2014, pp. 437457.
2 R. Higgins, The Development of International Law by the Political Organs of the United Nations
(Oxford, oup, 1963).

Preface

xiii

kind. The World Conference on Human Rights (1993) had earlier adopted similar positions.
It will be recalled in this regard, using the terms of a classic presentation of
the fundamental rules of international law, that a state is obliged to respect the
human rights of persons subject to its jurisdiction: (a) that it has undertaken to
respect by international agreements; (b) that states generally are bound
torespect as a matter of customary international law; and (c) that it is required
to respect under general principles of law common to the major legal systems
of the world.3
A state violates international customary law if, as a matter of state policy, it
practices, encourages, or condones: (a) genocide; (b) slavery or slave trade; (c)
the murder or causing the disappearance of individuals; (d) torture or other
cruel, inhuman or degrading treatment or punishment; (e) prolonged arbitrary
detention; (f) systematic racial discrimination, or (g) a consistent pattern of
gross violations of internationally recognized human rights.4
The law concerning remedies for breaches of human rights is summarised
in the same source as follows: (1) A state party to an international human
rights agreement has, as against any other state party violating the agreement,
the remedies generally available for violation of an international agreement, as
well as any special remedies provided by the agreement. (2) Any state may
pursue international remedies against any other state for a violation of the customary international law of human rights. (3) An individual victim of a violation of a human rights agreement may pursue any remedy provided by that
agreement or by other applicable international agreements.5 The Human
Rights Council and its Members must be faithful to these precepts of international law if it is to be respected in the world as a principled human rights body
animated by principles of protection and justice.
As will be shown in this work, the Human Rights Council does perform a
significant public policy role, particularly in alerting the international community to new problems and challenges. However, the pulse that beats in the
Council is a political one. On the one hand this imparts ameasure of realism to
the Council. On the other hand, it can lead the Councilto pursue policies of
dialogue and cooperation instead of principled stancesagainst gross violations
of human rights. To be fair, there are those Member States who believe that
even when Governments are involved in gross violations of human rights the
3 Restatement of the Foreign Relations Law of the usa, Second Edition, American Law Institute
(1965) Article 701.
4 Ibid, Article 702.
5 Ibid, Article 703.

xiv

Preface

attitude of the international community should not be to condemn but to

help them overcome problems. For the victims of criminal violations of
human rights or for their loved ones, the wish for justice is strong. Law, Policy
and Politics thus commingle in the Council, many times to the detriment of
protection and justice. This will be the subject of inquiry in this book.

Introduction: Mandates, Roles, Organization of the

Human Rights Council
General Assembly resolution 60/251 establishing the Human Rights Council
reaffirmed the essential foundations of international human rights law and
reiterated its commitment to strengthen the United Nations human rights
machinery with the aim of ensuring effective enjoyment by all of all human
rights civil, political, economic, social and cultural rights, including the right
to development. There are thus good legal foundations for the work of the
Human Rights Council, along with the General Assemblys endorsement of the
responsibility to protect.
The General Assembly also indicated significant policy premises for the
Council. The General Assembly affirmed the need for all States to continue
international efforts to enhance dialogue and broaden understanding among
civilizations, cultures and religions. It recognized that the promotion and protection of human rights should be based on the principles of cooperation and
dialogue and aimed at strengthening the capacity of Member States to comply
with their human rights obligations for the benefit of all human beings.
The core mandate given to the Council was to promote universal respect for
the protection of all human rights and fundamental freedoms for all, without
distinction of any kind. The Council was mandated to address situations of
violations of human rights, including gross and systematic violations, and
make recommendations thereon. The General Assembly decided that the
work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and
cooperation with a view to enhanced promotion and protection of all human
rights.
The Council was further mandated to promote human rights education
and learning as well as advisory services, technical assistance and capacity
building, to be provided in consultation and with the consent of the Member
States concerned; to serve as a forum for dialogue on thematic issues; to make
recommendations to the General Assembly for the further development of
international law in the field of human rights; to promote the full implementation of human rights obligations undertaken by States and follow-up of the
goals and commitments related to the promotion and protection of human
rights emanating from United Nations conferences and summits; to contribute, through dialogue and cooperation, towards the prevention of human
rights violations and respond promptly to human rights emergencies; to work
koninklijke brill nv, leiden, 2015|doi 10.1163/9789004289031_002

Introduction

in close cooperation in the field of human rights with governments, regional

organizations, national human rights institutions, and civil society; to make
recommendations with regard to the promotion and protection of human
rights; and to undertake a universal periodic review of the fulfilment by each
State of its human rights obligations and commitments.

Composition and Method of Selection of Members

The resolution of the General Assembly establishing the Council called for its
members to be elected individually, instead of by regional slates. In practice,
regional slates have continued without being so deemed. Countries aspiring to
membership are expected to uphold the highest standards in the promotion
and protection of human rights, to cooperate fully with the Council and to be
reviewed under the universal periodic review mechanism during their term of
membership. When electing members of the Council, Member States voting in
the un General Assembly are required to take into account the contribution of
candidates to the promotion and protection of human rights and their voluntary pledges and commitments. The General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership
in the Council of a member of the Council that commits gross and systematic
violations of human rights.
Candidate countries also, in most instances, make voluntary pledges upon
seeking membership. So far, the Council itself has not sought to follow up on
these pledges. This is theoretically possible under the system of universal periodic review which sees every un Member State being reviewed once every four
and a half years.

Agenda, Methods of Work and Rules of Procedure

The agenda and framework for the Councils work were agreed in 2007 keeping
in mind the principles of universality, impartiality, objectivity, non selectivity,
constructive dialogue and cooperation, predictability, flexibility, transparency,
accountability, balance, inclusiveness/comprehensiveness, gender perspective
and implementation and follow-up of decisions.6 The agenda consisted of the
6 See on this Luis Alfonso de Alba, First President of the Human Rights Council, Ambassador
and Permanent Representative of Mexico to the United Nations, Geneva, Reviewing the
Process: Challenges in the Creation of the Human Rights Council, in L. Muller (Ed.), The First

Introduction

following ten items: (a) Organizational and procedural matters, (b) Annual
report of the United Nations High Commissioner for Human Rights and reports
of ohchr and the Secretary-General, (c) Promotion and protection of all
human rights, civil, political, economic, social and cultural rights, including
the right to development, (d) Human rights situations that require the Councils
attention, (e) Human Rights Bodies and Mechanisms, (f) Universal Periodic
Review, (g) Human rights situation in Palestine and other occupied Arab territories, (h) Follow-up and implementation of the Vienna Declaration and
Programme of Action, (i) Racism, racial discrimination, xenophobia and
related forms of intolerance, follow-up and implementation of the Durban
Declaration and Programme of Action, and (j) Technical assistance and
capacity-building.
At least two issues are worth commenting upon regarding this agenda.
First, at the request of the un General Assembly the former Commission on
Human Rights had an item on its agenda since 1967 dealing with violations of
human rights world-wide. Under this item, any Member of the Commission
or Member of the un, or accredited ngo could raise any situation or issue
of alleged gross violations of human rights. This annual debate allowed the
possibility of reviewing human rights violations world-wide. A deliberate decision was taken by the majority of members of the Council not to include
such an item on its agenda, although item (d) in the preceding paragraph could
be said to cover this. However, a specific item was included on the agenda on
the human rights situation in Palestine and other occupied Arab territories.
Israel and its supporters have consistently protested that this amounts to inequitable and discriminatory treatment.
In putting in place the institution-building measures that it brought into
force on 19 June 2007, the Council repeatedly placed a premium on the principles of cooperation and genuine dialogue aimed at strengthening the capacity
of Member States to comply with their human rights obligations. The Council
recalled that, in accordance with ga resolution 60/251 which established the
Council, the methods of work should be transparent, impartial, equitable, fair,
pragmatic, lead to clarity, predictability and inclusiveness. In this spirit the
Council called for briefings on prospective resolutions or decisions; Presidents
open ended information meetings on resolutions, decisions and other related
business, and informal consultations on proposals convened by the main
sponsors. In a hotly contested provision the Council stated that proposers of
a country resolution have the responsibility to secure the broadest possible
365 Days of the United Nations Human Rights Council. Published by the Swiss Ministry of
Foreign Affairs, 2007, pp. 4855.

Introduction

support for their initiatives (preferably 15 members) before action is taken. It is

not clear whether this is an advisory or a mandatory provision. The Council
signalled that there was need for early notification of proposals; early submission of draft resolutions; early distribution of all reports; and restraint in resort
to resolutions in order to avoid the proliferation of resolutions.
The Bureau of the Council consists of a President and four vice-presidents
one of whom serves as rapporteur. The Bureau deals with procedural and organizational matters. The Bureau is required to share regularly the contents of its
meetings through a timely summary report. This leaves open the question
whether the Bureau, together with the President, could react to urgent situations requiring immediate action such as the despatch of fact-finders to brief
the Council. As regards the role of the President the document states that
Presidents open-ended information meetings on resolutions, decisions and
other related business shall provide information on the status of negotiations
on draft resolutions/decisions so that delegations can gain a birds eye point of
view on the status of such drafts. These consultations shall have a purely informational function, combined with information on the extranet, and shall be
held in a transparent and inclusive manner. They shall not serve as a negotiating forum.
The rules of procedure provide that the Office of the un High Commissioner
for Human Rights shall act as Secretariat for the Council. This is without prejudice to the right of the High Commissioner as representative of the Secretary
General to make statements on any matter before the Council.
The Council meets regularly throughout the year and must schedule no
fewer than three sessions per year, including a main session for a total duration
of no less than ten weeks. The Council is based in Geneva. A High Level
Segment of the Council is held once a year during the main session of the
Council. It is followed by a General Segment in which delegations that did not
participate in the High Level Segment can make general statements.
Special sessions of the Council may be held at the request of a member of
the Council with the support of one third of the membership of the Council.
With a council membership of 47 this means that 15 other members must support the request. The special session must be convened as soon as possible
after the formal request and in principle not earlier than two working days
and not later than five working days after the formal receipt of the request.
The duration of the special session shall not exceed three days (six working
sessions) unless the Council decides otherwise.
In principle the Council applies the rules of procedure established for the
Main Committees of the General Assembly as applicable. The participation of,
and consultation with, observers, including States that are not members of the

Introduction

Council, the specialized agencies, other inter-governmental organizations

and national human rights institutions, as well as ngos, are based on arrangements and practices observed by the former Commission on human rights
including ecosoc resolution 1996/31. The participation of national human
rights institutions is based on arrangements and practices agreed upon by the
former commission including its resolution 2005/74.

The Complaints Procedure

In the new arrangements that came into force on 19 June 2007, the Council
established a confidential complaints procedure for dealing with allegations of
consistent patterns of gross and reliably attested violations of all human rights
and fundamental freedoms occurring in any part of the world and under any
circumstances. The procedure was largely based on ecosoc resolution 1503
(XLVIII) as revised by ecosoc Resolution 2000/3. The revisions were professedly intended to ensure that the complaint procedure was impartial, objective,
efficient, victims-oriented and conducted in a timely manner. The confidential
nature of the procedure was retained with a view to enhancing cooperation
with the state concerned.
The admissibility criteria required that a communication not refer to a case
that appears to reveal a consistent pattern of gross and reliably attested violations of human rights already being dealt with by a special procedure, a treaty
body or other United Nations or similar regional complaints procedure in the
field of human rights. This inadmissibility criterion is new and its rationale is
not entirely clear.
The procedure calls for two working groups 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.
Both working groups are invited, to the greatest possible extent, to work on the
basis of consensus and, in the absence of consensus, decisions shall be taken
by simple majority of the votes. The first working group is a Working Group on
Communications (wgc) consisting of five members of the Human Rights
Council Advisory Committee, appointed for three years with the possibility of
one renewal. The Chairperson of the Working Group on Communications is
expected, together with the Secretariat, to undertake an initial screening of the
communications based on the admissibility criteria before transmitting them
to the states concerned. Manifestly ill-founded or anonymous communications are to be screened out by the Chairperson and not transmitted to the
State concerned.

Introduction

The members of the wgc decide on the admissibility of the communication and assess the merits of the allegations of violations, including whether
the communication alone or in combination with other communications
appear to reveal a consistent pattern of gross and reliably attested violations of
human rights and fundamental freedoms.
The Working Group on Situations (wgs) consists of five representatives
of member states of the Council, one appointed by each regional group.
Their appointment is for one year with the possibility of one renewal if the
state concerned is a member of the Council. Members of the wgs are to serve
in their personal capacity. The wgs is required, on the basis of the information
and recommendations provided by the wgc, to present the Council with a
report on consistent patterns of gross and reliably attested violations of human
rights and fundamental freedoms and to make recommendations to the
Council on the course of action to take. All decisions of the wgs shall be duly
justified and indicate why recommended action has been put forward or the
consideration of a situation has been discontinued. Decisions of the wgs
to discontinue consideration of a situation should be taken by consensus,
if possible, or by simple majority of the votes. Both working groups are to
meet at least twice a year for five working days each period in order to promptly
examine the communications, including replies of states thereon as well
as the situations which the council is already seized of under the complaint
procedure.
States concerned are expected to cooperate with the procedure and to make
every effort to provide substantive replies in one of the United Nations official
languages to any of the requests of the working groups of the Council. The
State must make every effort to provide a reply not later than three months
after the request has been made. If necessary this deadline may be extended at
the request of the State concerned.
The Working Group on Situations occasionally refers a situation to the plenary Council for discussion in confidential sessions.

Subsidiary Bodies: The Advisory Committee

In replacement of the former Sub-Commission on the promotion and protection of human rights the Council has established an Advisory Committee composed of 18 experts acting in their personal capacity to work as a think-tank to
the Council and under its direction. All member states of the un can propose
or endorse candidates from their own region. When selecting their candidates,
States should consult their national human rights institutions and civil society

Introduction

organizations and, in this regard, include the names of those supporting their
candidates.
The aim is to ensure that the best possible expertise is made available to the
Council. For this purpose technical and objective requirements for the submission of candidatures have been indicated. These include:
Recognized competence and experience in the field of human rights;
High moral standing;
Independence and impartiality.
Individuals holding decision-making positions in Government or in any other
organization or entity which could give rise to a conflict of interest with the
responsibilities inherent to the mandate are to be excluded. Elected members
of the Committee should act in their personal capacity.
The principle of non-accumulation of human rights functions at a time is to
be respected. The Council elects the members of the Advisory Committee, in
secret ballot, from the list of candidates whose names have been presented in
accordance with the agreed requirements.
The list of candidates is closed two months prior to the election date.
The Secretariat should make available the list of candidates and relevant
information to member States and to the public at least one month prior to
their election.
Due consideration should be given to gender balance and to an appropriate
representation of different civilizations and legal systems. The geographic distribution is as follows: African States: 5; Asian States: 5; Eastern European
States: 2; Latin American and Caribbean States: 3; Western European and other
States: 3. The members of the Advisory Committee serve for a period of three
years. They are eligible for re-election once.
The function of the Advisory Committee is to provide expertise to the Council
in the manner and form requested by the Council, focusing mainly on studies
and research-based advice. Further, such expertise shall be rendered only upon
the latters request, in compliance with its resolutions and under its guidance.
The Advisory Committee should be implementation-oriented and the scope
of its advice should be limited to thematic issues pertaining to the mandate of
the Council; namely promotion and protection of all human rights.
The Advisory Committee shall not adopt resolutions or decisions. The
Committee may propose within the scope of the work set out by the Council,
for the latters consideration and approval, suggestions for further enhancing
its procedural efficiency, as well as further research proposals within the scope
of the work set out by the Council.

Introduction

The Council shall issue specific guidelines for the Advisory Committee
when it requests a substantive contribution from the latter and shall review all
or any portion of those guidelines if it deems necessary in the future.
The Advisory Committee convenes up to two sessions for a maximum of 10
working days per year. Additional sessions may be scheduled on an ad hoc
basis with prior approval of the Council.
The Council may request the Advisory Committee to undertake certain
tasks that could be performed collectively, through a smaller team or individually. The Committee will report on such efforts to the Council.
Members of the Advisory Committee are encouraged to communicate intersessionally, individually or in teams. However, the Committee may not establish subsidiary bodies unless the Council authorizes it.
In the performance of its mandate, the Advisory Committee is urged to
establish interaction with States, national human rights institutions, ngos and
other civil society entities in accordance with the modalities of the Council.
Member States and observers, including States that are not members of the
Council, the specialized agencies, other intergovernmental organizations and
national human rights institutions, as well as non-governmental organizations
shall be entitled to participate in the work of the Advisory Committee based
on arrangements, including Economic and Social Council resolution 1996/31
and practices observed by the Commission on Human Rights and the Council,
while ensuring the most effective contribution of these entities.

Expert Mechanism on the Rights of Indigenous People

In resolution No. 36, adopted at its sixth session on 14 December, 2007, the
Human Rights Council decided to establish a subsidiary expert mechanism to
provide the Council with thematic expertise on the rights of indigenous peoples in the manner and form requested by the Council. The mechanism focuses
mainly on studies and research-based advice and may suggest proposals to the
Council for its consideration and approval, within the scope of its work as set
out by the Council. The mechanism reports annually to the Council on its work.
The expert mechanism consists of five independent experts with due regard
to experts of indigenous origin. The mechanism invites the Special Rapporteur
of the Council on indigenous peoples and a member of ecosocs Permanent
Forum on Indigenous Peoples to attend and contribute to its annual meeting.
The members of the expert mechanism serve for a three-year period and
may be re-elected for one additional period. Within its mandate, the expert
mechanism on the rights of indigenous peoples should determine its own

Introduction

methods of work, although the expert mechanism may not adopt resolutions
or decisions.
The mechanism meets once annually for up to five days. Its sessions may be
a combination of open and private meetings. The annual meetings of the
expert mechanism are open to the participation, as observers, of States, United
Nations mechanisms, bodies and specialized agencies, funds and programmes,
intergovernmental organizations, regional organizations and mechanisms in
the field of human rights, national human rights institutions and other relevant national bodies, academics and experts on indigenous issues, nongovernmental organizations in consultative status with the Economic and
Social Council; the meeting shall also be open to indigenous peoples organizations and non-governmental organizations, whose aims and purposes are in
conformity with the spirit, purposes and principles of the Charter of the United
Nations, based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996, and practices observed by the former Commission
on Human Rights, through an open and transparent accreditation procedure
in accordance with the rules of procedure of the Human Rights Council, which
will provide for the timely information on participation and consultation with
States concerned.

Forum on Minority Issues

By resolution No. 15, adopted at its sixth session on 28 September, 2007, the
Human Rights Council established a Forum on minority issues to provide a
platform for promoting dialogue and cooperation on issues pertaining to persons belonging to national or ethnic, religious and linguistic minorities, and
entrusted it with the task of providing thematic contributions and expertise to
the work of the Councils independent expert on minority issues. The Forum is
expected to identify and analyse best practices, challenges, opportunities and
initiatives for the further implementation of the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities;
The Forum is open to the participation of States, United Nations mechanisms, bodies and specialized agencies, funds and programmes, intergovernmental organizations, regional organizations and mechanisms in the field of
human rights, national human rights institutions and other relevant national
bodies, academics and experts on minority issues and non-governmental organizations in consultative status with the Economic and Social Council; the
Forum shall also be open to other non-governmental organizations whose
aims and purposes are in conformity with the spirit, purposes and principles of

10

Introduction

the Charter of the United Nations, based on arrangements, including Economic

and Social Council resolution 1996/31 of 25 July 1996, and practices observed by
the Commission on Human Rights, through an open and transparent accreditation procedure in accordance with the Rules of Procedure of the Human
Rights Council, which will provide for timely information on participation and
consultations with States concerned;
The Forum meets annually for two working days allocated to thematic
discussions. The President of the Human Rights Council appoints for each
session, on the basis of regional rotation, and in consultation with regional
groups, a chairperson of the Forum elected from among experts on minority
issues, nominated by members and observers of the Council; the chairperson,
serving in his/her personal capacity, shall be responsible for the preparation of
a summary of the discussion of the Forum, to be made available to all participants of the Forum.
The Councils independent expert on minority issues is expected to guide
the work of the Forum and prepare its annual meetings, and to include in his/
her report thematic recommendations of the Forum and recommendations
for future thematic subjects, for consideration by the Human Rights Council.

The Social Forum

By resolution No. 13 adopted at its sixth session on 28 September, 2007, the

Human Rights Council decided to preserve the Social Forum of the former
Sub-Commission as a unique space for interactive dialogue between the
United Nations human rights machinery and various stakeholders, including
grass-roots organizations, and underlined the importance of coordinated
efforts at national, regional and international levels for the promotion of social
cohesion based on the principles of social justice, equity and solidarity as well
as to address the social dimension and challenges of the ongoing globalization
process.
The Social Forum meets annually, focusing on questions relating to the
eradication of poverty in the context of human rights; capturing best practices
in the fight against poverty in the light of grass-roots presentations to the Social
Forum; and the social dimension of the globalization process. It meets for
three working days, in order that it may devote: (a) One day to thematic discussions on poverty and human rights and the work of the international human
rights mechanisms in the field of economic, social and cultural rights and the
right to development in relation to poverty, in order to receive feedback from
civil society to provide to different mechanisms; (b) One day to discussion on

Introduction

11

the social dimension of the globalization process; (c) One day to an interactive
debate with relevant thematic procedures mandate-holders of the Human
Rights Council on issues related to the topics of the Social Forum, and to formulate conclusions and recommendations to be presented to relevant bodies
through the Human Rights Council.
The Social Forum is open for participation of representatives of United
Nations Member States and all other interested stakeholders such as intergovernmental organizations, different components of the United Nations system,
especially mandate-holders of thematic procedures and mechanisms of the
human rights machinery, regional economic commissions, specialized agencies and organizations in particular the United Nations Development
Programme, the World Bank, the International Monetary Fund and the World
Trade Organization, as well as representatives designated by human rights
national institutions and non-governmental organizations in consultative
status with the Economic and Social Council and other non-governmental
organizations, in particular newly emerging actors such as small groups and
rural and urban associations from the North and the South, anti-poverty
groups, peasants and farmers organizations and their national and international associations, voluntary organizations, youth associations, community
organizations, trade unions and associations of workers, as well as representatives of the private sector, regional banks, and other financial institutions
and international development agencies, based on arrangements, including
Economic and Social Council resolution 1996/31 of 25 July 1996, and practices
observed by the Commission on Human Rights, while ensuring the most effective contribution of these entities.

ngos and the Human Rights Council

The rules of procedure of the Council include the following provisions applicable to the participation of ngos.
The Council shall apply the rules of procedure established for committees of the General Assembly, as applicable, unless subsequently
otherwise decided by the Assembly or the Council, and the participation
of and consultation with observers, including States that are not members of the Council, the specialized agencies, other intergovernmental
organizations and national human rights institutions, as well as nongovernmental organizations, shall be based on arrangements, including
Economic and Social Council Resolution 1996/31 of 25 July 1996, and

12

Introduction

practices observed by the Commission on Human Rights, while ensuring

the most effective contribution of these entities.7
The package of measures on institution building approved by the Human
Rights Council on 18 June, 2007 contained other provisions concerning the participation of ngos. The principles concerning the Universal Periodic Review
called for ensuring the participation of all relevant stakeholders, including
ngos and national human rights institutions in accordance with ga resolution 60/251 and ecosoc resolution 1996/31, as well as any decisions that the
Council may take in this regard. In the review the Council should take into
consideration any credible and reliable information provided by other relevant stakeholders. Observer States can participate in the review, including the
interactive dialogue. Other relevant stakeholders (ngos for example) can
attend but not take part in the conduct of the review in the Working Group of
the whole. In the phase of the adoption of the outcome of the review, Other
relevant stakeholders will have the opportunity to make general comments
before the adoption of the outcome by the plenary.
On the process of the selection and appointment of special procedures
mandate-holders ngos may nominate candidates. The new Human Rights
Council Advisory Committee is urged, in the performance of its mandate, to
establish interaction withngos and other civil society entities in accordance
with the modalities of the Council.
The new Complaints Procedure provides for the author of the communication and the state concerned to be informed of the proceedings at key stages.

National Human Rights Institutions and the Council

National Human Rights Institutions have enhanced their participation in the

Human Rights Council over their participation in the former Commission on
Human Rights. In the Commission they were allocated one or part of a meeting to address the Commission and did so with much substance. Now they
participate in larger numbers, speak not only at a dedicated session but may
take the floor different items on the agenda, and may even participate when
their countrys national report is being considered under the Universal Periodic
Review process. They may submit documentation including reports and policy
papers for the consideration of members of the Council. They may also submit
written statements to the Council, of up to 2000 words in length. They may
organize parallel events on items of relevance to the work of the Council.
7 un Human Rights Council, Institution Building, Presidents Text, June 13 2007.

chapter I

The Council and the Modern Human Rights Law

of the Charter

Introduction

The Human Rights Council is an organ of the United Nations and must follow
the modern human rights law of the Charter. One can say that it does so partly,
but it is in essence a political organ with a values-based mandate. We should
look to it, in the future, to anchor its work more in the modern human rights
law of the Charter. In this chapter we offer a statement of this governing law.
The United Nations Charter is an international treaty8 and, under international treaty law, its provisions are to be interpreted according to the texts and
with regard, if needed, to the object and purpose of the treaty as discussed at
the time of drafting. The sources of international law enumerated in Article 38
of the Statute of the International Court of Justice, which is an integral part of
the Charter, suggest that un Charter provisions may represent, or give rise to,
norms of customary international law; may represent, or give rise to, general
principles of international law. Treaties, customary international law, and
general principles of international law recognized the world over are thus the
sources of obligations in the international legal system. Judicial decisions of
high international courts like the International Court of Justice or the writings
of leading scholars or practitioners might help us understand the meaning of
particular provisions of the Charter.
But can one leave the matter there? Since the Charter was drafted, legal
norms of international public policy have emerged and have been identified.
The International Court of Justice has invoked the concept of obligations erga
omnes, that is to say of obligations not only to particular countries but to the
world as a whole. In the United Nations Millennium Declaration, adopted on
8 September 2000 by Heads of State and Government the world over, world
leaders reaffirmed their faith in the United Nations and in the Charter as indispensable foundations of a more peaceful, prosperous and just world. They recognized that, in addition to their separate responsibilities to their individual
8 We leave aside, for the moment, the issue whether the Charter might be considered as international constitutional law as some scholars have asserted. This topic is discussed in Chapter
II below.

koninklijke brill nv, leiden, 2015|doi 10.1163/9789004289031_003

14

chapter I

societies, they had a collective responsibility to uphold the principles of human

dignity, equality and equity at the global level.
They considered certain fundamental values to be essential to international
relations in the twenty-first century including freedom, equality, solidarity,
tolerance, respect for nature, and shared responsibility. On human rights,
specifically, they pledged that they would spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally
recognized human rights and fundamental freedoms, including the right to
development; to respect fully and uphold the Universal Declaration of Human
Rights. Five years later, in the Summit Outcome Document adopted by the un
General Assembly, again at the highest levels, world leaders pledged to uphold
the responsibility to protect (rtp), particularly against genocide, ethnic cleansing, crimes against humanity, and war crimes. The rtp entails prevention,
response and rebuilding.
Do developments such as these leave the Charter untouched, or might one
conclude that, depending on the solemnity of particular pronouncements,
and by whom made, they are giving contemporary interpretations to some
Charter provisions and to the legal responsibilities of Member States thereunder? The un Human Rights Committee, in the Judge Case, upheld the principle
that provisions of the International Covenant on Civil and Political Rights
must be interpreted in keeping with contemporary circumstances and not
necessarily those at the time of its drafting.9 Is it possible that some parts of
solemn statements such as the un Millennium Declaration might give rise to
instant customary international law? In such an instance, what would be the
relevance of such an occurrence to the interpretation and application of
related un Charter provisions.
As we shall see later in this chapter, Article 56 of the un Charter commits
Member States to take joint and separate actions to uphold the human rights
provisions in Article 55. In the un Millennium Declaration, Heads of State and
Government recognized their duty to the worlds people, especially the most
vulnerable, and in particular the children of the world. Can one conclude
that provisions of the Millennium Declaration help clarify the content of the
obligations of Member States under Articles 1, 2, 55 and 56 of the Charter?
In this chapter we shall focus on the human rights obligations of Member
States under the Charter. We shall submit that the meaning of the Charter
provisions on human rights must be given modern interpretations, keeping in
9 Roger Judge v. Canada, Communication No. 829/1998, un Doc. CCPR/C/78/D/829/1998
(2003). Available at University of Minnesota Human Rights Library, http://www1.umn.edu/
humanrts/undocs/829-1998.html.

The Council and the Modern Human Rights Law of the Charter

15

mind the subsequent emergence of new norms of customary international

law including possibly through the creation of instant customary law, the
emergence of new general principles of international law, the identification of
the content of international human rights law by the International Court of
Justice or other authoritative human rights bodies, the identification of norms
of international public policy, and the distillation by the International Court of
Justice of obligations erga omnes. We offer a view of the un Charter as living
law, absorbing contemporary elucidations, interpretations and applications.
We advocate a position that, beyond the identification of particular obligations under treaty law, customary law, or general principles of law, un Charter
provisions on human rights have to be given their contemporary meanings in
an evolving international society.10 We advance the doctrine of incorporation
in the living law of the Charter.11 To begin, we revisit the basis of obligation in
international law.
I

The Basis of Obligation in International Law

The principle of the supremacy of international law over municipal law has
been included in the following provisions either drafted or subsequently
accepted by the International Law Commission: Articles 13 and 14 of the Draft
Declaration on Rights and Duties of States; Articles 27, 46, 53, 64 of the Vienna
Convention on the Law of Treaties (1969), and the ilcs draft Article 3 on State
Responsibility.
The Preamble of the Draft Declaration on the Rights and Duties of States
affirmed that the States of the world form a community governed by international law. According to Article 13 of the Draft Declaration, Every State has the
duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. According to
Article 14, Every State has the duty to conduct its relations with other States in
accordance with international law and with the principle that the sovereignty
of each State is subject to the supremacy of international law.12 This principle
10

11
12

In an insightful pronouncement in the South West Africa cases of 1966, Judge Jessup
noted that the standard to be applied by the Court must be of the contemporary international community.
Judge P. Jessup, South West Africa cases, icj Reports (1966), p. 17.
Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, un
Doc. A/CN.4/2, 15 December, 1948, p. 43.

16

chapter I

was based on postulate 4 of the International Law of the Future, published by

the Carnegie Endowment for International Peace in 1944.
The Commission approved these articles without any debate on their
substance. The principles contained in them were taken as self-evident by
the Commission. Mr Alfaro, in the draft he prepared, which was used as
the basis of discussion in the Commission, commented on these provisions as
follows: Article 14 deals with the authority of international law including
everything agreed upon in the Charter of the United Nations and in the Statute
of the World Court, which are international treaty law. Article 14 proclaims
that international law is obligatory for all States.13 In the written comments
of governments, the principle was accepted and, on the whole, taken as
self-evident.14
Sir Gerald Fitzmaurice, in his course of lectures at the Hague Academy of
International Law on The General Principles of International Law Considered
from the Standpoint of the Rule of Law, took as his starting point Article 14 of
the International Law Commissions draft on Rights and Duties of States, which
he commented on as follows:
This provision enunciates the important principle of the subordination
of the sovereignty of each State to the supremacy of international law
in short, of the sovereignty of the rule of law in the international field
which might indeed be called the first and greatest principle of international law. From it all the rest follows: without it there may be customs,
practices, habits, courtesiesbut there is no law.15
Sir Gerald proceeded to demonstrate that this principle applied automatically,
and that at the back of the principle, the ultimate source or basis of legal
obligation in international law rested in the explanation of law as a social
necessity.
Professor Hans Kelsen, while making some emendations on the actual
formulation of this principle by the International Law Commission, accepted
it as part of general international law. The duty laid down in Article 14, he felt,
is implied in the concept of international law. The concept of international
13
14
15

Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States, un
Doc. A/CN.4/2, 15 December, 1948, p. 43.
Ibid. See the written comments of Mexico, p. 86, the United Kingdom, p. 86, Venezuela,
p. 88.
Sir Gerald Fitzmaurice, Q.C., The General Principles of International Law Considered
from the Standpoint of the Rule of Law, 92 rcadi (1957, II), p. 6.

The Council and the Modern Human Rights Law of the Charter

17

law implies the duty of every State to behave in all its relations in accordance
with international law.16
He explained this more fully elsewhere:
There is, above the commonwealth described as the State, a legal order
which defines the respective scopes of power of individual States by
forbidding the encroachment of one into the sphere of anothera legal
order which regulates the relations of States by means of rules equally
applicable to all. International law does this but only when its supremacy over the legal systems of individual States is recognized, whenit is
contemplated as a legal system standing above the States, i.e. when the
legal systems of individual States are regarded as component parts of a
universal legal order.17
Principle I of the Principles of International law Recognized in the Charter of
the Nuremberg Tribunal and in the Judgment of the Tribunal, as codified by
the International Law Commission, stated that any person who committed an
act which constitutes a crime under international law is responsible therefor
and liable to punishment. In the commentary to Principle 1, the Commission
stated that the general rule underlying it was that international law may
impose duties on individuals directly without any interposition of internal law.
In its commentary to Principle II, which affirmed that the fact that internal
law does not impose a penalty for an act which constitutes a crime under
international law does not relieve the persons who committed the act from
responsibility under international law, the Commission pointed out that The
principle that a person who has committed an international crime is responsible therefor and liable to punishment under international law, independently
of the provisions of internal law, implies what is commonly called the supremacy of international law over national law.18
The Commissions draft on jus cogens, which became Articles 53 and 64 of
the Vienna Convention on the Law of Treaties, was also clearly based on the
assumption that international law overrides municipal law in matters of international public policy.

16

H. Kelsen, The Draft Declaration of Rights and Duties of States, 44 a.j.i.l. (1950),
pp. 259276.
17 Der Begriff der Souveranitat und die Theorie des Volkerrechts (1920), cited in
H. Lauterpacht, Private Law Sources and Analogies of International Law (1933), p. 55.
18 i.l.c. Report 1950, para. 102 of commentary to Principle II, ybilc 1950, Vol.II, p. 375.

18
II

chapter I

Human Rights Obligations under the United Nations Charter

The Purposes of the United Nations as stated in Article 1 of the Charter are,
among others, to achieve international cooperation 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, language, sex, or religion. The
un is to be a centre for harmonizing the action of nations in the attainment
of these common ends. Article 55 of the Charter gives the United Nations a
mandate to promote universal respect for and observance of human rights and
fundamental freedoms for all. In Article 56, all members pledged themselves to
take joint and separate action in cooperation with the Organization for the
achievement of the purposes set forth in Article 55.
In Resolution 2625 (xxv) of 24 October 1970, the un General Assembly
adopted the Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation Among States in accordance with the
Charter of the United Nations. This declaration is widely considered a codification of the legal principles of the United Nations Charter. The General Assembly
affirmed that States have the duty to cooperate with one another, irrespective
of the differences in their political, economic and social systems, in the various
spheres of international relations in order to maintain international peace
and security and to promote international stability and progress, the general
welfare of nations and international cooperation free from discrimination
based on such differences. To this end: states shall co-operate with other states
in the maintenance of international peace and security; states shall co-operate
in the promotion of universal respect for, and observance of, human rights
and fundamental freedoms for all, and in the elimination of all forms of racial
discrimination and all forms of religious intolerance; states shall conduct
their international relations in the economic, social, cultural, technical and
trade fields in accordance with the principles of sovereign equality and nonintervention; states members of the United Nations have the duty to take joint
and separate action in cooperation with the United Nations in accordance
with the relevant provisions of the Charter.
Furthermore, states should co-operate in the economic, social and cultural
fields as well as in the field of science and technology and for the promotion of
international cultural and educational progress. States should co-operate in
the promotion of economic growth throughout the world, especially that of
the developing countries.19
19

ga Resolution 2625 (xxv), 24 October, 1970.

The Council and the Modern Human Rights Law of the Charter

19

Goodrich, Hambro and Simons, in their Commentary on the Charter,

acknowledged that the United Nations was not intended to have the powers of
a government; rather, its function was conceived as that of serving as a means
of promoting cooperation between states in finding solutions to common
problems and of achieving maximum support from members for the work of
the Organization.20
On the legal content of Article 56 of the Charter, Goodrich, Hambro
and Simons pointed out that, while the phrase in cooperation with the
Organization, did not mean that recommendations of un organs become
binding, it did mean that members are obligated to refrain from obstructionist tactics and to cooperate in good faith to achieve the goals specified in
Article 55.21
The Commentary on the Charter of the United Nations edited by Bruno
Simma noted that, as far as the protection of human rights is concerned,
Article 1(3) had been invoked both with respect to the improvement generally
within the United Nations system of the effective enjoyment of human rights
and fundamental freedoms and with respect to particular human rights issues
and situations.22
The same commentary concluded that Article 56 represented a specification of the obligations of member states set forth in Article 2(2) and Article 55.
This specification dealt with the three elements of Article 56: joint action,
separate action, and cooperation with the organization regarding the obligations assumed under Article 55. Wolfrum, the author of the Commentary on
Article 56 in this volume, agreed with Goodrich, Hambro and Simons, that
Article 56 did require that member states cooperate with the un in a constructive way; obstructive policies are thus excluded.23
Article 103 of the Charter clarified that in the event of a conflict between the
obligations of the Members of the United Nations under the Charter and their
obligations under any other international agreement, their obligations under
the Charter shall prevail.

20
21
22
23

L. Goodrich, E. Hambro and A. Simons, Charter of the United Nations: Commentary and
Documents (New York, London: Columbia University Press, 1969), 35.
L. Goodrich, E. Hambro and A. Simons, Charter of the United Nations: Commentary
and Documents, Third Edition (New York, London: Columbia University Press, 1969), 381.
B. Simma (Ed.), The Charter of the United Nations. A Commentary (Oxford: Oxford
University Press, 1985), 5556.
B. Simma (Ed.), The Charter of the United Nations. A Commentary, 794.

20
III

chapter I

International Judicial Organs on International Human Rights

Obligations of Member States

The International Court of Justice, collectively and in the opinions of individual judges, has provided helpful clarifications of the legal content of the human
rights provisions of the Charter.
In an insightful pronouncement in the South West Africa cases of 1966, Judge
Jessup noted that the standard to be applied by the Court must be of the
contemporary international community.24
In its Advisory Opinion Concerning Reservations to the Convention on the
Prevention and Punishment of Genocide, the International Court of Justice
(icj) provided important insights into the nature of international human
rights treaty obligations that would be applicable to most of the human rights
treaties in existence today. The icj, advancing the doctrine of the common
interest of all humanity in the observance of international human rights treaty
provisions, affirmed:
The origins of the Convention show that it was the intention of the
United Nations to condemn and punish genocide as a crime under international law involving a denial of the right of existence of entire human
groups, a denial which shocks the conscience of mankind and results
in great losses to humanity, and which is contrary to moral law and to
the spirit and aims of the United Nations. The first consequence arising
from this conception is that the principles underlying the Convention are
principles which are recognized by civilized nations as binding on States,
even without any conventional obligation. A second consequence is the
universal character both of the condemnation of genocide and of the
cooperation required in order to liberate mankind from such an odious
scourge (Preamble of the Convention). The Genocide convention was
therefore intended by the General Assembly and by the Contracting
Parties to be definitely universal in scope. It was in fact approved on
December 9th, 1948 by a resolution which was unanimously adopted by
fifty-six States. The objects of such a Convention must also be considered.
The Convention was manifestly adopted for a purely humanitarian and
civilizing purpose. It is indeed difficult to imagine a Convention that
might have this dual character to a greater degree, since its object on the
one hand is to safeguard the very existence of certain human groups, and
on the other to confirm and endorse the most elementary principles of
24

Judge P. Jessup, South West Africa cases, icj Reports (1966), pp. 440441.

The Council and the Modern Human Rights Law of the Charter

21

morality. In such a Convention the contracting States do not have any

interests of their own; they merely have, one and all, a common interest,
namely the accomplishment of those high purposes which are the raison
detre of the Convention. Consequently, in a convention of this type, one
cannot speak of individual advantages or disadvantages to States, or of
the maintenance of a perfect contractual balance between rights and
duties. The high ideals which inspired the Convention provide, by virtue
of the common will of the parties, the foundation and measure of all its
provisions.25
The International Criminal Tribunal for the Former Yugoslavia (icty) in the
case of Kupreskic and others expressed similar views:
The absolute nature of most obligations imposed by rules of international
humanitarian law reflects the progressive trend towards the so-called
humanisation of international legal obligations, which refers to the
general erosion of the role of reciprocity in the application of inter
national humanitarian law over the last century. After the First World
War, the application of the laws of war moved away from a reliance on
reciprocity between belligerents, with the consequence that, in general,
rules came to be increasingly applied by each belligerent despite their
possible disregard by the enemy. The underpinning of this shift was
that it became clear to States that norms of international humanitarian
law were not intended to protect State interests; they were primarily
designed to benefit individuals qua human beings. Unlike other inter
national norms, such as those of commercial treaties which can legitimately be based on the protection of reciprocal interests of States,
compliance with humanitarian rules could not be made dependent on a
reciprocal or corresponding performance of these obligations by other
States. This trend marks the translation into legal norms of the categorical imperative formulated by Kant in the field of morals: one ought
to fulfill an obligation regardless of whether others comply with it or
disregard it.26

25
26

icj, Reservations to the Convention on Genocide, Advisory Opinion, 28 May, 1951, icj
Reports (1951), p. 15.
International Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of the former Yugoslavia
since 1991, Kupreskic et al. Case No. IT-95-16-T of 14 January, 2000, p. 201.

22

chapter I

The Inter-American Court of Human Rights, in the case of Villagran Morales

and others, of 19 November, 1999, declared in respect of the right to life:
The right to life is a fundamental human right, and the exercise of this
right is essential for the exercise of all other human rights. If it is not
respected, all rights lack meaning. Owing to the fundamental nature of
the right to life, restrictive approaches to it are inadmissible. In essence,
the fundamental right to life includes not only the right of every human
being not to be deprived of his life arbitrarily, but also the right that he will
not be prevented from having access to the conditions that guarantee a
dignified existence. States have the obligation to guarantee the creation of
the conditions required in order that violations of this basic right do not
occur and, in particular, the duty to prevent its agents from violating it.27
The foregoing examples help us give contemporary interpretations to the
human rights provisions of the un Charter.
On the legal obligation of Member States to respect human rights, Judge
Tanaka took the view in the South West Africa cases of 1966, that those who
pledge themselves to take action in cooperation with the United Nations in
respect of the promotion of universal respect for, and observance of, human
rights and freedoms, cannot violate, without contradiction, these rights and
freedoms. How can one, on the one hand, preach respect for human rights to
others and, on the other hand, disclaim for oneself the obligation to respect
them. From the provisions of the Charter referring to human rights and fundamental freedoms it can be inferred that the legal obligation to respect human
rights is imposed on member States.28
The International Court of Justice as a whole reasoned in a similar manner
in the 1971 Namibia advisory opinion: Under the Charter of the United Nations,
the former mandatory had pledged itself to observe and respect, in a territory
having an international status, human rights and fundamental freedoms for all
without distinction as to race. To establish instead, and to enforce, distinctions,
exclusions, restrictions and limitations exclusively based on grounds of race,
colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of
the Charter.29
27
28
29

Inter-American Court of Human Rights, Villagran Morales et al. Case (the Street Children
case), Judgment, 19 November, 1999.
Judge K. Tanaka, South West Africa cases, icj Reports (1966), p. 290.
Ibid, p. 57.

The Council and the Modern Human Rights Law of the Charter

23

Furthermore, no factual evidence is needed for the purpose of determining whether the policy of apartheid as applied by South Africa in Namibia is in
conformity with the international obligations assumed by South Africa under
the Charter of the United Nations. In order to determine whether the laws and
decrees applied by South Africa in Namibia, which are a matter of public
record, constitute a violation of the purposes and principles of the Charter of
the United Nations, the question of intent or governmental discretion is not
relevant; nor is it necessary to investigate or determine the effects of those
measures upon the welfare of the inhabitants.30
On the content of individual and joint responsibilities, the icj advised in
the 2004 Wall case that all States are under an obligation: (1) not to recognize
the illegal situation resulting from the construction of the wall. (2) not to render aid or assistance in maintaining the situation created by such construction.31 More specifically,
all States parties to the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War of 12 August 1949 have in
addition the obligation, while respecting the United Nations Charter and
international law, to ensure compliance by Israel with international
humanitarian law as embodied in that Convention.32
On the existence of jus cogens rights, Judge ad hoc Lauterpacht noted that
the prohibition of genocide has generally been accepted as having the status
not of an ordinary rule of international law but of jus cogens. Indeed, prohibition of genocide has long been regarded as one of the few undoubted examples
of jus cogens.33
On the existence of obligations erga omnes, the icj held in the Barcelona
Traction case that an essential distinction should be drawn between the
obligations of a State towards the international community as a whole,
and those arising vis--vis another State in the field of diplomatic protection.
By their very nature the former are the concern of all States. In view of the
30
31

icj Reports (1971), p. 57.

Advisory Opinion of 9 July 2004 in the case concerning the Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, icj Reports (2004),
para. 163.
32 Ibid.
33 Judge ad hoc E. Lauterpacht, Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), icj Reports
(1993), p. 440.

24

chapter I

importance of the rights involved, all States can be held to have a legal interest
in their protection: they are obligations erga omnes.34
On the existence of non-derogable rights, the International Court of Justice
affirmed in the Nuclear Weapons case that the protection of the International
Covenant on Civil and Political Rights does not cease in times of war, except by
operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not,
however, such a provision. In principle, the right not to arbitrarily be deprived
of ones life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis,
namely, the law applicable in armed conflict which is designed to regulate the
conduct of hostilities.35
On the emergence of international customary law, Judge Guillaume, then
President of the icj, told the Legal Committee of the un General Assembly in
2002, the Court, by characterizing certain conventional obligations as customary ones and then treating such obligations as obligations erga omnes, has
sought to impose on all States minimum norms deriving from the elementary
considerations of humanity already invoked by the Court in the Corfu Channel
case. It has thus given those considerations a specific content. In doing so,
it has laid the foundations for a universal customary law which, without
challenging conventional law, is binding.36
The icj, in the Corfu Channel, had recognised the existence of elementary
considerations of humanity. It invoked certain general and well-recognized
principles, namely: elementary considerations of humanity, even more exacting in peace than in war:37
The icj, in the Hostages advisory opinion, recognized the principles of the
Universal Declaration of Human Rights: Wrongfully to deprive human beings
of their freedom and to subject them to physical constraint in conditions of
hardship is in itself manifestly incompatible with the principles of the Charter
of the United Nations, as well as with the fundamental principles enunciated
34
35
36

37

Barcelona Traction case, icj Reports (1970), p. 51.

Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons,
icj Reports (1996), p. 240, para. 25.
Address of Judge Gilbert Guillaume, President of the International Court of Justice to
the Sixth Committee of the un General Assembly on 30 October, 2002, cited in S.R.S. Bedi,
The Development of Human Rights Law by the Judges of the International Court of Justice
(Hart Publishing, 2007), p. 368.
Corfu Channel Case (United Kingdom v. Albania), Judgment of Merits, icj Reports (1949),
p. 22.

The Council and the Modern Human Rights Law of the Charter

25

in the Universal Declaration of Human Rights.38 As we saw earlier, the

icj forcefully recognized the Charter principle of non-discrimination in its
Namibia advisory opinion.39
On the relationship between international human rights law and international humanitarian law in situations of armed conflict, the icj, in its Advisory
Opinion in the Wall case, noted that there might be three situations: (1) some
rights may be exclusively mattes of international humanitarian law, (2) others
may be exclusively matters of human rights law, and (3) yet others may be
matters of both these branches of law.40
IV

International Legal Obligations and Domestic Law: From Dualism,

Monism, and Coordination, to Responsibility

Dualist doctrine, as summarily presented by Ian Brownlie, points to the essential differences of international law and municipal law, consisting primarily in
the fact that the two systems regulate different subject-matter. International
law is a law between sovereign states; municipal law applies within a state and
regulates the relations of its citizens with each other and with the executive.
On this view, neither legal order has the power to create or alter rules of the
other. When municipal law provides that international law applies in whole or
in part within the jurisdiction, this is merely the exercise of the authority of
municipal law, an adoption or transformation of the rules of international law.
In case of a conflict between international law and municipal law the dualist
would assume that a municipal court would apply municipal law.41
Monism, as advocated by the great Sir Hersch Lauterpacht, asserts the
supremacy of international law even within the municipal sphere. International
law is seen as the best available moderator of human affairs, and also as a logical condition of the legal existence of states and therefore of the municipal
systems of law within the sphere of the legal competence of states.42
The theory of coordination was advanced, among others, by Sir Gerald
Fitzmaurice, a former judge of the International Court of Justice. His view was
that international law and municipal law did not come into conflict as systems
38
39
40
41
42

Case Concerning United States Diplomatic and Consular Staff in Tehran, icj Reports
(1980), p. 30, para. 62.
Ibid, p. 57.
icj Reports (2004), p. 178, para. 106.
I. Brownlie, Principles of Pubic International Law, Second Edition (1973), pp. 3334.
Ibid, p. 34.

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since they worked in different spheres. Each was supreme in its own field.
However, there may be a conflict of obligations, an inability of the State on the
domestic plane to act in the manner required by international law; the consequence of this will not be the invalidity of the internal law but the responsibility of the state on the international plane.43
It is our submission that while the two systems of law are essentially interdependent, the theory of coordination does not suffice in the circumstances
of our contemporary world. There are areas involving, for example, planetary
security, global threats such as terrorism, norms of jus cogens, the prevention
of genocide, and fundamental guarantees of human rights, that require
norms of municipal law which correspond to international law as a matter of
fundamental obligation of the State within the international legal system.
This is the doctrine of responsibility: the responsibility to prevent and to
protect.
In the draft articles on State responsibility which it adopted recently, the
International Law Commission included the following provision in Article 3:
The characterization of an act of State as internationally wrongful is
governed by international law. Such characterization is not affected by
the characterization of the same act as lawful by internal law.
This article was first proposed by the Commissions then Special Rapporteur,
Roberto Ago and discussed in the Commission in 1973.44 When the article was
first discussed in the Commission at its 1209th and 1210th meetings in 1973
the principle contained in it received support from every member of the
Commission who took part in the debate: Commissioners Ramangasoavina,
Tsuruoka, Yasseen, Kearney, Sette Camara, Hambro, Ushakov, Elias, Vallat,
Bartos, Ustor, Castaneda, Tammes, Bilge and Reuter.
In drafting the article the Commission followed its own draft on rights and
duties of States discussed above, as well as Article 27 of the Vienna Convention
on the Law of Treaties, which provides that A party may not invoke the
provisions of its internal law as justification for its failure to perform a
treaty.
The African Commission on Human and Peoples Rights has taken a firm
position on the primacy of international human rights law over national law.
In a case involving restrictions on freedom of freedom of expression under
national law, the Commission underlined that Governments should avoid
43
44

Ibid, p. 36.
The article was discussed at the 1209th and 1210th meetings of the Commission in 1973.

The Council and the Modern Human Rights Law of the Charter

27

restricting rights, and have special care with regard to those rights protected
by constitutional or international human rights law. No situation justified
the wholesale violation of human rights. According to Article 9(2) of the
African Charter on Human and Peoples Rights, dissemination of opinions
may be restricted by law. This did not mean, the Commission held, that
national law could set aside the right to express and disseminate ones
opinions:
To allow national law to have precedence over the international law
of the Charter would defeat the purpose of the rights and freedoms
enshrined in the Charter. International human rights standards must
always prevail over contradictory national law. Any limitation on the
rights of the Charter must be in conformity with the provisions of the
Charter.45
v

Jus Cogens Rights and Rights that May Never be Suspended or

Abrogated

The concept of peremptory norms of international law is that certain overriding principles of international law exist, forming a body of jus cogens.46
Examples cited by Brownlie include the prohibition of aggression, the prohibition of genocide, the principle of racial non-discrimination, crimes
against humanity and the rules prohibiting trade in slaves.47 The concept of
jus cogens was included by the International Law Commission in its final
draft on the law of treaties in 1966. Article 50 of that draft provided that
a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the
same character.
45

46
47

Communications 105793, 128/94 and 152/96, Media Rights Agenda and Constitutional
Rights Project v. Nigeria. Activity Report 19981999, Annex V. See also M. Evans and
R. Murray, The African Charter on Human and Peoples Rights. The System in Practice,
19862000 (Cambridge, Cambridge University Press), p. 7. See generally, C. Thomas,
M. Oelz and S. Beaudonnet, The use of international labour law in domestic courts:
Theory, jurisprudence and practical implications, in ilo, Les normes internationales du
travail: un patrimoine pour llavenir (Geneva: ilo, 2004), pp. 249286.
Brownlie, Second Edition, op. cit., p. 499.
Ibid, p. 500.

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chapter I

The Vienna Convention on the Law of Treaties defined a peremptory norm

as a norm accepted and recognized by the international community as a
whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the
same character.
Authoritative bodies of the international community have provided some
guidance as to what norms of jus cogens are. In the Barcelona Traction case
(Second Phase), the majority judgment of the International Court of Justice,
supported by twelve judges, drew a distinction between obligations of a State
arising vis--vis another State and obligations towards the international community as a whole. The Court said:
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 discrimination.48
In our submission, the domestic law of every Member State must incorporate
peremptory norms of international law or norms of jus cogens. Under no circumstances should any Member State or its agents, including its courts, act at variance with peremptory norms of international law. There is a fundamental duty
of care on the part of governments as well as their courts to be in compliance
with such norms and to take special care not to act at variance with them.
The European Court of Human Rights, in the Al-Adsani case of 21 November,
2001 affirmed the peremptory character of the prohibition of torture.49
The Inter-American Commission of Human Rights invoked the existence of
jus cogens obligations in international human rights treaty law in the case
of Michael Domingues, which dealt with the issue whether the death penalty
could be carried out on someone who was below the age of 18 at the time of the
commission of the offence. The Court declared:
It has been proved that this norm has been recognized as a norm with
sufficiently inalienable character as to constitute a jus cogens norm,
evolution foreseen by the Commission in its Roach and Pinkerton
decisions. As was pointed out, almost all the States have rejected the
imposition of the death penalty to persons under 18 years, in its more
explicit form through the ratification of the ccpr, the crc and the
American Convention, treaties in which this proscription was recognized
48
49

icj Reports (1970), 3 at p. 32.

Al-Adsani v. United Kingdom, Judgment of 5 November, 2001, 34 ehrr 273.

The Council and the Modern Human Rights Law of the Charter

29

as non-derogable. The acceptance of this norm covers the political and

ideological frontiers and the attempts to run away from these norms have
been strongly condemned by members of the international community as
non-permissible according to contemporaneous norms of human rights.
Under this basis, the Commission considers that the United States is
bound by a norm of jus cogens not to impose the death penalty to persons
who had under 18 years at the moment of the commission of a felony. As a
norm of jus cogens, this proscription obligates the international community, including the United States. The norm cannot be validly derogated
whether by treaty or objection of a State, persistent or not.50
VI

Norms of International Customary Law

There is much case-law on this issue. We shall here call upon R. v. Hape,51 in
which the Supreme Court of Canada provided important guidance on the
place of international customary law in the domestic law of States, in this particular instance, Canada. The Supreme Court held that international custom,
as the law of nations, was also the law of Canada unless, in a valid exercise of
its sovereignty, Canada declared that its law was to the contrary.52 In the
assessment of Glen Linder:
The majority also appears to endorse the view that if the rule of customary international law changes, so too will domestic law. Apparently
endorsing the relevant passage from Lord Dennings landmark judgment
in Trendtex53 our highest court has now clarified that even where a common law precedent exists that is contrary to a newer customary international law rule, courts must follow the customary international law rule,
and not the inconsistent common law precedent.54
If the legislature wishes to enact legislation that is inconsistent with international law, the majority held that there must be unequivocal legislative intent
to default on an international obligation
50

cidh, Case of Michael Domingues v. United States, Report 62/02, Case 12, 285 of 22 October,
2001. Annual Report of the Inter-American Commission, 2002.
51 (2007), scc 26.
52 Ibid, paras. 3739.
53 Trendtex Trading Corp v. Central Bank of Nigeria (1977) 1 Q.B. 529.
54 Canadian Council on International Law, Case Comment, R.V. Hape, Accessible at http://
www.ccil-ccdi.ca/images/stories/ccil-hape-comment-070917.pdf.

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chapter I

There is also respectable Commonwealth precedent for the proposition

that, where there is uncertainty, international law may be used in ascertaining
the meaning of national legislation, for example in the interpretation of
human rights and fundamental freedoms.55
VII

Mandatory Decisions of the United Nations Security Council

Under Article 24, paragraph 1 of the United Nations Charter, Members of the
United Nations, in order to ensure prompt and effective action by the United
Nations, confer on the Security Council primary responsibility for the maintenance of international peace and security and agree that in carrying out its
duties under this responsibility the Security Council acts on their behalf.
The International Court of Justice, in the Expenses Case and the Wall Case,
took the view that since, under Article 24 of the United Nations Charter, the
Security Council had the primary responsibility for the maintenance of international peace and security, it could, in that regard impose on States an explicit
obligation of compliance if for example it issues an order or commandunder
Chapter VII of the Charter. The Council could, to that end, require enforcement by coercive action.56 Professor Ian Brownlie pointed out that When
competent organs of the United Nations make a binding determination that a
situation is illegal, the states which are addressees of the resolution or resolutions concerned are under an obligation to bring that situation to an end.57
According to Article 43 of the Charter, all Members of the United Nations, in
order to contribute to the maintenance of international peace and security,
undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and
facilities, including rights of passage, necessary for the purpose of maintaining
international peace and security.
The mandatory decisions of the Security Council on anti-terrorism measures, adopted under Chapter VII of the Charter, provide solid examples of
actions required by Member States within their national legal orders.
55

56
57

Michael Kirby, The Road From Bangalore: The First Ten Years Of The Bangalore Principles
On The Domestic Application Of International Human Rights Norms, Speech to High
Court of Australia. Available at: http://www.hcourt.gov.au/assets/publications/speeches/
former-justices/kirbyj/kirbyj_bang11.htm; and Michael Kirby, The Impact of International
Human Rights Norms: A Law Undergoing Evolution (1995), 25 Western Australian Law Rev
130. See also the Bangalore Principles on the Domestic Application of Human Rights Norms.
Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory
Opinion of 20 July, 1962, icj Reports (1962), p. 163. Wall Opinion, para. 26.
Brownlie, op. cit., Second Edition, p. 504.

The Council and the Modern Human Rights Law of the Charter

VIII

31

The Responsibility to Prevent and to Protect

The report of the International Commission on Intervention and State Sover

eignty launched the concept of the responsibility to protect.58 In the Commi
ssions view, the responsibility to protect embraced three specific responsibilities:
the responsibility to prevent, namely, to address both the root causes and direct
causes of internal conflict and other man-made crises putting populations at risk;
the responsibility to react, namely, to respond to situations of compelling human
need with appropriate measures, which may include coercive measures like
sanctions and international prosecution, and in extreme cases military intervention; the responsibility to rebuild, namely, to provide, particularly after a military
intervention, full assistance with recovery, reconstruction and reconciliation,
addressing the causes of the harm the intervention was designed to halt or avert.
The Commission was firm in its view that prevention was the single most
important dimension of the responsibility to protect. Prevention options
should always be exhausted before intervention was contemplated, and more
commitment and resources must be devoted to it. The exercise of the responsibility to prevent and react should always involve less intrusive and coercive
measures before more coercive and intrusive ones are applied.
The United Nations Summit of world leaders, meeting to mark the organizations 60th anniversary in 2005 endorsed the responsibility to protect
and declared their readiness, if need be, to refer to the un Security Council
for its attention situations of genocide, ethnic cleansing, crimes against
humanity and war crimes.
It would be our submission that the national legal order of every country
must provide adequate and effective guarantees against genocide, ethnic
cleansing, crimes against humanity, and war crimes.
IX

Obligations under International Human Rights Conventions59

What are the legal consequences of a state becoming a party to an international human rights convention? The Human Rights Committee, which
58

59

International Commission on Intervention and State Sovereignty, The Responsibility to

Protect, December 2001. See also The Responsibility to Protect: Research, Bibliography,
Background, December, 2001.
Professor John Humphrey, one of the drafters of the Universal Declaration of Human
Rights, had proposed that The provisions of the International Bill of Rights shall be
deemed fundamental principles of International Law and of the national law of every
member state of the United Nations.

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functions under the International Covenant on Civil and Political Rights, has
adopted a series of General Comments spelling out the obligations of states.
General Comment No 31/80 of 29 March 2004, although based on the Covenant,
are reflective of the general obligations of a State Party to a human rights treaty.
The Human Rights Committee recalled the legal obligations of States Parties
under Article 2 of the Covenant under which, among other things, each State
Party to the Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the
Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status. The Human Rights Committee observed that while Article 2 is
couched in terms of the obligations of States Parties towards individuals as the
right-holders under the Covenant, every State Party has a legal interest in
the performance by every other State Party of its obligations. This follows from
the fact that the rules concerning the basic rights of the human person are
erga omnes obligations and that, as indicated in the fourth preambular
paragraph of the Covenant, there is a un Charter obligation to promote universal respect for and observance of human rights and fundamental freedoms.
It noted that a general obligation is imposed on States Parties to respect the
Covenant rights and to ensure them to all individuals in their territory and
subject to their jurisdiction. Pursuant to the principle articulated in Article 26
of the Vienna Convention on the Law of Treaties, States Parties are required to
give effect to their obligations under the Covenant in good faith.
The obligations in the Covenant in general and under Article 2 in particular
are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities,
at whatever level national, regional or local are in a position to engage the
responsibility of the State Party. This understanding flows directly from the
principle contained in Article 27 of the Vienna Convention on the Law of
Treaties, according to which a State Party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.
The obligation to respect and to ensure the rights recognized in the Covenant
has immediate effect for all States Parties. Reservations to Article 2 would be
incompatible with the covenant when considered in the light of its objects and
purposes. The legal obligation under Article 2, paragraph 1, is both negative
and positive in nature. States parties must refrain from violation of the rights
recognized by the Covenant, and any restrictions on any of those rights must
be permissible under the relevant provisions of the Covenant. Where such
restrictions are made, states must demonstrate their necessity and only take
such measures as are proportionate to the pursuance of legitimate aims in

The Council and the Modern Human Rights Law of the Charter

33

order to ensure continuous and effective protection of Covenant rights. In no

case may the restrictions be applied or invoked in a manner that would impair
the essence of a Covenant right.
Article 2 of the Covenant requires that States Parties adopt legislative, judicial,
administrative, educative and other appropriate measures in order to fulfill
their legal obligations. The Committee believes that it is important to raise
levels of awareness about the Covenant not only among public officials and
state agents but also among the population at large.
The positive obligations on States Parties to ensure Covenant rights will
only be discharged if individuals are protected by the state not just against
violations of Covenant rights by its agents, but also against acts committed by
private persons or entities that would impair the enjoyment of Covenant rights
in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights
as required by Article 2 would give rise to violations by States Parties of those
rights as a result of States Parties permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the
harm caused by such acts by private persons or entities.
The beneficiaries of the rights recognized by the Covenant are individuals.
Although, with the exception of Article 1 (the right of self-determination), the
Covenant does not mention the rights of legal persons or similar entities or
collectivities, many of the rights recognized by the Covenant may be enjoyed
in community with others.
States parties are required by Article 2, paragraph 1, to respect and to ensure
the Covenant rights to all persons who may be within their territory and to all
persons subject to their jurisdiction. This means that a State Party must respect
and ensure the rights laid down in the Covenant to anyone within the power or
effective control of that State Party, even if not situated within the territory
of the State Party. The enjoyment of Covenant rights is not limited to citizens
of States Parties, but must also be available to all individuals, regardless of
nationality or statelessness, such as asylum seekers, refugees, migrant workers
and other persons who may find themselves in the territory or subject to the
jurisdiction of the State Party. This principle also applies to those within the
power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control
was obtained, such as forces constituting a national contingent of a State Party
assigned to an international peace-keeping or peace-enforcement operation.
The Covenant applies also in situations of armed conflict to which the rules
of international humanitarian law are applicable. While, in respect of certain
Covenant rights, more specific rules of international humanitarian law may be

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specially relevant for the purposes of the interpretation of Covenant rights,

both spheres of law are complementary, not mutually exclusive.
The Article 2 obligation requiring that States Parties respect and ensure the
Covenant rights for all persons in their territory and all persons under their
control entails an obligation not to extradite, deport, expel or otherwise
remove a person from their territory where there are substantial grounds for
believing that there is a real risk of irreparable harm, either in the country to
which removal is to be effected or in any country to which the person may
subsequently be removed.
Article 2, paragraph 2 of the Covenant requires that States Parties take the
necessary steps to give effect to the Covenant rights in the domestic order.
It follows that, unless the Covenants rights are already protected by their
domestic law or practices, States Parties are required on ratification to make
such changes to domestic laws and practices as are necessary to ensure their
conformity with the Covenant. Where there are inconsistencies between
domestic law and the Covenant, Article 2 requires that the domestic law or
practice be changed to meet the standards required by the Covenants substantive guarantees.
Article 2 allows a State Party to pursue this in accordance with its
own domestic constitutional structure and accordingly does not require
that the Covenant be directly applicable in the courts by incorporation of
the Covenant into national laws. The Committee takes the view, however, that
Covenant guarantees may receive enhanced protection in those states where
the Covenant is automatically or through specific incorporation part of the
domestic legal order. The Committee invited those States Parties in which
the Covenant does not form part of the domestic legal order to consider
incorporation of the Covenant to render it part of domestic law to facilitate full
realization of Covenant rights as required by Article 2.
The requirement under Article 2, paragraph 2, to take steps to give effect to
the Covenant rights is unqualified and of immediate effect. A failure to comply
with this obligation cannot be justified by reference to political, social, cultural
or economic considerations within the state.
Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should
be appropriately adapted so as to take account of the special vulnerability of
certain categories of person, including in particular children. The Committee
attaches importance to States Parties establishing appropriate judicial and
administrative mechanisms for addressing claims of rights violations under
domestic law.

The Council and the Modern Human Rights Law of the Charter

35

The Human Rights Committee noted that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many
different ways, including direct applicability of the Covenant, application of
comparable constitutional or other provisions of law, or the interpretive effect
of the Covenant in the application of national law. Administrative mechanisms
are particularly required to give effect to the general obligation to investigate
allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed
with appropriate powers, can contribute to this end. A failure by a State Party
to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential
element of the right to an effective remedy.
Article 2, paragraph 3 of the Covenant requires that States Parties make
reparation to individuals whose Covenant rights have been violated. Without
reparation to individuals whose Covenant rights have been violated, the
obligation to provide an effective remedy, which is central to the efficacy of
Article 2, paragraph 3, is not discharged. In addition to the explicit reparation
required by Articles 9, paragraph 5, and Article 14, paragraph 6, the Committee
considers that the Covenant generally, entails appropriate compensation. The
Committee noted that, where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public
memorials, guarantees of non-repetition and changes in relevant laws and
practices, as well as bringing to justice the perpetrators of human rights
violations.
In general, the purposes of the Covenant would be defeated without an
obligation integral to Article 2 to take measures to prevent a recurrence of a
violation of the Covenant. Accordingly, it has been a frequent practice of the
Committee, in its consideration of individual petitions, to include in its Views
the need for measures, beyond a victim-specific remedy, to be taken to avoid
recurrence of the type of violation in question. Such measures may require
changes in the State Partys laws or practices.
Where investigations reveal violations of certain Covenant rights, States
Parties must ensure that those responsible are brought to justice. As with
failure to investigate, failure to bring to justice perpetrators of such violations
could in and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as criminal
under either domestic or international law, such as torture and similar cruel,
inhuman and degrading treatment (Article 7), summary and arbitrary killing
(Article 6) and enforced disappearance (Articles 7 and 9 and frequently 6).
Indeed, the problem of impunity for these violations, a matter of sustained

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concern by the Committee, may well be an important contributing element in

the recurrence of the violations. When committed as part of a widespread or
systematic attack on a civilian population, these violations of the Covenant are
crimes against humanity (Rome Statute of the icc, Article 7).
Accordingly, where public officials or state agents have committed violations of the Covenant rights just referred to, the States Parties concerned
may not relieve perpetrators from personal responsibility. Furthermore, no
official status justifies persons who may be accused of responsibility for such
violations being held immune from legal responsibility. Other impediments
to the establishment of legal responsibility should also be removed, such as the
defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. States Parties
should also assist each other to bring to justice persons suspected of having
committed acts in violation of the Covenant that are punishable under domestic or international law.
The Committee further took the view that the right to an effective remedy
may in certain circumstances require States Parties to provide for and implement provisional or interim measures to avoid continuing violations and to
endeavour to repair at the earliest possible opportunity any harm that may
have been caused by such violations.
General Comment 31 is a magisterial summary of the idea of international
obligation under international human rights treaties. It represents, in many
respects, the heart of international human rights law. Its principles are applicable, subject to textual variations, to human rights treaties in general.
Conclusion
In light of the foregoing discussion, we may conclude that while international
law and municipal law remain interdependent spheres, international law
imposes upon Governments a number of obligations as regards their domestic
law. The principle of self-determination indicates that it is for each people to
define its own constitutional order in free choice. Freedom under democratic
constitutional rule is increasingly claimed by peoples the world over. The principles of freedom and of free constitutional choice are our starting points.
However, in an age of globalisation and global threats and challenges, and as a
matter of hard law, we think it important to insist on the following propositions:
1.

National constitutional orders must integrate the principle of international cooperation in good faith with the competent organs of the United

The Council and the Modern Human Rights Law of the Charter

2.
3.
4.

5.
6.

37

Nations in addressing global threats and in acting for the prevention of

crises and conflicts.
Municipal law must provide for adequate and effective safeguards for
planetary security, protection of the environment and protection against
genocide, ethnic cleansing, war crimes and crimes against humanity.
Municipal law must incorporate international norms of jus cogens and a
government is internationally responsible if it fails to ensure that this is
the case.
National constitutional and legal orders must respect and require respect
for norms of international customary law. Municipal law must incorporate fundamental guarantees of respect for the human rights and fundamental freedoms consistent with international customary norms of
human rights. Where a state fails to ensure that this is so, it is internationally responsible.
Where ordered by the Security Council acting under Chapter VII of the
Charter, municipal law must include legislation prohibiting internationally wrongful acts.
National constitutional orders should demonstrate respect for the principles of the responsibility to protect and of justice, at least in respect of
genocide, ethnic cleansing, crimes against humanity and war crimes.

In the next chapter we make the case for human rights as a core part of international constitutional law.

Chapter II

Human Rights as International Constitutional Law

Introduction

In the previous chapter we set out the modern human rights law of the Charter
that should guide the Human Rights Council. In this chapter we go one step
further and argue that human rights are part of international constitutional
law and that the Council must help advance this concept as well.
In its edition of 15/16 February, 2014, the Financial Times, under the title
The World in 2114, serialised three extracts from a recent book, In 100 years:
Leading Economists Predict the Future, edited by Ignacio Palacios-Huerta and
published by mit Press.60 The Financial Times gave its article the banner highlight In 100 Years, economists predict that geo-engineering, performance
drugs and artificial intelligence will shape our future.
In his article, Professor Martin Weitzman, Professor of Economics at Harvard
University, noted that there are several possible forms of purposeful geo-
engineering including one that would offer a quick-fix to the problem of
increasing temperatures. This is to create a space sunshade by shooting reflective particles into the stratosphere that block out a small but significant fraction of incoming solar radiation. He encourages further study of this option,
remarking that The temptation may become very great for a nation to unilaterally engineer the planet out of high temperatures.61
Nobel Laureate in economics, Alvin Roth, Professor of Economics at
Stanford University, wrote that the biggest trend of the future history is that
the world economy will keep growing and becoming more connected. Material
prosperity will increase and healthy longevity will rise. Some people will opt
for slower track living while, for others who wish to compete, there will be
technological developments to help them. Families will remain one of the
main units of production certainly of children and of consumption of all
sorts of household goods and comforts. Some of the big changes to medicine
will be technological. Selecting the genetic characteristics of our children will
become widely available and tempting.62

60
61
62

Cambridge, Mass., 2014.

Financial Times, 15/16 February, 2014, p. 7.
Financial Times, 15/16 February, 2014, p. 7.

koninklijke brill nv, leiden, 2015|doi 10.1163/9789004289031_004

Human Rights As International Constitutional Law

39

Another Nobel Laureate in economics, Robert Shiller, Professor of Economics

at Yale University, wrote that the next century carries with it any number of
risks as an unprecedented number of people attempt to live well on a planet
with limited resources, with more dangerous strategic weapons of mass
destruction, and with the flourishing of new information technologies that stir
up labour markets and create career risks. Whether it comes sooner or later, an
important consequence of artificial intelligence will be a long trend towards
unification of global culture. Artificial intelligence will take us on a long trend
towards unification of global culture. There is likely to develop a cosmopolitan
culture of the people most connected with artificial intelligence, a sort of
world elite who, by their constant communications, will tend to develop some
loyalties to each other rather than to their neighbours, while billions of others
will form a worldwide string of ghettoes!63
Even among the elite, the globalisation of culture will not be complete, and
there will still be ancient national and traditional ethnic and religious rivalries
and the potential for war. But there will be no central authority to be in control
of all of these processes that create risks for individuals and for larger society.
We must approach all these risks with all of the new kinds of risk management
functions that we can invent.64
In what can we anchor the world that is coming? It must be, in our submission, the anchor of international human rights. Hence the importance of
human rights as the core of international constitutional law. The case for
human rights norms as the core of international constitutional law is buttressed by the evolving threats and challenges facing human kind and the need
for new political and legal thinking. We address these two issues before entering into a discussion of human rights as international constitutional law.
i

Threats and Challenges

We are living in a time when the Earth and humanity are under threats never
before experienced in human history. The historian Ian Morris, in his widely
acclaimed book, Why the West Rules For Now: The Patterns of History and
What They Reveal About the Future,65 argues that The great question for our
times iswhether humanity as a whole will break through to an entirely new
63 Robert Schiller, Ibid.
64 Idem.
65 Ian Morris, Why the West Rules For Now: The Patterns of History and What They Reveal
About the Future (Profile Books, 2010).

40

Chapter II

kind of existence before disaster strikes us down permanently. In the twentyfirst century social development promises or threatens- to rise so high that it
will change what biology and sociology can do. We are approaching the greatest discontinuity in history.
He recalled that the inventor and futurist Ray Kurzweil had introduced the concept of the Singularity a future period during which the pace of technological
change will be so rapid, its impact so deepthat technology appears to be expanding at infinite speed. By about 2045, Kurzweil estimated, computers would be able
to host all the minds in the world, effectively merging carbon- and silicon-based
intelligence into a single global consciousness. This will be the Singularity. We will
transcend biology, evolving into a new, merged being as far ahead of Homo sapiens as a contemporary human is of the individual cells that merged to create her/
his body. While all of this is taking place, the five horsemen of the apocalypse all
seem to be back: climate change, famine, state failure, migration, and disease.
Morris thinks that there are many possible paths that our future might follow, but however much they wind around, most seem to lead ultimately to the
same place, Nightfall: Nuclear Armageddon. The twenty-first century is going
to be a race. In one lane is some sort of Singularity; in the other, Nightfall. One
will win and one will lose. There will be no silver medal. Either we will soon
(perhaps before 2050) begin a transformation even more profound than the
industrial revolution, which may make most of our current problems irrelevant, or we will stagger into a collapse like no other.
This means that the next forty years will be the most important in history.
What the world needs to do to prevent Nightfall is not really a mystery. The top
priority is to avoid all-out nuclear war, and the way to do that is for the great
powers to reduce their nuclear arsenals. The second priority is to slow down
global wierding (the fate of Kyoto etc.). Here things are going less well.
The most effective way to hold back Nightfall for another forty years may be
by enmeshing states more deeply with non-state organizations, getting governments to surrender some of their sovereignty in return for solutions that
they might be unable to reach independently. In the twenty-first century we
must, first, restructure political geography to make room for the kinds of global
institutions that might slow down war and global weirding; then we must use
the time that buys to carry out a new revolution in energy capture, shattering
the fossil-fuel ceiling. Carrying on burning oil and coal like we did in the twentieth century will bring on Nightfall even before the hydrocarbons run out.
For the Singularity to win, we need to keep the dogs of war on a leash, manage global weirding, and see through a revolution in energy capture. Everything
has to go right. For Nightfall to win only one thing needs go wrong. The odds
look bad.

Human Rights As International Constitutional Law

41

As we set course to deal with the challenges that Morris presents, we need
to recall that the United Nations universal norms on human rights represent
the best thinking of humanity at the present stage of its development about
how each person should live his or her life, and about how communities should
coexist and cooperate nationally and internationally.
Governing the World, is another important new book, by Professor Mark
Mazower of Columbia University, published by Penguin in 2012, which has
many insights that are sobering. We are, Mazower thinks, living in a time of
extreme confusion about the purpose and durability of international institutions. We have moved from an era that had faith in the idea of international
institutions to one that has lost it. While internationalism originated as an
expression of Western political philosophies and Great Power needs, it is
clearly now moving beyond that into something much more multicentered
and fissiparious. Today our very vocabulary for understanding where we
stand in the world is hostage to confused thought and poorly articulated premises. What is governance? Who speaks for civil society? Is there such a thing
as an ngo?66
He considers that the institutions of international governance stand in
urgent need of renovation. Yet the fundamental nineteenth century insight
that effective internationalism rests on effective nationalism remains pertinent. Now we are on the verge of a new era, and as Western predominance
approaches an end, there is much hand-wringing. But the mere fact that some
states are gaining strength as others lose it says little. China, for example, has
much to gain and little of any consequence to lose from participating in a system designed to favour leading nations. Like any great power, it will use these
institutions to further its own ends, but like its predecessors, it will not always
prevail. There is no need to think that the shift in the global balance need of
itself mark the end of the international institutions established in the AngloAmerican ascendancy.
The rising powers, China above all, have little liking for the imf, at least in
its older incarnation, and attach much greater importance to the idea of preserving sovereignty and some space for domestic political discretion. If their
influence grows, the institutions the United States created may be brought
back under new direction to the principles that originally animated them.
Abroader array of voices and perspectives will enrich the rather rigid forms of
economic thinking that have predominated since the 1970s.

66

Mark Mazower, Governing the World: The Rise and Fall of and Idea 1815 to the Present
(Penguin Press hc, 2012).

42

Chapter II

Getting the institutional architecture right will require fundamental change.

In the current crisis, politicians have essentially acted as underwriters, essential but subordinate to the dictates of communities of financial market makers
they hesitate to contradict. More generally, the politicians have become policymakers who listen in the first place to private interests and their lobbyists and
try to adjudicate among them. Time will show whether they are any longer
capable of governing.
Twentieth century total wars had been fought by states that had mobilized
entire societies around shared perils and experiences, and, by creating models
of equity, solidarity and sacrifice, they had transformed public attitudes in
ways that had endured into peacetime. Without a comparable transformation
in our own views about the nature of government, the public good and the role
of the state, without our developing a new kind of faith in our own collective
capacity to shape the future, there is no real incentive for our politicians to
change.
To the nineteenth century internationalists, the future had conjured up a
new dispensation for mankind, a dispensation they had looked up to with a
confidence based upon their control over the universe of facts. Hence
Benthams vision of a perfect system of law that depended on the accumulation of all useful knowledge. To twentieth century institution builders the
future could be planned and tackled with foresight on behalf of entire communities and nations, perhaps even for the world as a whole. Today, where the
primacy of the fact is challenged by the Web, the future, more important than
ever, has been privatized, monetized, and turned into a source of profit. An
entire corporate sector is dedicated to commodifying and modelling it. Our
financial markets in general take the future as the determinant of present values in a way that simply was not true a century ago. This money-driven individualistic future has crowded out an older vision of what the public good
might look like.
In the ongoing atomisation of society, citizens and classes have both vanished as forces for change and given way to a world of individuals, who come
together as consumer of goods or information and who trust the Internet more
than they do their political representatives or the experts they watch on television. Governing institutions today have lost sight of the principle of politics
rooted in the collective values of a res publica, even as they continue to defend
the civilization of capital.
Professor Mazower concludes: As for the rituals of international life, these
are now well-established. The worlds heads of state flock annually to the un
General Assembly. There are discussions of reform and grandiose declarations
of global targets, and businessmen make their pilgrimage to Davos, seeking to

Human Rights As International Constitutional Law

43

confirm through this triumph of corporate sponsorship that a global ruling

elite exists and that they belong to it. Our representatives continue to hand
over power to experts and self-interested self-regulators in the name of efficient global governance while a sceptical and alienated public looks on. The
idea of governing the world is becoming yesterdays dream! Again, we need
the anchor of human rights even as we search for new political thinking.
II

The Need for New Political Thinking

In his highly regarded book, Western Political Theory in Face of the Future,
Professor Dunn laments, We palpably do not know what we are doing.67 In
October, 2013 Oxford Universitys Oxford Martin Commission for Future
Generations published a report calling for a radical shake-up to deliver progress on climate change, reduce economic inequality, improve corporate practices and address the chronic burden of disease. Its recommendations included
the creation of a coalition to counteract climate change, to fight communicable disease, end discrimination against future generations by revising discounting methods and adjusting them to take account of the uncertainties,
risks and ethical implications for the long-term.68 Professor Ian Goldin,
Director of the Oxford Martin School and Vice-Chair of the Commission said
on the launching of the report: Failure to address long-term issues exposes
current generations to unacceptable instability and risk; it threatens our ability to build a sustainable, inclusive and resilient future for all.
For a number of years, Professor Andrew Dobson has been making the case
for new political thinking. He advocates Ecologism, which makes the Earth as
physical object the very foundation-stone of political intellectual edifice, arguing that its finitude is the basic reason why infinite population and economic
growth are impossible and why, consequently, profound changes in our social
and political behaviour need to take place. Political ecologists stress that consumption of material goods by individuals in advanced industrial countries
should be reduced, and that human needs are not best satisfied by continued
economic growth as we understand it today.
What sets ecologism apart from political ideologies such as liberalism, conservatism, and socialism, Dobson contends, is its focus on the relationship
between human beings and the non-human natural world. No other modern
67
68

John Dunn, Western Political Theory in Face of the Future (Cambridge, cup, 1979).
Oxford Martin School, Oxford University, Now for the Long Term. The Report of the
Oxford Martin Commission for Future Generations, 16 October, 2013.

44

Chapter II

political ideology, it is contended, has this concern. There are three principal
thoughts related to the limits to growth thesis that have come to be of prime
importance to the radical green position. They are: first, that technological solutions (i.e. solutions formulated within the bounds of present economic, social
and political practices) will not in themselves bring about a sustainable society;
second, that the rapid rates of growth aimed for (and often achieved) by the
industrialised and industrialising societies have an exponential character, which
means that dangers stored up over a relatively long period of time can very suddenly have a catastrophic effect; and third, that the interaction of problems
caused by growth means that such problems cannot be dealt with in isolation
i.e. solving one problem does not solve the rest, and may even exacerbate them.
A central question is whether a sustainable society can be brought
about through the use of existing state institutions and political ideologies.
Liberalism, it is argued, does not provide an answer, since the guiding idea of
political ecology is that this is an ecological place rather than an evolutionary
place. With the restoration of the ecological idea in politics, battle with the
evolutionary view of political progress (liberalism) has once again been joined.
Conservatism, it is contended, is interested in conserving and preserving the
past whereas ecologism is interested in conserving and preserving for the
future. Herein lies a signal difference between the conservative and ecological
political imaginations. Socialism, for its part, he adds, identifies capitalism as
the source of the ills of contemporary society. Political ecologists are much
more likely to refer to industrialism as the problem.
One of the reasons the green movement considers itself to be beyond left
and right is because it believes the traditional spectrum of opposition
between socialism and capitalism to be inscribed in a more fundamental context of agreement: a super-ideology called industrialism. Ecologists stress
the similarities between capitalist and socialist countries in that they are
both considered to believe that the needs of their respective populations are
best satisfied by maximizing economic growth. Ecologism envisages a postindustrial future that is quite distinct from that with which we are most
generally acquainted. While most post-industrial futures revolve around highgrowth, high-technology, expanding services, greater leisure, and satisfaction
conceived in material terms, ecologisms post-industrial society questions
growth and technology, and suggests that the Good Life will involve more
work and fewer material objects. Fundamentally, ecologism takes seriously
the universal condition of the finitude of the planet and asks what kinds of
political, economic and social practices are possible and desirable.69
69

A. Dobson, Green Political Theory (Routledge, 2007).

Human Rights As International Constitutional Law

45

Professor Gregory Claeys, Professor of the History of Political Thought at the

University of London and a prolific writer on political ideas has argued that we
need a new political theory in which we create a new notion of the common
good built on the preservation of the natural world. We need to create rights of
nature, e.g. forests and animals, that proscribe undue exploitation such as
overfishing or destruction of the rain forests. We need a new contract theory,
revising our notion of a social contract built on the preservation of individual
rights in light of the need to make preservation of the natural world a key priority. Our priority must be for the protection of nature as well as human beings.
Popular sovereignty, he continues, is not, as such, the highest good but our collective survival is. We need to persuade the majority of this. Market theory should
not be decisive. Rebuilding the forests, replenishing fish stocks, reducing pollution and creating alternative energy forms all can involve markets, and can be
made profitable where the public provides financial incentives to develop such
resources and penalties for those who continue the process of exploitation.
Overpopulation, he adds, is such a central part of the green argument that
we must necessarily combat any ideology, secular or religious, that either
deliberately or incidentally promotes large families. We must construct a new
vision of the future. In this regard, the triumphalist cry of victory by the free
market ideal over central planning may be misplaced and premature.
We have, he laments, virtually no models of international organizations
upon which to try to imagine the implementation of such policies. We must be
ready to deal with the growing wars over scarce resources, notably water and
arable land; the movement of large populations seeking such resources, and
the conflicts again that would ensue in such a case. The longer we wait to act,
the more difficult will be the solution and the less likely the success. We can
achieve utopia, but we will have to work hard for it. What will arrive if we do
nothing is too unpleasant to contemplate further.70 As we contemplate such
strands of new political thinking, human rights must remain our anchor and
we must strive for human rights strategies of governance.
III

Human Rights Strategies of Governance

We think that human rights strategies of governance offer a way of addressing the new threats and challenges in a manner consistent with respect
for the integrity, dignity and rights of individuals, groups, and peoples. The
70

Professor Claeys advances these views in his course on Modern Political Ideas offered in
the International Programme of the University of London.

46

Chapter II

International Bill of Human Rights, consisting of the Universal Declaration

and the two International Covenants, prescribes core standards of human
rights for the conduct of governance in all countries, and the Universal Periodic
Review process watches over the way in which each government is giving effect
to its human rights obligations.
The rights in the International Covenant on Civil and Political rights are to
be respected and protected immediately. This also applies to some economic,
social and cultural rights, particularly the right not to be discriminated against.
In respect of other rights in the International Covenant on Economic, Social
and Cultural Rights, Governments are to take measures in good faith to implement them progressively in light of the resources available and with the benefit of international cooperation.
By taking the rights in the Universal Declaration and in the two
International Covenants as their point of departure Governments can pursue policies and strategies of governance hat are best calculated to meet
the needs of the twenty-first century and to anchor the future political
society in the integrity, dignity and freedom of individuals, groups, and
peoples.
Human Rights strategies of governance involve recognizing:
The supremacy of international human rights law over national law
Organs of society nationally, regionally, and internationally, must cooperate
in good faith to prevent threats to the existence and security of human kind
and the planet
Governance in every country of the world must be in accordance with the
principles of the Universal Declaration of Human Rights and human rights
norms binding upon all governments.
Regional organizations everywhere must recognize as an inherent part of
their mandate to protect human rights recognized in universal and regional
norms.
International organizations everywhere must recognize as an inherent part
of their mandate to protect human rights recognized in universal norms.
The un Security Council must respect human rights norms in the course of
its work and must act for the protection of human rights in situations or on
issues engaging its attention.
Core norms of international human rights law, particularly norms of jus
cogens, must be reflected in the constitution of every Member State of the
United Nations.
It is in light of this reasoning that the place of human rights in international
constitutional law becomes so important.

Human Rights As International Constitutional Law

IV

47

International Constitutional Law

As part of future-oriented policy and legal thinking I want to argue for human
rights as international constitutional law. To do so, I need to address some gateway issues: Is international human rights law an independent system or is it
part of international law. Jan Klabbers, one of the authors of a recent book, The
Constitutionalization of International Law, thinks that international human
rights law has become a more or less self-contained system.71 On the other
hand, the late Professor Ian Brownlie, in his Principles of Public International
Law, frowned on international human rights law and saw the international
law of human rights as part of overall international law.
The next gateway issue I need to address is whether there is such a thing as
international constitutional law, or the constitutionalisation of international law.
The late Professors Ronald St. J Macdonald and Douglas M. Johnston championed
the idea that the un Charter is international constitutional law. Professor Johnston
wrote: (M)odern international law can be envisioned idealistically, in ethical
and institutional terms, as a collective effort to achieve universal order through
the development of constitutional structure and procedure among nations.72
Prof. Johnston considered that The international law of human rights is the ethical core of world constitutionalism. It is now the focus of numerous monitoring
organizations around the world and of several international tribunals.73
Macdonald and Morris considered that the world is no longer governable
entirely by resort to the classical system of international law. Even more seriously, it seemed that the Purposes and Principles of the United Nations Charter
were no longer being served sufficiently in light of new concerns. The text
adopted in 1945 did not convey the image of a world tormented by terrorists.
Nor did it reflect the most pressing commitments of our time: to democratic
governance, to environmental responsibility, and to a freer and more equitable
system of world trade. Increasingly the international law community acknowledges the need to set new priorities in the development of international law.
To this end, they thought it timely to consider the case for strengthening the
constitutional framework of norms and institutions established in the second
half of the 20th century. The post-Cold War euphoria of the 1990s had virtually
evaporated under the stress of new concerns at a time when states comprising
the un system were no longer capable of addressing these challenges. They
71
72
73

J. Klabbers, A. Peters and G. Ulfstein, The Constitutionalization of International Law

(Oxford University Press, 2009), p. 2.
R. St. J. Macdonald and D.M. Johnson, Towards World Constitutionalism (Martinus Nijhoff
Publishers, 2005), p. 15.
Ibid, p. 19, note 33.

48

Chapter II

therefore presented their book, Towards World Constitutionalism, to argue the

case for a more constitutionalised system of international law and diplomacy.
Human rights must be at the core of such an order.
V

Human Rights as the Core of International Constitutional Law

The academic world has been probing issues touching on human rights and
international constitutional law for some time. In 1987, the Akron Law Review
carried the Proceedings of a Symposium held at the School of Law on 13
November, 1986 on Human Rights as Comparative Constitutional Law.74 The
International Academy of Constitutional Law, Tunis, published in 2000 a volume, Constitution et Droit International, which carried learned presentations
on this topic, including by former un Secretary-General Boutros BoutrosGhali.75 More recently a conference was held in France, and the proceedings
published under the title, Les droits de lhomme: ont-il constitutionalis le
monde? Participants referred to elements that might be considered constitutionalisation but, on the whole, left the matter open for the time being.76
Jan Klabbers himself recognizes, that constitutionalisation and constitutionalism themselves are controversial notions77 I want to side-step the issue of the
constitutionalisation of international law as a broader process. I intend to submit
that The International Bill of Human Rights, which consists of the Universal
Declaration of Human Rights, the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social, Cultural Rights contain norms of international constitutional law of our world.78
How can I support this submission? To begin with, we need to distil our
understanding of what we mean by international constitutional law? They
embrace those norms of public international law that regulate the governance
of the world community nationally, regionally and internationally. Human
rights are a part of international constitutional law. There are other parts dealing, for example, with issues of international security, for example Chapters 6
74

Human Rights as Comparative Constitutional Law, in Jacob W.F. Sundberg (Ed.), Akron
Law Review, Vol. 20, No. 4, (Spring 1987).
75 International Academy of Constitutional Law, Tunis, Recueil des Cours, Vol. 8
(Constitution et Droit International, 2000).
76 Stephanie Hennette-Vauchez et Jean-Marc Sorel (Eds.), Les droits de lhomme ont-ils constitutionnalise le monde? (Bruxelles, Bruylant, 2011).
77 P. 6.
78 See, generally, B.G. Ramcharan, The Legal Status of the International Bill of Human
Rights, 55 Nordic Journal of International Law (1986), pp. 366383.

Human Rights As International Constitutional Law

49

and 7 of the un Charter. The essential rationale of international constitutional

law is: to highlight structures and strategies of governance nationally, regionally and internationally.
The sources of international law, as is well known, include: treaties, custom,
and general principles of law, and judges and renowned publicists can help us
clarify what the law is in cases of doubt. Treaties contain contractual obligations that may grow into international customary law. International customary
law might further rise into norms of jus cogens. I cannot make the case that the
Universal Declaration and the two international covenants as a whole represent international customary law or norms of jus cogens, although particular
provisions might well do so.
In identifying constitutional norms of international human rights law, the
protection of humanity and human life must be our starting point. This raises
issues of the right to life. The sustainability of life must be our next principle,
raising issues of sustainable development and the right to development. The
protection of endangered human species is the next principle, raising issues of
the rights of minorities and indigenous populations. Cooperation and dialogue
must be our next principle, raising rights issues such as the duty to cooperate
in good faith. The principle of humanity, a core tenet of international law provides an indispensable foundation for us to build on. The prohibitions of state
violence such as torture are likewise foundation elements. So are: freedom of
conscience and belief; freedom of opinion and expression; the Responsibility
to Protect; norms of jus cogens; and the principle of equality.
The opening article of the Universal Declaration of Human Rights proclaims
that all human beings are born free and equal in dignity and rights and should
act towards one another in a spirit of brotherhood or sisterhood. In the Charter
of the United Nations all Member States committed themselves to upholding
human rights and fundamental freedoms at home, without discrimination,
and to cooperate for their realization in all countries.
The United Nations proclaimed the Universal Declaration of Human
Rights as a common standard of achievement for all peoples. The Universal
Declaration affirms that the will of the people shall be the basis of the authority of governments. Spelling out the content of the Universal Declaration
in greater detail, a series of international covenants or treaties has been
accepted by Member States containing obligations of result or of conduct.
The International Convention on the Rights of the Child has been ratified or
acceded to by 193 Member States, the iccpr by 167 States.
There is a solid body of jurisprudence from human rights treaty bodies and
from other authoritative sources on the content of human rights obligations.
Under various treaties there are reporting procedures, petitions procedures,

50

Chapter II

and some inter-state complaint procedures. Under the Universal Periodic

Review process, which began in 2008 every Member State comes before the
Human Rights Council once every four and a half years to explain what it is
doing to implement its human rights obligations under the various international human rights instruments. Experiences are shared and recommendations offered and sometimes accepted and implemented.
The Vienna World conference on human rights, 1993, affirmed that the universality of human rights is beyond question. In the Millennium Declaration,
the leaders of the world committed themselves to specified human rights values to guide their conduct in the twenty-first century. In the World Summit
outcome document of 2005, Heads of State and Government reaffirmed that
our fundamental values, including freedom, equality, solidarity, tolerance,
respect for all human rights, respect for nature and shared responsibility, are
essential to international relations. In the same World Summit outcome document, world leaders declared the following: We recommit ourselves to actively
protecting and promoting all human rights, the rule of law and democracy and
recognize that they are interlinked and mutually reinforcing and that they
belong to the universal and indivisible core values and principles of the United
Nations They further reaffirmed the solemn commitment of our States to
fulfill their obligations to promote universal respect for and the observance
and protection of all human rights and fundamental freedoms for all in accordance with the Charter, the Universal Declaration of Human Rights and other
instruments relating to human rights and international law. The universal
nature of these rights is beyond question.
The world leaders affirmed that each individual State has the responsibility
to protect its population from genocide, war crimes, ethnic cleansing and
crimes against humanity. This responsibility entails the prevention of such
crimes, including their incitement, through appropriate and necessary means.
We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early
warning capability.
We have seen earlier, above, that the world leaders in affirming the universality of human rights and the obligations of governments, invoked the Charter,
the Universal Declaration of Human Rights and other instruments relating to
human rights and international law. The Declaration on Principles of Inter
national Law and Friendly Relations among States of 1970, codified the human
rights obligations of Member States of the un under the un Charter. Every
State, under international law, has specific legal obligations under: norms of
juscogens, norms of international customary law, norms under general principles

Human Rights As International Constitutional Law

51

lawcommon to the major legal systems, and under particular treaties that they
have subscribed to.
The key question to be asked in a discussion of human rights as international constitutional law is the following: If Governments have repeatedly proclaimed these legal and policy commitments are they not under an obligation
to make them part of their constitutional and legal orders? We submit that
they are, and that this is the essence of human rights as international constitutional law. Concretely we need to build on the International Bill of Human
Rights highlighting, in particular:

The Right to Life

The Right to Security
The Right to Dignity
The Right to Equality
The Right to Liberty
The Right to Humane Treatment
The Right to Diversity
The Right to Protection
The Right to Democracy
The Right to the Rule of Law

This is the core of human rights as international constitutional law. We need

dynamic, rather than static, thinking. Classical legal reasoning will not suffice.
After the Second World War the Institute of International Law commissioned
from the late Prof. Charles de Visscher a report on The Fundamental Rights of
Man as the Basis for the Restoration of International Law. After considering
this report the Institute adopted a resolution with the same title. Fundamental
Human Rights must now be the bedrock in shaping the world that is coming.
In short, Human Rights must provide the foundations of International
Constitutional Law. We have no other choice!
The United Nations role in shaping the future world is greatest in the
human rights jurisprudence it has developed to help build a world of
human dignity and progress based on respect for human rights. At the forefront of this work has been the un Human Rights Committee, which monitors the implementation of the International Covenant on Civil and
Political Rights (1966).
The Human Rights Committee is in the process of humanizing sovereignty.
The Committee insists that governments are not at liberty to act as they see
fit but must conform to international human rights standards. The Human
Rights Committee has held in a landmark case that the foremost United

52

Chapter II

Nations organ, the Security Council, must comply with international human
rights norms when its actions affect individuals. This is a breath-taking decision of the Human Rights Committee in the case of Sayadi and others v.
Belgium (2008). In that case, Belgium argued that it was shielded from scrutiny because it was acting to implement a Security Council resolution. No,
the Committee replied; Belgium must comply with its human rights obligations, which took precedence. The Security Council cannot act in breach of
human rights.
The Human Rights Committee has insisted that even in times of public
emergency there can be no excuses for violating fundamental rights such as
the right to life or not to be tortured. In a time when human rights are being
flouted in the name of acting against terrorism, the Human Rights Committee
holds aloft the banner of international human rights law and insists that no
Government is above the law.
Among the legal precepts developed by the Human Rights Committee are
the following:
Governments are legally bound to take reasonable and appropriate measures to protect people within their jurisdiction or control.
The law must strictly control and limit the circumstances in which a person
may be deprived of his or her life by the authorities of the State.
A State, by invoking the existence of exceptional circumstances, cannot
evade the obligations it has undertaken under international human rights
law by ratifying the Covenant.
A situation in which the functions and competences of the judiciary and the
executive are not clearly distinguishable or where the executive is able to
control or direct the judiciary is incompatible with the notion of an independent and impartial judiciary.
Governments are under a legal obligation to ensure that remedies for violations are effective. Expedition and effectiveness are particularly important
in the adjudication of cases involving torture.
Where violations have taken place Governments must take measures to
ensure that similar violations do not take place in the future.
Governments should take specific and effective measures to prevent the disappearance of individuals and establish effective facilities and procedures
to investigate thoroughly by an appropriate and impartial body, cases of
missing and disappeared persons.
Being subjected to incommunicado detention in an unknown location constitutes cruel and inhuman treatment.
Women and men are entitled to equal treatment in the application of laws.

Human Rights As International Constitutional Law

53

Conclusion
We would conclude this chapter with the following submissions, grounded
in the belief that human rights norms are part of international constitutional law:
National constitutional arrangements must be designed, and periodically
reviewed, so as to ensure implementation, in good faith, of international
human rights obligations.
International human rights law must take precedence over national law.
This is the principle of the supremacy of international law.
National courts must be empowered to implement international human
rights norms.
International organizations must recognize as an inherent part of their
mandate to protect human rights recognized in universal norms. The un
Security Council must respect human rights norms in the course of its work
and must act for the protection of human rights in situations or on issues
engaging its attention.
Regional organizations everywhere must recognize as an inherent part of
their mandates to protect human rights recognized in universal and regional
norms.
Norms of jus cogens must be incorporated within the constitutional and
legal orders of every State.
The core of the udhr and the iccpr should be part of the constitutional
and legal orders of every State.
The duty to cooperate, codified in the un Declaration on Principles of
Friendly Relations and Cooperation (1970), should be reflected in the constitutional and legal orders of States.
Organs of society nationally, regionally, and internationally, must cooperate
in good faith to prevent threats to the existence and security of humankind
and the planet.
The duty to cooperate in respect of the Responsibility to Protect should be
reflected in the national constitutional order of every State.
Norms of jus cogens and of international customary law should be incorporated into the legal orders of every Member State.
Every Government must be able to show that it has in place an adequate
and effective national protection system.
Governance in every country of the world must be in accordance with the
principles of the Universal Declaration of Human Rights and human rights
norms binding upon all governments.

54

Chapter II

The Human Rights Council, a political body with a values-based mandate, has
so far not thought much in terms of human rights as part of international constitutional law. There are powerful states within its membership that would
probably not wish to see it go down this route. But we believe that it must, for
a simple reason: the sole framework of reasoning that exists to cover everyone
in the international community is that the international public order is
grounded in international human rights norms and that, at the end of the day,
everyone must be held accountable to this legal architecture.

chapter III

Public Policy Role

Introduction

Ideally on the basis of the modern human rights law of the Charter and the
human rights provisions of international constitutional law, the Human Rights
Council has the potential to perform, alongside the un General Assembly, the
Security Council, and possibly the Economic and Social Council, a useful international public policy function in highlighting emerging problems and issues
affecting humanity as a whole or different groups of beings and making recommendations for dealing with them. The Council does this to some extent, as we
shall show below, but it is not clear to what extent its efforts penetrate the wider
international community or are having an impact on the ground. The Councils
efforts are hortatory for the most part but it can follow up on its policies when it
considers reports of countries under the Universal Periodic Review process. Over
time, the Councils pronouncements can build up into normative provisions.
The Council has a high-level segment each year, usually at its spring session,
and Heads of Government and other senior national, international and regional
leaders attend in large numbers. Each leader speaks on the issue of his or her
interest or expertise but there is no thematic or other summary that can be consulted outside of the framework of the Council. Those interested in what was
said need either to follow the speeches on the Councils extranet or to consult
the texts of the addresses posted on the Councils internet web-site. The Council
also regularly organises panel discussions on thematic issues and there are
Secretariat summaries on some of these sessions. These summaries are used
mainly by participants in the Council. The summaries are available on the internet web-site of the Council. On occasions the panel discussion could be said to
perform a public policy function. There is an issue for future consideration here,
in relation both to the high-level segment and the panel discussions, as to how
the deliberations of the Council can be better communicated to the world at
large on its public policy contributions. Receptivity to the Councils contributions is, unfortunately, negatively affected by the controversies that often swirl
around the Council over its failure to protect those in need or over the allegation
by some that the Council applies different weights and measures.
While there are contested areas of the Councils activities, the Council has
registered a consensus on the position of principle that human rights and fundamental freedoms are the birthright of all human beings and that their

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romotion and protection is the first responsibility of Governments.79 It has

p
reaffirmed that the will of the people shall be the basis of the authority of governments and that every citizen shall have the right and the opportunity 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.80
It has recognized the need for States, in cooperation with international
organizations and civil society, including ngos and the private sector, to create
favourable conditions at the national, regional and international levels to
ensure the full and effective enjoyment of the right of everyone to the highest
attainable standard of physical and mental health.81 It has affirmed the importance of applying a human rights-based approach to reducing and eliminating
preventable child mortality and morbidity.82
In adopting resolutions and decisions on the broad gamut of rights in international human rights instruments, the Council seeks to highlight the need for
more effective action to implement these rights and to indicate areas of concern. In the following sections we offer a selection, necessarily subjective and
skeletal, on some of the broader policy emphases of the Council or to show the
Council drawing attention to new problems, such as attacks on persons with
albinism.
I

The Role of Good Governance in the Promotion and

Protection of Human Rights

The Council has highlighted the role of national policies on human rights,
noting that States should integrate their obligations under international
human rights law into their national legislation in order to ensure that State
actions at the national level are effectively directed towards the promotion
and protection of all human rights and fundamental freedoms. It has recognized that State action aimed at the full realization of human rights and fundamental freedoms at the national level is made most effective by drawing
up and putting into practice national policies in conformity with obligations under international human rights law. It has further recognized the
importance of developing, strengthening and implementing, as appropriate,
79
80
81
82

Council Resolution 24/2.

Council Resolution 24/8.
Council resolution 24/6.
Council resolution 24/11.

Public Policy Role

57

national s ystems for collecting, monitoring and evaluating relevant disaggregated national data as a useful tool for drawing up and assessing the impact of
national policies aimed at the enjoyment of human rights and fundamental
freedoms.83
It has recognized the role of independent national institutions for the promotion and protection of human rights at the national level, including by
contributing to follow-up actions, as appropriate, to the recommendations
resulting from the international human rights mechanisms. It has encouraged
national institutions for the promotion and protection of human rights established by Member States to continue to play an active role in preventing and
combating all violations of human rights.84
In a series of resolutions on the role of good governance in the promotion
and protection of human rights, the Human Rights Council has noted the
mutually reinforcing relationship between good governance and human rights.
It has recognized that transparent, responsible, accountable, open and participatory government, responsive to the needs and aspirations of the people, is
the foundation on which good governance rests and that such a foundation is
one of the indispensable conditions for the full realization of human rights,
including the right to development.
The Council has stressed that good governance at the national and international levels is essential for sustained economic growth, sustainable development and the eradication of poverty and hunger. The Council has taken
cognizance of the increasing awareness in the international community of the
detrimental impact of widespread corruption on human rights through both
the weakening of institutions and the erosion of public trust in government, as
well as through the impairment of the ability of Governments to fulfill all their
human rights obligations.
The Council has noted that the fight against corruption at all levels plays an
important role in the promotion and protection of human rights and in the
process of creating an environment conducive to their full enjoyment. It has
recognized that effective anti-corruption measures and the protection of
human rights, including through strengthening transparency and accountability in government, are mutually reinforcing.
The Council has stressed the importance of policy coherence and
coordination in intergovernmental processes in the area of the promotion
and protection of human rights, on the one hand, and of anti-corruption initiatives, on the other. The Council has reaffirmed the right of every citizen to
83
84

Council resolution 23/19.

Council resolution 23/17.

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have access, in general terms of equality, to public service in his/her country as

enshrined in article 21 of the Universal Declaration of Human Rights and article 25(c) of the International Covenant on Civil and Political Rights.
The Council has recognized that a professional, accountable and transparent public service upholding the highest standards of efficiency, competence
and integrity is one of the essential components of good governance. It has
also recognized that the knowledge, training and awareness of public servants,
as well as the promotion of a human rights culture within the public service,
play a vital role in promoting respect for and the realization of human rights in
society.
The Council has underlined that the primary responsibility lies with States
at the national level, including through their Constitutional provisions and
other enabling legislation consistent with their international obligations, to
ensure that professional public services uphold the highest standards of efficiency, competence and integrity, and are predicated on good governance
principles, including impartiality, rule of law, transparency, accountability and
combating corruption, and stressed the importance of human rights training
and education in this regard.85
II

The Negative Impact of Corruption on the Enjoyment

of Human Rights

The Council has highlighted its deep concern about the increasing negative
impact of widespread corruption on the enjoyment of human rights. It
requested its Advisory Committee to seek the views and inputs of Member
States and organizations dealing with the issue of corruption, as well as
national human rights institutions and to prepare a research-based report on
the issue of the negative impact of corruption on the enjoyment of human
rights and to make recommendations on how the Council and its subsidiary
bodies should consider this issue.86
III

The Human Rights Role of National Parliaments

The Human Rights Council has noted the crucial role that parliaments play,
among others, in translating international commitments into national policies
85
86

See Council resolution 25/8.

Council resolution 23/9.

Public Policy Role

59

and laws and in contributing to the fulfilment by each State Member of the
United Nations of its human rights obligations and commitments and to the
strengthening of the rule of law. It has advocated the further development of
synergies to ensure that the universal periodic review has the greatest impact
at the national level.87 At its twenty-third session it organized a panel discussion on the contribution of parliaments to the work of the Council and its universal periodic review.
IV

National Policies and Human Rights

The Council, bearing in mind that States should integrate their obligations
under international human rights law into their national legislations in order
to ensure that State action at the national level is effectively directed towards
the promotion and protection of all human rights and fundamental freedoms,
has expressed its view that State action aimed at the full realization of human
rights and fundamental freedoms at the national level is made most effective
by drawing up and putting into practice national policies in conformity with
obligations under international human rights law. It has recognized the importance of developing, strengthening and implementing, as needed, national
systems for collecting, monitoring, and evaluating relevant disaggregated
national data as a useful tool for drawing up and assessing the impact of
national policies aimed at the enjoyment of human rights and fundamental
freedoms.88
The Council has encouraged States to further the integration of human rights
education and training into school and training curricula, as well as to provide
human rights education and training for educators in formal and non-formal
education and training, in particular those working with children and youth.89
V

Civil Society Space

The Council has recognized the important role of society at the local, national,
regional and international levels, and that civil society facilitates the achievement of the purposes and principles of the United Nations. It has reaffirmed
that special emphasis should be given to measures to assist in the strengthening
87
88
89

Council resolution 23/17.

Council resolution 23/19.
Council resolution 24/15.

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of a pluralistic civil society, including through the strengthening of the rule of

law, social and economic development, the promotion of freedom of expression, the rights of peaceful assembly and freedom of association, and the
administration of justice, and to the real and effective participation of the
people in decision-making processes. It has urged States to create and maintain, in law and in practice, a safe and enabling environment in which civil
society can operate free from hindrance and insecurity.90
VI

Justice for Women

In 1848, a full one hundred years before the adoption of the Universal
Declaration of Human Rights, the first international convention on womens
rights, held at Seneca Falls, New York, adopted a remarkable declaration, The
Declaration of Sentiments, which recorded the historic plight of women that
continues in many respects even in our times in many parts of the world. The
history of mankind, it complained, has been a history of repeated injuries and
usurpations on the part of man towards woman, having in direct object the
establishment of an absolute tyranny over her. It continued: To prove this, let
facts be submitted to a candid world:
He has never permitted her to exercise her inalienable right to the elective
franchise. He has compelled her to submit to laws, in the formation of
which she had no voice; He has withheld from her rights which are given to
the most ignorant and degraded men both native and foreigner. Having
deprived her of this first right of a citizen, the elective franchise, thereby
leaving her without representation in the halls of legislation, he has
oppressed her on all sides. He has made her, if married, in the eyes of the
law, civilly dead. He has taken from her all right in property, even to wages
she earns. He has denied her the facilities for obtaining a thorough education, all colleges being closed against her He has endeavoured, in every
way that he could, to destroy her confidence in her own powers, to lessen
her self-respect and to make her willing to lead a dependent and abject life.
The struggle for justice for women continues in our times. The Human Rights
Council has called upon States to take concrete steps towards eliminating all
forms of discrimination against women and girls, directed to achieve gender
equality and the elimination of all forms of discrimination against women and
90

Council resolution 24/21.

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61

girls, including nationality laws.91 It has affirmed the fundamental role that
freedom of opinion and expression plays in the ability of women to interact
with society at large, in particular in the realms of economic and political participation and stressed that the active participation of women, on equal terms
with men, at all levels of decision-making, is essential to the achievement of
equality, sustainable development, peace and democracy.92 It has called for
accelerated efforts to eliminate all forms of violence against women, particularly preventing and responding to rape and other forms of sexual violence.93
VII

Preventing and Eliminating Child, Early and Forced marriage

The Council has highlighted States human rights obligations and commitments to prevent and eliminate the practice of child, early, and forced marriage, which disproportionately affects women and girls. It convened at its 27th
session a panel discussion on preventing and eliminating child, early, and
forced marriage, with a particular focus on challenges, achievements, best
practices and implementation gaps.
VIII

Birth Registration and the Right of Everyone to Recognition

Everywhere as Person before the Law

The Council has expressed concern at the high number of persons throughout
the world whose birth is not registered. It has reminded States of their obligation to undertake birth registration without discrimination of any kind. It has
urged States to identify and remove physical, administrative and any other barriers that impede access to birth registration, including late birth registration,
paying due attention to barriers such as those relating to poverty, disability,
multicultural contexts and persons in vulnerable situations.94
IX

The Human Rights of Older Persons

The Council has raised its voice in favour of the implementation of the
human rights of older persons. It has recognized the challenges related to the
91
92
93
94

Council Resolution 23/7.

Council Resolution 23/2.
Council resolution 23/25.
Council resolution 19/9.

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enjoyment of all human rights that older persons face in areas such as prevention and protection against violence and abuse, social protection, food and
housing, employment, legal capacity, access to justice, health support, long-term
and palliative care, and that those challenges require in-depth analysis and
action to address protection gaps. It has called upon all States to ensure the full
and equal enjoyment of all human rights and fundamental freedoms for older
persons, including by taking measures to combat age discrimination, neglect,
abuse and violence, and to address issues related to social integration and adequate health care, bearing in mind the critical importance of family intergenerational interdependence, solidarity and reciprocity for social development. The
Council has called upon all States to enhance their existing mechanisms related
to the protection and protection of human rights for older persons, including by
adopting, as appropriate, legal or other dedicated mechanisms.95
X

Attacks and Discrimination against Persons with Albinism

The Council has drawn attention to, and expressed its concern at, attacks
against persons with albinism, including against women and children, which
are often committed with impunity. It has urged States to take all measures
necessary to ensure the effective protection of persons with albinism, and
their family members. It has also called upon States to take effective measures
to ensure accountability, through the conduct of impartial, speedy and effective investigation into attacks against persons with albinism falling within
their jurisdiction, and to bring those responsible to justice, and to ensure that
victims and family members have access to appropriate remedies. It has further called upon States to take effective measures to eliminate any type of discrimination against persons with albinism, and to accelerate education and
public education and public awareness-raising activities.96
XI

The Human Right to Safe Drinking Water and Sanitation

The Council has supported recognition of the human right to safe drinking
water and sanitation by the General Assembly. It has reaffirmed that the
human right to safe drinking water and sanitation is derived from the right to
an adequate standard of living and is inextricably related to the right to the
95
96

See also, Council resolution 24/20.

Council resolution 23/13. See also resolution 24/33.

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63

highest attainable standard of physical and mental health, as well as the right
to life and human dignity. The Council has invited States to continue to promote, at all levels, including at the highest level, the full realization of the
human right to safe drinking water and sanitation in forthcoming national,
regional and international initiatives.97
The Council has called upon States:
(a) To prioritize in an appropriate way funding for safe drinking water and
sanitation, with a particular focus on extending access to the unserved or
underserved, including measures to identify the most marginalized,
excluded and disadvantaged persons in terms of access to safe drinking
water and sanitation, to develop the capacity of decision makers and
practitioners for implementing strategies and concepts specifically focusing on the sustainable provision of safe drinking water and sanitation to
the unserved poor, and to develop specific initiatives that are most likely
to reach the most marginalized and disadvantaged and improve their
situation.
(b) To consider increasing the percentage of international aid allocated to
safe drinking water and sanitation, and to incorporate a human rightsbased approach.
(c) To monitor the affordability of safe drinking water and sanitation in
order to determine whether specific measures are needed to ensure that
household contributions are and remain affordable by means of, inter
alia, effective regulation and oversight of all service providers.
(d) To promote transparency of budgets and other funding, as well as of programmes and projects of all actors in the water and sanitation sector, in
order to ensure an adequate basis for planning with regard to the most
vulnerable and marginalized sectors of society and in order to inform
decision-making and policymaking processes in both public and private
sectors.
(e) To consult with communities on adequate solutions to ensure sustainable access to safe drinking water and sanitation.
(f) To ensure the sustainability of access to water and sanitation by, inter
alia, capacity-building of Government authorities at all levels with regard
to their responsibilities in the service delivery chain, adequate budgeting
of costs, including costs of maintenance, and establishing an adequate
and effective regulatory system.
97

Council resolution 21/2. See also resolution 24/18.

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Conclusion
The foregoing does show that the Human Rights Council is performing, on the
basis of general agreement, a useful international public policy function, drawing attention to problems affecting the enjoyment of human rights being
encountered by different groups of people and advancing recommendations
for addressing them. There are other examples of this. The Council has affirmed
the importance of effective preventive measures as a part of overall strategies
for the promotion and protection of human rights.98 It has urged States to create and maintain, in law and in practice, a safe and enabling environment in
which civil society can operate free from hindrance and insecurity.99 It has
recognized that cultural diversity and the pursuit of cultural development by
all peoples and nations are a source of mutual enrichment for the cultural life
of humankind.100 It has urged the integration of human rights education and
training into school and training curricula.101
The Council has reaffirmed that the universal periodic review, together with
the United Nations treaty bodies, are important mechanisms for the promotion and protection of human rights and, in that regard, encouraged effective
follow-up to accepted universal periodic review recommendations.102

98
99
100
101
102

Council resolution 24/16.

Council resolution 24/21.
Council resolution 23/10.
Council resolution 24/15.
Council resolution 24/10.

chapter IV

Human Rights and Security Challenges

Introduction

We have so far looked at the modern human rights law of the Charter, human
rights as international constitutional law, and the public policy role of the
Human Rights Council. The Council now operates in the face of grievous security threats to the international community and to particular regions. The
Council needs to develop a closer relationship with the Security Council,
something that depends more on the readiness of the Security Council. Both
Councils must anchor their responses to security challenges in the international law of human rights.
The first part of this chapter discusses possibilities of partnership between
the Security Council and the Human Rights Council. The second part will look
at how the Council deals with the issue of terrorism and human rights. The
third part will look at how the Council responded in September 2014 to the
threats to human rights posed by the practices and ideology of a group calling
itself the Islamic State and presenting itself as the global Islamic Caliphate.
I

Partnership between the Security Council and the Human Rights

Council

The Security Council has a long-standing practice of cooperation with regional

institutions devoted to the prevention and management of conflict, such as
the African Union and the osce. For a long time now, the President of the
Council has received a monthly briefing from the International Committee of
the Red Cross (icrc) on issues of humanitarian needs and humanitarian
law in situations of concern to the Council. Special Representatives of the
Secretary-General, such as the Special Representative on Children and
Armed Conflict periodically brief the Security Council. For a number of years
ohchr briefed the President of the Council monthly and successive High
Commissioners have briefed the Council in informal as well as formal
sessions.
Although an effective partnership between the Human Rights Council and
the Security Council cannot be said to have been established yet, different
Special Procedures (fact-finders) of the Human Rights Council have briefed

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members of the Security Council under the Arria formula. The Security
Council draws regularly on information from International human rights ngos
such as Amnesty International and Human Rights Watch. Nowadays such
organizations are utilizing satellite imaging to determine what is going on in
particular situations and the question arises for reflection how the Security
Council might benefit from this kind of information.
a
The Idea of Partnership in the Charter
The Charter does not provide specific guidance on the issue of Security Council
partnerships but some guidance may be derived from Articles 29 and 30 of the
Charter and from the Provisional Rules of Procedure of the Security Council
and its practice. Under Article 29 of the Charter, the Security Council may
establish such subsidiary organs as it deems necessary for the performance of
its functions. Goodrich, Hambro and Simons, in their commentary on the
Charter, noted that in some instances individuals are designated; for example,
the United Nations Representative for India and Pakistan.103
Article 30 of the Charter provides that the Security Council shall adopt its
own rules of procedure. Rule 39 of the Provisional Rules of Procedure of the
Council states that the Council may invite any other person whom it considers
competent to participate in its proceedings The Commentary to the Charter
edited By Bruno Simma noted that such other persons may not themselves
submit a request for participation. Request for the participation of other persons must be put forward by authorized un organs: Since 1970, Rule 39 has
been applied often, particularly in favour of organizations such as the former
un Council for Namibia and the Anti-Apartheid Committee, as well as regional
organizations (e.g. the oau and League of Arab States). In addition to conceding them the right to intervene at sc meetings, the sc may invite such persons
in accordance with Rule 39 to give (the sc) other assistance in examining matters. Consequently, such persons may, in contrast to non-member states of the
un, even be authorized by the sc to submit draft resolutions.104
One could add, in addition to what is written above, that invitations could
emanate from consultations and agreement among Members of the Security
Council. For example, on 19 September, 2012, when the Council held a debate
on Children and armed conflict, the President of the Council, with the prior
agreement of its members, invited the following persons to participate in the
103 L. Goodrich, E. Hambro and A.P. Simons, Charter of the United Nations. A Commentary,
Second Edition (New York, Columbia University Press, 1969), p. 23.
104 B. Simma (Ed.), The Charter of the United Nations. A Commentary (Oxford, Oxford
University Press, 1995), p. 493.

Human Rights And Security Challenges

67

eeting under rule 39 of the Councils rules of procedure: Ms Laila Zerrougi,

m
Special Representative of the Secretary-General for Children and Armed
Conflict; Mr Herve Ladsous, usg for Peacekeeping Operations; Mr Anthony
Lake, Executive Director of unicef; Mr David Tolbert, President of the
International Centre for Transitional Justice (an ngo); Mr Thomas MayrHarting, Head of the Delegation of the European Union to the United Nations.
b
The Objectives of Partnership
Having noted above that there is already some cooperation between the
Security Council and human rights and humanitarian bodies, we need, especially when looking to the future, to ask what policy objectives the Security
Council might aim for when it comes to future partnerships. Consideration of
this question must start from the mandate of the Council, which is to consider
taking action when it perceives a potential breach of international peace or
security, to act in the face of actual breaches, to endeavour to address humanitarian needs and human rights problems in relation to situations within its
purview and, if needed, to consider the application of sanctions of one kind or
another as deemed appropriate in the judgment of the Council. With the
establishment of the International Criminal Court the element of redress, or of
justice, also needs to be kept in mind.
The Security Council should also have a vision of the emerging world of the
twenty-first century that it would need to keep in mind always, especially new
threats and challenges before humanity. The Oxford History of the Twentieth
Century contains a chapter, Towards a World Community? The United Nations
and International Law,105 in which Prof. Adam Roberts noted that throughout
the twentieth century there had been an underlying tension between two logically incompatible sets of ideas: the sovereignty of states, on the one hand, and
the creation of a supranational order through international law and organization on the other. Sovereignty implied the right of each state to have its own
rules and institutions, while International law and organization, especially
when covering the vast range of matters they now encompass, imply a serious
limitation of sovereignty. The experience of the twentieth century had been
that neither approach could triumph over its opponent. If some kind of
ordered and law-based international society had emerged, it had done so on a
curious basis: It was founded on two logically incompatible sets of ideas, each
of which needed the other in order to remedy its own inherent limitations.106
105 M. Howard and W.R. Louis (Eds.,) Oxford History of the Twentieth Century (Oxford, oup,
1998).
106 Ibid, pp. 317318.

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The Security Council has to stand for international authority when it comes to
threats to human security.
In a chapter in the same volume, Towards the Twenty-First Century, Prof.
Ralph Dahrendorf noted that Utopia had been one of the casualties of the
twentieth century and offered three moral principles for the twenty-first century: First, that only open societies can be good societies. Second, we must
acknowledge a duty to future generations; the responsibility principle was
necessary in the risk society in which we are living. Third, there is the matter
of underlying attitudes. Ernest Gellner, in his Uniqueness of Truth, had identified three underlying attitudes: the relativist, the fundamentalist, and the
enlightenment puritan. Certainly, a wave of relativism was sweeping the world,
especially the old developed world, where anything goes, either because it
serves the self-interest of those who do not want to be told by others what not
to do, or because it seems the logical end of the road from liberal to libertine
predilection. Such relativism, however, would not help us square the circle in
an age of globalization. We are living in a horizon of uncertainty. We do not
know for sure what is right and good and just, but we must try to find out. We
must never give up trying to enhance the quality of life.107
The horizon of uncertainty is something that should be constantly in the
mind of the Security Council and the Human Rights Council. Information gathering and assessment must be keys when dealing with the age of uncertainty. In
the following sections we shall address through the lens of partnership the
issues of information-gathering and assessment, threats to international peace
and security, breaches of international peace and security, humanitarian needs
and challenges, human rights challenges, issues of sanctions, redress or compensation, and issues of justice. Consideration of issues such as these should
guide the future partnership of the Security Council with human rights and
humanitarian bodies.
c
Information-Gathering and Assessment
From the perspectives of the Security Council, it should be interested in receiving on a regular and organized basis four categories of human rights information: (1) Human rights violations that can lead to threats to, or breaches of,
international peace and security. (2) Human rights information that can lead
to the commission of international crimes, especially crimes proscribed under
mandatory rules of international law or, in technical parlance, norms of jus
cogens. (3) Information that can lead to massive refugee outflows or internal
displacements. (4) Information about potential humanitarian disasters.
107 Ibid, pp. 342343.

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The question that arises for reflection is whether the Security Council is
currently receiving such information on a regular and organized basis. At the
present time, there is a great deal of information in the media that members of
the Council are exposed to and they can make their own assessments. But they
need assistance in doing this. Members of the Council come to it with their
own sources of information, particularly the permanent members of the
Council, all five of whom have their intelligence services. But here, also, they
need back up on analysis and assessments.
The main provider of information to the Council in the current practice is
the un Department of Political Affairs. But the Department faces many challenges of shortage of staff and lack of specialized expertise, and it will, in the
nature of things, proceed cautiously. This is quite natural. This writer was a
Director in the Department of Political Affairs whose Division had to brief the
Secretary-General and the Security Council on potential situations of concern.
It is not evident that the Department has available to it the requisite information on the four categories of issues referred to earlier. Furthermore, the members of the Council are entitled to expect a judicious approach on the part of
dpa. In the nature of things, dpa will proceed with caution.
The icrc has a long-standing practice of providing monthly briefings to the
President of the Security Council but these have been, naturally, mainly on
situations on the agenda of the Council. icrc is a very cautious organization
and there is little in its practice that suggests that it engages much in assessments about likely problem situations.
The High Commissioner for Human Rights has been quite active in briefing
the Council on situations on its agenda. Previously, the Office used to provide
a monthly briefing to the President of the Council, mainly on situations on the
agenda of the Council. This was, rather perplexingly, discontinued in recent
years. Such a monthly briefing could provide an avenue for ohchr to alert the
Council to impending or projected situations of possible concern. This is a
matter on which the Office might wish to think again.
Keeping in mind the four categories of situations we referred to earlier, the
first, namely human rights violations that could lead to threats to, or breaches
of, international peace and security, could be covered by ohchr. Its contributions could be supplemented by inputs from respectable international human
rights organizations such as Amnesty International or Human Rights Watch.
When it comes to information about situations that could lead to the commission of international crimes, an organization like the International Crisis
Group could be helpful. One would need to think carefully about whether the
Office of the Prosecutor of the International Criminal Court could provide
information on this category of issues. We tend to think not, on the ground that

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it would be healthy to maintain lines of discretion between the Office of the

Prosecutor and the Security Council.
On the third category of issues, situations that could lead to massive refugee
outflows or internal displacement, the Office of un High Commissioner for
Refugees could be expected to be the lead organization here, with a possible
role also for the un Department of Humanitarian Affairs. icrc would have
information and insights on this category of issues but, because of the discreet
role that it plays in conflict and humanitarian situations, one might need to
proceed with prudence here.
On the fourth category of situations, those that might involve potential
humanitarian disasters, the un Department of Humanitarian Affairs, and also
the Department of Political Affairs, might play the lead roles. Regional and
sub-regional organizations, especially those with conflict prevention systems,
can play a useful role as regular providers of information and analyses to the
members of the Security Council.
When discussing information-gathering and assessment thus far we have
had in view that the Security Council of the future must have at its disposal
stronger information and analyses that can help it to develop its collective
thinking, particularly about thematic phenomena such as climate change and
potential disasters, natural and man-made. Beyond such background information and analyses, there is the issue of how the Council might be assisted in
dealing with human rights situations that might be on the verge of leading to
threats to or breaches of international peace and security. We discuss the issue
of threats next.
d
Threats to International Peace and Security
What is involved here are serious human rights emergencies or violations
that might threaten international peace and security. For a start it is necessary to recognize that the Security Council is, understandably, a highly political body that does not lend itself easily to speculative initiatives. When,
therefore, one is considering this issue, it is important to do so with care and
deliberation.
It is the un Secretary-General who should be the lead actor here. The
Charter provides in Article 99 that the Secretary-General may bring to the
attention of the Security Council any situation that he considers might threaten
or breach international peace and security. This competence has not been
used much in practice, barely about ten times since the establishment of the
un. However, in more recent practice, informal consultations in the Security
Council, which are quite frequent, provide opportunities for the SecretaryGeneral or the Department of Political Affairs to share concerns with members

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of the Council. The Secretary-General also has other informal occasions to do

so, as for example, during his monthly luncheon with the members of the
Council.
Entities with information on human rights situations that might threaten
international peace and security include the leading human rights ngos, or an
organization such as the International Crisis Group, the High Commissioner
for Human Rights, instrumentalities of the Human Rights Council such as its
Special Procedures, unhcr, the Department of Political Affairs and possibly
other departments or agencies such as unicef, and possibly regional organizations, especially those with conflict prevention or human rights arrangements. It would be important that information in their possession be
transmitted to the Secretary-General with their recommendation, if that is
their judgment, that he consider bringing the situation to the attention of the
Council in one form or another.
In the nature of things, it can be expected that the Department of Political
Affairs would examine and assess the information thus transmitted and make
a recommendation to the Secretary-General, using their political judgment,
whether the situation reaches the threshold for attention by the SecretaryGeneral and whether, in all the political circumstances, it is advisable for the
Secretary-General to act, or for action to be taken in his name. It is inevitable
that information transmitted be processed through political lens. As a former
Director in the Department of Political Affairs responsible for African countries, we are familiar with the mindset of the Department and with the
political judgment that must be brought to these matters. It is important to
emphasize, however, that there be a conscious procedure for transmitting
information from human rights and related agencies to the Office of the
Secretary-General.
We have left open in this section the issue of whether the Human Rights
Council should formulate and transmit for the attention of the Security Council
its assessment that a human rights emergency threatens international peace
and security. On balance, we think that this is something that the Council
should do only after very careful consideration and that it should opt to transmit information at its disposal to the Secretary-General for consideration
under Article 99, as discussed earlier. We have come to this judgment on the
ground that when the Human Rights Council acts formally it should rather be
in relation to situations that it considers does actually breach international
peace and security. The assessment of the Human Rights Council should have
a seriousness and solemnity before it takes the decision to draw the attention
of the Security Council to such situations. We discuss this matter further in the
next section.

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e
Breaches of International Peace and Security
What is at issue here are human rights emergencies or violations that can be
considered to have resulted in breaches of international peace and security.
From the discussion in the previous section, we can immediately say that a
leading actor in alerting the Security Council to such situations might be the
un Secretary-General. Regional intergovernmental organizations, especially
those with conflict prevention arrangements could conceivably decide to bring
situations of human rights emergencies to the attention of the Security Council.
An issue that deserves attention here is whether, in appropriate situations,
the Human Rights Council might choose to alert the Security Council formally
that, in its opinion, a situation of human rights emergency or violation constitutes a breach of international peace and security. We think that in appropriate
situations this is something that the Human Rights Council might, and possibly should, do, but that it should not be done lightly and that it should be the
exception rather than the norm.
It needs to be said that, from a formal point of view, it is for the Security
Council to make the determination whether a situation breaches international
peace and security. Formally the Human Rights Council has no such competence. But there is nothing to prevent it from formulating its views and sharing
them with others, in this instance the Security Council. It will always be left to
the judgment of the Security Council whether to act on such information or
advice from the Human Rights Council. The Security Council is a political body
and it is expected to apply political assessments and judgments in its analysis
and handling of situations. There can be no automaticity in the way the
Security Council discharges its functions.
We saw earlier when discussing the concept of partnership in the Charter,
the Commentary in the volume edited by Professor Bruno Simma that requests
for the participation of other persons in the deliberations of the Security
Council can be put forward by authorized un organs and that Rule 39 of the
Security Councils Provisional Rules of Procedure has been applied often, particularly in favour of organizations such as the former un Council for Namibia
and the Anti-Apartheid Committee, as well as regional organizations (e.g. the
oau and League of Arab States). In addition to conceding them the right to
intervene at sc meetings, the sc may invite such persons in accordance with
Rule 39 to give the sc other assistance in examining matters. Consequently,
such persons may, in contrast to non-member states of the un, even be authorized by the sc to submit draft resolutions.108
108 B. Simma (Ed.), The Charter of the United Nations. A Commentary (Oxford, Oxford
University Press, 1995), p. 493.

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Now, if a situation is already on the agenda of the Security Council there

would be no need for the Human Rights Council to draw it formally to the attention of the Security Council. But it can choose to make its assessment known to
the Security Council. At the present time it is the High Commissioner for
Human Rights who has been briefing the Security Council on the human rights
aspects of situations on its agenda. The question arises for reflection whether,
in appropriate instances, the Human Rights Council might decide to ask that its
President or other designee be heard by the Security Council. We think that it
would, as a matter of policy, be legitimate and possibly even wise on occasions,
for the Human Rights Council to request that one or more of its special procedures be heard by the Security Council. This is uncharted territory and we are
here engaging in policy reflections that might guide future practice.
We are still left with the issue whether, in appropriate situations, the Human
Rights Council might on occasion formally decide to draw the attention of the
Security Council to a situation that it considers breaches international peace
and security. We think that this is an option that should be kept open as a possibly wise one, depending on the situation, but that if the Human Rights
Council were to decide to make such a referral, it should do so by consensus,
that it to say, without dissenting vote. Were this threshold to be achieved, the
Human Rights Council, in its decision, could also request that its President or
other designee be heard by the Security Council.
Humanitarian Needs and Challenges in the Application of
International Humanitarian Law
We have so far taken the tack that the responsibility of the Security Council
relates to situations involving threats to or breaches of international peace and
security. When it comes to humanitarian needs, the responsibility of the
Security Council would arise mainly in relation to such situations. There are
three aspects to be considered: First, in relation to situations on the agenda of
the Security Council it would naturally be interested in the humanitarian
dimensions because this is a matter not only of conscience but also of the
management of the situation from the perspectives of the restoration or maintenance of international peace and security. Information and advice in relation to such situations can be expected from the Secretary-General, backed up
by ocha, dpa, icrc, ohchr and institutions such as unhcr, unicef,
regional organizations, and ngos such as the International Crisis Group. Each
situation will have its own dynamic and pragmatic dynamism would be
needed, bearing in mind that the Security Council might be better able to
absorb and act on information the more there is discretion on the part of all
concerned.

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When it comes to breaches of international humanitarian law during situations of armed conflicts, the lead role here is played by the icrc, ohchr, and
human rights and humanitarian organizations. The Security Council has a
fairly good record of emphasizing the importance of the application of international humanitarian law and has on several occasions called parties to order
on this score.
It is in the nature of its practice that the icrc will be discreet in providing
information and analyses on respect or non-respect for international humanitarian law in situations of armed conflict. icrcs monthly briefings of the
President of the Council have proven their worth over the years and can be
expected to continue to do so in the future.
The un High Commissioner for Human Rights has also played a valuable
role in briefing the Council about violations of human rights and humanitarian law during armed conflicts. The Secretary-Generals Special Adviser on
Children and Armed Conflict has developed a solid working relationship with
the Security Council, participating in the Councils periodic debates on this
topic.
The question arises for reflection whether the Security Council might be
more pro-active when dealing with humanitarian needs and violations of
international humanitarian law. We think that what is important here is that
the Council have at its disposal the best information and analyses available so
that it might consider the most appropriate political responses within the
framework of its responsibilities for the maintenance of international peace
and security. The element of political judgment will always be present, for that
is the nature of the Security Council.
g
Human Rights Challenges
We have already discussed above the issues of information-gathering and analysis on human rights matters, particularly in relation to situations involving
threats to, or breaches of, international peace and security. We have adverted
to the potential roles of the High Commissioner for Human Rights, the Human
Rights Council, its Special Procedures, regional and sub-regional organizations, and reputable ngos. The question that needs to be posed now is whether
the Security Council, as a matter of policy, can raise its profile higher when it
comes to human rights issues, always bearing in mind that its responsibility
relates to threats to or breaches of international peace and security.
We think that this matter might be considered in relation to global threats
of such a magnitude that they could affect the basic human rights of humanity
as a whole. Issues that might be reflected upon include global pandemics,
climate change, population trends, and terrorism. The Security Council, not

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without some controversy, has discussed the issue of hiv/aids through the
lens of the maintenance of international peace and security. It would probably
be right, as a matter of policy, to say that issues of this nature should be dealt
with in the first instance by the specialized bodies and that they should engage
the attention of the Security Council only when there is a good case to be made
that issues related to the maintenance of international peace and security
might be involved.
Climate change is already much discussed in the un system and the issue is
not without controversy. To date, the Security Council has not had much
debate on the topic. But if the trends continue to be dire, there can be little
doubt that it would involve serious issues of international peace and security
and would be deserving, at the least, of a watching brief on the part of the
Security Council.
Scientific and technological developments that could involve global human
security would also be deserving of a watching brief on the part of the Security
Council, even if there are specialized bodies, including the Human Rights
Council keeping an eye on it.
h
Issues of Sanctions, Justice and Redress
When it comes to issues of sanctions, justice, and redress, they need to be considered on a case by case basis. As much as one would like to lay down grand
principles, one must recognize that the task of the Security Council is invariably to deal with very complex situations, and with only the assets that Member
States might be ready to put at its disposal. Furthermore, putting an end to
conflicts can be quite difficult and often does not lend itself readily amenable
to understandable desires for justice or redress.
As to sanctions, the Charter of the United Nations provides for their employment in situations where the Security Council, in the exercise of its judgment,
considers that they might be useful. The question that arises for reflection here
is the role that human rights partners might play in calling for the application
of sanctions or in monitoring the human rights dimensions of their application once they have been instituted. It would be a reasonable proposition that
human rights partners might, in the exercise of their judgment, call for the
application of sanctions when they consider that this could be useful. Human
rights partners should do so with some restraint so as to avoid the charge that
they are acting politically. If they judge that sanctions could be useful, they
should consider indicating this through informal channels to the Members of
the Security Council. This might even facilitate the role of the Members of the
Security Council in considering such sanctions: they would not be seen to be
acting under pressure.

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When it comes to monitoring the human rights dimensions of the application of sanctions there is a distinct role for human rights partners here. In the
first place, human rights partners, to the extent that they have the opportunity,
should help the Security Council to build in a human rights dimension into the
sanctions regime. The case for such a human rights dimension has been amply
demonstrated with regard to the placement of individuals on the list of persons deemed culpable for supporting terrorism. There have been judgments of
reputable international and regional human rights bodies holding that the
regime was in breach of fundamental human rights norms. Furthermore, the
Human Rights Councils Special Rapporteur on Human Rights and Terrorism
has on various occasions pointed out that the sanctions regime was in violation of basic human rights.
On the issues of justice and redress, all the human rights partners can play a
role in expressing their views for the benefit of the Security Council for its consideration. The un High Commissioner for Human Rights and the Prosecutor
of the International Criminal Court merit particular consideration.
The High Commissioner for Human Rights has a good track record in this
area. The New York Times of 19 January, 2013 carried an item, Commissioner
Urges Action on Syria. According to the article, the then High Commissioner,
Navi Pillai, had expressed dismay the previous day over the lack of Security
Council action on the killings and human rights abuses in Syria, where the
death toll had surpassed 60,000. The High Commissioner told reporters after
she briefed the Security Council: the figures speak for themselves 60,000
deaths is not a matter that should be treated lightly. She urged the Security
Council to refer the situation of Syria to the International Criminal Court for
investigation. She declared:
I firmly believe that war crimes and crimes against humanity are being
committed, have been committed and should be investigated.
The Times continued: Nearly 60 countries sent the Security Council a letter
this month urging that Syria be referred to the court for investigation. Russia
has made it clear that it will veto any such action.109
The High Commissioner was doing what her post required: seeking to
activate the international conscience in a highly politicized world. She had
previously done this in relation to other situations such as in Libya.
109 New York Times, 19 January, 2013, p. A.7.

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On the same page of the New York Times that carried the article mentioned
above with the comments of the High Commissioner, there was a lengthy
interview with the Prosecutor of the International Criminal Court, Ms Fatou
Bensouda. In an interview with the paper, Ms Bensouda stated: What has to
be recognized is that even though we are a judicial institution, we operate in a
political environment, whether we like that or not Those who do not understand the limitations of the i.c.c. jurisdiction they are the ones who think
the i.c.c. is picking and choosing.110
The article pointed out that a third of the countries in the United Nations,
including the biggest, like the United States and China, as well as many smaller
countries, where leaders were suspected of rights abuses, like Syria and Sudan,
had not ratified the Rome Statute that created the court. The article noted that
the Prosecutor could pursue crimes in countries that had not signed the Rome
Statute if requested by the Security Council, as had happened in Sudan and
Libya, for example. By contrast, the prosecutor has no authority to prosecute
crimes in the Syria conflict because the Security Council has not requested it.
Anyone reading the article would have understanding for the predicament
of the Prosecutor of the icc and that should lead to a dose of modesty in considering ideas for possible partnership between the Prosecutor and the Security
Council. The Prosecutor needs to build up confidence in her office and in the
icc itself.
We would offer for consideration two recommendations when it comes
to cooperation between the office of the prosecutor and the Members of
the Security Council. In the first place it might be useful for the Office of
the Prosecutor to provide periodic informal briefings to Members of the Security
Council. This could only be done with the willingness of the Council but it is
something on which confidence could be built over time.
In the second place, might it be possible for the Prosecutor to submit to
Members of the Security Council informally, based on her investigations, special dossiers on issues of genocide, ethnic cleansing, crimes against humanity
and war crimes that might be taking place in situations of intense conflict? This
could be justified under the heading of the role of the Security Council in implementing its Responsibility to Protect. How the Security Council would decide to
react to such briefings would be a matter for the exercise of its judgment, but it
would at least have the relevant facts at its disposal. The suggestion we make
here could also be applicable to the un High Commissioner for Human Rights.
110 Ibid: A lifelong passion is now put to practice in The Hague, interview with the i.c.c.
Prosecutor Fatou Bensouda.

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i Appraisal
In discussing the issue of partnership between human rights and humanitarian bodies and the Security Council we have been mindful of the need to recognize the human rights imperatives that should influence the Security
Council while recognizing the political realities and dynamics that impact on
its performance. At the end of the day, the Security Council is a political body
called upon to deploy its best endeavours for the maintenance of international
peace and security. Peacemaking is a complex process and there is a lively
debate about the extent to which human rights imperatives should influence
peacemakers.111
We have sought to indicate a policy framework that might influence the
future evolution of the partnership and have sought to make what we hope will
be considered sensible recommendations in this regard. We would end by noting the importance of confidence-building and professionalism. All human
rights actors seeking to impact on the Security Council, while respecting their
respective duty of conscience, would need to consider ways of acting calculated to inspire confidence on the part of Members of the Council. Furthermore,
whatever is put before the Council must have the highest level of professionalism and reliability. When the Council acts it should be on the best information
available and on the best assessment. Professionalism and quality are their
own advocates.
II

Terrorism and Human Rights

The Human Rights Council inherited from its predecessor a Special Rapporteur
on the topic of terrorism and human rights. It also inherited a normative
framework from the Security Council, the General Assembly, and the former
Commission on Human Rights, which it continues to invoke and to apply. The
policy of the Council has been similar in most respects to that of its predecessor, the former Commission.
We cite as an example of the positions of the Human Rights Council its resolution 19/19 adopted without a vote on 23 March, 2012. In that resolution The
Council called upon States to ensure that any measure taken to counter terrorism complies with international law, in particular international human rights,
refugee and humanitarian law. The Council expressed serious concern at the

111 See, e.g. B.G. Ramcharan, Human Rights in un Peacemaking and Peacekeeping in Yugoslavia
(Martinus Nijhoff, Leiden, 2012).

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violations of human rights and fundamental freedoms, as well as refugee and

international humanitarian law, in the context of countering terrorism.
The Council expressed its unequivocal condemnation of all acts, methods,
practices and financing of terrorism, in all its forms and manifestations, wherever and by whomsoever committed, regardless of their motivation, as criminal and unjustifiable, and renewed its commitment to strengthen international
cooperation to prevent and combat terrorism and, in that regard, called upon
States and other relevant actors, as appropriate, to continue to implement the
United Nations Global Counter-Terrorism Strategy and its four pillars, which
reaffirm, inter alia, respect for human rights for all and the rule of law to be the
fundamental basis of the fight against terrorism.
The Council called upon States, while countering terrorism, to protect all
human rights, including economic, social and cultural rights, bearing in
mind that certain counter-terrorism measures may have an impact on the
enjoyment of those rights. The Council particularly called upon States, while
countering terrorism, to ensure that any person whose human rights or fundamental freedoms have been violated has access to an effective remedy and
that victims will receive adequate, effective and prompt reparations where
appropriate, including by bringing to justice those responsible for such
violations.
The Council called upon States, while countering terrorism, to safeguard the
right to privacy in accordance with international law, and urged them to take
measures to ensure that interferences with the right to privacy are regulated by
law, subject to effective oversight and appropriate redress, including through
judicial review and other means.
The Council noted with concern measures that can undermine human
rights and the rule of law, such as the detention of persons suspected of acts of
terrorism in the absence of a legal basis for detention and due process guarantees, the unlawful deprivation of liberty that amounts to placing a detained
person outside the protection of the law, the trial of suspects without fundamental judicial guarantees, the illegal deprivation of liberty and transfer of
individuals suspected of terrorist activities, and the return of suspects to countries without individual assessment of the risk of their being substantial
grounds for believing that they would be in danger of subjection to torture, and
limitations to effective scrutiny of counter-terrorism measures.
The Council stressed that all measures used in the fight against terrorism,
including the profiling of individuals and the use of diplomatic assurances,
memorandums of understanding and other transfer agreements or arrangements, must be in compliance with the obligations of States under international law, including international human rights, refugee and humanitarian law.

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The Council urged States, while countering terrorism, to respect the rights
to be equal before the courts and tribunals and to a fair trial, as provided by
international law, including international human rights law, such as article 14
of the International Covenant on Civil and Political Rights and, as applicable,
international humanitarian law and refugee law.
III

The Practices and Ideology of the Islamic State

In June 2014 the world came face to face with the brutal practices of a group
that had wrested armed control of a third of the territory of Syria and Iraq, then
proclaimed itself the Islamic State and presented itself as the global Islamic
Caliphate. The ideology of the group called for the forced conversion or extermination of individuals or groups not professing the Sunni faith. Large numbers of people were converted, killed or forced to take flight and the group
engaged in brutal practices of mass killings and beheadings. The very idea of
human rights came under challenge by the practices and ideology of the group.
How did the Human Rights Council react to this shocking manifestation?
At the request of Iraq, of twenty-nine Member States of the Council, and of
twenty nine Observer States, the Council held a special session, its twenty-
second, on 1 September, 2014, to discuss the human rights abuses committed
by the Islamic State in Iraq and the Levant (isil) and Associated Groups. The
Council was provided with a briefing by the un Deputy High Commissioner
for Human Rights who told the Council that over one million people had fled
their homes in terror from the so-called Islamic State in Iraq and the Levant
group (isil). Christian, Yezidi, Turkmen, Shabak, Kakae, Sabaens and Shia
communities were being targeted through particularly brutal persecution, as
isil ruthlessly carried out what might amount to ethnic and religious cleansing in areas under its control. The systematic and intentional attacks on civilians might constitute war crimes and crimes against humanity.
The Special Representative of the un Secretary-General for Children and
Armed Conflict briefed the Council that the most reported violation by isil
was the killing and maiming of children. There were reports of children, especially young boys, being executed by armed opposition groups including isil,
of schools and hospitals being destroyed and of young girls from minority
groups being abducted for the purposes of sexual violence and forced marriage. The Special Representative expressed deep concern over reports of the
recruitment of child soldiers, including in some cases to be used as suicide
bombers. She also stressed the dire situation of the 1.2 million displaced people, of whom half were children.

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The Councils Special Rapporteur on the Rights of Internally Displaced

Persons briefed the Council that a humanitarian crisis of huge proportions was
unfolding: an estimated 1.5 million Iraqis had been internally displaced to date
and over the past weeks over 250,000 members of religious groups had been
forced to flee their homes. The situation in some locations such as Dohuk city,
with 150,000 refugees, was critical. The international community must be prepared for a rapid escalation in the humanitarian crisis as the conflict continued. Atrocities currently ongoing in Iraq appeared to amount to war crimes
and crimes against humanity and revealed a risk of genocide.
The Iraqi Minister of Human Rights told the Council that isil was attempting to change the demographic and cultural composition of Iraq. The massacres of isil were an affront to humanity. isil was not an Iraqi phenomenon. It
was transnational and threatened all countries in the world. isil had committed crimes that amounted to genocide and crimes against humanity.
During the ensuing discussion in the Council numerous States and ngos
condemned the widespread and systematic violations of human rights committed by isil and associated groups which, some said, might amount to
genocide and crimes against humanity. The international character of isil
posed a threat to the region and put regional and international peace and
security at risk.
At the end of the discussion, the Human Rights Council adopted without a
vote a resolution condemning in the strongest possible terms systematic violations and abuses of human rights and violations of international humanitarian
law resulting from the terrorist acts committed by the so-called Islamic State in
Iraq and the Levant and associated groups that had taken place since 10 June,
2014 in several provinces of Iraq. Those violations might amount to war crimes
and crimes against humanity, and in particular all violence against persons
based on their religious or ethnic affiliation as well as violence against women
and children. The Council requested the Office of High Commissioner for
Human Rights to urgently dispatch a mission to investigate alleged violations
and abuses of international human rights law committed by the so-called
Islamic State in Iraq and the Levant and associated terrorist groups, and to
establish the facts and circumstances of such abuses and violations, with a
view to avoiding impunity and ensuring full accountability. The Council
requested the Office of High Commissioner to provide a report on its findings
to the Council during its twenty-eighth session, and also requested the High
Commissioner to provide an oral update during the twenty-seventh session
due to take place from 8 o 26 September, 2014.
The Council stressed that those responsible for the violations that had taken
place must be held to account and called on the Government of Iraq to ensure

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that all perpetrators were brought to justice. It called on the international community to assist the Iraqi authorities to ensure the protection of, and assistance
to those fleeing the areas affected by terrorism.
It took some three months for the Council to meet to deal with the shocking
violations of human rights cited above. It was still important that it met when
it did. The widespread condemnation of the violations was significant inasmuch as it recorded the revulsion of the world at what was taking place. The
Councils request for a fact-finding report from the Office of High Commissioner
showed it providing its classic response to situations of gross violations: to
record the facts for possible prosecutions, for history, and as the basis for further deliberations within the Council. The Councils maintenance of the issue
on its agenda also signaled its intention to keep focusing on the situation. At
the end of the day this is probably as much as the Council can do. Stronger
action, if possible, fell within the realm of its senior partner, the Security
Council.
Conclusion
This chapter took a look at opportunities for partnership between the Human
Rights Council and the Security Council. One could say that the Human Rights
Council and the Security Council operate according to their own internal
dynamics and logic. One way forward to bringing these two bodies closer
together might be for the Presidents of the two Councils to meet monthly for
an informal exchange of information and views so that the two bodies can get
to know one another better and to develop synergies, mindful of the political
contexts often circumscribing many situations of gross violations of human
rights.
We saw the rather progressive positions of the Council on the issue of terrorism and human rights and then looked at the Councils response to a particularly acute security situation affecting human rights: the practices and
ideology of isil. We saw the Council deliberating, condemning the violations
taking place, mandating further fact-finding, and calling for the prosecution of
those responsible: in short, doing the best it could in the circumstances.

chapter V

The National Responsibility to Protect

Human Rights
Introduction
The Human Rights Council has to operate on the premise that every
Government has a national responsibility to protect human rights. Implicitly,
the Council does so when it examines the reports of Governments under the
Universal Periodic Review and when it scrutinises the performance of governments in situations where there have been allegations of gross violations of
human rights within particular countries. In this chapter we seek to elucidate
this fundamental concept of the national responsibility to protect.
It is a widely supported tenet in the world today that national, regional, and
international activities should be geared towards the respect, realization, and
protection of internationally agreed norms of human rights. By human rights
are meant all rights, civil and political as well as economic, social and cultural.112
In the un Millennium Declaration113 leaders the world over committed themselves to values for the twenty-first century which give priority to respect for
human rights and fundamental freedoms. The Millennium Development
Goals114 sought to halve the number of people living in poverty in the world by
2015.
In a follow-up summit held five years later, in 2005, world leaders committed
themselves to the concept of the responsibility to protect and pledged to take
action against genocide, ethnic cleansing, war crimes and crimes against
humanity. The responsibility to protect, as presented by an independent international commission in December, 2001, entails the responsibility to prevent
violations of human rights, the responsibility to react and remedy them, and
the responsibility to rebuild societies devastated by conflict and gross violations of human rights.

112 See, the Universal Declaration of Human Rights (1948). International Covenant on Civil
and Political Rights (1966); International Covenant on Economic, Social and Cultural
Rights (1966).
113 un General Assembly resolution 55/2.
114 un General Assembly resolution, Millennium Development Goals, 2000.

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Much attention has been given in international discussions to the implementation of the responsibility to protect at the international level, and the
concept continues to be treated with caution by many countries, particularly
developing ones that fear intervention into their affairs by powerful countries.
But far less attention has been given to the national responsibility to protect,
where the debate needs to be. For it is at home, in each country, that we should
seek to build up the protection of human rights.
Whatever debates take place over the international dimensions of the
responsibility to protect, there can be no doubt that there is a national responsibility to protect that rests with every Government in the world. This is by
virtue of their acceptance of international human rights obligations under the
United Nations Charter and international human rights instruments, and their
overwhelming affirmations of the universality of human rights in major world
gatherings such as the Vienna World Conference on Human Rights, 1993, the
Millennium Summit, and the Summit of World Leaders, 2005.
The primary responsibility for the prevention of violations of human rights
lies with the national protection system of each State. As has been correctly
noted, the first obligation of a Government is to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the iccpr.115 A state complies with the obligation to respect the recognized rights by not violating them. The duty to ensure imposes an affirmative
duty on the state and calls for specific activities by the state to enable individuals to enjoy the recognized rights.116
The second obligation is for the state to take the necessary steps, in accordance with its constitutional processes and with the provisions of international human rights treaties it has ratified to adopt such legislative or other
measures as may be necessary to give effect to these rights and freedoms.117
The third obligation is to ensure that any person whose rights or freedoms are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity; to ensure that any
person claiming such a remedy shall have his right thereto determined by competent judicial, administrative, or legislative authorities, or by the legal system,
and to develop the possibilities of judicial review; and to ensure that the competent authorities shall enforce such remedies when granted.118
115 N. Jayawickrama, The Judicial Application of Human Rights Law: National, Regional and
International Jurisprudence. (2003), p. 46.
116 Ibid, p. 48.
117 Ibid, p. 49.
118 Ibid, pp. 4950.

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Interpreting Article 13 of the European Convention on Human Rights, which

requires that everyone whose rights are violated shall have an effective remedy
before a national authority, the European Court of Human Rights has observed
that the authority referred to may not necessarily be a judicial authority, but, if
it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. For a remedy to be effective,
it is not sufficient that it be provided for by the constitution or by law or that it
be formally recognized; it must be truly effective in establishing whether there
has been a violation of a right and in providing redress.
In this chapter we shall seek to define the scope of the national responsibility to protect based on international, regional and national norms. We shall
first offer a statement of the concept of a national protection system and then
proceed to discuss the implications of international human rights law for a
national protection system, the prevention of human rights violations, remedies for human rights violations, the role of the courts, the role of law enforcement agencies, the role of national human rights institutions, the role of
human rights education, and the role of national human rights plans of action.
These and some additional propositions on the concept of a national protection system will be summarized in the concluding part of the chapter.
I

The Concept of a National Protection System

The protection of human rights should take place in ones country, where one
lives and comes face to face with authority or power. Every country should
have in place an adequate and effective national protection system. This is a
basic duty of governments, which exist to advance and protect the dignity and
rights of their people. It was in this sense that Article 21 of the Universal
Declaration of Human Rights affirmed 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 right 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.

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The concept of the national protection system is one of the most strategic
for the universal realization of human rights. It is thus understandable that the
Summit of world leaders, meeting on the occasion of the sixtieth anniversary
of the United Nations in 2005, highlighted the right to be protected and that
Secretary-General Kofi Annan, in his last report on conflict prevention, emphasized the responsibility to prevent gross violations of human rights.119
A national protection system has the following key dimensions that we shall
discuss below: constitutional, legislative, judicial, institutional, educational,
and preventive. In addition, it requires an independent and efficient judiciary
and law enforcement systems, and human rights education. National human
rights plans of action can also help reinforce a national protection system.
A
Constitutional Dimension
The constitutional structure of a country is a matter for the sovereign choice of
its people. However, three issues require particular attention and scrutiny from
the perspectives of international human rights law: first its fundamental
human rights guarantees; second, its judicial institutions; and third, its national
institutions for the protection of human rights.
Fundamental human rights guarantees in the constitution or the bill of
rights, if there is one, should not be less but may be more than what is provided
for in international human rights law. Each country should be able to show
that it has done two things: first, that it has methodically made a comparison
between the provisions of its fundamental human rights guarantees and those
in the principal international human rights instruments; second that rights
guaranteed in international customary law, particularly norms of jus cogens,
are among its constitutional human rights guarantees.
The Second Restatement of the Foreign Relations Laws of the usa provides
a good summary of rights that are guaranteed in international law:
A state is obliged to respect the human rights of persons subject to its
jurisdiction that it has (a) undertaken to respect by international
agreements; (b) that states generally are bound to respect as a matter of
customary international law; and (c) that it is required to respect under
general principles of law common to the major legal systems of the
world.120
A state violates international customary law if, as a matter of state
policy, it practices, encourages, or condones:
119 A/61/891, 18 July, 1961.
120 Article 701.

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(a) Genocide.
(b) slavery or slave trade.
(c) the murder or causing the disappearance of individuals
(d) torture or other cruel, inhuman or degrading treatment or punishment.
(e) prolonged arbitrary detention
(f) systematic racial discrimination, or
(g) a consistent pattern of gross violations of internationally recognized human rights.121
B
Legislative Dimension
International law gives a discretion to States whether they would make treaties
they have accepted to be bound by directly applicable in their legal systems or
whether they would reflect the provisions of those treaties in national legislation. Whichever route a country chooses, there is an obligation to make sure
that its national laws correspond to its legal commitments under international
human rights law or international human rights treaties. National parliaments
should exercise oversight over whether this obligation has been met and,
where action is required, see to it that legislative changes or enactments are
done. The human rights treaty bodies operating under particular international
conventions often make suggestions for legislative updating and national parliaments should require regular reports from the Executive about the recommendations of the human rights treaty bodies. There is role for parliamentary
oversight over Governmental compliance with international human rights
obligations. Each parliament should ideally establish a human rights committee to perform this role.
C
Judicial Dimension
The judicial dimension requires that courts be independent and effective.
There are United Nations declarations and statements on the meaning of judicial independence and effectiveness, which we shall discuss later in this chapter.
As already indicated, international law leaves it to the choice of a Government
whether it makes a treaty directly applicable in its legal system or whether it
enacts legislation incorporating the obligations under the treaty. It would be
our submission, however, that international human rights norms of jus cogens
status, and human rights norms that have the status of international customary law should be directly applicable in national courts.
International law makes it obligatory that each State provide adequate guarantees for human rights violations. This responsibility falls, in the first place,
121 Article 702.

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primarily upon the national judiciary. In the event that there is a failure to
protect, there may be remedies under international law. The Second American
Restatement, which we cited earlier, summarized these remedies as follows:
(1) A state party to an international human rights agreement has, as
against any other state party violating the agreement, the remedies generally available for violation of an international agreement, as well as any
special remedies provided by the agreement;
(2) Any state may pursue international remedies against any other state
for a violation of the customary international law of human rights.
(3) An individual victim of a violation of human rights agreement may
pursue any remedy provided by that agreement or by other applicable
international agreements.122
It is of great importance that judges and legal practitioners be provided with
access to the key decisions of international human rights bodies in local languages so that they may be aware of them and may draw upon them. This is a
task with which international human rights organizations and ngos may
assist. But it would be important also that national ministries of justice, or
their equivalent, pay attention to this matter so that judges may have access to
the latest human rights precedents and reasoning.
D
Institutional Dimension
Experience has shown that, in addition to the courts, institutions such as
national human rights commissions, national human rights commissioners or
ombudspersons can be quite helpful in advancing and protecting human
rights.123 International law does not make such institutions mandatory but, as
a matter of policy, a country should periodically assess its institutional arrangements, or lack thereof to see whether the establishment of national human
rights bodies could be helpful for the protection of human rights.
The Paris Principles, which we shall discuss later, provided that national
human rights institutions could perform, among others, key tasks such as:
seeking an amicable settlement of human rights grievances through conciliation, binding decision or other means; informing the complainant of his or her
rights and of available means of redress, and promoting access to such redress;
122 Article 703.
123 See, generally, B.G. Ramcharan (Ed.), The Protection Roles of National Human Rights
Institutions. (Martinus Nijhoff, 2005). J.A. Mertus, Human Rights Matters. Local Politics
and National Human Rights Institutions (Stanford, Stanford University Press, 2009).

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hearing complaints or referring them to a competent authority; and making

recommendations to the competent authorities, including proposals for
amendment of laws, regulations, or administrative practices that obstruct the
free exercise of rights.
E
Monitoring Dimension
The responsibility to protect and to prevent demands that every country monitor itself to detect situations of distress and to address them well before they
erupt into violations of human rights or conflict.124 This calls for independent
bodies that will systematically watch out for such distress situations and draw
attention to them. A national human rights commission could be given the
mandate to do this. In multi-ethnic countries special arrangements may need
to be devised. But the concept of self-monitoring is a vital part of a national
protection system.
A national protection system should provide for adequate and effective
remedies to prevent violations of human rights and to provide redress in cases
of breach. The absence of a remedy available to test an arguable claim for
breach amounts to a violation of human rights.125 The right to an effective remedy may, in certain circumstances, require Governments to provide for, and
implement, provisional or interim measures to avoid continuing violations
and to endeavour to repair at the earliest possible opportunity any harm that
may have been done.126
A national protection system should be particularly attentive to the risks of
genocide, ethnic cleansing, crimes against humanity and war crimes and
should provide effective guarantees against them. As the Human Rights
Committee stated in its General Comment 6/16 of 27 July, 1982, States have the
supreme duty to prevent wars, acts of genocide, and other acts of mass violence causing arbitrary loss of life. A national protection system should provide for a system of regular visits by national, regional or international bodies
to all places of detention.
In the event of a violation of human rights the national protection system
must provide for measures, beyond a victim-specific remedy, to be taken to
avoid recurrence of the type of violation in question. Such measures may
require changes in the States laws or practices.127
124 See, generally, B.G. Ramcharan, Preventive Human Rights Strategies in a World of New
Threats and Challenges (London, Routledge, 2009).
125 See the Annual Report of the Human Rights Committee, 2001, Faure v. Australia .
126 See General Comment 31 of the Human Rights Committee.
127 See General Comment 31 of the Human Rights Committee.

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A national protection system should provide for investigations of gross violations of human rights and for justice to the victims. A national protection
system should provide for safeguards against deportation or extradition to a
state where the deportee/extraditee may face serious risks of torture or arbitrary execution. A national protection system should be particularly protective
of human rights defenders.
A national human rights system should be grounded in international human
rights law, to which we turn next.
II

International Human Rights Norms and the Content

of the National Responsibility to Protect

The Bloemfontein Statement adopted by leading Commonwealth lawyers and

judges in 1995 offered the following superb statement of the relevance of international human rights law to the content of the national responsibility to
protect:
In democratic societies fundamental human rights and freedoms are
more than paper aspirations. They form part of the law. And it is the
special province of judges to ensure that the laws undertakings are
realized in the daily life of the people. In a society ruled by law, all public institutions and officials must act in accordance with the law. The
judges bear particular responsibility for ensuring that all branches of
government the legislature and the executive, as well as the judiciary
itself, conform to the legal principles of a free society. Judicial review
and effective access to courts are indispensable, not only in normal
times, but also during periods of public emergency threatening the life
of the nation. It is at such times that fundamental human rights are
most at risk and when courts must be especially vigilant in their
protection.
The Human Rights Committee, which functions under the International
Covenant on Civil and Political Rights, has adopted a series of General
Comments spelling out the obligations of states. General Comment No 31/80
of 29 March 2004 deals with the obligations of states parties to a human rights
treaty. The principles contained in General Comment No. 31, although based
on the Covenant, are reflective of the obligations of States Parties to a human
rights treaties generally and to the obligations of Governments under international human rights law.

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The Human Rights Committee recalled the legal obligations of States Parties
under Article 2 of the Covenant under which, among other things, each State
Party to the Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the
Covenant, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status. The Committee observed that while Article 2 is couched in terms
of the obligations of States Parties towards individuals as the right-holders
under the Covenant, every State Party has a legal interest in the performance
by every other State Party of its obligations. This follows from the fact that the
rules concerning the basic rights of the human person are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the
Covenant, there is a un Charter obligation to promote universal respect for
and observance of human rights and fundamental freedoms.
It noted that a general obligation is imposed on States Parties to respect the
Covenant rights and to ensure them to all individuals in their territory and
subject to their jurisdiction. Pursuant to the principle articulated in Article 26
of the Vienna Convention on the Law of Treaties, States Parties are required to
give effect to their obligations under the Covenant in good faith.
The obligations in the Covenant in general and under Article 2 in particular
are, in the views of the Committee, binding on every State Party as a whole. All
branches of government (executive, legislative and judicial), and other public
or governmental authorities, at whatever level national, regional or local
are in a position to engage the responsibility of the State Party. This understanding flows directly from the principle contained in Article 27 of the Vienna
Convention on the Law of Treaties, according to which a State Party may not
invoke the provisions of its internal law as justification for its failure to perform
a treaty.
The obligation to respect and to ensure the rights recognized in the Covenant
has immediate effect for all States Parties. Reservations to Article 2 would be
incompatible with the covenant when considered in the light of its objects and
purposes. The legal obligation under Article 2, paragraph 1, is both negative
and positive in nature. States parties must refrain from violation of the rights
recognized by the Covenant, and any restrictions on any of those rights must
be permissible under the relevant provisions of the Covenant. Where such
restrictions are made, states must demonstrate their necessity and only take
such measures as are proportionate to the pursuance of legitimate aims in
order to ensure continuous and effective protection of Covenant rights. In no
case may the restrictions be applied or invoked in a manner that would impair
the essence of a Covenant right.

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Article 2 of the Covenant requires that State Parties adopt legislative, judicial, administrative, educative and other appropriate measures in order to fulfill their legal obligations. The Committee believes that it is important to raise
levels of awareness about the Covenant not only among public officials and
state agents but also among the population at large.
The positive obligations on State Parties to ensure Covenant rights will only
be discharged if individuals are protected by the state not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights
insofar as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights
as required by Article 2 would give rise to violations by State Parties of those
rights as a result of State Parties permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the
harm caused by such acts by private persons or entities.
The beneficiaries of the rights recognized by the Covenant are individuals.
Although, with the exception of Article 1 (the right of self-determination), the
Covenant does not mention the rights of legal persons or similar entities or
collectivities, many of the rights recognized by the Covenant may be enjoyed
in community with others.
State parties are required by Article 2, paragraph 1, to respect and to ensure
the Covenant rights to all persons who may be within their territory and to all
persons subject to their jurisdiction. This means that a State Party must
respect and ensure the rights laid down in the Covenant to anyone within the
power or effective control of that State Party, even if not situated within the
territory of the State Party. The enjoyment of Covenant rights is not limited to
citizens of State Parties, but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant
workers and other persons who may find themselves in the territory or subject
to the jurisdiction of the State Party. This principle also applies to those within
the power or effective control of the forces of a State Party acting outside its
territory, regardless of the circumstances in which such power or effective
control was obtained, such as forces constituting a national contingent of a
State Party assigned to an international peace-keeping or peace-enforcement
operation.
The Covenant applies also in situations of armed conflict to which the rules
of international humanitarian law are applicable. While, in respect of certain
Covenant rights, more specific rules of international humanitarian law may be
especially relevant for the purposes of the interpretation of Covenant rights,
both spheres of law are complementary, not mutually exclusive.

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The Article 2 obligation, requiring that State Parties respect and ensure the
Covenant rights for all persons in their territory and all persons under their
control, entails an obligation not to extradite, deport, expel or otherwise
remove a person from their territory where there are substantial grounds for
believing that there is a real risk of irreparable harm, either in the country to
which removal is to be effected or in any country to which the person may
subsequently be removed.
Article 2, paragraph 2 of the Covenant requires that State Parties take the
necessary steps to give effect to the Covenant rights in the domestic order. It
follows that, unless the Covenants rights are already protected by their domestic law or practices, State Parties are required on ratification to make such
changes to domestic laws and practices as are necessary to ensure their conformity with the Covenant. Where there are inconsistencies between domestic
law and the Covenant, Article 2 requires that the domestic law or practice be
changed to meet the standards required by the Covenants substantive
guarantees.
Article 2 allows a State Party to pursue this in accordance with its own
domestic constitutional structure and accordingly does not require that the
Covenant be directly applicable in the courts by incorporation of the Covenant
into national laws. The Committee takes the view, however, that Covenant
guarantees may receive enhanced protection in those states where the
Covenant is automatically or through specific incorporation part of the domestic legal order. The Committee invited those State Parties in which the Covenant
does not form part of the domestic legal order to consider incorporation of the
Covenant to render it part of domestic law to facilitate full realization of
Covenant rights as required by Article 2.
The requirement under Article 2, paragraph 2, to take steps to give effect to
the Covenant rights is unqualified and of immediate effect. A failure to comply
with this obligation cannot be justified by reference to political, social, cultural
or economic considerations within the state.
Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights State Parties must ensure that individuals also have accessible
and effective remedies to vindicate those rights. Such remedies should be
appropriately adapted so as to take account of the special vulnerability of certain categories of person, including, in particular, children. The Committee
attaches importance to State Parties establishing appropriate judicial and
administrative mechanisms for addressing claims of rights violations under
domestic law.
The Human Rights Committee noted that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many

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different ways, including direct applicability of the Covenant, application of

comparable constitutional or other provisions of law, or the interpretive effect
of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through
independent and impartial bodies. National human rights institutions,
endowed with appropriate powers, can contribute to this end. A failure by a
State Party to investigate allegations of violations could in and of itself give rise
to a separate breach of the Covenant. Cessation of an ongoing violation is an
essential element of the right to an effective remedy.
Article 2, paragraph 3, of the Covenant requires that State Parties make
reparation to individuals whose Covenant rights have been violated. Without
reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of Article 2,
paragraph 3, is not discharged. In addition to the explicit reparation required
by Article 9, paragraph 5, and Article 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The
Committee noted that, where appropriate, reparation can involve restitution,
rehabilitation and measures of satisfaction, such as public apologies, public
memorials, guarantees of non-repetition and changes in relevant laws and
practices, as well as bringing to justice the perpetrators of human rights
violations.
In general, the purposes of the Covenant would be defeated without an obligation integral to Article 2 to take measures to prevent a recurrence of a violation of the Covenant. Accordingly, it has been a frequent practice of the
Committee, in its consideration of individual petitions, to include in its views
the need for measures, beyond a victim-specific remedy, to be taken to avoid
recurrence of the type of violation in question. Such measures may require
changes in the State Partys laws or practices.
Where investigations reveal violations of certain Covenant rights, State
Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations
could in and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as criminal
under either domestic or international law, such as torture and similar cruel,
inhuman and degrading treatment (Article 7), summary and arbitrary killing
(Article 6) and enforced disappearance (Articles 7 and 9 and frequently 6).
Indeed, the problem of impunity for these violations, a matter of sustained
concern by the Committee, may well be an important contributing element in
the recurrence of the violations. When committed as part of a widespread or

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systematic attack on a civilian population, these violations of the Covenant are

crimes against humanity (Rome Statute of the icc, Article 7).
Accordingly, where public officials or state agents have committed violations of the Covenant rights just referred to, the State Parties concerned may
not relieve perpetrators from personal responsibility. Furthermore, no official
status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. Other impediments to the
establishment of legal responsibility should also be removed, such as the
defence of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable. State Parties
should also assist each other to bring to justice persons suspected of having
committed acts in violation of the Covenant that are punishable under domestic or international law.
The Committee further took the view that the right to an effective remedy
may in certain circumstances require State Parties to provide for and implement provisional or interim measures to avoid continuing violations and to
endeavour to repair at the earliest possible opportunity any harm that may
have been caused by such violations.
General Comment 31 is a magisterial summary of the heart of international
human rights law.
III

The Prevention of Human Rights Violations

The national responsibility to protect entails prevention, reaction, remedies,

and measures to prevent recurrence. National legal systems provide for preventive remedies such as judicial review, quashing orders (certiorari), mandatory orders (mandamus), prohibiting orders (prohibition), Habeas corpus,
statutory mechanisms of challenge, and injunctions.128 Section6 of the Hong
Kong Bill of Rights, for example, provides that a court or tribunal may grant
such remedy or relief in respect of such a breach, violation, or threatened violation as it has power to make or grantand as it considers appropriate and just
in the circumstances.
The national responsibility to protect requires that Governments fulfill their
obligations under international human rights treaties with preventive requirements such as: the Convention for the Prevention and Punishment of Genocide;
the Convention against Torture; the Optional Protocol to the Convention
128 See, e.g. Clive Lewis, Judicial Remedies in Public Law. London, Sweet and Maxwell (2008).

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against Torture (opcat),129 which provides for regular visits by national bodies
and by the Subcommittee for the Prevention of Torture to prisons and places
of detention. There are also preventive obligations under other international
human rights norms that we discuss next.
A
Preventive Protection of the Right to Life
Article 6 of the International Covenant on Civil and Political Rights (1966) protects the right to life, which the Human Rights Committee, the monitoring
body established under the Covenant, has deemed the supreme right from
which no derogation is permitted even in time of public emergency which
threatens the life of the nation (Article 4).130 The Committee considers that
States have the supreme duty to prevent wars, acts of genocide and other
acts of mass violence causing arbitrary loss of life. Every effort they make
to avert the danger of war, especially thermo nuclear war, and to
strengthen international peace and security would constitute the most
important condition and guarantee for the safeguarding of the right to
life. In this respect the Committee notes, in particular, a connection
between Article 6 and Article 20, which states that the law shall prohibit
any propaganda for war or incitement to violence.131
The Committee continued:
The protection against arbitrary deprivation of life which is explicitly
required by the third sentence of Article 6(1) is of paramount importance. The Committee considers that States parties should take measures
not only to prevent and punish deprivation of life by criminal acts, but
also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity.
Therefore, the law must strictly control and limit the circumstances in
which a person may be deprived of his life by such authorities.
States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately
has become all too frequent and leads too often to arbitrary deprivation
129 The European Convention for the Prevention of Torture also provides for a system of
visits.
130 General Comment 6/16 of 27 July, 1982. Reproduced in M. Novak, The International
Covenant on Civil and Political Rights. A Commentary, Engel Publishers, 2006, p. 1092.
131 Ibid.

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of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons
in circumstances which may involve a violation of the right to life.132
B
Preventive Dimensions of the Right to an Effective Remedy
Professor Manfred Novak has noted that whether a remedy is effective may
ultimately be determined only on the basis of concrete cases, taking into consideration all relevant circumstances. In some cases, the formal chain of judicial appeals is the only possible effective protection; in others, informal,
preventive measures (e.g., against the application of torture or against arbitrary executions) are much more effective than a subsequent determination by
a constitutional court. On the other hand, when judicial case law functions
well and is adhered to by administrative organs, it may in the long term be far
more effective in preventing similar violations in the future than, e.g. largescale efforts to train civil servants.133
Professor Novak has raised the question whether the right to an effective
domestic remedy requires that a violation of the Covenant has occurred, albeit
not yet officially determined, and at what point it can be said that a violation
has taken place. Does violation of Article 13, for example, arise upon deportation, with detention prior to this, or when a residency prohibition is enacted?
Is personal liberty violated with imprisonment or upon sentencing to incarceration? Is the result different in the case of the death penalty because it is
irreversible, whereas a prison sentence is reversible.134
Does the right to an effective remedy, ensured by Art. 2, refer, as suggested
by the formulation of para. 3(a), only to a repressive remedy after violation of
a substantive right has occurred, or are States parties also required to take preventive measures? The Human Rights Committee dealt extensively with this
problem in C.F. et al v. Canada (No. 113/198). In implementing Art. 25 of the
Covenant, the Quebec Election Act had been amended in 1979 to recognize
the right of inmates to vote. However, the implementation of the specific voting procedures was made subject to an administrative agreement, which the
Solicitor General initially refused to sign for federal inmates. As a result, three
inmates filed a request for a temporary injunction with the Federal court of
first instance to force the Solicitor-General to conclude the administrative
agreement in time for the provincial elections, but this was denied.

132 Ibid.
133 Novak, op. cit., p. 65.
134 Ibid, p. 67.

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The issue subsequently came before the Human Rights Committee. With
respect to whether Article 2 affords preventive remedies and whether a declaratory judgment in favour of the authors following the election would have
been an effective remedy within the meaning of Article 2(3) of the Covenant
and Art. 5(2) of the Optional Protocol, the Committee stated:
With respect to Article 5, paragraph 2(b) of the Optional Protocol the
Committee observed that, although the authors might not have been
able to obtain a declaratory judgment before the elections of 13 April,
1981, a subsequent judgment could nevertheless in principle have been
an effective remedy in the meaning contemplated by Article 2, paragraph 3
of the Covenant and Article 5 paragraph 2(b) of the Optional Protocol.
The Covenant provides that a remedy shall be granted whenever a violation of one of the rights guaranteed by it has occurred; consequently, it
does not generally prescribe preventive protection, but confines itself to
requiring effective redress ex post facto.
Professor Novak commented critically on this finding:
In other words, the Committee reached the problematic conclusion from
Article 2(3)(a) that this provision is limited to repressive remedies and
generally does not require preventive protection. The reasoning
behind this decision is so unjustifiably broad as to miss the purpose of
providing individuals with effective remedies. Would the Committee
have decided differently if instead of the right to vote a deportation,
the right to personal liberty, the prohibition of torture or even the right to
life had been affected?
Novak noted, however, that following its General Comment on the right to life,
referred to earlier, the Committee subsequently made it known in Herrera
Rubio v. Colombia that as regards this right, Art. 2 also requires preventive measures, such as deterring the disappearance of persons.
It may also be recalled that in its General Comment 31, the Committee
stated the following:
The right to an effective remedy may in certain circumstances require
States Parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the
earliest possible opportunity any harm that may have been caused by
such violations.

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C
Interim Measures of Protection
Interim measures of protection are a valuable method of preventive protection
practiced by international judicial and human rights bodies, including the
International Court of Justice, the European Court of Human Rights, the InterAmerican Court of Human Rights, the un Human Rights Committee, the United
Nations Committee against Torture, and the Inter-American Commission on
Human Rights. In the words of one scholar,
An author of interim measures may require that the State take positive
action, such as providing protection for human rights activists or journalists, or it may call upon the State to refrain from taking action, such as not
extraditing a person or delaying the execution of prisoners until their
cases have been resolved before the international body. The purpose of
interim measures in international human rights law is most often to protect the persons involved in a case from urgent danger of grave and irreparable injury.
The author continues that, in general, many States have accepted the decisions
of international courts that interim measures are binding on the States that are
parties to the applicable treaties. However some States have not. The author
contends that interim measures are implied in the constituent documents that
provide the right of individual petition and must be considered to be binding
on States that are parties.135
Deportation and Extradition to Countries Where There is Risk of
Serious Violation of Human Rights: Preventive Protection
The jurisprudence of international and regional human rights bodies provides
for preventive protection in the event that a potential deportee/extraditee
would be liable to suffer inhuman treatment, for example political persecution
in the country to which they are to be sent, or the death penalty.136 In the
Soering case, decided by the European Court of Human Rights, Jens Soering, a
German national, was 18 when he and his girl friend were alleged to have killed
her parents in Virginia in the usa. Soering was subsequently arrested in
England and his extradition was sought to the United States. The State of
Virginia had the death penalty for murder, and it was usual for prisoners to
spend between six and eight years on death row before being executed. Were

135 J.M. Pasqualucci, Interim Measure in International Human Rights: Evolution and
Harmonization, Vanderbilt Journal of International Law, January, 2005.
136 See F. Jacobs, et al., The European Convention on Human Rights (Oxford: oup, 2006), p. 101.

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he to be extradited, Soering might face the death penalty and death row phenomenon. An extradition order obtained in the English courts was put into
suspense pending determination of Soerings application to the then European
Commission on Human Rights.
The case eventually reached the European Court of Human Rights, which
apparently took into consideration that Soering could have been extradited to
Germany, his country of nationality. The Court held:
(H)aving regard to the very long period of time spent on death row in
such extreme conditions, with the ever present and mounting anguish of
awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of
the offence, the applicants extradition to the United States would expose
him to a real risk of treatment going beyond the threshold set by Article 3.
A further consideration of relevance is that in the particular instance the
legitimate purpose of extradition could be achieved by another means
which would not involve suffering of such exceptional intensity or
duration.137
The Court therefore held that the uk Secretary of States decision to extradite
Soering to the United States would, if implemented, give rise to a breach of
Article 3 of the European Convention on Human Rights.
With regard to prevention strategies in the future, it would be essential that
every country, once every five years or so, commission an analysis of threats of
gross violations of human rights with a view to taking preventive action. Such
an analysis could be done by the national human rights commission, where it
exists. National human rights commissions in existence should include a
threat assessment in their annual reports. Poverty alleviation strategies should,
in the future, be built on preventive approaches, with the accent being on preventing poverty where this could be done using existing resources within a
country. At the end of the day, this is a task of efficient governance.
With new threats and challenges facing the world, national prevention systems should also have in view the human rights dimensions of issues such as
Climate change
Water shortage
Pandemics
Mass migration
137 Ibid, p. 103.

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It is also important for national prevention systems to be vigilant in respect of

Violence against women, trafficking
Breaches of human rights and humanitarian law during armed conflicts.
Gross violations of human rights.
IV

Remedies for Human Rights Violations

The World Conference on Human Rights (1993) expressed grave concern about
continuing human rights violations in all parts of the world in disregard of
standards as contained in international human rights instruments and international humanitarian law and about the lack of sufficient and effective remedies for the victims.138 This situation, unfortunately, has not changed.
Remedies for violations of human rights may be found in the areas of constitutional law, public law, criminal law and the law of torts. The constitution
may provide for remedies for breach and, in Commonwealth jurisdictions, the
courts will review an exercise of power to ensure that a public body has not
made an error of law; has considered all relevant factors, and not taken into
account any irrelevant factors; has acted for a purpose expressly or impliedly
authorized by statute; has not acted in a way that is so unreasonable that no
reasonable public body would act in that way; and that the public body has
observed statutory procedural requirements and the common law principles
of natural justice or procedural fairness. These grounds were summarized by
Lord Diplock as illegality, irrationality, and procedural impropriety.139
As indicated earlier, judicial review may take the form of a quashing order, a
mandatory order, a prohibiting order, a declaration or injunction, damages,
restitution, or recovery of money. The prerogative writ of habeas corpus is still
available in Commonwealth countries as a means of challenging the legality of
the detention of an individual by a public body. Furthermore, Statute may provide a means by which the legality of decisions of public bodies may be challenged in the courts.140 There may also be remedies in tort for human rights
abuses.141

138 Vienna Declaration (1993), para. 29.

139 See Clive Lewis, Judicial Remedies in Public Law. London, Sweet and Maxwell, 2008.
140 Ibid.
141 See on this, G.P. Fletcher, Tort Liability for Human Rights Abuses (Oxford, Hart Publishing,
2008).

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The Basic Principles and Guidelines which the un General Assembly

adopted in 2006 provide an authoritative statement of the duty of Governments
to provide remedies for human rights violations. The adoption of the Basic
Principles and Guidelines followed years of study by independent experts and
governmental comments.142 The Basic Principles and Guidelines contain thirteen chapters with core provisions of international human rights law. Because
of the clarity and firmness of the statements in the document, we summarize
key provisions below. The document is a magisterial summary of the contemporary international law of human rights generally and of the ideas of justice,
redress and reparation in particular.
Obligation to Respect, Ensure Respect for, and Implement
International Human Rights Law and International
Humanitarian Law
The Basic Principles and Guidelines recall that the obligation to respect, ensure
respect for, and implement international human rights law and international
humanitarian law as provided for under the respective bodies of law emanate
from: treaties to which a State is a party; customary international law; the
domestic law of each State. The document urges that if they have not already
done so, States must, as required under international law, ensure that their
domestic law is consistent with their international legal obligations by:
(a)Incorporating norms of international human rights law and international
humanitarian law into their domestic law, or otherwise implementing them in
their domestic legal system; (b) Adopting appropriate and effective legislative
and administrative procedures and other appropriate measures that provide
fair, effective and prompt access to justice; (c) Making available adequate,
effective, prompt, and appropriate remedies, including reparation, as defined
below; and (d) Ensuring that their domestic law provides at least the same
level of protection for victims as required by their international obligations.
A

B
Scope of the Obligation
The Basic Principles and Guidelines specify that the obligation to respect,
ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law,
includes, inter alia, the duty to: (a) Take appropriate legislative and adminis
trative and other appropriate measures to prevent violations; (b) Investigate
violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with
142 General Assembly resolution 60/147.

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domestic and international law; (c) Provide those who claim to be victims of a
human rights or humanitarian law violation with equal and effective access to
justice, as described below, irrespective of who may ultimately be the bearer of
responsibility for the violation; and (d) Provide effective remedies to victims,
including reparation, as described below.
Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law that Constitute
Crimes under International Law
The Basic Principles and Guidelines underline that in cases of gross violations
of international human rights law and serious violations of international
humanitarian law constituting crimes under international law, States have the
duty to investigate and, if there is sufficient evidence, the duty to submit to
prosecution the person allegedly responsible for the violations and, if found
guilty, the duty to punish her or him. Moreover, in these cases, States should, in
accordance with international law, cooperate with one another and assist
international judicial organs competent in the investigation and prosecution
of these violations.
To that end, where so provided in an applicable treaty or under other international law obligations, States shall incorporate or otherwise implement
within their domestic law appropriate provisions for universal jurisdiction.
Moreover, where it is so provided for in an applicable treaty or other international legal obligations, States should facilitate extradition or surrender offenders to other States and to appropriate international judicial bodies and provide
judicial assistance and other forms of cooperation in the pursuit of inter
national justice, including assistance to, and protection of, victims and witnesses, consistent with international human rights legal standards and subject
to international legal requirements such as those relating to the prohibition
of torture and other forms of cruel, inhuman or degrading treatment or
punishment.
C

D
Statutes of Limitations
The Basic Principles and Guidelines specify that where so provided for in an
applicable treaty or contained in other international legal obligations, statutes
of limitations shall not apply to gross violations of international human rights
law and serious violations of international humanitarian law which constitute
crimes under international law. Domestic statutes of limitations for other
types of violations that do not constitute crimes under international law,
including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive.

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Victims of Gross Violations of International Human Rights Law and

Serious Violations of International Humanitarian Law
The Basic Principles and Guidelines defines victims as persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental
rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian
law. Where appropriate, and in accordance with domestic law, the term victim
also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to
prevent victimization. A person shall be considered a victim regardless of
whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim.

F
Treatment of Victims
The Basic Principles and Guidelines specifies that victims should be treated
with humanity and respect for their dignity and human rights, and appropriate
measures should be taken to ensure their safety, physical and psychological
well-being and privacy, as well as those of their families. The State should
ensure that its domestic laws, to the extent possible, provide that a victim who
has suffered violence or trauma should benefit from special consideration and
care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.
G
Victims Right to Remedies
The Basic Principles and Guidelines includes as remedies for gross violations
of international human rights law and serious violations of international
humanitarian law the victims right to the following as provided for under
international law: equal and effective access to justice; adequate, effective and
prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms.
H
Access to Justice
The Basic Principles and Guidelines registers that a victim of a gross violation
of international human rights law or of a serious violation of international
humanitarian law shall have equal access to an effective judicial remedy as
provided for under international law. Other remedies available to the victim
include access to administrative and other bodies, as well as mechanisms,
modalities and proceedings conducted in accordance with domestic law.

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Obligations arising under international law to secure the right to access justice
and fair and impartial proceedings shall be reflected in domestic laws. To that
end, States should:
(a) Disseminate, through public and private mechanisms, information about
all available remedies for gross violations of international human rights
law and serious violations of international humanitarian law;
(b) Take measures to minimize the inconvenience to victims and their representatives, protect against unlawful interference with their privacy as
appropriate and ensure their safety from intimidation and retaliation,
as well as that of their families and witnesses, before, during and after
judicial, administrative, or other proceedings that affect the interests of
victims;
(c) Provide proper assistance to victims seeking access to justice;
(d) Make available all appropriate legal, diplomatic and consular means to
ensure that victims can exercise their rights to remedy for gross violations of international human rights law or serious violations of international humanitarian law.
In addition to individual access to justice, States should endeavour to develop
procedures to allow groups of victims to present claims for reparation and to
receive reparation, as appropriate. An adequate, effective and prompt remedy
for gross violations of international human rights law or serious violations of
international humanitarian law should include all available and appropriate
international processes in which a person may have legal standing and should
be without prejudice to any other domestic remedies.
I
Reparation for Harm Suffered
The Basic Principles and Guidelines stipulates that adequate, effective and
prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international
humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or
omissions which can be attributed to the State and constitute gross violations
of international human rights law or serious violations of international
humanitarian law. In cases where a person, a legal person, or other entity is
found liable for reparation to a victim, such party should provide reparation to
the victim or compensate the State if the State has already provided reparation
to the victim.

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States should endeavour to establish national programmes for reparation

and other assistance to victims in the event that the party liable for the harm
suffered is unable or unwilling to meet their obligations. States shall, with
respect to claims by victims, enforce domestic judgments for reparation against
individuals or entities liable for the harm suffered and endeavour to enforce
valid foreign legal judgments for reparation in accordance with domestic law
and international legal obligations. To that end, States should provide under
their domestic laws effective mechanisms for the enforcement of reparation
judgments.
In accordance with domestic law and international law, and taking account
of individual circumstances, victims of gross violations of international human
rights law and serious violations of international humanitarian law should, as
appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out
in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Restitution should, whenever possible, restore the victim to the original
situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution
includes, as appropriate: restoration of liberty, enjoyment of human rights,
identity, family life and citizenship, return to ones place of residence, restoration of employment and return of property.
Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the
circumstances of each case, resulting from gross violations of international
human rights law and serious violations of international humanitarian law,
such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning
potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and medical
services, and psychological and social services.
Rehabilitation should include medical and psychological care as well as legal
and social services. Satisfaction should include, where applicable, any or all of
the following:

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(a) Effective measures aimed at the cessation of continuing violations;

(b) Verification of the facts and full and public disclosure of the truth to the
extent that such disclosure does not cause further harm or threaten the
safety and interests of the victim, the victims relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence
of further violations;
(c) The search for the whereabouts of the disappeared, for the identities of
the children abducted, and for the bodies of those killed, and assistance
in the recovery, identification and reburial of the bodies in accordance
with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;
(d) An official declaration or a judicial decision restoring the dignity, the
reputation and the rights of the victim and of persons closely connected
with the victim;
(e) Public apology, including acknowledgement of the facts and acceptance
of responsibility;
(f) Judicial and administrative sanctions against persons liable for the
violations;
(g) Commemorations and tributes to the victims;
(h) Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training
and in educational material at all levels.
Guarantees of non-repetition should include, where applicable, any or all of
the following measures, which will also contribute to prevention:
(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international
standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions,
the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training
for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in
particular international standards, by public servants, including law
enforcement, correctional, media, medical, psychological, social service
and military personnel, as well as by economic enterprises;

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(g) Promoting mechanisms for preventing and monitoring social conflicts

and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.
Access to Relevant Information Concerning Violations and
Reparation Mechanisms
The Basic Principles and Guidelines calls upon States to develop means of
informing the general public and, in particular, victims of gross violations of
international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by the Principles and
Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access. Moreover,
victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law
and serious violations of international humanitarian law and to learn the truth
in regard to these violations.

K Non-Discrimination
The Basic Principles and Guidelines underline that the application and interpretation of its provisions must be consistent with international human rights
law and international humanitarian law and be without any discrimination of
any kind or ground, without exception.
V

Transitional Justice

There is growing emphasis in the international human rights movement that

victims of gross violations of human rights and/or their families have the right
to a process that establishes the facts of what took place and draws lessons for
the prevention of similar occurrences in the future. This is sometimes given
the label of transitional justice. According to the organization, Transitional
Justice, the major approaches to transitional justice include the following:
Domestic, hybrid, and international prosecutions of perpetrators of human
rights abuse.
Determining the full extent and nature of past abuses through truth-telling
initiatives, including national and international commissions.

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Providing reparations to victims of human rights violations, including compensatory, restitutionary, rehabilitation, and symbolic reparations.
Institutional reform, of which one measure is the vetting of abusive, corrupt, or incompetent officials from the police and security services, the military, and other public institutions including the judiciary. Vetting refers to
the process of excluding from public employment those known to have
committed human rights abuses or been involved in corrupt practices.
Promoting reconciliation within divided communities, including working
with victims on traditional justice mechanisms and forging social
reconstruction.
Constructing memorials and museums to preserve the memory of the past.
Taking into account gendered patterns of abuse to enhance justice for
female victims.143
VI

The Role of the Courts and of Law Enforcement Agencies

We have already alluded to the foundational importance of the role of the

courts and of law enforcement agencies. In this section we shall touch on the
essentiality of these institutions upholding and conforming to international
human rights standards. The Basic Principles on the Independence of the
Judiciary, endorsed by the United Nations General Assembly on 13 December,
1985,144 called for the independence of the judiciary to be guaranteed by the
State and enshrined in the Constitution or law of the country. It is the duty of
governmental and other institutions to respect and observe the independence
of the judiciary. The judiciary, for its part, must decide matters before them
impartially, on the basis of the facts and in accordance with the law, without
any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
The judiciary shall have jurisdiction over all issues of a judicial nature and
shall have exclusive authority to decide whether an issue submitted for its
decision is within its competence as defined by law. There shall not be any
inappropriate or unwarranted interference with the judicial process, nor shall
judicial decisions by the courts be subject to revision. Everyone shall have the
right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal
process shall not be created to displace the jurisdiction belonging to the ordinary courts of judicial tribunals.
143 See http://www.ictj.org/en/tj/.
144 un General Assembly resolution 40/32.

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The principle of the independence of the judiciary entitles and requires the
judiciary to ensure that judicial proceedings are conducted fairly and that the
rights of the parties are respected. It is the duty of each Government to provide
adequate resources to enable the judiciary to properly perform its functions.
The Code of Conduct for Law Enforcement Officials adopted by the un
General Assembly on 17 December, 1979145 states that law enforcement officials
shall at all times fulfill the duties imposed upon them by law, by serving the
community and by protecting all persons against illegal acts, consistent with
the high degree of responsibility required by their profession. In the performance of their duty, they shall respect and protect human rights and maintain
and uphold the human rights of all persons. They may use force only when
strictly necessary and to the extent required for the performance of their duty.
Matters of a confidential nature in the possession of law enforcement officials
shall be kept confidential, unless the performance of duty or the needs of justice strictly require otherwise.
No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may
any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security,
internal political instability or any other pubic emergency as a justification of
torture or other cruel, inhuman or degrading treatment or punishment.
Law enforcement officials shall ensure the full protection of the health of
persons in their custody and, in particular, shall take immediate action to
secure medical attention whenever required. Law enforcement officials shall
not commit any act of corruption. They shall also rigorously oppose and combat all such acts. Law enforcement officials shall respect the law and the principles in the Code of Conduct. They shall also, to the best of their ability,
prevent and rigorously oppose any violations of them. Law enforcement officials who have reasons to believe that a violation of the Code has occurred or
is about to occur shall report the matter to their superior authorities and,
where necessary, to other appropriate authorities or organs vested with reviewing or remedial power.
It is sad to admit that the Basic Principles on the Independence of the
Judiciary and the Code of Conduct for Law Enforcement Officials are violated
in the great majority of countries. That, however, does no diminish their validity, and it is precisely the challenge of all national protection systems to strive
to live up to them.
145 un General Assembly resolution 34/169.

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The Role of National Human Rights Institutions

Even before the adoption of the Universal Declaration of Human Rights on

10 December 1948, the Economic and Social Council, in 1946, had recognized that
national implementation arrangements and human rights information and education would be essential to take forward the task of implementing the provisions of the Declaration universally. The Council invited Member States to
consider the desirability of establishing information groups or local human
rights committees to collaborate with them in furthering the work of the
Commission on Human Rights. The former Commission on Human Rights, early
on, highlighted these two aspects and decided to give them particular attention.
The attention given to both subjects, however, would be spasmodic in subsequent years. The Commission did call for reports from the Secretariat on the
topic and also mandated the organization of world-wide seminars on the role
of national institutions in the promotion and protection of human rights. A un
Seminar on National Institutions for the Promotion and Protection of Human
Rights, held in 1978, put forward a set of helpful guidelines for the functioning
of national human rights institutions. Those guidelines were further built
upon in the Principles relating to the Status of National Institutions (The Paris
Principles), which were endorsed by the General Assembly in its resolution
48/134 of 20 December, 1993.
The Paris Principles called for national institutions to have responsibilities
such as: submitting recommendations, proposals and reports on matters relating to human rights to the Government, Parliament, or other competent bodies; promoting conformity of national laws and practices with international
human rights standards; encouraging ratification and implementation of
international standards; contributing to the reporting procedure under international instruments; assisting in formulating and executing human rights
teaching and research programmes and increasing public awareness of human
rights through information and education; and cooperating with the United
Nations, regional institutions and national institutions of other countries.
In 2003, the then High Commissioner for Human Rights wrote to all
Governments inviting them to provide concise summaries of their national
protection systems under the following headings: 1. In what ways are the provisions of the principal human rights instruments and treaties reflected in the
constitution of the country? 2 Is there an oversight process on the reflection of
international human rights norms in national legislation? 3. What is the experience of the judiciary in drawing upon the provisions of international human
rights norms when considering cases before them? 4. Are there any specific
arrangements to promote human rights education in the country? 5. What

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s pecialized national human rights institutions are in existence and which of

their good practices can be highlighted? 6. Are there arrangements to detect
and anticipate threats to human rights of groups at risk?
A report that the Office of High Commissioner submitted to the Commission
in 2004 summarized the replies of some three dozen countries. It showed that
each country had positive experiences to report but that few of them had previously thought methodically about the six questions in their policy and governmental frameworks. The aim of the exercise was precisely to encourage
each country to consider the six questions as a policy framework and, eventually, to publish a world report on the national protection systems of each
country.146
As part of his reform programme, and as suggested by the Office of High
Commissioner, Secretary-General Kofi Annan had called on the different parts
of the United Nations system to concert their strategies to support the efforts
of Governments to develop, or enhance, their national protection systems.
Pursuant to this decision, a programme of cooperation was worked out, which
is still continuing, to help support the enhancement of national protection systems. The aim of the process was two-fold: to respond positively to requests by
Governments for support in strengthening their national protection systems;
and to follow the recommendations of the human rights treaty bodies and the
human rights special procedures and to see discreetly in what areas a government might be in need of assistance. A national protection system, as advanced
by the Office of High Commissioner and by the Secretary-General, has six
dimensions, that we discuss briefly in turn.
National human rights institutions are an essential component of a national
protection system. Each National Commission could map and analyze the
human rights history of the country and the contemporary and future challenges of protection. Each National Commission could do a study on the state
of economic, social and cultural rights and identify issues and situations
ofconcern. National Commissions could do a study of situations where there
is evidence of a consistent pattern of gross violations of human rights.
NationalCommissions could do a study of population groups at risk. National
Commissions could offer policy recommendations for the advancement of
womens rights. National Commissions could offer policy recommendations
for the advancement of womens rights. National Commissions could maintain, as a principal focus, policies and strategies for the prevention of gross
violations of human rights. National Commissions could encourage and
146 un doc. E/CN.4/2004/12. Add.1

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support the work of judges in the protection of human rights. National

Commissions could disseminate the core international human rights norms
and jurisprudence to judges and magistrates. National Commissions could
develop a policy for spreading human rights education in schools and higher
institutions of learning. National Commissions could enhance their cooperation with protection partners.
The Ninth International Conference of National Institutions for the
Promotion and Protection of Human Rights held in Nairobi from 2124
October, 2009, adopted the Nairobi Declaration in which they underlined that
the State has the primary responsibility to protect, promote and respect human
rights and ensure that the administration of justice is in full compliance with
both international and domestic obligations. They felt that National Institutions
can support Governments in the application of international standards and
follow-up.
They considered that the Rule of law and administration of justice were of
fundamental importance and saw an important role for the judiciary in
applying human rights norms and in the development of a strong national
system for human rights protection. They thought that National Institutions
can help in ensuring an effective administration of justice, in particular with
regard to access to justice. The rule of law should be based on a Constitution
and on national legislation that is consistent with international standards
and principles.
They considered that nhris should play an oversight role over law enforcement agencies and seek to protect the rights of prisoners and detainees. They
felt that nis should monitor their Governments obligation to respect, protect
and fulfill the rights of all people in detention, especially vulnerable or marginalized groups, and support their reintegration within society. nhris should
strive to strengthen the correctional system and its personnel. They supported
the role of nhris in receiving cases of human rights violations and assisting
victims. They also supported the role of nhris in seeking informal legal redress
mechanisms through conciliation or through binding decisions.
They saw for themselves a role in publicizing the findings of treaty bodies
and human rights rapporteurs of the un Human Rights Council. They also saw
a role in promoting incorporation of international norms into national law.
Furthermore they saw a role in providing recommendations to strengthen the
legal system and judiciary and in promoting adherence and compliance of the
judiciary with international human rights norms, including through amicus
briefs and legal education.
They thought they could help in encouraging and supporting the establishment of legal aid centres.

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The Preventive Role of National Human Rights Institutions
For the most part, national human rights institutions remain fledgling institutions, especially in developing countries. Their protection role is still largely
undeveloped.147 Their explicit prevention role is even thinner. However, as
with all human rights activities, one can always claim that promotional work is
meant to serve the cause of prevention, in the here and now, and in the future.
One can say that national human rights institutions nowadays contribute to
prevention in one or more of the following ways:
Undertaking surveys and studies of issues and making recommendations
on them.
Drawing attention to problems in their annual reports or in periodic statements they might issue.
Undertaking historical analysis of the experience of a country with regard to
human rights and drawing lessons from the analysis.
Undertaking visits to prisons and places of detention.
Calling for the enactment of laws to correct problems in the society.
Engaging in good offices activities with governments and law enforcement
agencies.
However, much more preventive work is required inside all countries. National
institutions should undertake regular risk analysis from the perspectives of
human rights. The following checklist of issues could be kept in mind when
undertaking risk assessment through human rights lens:
(a) What is the ethnic composition of the country? Is there a minority
population? Is there an indigenous population? Is there a migrant
population?
(b) Is there a unifying vision of the country?
(c) What is the state of governance? Is there a functioning democracy?
(d) What is the state of the rule of law and the courts?
(e) Is there an effective national protecting system?
(f) Are there major grievances within the population?
(g) Is there an internal system of early warming and alert to head off
grievances?
(h) Is there a de jure or de facto state of emergency?
(i) Are there gross violations of human rights?
147 See on this, B.G. Ramcharan (Ed.), The Protection Roles of National Human Rights
Institutions (Martinus Nijhoff, 2005).

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(j)
(k)
(l)
(m)
(n)
(o)

What is the state of human rights of women?

Is there a problem of human trafficking in the country?
What is the state of respect for the rights of the child?
What is the state of the freedoms of expression, religion or belief?
What is the national security doctrine of the state?
What are the un human rights treaty bodies and the un human rights
investigations reporting about the country?
(p) What are the leading international human rights organizations reporting
about the country?
(q) Are there reputable human rights ngos in the country and what are they
reporting?
(r) Are perpetrators of gross violations of human rights being brought to
justice?
VIII

The Role of Human Rights Education in a National Protection

System

Human rights education in primary and secondary schools, in universities and

other higher institutions of learning, and in professional education of law
enforcement personnel can help instill respect for a culture of human rights in
each country and lay the foundations for societies aspiring to, and living up to
international, regional, and national human rights norms. While there are
courses on human rights in some law schools and other university departments, there is still a sad lack of human rights education in all countries. It is
vital to remedy this situation.
The un Human Rights Council, early on initiated the process of drafting a
declaration on human rights education which it has since adopted. One idea
behind this project was to work towards the conclusion of an international
convention on human rights education.148 Such a process would have in mind
some simple objectives: every teacher at the primary, secondary or university
level should be provided with a teaching manual, in local languages, so that
she or he might discuss the core human rights ideas with students and thereby
impart the values of the Universal Declaration. This may appear a modest
objective. But it is not. Human rights education is very infrequent world-wide.
148 This author, when serving in the position of un High Commissioner for Human Rights,
called for a Convention on Human Rights Education in his address at the opening of the
then Commission on Human Rights in 2004. He was subsequently associated with the
proposal for the declaration on human rights education.

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Countries struggling with economic and social problems do not normally

think of allocating the resources needed to provide human rights teaching aids
to instructors. A convention on human rights education would eventually help
make the case for priority in the allocation of resources. World-wide human
rights education will help spread a universal culture of human rights. It will
help shape tomorrows leaders by instilling in them an understanding that the
purpose of government is to strive for the realization of the economic, social
and cultural rights of their people while respecting, protecting and ensuring
their civil and political rights. Human rights education thus has a powerful
strategic objective. Another strategic objective must be to push more and more
for national human rights action plans in all countries.
IX

The Role of National Human Rights Plans of Actions in National

Protection Systems

The Vienna World Conference on Human Rights (1993) recommended that

each State consider the desirability of drawing up a national action plan identifying steps whereby that State would improve the promotion and protection
of human rights. According to a un Handbook on National Human Rights
Plans of Action,149 the fundamental purpose of a national human rights action
plan is to improve the promotion and protection of human rights in a particular country. It does this by placing human rights improvements in the context
of public policy, so that governments and communities can endorse human
rights improvements as practical goals, devise programmes to ensure the
achievement of those goals, engage all relevant sectors of government and
society, and allocate sufficient resources. The benefits of this approach, the
Handbook continued, include the following:
A national action plan should stimulate a more comprehensive assessment
of needs in the country concerned and, by making plans explicit both to the
government itself and to the general public, can generate a commitment to
achievement that would otherwise not exist;
National action plans are practical in orientation: they set achievable targets and propose realistic activities aimed at reaching these objectives;

149 Office of the High Commissioner for Human Rights, Professional Training Series No. 10,
Handbook on National Human Rights Plans of Action. United Nations. New York and
Geneva, 29 August, 2002.

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National action plans can be a tool of sound public administration and governance leading to a stronger rule of law, enhancing management of the
State and economic performance as well as the rights of citizens; promotion
of national cohesion by encouraging an environment of tolerance, harmony
and common purpose even where there is diversity; effective promotion of
programmes in areas such as education, health, housing, nutrition, social
services and administration of justice, thereby enhancing the quality of life
for all; reduced risk of catastrophic unrest and conflict that can have longlasting adverse impacts on the State and its people.
A national action plan necessarily mobilizes a wide range of people and
organizations in support of human rights activity. It therefore raises awareness and positive interest both with government and in the wider
community;
A comprehensive and structured approach is more likely to ensure that the
concerns of specific or vulnerable groups, such as women, children, minorities and indigenous peoples, are more effectively addressed;
A national action plan can facilitate the mobilization of domestic and international resources, including through United Nations and other programmes
of technical cooperation, for countries that need resources, training and
expertise to achieve their human rights goals;
National action planning takes an essentially non-confrontational approach
to the consideration of human rights issues. By avoiding the recriminations
that sometimes make human rights work more controversial, it may be possible to achieve their human rights goals.
The Handbook continued that more specific purposes are:
To provide guidance to government officials, non-governmental organizations (ngos), professional groups, educators, advocates and other members
of civil society regarding the tasks that need to be accomplished to ensure
that human rights are effectively observed and to promote cooperation
among these groups;
To establish or strengthen national or issue-specific institutions dealing
with human rights;
To promote the universal ratification of international human rights treaties, facilitate the effective observance by governments of their obligations and promote conformity of national legislation with international
standards;
To promote wider awareness of human rights standards and mechanisms,
including among those whose actions are particularly critical, such as

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police, security forces, prison staff and politicians as well as government

officials and other workers in social fields;
To promote and maintain a high level of awareness of the state of human
rights observance in the country;
To develop programmes specifically directed towards alleviating the human
rights situations of vulnerable groups in society.
To emphasize the role of human rights in national development.150
Conclusion
To conclude this chapter, we may offer the following recapitulation of the main
points developed above supplemented by additional elements of a national
protection system, of which space did not permit discussion, but which are
essential for the adequate and effective protection of human rights inside each
country. A national protection system, while anchored in national law, should
be consistent with, and reflective of, international human rights law. A national
protection system functions best under democracy and the rule of law. The
legislature, the executive, the judiciary, the legal profession, dedicated institutions such as national human rights commission, and ngos, all have roles to
play in the efficient design and performance of the national protection
system.
The national constitution should include provisions reflecting international
human rights norms of public policy (jus cogens), such as the total prohibition
of torture in any circumstance. National legislation should incorporate all
international human rights obligations of the State under international customary law, international treaties, and under mandatory decisions of the
United Nations Security Council.
The national protection system should provide for effective safeguards
against violations of international human rights norms from which no derogation is permissible under international law, such as the absolute prohibition of
slavery. The judiciary should be able to invoke international human rights
norms as reflected in international customary law, international treaties binding on the State, or general principles of law.151
The law enforcement system should be efficient and should observe and
protect human rights. In the words of the un Code of Conduct for Law
Enforcement Officials, In the performance of their duty, law enforcement
150 Ibid, pp. 911.
151 See on this, Article 38 of the Statute of the International Court of Justice.

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o fficials shall respect and protect human dignity and maintain and uphold the
human rights of all persons.152
Human rights education should be provided in all schools and higher institutions of learning. Human rights education should be viewed as an integral
part of a national protection system. Human rights action plans should also be
seen as an integral part of a national protection system. In periodic human
rights action plans a society sets priority goals for achievement in the area of
human rights and should work assiduously to achieve them.
A national protection system should include institutions such as a national
commission on human rights or an ombudsperson. With a national commission on human rights a country gives a signal that it wishes to work methodically for the promotion, protection and realization of human rights.
A national protection system should include arrangements to detect potential gross violations of human rights or conflicts and to prevent them.
Prevention arrangements are particularly important in multi-ethnic societies.
A national protection system should provide for adequate and effective
remedies to prevent violations of human rights and to provide redress in cases
of breach. The absence of a remedy available to test an arguable claim for
breach amounts to a violation of human rights.153 The right to an effective remedy may, in certain circumstances, require Governments to provide for and
implement provisional or interim measures to avoid continuing violations and
to endeavour to repair at the earliest possible opportunity any harm that may
have been done.154
A national protection system should be particularly attentive to the risks of
genocide, ethnic cleansing, war crimes and crimes against humanity, and
should provide effective guarantees against them. As the Human Right
Committee stated in its General Comment 6/16 of 27 July, 1982, States have the
supreme duty to prevent wars, acts of genocide, and other acts of mass violence causing arbitrary loss of life. The Summit Outcome Document adopted
by world leaders at the United Nations in 2005 affirmed the commitment of
the international community to the responsibility to protect, especially in
respect of genocide, ethnic cleansing, war crimes, and crimes against humanity. A national protection system should provide for a system of regular visits

152 Code of Conduct for Law Enforcement Officials, adopted by un General Assembly resolution 34/169 of 17 December 1979.
153 See on this the case of Faure v. Australia in the Human Rights Committee, 2001; Annual
Report of the Human Rights Committee, 2001.
154 General Comment 31 of the Human Rights Committee, supra.

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by national, regional or international bodies to all prisons and places of

detention.155
In the event of a violation of human rights, the national protection system
should provide for measures, beyond a victim-specific remedy, to be taken to
avoid recurrence of the type of violation in question. Such measures may
require changes in the States laws or practices.156 A national protection system
should provide for investigations of gross violations of human rights and for
justice to the victims. A national protection system should provide for safeguards against deportation or extradition to a state where the deportee/
extraditee may face serious risks of torture or arbitrary execution.
A national protection system should be particularly protective of human
rights defenders. A country should be constantly reviewing and updating its
national protection system so as to ensure that it provides the highest standard
of protection of human rights and protection systems. After all, Governments
are meant to serve the people and to protect their dignity and rights, not to
trample on them.

155 See on this, The Optional Protocol to the Convention against Torture (opcat), which provides for such a system of regular visits.
156 See General Comment 31 of the Human Rights Committee, supra.

chapter VI

National Protection in Practice? The ibsa

Countries
Introduction
The Human Rights Council has reaffirmed the importance of the establishment and strengthening of effective, independent and pluralistic national
institutions for the promotion and protection of human rights.157 It has encouraged Member States to establish effective, independent and pluralistic national
institutions or, where they already exist, to strengthen them for the promotion
and protection of all human rights and fundamental freedoms. It has recognized the role of independent national institutions in working together with
Governments to ensure full respect for human rights at the national level,
including by contributing to follow-up actions, as appropriate, to the recommendations resulting from the international human rights mechanisms. It has
encouraged national institutions to continue to play an active role in preventing and combating all violations of human rights. It has recognized the important role played by national institutions in the Human Rights Council, including
its universal periodic review mechanism. It has stressed the importance of
financial and administrative independence and the stability of national human
rights institutions.158
This chapter will look at how the Councils encouragement of the role of
national protection is playing out within countries, taking the cases of three
leading emerging countries India, Brazil and South Africa (ibsa).
I

Historical Background

Some historical background would help situate the policies of the three countries. India was a founding member of the former Commission on Human
Rights and, at the time of the drafting of the Universal Declaration of
HumanRights, advocated policies that would have had the Commission refer
situations to the Security Council. After the adoption of the Universal
157 A/HRC/20/2, para. 2.
158 A/HRC/20/2.

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Declaration of Human Rights India led the fight at the United Nations for the
condemnation of apartheid in South Africa. India has always been defensive
about international discussions of the caste system but it has not been loathe
to raise issues of discrimination in other countries, particularly in the context
of migration. India at one stage brought to the former Commission incidents of
British immigration officers administering virginity tests on Indian women
seeking to join their proposed spouses in the uk. India has generally sat on the
fence with it comes to criticising other countries for gross violations of human
rights. In 2012, however, after being reluctant to take a position against Sri Lanka,
it joined, largely under domestic political pressure from the State of Tamil Nadu,
in the adoption of a draft resolution expressing concern about that countrys
treatment of Tamils as the civil war concluded. India often highlights its democracy (the largest democracy in the world) in the Human Rights Council. Being
often on the receiving end of criticisms from Pakistan over the latters charge of
a lack of self-determination in Kashmir, India seeks to garner support from
other developing countries and therefore has to run with the pack for the most
part. India has chaired the former un Commission on Human Rights.
Brazil, like India, was a founding member of the United Nations and its representatives at the San Francisco conference made a strong case for the un to
stand for social justice. As a prominent member of the Organization of
American States, Brazil subscribed to human rights law-making and to the promotion and protection of human rights in Latin America. In the 1960s, 1970s,
and 1980, Brazil experienced military coups and military dictatorships and the
practice of torture was widespread. Brazil was often under scrutiny for its
human rights practices in complaints procedures operated by the former
Commission on Human Rights and defended itself with professionalism
thanks to the quality of its diplomats. One of its defenders, Ambassador Carlos
Calero Rodriguez, later a member of the un International Law Commission,
chaired the Commission on Human Rights and, as the situation in Brazil
improved, was a widely respected figure on the Commission.
South Africa, perhaps more than any other country in the United Nations,
benefited from the championship of human rights and the condemnation of
apartheid by the then Commission on Human Rights. With the attainment of
independence and the dismantling of apartheid, South Africa provided inspiring leadership on the Commission on Human Rights and its former Ambassador
in Geneva J. Selebi, chaired the Commission with distinction. Unfortunately,
after his departure, South Africa turned away from a leadership role and
became rather negative, asking why so many African countries were being
investigated in the then Commission on Human Rights. Whatever the reasons
for doing so, South Africa has been a negative force when it comes to taking

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principled stances against gross violators of human rights. South Africa, however, has sought to provide leadership in the international struggle against racism and racial discrimination, hosting the 2001 Durban conference on this
topic and leading on follow-up action to implement the programme of Durban.
South Africa also led a breakthrough on the Human Rights Council on the
issue of the rights of gays and lesbians.
II

Self-images and International Policies

Keeping in mind the foregoing historical background, it would be interesting

to begin our consideration of how the ibsa countries are interacting with the
Human Rights Council by noting how the three countries present themselves
nowadays and also to note their core international policies on human rights
issues.
(a) India
India considers that as the largest democracy in the world, Indian polity weaves
diversity into the fabric of a civilizational ethos of tolerance, respect, and mutual
understanding. India is home to 1.2 billion people. India has a very large population of Hindus (80% of the population), Muslims (13.4% i.e. 138 million) and a
great many followers of other faiths, including Christians (2.3% i.e. 24 million),
Sikhs, Jains, Parsis and others. India has 22 scheduled languages, but more than
1,650 dialects are spoken across the country. India is not only the largest democracy, but is also distinguished by a vibrant and evolving Constitutional system
which is founded on the recognition of human rights placed in the forefront of
the Constitution.159 The spirit is the recognition and the need to balance the
immense diversity of India with the imperative of maintaining the fabric of civilization and progress, coupled with tolerance, respect, mutual understanding
and recognition of the importance of human life and individual rights. Foremost
among these are measures for the removal and eradication of inequality.160
In the view of India, it continues to play an active and constructive role in
all human rights related issues in the un, including the Human Rights Council.
India has extended a standing invitation to Special Procedures Mandate
Holders during the 18th Session of hrc in September 2011, in keeping with our
Voluntary Pledges and Commitments made to the hrc in May 2011.161
159 Indias second upr report, A/HRC/WG.6/13/IND/1, paras 1 and 7.
160 Ibid, para. 7.
161 Ibid, para 118.

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(b) Brazil
Brazil considers that it has demonstrated its commitment to protecting human
rights by acceding to most international conventions and extending a standing
invitation to the special procedures and mechanisms to visit the country and
monitor compliance with its international obligations. The Brazilian Constitution
serves as a model in relation to the recognition of rights and fundamental guarantees. With a view to reducing poverty and social inequality, in recent years
Brazil has integrated social principles into economic growth strategies, fostering
sustainable and inclusive development. Consequently, 39.6 million people were
incorporated to the middle class between 2003 and 2011. Income inequality
declined as well. Between 2001 and 2009, the ratio of household per capita
income of the richest 20% against the poorest 20% dropped from 24.3 to 17.8.
Similarly, the Gini Index fell162 from 0.59, in 1999, to 0.54 in 2009. Finally, the
resumption of dynamic economic growth vaulted Brazils economy from the
worlds 13th largest, in 2000, to the 6th largest, in 2011.
Brazil considers that it has made enormous efforts to promote sustainable
development with social inclusion and fulfilment of human rights, based on
the belief that this strategy provides the path to a more equal, just and peaceful
society. It noted that
In a global scenario marked by crisis and change, the same principles that
have guided the governments actions on the domestic front have inspired its
efforts on the international sphere. The human rights perspective, which has
been historically used to translate social demands into policies and actions
that promote and fulfill the fundamental rights of all people, is equally relevant beyond the nations borders. For, ultimately in a multi-polar world,
human rights emerge as a fundamental pillar in the pursuit of lasting peace.163
(c)
South Africa
Following the South African elections of 22 April 2009, the new government
assessed the performance of government over a period of fifteen years since
the dawn of democracy in 1994 and reaffirmed the existing good policies
which deal with the domestic challenges facing South Africa and the fulfilment of its international obligations. The new government identified the need
to improve its ability to implement its policies and programmes and identified
the need to improve its ability to implement its policies and programmes and
identified five priorities for the Medium Term Strategic Framework period,
162 Human Rights Council, National report submitted in accordance with paragraph 5 of the
annex to Human Rights Council resolution 16/21* Brazil. A/HRC/WG.6/13/BRA/1, para 58.
163 126127.

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20092014 in accordance with the electoral mandate, being education, health,

growing the economy and creation of decent jobs, fighting corruption and crime,
and rural development and land reform. Out of these priorities, the new government formulated twelve outcomes to focus key p
rogrammes of its work.164
Additionally, and with a view to enhancing its promotion, protection and
fulfilment of human rights, the new government established a number of new
departments, including a department of women, children and people with disabilities, department of traditional affairs, and a department of basic education and higher education.165
The South African government considers that the practical enjoyment of
human rights and fundamental freedoms is, first and foremost the responsibility of governments at the national level. The roles of regional and international
human rights mechanisms in complementing national efforts in this regard
are appreciated in the South African government system.166
III Framework
It is necessary to note, at the outset, that the Human Rights Council is a political
body with a human rights mission. The human rights treaty-based bodies are, in
principle, legal bodies, called upon to apply their particular human rights conventions. The Office of High Commissioner for Human Rights is a hybrid entity
encompassing legal, political and moral dimensions.
It is legitimate to expect that Governments will comply with their legal obligations under the un Charter and under international human rights law when
participating in un organs, even political ones, and that they will carry out
their obligations in good faith under human rights treaties.
In political organs such as the Human Rights Council Governments are
under legal obligation to comply with norms of international public policy or,
in technical parlance, norms of jus cogens, with norms of international customary law, and with their constitutional obligations under the United Nations
Charter. Governments are also expected to be mindful of their normative obligations under human rights treaties to which they are parties.
The foregoing having been said, Governments, in the normal course of
things, will exercise political judgment in their participation in political organs.

164 Human Rights Council, National report submitted in accordance with paragraph 5 of the annex
to Human Rights Council resolution 16/21* South Africa, A/HRC/WG.6/13/ZAF/1, para. 58.
165 Ibid, para. 5.
166 Ibid, para. 58.

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This opens the door to political gymnastics. Unfortunately, all Governments

engage in such gymnastics, even the ones with high-sounding moral tones.
When it comes to complying with obligations under human rights treaties,
these are usually put into two categories: obligations of result and obligations
of conduct. Every Government is to be judged according to whether it has
achieved results to which it has committed itself or courses of conduct to
which it has agreed.
In the midst of all of this stands a curious hybrid: the Universal Periodic Review
process. It is professedly promotional and political, but it should not detract from
the legal obligations to which Governments have committed themselves. This is an
issue on which clarity is lacking in the process and in the Human Rights Council.
IV Perspectives
Having noted the foregoing, it would be useful to consider some benchmarks
against which we might consider our subject-matter. We shall borrow three
insights from the Oxford History of the Twentieth Century.
In a chapter, The Growth of Global Culture, Prof. Alan Ryan notes that just
as no two households in a village lead exactly the same lives as each other, in
the same way we can expect different national households, even as the world
becomes truly a global village, to be insistent as ever on what distinguishes
each of them from all the others. In short, countries will approach issues and
situations through the lens of their own experiences, even if they are obliged in
principle to uphold international human rights law.167
In a chapter, Towards a World Community? The United Nations and Inter
national Law, Prof. Adam Roberts noted that throughout the twentieth century
there had been an underlying tension between two logically incompatible sets of
ideas: the sovereignty of states, on the one hand, and the creation of a supranational order through international law and organization on the other. Sovereignty
implied the right of each state to have its own rules and institutions, while
International law and organization, especially when covering the vast range of
matters they now encompass, imply a serious limitation of sovereignty.
The experience of the twentieth century was that neither approach could
triumph over its opponent. If some kind of ordered and law-based international society had emerged, it had done so on a curious basis: It was founded
on two logically incompatible sets of ideas, each of which needed the other in
order to remedy its own inherent limitations.168
167 M. Howard, et al. (Eds), Oxford History of the Twentieth Century (Oxford, 1998, 2002), p. 76.
168 Ibid, pp. 317318.

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In a chapter, Towards the Twenty-First Century, Prof. Ralph Dahrendorf

noted that Utopia had been one of the casualties of the twentieth century and
offered three moral principles for the twenty-first century: First, that only open
societies can be good societies. Second, we must acknowledge a duty to future
generations and that the responsibility principle was necessary in the risk
society in which we are living. Third, there is the matter of underlying attitudes. Ernest Gellner, in his Uniqueness of Truth, had identified three underlying attitudes: the relativist, the fundamentalist, and the enlightenment puritan.
Certainly, a wave of relativism was sweeping the world, especially the old
developed world, where anything goes, either because it serves the self-interest
of those who do not want to be told by others what not to do, or because it
seems the logical end of the road from liberal to libertine predilection. Such
relativism, however, would not help us square the circle in an age of globalization. We are living in a horizon of uncertainty. We do not know for sure what is
right and good and just, but we must try to find out. We must never give up
trying to enhance the quality of life.169
The foregoing insights should at least warn us against any temptation to
sanctimoniousness when discussing the approaches of the ibsa countries to
human rights issues.
V

The Historical Journeys of the ibsa Countries

We need to take account of the historical journeys of all three countries.

Indians point to their colonial legacy, the high levels of poverty at the time of
independence, and the challenges of nation-building in the midst of much
diversity. Ramachandra Guha, in his book on post-independence India, goes
into details of the drafting of the independence constitution, a process that
produced one of the longest and a rather innovative constitution when it comes
to protecting the rights of the down-trodden.
Former Brazilian President F.H. Cardoso, in a book on the Brazil of his youth
and his life and Presidency, tells a moving story of the quest to make Brazil a
democracy grounded in the rule of law and respect for human rights. It is not a
long time ago that Brazil under military rule was the focus of complaints of
gross violations of human rights before the former un Commission on Human
Rights. Nowadays, Brazil is a leader in the quest at the United Nations for universal realization of human rights.
It was only two decades ago that South Africa recovered its independence
from a brutal repressive regime. It has maintained a democratic order, fostered
169 Ibid, pp. 342343.

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the rule of law, and has a Constitutional Court that is a world leader when it
comes to the implementation of human rights, particularly economic and
social rights.
Even if they are democratic emerging powers they all three have fragile
pasts and are confronted by daunting economic and social problems still. All
three also have significant levels of corruption, at varying levels, that scar their
bodies politic. This is relevant when one is considering the quality of their participation in international human rights bodies.
VI

The Three Countries Quest to Implement the Right to

Development at Home

The ibsa countries all actively support the implementation of the right to
development world-wide in the Human Rights Council and in other un fora
and it would be fair to say that all three countries have pursued national
strategies in this area, even if they do not specifically use the language of the
right to development internally. One can point to Indias successive national
development plans, to Brazils impressive policies and performance in reducing the levels of poverty, and to the nedlac arrangements within South
Africa when it comes to developing consensus on economic and social
policies.
It would be fair to expect all three countries to be sensitive to the problems
of developing countries as regards implementation of the right to development in all countries, especially in view of the enormous challenges of poverty
reduction that continue to face all three ibsa countries. What we are dealing
with here is an attitude of mind, of countries approaching issues and situations through the lens of their own experiences.
India
Justice A.S. Annand, Chairperson of the National Human Rights Commission
of India and former Chief Justice of India addressed the un Human Rights
Council during its first session, on 27 June, 2006 on the Right to Development.
The Indian Commission, he explained, had taken the view that the right to
development is inherent to a life with dignity under Article 21 of the Indian
Constitution, which is an enforceable right.
Elaborating on this, he explained that for a programme of poverty eradication one had to look at a number of indices together, and a right to d evelopment
approach would imply considering improvement in each of the indices
through schemes that had to be implemented following the rights approach

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where the beneficiaries were empowered to participate in the decision-making

and executing the different schemes, transparently and accountably, and
sharing the benefits equitably.
Non-discrimination, he noted, was central to the implementation of the
right to development. Another important factor having a bearing on the development debate was the issue of corruption as a violator of human rights. Good
governance was not possible unless it was free from corruption. He added:
It would be in the fitness of things that we aim at ensuring distributive
justice in the national as well as the global context. To achieve that,
there has to be a paradigm shift from Human Development as seen
merely in terms of economic growth, to Human Development as a basic
human right.
The universality of human rights with focus on human dignity and concern for
accountability, he continued, made them uniquely appropriate for re-shaping
development cooperation, fostering good governance and combating discrimination, disease and despair with the ultimate aim of reaching the goal of
achieving human rights for all.170
The Indian Planning Commission has worked for economic and social justice in India, and in effect for the implementation of the right to development
for the past sixty years. In the spirit of advancing economic and social justice
and human rights, the latest, the eleventh five year plan of Indias Planning
Commission aims at:
Rapid growth (at 9 per cent per annum) that can reduce poverty and create
employment opportunities;
Access to essential services in health and education especially for the poor.
Equality of opportunity;
Empowerment through education and skill development;
Employment opportunities underpinned by the National Rural Employment
Guarantee;
Environmental sustainability;
Recognition of womens agency; and
Good governance.
170 Intervention on Behalf of the National Human Rights Commission of India on Right to
Development at First Session of the United Nations Human Rights Council by Dr Justice
A.S. Annand, Chairperson, National Human Rights Commission of India (former Chief
Justice of India) on 27 June, 2006 at Geneva. Original text on the Internet.

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The goal of access to essential services in health and education, especially for
the poor, is worthy of some elaboration. The thinking of the Indian Planning
Commission is that access to basic facilities such as health, education, clean
drinking water, etc., impacts directly on welfare in the short-run while in the
longer-run it determines economic opportunities for the future. Since access
to these services for the mass of the population depends not only upon their
income levels but upon the delivery of these services through publicly funded
systems, the Eleventh Plan envisages a major expansion in the supply of these
services. It hopes that the high growth being targeted over the plan period
will help in providing ample resources to fund these programmes by way of
higher tax revenues that would become available and a larger borrowing
capability.
The Planning Commission, the supreme planning body in India, was set up
in March, 1950 by a Resolution of the Central Government. It is not a statutory
or constitutional body. It was placed outside of the conventional Ministries
and departments with a view to preventing it from falling into a rut and to
facilitate development of supra-departmental views. The Commission format
was intended to provide flexibility in response to emerging needs and to build
up a brains trust for development.
Its functions from the outset were five-fold:
Formulation of five-year plans for the most effective and balanced utilisation of the countrys resources;
Working out priorities in the plan;
Assessment of national resources and devising ways and means of augmenting them;
Determination of the best machinery to secure the successful implementation of the plan;
Periodic evaluation of the progress of the plan with a view to suggesting
adjustments if necessary.
The composition and structure of the Commission have evolved since its
establishment some sixty years ago. More recently the Commission has consisted of a full-time Deputy Chairman and eight other full-time members. The
day to day work of the Commission is in the hands of the Deputy Chairman,
who has the rank of a Cabinet Minister, while the other full-time Members
have the rank of Ministers of State (equivalent to a junior minister). The Chair
of the Commission is the Prime Minister who, however, only participates
from time to time on matters of special importance. Different Ministers
have, from time to time, served as part time ex officio Members. There are

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those who have criticised the membership of the Prime Minister and the
Ministers. The Deputy Chairman, who is also Minister of Planning, is invited to
attend all Cabinet meetings and when necessary other members also attend
the meetings of the Cabinet or its Committees.
The Planning Commission is an advisory body to the Government. It may
take the initiative in suggesting new policies and programmes and in coordinating those originating from other agencies of government. To support the
Planning Commission there is also a small Ministry of Planning. We shall not
go into details of its composition here. There is a Minister of State in this
Ministry whose main task is to act as spokesman of the Commission and to be
answerable to Parliament for the Commissions work.
The main work of the Planning Commission is organized through Divisions
which include a General Planning Division responsible for a comprehensive
study of the country as a whole and whose work and conclusions are prerequisites for studies relating to individual sectors. Special Planning Divisions
are concerned with the study of particular sectors of social and economic
development. Other Divisions include those on educational, health, and family
welfare; labour, employment and manpower; rural development; village and
small industries; rural energy; development policy; and backward classes.

South Africa
As we saw in the preceding section, the Indian Human Rights Commission
considers that the right to development is an inherent part of an enforceable
right in the Indian constitution protecting human dignity. The South African
constitution includes in its Bill of Rights Article 10 which states that everyone
has inherent dignity and the right to have their dignity respected and p
rotected.
Article ll adds that Everyone has the right to life.
The South African Constitutional Court has had occasion to pronounce on
dignity and life-related issues on different occasions and three of its judgments
are of direct relevance to the subject-matter of our discussion. In Government
of rsa v. Grootboom & Others171 the Constitutional Court noted that the
Constitution obliges the state to act positively to ameliorate the plight of the
hundreds of thousands of people living in deplorable conditions throughout
the country. It must provide access to housing, health care, sufficient food and
water, and social security to those unable to support themselves and their
dependents. All the rights in the Bill of Rights were interrelated and mutually
supporting. Human dignity, freedom and equality are denied to those without
food, clothing or shelter. The State must also foster conditions that enable
171 2001 (1) SA 46 (CC).

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c itizens to gain access to land on an equitable basis. However, this does not oblige
the state to go beyond the available resources or to realize these rights immediately. Nevertheless, the state must give effect to these rights and in appropriate circumstances the courts can and must enforce these obligations. The
question is always whether the measures taken by the state to realize the rights
afforded by section26 are reasonable.
In Soobramoney v. Minister of Health, the Constitutional Court had held
that the State had a duty to show that it had a system in place for the allocation
of limited health resources in a manner that was reasonable.172 In Minister of
Health & Others v. Treatment Action Campaign and Others, the Constitutional
Court similarly held that the State must act reasonably to provide access to the
socio-economic rights identified in sections26 and 27 of the constitution on a
progressive basis.173
South Africa also has an innovative institution of social dialogue that plays
an important role in nation-building and development: nedlac, the National
Economic Development and Labour Council. nedlac was established in law
through the National Economic Development and Labour Council Act, Act 36
of 1994. It has a unique role and status in the promotion of national cohesion
in South Africa.
As apartheid was ending and the new, democratically elected, government
was taking over in 1994, South Africans realised that their society had deep
divisions and fault lines, that labour relations had been catastrophic in the
past and that trade policy had to be drastically re-oriented. They would, they
concluded, have to institutionalise cooperation for a new South Africa.
Institutionalised social dialogue was needed to help undo the damaging legacies of apartheid and address the challenges of economic performance, more
especially with reference to growth, job creation and poverty.
Professor Raymond Parsons of the University of Pretoria, an authority on
nedlac, has noted that nedlac wasintended to provide the socio-economic
dimension of the reconciliation and nation-building to which President
Mandela was strongly committed South Africans therefore decided on the
establishment of nedlac as the v ehicle by which government, labour, business
and community organizations would seek to cooperate, through problem solving and negotiations, on economic, labour and development issues and related
challenges facing the country.

172 1998 1 SA 765 CC.

173 (No.2) 2002, (5) SA 721.

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nedlac conducts its works in four broad areas, covering: (i) public finance
and monetary policy; (ii) labour market policy; trade and industrial policy;
(iv)development policy.
It has a Development Chamber, a Labour Market Chamber, a Trade and
Industry Chamber, and a Public Finance and Monetary Policy Chamber.
Government departments, organized labour, and organized business participate in all four chambers. Community-based organizations have a legal right to
participate in the Development Chamber but in practice also participate in the
other three chambers. There is an annual summit of partners, an executive
council, and a management committee.
Upon commencing its work in 1995 nedlac set itself five objectives that
shaped its agenda in the next decade and a half. These were to: (1) Promote economic growth, participation in economic decision-making and social equity,
(2)Seek policy to reach consensus and conclude agreements on social and economic policy. (3) Consider all proposed labour legislation relating to labour market policy before it was introduced into Parliament. (4) Consider all significant
changes to social and economic policy before it was implemented or introduced
into Parliament. (5) Promote the formulation of coordinated policy on social and
economic issues. From the outset it was acknowledged that in order for the negotiation process in nedlac to succeed it was crucial to place the emphasis on
securing agreement. Every effort would be made to negotiate agreed policies.
nedlac was conceived as an agreement-making body rather than an advisory one. Nevertheless, it was recognized by all participants that the nedlac
process was not supposed to be a substitute for Parliament. Whilst agreements
could be reached between the social partners, such agreements, to be binding,
required Parliamentary debate and adoption. It is of crucial importance, however, that the search for agreement took place within nedlac, where the social
partners were present.
An external review of the nedlac process between 1995 and 2006, conducted by Professor Edward Webster of the University of Witwatersrand,
concluded that nedlac had deepened democracy by creating new labour
market institutions that had included constituencies previously excluded from
the policy-making process. In the process of building these institutions a
remarkable generation of social entrepreneurs had developed networks of
trust. The nedlac had provided an opportunity for the four constituencies of
organised business, government, organised labour and the organised community, to shape the content, sequence and pace of a range of economic and
social policies before they were debated in Parliament. This had improved the
quality of decisions, built political bases of support for the reform strategy and
channelled political conflicts within democratic institutions.

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South Africa, Professor Webster underlined, had chosen in 1994 the policy
option of consultation and negotiation beyond the parliamentary actors. This
policy process of drawing non-state interest groups into policy formulation
and governance had played a central role in promoting good policy practices.
As the ilo has noted, The best solutions arise through social dialogue in its
many forms and levels, from national tripartite consultations and cooperation
to plant-level collective bargaining. Engaging in dialogue, the social partners
also fortify democratic governance, building vigorous and resilient labour
market institutions that contribute to long-term social and economic stability
and peace.
Professor Webster made the following assessment: nedlacs major
achievement in the first 11 years of South Africas democracy is its cost-effective
contribution to the sustainability of the reform process. This has deepened
democracy, created new labour market institutions and contributed to longterm economic and social reform.
Brazil
Brazil is the fifth-largest country in the world and the ninth-largest economy.
Brazil faces many social challenges, of which the most significant are the inequities in the distribution of income, low educational attainments, poor health,
and limits to the decision-making participation of its citizens. The Brazilian
Agenda 21 was signed in July, 2002 by then President Fernando Henrique
Cardoso in preparation for the World Summit on Sustainable Development.
A Commission of Policies for Sustainable Development and the of the
National Agenda 21 (cpds) coordinated by the Ministry of the Environment
and comprising 10 members evenly distributed between the civil society and
the government worked on the creation of the Brazilian Agenda 21 since 1997
in response to the 1992 Rio Conference. Six central themes were selected as a
basis for the initial consultation process including: sustainable agriculture,
sustainable cities, infrastructure and regional integration, natural resources
management; reduction of social inequalities; and science and technology for
sustainable development.
The objectives of Brazil Agenda 21 included:
The economy of savings in the society of knowledge. Priority actions
under this objective included sustainable production and consumption
against the waste culture; information and knowledge for sustainable
development.
Social inclusion for a solidarity society. Priority action under this
objective included permanent education for work and life; promotion of

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health and prevention of diseases; social inclusion and income distribution;

universalisation of environmental sanitation to protect the environment
and health.
Strategy for the urban and rural sustainability. Priority action under
this objective included the sustainable development of rural Brazil; and
the promotion of sustainable agriculture.
Strategic natural resources: water, biodiversity and forests. Priority
action under this objective included preserving the quantity and improving the quality of the water in the hydrographic basins.
Governability and ethics for the promotion of sustainability. Priority
actions under this objective included the promotion of civic culture and
new identities in the communication society.
VII

Participation in the un Human Rights Treaty System

The un Human Rights Treaty system constitutes the strongest body of international human rights law on record. Whatever a country might do in political
organs such as the Human Rights Council or in general promotional activities,
it binds itself in international human rights conventions to produce obligations of conduct or result.174 It is therefore appropriate to start by considering
the extent to which the ibsa countries are participating in this system and
with what results.
India is a State Party to the icerd, icescr, iccpr, cedaw, crc, op-crcac, op-crc-sc, crpd. It has made reservations to icerd, Article 22, and declarations and /or understandings to the icescr, iccpr. cedaw, crc. It has
not accepted any of the complaints procedures under the human rights treaties: icerd, article 14, op.icescr, iccpr.op.1, op-cedaw, cat, art. 22, icrmw,
article 77, op-crpd, ced, article 3. It has not ratified iccpr-op.2, op-cat,
icrmw, ced (signature only, in 2007).
Brazil is a State Party to icerd, icescr, iccpr, cedaw, cat, op-cat, crc,
op-crc-ac, op.crc-sc. It has not so far ratified icrmw. It has accepted complaints procedures under icerd, article 14, cat, art. 22, and op-cedaw. However,
it has not yet accepted so far the complaints procedures under op-icescr, ced,
Article 3, icrmw, art. 77. The Sub-Committee on the Prevention of Torture (spt)
visited Brazil in September 2011 and has made confidential report.175
174 See, generally, B.G. Ramcharan, The Fundamentals of International Human Rights Treaty
Law (The Hague, Martinus Nijhoff, 2011).
175 A/HRC/WG.6/13/BRA/2, para. 1.

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South Africa is a State Party to icerd, iccpr, iccpr-op 2, cedaw, cat,

crc, op-crc/sc, crpd. It has made a Declaration in respect of article 30 of
cat. It has accepted the complaints procedures under icerd, article 14, iccpr
op 1, op-cedaw, cat, op-crpd, and iccpr, article 41. It has not yet accepted
the icescr (signature only, 1994), op-cat (signature only, 2006), icrmw, and
ced. It has not yet accepted the complaints procedures under the op-icescr,
ced, article 31, icrmw, art. 77, opic.176
VIII

Participation in the Special Procedures System of

the Human Rights Council

The Special Procedures of the un Human Rights Council are the strongest protection actors among the un human rights bodies.177 The Human Rights
Council inherited them from the former Commission on Human Rights.
Historically, Governments have sought to shun them and to minimise their
impact. There were even efforts when the Human Rights Council began it work
to do away with them or to curtail them. Fortunately, those efforts did not succeed and the special procedures basically human rights fact-finders continue
to function vibrantly. It is therefore interesting to see to what extent the ibsa
countries are participating with the special procedures mandate holders.
India has extended a standing invitation to thematic human rights special
procedures to visit the country when they choose to do so. In recent years it has
received visits by the Special Rapporteurs on Health, Food, Violence against
women, freedom of religion, toxic waste, human rights defenders, and arbitrary and summary executions, sale of children. It has also agreed in principle
to receive visits in the future from the special procedures on adequate housing
and arbitrary detention. It still has to respond to requests for visits by the special procedures on torture (requested in 2010), racism (renewed request in
2008) and indigenous people (requested in 2008), water and sanitation
(requested 2009), trafficking (requested 2010), disappearances (requested 2010,
with reminder in 2011), independence of judges and lawyers (requested in 2011)
and violence against women (requested in 2012).178
During four years covered by Indias second upr review, 20082012, India
had received 98 communications about alleged human rights concerns from
176 A/HRC/WG.6/13/ZAF/2, p. 1.
177 See, generally, B.G. Ramcharan, The Protection Roles of the un Human Rights Special
Procedures (The Hague, Martinus Nijhoff), 2010.
178 A/HRC/WG.6/13/IND/2, para. 11.

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special procedures and had replied to 76 of them. In 2012 the Working Group
on Disappearances noted that since its establishment, it had transmitted 433
cases to the Government of India, 12 of which had been clarified on the basis
of information provided by the sources, 68 cases had been clarified on the
basis of information provided by the Government of India. The Government
had not responded to a request for follow-up information on freedom of
religion.179
Brazil has made a standing invitation to thematic special procedures to visit
the country. During the four years covered by Brazils second report under the
upr process, special procedures did not make any requests for visits to the
country. During the same period special procedures sent 35 communications on
alleged concerns. The Government replied to 8 of these communications.180
South Africa has extended a standing invitation to special procedures to
visit the country. During the four years covered by its second upr report it
received visits from the Working Group on Mercenaries, the special rapporteur
on the human rights of migrants, and the special rapporteur on the right to
food. During the same period special procedures sent 9 communications on
issues of concern. The Government replied to 2 of these.181
IX

Participation in the Universal Periodic Review Process of

the Human Rights Council

All three countries have participated in both cycles of the upr The upr system
gives an opportunity for a Government to tell its peers about its efforts to promote and protect human rights at home and with what results, for the un
Secretariat to recapitulate the recommendations of human rights treaty bodies and special procedures, and also to summarise the submissions of national
human rights institutions, and for the other Governments to offer their views
and observations within the framework of the Human Rights Council, first in a
Working Group of the whole and then in the plenary Council. Each government is free to accept or to decline recommendations by its peers. ngos participate by providing written materials beforehand and are given limited time
to make comments in the plenary of the Council.
In the following section we draw on the three country reports under the
second round of the upr and on the submissions of national human rights
179 Ibid, paras. 1112.
180 A/HRC/WG.6/13/BRA/2, para. 7.
181 A/HRC/WG.6/13/ZAF/2, p. 1.

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institutions in the case of India and South Africa, which have such bodies, and
of other bodies in the case of Brazil, which has not yet established a national
human rights institution but has announced its intention to establish one.
We do not consider the comments or recommendations of individual peer
Governments because they are too disparate and, in any case, a reporting
Government is free to accept or decline those recommendations.
(a) India
India, in its second upr report, sought to identify various steps taken by it in
the ongoing effort of making fundamental rights real and meaningful. It provided in an Annex a summary of some important judicial pronouncements
which had enabled the progressive evolution of the fundamental rights incorporated in the Constitution.182
India reported that in recent years it had taken several important initiatives
aimed at securing human rights, including: the enactment in 2010 of the National
Green Tribunal Act to provide for effective legal protection for the environment,
forests and other natural resources; the introduction into Parliament in 2010 of a
Protection of Women against Sexual Harassment at Workplace Bill; the enactment in 2009 of the Right to Education Act, which introduced a new fundamental right for free and compulsory education of children in a neighbourhood
school; the introduction in 2010 of a Constitutional amendment Bill to reserve
for women nearly one-third of seats in the Lok Sabha, (the Lower House of
Parliament); the establishment in 2007 of a National Commission for the
Protection of Child Rights; the enactment in 2006 of Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of Forest Rights) Act; the establishment in 2005 of the landmark Mahatma Gandhi National Rural Employment
Guarantee Act aimed at conferring a right to livelihood to the poor; the enactment, in 2003, of the Protection of Women from Domestic Violence Act; and the
enactment in 2003 of a historic Right to Information Act.183
India further reported that the judiciary had been a major catalyst for
change, including through its Public Interest Litigation for protection against
grave violation of human rights. The judiciary has also ensured that even if
India has not signed or ratified any particular international instrument/protocol, cognizance of these is taken through its various judgments.184
India has promulgated Citizens Charters. Their main objective is letting
people know the mandate of each Ministry/Department/Organization, how
182 A/HRC/WG.6/13/IND/1, para. 9.
183 Ibid, para. 10.
184 Ibid, para. 11.

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one can get in touch with its officials, what to expect by way of services and
how to seek a remedy.185
India reported that it had borne the brunt of terrorist activities over the last
three decades from across the border. Insurgency in some parts had added
another dimension. Terrorists and insurgents had taken advantage of Indias
open and democratic society to perpetrate violence and killings with deleterious effect on the population and on their enjoyment of human rights.186
Nevertheless, The Government of India remains committed to fulfill its obligations to secure to its citizens all civil and political rights.187
The National Human Rights Commission of India, in its submission to the
ohchr and the Human Rights Council, provided its assessment of the
Government of Indias response to the eighteen recommendations that had
been made to India in the first round of upr. According to the nhrc, there was
no evidence that India intended to ratify ced. Enforced disappearance had not
been enacted as a criminal offence in domestic law, nor were extant provisions
of law used to deter the practice.
The nhcr reported that the Prevention of Torture Bill, (2010), which was
originally weak, had been strengthened by a Select Committee of Parliaments
Upper House. If the Bill eventually adopted were to dilute the revisions proposed by the Select Committee, Indias commitment to the cat would be
called into question.
The nhrc was concerned that there had been no developments to amend
the Special Marriage Act and to give equal rights to property accumulated during marriage. According to the nhrc, the Government continued to allow the
National Commission to function independently but had given them no additional powers or greater resources. The State Human Rights Commissions
were mostly moribund and few human rights courts had been set up.188
According to the nhrc there was still no national action plan for human
rights. There had been little progress in strengthening human rights education
and almost none of the States in India had given education priority. The nhrc
was unaware of any programmes of the government on sharing its experience
in promoting and protecting human rights.189
The nhrc stated that the Human Development Report 2011 of the Planning
Commission had included some disaggregated data, but not on caste and
185
186
187
188
189

Ibid, para 17.

Ibid, para. 22.
Ibid, para. 24.
Ibid, paras. 25.
Ibid, paras. 5&7.

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related discrimination. The nhrc believed that such data was essential in key
areas such as: crimes committed against women and children from the
Scheduled Castes and Scheduled Tribes, violence against women other than
rape, bonded labour, child labour and manual scavenging, custodial violence,
illegal detention and torture.190
It would be fair to say that the nhrc was here pointing to serious problems
in the protection of human rights in India. The feet of the nhcr were touching
the ground. Whether one could say the same of the Governments upr report
is open to discussion.
The compilation prepared by the ohchr on the findings of treaty bodies
and special rapporteurs, and the compilation of submissions received from
civil society give a realistic picture of what is taking place on the ground as
regards the actual enjoyment of human rights. In the following sections we
provide only glimpses of this material, but hopefully telling ones.
The cescr has expressed deep concern that despite the Constitutional
guarantee of non-discrimination as well as the criminal law provisions punishing acts of discrimination, widespread and, often, socially accepted discrimination, harassment and/or violence persisted against members of certain
disadvantaged and marginalized groups, including women, scheduled castes
and tribes, indigenous peoples, the urban poor, informal sector workers, internally displaced persons, religious minorities, such as the Muslim population,
persons with disabilities and persons living with hiv/aids. The Special
Rapporteur on the situation of human rights defenders had indicated that
defenders working on such issues faced particular risks. cescr had recommended that India strengthen enforcement of existing legal prohibitions on
discrimination and consider enacting comprehensive anti-discrimination legislation prohibiting discrimination in employment, social security, housing,
health care and education. cescr had urged India to step up efforts to remove
obstacles faced by victims of discrimination when seeking redress through the
courts.191
In 2012, the Special Rapporteur on the situation of human rights defenders
referred to reports that the functioning of the judiciary was hampered by a
backlog and significant delays in administrating cases of human rights violations due to a lack of capacity, manpower and resources. High costs of litigation had reportedly restrained access to justice for victims. Police intimidation
was said to play a role in deterring victims from filing cases.192
190 Ibid, para. 6.
191 A/HRC/WG.6/13/IND/2, para. 16.
192 Ibid, para. 35.

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(b) Brazil
Brazil, in its second upr report, said that it had demonstrated its commitment
in protecting human rights by acceding to most international conventions and
extending a standing invitation to the special procedures and mechanisms to
visit the country and monitor compliance with its international obligations.
The Brazilian Constitution served as a model in relation to the recognition of
rights and fundamental guarantees. Article 5 sets forth a number of provisions
defined as entrenchment clauses, preventing their suppression. Under its
aegis, human rights treaties have been invested with the status of constitutional amendments since 2004. In 2009 the Convention on the Rights of
Persons with Disabilities became the first international instrument enacted
into domestic law with constitutional force.193
Achieving development with respect for human rights, in a manner that
ensures empowerment of individuals and groups, was a priority for the
Government of Brazil. The best development policy was to combat poverty
while the best human rights policy was to reduce inequality and discrimination among people, regions, races and genders. Guided by these principles and
in partnership with social movements and the international community, Brazil
had fulfilled the commitment it had undertaken before the un and met virtually all millennium development goals before 2015, integrating the human
rights perspective in their fulfilment.194
With a view to reducing poverty and social inequality, in recent years Brazil
had integrated social policies into economic growth strategies, fostering sustainable and inclusive development.195 Equally crucial has been the implementation of international and domestic legal frameworks. Thus, in 1996,
Brazil had instituted the National Human Rights Programme, pursuant to the
1993 Vienna Declaration and Programme of Action. The programme established commitments and guidelines for State action, consolidating the perspective of human rights as a cross-cutting axis of public policy. The third
version of the Programme had grown out of a broad ranging discussion
between various organizations and spheres of government, involving 33 ministries in its approval and execution and with the active engagement of civil society. The National Human Rights Programme was an extensive programme, in
which all recommendations of the upr First Cycle were being addressed
through programmatic government actions.196
193
194
195
196

A/HRC/WG.6/13/BRA/1, para. 5.
Ibid, paras. 67.
Ibid, para. 8.
Ibid, para. 9.

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One of the significant innovations of the National Human Rights Programme

lay in its cross-cutting approach to human rights, thereby affirming their indivisible and interdependent character. In order to more effectively coordinate
and monitor execution of the Programme, in September, 2010 an InterMinisterial Committee for Follow-Up and Monitoring of the Programme had
been established. In November 2011, the Government had pledged to strengthen
public oversight of the Programmes execution by enhancing social participation in the Committee. Efforts were underway to establish a National Human
Rights Institution in accordance with the Paris Principles.197
Since there is no National Human Rights Institution in Brazil there was no
submission by such a body to the Human Rights Council. However, several
Brazilian organizations joined together and made a joint submission. The joint
submission noted that Brazil lacked institutions compliant with the Paris
Principles and that civil society organizations were finding little space for
human rights in the political arena. Amnesty International noted that legislation to create a National Institution had been pending since 1994 and did not
guarantee independence from the Executive.198
The ohchr report on civil society submissions stated:
Several organizations have discussed the impact of development projectson public policy and the human rights situation. Joint Submission
17points out that the budget for human rights has been reduced by
30per cent compared with 2010, undermining the Programme to Combat
Sexual Violence, and recommends that the public resources made available to fund projects benefiting children and young persons should be
proportionate to the countrys economic growth. The National
Association of Centres for the Defence of Childrens Rightsexpresses
similar concerns and adds that the north of the countryhas suffered the
most from violence against children. js5 asserts that the Growth
Acceleration Programme needs a proper yardstick for assessment and
should be subject to social oversight.199
(c)
South Africa
South Africa, in its second upr report, stated that the South African Cons
titutional framework on the respect for, promotion, protection and f ulfilment
of all human rights and fundamental freedoms was provided for under Chapter 2
197 Ibid, paras. 10 and 11.
198 A/HRC/WG.6/13/BRA/3, para. 6.
199 Ibid, para. 10.

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(Bill of Rights) of the Constitution of the Republic of South Africa. The South
African Constitution was predicated on core values and principles of (a)human
dignity, the achievement of equality and the advancement of human rights
and freedoms, (b) non-racialism and non-sexism, (c) supremacy of the
Constitution and the rule of law, and (d) universal adult suffrage, a national
common voters roll, regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness. The
South African Constitution, in the view of the Government, has given international momentum to the evolution for universal recognition of the notion of
justiciability of economic, social and cultural rights.200
The Constitutional Court, the Government continued, has powers to declare
any legislation invalid to the extent that it is inconsistent with the constitution.
The South African judiciary continued to discharge its constitutional mandate
impartially and independently, including adjudicating over seminal cases
involving the promotion, protection and fulfilment of human rights. The contestations between the duty bearer and the rights holders before the courts have
affirmed the notion of progressive realisation, in a balanced manner, of all
human rights whose full enjoyment is subject to the availability of resources.201
The Government stated that the negative societal impact emanating from
the deep seated divisions occasioned by 350 years of discrimination, in particular racial discrimination and hatred are not easy to erase in 18 years. Cognisant
of this result, South Africans had adopted a constitution whose fundamental
values and principles represented a bridge between a divided past and a united
future sensitive to the need for social cohesion, national reconciliation and
identity, healing and nation building. The scourges of poverty and underdevelopment, the abuse of substances especially among the youth, the residual and
subtle forms of racism, xenophobia and homophobia are some of the factors
impeding the attainment of social cohesion.202
The Government had, over the past 18 years, worked consistently and tirelessly to ensure gradual improvement in addressing both procedural and substantive gaps in its quest for the promotion, protection and fulfilment of its
national and international human rights obligations. The attainment of social
cohesion was one of South Africas key priorities in its programmes for nation
building.203

200
201
202
203

A/HRC/WG.6/13/ZAF/1, para. 8.
Ibid, para. 19.
Ibid, para. 20.
Ibid, para. 21.

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In its submission, the South African Human Rights Commission stated that
despite previous upr recommendations, xenophobia remained a significant
challenge and that measures taken to address it had failed. The Commission
reported an increase in hate crimes perpetrated not only on grounds of race
but also on the basis of nationality and sexual orientation. There was an urgent
need to address hate crimes through legislation and adopt measures to raise
public awareness about these crimes.204
The Commission observed that the Draft Combating of Torture Bill had yet
to be placed before Parliament, after many years. It said that the traditional
cultural practice of ukuthwala, by which older men abduct young women for
purposes of marriage, was the subject of serious concern. The Commission
considered that this practice should be strongly condemned and called on the
Government to enact legislation to ensure that women, and particularly children, are protected from such a practice. It also urged the eradication of the
practice of killing witches. It further noted that the practice of polygamous
marriages had been subject to considerable debate.205
The South African Human Rights Commission highlighted the issue of
widespread poverty, the difficult position of women in rural areas and continuing challenges with service delivery in rural parts of the country. It noted current trends suggesting that maternal mortality was increasing. It recommended
that South Africa determine and address the causes of maternal mortality. It
recommended the adoption of additional measures to ensure that all citizens
have access to water and sanitation. It noted the need to urgently address the
impact of acid mine drainage on the right of access to water. The Commission
noted that poverty remained a significant barrier to education and that the
quality of education was uneven, largely to the detriment of poor children. It
highlighted the need for a comprehensive monitoring and evaluation system
to track progress and areas of concern. It urged the Government to ensure that
all children with disabilities enjoy access to education.206
X

Positions in the un Human Rights Council

The former Commission on Human Rights was replaced ten years ago by the
current Human Rights Council and three features of the Council are worth
singling out in the present context. First, out of the membership of 47 states,
204 A/HRC/WG.6/13/ZAF 3, para. 4
205 Ibid, para. 7.
206 Ibid, paras. 914.

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Africa and Asia, with 13 seats each, have an outright majority on the Council
and can hold sway on the major issues. Latin America as a group lost seats in
comparison with the former Commission. So did the European groups, West
and East. In short, Afro-Asia can call the shots on the Council. Second, while
the General Assembly in establishing the Council did call upon it to act for
the prevention of gross violations of human rights and to respond to human
rights emergencies, the Councils mandate is to promote universal respect for
the protection of human rights. This wording is significant, inasmuch as it
places the emphasis on promotion rather than on protection. Furthermore,
the General Assembly resolution establishing the Council expressly calls on it
to pursue strategies of dialogue and cooperation. This is very much up the
street of India, Brazil, and South Africa. It is probably inevitable that a political body such as the Council would pursue largely political approaches to the
discharge of its mandate. That is a foundation issue influencing ones perception of the Council as an organ of politics rather than of principle. Suffice it
to register the point when examining the approaches of India, Brazil, and
South Africa.
A
Interests, Vulnerabilities and Aspirations
India, Brazil and South Africa all have massive human rights problems in
the areas of both economic, social and cultural rights and civil and political rights. All three countries have large segments of their population living in dire poverty. In Indias case, caste discrimination is still rampant in
the country, notwithstanding legislation and policies designed to curtail
this practice. Brazil and South Africa also have massive problems of poverty and deprivation.
In all three countries there are allegations of widespread brutality by lawenforcement forces and allegations of torture and mistreatment abound in all
three countries. Brazil has the massive problems of street children and economic and social deprivations in the favelas. In South Africa, twenty years after
independence, large masses of its people plead for alleviation of their economic and social plight.
India and Brazil are technological innovators and their products are sought
world-wide. South Africa inherited a highly respected industrial base from the
former apartheid rulers and it also has a great deal to offer the rest of the world.
Whether it has been as inventive as India and Brazil in recent times is something for others to comment upon.
India has massive security challenges, with the dispute over Kashmir and
insurrections in the north-east. Besides, India has experienced repeated attacks
from international terrorists and is quite vigilant on this topic. India, during

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its membership of the un security council, chaired the counter-terrorism

committee. India will always have these security issues prominently in mind in
international fora, including in the Human Rights Council.
Brazil and South Africa do not have similar security problems and can afford
to be more relaxed on this front. Both Brazil and South Africa have the issue of
foreign migration and the treatment of migrants within their countries is
something to which they will be sensitive.
All three countries aspire to membership on the un Security Council and
this undoubtedly influences their policies and postures in fora such as the
Human Rights Council. All three countries are contested as potential members
of the Security Council from within their own regions and must seek to shore
up international support for their candidacies.
It is against the foregoing background that one would need to assess the
approaches of the three countries on the Human Rights Council.
B
Voluntary Pledges
All three countries, in seeking membership on the Human Rights Council,
have made voluntary pledges that are not particularly outstanding in comparison with those of other countries.
C
Initiatives on the Human Rights Council
India, Brazil and South Africa have all championed the right to development
and an Indian national was the independent expert of the council on this
topic.
Brazil has taken important initiatives on the Council. One that may be singled out is its resolution that members of the Council and un members as a
whole should undertake voluntary goals in the establishment and implementation of their human rights policies. Brazil has also sponsored resolutions on
hiv/aids and human rights, malaria, tuberculosis and access to medicines, and
on the incompatibility between racism and democracy. Brazil has also played
a leadership role on the impact of the global financial crisis on the universal
enjoyment of human rights.
South Africa has been active in promoting the idea that there is need for
new standards against racism and racial discrimination to supplement the
existing international convention on the elimination of racial discrimination. As mentioned above, South Africa took the lead in getting the Human
Rights Council to adopt its first-ever resolution on sexual orientation and
human rights.
In Indias case, as on the Security Council, it has provided leadership on the
issue of terrorism and human rights.

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D
Responding to Human Rights Emergencies
When it comes to responding to human rights emergencies all three countries
have been criticised by domestic and international human rights ngos. In
June, 2011, following Indias re-election to the human rights council, Human
Rights Watch wrote to its Prime Minister drawing attention to serious violations of human rights in India and appealing to him for India to provide leadership in the council when it came to responding to human rights emergencies.
Human Rights Watch stated:
(w)e hope very much that India will use its considerable global influence to address human rights problems in other countries and, as a member of the Human Rights Council, to assert leadership in the promotion
of human rights at the Council. in the past, India has often opposed
strong international action to address serious human rights problems in
specific countries. Indias growing regional and global influence should
be matched by an increasing commitment to protect human rights
abroad.
Similarly, on the occasion of President Lulas visit to the Human Rights Council
in 2009, Human Rights Watch issued a statement, Brazil: support victims, not
abusers. The communique stated:
When President Lula da Silva of Brazil addresses the un Human Rights
Council on June 15,2009, he should explain why Brazil is using its vote in
the Council to protect countries with appalling human rights records
Brazil seems more concerned about not offending abusers than it is
about implementing the Councils mandate to address human rights violationsBrazil has preferred to align itself with countries like China,
Cuba and Pakistan that question the value of country-specific action at
the Council. Brazil has turned its back on countries like Argentina,
Mexico, and Chile that have had a much more committed approach to
human rights in the un.
In similar vein, the Brazilian human rights organization, Connectas, issued a
statement in which it noted that Brazils track record on the Councilhas
been marked by ambiguities, particularly when it comes to cases of grave and
persistent human rights abuses in specific countries. the recent cases of North
Korea and Sri Lanka exemplify this paradox.
South Africa, at independence, took a principled stance on human rights
issues in United Nations fora such as the former un Commission on Human

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Rights. South African Ambassador Jacob Selebi chaired the Commission with
much respect and admiration. Subsequently, South Africa began to lead the
charge at the Commission that it was taking up too many African situations.
Principle counted less than expediency. Since then South African foreign policy has been seen as quite erratic.
On 6 November, 2012, the Financial Times carried a supplement on South
Africa and Africa that had an article, Continental policy pulled in different
directions, which stated: For a country that set out under Nelson Mandela
to place freedom, democracy and human rights at the centre of its foreign
policy, South Africa has championed some unlikely causes in recent times.
The article noted South Africas support for former Ivorian President Gbagbo.
When it came to Libya, South Africas position was even more confusing.

Conclusion and Assessment

What assessment can one provide, overall, of the approaches of the ibsa
countries to the handling of human rights issues?
1.
2.
3.

4.
5.
6.

7.

First, we must recognize that all three countries are genuine political
democracies, with respectable legal systems but with serious problems as
regards access to justice and the speed of justice.
Second, all three countries have serious problems at home when it comes
to the respect of civil and political rights as well as economic, social and
cultural rights.
Third, all three countries are in quest of economic development and
greater equality at home and attach importance to the realization of economic, social and cultural rights. Brazil is probably faring better than the
other two in this domain.
Fourth, it would be fair to say that all three countries lead by example in
participating in human rights treaties, in the special procedures, and in
the upr process.
Fifth, as regards the Human Rights Council, all three countries favour
approaches emphasising dialogue and cooperation, avoiding confrontation.
Sixth, all three countries are reluctant to speak out against Governments
committing gross violations of human rights and only do so when they
feel they have no other choice. India stoutly opposes any attempt to place
the issue of caste discrimination on the international agenda.
Seventh, one could say that Brazil provides some global leadership on
international human rights issues but it would be hard to say the same of

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India and South Africa. Brazil is ready to provide human rights technical
assistance and makes substantial voluntary contributions to ohchr.
India and South Africa make nominal contributions.
8. Eighth, India is in a strategic alliance with the usa and shares similar
views with it on the struggle against global terrorism. The threats against
India from terrorists makes this understandable. India shares the us and
Western emphasis on the importance of democratic governance.
9. Ninth, all three countries have led policy initiatives on particular issues in
the Human Rights Council. South Africa has led on the issue of racial
discrimination and discrimination against persons with different sexual
orientations. Brazil has led on the issue of countries making national
commitment to promote and protect human rights. India has been a
prominent supporter of resolutions on the issue of terrorism and human
rights. Indias support for the resolution of the Council at its twentieth
session on human rights issues in Sri Lanka is considered to have been
ground-breaking inasmuch as it allowed the Council to establish the
point that it would, if need be, adopt country resolutions where there are
concerns about gross violations of human rights.
10. National protection, in practice, is weak in all three countries.

chapter VII

International Cooperation: The Universal Periodic

Review

Introduction

The Universal Periodic Review Process has met with optimism as well as scepticism. Optimists think that it can help, over time, to steer every country in the
direction of better implementation of international human rights norms.
Skeptics argue that it is a procedure without teeth which is tolerated and managed by many governments with tarnished human rights records. Both points
of view have grains of truth in them.
Nevertheless, the upr process has significant strategic value in a world in
which the ground is shifting under the feet of the global human rights movement. Stated succinctly, the upr process validates the international human
rights norms promulgated by the United Nations since it was founded and
shields them from frontal attack by Governments that, given room, would like
to re-write the ground rules regarding the place of human rights in international relations. The upr process therefore is one of the most significant areas
of activities of the Human Rights Council.
The process bolsters universality, encourages the strengthening of national
protection systems, provides space for the engagement of civil society and
ngos, exposes violations, encourages cooperation, dialogue and facilitation,
can lead to improvements through the acceptance and implementation of the
recommendations of peers, can lead to the strengthening of national human
rights institutions, stimulates technical assistance, and can reinforce the international human rights treaty system as well as the system of human rights special procedures of the Human Rights Council. Before proceeding to discuss
each of these items in turn, let us look at the parameters of the process as they
have developed so far.
I The upr Parameters
According to the upr system, every Government is required to submit once
every four and a half years a twenty page report on its efforts to uphold human
rights. Three hours are devoted to the discussion of this report in a working
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group of the whole and one hour in plenary. Some governments under review
have sought to pack the speakers list with their supporters. There are tight
speaking limits, 5 minutes for governments and less for ngos which may
only participate in the plenary stage but not at the working group stage. At the
end of the discussion in the plenary an identical, bland decision is adopted by
the Council. Suggestions made by commentators may be accepted or rejected
by the Government under review.
The objectives of the upr, as stated in the governing instrument(s) are the
improvement of the human rights situation on the ground, fulfilment of the
States human rights obligations and commitments, and assessment of positive
developments and challenges faced by the States; enhancement of the States
capacity and technical assistance in consultation, and with the consent of, the
States concerned; sharing of best practices among states; support for cooperation in the promotion and protection of human rights and encouragement of
full cooperation and engagement with the Council, other human rights bodies
and ohchr.
The bases of the review are the un Charter, the Universal Declaration of
Human Rights, human rights instruments to which a State is party; voluntary
pledges and commitments made by states including those undertaken when
presenting their candidatures for election to the Human Rights Council; international human rights law; and international humanitarian law as applicable.
The principles of the upr envisage that it would be a cooperative mechanism based on objective and reliable information and on interactive dialogue;
ensure universal coverage and equal treatment of all states; be an intergovernmental process, United Nations Member-driven and action oriented; fully
involve the country under review; be conducted in an objective, transparent,
non-selective, constructive, non-confrontational and non-politicised manner.
It should not diminish the Councils capacity to respond to urgent human
rights situations, ensure a gender perspective and take into account the level of
development and specificities of countries. It should ensure participation of all
relevant stake holders including ngos and national human rights institutions.
The periodicity of the review for the first cycle was four years. For the second cycle it was increased to four and a half years. This has required the consideration of (about four dozen) states per year during three sessions of a
working group of the whole of two weeks each. All member states of the
Council are to be reviewed during their term of membership. A mix of member
and observer states of the council should be reviewed. The period between
review cycles should be reasonable so as to take into account the capacity of
states to prepare and the capacity of other stake-holders to respond to the
requests arising from the review.

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The documents on which the review is based are information prepared by

the State concerned; a compilation of up to ten pages prepared by ohchr of
information contained in the reports of treaty bodies, special procedures, and
other relevant official United Nations documents; additional credible and reliable information provided by other relevant stakeholders which ohchr summarizes in a document of up to ten pages.
The review is conducted in a Working Group of the whole composed of 47
member states of the Council chaired by the Councils President. Observer
States can and do participate in the review in large numbers, including in the
interactive dialogue. Other relevant stakeholders can attend the conduct of
the review in the working group. A group of three rapporteurs composed of
states representatives selected by drawing lots among the members of the
Council from different regional groups (a troika) is formed to facilitate each
review. The interactive dialogue between the country under review and the
Council takes place in the working group. The rapporteurs could collate issues
or questions to be transmitted to the state under review to facilitate its preparation and to focus the interactive dialogue.
The duration of the review before the working group is three hours for each
country in the working group. Additional time of up to one hour is allocated
for the consideration of the outcome by the Council plenary. Half an hour is
allocated for the adoption of the report of each country under review in the
working group. The final outcome is adopted by the plenary of the Council.
Before the adoption of the outcome by the plenary of the Council the state
concerned is offered the possibility to present replies to questions or issues that
were not sufficiently addressed during the interactive dialogue. The State concerned and the member states of the Council as well as observer states, are given
the opportunity to express their view on the outcome of the review before the
plenary takes action on it. Other relevant stake holders have the opportunity to
make general comments before the adoption of the outcome by the plenary.
The outcome of the upr, as a cooperative mechanism, should be implemented primarily by the State concerned and, as appropriate, by other relevant
stake holders. Subsequent, follow-up reviews, should focus, inter alia, of the
implementation of the preceding outcome.
Many countries send high-level delegations to the Council when their
reports are considered. During the process pertinent comments are made by
fellow Member States as well as by representatives of civil society. Useful recommendations are put forward and ngos make trenchant criticisms where
there is a case for it. The report of the upr Working Group records views
expressed during the Working Group stage. The reports of the plenary council
record these views and they are there for the future.

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As between the presenting State and their peer Member States there is a
mainly diplomatic process of dialogue. Recommendations are usually made
with a light touch and the State under review is free to accept or not to accept
those recommendations. Notwithstanding this, many structural issues are discussed and important institutional recommendations advanced. Should the
country establish a national human rights institution? Should the country
ratify particular conventions? Should the country (in the case of Monaco),
become a member of the International Labour Organization? Should the
country be more humane in its treatment of migrants? Should the country
have stronger guarantees against torture?
Numerous recommendations are accepted by states under review. In some
instances the acceptance rate reaches from seventy to 90 percent. The fact that
these commitments are made before other Member States of the un is of some
importance. Time will tell whether the implementation rate matches the
acceptance rate. Follow up will be crucial and this should not await the second
or subsequent rounds.
Notwithstanding these positive features of the upr process, it has one
Achilles heel: many member states with atrocious human rights records are
treated by their peers with kid gloves notwithstanding the plaintive cries of
ngos. There could be a rationale for what is taking place: it could be argued
that it is useful for all member States to go through a process of dialogue and
cooperation in the Council with a view to encouraging them to walk the human
rights road. But this must be matched by a strong procedure for dealing with
countries guilty of gross violations of human rights. Without such a violations
component, the upr process runs the risk of being a sham, and a human rights
body cannot survive if it is a sham.
II Universality
The international human rights regime developed since the establishment of the
United Nations is, in the second decade of the twenty-first century, undergoing
considerable strains from many quarters. Although this has so far not become a
frontal challenge, there are those who would be minded to call in question many
of the norms and practices being applied at the present time. Some Governments
have launched initiatives within the un General Assembly and elsewhere challenging the practices and interpretations of human rights treaty bodies. Human
rights special procedures have come under great pressure when they expose or
denounce gross violations. They are encouraged to engage in cooperation and
dialogue, instead of confrontation, when addressing human rights violations.

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In an important book published in 2014, Geoff Dyer presents The Contest of

the Century, a work about the new era of competition between China and the
usa. A key part of this contest is over the ground rules of international relations, particularly on issues such as human rights. Dyer writes:
If the twentieth century saw fierce ideological battles between fascism
and liberal democracy and between capitalism and communism, then
one of the central dividing lines in this century will be the issue of state
sovereignty. As China has become more powerful over the last decade,
Washington and Beijing have started to compete over the basic rules at
the heart of the international system, about the duties and responsibilities of what is sometimes called the international community. In part, it
is a battle for the soul of the United Nations, where many of these disputes are played out, but it is also a bigger discussion about the role of
human rights in international affairs. In one corner, the u.s. and Europe
urge greater intervention in states that are conducting massive abuses
against their citizens; in the other corner, China and Russia defend a
belief that absolute sovereign rights are the bedrock for a stable international system. Beijing would like to use its new influence to set the tone
for how international politics will be organized and to check what it sees
as Western moralising and meddling.207
Dyer added, in fairness, that China believes it is creating a more equitable
world, a democracy between nations in which each state is treated equally by
the rest of the international community: Whereas the West values human
rights and transparent governance, China places emphasis on stability. Beijing
argues that only when a poor country has a solid government, whose sovereignty is respected by other nations, can it then introduce the sorts of coherent, long-term policies needed to promote growth and reduce poverty.208
Mindful of the foregoing considerations, it is of some importance that every
Member State of the United Nations has participated in the upr process on
the normative basis laid down by the un General Assembly, namely the un
Charter, the Universal Declaration of Human Rights, human rights instruments to which a State is party; voluntary pledges and commitments made by
states including those undertaken when presenting their candidatures for
election to the Human Rights Council; international human rights law; and
207 G. Dyer, The Contest of the Century. The New Era of Competition with China and How
America can Win (New York. Knopf, 2014), pp. 201202.
208 Ibid, p. 204.

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international humanitarian law as applicable. Every national report submitted

to date has proceeded from the premise of the validity of the core normative
human rights framework developed by the United Nations and has sought to
underline the countrys attachment to this normative framework.209
A note of caution needs to be entered here. In a Press Release issued on
27June, 2013, the International Service for Human Rights reviewed the recent
achievements and challenges of the Human Rights Council and highlighted
problems with the promotion of traditional values. ishr saw as a challenge
the push by some States towards fundamentally regressive goals, one of
which, it said, was organised around the concept of so-called traditional values: The Council has adopted several resolutions on this subject, led by Russia,
the thrust of which has been to attempt to establish traditional values as a
legitimate way to interpret human rights. We see this as a serious and insidious
attempt to undermine the universal human rights framework, and it has particular repercussions for those who challenge societal norms, particularly
women and lgbt defenders, but also any group whose views or identities lie
outside mainstream society.210
III

The Strengthening of National Protection Systems

Governments participating in the process in good faith can, and do endeavour

to strengthen their national protection systems. At the 25th session of the
Council, in March, 2014, the representative of Botswana, speaking in the highlevel segment, informed the Council that in light of a recommendation made
in the upr process it had established a national human rights institution. The
Government of Ireland noted that it had distributed an interim report on the
recommendations made during its previous Universal Periodic Review, many
of which related to prison conditions. Ireland, it said, was taking a number of
actions to improve conditions and avoid prison crowding and the imprisonment of children. A referendum to amend the constitution to include the
rights of children had passed and Ireland hoped that this change would soon
be effected, providing additional protection. A new state agency dedicated to
children and the family represented a response to protection failings and service provision.
209 Interview with ohchr upr official Luca Lupoli, Geneva, 25 March, 2014.
210 International Service on Human Rights, The Human Rights Council: Recent Achievements,
Challenges, and a Look Ahead, 27 June 2013. http://www.ishr/human rights council-recent
achievements challenges-and-look-ahead, accessed 07/12/2013, pp. 23.

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The Irish Human Rights Commission, however, told the Council that insufficient progress was being made by Ireland on the establishment of the new
human rights and equality commission. The Constitution perpetuated stereotypes against women. There had been no progress on a consolidated legislative
framework on migration and asylum issues. Steps had not been taken on considering Travellers as a minority. There were no proposals on a national action
plan for human rights, on human rights education and training or on racism.
Poor hygiene facilities and crowding continued to be features of prisons in
Ireland.
The Australian Human Rights Commission informed the Council about
developments and achievements in a number of areas, including the National
Action Plan on Human Rights, commencement of the National Disability Insur
ance Scheme and appointment of the first National Childrens Commissioner.
One of Australias biggest human rights challenges was the ongoing mandatory
immigration detention and transfer of asylum seekers, including unaccompanied children, to third countries for processing.
Romania addressed the Council on how parliaments could contribute to the
promotion and protection of human rights and briefed the Council on a seminar it had held on translating international human rights commitments into
national human rights realities, including the role of parliaments in the upr
process.
The above instances show that the upr process has the potential of influencing governments acting in good faith to take action to strengthen national
protection systems. However, not all governments necessarily act in good faith,
as we shall see next.
IV

The Engagement of Civil Society and ngos

ngos and civil society do play an important part in the upr process but they
are also experiencing serious problems. ngos submit to ohchr information
on the facts on the ground in countries being reviewed and this information is
summarised and placed before the Council. ngos are able to make representations to individual members of the Council even if they are not allowed to
participate formally in the working group stage of the upr process. At the plenary stage ngos are given, all together, twenty minutes to make submissions to
the Council and they are the ones who carry the load in informing the Council
about gross violations of human rights, as we shall see in the next section.
However, ngos and their representatives experience severe problems in
many countries and this is undoubtedly a barometer of the lack of good faith

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on the part of many governments participating in the upr process. At the 25th
session of the Council, during the general debate on the upr process, Uruguay,
speaking on behalf of a Group of 58 Countries, said that having witnessed the
very constructive participation of civil society and ngos in the upr process,
the mechanism had been enriched by their contributions. However, the Group
of Countries expressed deep concern for those cases in which civil society had
been threatened in various ways. Everyone had the right to communicate with
and access the United Nations. All States should refrain from, prevent and
prosecute any act of intimidation or reprisal against anyone who cooperated
with the United Nations, or their families.
At the same session, the International Service for Human Rights had made
representations to the Council about an ngo representative from China en route
to the Council to participate in the Councils consideration of Chinas report
who had been taken off the plane and imprisoned where she had died some six
months later. The Czech Republic told the Council that unfortunately the openness of the upr process vis a vis civil society stakeholders was under attack, and
that there had been highly disturbing reports of persecution, harassment and
criminalization of people involved in it. The Czech Republic was appalled by the
harassment, arrest and recent death in jail of Ms Cao Shunli in China and called
for a prompt and independent investigation into her death. China firmly rejected
any attempt to use the upr process to achieve politicised objectives. Such politicization, it said, ran contrary to the principles of the upr process and was an
affront to the objectivity and transparency of the upr mechanism.
The facts here speak for themselves. The contrast between diplomacy and
reality on the ground is also attested to by the exposure of gross violations, in
which ngos play the leading role, as we shall see next.
V

Exposure of Violations

Peer governments participating in the upr process do not, for the most part,
draw attention to gross violations inside the country being reviewed, but some
do. Those wishing to do so can draw upon the findings and recommendations
of human rights special procedures. Even though the time and space allocated
to ngos to participate in the process is limited, they invariably, in the plenary
stage, draw attention to violations that have taken place inside the country. To
this extent, therefore, the process provides some room for the exposure of
gross violations of human rights.
The report of the Human Rights Council on its 24th session records Human
Rights Watch expressing deep disappointment that the Government of

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Turkmenistan had rejected many of the recommendations that cut to the core
of its repressive policies and that it continued to deny the existence of widelyrecognized problems, including the longstanding use of imprisonment as a tool
for political retaliation. Because human rights defenders could not work openly,
and the lack of external scrutiny, it was impossible to estimate the number of
political prisoners. Human Rights Watch regretted the rejection of recommendations which would have had a real impact on freedom of expression, including protection for journalists and media workers, and of the recommendations
to decriminalize sexual relations between consenting adults of the same sex. It
called for an end to the blocking of websites offering a plurality of views and the
creation of a country specific mechanism by the Human Rights Council.211
Amnesty International, for its part, welcomed the acceptance of recommendation to guarantee freedom of expression, association and peaceful
assembly and improvements in national legislation, but was concerned that
there had been no genuine attempt to guarantee these rights in practice.
Journalists, human rights defenders and other activist continued to be subjected to harassment, arbitrary detention, torture and other ill-treatment, and
imprisonment after unfair trials. Turkmenistan, it added, had also failed to
reform the registration process for ngos and not allowed them to work freely.
It was deeply disappointed that recommendations to provide information on
the whereabouts of prisoners had been rejected and that there were relatives
who had had no news of their relatives for 10 years. Amnesty International
welcomed the acceptance of the recommendations relating to torture, but
noted that impunity for perpetrators of torture prevailed.212
VI

Cooperation, Dialogue and Facilitation

The strength of the upr process is said to be cooperation, dialogue and facilitation. There is some measure of this, but the process has its limitations. During the
negotiations leading to the establishment of the upr process, Morocco had moderated the deliberations. During the 25th session of the Council, in the general
debate on the upr process, Morocco made a statement on behalf of a Group of
States in which it recalled that the upr process should not be overly burdensome
and should be conducted in a constructive atmosphere. The Group of States proposed to uphold the following measures to improve the process: to exercise
restraint in the number of recommendations in order to bring recommendations
to a more manageable level; to offer high quality recommendation, ensuring they
211 A/HRC/24/2, para. 312.
212 Ibid, para. 313.

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were practical, forward looking, and implementable; and to provide follow-up

reports. In similar vein, the ngo upr-Info, in a joint statement on behalf of some
ngos, said that, while there was universality of the upr, there was now needed a
qualitative leap regarding the precision of recommendations. There was concern
that without a specific action contained in a recommendation, it was hard for a
State under review to understand what was required from it.
The varying perspectives on the upr process were reflected in the debate in the
statements of different delegations. Sudan cautioned that exploiting the Review
and using it as a tribunal for politicization and for achieving different goals could
harm its reputation and credibility. Sudan warned against the creation of legal
requirements, when countries did not accept this approach, as this could damage
the enthusiasm of countries to act efficiently and implement recommendations.
Yemen, speaking on behalf of the Arab Group, underlined the importance of preserving the mechanism and ensuring its effectiveness as a space for dialogue and
constructive interaction, which required impartiality and avoidance of politicization or instrumentalisation for purposes other than human rights.
However, the United States said that the review process should ensure the
participation of all relevant stakeholders, and the participation of civil society
was essential to provide an accurate picture, data and plural perspectives.
ngos often spoke for those who lacked a voice. All participants should be able
to participate openly and without fear of retribution or reprisals. No individuals should feel threatened for participating, and States must respect the rights
of those contributing to the Council.
Greece, speaking for the European Union, said that meaningful participation had to be followed by action on the ground. In similar vein, Amnesty
International said that follow-up and implementation were essential if the
upr process was to live up to its potential, and welcomed the presentation of
mid-term reviews in this regard. The involvement of the international community and recommending States should not end after an examination in
Geneva. National human rights institutions should assist Governments to live
up to their commitments and to facilitate the involvement and contributions
from civil society.
The debate, once more, provides a barometer of what the upr is in reality.
VII

The Acceptance and Implementation of the Recommendations

of Peers

In varying degrees, every government that participates is the upr process

accepts some recommendations of its peers. Some of these recommendations
might be structural or deal with core issues; others might be more cosmetic.

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Ina resolution that it adopted without a vote at its 24th session, dealing with
indigenous peoples, the Human Rights Council reaffirmed that the universal
periodic review, together with the United Nations treaty bodies, are important
mechanisms for the promotion and protection of human rights and, in that
regard, encourages effective follow-up to accepted universal periodic review
recommendationsas well as serious consideration to follow up on treaty
body recommendations213
VIII

Technical Assistance and Follow-up by un Country Teams

The upr process contributes to the provision of technical assistance to

Governments seeking it. In Vietnam, for example, undp, at its request, has
been supporting it with projects to strengthen national legislation and to reinforce the prohibition of torture.214 According to a knowledgeable ohchr official, one of the significant developments as a result of the upr process has
been the interest shown in it by un Country Teams in formulating their projects of cooperation inside countries. Country teams are paying particular
attention to the upr discussion of the countries they are stationed in and have
been using recommendations and acceptances by Governments in formulating cooperative programmes designed to strengthen national laws and national
protection systems and to integrate human rights in the development
process.215
IX

Reinforcing the International Human Rights Treaty System

The upr process has the potential of reinforcing the international human
rights treaty system. In the first place ohchr provides the Human Rights
Council with a succinct report containing the principal recommendations of
human rights treaty bodies on each State. This recapitulatory report places
before the world what the human rights treaty bodies have found regarding a
particular state and allows other Governments and ngos, as well a national
human rights institutions, to remind a State Party about recommendations
that it has not yet implemented. In the second place, human rights treaty bodies in turn can consider and take account of the deliberations of the Human
213 A/HRC/24/2, resolution 24/10, para. 13.
214 Interview with ohchr official Eric Tistounet, Geneva, 2 April 2014.
215 Interview with ohchr official Craig Mokhiber, Geneva, 9 April, 2014.

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Rights Council when they come next to consider reports from the Government
in question. In the third place, ohchr and other entities in a position to do so
could offer advice and technical assistance on national follow-up to the recommendations of human rights treaty bodies.
The upr process makes other modest contributions to the system of international human rights treaties. Besides the contributions just mentioned, the process can and does serve as an incentive for Governments to ratify treaties that
they have not yet accepted. The process can and does act as a stimulus for States
Parties with outstanding reports under particular human rights treaties to submit their outstanding report(s) before appearing before the Human Rights
Council. Comments during the consideration of national reports under the upr
process can lead to the withdrawal of reservations made under treaties. The upr
process can strengthen the hands of national human rights institutions and civil
society in their efforts for the national implementation of human rights treaties.
These are admittedly modest contributions and we must await further experience with the upr process to see what the long-term impact will be.
X

Reinforcing Human Rights Special Procedures of the Human Rights

Council

The upr process also has the potential of reinforcing the role of the human
rights special procedures. In the first place, as for human rights treaty bodies,
ohchr provides the Human Rights Council with a succinct report containing
the principal recommendations of human rights special procedures on each
State. This recapitulatory report places before the world what the special procedures have found regarding a particular state and allows other Governments
and ngos, as well a national human rights institutions, to remind a State Party
about recommendations that it has not yet implemented. In the second place,
human rights special procedures in turn consider and take account of the deliberations of the Human Rights Council when they come next to consider reports
from the Government in question. In the third place, ohchr and other entities
in a position to do so could offer advice and technical assistance on national
follow-up to the recommendations of human rights special procedures.
Conclusion
The upr process does add some value to the un human rights programme.
Every un Member State is required to prepare a report on its efforts to promote

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and protect human rights. Alongside this report are two documents of some
importance: a summary of the findings and recommendations of un treaty
bodies and un special procedures and another summary of the views of civil
society. Taken together, these three documents provide a useful snapshot of
the situation of human rights inside the country. Many countries put a positive
spin on their reports but this is balanced by the other two documents. Taken
together, these documents collectively amount to a world report on human
rights. This is a useful spin-off of the upr process.

chapter VIII

International Legislation

Introduction

In a rapidly evolving international society the drafting of new norms to meet

emerging problems and challenges must be counted among the core functions of the Human Rights Council. The Council has indeed continued the
process of drafting and promulgating new human rights standards but has so
far demonstrated little awareness of the need to develop a long-range policy
in this area. In this chapter we look briefly at the drafting record of the Council
thus far and then proceed to discuss some policy issues that the Human
Rights Council would need to take into account as it develops its future legislative role.
I

The Drafting Role of the Human Rights Council in its First Decade

The Human Right Council, like the Commission on Human Rights before it, is
a forum where Governments, ngos, the un Secretariat and others might initiate informal and formal discussion about the adoption of new instruments.
The initiation process has, since the establishment of the United Nations, been
done on a case by case basis, and this continues with the Council. One advantage of this approach is that it is pragmatic. A de-merit is that there is no vision
of the future, no planning document, and no systematic process for the preparation of studies or background papers before the initiation of the drafting process. Usually, a Government or an ngo comes up with a draft instrument and
then discussion proceeds on the basis of this draft.
It was understandable that the former Commission on Human Rights proceeded on a case by case basis. The founding conference of the United Nations
at San Francisco in 1945 had passed on to it the idea of the drafting of an
International Bill of Human Rights and the Commission gave a three part content to the International Bill: A universal declaration, one or more covenants
followed by other treaties, and measures of implementation. There was so
much ground to cover that the Commission had its work cut out for it for years.
In addition, its Sub-Commission, which did a series of global studies on human
rights issues, often concluded them with recommendations for new norms.
The Commission would then initiate the governmental drafting process that

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would eventually culminate in the adoption of instruments in the General

Assembly.
In the dispensation that came into force following the establishment of the
Council, it is still be possible for its Advisory Committee to conduct studies at
the request of the Council, or to scan the scene for normative insights and to
make recommendations to the Council. The Council has, however, decided
that the Advisory Committee can only take up issues at the express request of
the Council and therefore the search for vision, for a game plan, would need to
be initiated in the Council itself.
Since its establishment in 2006 the Human Rights Council has sent up to the
General Assembly for finalisation and adoption the following instruments that
now form part of the international code of human rights: the Convention on
disappearances; the Optional Protocol to the economic and social covenant;
the Optional Protocol to the convention on the rights of the child; and a declaration on human rights education. The Council has also adopted instruments
on the right to peace and the rights peasants. The Council has been deliberating the possible need for supplementary standards to combat racism and racial
discrimination.
An interesting contribution of the Council was its adoption of Guiding
Principles on extreme poverty and human rights. In its resolution 21/11, the
Council took note with appreciation of the report of its Special Rapporteur on
extreme poverty and human rights on the guiding principles on extremepoverty and human rights216 and adopted the guiding principles on extreme
poverty and human rights contained in that report as a useful tool for States in
the formulation and implementation of poverty reduction and eradication
policies. The Council transmitted the guiding principles to the General Assembly
for its consideration. The novelty of this precedent is that the d rafting work
was done mainly by the special rapporteur and that the inter-governmental
filtering process would be done in the General Assembly itself.
Four instruments adopted in a decade, and one under consideration, is a
respectable performance even if the convention on enforced disappearances
and the Optional Protocol to the covenant on economic, social and cultural
rights were already being drafted by the predecessor Commission. There has so
far not been any targeted reflection inside the Council on the policy dimensions of the legislative drafting process and, with a view to facilitating future
deliberations on this topic, we discuss next some issues related to the international human rights legislative process.
216 A/HRC/21/39.

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165

Characteristics of the Legislative Process in the Area of

Human Rights

The law-making process in the area of the international law of human rights
has special characteristics that set it apart from most other areas of international law. It shares with international law in general the idea of the international
rule of law and a quest for justice for humanity. But its focus is on individuals,
on groups, on people. And it bears the imprint of individuals, groups, and
peoples. Individuals like Professor Charles de Visscher sought to build the postwar international order on the foundations of human rights: the Fundamental
Rights of Man as the Basis for the Restoration of International Law.217 Individuals
like Professor Sir Hersch Lauterpacht formulated the visionof an International
Bill of Human Rights,218 a strategic presentation that still guides the international human rights movement. Individuals like Raphael Lemkin,219 who coined
the term and offence of genocide, and worked indefatigably for its adoption
by the un General Assembly. Groups like minorities and indigenous populations have helped in the development of norms for their protection. Peoples like
those of the former colonies and non-self-governing territories who fought for
realization of the right to self-determination and made this right the opening
article of the two international covenants on human rights.
This people-based, missionary characteristic of the international law of
human rights has influenced the law-making processes: an idea comes from
within the human rights movement, it is formulated as a possible draft declaration or convention, a draft is floated, there is lobbying for the relevant un body
to take up the proposal, and after this is done there are different contributors
to the drafting process: individuals, experts, organizations, governmental
experts or representatives, members of the un Secretariat, and then the deliberative bodies of the United Nations, culminating in the un General Assembly,
where governments are in charge but experience the lobbying of human rights
actors.220 Unlike, say, the International Law Commission, there is, for the most
217 Prof. De Visschers report may be found in the Report of the Institute for International
Law on its 1947, Lausanne session.
218 Subsequently published as his book, An International Bill of the Rights of Man, oup, (1945)
2014.
219 See the study by William Korey on Raphael Lemkin, An Epitaph for Ralph Lemkin, published by the Jacob Blaustein Institute for Human Rights. Available at http://ajcarchive
.org/AJC_DATA/Files/7A16.PDF.
220 This process has been described by international relations specialists as a constructivist
approach to norm formation in the international community. See Steve Ropp and Kathryn

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part, no mid-, or long-term, plan of action for law-making, and not a conscious
process of drafting in an expert body before the draft is taken up at the governmental level. The former Sub-Commission of the then Commission on Human
Rights (now the Human Rights Council) did do some expert studies and recommended drafts to the Commission, and if the current Human Rights Council
so chooses, its Advisory Committee might work out a draft, as it did recently
with a draft declaration of human rights education.221 The former Commission
on Human Rights, at the outset, in 1947, did adopt a plan for an International
Bill of Human Rights222 and did produce drafts of the Universal Declaration
and of the two Covenants. The un Secretariat contributed to this process. But
unlike, say, the un Commission on International Trade Law, it is largely a process of innovation and improvisation bearing the imprint of members of the
international human rights movement.223
Solid examples of initiative within the human rights movement are the
Declaration and then the Convention against Torture. Amnesty International
judged that the fight against torture would be helped if there were a un
Declaration against Torture. It lobbied for work on this to be undertaken within
the un Committee on Crime Prevention and Control and provided drafting suggestions. Based on the work within this Committee, the quinquennial un Crime
Congress then adopted the Declaration against Torture. Amnesty International
then followed this up by lobbying for a Convention against Torture. This work was
then taken up in another forum, the then Commission on Human Rights, and
based on the work within the Commission with drafting inputs from Amnesty
International the General Assembly subsequently adopted and opened for signature and ratification, or accession, the Convention against Torture. This pattern
has been repeated on numerous occasions, for example, more recently, as regards
the Convention against Enforced and Involuntary Disappearances.
It is an interesting question whether, on the foundations of the present international human rights normative order, it might be an idea for the un Human
Rights Council to consider periodic work-plans for new standard-setting backed
up by expert studies before the decision is made to commence a drafting
Sikkink, The Power of Human Rights: International Norms and Domestic Change.
(Cambridge: Cambridge University Press, 1999).
221 Based on the work of the Advisory Committee and the Human Rights Council, the
General Assembly subsequently adopted a Declaration on Human Rights Education.
222 See the Report of the Commission on its First Session in 1947.
223 For a discussion of the multilateral treaty-making process in the field of human rights, see
B.G. Ramcharan, The Fundamentals of International Human Rights Treaty Law (Martinus
Nijhoff, 2011).

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exercise.224 Reasons of planning and orderliness could support such an

approach. However we should never diminish a rather special feature of the
law-making process that is invaluable: namely that when the human rights
movement assesses that there is a problem and that the drafting of standards
could help in dealing with it, it should have the freedom to mount an initiative
for the drafting of new standards. Here again, the law-making process is, and
should remain, in the hands of members of the human rights movement.
With the foregoing observations in mind, we provide next a conspectus of
the drafting process in relation to both declarations and conventions; consider
the contributions of declarations and conventions to the codification and progressive development of international law; consider the passage of provisions
of declarations to international customary law; discuss the same in respect of
provisions of conventions; and offer some general reflections on the human
rights law-making process.
III

The Drafting Process for Declarations and Conventions

From the outset of the United Nations, flexible approaches have been followed
when it comes to the drafting of declarations and conventions. Drafts of declarations and treaties have been prepared in the former Commission on Human
Rights, at its request in its former Sub-Commission, in the Committee on Crime
Prevention and Control and the quinquennial Congresses on Crime Prevention
and Control, in the Commission on the Status of Women, and in the Third (Social
and Humanitarian) and Sixth (Legal) Committees of the un General Assembly.
In most instances the final adopting body has been the General Assembly, but in
some instances this has been done elsewhere, for example in the un Crime
Congress, in the case of the Declaration against Torture. There have been few, if
any, instances, of drafting conferences such as the un conferences on the law of
treaties, diplomatic relations, or the law of the sea. At one stage the Office of un
High Commissioner for Refugees did convene a world-wide conference on the
issue of the definition of asylum, but it did not come to agreement.
Some years ago the United Nations issued a publication on the multilateral
treaty-making process with an extensive chapter, written by this author, on the
multilateral treaty-making process in the field of human rights.225 That chapter
224 See B.G. Ramcharan, The Human Rights Council. (Routledge, 2011).
225 See the Review of the multilateral treaty-making process, (1985), Book 21 of un
Legislative Series. Forthcoming on the un Legislative Series website: http://legal.un.org/
legislativeseries/book22.html#.

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examined the drafting process of human rights-related treaties from the time
of the League of Nations until the mid-1980s and found great diversity in the
approaches and processes followed. The same finding would in all probability
still hold today, some twenty-five years later. One can therefore register the
principle of flexibility in the drafting of both declarations and conventions.
Going beyond this, it might be helpful to touch on some thematic issues related
to the drafting process.
A
Plans of Action for the Drafting of New Norms
When the United Nations International Law Commission began its work
shortly after the establishment of the United Nations, the un Secretariat commissioned an expert Survey of international law, prepared by Professor Sir
Hersch Lauterpacht, which did an extensive review of possible topics that
could be considered by the Commission for inclusion in its work programme.226
The Commission eventually adopted a long-range work plan that it more or
less adhered to. Subsequently, there has been at least one other expert
Secretariat survey and there have been periodic updatings of the Commissions
work-plans.
This approach has not been followed in the human rights field. When the
then Commission on Human Rights began its work, it did decide to work on
the preparation of an International Bill of Human Rights that would contain
what eventually became the Universal Declaration of Human Rights, the two
Covenants, and some measures of implementation. This vision guided the
Commission in its first decade. However, while working on the International
Bill, the Commission did work on other normative drafts and the process of
drafting of other declarations and conventions has continued ever since.
A certain measure of planning could be detected in the former SubCommission of the Commission. In the early days of United Nations human
rights work there were massive problems to be dealt with. The Sub-Commission,
at the request of the Commission, did a series of studies on issues of equality,
on the rights of minorities and indigenous populations and similar topics. The
Commission guided the work-plans of the Sub-Commission inasmuch as it
was the Commission which decided whether the Sub-Commission should
work on a topic. The Commission did, from time to time, request the SubCommission to update it on the status of its work and in particular on studies
under consideration. This was more a form of rationalization, but there were
some shades of planning in it. The Sub-Commissions successor, the Advisory
Committee of the Human Rights Council, takes up topics at the request of the
226 un doc. A/CN.4/1.

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Council. As far as the normative drafting process is concerned there has not, so
far, been a work plan in the Advisory Committee for the drafting of new norms.
Beyond the above there has not been a practice of normative work plans in
other human rights-related bodies. Nor, unlike in the International Labour
Organization, have there been instances of expert reports from the United
Nations secretariat reviewing, or discussing, the normative drafting processes
in the human rights area. Keeping in mind the flexibility that has so far characterized the drafting process, a case could be made for periodic studies from the
un Secretariat, or Expert Surveys, that might influence bodies like the Human
Rights Council in their choice of topics to work on in the future. There has
been no such study to date.
A particular issue that has arisen and that might be mentioned is the following: proposals for Protocols or supplementary treaties to existing treaties.
When the initiative arose for the drafting of what is now the Convention
against Torture, the Government of Sweden had the idea that it could be a
supplement to the International Covenant on Civil and Political Rights, supervised by the Human Rights Committee. This issue was studied within the then
Centre for Human Rights and questions arose whether a new treaty could add
monitoring responsibilities to an existing treaty organ. Eventually, the sponsors decided to go for a treaty on its own, with its own monitoring body, todays
Committee against Torture. More recently, there have been quite a few additional protocols to existing treaties such as the Convention on the Rights of the
Child, and the International Covenant on Economic, Social and Cultural
Rights. The initiatives for such protocols have come from within the human
rights movement and the drafting processes have been as for human rights
instruments generally. A case could be made that when an optional protocol or
supplementary convention is proposed it would be helpful for an expert study
to be made by the un Secretariat so that issues of compatibility might be taken
into account by the drafters. Related to this is the issue of the views of existing
treaty bodies. They do find a way, usually, of making any views they have on the
proposed protocols or supplementary instruments known. A case could be
made, however, for this to be formalized with a view to assuring the integrity
and coordination of related instruments.
In a recent instance, the drafting of supplementary standards to the Inter
national Convention on the Elimination of All Forms of Racial Discrimination
has been the subject of some differences of views. Some governments, and the
monitoring body, the cerd, have been in favour of the preparation of supplementary standards while some governments have differed. At the time of writing this issue is under active consideration in a working group of the Human
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B
Expert Studies
Some Expert studies have been done prior to the initiation of a drafting process in the former Sub-Commission of the former Commission on Human
Rights,227 in the former Commission itself,228 and in Committee on Crime
Prevention and Control. But for a great number of treaties there have been no
such expert studies prior to the commencement of the drafting process.
Human Rights ngos, which initiate many drafting exercises, do base themselves, often, on expert reports that they have drawn up. A good case in point
relates to what eventually became the Convention against Enforced and
Involuntary Disappearances. Human Rights ngos called for such an instrument for years and did a number of reports on the concept and the need for
standards.
Keeping in mind the relationship between protection strategies and drafting processes, and also the principle of flexibility mentioned earlier, one should
avoid generalizing on the need for expert studies before a normative drafting
process is initiated. Nevertheless, it could be useful to keep in mind the possible contribution of such studies when contemplating the drafting of new
instruments.
C
The Collection of Relevant Materials
In drafting global instruments it is important to keep in mind the circumstances and experiences of countries and societies the world over. When the
un Secretariat commenced work for the drafting of the Universal Declaration
of Human Rights it collected materials and provisions in the constitutions and
laws of some fifty countries. This helped it to prepare the Secretariats first
draft of a Declaration. Global Studies of the former Sub-Commission on topics
such as the rights of minorities and the rights of indigenous populations were
based on country monographs on numerous countries the world over. In more
recent practice, the collection of relevant materials from countries, international organizations and ngos has varied. Sometimes a draft is put forward,
the discussion begins in a body like the Human Rights Council, and then relevant materials or insights are injected in the discussion stage.
The relevance of the collection of materials from different countries might
vary from topic to topic, and one wants to retain the flexibility of members of
the human rights movement to propose the drafting of new instruments. One
could also say that during the discussion of drafts in different governmental
227 United Nations Action in the Field of Human Rights, u.n. Pub. ST/HR/2, Sales no. E. 74.
XIV2, at 183 (1973).
228 For example on the right to development, a prior study by the un Secretariat: E/CN.4/1334.

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bodies, especially the un General Assembly, insights from countries the world
over would be brought to bear on the drafts under consideration. But it is a
relevant issue to pose the question, at some stage of the drafting process,
whether a sufficient effort has been made to draw on experiences and insights
from countries the world over. Of course, when one is seeking to raise the level
of protection against torture, for example, the insights and experiences of
numerous countries might be a negative one.
D
The Role of the Secretariat
The role of the Secretariat is invariably a supportive one, substantively as well
as in the provision of services. The Secretariat provides a partner for consultations and for expert views. At times the role of the Secretariat might be mainly
a servicing one, as when a Working Group of the Third Committee of the
General Assembly drafted what became the Convention on the Rights of
Migrant Workers and their Families. In this instance the Mexican delegation
suggested the initiative, chaired a working group of the General Assembly on
the topic, provided a draft convention, and pressed for its adoption in many
instances over the objections of some delegations. This is one of the reasons
why this convention has not been widely ratified to date.
The International Code of Human Rights is now an extensive one, consisting of declarations, bodies of principle, treaties, and such instruments. Ideally,
there should be an entity watching over the integrity and coordination of the
diverse instruments. There is also the open issue of the possible systematization of international human rights law. This is an area where it would be natural to expect a contribution from the un Secretariat. So far there has been no
such contribution. This is something that might be kept in mind for the future.
E
The Role of the un Office of Legal Affairs
The United Nations Office of Legal Affairs has consistently provided, upon
request, legal opinions on issues arising during the drafting of human rights
instruments. In practice there has been a distinction between the substantive
human rights department and the Office of Legal Affairs. The substantive
department has a broader role to play. The role of ola is to provide detached
legal opinions on issues from the point of view of the content of existing international law.
Comments from Governments, International Organizations
and ngos
As indicated earlier, governments, international organizations and ngos
have opportunities of commenting on drafts during the various stages of the
F

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drafting process. In some instances they are provided opportunities for making
such comments in writing and their views are circulated formally. But this is
done on a case by case basis.
G
Stages in the Process of Governmental Deliberations
Governments are involved in the drafting process almost throughout the drafting process. Even when topics are being discussed in expert bodies like the
former Sub-Commission, or in the contemporary Advisory Committee of the
Human Rights Council, Governments have opportunities or avenues of making their views known. They control the deliberations in the Human Rights
Council. But because the Council, like the former Commission, has a membership that is much smaller than the un General Assembly, when a draft from the
Council reaches the Assembly it varies whether the passage is smooth or more
involved. That is because, in the case of the Human Rights Council, for example, the membership of the General Assembly is four times its membership
and drafts have to attract the agreement the wider membership. When the un
Declaration on Religious Freedom was being discussed, a draft reached the
General Assembly having worked its way through the then Sub-Commission
and the then Commission. But its passage through the General Assembly only
came about after protracted discussions and the good offices of the Chairperson
of the Third Committee.
H
Final Adoption
In the un General Assembly drafts are usually scrutinized in the Third (Social
and Humanitarian) Committee before they reach the plenary. In most
instances issues are worked out before they reach the plenary, where they are
formally adopted and, in the instances of treaties, open for signature and ratification or accession depending on the provision of the particular treaty in
question.
Sometimes there is fanfare at the time of the adoption of an instrument, as
when the Universal Declaration was adopted, or the Covenants. At others the
event goes by the general public largely unnoticed!
IV

The Contributions of Declarations and Conventions to the

Progressive Development and Codification of International Law

Human rights instruments, declarations, bodies of principle and conventions

represent, a major chapter of international law. The un Compilation of

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International Instruments in the Field of Human Rights229 brings this out

forcefully. Human rights instruments elaborated and adopted within the un
system, as well as in regional organizations cover practically every aspect of
the relationship between the individual and the State. And the process of discussing and elaborating new normative instruments is continuing.
It probably is the case that the bulk of these instruments represents the progressive development of the international law of human rights. As will be discussed in the following section, only selected parts these instruments have the
status of international customary law. It is probably the case that there has
been more progressive development, rather than codification, of the international law of human rights, unless one considers the various treaties to be codifications of the law in a general sense. The numerous instruments cover
different issues and to date there has been little effort at systematization or
consolidated codification. Having regard to political complexities it may not
be wise to attempt a comprehensive codification of the international law of
human rights because some may be tempted to try to renegotiate salient provisions of instruments such as the Universal Declaration. There would, however,
be a strong case for an academic systematization or Restatement of the
International Law of Human Rights.
V

The Passage of Provisions of Declarations and Conventions to

International Customary Law

The emergence of international customary law through international lawmaking processes has been the subject of long-standing jurisprudence of the
International Court of Justice, notably the North Sea Continental Shelf Cases of
1969. The principles enunciated by the court would be the same governing the
passage of provisions of declarations and conventions to international customary law.
In the North Sea Continental Shelf Cases, the International Court of Justice
concluded that the Geneva Convention on the law of the sea of 1958 did not
embody or crystallize any pre-existing or emergent rule of customary law,
according to which the delimitation of continental shelf areas between adjacent States must, unless the Parties otherwise agreed, be carried out on an
229 The late Professor Ian Brownlie considered that there was no such thing as international
human rights law as such. Rather, human rights law is part of international law. See, Ian
Brownlie, Principles of Public International Law Sixth Edition (Oxford: oup, 2003).

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equidistance special circumstances basis. While a rule was embodied in

Article 6 of the convention, it was as a purely conventional rule. The Court
then proceeded to consider whether it had since acquired a broader basis.
Denmark and the Netherlands had put forward an argument that even if
there was, at the date of the Geneva Convention no rule of customary international law in favour of the equidistance principle and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule had come into
being since the Convention, partly because of its own impact, partly on the
basis of subsequent State practice, and that this rule, being a rule of customary
international law binding on all States, including the Federal Republic of
Germany, should be declared applicable to the delimitation of the boundaries
between the Parties respective continental shelf areas in the North Sea.
The Court commented that in so far as the Danish and Dutch contention
was based on the view that Article 6 of the Convention had had the influence,
and had produced the effect, described, it clearly involved treating that Article
as a norm-creating provision which had constituted the foundation of, or had
generated a rule which, while only conventional or contractual in its origin,
had since passed into the general corpus of international law, and had been
accepted as such by the opinio juris, so as to have become binding even for
countries, such as Germany, which had never, and did not become parties to
the Convention. The Court declared:
There is no doubt that this process is a perfectly possible one and does
from time to time occur: it constitutes indeed one of the recognized
methods by which new rules of customary international law may be
formed. At the same time this result is not lightly to be regarded as having
been attained.230
This reasoning would undoubtedly be applicable equally in the area of the
international law of human rights. The further reasoning of the World Court
therefore holds particular significance to our subject matter.
The Court eventually found that the equidistance rule in the Convention
had not passed into international customary law. However, its reasoning provides guidance on the possible process of passage of a treaty rule into international customary law. In the first place, in order to prove the passage of a
normative provision (and by the same token a declaratory provision) into the
corpus of customary international law, it would in the first place be necessary
230 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands). icj Reports, 1969, paras. 6970.

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that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the
basis of a general rule of law. Secondly, even without the passage of any considerable period of time, a very widespread and representative participation in
the convention might suffice of itself, provided it included that of States whose
interests were specially affected.
The Court further clarified:
74. As regards the time element, the Court notes that it is over ten years
since the Convention was signed, but that it is even now less than five
since it came into force in June 1964,and that when the present proceedings were brought it was less than three years, while less than one had
elapsed at the time when the respective negotiations between the Federal
Republic and the other two Parties for a complete delimitation broke
down on the question of the application of the equidistance principle.
Although the passage of only a short period of time is not necessarily, or
of itself, a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, an
indispensable requirement would be that within the period in question,
short though it might be, State practice, including that of States whose
interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved.231
The Court examined the particular facts of the case and found that these tests
had not been met.
In the case of Nicaragua v. the usa which concerned Military and Paramilitary
Activities in and Against Nicaragua, the World Court considered the Nicaraguan
submission that, leaving aside the United Nations Charter in the particular circumstances of the case, the non-use of force was a principle of customary law
similar in content to the law of the un Charter.232 The Court held as follows:
186. It is not to be expected that in the practice of States the application
of the rules in question should have been perfect, in the sense that States
should have refrained, with complete consistency, from the use of force
or from intervention in each others internal affairs. The Court does not
231 Ibid, para. 74.
232 icj Report 1986, 14.

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consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In
order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with
such rules, and that instances of State conduct inconsistent with a given
rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule. If a State acts in a way prima
facie incompatible with a recognized rule, but defends its conduct by
appealing to exceptions or justifications contained within the rule itself,
then whether or not the States conduct is in fact justifiable on that basis,
the significance of that attitude is to confirm rather than to weaken
the rule.233
There has been lively discussion in the literature about the process of passage
of provisions of declarations or conventions to customary law in the human
rights area.234 Three observations may be offered in this regard. In the first
place, the most authoritative body from which guidance may be taken is the
International Court of Justice. As seen in the two cases discussed above, the
Court has affirmed that passage from declarations or conventions to customary law is perfectly possible and that it is a matter to be determined on a case
by case basis.
In the second place, the Court has on occasions expressly held that a norm,
e.g. in the Universal Declaration of Human Rights has concretized into a norm
of customary law. In the case concerning United States Diplomatic and
Consular Staff in Tehran, the Court stated the following:
Wrongfully to deprive human beings of their freedom and to subject
them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United
Nations, as well as with the fundamental principles enumerated in the
Universal Declaration of Human Rights.235
In the third place, we would offer the standard that if authoritative organs such
as human rights treaty bodies express a view on the customary law status of a
particular norm or set of norms and if there is widespread acquiescence in the
233 Ibid, para. 186.
234 See, e.g. the Georgia Journal of International and Comparative Law, vol. 25, 19951996. The
introductory article by the late Prof. Richard Lillich is particularly illuminating.
235 icj Reports, 1980, p. 42.

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international community on this, then this would be fairly convincing evidence of the existence of the customary rule or rules in question. We would go
further and assert that if one or a few states indicate a contrary understanding
then the presumption should still stand in favour of the interpretation of the
authoritative human rights treaty organ. This is because the entire history of
the international law of human rights since the establishment of the United
Nations has been one of dynamic advances in the articulation of norms and in
the confirmation by authoritative human rights treaty organs of the binding
status of a particular norm or norms. This is as it should be. Human rights
norms are distilled from the experiences and views of states world-wide and
this distillation of norms must be supported and defended. Otherwise one
would be left with the narrow-minded views of conservative or reactionary
governments. If there is clear evidence of the objection of a large-enough
group of States then one should not lightly conclude that a norm of customary
law exists. But if there is widespread acquiescence in the understanding of the
law as stated by an authoritative human rights treaty body then the dissent of
one or a few states should not be allowed to stand in the way of the concretisation of a customary norm as representing the higher view of the international
community as a whole.
Let us take the case of the un Human Rights Committee for example. In its
General Comment No. 24 of 1994 on reservations to the International Covenant
on Civil and Political Rights (1966), the Committee affirmed that states parties
to the Covenant may not make reservations to provisions in it that represent
international customary law:
a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to
arbitrarily deprive persons of their lives, to arbitrarily arrest and detain
persons, to deny freedom of thought, conscience or religion, to presume
a person guilty unless he proves his innocence, to execute pregnant
women or children, to permit the advocacy of national, racial or religious
hatred, to deny to persons of marriageable age the right to marry, or to
deny to minorities the right to enjoy their own culture, profess, profess
their own religion, or use their own language.236
The Legal Adviser of the us Department of State wrote to Chairman of the
Human Rights Committee on 28 March, 1995 that the Committee had asserted
236 Human Rights Committee, General Comment No. 24 (52), un doc. CCPR/C/21/Rev.1/
Add.6 (1994), p. 3.

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in conclusive fashion that a number of propositions are customary international law which, to speak plainly, are not. He thought that such a cavalier
approach to international law (raised) serious concerns about the methodology of the Committee as well as its authority.237
Who is to say that simply because the Legal Adviser of the us State
Department took this view in March 1995 this should counter the views of the
Human Rights Committee world-wide. Perhaps a subsequent us Administration
or a later Legal Adviser would take a different view. Perhaps the normative
consensus among the American people at large has evolved. We think that in
instances such as these one should accord persuasive value to the views of the
Human Rights Committee and that there should be a rebuttable presumption
on the customary law nature of the norms in question. If the issue were to
arrive before the International Court of Justice, for example, it would be open
to a country like the usa to assert its dissent and to convince the Court that
norms of international customary law had not concretized. As the icj stated in
the Nicaragua case, the Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous
conformity with the rule. In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of States should, in general, be
consistent with such rules, and that instances of State conduct inconsistent
with a given rule should generally have been treated as breaches of that rule,
not as indications of the recognition of a new rule. If a State acts in a way prima
facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether
or not the States conduct is in fact justifiable on that basis, the significance of
that attitude is to confirm rather than to weaken the rule.238
VI

Reflections on Possible Improvements to the Human Rights

Law-Making Process: Moving to Prevention

Keeping in mind the foregoing discussion about the law-making process in the
field of human rights, it would be appropriate to raise for reflection the issue
whether improvements could be made in the process. For a start, we think that
it is important to keep open and flexible the initiative to propose new standards. This is because one of the key ways in which the international human
237 Cited by Richard Lillich in 25 Georgia Journal of International and Comparative Law, 1995
96, p. 20, fn. 101.
238 Supra.

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rights movement can respond to emerging human rights problems is to examine the adequacy of standards and to propose new standards as a response to
new problems.
In the second place, might it be useful to have a systematic, thematic compilation of the existing standards? We think that this could be useful but that it
should be done, to begin with, in the academic and research community.
Agood example is the American Restatement of the Foreign Relations Law of
the usa. An objective research institute from an appropriate country could do
this. The Asser Institute in The Netherlands comes to mind. They have the
track record and the expertise and, with The Hague emerging as the Justice
capital of the world, it would fit well. Perhaps the newly-established Hague
Institute for Global Justice could sponsor such a systematization.
Third, it could be useful to have an academic compilation of core norms of
international customary law containing pre-existing international customary
law and identifying norms that might have passed from declarations or treaties
to international customary law. By the same token, fourth, an academic compilation of general principles of international human rights law would be
helpful.
Fifth, a periodic survey of the International Law of Human Rights, similar to
the periodic surveys done for the International Law Commission could be
helpful to the governmental bodies such as the Human Rights Council. Sixth, it
would be helpful for the un Secretariat to publish Digests of the jurisprudence
of un human rights bodies similar to the ilos Digest of Decisions on Freedom
of Association.239
Seventh, the un Secretariat could also initiate a Repertory of the Practice of
the Human Rights Council so as to facilitate the identification of the emergence of norms of international customary law, if any, in the practice of that
body. Eighth, the human rights treaty bodies functioning under the principal
human rights treaties could be encouraged to comment on the passage of provisions of their treaties into international customary law.
The foregoing reflections may be said to apply to the law-making process
seen in classical perspectives. However, we think that at the advent of the
twenty-first century one cannot leave the matter there and that international
lawyers in general, and in this instance human rights lawyers in particular,
must add a new category when discussing the law-making process: the category of prevention. In a generic sense, the whole of international law, it could
be argued, already has a preventive rationale. By inviting Governments to the
239 See ilo, Freedom of Association. Digest of Decisions and principles of the Freedom of
Association Committee of the Governing Body of the ilo. Fifth (revised) Edition. (2006).

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rule of law international law seeks to head off conflicts and problems in the
relations among States. The international law of human rights has a similar
rationale when it comes to preventing human rights violations and some treaties, such as the Convention against Torture and the Optional Protocol to the
Convention seek to prevent the commission of this international crime. But
this will not suffice in the future.
In a chapter in the Oxford History of the Twentieth Century, titled Towards
the Twenty-First Century, Prof. Ralph Dahrendorf offered three moral principles for the twenty-first century: First, that only open societies can be good
societies. Second, we must acknowledge a duty to future generations and that
the responsibility principle was necessary in the risk society in which we are
living. Third, we are living in a horizon of uncertainty and do not know for sure
what is right and good and just, but we must try to find out and we must never
give up trying to enhance the quality of life.240
Former un High Commissioner for Human Rights, Mary Robinson, devoted
her 2000 annual report to the then Commission on Human Rights to a discussion of preventive human rights strategies. The report, drafted by specialists in
ohchr and coordinated by this author as the then Deputy High Commissioner,
contained chapters offering strategies for the prevention of the crime of genocide, prevention of racism and racial discrimination, the right to development
and the prevention of human rights violations, prevention of gross violations
of civil and political rights, fundamental standards of humanity, prevention of
slavery, prevention of trafficking in women and children, prevention of violations through human rights education, and combating impunity as a preventive approach. The report concluded:
The prevention of gross violations of human rights and of conflicts is a
defining issue of our time. As we begin the new millennium, it must be a
matter of the utmost priority that we seek, at the national, regional and
international levels, to develop societies fashioned in the image of international norms of human rights.241
The law-making process of the future must endeavour to deal with the grievous threats facing humanity, some of which we discuss in the next chapter.

240 M. Howard, et al., (Eds), Oxford History of the Twentieth Century (Oxford, 1998, 2002),
pp. 342343.
241 E/CN.4/2000/12, para. 92. The report is reproduced in B.G. Ramcharan, A un High
Commissioner in Defence of Human Rights. Leiden, Martinus Nijhoff, 2004, Appendix iii.

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Conclusion
This chapter has shown that the Human Rights Council continues to draft new
human rights norms for consideration by the un General Assembly. In its first
decade the Council has done four instruments adopted by the General
Assembly and a fifth that is under consideration by it. The Council has not yet
had occasion to debate the legislative drafting process as such, and would be
well advised to do so in the near future. To facilitate such a debate, we have set
out some considerations that it might keep in mind, and we have advocated
that the Council, in its legislative work in the future, pursue a preventive strategy in the drafting of new instruments to deal with the grievous threats facing
humankind.

chapter IX

Prevention

Introduction

The resolution establishing the Human Rights Council gives it an explicit mandate to act for the prevention of violations of human rights. The Council has so
far adopted a few general and some other thematic resolutions touching on
selected aspects of prevention but it has not yet been able to develop an operational strategy of prevention. At its request, the Secretariat organized a workshop on prevention242 and, at its twenty-fifth session the Council had a panel
discussion on the topic. This chapter will first set out the policy elements so far
put down by the Council and then offer some ideas that might help develop
the preventive role of the Council.
I

Preventive Policies of the Human Rights Council to Date

Since its establishment the Council has begun the process of putting down apolicy on prevention. It has adopted three general resolution and a few resolutions
touching on some aspects of prevention. The Council has signalled theimportance of preventive actions at the national level and reiterated theresponsibility
of each individual State to protect its population from genocide.243 It has stressed
the importance of combating impunity in order to prevent violations of international human rights law and international humanitarian law against civilians in
armed conflicts. It has drawn attention to the need for the prevention of maternal
mortality and morbidity.244 It has said that it is essential to place the protection of
human rights at the centre of measures taken to prevent and end trafficking in
persons, and to protect, assist and provide access to adequate redress to victims,
including the possibility of obtaining compensation from the perpetrators.245
242 A/HRC/18/24.
243 Resolution 7/25, adopted without a vote on 28 March, 2008.
244 See Council resolution 21/6: Preventable Maternal Mortality and Morbidity and Human
Rights. The Council requested all States to renew their political commitment to eliminate preventable maternal mortality and morbidity at the local, national, regional and
international levels.
245 More details on these decisions are given in Chapter viii below.

koninklijke brill nv, leiden, 2015|doi 10.1163/9789004289031_011

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In its resolution 21/4 on enforced or involuntary disappearances, the Council

urged States
(a) To prevent the occurrence of enforced disappearances, including by
guaranteeing that any person deprived of liberty is held solely in officially
recognized and supervised places of detention, guaranteeing access to all
places of detention by authorities and institutions whose competence in
this regard has been recognized by the concerned State, maintaining
official, accessible, up-to-date registers and/or records of detainees,
andensuring that detainees are brought before a competent authority
promptly after detention as provided for by article 10 of the Declaration
on the Protection of All Persons from Enforced Disappearance.
(b) To work to eradicate the culture of impunity for the perpetrators of
enforced disappearances and to elucidate cases of enforced disappearances as a crucial step in effective prevention.
(c) To prevent and investigate with special attention the enforced disappearance of persons belonging to vulnerable groups, especially children, and
the enforced disappearance of women, as they may become particularly
vulnerable to sexual violence and other forms of violence, and to bring
the perpetrators of those enforced disappearances to justice.
At its fourteenth session, in June, 2010, the Council adopted a resolution on
The role of prevention in ensuring human rights. Expressing concern about
continued gross violations of human rights around the world, the Council
acknowledged the importance of effective preventive measures as part of the
overall strategies for the promotion and protection of human rights. The
Council recognized that States have the primary responsibility for the promotion and protection of human rights, including prevention of human rights
violations, and that this responsibility involves all branches of the State. The
Council stressed that States should promote supportive and enabling environments for the prevention of human rights violations, including by: (a) ensuring
strong and independent national human rights institutions; (b) promoting
human rights education and training; (c) ensuring free and vibrant civil society
and media; (d) ratifying and fully implementing international human rights
instruments; (f) ensuring appropriate national frameworks, institutions and
mechanisms, consistent with the principles of good governance, democracy,
the rule of law and accountability; and (g) addressing factors that increase
vulnerability, including inequality, poverty and all forms of discrimination.
The Council welcomed the role of national human rights institutions in
contributing to the prevention of human rights violations; encouraged States

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to contribute to further strengthen the contribution of the Council and its

mechanisms to the prevention of violations of human rights; requested the
Office of the un High Commissioner for Human Rights to request, compile
and publish a report on the views of different stakeholders on the role of prevention in the promotion and protection of human rights; requested the Office
of the High Commissioner to convene a workshop on the role of prevention for
the promotion and protection of human rights; and decided to continue its
discussion of the role of prevention.
At its 18th and 24th sessions the Council adopted additional resolutions on
prevention with substantially the same content.246 In the rest of this chapter
we set out some considerations that the Council might take into consideration
in developing future preventive policies and strategies.
II

The Politics of Prevention

On 18 September, 2014, the Human Rights Council organized a panel discussion on the role of prevention in the promotion and protection of human
rights, with the aim of further developing the concept of prevention of human
rights violations. At its request, ohchr was in the process of preparing a
research report on prevention that would be issued later. One could see both
the possibilities and the politics of prevention during in the discussion.
On policies for prevention Panellists told the Council that it was urgent to
prevent human rights violations before they escalated into mass atrocities.
Emphasis was placed on the States primary responsibility to prevent violations and protect human rights. Prevention was primarily the responsibility of
the Government of the State and stress was laid on the responsibilities of
States to respond earlier. The creation of an enabling human rights framework
at the national level was highlighted, meaning the existence of legal provisions
which could be invoked in court.
Good governance and the rule of law were important for the prevention of
human rights violations. Human rights education was a key for prevention.
Accountability for human rights violations was crucial. Women and vulnerable
groups had to be included in policy making in order to make it more practical
and implementable
The need was stressed for both direct prevention, or mitigation, of violations through reducing risk factors to such violations, and indirect prevention
to avoid violations through prosecution, litigation and sanctions to hold those
246 Council resolutions 18/13 and 24/16.

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responsible accountable. There was an important role to be played in identifying and sharing best practices, particularly about things so engrained in societies that people themselves did not recognise what was happening. Part of this
awareness-raising was required not just between the Government, people, and
different institutions in the country, but was also required at the national,
regional and international levels.
Early warning signs of upcoming violence and genocide were mentioned,
such as exclusion, deficiency of good governance and the rule of law, hate
speech, denial or deprivation of citizenship, harmful actions of non-State
actors, and armed conflicts.
The Council was urged that prevention of violence against children was
morally compelling. Education, formal and informal, and the participation of
children were said to be crucial for the prevention of violence against children.
There was, the Council was told, a lack of human rights awareness in every sector of the education system, including in terms of teacher training, but also of
armed forces or even in the training of national intelligence services.
During the broader discussion involving Member States, speakers said
that the Council had a crucial role to play in strengthening national protection mechanisms and contributing to the prevention of human rights
violations. Delegations underscored the role of civil society and the importance of actions to combat impunity, implement the rule of law to prevent
violations and strengthen the role of national human rights institutions. It
was said that the International Criminal Court could play a preventive role
and might be in a position to intervene in situations of tangible threats of
atrocity crimes. Some speakers linked the responsibility to protect and the
responsibility to prevent and stressed that they did not undermine the
sovereignty of States.
The European Union said that the Council had a central role to play in
strengthening national protection mechanisms and contributing to the prevention of human rights violations, including through the Universal Periodic
Review and technical assistance. The European Union underlined the central
role played by civil society organizations for the prevention of violations. States
should strengthen the role and mandate of national human rights institutions.
Senegal, speaking on behalf of the Group of Francophone African states,
said that the adoption of preventive measures was an absolute necessity. The
promotion and protection of human rights was primarily the responsibility of
States. However, United Nations human rights mechanisms and bodies played
a crucial role in assisting States in preventing violations. Moreover, it stressed
the importance of actions to combat impunity and implement the rule of law
in order to prevent violations and to strengthen the role of national human

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rights institutions. Other delegations from Africa, Asia, and Europe spoke in
similar terms.
On the politics of prevention, it was notable that several delegations said
that the concept of prevention was not clear and needed to be defined in a better and consensual manner. The Russian Federation, speaking on behalf of the
Like-Minded Group (a group that generally takes a cautious and carefully calibrated position to the competence of the Council), said that the concept of
prevention was not clear and needed to be defined in a better and consensual
manner. There was a need to do more research to understand all aspects of
prevention and develop tools involving all stakeholders, in particular Member
States, which bore the primary responsibility to promote and protect human
rights. The development of those tools should avoid politicization and be
based on the principles of universality and non-selectivity.
Like the Russian Federation, Venezuela thought that the promotion and
protection of human rights required efforts beyond monitoring and public
denunciation. It was essential that there be international solidarity, along
with efforts for national capacity-building. The preventive approach should
comprise clearly established and defined criteria, adopted by consensus. The
Organization for Islamic Cooperation stated that it supported the importance
of defining a preventive approach in more explicit terms. However, universal
agreement should take into account suggestions and concerns of all Member
State. It asked what measures could be taken to assuage the concerns of States
regarding the need for universal acceptance of approaches to prevention.
Algeria considered that, faced with the increasing number of crises around the
world leading to human rights violations, it was necessary to understand better
various aspects of prevention and to provide practical tools to States.
Concern was expressed about the danger of prevention becoming a naming
and shaming exercise. To this it was replied that it was not a naming and shaming exercise, but a way of looking at root causes, risk factors and addressing
them in a responsible way, and bringing different actors together to find solutions. A certain openness was required. The politics surrounding future efforts
for prevention were thus placed squarely before the Council.247
From the above it may be seen that notwithstanding the policy resolutions
on prevention adopted by the Council, as related in the previous section, the
247 ohchr will prepare and submit to the Council a summary of the discussions. This
account is based on the information release, Human Rights Council holds panel discussion on the role of prevention in the promotion and protection of human rights,
18September 2014. Accessed on 24 October 2014, http://www.ohchr.org/EN/NewsEvents/
Pages/DisplayNews.aspx?NewsID=15060&LangID=E.

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road to prevention in the Council is still strewn with political pot-holes and
precarious twists and turns. With a view to possibly contributing to future
reflections in the Council on prevention we discuss below some elements that
might be taken into account.
III

The Need for Preventive Strategies

In a chapter in a recent book on future security strategy, Stephen Van Evera of

mit argued that the worlds major powers should organize themselves into a
grand alliance, or concert, along the lines of the 1815 Concert of Europe, to take
united action against Weapons of Mass Destruction (wmd) proliferation, wmd
terrorism, and threats to the global commons. He wrote:
If unchecked, climate change could wreak large injury to civilization. Vast
damage to global agriculture and to coastal regions could ensue. Scores or
hundreds of millions of people could be made homeless by rising ocean
waters and desertification of farmlands. The danger is shared by all humanity as every society will suffer, albeit to different degrees from the calamity.
Other common threats include the H5Nl avian flu virus, other emerging infectious diseases, and the appearance of antibiotic resistance
among known infectious diseases. These diseases pose a common
threat because they will ignore borders and threaten everyone. The danger they pose is growing with greater interaction between the human and
animal worlds and with irresponsible use of medicine, which is creating
antibiotic-resistant strains.248
The need for preventive strategies is being felt on broad fronts. At the outset of
the 2008 global financial crisis, un Secretary-General Ban Ki-Moon called
upon the international financial institutions to develop early-warning and
early response capabilities.249 In an article in the Financial Times on 17 October,
2008, at the height of the financial crisis, one of the leading economists of
our times argued that we need to guard against destructive creation. He
suggested:
248 M. Leffler and J.W. Legro, eds., To Lead the World: American Strategy After the Bush Doctrine
(New York: Oxford University Press, 2008), 16.
249 Xinhua News Agency, UN chief writes to G20 leaders on financial crisis, 26 March
2009.Availableathttp://www.china.org.cn/business/financial-crisis/2009-03/26/
content_17503450.htm.

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Weneed a truly independent commission of experts to look closely at

each financial innovation and work out its potential downside This
commission would be charged with trying to narrow the range of the
unexpected.250
Frank Biermann and Ingrid Boas, in a paper submitted to the 2008 annual conference of acuns called for advance thinking about a blueprint for governing
the future climate refugee (or migration) crisis and suggested that this be done
on the basis of the following principles:

The principle of planned relocation and resettlement.

The principle of resettlement instead of temporary asylum.
The principle of collective rights for local populations.
The principle of international assistance for domestic measures.
The principle of international burden-sharing.251

Ideally, an authoritative international source should periodically offer discussion papers on the human rights dimensions of these and similar problems,
giving due emphasis to preventive approaches that might be pursued in the
future. We are already in a quite different world and human rights thinking will
need to evolve to meet its needs.
IV

The Case for a Comprehensive Global Watch

Secretary-General Prez de Cullar in his Perspectives for the 1990s, advocated

the establishment and maintenance of a global watch over human security
encompassing disarmament and international law, development and international economic cooperation, social advancement, basic rights and fundamental freedoms, and human well being. The Secretary General argued for coherent
and integrated policies and preventive strategies in the economic and social
areas at the national, regional and international levels.

250 J. Bhagwati, We Need to Guard against Destructive Creation, Financial Times, 17 October,
2008, p.ll. See generally, on the international financial system, The Economist, October
1824, 2008, pp. 7578: A short history of modern finance.
251 Frank Biermann and Ingrid Boas, 2007. Preparing for a Warmer World. Towards a Global
Governance System to Protect Climate Refugees. Global Governance Working Paper No. 33,
Amsterdam et al.: The Global Governance Project. Available at www.glogov.org.

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He emphasized the role of human rights protection as a preventive strategy

and argued that respect for basic human rights and for the dignity and worth
of the human person as called for in the Charter was a fundamental element in
the vibrant and productive global society towards which United Nations efforts
must continue to be directed. The challenge of promoting respect for human
rights was global. The goal of United Nations bodies must be to translate the
wide commitment to human rights into an increasingly persuasive means to
eliminate abuses wherever they occurred.
He submitted further that there was much that could be foreseen in the
economic and social fields for which advance planning was increasingly essential. A crowded world of strained resources could not be managed on an ad hoc
basis. The United Nations must be able to meet emergencies that called for
collective effort, whether to contain violent political conflicts or to meet natural or man-made disasters. The United Nations should serve all Member States
as a reliable source of timely information across the range of human activities.
It must have the capacity to communicate effectively with its constituents and
with its associated agencies and organizations.
The Secretary General saw the Organization working on problems susceptible of multilateral alleviation and coordinating a comprehensive global
watch over issues of peace and security, protection of the environment, economic and social welfare, and human rights protection. His concept of a Global
Watch over human security is one that is even more needed if the world organization is to be able to respond to contemporary threats and challenges.
V

Agenda for Peace

In 1992, Secretary General Boutros Boutros Ghali issued his Agenda for Peace,
written at the request of the Security Council.252 An Agenda for Peace contained a range of ideas for the use of preventive diplomacy at the United
Nations. Among these were the following:
To ease tensions before they result in conflict.
If conflict breaks out, to act swiftly to contain it and resolve its underlying
causes.
Preventive diplomacy may be performed by the Secretary-General personally or though senior staff or specialized agencies and programmes, by the
252 See on this B.G. Ramcharan, Preventive Diplomacy at the un (Indiana University Press,
2008).

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Security Council or the General Assembly, and by regional organizations in

cooperation with the United Nations.
Preventive diplomacy requires measures to create confidence.
Preventive diplomacy needs early warning based on information gathering
and informal or formal fact-finding.
Preventive diplomacy may involve preventive deployment and in some situations, demilitarized zones.
VI

The Case for National Prevention Systems

In his final comprehensive report on the prevention of armed conflict,253

prepared at the request of the General Assembly, Secretary-General Kofi
Annan argued that prevention was a shared responsibility that did not
diminish the primary obligation of Member States to exercise their sovereign
duties to their citizens and neighbours. In the case of both intra- and interState armed conflict the key was to equip States and societies to manage
their own problems in ways most appropriate to them. He argued for internally driven initiatives for developing local and national capacities for
prevention, fostering home-grown, self-sustaining infrastructures for peace.
The aim, he explained, should be to develop the capacity in societies to
resolve disputes in internally acceptable ways, reaching a wide constellation
of actors in government and civil society. External support for such efforts
must be informed by an understanding of the countries and the societal
dynamics concerned.
He stressed the importance of democracy as a universal value. He felt that
countries prone to armed conflict merited special assistance with respect to
democratization. Democratic governance depended both on a legal framework that protected basic human rights and provided a system of checks and
balances and on functioning rule-of-law institutions. It was the absence of precisely these characteristics that often led people to feel they must resort to
violence to be heard. Individual Governments must find their own path to
democracy, but the United Nations and its partners offered a variety of important services, at the request of Member States. These included electoral assistance, constitutional assistance, human rights capacity-building, support for
good governance, anti-corruption initiatives and reforms in key sectors, including the security and judicial sectors.
253 un doc. A/60/891, 18 July, 2006.

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191

The High-Level Panel on New Threats and Challenges

At the beginning of December, 2004, a High-Level Panel on Threats, Challenges,

and Change reported to the then un Secretary-General with its assessment
and recommendations. The Panel stressed that all states must recommit themselves to the goals of eradicating poverty, achieving sustained economic growth
and promoting sustainable development.254 It endorsed the emerging norm
that there is a collective international responsibility to protect, exercisable by
the Security Council authorizing military intervention as a last resort, in the
event of genocide and other large-scale killing, ethnic cleansing or serious
violations of humanitarian law which sovereign Governments have proved
powerless or unwilling to prevent.255
The Panel recommended that the United Nations High Commissioner for
Human Rights should be called upon to prepare an annual report on the situation of human rights worldwide.256 It urged that all combatants must abide by
the Geneva Conventions. All Member States should sign, ratify and act on all
treaties relating to the protection of civilians, such as the Genocide Convention,
the Geneva Conventions, the Rome Statute of the International Criminal Court
and all refugee conventions.257
The Panel recommended that in considering whether to authorize or
endorse the use of military force, the Security Council should always address
whatever other considerations it may take into account at least five basic
criteria of legitimacy: Seriousness of threat; Proper purpose; Last Resort;
Proportional mean; and balance of consequences: Is there a reasonable chance
of the military action being successful in meeting the threat in question, with
the consequences of action not likely to be worse than the consequences of
inaction?
It called for the development of better instruments for global counter-
terrorism cooperation, all within a legal framework that is respectful of civil
liberties and human rights, including in the areas of law enforcement, intelligence-
sharing, where possible; denial and interdiction, when required; and financial
controls. It called upon the General Assembly to complete negotiations rapidly
on a comprehensive convention on terrorism.258

254
255
256
257
258

Recommendation 1.
Recommendation 55.
Recommendation 93.
Recommendation 66.
Recommendation 44.

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The Panel recommended that States begin to phase out environmentally

harmful subsidies, especially fossil fuel use and development.259 It urged
Member States to begin new negotiations to produce a new long-term strategy
for reducing global warming beyond the period covered by the Kyoto Protocol.
It recommended that the Security Council host a second special session on
hiv/aids as a threat to international peace and security, to explore the future
effects of hiv/aids on States and societies, generate research on the problem
and identify critical steps towards a long-term strategy for diminishing the
threat.260
The Panel recommended that Member States should expedite and conclude
negotiations on legally binding agreements on the marking and tracing, as well
as the brokering and transfer of small arms and light weapons.261 It recommended that the United Nations work with national authorities, international
financial institutions, civil society organizations and the private sector to
develop norms governing the management of natural resources for countries
emerging from, or at risk of, conflict.262
The Panel recommended that States Parties to the Biological and Toxin
Weapons Convention should negotiate a new bio-security protocol to classify
dangerous biological agents and establish binding international standards for
the export of such agents.263 It also recommended that the Conference on
Disarmament move without further delay to negotiate a verifiable fissile material cut-off treaty that, on a designated schedule, ends the production of highly
enriched uranium for non-weapons use, as well as on any serious concerns
they have which might fall short of an actual breach of the Treaty on the NonProliferation of Nuclear Weapons and the Chemical Weapons Convention.264
The Panel called for a comprehensive international convention on moneylaundering, bank secrecy and financial havens to be negotiated and endorsed
by the General Assembly.265 It urged that the United Nations establish a robust
capacity-building mechanism for rule of law assistance.266
The Panel urged the Security Council to be ready to use the authority it has
under the Rome Statute to refer cases of suspected war crimes and crimes against
259
260
261
262
263
264
265
266

Recommendation 10.
Recommendation 7.
Recommendation 15.
Recommendation 13.
Recommendation 34.
Recommendation 36.
Recommendation 47.
Recommendation 49.

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humanity to the International Criminal Court.267 It recommended that the

Security Council, in instances of verified, chronic violations, impose secondary
sanctions against those involved in sanctions-busting.268 The Secretary-General,
in consultation with the Security Council, should ensure that an appropriate
auditing mechanism is in place to oversee sanctions administration.
The Panel recommended that States with advanced military capacities
should establish standby high readiness, self-sufficient battalions at up to brigade level that can reinforce the United Nations, and should place them at the
disposal of the United Nations.269 It further recommended that the Security
Council establish a Peace building Commission, which has since been done.270
VIII

Preventive Human Rights Strategies in the Future

Historically, the human rights movement has worked with strategies of promotion and protection. Both have had some results but the state of human rights
is still a sad one. Promotional and protecting strategies both have some
elements of prevention within them but, in the future, there will be need for
more pronounced preventive strategies in human rights work. In the contemporary world human rights are affected by eight phenomena: environmental
changes, migratory movements, poverty, conflicts, terrorism, gross violations,
inequality, and poor governance. It will be crucial to develop preventive strategies in respect of all eight of these phenomena if we are to ever hope to achieve
the universal realisation of human rights.
Threats to Humanity that Call for the Articulation of their Human
Rights Dimensions
With global threats such as climate change, natural disasters, and global competition for depleting resources, it is imperative to address and articulate their
human rights dimensions and call attention to the need for responses that are
anchored in respect for human rights and fundamental freedoms. There are
estimates that, depending on the degree of global warming, millions of people
could be forced to seek refugee on safer ground. Some have even mentioned
the figure of 300 million.

267
268
269
270

Recommendation 12.
Recommendation 50 (e).
Recommendation 60.
Recommendations 82 and 83.

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In the response to natural disasters such as Hurricane Katrina in the usa

there was clearly inequity in response. While the usa has thoughtful policies
for responding to natural disasters the human rights dimensions were clearly
missing. Following the devastation caused by Hurricane Sandy in November
2012, the policy community in the usa began to sound the call for more prevention, preparedness and planning.
The un Human Rights Council has taken some incipient steps towards the
discussion of future preventive human rights strategies but this has so far not
developed much traction. In our work on Preventive Human Rights Strategies
we discussed a dozen threats to humankind that would warrant discussion of
their human rights dimensions beforehand.271
B
The Protection of Vulnerable Groups
In the contemporary world groups such as minorities, indigenous populations,
and migrants face numerous vulnerabilities. There are normative instruments
and un bodies devoted to promoting and protecting their human rights. The un
High Commissioner has a spearheading and crystallizing role to play. At any one
time the world should be put on notice through alert statements and studies from
ohchr drawing attention to the dangers to particular communities. Such alerts
can be brought to the attention of the General Assembly, the Security Council,
and the Human Rights Council, as well as to regional bodies. The aim here should
be to head off and prevent violations of human rights. Vulnerable groups facing
imminent problems should be able to address the High Commissioner and to
seek the articulation of their concerns. This would be prevention in action.
C
The Preventive Dimensions of the Responsibility to Protect
The high-level group of experts that first advocated the doctrine of the responsibility to protect saw it as having three core components: the responsibility to
prevent, the responsibility to react, and the responsibility to rebuild. The un
Secretary-General has established the positions of Special Adviser on the
Responsibility to Protect and Special Adviser on the Prevention of Genocide.
They have both made useful contributions.
271 B.G. Ramcharan, Preventive Human Rights Strategies (London, Routledge, 2011). See, also,
B.G. Ramcharan, Preventive Diplomacy at the un (Indiana, Indiana University Press, 2008).
The Human Rights Council has, since its establishment, adopted general resolutions on
prevention and a few other resolutions dealing with, e.g. prevention of maternal mortality. The Council has not yet worked out a clear-cut policy on preventive human rights
strategies. See, generally, B.G. Ramcharan, The un Human Rights Council (London,
Routledge, 2012).

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The concept of the responsibility to protect, as approved by the un General

Assembly in 2000 covered genocide, ethnic cleansing, crimes against humanity
and war crimes. As a political choice this was understandable in the circumstances. But the responsibility to prevent, generically, must reach far beyond
these four offences to the entire gamut of threats to human rights. The un
High Commissioner for Human Rights must surely shoulder the responsibility
for the responsibility to prevent world-wide, drawing upon the complementary efforts of the Special Advisers of the un Secretary-General and of regional
officials such as the osce High Commissioner on National Minorities.
D
The Preventive Roles of National Protection Systems
A national human rights system should consist of constitutional, legislative,
judicial, educational, institutional, and preventive pillars. ohchr has a good
programme of cooperation with national human rights institutions, regionally
and internationally. But the cooperation has been generic so far. There has, to
date, been little or no highlighting of the preventive pillar of national protection systems.
But this is the key to the future protection of human rights world-wide.
Competent national human rights institutions should be expected to take the
lead in heading off and preventing gross violations of human rights. ohchr
needs to commission as soon as possible a study of the preventive pillar of
national human rights systems and to place this issue under the spotlight. The
High Commissioner should take personal charge of efforts to highlight the
importance of the preventive dimension of national protection systems and to
foster their development in every country of the world.
E
Using the upr Process to Advance Prevention
The upr has valuable features inasmuch as, once every four and a half years,
every Member state of the un prepares a report, supplemented by two reports
from ohchr, on efforts to advance human rights in the country and on problems being encountered. The report is reviewed within the Human Rights
Council, with the participation of the country concerned and, at the plenary
stage, with the participation of ngos. The system is now only in its second
cycle and one must withhold judgment on its eventual efficacy. There are
strong political currents that make this more of a diplomatic than a legal process, in comparison to the consideration of reports by human rights treaty
bodies.
ohchr is still in the process of developing a policy of building on the upr.
So far its efforts have veered in the direction of capacity-building within countries. That is understandable. But ohchr can make a decisive difference by

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focusing on the strengthening of national protection systems and on national

efforts for the prevention of gross violations of human rights. ohchr could,
for example, commission a global study on national policies, strategies and
institutions for the prevention of human rights violations. The study could be
cast in terms of the sharing of experiences among countries and the identification of good practices.
At the end of the day, however, the aim should be to assist each country to
define and operate a policy of prevention. That would be genuine human
rights protection at work. Capacity building sounds good, and can be useful.
But it can also be vague and ephemeral. Prevention is concrete, and of the real
stuff of human rights protection.
Injecting Human Rights Dimensions into Regional Preventive
Regimes
Regional mechanisms for the prevention of conflict and violence exist today in
asean, au, ecowas, sadc, the oas, osce, and other regional and subregional organizations.272 The au Charter specifically supports au action in
the event of gross violations of human rights. In addition to these conflict and
violence-prevention mechanisms, regional institutions for the promotion and
protection of human rights exist in asean, au, the Council of Europe, oas,
and osce.
F

272 See, generally, B.G. Ramcharan (Ed.), Conflict Prevention in Practice. Essays in Honour of
Jim Sutterlin. Leiden, Martinus Nijhoff, 2005. See also International Peace Institute,
Preventive Diplomacy in Focus. New York, ipi, 2011. See also, Preventive Diplomacy:
Delivering Results. Report of the Secretary-General. un Doc. S2011/552, 26 August, 2011:
In the past five years, we have deepened existing or established new conflict prevention
and mediation partnerships with the African Union, the European Union, osce, oas, the
Caribbean Community (caricom), ecowas, sadc, asean, oic and others. Partly
through the use of extra-budgetary resources, we have been able to undertake initiatives
to help build regional capacities and learn from regional experiences. Joint training programmes on a broad range of peace and security issues are now available. Still, synergies
take time and hard work to attain and are not rendered easier by the fact that, with very
few exceptions, the United Nations, regional organizations and other actors have no
shared mechanism or procedure to decide, in real time, who should do what in a given
case. As we work to improve our formal institutional channels and protocols in that
regard, we are also investing in key personal relationships with regional partners, which
form the bedrock of closer cooperation. para. 52. The question that deserves to be
posed is: where does ohchr fit into all of this. So far, the answer would be very little. This
should change in the future. ohchr should be a key player in all these processes.

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ohchr and the High Commissioner have spasmodic cooperation with some
of these bodies but there is no evidence of spearheading and leadership provided by the High Commissioners. For this to happen there must be policy
choices. General cooperation can degenerate into courtesies. We suggest that
the policy choice should be for prevention. The High Commissioner should
periodically visit each of the regional preventive mechanisms and address them
with human rights insights and recommendations. The High Commissioner
should also periodically visit regional and sub-regional human rights institutions and beckon them to stronger preventive efforts. The thrust of prevention
would define the relationship and help give sharper definition to ohchr in
theprocess.
G
Leadership on Preventive Treaties Such as opcat
Historically, the relationship between the High Commissioner and the human
rights treaty bodies has been an ambiguous one. We are here not entering
into this broader relationship. We are, rather, making the case that High
Commissioners should take a special interest and place their shoulders to the
wheel when it comes to treaties with pronounced preventive thrusts. The
opcat, for example, provides for States Parties to establish national preventive
mechanisms, regular visits by national bodies, and regular visits by the opcat
sub-committee. In their contacts with national authorities, High Commissioners
should highlight the importance of the opcat arrangements and seek to use
their influence to strengthen them. There can be no more important human
rights work than preventing torture. High Commissioners should be identified
with this. This would, again, help sharpen the definition of ohchr.
H
Cooperating with Partners to Advance Prevention
We have argued above for stronger emphasis on preventive strategies by
ohchr and by High Commissioners and we have already made the point that
High Commissioners should develop cooperation with regional preventive
and human rights mechanisms to help prevent gross violations of human
rights world -wide. There are other actors active in the field of prevention with
whom ohchr and High Commissioners should also have more pronounced
cooperation. These include the major human rights ngos and organizations
with a pronounced preventive focus. ohchr could invite these organizations
to periodic meetings on cooperation for prevention, with a view to drawing
insights and suggestions from them and with a view to building up a culture of
cooperation for the prevention of human rights violations.
With a view to demonstrating that there is fertile ground for ohchr to
workwith these partners on future preventive strategies, we set out below the

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preventive focus of a number of them, it being understood that there are other
organizations that also support preventive human rights work. The Jacob
Blaustein Institute for the Advancement of Human Rights, for example, has
actively supported the efforts of the un Special Adviser for the Prevention of
Genocide through research, policy initiatives, and publications.
The Worldwatch Institute, an independent research organization, has the
mission of generating and promoting insights and ideas that empower decision makers to build an ecologically sustainable society that meets human
needs. Operating since 1974, the Institutes research is based on the best available evidence and focuses on the challenges that climate change, resource degradation, and population growth pose for meeting human needs in the 21st
century. Worldwatch seeks innovative solutions to intractable problems
emphasizing a blend of government leadership, private sector enterprise, and
citizen action that can make a sustainable future a reality.
Survival International supports tribal peoples worldwide. It has operated
since 1969. It works for tribal peoples rights in three complementary ways:
education, advocacy and campaigns. It also offers tribal people themselves a
platform to address the world. It works closely with local indigenous organizations, and focus on tribal peoples who have the most to lose, usually those
most recently in contact with the outside world.
Minority Rights Group works to secure rights for ethnic, religious, and linguistic minorities and indigenous people around the world. It works with
minority communities, providing education and training to enable them to
claim their rightful place in society. It lobbies governments and the United
Nations alongside and on behalf of minorities. It publishes authoritative
reports that are widely valued by academics and journalists, while its pioneering legal cases programme is advancing the protection of minorities under
international law
Founded in 1839, the Anti-Slavery Society is the worlds oldest international human rights organization working exclusively against slavery and
related abuses. It works at the local, national and international levels to eliminate the system of slavery around the world by urging governments of countries with slavery to develop and implement measures to end it; lobbying
governments and intergovernmental agencies to make slavery a priority
issue; supporting research to assess the scale of slavery in order to identify
measures to end it; working with local organizations to raise public awareness of slavery; and educating the public about the realities of slavery and
campaigning for its end.
The International Crisis Group, operating since 1995, is a leading independent source of analysis and advice to governments and intergovernmental

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bodies like the United Nations, the European Union and the World Bank on the
prevention and resolution of deadly conflict. icg contributes in six main ways:
Ringing early warning alarm bells in its monthly CrisisWatch bulletin, and
in specific crisis alerts.
Contributing behind the scenes support and advice to critical peace
negotiations.
Producing detailed analysis and advice on specific policy issues in scores of
conflict or potential conflict situations around the world.
Providing detailed information on developments regarding conflict, mass
violence and terrorism.
Offering new strategic thinking on some of the worlds intractable conflicts
and crises.
Supporting a rules-based, rather than a force-based, international order,
seeking to influence un resolutions and institutional structures in relation
to the responsibility to protect.
International Alert is an independent peacebuilding organization working
directly with people affected by violent conflict and government, eu and un
levels to shape policy and practice in building sustainable peace. It works to
strengthen the expertise, impact and public profile of the peacebuilding sector. It organizes training courses and publishes resources on peacebuilding.
The World Organization Against Torture was established in 1986 as a coalition of international non-governmental organizations fighting against torture,
summary executions, enforced disappearances and all other cruel, inhuman or
degrading treatment. With 282 affiliated organizations in its sos Torture
Network and many tens of thousands correspondents in every country, omct
coordinates a network working for the promotion and protection of human
rights in the world. omcts International Secretariat provides personalized
medical, legal and/or social assistance to hundreds of torture victims and
ensures the daily dissemination or urgent appeals across the world in order to
protect individuals and to fight against impunity.
The Association for the Prevention of Torture (apt), since 1977, has worked
for a world in which no one is subjected to torture or other cruel, inhuman or
degrading treatment or punishment. The apt has campaigned for the entry
into force and effective implementation of the Optional Protocol to the un
Convention against Torture (opcat), an international legal instrument that
seeks to open all places of detention to international and national scrutiny.
The apt provides training, legal advice and practical tools, facilitating
exchanges and advocating for preventive measures and mechanisms.

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The icj is dedicated to the primacy, coherence and implementation of

international law and principles that enhance human rights. The icj provides
legal expertise at both the international and national levels to ensure that
developments in international law adhere to human rights principles and that
international standards are implemented at the national level.
The Global Center on the Responsibility to Protect, opened on 14 February,
2008, was established by key supporters from government, ngos and academiato ensure that the rtp doctrine is understood and put into practice by
governments and at the United Nations. Its mission is to promote and catalyze
international action to help countries to prevent or halt mass atrocities.
Amnesty International is a worldwide movement of people who campaign
for internationally recognized human rights for all. It has more than 2.2 million
members and subscribers in more than 150 countries and regions and coordinates this support to act for justice on a wide range of issues.
Human Rights Watch, operating for the past 30 years, is dedicated to defending and protecting human rights. By focusing international attention where
human rights are violated, it seeks to give voice to the oppressed and hold
oppressors accountable for their crimes. Its investigations and strategic, targeted advocacy seek to build intense pressure for action and raise the cost of
human rights abuse. It has also sought to lay the legal and moral groundwork
for deep-rooted change and has fought to bring greater justice and security to
people around the world.
The International Federation of Human Rights is a federation of non-governmental human rights organizations whose core mandate is to promote
respect for all the rights set out in the Universal Declaration of Human Rights,
in the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. Founded in 1922, it is now
a Federation of 155 human rights organizations in nearly 100 countries. fidh
coordinates and supports the activities of its member organizations. fidh has
a joint programme with the World Organization Against Torture (omct) that
works for the implementation of the un Declaration on Human Rights
Defenders. In 2005 the Observatory dealt with almost 850 cases, in approximately 60 countries, with the collaboration of about 400 human rights organizations, and sent 11 fact-finding and trial observation missions.
The International Institute of Strategic Studies is an internationally renowned
British institute (or think tank) in the area of international affairs. Founded in
1958, it seeks to be a primary source of accurate, objective information on international strategic issues for politicians and diplomats, foreign affairs analysts,
international business, economists, the military, defence commentators, journalists, academics and the informed public. The iiss publishes The Military Balance,

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an annual assessment of nations military capabilities; the Armed Conflict

Database; Survival, a journal on global politics and strategy; Strategic Survey, the
annual review of world affairs; the Adelphi Papers series of monographs; and
Strategic Comments, online analysis of topical issues in international affairs.
sipri, established in 1966, is an independent international institute for
research into problems of peace and conflict, especially those of arms control
and disarmament. The sipri Yearbook was first published in 1969 and is now in
its 45th edition. The sipri 2008 Yearbook, for example, presented a combination of original data in areas such as world military expenditure, international
arms transfers, arms production, nuclear forces, major armed conflicts and
multilateral peace operations. The Institutes research programme centers
on: armed conflicts and conflict management; arms transfers; Euro-Atlantic,
Regional and Global Security; military expenditure and arms production; nonproliferation and export control; arms control and disarmament documentation survey; it projects, including the first (Facts on International Relations
and Security Trends) online database.
I
Using the Voice of the un High Commissioner for Prevention
Finally, whenever the un High Commissioner for Human Rights considers that
a group or people are in particular danger she or he should be ready to use the
voice of the High Commissioner by issuing public statements, calling for the
attention of the Human Rights Council, the Security Council, the SecretaryGeneral, or of the leadership of regional or sub-regional organizations with a
view to heading off dangers of gross violations. Through such a practice over
time the High Commissioner and ohchr would become more sharply defined
as preventive actors.

Conclusion: Making Prevention the Decisive Rationale of a Human

Rights Grand Strategy

Human rights work can be grouped under the categories of seed-planting, firebrigade, or preventive. The Human Rights Council, High Commissioners and
ohchr have done much in the areas of seed-planting and fire-brigade reactions. However, we would submit that there has so far been little efforts for
prevention. We would make a call for prevention to become a defining priority
of the Human Rights Council, of ohchr and of High Commissioners. We
think that global threats to humanity make this imperative. And we have set
out areas where we think that there is room for the development of preventive
policies and strategies.

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Secretary-General Ban Ki-Moon made a strong case for more prevention in

his 2011 report on preventive strategies:
We should build on the improvements that have been made in the United
Nations and in various regional and sub-regional organizations in developing early warning mechanisms. The establishment of regular and
informal early warning dialogues between the United Nations and
regional and other partners would allow us to pool information and help
us to anticipate threshold moments, when key actors might decide to
use violence. However, early warning is useful only if it leads to early
action, and we need to consider a broader range of options for addressing
an emerging threat, including seemingly small steps, such as multi-actor
statements of concern or fact-finding missions, which can affect the calculations of parties on the ground early on.273
273 Op. cit., para. 66.

chapter X

Fact-Finding
Introduction
There is much fact-finding work that is done within the framework of the
Human Rights Council. The Council entrusts fact-finding to its special procedures, to the un High Commissioner for Human Rights, and to ad hoc factfinding commissions.
Human rights fact-finding is at the heart of efforts for the international protection of human rights. Unfortunately, it is a recurring phenomenon that governments responsible for gross violations of human rights frequently seek to
defend themselves by highlighting and exaggerating mistakes or discrepancies, even minor ones, while side-stepping evidence presented about the violations they have committed. The method of defence resorted to in such
instances is to attack the fact-finding report rather than to accept responsibility
for the violations perpetrated.
For these reasons, it is crucial that careful attention be paid to the substantive and methodological integrity of fact-finding reports. The internal ground
rules for each report should be explained and respected consistently. The
human rights fact-finder must not give openings to unscrupulous governments
to deflect attention from their responsibility for violations. The fact-finder
must be professional, especially in the face of egregious violations of human
rights. Protection of the victims demands this in the face of history.
The need for ground rules is particularly important in international or
regional organizations. In the United Nations there are some fifty special procedures who essentially engage in fact-finding and, while the un Human
Rights Council has a Code of Conduct for them, it would be fair to say that
many fact-finders, influenced by passion, basically follow their own ground
rules.274
From the outset of un human rights fact-finding it was thought that there
were certain clearly established principles by which fact-finding should be
guided on all occasions. Among these were the independence, objectivity and
impartiality of fact-finders; propriety in form and in substance; legality and
274 Historically, the un Special Rapporteurs on Torture have followed solid internal ground
rules. The Working Group on Arbitrary Detention has also been a methodical, quasi-
judicial group.

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due process; equity and fairness; and responsiveness to, and effectiveness in
dealing with human rights violations. This was one of the central messages of
a book edited by this author, International Law and Fact-Finding in the Field of
Human Rights, first published in 1982 and reissued in 2014.275
Since the establishment of the un Human Rights Council it has frequently
resorted to fact-finding commissions of inquiry, whose members serve with
heart and dedication, but also follow their own ground rules in each instance.
One should never seek to hem in these commissions of inquiry with rigid rules,
but essential rules of fairness and due process are of great importance for the
integrity and weight of their work.
In 2014, for instance, a commission of inquiry presented a riveting and
damning report on a situation of systemic violations of human rights in an
Asian country. The members of the commission are of great integrity and the
highest qualifications. But at the same time as it delivered its report, it wrote to
the leaders of two countries warning them that they might be held responsible
for international crimes. The question arises whether this was proper procedure. Was it for the Commission to write to the two governments concerned or
should they have advised the Human Rights Council to do so or sought its
go-ahead before doing so ? Presenting the evidence is for fact-finders; acting on
those facts is for the parent body. A fact-finding body should avoid becoming
prosecutorial.
I

Ground Rules

Fact-finding in the field of human rights is, in principle, a quasi-judicial process, guided by the relevant rules of international law. At the same time, a flexible approach should be adopted by fact-finding bodies and legal criteria
should usually yield to humanitarian considerations. Nevertheless, the rules of
procedure in international fact-finding should remain consistent with principles of due process in order to retain the credibility of the procedure.276
The need for carefully observed ground rules of human rights fact-finding is
probably greater these days because the human rights movement is operating
in a period when the ground is shifting under its feet. In the un Human Rights
Council the governing majority advocates approaches grounded in cooperation and dialogue, even when dealing with egregious violations of human
275 Martinus Nijhoff, 1982. Reissued in 2014.
276 B.G. Ramcharan (Ed.), International Law and Fact-Finding in the Field of Human Rights
(Martinus Nijhoff, 1982, 2014).

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rights. In the broader United Nations there is a vigorous controversy over The
Responsibility to Protect. The majority of un members has served notice that
they prefer softer approaches when dealing with human rights problems
within Member States. Within the un Human Rights Councils Universal
Review Process, constructive dialogue is the mantra.
One thing has become crystal clear: the human rights movement must seek to
act with scrupulous objectivity in the new political environment. This is particularly true of human rights fact-finders. International Law and Fact-Finding in the
Field of Human Rights, published in 1982,277 advised, on the sources of law applicable in fact-finding, that these include sources indicated by any particular constitutional or treaty regime within which the fact-finding body may have been
established; sources expressly mentioned in the constitutive instrument; relevant legal pronouncements of parent organs; the laws of the State concerned, in
so far as they are consistent with the international standards; the sources of law
enumerated in Article 38 of the Statute of the International Court of Justice
namely, international conventions, international custom, the general principles
of law, judicial decisions and the teachings of highly qualified publicists; and the
binding parts of international human rights standards. It added that the international standards of human rights are fully invocable by fact-finding bodies.
On sources of information and evidentiary issues, International Law and
Fact-Finding advised that the rules of evidence applicable to any fact-finding
exercise depend in the first place upon any relevant provisions in the constitutive instrument initiating the exercise. If the constitutive instrument gives the
fact-finding body the power to draw up its own rules of procedure, then the
fact-finding exercise will be governed by such rules of evidence as are included
in the rules of procedure.
In the absence of any, or sufficiently express, provisions in the constitutive
instrument, fact-finding bodies should be guided by the following general
principles, both in drawing up their rules of procedure and in their practical
operations:
The standard of proof is usually a balance of probability. Probability in this
sense may be defined as an evaluation of the likelihood of a past event having happened, given the facts and assumptions expected or adopted for the
purposes of the evaluation. However, in adversarial contexts, the standard
beyond all reasonable doubt may be applied.
Fact-finding exercises in the field of human rights often being more inquisitorial than adversarial, there is usually no onus or burden of proof upon any
277 Martinus Nijhoff, 1982.

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particular complainant. However, upon the establishment of a prima facie

case that breaches of human rights have occurred, a burden of proof may
rest upon the government concerned to show that this was not the case or
that government agents were not responsible for such violations.
Flexible admissibility criteria should be applied. A fact-finding body is free
to employ for enlightening itself all the kinds of evidence that it deems necessary. It has the unlimited right of admitting all methods of proof that may
be considered in conscience as sufficient and necessary.
As regards the communication of evidence to the government concerned, a
fact-finding body should, as a general rule, communicate to the government
concerned for its comments such evidence as it may receive. However, it
always possesses a discretion as to whether or not to communicate a particular piece of evidence to the government and may decide not to do so, in
order to protect the source of information or to protect other persons from
reprisals.
As regards the evaluation of evidence this is a matter that rests exclusively
within the competence of the fact-finding body, or after it has submitted its
report, upon its parent organ (if any).
International Law and Fact-Finding also offered detailed guidance on on-site
observation and hearings. These included:
Freedom investigation
Freedom of movement
Guarantees of safety and security as well as of privacy and security of premises, possessions, records.
Involability of premises and accomodation
Privacy of interviews or hearings
Protection of witnesses
Privileges and immunities of the members of the Group and secretariat
staff.
Maintenance of records.
Press communiques.
On hearings, International Law and Fact-Finding advised the following:
Hearings, be they in an inquisitorial or adversarial context, should be conducted in a quasi-judicial manner.
After establishing their identity, witnesses should be required to make an
oath or affirmation to tell the truth.

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Witnesses should preferably give an oral account of their story instead of

reading out prepared statements.
Witnesses should be examined by the Chairman or members with a view to
checking for reliability, veracity, or corroboration.
The fact-finding body may decide whether the hearing shall be public or
private.
Due attention should be paid to the need to protect witnesses against reprisals. If necessary, hearings may be conducted in locations or in circumstances designed to protect witnesses.
The fact-finding body decides for itself on witnesses whom it wishes to hear
and may call witnesses of its own volition.
A fact-finding body may advise on interim measures of protection if necessary or may suggest that urgent measures be taken in order to ensure respect
for human rights.
In hearings in an adversarial context, the principle of equality of arms
should be respected.
Appropriate arrangements should be made for maintaining records.
II

Fact-Finding in the Human Rights Council

Fact-finding in the Human Rights Council takes place in one of three main
ways: first through the special procedures established by the Council to examine global problems such as extreme poverty, to investigate thematic violations of human rights such as torture, or to investigate particular country
situations where gross violations are alleged to be taking place; second,
through the un High Commissioner for Human Rights; third, through ad hoc
commissions of inquiry that the Council establishes from time to time to look
into particular situations such as that in the Democratic Peoples Republic of
Korea or through reports requested from the Office of High Commissioner for
Human Rights.
A
The Special Procedures
The Rapporteurs, Representatives, Envoys, Working Groups and similar special procedures of the Council are among the most important human rights
protection actors of the United Nations in the world today. They deal with
issues of civil and political rights, economic and social rights and invoke international human rights law as well as international humanitarian law, as pertinent to the situations or issues they deal with. They focus on thematic issues or
on country situations, as decided upon by the Council.

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In their initial conception, special procedures were meant to perform one

or more of four crucial functions: studies and analyses of situations, fact-
finding and reporting, urgent action to protect those at risk, and advice to
government(s) directly concerned, as well as to the then Commission on
Human Rights, now the Human Rights Council. Although these four functions
are at the heart of the concept, over the years the tasks assigned to them have
expanded.278 The special procedures in existence perform one or more of the
following protection functions:
They contribute to protection through studies, analyses, recommendations and the development of norms. They contribute to protection in
providing channels and fora for the victims of human rights violations to
publicize their plight. They contribute to protection through fact-finding.
They contribute to protection through advocacy. They contribute to protection through their efforts for the prevention of violations, including
urgent action and appeals. They contribute to containment and mitigation through their transmittals of complaints to Governments and
through visits on the spot. They contribute to protection through their
efforts for justice and reconciliation. They contribute to protection
through their efforts to promote and in some instances provide redress
and remedies. They contribute to protection through their follow-up
activities. They are pioneering new approaches to the protection of economic, social and cultural rights. This is being done by mandate holders
on food, health, shelter, extreme poverty, development, and international
solidarity.
Special procedure mandate-holders are expected to discharge their functions
with independence, impartiality, integrity and in accordance with standards of
fairness and due process and in the quest for justice. The special procedures
place the protection of those in need high among their priorities and pursue a
victims-oriented perspective. They have the tasks of analysing human rights
situations, making relevant recommendations and striving for justice for the
victims, actual and threatened.
Special procedure mandate-holders operate on the basis of international
cooperation with governments, specialised agencies, regional organisations,
national human rights institutions, non-governmental organisations, civil
society and other partners and also pursue cooperative approaches among
278 See, generally, B.G. Ramcharan, The Quest for Protection: A Human Rights Journey at the
United Nations (Geneva, The Human Rights Observatory, 2005).

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themselves. With a view to facilitating and harmonising their work, the Special
procedures have established a Coordinating Committee, which supports joint
activities among them and interacts with the Human Rights Council and other
actors in enhancing the system of special procedures. Increasingly, special procedures concert their efforts in joint and constructive approaches towards governments and other partners and, through their Coordinating Committee are
further developing joint efforts in a constructive manner in their interactions
with governments and others.
The functions of special procedures include the gathering and analysis of
information and trends on emerging and actual human rights issues, acting
upon the recommendations of human rights treaty bodies, contributing to the
development of international standards, responding to urgent situations referred
to them by the Human Rights Council, gathering and reacting to reliable information concerning allegations of human rights violations, reporting on State
implementation of human rights obligations, identifying best practices, undertaking country visits, making recommendations for improved enforcement of
human rights at the national level and communicating on behalf of victims.
The special procedures are also attentive to the importance in their work
of contributing to human rights education and training and to the dissemination of information on human rights. They communicate with, respond
to and interact with civil society, national human rights institutions, non-
governmental organisations, media and other actors in the implementation
of their mandates.
The efficacy of the work of special procedures depends upon effective and
timely cooperation from governments, particularly in providing relevant infor
mation expeditiously, responding effectively to their communications, enabling
them to have unhindered access to the country to asses the field situation, and in
giving effect to their recommendations in a sustained and faithful manner. The
standing invitations by countries pledging to accept visits of thematic special
procedures is an important way of strengthening the system and all countries
should consider issuing such standing invitations.
Special procedures contribute to the protection of human rights by responding in a timely manner to situations of actual or threatened violations of
human rights, by contributing to the identification of threats to population
groups and individuals, by undertaking visits to trouble spots, by making recommendations on law, policy, practice and corrective measures to governments and to the Human Rights Council, by calling for the wide dissemination
of their findings, and by calling upon the governments and peoples of the un
to act effectively for the protection of human rights in discharge of the Charters
mandate on the universal protection of human rights.

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The special procedures mobilise the global community to protect the rights
of actual and potential victims. The information and analysis from their reports
and related recommendations helps to empower groups and individuals in
protecting their rights. They also alert the international community to urgent
human rights situations which require effective measures to protect human
rights.
Visits by special procedures to victims, key locations and places where situations of concern manifest themselves such as situations where the right of
self-determination is involved, prisons and places of detention, situations of
displacement and locations where people are threatened with evictions and
displacement, are, among others, an important part of the protection activities
they engage in.
Implementation of the recommendations of special procedures is crucial to
the success of the system. Inadequate implementation of the recommendations coming from the special procedure system weakens the efficacy and
credibility of the un and the international community and impedes the realisation of human rights. The Governments concerned, interested governments
in pursuance of their obligation of international cooperation under the
Charter and international and regional organisations, should do their utmost
to implement, and follow up on, the recommendations of special procedures.
At a minimum, Governments should explain why they have chosen not to
implement recommendations, both to the Special Procedure mandate holder
and to the Human Rights Council. Civil society has an important role to play in
encouraging and monitoring follow up to the implementation of special procedures recommendations.
Urgent actions are an essential part of the work of special procedures. They
concern actual and impending threats which need to be responded to expeditiously and effectively. It is crucial to identify governmental focal points which
can address such actions in a timely and responsive manner.
B
Methods of Fact-Finding
Theo van Boven, then Special Rapporteur against Torture, in a report submitted to the Councils predecessor, the Commission on Human Rights, in 2002
2003, provided a magisterial illustration of the methods of work of a professional
special rapporteur.279 His work as Special Rapporteur, he reported to the
Commission, was characterized by the following main types of activity:
279 un doc. E/CN.4/2003/68, 17 December, 2002: Torture And Other Cruel, Inhuman Or
Degrading Treatment, Report Of The Special Rapporteur On The Question Of Torture
Submitted In Accordance With Commission Resolution 2002/38.

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(a) Seeking and receiving credible and reliable information from Governments, specialized agencies and intergovernmental and non-governmental
orgnizations as well as private individuals;
(b) Sending urgent appeals to Governments to clarify the situation of individuals whose circumstances give grounds to fear that treatment falling
within the Special Rapporteurs mandate might occur or be occurring;
(c) Transmitting to Governments information of the sort mentioned in (a)
above indicating that acts falling within his mandate may have occurred
or that legal or other measures are needed to prevent the occurrence of
such acts:
(d) Exploring the possibility of undertaking fact-finding visits to States where
information suggested that torture may involve more than isolated and
sporadic incidents, with a view to gaining more direct knowledge of the
situation and practice relating to matters falling within his mandate and
identifying measures to prevent the recurrence of such cases and to
improve the situation; and
(e) Submitting annual reports on his activities and mandate, as well as his
conclusions and recommendations, to the then Commission on Human
Rights and the General Assembly.280
He expanded upon his methods of work as follows:281
Sources of Information
With respect to the credibility and reliability of the information that
comes before him, the Special Rapporteur takes into account a number
of factors, any one of which may be sufficient, through generally more
than one will be present. These factors include: (a) the established previous reliability of the source of information; (b) the internal consistency
of the information; (c) the precision of the factual details included in
the information; (d) the consistency of the information as compared
with information on other cases from the country in question that has
previously come to his attention; (e) the existence of authoritative
reports of torture practices from national sources, such as official commissions of inquiry and national commissions on human rights/ombudspersons offices; and (f) the findings of other international bodies, such
as United Nations country rapporteurs and representatives, human
rights treaty-monitoring bodies and regional human rights bodies. The
280 Ibid, pp. 34.
281 Ibid, un doc. E/CN.4/2003/68, 17 December, 2002, pp. 48.

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Special Rapporteur may also rely on assessments made by professionals

of the Office of the High Commissioner for Human Rights (ohchr) as
well as of other United Nations agencies. With respect to information
pertaining to individual cases, it should be noted that a number of basic
requirements must be contained in the information submitted to him,
such as the identity of the alleged victims, the date and place of the incident, a description of the alleged perpetrators and of the situation, and
the identity of the source of information. It should be stressed that the
last element will remain confidential.
Urgent Appeals
With respect to the urgent appeals procedure, the Special Rapporteur
acknowledged that his work had been considerably facilitated by the creation within ohchr of a Quick Response Desk which allowed information
to be processed in a more timely and consistent manner and also facilitated
the sending of joint appeals with other special procedures of the Commission.
These appeals served urgent humanitarian purposes in their request
for clarification and relief. The urgent appeal procedure was not per se
accusatory, but rather essentially preventive in nature and purpose. The
Government concerned was requested to look into the matter and to take
steps aimed at protecting the right to physical and mental integrity of the
person concerned, in accordance with the international human rights
standards.
The circumstance that led to urgent appeals were diverse, but they
had in common that they indicated, on the basis of information of the
sort mentioned above, that an identifiable risk of torture or other cruel,
inhuman or degrading treatment or punishment existed. Such circumstances included incommunicado detention, prolonged solitary confinement, use of physical constraints in circumstances contrary to international
standards, lack of essential medical care and treatment, imminent corporal punishment, and serious risk of extradition or deportation to a State
or territory where the person in question would reportedly be in danger
of being subjected to torture. The Special Rapporteur might also address
the enactment of legislation or other measures that may undermine the
prohibition of torture. Owing to the time-sensitive nature of such an
appeal, the Special Rapporteur transmitted it directly to the Minister for
Foreign Affairs of the country concerned, urging the Government in
question to take the necessary measures to ensure the physical and mental
integrity of the persons concerned but without drawing any conclusions
as to the facts.

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Because urgent appeals served immediate humanitarian purposes, the

Special Rapporteur might exceptionally decide to send such appeals to
entities other than official de jure authorities in cases where the entities
in question, as well as a channel of communication for reaching them,
had been clearly identified. In the past, situations of armed conflicts had
provoked such action. The Special Rapporteur recalled that all parties to
an armed conflict, be it of an international or an internal character, were
bound by the minimum standards of humanitarian law that prohibited
violence to life and person, in particular cruel treatment and torture, as
well as outrages upon personal dignity, by any party to the conflict at any
time and in any place whatsoever. The Special Rapporteur stressed that
such urgent humanitarian appeals did not in any way determine the
international legal status of such entities.
Allegation Letters
Information alleging torture received by the Special Rapporteur which did
not require him to take immediate action was transmitted to Governments
in the form of allegation letters. These letters contained summaries of
individual cases of torture and, where applicable, included general references to the phenomenon of torture, such as alleged systematic patterns of
practice of torture, patterns relating to a specific group of victims or of perpetrators, or specific legislation deemed not sufficient to guarantee the
right to physical and mental integrity. In these letters, the Special Rapporteur
would request the Government concerned to clarify the substance of the
allegations and urge it to take steps to investigate them, to prosecute and
impose appropriate sanctions on any persons guilty of torture regardless of
any rank, office or position they may hold, to take effective measures to
prevent the recurrence of such acts, and to compensate the victims or their
relatives in accordance with the relevant international standards.
Because of the limited staff resources, such communications were usually sent once a year at the end of the Summer to Governments, which
were given some two months to respond. The Special Rapporteur hoped
that he would be in a position to send such communications more regularly during the course of the year and would do his utmost to facilitate the
processing of these communications by Governments concerned. He
noted that it was desirable for Governments to receive relevant information as expeditiously as possible and to have their replies thereto in the
same report that contained the summary of the original information transmitted by the Special Rapporteur. Thus, reports of the Special Rapporteur
would provide the reader with a balanced perspective on the matter.

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Individual cases regarding which no reply had been received were

r e-sent the following year until a reply was received. The Special Rapporteur
noted with concern that a number of Governments had failed to provide
any replies on cases originally sent in 1997 and 1998. The Special Rappor
teur analysed responses from Governments and transmitted the contents
to the sources of the allegations, as appropriate, for comment. This practice mainly concerned cases where the facts appeared to be contradicted.
If required, dialogue with the Government was then pursued further.
The Special Rapporteur made it clear communications regarding individual cases urgent appeals and allegations did not constitute any
judgment on his part concerning the merits of the cases. In transmitting
those communications, the Special Rapporteur did not associate himself
with or condone in any way acts or activities of the persons on whose
behalf he intervened. No matter how wrongly, dangerously, or even criminally a person might act, every human being is legally and morally entitled to protection on the basis of internationally recognized human rights
and fundamental freedoms. This applies a fortiori where a non-derogable
right, such as the prohibition of torture and other cruel, inhuman or
degrading treatment or punishment, was involved.
Fact-Finding Missions
The Special Rapporteur carried out visits to countries on invitation, but
also tooks the initiative of approaching Governments with a view to carrying out visits to countries concerning which he had received information indicating the existence of a significant incidence of torture. Such
visits should allow the Special Rapporteur to gain more direct knowledge
of situations falling within his mandate, and were intended to enhance
the dialogue between the Special Rapporteur and the authorities most
directly concerned, as well as with the alleged victims, their families and
legal representatives and non-governmental organizations, with a view
to making detailed recommendations. When contemplating whether to
request an invitation, the Special Rapporteur took into account, first and
foremost, the number, quality and gravity/nature of the allegations
received and the potential impact that a mission to the country concerned might have on the overall human rights situation. The Special
Rapporteur welcomed the decision by an increasing number of States to
extend a standing invitation to all thematic special procedures and urged
others to seriously consider extending such an invitation.
The Special Rapporteur did not, as a rule, seek to visit a country in
respect of which the United Nations had established a country-specific

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mechanism such as a special rapporteur/representative for the country,

unless a joint visit seemed to both to be indicated. For countries where
the mandates of other thematic mechanisms might also be affected, the
Special Rapporteur consulted with the latter with a view to exploring
with the Government in question, whether jointly or in parallel, the possibility of a joint visit. Where the Committee against Torture was considering the situation in a country under Article 20 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, especially if that consideration involved a visit or possible
visit by the committee to the country in question, the Special Rapporteur
did not seek a visit.
In accordance with the terms of reference for fact-finding missions by
special rapporteurs/representatives of the former Commission on
Human Rights adopted by the fourth meeting of special rapporteurs/
representatives, independent experts and chairpersons of working
groups of the special procedures (E/CN.4/1998/45, annex V), before a factfinding mission took place, the Government concerned was asked to
guarantee the following to the Special Rapporteur and accompanying
United Nations staff: freedom of movement throughout the country; freedom of inquiry, especially in terms of access to all detention centres and
places of interrogation; free contact with central and local authorities of
all branches of Government; free contact with representatives of nongovernmental organizations, other private institutions and the media;
confidential and unsupervised contacts with witnesses and other private
individuals, including persons deprived of their liberty; and full access to
all documentary material relevant to the mandate. The Government was
also asked for assurance that no persons, be they officials or private individuals, who had been in contact with the Special Rapporteur in connection with the mandate would suffer threats, harassment or punishment
on that account or be subjected to judicial proceedings. As stated by the
meeting, these terms of reference are the minimum necessary to ensure
the independence, impartiality and safety of visits by the Special
Rapporteurs to the field. These terms of reference did not exclude additional safeguards, depending on the mandates or circumstances.
During the mission, the Special Rapporteur met with representatives
of the Government, non-governmental organizations and the legal profession, alleged victims of torture and relatives of the victims. He visited
places of detention and of interrogation to obtain first-hand knowledge
of how the criminal legal process operated, from arrest to enforcement of
the sentence. Confidential and unsupervised interviews were conducted

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with victims of torture, witnesses and other private persons, including

those deprived of their liberty. In the mission report, the Special
Rapporteur might give an account of individual allegations received.
Although the monitoring of conditions of detention was not specifically
mentioned in the mandate, they might well be pertinent, especially when
they constituted a grave risk to the life or health of detainees.
With regard to countries in which visits had been carried out, the
Special Rapporteur periodically reminded the Governments concerned
of the observations and recommendations formulated in the respective
reports, requesting information on the consideration given to them and
the steps take to implement them, or the constraints which might prevent their implementation. The Special Rapporteur also welcomed information from non-
governmental organizations and other interested
parties regarding measures taken in follow-up to his recommendations.
Thus a dialogue on measures that might be undertaken by the concerned
authorities could be established.
Reports
The Special Rapporteur was mandated by the Commission (now the
Human Rights Council) and the General Assembly to report on an annual
basis to both organs. Reports to the Commission/Council contained summaries of all communications (urgent appeals and allegation letters)
transmitted to Governments and the latters replies thereto. The Special
Rapporteur might also include general observations on specific countries. Nevertheless, no conclusion as to individual cases were drawn. He
might also address specific issues of concern and development that had
an impact on the fight against torture and usually drew general conclusions and made recommendations. Because of financial constraints and
limitations on the length and time of submission of documentation,
summaries of communications sent to Governments and replies received
by the Special Rapporteur had in recent years not been translated; they
appeared in addendum 1 to the main report of the Commission/Council
in the original working language of the United Nations Secretariat used
to communicate with the respective Governments. Interim reports to the
General Assembly outlined overall and recent development of relevance
to the Special Rapporteurs mandate.
In the mission reports, which were addenda to the main report, the
Special Rapporteur outlined legislation of relevance to the prohibition of
torture such as provisions making torture a crime and provisions
governing arrest and detention. Special attention was paid to p
eriods of

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incommunicado detention, disciplinary sanctions, access to qualified

legal representation and legal aid, access to family members and medical
care, bail provisions, witnesses protection, the admissibility of confessions, the status and independence of medical experts and forensic services, and access of members of civil society to places of detention.
As indicated in his first report to the Commission (E/CN.4/2002/137, para.6),
the Special Rapporteur attached great importance to follow-up activities and
considered them to be an essential requirement of his mandate. He therefore
intended to seek ways to enhance the quality of such activities, in particular
in cooperation with the Quick Response Desk of ohchr. He also paid particular attention to cooperation with other mechanisms, especially other special procedures mandate-holders, with a view to taking concerted actions and
avoiding duplication of work. In that respect, he sought the cooperation of
other special rapporteurs/representatives when sending communications, be
they urgent appeals or allegation letters, regarding information that fell within
other special procedures mandates.
C
Code of Conduct for the Special Procedures
In the institutional measures brought into force on 19 June 2007, the Human
Rights Council provided guidance on the objectives and orientation of the system of special procedures. Mandates, it noted, should always offer a clear prospect of an increased level of human rights promotion and protection as well as
coherence within the system of human rights. Equal attention should be given
to all human rights. The balance of thematic mandates should broadly reflect
the equal importance of civil and political rights and economic, social and
cultural rights including the right to development.
Thematic mandates are to be of three years duration and country mandates
of one year duration. The Council stated its intention to consider a uniform
nomenclature of mandate holders. Decisions to create, review or discontinue
country mandates should take into account the principles of cooperation and
genuine dialogue aimed at strengthening the capacity of Member States to
comply with their human rights obligations.
In a Code of Conduct for special procedures mandate holders the Council
urged all sates to cooperate with, and assist the special procedures in the performance of their tasks and to provide all information in a timely manner, as
well as respond to communications transmitted to them by the special procedures without delay.
Mandate holders, according to the code of conduct, must seek to establish the facts based on objective, reliable information emanating from

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relevant, credible sources that they have duly cross checked to the best
extent possible.282 They should take into account in a comprehensive and
timely manner in particular information provided by the State concerned on
situations relevant to their mandate. They should evaluate all information in
the light of internationally recognised human rights standards relevant to
their mandate, and of international conventions, to which the State concerned is a party. They are entitled to bring to the attention of the Council
any suggestion likely to enhance the capacity of special procedures to fulfil
their mandate.
On sources of information the mandate holders should be guided by the
principles of discretion, transparency, impartiality and even-handedness. They
should preserve the confidentiality of sources, of testimonies if their disclosure could cause harm to the individuals involved. The should rely on objective and dependable facts based on evidentiary standards that are appropriate
to the non-judicial character of the reports and conclusions they are called
upon to draw up. They should give representatives of the state concerned the
opportunity of commenting on their assessment and of responding to the
allegations made against the state and to annex the States written summary
responses to their reports.
Mandate holders may resort to urgent appeals in cases where the alleged
violations are time-sensitive in terms of involving loss of life, life-threatening
situations or other imminent or ongoing damage of an extremely grave nature
to victims that cannot be addressed in a timely manner by the procedure prescribed in Article 9 for letters of allegation.
During their field visits mandate holders should seek to establish a dialogue
with the relevant government authorities and with all stake-holders, the promotion of dialogue and cooperation to ensure the full effectiveness of special
procedures being a shared obligation of the mandate holders, the concerned
state and the stake-holders.283
In the fulfilment of their mission, mandate holders are accountable to the
Council.284 The Council considered that one should distinguish between on
the one hand, the independence of mandate-holders, which is absolute in
nature, and on the other hand, their prerogatives, as circumscribed by their
mandate, the mandate of the Human Rights Council, and the provisions of the
United Nations Charter.285
282
283
284
285

Code of Conduct, Article 6.

Article 11.
Article 15.
Code of Conduct Human Rights Council resolution A/HRC/5/2, Preambular Paragraph 13.

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219

The Council urged all states to cooperate with, and assist, the Special
Procedures in the performance of their tasks and furnish all information as
well as respond to communications transmitted to them by the Special
Procedures without undue delay.
According to Article 3 of the Code of Conduct, mandate holders are independent United Nations experts. While discharging their mandate, they shall:
(a) act in an independent capacity; and exercise their functions in accordance
with their mandate, through a professional, impartial assessment of facts
based on internationally recognized human rights standards, free from any
kind of extraneous influence, incitement, pressure, threat or interference,
either direct or indirect, on the part of any party, whether stake-holder or not,
for any reason whatsoever, the notion of independence being linked to the
status of mandate-holders, and to their freedom to assess the human rights
questions that they are called upon to examine under their mandate; (b) keep
in mind the mandate of the Council, which is responsible for promoting universal respect for the protection of all human rights and fundamental freedom
for all, through dialogue and cooperation as specified in General Assembly
Resolution 60/251; (c) exercise their functions in accordance with their mandate and in compliance with the un Regulations governing the Status of
Experts on mission as well as with the present Code; (d) focus exclusively on
the implementation of their mandate, constantly keeping in mind their fundamental obligations of truthfulness, loyalty and independence pertaining to
their mandate; (e) uphold the highest standards of efficiency, competence and
integrity, meaning, in particular, though not exclusively, probity, impartiality,
equity, honesty and good faith; (f) neither seek nor accept instructions from
any Government, individual, governmental or non-governmental organisation
or pressure group whatsoever; (g) adopt a conduct that is consistent with their
status, at all times; (h) be aware of the importance of their duties and responsibilities, taking the particular nature of their mandate into consideration and
behaving in such a way as to maintain and reinforce the trust they enjoy from
all stakeholders; (i) not use their office or knowledge gained from their functions for private gain, financial or otherwise, or for the gain and/ or detriment
of any family member, close associate, or third party; (j) not accept any honour, decoration, favour, gift or remuneration from any governmental or nongovernmental source for activities carried out in pursuit of his/her mandate.
Article 4 of the Code of Conduct stipulated the following on the status of
mandate-holders. (a) Mandate-holders exercise their functions on a personal
basis, their responsibilities not being national but exclusively international;
(b) When exercising their functions, the mandate-holders are entitled to
the privileges and immunities provided for under relevant international

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instruments including under Section 22 of Article VI of the United Nations

Convention on Privileges and Immunities; (c) Without prejudice to these privileges and immunities, the mandate-holders shall carry out their mandate
while fully respecting the national legislation and regulations of the country
wherein they are exercising their mission. Where an issue arises in this regard,
mandate-holders shall adhere strictly to the provisions of Regulation 1(e) of
the Regulations Governing Status, Basic Rights and Duties of Officials and
Experts on Mission, adopted by General Assembly resolution 56/280.
Prior to assuming their functions, mandate-holders shall, in accordance
with Article 5 make the following solemn declaration in writing:
I solemnly declare that I shall perform my duties and exercise my functions from a completely impartial, loyal and conscientious standpoint,
and truthfully, and that I shall discharge these functions and regulate my
conduct in a manner totally in keeping with the terms of my mandate,
the United Nations Charter, the interests of the Organization of the
United Nations and with the objective of promoting and protecting
human rights, without seeking or accepting any instruction from any
other party whatsoever.
Article 6 of the Code of Conduct laid down that without prejudice to prerogatives for which provision is made as part of their mandate, the mandate-
holders shall: (a) always seek to establish the facts, based on objective, reliable
information emanating from relevant credible sources, that they have duly
cross-checked to the best extent possible; (b) take into account in a comprehensive and timely manner, in particular information provided by the State
concerned on situations relevant to their mandate; (c) all information in light
of internationally recognized human rights standards relevant to their mandate, and of international conventions to which the State concerned is a party;
(d) be entitled to bring to the attention of the Council any suggestion likely to
enhance the capacity of Special Procedures to fulfil their mandate.
According to Article 7: It is incumbent on the mandate-holders to exercise
their functions in strict observance of their mandate and in particular to
ensure that their recommendations do not exceed their mandate or the mandate of the Council itself.
According to Article 8, in their information-gathering activities the
mandate-holders shall:
(a) be guided by the principles of discretion, transparency, impartiality,
and even-handedness; (b) preserve the confidentiality of sources of

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t estimonies if their divulgation could harm witnesses; (c) rely on o bjective

and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are
called upon to draw up; (d) give representatives of the concerned State
the opportunity of commenting on mandate-holders assessment and of
responding to the allegations made against this State, and annex the
States written summary responses to their reports.
According to Article 9, with a view to achieving effectiveness and harmonization
in the handling of letters of allegations by special procedures, mandate-holders
shall assess their conformity with reference to the following criteria: (a). The
communications should not be manifestly unfounded or politically motivated:
(b). The communication should contain a factual description of the alleged violations of human rights; (c). The language in the communication should not be
abusive; (d). The communication should be submitted by a person or a group of
persons claiming to be victim of violations or by any person or group of persons,
including ngos, acting in good faith in accordance with principles of human
rights, and free from politically motivated stands irrelevant or contrary to, the
provisions of the un Charter, and claiming to have direct or reliable knowledge
of those violations supported by clear evidence; and (e). The communication
should not be exclusively based on reports disseminated by mass media.
Mandate-holders may, under Article 10, resort to urgent appeals in cases
where the alleged violations are time-sensitive in terms of involving loss of life,
life-threatening situations or either imminent or ongoing damage of an irreparable nature to victims that cannot be addressed in a timely manner by the
procedure under Article 9.
According to Article 11, Mandate-holders shall: (a) Ensure that their visit is
conducted in compliance with the terms of reference of their mandate; (b)
Ensure that their visit is conducted with the consent, or at the invitation, of the
concerned State; (c) Prepare their visit in close collaboration with the
Permanent Mission of the concerned State accredited to the United Nations
Office in Geneva except if another authority is designated for this purpose by
the concerned State; (d) Finalize the official programme of their visits directly
with the host country officials with administrative and logistical back-up from
the local United Nations Agency/Representative of the High Commissioner for
Human Rights who may also assist in arranging meetings with private witnesses; (e) Seek to establish a dialogue with the relevant Government authorities and with all other stakeholders, the promotion of dialogue and cooperation
being a shared obligation of the mandate-holders, the concerned State and the
said stakeholders; (f) Have access upon their own request, in consultation with

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ohchr and after approval by the host Government or upon the decision of the
latter, in light of its assessment of the security situation, to official security
protection during their visit without prejudice to the privacy and confidentiality that mandate-holders require to fulfill their mandate and to their freedom
of movement within the itinerary agreed to with the host Government;
According to Article 12, mandate-holders shall: (a) Bear in mind the need to
ensure that their personal political opinions are without prejudice to the execution of their mission, and base their conclusions and recommendations on
objective assessments of human rights situations; (b) in implementing their
mandate, therefore, show restraint, moderation and discretion so as not to
undermine the recognition of the independent nature of their mandate or the
environment necessary to properly discharge the said mandate.
According to Article 13, mandate-holders shall: (a) while expressing their
considered views, particularly in their public statements concerning allegations of human rights violations, report fairly on the responses of the concerned
State; (b) while reporting on a concerned State, ensure that their declarations
on the human right situation in the country are at all times compatible with
their mandate and the integrity, independence and impartiality which their status requires, and which is likely to promote a constructive dialogue among
stakeholders as well as cooperation for the promotion and protection of human
rights; (c) ensure that the concerned Government authorities are the first recipients of their conclusions and recommendations concerning the State and are
given adequate time to respond, and that likewise the Council is the first recipient of conclusions and recommendations addressed to this body.
According to Article 14, mandate-holders shall address all their communications to concerned Government through diplomatic channels unless agreed
otherwise by individual Government with the ohchr;
According to Article 15, in the fulfilment of their mission, mandate-holders
are accountable to the Council.
D
The High Commissioner for Human Rights
At the request of the Council or on his/her own volition, the un High
Commissioner for Human Rights does serious fact-finding work that is of great
assistance to the Council. At the time of writing, the High Commissioner had
just submitted a detailed report to the Council on human rights violations in
Iraq being committed, mainly, by the so-called Islamic State in Iraq and the
Levant (isil or is).286
286 Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July10 September, 2014.
See Council Resolution S-22/1 on the same.

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In September, 2014, ohchr and the United Nations Assistance Mission for
Iraq (unami) jointly published a Report on the Protection of Civilians in
Armed Conflict in Iraq: 6 July10 September 2014. The report recorded that the
conflict between the Iraqi Security Forces (isf) and affiliated forces, on the
one hand, and the Islamic State in Iraq and the Levant (isil) and associated
armed forces, on the other, continued to take a heavy toll on civilians. Gross
human rights abuses and acts of violence of an increasingly sectarian nature,
committed by armed forces, have exacerbated the effect on civilians and contributed to the deterioration in the human rights situation and the rule of law,
in many parts of the conflict.287
unami/ohchr had received reports of serious violations of international
humanitarian law and gross abuses of human rights that had been perpetrated
by isil and associated groups, with an apparent systematic and widespread
character. These included attacks directly targeting civilians and civilian infrastructure, executions and other targeted killings of civilians, abductions, rape
and other forms of sexual and physical violence perpetrated against women
and children, forced recruitment of children, destruction or desecration of
places of religious or cultural significance, wanton destruction and looting of
property, and denial of fundamental freedoms.
Members of Iraqs diverse ethnic and religious communities, including
Turkmen, Shabak, Christians, Yezidi, Sabaeans, Kakae, Faili Kurds, Arab Shia,
and others had particularly been affected by the situation. isil and associated
armed groups intentionally and systematically targeted these communities for
gross human rights abuses, at times aimed at destroying, suppressing or cleansing them from areas under their control. isil and associated armed groups
also murdered captured soldiers and other security forces or government personnel. Many of the violations and abuses perpetrated by isil and associated
groups might amount to war crimes or crimes against humanity.
unami/ohchr had also received some reports of serious violations of international humanitarian law and gross violations or abuses of international human
rights law committed by isf and affiliated armed groups. These included air
strikes and shelling as well as conduct of particular military operations or attacks
that might have violated the principles of distinction and proportionality under
international humanitarian law. Armed groups affiliated to, or supporting, the
Government had also carried out targeted killings, including of captured fighters
from isil and its associated armed groups, and abductions of civilians.288
287 Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July10 September,
2014, p. i.
288 Ibid.

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E
Commissions of Inquiry
There is both solid good work and contested work carried out by fact-finding
commissions in the Council. It might be fair to conclude that the trend is in the
direction of quality fact-finding. Two recent examples bear this out.
A commission of inquiry established by the Council showed great quality
and professionalism in its work. In its resolution 22/13, adopted on 21 March
2013, the Council established a Commission of Inquiry on human rights in the
Democratic Peoples Republic of Korea and mandated it to investigate the systematic, widespread and grave violations of human rights in the State, with a
view to ensuring full accountability, in particular for violations that may
amount to crimes against humanity. The Commission was chaired by Judge
Michael Kirby of Australia and the other two members were Ms Sonja Biserko
of Serbia and Mr Marzuki Darusman of Indonesia. Mr Darusman was also
Special Rapporteur of the Council on the dprk.
The Government of the dprk did not cooperate with the Commission.
Owing to its lack of access to the dprk, the commission obtained first-hand
testimony through public hearings that were transparent, observed due process and protected victims and witnesses. More than 80 witnesses and experts
testified publicly and provided information of great specificity, detail and relevance, in ways that often required a significant degree of courage. The
Commission and its Secretariat conducted more than 240 confidential interviews with victims and witnesses. The Commission made a call for written submissions to all States Members of the United Nations and relevant stakeholders.
Eighty such submissions were received. The Commission conducted official
visits to five countries and sought access to China in order to conduct inquiries
and to consult with officials of the Government and local experts. Its request
was declined.
The commission based its findings on a reasonable grounds standard of
proof: It concluded that there are reasonable grounds establishing that an
incident or pattern of conduct had occurred whenever it was satisfied that it
had obtained a reliable body of information consistent with other material,
based on which a reasonable and ordinarily prudent person would have reason
to believe that such an incident or pattern of conduct had occurred.
In para. 21 of its report the commission stated the following:
The commission finds that systematic, widespread and gross violations
have been and are being committed by the Democratic Peoples Republic
of Korea. In many instances, the violations found entailed crimes against
humanity based on State policies. The main perpetrators are officials of
the State Security Department, the Ministry of Peoples Security, the

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Korean Peoples Army, the Office of the Public Prosecutor, the judiciary
and the Workers Party of Korea, who are acting under the effective control of the central organs of the Workers Party of Korea, the National
Defence Commission and the Supreme Leader of the Democratic Peoples
Republic of Korea.
The work of this commission of inquiry was of undoubtedly high quality.
In the summer of 2014 another high-quality commission of inquiry into violations of human rights committed in Syria reported its finding based on 480
interviews and evidence collected between 20 January and 15 July 2014. The
commission established that the conduct of the warring parties in the Syrian
Arab Republic had caused civilians immeasurable suffering. Government
forces had continued to perpetrate massacres and conduct widespread attacks
on civilians, systematically committing murder, torture, rape and enforced disappearance amounting to crimes against humanity. Government forces had
committed gross violations of human rights and the war crimes of murder,
hostage-taking, torture, rape and sexual violence, recruiting and using children
in hostilities and targeting civilians. Government forces disregarded the special protection accorded to hospitals and medical and humanitarian personnel. Indiscriminate and disproportionate aerial bombardment and shelling
had led to mass civilian casualties and spread terror. Government forces used
chlorine gas, an illegal weapon.
Non-state armed groups, named in the report, had committed massacres
and war crimes, including murder, execution without due process, torture,
hostage-taking, violations of international humanitarian law tantamount to
enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups had besieged and
indiscriminately shelled civilian neighbourhoods, in some instances spreading
terror among civilians through the use of car bombings in civilian areas.
Members of the Islamic State of Iraq and Al-Sham (isis) had committed torture, murder, acts tantamount to enforced disappearance, and forcible displacement as part of an attack on the civilian population in Aleppo and AL
Raqqah governorates, amounting to crimes against humanity.289
In the work of the Council over the past decades there has, unfortunately,
been evidence of different weights and measures being applied as between a
government favoured by the majority of the Council and one disfavoured by
289 Report of the Independent Commission of Inquiry on the Syrian Arab Republic,
A/HRC/27/60, 13 August, 2014.

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them. This comes out vividly in a comparison between the High-Level Panel of
Experts on Darfur and the Goldstone commission of inquiry.
In 2007, the Council established a High-level Panel of Experts to examine
the situation of human rights in Darfur after much horse-trading. The
Government of Sudan, supported by Council members belonging to the
Organization of the Islamic Conference, insisted on the panel including members favourable to it, including the Ambassadors of Algeria and Indonesia. It
reached an understanding with the President of the Council that the report of
the panel would be drafted by the Ambassador of Algeria. The membership
ofthe two ambassadors seems to have been negotiated with leading m
embersof
the Council belonging to the Western group.
Subsequently, the leadership of the Western group changed its position and
opposed the inclusion of serving ambassadors in Geneva on a panel of experts.
There was protracted discussion in which the Government of Sudan insisted
that it had reached an understanding on the matter. In the end, thePresident
of the Council replaced the Algerian Ambassador with the Ambassador of
Gabon and the two ambassadors ended up serving on the panel, alongside a
Nobel peace prize laureate (the Chairperson), a Latvian member of parliament, an Afghan expert, and this author, who had previously exercised the
functions of un High Commissioner for Human Rights.
The members of the panel worked harmoniously as a group of people.290
However, there were undisputed political limits to some aspects of its work.
The Government of Sudan, in the end, did not allow the panel to enter Darfur
and some members of the panel, proposed that the panel visit the headquarters of the African Union in Addis Ababa and visit camps with refugees from
Darfur on the Chadian side of the border with Sudan. The two ambassadors
politely indicated that their Governments would not allow them to go to
Chad and they left the mission after the visit to Addis Ababa. The other
members of the panel proceeded to make the visit to the refugee camps
inChad.
As a matter of principle, a High-level panel of eminent experts should never
have been in a position in which two of its members could not undertake part
of the mission because their government would not allow it. One of the ambassadors resigned from the panel because of differences with the Chairperson
and took no further part in the consideration and adoption of the report. The
report of the panel was a principled one and analysed the situation in Darfur
in detail through the lens of the responsibility to protect. The report contained
sensible recommendations.
290 The author was a member of the panel.

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Continuing the political saga, when the report reached the Council, the
majority of members denounced it, refused to endorse it, and did not follow its
recommendations. The criticism of some members of the Panel for allegedly
being prejudiced was harsh and nasty. In the end, the Council gave no follow
up to the report. Instead, it decided that a group of special rapporteurs should
work with the Government of Sudan on the implementation of recommendations previously made by different special procedures. This exercise continued
for two years and was then discontinued. In the meantime, the human rights
situation in Darfur continued to deteriorate. The position of the Council was a
completely unprincipled one and raw politics reigned.
One might compare this approach with the position of the Council towards
two fact-finding missions established to deal with situations in Palestine: the
Tutu fact-finding mission and the Goldstone inquiry. In both instances Israel
refused to cooperate with the inquiries. In the case of the Tutu inquiry, Israel
charged that both Tutu and his college on the inquiry, Professor Christine
Chinkin, were biased. In the case of the Goldstone commission, Israel protested that the Council had first condemned Israel and then ordered the
inquiry and that some members of the commission of inquiry were biased. For
the purposes of this book we do not need to discuss these contentions.
Two issues, however, point to serious problems in the fact-finding approach
of the Council. First, like in the case of the panel on Darfur, the Council had
followed a flawed approach in designating members of the inquiry bodies. In
the case of the Darfur panel, the Government of Sudan had insisted on the
appointment of two ambassadors favourable to it. In the case of the Goldstone
inquiry, three members of the panel had reportedly written letters being
overtly critical of the conduct of Israel in relation to matters that were the
subject of the inquiry. We do not take a position on this and do not in any way
impugn the integrity of these members, all of whom are high-standing lawyers of great repute. But it would be fair that the Council should avoid the
appointment of members of a commission of inquiry who are on written
record as having pronounced on the very matters they are supposed to
investigate.
The report of the Goldstone commission was bitterly attacked by Israel and
its supporters.291 This aspect of the matter need not concern us here. The point
that we wish to make here is that whereas in the case of the panel report on
Darfur the Council took an unprincipled stance in not being willing to endorse
it and to follow-up on its recommendations, in the case of the Goldstone
291 Goldstone later said that he had altered his assessment of the situation. This was bitterly
rejected by the other members of the Commission.

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inquiry, by contrast, the Council was unhesitating in its endorsement and

severe in its condemnation of Israel.292
Conclusion
The fact-finding work of the special procedures is without doubt among the
strongest protection activities of the United Nations. Fact-finding undertaken
by the High Commissioner for Human Rights greatly assists the Council. So
does fact-finding carried out by commissions of inquiry. The trend would seem
to be in the direction of greater quality in fact-finding by commissions of
inquiry. It is essential that all fact-finders be seen to be applying objective
standards of inquiry, some of which we have discussed in this chapter.
292 By its resolution S-12/1 of 16 October, 2009 the Council Endorses the recommendations
contained in the report of the Independent International Fact-Finding Mission, and calls
upon all concerned parties including United Nations bodies, to ensure their implementation in accordance with their respective mandates. The Council further recommended
that the General Assembly consider the report of the Independent International FactFinding Mission during the main part of its sixty-fourth session.

chapter XI

Protection
Introduction
To what extent can one say that the Human Rights Council engages in the
actual protection of human rights? This is a difficult question of conscience for
anyone seeking to answer it. Without a doubt, many of the activities of the
Council have promotion, prevention and protection in view. But to those facing grievous violations of human rights what counts is whether someone can
place a protective shield around them in their moment of dire need and save
them from atrocities.
There are very few international bodies that are actually able to do this. At the
time of writing the people of Kobani in Syria are living this experience, with an
invasion by isis and air strikes against isis by an international coalition led by
the usa.293 Their fate is hanging in the balance. On a scale of one to ten, very few
international or regional actors are able to rise above two or three when it comes
to actual protection. Coalitions of the powerful might be able to do better on rare
occasions. But even the United Nations Security Council remains, for the most
part, an exhortatory actor. The same is the case for the Human Rights Council.
In order to be able to assess the role of the Human Rights Council we must
look at the idea of protection historically and then come back to take stock of
what the Council has been doing in its first decade.
I

The Idea of Protection

The idea of the protection of human rights is one of the foundation ideas of
the contemporary human rights movement and of the international law of
293 bbc, Syria: Kobane situation remains dangerous says us, 12 October 2014, Consulted on 14
October 2014, available at http://www.bbc.com/news/world-middle-east-29586675; James
Rush, Isis in Kobani: Air Strikes will Not Save Syrian Town from Militants, uk and us Warn,
The Independent, 9 October, 2014, Consulted on 14 October 2015 at http://www.independent
.co.uk/news/world/middle-east/isis-in-kobani-air-strikes-will-not-save-syrian-town-from
-militants-uk-and-us-warn-9783954.html; Ayla Jean Yackley and Tom Perry, Kurds Urge
More Air Strikes in Kobani; Monitor Warns of Defeat, Reuters, 12 October, 2014. Available at:
http://www.reuters.com/article/2014/10/12/us-mideast-crisis-idUSKCN0HX0XF20141012.

koninklijke brill nv, leiden, 2015|doi 10.1163/9789004289031_013

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human rights that the human rights movement must fight for.294 Its essence is
that everything possible should be done to protect human rights where they
are at risk. Protection has preventive, curative and remedial or compensatory
aspects. Protection is, in the first instance, for the national authorities. Where
this is lacking, protection may be exercised regionally pursuant to regional
human rights conventions where this option exists, and internationally pursuant to the United Nations Charter or to international human rights conventions where applicable.
In its judgment in the Nottebohm Case (Second Phase), the International
Court of Justice, referring to the institution of diplomatic protection, commented that to exercise protection, is to place oneself on the plane of international law. It is international law which determines whether a state is entitled
to exercise protection295 On an earlier occasion, in the Reparation Case, the
Court had expressly recognized the capacity of the United Nations to engage in
international protection.296
A third strand of the jurisprudence of the Court is provided in the Barcelona
Traction Case, where it drew attention to the existence of obligations towards
the international community as a whole deriving in contemporary international law, inter alia, from the principles and rules concerning the basic rights
of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection, it affirmed, have entered
into the body of general international law.297 These three cases of the world
court suffice to indicate that the concept of international protection is an
established part of international customary law.
As every discussed in Chapter III above, every country should be able to
show that it has in place an adequate and effective national protection system
with constitutional, legislative, judicial, educational, institutional, and preventive components. The concept of the national protection system is, strategically, one of the most important for future human rights strategies. It is a key
concept towards preventive human rights strategies, another approach that
should be emphasized in future human rights work. Based on the work of
international human rights treaty bodies, special procedures, and the empirical work of United Nations institutions like undp and ohchr, more and more
294 See generally K. Tomasevski, Responding to Human Rights Violations 19461999 (The
Hague, Boston, London, Martinus Nijhoff Publishers, 2000).
295 I.C.J. Reports, 1955, 4 at 2021.
296 I.C.J. Reports, 1949, 174 at 183.
297 Emphasis added. Barcelona Traction Light and Power Co. Ltd, Judgement of the I.C.J.,
5February 1970, I.C.J. Reports, 1970, 1 at 32.

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efforts should be deployed on the strengthening of national protecting systems

in the future.
II

The Continuing Need for International Protection

While it is an accepted rule of international law that each government is primarily responsible for protecting the human rights of persons within its jurisdiction, the need for the international protection of human rights is an
empirically observable fact that has continually manifested itself and which
continues to be in evidence today. The sheer number and scale of situations
involving shocking violations of human rights are proof, if any were needed,
that the international protection of human rights is not a mere desirability but
an utter necessity. The following basic reasons for international protection
may be noted.
There may, first of all, be simply a breakdown of government, resulting in
excesses being committed against persons within its jurisdiction. For such persons, international protection may be the only line of defence. The spate of
extra-judicial killings in the world is an example. Second, national laws or judicial policies may themselves be inconsistent with internationally recognized
standards on human rights and the only way to get them altered may be to resort
to an international forum. Third, the domestic judicial system may simply fail,
for example, when a person is unable to obtain any remedy for a violation of his
or her human rights or fundamental freedoms. Fourth, in highly charged situations, such as in international or internal conflicts, or in emergency situations,
an international presence may be indispensable if excesses or inhumane actions
are to be avoided or minimized. Fifth, in a world undergoing unprecedented
political, economic, social and cultural transformations, the pressures upon governments are manifold and this can easily lead to harsh treatment of some parts
of the population. The refugee and displacement crises in many parts of the
world come to mind. In the absence of international protection and assistance,
the innocent victims of such situations would be without hope. Sixth, the potential for barbarism continues to manifest itself in human beings and to break out
frequently. Wanton disregard for the elementary principles of humanity is
rampant. The incidents of piracy against refugees are vivid examples. Such manifestations of inhumanity must be combated internationally. Seventh, there are
some particularly vulnerable groups whose protection, experience has shown,
can only be assured by urgent international action. This is the case for victims of
institutionalized racism and racial discrimination, victims of slavery and
slavery-like practices, trafficking, minorities and indigenous populations.

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Antecedents of International Protection

The notion of protection (initially domestic protection) may be traced back to

very early times as organized human societies were emerging and notions of
law and justice were evolving. In his study, Freedom in the Ancient World,
H.J. Muller showed how law codes, written or unwritten, provided protection
to the individual and he traced the efforts of kings to protect ordinary men
against the abuses of power and privilege.298 Bello has found notions akin to
protection in African customary humanitarian law and has reported that,
while not generally the case, during armed conflicts in certain parts of Africa
some tribes took pride in according respect and human rights to women,
children and old persons.299 In Asia, Alexandrowicz found that there existed,
historically, high standards of protection of foreigners irrespective of religion
or civilization.300
In Europe the sixteenth century saw the development of the institution of
Protecting Powers as European powers obtained through capitulation treaties
the right to exercise exclusive, extra-territorial jurisdiction over their nationals in the Ottoman Empire, and later on in the other independent countries of
the Middle and Far East. The institution of protecting powers, which could
also be found in diplomatic and consular practice evolved, subsequently, and
grew into the cornerstone of the system of implementation of the Geneva
Conventions of 1949 on the laws of armed conflicts.301
The use of treaties providing for the protection of human rights, which was
known even in the practice of the ancient Greeks, began to assume prominence in the seventeenth century. The Treaty of Westphalia (1648) sought to
ensure equality of rights for Roman Catholics and Protestants in Germany.
During the seventeenth century, some governments undertook in peace treaties to respect the rights of Roman Catholic subjects of Protestant princes. In
1774 Turkey undertook vis--vis Russia to protect the Christian religion and its
churches within its territory. The Congress of Vienna of 1815 provided for the
free exercise of religion and for equality, irrespective of religion, in various
298 H.J. Muller, Freedom in the Ancient World (London: Secker and Warburg, 1962), 5859. See
also, J. Shotwell, The Long Way to Freedom (New York, Columbia University Press, 1960).
299 E. Bello, African Customary Humanitarian law (1980), 29.
300 C.H. Alexandrowicz, The Afro-Asian World and the Law of Nations (Historical Aspects),
123, R.C.A.D.I (1968), I, 117214, at 151.
301 For a concise and useful history of the institution of Protecting Power, see G. Abi-Saab,
The Implementation of Humanitarian Law in A. Cassese (Ed.), The New Humanitarian
Law of Armed Conflict (The Hague: Martinus Nijhoff, 1979), 310348 at 311318.

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c antons of Switzerland as well as for the equality of Christian denominations

in Germany. The Congress also contained provisions aiming at the improvement
of the civil status of Jews.302
The doctrine and practice of humanitarian intervention may also be
included among the antecedents of the concept of international protection.
In previous centuries, when the treatment by a state of its own population was
so abusive and cruel that it shocked the conscience of humanity, other states
claimed the right to threaten or use force in order to assist the oppressed persons. Setting aside the issue of the validity of such interventions in contemporary international law, the practice does at least offer guidance with regard to
one set of circumstances when international protection would be warranted:
when atrocities reach such a scale as to shock the conscience of humanity.
The concept of international protection may, furthermore, be traced in the
movements for the abolition of slavery, for the establishment of international
humanitarian law concerning the conduct of hostilities and the protection of
human rights during periods of armed conflict, and for the development of
international social and labour legislation which the ilo has pioneered since
its establishment.
The institution of diplomatic protection, one of the hallowed institutions of
international law, has also contributed to the development of the concept of
international protection of human rights. Diplomatic protection proceeds from a
states right to protect its nationals abroad. As the Permanent Court of International
Justice stated in the Mavrommatis Palestine Concession Case, It is an elementary
principle of international law that a state is entitled to protect its subjects, when
injured by acts contrary to international law committed by another state, from
whom they have been unable to obtain satisfaction through the ordinary
channels.303 In traditional international law, the responsibility of states for damage done in their territory to the person or property of foreigners rested on the
international standard of justice, and the principle of the equality of nationals
and aliens. As the General Claims Commission held in the Neer Case, the propriety of governmental acts should be put to the test of international standards.
In an important submission, F.V. Garcia-Amador, former Rapporteur of the
International Law Commission, argued that what was formerly the object of
these two principles the protection of the person and of his property is now
intended to be accomplished by the international recognition of the essential
rights of human beings.304
302 See E. Schwelb, Human Rights, in Encyclopedia Britannica, Vol. 8, 1974, 11831189.
303 Mavrommatis Pelestine Concessions Case, P.C.I.J., ser A. No.2 (1924), 12.
304 F.V. Garcia-Amador, Report on State Responsibility, Y.B.I.L.C. (1956), Vol.II, 173231, at 203.

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In some of the peace treaties, in special minorities treaties and in declarations

made after World War i, some states of central and eastern Europe and a state in
the Middle East (Iraq) accepted obligations towards their racial, linguistic and
religious minorities to the effect that all of their nationals were to be equal before
the law and were to enjoy the same civil and political rights without distinction
as to race, language or religion. The relevant treaties provided that their provisions constituted obligations of international concern rather than domestic
matters and all were placed under the guarantee of the League of Nations.
At the drafting of the United Nations Charter in San Francisco, the question
arose expressly whether the Charter should define the role of the United
Nations in terms of promotion or protection. The drafters opted for language
calling for the achievement of international cooperation in promoting and
encouraging respect for human rights and for fundamental freedoms. Notwith
standing the use of the term promotion, the practice of the United Nations
has confirmed the competence of the Organization to act for the protection of
human rights. As an authoritative commentator wrote in 1972:
In the actual practice of the various organs of the United Nations over the
past 25 years the obstacles to taking action based on the human rights
provisions of the Charter have proved to be far less formidable than the
cleavage of theoretical opinions of scholars and of abstract statements by
governments would lead one to assume. In the practice of the United
Nations and its Members neither the vagueness and generality of the
human rights clauses of the Charter nor the domestic jurisdiction clause
have prevented the United Nations from considering, investigating, and
judging concrete human rights situations, provided there was a majority
strong enough and wishing strongly enough to attempt to influence the
particular development305
IV

The Responsibility to Protect

The report of the International Commission on Intervention and State

Sovereignty launched the concept of the responsibility to protect.306 In the
305 E. Schwelb, The International Court of Justice and the Human Rights Clauses of the
Charter, 66 A.J.I.L. (1972), 337351, at 341.
306 International Commission on Intervention and State Sovereignty, The Responsibility to
Protect, December 2001. See also The Responsibility to Protect: Research, Bibliography,
Background, December 2001.

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Commissions view, the responsibility to protect embraced three specific

responsibilities: the responsibility to prevent, namely, to address both the root
causes and direct causes of internal conflict and other man-made crises p
utting
populations at risk; the responsibility to react, namely, to respond to situations
of compelling human need with appropriate measures, which may include
coercive measures like sanctions and international prosecution, and in extreme
cases military intervention; the responsibility to rebuild, namely, to provide,
particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
The Commission was firm in its view that prevention was the single most
important dimension of the responsibility to protect. Prevention options
should always be exhausted before intervention was contemplated, and more
commitment and resources must be devoted to it. The exercise of the responsibility to prevent and react should always involve less intrusive and coercive
measures before more coercive and intrusive ones are applied.
The United Nations Summit of world leaders, meeting to mark the organizations 60th anniversary in 2005 endorsed the responsibility to protect and
declared their readiness, if need be, to refer to the unsc for its attention
situations of genocide, crimes against humanity and war crimes.
V

Preventive, Curative and Remedial or Compensatory Protection

International protection may be grouped into three categories: anticipatory

or preventive, mitigatory or curative, remedial or compensatory. Preventive
protection means that the national authorities, regional organizations, or the
United Nations, should try to anticipate and head off potential situations of
gross violations of human rights before they occur. This is a newer thrust in
the efforts of the human rights movement and prevention is still in its infancy.307 Prevention should be an essential part of any national protection
system.
Among the preventive measures taken by international bodies, mention
may be made of urgent appeals addressed on behalf of victims orof interim
measures undertaken on their behalf. On some occasions the unsc has met
to consider a situation and to bring its influence to bear on those involved.
Special Procedures of the hrc address urgent appeals to Governments in
307 See, L-A Sicilianos, Ed., The Prevention of Human Rights Violations (The Hague, New York,
Martinus Nijhoff Publishers, 2001).

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cases of concern. The un High Commissioner for Human Rights may do likewise or may make public statements expressing concern. The SecretaryGeneral may intercede if he considers that this could be helpful. In the
European Commission and the Inter-American Commission on Human
Rights, the secretaries of these organs have an established practice of interceding urgently with a government if, from the facts reported to them, they
conclude that an individual is in serious danger of having irreparable harm
done to them. The good offices of international officials such as the DirectorGeneral of the ilo may be called upon.308
Aside from these limited measures, such as appeals, interim measures, or
the use of humanitarian good offices, the area of anticipation and prevention
represents one of the major gaps in the arrangements for the international protection of human rights. Let us cite, in this regard, the following statement
which was made by Dr. Theo C. van Boven, the then Director of the United
Nations Division of Human Rights to the chr in 1980:
We are frequently faced in the United Nations with serious and urgent
problems of violations of human rights which arise in different parts of
the world, but, apart from statements of the Secretary-General issued in
a humanitarian spirit, or the exercise of his good offices in certain cases,
the organization is mostly unable to take action in a situation where
every day counts heavily notwithstanding the hope and expectations of
the international community for such action. In the ilo, for example, the
Director-General has been granted the competence, in urgent cases, to
approach the government concerned to receive a mission from the organization urgently to look into allegations of violations of trade unions
rights within the country in question. We, in the United Nations, similarly receive many complaints and disturbing reports about grave human
rights problems in this as well as in other countriesbut there is no similar possibility for action open to us. In my view, this is a major deficiency
in the arrangements.309
The situation has not changed markedly since then.
Curative protection involves efforts to mitigate and stop gross violations of
human rights that may be taking place. The unsc, the hrc, Special Procedures
of the hrc, the United Nations High Commissioner for Human Rights, and the
308 See B.G. Ramcharan, Humanitarian Good Officers in International Law (The Hague,
Martinus Nijhoff, 1983).
309 T.C. van Boven, People Matter (Meulenhoff, 1982), 73.

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United Nations Secretary-General endeavour to engage in mitigatory and curative protection.

Various procedures exist within different international organizations,
whose aims may be said to stop or to mitigate excesses being committed, or to
cure or redress situations giving rise to such excesses. Among these may be
mentioned: the United Nations procedures for dealing with complaints of violations of human rights; ilos complaints procedures; unescos complaints
procedures; Inter-governmental complaints procedures, such as those under
the European Convention on Human Rights, the American Convention on
Human Rights or the International Covenant on Civil and Political Rights;
investigation and fact-finding under various procedures in the United Nations,
ilo, the Council of Europe and the oas, visits on-the spot or the establishment
of international presences; the activities of the icrc, and the United Nations
High Commissioner for Human Rights, the unhcr; the activities of non-
governmental organizatons; the exercise of good offices; and public denunciations of violations of human rights.
Some of the procedures within the different international organizations
may be said to have the objective of providing protection through remedies or
compensation. Of particular significance in this regard are the petition systems under the European and American Conventions on Human Rights and
under the Optional Protocol to the International Covenant on Civil and
Political Rights. Judicial measures of protection such as those provided by the
European Court and the Inter-American Court of Human Rights are also relevant in this regard. Also related are the efforts currently being made within the
United Nations to provide reconstruction assistance to countries which have
experienced extensive violations of human rights, as well as to individuals who
have been subjected to such violations.310
Remedial and compensatory protection involves processes of establishing
the truth about what took place in a situation of gross violations of human
rights, bringing perpetrators to justice where possible, and providing redress to
victims of gross violations of human rights or to their families. Truth and reconciliation commissions are bodies that seek to ascertain and record what
took place. National or hybrid courts may deal with justice issues. So might the
icc or ad hoc tribunals such as the International Criminal Tribunals for the
Former Yugoslavia and Rwanda, the Sierra Leone Court and the Cambodia
Court.
It should be pointed out that although we have referred to some proce
dures under the headings of preventive/anticipatory; curative/mitigatory and
310 A United Nations Fund for Victims of Torture has been in existence since 1991.

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r emedial/compensatory, many procedures in fact perform functions belonging

to more than one of these categories.
VI

International Protection

The international protection of human rights is called into the picture when
there has been a failure of national protection It may be exercised even if
regional bodies are seized of the situation. If a situation of gross violations of
human rights threatens or breaches international peace and security, the primary, though not the exclusive, protection actor should be the unsc. The
Security Council usually engages in political protection, namely, it acts as it
sees appropriate according to the political circumstances. The unsc may
engage in a higher standard of protection if it considers this appropriate and it
may even decide to refer situations to the icc, as it did in the case of Darfur.
Further, it may choose, acting under the mandatory chapter of the Charter,
Chapter 7, to establish an international criminal tribunal to try those accused
of criminal violations of human rights.
Among the contemporary agencies of international protection may be
included: the United Nations, (including the unsc, the Human Rights Council,
the Human Rights Committee, the Committee on the Elimination of Racial
Discrimination, the United Nations High Commissioner for Refugees, the
United Nations High Commissioner for Human Rights, and the Office for the
Coordination of Humanitarian Affairs); ilo; unesco; the icrc; the Council of
Europe; the echr; the Organization of American states (the Inter-American
Commission and the Court of Human Rights); the Organization of African
Unity; the League of Arab States; and ngos such as Amnesty International,
Human Rights Watch, the International Commission of Jurists, the Inter
national Association of Democratic Lawyers and the International League for
Human Rights.
The degree of protection actually provided by these bodies is not commensurate with the needs on the ground.
VII

Shades of Protection: Direct and Indirect

The international protection of human rights in the contemporary world may

be said to be either direct or indirect. By direct international protection is
meant the intercession of an international entity either at the behest of a victim or victims concerned, or by persons on their behalf, or on the volition of

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the international protecting agency itself to halt a violation of human rights.

As examples of direct international protection mention may be made of the
activities of the United Nations High Commissioner for Refugees, the un High
Commissioner for Human Rights, of the icrc, or of the various petitions or
complaints procedures such as that provided under the Optional Protocol to
the International Covenant on Civil and Political Rights.
However, much of the protecting activities undertaken in the international community may be classified into the category of indirect protection.
Among these may be included: the creation of an international environment
which is conducive to the realization of human rights; the elaboration of
norms and standards; education, teaching, training, research and the dissemination of information,311 and the provision of advisory services in the
field of human rights.
In the following section we examine how various organizations and procedures have approached the application of direct protection.
VIII

The United Nations

At the San Francisco Conference, in 1945, draft proposals on human rights were
considered by two committees. Committee I/1 adopted the Sponsoring Powers
proposal for the promotion and encouragement of respect for human rights,
with only minor drafting changes. In its discussion, however, several important
issues were raised. Some delegations commented on the meaning of the terms
promotion and protection, and it was suggested that to promote human
rights be replaced by stronger expressions, such as to assure or to protect
human rights. But Sub-Committee I/1/A held that assuring or protecting such
fundamental rights is primarily the concern of each state. If, however, such
rights and freedoms were grievously outraged so as to create conditions which
threaten peace or to obstruct the application of provisions of the Charter, then
they cease to be the sole concern of each State.312
Committee II/3 incorporated into the text of Article 55 of the Charter an
Australian proposal that the Organization should promote not only respect for
human rights but also their observance. When this provision was later
311 See on this, the Report of the ila Sub-Committee on the International Protection of
Human Rights by the Mobilisation of Public Opinion, submitted to the ila conference
in 1976.
312 L.B. Sohn and T. Buergenthal, International Protection of Human Rights (Indianapolis,
New York, Bobbs-Merrill Company, 1973), 510511.

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d iscussed in the Co-ordination Committee, it was explained that the intention

of the Committee II/3 was to reinforce respect, which has the connotation of
passive acceptance, by observance which is intended to imply active implementation. It was added that observance implies an obligation to change the
laws of ones own country to implement this article, whereas respect merely
means respecting the laws of other countries in this regard.313
International organizations are not static but living and growing institutions and their competences and functions evolve and grow through practice,
over time.314 Thus it was that the ga of the United Nations noted, in 1980, the
growing awareness of the international community of the need to ensure
effective promotion and protection of human rights315 and affirmed that the
efforts of the United Nation and its member states to promote and to protect
civil and political rights, as well as economic, social and cultural rights, should
continue.316
There can be little doubt that the United Nations is competent to act for the
protection of human rights, particularly in situations where there exists a consistent pattern of gross violations of human rights and fundamental freedoms.
The efforts of the United Nations to halt such violations are clear proof of this.
On 4 March 1966, the ecosoc, by its resolution 1102 (xl), invited the former
Commission on Human Rights, to consider as a matter of importance and
urgency the question of the violation of human rights and fundamental freedoms and to submit to the Council its recommendations on measures to halt
such violations. In response to this resolution the chr adopted resolution 2
(xxii) of 25 March 1966 by which it informed the ecosoc that it will be necessary for the Commission to consider fully the means by which it may be more
fully informed of violations of human rights with a view to devising recommendations for measures to halt them. The next year the Council in resolution
1164 (lxi) of 5 August 1966 welcomed the Commissions decision to consider
its tasks and functions and its role in relation to violations of human rights,
and concurred in the Commissions view that it would be necessary for the
Commission to consider the means by which it might be kept more fully
informed of violations of human rights, with a view to devising recommendations for measures to put a stop to those violations.
313 Ibid.
314 Throughout its history, the development of international law has been influenced by the
requirements of international life. International Court of Justice, Reparations For Injuries
Suffered in the Service of the United Nations, 11 April 1949, icj Reports 1949, 174 at 178.
315 ga resolution 35/176.
316 ga resolution 35/174, para 4. See similarly ga resolution 41/131, paras 1214.

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On the recommendation of the ecosoc, made in the same year, the ga

adopted resolution 2144 (xxi) of 26 October 1966 in which, inter alia, it invited
the ecosoc and the chr to give urgent consideration to ways and means of
improving the capacity of the United Nations to put a stop to violations of
human rights wherever they might occur.
Stemming from Council resolutions 1102 and 1164, and ga resolution 2144,
the chr interpreted its competence as including the power to recommend
and adopt general and specific measures to deal with violations of human
rights (Commission resolution xxiii, para 1). The Economic and Social
Council noted Commission resolution (xxiii) in the preamble to its resolutions 1235 (xlii) and in paragraph 1 of the same resolution the Council also:
Welcomed the decision of the Commission on Human Rights to give
annual consideration to the item entitled question of the violation of
human rights and fundamental freedoms, including policies of racial
discrimination and segregation and of apartheid in all countries, which
particular reference to colonial and other dependent countries and
territories
Paragraph 2 of the Councils resolution authorized the Commission to examine information relevant to gross violations of human rights and to make a
through study of situations which reveal a consistent pattern of violations of
human rights.
From 1966 until its last substantive session in 2005 the Commission publicly
considered the question of violations of human rights each year. During the
annual debates, allegations of violations of human rights were made publicly
against various countries. Situations of gross violations of human rights were
also considered in the ga, the unsc, the ecosoc and in other organs. Many
situations have moreover been considered confidentially within the procedure
established by Council resolution 1503 (xlviii). Indeed, in 1979, the ga conscious of the responsibility of the United Nationsin dealing with situations of
mass and flagrant violations of human rights, reaffirmed that mass and flagrant violations of human rights are of special concern to the United Nations
and urged the appropriate United Nations bodies, within their mandates, particularly the Commission on Human Rights, to take timely and effective action
in existing and future cases of mass and flagrant violations of human rights.
The Assembly stressed the important role that the Secretary-General can play
in situations of mass and flagrant violations of human rights.317
317 ga resolution 34/175.

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The United Nations High Commissioner for Human Rights has a mandate
from the ga to act for the promotion and the protection of human rights. High
Commissioners have issued public statements about situations of concern to
them, have established investigations into some such situations, and have
sought to exercise their good offices for the protection of human rights where,
in their judgment, this might be useful.318
The United Nations Secretary-General sometimes also acts for the protection of human rights. The Secretary-General may speak out on occasions,
establish investigations, or use his good offices where he considers this
appropriate.319
IX

The United Nations Human Rights Council

In its resolution establishing the Human Rights Council the ga affirmed the
need for all states to continue international efforts to enhance dialogue and
broaden understanding among civilizations, cultures and religions. It recognized that the promotion and protection of human rights should be based on
the principles of cooperation and dialogue and aimed at strengthening the
capacity of member states to comply with their human rights obligations for
the benefit of all human beings.
The core mandate given to the Human Rights Council was to promote
universal respect for the protection of all human rights and fundamental
freedoms for all, without distinction of any kind. The Council should address
situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. The ga decided that the work
of the Council shall be guided by the principles of universality, impartiality,
objectivity and non-selectivity, constructive international dialogue and
cooperation with a view to enhanced promotion and protection of all human
rights.
The Council is further mandated to promote human rights education
and learning as well as advisory services, technical assistance and capacity
building, to be provided in consultation and with the consent of the
member states concerned; to serve as a forum for dialogue on thematic
issues; to make recommendations to the ga for the further development of
318 See, B.G. Ramcharan, A un High Commissioner in Defence of Human Rights (Martinus
Nijhoff, 2005).
319 See B.G. Ramcharan, Humanitarian Good Offices. The Good Offices of the un SecretaryGeneral in the Field of Human Rights (Dordrecht: Martinus Nijhoff, 1983).

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international law in the field of human rights; to promote the full

implementation of human rights obligations undertaken by states and the
follow-up of the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and
summits; to contribute, through dialogue and cooperation, towards the
prevention of human rights violations and respond promptly to human
rights emergencies; to work in close cooperation in the field of human
rights with governments, regional organizations, national human rights
institutions, and civil society; to make recommendations with regard to the
promotion and protection of human rights; and to undertake a universal
periodic review of the fulfilment by each state of its human rights obligations and commitments.
Since its establishment the following features have marked the Councils
performance when it comes to discharge of the responsibility to protect: first,
the Council has been criticized for failing to take preventive action against
gross violations of human rights; second the Council has been strongly criticized for not being willing to take firm action against countries grossly violating human rights, except Israel in respect of the Palestinian occupied territories;
third, the Council has been criticized for allegedly wanting a soft approach
from its special procedures when dealing with countries allegedly committing
gross violations of human rights; fourth the Council has been criticized for stifling the voices of ngos calling for principled action against gross violators of
human rights; fifth, the Council has adopted some resolutions that could be
considered as containing building blocks for a future policy on the responsibility to protect.
On the first criticism, we discussed this in an earlier chapter above. On the
second criticism, it is fair to say that the Council has been markedly reluctant
to adopt resolutions against countries accused of gross violations of human
rights, except Israel for its actions in occupied Palestine. There are those who
argue that the adoption of country resolutions is an outdated approach and
that dialogue and cooperation are preferable towards countries accused of
gross violations. This view, however, does not hold in respect of Israel.
It is also pointed out by supporters of the Council that it does discuss numerous country situations of gross violations, even if it may not adopt resolutions
on them. In this view, country issues are very much the cornerstone of any
given Council session with an average of 42 countries being dealt with in the
context of: (a) updates by the High Commissioner as well as reports by the
Secretary-General and the High Commissioner; In his updates to the Council
the High Commissioner refers to quite a large number of countries from all
regions where human rights difficulties are being faced. This is based on the

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philosophical precept that no State is free of human rights violations and that
there is no human rights paradise on earth. To take a sample year, in 2014, an
average of around 20 country situations per session were referred to by the
High Commissioner. (b) general debates under items 4 and 7. In March 2014,
around 30 country situations were addressed in discussions under item 4.
(c) Special sessions devoted to country issues; Many special sessions have
focussed on country issues, i.e. M
iddle-East related matters, Myanmar, Darfur/
Sudan, drc and Sri Lanka. Special sessions have been convened to deal with
pressing thematic matters (global food crisis and global financial crisis). (d) the
consideration of mission reports submitted by thematic special rapporteurs;
In 2014, an average of around 20 mission reports per session were considered.
(e) interactions with country-specific special rapporteurs; To date, there are
several country specific srs. (f) the upr; The whole un membership has
undergone the upr. (g) the complaint procedure; Between 12 countries are
considered under the complaint procedure in closed meetings normally at
the March and September sessions. (h) ad hoc tools. The human rights situation
at the country level has also been dealt with in the context of fact finding
missions and joint reports by srs on behalf of the Council.
Supporters of the Council point out that it has a responsibility to ensure
that these tools are utilized in all relevant situations to account for human
rights violations in a factual and impartial manner. With the exception of the
upr, the toolbox available to the Council remains more or less the same as at
the time of the Commission. However they acknowledge that the level of
politicization on these issues is still extremely high and there is room for
improvement in this regard: They suggest the following: take full advantage of
discussion opportunities, including inter-sessional briefings, special s ittings
during sessions, and presidential declarations and fact-finding m
issions on
behalf of the Council. Visits by the President alone or together with his Bureau
could be added as a useful mechanism to the tool-box of the Council. Reference
is made to visits by former Presidents to Brazil or Bahrain as well as visits of
the Bureau of the former Commission on Human Rights to Cuba. Foster repre
sentation at special sessions from experts, other agencies, and civil society.
One should accord fair attention to these arguments. At the end of the day,
however, a fundamental policy issue remains: can the Council remain credible
unless it is ready to take a principled position when countries are accused of
gross violations of human rights? We think not and that the public will judge
the Council harshly for not being ready to be forthright against gross violations
of human rights. The standard set by the General Assembly in its resolution
34/179 must be applicable to the Council and the General Assembly should
reiterate its resolution and call on the Council to abide by it.

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The Council is clearly having problems in discharging the responsibility to

protect. There are, however, some strands in its practice that represent building blocks to a future policy in this area and we review them next.
A
Normative Protection
The Human Rights Council has taken forward the standard-setting role of its predecessor and has so far contributed a fair set of new standards, including the following: the International Convention for the Protection of all Persons from Enforced
Disappearances (prepared during the time of the former Commission); the declaration on the rights of indigenous peoples (prepared during the time of the former
Commission); the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights (started during the time of the former Commission but
brought to conclusion with significant negotiations in the Council); the Optional
Protocol to the Convention on the Rights of the Child; the convention on disabled
persons, un guidelines for alternative care for children (under preparation); the
declaration on. human rights education and training (6/10). The Council has also
called for complementary standards to reinforce the Convention on the Elimination
of all Forms of Racial Discrimination ( resolution 6/21)
The protection approaches in these new instruments are basically a continuation of patterns set earlier in the human rights programme and one
cannot say that the Council has introduced any particularly innovative protection concept. However, it has been in existence for barely a decade and it is
already significant that it has continued this standard-setting activity. In time,
with changed circumstances, one would be able to judge whether it is able to
enhance the protection concept through standard-setting.
B
Structural Protection
It would probably be accurate to say that the strongest contribution of the
Human Rights Council to protection so far has been in the area of what we
would term structural protection, namely highlighting structural international
factors having an impact, actual or potential, on the universal realisation of
human rights. The Council, however, has been less willing to deal with structural factors impeding protection within particular Member States of the
United Nations, where the real challenges of human rights protection exist.
However, it has dealt with this issue generically.
At its eleventh session, the Council reaffirmed that the peoples of our planet
have a sacred right to peace and also reaffirmed that the preservation of the
right of peoples to peace and the promotion of its implementation constitute
a fundamental obligation of all States. It stressed the importance of peace for
the promotion and protection of all human rights for all.

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The Council further stressed that the deep fault line that divides human
society between the rich and the poor and the ever-increasing gap between the
developed and developing worlds posed a major threat to global prosperity,
peace, human rights, security and stability. The Council added that that peace
and security, development and human rights were the pillars of the United
Nations system and the foundations for collective security and well-being. It
emphasized that ensuring the exercise of the right of peoples to peace and its
promotion demand that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use
or threat of use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United
Nations
The Council affirmed that all States should promote the establishment,
maintenance and strengthening of international peace and security and an
international system based on respect for the Principles enshrined in the
Charter and the promotion of all human rights and fundamental freedoms,
including the right to development and the right of peoples to self-determination.
It urged all States to respect and to put into practice the Principles and Purposes
of the Charter in their relations with all other States, irrespective of their political,
economic or social systems, or of their size, geographical location or level of
economic development. It reaffirmed the duty of all States, in accordance with
the Principles of the Charter, to use peaceful means to settle any dispute to
which they are parties and the continuance of which is likely to endanger the
maintenance of international peace and security, and encourages States to
settle their disputes as early as possible, as an important contribution to the
promotion and protection of all human rights of everyone and all peoples;. It
underlined the vital importance of education for peace as a tool to foster the
realization of the right of peoples to peace, and encourages States, United
Nations specialized agencies and intergovernmental and non-governmental
organizations to contribute actively to this endeavour;
Structural Measures at the National Level: Human Rights
Voluntary Goals
In resolution No. 12, adopted without a vote at its ninth session,320 the
Human Rights Council encouraged States to accomplish progressively a set
of human rights voluntary goals that included the following: Universal ratification of the core international human rights instruments; Strengthening
of the legal, institutional and policy framework at the national level in order

320 Resolution 9/12, adopted without a vote on 24 September, 2008.

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to ensure the promotion and protection of all human rights; Establishment

of human rights national institutions; Elaboration of national human rights
programmes and plans of action; Adoption and implementation of programmes of human rights education; Strengthening national capacity to
fight hunger and poverty.
At its eleventh session, the Council called upon States to enact and, where
necessary, reinforce or amend domestic legislation, including measures to
enhance the protection of victims, to investigate, prosecute, punish and redress
the wrongs done to women and girls subjected to any form of violence, whether
in the home, the workplace, the community or society, in custody or in situations of armed conflict, to ensure that such legislation conforms with relevant
international human rights instruments and international humanitarian law,
to abolish existing laws, regulations, customs and practices which constitute
discrimination against women, to remove gender bias in the administration of
justice, and to take action to investigate and punish persons who perpetrate
acts of violence against women and girls.
Resolutions of the Council on structural issues have been passed on topics
such as climate change; access to water; democracy; the right to development;
economic, social and cultural rights; international peace and security; the
enhancement of international cooperation; globalization; extreme poverty;
racism; the integrity of the judicial system; the right to housing; the right to
health; freedom of religion or belief, hiv/Aids; foreign debt.
D
Anticipatory and Preventive Protection
As discussed in Chapter VIII above, the Council has put down some initial
building blocks on preventive protection.
(a)
Combatting Impunity as a Preventive Strategy
In resolution No. 9 adopted at its ninth session on the protection of the human
rights of civilians in armed conflict, the Council, called upon all States to
respect the human rights of civilians in armed conflicts and stressed the importance of combating impunity in order to prevent violations of international
human rights law and international humanitarian law against civilians in
armed conflicts, and urged States, in accordance with their international obligations, to bring perpetrators of such crimes to justice.
(b)
Preventable maternal mortality and morbidity
In resolution 11/8; para. 2: the Council recognized that most instances of maternal mortality and morbidity are preventable and that preventable maternal
mortality and morbidity is a health, development and human rights challenge

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that also requires the effective promotion and protection of the human rights
of women and girls, in particular their right to life, to be equal in dignity, to
education, to be free to seek, receive and impart information, to enjoy the benefits of scientific progress, to freedom from discrimination, and to enjoy the
highest attainable standard of physical and mental health, including sexual
and reproductive health.
At its eleventh session, the Council affirmed that it was essential to place the
protection of human rights at the centre of measures taken to prevent and end
trafficking in persons, and to protect, assist and provide access to adequate
redress to victims, including the possibility of obtaining compensation from
the perpetrators. The Council has also adopted resolutions on the role of
human rights in the context of counter-terrorism strategies.
E
Mitigatory and Curative Protection
The Council has put down exploratory building blocks on mitigatory
protection.
(a)
Protection of the human rights of civilians in armed conflict
In resolution No. 9 adopted at its ninth session on the protection of the human
rights of civilians in armed conflict, the Council, acknowledging that human rights
law and international humanitarian law are complementary and mutually
reinforcing, expressed deep concern at the violation of human rights d uring
armed conflicts, and of international humanitarian law, which undermined the
protection of civilians in armed conflicts. It called upon all States to respect the
human rights of civilians in armed conflicts and stressed the importance of combating impunity in order to prevent violations of international human rights law
and international humanitarian law against civilians in armed conflicts, and urged
States, in accordance with their international obligations, to bring perpetrators of
such crimes to justice.
(b)
The right to food
In a resolution that it adopted at its seventh special session, which dealt with
the world food crisis in 2008, the Council expressed grave concern at the worsening food crisis which, in its assessment, seriously undermined the realization of the right to food for all. It called upon States, individually and through
international cooperation and assistance, relevant multilateral institutions
and other relevant stakeholders, to take all necessary measures to ensure the
realization of the right to food as an essential human rights objective, and to
consider reviewing any policy or measure which could have a negative impact
on the realization of the right to food, particularly the right of everyone to be

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free from hunger, before instituting such a policy or measure. The Council
stressed that States have a primary obligation to make their best efforts to meet
the vital food needs of their populations, especially of the vulnerable groups
and households.321
The Council resolved to address, in accordance with its mandate established
by the General Assembly in its resolution 60/251, systematic and gross violations of the human rights of civilians in armed conflicts. Other resolutions of
the Council have addressed counter terrorism; the arbitrary deprivation of
nationality; internally displaced persons and country situations.
In the case of Mali, for example, the Council condemned the human rights
violations and other acts of violence committed in northern Mali, in particular
by the rebels, terrorist groups and other organized transnational crime networks, including the violence perpetrated against women and children, the
killings, hostage-takings, pillaging, theft and destruction of religious and cultural sites, as well as the recruitment of child soldiers, and calls for the perpetrators of these acts to be brought to justice.322
In the case of Eritrea the Council expressed its deep concern at the
ongoing reports of grave violations of human rights by the Eritrean authorities against their own population and fellow citizens, including violations
of civil and political rights, as well as economic, social and cultural rights,
and the alarming number of civilians fleeing Eritrea as a result of those
violations.323
In the case of Cote dIvoire, the Council took note of the establishment
of a National Commission of Inquiry to investigate the facts and circumstances surrounding the allegations of serious abuses and human rights violations in Cote dIvoire following the presidential election of 28 November
2010, which should address the causes of violence and ensure equity in the
justice system for all Ivorians affected by the aforementioned human rights
violations.324
F
Remedial and Compensatory Protection
The Council has also put down some initial building blocks on remedial and
compensatory protection.

321 Resolution S-7/1, The negative impact of the worsening of the world food crisis on the
realization of the right to food for all, adopted without a vote on 22 May, 2008.
322 Resolution 20/17, para.2.
323 Resolution 20/20, preamble.
324 Resolution 20/19, para. 5.

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(a)
Right to truth
In resolution No 11, on the right to truth, adopted at its ninth session, the
Council recognized the importance of respecting and ensuring the right to
the truth so as to contribute to ending impunity and to promote and protect human rights. It encouraged States to consider establishing specific
judicial mechanisms and, where appropriate, truth and reconciliation
commissions to complement the justice system, to investigate and address
gross violations of human rights and serious violations of international
humanitarian law.
(b)
Transitional justice
In resolution No. 10, on transitional justice, adopted without a vote at its ninth
session, the Council welcomed the importance and urgency of national and
international efforts to restore justice and the rule of law in conflict and postconflict situations and, where relevant, in the context of transitional processes.
It underlined the need for the rights of both victims and accused persons to be
respected, in accordance with international standards, with particular attention paid to those most affected by conflicts and the breakdown of the rule of
law, among them women, children, migrants, refugees, persons with disabilities
and persons belonging to minorities and indigenous peoples, and to ensure
that specific measures are taken for their free participation and protection and
for the sustainable return of refugees and internally displaced persons in safety
and dignity.325
Conclusion
The Human Rights Councils failure to discharge its responsibility to protect
is its Achilles heel. The majority in the Council has opted for dialogue and
cooperation instead of condemnatory actions against Governments guilty
of committing gross violations of human rights (except in respect of Israel).
This is a fundamental problem that will bring the Council to grief unless it
is able to find a way of bridging dialogue and cooperation with principled
commitment against gross violators of human rights wherever they may
take place.
One option for dealing with this problem could be to call in aid the model of
a non-compliance procedure under the 1987 Montreal Protocol on Substances
325 Resolution 9/10, Human rights and transitional justice, adopted without a vote on 24
September, 2008.

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that Deplete the Ozone Layer.326 In accordance with Article 8 of the Montreal
Protocol, the Meeting of the Parties decided in 1990 to establish a non-compliance
procedure to complement the traditional mechanism for dispute settlement
(icj adjudication, arbitration, conciliation). The procedure provides for an
Implementation Committee consisting of 10 state representatives elected by
the Meeting of the Parties for two consecutive two-year terms on the basis of
equitable geographical distribution.
The Committee is entrusted with the task of monitoring compliance of the
states parties with their obligations under the Protocol and is assisted by a
Secretariat. As presented by Professor Sands and his colleagues, the non-
compliance procedure is largely non-confrontational and aimed at securing an
amicable settlement and facilitating compliance. To this end, its meetings
involve not only representatives of the party or parties concerned, but also relevant sources of financial and technical assistance, including the Multilateral
Fund of the Montreal Protocol and the Global Environment Facility.
Any party to the Protocol may submit to the Secretariat its reservations
regarding the implementation of the Protocol by another state Party. The
Secretariat will then invite the party concerned to reply (within three
months). The complaint and the reply, and supporting information, are then
referred to the Implementation Committee. A case can also be referred to
the Committee by the Secretariat, acting on its own initiative (after giving an
opportunity to the state concerned to respond to the allegation), or by a state
party itself.
The Implementation Committee considers information brought before it
alleging failure on the part of states parties to comply with the Protocol. It may
request further information and undertake, with the consent of the state
concerned, on-site information gathering. The states parties to the dispute are
entitled to participate in the proceedings before the Committee.
The Implementation Committee is to try to find an amicable settlement of
the matter on the basis of respect for the provisions of the Montreal Protocol.
The Committee submits its recommendations, which may include the identification of the facts and causes relating to individual cases of non-compliance
and steps that the party concerned should take in order to bring itself into
compliance on the matter in the form of a report presented to the Meeting of
the Parties. The reports of the Implementation Committee are public (except
parts containing confidential information). The Meeting of the Parties may
326 See on this, P. Sands, R. Mackenzie and Y. Shany (Eds.), Manual on International Courts
and Tribunals. Tottel Publishing, Haywards Heath 2006, Chapter 28, Non-compliance
procedure under the Montreal Protocol on Substances that Deplete the Ozone Layer.

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decide after receiving the report of the Committee to take steps to ensure
compliance with the Protocol. Such steps can include provision of special
assistance to the non-complying state, issuing of cautions and suspension of
rights and privileges under the Protocol.
The Implementation Committee gives primary focus to finding pragmatic
solutions to the problems of parties having difficulty in complying with their
commitments. One could easily envisage an Implementation Committee,
adapted to the circumstances of the Human Rights Council, that would be
mandated to deal with allegations of gross violations of human rights brought
by one or more member of the Council against any other State. Its rules of
procedure would take account of the policy thrusts in the Council but its
essential rationale would be to try to bring States encountering gross violations
of human rights back into compliance with international human rights law.
At the end of this chapter we must return to the question posed at the outset: to what extent can one say that the Human Rights Council is actually
engaging in protection. On a scale of one to ten we would say three. The
Council is doing various things to encourage promotion, prevention, and protection. But, in the face of egregious violations of human rights it practices
dialogue and cooperation. It has begun to put down some markers on prevention but does very little prevention in practice. It responds to some situations
of gross violations of human rights and not to others. Even when it does, its
actions are heavily contested from within the membership. It often applies different weights and measures when assessing situations. ngos are cramped in
the time allocated to them to expose violations and are often obstructed from
doing so. Protection must be principled. In the Council it is not. Rather, it is
political. Politicking is the domineering hand when it comes to the delivery, or
rather, mostly no-delivery, of protection.

chapter XII

Justice
Introduction
Justice is the raison dtre of human rights. It should therefore be the very
essence of the Human Rights Council. But there is a lot of politicking in the
Council. What can one make of the role of justice in the Council in these circumstances? The answer is probably five-fold: first, the uns Basic Principles
and Guidelines on Remedies and Reparations have so far had little practical
application inside the Council. The broad thrust of the Council, through its
promotional and standard-setting activities, is in the direction of aspirational
justice, meaning that the Council professedly strives for a fairer world. In postviolations situations, the Council has a distinctly chequered record. It has
sought to advocate the pursuit of truth about violations that have taken place
in post-conflict situations: the Council advocates and has been developing a
concept of transitional justice. In what should be its protection role it sometimes acts in a principled manner while in others it is often an organ of expediency or crass politics; and in respect of some situations that it deals with it
might occasionally call for compensatory justice for victims. In this chapter we
shall seek to touch upon these five aspects of the justice issue in the Council.
I

un Basic Principles and Guidelines on Remedy and Reparation

The remedy and reparation ideas affirm that victims of violations of human
rights are entitled to be compensated for their pain and suffering if the circumstances make this possible. The former chr adopted, in 2005, after years of
study by independent experts and governmental comments, a set of Basic
Principles and Guidelines on the right to a remedy and reparation for victims
of gross violations of international human rights law and serious violations of
international humanitarian law.327 The document was subsequently endorsed
by the ecosoc and adopted by the United Nations GA.328 The principles may
be far from application in practice but they are vital to the attainment of j ustice
in the future.
327 Commission resolution 2000/35, adopted by 40 votes to none with 13 abstentions.
328 GA resolution 60/147.

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The Commission recommended that states take the Basic Principles and
Guidelines into account, promote respect of them and bring them to the attention of members of the executive bodies of Government, in particular law
enforcement officials and military and security forces, legislative bodies, the
judiciary, victims and their representatives, human rights defenders and lawyers, the media and the public in general;
The Commission recalled that the Rome Statute of the icc required the
establishment of principles relating to reparation to, or in respect of, victims,
including restitution, compensation and rehabilitation, called for the establishment of a trust fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims, and mandated the Court
to protect the safety, physical and psychological well-being, dignity and privacy of victims and to permit the participation of victims at all stages of the
proceedings determined to be appropriate by the Court.
The Commission affirmed that the Principles and Guidelines were directed
at gross violations of international human rights law and serious violations of
international humanitarian law which, by their very grave nature, constituted
an affront to human dignity. It recalled that international law contained the
obligation to prosecute perpetrators of certain international crimes in accordance with international obligations of states and the requirements of national
law or as provided for in the applicable statutes of international judicial organs,
and that the duty to prosecute reinforces the international legal obligations to
be carried out in accordance with national legal requirements and procedures
and supports the concept of complementarity,
The Commission declared its conviction that, in adopting a victim-oriented
perspective, the international community affirmed its human solidarity with
victims of violations of international law, including violations of international
human rights law and international humanitarian law, as well as with humanity at large, in accordance with the following Basic Principles and Guidelines.
The Basic Principles and Guidelines, as eventually adopted by the GA, contained thirteen chapters with core provisions of international human rights
law. Because of the clarity and firmness of the document, we summarize key
provisions below. The document is a magisterial summary of the contemporary international law on human rights generally and of the ideas of justice,
redress and reparation in particular.
The Basic Principles and Guidelines (bpg) recall that the obligation to
respect, ensure respect for, and implement international human rights law and
international humanitarian law as provided for under the respective bodies of
law emanate from: treaties to which a state is a party; customary international
law; or the domestic law of each state. The bpg urges that if they have not

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already done so, states shall, as required under international law, ensure that
their domestic law is consistent with their international legal obligations by:
(a) Incorporating norms of international human rights law and international
humanitarian law into their domestic law, or otherwise implementing them in
their domestic legal system; (b) Adopting appropriate and effective legislative
and administrative procedures and other appropriate measures that provide
fair, effective and prompt access to justice; (c) Making available adequate,
effective, prompt, and appropriate remedies, including reparation, as defined
below; and (d) Ensuring that their domestic law provides at least the same
level of protection for victims as required by their international obligations.
The bpg specifies that the obligation to respect, ensure respect for and
implement international human rights law and international humanitarian
law as provided for under the respective bodies of law, includes, inter alia, the
duty to: (a) Take appropriate legislative and administrative and other appropriate measures to prevent violations; (b) Investigate violations effectively,
promptly, thoroughly and impartially and, where appropriate, take action
against those allegedly responsible in accordance with domestic and international law; (c) Provide those who claim to be victims of a human rights or
humanitarian law violation with equal and effective access to justice, as
described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including
reparation, as described below.
The bpg underlines that in cases of gross violations of international human
rights law and serious violations of international humanitarian law constituting crimes under international law, states have the duty to investigate and, if
there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her
or him. Moreover, in these cases, states should, in accordance with international law, cooperate with one another and assist international judicial organs
competent in the investigation and prosecution of these violations.
To that end, where so provided in an applicable treaty or under other international law obligations, states shall incorporate or otherwise implement
within their domestic law appropriate provisions for universal jurisdiction.
Moreover, where it is so provided for in an applicable treaty or other international legal obligations, states should facilitate extradition or surrender offenders to other states and to appropriate international judicial bodies and provide
judicial assistance and other forms of cooperation in the pursuit of international justice, including assistance to, and protection of, victims and witnesses,
consistent with international human rights legal standards and subject to
international legal requirements such as those relating to the p
rohibition of

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torture and other forms of cruel, inhuman or degrading treatment or

punishment.
The bpg specifies that where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not
apply to gross violations of international human rights law and serious violations of international humanitarian law which constitute crimes under international law. Domestic statutes of limitations for other types of violations that
do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly
restrictive.
The bpg defines victims as persons who individually or collectively suffered
harm, including physical or mental injury, emotional suffering, economic loss
or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in
accordance with domestic law, the term victim also includes the immediate
family or dependants of the direct victim and persons who have suffered harm
in intervening to assist victims in distress or to prevent victimization. A person
shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the
familial relationship between the perpetrator and the victim.
The bpg specifies that victims should be treated with humanity and respect
for their dignity and human rights, and appropriate measures should be taken
to ensure their safety, physical and psychological well-being and privacy, as
well as those of their families. The state should ensure that its domestic laws,
to the extent possible, provide that a victim who has suffered violence or
trauma should benefit from special consideration and care to avoid his or her
re-traumatization in the course of legal and administrative procedures
designed to provide justice and reparation.
The bpg includes as remedies for gross violations of international human
rights law and serious violations of international humanitarian law the victims
right to the following as provided for under international law: equal and effective access to justice; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation
mechanisms.
The bpg registers that a victim of a gross violation of international human
rights law or of a serious violation of international humanitarian law shall
have equal access to an effective judicial remedy as provided for under international law. Other remedies available to the victim include access to administrative and other bodies, as well as mechanisms, modalities and proceedings

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conducted in accordance with domestic law. Obligations arising under

international law to secure the right to access justice and fair and impartial
proceedings shall be reflected in domestic laws. To that end, states should: (a)
Disseminate, through public and private mechanisms, information about all
available remedies for gross violations of international human rights law and
serious violations of international humanitarian law; (b) Take measures to
minimize the inconvenience to victims and their representatives, protect
against unlawful interference with their privacy as appropriate and ensure
their safety from intimidation and retaliation, as well as that of their families
and witnesses, before, during and after judicial, administrative, or other proceedings that affect the interests of victims; (c) Provide proper assistance to
victims seeking access to justice; (d) Make available all appropriate legal, diplomatic and consular means to ensure that victims can exercise their rights to
remedy for gross violations of international human rights law or serious violations of international humanitarian law.
In addition to individual access to justice, states should endeavour to
develop procedures to allow groups of victims to present claims for reparation
and to receive reparation, as appropriate. An adequate, effective and prompt
remedy for gross violations of international human rights law or serious violations of international humanitarian law should include all available and appropriate international processes in which a person may have legal standing and
should be without prejudice to any other domestic remedies.
The bpg stipulates that adequate, effective and prompt reparation is
intended to promote justice by redressing gross violations of international
human rights law or serious violations of international humanitarian law.
Reparation should be proportional to the gravity of the violations and the
harm suffered. In accordance with its domestic laws and international legal
obligations, a state shall provide reparation to victims for acts or omissions
which can be attributed to the state and constitute gross violations of international human rights law or serious violations of international humanitarian
law. In cases where a person, a legal person, or other entity is found liable for
reparation to a victim, such party should provide reparation to the victim or
compensate the state if the state has already provided reparation to the
victim.
States should endeavour to establish national programs for reparation and
other assistance to victims in the event that the party liable for the harm suffered is unable or unwilling to meet their obligations. States shall, with respect
to claims by victims, enforce domestic judgments for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid
foreign legal judgments for reparation in accordance with domestic law and

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international legal obligations. To that end, states should provide under their
domestic laws effective mechanisms for the enforcement of reparation
judgments.
In accordance with domestic law and international law, and taking account
of individual circumstances, victims of gross violations of international human
rights law and serious violations of international humanitarian law should, as
appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out
in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Restitution should, whenever possible, restore the victim to the original
situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes,
as appropriate: restoration of liberty, enjoyment of human rights, identity,
family life and citizenship, return to ones place of residence, restoration of
employment and return of property.
Compensation should be provided for any economically assessable damage,
as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations of international human
rights law and serious violations of international humanitarian law, such as:
physical or mental harm; lost opportunities, including employment, education
and social benefits; material damages and loss of earnings, including loss of
earning potential; moral damage; costs required for legal or expert assistance,
medicine and medical services, and psychological and social services.
Rehabilitation should include medical and psychological care as well as
legal and social services. Satisfaction should include, where applicable, any or
all of the following: (a) Effective measures aimed at the cessation of continuing violations; (b) Verification of the facts and full and public disclosure of the
truth to the extent that such disclosure does not cause further harm or
threaten the safety and interests of the victim, the victims relatives, witnesses, or persons who have intervened to assist the victim or prevent the
occurrence of further violations; (c) The search for the whereabouts of the
disappeared, for the identities of the children abducted, and for the bodies of
those killed, and assistance in the recovery, identification and reburial of the
bodies in accordance with the expressed or presumed wish of the victims, or
the cultural practices of the families and communities; (d) An official declaration or a judicial decision restoring the dignity, the reputation and the
rights of the victim and of persons closely connected with the victim; (e)
Public apology, including acknowledgement of the facts and acceptance of
responsibility; (f) Judicial and administrative sanctions against persons liable

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for the violations; (g) Commemorations and tributes to the victims; (h)
Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in
educational material at all levels.
Guarantees of non-repetition should include, where applicable, any or all of
the following measures, which will also contribute to prevention: (a) Ensuring
effective civilian control of military and security forces; (b) Ensuring that all
civilian and military proceedings abide by international standards of due process, fairness and impartiality; (c) Strengthening the independence of the judiciary; (d) Protecting persons in the legal, medical and health-care professions,
the media and other related professions, and human rights defenders; (e)
Providing, on a priority and continued basis, human rights and international
humanitarian law education to all sectors of society and training for law
enforcement officials as well as military and security forces; (f) Promoting the
observance of codes of conduct and ethical norms, in particular international
standards, by public servants, including law enforcement, correctional, media,
medical, psychological, social service and military personnel, as well as by economic enterprises; (g) Promoting mechanisms for preventing and monitoring
social conflicts and their resolution; (h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and
serious violations of international humanitarian law.
The bpg calls upon states to develop means of informing the general public
and, in particular, victims of gross violations of international human rights
law and serious violations of international humanitarian law of the rights and
remedies addressed by these Principles and Guidelines and of all available
legal, medical, psychological, social, administrative and all other services to
which victims may have a right of access. Moreover, victims and their representatives should be entitled to seek and obtain information on the causes
leading to their victimization and on the causes and conditions pertaining to
the gross violations of international human rights law and serious violations
of international humanitarian law and to learn the truth in regard to these
violations.
The bpg underlines that the application and interpretation of its provisions
must be consistent with international human rights law and international
humanitarian law and be without any discrimination of any kind or ground,
without exception.
The ideas of justice, redress and reparation buttress the whole human rights
movement and should, in the future, influence the Human Rights Council in
its day to day work. In its first ten years, however, the Council has mostly
operated at the level of aspirational justice.

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Aspirational Justice

In general terms the Council has emphasized that justice, peace, democracy
and development are mutually reinforcing imperatives.329 It has underlined
the importance and urgency of national and international efforts to end
human rights violations, restore justice and the rule of law in conflict and postconflict situations and, where relevant, in the context of transitional processes.330 The Council, without consensus, has appointed a Special Rapporteur on
the establishment of a more democratic and equitable international order
who has submitted a number of informative reports under this rubric to the
Council and the General Assembly.331
III

The Right to the Truth and Transitional Justice

In a resolution on the Right to the Truth, the Council has underlined the importance of respecting and ensuring the right to the truth so as to contribute to
ending impunity and to promote and protect human rights.332
In resolution 15 adopted without a vote at its twenty-first session, the
Council stressed the importance of a comprehensive process of national
consultation, particularly with those affected by human rights violations, in
contributing to a holistic transitional justice strategy that takes into account
the particular circumstances of every situation and is in conformity with
human rights. It has emphasized the importance of a comprehensive
approach to transitional justice incorporating the full range of judicial and
non-judicial measures, including, among others, individual prosecutions,
reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combination thereof, in
order to, inter alia, ensure accountability, serve justice, provide remedies to
victims, promote healing and reconciliation, establish independent oversight of the security system and restore confidence in the institutions of the
State and promote the rule of law in accordance with international human
rights law.
329 Resolution 21/15, para. 11.
330 Ibid, para. 13.
331 Special Rapporteur Alfred Maurice de Zayas has, in a scholarly manner, sought to ventilate various issues relevant to the establishment of a more democratic and equitable
international order.
332 Resolution 21/7.

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Justice

It underlined that when designing a transitional justice strategy, the specific

context of each situation has to be taken into account with a view to preventing the recurrence of crises and future violations of human rights, and to
ensure social cohesion, institution-building, ownership and inclusiveness at
the national and local levels. It stressed the need, within a sustainable transitional justice strategy, to develop national prosecutorial capacities that are
based on a clear commitment to combat impunity, to take into account the
victims perspective and to ensure compliance with human rights obligations
concerning fair trials.
The Council reaffirmed the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human
rights and serious violations of international humanitarian law constituting
crimes under international law, with a view to ending impunity. It called upon
States, in particular, to comply with their obligations under applicable international law when prosecuting persons for gender-based and sexual violence, to
ensure that all victims of such violence have equal access to justice, and
stressed the importance of ending impunity for such acts as part of a comprehensive approach to seeking truth, justice, reparation and guarantee of
non-recurrence.
The Council reaffirmed that remedies for gross violations of international
human rights law and serious violations of international humanitarian law
include, as provided for under international law, the victims right to (a) Equal
and effective access to justice; (b) Adequate, effective and prompt reparation
for harm suffered; (c) Access to relevant information concerning violations
and reparation mechanisms.
The Council emphasized that a human rights based approach should be
incorporated into vetting processes as part of institutional reform aiming at
preventing the recurrence of human rights violations and at building confidence in State institutions.
IV

Justice for Victims

There have been occasions when the Council has pronounced in favour of justice for the victims of gross violations of human rights. In a resolution adopted
at its twenty first session on the Situation of human rights in the Republic of
Mali the Council condemned the excesses and abuses committed in the
Republic, particularly in the north of the country, by, among others, rebels, terrorist groups and other organized transnational crime networks, and including
violence against women and children, killings, hostage-taking, pillaging, theft,

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the destruction of cultural and religious sites and the recruitment of child
soldiers, as well as all other human rights violations.333
In another resolution adopted at the same session on the situation of human
rights in Somalia, the Council strongly condemned the grave and systematic
human rights abuses and violations perpetrated against the civilian population, including women, children, journalists and human rights defenders, in
particular by Al-Shabaab and its affiliates, and called for their immediate cessation. The Council emphasized the need to hold perpetrators of human rights
violations and abuses accountable and to bring them to justice.334
The Councils handling of the situation of human rights in the Democratic
Peoples Republic of Korea is instructive of the crass politics inside the Council. In
its resolution 22/13, adopted on 21 March 2013, the Council had established a
Commission of inquiry on human rights in the Democratic Peoples Republic of
Korea and mandated it to investigate the systematic, widespread and grave violations of human rights in the State, with a view to ensuring full accountability, in
particular for violations that may amount to crimes against humanity. The
Commission was chaired by Judge Michael Kirby of Australia and the other two
members were Ms Sonja Biserko of Serbia and Mr Marzuki Darusman of
Indonesia. Mr Darusman was also Special Rapporteur of the Council on the dprk.
The Government of the dprk did not cooperate with the Commission.
Owing to its lack of access to the dprk, the commission obtained first-hand
testimony through public hearings that were transparent, observed due process and protected victims and witnesses. More than 80 witnesses and experts
testified publicly and provided information of great specificity, detail and relevance, in ways that often required a significant degree of courage. The
Commission and its Secretariat conducted more than 240 confidential interviews with victims and witnesses. The Commission made a call for written submissions to all States Members of the United Nations and relevant stakeholders.
Eighty such submissions were received. The Commission conducted official
visits to five countries and sought access to China in order to conduct inquiries
and to consult with officials of the Government and local experts. Its request
was declined.
In assessing the situation of human rights in the dprk the commission
relied on the binding legal obligations that the country had voluntarily
assumed as a State Party to the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights,
the Convention on the Rights of the Child and the Convention on the
333 Resolution 21/25.
334 Resolution 21/31.

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Elimination of all Forms of Discrimination against Women. Matters related to

crimes against humanity were assessed on the basis of definitions set out by
customary international criminal law and in the Rome Statute of the
International Criminal Court.
The commission based its findings on a reasonable grounds standard of
proof: It concluded that there are reasonable grounds establishing that an
incident or pattern of conduct had occurred whenever it was satisfied that it
had obtained a reliable body of information consistent with other material,
based on which a reasonable and ordinarily prudent person would have reason
to believe that such an incident or pattern of conduct had occurred.
The Commission, in preparing its report, considered violations of the right
to food, violations associated with prison camps, torture and inhuman treatment, arbitrary arrest and detention, discrimination, violations of the freedom
of expression, violations of the right to life, violations of the freedom of movement, and enforced disappearances, including in the form of abductions of
nationals of other States. The Commission presented its report to the Council
at its 25th session in 2014.335 Prior to this the Commission had shared its
detailed findings with the Government of the dprk and wrote to the Supreme
Leader of the country drawing attention to the principle of command and
superior responsibility under international criminal law. It urged the Supreme
Leader to prevent and suppress crimes against humanity, and to ensure that
perpetrators were prosecuted and brought to justice.
The commission carried out its inquiry with a view to ensuring full accountability, in particular where violations might amount to crimes against humanity. The commission stated in its report that it was neither a judicial body nor a
prosecutor. It could not make final determinations of individual criminal
responsibility. It could, however, determine whether its findings constituted
reasonable grounds establishing that crimes against humanity had been committed so as to merit a criminal investigation by a competent national or international organ of justice.336 According to that standard, the commission found
that the body of testimony and other information it received had established
that crimes against humanity had been committed in the dprk pursuant to
policies established at the highest level of the State.
In para. 21 of its report the commission stated the following:
The commission finds that systematic, widespread and gross violations
have been and are being committed by the Democratic Peoples Republic
335 A/HRC/25/63.
336 Para. 74.

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of Korea. In many instances, the violations found entailed crimes against

humanity based on State policies. The main perpetrators are officials of
the State Security Department, the Ministry of Peoples Security, the
Korean Peoples Army, the Office of the Public Prosecutor, the judiciary
and the Workers Party of Korea, who are acting under the effective control of the central organs of the Workers Party of Korea, the National
Defence Commission and the Supreme Leader of the Democratic Peoples
Republic of Korea.
The Commission wrote to the Supreme Leader of the dprk in the following
terms:
The Commission wishes to draw to your attention that it will therefore
recommend that the United Nations refer the situation in the Democratic
Peoples Republic of Korea to the International Criminal Court to render
accountable all those, including possibly yourself, who may be responsible for the crimes against humanity referred to in this letter and in the
Commissions report.337
How did the Human Rights Council deal with such a well-documented and
damning report? On 17 March, 2014, the Council held an interactive dialogue
with the Commission of Inquiry. Introducing the report to the Council, the
Chairperson, Justice Michael Kirby, told it that the Commission had found systematic, widespread and grave human rights violations occurring in the
Democratic Peoples Republic of Korea, and a disturbing array of crimes against
humanity. Those crimes arose from policies established at the highest level of
the State.
The gravity, scale, duration and nature of the unspeakable atrocities committed in the country revealed a totalitarian State that did not have any parallel
in the contemporary world. The rest of the world had ignored the evidence for
too long. What was important next was now the international community
would act on the report. He urged the Member States of the United Nations
and the international community to accept their responsibility to protect and
implement all the recommendations contained in the report addressed to
them, especially those related to accountability, including referral of the situation of the dprk to the International Criminal Court.
The representative of the dprk condemned and categorically rejected
the report, asserting that the socialist system of the dprk guaranteed
337 Annex i.

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human rights and fundamental freedoms for all, both legally and in
practice.
Several Government representatives expressed grave concern about the
findings of the Commission of Inquiry and urged the Government of the dprk
to take immediate steps to halt the violations and to implement the recommendations f the Commission. They also urged the international community
to use all the mechanisms at its disposal to ensure accountability for the crimes
against humanity found by the Commission of Inquiry, including referral of
the situation to the International Criminal Court.
The European Union expressed grave concern over the findings in the report
of serious violations of human rights in the dprk and urged the Government
to take immediate steps to halt those violations. It referred to the important
role of the International Criminal Court in tackling impunity for crimes against
humanity and supported the recommendation that the situation be referred to
the icc. Austria urged that the report be treated with the greatest urgency. The
international community should use all the mechanisms at its disposal to
ensure accountability for the crimes that had been committed, including referral of the situation to the International Criminal Court. Australia believed that
the report deserved the Security Councils consideration. France thanked the
Commission of Inquiry for the presentation and quality of the report. France
urged the dprk to immediately shut political prisoners camps and called
upon the dprk to put an end to all the violations. It urged that the report
deserved the attention of the Security Council. Several other governments
spoke in the same sense.
The representatives of some other Governments took the view that constructive dialogue should be the way to address human rights issues. The setting up of the Commission of Inquiry had been a mistake. Human rights should
not be used as a means of interfering in the internal affairs of States using
selective mechanisms and double standards to deal with human rights. The
Universal Periodic Review was the only forum to review the situation of human
rights of a country on an equal basis and should serve as the constructive
forum in this regard.
China took the position that constructive dialogue should be the way to
address human rights issues. The setting up of the Commission of Inquiry had
contravened this. The inability of the Commission to get the support and cooperation from the country concerned had made it impossible for the Commission
to conduct its work in an objective and impartial manner. Such an inquiry
could not be truly credible. Many recommendations were divorced from reality in the dprk. Cuba objected to the imposition of selective resolutions and
mandates against countries of the South, with clear political motivation and

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no real concern about the human rights situation. Cuba reiterated that
cooperative mechanisms, such as the Universal Periodic Review, were the ideal
methods to analyse the human rights situation in all countries. Belarus rejected
all country-specific procedures without the consent of the State. Syria reiterated its rejection of the use of human rights as a means of interfering in the
internal affairs of States using selective mechanisms and double standards to
deal with human rights.
Human Rights Watch, one of the ngos that participated in the discussion, told the Council that rarely was it confronted with a report like that of
the Commission on the situation in the dprk. The world could not remain
indifferent to the suffering of the people described in the report. The
United Nations Security Council must now act and protect the people in
the dprk.
Following these deliberations the Council showed its political colours. It
could not muster a resolution without a vote even after such a damning
report and adopted a strong but contested resolution, on a vote of 30 in
favour, 6 against, and 11 abstentions, condemning the violations that had
taken place and recommending that the un General Assembly request the
un Security Council to refer the situation to the International Criminal
Court.
At the same session, the Council had contested votes on resolutions dealing
with the situations in, among other places, Iran, Sri Lanka, Syria, where serious
violations of human rights were being seen in television screens the world
over. Politics trumped justice in these, as in other instances. It is this triumph
of politics over justice that defines the Council at the end of the day.
V

Compensatory Justice

Being, at base, a political organ, the Councils practice does not show much
evidence of activity in the area of compensatory justice.
Conclusion
It would probably be fair to conclude that the Council, so far, does not have a
pronounced justice concept but that it is inching its way towards one. Its
promotional and standard-setting activities are animated by sentiments of
aspirational justice, and it has begun to indicate the role of Truth and of
Transitional Justice. There are those who would say that its hand is heavy when

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267

condemning violations in some situations and more nuanced when dealing

with other situations. As a body that is, at base, a political body, it might take a
long time for it to develop a practice on issues of compensatory justice. It has
been firm and principled when dealing with some situations of gross violations of human rights such as those committed by isil and Al Shabaab. At the
end of the day, its justice role is expedient, often selective and crassly political.
It would behove the Council to strive to develop a stronger justice role.

Conclusion
This work has sought to trace the evolving law and policies of the Human
Rights Council and we have found that, while there is much controversy in and
around the Council, there is much of both. In seeking to identify the legal and
policy foundations of the Council it is hoped that its protection role can be
strengthened in the future.
We have seen that there is a commanding modern human rights law of the
Charter within which the Council must function and which the Council should
seek to uphold and strengthen. There is also institutional and procedural law
of the Council.
We have argued that key human rights norms are part of international constitutional law and that the Council must take this into account in its work. As
a body that is, at base, a political body, legal reasoning such as those about
international constitutional law have so far not found significant reflection in
the deliberations of the Council. But it is still a young body and there is time for
its evolution in this direction.
The Council has had to respond to security situations such as those
caused by terrorist groups in different parts of the world and its resolutions on
the Al Shabaab and isil groups were principled and forthright. isil, in particular, represented a frontal challenge to the validity of international human
rights norms.
The Council has been performing an important public policy role, alerting
the international community to new human rights challenges and calling for
the emplacement, within countries, of adequate and effective policies and institutions to give effect to international human rights norms. It is unclear to what
extent this public policy role is recognized in the international community and
this is an issue that well-wishers of the Council might wish to reflect upon.
We outlined the dimensions of the national responsibility to protect human
rights and examined the policies and practices of three leading emerging
countries, India, Brazil and South Africa (ibsa). We have seen these countries
striving to implement human rights against the background of extensive poverty. International cooperation under the Universal Periodic Review, in their
cases, and across the board, helps take forward the process of national implementation of international human rights norms.
We have seen that the Council continues to perform an important standardsetting role, on a case by case basis.
When it comes to the prevention of gross violations of human rights we
have seen that the Council has been trying to encourage Governments to

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269

implement preventive strategies while the Council itself has, so far, played
more of an exhortatory than an operational role when it comes to prevention.
There is significant fact-finding activity within the framework of the Council
and, at the end of the day, it is one of the strongest roles the Council can play.
Often, faced with situations of shocking violations of human rights, the Council
can lend a voice to the victims, seek to record their plight, and thereby lay the
foundations for prosecution of the perpetrators if possible.
It follows from this that the Councils protection role is still an incipient one.
It has been putting down markers on protection and will hopefully develop
these over time.
The Council, so far, does not have a pronounced justice concept or practice
but is inching its way with small steps. Its promotional and standard-setting
activities are animated by sentiments of aspirational justice, and it has begun
to indicate the role of Truth and of Transitional Justice. Its justice practice is a
pragmatic and, at times, selective one. It would behove the Council to strive to
develop a stronger justice role faithful to the un General Assemblys Basic
Principles and Guidelines on remedies and reparations. The Council should, in
the future, be judged by how faithful it is to these principles and guidelines of
justice.

Appendix A

Resolution Adopted by the General Assembly on 15 March 2006

60/251. Human Rights Council

The General Assembly,

Reaffirming the purposes and principles contained in the Charter of the United
Nations, including developing friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, and achieving international cooperation in solving international problems of an economic, social, cultural
or humanitarian character and in promoting and encouraging respect for human
rights and fundamental freedoms for all,
Reaffirming also the Universal Declaration of Human Rights338 and the Vienna
Declaration and Programme of Action,339 and recalling the International Covenant on
Civil and Political Rights,340 the International Covenant on Economic, Social and
Cultural Rights341 and other human rights instruments,
Reaffirming further that all human rights are universal, indivisible, interrelated,
interdependent and mutually reinforcing, and that all human rights must be treated in
a fair and equal manner, on the same footing and with the same emphasis,
Reaffirming that, while the significance of national and regional particularities and
various historical, cultural and religious backgrounds must be borne in mind, all States,
regardless of their political, economic and cultural systems, have the duty to promote
and protect all human rights and fundamental freedoms,
Emphasizing the responsibilities of all States, in conformity with the Charter, to
respect human rights and fundamental freedoms for all, without distinction of any
kind as to race, colour, sex, language or religion, political or other opinion, national or
social origin, property, birth or other status,
Acknowledging that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and wellbeing, and recognizing that development, peace and security and human rights are
interlinked and mutually reinforcing,
Affirming the need for all States to continue international efforts to enhance dialogue and broaden understanding among civilizations, cultures and religions, and
emphasizing that States, regional organizations, non-governmental organizations,
338 Resolution 217 A (III).
339 A/CONF.157/24 (Part I), Chap. III.
340 See resolution 2200 A (XXI), annex.
341 Ibid.

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Appendix A

religious bodies and the media have an important role to play in promoting tolerance,
respect for and freedom of religion and belief,
Recognizing the work undertaken by the Commission on Human Rights and the
need to preserve and build on its achievements and to redress its shortcomings,
Recognizing also the importance of ensuring universality, objectivity and nonselectivity in the consideration of human rights issues, and the elimination of double
standards and politicization,
Recognizing further that the promotion and protection of human rights should be
based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for
the benefit of all human beings,
Acknowledging that non-governmental organizations play an important role at the
national, regional and international levels, in the promotion and protection of human
rights,
Reaffirming the commitment to strengthen the United Nations human rights
machinery, with the aim of ensuring effective enjoyment by all of all human rights,
civil, political, economic, social and cultural rights, including the right to development, and to that end, the resolve to create a Human Rights Council,
1

Decides to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly; the Assembly shall review the status of the Council within five
years;
Decides that the Council shall be responsible for 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;
Decides also that the Council should address situations of violations of human
rights, including gross and systematic violations, and make recommendations
thereon. It should also promote the effective coordination and the mainstreaming of human rights within the United Nations system;
Decides further that the work of the Council shall be guided by the principles of
universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and
protection of all human rights, civil, political, economic, social and cultural
rights, including the right to development;
Decides that the Council shall, inter alia:
(a) Promote human rights education and learning as well as advisory services,
technical assistance and capacity-building, to be provided in consultation
with and with the consent of Member States concerned;
(b) Serve as a forum for dialogue on thematic issues on all human rights;

Appendix A

273

(c) Make recommendations to the General Assembly for the further development of international law in the field of human rights;
(d) Promote the full implementation of human rights obligations undertaken
by States and follow-up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations
conferences and summits;
(e) Undertake a universal periodic review, based on objective and reliable
information, of the fulfilment 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 States; the review shall be a cooperative
mechanism, based on an interactive dialogue, with the full involvement of
the country concerned and with consideration given to its capacity-building
needs; such a mechanism shall complement and not duplicate the work of
treaty bodies; the Council shall develop the modalities and necessary time
allocation for the universal periodic review mechanism within one year
after the holding of its first session;
(f) Contribute, through dialogue and cooperation, towards the prevention of
human rights violations and respond promptly to human rights emergencies;
(g) Assume the role and responsibilities of the Commission on Human Rights
relating to the work of the Office of the United Nations High Commissioner for Human Rights, as decided by the General Assembly in its resolution 48/141 of 20 December 1993;
(h) Work in close cooperation in the field of human rights with Governments,
regional organizations, national human rights institutions and civil society;
(i) Make recommendations with regard to the promotion and protection of
human rights;
(j) Submit an annual report to the General Assembly;
Decides also that the Council shall assume, review and, where necessary,
improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights in order to maintain a system of special procedures, expert advice and a complaint procedure; the Council shall
complete this review within one year after the holding of its first session;
Decides further that the Council shall consist of forty-seven Member States,
which shall be elected directly and individually by secret ballot by the majority
of the members of the General Assembly; the membership shall be based on
equitable geographical distribution, and seats shall be distributed as follows
among regional groups: Group of African States, thirteen; Group of Asian States,
thirteen; Group of Eastern European States, six; Group of Latin American and

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10

11

12

13

14

Appendix A
Caribbean States, eight; and Group of Western European and other States, seven;
the members of the Council shall serve for a period of three years and shall not
be eligible for immediate re-election after two consecutive terms;
Decides that the membership in the Council shall be open to all States Members of the United Nations; when electing members of the Council, Member
States shall take into account the contribution of candidates to the promotion
and protection of human rights and their voluntary pledges and commitments
made thereto; the General Assembly, by a two-thirds majority of the members
present and voting, may suspend the rights of membership in the Council of a
member of the Council that commits gross and systematic violations of human
rights;
Decides also that members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate
with the Council and be reviewed under the universal periodic review mechanism during their term of membership;
Decides further that the Council shall meet regularly throughout the year and
schedule no fewer than three sessions per year, including a main session, for a
total duration of no less than ten weeks, and shall be able to hold special sessions, when needed, at the request of a member of the Council with the support
of one third of the membership of the Council;
Decides that the Council shall apply the rules of procedure established for committees of the General Assembly, as applicable, unless subsequently otherwise
decided by the Assembly or the Council, and also decides that the participation
of and consultation with observers, including States that are not members of the
Council, the specialized agencies, other intergovernmental organizations and
national human rights institutions, as well as non-governmental organizations,
shall be based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996 and practices observed by the Commission on Human
Rights, while ensuring the most effective contribution of these entities;
Decides also that the methods of work of the Council shall be transparent, fair
and impartial and shall enable genuine dialogue, be results-oriented, allow for
subsequent follow-up discussions to recommendations and their implementation and also allow for substantive interaction with special procedures and
mechanisms;
Recommends that the Economic and Social Council request the Commission on
Human Rights to conclude its work at its sixty-second session, and that it abolish
the Commission on 16 June 2006;
Decides to elect the new members of the Council; the terms of membership shall
be staggered, and such decision shall be taken for the first election by the drawing of lots, taking into consideration equitable geographical distribution;

Appendix A
15

16

275

Decides also that elections of the first members of the Council shall take place
on 9 May 2006, and that the first meeting of the Council shall be convened on 19
June 2006;
Decides further that the Council shall review its work and functioning five years
after its establishment and report to the General Assembly.
72nd plenary meeting
15 March 2006

Appendix B

5/2. Code of Conduct for Special Procedures Mandate-holders of

the Human Rights Council. A/HRC/RES/5/2

The Human Rights Council,

Guided by the aims and principles of the Charter of the United Nations and the
Universal Declaration of Human Rights and recognizing the ensuing obligations inter
alia of States to cooperate in promoting universal respect for human rights as enshrined
therein,
Recalling the Vienna Declaration and Programme of Action adopted on 25 June
1993 by the World Conference on Human Rights,
Recalling also that in resolution 60/251 of 15 March 2006, entitled Human Rights
Council, the General Assembly:
(a) Reaffirmed that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing and that all human rights must be
treated in a fair and equal manner on the same footing and with the same
emphasis;
(b) Acknowledged that peace and security, development and human rights are the
pillars of the United Nations system and that they are interlinked and mutually
reinforcing;
(c) Decided that members elected to the Council shall uphold the highest standards
in the promotion and protection of human rights and shall fully cooperate with
the Council;
(d) Stressed the importance of ensuring universality, objectivity and n
on-selectivity
in the consideration of human rights issues, and the elimination of double standards and politicization;
(e) Further recognized that the promotion and protection of human rights should
be based on the principles of cooperation and genuine dialogue and aimed at
strengthening the capacity of Member States to comply with their human rights
obligations for the benefit of all human beings;
(f) Decided that the work of the Council shall be guided by the principles of universality, impartiality, objectivity, and non-selectivity, constructive international
dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights,
including the right to development;
(g) Also decided that the methods of work of the Council shall be transparent, fair
and impartial and shall enable genuine dialogue, be results-oriented, allow for

Appendix B

277

subsequent follow-up discussions to recommendations and their implementation and also allow for substantive interaction with special p
rocedures and
mechanisms;
Underlining the centrality of the notions of impartiality and objectivity, as well as the
expertise of mandate-holders, within the context of special procedures, along with the
need to give the required degree of attention to all human rights violations, wherever
they may be taking place,
Bearing in mind that the efficiency of the system of special procedures should be
reinforced through the consolidation of the status of mandate-holders and the adoption of principles and regulations taking the specificities of their mandate into
consideration,
Considering that it is necessary to assist all stakeholders, including States, national
human rights institutions, non-governmental organizations and individuals, to better
understand and support the activities of mandate-holders,
Recalling Articles 100, 104, 105 of the Charter of the United Nations, section22 of
Article VI of the Convention on the Privileges and Immunities of the United Nations of
13 February 1946 and paragraph 6 of General Assembly resolution 60/251,
Noting decision 1/102 of 30 June 2006, in which the Council decided to extend
exceptionally for one year the mandates and mandate-holders of the special procedures of the Commission on Human Rights, of the Sub-Commission for the Promotion
and Protection of Human Rights as well as the procedure established pursuant to
Economic and Social Council resolution 1503 (XLVIII) of 27 May 1970,
Noting also decision 1/104 of 30 June 2006, in which the Council established the
Open-ended Intergovernmental Working Group entrusted with the task of formulating recommendations on the issue of the review and possibly the enhancement and
rationalization of all mandates, mechanisms, functions and responsibilities of the
Commission on Human Rights, in order to maintain a regime of special procedures in
accordance with paragraph 6 of General Assembly resolution 60/251,
Noting further resolution 2/1 of 27 November 2006, in which the Council requested
the Open-ended Intergovernmental Working Group to draft a code of conduct regulating the work of the special procedures,
Considering that this code of conduct is an integral part of the review, improvement and rationalization called for in General Assembly resolution 60/251 that, inter
alia, seeks to enhance the cooperation between Governments and mandate-holders
which is essential for the effective functioning of the system,
Considering also that such a code of conduct will strengthen the capacity of
mandate-holders to exercise their functions whilst enhancing their moral authority
and credibility and will require supportive action by other stakeholders, and in p
articular
by States,

278

Appendix B

Considering further that one should distinguish between, on the one hand, the
independence of mandate-holders, which is absolute in nature, and, on the other
hand, their prerogatives, as circumscribed by their mandate, the mandate of the
Human Rights Council, and the provisions of the Charter of the United Nations,
Mindful of the fact that it is desirable to spell out, complete and increase the visibility of the rules and principles governing the behaviour of mandate-holders,
Noting the Regulations Governing the Status, Basic Rights and Duties of Officials
other than Secretariat Officials, and Experts on Mission that was adopted by the
General Assembly in resolution 56/280 of 27 March 2002,
Noting also the draft Manual of the United Nations Human Rights Special Procedures
adopted in 1999 by the sixth annual meeting of mandate-holders, as revised,
Taking note of the deliberations and proposals of the Open-ended Intergovern
mental Working Group on Review of Mandates,
1.

2.

Urges all States to cooperate with, and assist, the special procedures in the performance of their tasks and to provide all information in a timely manner, as well
as respond to communications transmitted to them by the special procedures
without undue delay;
Adopts the Code of Conduct for Special Procedures Mandate-Holders of the
Human Rights Council, the text of which is annexed to the present resolution
and whose provisions should be disseminated by the Office of the United Nations
High Commissioner for Human Rights, to the mandate-holders, to the Member
States of the United Nations and to other concerned parties.
9th meeting
18 June 2007
[Resolution adopted without a vote.]342

Annex
Draft Code of Conduct for Special Procedures Mandate-Holders of the Human Rights
Council

Article 1 Purpose of the Code of Conduct

The purpose of the present Code of Conduct is to enhance the effectiveness of the system
of special procedures by defining the standards of ethical behaviour and professional

342 See A/HRC/5/21, Chap. III, para. 62.

Appendix B

279

conduct that special procedures mandate-holders of the Human Rights Council (hereinafter referred to as mandate-holders) shall observe whilst discharging their mandates.

1.

2.
3.

Article 2 Status of the Code of Conduct

The provisions of the present Code complement those of the Regulations

Governing the Status, Basic Rights and Duties of Officials other than Secretariat
Officials, and Experts on Mission (ST/SGB/2002/9) (hereinafter referred to as
the Regulations);
The provisions of the draft manual of United Nations Human Rights Special
Procedures should be in consonance with those of the present Code;
Mandate-holders shall be provided by the United Nations High Commissioner
for Human Rights, along with the documentation pertaining to their mission,
with a copy of the present Code of which they must acknowledge receipt.

Article 3 General Principles of Conduct

Mandate-holders are independent United Nations experts. While discharging their

mandate, they shall:
(a) Act in an independent capacity, and exercise their functions in accordance with
their mandate, through a professional, impartial assessment of facts based on
internationally recognized human rights standards, and free from any kind of
extraneous influence, incitement, pressure, threat or interference, either direct
or indirect, on the part of any party, whether stakeholder or not, for any reason
whatsoever, the notion of independence being linked to the status of mandateholders, and to their freedom to assess the human rights questions that they are
called upon to examine under their mandate;
(b) Keep in mind the mandate of the Council which is responsible for promoting
universal respect for the protection of all human rights and fundamental freedoms for all, through dialogue and cooperation as specified in General Assembly
resolution 60/251 of 15 March 2006;
(c) Exercise their functions in accordance with their mandate and in compliance
with the Regulations, as well as with the present Code;
(d) Focus exclusively on the implementation of their mandate, constantly keeping
in mind the fundamental obligations of truthfulness, loyalty and independence
pertaining to their mandate;
(e) Uphold the highest standards of efficiency, competence and integrity, meaning, in
particular, though not exclusively, probity, impartiality, equity, honesty and good faith;
(f) Neither seek nor accept instructions from any Government, individual,
governmental or non-governmental organization or pressure group whatsoever;
(g) Adopt a conduct that is consistent with their status at all times;

280

Appendix B

(h) Be aware of the importance of their duties and responsibilities, taking the
particular nature of their mandate into consideration and behaving in
such a way as to maintain and reinforce the trust they enjoy of all stake
holders;
(i) Refrain from using their office or knowledge gained from their functions for private gain, financial or otherwise, or for the gain and/or detriment of any family
member, close associate, or third party;
(j) Not accept any honour, decoration, favour, gift or remuneration from any governmental or non-governmental source for activities carried out in pursuit of
his/her mandate.

1.
2.

3.

Article 4 Status of Mandate-holders

Mandate-holders exercise their functions on a personal basis, their responsibilities not being national but exclusively international.
When exercising their functions, the mandate-holders are entitled to privileges
and immunities as provided for under relevant international instruments,
including section22 of Article VI of the Convention on the Privileges and Immunities of the United Nations.
Without prejudice to these privileges and immunities, the mandate-holders
shall carry out their mandate while fully respecting the national legislation and
regulations of the country wherein they are exercising their mission. Where an
issue arises in this regard, mandate-holders shall adhere strictly to the provisions
of Regulation 1 (e) of the Regulations.

Article 5 Solemn Declaration

Prior to assuming their functions, mandate-holders shall make the following solemn
declaration in writing:
I solemnly declare that I shall perform my duties and exercise my functions from
a completely impartial, loyal and conscientious standpoint, and truthfully, and
that I shall discharge these functions and regulate my conduct in a manner
totally in keeping with the terms of my mandate, the Charter of the United
Nations, the interests of the United Nations, and with the objective of promoting
and protecting human rights, without seeking or accepting any instruction from
any other party whatsoever.

Article 6 Prerogatives

Without prejudice to prerogatives for which provision is made as part of their mandate, the mandate-holders shall:

Appendix B

281

(a) Always seek to establish the facts, based on objective, reliable information
emanating from relevant credible sources, that they have duly cross-checked to
the best extent possible;
(b) Take into account in a comprehensive and timely manner, in particular information provided by the State concerned on situations relevant to their mandate;
(c) Evaluate all information in the light of internationally recognized human rights
standards relevant to their mandate, and of international conventions to which
the State concerned is a party;
(d) Be entitled to bring to the attention of the Council any suggestion likely to
enhance the capacity of special procedures to fulfil their mandate.

Article 7 Observance of the Terms of the Mandate

Article 8 Sources of Information

It is incumbent on the mandate-holders to exercise their functions in strict observance

of their mandate and in particular to ensure that their recommendations do not
exceed their mandate or the mandate of the Council itself.

In their information-gathering activities the mandate-holders shall:

(a) Be guided by the principles of discretion, transparency, impartiality, and evenhandedness;
(b) Preserve the confidentiality of sources of testimonies if their divulgation could
cause harm to individuals involved;
(c) Rely on objective and dependable facts based on evidentiary standards that are
appropriate to the non-judicial character of the reports and conclusions they are
called upon to draw up;
(d) Give representatives of the concerned State the opportunity of commenting on
mandate-holders assessment and of responding to the allegations made against
this State, and annex the States written summary responses to their reports.

Article 9 Letters of Allegation

With a view to achieving effectiveness and harmonization in the handling of letters of

allegation by special procedures, mandate-holders shall assess their conformity with
reference to the following criteria:
(a) The communication should not be manifestly unfounded or politically motivated;
(b) The communication should contain a factual description of the alleged violations of human rights;

282

Appendix B

(c) The language in the communication should not be abusive;

(d) The communication should be submitted by a person or a group of persons
claiming to be victim of violations or by any person or group of persons, including non-governmental organizations, acting in good faith in accordance with
principles of human rights, and free from politically motivated stands or contrary to, the provisions of the Charter of the United Nations, and claiming to
have direct or reliable knowledge of those violations substantiated by clear
information;
(e) The communication should not be exclusively based on reports disseminated by
mass media.

Article 10 Urgent Appeals

Article 11 Field Visits

Mandate-holders may resort to urgent appeals in cases where the alleged violations
are time-sensitive in terms of involving loss of life, life-threatening situations or either
imminent or ongoing damage of a very grave nature to victims that cannot be addressed
in a timely manner by the procedure under Article 9 of the present Code.

Mandate-holders shall:

(a) Ensure that their visit is conducted in compliance with the terms of reference of
their mandate;
(b) Ensure that their visit is conducted with the consent, or at the invitation, of the
State concerned;
(c) Prepare their visit in close collaboration with the Permanent Mission of the concerned State accredited to the United Nations Office at Geneva except if another
authority is designated for this purpose by the concerned State;
(d) Finalize the official programme of their visits directly with the host country officials with administrative and logistical back-up from the local United Nations
Agency and/or Representative of the High Commissioner for Human Rights who
may also assist in arranging private meetings;
(e) Seek to establish a dialogue with the relevant government authorities and with
all other stakeholders, the promotion of dialogue and cooperation to ensure
the full effectiveness of special procedures being a shared obligation of the
mandate-holders, the concerned State and the said stakeholders;
(f) Have access upon their own request, in consultation with the Office of the High
Commissioner for Human Rights and after a common understanding between
the host Government and the mandate-holder, to official security protection
during their visit, without prejudice to the privacy and confidentiality that
mandate-holders require to fulfil their mandate.

Appendix B

283

Article 12 Private Opinions and the Public Nature of the Mandate

Mandate-holders shall:

(a) Bear in mind the need to ensure that their personal political opinions are without prejudice to the execution of their mission, and base their conclusions and
recommendations on objective assessments of human rights situations;
(b) In implementing their mandate, therefore, show restraint, moderation and discretion so as not to undermine the recognition of the independent nature of
their mandate or the environment necessary to properly discharge the said
mandate.

Article 13 Recommendations and Conclusions

Mandate-holders shall:

(a) While expressing their considered views, particularly in their public statements
concerning allegations of human rights violations, also indicate fairly what
responses were given by the concerned State;
(b) While reporting on a concerned State, ensure that their declarations on the
human rights situation in the country are at all times compatible with their
mandate and the integrity, independence and impartiality which their status
requires, and which is likely to promote a constructive dialogue among stakeholders, as well as cooperation for the promotion and protection of human
rights;
(c) Ensure that the concerned government authorities are the first recipients of
their conclusions and recommendations concerning this State and are given
adequate time to respond, and that likewise the Council is the first recipient of
conclusions and recommendations addressed to this body.

Article 14 Communication with Governments

Article 15 Accountability to the Council

Mandate-holders shall address all their communications to concerned Governments

through diplomatic channels unless agreed otherwise between individual Governments
and the Office of the High Commissioner for Human Rights.

In the fulfilment of their mandate, mandate-holders are accountable to the Council.

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Index
Access to Water63, 144, 247
Advisory Opinion Concerning Reservations
to the Convention on the Prevention and
Punishment of Genocide20
African Charter on Human and Peoples
Rights27
African Commission on Human and Peoples
Rights26
African States7, 273
African Union65, 226
Ago, Roberto26
Alexandrowicz, C.H.232
Algeria226
Al Shabaab267268
American Commission of Human Rights28
Michael Domingues28
American Convention on Human Rights28,
237
Amnesty International66, 69, 142, 158159,
166, 200, 238
Anti-Slavery Society198
Apartheid23, 122, 132, 145, 241
Arbitrary Deprivation of Life24, 96
Argentina147
asean196
Asian States7, 273
Association for the Prevention of
Torture199
au Charter196
Austria265

Castaneda Commissioner (ilc)26

Chad226
Chile147
China41, 77, 147, 154, 157, 224, 262, 265
Claeys Gregory45
Climate Change40, 43, 70, 74, 187, 193,
198, 247
Code of Conduct219220. See also Code of
Conduct for Special Procedures
Code of Conduct for Special Procedures217
Commission on Human Rights3, 89, 1112,
78, 99100, 111, 121122, 127, 136, 144, 148,
163, 165168, 170, 180, 208, 210211,
214215, 236, 241, 244, 272274, 277
See also Human Rights Council
Complaints procedure5
Conflict of obligations26
Convention on the Elimination of all Forms
of Racial Discrimination245
Convention on the Prevention and
Punishment of Genocide20
Cote dIvoire249
Council of Europe196, 237238
Crimes against humanity14, 27, 31, 3637,
50, 7677, 8081, 83, 89, 94, 119, 192, 195,
224, 235, 262265
Cruel, inhuman or degrading treatment or
punishmentxiii, 87, 103, 110, 177, 199, 212,
214, 256. See also Torture
Cuba147, 244, 265

Bahrain244
Ban Ki-Moon, Secretary General187, 202
Bartos, Commissioner (ilc)26
Bentham, Jeremy42
Bilge, Commissioner (ilc)26
Biserko, Sonja224, 262
Brazil121122, 124, 127128, 134135, 137138,
141142, 145149, 244, 268
Brownlie, Ian25, 27, 30, 47

Darfur225227, 238, 244

Darusman, Marzuki224
Death penalty2829, 97, 99100
Declaration on Principles of International
Law Concerning Friendly Relations and
Cooperation Among States18
Democracy14, 50, 61, 114, 118, 122124,
127, 133134, 146, 148, 154, 183, 190,
247, 260
Disappearancexiii, 35, 52, 87, 94, 96, 98,
139, 183
Dobson, Andrew43
Draft articles on State responsibility26
Draft Declaration on the Rights and Duties of
States15

Camara, Commissioner (ilc)26

Cambodia237
Canada29, 97
Supreme Court29
R. v. Hape29

Index
Dualism25
Dunn, John43
Durban Declaration and Programme of
Action3
Eastern European States7, 273
Ecologism4344
Economic and Social Council (ecosoc)5,
8, 12, 240241, 253
Economic, Social and Cultural Rights1, 3,
10, 46, 79, 112, 116, 142, 145, 148, 164, 208,
217, 240, 247, 249, 272, 276
ecowas196
Elias, Commissioner (ilc)26
Erga omnes obligations13, 15, 2324, 32, 91
Eritrea249
Ethnic cleansing14, 31, 37, 50, 77, 83, 89, 119,
191, 195
European Convention on Human Rights85,
100, 237
European Court of Human Rights28, 85,
99100
Al-Adsani28
European Union67, 159, 199, 265
Fact-finding82, 190, 200, 202208, 211, 215,
227228, 237, 244, 269
ground rules150, 154, 203204
guidance on on-site observation206
Fitzmaurice, Gerald (Sir)16, 25
Forum on minority issues9
Franceix, 48, 265
Freedom of Religion136137, 247, 271
Gabon226
Garcia-Amador, F.V.233
General Assembly211, 216, 219220
General Claims Commission233
Neer Case233
Genocidexiii, 20, 87, 95, 191, 194, 198
Germany100, 174, 232233
Global Center on the Responsibility to
Protect200
Goldstone Inquiry227
Goodrich, L19, 66
Hague Academy of International Lawix, 16
Hambro, Commissioner (ilc)26
Hambro, E.19, 26, 66
Higgins, Rosalyn. Justicexii

287
High Commissioner for Human Rightsx,
34, 69, 71, 7374, 7677, 8081, 111, 125,
180, 184, 191, 195, 201, 203, 207, 211, 221222,
226, 236239, 242, 273, 278279, 282283
hiv/Aids247
Humanitarian lawix, 21, 23, 25, 33, 65, 73, 74,
7881, 92, 101108, 151, 154, 182, 191, 207,
213, 225, 232233, 247250, 253259, 261
civilians in armed conflict248
law applicable in armed conflict24
Human rights211212, 214, 219222
Human Rights Committee14, 3132, 35,
5152, 8991, 93, 9699, 169, 177178, 238
General Comment31, 36
Human Rights Councilixxiii, 1, 5, 813, 38,
50, 5455, 5758, 60, 6465, 68, 7176,
78, 8083, 113, 115, 121123, 125126, 128,
135139, 142, 144151, 154155, 157,
160161, 163164, 166, 168170, 172, 179,
181182, 194195, 201, 203204, 207210,
216218, 238, 242, 245247, 250253,
259, 264, 268, 271272, 276, 278
Advisory Committee58, 12, 58, 164, 166,
168, 172
Bureau of the Council4
complaints procedure5, 12
expert mechanism89
geographic distribution7
High Level Segment4
rules of procedure4, 9, 11, 66, 204205,
252, 274
Working Group on Communications5
Human Rights Grand Strategy201
Human Rights Movement108, 150, 165167,
169170, 178, 193, 204205, 229, 235, 259
Human Rights Watch69, 147, 157, 200,
238, 266
India66, 121123, 127130, 135140, 145149,
268
Indigenous peoples89, 117, 140, 160,
245, 250
Indonesia224, 226, 262
Inter-American Court of Human Rights21,
99, 237
Villagran Morales22
International Academy of Constitutional Law,
Tunis48
International Alert199
International Commission of Jurists238

288
International Committee of the Red
Cross65, 6970, 7374, 237239
International Court of Justicexii, 13, 15,
20, 22, 2425, 28, 30, 99, 173, 176, 178,
205, 230
Barcelona Traction case23, 28
Corfu Channel24
Hostages advisory opinion24
Mavrommatis Palestine case233
Nottebohm Case230
Reparation Case230
South West Africa cases20, 22
Statute16
Wall case23, 25
International Covenant on Civil and Political
Rightsxii, 14, 24, 31, 48, 51, 58, 85, 90, 96,
169, 177, 200, 237, 239, 262, 271
International Covenant on Economic, Social
and Cultural Rightsxii, 46, 169, 200, 245,
262, 271
International Criminal Court67, 69, 7677,
191, 193, 263266
International Criminal Tribunal for the
Former Yugoslavia (icty)21
Kupreskic and others21
International Crisis Group69, 71, 73, 198
International customary lawxiii
International Federation of Human
Rights200
International Human Rights Lawxxii, 1, 14,
2526, 36, 4647, 49, 52, 56, 59, 8081,
8587, 90, 95, 99, 102108, 118, 125126,
135, 151, 154, 171, 179, 182, 207, 248249,
252, 254261
supremacy of46
International Institute of Human
Rightsix
International Institute of Strategic
Studies200
International Labour Organization134, 179,
233, 236238
International Law
Sources49
International Law Commission1517,
2627, 122, 165, 168, 179, 233
International League for Human Rights238
International Monetary Fund11
International Peace and Security18, 30,
6875, 78, 81, 96, 192, 238, 246247

index
Islamic State (isil)8082, 222, 267268
Israel3, 23, 227, 243, 250
un Fact Finding Mission on the Gaza
Conflict243
Jacob Blaustein Institute for the
Advancement of Human Rights197
Jessup, P. Judge20
Jiri Tomanx
Johnston, Douglas47
Jus cogens17, 23, 2629, 37, 46, 4950, 53,
68, 8687, 118, 125
Justicex, xiii, 10, 3537, 5960, 62, 6768,
7576, 79, 81, 88, 90, 9495, 101105,
108110, 113, 115, 117, 120, 122, 129, 140, 148,
165, 183, 200, 208, 232233, 237, 247250,
253257, 259263, 266267, 269
Transitional Justice67, 108, 260, 266, 269
Kelsen, Hans16
Kirby, Michael. Judge224, 262
Klabbers, Jan4748
Korea, Democratic Peoples Republic of207,
224, 262266
Kurzweill, Ray40
Kyoto Protocol40, 192
Latin American and Caribbean States7, 273
Latvia226
Lauterpacht, H.23, 25, 165, 168
League of Arab States66, 72, 238
League of Nations234
Liberalism4344
Libya7677, 148
Linder, Glen29
Macdonald, Ronald St. J47
Mali249, 261
Mazower, Mark4142
Mexico147
Millennium Declaration1314, 50, 83
Minority Rights Group198
Monism25
Montreal Protocol on Substances that
Deplete the Ozone Layer251
Morocco158
Morris, Ian3941, 47
Muller, H.J.232
Myanmar244

Index
Namibia2223, 25, 66, 72
National Human Rights Institutions12, 111, 114
Non Governmental Organizations
(ngos)3, 5, 8, 1112, 56, 66, 71, 7374, 81,
88, 115, 117118, 137, 150153, 156161, 163,
170171, 195, 197, 200, 221, 238, 243, 266
Nuremberg Tribunal17
oas196, 237
Optional Protocol to the Convention against
Torture96, 197, 199
Organization of the Islamic Conference226
osce65, 195196
Overpopulation45
Pakistan66, 122, 147
Palacios-Huerta, Ignacio38
Palestine3, 227, 233, 243
Poverty1011, 57, 61, 83, 100, 124, 127129,
132, 141, 143145, 154, 164, 183, 191, 193,
207208, 247, 268
Preventive measures64, 9798, 183, 199, 235
Problem of impunity35, 94
Protectionxxi, xiii, 13, 67, 19, 21, 2324,
28, 33, 34, 37, 4546, 4950, 53, 5657, 59,
6162, 64, 79, 8286, 8891, 93, 9699,
102103, 110114, 116, 118122, 125, 136, 138,
140, 142143, 145, 150151, 155157, 160,
165, 170171, 182184, 189, 191, 193, 195196,
198199, 203, 207210, 214, 217, 219, 222,
228240, 242243, 246248, 250, 253, 255,
268269, 272274, 276, 279, 282283
curative protection236
remedial and compensatory237
Racial discriminationxiii, 3, 18, 87, 122, 143,
146, 149, 164, 180, 230231, 241
Racism3
Ramangasoavina, Commissioner (ilc)26
Rape61, 140, 225
Refugee68, 70, 7880, 188, 191, 193, 226, 231
Remediesxiii, 34, 52, 62, 8485, 8789, 93,
95, 98, 101105, 108, 119, 208, 237, 253,
255257, 259261, 269
Reservations20, 32, 91
Responsibility to protectx, xii, 1, 14, 31, 37,
50, 8385, 8990, 95, 113, 119, 191,
194195, 199, 226, 234235, 243, 245,
250, 264, 268

289
Reuter, Commissioner (ilc)26
Rights of minorities49, 168, 170
Right to development1, 3, 10, 14, 49, 57, 128129,
131, 146, 180, 217, 246247, 272, 276
Right to food137, 248249, 263
Right to health247
Right to housing247
Right to life22, 24, 49, 52, 62, 9698, 131,
248, 263
Rome Statute36, 77, 95, 191192, 254, 263
Roth, Alvin38
Russia76, 154155, 232
sadc196
Sands, Philip251
Sexual violence61, 80, 183, 225, 261
Shiller, Robert39
Simma, Bruno19, 66, 72
Simons, A.19, 66
sipri201
Slaveryxiii, 28, 87, 118, 177, 180, 198,
230231, 233
Social Forum of the former
Sub-Commission10
Somalia262
South Africa23, 121122, 124125, 127128,
131134, 136138, 142146,
148149, 268
Special Proceduresx, 12, 73, 112, 124, 136137,
141, 148, 150, 152153, 157, 161162, 203,
207210, 212, 214215, 217218, 221,
227228, 230, 243, 273274, 276278,
281282
Code of Conduct217
Sri Lanka122, 147, 149, 244, 266
Sudan77, 159, 226227, 244
Summit Outcome Document14
Survival International198
Switzerland232
Syria7677, 80, 225, 229, 266
Kobani229
Syrian Arab Republic225
Systematic violations12, 81, 242, 272, 274
Tammes, Commissioner (ilc)26
Torturexiii, 28, 35, 49, 52, 79, 87, 90, 94,
9798, 103, 110, 118, 120, 122, 136, 140, 145,
153, 158, 160, 166, 171, 177, 197, 199, 207,
210216, 255, 263

290
Treaty of Westphalia232
Tsuruoka, Commissioner (ilc)26
Turkey232
Tutu, Bishop227
un Charterix, xii, 1315, 22, 32, 47, 4950,
91, 125, 151, 154, 175, 221
Article 141819, 55, 239
human rights provisions of the un
Charter22
obligations of Member States14
obligations of Member States under the
Charter14
Principles and Purposes of the
Charter246
un Educational, Scientific and Cultural
Organization237238
un General Assemblyxi, xii, 14, 11, 14, 18,
20, 24, 42, 55, 62, 78, 102, 109111, 144145,
153154, 163167, 171172, 181, 190192,
194195, 244, 249, 260, 266, 269, 271279
United Nationsix, xixii, 12, 5, 911, 13, 16,
1820, 2224, 3031, 3637, 41, 4647,
4951, 5859, 64, 6667, 75, 77, 79, 84,
8687, 99, 109, 111112, 117119, 121122,
125127, 150154, 157, 160, 163, 165,
167169, 171, 175176, 189193, 198, 200,
202204, 207, 211, 214216, 218221, 224,
228, 230, 234243, 245246, 253, 262,
264, 266, 271274, 276280, 282
United Nations Charter18, 230
United Nations Development
Programme11
United Nations Secretary-General236
United States29, 41, 77, 99100, 159, 176
Universal Declaration of Human Rightsxii,
14, 24, 46, 4850, 53, 58, 60, 85, 111, 121,
151, 154, 168, 170, 176, 200, 271, 276

index
Universality12, 50, 84, 129, 150, 159, 242,
272273, 276
Universal Periodic Reviewix, x, 23, 12, 45,
49, 55, 59, 64, 83, 121, 126, 137, 150, 155,
160, 243, 265266, 268, 273274
Universal respect for the protection of
human rights1, 242, 272, 279
un Security Councilxi, 3031, 37, 46, 5253,
55, 6578, 82, 118, 121, 146, 189, 191194,
201, 235236, 238, 241, 265266
Ushakov, Commissioner (ilc)26
Ustor, Commissioner (ilc)26
Vallat, Commissioner (ilc)26
van Boven, Theo210, 236
Vienna Convention on the Law of
Treaties15, 17, 26, 28, 32, 91
Vienna Declaration and Programme of
Actionxii, 3, 141, 271, 276
War crimes14, 31, 37, 50, 7677, 8081, 83,
89, 119, 192, 195, 235
Weitzman, Martin38
Western European and other States7, 274
Women6062, 81, 101, 112, 115, 117, 122, 125,
129, 136, 138, 140, 144, 155156, 177, 180,
183, 232, 247250, 261262
Working Group on Arbitrary Detention203
Working Group on Situations6
World Bank11, 199
World Conference on Human Rightsxii, 84,
101, 116, 276
World Organization Against
Torture199200
World Trade Organization11
Worldwatch Institute198
Xenophobia3, 143144