On New Year’s Day 1942, twenty-six governments signed the Declaration of the United Nations in Washington, D.C., the United States, and another twenty-one governments followed suit before the end of the Second World War. In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organisation to draw up the United Nations Charter, an international treaty that sets out basic principles of international relations. The UN Charter was signed on 26 June 1945 by the representatives of the 50 countries, making international concern for human rights an established part of international law.
The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories. In the Preamble to the Charter, the signatories ‘reaffirm faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women [...]’, echoing the belief of the era that the massive human rights violations committed during the Second World War could have been prevented and the hope that they should never be repeated. Today, nearly every nation in the world belongs to the UN; membership totals 192 countries.
The United Nations has six principal organs: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the Secretariat (Article 7 UN Charter). In addition, the United Nations system consists of several specialised agencies and a number of other specialised bodies dealing with human rights.
Modern international human rights law is to a large extent founded on the standard-setting work of the United Nations; through UN efforts governments have established many multilateral agreements and this comprehensive body of international law, including human rights law, is one of the UN’s greatest achievements. With its standard-setting work nearly complete, the UN is shifting the emphasis of its human rights efforts to the implementation of human rights laws.
A. Main United Nations bodies dealing with human rights
Many UN bodies have a role to play in the field of human rights. The most relevant bodies are described in this section.
THE UNITED NATIONS CHARTER
When states become members of the UN they accept the obligations of the UN Charter that sets out the four main purposes of the UN: to maintain international peace and security; to develop friendly relations among nations; to co-operate in solving international problems and in promoting respect for human rights; and to be a centre for harmonising the actions of nations.
The UN Charter refers to human rights in the Preamble and Articles 1, 8, 13, 55, 56, 62, 68 and 76:
Article 1 defines one of the objectives of the UN as: ‘[?] promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’.
Article 8 states that ‘the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs [?]’.
Article 13 says that the responsibilities, functions and powers of the General Assembly shall include ‘assisting in the realisation of human rights and fundamental freedoms for all [?]’.
Article 55 describes the purposes of the UN in international co-operation, which include under (c): ‘universal respect for, and observance of human rights and fundamental freedoms for all without discrimination as to race, sex, language, or religion’. Article 56 contains a pledge by all members ‘to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55’.
Article 62 contains similar provisions in describing the responsibilities, functions and powers of the Economic and Social Council (ECOSOC).
Article 68 authorises the ECOSOC to set up commissions ‘in economic and social fields and for the promotion of human rights’.
Article 76 contains human rights provisions in the description of the international trusteeship system.
1. The General Assembly (unga)
The General Assembly is composed of all member states of the United Nations, each state having one vote. Article 13 UN Charter states that one of the functions of the UN General Assembly is to initiate studies and make recommendations for the purpose of ‘promoting international co-operation in the economic, social, cultural, educational and health fields and assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’. Accordingly, the UNGA adopted the Universal Declaration on Human Rights (UDHR) on 10 December 1948 and, since then, a number of other human rights instruments.
Most human rights issues that the UNGA deals with are laid out in reports of the Economic and Social Council (ECOSOC) or in resolutions adopted by the UNGA at earlier sessions. The UNGA refers most issues regarding human rights to its Third Committee, which is responsible for social, humanitarian and cultural issues. The Sixth Committee (Legal Committee) also deals occasionally with human rights issues.
The UNGA has set up a number of subsidiary organs important in relation to human rights: the Human Rights Council, the Special Committee on the Situation regarding Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (‘the Special Committee on Decolonization’), the Special Committee to Investigate Israeli Practices Affecting Human Rights of the Population of the Occupied Territories, and the Committee on the Exercise of the Inalienable Rights of the Palestinian People. The UN also had a Special Committee on Apartheid for several years.
2. The Economic and Social Council (ECOSOC)
In contrast to the UNGA, the Economic and Social Council consists of only 54 members. ECOSOC was established under the UN Charter as the principal organ to coordinate economic, social, and related work of the fourteen UN specialised agencies, functional commissions and five regional commissions. The Council also receives reports from eleven UN funds and programmes. Article 62 of the UN Charter states that the ECOSOC ‘may make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all’. The ECOSOC may also submit draft conventions to the UNGA and organise international conferences. Under the provisions of Article 68, the ECOSOC can set up commissions in economic and social fields and for the promotion of human rights. Article 64 empowers the ECOSOC to make arrangements with the UN member states and its Specialised Agencies to obtain reports on the steps taken to put its own recommendations and those of the UNGA into effect.
The ECOSOC has established a number of important commissions in the sphere of human rights: a) the former UN Commission on Human Rights and its Sub-Commission on the Promotion and Protection of Human Rights; b) the Commission on the Status of Women; c) the Commission for Social Development; and d) the Commission on Crime Prevention and Criminal Justice.
In carrying out its mandate, ECOSOC consults with academics, business sector representatives and more than 2,100 registered non-governmental organisations.
3. The UN Human Rights Council
The Human Rights Council (the Council) is the principle UN intergovernmental body responsible for human rights. It was established by UNGA resolution 60/251 on 15 March 2006. The Council replaced the Commission on Human Rights (the Commission), assuming most of its mandates, mechanisms and responsibilities. The Commission was increasingly criticized for being politicised and selective and some members used the body to avoid criticism for human rights violations instead of for the promotion and protection of human rights. The former UN Secretary-General, Kofi Annan, claimed that the Commission suffered a credibility deficit which cast a shadow on the reputation of the UN system as a whole. He therefore instituted a comprehensive reform of the body.
There are many significant differences between the Council and its predecessor. First, it is accountable to the UNGA which is composed of all UN members, unlike the Commission, a suborgan of the ECOSOC, comprised of only 54 member states. The status of the Council within the UN structure may be reviewed with a view to elevating it to a main organ of the UN. Second, the Council is comprised of 47 member states, whereas the size of the former Commission varied. Third, members of the Council are elected directly and individually by secret ballot by an absolute majority of the UNGA, based on equitable geographic distribution. The ECOSOC elected members to the Commission by simple majority from countries which were nominated by each geographic block. A fourth distinction is that although membership is open to all states, the human rights records and voluntary human rights pledges and commitments of candidates are to be taken into account when electing states to the Council. Furthermore, if a member state commits gross and systematic violations of human rights, the UNGA may suspend its rights of membership in the Council. Moreover, the Council meets regularly throughout the year and schedules no fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks. It may also hold special sessions at the request of any of its members as long as the request is supported by one third of the membership of the Council (Article 10 of resolution 60/251). In contrast, the Commission used to meet for six weeks every year in March and April and had held only four special sessions since 1990.
The Council has assumed most mandates, mechanisms, functions and responsibilities previously entrusted to the Commission while also introducing new mechanisms which will hopefully strengthen the universal promotion and protection of human rights.
Resolution 60/251 stipulates that 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.
Although the Commission failed in many respects, the formulation of several human rights standards was a major achievement. This function is inherited by the Council which shall make recommendations for the further development of international law in the field of human rights. The Council shall also promote human rights education and learning and provide advisory services, technical assistance and capacity building in consultation with and with the consent of member states. It also serves as a forum for dialogue on thematic issues on all human rights and contributes, through dialogue and cooperation, towards the prevention of human rights violations and shall respond promptly to human rights emergencies. It is expected to work in close cooperation with governments, regional organisations, national human rights institutions and civil society because it cannot achieve its goals without actively involving these stakeholders. A new feature is that the Council is authorised to promote the full implementation of human rights obligations undertaken by states and monitor the goals and commitments related to the promotion and protection of human rights emanating from UN conferences and summits.
The Council assumes the Commission’s 1503 procedure, albeit improved, and is empowered to address situations of human rights violations, including gross and systematic violations, and make corresponding recommendations. The Council may deal with gross and systematic violations of human rights in its regular and special sessions and may adopt resolutions and decisions on the issue under consideration.
One of the innovative features introduced by Resolution 60/251 is the universal periodic review (UPR). This is a new human rights mechanism through which the Council periodically reviews the fulfilment by each of the UN member states of its human rights obligations and commitments. This system of review is established to avoid the selectivity and partiality that plagued the Commission; now the human rights situation in all UN member states is periodically reviewed. The UPR is based on an interactive dialogue with the state under review and aims to ensure universality of coverage and equal treatment. It is a cooperative mechanism that is carried out with due consideration to the capacity building needs of the country in question. The UPR is composed of several steps within a four-year cycle: First, the information for the review is prepared (national reports, a compilation of UN information prepared by the Office of the United Nations High Commissioner for Human Rights (OHCHR), and a summary of stakeholders’ submissions, also prepared by OHCHR). Secondly, the review itself is conducted by the Working Group on the UPR (composed of all Council members), which meets in three twoweek sessions each year. Third, review outcome documents are considered and adopted by the Council at its regular sessions. Finally, follow-up on how the reviewed states have implemented the UPR outcomes takes place. Stakeholders such as NGOs, academic and research institutions, regional organisations and civil society representatives may participate in some of these steps. It should be noted that the universal review mechanism is intended to complement, not duplicate, the work of treaty bodies.
The Council works in accordance with the rules of procedure established for committees of the General Assembly with certain necessary changes (Article 11 of resolution 60/251). Only members are entitled to vote. The participation of and consultation with observers including states that are not members of the Council, specialised agencies, other intergovernmental organisations, national human rights institutions and NGOs is based on arrangements including ECOSOC resolution 1996/31 of 25 July 1996 and practices observed by the former Commission. Accordingly, countries which are not members of the Council may participate in the Council’s deliberations as observers and may be co-sponsors of draft resolutions submitted to the Council.
The specialised agencies and several other inter-governmental organisations may make interventions in the Council’s sessions. NGOs with consultative status may send observers with the right to address the public sessions of the Council. The debate of the Council is generally open to the public, while the general debate concerning violations of human rights takes place in both open and closed sessions. In open sessions, the Council, inter alia, discusses violations of human rights in any part of the world and adopts resolutions and decisions on them. Closed sessions deal exclusively with individual complaints that reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. The debate takes place in a confidential manner in the Working Group on Communications and the Working Group on Situations and finally in the Council. Since its formation in March 2006, the Council has adopted several resolutions, decisions and Chairperson’s statements related to standard setting, supervision, implementation and promotion of human rights.
As opposed to the former Commission, which emphasised standard setting, the Council’s principal function is to supervise the implementation of human rights standards in member states of the UN. To accomplish its role in monitoring the implementation of human rights norms, the Council utilises the special procedures, complaints procedure and expert advice mechanisms of the Commission. The Council appoints special rapporteurs, representatives, experts and working groups in order to investigate violations of human rights or make studies on human rights. The appointed persons report in their personal capacity to the Council on human rights topics and make recommendations. The special rapporteurs are divided into two groups: a) country rapporteurs, whose focus is on violations in particular countries, and b) thematic rapporteurs, who deal with particular human rights issues worldwide.
The Council also discusses the implementation of human rights in its regular and special sessions. These sessions are the principal forums in which individual countries and NGOs can raise human rights issues. Furthermore, it can order studies on specific issues, such as the rights of detainees. The Council has inherited many of the special rapporteurs and working groups created by the Commission.
4. The Human Rights Council Advisory Committeee
The Human Rights Council Advisory Committee is a subsidiary body of the Council. It serves mainly as a think tank, providing expertise focusing on studies and research on thematic issues pertaining to the promotion and protection of human rights. The Advisory Committee can make suggestions to the Council to enhance its own procedural efficiency and to further research proposals within the scope of its work but has no power to adopt resolutions or decisions. The 18 Advisory Committee members serve in their personal capacity for a period of three years and are eligible for The United Nations re-election only once. Membership consists of 5 members from Africa, 5 from Asia, 2 from Eastern European states, 3 from Latin America and Caribbean States and 3 from Western Europe and other states. The Advisory Committee convenes twice each year for a total of up to 10 working days, and can hold additional ad hoc sessions with the Council’s approval. The Human Rights Advisory Committee replaced the Sub-Commission on the Promotion and Protection of Human Rights.
5. The United Nations High Commissioner for Human Rights and the Office of the United Nations High Commissioner for Human Rights (OHCHR)
The High Commissioner is the principal UN official with responsibility for human rights and is accountable to the Secretary-General. The position of the High Commissioner for Human Rights was created in 1993. Earlier efforts to establish the post had failed, chiefly because of the East-West block division in UN decision-making bodies, and the fear of a High Commissioner competent to ‘interfere in internal affairs’. The Vienna World Conference on Human Rights revived attempts to establish the post, the debate being led by Western states and NGOs such as Amnesty International. After a lengthy process the Conference decided by consensus to ask the UNGA, when examining the Conference report, ‘to begin, as a matter of priority, [with the] consideration of the question of the establishment of a High Commissioner for Human Rights for the promotion and protection of all human rights’ (Vienna Declaration and Programme of Action). On 20 December 1993, the UNGA decided, without a vote, to create the post of High Commissioner for Human Rights.
The High Commissioner for Human Rights has the rank of Under-Secretary-General and reports directly to the Secretary-General. The mandate (UNGA Resolution 48/141) entails, inter alia:
a) Promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights;
b) Carrying out the tasks assigned to him/her by bodies of the United Nations system in the field of human rights and making recommendations to them with a view to improving the promotion and protection of all human rights;
c) Promoting and protecting the realisation of the right to development and enhancing support from relevant bodies of the United Nations system for this purpose;
d) Providing, through the Centre for Human Rights and other appropriate institutions, advisory services, technical, and financial assistance at the request of the state concerned and, where appropriate, the regional human rights organisations, with a view to supporting actions and programmes in the field of human rights;
e) Co-ordinating relevant United Nations education and public information programmes in the field of human rights;
f) Playing an active role in removing the current obstacles and in meeting the challenges to the full realisation of all human rights and in preventing the continuation of human rights violations throughout the world, as reflected in the Vienna Declaration and Programme of Action;
g) Engaging in a dialogue with all Governments on the implementation of his/her mandate with a view to securing respect for all human rights;
h) Enhancing international co-operation for the promotion and protection of all human rights;
i) Co-ordination of the human rights promotion and protection activities throughout the United Nations system;
j) Rationalisation, adaptation, strengthening and streamlining of the United Nations machinery in the field of human rights with a view to improving its efficiency and effectiveness. [?]
The High Commissioner has a special role in the co-ordination of UN activities in the field of human rights, while also co-operating with governments to strengthen national human rights protection. The High Commissioner seeks to lead the international human rights movement by acting as a moral authority and a voice for victims. The High Commissioner makes frequent public statements and appeals on human rights crises.
The first High Commissioner was Jose Ayala Lasso from Ecuador. He served from 1994 to 1997, when, after an interim period, in September 1997, the function was taken over by Mary Robinson, the former President of Ireland. The third High Commissioner, Sergio Vieira de Mello, served from 2002 until May of 2003, when he took a leave of absence to serve in Iraq as Special Representative of the Secretary-General. He was tragically killed by a bomb in Baghdad on 19 August 2003. Bertrand Ramcharan acted as High Commissioner from 2003 until February 2004, when Canadian Supreme Court Justice and ex-prosecutor of the United Nations war crimes tribunals for the former Yugoslavia and Rwanda, Louise Arbour, was appointed to the post. In September 2008 she was succeeded by Navanethem Pillay, from South Africa, a former judge of the International Criminal Tribunal for Rwanda and the International Criminal Court.
The Office of the High Commissioner for Human Rights (OHCHR), based in Geneva, is the main body within the UN Secretariat dealing with human rights. In accordance with the programme reform of the UN (A/51/950, para. 79), the Office of the High Commissioner for Human Rights and Centre for Human Rights were consolidated into a single office as of 15 September 1997.
The OHCHR assists various UN organs, subsidiary organs and working groups. The Office of the High Commissioner serves as a secretariat for charter-based human rights mechanisms, as well as all treaty monitoring bodies. The Office receives and administers more than 200,000 communications annually. Furthermore, the Office prepares studies, reports and publications on human rights and plays a special role in relation to the Advisory Services Programme, organising global and regional seminars and courses on subjects relating to human rights. Finally, the Office provides governments with technical advice. In addition, a number of OHCHR field offices have been established with a view to ensuring that international human rights standards are progressively implemented and realised at country level, both in law and practice. The OHCHR collaborates with an ever wider range of actors, including governments, NHRIs, NGOs and other civil society actors, to instil as broad a commitment to human rights as possible. It should be noted that, although entrusted with many tasks, the Office of the High Commissioner has very limited funds and manpower at its disposal.
B. Other United Nations organs
1. The Security Council
The Council has 15 members, five permanent members and 10 elected by the General Assembly for two-year terms. In accordance with Article 24 UN Charter, the Security Council bears primary responsibility for the maintenance of international peace and security. Actions taken by the Security Council will generally impact human rights, as these invariably come to the fore whenever international peace and security are threatened. The link between violations of human rights and threats to international peace and security was discussed by the Security Council Summit held in January 1992. The Security Council stated that: ‘Election monitoring, human rights verification and the repatriation of refugees have in the settlement of some regional conflicts, at the request or with the agreement of the parties concerned, been integral parts of the Security Council’s effort to maintain international peace and security.’
The Security Council is increasingly concerned with human rights. With the gradual refocus of the UN on human security as an integrated concept, many decisions of the Security Council have an impact on human rights. Interventions authorised by the Security Council are nominally undertaken in reaction to threats to international peace and security. Examples are, for instance, the intervention in Sierra Leone (1999) and in Haiti (2004). The arguments underlying such interventions are often related to human rights. The Security Council, acting under Chapter VII of the Charter of the United Nations, is also the institution that sets up ad hoc tribunals such as the ones for former Yugoslavia and for Rwanda (see II??1.B). In 2006, the Security Council adopted Resolution 1674 committing itself to action to protect civilians in armed conflict (‘responsibility to protect’, see V§4).
2. International Tribunals
International tribunals have traditionally been seen as means to resolving international disputes peacefully, on the basis of international law.
The International Court of Justice (ICJ) supervises the rule of law at the international level and is entitled to issue advisory opinions under certain circumstances. States participating in international law-making tended to see violations of international law as incurring only state responsibility. Since the 1919 Versailles Treaty, however, it has increasingly been accepted that individuals can be held responsible for violations of international law, especially international humanitarian law. Individual criminal responsibility for crimes against peace, war crimes, and crimes against humanity was established at the Nuremberg and Tokyo tribunals, where individuals were tried for war crimes committed during the Second World War.
In reaction to the atrocities that took place in Yugoslavia and Rwanda, the Security Council established the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR) to ensure peace and promote reconciliation by means of prosecution of individuals for genocide, crimes against humanity and war crimes. The ad hoc tribunals are severely limited in their jurisdiction as they are only meant to deal with events that took place within a certain time frame and on specified territory. Partly in response to criticism of the limitations of the ICTY and ICTR, established under Chapter VII of the UN Charter, ‘hybrid’ or ‘mixed tribunals’ have been created to seek justice for crimes of mass atrocity. The hybrid model is based on the premise that judicial accountability is shared jointly between the state in which the tribunal functions and the international community. The legal status, applicable law, composition and organisational structure is negotiated and agreed upon by the states in question and the UN. The Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (ECCC) are examples of hybrid tribunals.
The International Criminal Court (ICC) has jurisdiction to investigate, prosecute and punish individuals suspected of having committed the most serious crimes of concern to the international community as a whole.
Experience has shown that international tribunals and supervisory mechanisms generally need a long time to develop, to acquire experience and to gain international legitimacy and effectiveness.
International Court of Justice (ICJ)
The general objective of the International Court of Justice is the administration of justice and the supervision of the rule of law at the international level. The Court, seated at the ‘Peace Palace’ in The Hague, The Netherlands, is the principal judicial organ of the United Nations. It began work in 1946, when it replaced the Permanent Court of International Justice, and operates under a statute similar to that of its predecessor. The Court has competence to address cases brought by states. Part II. Human Rights Fora
The UNGA, ECOSOC, the Security Council and other specific organs may request advisory opinions from it. Individuals cannot bring cases before the court. The ICJ has ruled on several cases involving human rights, e.g., Haya de la Torre (13 June 1951; asylum), Nottebohm (6 April 1955; nationality), Barcelona Traction Light and Power Company (5 February 1970; human rights as obligations erga omnes), Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (31 March 2004; consular protection) and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v. Serbia and Montenegro) (26 February 2007; genocide). The Court has also addressed human rights issues in its advisory opinions, for example, on genocide, apartheid and the immunity of UN human rights special rapporteurs.
The International Criminal Tribunal for the Former Yugoslavia (ICTY)
The International Criminal Tribunal for the Former Yugoslavia was established by Security Council Resolution 827 on 25 May 1993. The Tribunal came into being in the face of the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and as a response to the threat to international peace and security posed by those violations.
The purpose of the ICTY is to: a) bring to justice persons allegedly responsible for serious violations of international humanitarian law; b) render justice to the victims; c) deter further crimes; and d) contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia. Such purposes will be achieved by investigating, prosecuting and punishing individuals for the following crimes committed on the territory of the former Yugoslavia since 1991: a) grave breaches of the 1949 Geneva Conventions; b) violations of the laws or customs of war; c) genocide; and d) crimes against humanity.
The ICTY has concurrent jurisdiction with national courts over serious violations of international humanitarian law committed in the former Yugoslavia. In cases where it proves to be in the interests of international justice, the ICTY may claim primacy over national courts and take over national investigations and proceedings at any stage.
The ICTY Chambers previously consisted of 16 permanent judges and a maximum of nine ad litem judges. Currently the tribunal is made up of 28 judges from 26 countries. Following the adoption of Security Council resolution 1660 (2006) the tribunal’s assignment of serving ad litem judges has increased from a maximum of 9 to 12. This allows reserve judges to be assigned to trials to prevent possible delay should more than one of the judges be unable to complete the trial. The permanent judges are elected by the UNGA for a term of four years and can be re-elected. The judges are divided between three Trial Chambers and one Appeals Chamber and represent the main legal systems in the world. They hear testimony and legal arguments, decide on the innocence or the guilt of the accused and pass sentence. Furthermore, they draft and adopt the legal instruments regulating the functioning of the ICTY, such as the Rules of Procedure and Evidence.
The Tribunal has its seat in The Hague, The Netherlands. As of March 2010 the Tribunal has indicted a total of 161 persons, proceedings have been concluded against 120 persons and are ongoing for 40 accused. More than 5000 witnesses have testified before the Tribunal.
In rendering judgements the Tribunal has set important precedents of international criminal and humanitarian law as many legal issues adjudicated by the Tribunal have never before been addressed legally, or have lain dormant since the Nuremberg and Tokyo trials.
International Criminal Tribunal for Rwanda (ICTR)
The UN Security Council created the International Criminal Tribunal for Rwanda by Resolution 955 of 8 November 1994 to prosecute persons responsible for genocide and other serious violations The United Nations of international humanitarian law, committed on Rwandan territory between 1 January 1994 and 31 December 1994. The ICTR may also prosecute Rwandan nationals charged with committing such crimes in neighbouring countries during that same period.
The purpose of the Tribunal is, inter alia, to contribute to the process of national reconciliation in Rwanda and to the maintenance of peace in the region. The Tribunal consists of the Chambers and the Appeals Chamber, the Office of the Prosecutor and the Registry. The judges of the Tribunal are elected by the UNGA, and should be of different nationalities. Three judges sit in each of the Trial Chambers and seven judges are members of the Appeals Chamber, which is shared with the ICTY. The Office of the Prosecutor is an independent, separate organ that investigates crimes within the Tribunal’s jurisdiction, prepares charges and prosecutes accused persons. The Registry manages the overall administration of the Tribunal. The Registry is headed by the Registrar who provides judicial and legal support services for the work of the Trial Chambers and the Prosecution.
As of March 2010, two individuals, accused of involvement in the Rwandan genocide of 1994 awaited trial, 24 cases were in progress. The Tribunal has convicted 31 individuals, acquitted eight and two cases had been referred to national courts.
Decisions on hundreds of motions and different points of law have been given where the Tribunal has laid down important principles of international law which will serve as precedents for other international criminal tribunals. The Akayesu case decided in 1998 was the first in which an international tribunal was called upon to interpret the definition of genocide as laid down in the Convention for the Prevention and Punishment of the Crime of Genocide. The Chamber also defined the crime of rape, underscoring that rape and sexual violence may constitute genocide if committed with the intent to destroy a particular group targeted as such. Jean Kambanda, former Prime Minister of Rwanda, was the first head of government to be convicted for the crime of genocide and in the Media Case the Tribunal issued the first judgement since the Nurnberg trials where the role of the media was examined in the context of international justice.
The Tribunal has advocated victim-orientated, rehabilitative justice by, for instance, providing legal guidance, medical care and psychological counselling to victims. Improved post trial monitoring and protective measures have been implemented within the countries of residence of witnesses, increasing the number of witnesses residing in Rwanda who receive medical and psychological follow up assistance.
The Tribunal has its seat in Arusha, United Republic of Tanzania.
The International Criminal Court (ICC)
On 17 July 1998, a UN Diplomatic Conference adopted the Rome Statute of the International Criminal Court (ICC), establishing a permanent international criminal court with its seat in The Hague, The Netherlands. The idea of a permanent court was set in motion by the unsuccessful attempts to establish an international tribunal after the First World War. Following the Second World War, the Nuremberg and Tokyo war crimes tribunals gave impetus for efforts to create a permanent court. It was first considered at the UN level in the context of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Further developments were effectively forestalled by differences of opinions for many years. Finally, in 1992, the UNGA directed the International Law Commission to elaborate a draft statute for an international criminal court. Further public interest was created by the Security Council‘s establishment of the International Criminal Tribunals for the Former Yugoslavia in 1993 and for Rwanda in 1994. In December 1994, the UNGA established an Ad Hoc Committee of all UN Member States and members of UN Specialised Agencies to review the final version of the International Law Commission’s draft statute.
In December 1995, the UNGA created a Preparatory Committee to ‘discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and [...] to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries’. The Preparatory Committee submitted for consideration a 13-part, 116-Article draft statute for the ICC. As it concluded five weeks of deliberations, the Diplomatic Conference adopted the Statute for the Court by a vote of 120 in favour to 7 against, with 21 abstentions. As of March 2010, 110 states are party to the Statute.
The Statute establishes the ICC as a permanent institution with power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in the Statute. The jurisdiction of the ICC is of a complementary nature to national criminal jurisdictions. The Statute sets out the Court’s jurisdiction, structure and functions. It entered into force on 1 July 2002.
Article 5 of the Statute lists the four categories of crimes within the jurisdiction of the Court: genocide, war crimes, crimes against humanity and aggression. The Court shall not, however, exercise jurisdiction over aggression until a provision is adopted under the procedure for amending the Statute defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to it. States parties can bring a situation to the Court’s attention as well as the UN Security Council. Furthermore, the Prosecutor can initiate an investigation under propio motu powers.
The Court may exercise its jurisdiction over a specific case when either the state in whose territory the crime was committed or the state of the nationality of the accused is a party to the Rome Statute. Non-party states may also accept the Court’s jurisdiction on a case-by-case basis. The Security Council may also refer situations to the Court, whether or not the state concerned is a party to the Statute. The Security Council, acting under Chapter VII of the UN Charter, may prevent the Court from exercising its jurisdiction for one-year periods.
As of March 2010, four situations had been referred to the court. Uganda, the Democratic Republic of the Congo and the Central African Republic have referred situations occurring on their territories to the Court, and the Security Council, acting under Chapter VII UN Charter, has referred a situation on the territory of a non-state party (Darfur, Sudan). In the situation in Uganda one case was being heard before Pre-Trial Chamber II. In the situation in the Democratic Republic of the Congo three cases were being heard before the relevant Chambers. In Darfur, Sudan three cases were being heard before Pre-Trial Chamber I. In the situation in the Central African Republic one case was being heard before Pre-Trial Chamber II.
3. Functional United Nations Commissions
The Commission on the Status of Women
The Commission on the Status of Women (CSW) was established by ECOSOC Resolution 11(II) in 1946. It is the main UN organ dealing with women’s issues. Its mandate is to prepare reports for the ECOSOC on matters concerning the promotion of women’s rights in the political, economic, social and educational fields. The CSW may also make recommendations to the ECOSOC on problems requiring immediate attention in the field of women’s rights. The CSW is the forum for evaluation of the implementation of the 1995 Beijing Fourth World Conference on Women. The Commission functioned as the Preparatory Committee for the World Conferences on Women, which took place in Mexico (1975), Copenhagen (1980), Nairobi (1985) and Beijing (1995). The Commission membership consists of 45 states elected by the ECOSOC for a period of four years The United Nations on a regional basis ensuring equitable geographical distribution. The Commission meets annually for a period of eight days in New York.
Mention should be made of the Division for the Advancement of Women (DAW), part of the Division for Social Policy and Development, the focal point for all activities relating to women. Its programmes relate particularly to monitoring the ‘Forward-Looking Strategies’ developed during the World Conferences. The DAW acts as a secretariat for the CSW (see II§1.C). The DAW also undertakes and co-ordinates research; expert group meetings and advisory seminars, particularly on priority themes selected by each CSW session.
The Commission for Social Development
The Commission for Social Development is another functional commission of the ECOSOC. It was originally created in 1964, but its terms of reference were later redefined, when the number of members was increased to 32. In 1996 the membership was expanded again, to 46 members. The Commission advises the ECOSOC on issues of ocial welfare and the most vulnerable groups in society. It is particularly active in areas lying outside the field of work of the UN Specialised Agencies and seeks to pursue an integrated approach to social and economic development, based on social justice and the distribution of power, responsibility and prosperity among all sections of society. The Declaration on Social Progress and Development, which was approved by the UNGA in 1969, has proved a significant aid to the Commission’s programme of work.
The Commission on Crime Prevention and Criminal Justice
Another commission, established by the ECOSOC in 1992, is the Commission on Crime Prevention and Criminal Justice (‘Crime Commission’). The Commission’s main duties lie in the field of international co-operation on penitentiary and criminal matters, such as penal justice and crime prevention. Promoting respect for human rights also forms a substantial element in the work programme of the Commission (UNGA Resolution 46/152). The Commission meets annually for a period of ten days in Vienna. The Crime Commission plays an important role in preparing the conferences held every five years by the UN on preventing crime and the treatment of delinquents. Its work, therefore, sometimes spills over into the field of human rights. For example, the first conference (1955) drew up Standard Minimum Rules for the Treatment of Prisoners, while the fifth conference (1975) prepared the text for a Declaration on the Protection of All Persons against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Declaration was approved in the same year by the UNGA. The
International Law Commission
The International Law Commission (ILC), established by the UNGA in 1947 by Resolution 174(III), is mandated to promote the development and codification of international law. It drafts conventions for areas in which international law has not been developed or has been insufficiently developed, or introduces necessary improvements. The Commission is made up of 34 individuals not being representatives of their governments — who have a proven track record in the field of international law. They are elected by the UNGA for a period of five years from a list of candidates nominated by the UN member states.
As far as human rights are concerned, the Commission is involved, among other things, in preparing international agreements on the problems of nationality and statelessness. The Commission also spends much time developing international criminal law. Notable recent activities relate to the adoption of the Statute for the International Criminal Court (1994) and the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001).
C. Standards and supervisory mechanisms
The UN plays a pre-eminent role in the field of standard-setting. The former UN Commission on Human Rights often took the initiative of drafting of human rights standards, frequently in co-operation with the Sub-Commission. Sometimes specific working groups or drafting groups are mandated. It is important to realise that elements for new instruments are often taken from proposals by one country, from final documents of colloquia and round table meetings, and especially from submissions by NGOs. The process has not been standardised. It has become accepted to submit texts for technical review by individual experts or expert bodies. In addition, texts are often submitted to governments after a first reading for comments, after which, in a second reading procedure, outstanding issues are tackled.
The drafting of texts can be a very taxing effort, not guaranteeing a flawless process. It took, for example, more than fifteen years to draft the ICCPR and the ICESCR, while one of the latest conventions the Convention on the Rights of Persons with Disabilities (CRPD) was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006, making it the fastest negotiated human rights treaty in history. Guidelines for drafting may be found in UNGA Resolution 41/120, which stipulates that only clear, meaningful, consistent proposals, commanding large support, should be considered. The CSW and the Crime Commission are also involved in standard-setting within their areas of competence. The CSW drafted, for instance, the Optional Protocol to CEDAW.
To supervise compliance with the standards formulated, a wide range of mechanisms has been established in the UN system in the past fifty years. In the overview that follows, the distinction is made between treaty-based procedures, such as the Human Rights Committee, and charter-based procedures, such as the appointment of special rapporteurs (see I.??6).
Before discussing the treaties, mention must be made of the Universal Declaration of Human Rights, which, together with the Covenants, forms the Universal Bill of Human Rights (see I??1.A) and is considered the major human rights standard, although, as a declaration, it is not accompanied by a specific supervisory procedure.
1. Treaties and Treaty-Based Procedures
The seven major UN human rights treaties are the two Covenants (ICESCR and ICCPR), CERD, CEDAW, CAT, CRC and CRPD. In addition, mention should be made of the CMW, which entered into force in 2003 and the Convention for the Protection of All Persons from Enforced Disappearances (not yet in force in March 2010).
Each of these treaties has a supervisory body. These bodies consist of experts of high moral character and recognised competence in the field of human rights. They act in their personal capacity, which means that although they are normally nationals of a state party to the treaty in question, they are not acting under instructions from the respective governments. The treaty-based procedures are the mechanisms established within the context of a specific human rights treaty. CERD (1965) was the first human rights treaty of universal application to provide for a mechanism of supervision. This mechanism subsequently served as a model for other human rights treaties, notably ICCPR. The treaty bodies, with the exception of the Committee on Economic, Social and Cultural Rights, derive their status from the treaty concerned. To implement these treaties, regular meetings of states The United Nations parties are held to discuss issues regarding the treaties, mainly in connection with the election of members to the treaty bodies. As mentioned in Part I, there are different types of supervisory procedures: reporting procedures, inter-state complaint procedures, individual complaint procedures and inquiry procedures.
The ICESCR and the Committee on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by UNGA Resolution 2200 A (XXI) of 16 December 1966. It entered into force 3 January 1976. In March 2010, 160 states were party to the Covenant.
The Preamble of the Covenant recognises, inter alia, that economic, social and cultural rights derive from the ‘inherent dignity of the human person’ and that ‘the ideal of free human beings enjoying freedom of fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as civil and political rights’. The Covenant recognises the right to work (Article 6); the right to just and favourable conditions of work (Article 7); the right to form and join trade unions and the right to strike (Article 8); the right to social security including social insurance (Article 9); the right to protection and assistance for the family and the prohibition of child labour (Article 10); the right to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11); the right to the highest attainable standard of physical and mental health (Article 12); the right to education, the freedom of parents to choose schools other than those established by public authorities (Articles 13 and 14) and the right to take part in cultural life and to benefit from scientific progress (Article 15).
The supervisory body of the ICESCR is the Committee on Economic, Social and Cultural Rights. The Committee is a supervisory body of the ECOSOC, which is responsible for monitoring implementation of the Covenant. Originally, the ECOSOC had delegated this work to a working group of government experts. In 1985, however, the ECOSOC decided to convert the working group into a Committee on Economic, Social and Cultural Rights. The Committee is made up of 18 experts acting in their personal capacity. The election of members takes place in the ECOSOC by means of a secret ballot based on a list of candidates put forward by the states parties to the Covenant. Even members of ECOSOC that are not parties to the Covenant can vote. Members of the Committee are elected for a period of four years and may stand for re-election. The Committee normally meets twice each year in Geneva, for three weeks at a time. Meetings are held in public. The Committee reports to the ECOSOC and may also make recommendations. The Committee formally took up its duties on 1 January 1987.
The original supervisory mechanism envisaged in the ICESCR is the reporting procedure (see I§6.A). States that are party to the Covenant are required to submit reports about the realisation of the rights recognised in the Covenant to the UN Secretary-General, who transmits them to the ECOSOC (Articles 16 to 21 ICESCR). The Committee on Economic, Social and Cultural Rights is responsible for studying the reports. Reporting is based on a five-year cycle whereby all articles have to be dealt with.
The question of adopting an Optional Protocol to the ICESCR providing for a system of individual and collective complaints such as that in place as for violations of civil and political rights was under consideration by the international community for decades. Finally, in June 2008, the text of an Optional Protocol was adopted by the Human Rights Council, subsequently adopted by the UNGA on 10 December 2008, on the 60th Anniversary of the Universal Declaration of Human Rights. The Optional Protocol provides for the following supervisory mechanisms: a) inter-state complaint procedure (Article 10); b) individual and collective complaints mechanism (Articles 1 and 2); and c) inquiry procedure (Article 11).
As of March 2010, the Committee has adopted 19 General Comments (see I??1.C).
The ICCPR and the Human Rights Committee
The International Covenant on Civil and Political Rights (ICCPR) was adopted by UNGA Resolution 2200 A (XXI) of 16 December 1966. It entered into force 23 March 1976. As of March 2010, 165 states were party to the Covenant and a further nine signatories were pending ratification.
Part I of the Covenant contains only one article, Article 1, the right to self-determination, which is identical to Article 1 ICESCR. Part II of the Covenant contains Articles 2 to 5, which refer to the nature of obligations, the territorial and personal scope of the Covenant and the principle of non-discrimination (Article 2) which is complemented by Article 3, guaranteeing the equality between men and women in the enjoyment of the Covenant rights. Article 4 allows states to take measures derogating from their obligations under the Covenant and Article 5 establishes a prohibition of abuse of rights (Article 5(1)) and a saving clause (Article 5(2)). Part III of the Covenant contains the following substantive rights: the right to life (Article 6); freedom from torture, inhuman and degrading treatment or punishment (Article 7); freedom from slavery, servitude and forced labour (Article 8); rights to liberty and security of the person (Article 9); right of detained persons to humane treatment (Article 10); freedom from imprisonment for inability to fulfil a contract (Article 11); freedom of movement (Article 12); right of aliens to due process when expelled (Article 13); right to a fair trial (Article 14); freedom from retroactive criminal law (Article 15); right to recognition as a person before the law (Article 16); right to privacy (Article 17); freedom of thought, conscience, and religion (Article 18); freedom of opinion and expression (Article 19); freedom from war propaganda and freedom from incitement to racial, religious or national hatred (Article 20); freedom of assembly (Article 21); freedom of association (Article 22); right of protection of the family and the right to marry (Article 23); right of protection of the child (Article 24); right of participation in public life (Article 25); right to equality before the law and right of non-discrimination (Article 26); and rights of minorities (Article 27).
The supervisory mechanism established in the ICCPR is the Human Rights Committee, which should not be confused with the Human Rights Council. The Committee is an organ established under Article 28 ICCPR. It is made up of 18 experts who are elected by the states parties to the Covenant in their personal capacity for a period of four years. The Committee meets three times a year, each time for three weeks (once in New York and twice in Geneva). The Committee is responsible for supervising compliance with the Covenant.
The following supervisory mechanisms exist under the ICCPR and its First Optional Protocol:
a) Reporting mechanism (Article 40). All states parties to the Covenant must submit a report one year after the Covenant has come into effect for them, describing the measures which they have taken to implement the rights recognised in the Covenant and the progress made in the enjoyment of those rights. In addition, the Committee has established that each state party has to submit a report every five years.
b) Inter-state complaint procedure (Articles 41 to 43). The procedure is optional. No party to the Covenant has made use of the procedure so far, partly because most countries that systematically violate human rights have not recognised the competence of the Committee in this respect, and partly because of the political nature of the procedure.
c) Individual complaints mechanism (set out in the First Optional Protocol to the ICCPR). This complaints procedure may only be invoked if the state concerned is a party to the Pro- The United Nations 103 Umbrotið FYRIR GUÐRÚNU - Nota_Layout 1 8.4.2010 11:19 Page 103 tocol (as of December 2008, 111 states had ratified it). The main aspects of the procedure are regulated in Articles 2 to 5 of the Protocol, which, inter alia, provides that the Committee will make its findings (called ‘views’) known to the state concerned and to the complainant (Article 5(4)). The Committee has given its views on more than fifteen hundred individual cases. The views are published in a form that has many of the characteristics of a judgement and may be regarded as ‘case-law’ of the Committee. In 1990, the Committee created the function of Special Rapporteur for the Follow-Up of Views. In 1995, the Committee approved a follow-up fact-finding mechanism, which was first used during a mission to Jamaica in 1995.
The Committee has a solid and respectable record in examining country reports and individual complaints. When a country report is being considered, representatives of the state concerned get a chance to explain the report at a public session. Members of the Committee then have an opportunity to question the representatives, which they sometimes do in a forceful and critical manner. Over the years, NGOs have begun to play a substantive role in the procedure.
In addition, the ICCPR stipulates that the Committee may formulate General Comments on the reports it has considered (Article 40(4)). The Committee has made highly creative use of these powers by publishing a series of General Comments over the years, which include an authoritative explanation and elaboration of various material provisions of the Covenant. As of February 2009, 33 General Comments have been adopted that relate to the experience gained regarding the provisions of the Covenant.
The CERD and the Committee for the Elimination of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted by UNGA Resolution 2106 A (XX) of 21 December 1965. It entered into force on 4 January 1969. As of February 2009, 173 states were party to the Convention.
The CERD contains a number of detailed prohibitions and obligations to prevent discrimination on the grounds of race, colour, origin and national or ethnic background. The Convention particularly condemns racial segregation and apartheid (Article 3) and propaganda and promotion of discrimination are prohibited (Article 4). Furthermore, non-discrimination in relation to specific rights, such as the right to equal treatment before tribunals, the right to marriage, the right to housing and freedom of opinion and expression are set out (Article 5). Finally, states parties shall assure effective protection and remedies against acts of racial discrimination (Article 6) and states pledge to combat prejudices that lead to racial discrimination (Article 7).
The Convention provides for a Committee on the Elimination of Racial Discrimination (Article 8), consisting of 18 experts elected in their personal capacity by states parties to the Convention for a period of four years. The Committee is the only committee where states parties bear the costs; this can be problematic, as it has occurred that a session has been cancelled because of lack of funds. The Committee meets twice each year for three weeks in Geneva.
The supervisory mechanisms envisaged by the CERD are the following:
a) Reporting mechanism (Article 9). The Committee will consider the reports that the states submit to the UN Secretary-General on the legislative, judicial, administrative or other measures that they have adopted and that give effect to the provisions of the Convention. These reports have to be submitted one year after entry into force of the Convention for the state concerned, and, thereafter, every four years or whenever the Committee so requests. The Committee is also entitled to request further information from the states. The Committee reports on its activities annually to the UNGA, through the Secretary General, and may make suggestions and general recommendations based on the examination of the reports and information received. The system of reporting has developed into the most important monitoring procedure under the CERD. Over the years, NGOs started to play a significant role in the procedure.
b) Inter-state complaint mechanism (Article 11). If a state party considers that another state party is not giving effect to the provisions of the Convention, it may bring the matter to the attention of the Committee. The Committee will transmit the communication to the state concerned. Within three months, the receiving state shall submit to the Committee a written explanation or statement clarifying the matter and the remedy, if any, adopted by that state. Articles 12 and 13 refer to an ad hoc Conciliation Commission, which the chairman of the Committee shall appoint once the Committee has obtained and collated all the information it thinks necessary in the dispute. The good offices of the Conciliation Commission shall be made available to the states concerned with a view to an amicable resolution of the matter, on the basis of respect for the Convention. So far, there have been no inter-state complaints and, thus, the conciliation procedure has never become operative.
c) Individual complaints mechanism (Article 14). The Article recognises the right of petition (‘communications’) by individuals or groups of individuals on an optio-nal basis. Around 40 states have opted in. By December 2008, the Committee has reviewed and made recommendations in 43 cases. If the state party concerned has recognised the right to petition, a (group of) individual(s) have the right to communicate a matter to the Committee, within six months of the exhaustion of all local remedies. The Committee will bring the communication to the attention of the state accused. The state will have three months to submit written explanations to the Committee. The Committee must forward its suggestions and recommendations, if any, to the state concerned and the petitioner. As of March 2010, the Committee has published 33 General Recommendations.
The CEDAW and the Committee for the Elimination of Discrimination against Women
The Convention on the Elimination of All forms of Discrimination against Women (CEDAW) was adopted by UNGA Resolution 34/180 of 18 December 1979. It entered into force 3 September 1981. As of March 2010, 186 states were party to the Convention, many with a considerable number of reservations that have significantly undermined the effectiveness of the Convention.
Part I of the Convention contains general standards. Article 2 and 3 set out different measures that states undertake to eliminate discrimination against women and to ensure their full development and advancement. These measures include the adoption of appropriate legislative measures and refraining from engaging in any acts of discrimination against women. Article 4 sets out that ‘affirmative action’ and measures aimed at protecting maternity will not be considered discriminatory, and Article 5 stipulates that states shall take all appropriate measures to modify cultural patterns that perpetuate discrimination, and ensure that family education includes an understanding of maternity as a social function. Finally, states undertake to suppress trafficking and exploitation of prostitution of women (Article 6). Part II sets out that states must take measures to eliminate discrimination as regards certain fields. States must ensure to women on equal terms with men, inter alia: the right to participation in political and public life (Article 7); the opportunity to represent their governments internationally (Article 8); and the right to change and retain their and their children’s nationality (Article 9). Part III of the Convention sets out that states must take appropriate measures to eliminate discrimination in regard to certain social and economic issues: education (Article 10); work, including on the grounds of marriage and maternity (Article 11); health (Article 12); and the right to benefits and loans and to participate in cultural life (Article 13). The particular problems faced by rural women and measures that states undertake to eliminate discrimination against this group are also contemplated (Article 14). Part IV establishes equality before the law (Article 15) and that states must undertake measures to eliminate discrimination in relation to marriage and family relations (Article16).
Under Article 17 of the Convention, the Committee for the Elimination of Discrimination against Women (CEDAW Committee) is responsible for supervising international compliance with the Convention. The Committee is composed of 23 experts (lawyers, teachers, diplomats and experts on women’s affairs), acting in their individual capacity. The members are elected for a period of four years by the states parties to the Convention. The CEDAW Committee maintains close contact with the other Committees set up under the terms of UN human rights conventions, with the UN Specialised Agencies and the CSW.
Under the Convention itself the only supervisory mechanism established is the reporting system. In accordance with Article 18, each state party is required to report to the CEDAW Committee on the measures taken to comply with the Convention within one year of its becoming a party. Subsequently, every four years a periodic report is due. Although the responsibility for drafting the reports lies with the government, NGOs can also be involved in order to produce as complete a picture of the situation in the country as possible.
On 6 October 1999, the UNGA adopted an Optional Protocol to CEDAW. The Optional Protocol entered into force on 22 December 2000. In March 2010, 99 states were parties to the Optional Protocol.
The Optional Protocol contains two additional supervisory mechanisms:
a) Individual complaints mechanism (Article 1). This procedure allows individual women, or groups of women, to submit claims of violations of rights protected under the Convention to the Committee. The Protocol establishes that in order for individual communications to be admitted for consideration by the Committee, a number of criteria must be met, including that all domestic remedies must have been exhausted. The entry into force of the Optional Protocol has put it on an equal footing with ICCPR, CERD and CAT, which all have individual complaints procedures. As of January 2010, the Committee has heard five cases.
b) Inquiry procedure (Article 8). The Protocol sets out a unique inquiry procedure that enables the Committee to initiate inquiries into situations of grave or systematic violation of women’s rights and carry out country visits. The Protocol includes an ‘opt-out clause’, allowing states upon ratification or accession to declare that they do not accept the inquiry procedure. This inquiry procedure is similar to that established in CAT. As of February 2010, the Committee has issued 33 General Recommendations.
The CAT and the Committee against Torture
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted by UNGA Resolution 39/46 of 10 December 1984. It entered into force 26 June 1987. As of March 2010, 146 states were parties to the Convention.
In the Preamble to the Convention, states express their desire ‘to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’. To this end, states parties undertake to establish effective legislative or other measures to prevent acts of torture and establish that neither a state of emergency nor superior orders can be invoked as justification for torture (Article 2). States undertake to ensure that acts of torture are punishable under criminal law (Article 4) and expulsion or refoulement is prohibited when there is danger that torture will be inflicted (Article 3). States parties must establish jurisdiction over offences of torture committed by their nationals, on their territory or against their nationals and universal jurisdiction is set out requiring states to establish jurisdiction in cases where the offender is on their territory or under their jurisdiction and they do not extradite (Article 5). States parties undertake to take alleged offenders into custody, carry out inquiries, prosecute and extradite (Articles 6, 7 and 8) and they pledge cooperation (Article 9). Article 10 sets out that states must ensure that education on the prohibition of torture is provided to law enforcement personnel and others involved with the treatment of individuals deprived of their liberty. States must take preventive measures, such as reviewing rules of interrogation (Article 11), prompt and impartial investigation must be carried out (Article 12) and states must ensure remedy, redress, and reparation to victims of torture (Articles 13 and 14). Finally, Article 15 sets out that statements made as a result of torture may not be invoked as evidence in any proceedings.
Under Article 17 CAT, a Committee of ten independent experts is made responsible for supervising compliance with the Convention. The experts are elected for a period of four years by the parties to the Convention. Their election takes account of ‘equitable geographic distribution’. The Committee was established on 26 November 1987, and meets twice a year for two weeks in Geneva.
The CAT supervisory mechanisms are the following:
a) Reporting mechanism (Article 19). Within one year after the Convention has come into effect for the state concerned, its government must submit a written report to the Committee describing the measures it has taken to implement its obligations under the Convention. It must submit supplementary reports every four years concerning new measures that have been taken and any other reports requested by the Committee. The Committee may include General Comments on the country reports in its annual report to the UNGA and to the states parties to the Convention. The governments concerned may respond to the comments with their own observations (Article 19(3)).
b) Inter-state complaint mechanism (Article 21). The Committee may deal with communications submitted by a state party to the Convention whereby non-compliance with obligations under the Convention by another state party to the Convention is claimed. It is an optional procedure: it may be only instituted if both states concerned have made a declaration recognising, in regard to itself, the competence of the Committee.
c) Individual complaints procedure (Article 22). The Article contains provisions to deal with complaints submitted by individuals. For this procedure, the state party to the Convention against which the complaints are being made must have recognised the right to complain in advance. The procedures have the same features as those of the ICCPR and its First Optional Protocol. As of December 2008, more than 150 cases have been decided.
d) Inquiry procedure (Article 20). If the Committee receives reliable information that suggests ‘well-founded indications’ that torture is ‘being systematically practised’ in a state that is a party to the Convention, it may appoint one or more of its members to undertake a confidential investigation. It may visit the country in question with the consent of its government. The Committee sends its findings to the government with its comments or proposals. The Committee’s work during the investigation stage is confidential. On the other hand, the Committee may decide to include a brief report of the results of its work in its annual report, on completion of an investigation. This sanction could give weight to the Committee’s position in its dealings with the government concerned. However, a state that is party to the Convention may refuse to accept application of Article 20.
In addition to its supervisory mandate, the Committee has drafted an Optional Protocol to the Convention (OPCAT). The Protocol, which entered into force in 2006, establishes a unique ‘two pillar’ visiting mechanism both international and national to prevent torture in all places where persons are deprived of liberty. Under the OPCAT the Subcommittee on Prevention, composed of international experts, conducts periodic visits to all places where persons are deprived of liberty (such as prisons, police stations, psychiatric institutions and juvenile or migrant centres) in the states parties to the Protocol. The Subcommittee is complemented by National Preventive Mechanisms (NPMs) that also undertake regular visits to places of detention and should be able to carry out more thorough visits than the Subcommittee in light of local knowledge and the potential for more effective follow-up. The Subcommittee and the NPMs should build a constructive dialogue with the authorities and provide recommendations on effective measures to be taken in order to prevent torture and ill-treatment.
The CRC and the Committee on the Rights of the Child
The Convention on the Rights of the Child (CRC) was adopted by UNGA Resolution 44/25 on 20 November 1989. It entered into force on 20 September 1990. This treaty is the human rights treaty with the most parties; as of March 2010, 193 states were parties to the Convention.
Under the CRC, a child is any person below the age of 18, unless, under applicable laws, majority is attained earlier (Article 1). The Convention sets out the principle of non-discrimination (Article 2) and that the best interest of the child should be a primary consideration in all actions concerning children (Article 3). States must undertake measures to implement the rights in the Convention (Article 4) and respect the rights and duties of parents or extended family to give appropriate guidance and direction in the exercise by the child of the rights in the Convention (Article 5). The Convention sets out civil and political rights as well as economic, social and cultural rights: the right to life (Article 6); the right to a name and nationality (Article 7); the right to preserve one’s identity (Article 8); the freedom of expression, opinion, thought, conscience and religion (Articles 12, 13 and 14); freedom of association and assembly (Article 15); the right to privacy (Article 16); the right to receive information (Article 17); the right to health (Article 24); the right to benefit from social security (Article 26); the right to an adequate standard of living (Article 27); the right to education (Article 28); the right of rest and leisure and to participate in cultural life (Article 31); freedom from torture (Article 37); and the right to due process (Article 40). The Convention also contains provisions prohibiting separation from parents except in exceptional circumstances (Article 9) and the obligation of states parties to aid family reunification (Article 10). States parties undertake to take special measures: to combat illicit transfer and non-return of children abroad (Article 11); to protect children from abuse or neglect, and afford special protection if they are deprived of their families (Articles 19 and 20); to ensure that, in systems of adoption, the best interest of the child is paramount (Article 21); to protect children from economic exploitation and hazardous work (Article 32); to protect children from sexual exploitation and abuse (Article 34); to protect children from drug abuse (Article 33); to prevent trafficking in children and all exploitation (Articles 35 and 36); to ensure that children under 15 do not take part in armed conflict (Article 38); and to provide rehabilitative care to children that need it (Article 39). In addition, special protection is set out for particular groups, such as refugee children, handicapped and disabled children and minority and indigenous children (Articles 22, 23 and 30).
Article 43 of the CRC establishes a Committee on the Rights of the Child. The Committee held its first meeting in October 1991. The Committee was originally composed of ten experts, but currently consists of 18 experts elected for a four-year term. The election takes geographical distribution as well as principal legal systems into account. The Committee meets three times a year in Geneva, each time for three weeks. Its task is the supervision of the implementation of the CRC, mainly through a reporting mechanism.
The only supervisory mechanism established by the CRC is the reporting system under Article 44 CRC. The initial report is to be submitted within two years after the entry into force of the Convention for the state party concerned, and thereafter every five years. The Committee reports every two years to the UNGA and may submit suggestions and general recommendations to it. At its first session, the Committee formulated general guidelines regarding the form and content of initial reports (see UN Doc. A/47/41). This report must include, inter alia, the definition of a child under national law, application of general principles, and paragraphs on family environment and alternative care, basic health, education and special protection measures.
On 25 May 2000, two additional Optional Protocols to the Convention were adopted; on the Involvement of Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography.
The Optional Protocol on the Involvement of Children in Armed Conflict entered into force on 12 February 2002. As of February 2009, 127 states were parties to the Protocol. The Protocol prohibits governments and other groups from recruiting people under the age of 18 to the armed forces. It requires that countries raise the minimum recruiting age above the age set by the CRC; do everything possible to keep people under the age of 18 from direct participation in hostilities; take precautions against the voluntary recruitment of people under the age of 18; and report to the CRC Committee on their compliance with the provisions of the Convention and the Protocol.
The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography entered into force on 18 January 2002. As of February 2009, 130 states were parties to the Protocol. It supplements the Convention with detailed requirements for criminalising violations of children’s rights in relation to the sale of children, child prostitution and child pornography. The Protocol defines the offences ‘sale of children’, ‘child prostitution’ and ‘child pornography’. It sets standards for treating violations under domestic law, not only as they relate to offenders, but also as regards preventive efforts and the protection of victims. It also gives a framework for increased international co-operation in these areas, in particular for prosecuting offenders (see IV§2).
The CMW and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families
The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) was adopted by UNGA Resolution 45/158 of 18 December 1990. Thirteen years passed before it entered into force on 1 July 2003. As of March 2010, 42 states were parties to the Convention.
Part I of the Convention sets out definitions and Part II sets out the principle of non-discrimination. Part III contains the following substantive rights: the freedom of movement (Article 8); the right to life (Article 9); prohibition of torture (Article 10); prohibition of slavery or forced labour (Article 11); freedom of thought, conscience and religion (Article 12); freedom of opinion and information (Article 13); privacy (Article 14); property (Article 15); liberty and security (Article 16); humane treatment under detention and fair trial (Article 17); equality before the courts (Article 18); nullum crimen, nulla poena sine previa lege (Article 19); the right not to be imprisoned for debt (Article 20); the right to consular assistance (Article 23); the right to be recognised before the law (Article 24); freedom of association (Article 26); social security and medical care (Articles 27 and 28); cultural identity (Article 31); and the right to transfer earnings and savings (Article 32). In addition, the Convention stipulates that it is prohibited to destroy identity documents of migrant workers (Article 21) and sets out rules governing the expulsion of migrant workers and their families (Article 22). Furthermore, it contains special provisions on children of migrant workers, establishing that they must have the right to a name, to registration of birth and to a nationality (Article 29), as well as the right to education (Article 30). Finally, the Convention establishes that migrant workers must not receive treatment less favourable than nationals in respect of remuneration (Article 25), and that they have the right to be informed about their rights under the Convention.
The Convention is monitored by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. The Committee consists of fourteen experts elected in accordance with the procedure set forth in the Convention (Article 72).
The Convention seeks to prevent and eliminate the exploitation of migrant workers throughout the entire migration process by providing a set of binding international standards to address the treatment, welfare and human rights of both documented and undocumented migrants, as well as the obligations and responsibilities on the part of sending and receiving states. In particular, it seeks to put an end to the illegal or clandestine recruitment and trafficking of migrant workers and discourage the employment of migrant workers in an irregular or undocumented situation.
The CMW supervisory mechanisms are the following:
a) Reporting mechanism (Article 72). States parties accept the obligation to report on the steps they have taken to implement the Convention within one year of its entry into force for the state concerned, and thereafter every five years. The reports are expected to indicate problems encountered in implementing the Convention, and to provide information on migration flows. After examining the reports, the Committee will transmit such comments as it may consider appropriate to the state party concerned.
b) Inter-state communications (Article 77). A state party may recognise the competence of the Committee to receive and consider communications from one state party alleging that another state party is not fulfilling its obligations under the Convention. Such communications may be received only from states parties that have recognised this competence. The Committee will deal with a matter referred to it in this way only after all available domestic remedies have been exhausted, and may propose its good offices in an effort to reach a friendly solution. This procedure requires ten declarations by states parties to enter into force.
c) Individual communications (Article 77). A state party may recognise the competence of the Committee to receive and consider communications from or on behalf of individuals within that state’s jurisdiction who claim that their rights under the Convention have been violated. Such communications may be received only if they concern a state party that has recognised this competence. If the Committee is satisfied that the matter has not been, and is not being, examined in another international context, and that all domestic remedies have been exhausted, it may call for explanations, and express its views. This procedure requires ten declarations by states parties to enter into force.
The CRPD and the Committee on the Rights of Persons with Disabilities
The Convention on Rights of Persons with Disabilities (CRPD) was adopted by UNGA Resolution 61/106 of 13 December 2006. It entered into force on 2 May 2008. As of March 2010, 82 states were parties.
The purpose of the Convention is to ‘ensure the full, effective and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity.’ Article 2 enshrines the principles upon which the Convention is based: dignity, freedom of choice, independence, non-discrimination, full inclusion, participation, respect for difference, acceptance of disability as part of human diversity, and equality of opportunity, accessibility, equality between men and women and respect for the evolving capacities of children with disabilities and their right to preserve their identities.
States parties undertake to ensure the full realisation of all human rights, to all individuals, without discrimination on the basis of disability. Steps to this end include the adoption of appropriate legal protection, the mainstreaming of disability issues into economic and social development policies and programmes, and the promotion of universally designed goods, services, equipment and facilities. States shall also consult with and actively engage persons with disabilities and their organisations in the development and implementation of policies and legislation aimed at implementing the Convention (Article 4). The Convention prohibits discrimination (Article 5) and stipulates special protection for disabled women and children (Articles 6 and 7). States parties have a duty to adopt immediate and effective measures to raise awareness of disability throughout society, to combat stereotypes and promote an image of persons with disabilities as capable and contributing members of society (Article 8). The Convention sets out civil and political rights as well as economic, social and cultural rights: the right to life (Article 10), equal recognition before the law (Article 12), access to justice (Article 13), liberty and security of the person (Article 14), freedom from torture (Article 15), freedom from exploitation, violence and abuse (Article 16), integrity of the person (Article 17), liberty of movement and nationality (Article 18), freedom of expression and opinion, and access to information (Article 21), respect for privacy (Article 22), respect for the home and the family (Article 26), education (Article 24), health (Article 25), work and employment (Article 27), adequate standard of living and social protection (Article 28) and participation in political and public life (Article 29). Rights specific to this Convention include the rights to live independently and be included in the community (Article 19), right to protection and safety of persons with disabilities in situations of risk (Article 11), the right to personal mobility (Article 20), the right to habilitation and rehabilitation (Article 26) and the right to participation in cultural life, recreation, leisure and sport (Article 30). In addition, parties to the Convention shall raise awareness of the human rights of persons with disabilities (Article 8), and ensure access to the physical environment, to transportation, to information and communications and to other public facilities and services (Article 9). Article 31 commits states parties to data collection and statistical analysis, an essential measure in formulating and implementing appropriate policies with respect to the rights of persons with disabilities. The Convention recognises the importance of international cooperation for the realisation of rights of disabled persons, stipulating that state parties will undertake appropriate and effective measures in this regard, between and among themselves and, as appropriate, in partnership with relevant international and regional organisations and civil society, in particular organisations of persons with disabilities (Article 32).
The Convention is monitored by the Committee on the Protection of the Rights of Persons with Disabilities. The Committee consists of 12 independent experts elected for four-year terms, renewable once, and should include experts with disabilities. When eighty ratifications or accessions to the Convention are reached, the Committee’s membership will increase to 18. States parties are invited to actively involve persons with disabilities and their representative organisations when nominating candidates for election to the Committee.
The Convention contains a unique provision regarding national monitoring and implementation. States parties shall designate one or more focal points within government for matters relating to the implementation of the Convention, and shall give due consideration to the establishment or designation of a coordination mechanism within government to facilitate related action in different sectors and at different levels. States parties are also to maintain, strengthen, designate or establish a framework, including one or more independent mechanisms, to promote, protect and monitor implementation of the Convention. When designating or establishing such a mechanism, states parties shall take into account the principles relating to the status and functioning of national institutions for the protection and promotion of human rights. Finally, civil society is given a central role in promoting the implementation of the Convention as Article 33 sets out that civil society shall be involved and participate fully in the monitoring process established by states parties.
The traditional CRPD supervisory mechanisms are the following:
a) Reporting mechanism (Article 35). States parties shall report on the steps they have taken to implement the Convention within two years of its entry into force for the state concerned, and thereafter at least every four years or whenever the Committee so requests. After examining the reports, the Committee will transmit such comments as it may consider appropriate to the state party concerned.
b) Individual communications (Article 1, Optional Protocol). A state party may recognise the competence of the Committee to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim that their rights under the Convention have been violated. If the Committee is satisfied that the matter has not been, and is not being, examined in another international context, and that all domestic remedies have been exhausted, it may call for explanations, and express its views. At any time after the receipt of a communication the Committee may request that a state party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.
c) Inquiry procedure (Article 6, Optional Protocol). Article 6 enables the Committee to initiate a confidential investigation when it receives reliable information indicating grave or systematic violations by a state party of rights enshrined in the CRPD. The Committee may designate one or more of its members to conduct an inquiry and to report urgently to it. Where warranted and with the consent of the state party, the inquiry may include a visit to its territory. The Committee shall transmit its findings to the state concerned together with any comments and recommendations. The state should in return submit its observations to the Committee within six months of receiving the findings. Inquiries shall be conducted confidentially and the cooperation of the state in question shall be sought at all stages of the proceedings.
The Convention for the Protection of All Persons from Enforced Disappearance
The Convention for the Protection of All Persons from Enforced Disappearance was adopted by UNGA Resolution 61/177 on 20 December 2006. As of March 2010, eighteen states have ratified or acceded to it and it has not yet entered into force. The Convention contains several new human rights, a clear definition of enforced disappearance as well as innovative provisions that provide for strengthened prevention, protection, reparation and prosecution of enforced disappearances.
The Convention establishes the right not to be subjected to enforced disappearance as a nonderogable right. It defines ‘enforced disappearance’ as any form of deprivation of liberty by agents of the state, followed by refusal to acknowledge this deprivation of liberty, or by concealment of the fate or whereabouts of the disappeared person placing her/him outside the protection of the law. The Convention obliges states parties to investigate disappearances and to ensure that enforced disappearance constitutes an offence under its criminal law and establishes that widespread practice of enforced disappearance constitutes a crime against humanity entailing possibly the involvement of the International Criminal Court. Direct perpetrators, superiors and others responsible for the act can be held criminally responsible for an enforced disappearance. Jurisdiction, prosecution and the positive duty to investigate is established as well as non-refoulement. The Convention requires states parties to implement comprehensive safeguards to prevent enforced disappearances. These include maintenance of official registers of persons deprived of liberty, training for law enforcement personnel and that persons are released from prison in a manner permitting reliable verification that they have actually been released. Secret detention is prohibited and states parties shall implement specific rules and regulations with regard to deprivation of liberty, and sanctions are laid down should those provisions be violated. The Convention contains several provisions on protective measures after a disappearance occurs. The state should, for instance, enable individuals to report an enforced disappearance, protect witnesses and investigate complaints and reports of disappearances. The state shall implement due process guarantees and those with a legitimate interest should have access to basic information such as the date, time and place of the deprivation of liberty and the whereabouts of the person. Withholding information is only permitted when the deprivation of liberty is subject to judicial control and it does not lead to an enforced disappearance. The Convention enshrines the rights of victims, who include those disappeared and others who have suffered harm as a direct result of the enforced disappearance. The right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person is established and states should ensure reparation and prompt and adequate compensation. The right to form and participate freely in organisations and associations which address enforced disappearances is also set out. A special provision deals with the prevention and punishment of the wrongful removal of children who are subjected to enforced disappearance or whose parents are subjected to enforced disappearance. States should search for, identify and return those children to their families. Finally, the Convention stresses the importance of international cooperation. States parties shall cooperate in searching for disappeared persons and, in the event of death, in exhuming and identifying them and returning the mortal remains. They shall submit suspects who are found on their territory to the competent authorities, extradite them to another state, or surrender them to an international criminal court. Non-refoulement in relation to enforced disappearance is stipulated; no person may be expelled, returned, surrendered or extradited to a country where he/she may be in danger of being subjected to enforced disappearance.
The Convention will be monitored by the Committee on Enforced Disappearances. The Committee will consist of ten independent experts elected for four-year terms, renewable once. The Committee will only examine facts taking place after the Convention came into force for the state party in question.
A unique feature is the competence of the Committee to receive urgent requests to search and find disappeared persons on the request of a relative. The Committee may then request that the state party take all the necessary measures, including interim measures, to locate and protect the person concerned in accordance with the Convention. The Committee also has the extraordinary power to bring ‘widespread and systematic’ practice of enforced disappearance to the attention of the UNGA.
The traditional supervisory mechanisms are the following:
a) Reporting mechanism (Article 29). States parties accept the obligation to report on the steps they have taken to implement the Convention within two years of its entry into force for the state concerned. After examining the reports, the Committee will issue such comments, observations or recommendations as it may deem appropriate.
b) Individual communications (Article 31). A state party may recognise the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction claiming to be victims of violations of provisions of the Convention. If the Committee is satisfied that the matter has not been, and is not being, examined in another international context, and that all domestic remedies have been exhausted, it may call for explanations, and express its views. At any time after the receipt of a communication the Committee may request that a state party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.
c) Country visit (Article 33). Article 6 enables the Committee to undertake a country visit when it receives reliable information indicating grave or systematic violations by a state party of rights enshrined in the Convention. The Committee may designate one or more of its members to visit the country in question and to report urgently to it. Upon a substantiated request by the state party, the Committee may decide to postpone or cancel its visit. The Committee shall transmit its findings to the state concerned together with any comments and recommendations.
d) Inter-state communications (Article 32). A state party may recognise the competence of the Committee to receive and consider communications from one state party alleging that another state party is not fulfilling its obligations under the Convention.
2. charter-based procedures
Charter bodies, human rights bodies which are not established by a specific human rights treaty, include the former Commission on Human Rights, the Human Rights Council and Special Procedures. These bodies were established by resolutions of the Economic and Social Council (ECOSOC) or the UNGA and, therefore, are ultimately based on the Charter of the United Nations.
From its inception the United Nations received complaints of human rights violations from individuals, groups and NGOs but in its early years the organisation was not empowered to deal with such complaints. In 1959, the Economic and Social Council adopted a resolution (Resolution 728 F (XXVIII) of 30 July 1959) requesting the UN Secretary-General to compile and distribute two lists to the Commission on Human Rights: the first a non-confidential list of all communications received dealing with the general human rights principles; and a second confidential list, furnished in private meeting, giving a brief indication of the substance of other communications. A particular state referred to in such a communication was to receive a copy of it and requested to reply to it, if it wished to do so. From a victim’s perspective, however, this procedure produced limited relief. The ECOSOC resolution only requested the Secretary-General ‘to inform the writers of all communications concerning human rights that their communications will be handled in accordance with this resolution, indicating that the Commission has no power to take any action in regard to any complaints concerning human rights’.
In the 1960s the attitude of the United Nations and its member states changed significantly, in part due to the repressive Apartheid regime in South Africa. In 1966, the General Assembly invited the ECOSOC to give urgent consideration to ways and means of improving the capacity of the United Nations to put a stop to human rights violations wherever they might occur. ECOSOC Resolution 1235 (XLII) of 6 June 1967 authorised the UN Commission on Human Rights and its Sub-Commission to study consistent patterns of human rights violations and to investigate gross violations of human rights. In practice, the 1235 procedure evolved into an annual public debate on human rights violations anywhere in the world. In addition to government representatives, NGOs played a very important role by providing important information on human rights situations and actively taking part in the discussions. Towards the end of the 1970s and the beginning of the 1980s the UN Commission on Human Rights gradually developed a practice of appointing special rapporteurs, special representatives, experts, working groups and other envoys competent to study human rights violations in specific countries or violations of specific rights worldwide. These special experts and working groups have become known as ‘country procedures’ and ‘thematic procedures’. The Human Rights Council has assumed most mechanisms, including the Special Procedures and the 1503 procedure, previously entrusted to the Human Rights Commission. These will be discussed below as well as new mechanisms established under the Council.
Human Rights Council Complaint Procedure — 1503 procedure
ECOSOC Resolution 1503 (XLVIII) of 27 May 1970 came into being after a lengthy period of preparation by the ECOSOC and the former UN Commission on Human Rights. The resolution created a confidential procedure to deal with communications on violations of human rights. Only communications indicating ‘a consistent pattern of serious and reliably documented violations of human rights’ qualified for consideration; other communications or copies of 1503 communications were referred to other procedures if the Secretariat considered it warranted. The 1503 procedure was not primarily intended to provide satisfaction for individual complainants, but rather to take action in respect of systematic violations of human rights designated as a ‘situation’.
In 2006 the newly established Human Rights Council created a Working Group to formulate recommendations on the issue of reviewing and, when necessary, improving and rationalising all mandates, mechanisms, functions and responsibilities of the former Commission on Human Rights, including the 1503 procedure. The revised 1503 procedure aims to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. The procedure is victim-orientated but retains its confidential nature to enhance cooperation with the state concerned. The Working Group on Communications and the Working Group on Situations examine the communications and bring consistent patterns of gross and reliably attested human rights violations to the attention of the Human Rights Council. Manifestly ill-founded and anonymous communications are screened out by the Chairperson of the Working Group on Communications, together with the Secretariat. Communications not rejected in the initial screening are transmitted to the state concerned to obtain its views on the allegations of violations.
The Working Group on Communications is designated by the Human Rights Council Advisory Committee (see below) from among its members for a period of three years (mandate renewable once). It consists of five independent experts and is geographically representative of the five regional groups. The Working Group meets twice a year for five days to assess the admissibility and the merits of a communication, including whether the communication alone or in combination with other communications, appears to reveal a consistent pattern of gross violations of human rights. All admissible communications and recommendations thereon are transmitted to the Working Group on Situations. The Working Group on Situations comprises five members appointed by the regional groups from among the members of the Human Rights Council for a period of one year (mandate renewable once). It meets twice a year for a period of five working days in order to examine the communications transferred to it by the Working Group on Communications, including the replies of states, as well as the situations which the Council is already seized of under the complaint procedure. The Working Group on Situations presents the Human Rights Council with a report on consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms and makes recommendations to the Council on the course of action to take.
Subsequently, it is for the Human Rights Council to respond to each situation brought to its attention in this manner.
Special Procedures; the mandates of special rapporteurs, representatives, experts and working groups
‘Special Procedures’ is the general name given to the mechanisms established by the former Commission on Human Rights and assumed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. Currently, there are thirty thematic and eight country mandates.
The mandates given to special rapporteurs, special representatives, experts and working groups are either to examine, monitor and publicly report on human rights situations in specific countries or territories (known as country mechanisms or mandates) or on major phenomena of human rights violations in various parts of the world (known as thematic mechanisms or mandates). In carrying out their mandates, special rapporteurs and other mandate-holders routinely undertake country missions and report back to the Human Rights Council. These missions take place at the invitation of the country concerned. The Special Procedures mandate-holders are free to use all reliable sources available to them to prepare their reports, and much of their research is done in the field, where they conduct interviews with authorities, NGOs and victims, gathering on-site evidence whenever possible. The mandate-holders report annually to the Human Rights Council, with recommendations for action. Their findings are used as background material for the Universal Periodic Review (see below) and also by the treaty bodies in their work, especially in evaluating state reports. The Special Procedures are often the only mechanism that will alert the international community on certain human rights issues. The Office of the High Commissioner for Human Rights provides the Special Procedures with personnel and logistical and research assistance to support them in the discharge of their mandates.
Two expert bodies have been established as an addition to the traditional Special Procedures. One is the Forum on Minority Issues which will provide a platform for promoting dialogue and cooperation on issues pertaining to national or ethnic, religious and linguistic minorities and provide thematic contributions and expertise to the work of the independent expert on minority issues. The other, the Expert Mechanism on the Rights of Indigenous Peoples, has been created by the Human Rights Council to continue the work of the Working Group on Indigenous Populations. Composed of five experts, the mechanism will provide thematic expertise on the rights of indigenous peoples to the Human Rights Council; it will focus mainly on studies and research-based advice but may suggest proposals to the Council for its considerations and approval, within the scope of its work as set out by the Council.
SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL MANDATE HOLDERS 2009
Special Rapporteur on adequate housing as a component of the right to an adequate standard of living
Working Group on people of African descent
Working Group on Arbitrary Detention
Independent Expert on the situation of human rights in Burundi
Special Rapporteur on the situation of human rights in Cambodia
Special Rapporteur on the sale of children, child prostitution and child pornography
Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea ?Special Rapporteur on the right to education
Special Rapporteur on extrajudicial, summary or arbitrary executions
Independent expert on the question of human rights and extreme poverty
Independent expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
Special Rapporteur on freedom of religion or belief
Independent Expert on the situation of human rights in Haiti
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health ?Special Rapporteur on the situation of human rights defenders
Special Rapporteur on the independence of judges and lawyers
Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people
Independent Expert in the field of cultural rights
Special Rapporteur on the right to food
Representative of the Secretary-General on the human rights of internally displaced persons
Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination
Special Rapporteur on the human rights of migrants
Independent Expert on minority issues
Special Rapporteur on the situation of human rights in Myanmar
Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967
Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia and related intolerance
Special Rapporteur on contemporary forms of slavery, including its causes and consequences
Independent expert on human rights and international solidarity
Independent Expert on the situation of human rights in Somalia
Special Rapporteur on the situation of human rights in the Sudan
Special Rapporteur on the promotion and protection of human rights and fundamentalfreedoms while countering terrorism
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
Special Rapporteur on trafficking in persons, especially women and children
Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises
Special Rapporteur on violence against women, its causes and consequences
Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation
Universal Periodic Review
The Universal Periodic Review (UPR) involves a review of the human rights records of all 192 UN member states once every four years.
State reviews are conducted by the UPR Working Group which consists of the members of the Human Rights Council. Other UN member states can take part in the discussion/dialogue. Each review is assisted by groups of three states, known as ‘troikas’, who serve as rapporteurs. The selection of the troikas for each state review is done through a drawing of lots prior to each Working Group session. Reviews are based on information provided by the state under review, such as national reports, reports of the Special Procedures, human rights treaty bodies, and other UN entities and information from other stakeholders such as NGOs and national human rights institutions.
Following the state review by the Working Group a report is prepared by the troika with the involvement of the state under review and assistance from the OHCHR. This report, referred to as the ‘outcome report’, provides a summary of the actual discussion, questions and recommendations as well as the reviewed state’s responses. The outcome report forms the basis for recommendations to the reviewed state which has the primary responsibility to implement them. When a state comes up for a second review it must provide information on what has been done to implement earlier recommendations. The international community will assist in implementing the recommendations and conclusions regarding capacity-building and technical assistance, in consultation with the country concerned. If necessary, the Human Rights Council will address cases where states are not cooperating.
Communications and ‘Urgent action’ procedure under extra-conventional mechanisms
Unlike treaty-bodies, extra-conventional country and thematic mechanisms have no formal complaints procedures. The activities of the country and thematic mechanisms are based on communications received from various sources (the victims or their relatives, local or international NGOs) containing allegations of human rights violations. Such communications may be submitted in various forms (e.g., letters and faxes) and may concern individual cases or contain details of situations of alleged violations of human rights.
Occasionally, communications addressed to the extra-conventional mechanisms contain information to the effect that a serious human rights violation is about to be committed (e.g., imminent extrajudicial execution, fear that a detained person may be subjected to torture, fear that a detainee may die as a result of an unattended disease or a ‘disappearance’ has occurred). In such cases, the Special Rapporteur or Chairperson of a working group may address a message to the authorities of the state concerned, requesting clarifications regarding the case and appealing to the government to take the necessary measures to guarantee the rights of the alleged victim. Such appeals are primarily of a preventive nature and are resorted to on a regular basis by certain thematic mechanisms, in particular the Special Rapporteurs on extrajudicial, summary or arbitrary executions and on the question of torture, and the Working Groups on Enforced or Involuntary Disappearances and on Arbitrary Detention. However, other thematic and country mechanisms occasionally follow a similar procedure. In some instances, when the circumstances of the case justify such an approach, an appeal may be addressed by several special rapporteurs and/or working groups jointly. The criteria for urgent interventions vary from one mandate to another and are described in the methods of work of the respective mechanisms. The Convention on the Protection of All Persons from Enforced Disappearance (not yet in force, March 2010) contains an urgent action procedure.
D. United Nations Specialised Agencies and other agencies
The Specialised Agencies of the United Nations are functional intergovernmental organisations affiliated with the UN. They are analogous bodies, working in such diverse areas as health, agriculture, international aviation and meteorology. Related to the UN through special agreements, the specialised agencies coordinate their work with the UN, but are separate, autonomous organisations. Several Specialised Agencies of the United Nations are concerned with human rights issues, such as the World Health Organisation (WHO) and the Food and Agriculture Organisation (FAO). Other UN agencies with semi-autonomous status, such as the, such as the UN High Commissioner for Refugees (UNHCR), also have important human rights mandates. Only one UN Specialised Agency will be dealt with in detail here: the International Labour Organisation (ILO). Short notes follow on the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and UNHCR. Elsewhere in the Handbook, other specialised agencies, such as FAO, are also examined.
1. International Labour Organisation (ILO)
The International Labour Organisation (ILO) was founded in 1919. The initial text of the ILO Constitution formed Part XIII of the Treaty of Versailles and was amended and expanded in 1946. The ILO was the first ‘specialised agency’ to be given that status by the UN, under an agreement with the ECOSOC. It focuses on those human rights related to the right to work and to working conditions, including the right to form trade unions, the right to strike, the right to be free from slavery and forced labour, equal employment and training opportunities, the right to safe and healthy working conditions, and the right to social security. The ILO also provides protection for vulnerable groups, having adopted standards on child labour, employment of women, migrant workers, and indigenous and tribal peoples.
Uniquely, the ILO functions in a tripartite fashion: its organs are composed not only of representatives of governments, but also of representatives of workers’ and employers’ organisations. The main organ of the ILO is the International Labour Conference, the plenary assembly of the ILO. The Labour Conference meets once a year. Each ILO member state sends four delegates to the conference: two government representatives, one workers’ representative, and one employers’ representative.
The ILO establishes international standards in the field of labour relations and the protection of employees, through the adoption of conventions and recommendations. The International Labour Conventions are open to ratification by ILO member states. They are international treaties that are binding on the states that are parties to them. These countries voluntarily undertake to apply their provisions, to adapt their national laws and practices to the requirements of the conventions and to accept international supervision.
Several important instruments have taken the form of what is called ‘promotional conventions’. The states that ratify these conventions undertake to pursue their objectives, within time limits and by methods to be determined according to national circumstances, which, if they so wish, may be developed with the assistance of the International Labour Office. These promotional instruments contain generally accepted and broadly defined economic and social development objectives, in areas that lend themselves particularly well to large-scale technical co-operation projects. By assisting governments in these areas, the International Labour Office co-operates actively with them in seeking out and implementing the most appropriate measures to give effect to the relevant standards. International labour recommendations do not belong to the collection of international treaties. They stipulate non-binding guidelines that may independently cover a particular subject, supplement the provisions contained in conventions, or spell them out in greater detail.
Approximately two-thirds of the ratifications to the 185 ILO conventions have been made by the governments of developing countries. The most important conventions in the field of human rights are the conventions on:
Forced Labour (ILO 29; 1930; by March 2010, ratified by 174 states).
Freedom of Association and Protection of the Right to Organise (ILO 87; 1948; by March 2010, ratified by 150 states).
Right to Organise and Bargain Collectively (ILO 98; 1949; by March 2010, ratified by 160 states).
Equal Remuneration (ILO 100; 1951; by March 2010, ratified by 167 states).
Abolition of Forced Labour (ILO 105; 1957; by March 2010, ratified by 169 states).
Discrimination (Employment and Occupation) (ILO 111; 1958; by March 2010, ratified by 169 states).
Minimum Age (ILO 138; 1973; by March 2010, ratified by 155 states).
Worst Forms of Child Labour (ILO 182; 1999; by March 2010, ratified by 177 states).
ILO Declaration on Fundamental Principles and Rights at Work and its follow-up (adopted in June 1998).
Certain basic provisions of the existing supervisory system were included in the original Constitution of the ILO. The system has, however, been substantially developed over the years. Some of these developments were brought about by amendments to the Constitution. Other important developments resulted from decisions of the Governing Body of the ILO or the International Labour Conference.
Presently, the ILO has a range of mechanisms at its disposal to ensure compliance with the standards the organisation has established. These mechanisms include: a) obligatory reporting procedures, b) complaints procedures and c) inquiries and studies procedures.
There are three categories of reports that ILO member states have to submit to the Director-General of the ILO under the organisation’s Constitution (Articles 19 and 22). The reports relate to:
a) Information concerning the measures taken to bring the conventions and recommendations to the attention of the competent authorities, no later than twelve or eighteen months after the adoption of those texts by the International Labour Conference. These reports have to be submitted annually.
b) The ratification of conventions or reasons for failing to do so. The relevant rules are designed to secure more frequent reporting for certain conventions, particularly those concerning basic human rights (reports are required every two years). The rules are also applicable in the initial period following ratification, and whenever there are significant problems of implementation, or when comments are received from employers’ or workers’ organisations. These reports must be drafted on the basis of detailed forms established by the Governing Body of the ILO.
c) For non-ratified conventions and recommendations, reports at intervals requested by the Governing Body, concerning national law and practice, showing the extent to which the state concerned has given effect or intends to give effect to those texts, and stating the difficulties which prevent or delay the ratification of the convention concerned or the application of the recommendation in question.
Governments are also obliged to communicate copies of their reports to national employers’ and workers’ organisations (Article 23(2) of the Constitution). Any observations made by these organisations must be communicated to the ILO by governments, which may also attach their own comments. More than 2000 reports are submitted by governments each year.
Two bodies are entrusted with the examination of the above-mentioned reports: a) the Committee of Experts on the Application of Conventions and Recommendations which is an independent body established in 1927; and b) the Conference Committee on the Application of Conventions and Recommendations, a body composed of representatives of governments, employers and workers set up at the International Labour Conference at each of its annual sessions. The supervisory bodies encounter difficulties at two different stages: a) when evaluating national situations and b) when bringing those situations into conformity with international standards.
The ILO Constitution provides for three forms of complaints mechanisms that may set in motion contentious procedures relating to the application of a ratified convention:
a) The complaint procedure is provided for in Articles 26 to 34 of the Constitution, and is the ILO’s most formal procedure of supervision. Such a complaint may be lodged by any ILO member state or by the Governing Body of the ILO. The Governing Body may do so either on its own initiative or on receipt of a complaint from a delegate to the International Labour Conference. The Governing Body may, on the basis of written complaints, appoint on an ad hoc basis a Commission of Inquiry (Article 26) to make a thorough examination of the matter. This Commission presents a report containing its findings on all questions of fact relevant to determining the issue between the parties, and its recommendations concerning steps that should be taken to meet the complaint. The governments concerned are required to state, within three months, whether or not they accept the recommendations, and if not, whether they wish to refer the complaint on a voluntary basis to the International Court of Justice to provide a final judgement in the dispute between the government concerned and the Commission. Because the procedure is cumbersome, it is not in use.
b) The representations procedure is provided for by Articles 24 and 25 of the ILO Constitution. Representations may be made by employers’ and workers’ organisations against a state that, in their opinion, has failed to secure in any respect the effective observance within its jurisdiction of a convention to which it is a party. The representation has to be examined first by a Committee of three members of the Governing Body. This Committee decides on the admissibility of the representation, after which it may decide to invite the government concerned to make a statement. In the event of an unsatisfactory reply, the Governing Body has the right to publish the representation and the government statement, if any, in reply to it. Compared to other procedures the representations procedure has most often been invoked.
c) In view of the importance of freedom of association, a special procedure was established by the ILO in 1950 following an agreement with the ECOSOC. By its Resolution 277(X) (1950) on trade union rights, the ECOSOC formally accepted the ILO’s services in this matter on behalf of the UN. The procedure is founded on the submission of complaints that may be made by governments or by employers’ or workers’ organisations. It may be applied even against states that have not ratified the Conventions on Freedom of Association (ILO 87 and ILO 98). The machinery comprises two bodies:
The Committee on Freedom of Association is appointed by the Governing Body of the ILO from among its members. The complaints submitted by governments, employers’ and workers’ organisations are examined by the Committee that is chaired by an independent chairman. Use can also be made of the so-called ‘direct contacts’ procedure regarding these complaints. This procedure has been developed to enhance the effectiveness of the working methods of the ILO, since no procedure in the ILO allowed for direct contact with the government concerned. In practice, it can lead to a visit in loco upon initiative of the Committee. Thousands of complaints have been dealt with so far by means of this procedure. The findings (conclusions and recommendations) of the Committee are submitted to the Governing Body.
The Fact-Finding and Conciliation Commission on Freedom of Association is made up of independent persons appointed by the Governing Body. The Commission essentially has a fact-finding role, entrusted with the task of examining any complaint concerning alleged infringements of trade union rights that may be referred to it by the Governing Body. It may, however, also examine, in conjunction with the government concerned, the questions referred to it in order to settle difficulties by way of agreement. The Commission decides on a case by case basis on its procedure, which generally includes the hearing of witnesses and a visit to the country concerned.
All these complaints mechanisms include provisions to ensure implementation of the final decision. The most important of these provisions, publication of the decision, is common to all of them. It has turned out to be an effective tool, even if legally and formally it does not appear very severe.
Since the beginning of the 1960s, the membership of the ILO has grown enormously. After 1960, most of the new members were newly independent countries, almost all of them developing countries. Generally, their labour administrations were not well prepared to deal with all the questions arising out of membership of the ILO and they looked to the organisation to provide advice and assistance. The International Labour Office accordingly found it necessary to intensify its activities in this field, in addition to fostering technical cooperation aimed at improving labour administration and social legislation. The range of measures available today includes:
a) Direct contacts and less formal advisory missions.
b) The appointment of regional advisers and other forms of advice on questions relating to international labour standards, seminars, training and manuals, measures aimed at securing more active involvement of employers’ and workers’ organisations, and the promotion of tripartite consultations at the national level on questions concerning ILO standards.
c) Regional discussions, especially during regional conferences, concerning the ratification and implementation of ILO standards, and measures aimed at closer integration of standards in operational activities. ILO regional meetings have repeatedly emphasised the value of these measures and called for their intensification.
Since the 1970s, the ILO has been able to establish a large programme of technical cooperation in the social and employment field. Much effort has been undertaken to integrate the promotion of its labour standards into its technical cooperation programme. The ILO approach is generally considered one of the most encouraging examples of what is called a ‘positive approach’ to the implementation of human rights standards. In addition, programmes have been developed that aim at directly limiting and finally eliminating practices which are contrary to human rights standards. A typical example is the Programme against Child Labour.
Studies, inquiries and the Article 19 procedure
The ILO also employs the method of special inquiries and studies. For example, in the 1950s, two ILO commissions of independent experts conducted inquiries into new systems of forced labour which had developed in some parts of the world. However, such procedures are not used frequently.
Mention should also be made of the Article 19 procedure. Article 19(5) of the ILO Constitution stipulates that in case an ILO member state does not ratify a convention, it is obliged, nevertheless, to report, at appropriate intervals as requested by the Governing Body, on its implementation of the convention.
2. United Nations Educational, Scientific and Cultural Organisation (UNESCO)
The United Nations Educational, Scientific and Cultural Organisation (UNESCO) was created in 1945:
[T]o contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law, human rights and fundamental freedoms which are affirmed for the peoples of the world without distinction of race, sex, language or religion by the Charter of the United Nations. (Article 1 of the Statute).
UNESCO’s mandate to promote education, science and culture includes human rights. The institution’s main task in relation to human rights is to promote teaching and research through the adoption of conventions and recommendations on human rights related to its subject areas.
Over the years, UNESCO has developed a series of standards, mainly related to Articles 19, 26 and 27 of the Universal Declaration of Human Rights (freedom of speech, the right to education and the right to cultural experience and protection). UNESCO’s best-known instruments are:
The 1960 Convention against Discrimination in Education and its 1962 additional Protocol (revised 1978);
The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict;
The 1997 Universal Declaration on the Human Genome and Human Rights;
The 1997 Declaration on the Responsibilities of the Present Generations towards Future Generations; and
The 2001 Universal Declaration on Cultural Diversity.
UNESCO has established a number of supervisory mechanisms over the years, both under conventions and as a procedure under UNESCO:
a) Reporting procedure. Article 7 of the Convention against Discrimination in Education provides that each state party to the Convention must submit periodic reports to the Committee on Conventions and Recommendations (CCR) on the implementation of the different articles in the Convention. After examining the reports, the Committee submits the reports to the General Conference of UNESCO.
b) Individual complaint procedure. Since 1978, UNESCO has established a non-judicial communication procedure that allows victims or any person with reliable know-ledge about a human rights violation concerned with education, science or culture to submit a petition to UNESCO. The communication is brought to the attention of both the CCR and the government in question, which may submit a reply. Moreover, all parties involved may appear before the CCR. Several actions may be taken on communications. First, the Director-General of UNESCO may initiate consultations, if the circumstances call for humanitarian action. This action may be taken even before the communication has been declared admissible. Second, the CCR, after having considered a complaint, may propose that specific measures be taken by the state concerned. It is important to note, however, that this UNESCO procedure emphasises friendly settlement and the procedure is confidential and non-judicial in character. Nevertheless, it appears to have been relatively successful.
3. United Nations High Commissioner for Refugees (UNHCR)
In 1950, the UN General Assembly decided to establish the position of the High Commissioner for Refugees (UNHCR), with responsibility for the legal protection of refugees and efforts to find durable solutions for their plight. The mandate of the UNHCR gives the High Commissioner executive responsibility for the legal protection of refugees (see IV?? 3).
International protection is the cornerstone of UNHCR’s work. In practice this means ensuring respect for a refugee’s basic human rights and ensuring that no person will be returned involuntarily to a country where he or she has reason to fear persecution (refoulement). The organisation seeks long-term or ‘durable’ solutions by helping refugees repatriate to their homeland (if conditions warrant it), by helping them to integrate in their countries of asylum or to resettle in third countries.
UNHCR provides legal protection to refugees by using the 1951 Convention relating to the Status of Refugees as its major tool. This Convention is the key legal document in defining who is a refugee, their rights and the legal obligations of states. The 1967 Protocol to the Convention removed geographical and temporal restrictions from the Convention. UNHCR also promotes international refugee agreements and monitors government compliance with international refugee law. The UNHCR’s mandate is, however, limited in its supervisory role for numerous reasons. Unlike the international system of human rights protection, there is no formal mechanism in international refugee law to receive individual or inter-state complaints; and provisions of the 1951 Refugee Convention setting out obligations for states to provide UNHCR with information and data on, inter alia, the implementation of the Convention have not been given full effect. As a consequence, there is no review of country practices that can be used to aid in ensuring states’ compliance with international standards of refugee protection.
To make up for the lack of supervisory mechanisms, the UNGA created the Executive Committee of the Programme of the UN High Commissioner for Refugees (ExCom) in 1956. The ExCom has become the main international forum developing standards of refugee protection. The Committee is made up of 76 countries and meets every autumn in Geneva to review and approve the agency’s programmes and budgets and to advise on protection matters. ExCom sets international standards with respect to the treatment of refugees and provides a forum for wide-ranging exchanges among governments, the UNHCR and its numerous partner agencies.
The conclusions of this annual intergovernmental meeting represent an important international consensus regarding refugee-related issues, and carry persuasive authority as standards of refugee protection. Throughout the year, ExCom’s Standing Committee meets to review protection and refugee assistance activities, as well as financial and management matters.