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THE INTERNATIONAL HUMAN RIGHTS SYSTEM. “We will not enjoy security without development, we will not enjoy development without security, and we will not enjoy either without respect for human rights .” UN Secretary-General In Larger Freedom Prague, November 2005

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THE INTERNATIONAL HUMAN RIGHTS SYSTEM

“We will not enjoy security without development, we will not enjoy development without security, and we will not enjoy either without respect for human rights.”

UN Secretary-General In Larger Freedom

Prague, November 2005

Marcia V.J. Kran, Governance Team Leader

Bratislava Regional Centre


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A main purpose of the United Nations ….

The Charter of the United Nations states that one purpose of the United Nations is “to achieve international cooperation (including)…in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”


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SETTING STANDARDS(1)

Between 1948 and 1989 international agreement was successively reached on:

  • Civil and political rights

  • Economic and social rights

  • Freedom from torture

  • Freedom from discrimination

  • Women’s rights

  • Children’s rights


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SETTING STANDARDS(2)

  • Setting universal standards is one of the UN’s main achievements in the area of human rights

  • The standards are understood and virtually universally accepted

  • This universal legal system applies to over 6 billion people


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Standards providedin HR Treaties

  • International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966

  • International Covenant on Civil and Political Rights (ICCPR), 1966

    • ICCPR 1st Optional Protocol (individual complaints), 1966

    • ICCPR 2nd Optional Protocol (abolition of the death penalty), 1989


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Human Rights Treaties

  • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965

  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979 late

  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984

  • Convention on the Rights of the Child (CRC) 1989

  • International Convention on the Protection of the Rights of All Migrant Workers and Their Families (MWC) 1990


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Effect of Human Rights Treaties (1)

  • Set out state obligations corresponding to specific rights:

    • Obligation to Respect(duty not to interfere with the enjoyment of human rights)

    • Obligation to Protect (duty to prevent human rights violations by others)

    • Obligation to Fulfil (duty to act in order to ensure that rights can be enjoyed)

  • Establish mechanisms to monitor state compliance

  • Allow individuals to seek redress for violations


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Effect of Human Rights Treaties (2)

HUMAN RIGHTS TREATIES

ARE

LEGALLY BINDING

like other treaties


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Limits to States’ Obligations

At the time of signature or ratification, States are entitled to make:

  • Declarations of interpretation

  • Reservations

    Reason: to allow States to adapt universal human rights standards to their particular economic or political status, or to their specific social and cultural situation.


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…However:

Reservations can undermine the protection of human rights.

As an example, some states have made reservations to CEDAWwhich are arguably incompatible with purpose of the treaty.

Note: the reservation to CEDAW made by Libya:

“Accession is subject to the general reservation that such accession cannot conflict with the laws on personal status derived from the Islamic Shariah.”


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ExistingMonitoring Mechanisms (1)

  • Commission on Human Rights

    • Meets annually in Geneva for 6 wks

    • Comprised of state representatives

    • Considers HR situation worldwide

    • Special Rapporteurs and Working report to the Commission on particular subjects or countries

    • International and

      national media report

      decisions


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Commission on Human Rights (1)

  • Special Rapporteurs,Special Representatives, Special Envoys, Independent Experts

    • Country Mandate

    • Thematic Mandate

  • Working Groups

    • Specific issues


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Commission on Human Rights (2)

  • Country mandates:

    • Belarusformer FM Romania

    • Burundi

    • Cambodia

    • Cuba

    • Democratic People’s Republic of Korea

    • Haiti

    • Liberia

    • Myanmar

    • Palestinian territories occupied since 1967

    • Somalia

    • Sudan

    • UzbekistanRustam’s presentation

    • 2 in RBEC region


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Commission on Human Rights (3)

  • Thematic Mandates:

    • adequate housing

    • African descent

    • arbitrary detention

    • sale of children

    • education

    • enforced or involuntary disappearances

    • extrajudicial, summary or arbitrary executions

    • extreme poverty

    • food

    • freedom of opinion and expression

    • freedom of religion or belief

    • health

    • human rights defenders


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Thematic MandatesCont.

  • independence of judges and lawyers

  • indigenous people

  • internally displaced persons

  • migrants

  • minority issues

  • racism

  • solidarity

  • effects of economic reform policies and foreign debt

  • terrorism

  • torture

  • toxic and dangerous products and wastes

  • trafficking in persons

  • transnational corporations and other business enterprises

  • violence against women

    * visit countries by invitation, often UNDP organizes


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Example:Recommendation of Special Rapporteur

Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Mr. Miloon Kothari

MISSION TO ROMANIA (14-19 January 2002)

“The Government should take a lead in developing appropriate monitoring mechanisms for the implementation of the right to adequate housing, such as an inter-ministerial committee with involvement of relevant ministries, local authorities and civil society.”


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Commission on Human Rights (4)

  • Can criticize a country and put pressure on it to rectify rights violations

  • Can adopt a formal resolution calling upon a country to take certain measures to remedy a situation

  • Can confidentially consider complaints of serious and consistent rights violations (1503 procedure)

  • The essence of their enforcement power is the pressure of world public opinion


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Existing Monitoring Mechanisms (2)

  • Treaty Bodies:

    • ICCPR → Human Rights Committee

    • ICESCR → Committee on Economic, Social and Cultural Rights

    • ICERD→Committee on the Elimination of Racial Discrimination

    • CEDAW→Committee on the Elimination of Discrimination against Women

    • CAT→Committee against Torture

    • CRC →Committee on the Rights of the Child

    • MWC →Committee on the Protection of the Rights of All Migrant Workers and Their Family


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Treaty Bodies (1)

  • Made up of experts

  • States submit reports about their internal implementation of human rights obligations

    • Reports prepared domestically rosy

    • NGOs can prepare shadow or alternative report

    • Committee examines and discusses

    • Makes Concluding Observation and Recommendations for action cycle starts again


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Treaty Bodies (2)

General Comments or General Recommendations are sometimes offered. These are a main source of interpretation of human rights. So are GA resolutions e.g., SMRs


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EXAMPLE OF GENERAL COMMENTS/RECOMMENDATIONS

CERD - General Recommendation No. 27: Discrimination against Roma : 16/08/2000

The Committee on the Elimination of Racial Discrimination recommends States Parties:

“adopt and implement national strategies and programmes and express determined political will and moral leadership, with a view to improving the situation of Roma and their protection against discrimination by State bodies, as well as by any person or organization.”


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Complaints Procedure:

Individual Complaints are possible under CCPR, CERD, CEDAW, CAT, and the MWC.


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Impact of Treaty Reporting

  • Preparation of reports for the treaty bodies requires states to intensively review and reflect upon their human rights records

  • Committees serve as a platform for dialogue with countries on human rights

  • Committees have provided input into the development of new national laws, policies and programmes that aim to protect human rights


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Shortcomings of Existing Mechanisms (1)

  • The Commission on Human Rights:

    • Seen as operating according to the national self-interest of members who represent their own countries

    • Fear of being criticized can squelch justifiably negative comments against other states’ human rights records do not want to as they will be criticized

    • “The Commission has performed extremely poorly leading to a perception of using double standards and being very politically driven” (High Commissioner Louise Arbour)

      A Human Rights Council has been proposed to increase effectiveness and accountability Zanofer


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Shortcomings of Existing Mechanisms (2)

  • Committees / Treaty bodies:

    • Overdue reports and extremely long delays

    • 1200 reports overdue, but only 1600 have ever been considered in the 30 years of treaty body history

    • Gender mainstreaming is weak: CEDAW is in New York (not Geneva) may be moved


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UN Office of the High Commissioner for HRights:

Main activities…

  • Fact Finding Missions

  • Promoting universal ratification and implementation of international standards

  • Promoting international cooperation for human rights

  • Serve as a secretariat for monitoring mechanisms, e.g., Commission and Committees

  • Technical assistance and some programming but


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UNDP & OHCHR(1)

  • UNDP and Human Rights:

    • Human development is the core mandate of UNDP

    • Uni-dimensional development has been the cause of significant human rights denials and abuses in some countries Clarence

    • Supports the strengthening of national human rights systems, e.g. through capacity building and training

    • Promotes the application of a HRBA to development programming


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UNDP & OHCHR(2)

OCHCR is now crafting partnership strategy, including on ways to engage with UNDP UNDP not high priority


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Conclusion

“No drive for development will be successful unless it is based on the sure foundation of respect for human dignity.”

S.G. Kofi Annan


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