Consider how international institutions can help in the protection of human rights

Definition of human rights

Human rights are ¹ rights to which all human beings are equally entitled, independently of acts of

law. The foundation of this entitlement is human dignity.

Human rights are not only to be respected by public authorities (vertical dimension of human

rights), but also by private parties (horizontal dimension of human rights) as human rights law

increasingly admits. ² The latter dimension is to be implemented first of all by the national criminal

law.

Human rights law distinguishes two sets of human rights: ³ first, civil rights (for example the right to

life and physical integrity) and political rights (for example the right to participate in politics) and

second, social rights (for example the rights of children, women, ethnic groups and the right to

social security), economic rights (for example those referring to labour conditions, health and safety

at the workplace) and cultural human rights. The realisation of both sets of rights depends on each

other. ⁴ Extreme poverty or illiteracy, for example, makes the exercise of civil and political rights

difficult. That it is more expensive to realise social and economic than civil and political human

rights, cannot be upheld generally, because mechanisms to monitor and enforce the respect of

human rights are needed. Press ⁵ gives some examples on this. Better working conditions, more

occupational safety and social security are examples for costly economic rights. 6

1P. J. Flood, The effectiveness of United Nations human rights institutions, Westport, Praeger, 1998; M. Piechowiak, 'What are Human Rights? The Concept of Human Rights and Their Extra-Legal Justification', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2nd ed., Turku / Åbo, Åbo Akademi University, 1999

2K. Drzewicki, 'The United Nations Charter and the Universal Declaration of Human Rights', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2 ^nd ed., Turku / Åbo, Åbo Akademi University, 1999

3A. Rosas & M. Scheinin, 'Categories and beneficiaries of human rights', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2 ^nd ed., Turku / Åbo, Åbo Akademi University, 1999

4Drzewicki, op. cit.

5E. Press, 'Human Rights - The Next Step', The Nation, 25 December, 2000

6K. T. Samson & K. Schindler, 'The standard-setting and supervisory system of the International Labour Organisation', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2 ^nd ed., Turku / Åbo, Åbo Akademi University, 1999

Aspects of protection of human rights

The protection of human rights encompasses first the prevention of violations of human rights. Respect and ensuring of human rights are a part of prevention. ⁷ Further aspects ⁸ of protection are the investigation of human rights violations, the conviction of those responsible for human rights abuses in order to foster the future respect of human rights, the provision of appropriate remedies to the victims respectively their relatives and the protection of the victim, if alive, and his or her relatives from further violations of their human rights. All this is done by legal, diplomatic, and enforcement measures, for which examples will be given in this essay.

Legitimisation of the UN intervening in human rights matters

The UN is legitimised to intervene directly in the protection of human rights according to the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993, if states fail to do so. ⁹ This solves the controversy about whether human rights are a mainly domestic matter or an issues of international law. ¹⁰ In case of being an essentially domestic matter, Article 2(7) of the UN Charter would apply which prohibits the UN from intervening in such matters, unless they became a threat to international peace and security as stated by the Security Council.

A further argument in favour of the international system intervening in human rights matters in member states is that the latter, by becoming a member of the UN, accept the respect of human rights as one of the fundamental purposes of the UN laid down in the UN Charter in Article 1(3), which is realised through standard-setting and implementation. 11

One should not forget that what eventually matters are the domestic measures taken by the member

7Article 2(1) of the International Covenant on Civil and Political Rights

8See the terminology used by Amnesty International in its Urgent Actions

9M. Scheinin, 'International mechanism and procedures for implementation', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2nd ed., Turku / Åbo, Åbo Akademi University, 1999; C. Flinterman & C. Henderson, 'Special human rights treaties', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2nd ed., Turku / Åbo, Åbo Akademi University, 1999; F. Coomans, 'UNESCO and human rights', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2nd ed., Turku / Åbo, Åbo Akademi University, 1999

10S. D. Bailey, The UN Security Council and Human Rights, Houndsmills, Macmillan Press, 1994

11Drzewicki, op. cit.

states ¹² in favour of the protection of human rights, as the UN can not make but a contribution to this depending in many cases on the good will of the concerned government and its concern for its reputation. Therefore it is a task of priority for the international community to strengthen the State's capacity to protect its citizens. This priority follows also from the general principle of international law that "procedures of international settlement may be resorted to only after first exhausting available domestic remedies". 13

Links between human rights and the other activities of the UN

The Security Council (SC) has since its establishment seen as its main task the maintenance of "international peace and security" (Article 1(2) of the UN Charter). But the SC and the General Assembly (GA), ¹⁴ also the UN Educational, Scientific and Cultural Organisation (UNESCO), ¹⁵ increasingly recognise the connection between this purpose of the UN and the further UN's purpose to promote and encourage "respect for human rights" (Article 1(3) of the UN Charter), as in the now dominating intra-state wars large-scale human rights violations and unequal access to power and resources are more often an important source of conflict ¹⁶ than during the Cold War. ¹⁷ Thus human rights concerns must be taken into account to make preventive strategies and peace agreements negotiated or overseen by the UN possible. ¹⁸ The UN Development Programme (UNDP) and other UN agencies work in the field of development cooperation, which comprises the building of national institutions, the strengthening of the governments and the reduction of poverty, which are examples for preventive measures. 19

The mandates of peacekeeping and peace-building forces have been expanded since the end of the Cold War due to the dominance of intra-state conflicts over inter-state conflicts. ²⁰ Now they cover not only military functions as the observance of cease-fires, the demobilisation and disarmament of troops and the restoration and maintenance of public order, but also the validation of peace

12P. Alston, 'The Committee on Economic, Social and Cultural Rights', in P. Alston, ed., The United Nations and Human Rights: a critical appraisal, Oxford, Clarendon Press, 1992 [Alston 1]

13Scheinin, op. cit., p. 429

14T. J. Farer & Gaer, F., 'The UN and Human Rights: At the End of the Beginning', in A. Roberts & B. Kingsbury, eds., United Nations, divided world, 2 ^nd ed., Oxford: Clarendon Press, 1993

15Coomans, op. cit.

16A. Gallagher, 'Human Rights in the wider United Nations system', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2 ^nd ed., Turku / Åbo, Åbo Akademi University, 1999 [Gallagher 1]

17Bailey, op. cit.

18Gallagher 1, op. cit.

19Gallagher 1, ibid.

20O. Ramsbotham & T. Woodhouse, Humanitarian Intervention in Contemporary Conflict: a reconceptualization, Oxford, Polity Press, 1996

agreements and humanitarian functions such as the protection of civilians through the establishment of safe havens as happened in 1991 in Iraq and in former Yugoslavia in 1993 in Bosnia. Further humanitarian functions are the coordination of refugee repatriation and resettlement, and the monitoring of elections. For all these activities human rights are important.

The same is true for the application of sanctions to avoid any damage to the population of the targeted country. Thus sanctions should be combined with humanitarian measures as was the case in Iraq where "supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs" where excluded from the blocking of exports to Iraq through SC Resolution 661 from 1990. ²¹ But in some cases sanctions may have as a purpose to make the population of the targeted country suffer in order to destabilise the respective government through internal uprising so that it changes the targeted behaviour.

Ambivalence of member states and thus the UN facing human rights

There have been time and again attempts coming from the member states of the UN to lessen the effectivity of human rights instruments. In the following, I will mention only some of these attempts.

The transfer of the Division of Human Rights of the UN Secretariat from New York to Geneva ²² in 1974 led to the situation, that almost all human rights instruments ²³ are based in Geneva in contrast to all other UN organs that are based in New York. The Division services most human rights organs together with the Geneva-based Office of the High Commissioner for Human Rights (OHCHR). A growing necessity for the political bodies of the UN in New York and the Office of the Secretary-General to consider human rights concerns because of the mostly intra-state conflicts in which they get involved ²⁴ speaks in favour of choosing New York as base of the Division to ease the integration of human rights concerns into the work of the UN's political bodies and of the Secretary-General. An alternative to the retransfer of the Division to New York is the strengthening of the status of the Division's Liaison Office in New York.

21United Nations, Security Council Resolution 661, 1990, http://www.un.org/Depts/oip/scrs/scr661onu.htm

22See for the advantages and disadvantages of Geneva as location of the human rights organs T. C. Van Boven, 'The Role of The United Nations Secretariat', in P. Alston, ed., The United Nations and Human Rights: a critical appraisal, Oxford, Clarendon Press, 1992

23The Working Group on Enforced and Involuntary Disappearances, the Committee on Human Rights, and the Committee on the Elimination of Discrimination against Women are exceptions because they meet at UN Headquarters in New York.

24Van Boven, op. cit.

The SC has considered human rights only in so far as their violation endangers international peace and security. 25

The UN's protective activity developed much later than its much more extensive standard-setting activities because many governments did not want to be critised publicly. ²⁶ Thus the Commission on Human Rights (CHR), which consists of government representatives, stated on its first ordinary session in 1947 that it had no power to take any action in regard to any complaints concerning human rights. A petition of the African states to the Committee on the Elimination of all forms of Racial Discrimination led to a public and a confidential complaints procedure. ²⁷ Several states, especially those where large-scale human rights violations happen, still say that human rights are pure domestic matters though the international community has a legitimate role to play in intervening in human rights matters as was argued above. Jamaica for example withdrew from the International Covenant on Civil and Political Rights (ICCPR) when found guilty by the respective treaty body of having violated the Covenant through its administration of the death penalty. Jamaica said that this was a matter of sovereignty and thus of no concern to the UN. ²⁸ Such resisting states therefore accept at most the least possible intrusive UN measures, for example field operations with an assisting rather than a monitoring mandate. This resistance leads to the UN's tendency to intervene only in politically and economically less important countries, as their resistance is weak. ²⁹ This tendency has led to the allegation of the UN using double standards in protecting human rights and of being a politicised organisation. ³⁰ There has been no major UN intervention in, for example, China, a big market for US products, ³¹ contrasting with the case of El Salvador with UN brokered peace accords.

Due to this member states' resistance, UNESCO's complaints procedure is amicable and confidential ³² and thus reduced in its impact as "exposure is the principal instrument at the disposal of the UN for the defence of human rights". 33

25P. Alston, 'Appraising the United Nations Human Rights Regime', in P. Alston, ed., The United Nations and Human Rights: a critical appraisal, Oxford, Clarendon Press, 1992 [Alston 2]

26Farer & Gaer, op. cit.

27Farer & Gaer, ibid.

28T. M. Franck, 'Are Human Rights Universal?', Foreign Affairs, 80, 1, 2001

29A. Gallagher, 'United Nations human rights field operations', in R. Hanski & M. Suksi, eds., An introduction to the international protection of human rights: a textbook, 2 ^nd ed., Turku / Åbo, Åbo Akademi University, 1999 [Gallagher 2]

30A. Neier, 'The new double standard', Foreign Policy, Winter 1996/97, 105, 1996-97

31Neier, ibid.

32Coomans, op. cit.

33Farer & Gaer, op. cit., p. 288