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Should Commitments to Implementation Factor into Elections to the Human Rights Council?

Published on November 8, 2016        Author: 

Following the recent celebration of the UN Human Rights Council’s tenth anniversary, one of the key questions for its next decade is how it can play a more effective role in promoting the implementation of human rights standards and norms and its own and other UN bodies’ recommendations. This shift is critical given the serious deficiencies in implementation, despite the former UN Secretary General Kofi Annan’s call almost 15 years ago for a focus on the ‘implementation of the commitments we have made’ in an ‘era of commitment and implementation’. The recent Universal Rights Group Glion III report points to ‘important signs that UN Member States are increasingly turning their attention to the question of implementation, and how best to support it’ including within the Council. Recently, the President of the Council remarked that the Universal Periodic Review process holds ‘great potential to lead the charge’ in this regard. Tomorrow, the Council’s UPR Working Group will hold a half day panel discussion on ‘national reporting processes and structures’ as a key means to achieving implementation.

On 28 October, the UN General Assembly held elections for 14 new vacancies in the Human Rights Council. In this post, I ask whether and how the election process could provide a further lever to the burgeoning implementation project within the Council. I use the example of the UK’s recent re-election to illustrate how a deeper connection between implementation and election to the Council could be made, particularly through pledges to establish national implementation and follow-up mechanisms.

Expectations of Council Members

In 2006, the General Assembly in Resolution 60/251 outlined the requirements for membership of the Council as: (1) ‘the contribution of candidates to the promotion and protection of human rights’ (2) the submission of ‘voluntary pledges and commitments made thereto’ (4) the ‘uphold[ing of] the highest standards in the promotion and protection of human rights’ (5) ‘full[] cooperat[ion] with the Council’ and (6) agreement to ‘be reviewed under the universal periodic review mechanism during their term of membership’. The Resolution also indicated that the commission of gross and systematic human rights violations could result in the suspension of membership. Read the rest of this entry…

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First Report of the UN Special Rapporteur on the Right to Privacy to the Human Rights Council

Published on March 18, 2016        Author: 

In March 2015, the United Nations Human Rights Council created a new special procedure on the right to privacy, appointing its first Special Rapporteur on the topic, Professor Joseph Cannataci, in July 2015. Last week, the Special Rapporteur presented the Human Rights Council with his first report and engaged in an interactive dialogue with the Council. He also provided an outline of the main features of his report at a side event at the Council organised by Austria, Brazil, Germany, Liechtenstein, Mexico, Norway, Switzerland and the Geneva Academy of International Humanitarian Law and Human Rights with former US Ambassador to the Human Rights Council, Eileen Donahoe as the chair and myself, Carly Nyst and Faiza Patel as panellists (report forthcoming). As a first report, the Special Rapporteur acknowledges that it is still very much ‘preliminary’ (para. 3). At the same time, he provides a detailed outline of the themes he proposes to focus on during his mandate. In this blog, I reflect on the scope of the mandate, the choice of themes and suggest ways in which the Special Rapporteur might develop some of the themes during his mandate.

The Scope of the Mandate

  1. Privacy and Personality across cultures
  2. Corporate on-line business models and personal data use
  3. Security, surveillance, proportionality and cyberpeace
  4. Open data and Big Data analytics: the impact on privacy
  5. Genetics and privacy
  6. Privacy, dignity and reputation
  7. Biometrics and privacy

The number and range of themes identified is ambitious. However, in my view, the Special Rapporteur’s selection strikes a good balance between continuing to prioritise the risks to the right to privacy posed by security and surveillance and taking a wider view of the impact of big data and new technologies on human rights outside of the security context which has not received adequate attention to date. Read the rest of this entry…

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Julian Assange and the UN Working Group on Arbitrary Detention

Published on February 5, 2016        Author: 

We should have known. Once Julian Assange publically stated that he would surrender to the UK authorities if the United Nations Working Group on Arbitrary Detention found against him, it was obvious that the Working Group had done no such thing. And its opinion was released today, to widespread derision among the legal community (at least as expressed by my twitter feed).

To get the obvious issues out of the way: the Working Group is a UN body but it is not, and does not represent, ‘the United Nations’. Instead, it is one of the ‘thematic special procedures’ of the UN Human Rights Council, which is itself a political body established by and reporting to the UN General Assembly. The Working Group was originally established by the Commission on Human Rights, the Human Rights Council’s predecessor, and had its mandate renewed, most recently by the Human Rights Council in 2013. In contrast to the HRC, however, the Working Group is a body of independent experts serving in their individual capacities. It presently has five members: from South Korea, Mexico, Benin, Australia and the Ukraine.

The Working Group is tasked with investigating cases of deprivation of liberty imposed arbitrarily, with reference to the relevant international standards set forth in the Universal Declaration of Human Rights, as well as to the relevant international instruments accepted by the States concerned. It can consider individual communications and, having done so, render opinions as to whether an arbitrary detention has or has not been established and make recommendations to the State concerned.

What all this means is that the Working Group cannot issue binding decisions (contrary to what Julian Assange’s legal team are arguing), hence their description as ‘opinions’. Nor can it provide authoritative interpretations of any human rights treaty (having not been granted that role by the parties to any such treaty). The most that can be said is that States are under a duty to take ‘due consideration’ to Working Group’s recommendations, which is a rather weak obligation.

Moving from the general to the particular, the Working Group gave its opinion in response to a communication made on behalf of Julian Assange. It will be recalled that Mr Assange has been in the Ecuadorian embassy in London since 19 June 2012, when he skipped bail following the decision of the UK Supreme Court on 30 May 2012 to permit his extradition to Sweden under a European Arrest Warrant. The communication was made on 16 September 2014 and was passed on to the Governments of Sweden and the United Kingdom, which replied, respectively, on 3 and 13 November 2014. The opinion was adopted on 4 December 2015, over a year later, and was published on 5 February 2016, which does not indicate an enormous sense of urgency. Following the Working Group’s rules, one of the members of the Working Group recused herself from this deliberations as she shared the same nationality as Mr Assange. Another, Mr Vladimir Tochilovsky, dissented and produced a short individual dissenting opinion. Read the rest of this entry…

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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

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UN Human Rights Council Panel Discussion on Drones

Published on October 1, 2014        Author: 

Last week the United Nations Human Rights Council convened a panel to  discuss the use of armed drones (remotely piloted aircraft) in counter-terrorism and military operations in accordance with international law. The panel was convened as part of the Human Rights Council’s 27th regular session, which finished last week.  The session held last Monday took the form of an interactive dialogue between a panel of experts, members of the Human Rights Council (i.e States), as well as observers. I had the honour to be invited to moderate what turned out to be a very interesting panel discussion. The panellists were Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions; Ben Emmerson QC, UN Special Rapporteur on human rights and counter-terrorism; Shahzad Akbar, Legal Director, Foundation for Fundamental Rights; Alex Conte, Director of International Law and Protection Programmes, International Commission of Jurists;  and Pardiss Kebriaei, Senior Attorney, Centre for Constitutional Rights. Flavia Pansieri, the UN’s Deputy High Commissioner for Human Rights opened the discussion.

There was a really interesting exchange of views, not only amongst members of the panel but also between states and NGOs. Over 20 states spoke, including all the permanent members of the UN Security Council, as did the ICRC. There was discussion of the entire range of legal issues relating to targeted killings in counterterrorism and other operations. In particular, there was consideration of the applicable legal framework regulating the use of armed drones with much attention given to the applicability of international human rights law and international humanitarian law (IHL). In this context there was discussion of the substantive legal issues relating to the determination of the applicable legal framework – such as the classification of situations of violence (for the purpose of determining the applicability of IHL) and the extraterritorial application of the right to life. However, perhaps the most significant disagreement between states related to the question of institutional competence for discussing and monitoring compliance with the law. In a divide which appeared to mirror the range of views as to whether norms of human rights or IHL constitute part of, or the main applicable legal framework, some states (like the US, the UK and France) insisted that the Human Rights Council was not an appropriate forum for discussion of the use of armed drones whereas many other states, observers and panellists insisted that the Council was such a forum.

A significant part of the discussion also covered the applicable human rights  and IHL rules that apply to the use of drones. The panellists spoke about the right to life as it might apply to drones; the principles relating to targeting under IHL; and other potentially applicable human rights, such as the right to a remedy.  A key part of the discussion was about accountability with respect to the use of drones. All the panellists spoke about the obligations of states under IHL and human rights law to conduct investigations in cases where there was a credible allegation of violations, as well as the obligations relating to transparency with respect to drone operations. This issue was also raised by a number of states with some seeking examples of best practices that may be employed with respect to disclosure of data relating to drone operations.

A press release summarising the discussion is available here and a video of the entire panel discussion is available on UN Web TV. Christopher Rodgers of the Open Society Foundations has also written an excellent report of the session on Just Security. The Office of the High Commissioner for Human Rights will submit a report on this discussion to the Human Rights Council’s 28th regular session which will take place early in 2015. At this point, the matter will return to the Council for further consideration.

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The Successes and Challenges for the European Court, Seen from the Outside

Published on May 14, 2014        Author: 

Helfer photo croppedLaurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law and Co-director of the Center for International and Comparative Lawat Duke University.

Cross-posted on AJIL Unbound.

In this post I wish to address the successes and challenges for the European Court of Human Rights (ECtHR), as seen from the outside.  I will take this opportunity to draw upon my research on human rights systems outside of Europe to explain how these systems have responded to some of the same challenges now facing the Council of Europe and the ECtHR.  My main contention is that international human rights courts, wherever they are located, require sustained political and material support if they are to thrive and grow over time.

I will illustrate my points with examples from the Inter-American and African courts of human rights and from lesser-known courts of sub-regional legal systems in Africa—the Economic Community of West African States (ECOWAS), the East African Community (EAC) and the Southern African Development Community (SADC).  The judges of these courts often look to ECtHR case law for guidance.  They are also aware of the high level of political and material support for the Strasbourg supervisory system.  Just as these courts have drawn inspiration from the ECtHR, so too those who will shape the Court’s long-term future should consider both the achievements and the challenges that these regional and sub-regional systems have faced.  In describing these positive and negative developments, I will focus on three issues—the evolution of human rights jurisprudence, the politics of compliance with court judgments, and government resistance and backlash.

I will begin with jurisprudential trends.  The innovative doctrines and principles pioneered by judges in Strasbourg are alive and well in other human rights systems.  Interpretive tools such as the evolutionary nature of human rights, the presumption that rights must be practical and effective, the creative and strategic approach to remedies, and cross-fertilization of legal norms are commonplace in the case law of all regional and sub-regional courts.  For example, Inter-American judges have applied these doctrines in several types of cases, including the obligation to investigate, prosecute and punish the perpetrators of past human rights violations, the prohibition of amnesty for such violations, the rights of LGBT persons, and affirmative measures to combat violence against womenMtikila v. Tanzania, the first merits judgment of the African Court of Human and Peoples’ Rights decided in 2013, analyzes the decisions of the other two regional human rights courts and the U.N. Human Rights Committee to support its conclusion that a ban on independent candidates standing for election violates the African Charter.  Among the most striking examples of creative legal interpretation appear in the case law of the East African Court of Justice and the SADC Tribunal.  The judges of those courts have cited references to human rights, the rule of law and good governance in the principles and objectives clauses of treaties establishing the economic communities to justify expanding their jurisdiction to include human rights.

These capacious interpretations have broadened the scope and reach of international human rights law.  But they have also engendered significant compliance challenges.  All other things equal, the more expansive and far-reaching remedies a court requires, the greater the likelihood of delay or resistance in implementing its judgments—in terms of political will, capacity, and commitment of resources.  The Inter-American Court has by far the most ambitious approach to remedies, often specifying in exquisite detail the measures states must adopt.  Governments have responded by implementing the easier and less politically costly remedies, with the result that partial compliance with the Inter-American Court’s judgments is now commonplace. Read the rest of this entry…

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Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, Part II

Published on September 24, 2013        Author: 

The_Great_Wall_of_China_at_JinshanlingThis is the second part of a post on the Beijing Human Rights Forum held in September 2013 in anticipation of the upcoming Universal Periodic Review of China. Part I introduced the pending Review, described recent human-rights-related legal reform in China, and summarized governmental attitudes on human rights expressed at the Forum. (photo credit)

Voices against human rights universalism

The most vocal human rights relativist at the Forum was Lord Davidson of Glen Clova, House of Lords, UK, a former General Advocate for Scotland. He asked the question “Is it correct to regard human rights as universal?”, and answered it with a vigorous “no”, drawing on examples of prisoners’ voting rights, same-sex marriages, and the like.

Professor Li-Ann THIO from Singapore gave another powerful human rights-relativist talk. According to professor Thio, the goal should be human welfare, whether through human rights or other venues. The focus should be more on results, more on “doing good than on feeling good”. Professor Thio concluded with the question that she thought should be asked to everyone: Do you want the right to a house, or do you want a house?

The answer might seem obvious to rights-sceptics like THIO. But it merits two remarks: First of all, the realisation of most needs and wishes of personal life such as having a house, depends on complex economic, financial and political conditions. People wanting a house are completely dependent on those external conditions if they cannot at least have a say in shaping policies that influence them. Even with regard to the house itself, most people will prefer to decide for themselves whether they indeed want a house, or whether to spend their money first on the education of their children, or on world-wide travelling, for example. Some individuals who prefer non-settled living may indeed not even want a fixed house, and want to remain free to decide on their lifestyle.

Second and most importantly, people do not only want a house but they also want to be able to rely on their home and want to be sure that they cannot be simply evicted for the sake of some infrastructure project. This security is only given when they have a right to the house. In that sense, having a right to a house is an indispensable precondition of securely having a house.

The “putting the people first”-philosophy of the Chinese Government and the “Chinese dream”

The idea that a government should first of all provide a house (without necessarily granting a right to a house) is just one concretion of the Chinese Government’s philosophy of government for the people. In fact, a number of Chinese speakers highlighted the Chinese concept of “putting the people first”-philosophy. This appears to mean both that the group has a certain priority before the individual and also that the welfare of the people must be the objective of government, that “the state is for the people“, as HUANG Mengfu, Vice-Chairman of the National Committee of the 11th CPPCC, Chairman of the China Foundation for Human Rights Development, said. Besides, and somewhat in contrast, LI Junru, Vice-President of the China Society for Human Rights Studies said that “the dignity of the state is a precondition of dignity of individuals“.

The idea of a government for the people implies that a pure output-legitimacy of governance suffices. My objection would be that the outcomes are often controversial. Read the rest of this entry…

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UN Human Rights Council Confirms that Human Rights Apply to the Internet

Published on July 23, 2012        Author: 

Dr. Matthias C. Kettemann, LL.M. (Harvard), is a teaching and research fellow at the Institute of International Law and International Relations of the University of Graz, Austria. He blogs at http://internationallawandtheinternet.blogspot.com.

Was it a “victory for the Internet“, as Carl Bildt, foreign minister of Sweden, called it in a New York Times op-ed? Or, rather, a victory for all Internet users and those two thirds of the world population that do not yet have access to the Internet?

Most likely, it was a bit of both: On 5 July 2012, the UN Human Rights Council (HRC) adopted by consensus a key resolution on promotion, protection and enjoyment of human rights on the Internet (UN Doc. A/HRC/20/L.13). Presented by Sweden, the Resolution enjoyed broad international backing from more than 70 HRC member countries and non-members from all regional groups, including China, Brazil, Nigeria, Ukraine, Tunisia, Turkey, the United States and the United Kingdom.

Centrally, the Resolution affirms that “the same rights that people have offline must also be protected online” and should thus put to rest the tedious debate about whether we need ‘new’ human rights for the Internet age, motivated chiefly by states not wishing to ensure the ‘old’ human rights in an online environment.

Although the Resolution’s approach is sound, I will take issue with a number of points, identify remaining problems and discuss priorities for the international political process, including chiefly the need to prioritize international discussions on how international law protects human rights online.

Read the rest of this entry…

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International Commissions of Inquiry: A New Form of Adjudication?

Published on April 6, 2012        Author: 

Dr Hannah Tonkin is a Legal Officer in the Appeals Chamber of the Special Court for Sierra Leone. She previously worked at the ICTR and ICTY and taught international law at the University of Oxford. She is the author of State Control over Private Military and Security Companies in Armed Conflict, 2011 (ISBN 9781107008014)

In March the International Commission of Inquiry on Libya, created by the United Nations Human Rights Council (HRC), presented its report, finding that “international crimes, specifically crimes against humanity and war crimes, were committed by Qadhafi forces.” The report found that “acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population.” The report further found that anti-Qadhafi forces also “committed serious violations, including war crimes and breaches of international human rights law.” The Libya Report followed the delivery to the HRC in February of a report by the International Commission of Inquiry on Syria. That Commission found that Syrian government forces “committed widespread, systematic and gross human rights violations, amounting to crimes against humanity, with the apparent knowledge and consent of the highest levels of the State.” [para 126]

The Commissions on Libya and Syria are just the latest in a series of high-profile international fact-finding missions and commissions of inquiry in recent years. These include the 2004 International Commission of Inquiry on Darfur, the 2009 UN Fact Finding Mission on the Gaza Conflict (the Goldstone Report), the 2009 Fact Finding Mission on the Georgian Conflict (discussed here, here and here on EJIL:Talk), the 2010 and 2011 UN Fact Finding Mission and Committee inquiring into the Israeli blockade on Gaza (the HRC Fact Finding Mission and the Palmer Report) (see previous posts here), the 2011 Panel of Experts on Accountability in Sri Lanka (see previous EJIL:Talk! Post here) and the 2011 Bahrain Independent Commission of Inquiry. Most of these commissions had terms of reference that called on them to investigate alleged violations of human rights and international humanitarian law, though others, like the Georgia Commission, have been called to decide on other inter-State issues, such as the use of force.

These commissions of inquiry appear to have become a new mechanism for determining the responsibility of both states and individuals for violations of human rights and IHL. In the absence of universal compulsory jurisdiction by international judicial bodies, these commissions of inquiry are a way in which the international community can obtain an authoritative determination of whether these violations have taken place and who is responsible. These commissions have not replaced, and are not replacing, adjudication. In fact, they will often enhance adjudicative mechanisms where those exist. However, these commissions do seem to be an additional form of resolving, and obtaining authoritative pronouncements on, contested facts and issues of international law.

While many of these commissions are termed “fact-finding missions” or given the mandate to engage in fact-finding, in reality they tend to do much more than this and will often make quite detailed determinations on points of international law. Read the rest of this entry…

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UN Human Rights Council Brings to an End the First Cycle for Universal Periodic Review

Published on February 27, 2012        Author: 

Today marks the beginning of the 19th session of the Human Rights Council, scheduled to run from February 27 to March 23, 2012. This session will also mark the official end of the first cycle of the Universal Periodic Review mechanism, which has seen all 193 member states of the UN undergo a review of their human rights record, creating a baseline for future reviews. The unofficial end of “UPR” (as it is known) happened in October 2011, but with the adoption of the last remaining reports at the 19th session, the international community is officially at a point where we can look back on the first run-through of this new mechanism and discuss changes for the second.

Universal periodic review was one of the proposals made in the lead-up to the World Summit of 2005, with the outcome of the World Summit confirming the creation of a standing Human Rights Council out of the ashes of the old part-time Commission on Human Rights (A/RES/60/1). The idea of the Council serving as a “chamber of peer review” to evaluate the fulfilment by all states of all their human rights obligations was a proposal backed by then UN Secretary-General Kofi Annan. Annan expanded on the idea in an explanatory note published in May 2005 (A/59/2005/Add.1) as an addendum to his “In Larger Freedom” report of March 2005 (A/59/2005). These reports helped focus the discussions taking place between states as they prepared for the World Summit of September 2005, although it was not until March 2006 when the UN General Assembly adopted a resolution specifically on the “Human Rights Council” (as the resolution is entitled), which confirmed that the Council would undertake a universal periodic review (as the mechanism had become known) (A/RES/60/251).

Read the rest of this entry…

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