Charter Based Mechanisms for the Promotion and Protection of Human Rights

1. Charter Based Mechanisms for the Promotion and Protection of Human Rights BishalKhanal Vice Chair, Alliance for Social and Economic Rights Jun 24 and 25, 2013

2. 24 June, 2013 Context • Protection and Promotion of HR largely relies on national measures and mechanisms • At the national level the legislature contribute by making law, judiciary by adjudicating law, executive by enforcing law such as investigation, prosecution, • National HR institutions through investigation, monitoring, dialogue/advocacy, research, lobbying, campaigning etc

3. If largely relied upon national mechanisms why Int Mechanisms needed? • If national mechanisms are unable to provide remedies due to undue influence upon remedying institutions • If the measure is incompatible to international standards and principles

4. If national remedial measures are exhausted- due to various reasons including inefficiency • To set common standard at international level based on the principle of universality of HR- for uniformity • To set comon standards in newly emerged issues of HR

5. Measures? • International treaties and instruments • Constitution and laws • Resolution, declaration, policies/principles • Customary international law • Judicial decisions • Recommendations of various organs/ committees

6. Mechanisms? • Judicial: courts, tribunals, quasi judicial both at national and international levels • Administrative: commissions/committees, law enforcing agencies both at national and international levels • Legislative: Parliamentary Committee on Human Rights, European Parliament • National Institutions: NHRC, National Women Commission,

7. Mechanisms at different Levels • National level- such as NHRCs, National Women Commissions • Regional Levels- as Inter American Commission on Human Rights, African Commission of Human and People’s Rights, European Court of HR, Asian Commission of HR • International Level- UN Committees- as CEDAW Committee, CRC Committee, ICJ, UNOHCHR, ICC

8. Mechanisms under the UN System • Two type of mechanisms exists under UN system that contribute to the promotion and protection of HR • They are Charter based Mechanisms and Treaty based Mechanisms

9. Charter based Mechanisms • UN Charter stipulates that promotion an protection of human rights is immensely important for maintaining peace • Under the Charter a number of mechanisms are functioning, some are for multiple purposes and some for exclusively on HR

10. Such as General Assembly performs on diverse issues including on HR, and Human Rights Council exclusively works on HR • Charter based mechanisms may be classified as below the Human Rights Council, Special procedures / Universal Periodic Review (UPR)

11. Features of Charter based Mechanisms • Generally created by General Assembly on the basis of UN Charter • Wide mandates on dealing on HR issues-majority’s opinion decision prevails in its decision making process • Sometimes enforced even in the absence of ratification of treaties by state • Said as effective and influential mechanisms

12. In general observatory, monitoring, fact finding and recommending mechanisms, not based on HR treaty obligations • Generally based on the Constitution or charter of an intergovernmental HR mechanism or the decision taken by Assembly or representative body, i.e. Human Rights Council. • Have the authority to review human rights practices of the all members of the UN

13. Human Rights Council • Became effective under Para 6 of GA Resolution 60/251 and reviewed later • HRCto ensure that the complaint procedure be impartial, objective, efficient, victim oriented and conducted in a timely manner. (Complaint Procedure HRC Res 5/1)

14. Established on March 2006, to address situations of human rights violations. • A subsidiary organ of GA consists of 47 Member States • HRC is composed with diplomats(not HR experts) who work on the basis of national policy than HR principles. • Members are ‘directly and individually’ elected for 3 years by secret ballot and by simple majority of 192 members of GA

15. In 2006, HRC replaced Commission on Human Rights (CHR) created by Economic and Social Council in 1946 along with Commission on Status of Women, under UN Charter • It was done after High-Level Panel of December 2004 and Secretary-General’s report of March 2005 observed that: • CHR’s has credibility gap;unable to respond to important HR situations;lacks of professionalism , motivated by political concerns so excessive politicization, with regional alliances and bloc voting; • So recommend to upgrade it to higher level giving name of HRC and under GA

16. September 2005: World Summit attended by Heads of State and Governments through UN, pledges to create HRC and agreed to double the budget for UN HR program • 15 March 2006: GA adopts, by a vote of 170 in favour, 4 against and 3 abstentions, resolution 60/251 setting up the HRC • 9 May 2006: GA elects first 47 members of HRC • 19 – 30 June 2006: First session of HRC

17. Guiding principles of the HRC • Universality, impartiality, objectivity and non-selectivity • constructive international dialogue and cooperation, for the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development;

18. Mandates of HRC a. For the Promotion of HR • Promote human rights education, learning, advisory services, technical assistance and capacity-building, to member states concerned; • Serve as a forum for dialogue on thematic issues on all human rights; • Make recommendations to GAG for further development of international human rights law

19. b. For the Protection of HR • To address situations of violations of human rights, including gross and systematic violations, and • Make recommendations thereon.

20. c. Coordination and Cooperation • To promote the effective coordination and the mainstreaming of HR within UN system • Contribute, through dialogue and cooperation, towards the prevention of HR violations and respond promptly to HR in time of emergencies • Work in close cooperation in the field of HR with Governments, regional organizations, national human rights institutions and civil society;

21. Mechanisms Under HRC • Human Rights Advisory Committee: In 2006, the Sub-Commission was replaced by this Advisory committee. • Forum on Minority Issues) • Expert Mechanism on the Rights of Indigenous Peoples • Social Forum

22. HRC Resolutions- sample cases • Israel end its military operations in the occupied Palestinian territory; expressed grave concern at the detrimental impact of the current Israeli military operation on the already deteriorating humanitarian conditions of the Palestinian people; urged Israel to immediately release the arrested Palestinian ministers, and members of the Palestinian Legislative Council; and decided to dispatch an urgent fact-finding mission headed by the Special Rapporteur on the situation of human rights in the occupied Palestinian territory (see Resolution S-1/1, July 2006). Report of the first special session, A/HRC/S-1/3: http://www2.ohchr.org/english/bodies/hrcouncil/docs/specialsession/A_HRC_S1_3.pdf

23. Strongly condemned the grave Israeli violations of human rights and breaches of international humanitarian law in Lebanon and decided to urgently establish and immediately dispatch a high-level inquiry commission to the region. Report of the Second Special Session, on August 2006 on Commission of Inquiry on Lebanon: http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/2/CI-Lebanon/index.htm

24. HRC adopted by consensus a decision (S-4/101) to dispatch a high-level mission to assess the human rights situation in Darfurand the needs of Sudan in this regard after expressing its concern regarding the seriousness of the human rights and humanitarian situation in Darfur. Fourth Special Session, Dec 2006, available at: http://daccessods.un.org/access.nsf/Get?Open&DS=A/HRC/4/80&Lang=E

25. 5th special session on the human rights situation in Myanmar (2 Oct 2007) see at http://www2.ohchr.org/english/bodies/hrcouncil/docs/5session/A.HRC.S-5.2_en.pdf • 7thSpecial session: "negative impact on the realization of the right to food of the worsening of the world food crisis, caused by soaring food prices", (22 May 2008) • 10th special session: "The Impact of the Global Economic and Financial Crises on the Universal Realization and Effective Enjoyment of Human Rights" (20 Feb 2009)

26. HRC Complaint Procedures • In 1970, a confidential procedure was adopted under ECOSOC resolution 1503. Resolution allowed to examine communications relating to “situations which shows consistent pattern of gross and reliably tested HR violations that require CHR consideration” • Alston refers to 1503 as a ‘petition-information’ • 1503 was replaced by HRC Institution Building Package (5/1) creating new complaint procedure

27. Resolution 5/1 sets procedures ‘to address consistent patterns of gross and reliably tested violations of all HR and all FF occurring in any part of the world under any circumstances’ (A/HRC/Res/5/1, paras 85-109). • Note that it is not an individual complaint mechanism but for assessing HR situations • The entire procedure remains confidential to enhance State co-operation

28. Two mechanisms for communication and assessment • A five-member Working Group on Communications represented by a member from each regional group (constituted by the HR Advisory Committee) would examine the communications B. the Working Group on Situations is formed by Council itself to collect the evidence of consistent pattern of violation of HR and submit to the HRC. Latter receives document from the former on all admissible applications to the procedure The Working Group on Situations develop report with recommendations and submit to HRC

29. Inadmissibility of complaints • Politically motivated • Inconsistent with the UN Charter, UDHR and other applicable HR instruments • Lacking of a factual description of the alleged violations • Abusive language

30. Exclusively based on reports disseminated by mass media; or • Already dealt by special procedure, a treaty body or other United Nations or similar regional complaints procedures; or • Domestic remedies have not been exhausted: unless it appears that such remedies would be ineffective or unreasonably prolonged.

31. 2. Special Procedures • Different types of mechanisms are formed such as special rapporteurs, rapporteurs, expert groups, special representatives and they are addressed by the phrase officials for "Special Procedures”. • In general they are formed to address either specific country’s HR situations or thematic issues in some of all parts of the world.

32. This mechanism may be formed by different authorities as the Secretary General, Human Rights Council and so on • They are formed for different purposes and mandates on diverse issues of HR on various occasions when deemed necessary

33. Functions/Mandates Functions: to examine, monitor, advise and publicly report on human rights situations of the given field of work Mandates (two) • a. Country mandates: SPs appointed for above functions in specific countries or territories such as expert team on the human rights situation in Palestine terrotorie • b. Thematic mandates: SPs appointed for above functions on major phenomena of human rights violations worldwide such as special rapporteur on Human Rights Defenders

34. What SPs do during their work? • Studies on the situation and fact finding • Responding to individual complaints, • Providing advice on technical cooperation at the country level including financial • Engaging in general promotional activities as, meetings, dialogues, interactions etc • Reporting with recommendations to appointing authority

35. Basis of Appointment • Expertise • Experience in the field of mandate • Independence • Impartiality, • Integrity • Objectivity • Gender balance • Equitable geographical representation • Appropriate representation of different legal systems

36. Nomination Process • By governments • By regional Groups • By international organisations (eg. OHCHR) • NGOs • Other HR bodies • Individual nominations. • A consultative group (appointed by Regional Groups) propose a list of qualified candidates and President ( in case of HRC) select • Till date more than 30 SPs appointed under thematic mandates and about 10 under country mandates

37. 3. Universal Periodic Review (UPR) • UPR is a HR reporting process to the HRC by the national governments in every 4 years • It is a generic reporting process of HR situation of country that primary contain • HR situation of the day • National efforts to protect, promote and increased respect for all HR civil, political, economic, social, cultural and others eg rights of women, children, rights to development, peace etc • Constraints and challenges

38. Once treaty based reporting was realized delayed and found less significant HRC introduced UPR process • UPR is expected to shows national effprts to improve HR situations in order to fulfill national obligation on the Promotion and protection of HR • 48 States per year have to submit report during three sessions of the working group of HRC ( for two weeks each)

39. UPR Values (Para 5.e of GA Resolution 60/251 , 3 Apr 2006) • “[HRC shall] Undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitmentsin a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; …….and not duplicate the work of treaty bodies; …….”.

40. Legal Basis of UPR Review • UN Charter • UDHR • Human rights treaties and instruments to which state is a party • Voluntary commitments of the states • Applicable internationalHR/ humanitarian law

41. UPR Report Preparation Processes • Guidelines is developed by UN that contains the process to be followed during preparation of UPR report at national level, as below a. Consultations • Consultation is cumbersome process in the preparation of UPR report. • Various consultations in the form of meetings, seminar, interactions, focused group, conference etc across the country from grass roots to the centre

42. Separate consultations with different groups of people such as women, indigenous minorities, persons with disabilities and other disadvantaged groups • Consultations with government officials, political parties, NGOs working in different fields, different professional groups, student groups, mother groups, religious or faith based groups, media etc • In India above 2500 consultations held during preparation of national report on UPR

43. b. Review and Studies: Has to carry out studies and review of ; • National reports: prepared by the state agencies as Government, Parliament, Judiciary such as NPC reports • Relevant decisions of superior courts as Supreme Court • NGO, CSO, CBO, PSO reports on status of various rights

44. Reports of International organizations as UNDP, UNICEF as Human Development Reports both national and global • Reports and publication of the universities, Research institutes and academia • Any other relevant reports both national and international • Ensure correct fact and figures are used during preparation of the report

45. Required Considerations • Gender • Social inclusion • Focus ( depending upon country situation) • (But) Non-selective • Transparency • Equally fair participation of different groups • Non confrontational • Non-politicized

46. Who can Submit the Reports? • State or government- • The state through the government must submit UPR report to HRC, prepared as above, in every four year, before deadline by email supported by hard copies • Report submitted by the Government is said State party or national report • Report should not exceed 20 pages exclusive of annexures

47. b. National Human Rights Institutions • NHRIs after following all above procedures can prepare and submit report on UPR to HRC before deadline by email followed by hard copies • NHRI report could be critical to government report • Joint or individual report of NHRIs is allowed to submit • Report should not exceed 10 pages excluding nnexures

48. c. NGOs • NGO coalition or separate NGOs can submit reports to HRC before given deadline by email followed by documents • It may be critical to government report after following above mentioned processes • NHRIs and NGOs reports are not mandatory and depends on the interest of those agencies • Report should not exceed 10 pages excluding annexure

49. Hearing upon UPR Reports • The government’s higher level representatives as the Minister/Secretary would make oral submission of report in 10 minutes before HRC working group meeting • NHRI representatives are given 2 minutes for oral submission of the report • NGOs representatives can observe the submission process and can respond if any member sought clarifications • HRC members can ask questions mainly to the government representatives

50. Adoption /Rejection of Issues Raised in National Report • After hearing upon national reports HRC Working Group submits its recommendation to HRC • Based on the report HRC declares some issues as adopted (okayed), some rejected and some under consideration ( to be done soon) • Final outcome should be adopted by HRC plenary