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I.2 International institutional framework

To fulfill its subsidiary role in terms of human rights, since World War II, the international community, through the development of international human rights law, has gradually established international human rights protection systems, which have been created within the framework of specific international and regional organizations.

The universal human rights system was developed within the UN system. Regional systems in Europe, America and Africa have also been established, considering their own specificities and cultural affinities. All these systems were created within the institutional framework of a regional organization: the Council of Europe (COE), the Organization of American States (OAS) and the African Union (AU), respectively.[1]

Although there were doubts about the desirability of developing regional protection systems, especially from the UN perspective given its emphasis on universality, the benefits of having such systems are widely recognized today. Countries of the same region often share common cultural or religious values and tend to have similar legislation and policies. They have the advantage of proximity in terms of influencing each other’s behavior and promoting the implementation of common norms and standards. There is also general agreement on the approach for enforcement mechanisms, which vary from region to region. In some cases, there is an emphasis on a judicial approach; in others non-judicial mechanisms, such as commissions, have a greater influence.[2]

There is a parentage relationship between international or regional organizations and the institutions which form part of the universal and regional human rights protection systems. This is so because these institutions have been established by international instruments adopted by the UN (i.e. the Human Rights Council), the Council of Europe (i.e. the European Court of Human Rights), the Organization of American States (i.e. the Inter-American Commission and Court) and the African Union (i.e. the African Commission and Court). Moreover, these organizations elect the members of the aforementioned institutions and supervise the implementation of their decisions. Nevertheless, like their parent bodies, international and regional human rights bodies have a life of their own and enjoy a great level of autonomy.

These protection systems share some common features: a normative framework of a binding nature and control mechanisms composed of experts, rapporteurs, treaty bodies or tribunals. These mechanisms have competence to carry out visits to countries, adopt preventive mechanisms, interrelate with civil society and national human rights institutions, make recommendations and/or investigate human rights violations. In some cases, they can even issue compulsory judicial decisions, which can include the obligation to provide reparation for the victims.[3] There are also other regional and sub-regional mechanisms and arrangements which provide a space for dialogue, promoting or discussing human rights issues, coordinating public policies and taking decisions of common interest such as the High Level Meeting of Authorities of MERCOSUR.[4]

At the UN level, before the Human Rights Council was established at the turn of the new millennium, the universal human rights system underwent remarkable normative and institutional development over a period of around six decades.

I.2.1 The universal human rights system

I.2.1.1 The evolution of the universal human rights system. A starting point: the Charter of the United Nations

The very existence of the universal human rights system is linked to the establishment of the United Nations in 1945. This system was built on the basis of the UN Charter and it soon developed its own specific framework as a result of its increasing importance within the UN.

The UN Charter was adopted in San Francisco in 1945 and, in its first part, it sets out the objectives of the Organization. For instance, Article 1(3) includes the promotion and encouragement of respect for human rights and for fundamental freedoms for all persons without distinction as to race, sex, language, or religion. Article 7 establishes the UN’s main bodies: the General Assembly (GA), the Security Council (SC), the Economic and Social Council (ECOSOC), the Trusteeship Council—which in practice finished its work in 1995—the International Court of Justice (ICJ), and the Secretariat.

The competence of the GA regarding human rights stems from Articles 10 and 13 of the Charter. In this sense, Article 10 entitles the GA to discuss any questions or any matters within the scope of the instrument or relating to the powers and functions of any organs provided for in the Charter. Furthermore, except in cases under consideration by the SC that deal with the question of peace and security, the GA may make recommendations to the Members of the United Nations or to the SC or to both on any such questions or matters. Article 13 is even more specific, as it calls for the GA to initiate studies and make recommendations for assisting in the realization of human rights and fundamental freedoms for all.

The GA has six committees. The most important in terms of human rights is the Third Committee on Social, Humanitarian and Cultural Issues. Its main advantage is its legitimacy, because it is represented by every Member State of the United Nations and every member has a vote.[5] Nevertheless, at the time the Charter was adopted, it was decided that the main body to deal with human rights issues would be the ECOSOC. In this sense, the Charter, under the chapeau of economic and social cooperation, provides in Article 55(c) that the UN should promote the universal respect for, and observance of, human rights for all without distinction as to race, religion, sex or language.

In the same direction, according to Article 56, all members of the Organization pledge themselves to take joint or separate action to achieve this goal. ECOSOC composition and functions are regulated in Chapter X of the UN Charter (Articles 61 to 72). At the procedural level, Article 68 provides that it would establish commissions on a series of issues, including the promotion of human rights.

There is also a reference to respect for human rights without discrimination in Article 76(c) relating to the competences of the now defunct International Trusteeship system established at the time for territories under the control of foreign powers. In some cases, the SC also has competence on human rights issues in situations where there is a threat to peace and security.

Even if some of these bodies have had, or still have, regular competences in the field, at the outset, Article 68 of the Charter was the key provision that allowed the ECOSOC to set up the Commission on Human Rights (the Commission) which was its subsidiary body and rapidly became the main body of the system dealing with the matter.

I.2.1.2 The Commission on Human Rights and its 60 years of work. Its role in international law-making

The Commission was the most important body of the United Nations on human rights issues for six decades. Its main functions consisted of promoting the progressive development of international human rights law and monitoring human rights situations in every country of the United Nations. It was also an open space for dialogue and exchange in the field of human rights, including with other stakeholders such as non-governmental organizations (NGOs).

It was established by ECOSOC Resolution 5 (1) of 16 January 1946, and complemented by ECOSOC Resolution 9 (III) of 21 June 1946, with the mandate to elaborate an International Bill of Human Rights, elaborate declarations and conventions on issues related to rights and freedoms, including rights of women and prevention of discrimination, among other issues.[6]

In 1946, during its first session, the so-called “nuclear” Commission for one single time was composed of important figures from different countries, including Eleanor Roosevelt and Rene Cassin. The vast majority of these individuals recommended that the new body be composed of experts, but this was not accepted by the ECOSOC, which decided that the composition would be at the level of State representatives. The ECOSOC also decided that the Commission would be a technical body.[7]

This decision was expected because it was difficult to concede control over sensitive issues such as human rights.[8] Ultimately, it was also a positive decision because the participation of State representatives was needed to secure legitimacy in decisions taken by the Commission, in particular in the elaboration of international human rights norms and standards.[9]

The composition of the Commission was progressively extended; from 18 members in 1962, 32 in 1967, and 43 in 1980, it reached 53 in 1992. This extension followed the process of decolonization that made it necessary to have a more equitable geographic distribution in terms of representation.[10] The Commission had a six-week annual session, generally during the months of March and April at the United Nations Office in Geneva.

Its mandate changed over time. According to its founding ECOSOC Resolution 5/1, it was tasked with developing norms regarding human rights. This meant including a declaration, a convention and implementation measures. At the beginning, the mandate did not allow the Commission to address specific human rights situations.

The role of the Commission in international law-making was a significant one within the UN. To put this into context, it should be considered that modern international law is elaborated mostly through diplomatic processes in international organizations, including under the framework of the UN. International law is also developed through commissions, conferences or meetings of the State parties of multilateral treaties and international conferences (i.e. Rome Conference of 1998 that adopted the Rome Statute of the International Criminal Court).[11]

The GA can convene law-making conferences—and later endorse its results, adopt treaties, and initiate codification processes. It has an expert body, the International Law Commission (ILC), which is in charge of the codification of international law. However, in practice, other UN bodies also do that. For instance, the ILC drafts are later negotiated by the GA’s sixth committee, but this body does not address the codification of all international norms such as international human rights norms. Proposals for law-making generally originate in UN bodies—e.g. GA First and Sixth Committees—or subsidiary bodies—e.g. the former Commission on Human Rights—or in a specialized agency—e.g. the Food and Agriculture Organization.[12]

The law-making process involves the decision to promote a specific instrument, followed by deliberations on its appropriateness, the elaboration of a draft text, and the adoption of the text by States. States and intergovernmental organizations led by States have been the main actors in the international law-making processes. Some non-State actors, in particular NGOs, provide relevant inputs to many processes. In some cases, such as the ILO, there is a role for other actors, notably employers and trade unions.

For 60 years, several international human rights treaties were negotiated and adopted within the Commission and later endorsed by the ECOSOC and the GA. Its first major achievement came with the elaboration of the Universal Declaration of Human Rights, formally adopted by the GA on 10 December 1948. It was a landmark instrument at the international level because it provided a global catalogue of human rights.

After finalizing this task, the Commission was engaged for two more decades in the elaboration of two treaties that led to the adoption of two instruments in 1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It took a long time to adopt these Covenants because the exchanges and discussions were influenced by the Cold War. Indeed, Western countries mainly promoted civil and political rights (i.e. the right to life, integrity, due process, freedom of expression), while Eastern countries pushed for the development of economic, social and cultural rights (i.e. the right to health, education, housing). These two instruments finally came into force over a decade later, in 1976. The Universal Declaration and the two Covenants are generally known as the “International Bill of Human Rights”.[13]

Although the Commission had a leading role in the progressive development of international human rights law, some other bodies worked on the elaboration of norms and standards relating to human rights issues, such as the Commission on the Condition of Women or the GA. Also, the GA was the main arena where the Convention on the Prevention and Punishment of the Crime of Genocide and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families were negotiated and eventually adopted.[14]

Nevertheless, from the late 70s, many human rights conventions were elaborated and negotiated within the Commission. These conventions addressed several pressing human rights issues: the fight against racial discrimination, the rights of the child, and the fight against torture, inhuman or cruel and degrading treatment, among others.[15] These new treaties gave added international prominence to the rights they address because they have greater range, precision and force than the Universal Declaration and the Covenants.[16] In general, these single-issue treaties and the committees they established coexist with non-conventional mechanisms dealing with the same issues—for example, special procedures of the Commission—or other related mechanisms—e.g. the UN fund for Victims of Torture.[17]

At the beginning, and with the exception of the Universal Declaration of Human Rights, the normative work of the Commission mainly focused on “hard law”, that is a normative framework of a binding nature, notably through international treaties. Gradually, the work also included a remarkable development of “soft law” composed of declarations, sets of guidelines or principles, resolutions and other documents which have the character of recommendations.[18]

Nearly all of these non-binding instruments have been carefully drafted and negotiated and States even make reservations to them. This is because they are expected to have normative significance. They can be useful for establishing or interpreting State practice or the opinio juris on specific matters and they can contribute to the development of an international customary norm. Also, in other cases, declarations are the first step towards regulating a specific issue in an international treaty. Finally, international courts can take them into consideration in their decisions, contributing to the enhancement and implementation of these instruments.[19]

I.2.1.3 The Sub-Commission on the Promotion and Protection of Human Rights

To do its valuable work in legislative terms, the Commission benefitted from the contribution of the Sub-Commission on the Promotion and Protection of Human Rights. This body was created in 1947 and it was composed of 12 experts. By the time it had completed its work in 2006, its membership had extended to 26 human rights specialists with equal geographical representation. This body was called the Sub-Commission on Prevention of Discrimination and Protection of Minorities at the time of its establishment but, in 1999, its name was replaced by the one previously mentioned, which is clearly wider in scope.[20]

The Sub-Commission used to prepare reports and studies on human rights issues and make recommendations, particularly on issues regarding the protection of vulnerable groups, including minorities and indigenous peoples. Gradually, the Sub-Commission acquired a significant degree of independence and contributed to a series of declarations and guidelines on human rights issues, including important issues such as the fight against impunity, the rights of minorities and the right to reparation.

The Sub-Commission also created a series of mechanisms which were under its leadership: the Working Group on Indigenous Populations, the Working Group on Minorities, the Working Group on Business and Human Rights, the Social Forum and the Working Group on Contemporary Forms of Slavery. [21]

What is more, the Sub-Commission dealt with human rights situations within the framework of procedures established by the Commission and, eventually, this body of experts started to adopt resolutions on country situations. This competence was limited by the Commission at the beginning of the new millennium.

I.2.1.4 The development of conventional mechanisms: the treaty bodies system

Several core UN international human rights treaties adopted by the Commission—and endorsed by the ECOSOC and the GA—not only provided a catalogue of human rights, but also established a series of treaty bodies to monitor international obligations contained in those instruments. Thus, the Commission can clearly be said to have contributed greatly to the establishment of a universal system of protection based on human rights treaties, which can be compared to the ones existing at the regional level.

The international human rights treaty system comprises nine core treaties, supplemented in some cases by optional protocols, whose implementation is monitored by treaty bodies.[22] As the core human rights treaties came into force, the treaty bodies (also referred to as committees) that were provided for in these instruments to monitor their implementation were gradually established.[23] Each committee is composed of independent experts who supervise States’ compliance with their conventional obligations through various procedures comprising: the reporting mechanism, the individual and inter-State complaint mechanisms, the enquiry procedure, urgent actions and visits.[24]

In relation to the reporting mechanism, every State party has to prepare a report on a periodic basis describing the measures taken to comply with the obligations contained in the specific treaty. The State report is then considered by the specific Committee, which following a constructive dialogue with the State Party, issues concluding observations. These observations contain recommendations that by nature are not binding.

A positive aspect of this mechanism is that, as there is a need to prepare a report involving many interstate agencies, some national concerns can be addressed and eventually solved in this context even before the presentation to the committee in question. Furthermore, reports can draw the attention to countries’ human rights records and may occasionally cause embarrassment, thus leading to the altering of legislation and/or practices. It could also provide good practices and models for other States.[25]

The complaint mechanism has not been included in every human rights treaty and, in some cases, it has been added in a protocol to the treaty.[26] As a general rule, the State Party has to expressly recognize the competence of the treaty body to deal with complaints.[27] These complaint mechanisms allow individuals who claim to be victims of a human rights violation to submit a communication before the relevant committee when all conditions of admissibility are met, including the exhaustion of domestic legal remedies. The victim or his or her representative is able to submit arguments and the State party has a space to respond. Afterwards, the committee will issue its findings and will make recommendations. The complaint mechanism can also be activated by a State party against another State party, although it has rarely been used. In 2018, for the first time in history there were three complaints under the CERD convention.[28]

The decisions adopted under the complaint mechanism are not binding. As a way to enhance decisions, many treaty bodies have established follow-up procedures and have appointed a Special Rapporteur to that end.[29] In all cases, there is a high political and moral cost for any State that decides not to comply with the committee’s decision. Therefore, several States have changed their behavior or redressed the victims.[30]

Other procedures are more innovative and are included in more modern instruments. One of them is the inquiry procedure that allows the relevant committee to initiate a confidential investigation when there is reliable information of grave or systematic violations by a State party of the rights protected by the instrument. In this case, the committee may visit the State party concerned and make recommendations. Other examples of new procedures can be seen in the most recent international human rights treaties, such as visits,[31] urgent actions[32] or the opportunity to address the GA in cases where enforced disappearance is being practiced on a widespread or systematic basis.[33]

Except for the reporting mechanism, in the majority of the other procedures included in human rights treaties, the committee cannot take the case into consideration if its competence has not been expressly recognized by the State Party.

The development of international human rights law and the valuable work of treaty bodies have been generally recognized as being among the most positive legacies of the Commission and they both still have significant relevance. In general terms, it could be said that these treaty bodies have a “quasi-judicial” nature: the committees that evaluate the States’ compliance are not composed of judges but they have specific mechanisms to assess States’ performance and make recommendations. This is probably one of the main differences between this and the regional systems (European, Inter-American and African), which include tribunals that can adopt binding decisions. As a consequence, these international human rights treaties and their monitoring committees cannot force reluctant States to follow their recommendations.

In the last decades, even before the creation of the Human Rights Council, there has been a debate about the need to strengthen the system and to have coordinated and unified criteria to be used in all committees with equal mechanisms, for coherence purposes and to ease the work of States in this regard.

I.2.1.5 The development of non-conventional mechanisms: thematic and country mandates

The possibility of dealing with complaints on human rights violations was not included among the functions of the Commission on its creation. As the UN started to receive communications on allegations of human rights violations at an early stage, the new UN body dealt with this issue in its very first session, held between 27 January and 10 February 1947. In that meeting, the Commission decided that it did not have competence to address communications regarding human rights violations.[34]

This decision was later confirmed by its superior body through ECOSOC Resolution 75 (V) of 5 August 1947. It was based on the principle of non-intervention in the internal affairs of States, recognized in Article 2.7 of the UN Charter. Nevertheless, ECOSOC Resolution 75 (V) instructed the Secretary-General to compile a confidential list of all communications on human rights violations received and to prepare a brief summary of its content to be distributed in a private meeting of the Commission without the identity of the authors of the claims.[35]

The no-power to address human rights complaints was challenged on a few occasions and it was necessary to consider the way to solve the problem of interpreting Resolution 75 (V), which was later amended and complemented by other resolutions.[36] In 1959, the GA adopted Resolution E/728 F (XXVIII).

Resolution 728 confirmed that the Commission had no power to decide on communications on human rights violations. In this context, the Commission’s practice of taking note of the list of communications and replies from Governments consolidated by the Secretary-General was disregarded. In any case, it remained unclear what use the Commission could make of the list and replies, which continued to be distributed during the Commission’s sessions.[37]

Ultimately, the terrible situation of the apartheid in South Africa pushed the GA to create a special committee to deal with individual claims against that regime, setting a useful precedent that led to the adoption in 1967 of ECOSOC Resolution 1235, which finally allowed the Commission to examine relevant information regarding gross human rights violations and to make a thorough study of situations with consistent patterns of grave human rights violations, such as racial discrimination and the apartheid regime.[38] This resolution allowed the Commission and its subsidiary body, the Sub-Commission, to publicly examine information about the issue and gave the Commission the competence to prepare a study on the situation and submit it to the ECOSOC.[39]

In 1970, the ECOSOC adopted Resolution 1503, which established a confidential procedure with two working groups to study cases of gross and systematic human rights violations.[40] The first working group on communications was composed of five members of the Sub-Commission for the Promotion and Protection of Human Rights. It analyzed the communications related to gross human rights violations as a first step.

Once considered, the Sub-Commission could dismiss these communications or transmit them to a second Working Group on Situations (WGS), which was composed of five members of the Commission acting in an individual capacity. The WGS could decide to submit the case to the Commission for its consideration. At that point, after treatment of the case in a closed session, the Commission could bring the case into a public procedure such as the one set out in Resolution 1235. The Commission could also transmit the issue to the ECOSOC and the GA for its public consideration.

At the same time, the Commission started to deal with specific human rights situations. In line with the public procedure established by Resolution 1235, the Commission progressively decided to establish country mandates to deal with specific situations of gross and systematic human rights violations. The first cases involved the apartheid regime in South Africa (1967), the territories occupied by Israel (1967), the situation in Chile (1974), and the use of country mandates was then extended to many more cases during the 1980s.[41]

These decisions were made at a specific moment in history: the Commission had experienced an enlargement of African, Asian and Caribbean members, who were pushing for a change at a time when Western Powers were not interested in dealing with country situations for different reasons, including in particular, the decolonization process and a shameful institutional framework of racial discrimination in some countries.[42]

Eventually, country mandates were followed by thematic mandates. The first one was established in 1980 on the issue of enforced or involuntary disappearances, to implicitly address the situation in Argentina during the military dictatorship that ruled the country between 1976 and 1983, as will be analyzed in depth in Chapter 4. At the time, the dictatorship managed to avoid the creation of a country mandate with clear support from several countries.[43] Within a few years, many other thematic procedures on different human rights issues were established.

The sum of country and thematic mandates eventually created a system that has been one of the main contributions of the Commission at the universal level. Since then, special procedures mandate-holders have been visiting many different countries in the world; have been investigating and making public human rights violations in specific States through communications; have been sending urgent appeals in certain cases to prevent irreparable damage; and have been making reports and recommendations on a wide variety of human rights issues and country situations. At the same time, they have had a very close relationship with other stakeholders such as NGOs.[44]

Regarding country visits, special procedures mandate-holders currently make an average of two visits per year and some of them manage to do more. At present, international pressure is sufficiently strong for States to receive at least some mandate-holders. Nonetheless, there is always the possibility that they will pick and choose those mandates that are considered harmless at the internal level, leaving aside those which could be more thematically sensitive in the country.

In terms of their communications-related function, mandate-holders are able to prepare allegation letters regarding human rights violations or urgent actions in cases of emergency. These measures give States the possibility to explain their policies or applicable law, and to take specific measures.

Special procedures mandate-holders can help to put issues on the international agenda through thematic reports, as occurred a few years ago with the report on secret detention;[45] they can make recommendations, including on ways to interpret existing provisions; or develop new norms and standards, as was the case with the Guiding Principles on Internal Displaced Persons a few decades ago.[46]

These mandates took different forms, including special rapporteurs, Secretary-General representatives or special representatives, independent experts and working groups, and they all helped to shed light on specific grave human rights situations all over the world. The experts receive no remuneration for their work, but their expenses are paid through the UN.

By the last years of the Commission, more than thirty mandates were functioning, and many of them were inherited by the Human Rights Council when it replaced the Commission.[47] As of October 2020, there are 44 thematic mandates and 11 country mandates reporting to the new Human Rights Council.[48] In the last few decades, the number of thematic mandates has steadily grown, promoted by States in accordance with their national human rights priorities.

These mechanisms can only make non-binding recommendations, mainly through specific reports. Nevertheless, in general, States do not want to be included in public reports as part of the group that does not comply with the universal system of human rights. National and international human rights NGOs also play a role in terms of encouraging States to comply with recommendations.

Moreover, recommendations are often seriously considered by States because they can demonstrate commitments at the international level. At the same time, mandate-holders are able to criticize national human rights situations in a more independent way, which is always more difficult to do for States when it comes to evaluating the situation of their peers. It may also help to facilitate information on specific issues and consider the possibility for States to develop standard-setting.[49]

Special procedures reports were considered at the plenary of the Commission—today at the plenary of its successor body—and, on occasions, at formal sessions of the GA. This, ultimately, influences States to seriously consider the advisability of following the recommendations made by these mechanisms. There are a few exceptions where States pay little or no attention to the system of special procedures but, in general, it is the case of recalcitrant States which are isolated in the international arena and usually pay a high political cost as a result.

A major positive aspect of this system, at present known as the “system of special procedures”, was the fact that it consolidated a solid and diverse group of experts of various kinds that eventually had competence over all UN States, irrespective of their international legal obligations under human rights treaties. This is why they are known as non-conventional mechanisms. Their mandate and work did not depend on an international human rights treaty, but on a decision by the Commission under the umbrella of the UN Charter. This enabled the competence of non-conventional mechanisms to be extended to all States of the international community that were represented at the UN, including States with very poor human rights records.

The role of this system has been positively recognized by high level officers—former Secretary-General Annan and former High Commissioner for Human Rights Arbour—the defunct Commission, NGOs and relevant scholars.[50] At the same time, a number of States considered that, while performing their activities, mandate-holders somewhat undermined State sovereignty through techniques considered overly intrusive or biased against particular governments, and therefore they expressed their dissatisfaction with the interpretations, working methods, or other activities of mandate-holders. This is the reason why there were many proposals to monitor their work from the mid-1990s until the establishment of the Human Rights Council.[51]

I.2.1.6 The United Nations High Commissioner for Human Rights

A new milestone in the human rights system came with the creation of the United Nations High Commissioner for Human Rights (High Commissioner). Following a recommendation contained in paragraph 18 of section II of the Vienna Declaration and Program of Action of 1993, the GA decided that same year to create this position.[52] The UN High Commissioner was thought to reinforce the work of the existing Center for Human Rights of the Secretariat. According to GA Resolution 48/141, the candidate for the post is appointed by the Secretary-General, approved by the GA, and has a four-year mandate, which can be renewed only once for the same period.

The work of the High Commissioner is performed within the framework of the Charter, the Universal Declaration of Human Rights, other international instruments on human rights and international law; he or she shall promote and protect the full enjoyment of all human rights; perform his or her activities under the direction of the Secretary-General and within the framework and overall competence of the GA. Formally, her or his Office is part of the Secretariat and the rank is Under-Secretary-General.

The High Commissioner can make recommendations and provide advisory services and technical assistance; provide cooperation; engage in dialogue and exchanges with States and other stakeholders; and promote mainstreaming in the human rights machinery and in general within the whole UN. The High Commissioner is also tasked with an express mandate to submit annual reports to the Commission (now the Council) and to the GA (formerly through the ECOSOC, now directly to the GA). Her or his reports have an important impact during sessions because they contain a description of the annual priorities and the current situation in terms of implementation of the Office’s strategic management plan, periodically designed to comply with the High Commissioner’s functions. During those occasions, the High Commissioner also often uses this relevant political space before the main UN intergovernmental bodies to express concerns about one or more specific situations of human rights violations in different countries of the world.

The work of the High Commissioner has taken on a significant relevance in the whole universal human rights system. His or her Office provides secretariat support to the main human rights mechanisms and it has a key role in the work that the UN performs in different countries. Taking into consideration the vast and complex UN structure, it is not surprising that, over time, some reforms have been made.

In this sense, following improvement efforts made by his predecessor, Boutros Boutros Galli, on 14 July 1997, then Secretary-General, Kofi Annan, submitted a report in which he informed the GA of his decision to merge the Centre for Human Rights and the High Commissioner into the Office of the High Commissioner for Human Rights (OHCHR). This new office was designed to increase efficiency and coordination on human rights throughout the whole organization.[53]

This decision consolidated the status of the High Commissioner as the main United Nations human rights officer of the universal system. At the same time, it was decided that a Deputy High Commissioner would be responsible for all administrative matters and would replace the High Commissioner when needed.

Later, in 2005, after the 2005 World Summit, the budget of the Office of the UN High Commissioner was doubled. This helped to strengthen all the work of the Office both at the administrative—support provided to UN bodies and to the special procedures and treaty body systems—and operational levels—work on the ground in specific missions or national offices. Unfortunately, lately, the budget has suffered a reduction.[54]

Since its creation, this high-level position has been held by prominent figures, including the former President of Ireland, Mary Robinson, and the former Judge of the International Criminal Court, Navy Pillay. At present, the High Commissioner is former President of Chile, Michelle Bachelet. Today, the High Commissioner continues to perform a central role in the system, including through the assistance provided to UN intergovernmental bodies dealing with human rights, as well as to the system of treaty bodies and special procedures, in addition to other non-conventional human rights mechanisms. OHCHR also contributes to the development of international human rights law through reports and special inputs prepared upon request. Moreover, it assists commissions of inquiry, and it has a leading role in the promotion of human rights education.

At present, OHCHR also has policy priorities which include issues such as: enhancing equality and non-discrimination, combating impunity and promoting the rule of law, integrating human rights in development and cooperation, widening the democratic space, strengthening international human rights mechanisms and providing early warning in situations of violence or insecurity.[55]

I.2.1.7 The decline of the Commission

In its final years, the Commission received criticisms of politicization, selectivity and double standards. These were the main reasons for its discredit and decline as well as its eventual replacement by the Council.[56] The politicization of the Commission was a main weakness, which was linked to the very nature of its intergovernmental composition, but it became a major problem during its final years.

Indeed, the last sessions of the Commission witnessed several cases of Member States that promoted a selective treatment of country situations, mostly linked with geostrategic goals and political alliances. As a consequence, there were clear cases of double standards when dealing with human rights situations. Many Member and Observer States of the Commission were inclined to support initiatives when aimed at denouncing human rights violations committed by political enemies, but those same States were against addressing human rights situations in like-minded countries.

The politicization was worsened by the appreciation that the independent universal human rights mechanisms were not widely known, and there was a problem of lack of coordination and duplication in existing mandates. In 1999, the President of the Commission at the time decided to push for the establishment of a working group to improve existing mechanisms.[57] This working group prepared a report on the issue and made recommendations in this regard.[58] However, these efforts were not enough either to improve the mechanisms or to stop the growing negative image of the system. These difficulties deepened in 2000, when some of the Commission’s subsidiary bodies, notably the Sub-Commission, faced limitations on their competences. Indeed, the Sub-Commission lost its mandate to adopt resolutions on country situations.[59]

At the same time, although the question of membership of the Commission was not a new issue of concern, a particular focus on the composition began when the United States failed to secure re-election for the first time in history in 2001 during the Bush Administration. This attracted particular international attention to the members elected that same year. Among them, the Commission included two countries with controversial human rights records at the time: Libya and Syria.[60]

Criticisms deepened in 2003, when Libya was appointed as Chair of the Commission.[61] Libya’s chairmanship came at a time when the composition of the Commission included an increasing number of countries with questionable commitment to human rights.[62] In this sense, the election of Sudan in 2004 was severely criticized by many actors, including the United States.[63] The main powers of the system—in particular, some permanent members of the SC from different regions of the world—did not help to provide an appropriate setting either. Indeed, a number of them tried to prevent the Commission from addressing situations of national concern.

There were also criticisms related to the work and functioning of the Commission, exemplified by the lack of regular meetings throughout the year and its inability to call emergency sessions.[64]

Growing and fierce criticism from some countries and NGOs about the Commission eroded the body’s credibility at the international level. There were some initiatives to promote change, but it was only when then Secretary-General, Kofi Annan, decided to intervene that a major reform was finally considered and implemented.

  1. Information on the regional systems of protection is available at their respective websites: Council of Europe, European Court of Human Rights (https://bit.ly/38yWbN6); Organization of American States (https://bit.ly/2Itwqmi); African Union (https://bit.ly/32w7guA). There is also information available at: https://bit.ly/32CmHl7.
  2. Heyns, Christof et al, “A schematic comparison of regional human rights systems: an update”, Sur, Revista internacional de direitos humanos, volume 3, number 4, São Paulo, June 2006, available at: https://bit.ly/2IriTfA.
  3. Information on human rights systems and arrangements can be consulted at: https://bit.ly/3lnrQ7H.
  4. Information in this regard is available at: https://bit.ly/36sv0AX.
  5. Steiner, Henry and others, International Human Rights in Context. Law, Politics, Morals, Oxford University Press, Third Edition, 2008, page 739.
  6. Pinto, Mónica, Temas…, Ibid, pages 155-156.
  7. United Nations Economic and Social Council Resolution 9 (II), Article 2.
  8. Alston, Philip, “Reconceiving the UN Human Rights Regime: Challenges confronting the new UN Human Rights Council”, 2006, MelbJIntLaw 9, 7 (1) Melbourne International Law 185, page 2, available at: https://bit.ly/32BbuB6.
  9. Boyle, Kevin, “The United Nations Human Rights Council: Origins, antecedents and prospects”, in Boyle, Kevin, ed, New Institutions for Human Rights Protection, Oxford University Press, 2009; Mallory Conall, “Membership of the UN Human Rights Council”, Canadian Journal of Human Rights, 2013, 2:1 Can J Hum Rts, page 5.
  10. Schrijver, Nico, “The UN Human Rights Council: a new ‘society of the committed’ or just old wine in new bottles?”, in: Skouteris, Thomas and Vermeer-Kunzli, Annemarieke (eds.), The protection of the individual in international law: essays in honour of John Dugard, Cambridge, Cambridge University Press, 2007.
  11. Boyle, Alan et al., The making of International Law, Oxford University Press, 2007, pages 98-162.
  12. Boyle, Alan et al., The making of …, Ibid, pages 116-117.
  13. Office of the United Nations High Commissioner for Human Rights, Factsheet No. 2 (Rev.1), “International Bill of Rights”, United Nations Geneva, 1996, page 1, available at: https://bit.ly/2GRuCTQ.
  14. Boyle, Alan et al., The making of…, Ibid, page 121.
  15. Information available on the website of the Office of the United Nations High Commissioner for Human Rights, “The Core International Human Rights Instruments and their monitoring bodies”: https://bit.ly/3knBLJt.
  16. Donnelly, Jack, International human rights, Ibid, page 59.
  17. Donnelly, Jack, International human rights, Ibid, pages 59-60.
  18. A list of human rights instruments of a binding and non-binding nature can be consulted from the website of the Office of the United Nations High Commissioner for Human Rights, “Universal human rights instruments”, available at: https://bit.ly/2K3jBAh.
  19. Boyle, Alan et al, The making of…, Ibid, pages 212-311.
  20. Pinto, Mónica, Temas…, Ibid, pages 156-157. Information also available at the website of the Human Rights Council, “Sub-Commission on the Promotion and Protection of Human Rights”: https://bit.ly/35kzdXZ.
  21. Office of the United Nations High Commissioner for Human Rights, Fact Sheet No. 1, “The Human rights machinery”, United Nations Geneva, 1987, pages 8-9, available at: https://bit.ly/3nks8Nv.
  22. The UN core human rights treaties are: the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the International Covenant on Civil and Political Rights (1966); the International Covenant on Economic, Social and Cultural Rights (1966); the Convention on the Elimination of All Forms of Discrimination against Women (1979); the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment (1984); the Convention on the Rights of the Child (1989); the International Convention for the Protection of the Rights of All Migrant Workers and Members of their Families (1990); the International Convention for the Protection of All Persons from Enforced Disappearances (2006); and the Convention on the Rights of Persons with Disabilities (2006). See in this regard, Office of the United Nations High Commissioner for Human Rights, Handbook for human rights treaty body members, HR/PUB/15/2, New York and Geneva, 2015, page 3.
  23. These treaty bodies are: the Human Rights Committee; the Committee against Torture; the Committee against Racial Discrimination; the Committee on the Elimination of All Forms of Discrimination against Women; the Committee on the Rights of the Child; the Committee on the Rights of All Migrant Workers and Members of Their Families; the Committee on Enforced Disappearances; and the Committee on Persons with Disabilities. An exception was the Committee on Economic, Social and Cultural Rights, which was established by United Nations Economic and Social Council Resolution 1985/17. Information on the treaty bodies is available on the website of the Office of the United Nations High Commissioner for Human Rights, “Monitoring the core international human rights treaties”: https://bit.ly/3loXQZc.
  24. Office of the United Nations High Commissioner for Human Rights, Fact Sheet No. 30, The United Nations Human Rights Treaty Bodies System, New York and Geneva, 2015, pages 31-32, available at: https://bit.ly/3pkAZAx.
  25. Donnelly, Jack, International Human Rights, Ibid, pages 57-62.
  26. This is the case, for instance, of the First Optional Protocol to the International Covenant on Civil and Political Rights (1966) and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2008).
  27. See for example, the Optional protocol to the Covenant on Civil and Political Rights of 1966 to establish a communications procedure, Article 1. See also the Optional Protocol to the Covenant on Economic, Social and Cultural Rights of 2008 on a communications procedure, Article 1.
  28. Office of the United Nations High Commissioner for Human Rights, “Human Rights Bodies”, webpage of CERD, “Inter-State communications”, available at: https://bit.ly/2GWhnkW.
  29. Office of the United Nations High Commissioner for Human Rights, “Follow-up to Concluding Observations”, available at: https://bit.ly/2Ugwfxl.
  30. A series of significant examples of changes produced as a follow up to recommendations of the Human Rights Committee are described in Donnelly, Jack, International human rights, Ibid, pages 58-59.
  31. See in this regard the Optional Protocol to the Convention against Torture, which empowers the Sub-Committee on the Prevention of Torture to visit any place under the jurisdiction of the State party concerned where persons are deprived of their liberty. See also Article 33 of the International Convention for the Protection of All Persons from Enforced Disappearance, which includes the possibility for the Committee on Enforced Disappearances to undertake visits when it receives reliable information indicating that a State party is seriously violating the provisions of the Convention.
  32. In this sense, the Committee on Enforced Disappearances is allowed to receive urgent actions, that is to say, urgent requests from relatives, their legal representatives or any other authorized person that a disappeared person should be sought and found. See International Convention for the Protection of All Persons from Enforced Disappearance, Article 30.
  33. International Convention for the Protection of All Persons from Enforced Disappearance, Article 34.
  34. United Nations Commission on Human Rights, Report to the Economic and Social Council on the First Session of the Commission, held at Lake Success, New York, from 27 January to 10 February 1947, UN Document E/259, paragraph 22. See also Bartolomei, Maria Luisa, Gross and Massive Violations of Human Rights in Argentina 1976-1983, An analysis of the procedure under ECOSOC Resolution 1503, Juristförlaget i Lund, Sweden, 1994, page 60.
  35. Bartolomei, Maria Luisa, Gross and Massive Violations…, Ibid, pages 57-60.
  36. Bartolomei, Maria Luisa, Gross and Massive Violations…, Ibid, pages 61-62.
  37. Bartolomei, Maria Luisa, Gross and Massive Violations…, Ibid, pages 61-62. See also, Donnelly, Jack, International human rights, Ibid, page 52.
  38. Sunga, Lyal S., “What effect if any will the UN Human Rights Council have on special procedures?”, in: Alfredsson, Gudmundur et al (eds.), International human rights monitoring mechanisms: essays in honour of Jakob Th. Möller, Leiden, Martinus Nijhoff Publishers, 2009, pages 169-183.
  39. United Nations Economic and Social Council Resolution 1235 (XLII).
  40. United Nations Economic and Social Council Resolution 1503 (XLVIII).
  41. Chetail, Vincent, “Le Conseil des droits de l’homme des Nations Unies : réformer pour ne rien changer ?”, in: Chetail, Vincent (ed.). Conflits, sécurité́ et coopération: liber amicorum Victor-Yves Ghebali, Bruselas, Bruylant, 2007, pages 125-167.
  42. Limon, Marc and Power, Hillary, History of the United Nations Special Procedures Mechanisms. Origins, evolution and reform, Universal Rights Group, 2014, pages 4-5, available at: https://bit.ly/3kmB0jQ.
  43. Kramer & Weissbrodt, “The UN Commission on Human Rights and the Disappeared”, 1 Hum Rts. Q. 18, 1981, pages 18-19. See also Weissbrodt, David et al, “The effectiveness of international human rights pressures: the case of Argentina, 1976-1983”, 75 Minn L Rev. 10009, 1991, pages 1029-1030, available at: https://bit.ly/35kJrrq.
  44. Information in this regard is available on the website of the Office of the United Nations High Commissioner for Human Rights, “Special procedures of the Human Rights Council”: https://bit.ly/3phYHxb.
  45. Alston, Philip, “Hobbling the monitors. Should UN human rights monitors be accountable?”, Volume 52, N° 2, Harvard University, Summer 2018, page 573, available at: https://bit.ly/38B26S6.
  46. Guiding Principles on Internal Displacement, UN Document E/CN.4/1998/53/Add.2, 11 February 1998.
  47. Human Rights Council Resolution A/HRC/RES/5/1, Appendix 1.
  48. Information available on the website of the Office of the United Nations High Commissioner for Human Rights’, “Human Rights Mandates, Thematic and Country mandates”: https://bit.ly/2K3lsVL. See also: https://bit.ly/35mGXJh.
  49. Alston, Philip, “Hobbling the monitors…”, Ibid, pages 579-580.
  50. See for instance, Piccone, Ted, “Catalysts for Rights: The Unique Contribution of the U.N.’s Independent Experts on Human Rights”, Final Report of the Brookings Research Project on Strengthening U.N. Special Procedures 9 (2010), in Alston, Philip, “Hobbling the monitors…”, Ibid, page 565.
  51. Alston, Philip, “Hobbling the monitors…”, Ibid, pages 571-572.
  52. United Nations General Assembly Resolution A/RES/48/141.
  53. United Nations Report “Renewing the United Nations. A Programme for Reform”, UN Document A/51/950, 14 July 1997, pages 63-64.
  54. Office of the United Nations High Commissioner for Human Rights, News and Events, “UN Budget shortfalls seriously undermine the work of human rights treaty bodies”, 17 May 2019, available at: https://bit.ly/3ncr3Ht.
  55. Information available on the website of the Office of the United Nations High Commissioner for Human Rights, “Our priorities”: https://bit.ly/3pnxHwa.
  56. Schrijver, Nico, “The UN Human Rights Council…”, Ibid, page 809. See also, Mallory, Conall, “Membership and the UN Human Rights Council”, 2:1 Can J Hum Rts 1, 2013, page 6. See also Ghanea, Nazila, “From UN Commission on Human Rights to UN Human Rights Council: One Step Forwards or Two Steps Sideways?”, In: Warbrick, Colin (ed.), Current developments: public international law, International and comparative law quarterly, Vol. 56(1), 2007.
  57. This decision can be consulted from UN Document E/CN4/1999/WG.15/Inf.1.
  58. This decision can be consulted from UN Document E/CN4/dec/2000/109.
  59. Weissbrodt, David et al, “A Review of the Fifty-third Session of the Sub- Commission on the Promotion and Protection of Human Rights”, 20 Neth. Q. Hum. Rts. 231 (2002), pages 236-242, available at: https://bit.ly/38Dq6DV. See also United Nations Commission on Human Rights, “Rationalization of the work of the Commission”, “Report of the inter-sessional open-ended Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights”, UN Document E/CN.4/2000/112, 16 February 2000.
  60. Mallory, Conall, “Membership of the UN Human Rights Council…”, Ibid, page 7.
  61. Alston, Philip, “Reconceiving the Human Rights Regime…”, Ibid, page 2.
  62. Mallory, Conall, “Membership of the UN Human Rights Council…”, Ibid, page 7.
  63. Economic and Social Council, Press Release ECOSOC/6110, 4 May 2004, “United States objections as African Group proposes Sudan for election to the Commission on Human Rights”. See also, Mallory, Conall, “Membership of the UN Human Rights Council…”, page 7.
  64. Cox, Eric, “State interests and the creation and functioning of the United Nations Human Rights Council”, Journal of International Law and International Relations, Vol. 6, N°1, page 88.

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