Category: human rights

CH, HM, AP. Group 6 Response

The UN currently has 6 treaty organs, which are distinguished from Charter organs in that they are not created under the UN charter, but are mandated by the 6 universal human rights treaties.

The ICCPR Human Rights Committee is a treaty organ created by Articles 28-45 of the International Covenant on Civil and Political Rights (1976). It has 3 dominant functions: 1. States submit reports to the ICCPR Committee on measures taken and progress made in meeting the rights stipulated by the Covenant, 2. The Committee must ‘transmit such general comments as it may consider appropriate’ back to these states, 3. The Committee is also authorized to receive communications from individuals claiming to be victims of violations by state parties, and to forward its views about these communications to the individuals and the states concerned.
The functions outlined for the Committee in the ICCPR Covenant took a long time to agree upon, particularly in light of the Cold War ideological conflicts and debates about protecting state sovereignty. The result is a compromise between those States who favored strong international measures and those who emphasized the primacy of national sovereignty, and therefore many issues about the functioning of the Committee were left unresolved by Covenant. Some recent developments in the Committee’s approach to reports are that the Committee may now request certain states to issue ‘emergency’ reports about a newly developed situations (eg Iraq, Yugoslavia), it now supports the suggestion that human rights bodies be able to bring violations directly to the attention of the Security Council, and finally, it may be possible for the Committee to send a ‘mission’ to certain states in cases where the Committee was unable to obtain required information.

The Committee is composed of 18 members, who must have ‘high moral character and recognized competence in the field of human rights’, and who represent an equitable geographical distribution. Most have some form of legal experience, and they are elected to serve in their personal capacity as experts, as opposed to as state ambassadors. The Committee meets 3 times a year, for 3 weeks each time. Most meetings are public, however only a few outsiders and representatives of NGOs tend to come. Decisions taken by the Committee should be by majority vote, but all decisions to date have actually been taken by consensus.

Two questions arise as a consequence of the structure of the Committee. First is the issue of to what extent the ‘experts’ really act independently of their government’s interests, considering that some come from authoritarian, single-party states, and most must continue to hold part-time jobs, often for their governments. Second, does the practice of decision by consensus cause undue compromise, blunting of positions and failure to take bold steps. Another more pressing problem is that of the reports: They are supposed to be presented by states every five years, to be prepared following Committee guidelines. However, the greatest weakness of the system, according to Thomas Buergenthal, is the failure of certain states to submit their reports on time. Furthermore, if all the states did submit their reports, the Committee would not have time to process them during their 3 yearly meetings. What are the benefits and liabilities of reporting systems?

The Concluding Observations of the Committee examine positive aspects, factors and difficulties affecting implementation of the Covenant, and principal areas of concern and recommendations for each country. In particular, the chapter examines Chile, Iraq, Israel, Japan, Poland, Senegal, Sudan and the United States of America, wherein it praises states which have eliminated the death penalty, and disapproves states which criminalize abortions and homosexual relations, discriminate against groups on the basis of religion, gender or ethnicity, operate under a government that lacks transparency and accountability, or permit torture, death penalty and police brutality.

What legal action can be taken to pressure states to follow recommendations? How much authority does the Committee hold? Despite sanctions, the committee expects Iraq to implement obligations under the Covenant, but Are there circumstances where might a state be excused from such obligations because of sanctions? If so, what other measures could be taken? States like the U.S. and Japan legally forbid discrimination but, in practice, gender and racial inequalities are very prevalent. The Covenant has only vague recommendations of “eliminating discriminatory attitudes.” What steps, beyond legal action, can be taken to eliminate discrimination, and is the state accountable for this?

Article 40 of the ICCPR states under section 4 that the Committee shall study states reports and “transmit its reports, and such general comments as it may consider appropriate, to the States Parties” (1389). This vague wording allows for various understandings of the purposes of the General Comments, and the Comments have so far taken on two distinct types. The first has the intention of chastising vague reports and outlining proper ways to report state’s steps towards fulfilling the requirements of the ICCPR. The second is concerned with clarifying the meanings of certain articles and providing detailed interpretations of the types of rights involved and corresponding government responsibilities. In an extreme case, a General Comment attempted to create a new article in the bold statement, advocating, “The production, testing, possession, deployment, and use of nuclear weapons should be prohibited and recognized as crimes against humanity” (735). It is obvious that General Comments are more specifically prescriptive than the original covenant. In this way the comments attempt to remedy the ambiguous nature of the ICCPR and lay down officially sanctioned interpretations and requirements. Do you feel that the more explicit nature of the Comments is a reasonable and effective method for increasing accountability? Do the Comments overstep their boundaries?

AG, RR, EO.

Thematic Mechanisms

Thematic Mechanisms have been in use since 1980. They were originally created in response to disappearances in Argentina. In order to preserve national integrity, avoid political embarrassment, and protect economic issues, they were created on an international level as opposed to an individual country level. The Commission used a ‘thematic’ mechanism to avoid a “country-specific inquiry”. They are only allowed to make ‘opinions’ not decisions and are allowed to make recommendations to the Commission. Different techniques include requests to governments for information that is case specific, and that the government take “immediate action” to remedy the situation, as well as on-site visits. How do thematic mechanisms interact with 1503 and 1235 procedures?

United Nations Security Council

The UNSC is comprised of 15 member states, 5 permanent members (US, UK, France, Russia, and China) and 10 rotating members elected by the GA every two years. Each member has one vote and the 5 permanent members have a “veto-power”. In order for a resolution or a substantive decision to be passed, it must have 9 affirmatives and all 5 members states must vote affirmative, if one abstains or dissents, that is the veto power and the resolution is not passed. The primary responsibility of the UNSC is to maintain international peace and security under the collective security system provided for in the UN Charter. They are empowered to investigate disputes and make recommendations regarding appropriate procedures such as sanctions or military intervention. The Security Council is arguably the most powerful UN organ with a “monopoly over the use of force”.

SC Humanitarian Intervention

Humanitarian intervention is the use of force justified by reference to an overriding humanitarian emergency, ranging from small scale relief operations to long-term military engagement. Its use requires consensus among the members of the Security Council, and within the discourse of intervention, the question of protecting sovereignty (from intervention) is raised time and time again by those who would seek to delay or to stop intervention. The Security Council thereby intervenes within a State in order to stop or prevent gross violations of human rights. Secondly, human rights themselves are used as a justification for intervention itself. Nonetheless, how do we justify intervening in the domestic affairs of a sovereign State when scholars like Michael Ignatieff argue that the sovereignty of the State is “the best guarantee of human rights that there is” (pg. 657).

Sanctions range from comprehensive embargos, to a more limited embargoes which freeze assets and halt arms trade. Multilateral sanctions would include the economic embargo against Iraq (prior to the War), freezing of assets of the Taliban, and unilateral US sanctions against Cuba and North Korea. They can be seen as either a violation of human rights or a form of humanitarian intervention. Sanctions almost always impact the rights outlined in the ICESCR by diminishing the ability of the impacted State to provide for their populations. If we follow Ignatieff’s argument, then how do we justify the imposition of economic sanctions against any State?

In the response to Kofi Annan’s speech on the events in Kosovo (pgs. 658 – 659), we are faced with the notion that the common interest so necessary for humanitarian intervention can itself be questioned. Who defines the common interest? Who should defend the common interest? How should the common interest be defended? With the events described in Kosovo, and the most recent events in Iraq, can the common interest be defined solely by any one State power, or a coalition of State powers, or is there some other mechanism by which the common interest can be defined?

JH, NE, RN. Group 4

The reading begins by discussing the problematic topic of enforcement in the realm of human rights. Serious questions are raised about the feasibility of consistent enforcement of human rights norms. It is relatively clear that some international enforcement is inevitable, regardless of it’s agreed upon desirability. However, the reading asserts that the degree of enforcement will vary depending on countries’ perspective of world order. Debates about state sovereignty and the effectiveness of local versus international implementation of rights make it difficult to establish a concrete method of enforcement. Only the Security Council, as per the UN charter, has the power to enforce its decisions. Status quo methods of enforcing international law include economic or other sanctions, and armed force. The international attempt to liberate ethnic minorities in Kosovo and East Timor highlights the use of force as a means of enforcing human rights. When small countries are in crisis, it seems that the global community can functionally enforce international law. In the current system are powerful nations accountable for their actions? Is there an underlying assumption in the structure of the UN that egregious violations of international law do not occur, or cannot be remedied in the ‘developed’ world?

The second part of the reading discusses the many institutions that make up the United Nations. The UN Charter in its text mandates the existence of specific enforcement organs. Treaties can also form organs to monitor the compliance of party states. Charter-organs are specifically discussed in the reading. The International Court of Justice, the Economic and Social Council, the Commission of the Status of Women, and the Commission of Human Rights along with the Sub-Commission on the Promotion and Protection of Human Right are all examples of charter-organs. These organs presumably, have the ability to promote and enforce the protection of human rights, because they represent the collective views of the General Assembly. The Assembly is composed of all UN member states, each of which has one vote regardless of population, wealth or other factors (Steiner and Alston 600). The Secretary-General leads the Secretariat, and has the principal authority over human rights followed closely by the High Commissioner on Human Rights.

The U.N. Commission uses three different procedures to address violations:

a) The 1503 Procedure: A group that seeks to examine communications pertaining to possible human rights violations. Communications must follow the U.N. charter and the Universal Declaration of Human Rights. It prioritizes a series of violations over individual incidents. The entire procedures are maintained in the strictest of confidence between the committee and the relevant parties. This leads to the question of whether this impedes the work of the commission in gathering relevant information. Also, if the public is not aware of the accusations being brought against the country, how does it affect accountability?
b) The 1235 Procedure: The Commission makes a thorough study of situations which reveal a consistent pattern of gross violations of human rights. This is done in a public debate and also involves investigation of particular complaints. Is this procedure more fair than 1503?
c) UN special rapporteurs that engage in specific fact finding in countries accused of human rights violations. The overall quality of the reports has been strong.

The last section describes the examination of Chinese human rights violations. It seems that through lobbying and bargaining, China has avoided a thorough investigation and accountability for its actions. Resolutions urging China to improve its human rights practices and criticism of ongoing violations of international standards floundered because of a lack of support from nations who wished to maintain cordial economic relationships. What justifies the prioritization of trade and economic gains over Human Rights abuses? The Chinese ambassador argued that because Western nations were also guilty of human rights violations, their accusations are unjustified. The question then becomes, does one country’s violations exempt it from the possibility for holding others accountable for similar violations?

SP, JP. October 8: Sovereignty

This section explores the development and role of international organizations, looking at the more developed and complex institutional arrangements between states than the treaty committees we have seen so far.

It is argued that international organizations have become important actors in the international system of sovereign states and have changed the nature of international law and life. These international organizations have been created by states, in order to ensure the respect of international norms such as Human Rights. Independently, states have no incentive to act against violators of Human Rights, these organization thus put more pressure on violators and help enforce international norms. Yet, this creates tensions: states create institutions which to a certain degree limit their scope of action, and influence their behavior.

Inis Claude argues that international organizations have emerged as a response to the modern state system and are a necessary part of the system. He talks about constitutional problems (problems caused by the establishment of the organizations) and substantive problems (the reasons why these organizations are established) and argues that these two classes cannot be divided, and states should balance their concern for these types of problems.

Ernst Haas brings up the issue of power imbalances within international organizations, and argues that international organizations do not have a substantial influence on foreign policy.

David Kennedy investigates the relationship between states and institutions, looking at historical developments such as the change in voting systems at the heart of international organizations. These changes, even though they keep bringing up similar arguments, show a maturity of the system.

There has been a cycle of enthusiasm and hopelessness regarding international organizations, the book presents an article comparing international human rights law to international environmental law. It is argued that environmental law is more flexible and dependent on cooperation; it also is directed towards the private rather than the public. Finally, Steiner critiques the basic structure of many Human Rights institutions, arguing that they do not correspond to state interests and thus are problematic.

Section B of the reading deals with the intersection between issues of state sovereignty and the human rights regime. First, it addresses definitions of the term sovereignty, essentially determining that while sovereignty is generally agreed to signify the independence and freedom of action of a state, in practice it has no clearly ascertainable meaning. Thus Koskenniemi argues that this lack of a fixed meaning makes it impossible to define the full extent of a state’s legitimate sphere of action or the areas in which restrictions on state action would be allowed. Next, Stephen Krasner expands this discussion of definitions by identifying four distinct uses the term sovereignty: domestic, interdependence, international legal, and Westphalian. Domestic sovereignty refers to the organization and effectiveness of political authority. Interdependence sovereignty deals with the individual state’s ability or inability to control the movement of commerce, people, and ideas across borders. While globalization is often said to entail a loss of state sovereignty, Krasner asserts that this is a loss only of interdependence sovereignty, or control, and not a problem of authority. The third category of sovereignty, international legal sovereignty, is defined as a state’s status in the international political system. It is mainly an issue of recognition and perceived authority, and does not necessarily correspond to the state’s ability to control either domestic or cross-border developments. Finally, Krasner identifies Westphalian sovereignty as dealing primarily with a state’s territoriality and freedom from the influence of external actors in structures of domestic authority. Under this conceptualization, a state’s sovereignty is violated anytime that an external force has coercive influence in domestic affairs, even if it was invited to do so, while international legal sovereignty can be violated only by intervention.

Richard Falk argues for a concept of “responsible sovereignty”, which views states not just as bearers of rights but also as the subjects of obligations, which may be legitimately enforced both by their own citizens and by external bodies. Both he and Margaret Keck and Kathryn Sikkink point out that state sovereignty is seen by many, especially in the post-colonial world, as an essential protection rather than simply a threat to human rights. These views complicate an investigation of the relationship between state sovereignty and human rights.

The next readings focus on ongoing political debates about state sovereignty within the United Nations in connection with UN peacekeeping activities. First, a number of views by government leaders are expressed on this topic. United Nations Secretary-General Kofi Annan saw a trend towards an understanding of the state as a servant of the people, along with an enhanced consciousness of individual sovereignty. Because of this, he believed that we must think more about how the UN will respond to political and humanitarian crises. Abdelaziz Bouteflika, the President of Algeria, raised important questions on where the line was to be drawn between the humanitarian, the political, and the economic, and questioned whether interference was valid only for weak or weakened States. Surin Pitsuwan, the Minister of Foreign Affairs commented on the emerging concept of “human security.” In a New York Times Article, Judith Miller discusses Kofi Annan’s view that the world can not let countries like Yugoslavia commit genocide and hide behind the UN charter that has traditionally protected national sovereignty, because the principle of sovereignty cannot provide “excuses for the inexcusable.” However, not all agree, as the Russian Foreign Minister states that “Human rights are no reason to interfere in the internal affairs of a state.” Finally, the last reading comments on how UN organs have systematically reduced the scope claimed for the domestic jurisdiction ‘defense.’ Although Article 2(7) states that nothing contained in the UN Charter can authorize the UN to intervene in matters that are essentially within the domestic jurisdiction of a State, this defense now rarely stands.

Discussion Questions:

1. Are international institutions necessary? What problems do unequal power balances present to these institutions?
2. According to Abi-Saab, the concept of state sovereignty arose in a particular historical context for a particular purpose. Is sovereignty still a valid concept in today’s circumstances? What purpose do assertions of state sovereignty serve today?
3. Which should be given priority: the protection of human rights or the principle of state sovereignty? At what threshold can state sovereignty be violated to protect human rights (if it can)? Who can decide?