Introduction to Human Rights Enforcement PDF

**Introduction to Human Rights Enforcement:** - **Key Focus:** - Mechanisms for enforcing international human rights law (IHRL). - Analysis of universal and regional frameworks ensuring states implement and are held accountable for human rights obligations. **Human Rights (...

**Introduction to Human Rights Enforcement:** - **Key Focus:** - Mechanisms for enforcing international human rights law (IHRL). - Analysis of universal and regional frameworks ensuring states implement and are held accountable for human rights obligations. **Human Rights (Recap from Year 1)** 1. **Definition:** - Universal guarantees protecting individuals and groups from state actions or omissions that harm fundamental freedoms, entitlements, and dignity. 2. **Rights Holders:** - All individuals within a state's jurisdiction, including nationals and non-nationals. - Some rights are citizen-specific (e.g., political participation, voting). - Legal entities like NGOs and corporations may also claim rights (e.g., freedom of expression cases). 3. **Duty Bearers:** - States as primary obligors under treaties they ratify. - Regional entities like the EU also bear obligations (e.g., under CRPD). 4. **Obligations under IHRL:** - **Negative Obligations:** Refrain from interfering with rights. - **Positive Obligations:** Take action to prevent, investigate, and redress violations. - **Trinity of obligations:** - **[Respect]** = refrain from interfering with the enjoyment of the right - **[Protect]** = prevent others from interfering with the enjoyment of the right - **[Fulfill]** = adopt appropriate measures towards the full realization of the rights **Mechanisms for Human Rights Enforcement** 1. **UN Charter-Based Mechanisms:** - **Characteristics:** Universal, broad mandates for all UN members, politically focused. - **Key Actors:** UN General Assembly, ECOSOC, Human Rights Council, High Commissioner for Human Rights. - **Functions:** Codification, reporting, debates, and complaints. 2. **Treaty-Based Mechanisms:** - **Characteristics:** Established by human rights treaties, narrower mandates for state parties. - **Key Actors:** Treaty bodies like the Human Rights Committee (ICCPR), Committee on the Elimination of Discrimination Against Women (CEDAW). - **Functions:** Reporting, complaints (individual/inter-state), inquiries. 3. **Adjudicative vs. Non-Adjudicative Mechanisms:** - **Adjudicative:** - Individual complaints - Inter-State complaints (rare and optional, except under ICERD where it is mandatory). - **Non-Adjudicative:** - Monitoring, State reporting, Universal Periodic Review, and Special Procedures (e.g., thematic or country-specific). **Core UN Human Rights Treaties and Treaty Bodies** - **Core Treaties Include:** - ICCPR, ICESCR, ICERD, CEDAW, CAT, CRC, CRPD, etc. - **Treaty Bodies:** - 10 committees monitor the implementation of these treaties (e.g., Human Rights Committee, Committee against Torture). - The treaty bodies are **committees of independent experts** *of recognized* *competence in human rights*, who are *nominated* and *elected* for fixed renewable terms of four years by State parties. - General **working methods** of the UN HR treaty bodies include - State reporting - General comments - Inquiry procedures - Inter-state and individual complaints **[Complaints-based Mechanisms under the UN Treaty Framework]** **= individual communications alleging that a State has violated the** **individual\'s human rights as set out under the IHRL instrument in question.** - **Some but not all committees may consider individual complaints** - **Optional mechanism** - Signature/ratification of OPs or submission of additional declarations e.g. ICERD Art. 14(1) - **Procedure: [quasi-judicial]** - Legal representation not needed but advisable - but no UN legal aid system - *Communications* not *applications* that result in *decisions*, *views*, *opinions* but NOT *judgments* - Technically speaking **not binding**, yet highly influential B\) **[Inter-State complaints ]** **= State complaint directed against another State party to the** **IHRL instrument in question, alleging non-compliance with the obligations contained therein.** - **Some but not all committees may consider inter-State complaints** - **Optional mechanism that both States must accept** - Only ICERD has a compulsory inter-State complaints mechanism - applies to all States parties upon ratification **Human Rights Committee (ICCPR)** - body of 18 independent experts that **monitors implementation of the ICCPR** by its States parties (173). - All States parties **are obliged to submit [regular reports]** [ ] to the Committee on how civil and political rights are being implemented. - Art. 41 of the Covenant provides for the Committee to consider inter-State complaints. - **The Optional Protocol to the Covenant** gives the Committee **competence to examine individual complaints regarding alleged violations** of the Covenant by States parties to the Protocol (116) - The Committee also publishes **its interpretation** of the content of human rights provisions, known as **general comments**, on thematic issues or its methods of work. **[Complaints-based Mechanisms under the Regional Frameworks]** 1. **European System:** - **Actors:** Council of Europe (CoE), EU, Organisation for Security and Cooperation in Europe (OSCE). - **European Convention on Human Rights (ECHR) of CoE:** - Unique characteristic: ratification of the ECHR and acceptance of the compulsory jurisdiction of the Court are required for CoE membership - Adopted in 1950, binding civil and political rights for member states - **The first instrument to give effect to certain rights stated in the** **Universal Declaration of Human Rights and make them binding** - Complaint mechanisms include individual and inter-state applications, with oversight by the European Court of Human Rights (ECtHR). 2. **Inter-American System:** - **Actors:** Inter-American Commission and Court of Human Rights. - **Key Features:** Investigations, advisory opinions, legally binding judgments. 3. **African System:** - **Actors:** African Commission and Court on Human and Peoples' Rights. - **Challenges:** Optional jurisdiction for individual complaints. 4. **Arab and Asian Systems:** - Arab Court for Human Rights (not fully operational). - ASEAN's Inter-Governmental Commission focuses on promoting rather than adjudicating human rights. **ECHR -- complaints procedures** **[Inter-State applications]** - Until recently very infrequently used -- There have been over 20 inter-State cases since the ECHR entered into force in 1953. - Recent examples: Netherlands v. Russia (2020) MH17, Ukraine v. Russia (2022) - The ECHR must have been binding on the applicant and respondent States at the material time and place. **[Individual applications]** Two structural reforms: - Protocol 11 (1998) - abolished the European Commission of Human Rights - Previously decided on admissibility and merits (to some extent) - Referred cases to the Court - Protocol 14 (2020) - further structural changes (see next slide) **Current set-up of individual complaints** **46 judges -- 1 from each 46 member states of the CoE parties to the ECHR** **Single judge (Art. 27 ECHR)** − Rules on admissibility of application − If found admissible, forward it further to a committee/chamber **3-Judge committees (Art. 28 ECHR)** − Rule on admissibility and merits in repetitive cases − Require **unanimity** and decision is final **7-judge chamber (Arts 29-30 ECHR)** − Rule on admissibility and merits in cases that **raise issues which have not been the subject of well-developed case-law** − Require **majority** − May decide to relinquish jurisdiction to the Grand Chamber **Grand Chamber (Arts 30-32, 43-44 ECHR) - 17 judges** \- Selected cases: \(i) relinquished by a Chamber - **serious questions affecting interpretation** of the ECHR and Protocols \(ii) appeal (exceptionally) \- Require majority \- Decisions are final and binding **Advantages of Regional Mechanisms Over Universal Ones** - **Greater accessibility for individual victims** (language, cultural proximity, similar culture and traditions, legal aid). - **More effective and reliable enforcement mechanisms** (realistic sanctions, binding effects of decisions of certain mechanisms (ECtHR), thorough follow-ups, more incentives to comply). **Challenges in Human Rights Enforcement** 1. **Delay and Inefficiency:** - Cases often take years, requiring increased resources. 2. **Compliance Issues:** - Binding decisions at regional levels; quasi-binding at the UN level (Commissions and the UN Committees). 3. **Fragmentation:** - Duplication of efforts and isolation among mechanisms. - Solutions include cross-fertilization (drawing from other bodies' jurisprudence) and integration of findings from non-adjudicative mechanisms. 4. **Non-State Actors:** - Existing mechanisms focus on states, not businesses or non-state groups. - Proposals to bind non-state actors face resistance from states out of e.g. fear of indirectly legitimising non-State armed groups. **Conclusion** - Enforcement mechanisms (adjudicative and non-adjudicative) complement each other. - Regional mechanisms often outperform universal ones in enforcement and accessibility. - Significant challenges persist, especially in addressing delays, ensuring compliance, and adapting to non-state actors' roles. **II. Admissibility Criteria for Individual Complaints** Admissibility is the preliminary test to determine if an individual human rights complaint will be considered by international mechanisms. i. **Procedural Admissibility** 1. **[Exhaustion of Domestic Remedies:]** - Applicants must utilize all available domestic legal remedies before approaching international bodies, e.g. Article 35 (1) ECHR - Purpose: To respect state sovereignty and allow domestic systems to address violations. - Domestic remedies are considered exhausted when the same complaint was raised either **expressly/at least in substance** before the national courts in line with rules and procedures of domestic law (ECtHR case *Gäfgen v. Germany)* - case *Gäfgen v. Germany* - The applicant alleged violations of Articles 3 (prohibition of torture) and 6 (right to a fair trial) ECHR by Germany. - He argued in domestic courts that evidence obtained through ill-treatment rendered the trial unfair but did not explicitly invoke ECHR rights. - Domestic courts rejected his claim. - The ECtHR ruled that Convention rights need not be explicitly cited in domestic proceedings if the complaint is raised \"in substance.\" - Remedies must be ***effective*, *available*, and *appropriate***. - Remedies must be sufficiently certain in both theory and practice, as seen in ***Sejdovic v. Italy***. - **Exceptions to Exhaustion**: - If administrative practices involve **repeated acts** violating the Convention and are tolerated by State authorities, remedies may be deemed futile or ineffective (***Aksoy v. Turkey***). - In cases involving **Articles 2 and 3** (e.g., enforced disappearances), applicants are not required to exhaust civil remedies if they are inappropriate for addressing the complaint (***Sultygov and others v. Russia***). 2. **[Time Limits:]** - Complaints must be filed within specified timeframes after final domestic decisions. - Example: - ECtHR: 4 months (under Protocol 15, since 2022). - IACommHR: 6 months. - UN bodies: Varied (e.g., 5 years for the HRC). - **Reference point:** a date of the final domestic decision in the process of exhaustion of domestic remedies - **Application of the rule -- ECtHR : Autonomous rule** that must be construed and applied to the facts of each individual case, so as to ensure the effective exercise of the right to individual petition. - Starts to run on the day following the reference date of the final decision - Expires 4 calendar months later - Weekends and holidays count - See: *Sabri Güneş v. Turkey* (No. 27396/06) Judgment (29 June 2012) - **Interruption: a date of introduction of an application before the ECtHR** - **Clear from the starts that there is no remedy?** - Reference point: A date when the act took place. - **Subsequent awareness that remedies are ineffective?** - Reference point: A date on which applicant became/ought to have become aware of this. 3. **[Duplication of Proceedings:]** - A complaint is inadmissible if previously resolved by the same or another international mechanism. - (e.g. Art. 35(2)(b) ECHR) - Already examined by the ECtHR itself or Submitted to *another procedure* of international investigation or settlement (e.g., HRC or other UN mechanisms). - Exceptions: - (*Art. 5(2)(a) ICCPR-OP1*) The HRC will not consider a case if the same matter *is currently being examined* under another international procedure. - Reservations by the CoE States 4. **[Abuse of the Right to Application:]** - Complaints submitted for improper purposes, such as misleading information or offensive language, are inadmissible. - E.g. ECHR Art. 35(3)(a) - *Řehák v. The Czech Republic* 5. **[Anonymous Applications:]** - Applications must identify the applicant unless exceptional circumstances justify anonymity for safety reasons. - **It is not possible to submit a claim anonymously. Applicants must be duly** **identified in their application.** - E.g. ECHR Art 35(2)(a) - **Information must enable the Court to identify the individual and connect them to the facts and complaints raised** - *Sindicatul "Păstorul cel Bun" v. Romania* ii. **Jurisdictional Admissibility** Jurisdiction determines whether a court or body has authority to examine a complaint. 1. **Types of Jurisdiction:** - **[Ratione personae:]**  applications alleging human rights violations **committed by a Contracting State or in some way attributable to it**. - State's organs - Private contractors carrying out governmental functions - Private actors -- State's *due diligence* obligations e.g. to protect, prevent or punish - International organisations **(**States can be held responsible for their own actions taken in order to implement a Security Council resolution, or other international obligations) - **[Ratione loci:]**  alleged violation occur within the **state's territory or under its control** - See*:* ECtHR *- Drozd and Janousek v. France and Spain (1992);* - *Cyprus v. Turkey* *(2001).* - State will be responsible for acts of its diplomatic and consular representatives - **[Ratione temporis:]**  complaint concern events after the **treaty's entry into force for the state** - The critical date for the purposes of determining the Court's temporal jurisdiction is **date of the entry into force** of the Convention and Protocols in respect of the Party concerned. - **[Ratione materiae:]** complaint concern **rights protected by the relevant treaty** - The Court has **no jurisdiction *ratione materiae*** to examine: - Applications concerning a provision of the Convention in respect of which the respondent State has made a **[valid reservation]** - ECtHR - *Göktan v. France (2002), Grande Stevens and Others v. Italy (2014)* - Whether a Contracting Party has complied with the obligations imposed on it by one of the Court's judgments. (The **Committee of Ministers** supervises the execution of judgments) 2. **Extraterritorial Jurisdiction:** - States may bear responsibility for human rights violations outside their territories if they exercise **\"effective control\"** over the area or individuals. - Example cases: - *Loizidou v. Turkey* (effective control over Northern Cyprus). - *Al-Skeini v. UK* (personal control by UK forces in Iraq). 3. **Limitations:** - States cannot be held accountable for actions beyond their jurisdiction, except in cases of effective control or due diligence (e.g., preventing harm from private actors). iii. **Merit-Based Admissibility** 1. **[Manifestly Ill-Founded Complaints:]** - Complaints lacking a clear legal or factual basis are rejected. - E.g. ECHR Art 35(2)(a) - Examples of such complaints: - "Fourth instance" claims (e.g., challenging domestic court decisions without evidence of arbitrariness). -\> principle of subsidiarity - Cases with no apparent rights violations. - unsubstantiated complaints - confused or far-fetched complaints. 2. **[No Significant Disadvantage:]** - A new admissibility criterion - Applications involving **minor** or purely technical violations may be dismissed (e.g., *Shefer v. Russia*). - **"Significant disadvantage"** -- **minimum level of severity of human right violation** - **[Safeguard clause:]** Exceptions to admissibility criteria apply where addressing the case is necessary for human rights protection or resolving systemic issues. - clarifying States' Obligations (ECtHR *Savelyev v. Russia)* - new or important legal issue (ECtHR *Daniel Faulkner v. the United Kingdom)* **Key Case Law and Examples** - *Banković v. Belgium:* Denied extraterritorial jurisdiction without effective control. - *Velasquez-Rodriguez v. Honduras:* States are responsible for failures to prevent or address private acts of human rights violations. - *Varnava v. Turkey:* Continuing violations must be addressed diligently without indefinite postponement. **Conclusion** - Admissibility is a crucial threshold for individual complaints, ensuring efficiency and effectiveness in human rights enforcement. - Procedural and jurisdictional tests emphasize state sovereignty and fair use of international mechanisms. - Merit-based criteria filter out trivial or ill-founded complaints while safeguarding essential rights. **Key Focus of the Lecture** 1. Overview of the UN's human rights protection system: - Charter-based mechanisms. - Treaty-based mechanisms. 2. Monitoring and reporting processes. 3. Role and activities of the UN Human Rights Council (HRC) in addressing human rights violations. 4. Challenges facing the UN human rights framework. **III. UN System for Human Rights Protection** **References to Human Rights in the UN Charter** - **Article 1(3):** Promotes international cooperation to resolve economic, social, cultural, and humanitarian problems, emphasizing respect for human rights and fundamental freedoms. - Other relevant provisions include the Preamble and Articles 13, 55, 62, and 68. **Dual Framework** 1. **Treaty-Based System:** - Imposes legal obligations on state parties, focusing on monitoring through specific treaties. 2. **UN Charter-Based System:** - Political, universal, and broader in scope, addressing human rights universally. **Principal UN Organs in Human Rights** - **General Assembly:**  - Human Rights Council (HRC) - Third Committee (Social, Humanitarian & Cultural Issues) - Human Rights Treaty Bodies (*i.a.* HRC, CAT, CEDAW) - **Security Council** - **Economic and Social Council (ECOSOC):**  - Commission on the Status of Women - Treaty Body ICESCR - **International Court of Justice (ICJ):** Deals with state responsibility for treaty violations. - **Secretariat:**  - Office of the High Commissioner for Human Rights (OHCHR). **UN Charter-Based Mechanisms** **Office of the High Commissioner for Human Rights (OHCHR)** - Headed by the High Commissioner of Human Rights - A department of the **Secretariat** - **Leads UN efforts in promoting and protecting human rights.** - **Thematic Priorities:** - Strengthening international mechanisms. - Enhancing equality and countering discrimination. - Combating impunity and promoting accountability. - Integrating human rights into development. - Supporting democratic spaces and addressing the protection of human rights conflicts. - Provides expertise and technical support to treaty bodies, the UPR, and HRC special procedures. **UN Human Rights Council (HRC)** - a subsidiary body of the **General Assembly**. - Replaced the UN Commission on Human Rights as the **key independent UN intergovernmental body responsible for human rights.** - **Composition:** - 47 member states, elected for three-year terms with regional representation. - Members pledge to uphold human rights and risk suspension for gross violations (e.g., Russia in 2022). - **Mandate:** - Promote universal respect for human rights. - Address HR violations and make recommendations. - Ensure coordination within the UN system. **HRC Mechanisms for Accountability** - **[Special Procedures]:** - Independent experts or working groups mandated to **report and advise on human rights addressing thematic or country-specific issues.** - Activities include country visits, thematic studies, raising public awareness, and providing technical advice - Non-paid and elected for 3-year mandates - Currently, 46 thematic and 14 country mandates exist. - **[Complaint Procedure:]** - Addresses **consistent patterns of gross and attested violations**. - Communications can be submitted by **individuals, groups, or NGOs** that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations - Proceedings are confidential but may escalate to public discussions. - **[Public Debates:]** - Can result in advisory services, resolutions, independent expert appointments, or urgent missions. - Public discussions might 'shame' the state and influence states through media coverage or foreign policy pressure. - **[Universal Periodic Review (UPR):]** - **A state-led mechanism reviewing human rights practices of all UN member states.** - Operates in cycles (current: 4th UPR cycle, 2022--2027). - **Objectives:** - Improve human rights on the ground. - Assess state compliance, positive developments and challenges. - Share best practices and enhance cooperation. - **Process:** - State, OHCHR, and stakeholder reports. - Interactive dialogues, followed by recommendations. - Outcomes include conclusions, recommendations, and voluntary commitments. **UN Treaty-Based Mechanisms** **Core Human Rights Treaties** - Examples include the ICCPR, ICESCR, CAT, CRC, and CEDAW. - Monitoring mechanisms = Treaty-specific committees - State reports - Individual complaints - Inter-state complaints - Investigation/Inquiry procedures - General comments - **[General Comments]** - Clarify the requirements of the treaty (interpretation) - Make the experience of the treaty body available to all State parties - Draw attention to insufficiencies disclosed in a large number of state reports - Suggest improvements in the reporting procedure - Stimulate the activities of State parties and international organisations in the promotion and protection of human rights - **[State Reporting]** - Promotes compliance by subjecting national legislation and policies to scrutiny. - Encourages constructive dialogue through periodic reporting cycles. 1. State party prepares and submits its report 2. The Committee presents list of issues to the state party 3. State party submits written replies to list of issues 4. Constructive dialogue between the committee and state party delegation during session of the committee 5. The committee issues its concluding observations on the report, including recommendations 6. Follow-up and implementation of the Committee's recommendations **Challenges in the Treaty System** - Limited ratification and reservations. - Insufficient resources for committees. - Variability in the quality and quantity of state reports and implementation. **Current Challenges** 1. **Resource Constraints:** - Financial and human resources are insufficient for effective functioning. 2. **Political Influence:** - Risk of politicization in decision-making, especially within the HRC. 3. **Enforcement Gaps:** - Lack of binding enforcement for recommendations under the UPR and other charter-based mechanisms. 4. **Overlapping Mandates:** - Duplication between treaty and charter-based mechanisms. **Conclusion** - The UN Charter-based mechanisms complement treaty-based systems by offering universal platforms and addressing systemic violations. - Tools like the UPR and Special Procedures enhance dialogue and accountability but face challenges of politicization and resource limitations. - Strengthening these mechanisms is key to improving global human rights protection. +-----------------------+-----------------------+-----------------------+ | UN system for Human | | | | Rights Protection | | | +=======================+=======================+=======================+ | ***UN Charter-Based | ***UN Treaty-Based | | | Mechanisms*** | Mechanisms*** | | +-----------------------+-----------------------+-----------------------+ | **Office of the High | **UN Human Rights | Treaty-specific | | Commissioner for | Council (HRC)** | committees | | Human Rights | | | | (OHCHR)** | | - **[General | | | | Comments]{.underl | | | | ine}** | | | | | | | | - **[State | | | | Reporting]{.under | | | | line}** | | | | | | | | - **[Individual/Int | | | | er-state | | | | complaints]{.unde | | | | rline}** | +-----------------------+-----------------------+-----------------------+ | - department of the | - a subsidiary body | | | **Secretariat** | of the **General | | | | Assembly**. | | +-----------------------+-----------------------+-----------------------+ | | **HRC Mechanisms for | | | | State | | | | Accountability** | | | | | | | | - **[Special | | | | Procedures]{.unde | | | | rline}** | | | | | | | | - **[Complaint | | | | Procedure]{.under | | | | line}** | | | | | | | | - **[Public | | | | Debates]{.underli | | | | ne}** | | | | | | | | - **[Universal | | | | Periodic Review | | | | (UPR)]{.underline | | | | }** | | +-----------------------+-----------------------+-----------------------+ **IV. \"Collective Security and Peace Enforcement\"** **1. Contextual Highlights** - As of 2024, there are 59 active conflicts globally, the highest since 1946. - Estimated 233,000 battle-related deaths occurred in 2024, underscoring the urgent need for collective security mechanisms. **2. Principles and Legal Basis** **UN Charter Framework** - The UN Charter outlines the foundational principles for maintaining international peace and security: - Preamble: Emphasizes living in peace as neighbors. - **Article 2(3):** Members must resolve disputes peacefully. - **Article 2(4):** Prohibits the threat or use of force except in specific circumstances. - **Article 1(1):** Establishes the UN as the central system for collective security. **Why Collective Security?** - At the 1945 San Francisco Conference, states recognized the need for an international organization to prevent conflicts and maintain peace. - UN's role starts with **[preventing]** threats to the peace (art. 1(1)) **UN Organs and Roles** 1. **Secretariat:** - Secretary-General and Special Representatives provide diplomatic support. (art. 98,99) 2. **International Court of Justice (ICJ):** - Resolves disputes and advises on international law compliance. 3. **General Assembly (UNGA):** - Addresses international peace and security through recommendations. 4. **Security Council (UNSC):** - Holds primary responsibility for maintaining peace and security (Article 24). **3. Role of the UN Security Council** **Key Responsibilities** - **primary responsibility** for the maintenance of international peace & security (art. 24(1) UNC) - if the UNSC determines there are threats to peace under **Chapter VII of the UN Charter, it shall take measures under the art. 39**: 1. **Non-Force Measures (Article 41):** - Includes sanctions and referrals to the International Criminal Court (ICC). 2. **Force Authorization (Articles 42 & 48):** - Allows military intervention when non-force measures are inadequate. **Cold War Challenges** - Recurring deadlocks among the five permanent members (P5) hindered peace enforcement during the Cold War. **Post-Cold War Evolution** - **1990 Gulf War:** UNSC authorized member states to use \"all necessary means\" to restore peace after Iraq's invasion of Kuwait (Resolution 678). This phrasing has since become the standard for authorizing military interventions. - **UNSC resolutions are binding** on all member states (Article 25) and take precedence over other international agreements (Article 103). **4. UN Peacekeeping** **Definition and Purpose** - Peacekeeping involves multinational forces under UN command to prevent, control, and resolve conflicts. - **The \"Blue Helmets\":** - Represent the UN's visible presence but often face criticism for limitations and challenges. **Types of Operations** 1. **Unarmed Observer Missions:** - Monitor ceasefires or political agreements. 2. **Armed Peacekeeping Forces:** - Actively manage conflicts, though with limited force mandates. **Characteristics** - Troops are provided by member states and temporarily placed under UN command. - Missions aim to contain conflict, contribute to resolution, and prevent recurrence. - Peacekeeping operations are impartial and led by a Special Representative of the Secretary-General (SRSG). **Legal Basis** - The power to establish peacekeeping operations is **implied** in the UN Charter. - ICJ's \"***Certain Expenses***\" advisory opinion (1962) **confirmed the UNGA's authority to allocate peacekeeping funds.** **Post-Cold War Developments** 1. **Comprehensive Approach to Conflict:** - Evolved into multi-dimensional operations combining civil and military efforts. - Often involves peace- and state-building, encroaching into domestic jurisdiction. 2. **Robust Mandates:** - UNSC began authorizing more forceful peacekeeping, even without full consent of parties, for rapid deployment and effective management. **Challenges** 1. **Ambitious Mandates vs. Limited Military Capacity:** - Missions face risks of failure when mandates do not match the complexities of conflicts (e.g., Srebrenica massacre). 2. **Hybrid Conflicts:** - The nature of warfare has changed, with non-traditional actors complicating operations (e.g., insurgents blending into civilian populations). **Funding** - Peacekeeping is funded by a separate UN budget, with contributions apportioned among member states as determined by the UNGA. **Conclusion** - Collective security is central to the UN's mandate, addressing all stages of the conflict cycle: prevention, management, and post-conflict peacebuilding. - Peacekeeping has evolved significantly since its inception, but challenges such as hybrid conflicts, political deadlocks, and resource constraints persist. **V. \"UN Security Council and Human Rights Enforcement\"** **1. UN and Human Rights: Recap** **UN Mandate** - The UN Charter mandates the ***promotion and protection of human rights***: - **Article 1** and the Preamble - Other provisions (Articles 13, 55, 56, 62, and 68) establish a legal basis for action. **UN Principles** - Sovereignty, independence, and non-interference guide UN actions (Article 2). - However, exceptions exist for enforcement measures under Chapter VII. **2. Role of the UN Security Council** **Primary Responsibility** - The UNSC is tasked with **maintaining international peace and security** (Articles 24-25 of the UN Charter). - Must act in accordance with the UN's purposes and principles. **Chapter VII - Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression** **Article 39: Trigger for Action** - The UNSC determines if a \"threat to the peace,\" \"breach of the peace,\" or \"act of aggression\" exists, triggering measures under: - **Article 41:** Non-military measures (e.g., sanctions, embargos, ICC referrals, peacekeeping, and fact-finding missions). - **Article 42:** Military action (blockades, air, sea, or land forces). **3. \"Threat to the Peace\": Historical and Evolving Interpretations** **Cold War Context** - Discretionary decisions often defined threats narrowly (e.g., Palestine, Korea, and Southern Rhodesia). - Breaches of peace and acts of aggression were tied to inter-state conflicts. **Post-Cold War Developments** 1. **Expanded Definition:** - Recognizes **non-military sources of instability** (e.g., economic, social, humanitarian, and ecological crises) **as threats**. - **Internal armed conflicts** (e.g., Congo, Liberia, Somalia) classified as threats due to their broader implications. - **Humanitarian crises** (e.g., Rwanda, Somalia) involving systematic human rights violations now fall under UNSC jurisdiction. 2. **Examples:** - **Rwanda (1994):** Widespread violations of humanitarian law deemed a regional threat (SC Res 918). - **Somalia (1992):** Human suffering and obstacles to aid justified intervention (SC Res 794). **4. Humanitarian Intervention** **Definition** - **[Humanitarian Assistance]:** Non-forcible aid by a state, international organisation or NGO addressing humanitarian crises. - **[Humanitarian Intervention]:** use of armed force by a state to end human rights violations in another state. **UN Charter Context** - The Charter does **not explicitly permit humanitarian intervention**, emphasizing **non-intervention** (Articles 2(4) and 2(7)). - **Art. 2(4) of the UN Charter** - The prohibition of the threat or use of force in international relations - **Art. 2(7) of the UN Charter** - Non-intervention of the UN in matters which are essentially within the domestic jurisdiction of any state; no requirement that the UN-Members submit such matters to settlement under the Charter - **Diplomatic law** - Art. 41 of the 1961 Vienna Convention on Diplomatic Relations -- The diplomats should not interfere in the internal affairs of the State to which they are accredited. - **International human rights law** - International human rights treaties and customary law have changed the boundaries of the principle of non-intervention -- especially the inter-States complaint procedures under ICCPR and ECHR and various UN mechanism, that allow States to criticise other States' human rights record. - **[Legal interventions]** require either: - **Invitation:** From the territorial state. - **Authorization:** By the UNSC. **Notable Unauthorized Interventions** - Examples include: - India in East Pakistan (1971). - NATO in Kosovo (1999). - ECOWAS in Liberia and Sierra Leone (1990s). - **Legal Challenges:** - Inconsistent state practice concerning intervention on humanitarian grounds. - ICJ rulings (e.g., *Nicaragua case*) reject unilateral humanitarian intervention. **5. Responsibility to Protect (R2P)** **Concept** - Introduced by the International Commission on Intervention and State Sovereignty (ICISS) in response to cases like Rwanda and Srebrenica. - Redefines sovereignty as the responsibility of a state to protect its population. **Three Pillars** 1. **Prevention:** Address root and direct causes of conflicts and crises. 2. **Reaction:** Take appropriate measures, including sanctions and military intervention in extreme cases. 3. **Rebuilding:** Assist recovery and reconciliation post-intervention. **Implementation** - Recognized in: - **2005 World Summit Outcome:** Established state responsibility to prevent genocide, war crimes, and ethnic cleansing, **with collective international action as a last resort** (paras 138-139). - **UN Secretary-General Reports:** Regular debates and resolutions have invoked R2P in crises such as Libya, South Sudan, and Syria. - **Pillar One**: States have the **primary responsibility** to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. - **Pillar Two**: The international community is committed to **assisting States** in building capacity to protect their populations and providing support to those under stress to prevent crises. - **Pillar Three**: The international community has a responsibility to take **timely and decisive action** to prevent or stop atrocities when a State is failing to protect its population. - 16 Reports of the UN Secretary-General on R2P to date (2009- 2024) - These resolutions and their related preventive and -- as a last resort -- coercive measures, have demonstrated that collective action to protect populations at risk is possible. **Challenges** - R2P relies on UNSC authorization, which is subject to political dynamics and veto power. **Summary** - The UN has a **promotional mandate** for human rights, with actions based on the **UN Charter**. - The **UN Security Council** recognizes massive human rights violations as threats to international peace and security under **Article 39** of the UN Charter. - **Intervention** is legal if invited by the government or authorized by the Security Council. - **Responsibility to Protect (R2P)** reframes state sovereignty as a responsibility to protect populations. - **R2P\'s Three Pillars**: 1. States have the **primary responsibility** to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. 2. The international community should assist States in **capacity building**. 3. The international community must take **timely and decisive action** if a State is failing to protect its population.