Human Rights: The Basics

1. Human Rights: The Basics Kelley Loper 29 January 2008

2. Overview • Notion of “sovereignty” • Development of the human rights system at the international level • Human rights challenge to sovereignty and attempts to resolve the tension • What happens to sovereignty when human rights are violated? • Relationship between human rights and human security?

3. UN Charter • Signed in 1945 • Established the United Nations • Peace as the overarching objective • Banned use or threat of force (Article 2.4)

4. Sovereignty (Art 2.1) “[The UN] is based on the principle of the sovereign equality of all its Members”

5. Non-intervention (Art 2.7) “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state … but this principle shall not prejudice the application of enforcement measures under Chapter Vll.”

6. UN Charter Chapter VII “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security.”

7. Human Rights (Art 1.3) The purposes of the UN include: “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”

8. Tension between human rights and sovereignty “Since 1945 the doctrine of human rights has been troubling and upsetting some, inflaming and thrilling others …[I]t is a subversive theory destined to foster tension and conflict among States …” - A. Cassese, International Law (OUP, 2005), p 375

9. Universal Declaration of Human Rights http://www.un.org/Overview/rights.html

10. Further developments • Cold war • Decolonization and new UN members • Insistence on self-determination and racial equality

11. Human rights treaties • 1965: Convention on the Elimination of all Forms of Racial Discrimination • 1966: International Covenant on Civil and Political Rights (ICCPR) • 1966: International Covenant on Economic Social and Cultural Rights (ICESCR)

12. Other core human rights treaties • Convention on the Elimination of Discrimination against Women (1979) • Convention against Torture (1984) • Convention on the Rights of the Child (1989) • Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (1990)

13. Enforcement • Committees • State reporting process • Individual complaints mechanisms • Charter-based system • Human Rights Council • Special procedures • High Commissioner for Human Rights

14. Limitations • Extensive reservations • Enforcement mechanism • Dialogue with states • Non-confrontational • No real sanctions except “naming and shaming”

15. Example of CEDAW Reservation Jordan does not consider itself bound by the following provisions: 1. Article 9, paragraph 2; 2. Article 15, paragraph 4 (a wife's residence is with her husband); 3. Article 16, paragraph (1) (c), relating to the rights arising upon the dissolution of marriage with regard to maintenance and compensation; 4. Article 16, paragraph (1) (d) and (g).

16. Example of Reporting Process: Azerbaijan 10. The Committee notes the position of the State party that … persons of Armenian origin do not experience discrimination in Azerbaijan. However, the Committee is concerned that … incidents of racial discrimination against Armenians occur … The Committee encourages the State party to continue to monitor all tendencies that give rise to racist and xenophobic behaviour ... In particular, the Committee recommends to the State party that it conduct studies with a view to effectively assessing and evaluating occurrences of racial discrimination, in particular against ethnic Armenians.

17. Example of Reporting Process: Azerbaijan • “The reports referred to in paragraph 10 of the concluding observations are thus groundless.” • http://www2.ohchr.org/english/bodies/cerd/docs/LetterAzerbaidjan24Aug07.pdf

18. Example of reporting process: Sudan “The Committee welcomes the submission of the third periodic report of Sudan, albeit nine years late …” “Despite the information provided by the State party about prosecutions … the Committee notes with concern … that widespread and systematic serious human rights violations, including murder, rape, forced displacement and attacks against the civil population, have been and continue to be committed with total impunity throughout Sudan and particularly in Darfur.” - From HRC’s 2007 Concluding Observations on Sudan’s Perodic Report

19. Responsibility to protect (R2P) “the idea that sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states” - International Commission on Intervention and State Sovereignty (2001)

20. R2P: • Includes “prevent, react, rebuild” • Protect from: • Genocide • War crimes • Ethnic cleansing and • Crimes against humanity

21. R2P: individual state and international community • “Each individual state has the responsibility to protect its populations … [which] entails the prevention of such crimes” • The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to protect populations …[and] are prepared to take collective action … in accordance with the Charter, including Chapter VII, on a case-by-case basis … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations … -General Assembly Resolution A/RES/60/1, 2005, paras 138 and 139

22. Situation in Darfur • Internal conflict since 2003 between indigenous farmers and government-backed militias • Attacks on civilians, ethnic cleansing • 200,000 killed; 2.5 million displaced • 7000 member African Union mission • New UN-AU mission • But obstacles

23. Relevance of R2P? “We have more than 150 countries …saying they believe this responsibility exists, but what advocates have begun to understand is that governments will never exercise this responsibility naturally or eagerly, they will only exercise it if they feel they are going to pay a price for not exercising it” -Samantha Powers, quoted in the New York Times, 20 Jan 2008

24. Relevance of R2P? “… it’s the best tool we’ve come up with for educating; it just remains to be seen if it will be as good at converting theory to action” -John Prendergast “a critically important phrase” -Ruth W. Messinger

25. Human rights and human security? “It would appear that this new approach [human security] is largely the result of bureaucratic overzeal which has lost sight of the existing achievements in the field of human rights. Almost all of the security items mentioned in [the UNDP Human Development Reports] are nothing else than a reflection of the rights enunciated in the two International Covenants of 1966.” - C. Tomuschat, Human Rights (OUP, 2003), p 56.

26. Conclusions • Human rights have impacted traditional notions of sovereignty • Yet sovereignty (in an evolved form?) continues to serve as an organizing principle of the international system • Dilemma when faced with human rights violations