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UNA-Canada Research Papers> Agendas for Change Papers
by Jan Bauer The opinions expressed herein are those of the author and not necessary of the United Nations Association in Canada. The focus of this paper is on how the subsidiary organs and specialized agencies within the United Nations system can and should enhance their cooperation and improve the coordination of their activities to achieve a higher standard of protection for all human rights. The mandate of the recently created post of UN High Commissioner for Human Rights is considered within this framework and consideration is also given to the potential, through this office, for the UN to rationalize its work in the area of human rights. In particular, the paper explores how the effective field presence of some of the subsidiary organs and specialized agencies that have a human rights component in their mandates can be maximized. The paper draws upon the discussions of the Human Rights Working Group chaired by Ms Nancy Gordon of the Canadian Committee for the 50th Anniversary of the UN. However, in its current form it is not a report from the group, but rather a set of proposals for further exploration. - - - - - - - I. Mandate of the UN High Commissioner for Human Rights The United Nations General Assembly at its 48th session adopted a resolution in December 1993 creating the post of High Commissioner for Human Rights. The mandate that was agreed is likely both less and more than what various Members had hoped for. The mandate may be less than some states had envisaged. Two key provisions, which had appeared in early drafts, were not included in the final text of the resolution. The first of these would have specifically authorized the High Commissioner "to initiate measures, contact governments and take other appropriate action to prevent serious violations of human rights, or to respond to them wherever they occur, including, with the consent of governments, through the dispatch of fact-finding missions". The significance of this provision is that it assumed a proactive rather than reactive role for the High Commissioner. It also assumed a role in the prevention of violations rather than responding once human rights violations have occurred and have been brought to the international community's attention. The second reference that was dropped would have specifically entrusted to the High Commissioner the task of "co-ordination as appropriate, of the human rights dimensions of other United Nations activities, including, inter alia, in the areas of peace-keeping, electoral assistance and development activities, in conformity with the recommendations of appropriate organs." Had this provision stood it would have ensured that the High Commissioner was authorized to confer and to develop cooperative approaches to human rights violations with UN agencies such as the High Commissioner for Refugees and with UN peacekeeping forces, both of which almost inevitably must respond to crises in which the violation of human rights is a fundamental feature. In spite of the deletion of these two references, however, the prevailing view is that the mandate is, in fact, substantive and not merely cosmetic or consultative. The lack of specificity in some areas is seen as a strength, allowing for forward-looking and creative thinking in both its interpretation and implementation. The preambular paragraphs of the resolution that was eventually adopted set out the principles and priorities the initiative is intended to address. Preambular paragraph 3 specifically refers to the need "to observe the Universal Declaration of Human Rights and for the full implementation of the human rights instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, as well as the Declaration on the Right to Development". Inclusion of a reference to the Declaration on the Right to Development has become standard in the majority of "thematic" resolutions dealing with human rights and corresponds to the emphasis placed on development by States in the Non-Aligned Movement and/or Group of 77. The preambular paragraphs also refer to a number of the UN general principles relating to human rights including the reiteration that the promotion and protection of all human rights is a priority of the international community requiring international cooperation. The text underlines the need for the work to proceed on the basis of impartiality, objectivity and non-selectivity and within the understanding that all human rights are universal, indivisible, interdependent and interrelated and deserving of equal emphasis. In practical terms the most significant, perhaps, are the explicit references in the remaining preambular paragraphs to the need for existing UN human rights machinery to be adapted, strengthened and streamlined while avoiding unnecessary duplication, and to be rationalized and enhanced "to further the objectives of universal respect for observance of international human rights standards". Practical measures are to be undertaken not only to meet current needs but to anticipate future needs in such a way as to reflect the priorities articulated in the Vienna Declaration and Programme of Action and "within the framework of a balanced and sustainable development for all people". Operative paragraph 2(a) authorizes the appointment of an individual of "high moral standing and personal integrity [who] shall possess expertise, including in the field of human rights, and the general knowledge and understanding of diverse cultures necessary for impartial, objective, non-selective and effective performance of the duties of High Commissioner" [emphasis added]. The appointment, to be made with due consideration to geographical rotation, is for four years with the possibility of renewal for a further term of four years. The position carries the rank of Under-Secretary-General. The substance of the mandate is dealt with primarily in operative paragraphs 3 and 4. Operative paragraph 3(a) provides room to assume that the High Commissioner not only may but must reject the defence of sovereignty by governments in situations where gross and systematic violations of human rights are occurring. While the text specifically states that the High Commissioner will function within the "framework of the United Nations Charter", human rights instruments and international law, "including the obligations, within this framework, to respect the sovereignty, territorial integrity, and domestic jurisdiction of States", this reference is counter-balanced by the statement that "the promotion and protection of all human rights is a legitimate concern of the international community". The expectation that the High Commissioner may act is also supported by the view of a number of States, including Canada, that national sovereignty is constrained by international law. The text is clear that the High Commissioner cannot and should not accept arguments based on various kinds of specificity as excuses for non-compliance with international human rights standards and law. Operative paragraph 3(b) affirms the universality, indivisibility, interdependency and interrelatedness of all human rights and states that "while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms". This provision is important in that it explicitly denies States the right to indulge in special pleading -- underdevelopment, customary practice, etc. -- with a view to denying people the effective enjoyment of all human rights. As such, it ensures that the High Commissioner, while remaining aware of the specific circumstances in a given society, is not expected to overlook or justify human rights violations on these grounds. The role of the High Commissioner in the promotion of the right to development is addressed in operative paragraph 3(c) which states that "the importance of promoting a balanced and sustainable development for all people" must be recognized. Further, the High Commissioner is clearly expected to play an active part in the collective effort "of ensuring [the] realization of the right to development, as established in the Declaration on the Right to Development". On the other hand, the mandate may be more comprehensive and substantive than some States would have preferred. To begin, there is an element of a proactive role preserved in operative paragraph 4. Whether this "activist" element will prove to be more apparent than real will only become evident over time. It will also depend on whether or not the legitimacy and authority of the office, grounded in the consensus decision of the General Assembly to create the post, is further confirmed by the fact that the High Commissioner will act "under the direction and authority of the Secretary-General". To some degree the answer to this question may lie, at any given time, in the measure of the individuals involved -- the Secretary-General and the High Commissioner for Human Rights. The partnership, if it may be called that, will inevitably depend on their personal reputations, the respect and cooperation they can command from Members and, on a very practical level, the degree to which their philosophical views and working styles coincide. Several sub-sections of operative paragraph 4 make general reference to the High Commissioner's responsibility to promote and protect all human rights for all and to enhance international cooperation in aid of this goal. They imply that the High Commissioner will necessarily address the question of greater inter-agency cooperation in the field of human rights and a rationalization of certain aspects of the UN's work in this area. Operative paragraph 4(b) calls on the High Commissioner to carry out "the tasks assigned to him/her by the competent bodies of the United Nations system in the field of human rights and make recommendations to them with a view to improving the promotion and protection of all human rights". This text would appear to allow the proactive role implied in other sections to be circumscribed and raises the question of whether the High Commissioner is confined to carrying out the tasks assigned to the post by competent bodies or whether activities that would logically flow from decisions taken by them may be undertaken, even in the absence of a specific request to do so. At this stage, the High Commissioner likely will be adequately supported by the UN's own independent experts, intergovernmental agencies and non-governmental organization; they, in turn, will continue to exert pressure on the competent bodies to ensure that the tasks assigned to the High Commissioner will deal with genuine rather than political needs for the promotion and protection of human rights. Operative paragraph 4(c) makes it clear that the right to development is an area to which attention must be given. The text calls on the High Commissioner to work with a view to "enhancing support from relevant bodies of the United Nations system for this purpose". This provision should be read, at least in part, as an attempt by a number of States to ensure a fuller integration of factors relating to the right to development, and support for that right as a human right, into the proceedings of the Commission on Human Rights. For in spite of progress made at the World Conference in Vienna, the UNCHR still remains significantly divided over both approach and substance on this question. The absence of a precise legal definition of the right to development by which its realization can be measured and against which the performance and compliance of States can be evaluated is part of the problem. The difficulties have been compounded by the attempts of some States at UNCHR sessions to introduce substantive resolutions on issues such as foreign debt and structural adjustment programs. Opponents of these draft resolutions have consistently argued that these issues are more properly discussed in other fora. For the High Commissioner the issue is to what degree the differences can be mediated and a common agenda in support of the realization of the right to development can be achieved. Part of the answer to resolving the impasse over the right to development may be found in the requirement that the High Commissioner work to enhance the effectiveness of the UN human rights system, rationalize its methods and integrate approaches. These areas are emphasized in operative paragraph 4 sub-sections (d) through (k). Sub-section (d) specifically refers to the High Commissioner's responsibility to provide "through the Centre for Human Rights and other appropriate institutions, advisory services and technical and financial assistance at the request of the State concerned and, where appropriate, the regional human rights organisations ... " [emphasis added]. The fact that mention is made of the possibility of providing assistance, on request and where appropriate, to regional organizations such as the African Commission suggests that the High Commissioner has leeway to work with these institutions to ensure that international standards for the promotion and protection of human rights are fully integrated into discussions and deliberations at the regional level. Sub-section (f) defines one of the responsibilities of the High Commissioner as "playing an active role in removing the current obstacles and in meeting the challenges to the full realization of all human rights and in preventing the continuation of human rights violations throughout the world ..." Some States will resist any inclination to interpret this provision as an invitation to the High Commissioner to "meddle" in their internal affairs. If their view prevails, certain initiatives are bound to be resisted. It is worth repeating, however, that sovereignty can be viewed as constrained by international law and it will be up to the High Commissioner to make this point. The text also leaves open the question of whether the High Commissioner is limited to preventing the continuation of human rights violations (which presupposes violations are already occurring) or whether it allows for the possibility that the High Commissioner, in cooperation with other UN agencies, can develop an effective and flexible early-warning system that may prevent violations before they occur. Sub-section (g) instructs the High Commissioner to engage in a dialogue "with all Governments in the implementation of ... [the] mandate with a view to securing respect for all human rights". The promotion and protection of human rights obviously depends on the cooperation of governments. This sub-section signals the international community's intention that the High Commissioner actively pursue discussions and that governments will agree to them. The fact remains that without a dialogue, however halting and fragmented it may be, the institutional changes required for the effective promotion and protection of human rights cannot be realized. What is critical is to discover whether the meaning of sub-section (g) can be extended to cover situations where no recognizable government exists, all social and legal institutions have become dysfunctional and conditions of or close to anarchy prevail. In those cases it may be anticipated that the UN Security Council will take action. An extension of the meaning of sub-section (g) to allow the High Commissioner to be an active participant in discussions among governments aimed at implementing the relevant Security Council resolution would acknowledge the fact that human rights violations are generally a fundamental feature in situations where neither government nor other institutions are functional. It would only stand to reason, therefore, that the High Commissioner, as the UN official "with principal responsibility for UN human rights activities", be included in both the planning and execution of whatever action the UN has mandated. Sub-sections (h) and (i) give the High Commissioner responsibility for enhancing international cooperation and securing system-wide coordination in the UN for the greater promotion and protection of human rights. Sub-section (j) specifically assigns to the High Commissioner the responsibility for "rationalization, adaptation, strengthening and streamlining of the United Nations machinery in the field of human rights with a view to improving its efficiency and effectiveness". As well, in sub-section (k), the High Commissioner is given responsibility for the "overall supervision of the Centre for Human Rights". Finally, operative paragraph 5 ensures that the High Commissioner must seek and secure the cooperation of the UN's two main policy-making organs in the area of human rights, namely the Economic and Social Council and the General Assembly. Both the need and opportunity for close cooperation with these two organs are guaranteed by the request to the High Commissioner "to report annually on his/her activities, in accordance with his/her mandate, to the Commission on Human Rights [which reports to the Economic and Social Council] and, through the Economic and Social Council, to the General Assembly". There is significant scope for the High Commissioner to develop a program within the existing UN system that has the potential to raise the level of both the promotion and protection of human rights. However, the degree to which the office of the UN High Commissioner will be effective will depend in large measure on the cooperation of States and on how much progress the High Commissioner can actually make in rationalizing the UN's approach to human rights on a system-wide basis. The mandate of the High Commissioner must be read as an invitation to work with organs and agencies such as the UN High Commissioner for Refugees (UNHCR), the United Nations Development Program (UNDP), the Commission on the Status of Women, UNICEF, UNESCO, the International Labour Organization (ILO), the International Committee of the Red Cross and the Red Crescent Society. II. Cooperation with UN Subsidiary Organs and Specialized Agencies Overview The potential for greater cooperation and coordination between the UN's subsidiary organs (such as UNICEF, UNDP and UNHCR) and specialized agencies (e.g. UNESCO and WHO) in support of the promotion and protection of human rights seems starkly obvious, but is in fact hampered by obstacles. One such obstacle, in the view of critics of the United Nations, is the tendency to proceed incrementally, adding agencies and mechanisms and adopting instruments with no apparent coherent plan either of where the Organization is, or believes it is going and, more importantly, how to get there. It is true that in the absence of an overarching plan solutions have been devised largely on an ad hoc basis. It is also true that this approach has led, to a greater or lesser degree, to a certain lack of coherence. On the other hand, proceeding incrementally may not, in and of itself, impede progress. In some instances what began as an ad hoc response to a specific situation has led to the creation of a permanent and effective mechanism with more widely applicable powers of investigation and reporting on human rights violations. In this regard, it could be argued that the UNCHR's decision late in 1992 to request a report specifically on the rape of women and girl-children in areas of conflict in the former Yugoslavia contributed significantly to the political will needed for the adoption of the Declaration on Violence Against Women at the 48th General Assembly (1993). Moreover, this investigation of the rape of women and girl-children made it inevitable that the UNCHR at its 50th session (1994) would take the correct decision and appoint, for an initial period of three years, a Special Rapporteur on Violence Against Women. A second obstacle and one of more immediate and practical concern is the absence of a comprehensive UN documentation centre. While efforts have begun to create such a centre the UN still lacks the capacity to maintain and make available to its own agencies, let alone other interested parties, a detailed cross-referencing of information relevant to human rights protections provided by States, UN agencies and mechanisms, intergovernmental agencies and non-governmental organizations. The absence of such a documentation centre virtually ensures that inter-agency communications now undertaken almost by definition proceed on a sporadic and hit-and-miss basis. In some ways both of these obstacles will only be overcome when a third one, the chronic under-resourcing of the UN human rights program, is resolved. For, without a sustained increased in resources neither a coherent plan of action nor the simple device of a comprehensive documentation centre can be achieved. While the question of increased resources has been a priority for some States for some years and there have been both informal and formal discussions of the question, little real progress has been made. The prospect for more meaningful action in this area, however, appears to be better now. The question of resources was widely discussed at the World Conference on Human Rights and broader support was expressed for an increased allocation, through line-item adjustments, from the UN regular budget. The agreement achieved in Vienna has resulted in a decision to authorize a small increase in the budget of the Centre for Human Rights. These additional funds have been applied to contract stabilization for the staff servicing the treaty bodies and the UNCHR's Special Procedures. While clearly inadequate to effect any major improvements or reform of the Human Rights Centre, let alone a system-wide rationalization, the decision by the General Assembly to allocate additional funds from existing resources must be seen as significant given that it was taken in spite of a standing UN policy of zero real budget growth. The need now is maintain pressure and to effect further adjustments in the UN regular budget so that additional and sustained resources can be dedicated to the human rights program. Should these resources not be allocated, then it has to be anticipated that the UN's efforts in the promotion and protection of human rights will continue to be sporadic, lacking in coherence in some areas and inevitably compromised in their effectiveness. Cooperation between UN Subsidiary Organs and Specialized Agencies The evolution of the definition of human rights into an understanding of the human condition in all of its dimensions, requires that "human rights" no longer be seen to be separate from other areas and is right to suggest that in some ways the separation remains only at the administrative and jurisdictional levels. As such, it has become more apparent than real. The inclusion in the mandate of the High Commissioner provisions for enhanced cooperation with subsidiary organs and specialized agencies acknowledges that the expertise and resources of the UNHCR, UNDP, UNICEF, UNESCO, UNIFEM and others are not sufficiently utilized in the overall UN effort to promote and protect human rights. The Commission on Human Rights acknowledged this by adopting language at its 49th session (1993) underlining the importance of "enhancing coordination and information flow between the treaty bodies and with relevant United Nations bodies, including specialized agencies." Similarly, this point was addressed in one of the studies for the World Conference: "The Secretary-General's efforts aimed at coordination with UNDP, UNESCO, UNITAR and various other institutions must be intensified. They should be developed not only at the centre but especially in the field. This is all the more necessary as UNDP has itself broadened its objectives by adopting the global concept of 'human development', which relates in part to the field of human rights." "Human development" has been defined to include "providing wider choices, particularly with regard to 'freedom' at the 'political level'." In addition to the administrative coordination that is in place between some of the specialized agencies and the Centre for Human Rights, the Commission on Human Rights does call for inter-agency cooperation in resolutions on certain categories of rights. For example, the resolution on women's human rights adopted at the 50th session of the UNCHR and appointing a Special Rapporteur on Violence Against Women specifically calls for the Rapporteur "to cooperate closely with the Commission on the Status of Women". The resolution also calls for closer cooperation between the Centre for Human Rights and the Division for the Advancement of Women to ensure that consideration of women's human rights are integrated on a system-wide basis within the UN. And, the text specifically "encourages further integration of objectives and goals between the Commission on Human Rights, the Commission on the Status of Women, the Committee on the Elimination of Discrimination against Women and other treaty bodies, the United Nations Development Fund for Women, the United Nations Development Programme, and other United Nations specialized agencies ... " Similarly, the Commission adopted resolutions on a broad range of issues, including but not limited to the right to development, human rights and mass exoduses, the rights of disabled persons, the rights of indigenous peoples, human rights education, the plight of street children, the situation of children in times of armed conflict, trade union rights, human rights and extreme poverty, and the rights of migrant of workers. These and other resolutions clearly acknowledge that human rights violations extend well beyond traditional considerations such as torture, disappearances, arbitrary detention, summary execution and so on. The resolutions address areas that form, in fact, the primary mandates of other UN organs and agencies. The summary of the conclusions and recommendations of the special rapporteurs and working groups of the Commission on Human Rights unequivocally demonstrates the need for greater cooperation and coordination between mechanisms such as the conduct of joint fact-finding missions and the publishing of unified reports. So too the individuals who carry out the mandates present strong arguments for greater inter-agency cooperation and coordination. The report includes a number of recommendations including, but not limited to ensuring that human rights are a central component in international peace-building or peace-keeping operations; adoption of a program of integrated operations between the High Commissioner for Refugees and the United Nations Development Programme; implementation of education programs, with the assistance of UNESCO, to promote racial tolerance; guaranteeing fuller cooperation between agencies such as UNICEF, ILO, WHO and the Crime Prevention and Criminal Justice Branch of the United Nations to address issues arising from the sale of children, children prostitution and child pornography. The report also includes several recommendations to take the necessary steps to enhance cooperation with regional bodies such as the Organization of African Unity and the Conference on Security and Cooperation in Europe. As this very brief summary of the report indicates, there remains considerable scope for inter-agency cooperation and coordination. The scope of this paper does not permit detailed consideration of the specific mandates -- whether by Charter or the adoption of a resolution -- of a number of the subsidiary organs and specialized agencies with which the High Commissioner may seek a closer working relationship. A few examples, in general terms, however, of the compelling logic for increased cooperation may be helpful. In resolution 46/182, entitled "Strengthening of the coordination of humanitarian emergency assistance of the United Nations", the General Assembly adopted a set of "principles" intended to define the conditions under which assistance can be provided and to provide the Division for Humanitarian Affairs with guidance. Reference is made not only to natural disasters but also to "other emergencies" which must be understood to include humanitarian crises arising from both internal and international armed conflict. An overriding concern expressed in the principles is that emergency assistance not be viewed as an end in itself but rather "accompanied by a renewal of commitment to economic growth and sustainable development of developing countries". If this approach were adopted -- that is, emergency assistance as only the first step in a continuing process -- then the UNDP would have to be involved in all subsequent actions. Further, and inasmuch as the right to development is a standing item on the agenda of the UNCHR, the Commission would likewise be implicated and cooperation and consultation between the Division for Humanitarian Affairs, the UNDP and the UNCHR would become essential. In a similar vein the High Commissioner for Refugees is mandated, among other things, to "provide for the protection of refugees falling under the competence of his Office by ... promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto ... " This provision implies that the High Commissioner for Refugees is invited to participate in the work of the competent treaty bodies. As well, by necessity the High Commissioner already maintains direct contact with the Centre for Human Rights, the UNCHR, the Human Rights Committee, various regional organizations and the International Committee of the Red Cross and the Red Crescent Society. At the same time, there have been instances where UNHCR has cooperated with UNICEF to carry out activities in the fields of health, education and community development. The UNDP has cooperated by assigning UN Volunteers to areas where assistance to refugees and/or internally displaced persons has been needed. UNFPA has assisted in the taking of censuses in refugee camps and the ILO has provided technical expertise in support of vocational training. With regard to the ILO specifically, it should be noted that the organization provides for the conduct of fact-finding missions and a strong argument can be made that such missions could be, if they are not already, conducted in cooperation with the UNCHR. Similarly, the Charter of UNESCO specifically provides for the organization to receive communications alleging human rights violations and the carrying out of fact-finding missions. In light of the above very brief outline of selected organs and agencies, what is missing from the UN system for the promotion and protection of human rights is neither access to affected areas, expertise, nor the capacity to respond both to temporary crises and ongoing situations. The main problem seems to lie in the lack of coordination, information-sharing, a comprehensive analysis of both the causes and effects of various situations, and a coherent, coordinated and consistent effort to solve the underlying problems giving rise to human rights crises in all their dimensions. It is impossible to conclude from even a cursory reading of information available on existing specialized agencies and subsidiary organs of the United Nations that humanitarian crises and chronic violations of human rights occur, in the overwhelming majority of instances, because they could not be predicted. At the very least, the combined effects of the mandates of a number of agencies, the access accorded to them by the international community and the field presence they represent should allow the High Commissioner for Human Rights to construct a system that will function more efficiently not only on a day-to-day basis but also as an effective early-warning mechanism. A better deployment of existing resources, provision of additional resources through reallocation in the UN regular budget, a commitment to cooperation and improved communication, and the political will to implement the recommendations contained in comprehensive reports based on expert analysis are all that is required. The question of greater involvement by the Security Council in human rights questions remains a delicate one. Those in favour of greater involvement argue that in the absence of an agency or institution such as an international criminal court, with real powers of enforcement and/or prosecution, the Security Council remains the only viable option if situations involving egregious and chronic human rights violations are to be substantively addressed. Those who oppose more frequent recourse to the Security Council are wary of the character of its membership, with its five permanent members and a limited number of additional seats allocated on a rotational basis. For those who urge caution, the perception persists that the Council exists mainly to serve the political and economic interests of the permanent five and that its decisions to take action are not based on the principles of impartiality, non-selectivity and objectivity. The point here is not to debate the positives and negatives of greater use of the Security Council per se. The potential to refer more situations to the Security Council exists in that any Member or Members may bring to its attention, through the General Assembly (Articles 15 and 16 of the Charter), a human rights situation which seems to require stronger and more continuous action than provided in the mandate and schedule of meetings of the Commission on Human Rights. Similarly, Article 99 of the UN Charter provides that the Secretary-General may, on his own initiative, refer a situation to the Security Council. Should recourse to the Security Council become more frequent, then it is vital to ensure that the Council has all of the information it needs -- including a compendium containing both factual accounts and analysis from the appropriate UN organs and specialized agencies. It is in this area, the gathering of information from all relevant sources, where the High Commissioner for Human Rights may be of the greatest service to the Security Council and, it must be added, to the people who are intended to benefit from whatever action the Council decides to take. III. Recommendations The following recommendations are based on the above observations, augmented by information which could not be included in this paper. In many ways they represent a reiteration of recommendations already made, some through the preparatory process for the World Conference on Human Rights and others over a longer term within the context of other discussions. While none of them breaks new ground, it is generally accepted by many in the international community that a commitment from governments to give effective life to these measures would represent a significant step in the promotion and protection of human rights. It is recommended that the High Commissioner for Human Rights:
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