University of Minnesota




David Weissbrodt, Fionnuala Ni Aoláin, Joan Fitzpatrick, and Frank Newman
International Human Rights: Law, Policy, and Process (4th ed. 2006)
© 2006 David Weissbrodt and Fionnuala Ni Aoláin



 

 

CHAPTER 6: WHAT U.N. PROCEDURES ARE AVAILABLE FOR VIOLATIONS OF HUMAN RIGHTS?

ECOSOC Resolutions 1235 and 1503; Thematic Procedures; Universal Periodic Review; Special Sessions

A. INTRODUCTION 2

B. QUESTIONS 3

C. Background on Burma (Myanmar) 6
Open Society Institute, Burma: Country in Crisis 6
Amnesty International, Myanmar: U.N. Security Council Must Act 9

D. U.N. Procedures for Responding to Human Rights
Violations 11

1. Development of Major U.N. Procedures 11
ECOSOC Resolution 728F 12
ECOSOC Resolution 1235 14
ECOSOC Resolution 1503 15
GA Resolution 60/251 19

2. Overview of the 1503 Procedure in Practice 20

3. Theme Procedures 24
Selected Reports of Special Rapporteurs and Working Groups Regarding the Situation in Myanmar 39

4. Human Rights in Transition: the Human Rights Council 49
Institutional Changes Affecting the 1503 Procedure 52
Review of Mandates 53
Universal Periodic Review 54
Special Sessions 55

5. Further Remarks on 1235, 1503, Thematic Procedures, and the Security Council 55
Bossuyt, The Development of Procedures of the U.N. Commission on Human Rights 59
Coliver, U.N. Machineries on Women’s Rights 62

6. Role of the Secretary-General 64
Report by Secretary-General, Situation of human rights in Myanmar 64

 

A. INTRODUCTION

The preceding chapters have introduced how governments draft (chapter 2) and ratify (chapter 3) human rights treaties and have dealt with the most prevalent technique for implementing human rights treaties, that is, periodic reporting and review (chapter 4) by treaty bodies, such as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. Chapter 5 also introduced another technique for implementing human rights treaty obligations, that is, individual complaints against a government. Individual human rights complaints and other adjudicative techniques will be discussed more fully in chapters 11 through 14, infra.

The periodic reporting and review mechanisms are available, however, only for governments which have ratified human rights treaties. The individual complaint procedures also require that governments specifically accept those procedures. While the reporting and review mechanisms are very thorough and painstaking, they generally require a country to report only once every two to five years. While there are provisions for more urgent reports, the treaty bodies are generally not very visible and are not particularly well adapted to handling emergency situations. Similarly, the individual complaint mechanisms cannot provide an adequate international response for human rights emergencies involving large numbers of persons.

This chapter deals with the U.N. procedures which have been established to handle consistent patterns of gross human rights violations throughout the world. The procedures do not rely upon a specific treaty, but are based on the authority of the U.N. Charter. The role of the U.N. Security Council under Chapter VII of the U.N. Charter is discussed in chapter 7, infra. The role of the U.N. General Assembly in adopting country resolutions has been discussed briefly in chapter 1, supra. This chapter focuses on the work of the U.N. Commission on Human Rights, which derives its original authority from Article 68 of the U.N. Charter and which was authorized to consider human rights situations by resolutions of the Economic and Social Council (ECOSOC) -- principally, resolutions 1235 and 1503. The chapter also deals with the closely associated “thematic? procedures, which concentrate on violations occurring in any country and take a subject-oriented approach. Finally, the chapter addresses the implications and role of the recently established Human Rights Council, which replaced the U.N. Commission in 2006.

The chapter asks the student to relate the U.N. procedures to human rights conditions in Myanmar (also known as Burma). The situation in that country has undergone much change and likely will continue changing. Hence, the material in the book must be taken as a snapshot of the conditions in the country as of a particular moment, that is, early 2001.

This chapter gives the student an opportunity to look at the facts and to identify the human rights norms that may have been violated. The student must also determine how best to approach the U.N. since this chapter presents three basic alternatives: the public procedure established by ECOSOC resolution 1235 including the establishment of country rapporteurs, the confidential procedure established by ECOSOC resolution 1503, and the thematic procedures of the Human Rights Council.

B. QUESTIONS

Citizens of Myanmar have requested your assistance in presenting their government’s human rights violations to the U.N. Consider the following questions. (This problem requires careful construction of U.N. resolutions. Be prepared to use operative language from the resolutions in answering the questions.)

1. The U.N. receives thousands of human rights communications each year. Before ECOSOC resolution 728F (1959), the U.N. either discarded the letters (and sometimes, postcards) or filed them without response. In comparison to this initial process, what did resolution 728F achieve?

2. What did ECOSOC resolution 1235 (1967) add? What does it require be done with communications mentioned in resolution 728F?

3. What do the materials suggest about the evolution of practice under 1235?

4. How has ECOSOC resolution 1503 (1970) helped the protection of human rights?

5. How have the thematic procedures begun in 1980 contributed to the protection of human rights?

6. To what extent does the Universal Periodic Review (UPR) process duplicate the 1235 procedure, 1503 procedure, thematic procedures, and country resolutions?

a. Should this duplication be removed or is duplication beneficial to the protection of human rights?

7. What rights in the International Bill of Human Rights has Myanmar arguably violated?

8. Would those violations fall within the scope of resolution 1503? What is the basis for finding “a consistent pattern of gross and reliably attested violations of human rights?? Which thematic procedure might be applicable to the situation in Myanmar? Would a special session on Myanmar help the protection of human rights in the country?

9. Which violations alleged under 1503 are most likely to produce a successful complaint? Why? What constitutes success?

a. What violations are “gross? under resolutions 1235, 1503, and 60/251?

b. Does Article 4 of the Covenant on Civil and Political Rights, which permits the derogation of certain rights during periods of emergency, suggest which rights ought to be considered “gross??

c. Is it more likely that a situation involving the violation of nonderogable rights will be considered “gross??

d. Should some violations of derogable rights be considered “gross??

e. Does the International Bill of Human Rights indicate that certain rights ought to be considered more “fundamental? and, thus, their violation might be “gross??

f. In construing what constitutes a “gross? violation under resolutions 1235, 1503, and 60/251 should primary reference be made to the International Bill of Human Rights? (See also Sub-Commission resolution 1 at 23, infra.)

10. Do any of the articles of the International Bill of Human Rights arguably provide a defense for Myanmar?

11. Are violations perpetrated by private individuals or armed opposition groups the responsibility of Myanmar under the International Bill of Human Rights?

12. What must be kept confidential under resolution 1503? (See also Sub-Commission resolution 1.) May a complainant issue a press release announcing submission of a claim under 1503? May the complainant publish the communication?

13. How may governments respond to complaints made under the 728F procedure? 1235 procedure? 1503 procedure? thematic procedures? UPR?

14. What are the mechanisms available under the 1235 procedure for inducing a government to improve its human rights record? How do those mechanisms differ from the procedures available under 1503 or the UPR?

15. In what ways may nongovernmental organizations (NGOs) participate in the 1235 procedure? 1503 procedure? thematic procedures? UPR?

16. If an NGO is presenting a human rights complaint against Myanmar to the U.N., should it choose 1235, 1503, a thematic procedure, or the UPR? Why?

17. What is the significance of a “successful? 1503 complaint?

18. Why have there been so few “successful? 1503 complaints?

19. Does the 1503 process do more to protect the violating country than to exert pressure for improvement?

20. For U.S. complainants could 1503 be used with the Freedom of Information Act to pursue litigation and legislative efforts?

21. To what extent can 1235, 1503, thematic procedures, and the UPR be used simultaneously or in sequence? Should an NGO mention its 1503 complaint when it presents an oral or written intervention in the Human Rights Council under resolution 1235?

22. If an NGO wants to build the kind of consensus needed to establish a country rapporteur or to achieve significant progress under 1235, how could the thematic procedures be useful?

23. Consider the marked increase in use of thematic procedures in recent years.

a. Have the thematic procedures covered all or almost all of the “gross violations? to which the 1503 procedure was intended to apply?

b. Are the thematic procedures more rapid, less subject to political considerations, less complex, more transparent, and more responsive than the 1503 procedure?

c. In view of the advent of country rapporteurs under resolution 1235 and thematic procedures, is there still a need for the 1503 procedure?

d. Did the Commission stray from its original purpose -- to offer protection against notably grievous violations -- in creating new thematic procedures?

e. Is there sufficient consensus on the content of all the themes, such as the right to development and discharge of toxic waste, to permit the procedures to take effective action?

f. Are the Working Group on the Use of Mercenaries and the Working Group on Enforced and Involuntary Disappearances necessary or would special rapporteurs be more effective?

g. Given the very modest staff of the thematic procedures, can they possibly fulfill their roles? For example, can the Special Rapporteur on torture fulfill its role of stopping torture or is it simply a face saving mechanism?

h. Are there practical constraints, such as insufficient staffing and insufficient time for consideration of the thematic reports at the Council sessions?

i. Did the Commission on Human Rights use thematic procedures so much and apply them in such diverse areas that the procedures have become less effective?

j. Which of the thematic procedures would be most useful in dealing with the situation in Myanmar?

24. Consider the two special sessions of the Council.

a. Have fact-finding missions dispatched by the special sessions of the Council become a replacement for country rapporteurs?

b. Are special sessions effective in dealing with violations of human rights requiring immediate action? Consider that the first two special sessions of the Council were on the issues of the Occupied Palestinian Territories and the Lebanon / Israeli conflict in 2006.

25. Does a human rights protection gap exist as a result of the transition from the Commission to the Council? Consider the mandates that need to be reviewed by the Council as well as the Universal Periodic Review process.


C. BACKGROUND ON BURMA (MYANMAR)

Burma: Country in Crisis, an on-line briefing book of The Burma Project of the Open Society Institute (See http://www.soros.org/burma/CRISIS/index.htm)

Brief History

. . . Traditional kingships and other local governments that evolved among Burma’s peoples over many centuries were largely stripped of their authority after Britain’s 19th century conquest of Burma. Colonial administration continued with limited local self-government until the Union of Burma achieved independence in 1948. The new state came into being as a parliamentary democracy and, although beset by ethnic strife as minority peoples demanded autonomy from the Burman majority, survived as a representative government until an army coup in 1962.

A military-dominated regime led by the Burma Socialist Programme Party (BSPP) held power for the next 26 years. There were no free elections, and freedom of expression and association were almost entirely denied. Resistance to the regime occasionally flared, but student and worker demonstrations in the 1960s and 1970s were brutally crushed. Torture, political imprisonment, and other human rights abuses were common. Throughout this period, costly guerrilla wars with ethnic opposition groups along the country’s frontiers continued.

Under the BSPP’s isolationist “Burmese Way to Socialism,? the country’s economy steadily deteriorated, and by mid-1988, rice shortages and popular discontent reached crisis proportions. The police slaying of a student sparked demonstrations by university students that were soon joined by monks, civil servants, workers, and even policemen and soldiers in cities and towns all over Burma. On the eighth of August – “8-8-88? – hundreds of thousands of people nationwide marched to demand the BSPP regime be replaced by an elected civilian government. Soldiers fired on crowds of unarmed protesters, killing thousands.

On 18 September 1988, the army finally responded to calls for democracy by announcing a coup by the State Law and Order Restoration Council (SLORC) (renamed the State Peace and Development Council in November 1997). The junta’s next action was to open fire with machine guns on demonstrators in Rangoon and other cities. The carnage was immense. While the exact number will never be known, it is estimated that as many as 10,000 people were killed. Thousands more were arrested. Many were tortured. . . .

The SLORC pledged that elections would be held after “peace and tranquillity? were restored in Burma. But the run-up to the elections inspired little confidence in the process. Daw Aung San Suu Kyi, leader of the most popular opposition party, the National League for Democracy (NLD), was placed under house arrest in July 1989. Many other senior NLD officials were jailed. The NLD had little access to media and few resources compared to the SLORC-backed National Unity Party (NUP).

. . . A free vote did take place on 27 May 1990. Of 485 parliamentary seats contested, the NLD won 392 (over 80%). Ethnic minority parties opposed to the SLORC won 65 more seats. The army-front NUP won only ten constituencies, a resounding rejection of military rule that demonstrated not only the depth of the Burmese peoples’ alienation from the military regime, but also the failure of the generals to recognize the reality of their unpopularity.

The junta’s response to this overwhelming defeat was [to declare that] the election was not for a parliament, but for some members of a constituent assembly to consider a new constitution. Repression intensified. Many NLD elected representatives were arrested. Some have died in prison. Others fled into exile. . . .

Human Rights

[Since the SLORC seized power, international observers] have repeatedly detailed a gruesome litany of abuses, including murder, torture, rape, detention without trial, massive forced relocations, and forced labor. Even before 1988, Burma’s army faced allegations of serious human rights abuses, especially in its campaigns against ethnic groups along the country’s borders. These severe violations continue today, including arbitrary executions and forced labor of villagers as military porters in combat zones. Children have been particularly hard hit, both as direct physical victims of military abuse and as members of affected families.

These gross violations are added to ongoing suppression of other fundamental freedoms. Today, the most basic of globally recognized civil and political rights are not respected by Burma’s generals, despite the fact that Burma is signatory to several of the most important international human rights treaties. There is no freedom of expression. Even art exhibitions must be approved by military authorities. Beyond sports and romance magazines, the few independent publications that survive are subject to severe censorship. The regime’s Press Scrutiny Board orders articles even obliquely critical of official actions inked over or torn from offending issues. . ..

Broadcast media are even more closely controlled, and state radio and television, the only allowed, offer endless images of the junta’s generals cutting ribbons and making speeches. . . . [I]nternational radio stations such as the British Broadcasting Corporation, the Voice of America, and Radio Free Asia estimate that their Burmese audience is perhaps greater per capita than anywhere else in the world.

The junta’s efforts to quash free expression continue. A 1996 SLORC decree provides up to 20 years’ imprisonment for anyone publicly opposing the junta’s policies. Under the 1996 “Computer Science Development Law,? unlicensed possession of a fax machine or modem is punishable by 15 years in jail. These are among many repressive measures enforced without regard to international standards or Burma’s own constitution. . . .

Freedom of association and assembly are denied. Political gatherings are banned. Political parties such as the National League for Democracy (NLD) are closely monitored and its members harassed or arrested. Amnesty International estimates that in early 1998 at least 2,000 political prisoners were detained or imprisoned under severe conditions in Burmese jails. Many prisoners have died in detention. Among the current political prisoners are 39 people who were victorious candidates in May 1990 elections in which the NLD won over 80% of the seats.

Labor unions are not allowed to organize. The International Labor Organization has detailed allegations of widespread forced labor in Burma, often under dangerous conditions. Some of the worst abuses are today reported from southeastern Burma, where a billion-dollar pipeline is being built by a consortium of America’s UNOCAL and France’s TOTAL oil companies and the Burmese regime. In March 1997, the European Union withdrew Burma’s trade privileges because of the prevalence of forced labor and other abuses.

Religious repression is another long-time feature of military rule. Burma is a predominantly Buddhist country, and the military regime demands that Buddhist clergy support its rule. Troops have invaded monasteries to remove Buddhist leaders who supported human rights and the democracy movement.

Burma also has sizable Muslim and Christian communities. Muslims in southwestern Burma are continuing targets for army attacks. Over a quarter million fled to Bangladesh during a major army offensive in 1989, and approximately 25,000 more escaped in 1997. Dozens of mosques were ransacked and destroyed as anti-Muslim riots reportedly instigated by the Burmese military flared in several Burmese cities in March 1997. Christian churches are also closely monitored by the army, and church activities country-wide are restricted. In some border areas, especially the Chin Special Division and the Karen State, churches have been wrecked by soldiers and religious differences exploited by the junta to promote discord among minority ethnic groups.

Amnesty International, Myanmar: U.N. Security Council Must Act, AI Index: ASA 16/007/2006 (2006) (footnotes omitted):

. . . Since the Security Council was briefed on the situation in Myanmar in December 2005, Myanmar’s grave human rights situation has continued to deteriorate. The number of refugees fleeing human rights violations in the country has significantly increased. Military operations in Kayin (Karen) state have caused large-scale displacement of more than 11,000 civilians from Kayin State and Bago Division in recent months, and grave violations of international human rights and humanitarian law are being reported. . . .

The Myanmar authorities have consistently failed to act on numerous resolutions to improve the human rights situation passed by the United Nations General Assembly and the Commission on Human Rights, and have obstructed measures proposed by the ILO to put an end to forced labour. The Special Rapporteur appointed by the Commission on Human Rights to monitor the human rights situation in the country has been unable to visit Myanmar since 2003.

. . . The government . . . extended the detention without trial of prisoner of conscience Daw Aung San Suu Kyi on 27 May, the day after UN Secretary-General called for her release and shortly after Under Secretary-General Ibrahim Gambari visited her under house arrest, the first such visit to Myanmar by a high-level UN official in two years. . . .

NOTES

1. Myanmar has ratified the U.N. Charter, the Geneva Conventions of 1949, the Genocide Convention, and the Convention on the Rights of the Child. Myanmar is not a party to the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment; or the 1977 Protocols to the Geneva Conventions.

2. Students should review the material in chapter 1 at 14-16, introducing U.N. structures including ECOSOC and the Human Rights Council.

3. For further reading, see:

Brad Adams & Joe Saunders [Human Rights Watch], “They Came and Destroyed Our Village Again?: The Plight of Internally Displaced Persons in Karen State (2005);

Amnesty International, Myanmar: Compilation Document, AI Index: ASA 16/12-14/99 (1999);

Amnesty International, Myanmar: Human Rights after Seven Years of Military Rule, AI Index: ASA 16/23/95 (1995);

Amnesty International, Myanmar: The Institution of Torture, AI Index: ASA 16/24/00 (2000);

Amnesty International, Myanmar: Torture of Ethnic Minority Women, AI Index: ASA 16/017/2001 (2001), http://www.amnestyusa.org/countries/myanmar_burma/document.do?id=AEF1DCC1AA1ED49E80256A8C005196B3;

Burma: Prospects for a Democratic Future (Robert I. Rotberg ed., 1998);

Burma: The Challenge of Change in a Divided Society (Peter Carey ed., 1997);

Peter Carey, From Burma to Myanmar: Military Rule and the Struggle for Democracy (1997);

Department of State, Country Reports on Human Rights Practices for 2005 (2006), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61603.htm;

Department of State, Country Reports on Human Rights Practices for 2004 (2005), available at http://www.state.gov/g/drl/rls/hrrpt/2004/41637.htm;

Department of State, Country Reports on Human Rights Practices for 2003 (2004), available at http://www.state.gov/g/drl/rls/hrrpt/2003/27765.htm;

Department of State, Country Reports on Human Rights Practices for 2002 (2003), available at http://www.state.gov/g/drl/rls/hrrpt/2002/18237.htm;

Human Rights in Burma: Where Are We Now and What Do We Do Next?: Joint Hearing before the Subcomm. on Africa, Global Human Rights, and International Operations and the Subcomm. on Asia and the Pacific of the H. Comm. on International Relations, 109th Cong. (2006);

Human Rights Watch, Burma/Bangladesh: Burmese Refugees in Bangladesh: Still no Durable Solution (2000), available at http://www.hrw.org/hrw/reports/2000/burma;

Human Rights Watch, Burma/Thailand: Unwanted and Unprotected: Burmese Refugees in Thailand (1998), available at http://www.hrw.org/reports98/thai;

Human Rights Watch, World Report 2006: Burma (2006), available at http://hrw.org/english/docs/2006/01/18/burma12268.htm;

Human Rights Watch, World Report 2005: Burma (2005), available at http://hrw.org/english/docs/2005/01/13/burma9826.htm;

Human Rights Watch, World Report 2003: Burma (2003), available at http://hrw.org/wr2k3/asia2.html;

Human Rights Watch, World Report 2002: Burma (2002), available at http://www.hrw.org/wr2k2/asia2.html;

A.F.K. Jilani, Human Rights Violations in Arakan (2002);

Benedict Rogers, A Land without Evil: Stopping the Genocide of Burma’s Karen People (2004);

Monique Skidmore, Karaoke Fascism: Burma and the Politics of Fear (2004);

Martin Smith [Minority Rights International], Burma (Myanmar): The Time for Change (2002);

Aung San Suu Kyi, Letters from Burma (1997);

U.S. Dept. of Labor, Bureau of International Labor Affairs, Report on Labor Practices in Burma (1998), available at http://purl.access.gpo.gov/GPO/LPS5259.
_______________________________________________________________________

D. U.N. PROCEDURES FOR RESPONDING TO HUMAN RIGHTS VIOLATIONS

The U.N. has created several procedures to deal with the thousands of communications they receive regarding violations of human rights each year. The mechanisms include the 1235 procedure, the 1503 procedure, country rapporteurs, thematic procedures, and the Universal Periodic Review. These procedures have evolved slowly from the U.N.’s “no power? approach in the early days of the former Commission to the U.N.’s constructive engagement approach under the Human Rights Council.

1. Development of Major U.N. Procedures

In Articles 55 and 56 of the U.N. Charter, all member governments “pledge themselves to take joint and separate action? to “promote . . . higher standards of living . . . development . . . solutions of international economic . . . and related problems; and . . . universal respect for, and observance of, human rights and fundamental freedoms . . ..? Participants in the San Francisco Conference of 1945 proposed that the Charter should assure not only promotion and observance but also protection of human rights. That proposal was defeated because the United Kingdom and the United States believed that such language would inappropriately raise expectations of U.N. action on specific human rights problems. In 1947 the newly established U.N. Commission on Human Rights decided that it had “no power to take any action in regard to any complaints regarding human rights.? ECOSOC confirmed that position but also requested the U.N. Secretariat to prepare an annual list of the complaints received.

Numerous efforts were made between 1947 and 1959 to alter the “no power? rule, but none were successful. In 1959 ECOSOC reaffirmed its “no power? rule in adopting resolution 728F, which consolidated the procedures for handling human rights communications. Resolution 728F does provide for the Secretary-General to prepare and distribute to the members of the U.N. Commission on Human Rights and its subsidiary body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, a “confidential list containing a brief indication of the substance of other communications concerning human rights, however addressed, and to furnish this list to members of the Commission [and Sub-Commission], in private, without divulging the identity of the authors of communications . . ..? Resolution 728F also encourages governments to reply to the communications.

ECOSOC res. 728F (XXVIII), 28 U.N. ESCOR Supp. (No. 1) at 19, U.N. Doc. E/3290 (1959):

COMMUNICATIONS CONCERNING HUMAN RIGHTS

The Economic and Social Council, . . .

1. Approves the statement that the Commission on Human Rights recognizes that it has no power to take any action in regard to any complaints concerning human rights;

2. Requests the Secretary-General: . . .

(b) To compile before each session of the Commission a confidential list containing a brief indication of the substance of other communications concerning human rights, however addressed, and to furnish this list to members of the Commission, in private meeting, without divulging the identity of the authors of communications except in cases where the authors state they have already divulged or intend to divulge their names or that they have no objection to their names being divulged;

(c) To enable the members of the Commission, upon request, to consult the originals of communications dealing with the principles involved in the promotion of universal respect for, and observance of, human rights;

(d) To inform the writers of all communications concerning human rights, however addressed, that their communications will be handled in accordance with this resolution, indicating that the Commission has no power to take any action in regard to any complaint concerning human rights;

(e) To furnish each Member State concerned with a copy of any communication concerning human rights which refers explicitly to that State or to territories under its jurisdiction, without divulging the identity of the author, except as provided for in sub-paragraph (b) above;

(f) To ask Governments sending replies to communications brought to their attention in accordance with sub-paragraph (e) whether they wish their replies to be presented to the Commission in summary form or in full; . . ..

* * * * *

Resolution 728F still applies to communications. Complainants are sent a letter referring to the “no power to take any action? rule along with a copy of resolutions 728F, 1235, and 1503. That letter remains the last information an author officially receives about the communication. In 1977 the Secretariat stopped issuing non-confidential lists of communications with very brief indications of their substance, but has continued to circulate confidential lists with somewhat more substantial summaries of the communications. In accordance with resolution 728F, communications referring explicitly to a member state are furnished to that state without divulging the identity of the author.

Instead of responding to communications alleging specific human rights violations, the Commission on Human Rights devoted its energies during its early years to establishing the principal norms of international human rights. Those norms included the Universal Declaration of Human Rights (1948), the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966).

In 1966, however, as the Commission on Human Rights completed its work in drafting the two covenants, it requested authority from ECOSOC to review its functions and to be empowered to make recommendations about specific violations brought to its attention. ECOSOC asked the General Assembly to let the Commission review the organization of its work and expanded the session of the Commission from four to six weeks. Shortly thereafter the General Assembly, in resolution 2144A of October 26, 1966, invited ECOSOC and the Commission to consider ways in which the U.N. could work to eliminate human rights violations. At its next session, in early 1967, the Commission adopted resolution 8 (XXIII), which requested specific authority to examine communications on the lists prepared pursuant to Council resolution 728F.

a. ECOSOC Resolution 1235

The Economic and Social Council, in resolution 1235 (XLII) of June 6, 1967, approved the Commission’s request. Resolution 1235 allowed the Commission to examine allegations of gross violations of human rights found in the 728F lists of communications. It further authorized the Commission to make a “thorough study? of cases revealing consistent patterns of human rights violations. Resolution 1235 also permitted the Sub-Commission to establish a similar agenda item. The resolution did not define the procedure for examining the communications. The adoption of 1235 was a significant step, because it was the first time the Commission had been authorized to take action in response to communications, thus weakening the “no power? doctrine.

ECOSOC res. 1235 (XLII), 42 U.N. ESCOR Supp. (No. 1) at 17, U.N. Doc. E/4393 (1967):

The Economic and Social Council, . . .

1. Welcomes the decision of the Commission on Human Rights to give annual consideration to the item entitled “Question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid, in all countries, with particular reference to colonial and other dependent countries and territories,? . . .; and concurs with the requests for assistance addressed to the Sub-Commission on Prevention of Discrimination and Protection of Minorities and to the Secretary-General;

2. Authorizes the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities, . . ., to examine information relevant to gross violations of human rights and fundamental freedoms, as exemplified by the policy of apartheid . . ., and to racial discrimination . . ., contained in the communications listed by the Secretary-General pursuant to Economic and Social Council resolution 728 F (XXVIII) of 30 July 1959;

3. Decides that the Commission on Human Rights may, in appropriate cases, . . ., make a thorough study of situations which reveal a consistent pattern of violations of human rights, . . ., and report, with recommendations thereon, to the Economic and Social Council;

* * * * *

In practice, resolution 1235 has served as the basis for annual debate during the sessions of the Commission and Sub-Commission on human rights violations in specific countries. These debates began as rather reserved discussions in which governments claimed that they could not be criticized by name. By the late 1970s, however, governments and nongovernmental organizations (NGOs) accepted this agenda item as the occasion for lively public discussion of violations committed by named governments. Based on those debates, the Commission began to adopt resolutions expressing concern about human rights violations in particular countries.

For the first time, in 1995, the U.S. was the subject of substantial discussion under 1235. A resolution was introduced which endorsed the report of the Special Rapporteur on racism and xenophobia regarding the situation in the U.S., and expressed concern about persisting racial discrimination in the U.S. The proposed resolution was rejected by a wide margin, with only three countries voting in favor. Commission on Human Rights, Violation of Human Rights in the United States as a Result of Racism and Racial Discrimination Persisting in United States Society, U.N. Doc. E/CN.4/1995/L.26/Rev.2 (1995). See also Penny Parker, A Summary of the Major Developments at the 1995 Session of the U.N. Commission on Human Rights, Held in Geneva, Switzerland, From January 30 to March 10, 1995, see http://hrlibrary.umn.edu, visited March 10, 2001.

In addition to adopting resolutions, the Commission developed a practice under resolution 1235 of appointing special rapporteurs, special representatives, experts, working groups, and other envoys to monitor human rights violations in particular countries. The countries have included Afghanistan, Bolivia, Burundi, Cambodia, Chile, Congo, Cuba, Democratic Kampuchea, El Salvador, Equatorial Guinea, Guatemala, Haiti, Iran, Iraq, Myanmar, Palestine, Poland, Romania, Rwanda, Somalia, Southern Africa, Sudan, Togo, former Yugoslavia, and Zaire. Special rapporteurs or experts were appointed to investigate situations in fourteen countries in 2000. The special rapporteurs, representatives, and others collect information on human rights violations and prepare annual reports to the Commission, and if requested, to the General Assembly. Information can be gathered from individuals, groups, organizations, and governments. The experts or rapporteurs often attempt to obtain the relevant information by visiting the countries. Difficulties arise, however, when governments refuse to grant permission for these visits.

b. ECOSOC Resolution 1503

Although resolution 1235 refers to the communications listed pursuant to resolution 728F, the Commission could not refer to the substance of those communications directly because they remain confidential pursuant to resolution 728F. Moreover, resolution 1235 does not provide a mechanism for consideration or analysis of the communications themselves. Accordingly, in 1968 the Sub-Commission proposed that the 728F communications should be subjected to a three-stage screening process by a working group of the Sub-Commission, the whole Sub-Commission, and the Commission. In its resolution 17 (XXV) of 1969 the Commission essentially accepted the Sub-Commission’s recommendation to the Economic and Social Council, but gave governments a year to consider the proposal. On May 27, 1970, ECOSOC adopted resolution 1503 (XLVIII). The resolution established a procedure separate from the public debate conducted under resolution 1235 in the Commission and the Sub-Commission; the public discussion continued despite the adoption of resolution 1503.

ECOSOC res. 1503 (XLVIII), 48 U.N. ESCOR (No. 1A) at 8, U.N. Doc. E/4832/Add.1 (1970):

Procedure for dealing with communications relating to violations of human rights and fundamental freedoms

The Economic and Social Council, . . .

1. Authorizes the Sub-Commission on Prevention of Discrimination and Protection of Minorities to appoint a working group consisting of not more than five of its members, with due regard to geographical distribution, to meet once a year in private meetings for a period not exceeding ten days immediately before the sessions of the Sub-Commission to consider all communications, including replies of Government thereon, received by the Secretary-General under Council resolution 728 F (XXVIII) of 30 July 1559 with a view to bringing to the attention of the Sub-Commission those communications, together with replies of Governments, if any, which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms within the terms of reference of the Sub-Commission; . . .

4. Further requests the Secretary-General:

(a) To furnish to the members of the Sub-Commission every month a list of communications prepared by him in accordance with Council resolution 728 F (XXVIII) and a brief description of them together with the text of any replies received from Governments;

(b) To make available to the members of the working group at their meetings the originals of such communications listed as they may request, having due regard to the provisions of paragraph 2(b) of Council resolution 728 F (XXVIII) concerning the divulging of the identity of the authors of communications;

(c) To circulate to the members of the Sub-Commission, in the working languages, the originals of such communications as are referred to the Sub-Commission by the working group;

5. Requests the Sub-Commission on Prevention of Discrimination and Protection of Minorities to consider in private meetings, in accordance with paragraph 1 above, the communications brought before it in accordance with the decision of a majority of the members of the working group and any replies of Governments relating thereto and other relevant information, with a view to determining whether they refer to the Commission on Human Rights particular situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commission;

6. Requests the Commission on Human Rights after it has examined any situation referred to it by the Sub-Commission to determine:

(a) Whether it requires a thorough study by the Commission and a report and recommendations thereon to the Council in accordance with paragraph 3 of Council resolution 1235 (XLII);

(b) Whether it may be a subject of an investigation by an ad hoc committee to be appointed by the Commission which shall be undertaken only with the express consent of the State concerned and shall be conducted in constant co-operation with that State and under conditions determined by agreement with it. In any event, the investigation may be undertaken only if:

(i) All available means at the national level have been resorted to and exhausted;

(ii) The situation does not relate to a matter which is being dealt with under other procedures prescribed in the constituent instruments of, or conventions adopted by, the United Nations and the specialized agencies, or in regional conventions or which the State concerned wishes to submit to other procedures in accordance with general or special international agreements to which it is a party. . . .

8. Decides that all actions envisaged in the implementation of the present resolution by the Sub-Commission on Prevention of Discrimination and Protection of Minorities or the Commission on Human Rights shall remain confidential until such time as the Commission may decide to make recommendations to the Economic and Social Council; . . ..

* * * * *

The 1503 procedure has evolved since 1970. While the revised practices were not specifically authorized by resolution 1503, they appear to have become regular attributes of the procedure and many have later been confirmed by Commission or ECOSOC decisions. For example, in 1974 the Commission decided to inform governments that they had been the subject of a situation referred by the Sub-Commission, to send them the relevant documents, and to invite the governments to submit any observations. Also in 1974 the Commission decided to establish its own Working Group on Situations to meet just before the next annual session of the Commission and to consider the disposition of situations referred by the Sub-Commission to the Commission. The Commission’s Working Group on Situations met for the first time in 1975 and continued to meet annually. In 1990 ECOSOC approved the permanent establishment of the Working Group on Situations.

In 1978 the Commission formalized a number of practices which had developed under the 1503 process. For example, the Commission decided to invite the Chair of the Sub-Commission’s Working Group on Communications to participate in sessions of the Commission on 1503 matters. The Commission also gave accused governments the opportunity to respond during the confidential discussions of the Commission. Further, the Commission decided that the Sub-Commission and its Working Group should be given access to the confidential records of the Commission’s meetings on 1503 matters.

For the first time, in 1978, the Chair of the Commission announced the names of the governments which had been the subject of discussion during the 1503 deliberations, but the Chair did not explain the substance of the complaints or the decisions reached. In 1984 the Commission’s Chair announced not only the names of the countries discussed, but whether the Commission had decided to keep the matter under consideration or to terminate the consideration of particular countries.

The secrecy surrounding the 1503 procedure, which is one of its principal features, has been an obstacle to adequate knowledge about the functioning and effectiveness of the procedure. In 1985 and 1986 the new governments in Argentina, the Philippines, and Uruguay successfully requested that the records of the past 1503 proceedings in their respective cases should be released to the public. The availability of this material has made it possible for a new evaluation of the 1503 procedures based upon more comprehensive information. Also, human rights advocates can now be given some useful advice as to how they should present their 1503 communications. In addition, with the advent of the World Wide Web, the Office of the High Commissioner for Human Rights has issued a full list of the more than 84 countries which have in the past been considered under the 1503 procedure. See http://www.unhchr.ch/html/menu2/8/stat1.htm.

In 2000 the U.N. Commission on Human Rights completed a significant review of its mechanisms and made several important changes in the resolution 1503 procedures, which were eventually adopted by the Economic and Social Council in its resolution 2000/3. Under this procedure the Chair of the Working Group on Communications had the authority to determine whether communications were sufficiently meritorious to require an answer from the government involved. Under the revised procedure the Commission and ECOSOC also removed the Sub-Commission on the Promotion and Protection of Human Rights (formerly the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities) from the 1503 process, so that communications and governmental answers are considered first by the Working Group on Communications, which is still comprised of five Sub-Commission members, but which meets during the ten days just after the Sub-Commission session in August, rather than before the Sub-Commission. The Working Group on Communications may submit countries in which there are credible allegations of gross violations of internationally recognized human rights directly to the Commission’s Working Group on Situations with recommendations and brief explanations of the reasons for transmittal. As in previous years, the Working Group on Communications may also keep communications pending or decide to drop consideration of the thousands of communications it reviews.

Since the Sub-Commission no longer receives the recommendations of its Working Group on Communications, the Commission’s Working Group on Situations -- still comprised of five representatives of five governmental members of the Commission -- decided when it met for the first time under the new procedure in 2001 to adopt the Sub-Commission’s previous practice of either keeping situations pending or of transmitting them to the full Commission. When a country is referred to the full Commission representatives of the country have the right to make an initial appearance before the Commission in a private session to make its response to the information in the communications selected for review by the Working Group on Situations. The Commission meets at a later private session to decide whether to keep countries pending or to drop them. At that later session representatives of the countries concerned are present for consideration of only their situation. At a later public session of the Commission, the Commission’s Chair announces the names of the countries which have been kept pending or have been dropped for that year.

c. GA Resolution 60/251

The U.N. General Assembly, in resolution 60/251 of March 15, 2006, established the Human Rights Council as the successor body to the Commission on Human Rights. Repeated complaints of politicization and double standards by member States hindered the Commission’s ability to deal effectively with human rights violations. Responding to these complaints, the General Assembly drafted resolution 60/251 on the principles of universality, impartiality, objectivity, and non-selectivity. Three structural changes were made to the former Commission to better ensure the success of the new Council. First, the Council was authorized to establish a Universal Periodic Review which will assess the fulfillment of each state’s human rights obligations. Second, membership restrictions for the Council prevent a state from serving more than two consecutive three-year terms. Third, the General Assembly, by a two-thirds vote, may suspend a state’s membership on the Council for gross and systematic violations of human rights.

G.A. res. 60/251, U.N. Doc. A/Res/60/251 (2006):

The General Assembly, . . .

Recognizing the work undertaken by the United Nations Commission on Human Rights and the need to preserve and build on its achievements and to redress its shortcomings, . . .

1. Decides to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly; the Assembly shall review the status within five years; . . .

5. Decides that the Council will, inter alia: . . .

(e) Undertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies; the Council shall develop the modalities and necessary time allocation of the universal periodic review mechanism within one year after the holding of its first session; . . .

6. Decides also that the Council will assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights in order to maintain a system of special procedures, expert advice and complaint procedure; the Council shall complete this review within one year after the holding of its first session;

7. Decides further that the Council shall consist of 47 Member States . . .; the members of the Council will serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms;

8. . . . [W]hen electing members of the Council, Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto; the General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights; . . .

10. Decides further that the Council . . . shall be able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council; . . .

* * * * *

The Human Rights Council met for its inaugural session in June 2006. Much of the first session was spent debating how to implement resolution 60/251. The Council organized its work around two key issues: Universal Periodic Review (UPR) and the review of mandates received from the former Commission. Working Groups were established on both of these issues and were required to report to the Council during its second session. The implications of the Council and its affect on the prior operation of the Commission will be discussed more fully later in this chapter, see p. 57 infra.

2. Overview of Resolution 1503 Procedure in Practice

The 1503 process has a year-long cycle. Individuals and organizations may submit communications alleging a consistent pattern of gross and reliably attested violations. The communications are initially received by a small staff in the Office of the High Commissioner for Human Rights, who summarize the communications in a paragraph or two for compilation in a monthly confidential list, and then submit each communication to the government of the country concerned. If the communication appears frivolous or for some other reason does not appear to require a substantive response, the Chair of the Working Group on Communications is authorized to determine whether the communication should not be submitted to the government concerned. In practice about a quarter of the tens of thousands of communications are not sent to the relevant governments.

Communications must be submitted at least twelve weeks prior to the commencement of the meeting of the Working Group on Communications. The Sub-Commission previously met until mid-August, so its Working Group on Communications generally began its ten day session in the second half of August. Accordingly, in practice communications must have been submitted prior to the last week of May in order to be considered that year in August. Later communications would be considered the following year in August. The Council has extended the Commission’s former mandates for one year starting in 2006, so the time line for submitting communications remains unchanged for the immediate future.

The Working Group on Communications is comprised of five members of the former Sub-Commission from the five regional groups of countries in the United Nations, that is, Africa, Asia, Eastern Europe, “Latin American and Caribbean States,? and “Western Europe and Other? (including Australia, Canada, New Zealand, and the United States). The five Working Group members were selected by their fellow Sub-Commission members from their respective regional groups. Members of the Sub-Commission were nominated by their governments and were elected by the Commission, but they are not representatives of their respective governments, and are expected to be independent experts.

Previously, when the Working Group met for ten business days in the last two weeks after the end of the Sub-Commission session, the Working Group considered communications submitted during the preceding year as well as any responses that the governments concerned may wish to provide. The Working Group usually receives 20,000-25,000 communications per year, although postcard campaigns on certain countries may raise the number of complaints in a single year over 350,000. Of the thousands of communications received by the U.N. only about four to five hundred files may be sufficiently well prepared to be given serious consideration by the Working Group. Though there is authority within 1503 for consolidating individual communications, including postcards and letters, to assess whether there exists a consistent pattern of gross violations of human rights in a country, the Group usually reviews with care those communications that muster sufficient facts to support a finding that a government is responsible for a consistent pattern of gross and reliably attested violations.

The Working Group meets in secret session with only its members and the staff of the Communications Unit of the Office of the High Commissioner for Human Rights present. Each member of the Group takes responsibility for identifying communications for referral to the Working Group on Situations of the Commission. The members ordinarily divide their responsibilities by categories of rights in the Universal Declaration. For example, the member from the “Western European and Other? group of nations may be responsible for raising cases involving torture, arbitrary killing, and other violations of personal integrity. The “Latin American and Caribbean States? member may take responsibility for communications regarding discrimination. The member from Eastern Europe may accept primary responsibility for communications raising violations of the right to leave and return. The Asian member may take responsibility for cases involving detention and fair trial. The African member may review communications which do not fit in any other category. The assignments are not rigid, and any member may request consideration of any communication. The staff of the Office of the High Commissioner for Human Rights assists the Working Group members in identifying communications appropriate for discussion.

A majority of the members of the Group, that is, three out of five, must vote in favor of referring a communication to the Working Group on Situations. Difficulties in obtaining the three votes required for action have arisen when one or even two of the members of the Group have not been present for all or part of the Group sessions. The Group takes separate decisions on the referral of each communication. Often several communications are referred to the Sub-Commission in regard to a particular country. The Working Group usually forwards communications involving 8-12 countries to the Working Group on Situations and has also developed a practice of holding several additional cases for consideration during the following year. While not constituting a formal action under the 1503 process, this practice may indicate that the Working Group will seriously consider referral if the government does not provide more information or if the situation does not improve by the following year. Because governments do not want to be identified as subject to the 1503 procedure and because the Working Group is likely to transmit communications that are not answered, most governments carefully respond to communications.

As soon as the Group completes its deliberations, the Office of the High Commissioner for Human Rights arranges for the translation of the communications referred by the Group, so that they can be considered during the March session of the Working Group on Situations in the principal languages of the U.N. In a confidential document the Working Group on Communications reports its conclusions to the Working Group on Situations including a brief explanation of the concerns which motivated transmittal of each communication. The Working Group on Communications may suggest which situations should be kept pending before the Working Group on Situations and which should be considered by the Council in plenary session. The Office of the High Commissioner for Human Rights informs affected governments in October that communications have been transmitted to the Council’s Working Group on Situations or have been kept under review by the Working Group on Communications. The Sub-Commission’s Working Group often explains what concerns motivated its decisions to keep matters pending and asks governments for further clarification. As to matters transmitted to the Council’s Working Group, governments are invited to submit written observations on the situation in question.

The Working Group on Situations previously met in private session just prior to the annual session of the Commission on Human Rights in March-April to consider the communications referred by the Sub-Commission’s Working Group on Communications. The Working Group on Situations is comprised of five individuals who represent governmental members of the former Commission on Human Rights. The Working Group on Situations decides which country situations should be referred to the Council and which should be held pending by the Working Group for consideration in the following year. As to those cases to be transmitted to the Council, the Working Group drafts a decision recommending how each referred situation should be handled by the Council.

The former Commission met in private session to consider situations brought to its attention by its Working Group on Situations. The Commission had established a two-stage process. The Commission generally began its initial discussion during its second week, that is, in late March. The Chair of the Commission’s Working Group on Situations presented the Group’s report. The representatives of each country to be considered by the Commission were admitted to the large conference room in English alphabetic order. Since the room was nearly empty except for members of the Commission, the representatives of the country to be discussed found themselves in a rather formal environment where they sat in isolation behind their country’s name plate. If a special rapporteur had been appointed at a previous session, the special rapporteur presented a report about the situation. Commission members either asked questions of the government’s representatives or discussed the situation. The government was permitted to respond to the written material before the Commission as well as the questions and comments of Commission members. The Chair of the Sub-Commission’s Working Group participated in the proceedings, if requested, to explain the rationale for the Working Group on Communication’s referral of the situation. In practice, however, the Working Group on Communications’s Chair was rarely asked to speak and is present more as an observer to inform the Working Group of the Commission’s actions.

In a separate private session a couple of weeks later – again in the presence of the government representative -- the Commission decided what action should be taken on the situation. There were essentially three choices: keep the situation pending for a year, drop the matter, or permit the Commission to adopt a resolution in public session which would obviate the need for confidential consideration under the 1503 procedure. Each decision was crafted to fit the particular situation, so that in some cases the Commission authorized a special rapporteur or representative to report for the following year or in other cases the Commission made certain observations or posed particular questions to be considered the following year. The government commented on the Commission’s decision after the vote.

Under resolution 1503 the former Commission was authorized to recommend to ECOSOC the mounting of a “thorough study? or an even more intensive inquiry by an ad hoc fact-finding body. The Commission recommended a “thorough study? on only two occasions and never recommended the use of an ad hoc fact-finding body. Instead, the Commission developed an expanding repertoire of approaches, including posing written questions to the governments concerned, sending a member of the Commission to make direct contacts with the government, sending a U.N. staff person to the country, keeping the case under consideration, transferring the case to the public procedure, dismissing the situation, or some other approach. For example, during the late 1980s the Commission selected a special rapporteur to pursue direct contacts with the government of Myanmar (Burma) and to report the results of her investigations to the Commission in confidential session. After several annual confidential reports produced no appreciable results and little cooperation from the government, the Commission decided in 1992 to appoint a Special Rapporteur under the public procedure authorized by resolution 1235.

When the Commission returned to public session, the Chair announced the list of countries that had been dropped or continued under the 1503 process. Countries which were continued on the Commission agenda were considered the following year whether or not they were the subject of new communications.

a. Deadline for and Length of Submissions

Communications must be submitted before the annual meeting of the Working Group on Communications. Prior to 1989, the Working Group considered all communications received by June 30, although successful communications were usually received by the end of May. In 1990, the Sub-Commission decided that governments should be given 12 weeks to respond. Hence, communications had to be submitted by late April of each year in preparation for the Working Group’s meeting during late July. In 2000 the Working Group on Communications began to meet in late August, so the deadline now stands in late May. In 2006, the Human Rights Council assumed the mandates of the Sub-Commission and the former Commission, which will likely mean a new submission deadline.

Because the Working Group receives so many communications, the most successful are usually comprehensive but brief (for example, 10 to 20 pages). They contain information about the overall situation in a country referring to serious human rights violations, giving some sense of the frequency of the violations, and providing details of several individual cases. Because the U.N. has limited resources, only the principal communications are translated. Generally, appendices will not be translated – particularly if they are voluminous.

b. Admissibility Requirements

At its 1971 session the Sub-Commission adopted standards and criteria for the admissibility of 1503 communications. Although the Sub-Commission is no longer directly involved in the actual process of considering communications, its standards are still being used. The Sub-Commission decided that communications “shall be admissible only if . . . there are reasonable grounds to believe that they may reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid in any country, including colonial and other dependent countries and peoples.? Sub-Commission resolution 1 (XXIV) also stated that admissible

communications may originate from a person or group of persons who . . . are victims of the violations . . . , any person or group of persons who have direct and reliable knowledge of those violations, or non-governmental organizations acting in good faith in accordance with recognized principles of human rights, not resorting to politically motivated stands contrary to the provisions of the Charter of the United Nations and having direct and reliable knowledge of such violations.

Anonymous communications are not admissible, but the author of a communication may request that his or her name not be revealed to the government.

The communication must contain a “description of the facts and must indicate . . . the rights that have been violated.? Second-hand information may be included, so long as accompanied by “clear evidence.? “Communications shall be inadmissible if their language is essentially abusive and . . . if they contain insulting references to the State against which the complaint is directed.? There is a provision for consideration of communications after the removal of abusive language. Communications are also inadmissible if they have “manifestly political motivations? or are “based exclusively on reports disseminated by mass media.?

Communications shall be inadmissible if they would prejudice the functioning of U.N. specialized agencies (such as the International Labour Organization), if there exist domestic remedies which have not been exhausted and which are not “ineffective or unreasonably prolonged,? if the matter has been satisfactorily settled, or if the communication is not submitted within “a reasonable time after the exhaustion of domestic remedies . . ..?

c. Confidentiality of the 1503 procedure

In order to use the 1503 process effectively, an advocate needed to know whether the government answered the communication, what the government responded, whether the Sub-Commission’s Working Group referred the communication to the Working Group on Situations, what recommendation was made by the Commission’s Working Group, the nature of the defense raised by the government at the Commission, and the Commission’s resolution of the issue. There were opportunities for advocacy with the Commission members who were responsible for decisions and to a lesser extent with the Working Groups. Those opportunities were exploited by the concerned governments and could be used by the complainant if the requisite information could be gathered.

Despite the rather daunting language of ECOSOC resolution 1503 and considerable effort by responsible U.N. officials to keep the process secret, most authors of communications who participated in the meetings of the Commission were able to obtain the relevant information. Some Working Group members informed at least their own governments about the results of each step in the 1503 process -- particularly if their government had been accused of violating human rights. Once the members disclosed anything, it was not surprising that word traveled fast.

Several of the successful 1503 communications were prepared by lawyers or researchers for NGOs that sent representatives to the Commission. Most participants in the public sessions of the Commission who wished to know the 1503 decisions could discover them.

d. What Constitutes a Consistent Pattern of Gross and Reliably Attested Violations?

It is possible to infer from the names of the countries mentioned by the Chair of the Commission on Human Rights at the end of the Commission’s 1503 deliberations and from publicly available information about those countries what sort of situation constitutes a “consistent pattern of gross and reliably attested violations.? As of 2005 over eighty-four countries had been considered under the 1503 process, see p. 16 supra. The governments of those countries were responsible for a large number of cases involving torture, political detention, summary or arbitrary killing, and disappearance.

3. Theme Procedures

In addition to the country-oriented approach of responding to human rights communications and situations, the Commission on Human Rights set up theme-oriented procedures for dealing with human rights violations. In 2006, these procedures were transferred form the Commission to the Human Rights Council. Thematic procedures, like country procedures, allow rapporteurs, representatives, or working groups to seek and receive information on human rights violations. Thematic rapporteurs or working groups, however, may also respond to information received in an effort to eliminate certain human rights abuses. The ability to respond promptly to complaints from all over the world separates thematic procedures from mere studies or specific country procedures. Additionally, the special rapporteurs and working groups act on individual cases of human rights abuses, rather than only on situations revealing patterns of gross violations.

The Human Rights Commission has created 28 thematic procedures -- Working Group on Enforced or Involuntary Disappearances (established in 1980); Special Rapporteur on summary or arbitrary executions (1982); Special Rapporteur on torture (1985); Special Rapporteur on religious intolerance (1986); Special Rapporteur on the sale of children (established in 1990 and recognized as a thematic procedure in 1992); Working Group on Arbitrary Detention (1991); Special Representative on internally displaced persons (established in 1992 and recognized as a thematic procedure in 1993); Special Rapporteur on racism and xenophobia (1993); Special Rapporteur on freedom of opinion and expression (1993); Special Rapporteur on violence against women (1994); Special Rapporteur on the independence of judges and lawyers (1994); Special Rapporteur on toxic waste (1995); Special Rapporteur on the right to education (1998); Independent expert on human rights and extreme poverty (1998); Special Rapporteur on the human rights of migrants (1999); Independent expert on structural adjustment policies and foreign debt (in 2000 the Commission decided to merge the mandates of the independent experts on foreign debt and structural adjustment (1998-2000)); Special Rapporteur on human rights defenders (2000); Special Rapporteur on the right to food (2000); Special Rapporteur on adequate housing (2000); Special Rapporteur on indigenous people (2001); Working Group on People of African Descent (2002); Special Rapporteur on physical and mental health (2002); Special Rapporteur on trafficking in persons (2004); Working Group on Use of Mercenaries (2005); Independent expert on minority issues (2005); Independent expert on solidarity (2005); and Special Rapporteur on terrorism (2005); Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises (2005). The rapporteurs and working groups are generally appointed for three-year terms, but with a limit of two terms or six years.

Thematic rapporteurs, representatives, and working groups gather information about human rights violations around the world, based on a particular subject. The thematic mechanisms function as a means of communication between governments and victims of human rights abuses. In regard to most of these themes, the Commission authorized a special rapporteur or a working group to receive complaints from individuals; to make direct, urgent appeals to governments; to visit a few countries each year depending upon the availability of funds; to make detailed recommendations to governments; and ultimately to seek an end to specific violations. Gathering information can be difficult, because governments often do not reply to requests for information or deny the allegations against them, and many refuse to allow visits. The rapporteurs, representatives, and working groups also made annual public reports to the Commission, which include a summary of their activities, summaries of correspondence, analyses of situations, and recommendations. Some reports included specific country situations, often reporting on a visit to the country by the rapporteur, representative, or members of a working group and detailing how a country has acted in relation to the subject, rather than focusing only on individual cases. The thematic special procedures have actually stopped torture, helped to locate disappeared people, and otherwise had a very important impact.

Camille Giffard & Meagan Hrle, The United Nations Charter-Based Mechanisms, in Human Rights Protection for Refugees, Asylum-Seekers, and Internally Displaced Persons : A Guide to International Mechanisms (Joan Fitzpatrick ed., 2002) (footnotes omitted):
. . . Once you have identified the available mechanisms, how do you go about using them?

With a few exceptions which will be noted below, the United Nations human rights mechanisms are all based at and run from the Office of the High Commissioner for Human Rights (OHCHR) at the UN Office in Geneva. The OHCHR staff are overworked and subject to serious budgetary constraints, facts which have important implications for those wishing to submit information to any of the procedures operating from the Office.

Languages: The UN has six official languages (English, French, Spanish, Russian, Chinese, and Arabic), but only three working languages (English, French, and Spanish). In practice, the most widely understood language within the OHCHR is English. Limited resources mean that translation is not always a priority, particularly if there is no indication of the value of a communication. If you wish your communication to receive the best consideration possible, you should attempt to submit it in a working language. This does not mean that you must translate every supporting document, but it does mean that your covering letter should be in one of these languages and that it should clearly indicate the content of each of the attached documents. If you cannot do this, you should at least make sure that a short summary is provided in a working language indicating the essential elements of the information or complaint. You should set out clearly:

(a) To whom the communication is addressed (e.g., Special Rapporteur on torture)
(b) Who you are (e.g., NGO working with asylum-seekers)
(c) Which country the allegation is about
(d) The purpose or content of your information and if urgent action is required (e.g., “Mrs. Y to be deported to country X where likely to be tortured. Was severely tortured 8 months ago before leaving country (including electric shocks and severe beatings resulting in a fractured skull – medical certificate enclosed) and brother still in the country recently arrested and questioned about the applicant’s whereabouts. Deportation due on [date] – URGENT?)

Submitting information to more than one procedure: If you want your communication to be sent to more than one procedure at the OHCHR, the most reliable approach is for you to send a copy to each procedure yourself, as it can sometimes happen that information is not passed on from one procedure to another within the OHCHR. You will also usually need to emphasize different points for the different procedures.

If you do not have the resources to send more than one copy, you should mark very clearly who you wish to receive the information, in order to guarantee that it is distributed to all of the procedures you have chosen. This will be particularly relevant where you want the information to be sent to several Special Rapporteurs. Some organizations who submit information to the OHCHR on a regular basis have prepared a standard form listing all the available procedures, and mark the ones they would like to contact in any particular case.

Knowing if your submission has been acted upon: None of the Special Procedures has the resources to acknowledge receipt of every piece of information. You will usually only receive correspondence from the Special Procedures if a reply has been received from the relevant government regarding your allegation. The most reliable way of knowing if your submission has been acted upon is to read the next annual report of the procedure in question; if action was taken, this will be specified in the report. Note, however, that the cut-off date for inclusion of information in the reports is approximately October. Action taken in response to allegations received after completion of the report would not be made public until the following year.

Following up your written submission: You should aim to strike a balance between drawing attention to your case and being over-solicitous, which can be detrimental. The large volume of work facing the OHCHR staff means that an extra communication or a visit can help to make your case stand out, but it also means that over-persistence can be greeted with a shortage of patience. A phone call to draw attention to a written submission that has recently been received can have positive effects. Phoning every day to find out if any action has been taken will not. Phone calls that are not accompanied by written submissions should be avoided at all costs – they provide the staff member with no opportunity to assess your identity or credibility, and facilitate errors and misunderstandings.
. . . General characteristics of a communication

The mechanisms described in this chapter are swamped with information from a multitude of sources, much of which is of dubious quality or lacks the precise detail to be useful. There are a number of guidelines you can follow to help your communication stand out and inspire confidence. These relate to form, style and content.
. . . Form

The communication should be no longer than it really needs to be. If it exceeds 8 or 10 pages, it should be accompanied by a summary of the essential points so that it is easy for the staff member to see if it is useful. Extensive materials in which an allegation is deeply buried and needs to be extracted makes the international bodies’ work more difficult, as do large amounts of general information with little precise detail. Many organizations send what amount to books – these are unlikely to be read, whereas a one-page summary will be.

You should not assume any specialized knowledge on the part of the staff receiving the communication. Terms that seem familiar to you may not be widely understood outside your country. Always use simple language and explain specialized terms. In particular, avoid the use of abbreviations and acronyms unless you explain them.

Where you are not able to submit your entire communication in a working language, you should provide at least a summary of the content in one of those languages.

The response you obtain to your submission will depend very much on the impression produced by your organization, its reliability, and your motives in sending the information. It is important to create a good reputation for yourself and your organization so that over time you will become a trusted source. If you have not previously introduced yourself, you can start by explaining your mandate; the easiest way is to include a copy of your statutes or of an annual report that gives a good indication of your activities. If you are affiliated with an international NGO, you should say so – this will provide an easy way of checking out your credentials. Make sure to explain not only your activities, but also your purpose and objectives. If you are a politically oriented organization, say so – this will help to place your information in context and also show that you have nothing to hide. Explain your methods of work: How is your information collected? Is it first-hand information or has it been obtained by word of mouth or from press reports? The aim is to include any information that will help the mechanism form an accurate impression of your organization and the quality of your information.
. . . Style

Always make sure that your presentation of the information is balanced. An objective, balanced view of a situation will make your communication more credible and show that you are interested in presenting the real situation and not just one perspective. While it is normal for information to appear somewhat one-sided if it is trying to establish a pattern of violation, it is important to present it in an objective context. Explain the background carefully, so that the information cannot be perceived as having been taken out of context.

Avoid using political language or making political statements. The human rights officers are concerned with potential human rights violations, and communications that are obviously politically motivated will not be considered.

Using sensational language or dramatic descriptions is likely to be detrimental to your submission. The international mechanisms receive many communications that are full of sensational claims and contain no facts or substance. A balanced, informative communication supported by examples will stand out from the rest of the many unsupported allegations and will receive far more attention.
. . . Content

The most common complaint made by staff at the OHCHR about the information it receives is that it is too vague. You should provide sufficient information for an international body to be able to reach its own conclusions about whether a violation of human rights has occurred – this means that you should be as precise as possible while at the same time remaining concise.

When preparing a submission, the following general guidelines should be borne in mind with respect to the minimum amount of detail that must be provided. In addition, you should follow any specific guidelines relating to the particular procedure in question.

The guiding principle must be that in order for action to be taken, the information should be precise enough to make it possible for the government to investigate the allegation if it is communicated to it. As a minimum, therefore:

∙ The alleged victim or victims must be clearly identifiable,
∙ The perpetrators of the violation must be clearly identifiable. As a minimum, where it is not possible to identify the perpetrators by name, there must be a demonstrable link between the alleged perpetrator(s) and the state, e.g., it must be established that the perpetrators belonged to an institution representing the state, such as the police, the army, a branch of government, or even a paramilitary group.
∙ There should be a detailed description of the circumstances in which the alleged violation occurred. This should include at least the date and location of the incident(s), and a clear description of what actually happened and how.
∙ The person or organization submitting the information must be clearly identified. Anonymous communications are not accepted.

Unless otherwise noted in relation to a specific mechanism, the identity of the source of information is never revealed, either to the government concerned or to the public. However, if there are details in an allegation that are confidential, this should always be clearly marked in the submission. In general, if the name of a victim is to be kept confidential, this means that it will not be possible to submit the individual allegation to the government (as it would not be possible for the government to investigate the case without that information), but the procedure in question may still be able to use the information (leaving out the name) when transmitting general allegations about a particular practice or pattern.

Where it is available, supporting evidence can be valuable. This could include any petitions or complaints made to the authorities; any domestic judicial and administrative decisions in the case, including details of any penalties awarded against the perpetrator(s), decisions of the prosecutor not to prosecute or otherwise pursue a case, and/or decisions of incompetence to examine a case; victim statements; witness statements; medical reports or certificates, including both physical and psychological assessments, if they exist; autopsy reports; photographs; media reports; and general information, such as NGO reports, indicating that the particular type of human rights violation alleged is practiced in the country in question. Always send copies of the documents, not the originals, as they will not be returned to you. Official documents can generally be submitted in their original language, but you should indicate what their relevance is. If possible, provide a short summary in a working language of, for example, the result of the judgment or of the injuries recorded in the medical certificate.

If you wish to use your information to establish a pattern, it is not enough to list a few individual cases or make unsupported statements alleging widespread human rights violations in a country. You should use as many concrete examples as possible and analyze the individual allegations in order to identify patterns. One way to present your findings is to, first, summarize all of the patterns you have identified; next, take each proposition one by one and explain it in general terms; finally, after each proposition, provide as many examples as possible to support your statement.
. . . Submitting information in cases of imminent [human rights violations]

Those Special Procedures that have urgent appeal procedures may use them to intervene in cases where an individual is . . . believed to be at risk of serious human rights violations, particularly torture, summary execution, and disappearance. In such cases, they may request . . . assurances from the country in question that the person will not be subject to human rights violations . . .. When submitting information in such a case you should:

∙ Try to avoid a last-minute intervention if at all possible. It can sometimes take time to contact the correct authorities, and urgent appeals have sometimes arrived too late. It may also be necessary to seek further information from you or other sources. If you believe that a scheduled decision is likely . . . and that no further appeal will be available, you should warn the relevant procedure in advance, so that it is already aware of the situation and familiar with the facts. Even in cases where [governmental action] is truly imminent, however, an urgent appeal can still sometimes succeed.
∙ Provide as many details as possible about the circumstances of the imminent [governmental action], such as the precise date it is due to be implemented and [other details], if available.
∙ Provide detailed information about the domestic remedies used (judicial or administrative decisions, including appeals) in order to establish if the imminent decision is in fact a final one, or if further means are available to delay the [governmental action] without resorting to an urgent appeal. . . .
∙ Establish that the individual is at risk. The Special Procedures will not act in every case . . . ; on the contrary, the facts must be compelling in order for them to take action in such cases. It must be shown that the risk is ongoing, not merely based on events that happened in the distant past, and that the individual is personally at risk (i.e., it would not be sufficient to state that human rights violations occur in the country in question; rather it must be shown that there is a risk to the specific person . . .). Factors that might help to show this include previous incidents of arbitrary detention, torture, or ill treatment of the person; membership, particularly in a leadership capacity, of a group that is specifically targeted; or the harassment or torture of family members remaining in the country. . . .

. . . Advocacy and lobbying: Influencing the UN Charter organs at the decision-making level

. . . In practice, it is lobbying and advocacy campaigns which often prove most successful in obtaining results. Even where individual complaints are submitted to the mechanisms, they are often more likely to succeed if they are accompanied by lobbying to draw attention to their content and gravity. Lobbying at the UN may be fairly described as a complex maze. Knowing how to negotiate this maze is the first step toward achieving results.
i.i.i. Where does an advocacy campaign begin?

Historically, the Commission and its Sub-Commission . . . [were] the prime UN Charter organs for NGO participation because they have been the most flexible and welcoming regarding NGOs. This section will focus on these two bodies . . . [and the successor Human Rights Council], although advocates should not overlook other venues that may prove useful, such as the Commission on the Status of Women, the General Assembly, and world conferences. This section is not intended to be the definitive guide on how to engage in advocacy at the [Human Rights Council] . . .. Rather, it is a broad overview of the process. Many other resources exist regarding advocacy at the UN that should be consulted as well . . . Also, refugees, asylum-seekers, . . . internally displaced persons[, and other human rights victims and potential victims,] and their advocates should seek out training on how to effectively use UN human rights machinery. National and international NGOs often sponsor such training sessions, subject to budgetary constraints.
. . . Create a Strategy

A crucial part of any lobbying campaign is the creation of a concrete strategy. This can begin by finding a clear answer to the question “What do we want to achieve by going to the UN?? Advocacy efforts are generally not conducive to obtaining specific relief in an individual case or in any other case that requires a quick fix. Advocacy before the [Council] . . . around issues . . . may take the form of highlighting . . . policies in particular countries that violate international human rights standards, calling for a way to make [human rights norms applicable], or drawing attention to situations of large-scale [violations].

Advocacy efforts before the [Council] . . . require a long-term strategy that acknowledges that these bodies are fora for negotiations, where consensus is the guiding principle and politics may influence outcomes more than pressing human rights violations. Success requires a commitment to a continuing process, building relationships with other NGOs and governments, an understanding of the political landscape and how to negotiate it, accurate documentation, and solid knowledge of the workings of these bodies and the relevant human rights instruments and international law related to one’s advocacy efforts.
. . . Build relationships

The second important step in advocacy is to identify one’s allies. . . . In addition to bolstering the legitimacy of the lobbying campaign, working with other NGOs may provide “how-to? guidance on negotiating unfamiliar territory in Geneva. Some NGOs have significant experience in working with the [Council] . . . and can be invaluable resources for NGOs with less familiarity with the workings of these UN bodies. . . .

To use the Charter-based bodies effectively requires a tremendous amount of preparation and year-round work in order to cultivate relationships with the relevant foreign offices, Special Rapporteurs, and other NGOs. Foreign offices (many countries have offices in Geneva) or government foreign affairs departments are key players in the annual work of the [Council] . . .; they should be lobbied accordingly. Depending on your strategy, you may need to be in contact with foreign desk officers regarding their government’s position on a resolution or to seek support for a particular resolution or issue. Most often, these offices must be approached with a short and concise lobbying document that sets forth the problem, the specific human rights violation, what the [Council] . . . is being asked do, and the legal authority for that action. The document should include an executive summary and an outline that condenses the information. Merely sending your organization’s annual report will not suffice as a lobbying tactic. Strategic phone calls and letters should follow the submission of any document.

Relationships should also be cultivated with the relevant thematic and country-specific Special Rapporteurs, who could be a key part of your success in achieving your lobbying goals. It is crucial to establish a relationship with the staff who service the rapporteur, keep them abreast of the issue, and let them know how you would like the rapporteur to respond. During the [Council] . . . session itself, rapporteurs often schedule informal brown-bag lunches to discuss their work; in recent years, the number of advocates in attendance has dwindled to an astonishingly paltry number. Outside of the [Council] . . ., rapporteurs can also be lobbied in much the same fashion as you would lobby governmental representatives.

Finally, cultivating relationships with other NGOs will greatly increase your effectiveness and legitimacy in the eyes of the international community, which will result in greater success in the achievement of your advocacy goals.
. . . Lobby

NGO participation is a two-way street because [Council] . . . members have grown to rely on NGO input for accurate information regarding human rights abuses in various parts of the world. In fact, NGOs with reputations for accuracy are often sought out for such information. NGOs, in turn, have the opportunity to greatly influence the workings of the [Council] . . .. NGOs may participate formally (by making oral or written interventions [statements]), or informally (through any number of lobbying tactics). Informal lobbying may take place in meeting rooms outside the formal [Council] . . . session, in the corridors prior to and following the sessions, over lunch, etc. State representatives support resolutions on the basis of their own government’s political interests, alliances with other states, and the strength of public opinion, particularly in their own country. Strong lobbying can make a difference with regard to the text of a resolution , whether the agenda item is dropped or carried over to the next year, or in the establishment of a special mechanism.
. . . What are the potential results of advocacy efforts?

The results of a lobbying strategy before the [Council] . . . may result in any of the following tangible outcomes.
. . . Resolutions

The [Council] . . . [is] empowered to adopt resolutions on country-specific situations and on thematic topics. Resolutions may note with concern, condemn, and/or request a future report or monitoring of the situation. Country-specific resolutions draw attention to human rights violations, call for change in order to prevent future violations, and follow up on the government’s implementation of any previous requests and/or recommendations that were made. NGOs may involve themselves by drafting a resolution and finding a state representative willing to support it, or by providing input or a critique of resolutions that are being debated.

A resolution may be helpful for several reasons. First, it may provide the political impetus for further action by other UN or international bodies . . .. In a related vein, resolutions may call for other UN organs to further study or investigate the situation, which builds up an official documentary record that may eventually prompt action. Second, resolutions represent the opinion of a formally constituted UN body, which may be used by NGOs as one component of an overall campaign.

Unfortunately, resolutions increasingly contain less substantive text and more technical references, such as to previous resolutions, which decreases their potency as advocacy tools. Resolutions drafters should be encouraged to include substantive text that directly reflects the work, conclusions, and recommendations generated through the special procedures.
. . . Appointment of a Special Rapporteur

Only the [Council] . . . has the authority to appoint a country-specific or thematic Special Rapporteur . . .. The recent appointment of [several special rapporteurs] was the result of a sustained campaign by a number of NGOs. The establishment of a rapporteur is one of the most concrete and substantial mechanisms for censuring a country or drawing attention to a global human rights violation.
. . . Chairperson and Country Statements

Short of a resolution, the Chairperson of the [Council] . . . can issue a statement, which often happens with more politically sensitive cases where some state representatives on the [Council] . . . object to the proposed resolution. [A Chairperson’s statement can only be made by consensus of the entire body and thus] Chairperson’s statements tend to be watered down and fail to reflect the gravity of the human rights abuses in the country concerned. Sometimes, a statement may be issued in return for a positive commitment from the state concerned. For example, in 1998 a Chairperson’s statement on the human rights situation in East Timor made reference to an invitation by the Indonesian government to the Working Group on Arbitrary Detention to visit East Timor. Also, although rare, the representative from the country concerned could make a statement regarding measures the country will take to combat the human rights concerns raised during the [Council’s] . . . session.
. . . Advisory Services

The [Council] . . . can place countries on its Advisory Services Program, which includes support/technical services in such areas as national plans of action, constitutions, elections, the judiciary and legal profession, internal conflict resolution, etc. In theory, this means that the country has made some progress toward implementing human rights but needs some special assistance. In practice, however, this is often used even when the country’s human rights record has not significantly improved. Advisory Services can only be developed effectively with the consent and cooperation of the state concerned. At the time of writing, countries receiving Advisory Services included Somalia, Cambodia, Haiti, and Chad. . . .
. . . Who can intervene in Charter-based bodies?

NGOs regularly participate in UN activities and advocate on behalf of the individuals they serve. From the outset, it should be noted that any individual or organization may access the Charter-based mechanisms . . . . Also, any individual may lobby state representatives on an individual basis, outside the formal setting of the [Council] . . .. [L]obbying foreign desk officers is a key component of an advocacy strategy and does not require any special UN status. This section concerns NGOs that wish to engage in advocacy activities at the [Council] . . ., or other UN bodies. NGO participation is premised on a reciprocal relationship whereby the UN benefits from expert information and advice from NGOs with expertise in particular areas and NGOs are able to bring their concerns to an international arena.
. . . What is consultative status?

The UN has established a somewhat complex process whereby NGOs must first obtain consultative status before accessing the UN bodies. Specifically, NGO participation is governed by Article 71 of the Charter and ECOSOC Resolution 1996/31. NGOs must apply for consultative status at the Committee on NGOs, which implements these resolutions and approves applications. Among other things required to gain consultative status, organizations are required to demonstrate that their mandate is relevant to the work of ECOSOC, that they operate with a democratic decision-making structure, and that they have officially been in existence for at least two years.

____________________________________________________________

NOTES

For further reading on theme procedures, see:

Amnesty International, Human Rights Thematic Mechanisms, AI Index: IOR 40/009/2002 (2002), available at http://news.amnesty.org/library/Index/ENGIOR400092002?open&of=ENG-346;

Marc Bossuyt, The Development of Special Procedures of the United Nations Commission on Human Rights, 6 Hum. Rts. L.J. 179, 194-99 (1985);

John Crook, The Fiftieth Session of the UN Commission on Human Rights, 88 Am. J. Int’l L. 806 (1994);

John R. Crook, The Fifty-First Session of the UN Commission on Human Rights, 90 Am. J. Int’l L. 126, 128 (1996);

Michael J. Dennis, Human Rights in 2002: The Annual Sessions of the UN Commission on Human Rights and the Economic and Social Council, 97 Am. J. Int’l L. 189 364 (2003);

Caroline Dommen, The UN Human Rights Regime: Is it Effective?, 91 Am. Soc’y Int’l L. Proc. 460 (1997);

Joan Fitzpatrick, UN Action With Respect to "Disappearances? and Summary or Arbitrary Executions, 5 AIUSA Legal Support Network Newsletter 35 (Fall 1988);

Camille Giffard, The Mechanisms and Procedures: United Nations, in The Torture Reporting Handbook: How to Document and Respond to Allegations of Torture Within the International System for the Protection of Human Rights (2000) (explaining relevant thematic procedures), available at http://www.essex.ac.uk/torturehandbook/handbook/part_iii_4.htm;

Patrick James Flood, The Effectiveness of UN Human Rights Institutions (1998);

A Guide to Human Rights: Institutions, Standards, Procedures (Janusz Symonides & Vladimir Volodin eds., 2003);

Guide to International Human Rights Practice (Hurst Hannum ed., 4th ed. 2004);

Jeroen Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (2006);

Allison L. Jernow, Note, Ad Hoc and Extra-Conventional Means for Human Rights Monitoring, 28 N.Y.U. J. Int’l L. & Pol. 785 (1996);

Menno Kamminga, The Thematic Procedures of the U.N. Commission on Human Rights, 34 Netherlands Int’l L. Rev. 299 (1987);

Office of the High Commissioner for Human Rights, Manual of the United Nations Human Rights Special Procedures [Draft] (2006), http://www.ohchr.org/english/bodies/chr/special/docs/Manual_English.doc;

Office of the High Commissioner for Human Rights, “The Advent of a World…? [Seventeen Frequently Asked Questions about United Nations Special Rapporteurs] (2001), http://www.ohchr.org/english/about/publications/docs/factsheet27.pdf;

Penny Parker, A Summary of the Major Developments at the 1995 Session of the U.N. Commission on Human Rights, Held in Geneva, Switzerland, From January 30 to March 10, 1995, (1995) available at http://hrlibrary.umn.edu;

Nigel Rodley & David Weissbrodt, United Nations Non-Treaty Procedures for Dealing with Human Rights Violations, in Guide to International Human Rights Practice 65 (Hurst Hannum ed., 4th ed. 2004);

Nigel Rodley, The Treatment of Prisoners Under International Law (2d ed. 1999);

Nigel Rodley, United Nations Action Procedures Against “Disappearances,? Summary or Arbitrary Executions, and Torture, 8 Hum. Rts. Q. 700 (1986);

Nigel Rodley, United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights-Complementarity or Competition?, 25 Hum. Rts. Q. 882 (2003);

John Scott-Murphy, Human Rights Defender’s Manual (1994);

Special Rapporteur on Violence Against Women Submits Preliminary Report, 9 Interights Bulletin 7 (Spring 1995);

Elsa Stamatopoulou, The Development of United Nations Mechanisms for the Protection and Promotion of Human Rights, 55 Wash. & Lee L. Rev. 687 (1998);

Janusz Symonides, Human Rights: International Protection, Monitoring, Enforcement (2003);

Bret Thiele & Mayra Gomez, A Review of the Fifty-Sixth Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights, 23 Neth. Q. Hum. Rts. 138 (2005);

Katarina Tomasevski, Has the Right to Education a Future within the United Nations? A Behind-the-Scenes Account by the Special Rapporteur on the Right to Education 1998-2004, 5 Hum. Rts. L. Rev. 205 (2005);

U.N. Centre for Human Rights, Enforced of Involuntary Disappearances, Fact Sheet No. 6, (1989);

U.N. High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Effective Functioning of Human Rights Mechanisms (2006), http://www.ohchr.org/english/bodies/chr/special/docs/13threport.AEV.pdf;

U.N. High Commissioner for Human Rights, Thematic Mandates, at http://www.unhchr.ch/html/menu2/7/b/tm.htm [links to all the thematic mandate websites];

David Weissbrodt, The Three “Theme? Special Rapporteurs of the UN Commission on Human Rights, 80 Am. J. Int’l L. 685 (1986);

David Weissbrodt and Penny Parker, Orientation Manual: The U.N. Commission on Human Rights, its Sub-Commission, and Related Procedures (1993);

Women, Law & Development & Human Rights Watch Women’s Rights Project, Women’s Human Rights Step by Step: A Practical Guide to Using International Human Rights Law and Mechanisms to Defend Human Rights (Margaret A. Schuler & Dorothy Q.Thomas eds., 1997).
_______________________________________________________________________________

Below there are several samples from the reports of thematic procedures which provide examples of how the thematic procedures operate and how they have dealt with the situation in Myanmar. Some older reports have been retained whenever Myanmar has not been significantly mentioned in recent reports.

Report of the Working Group on Arbitrary Detention, U.N. Doc. E/CN.4/2001/14 (2000):

51. By note of 27 September 2000, the Government of Myanmar submitted observations on the case of James Mawdsley, in respect of whom the Group had adopted Opinion No. 25/2000 on 14 September 2000. The Government’s submission amounts not to a challenge of the Opinion but a belated submission on the merits. It confirmed that James Mawdsley had entered the country three times, in its opinion illegally, and added that his second deportation from Myanmar in 1998 was subject to the condition that if he entered the country again - which occurred in August 1999 - he would serve his suspended prison sentence. It confirmed that Mr. Mawdsley is currently serving a 17-year prison term.

52. The Government noted that Mr. Mawdsley was serving his sentence at Kyaing Ton prison, that he was in good health, and that he was granted all the rights to which prisoners are entitled under the Prison Act, including visiting rights; thus, he was said to havereceived 16 family visits and 25 consular visits.

53. The Working Group has noted the observations of the Government of Myanmar. It notes
that with the exception of the observation that Mr. Mawdsley’s second deportation in 1998 was conditional in that if he entered the country again he would be required to serve his sentence, none of the source’s allegations have been refuted by the Government. In the circumstances, the Working Group sees no reason to change its conclusion that the detention of James Mawdsley was arbitrary. [Mr. Mawdsley was released from prison on 19 October 2000 and returned to the United Kingdom, after intercessions on his behalf by the Government of the United Kingdom of Great Britain and Northern Ireland and the French Presidency of the European Union.]

5. Communications giving rise to urgent appeals

55. During the period under review the Working Group transmitted 107 urgent actions
to 45 Governments (as well as to the Palestinian Authority) concerning 499 individuals. In
conformity with paragraphs 22-24 of its methods of work, the Working Group, without
prejudging whether the detention was arbitrary, drew the attention of each of the Governments concerned to the specific case as reported and appealed to it to take the necessary measures to ensure that the detained persons’ right to life and to physical integrity were respected. When the appeal made reference to the critical state of health of certain persons or to particular circumstances, such as failure to execute a court order for release, the Working Group requested the Government concerned to undertake all necessary measures to have them released.

56. During the period under review, urgent appeals were transmitted by the Working Group as follows (the number of persons concerned is given in parentheses): 9 appeals to the Democratic Republic of the Congo (76); 8 appeals to the Palestinian Authority (55); 6 to the Russian Federation (39, including a generic one on the situation in Chechnya); 5 to Israel (23); 5 to Myanmar (20); 5 to Indonesia (15, including a generic appeal on the situation in Aceh province); 4 to the Islamic Republic of Iran (5); 4 to Pakistan (4); 5 to the Sudan (16); 4 to Turkey (17); 3 to Bahrain (14); 3 to Cameroon (5); 3 to China (6); 2 to the Lao People’s Democratic Republic (18); 2 to Burundi (8); 2 to Ethiopia (23); 2 to India (18); 2 to Mexico (5); 2 to Turkmenistan (2); 2 to Uzbekistan (2); 2 to Viet Nam (10); 2 to Yugoslavia (6); 1 to Angola (1); 1 to Argentina (1); 1 to Azerbaijan (1); 1 to Bolivia (19); 1 to Brazil (1); 1 to Burkina Faso (6); 1 to Costa Rica (2); 1 to Cuba (1); 1 to Egypt (1, concerning victim in Opinion No. 10/1999); 1 to Haiti (1); 1 to Kyrgyzstan (1); 1 to the Libyan Arab Jamahiriya (8); 1 to Maldives (3); 1 to Malaysia (52); 1 to Mauritania (5); 1 to the Republic of Moldova (4); 1 to Nigeria (8); 1 to Romania (1); 1 to Rwanda (1); 1 to Saudi Arabia (1); 1 to Sri Lanka (1); 1 to Tunisia (1); 1 to Ukraine (1); and 1 to the United Arab Emirates (1).

57. Of these urgent actions, 70 were appeals issued jointly by the Working Group and other
thematic or geographical special rapporteurs. These were addressed to the Governments of Angola, Azerbaijan, Bahrain (2), Bolivia, Brazil, Burkina Faso, Burundi (2), Cameroon, Cuba, the Democratic Republic of the Congo (9), Ethiopia (1), India (1), Indonesia (5), the Islamic Republic of Iran (4), Israel (2), the Lao People’s Democratic Republic, Malaysia, Maldives, Mexico (2), Myanmar (4), Nigeria, Pakistan (2), the Russian Federation (5), Rwanda, the Sudan (4), Turkey (3), Turkmenistan (2), Uzbekistan (2) and Viet Nam (1); seven joint appeals were addressed to the Palestinian Authority. . . .

77. The Group was apprised of the fate of 22 women in 14 countries. Thus, it adopted Opinion No. 30/2000 on the case of Rebiya Kadeer, a businesswoman detained in Xinjiang (Autonomous) Region, China; addressed an urgent appeal to the Government of Myanmar in the case of Nobel laureate Aung San Suu Kyi, who had been placed under house arrest after a stand-off with the Government in September 2000 and whose case had already previously prompted the Working Group to adopt Deliberation No. 1 (see E/CN.4/1993/24); dealt with the cases of several women detained and reportedly ill-treated at the former Al-Khiam detention centre in southern Lebanon, including journalist Cosette Ibrahim; and that of Ngawang Sandrol, a Tibetan nun detained in a Chinese penitentiary for having militated for Tibetan autonomy, and in respect of whom the Group adopted Opinion No. 28/2000. . . .

* * * * *

Report by the Special Rapporteur on the right to food, Mr. Jean Ziegler, submitted
in accordance with Commission on Human Rights resolution 2004/19, U.N. Doc. E/CN.4/2005/47 (2005): . . .

13. The Special Rapporteur has also made repeated requests to undertake country missions to the Democratic People’s Republic of Korea and Myanmar, but has received no response from these Governments . . . The Special Rapporteur has also written to Governments seeking information on alleged violations of the right to adequate food, including regarding particular cases in India, Myanmar and the Philippines. Replies from the Governments concerned, expect for the Governments of India and Romania, were still awaited at the time this report was submitted. . . .

* * * * *

Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, Report submitted by the Special Rapporteur Mrs. Fatma-Zohra Ouhachi-Vesely, U.N. Doc. E/CN.4/2001/55/Add.1 (2000):

Case 1997/1 - France and the United States/Myanmar

62. According to the communication received, in Myanmar, Total - together with Unocal, a Los Angeles-based oil and gas multinational, and Texaco - collaborated with the Government of Myanmar in an offshore natural gas project. Reportedly, Texaco’s pipeline was to run parallel to a pipeline being built by Unocal and Total. In order to construct a pipeline through the rainforest, the army declared “free-fire zones? in which soldiers were authorized to shoot civilians, including members of the Karen tribe, an indigenous ethnic minority group whose
homeland was the pipeline area. Indigenous peoples were forced to work on clearing forest areas to prepare them for oil and gas exploration and transportation. All of the victims were thought to be Karen; some of them had been evicted from the location of the planned pipeline to areas where means to earn a living were scarce (E/CN.4/1997/19, para. 47).

63. The French authorities replied that they did not consider this to be a case of illicit dumping of toxic or dangerous products and wastes. The case therefore exceeded the mandate as defined in resolution 1995/81 (E/CN.4/1998/10/Add.1).

64. The Government of Myanmar replied that Myanmar was neither a State where illicit traffic of toxic or dangerous products and wastes originated nor a State recipient of such traffic. The natural gas fields in the Gulf of Mottamma were being developed with the participation of Total (France), Unocal and Texaco (United States) and some other foreign oil companies. The route selected for the gas pipeline was the one that posed the least threat to the environment, and it did not pass through any village. The two foreign oil companies involved in the project actually helped the people living along the route of the pipeline by providing new economic opportunities for the villagers, thus improving significantly the lives of the local populace. Independent media persons and concerned officials from Western countries made extensive tours of the areas in question and none of these sources supported any of the allegations mentioned in the report (E/CN.4/1998/10/Add.1). . . .

* * * * *

Civil and Political Rights, Including Religious Intolerance, Report submitted by Ms. Asma Jahangir, Special Rapporteur on freedom of religion or belief, U.N. Doc. E/CN.4/2005/61/Add.1 (2005): . . .

Myanmar

Communications and replies received

171. On 3 November 2004, the Special Rapporteur transmitted a communication to the Government of Myanmar regarding the reports indicating that discrimination against religious groups by different government agencies had continued in 2004. Christian communities (ethnic Karen, Karenni, Chin, Kachin) as well as Muslim ones (Rohingya, etc.) alleged that there were systematic attempts to undermine their religious identities and restrict the conduct of religious activities.

172. According to these reports, the military had destroyed churches, had tried forcibly to convert Christians to Buddhism, and continued to use Christians for forced labour. Also, several crosses in ethnic Chin areas were destroyed in 2004 (e.g. in April in Matupi), allegedly in order to be replaced by Buddhist pagodas. There were also reports that religious communities and religious gatherings were systematically hindered by authorities.

173. Rohingyas, members of a Muslim minority, were regularly refused citizenship by the Government on the grounds that their ancestors allegedly did not reside in the country when colonial rule ended. This negatively impacts on other rights, such as access to secondary education and employment as civil servants. They also faced restrictions of their freedom of movement and were victims of forced labour. There were reports of the systematic eviction of Muslims from their villages, which were afterwards taken over for settlement of members of the Buddhist majority for so called “model villages?. In the course of these evictions, mosques had been destroyed and replaced by Buddhist pagodas (e.g. in May 2004 in Maungdaw township). . . .

* * * * *

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Ambeyi Ligabo, submitted in accordance with Commission resolution 2002/48, U.N. Doc. E/CN.4/2003/67/Add.1 (2003): . . .

Myanmar

Communications sent

389. On 1 February 2002, the Special Rapporteur sent a joint urgent appeal with the Chairman-Rapporteur of the Working Group on Arbitrary Detention concerning Dr. Salai Than Tun, retired rector of Yezin University, who was reportedly detained in December 2001 while distributing petitions calling the military Government to return power to civilian rule. He was allegedly handing out copies of his petition in front of Yangon Town Hall in his academic gown when he was arrested.

390. On 14 June 2002, the Special Rapporteur sent an urgent appeal jointly with the Special Rapporteur on torture concerning Khin Maung Win (Sunny), a photographer and cameraman, who was reportedly transferred on 21 May 2002 to an undisclosed destination by Kalay prison’s authorities, after he, together with Khun Myint Tun, an elected Member of Parliament of the National League for Democracy (NLD) and at least 25 prisoners held on alleged political charges were found guilty of starting a hunger strike in support of their demands for the release of all prisoners held on alleged political charges. It is reported that a protest movement had started on 16 May in that prison - where Sunny has been held since August 1997 after being sentenced to seven years’ imprisonment for his part in making a video of an interview with Aung San Suu Kyi and smuggling it out of the country.

391. On 26 July 2002, the Special Rapporteur sent an urgent appeal jointly with the Special Rapporteur on torture and the Special Rapporteur on the situation of human rights in Myanmar, concerning U Win Tin, a journalist serving the thirteenth year of a 20-year sentence for various subversion charges, including anti-government propaganda, in Yangon’s Insein prison. According to information received, the health of U Win Tin was seriously deteriorating and he was not provided with the medications recommended by the prison doctor. . . .

Communications received

395. On 21 March 2002, the Government replied to the Special Rapporteur’s communication
of 1 February 2002, indicating that Dr. Salai Tun Than was detained on 29 November 2001 for shouting anti-government statements at the Bandoola Park in Yangon, and for distributing
seditious pamphlets in order to create public disorder and unrest. He was given a fair trial and after completion of the legal proceedings, was found guilty and sentenced on 5 February 2002 to seven years’ imprisonment under section 5 (j) of the Emergency Provisions Act.

396. On 23 September 2002, the Government replied to the Special Rapporteur’s
communication dated 26 July 2002 concerning U Win Tin and indicated that he is serving three separate sentences at the Insein prison: a first three-year sentence dating from 3 October 1989 for abetting and hiding a person guilty of an illegal abortion and absconding from the law; a second 10-year imprisonment and hard labour sentence on 28 May 1001 by the Yangon Division Military Tribunal No. 4 for seditious statements under the Emergency Act; and a third seven-year sentence on 28 March 1996 under the Emergency Act for writing anti- government articles while he was in jail. . . .

397. On 31 October 2002, the Government replied to the Special Rapporteur’s communication dated 14 June, indicating that Khin Maung Win (Sunny) was sentenced on 15 August 1997 to seven years’ imprisonment under article 5 (j) of the Emergency Provisions Act for making connection between the KNU insurgents and Daw Suu Kyi and collecting funds for the insurgents. He went on a hunger strike on 16 May 2002 in Kalay prison, but voluntarily stopped the strike the next day. He was transferred to Loikaw prison on 21 May 2002 in the context of an internal shuffle of prisoners by the Prison Department, and is regularly visited by the Myanmar Red Cross Society.

Observations

398. The Special Rapporteur thanks the Government of Myanmar for its replies and willingness to cooperate with his mandate. However, he awaits further response to his communication of 26 July 2002. . . .

* * * * *

Report of the Special Rapporteur on the independence of judges and lawyers Dato’ Param Cumaraswamy, submitted in accordance with Commission resolution 2000/42, U.N. Doc. E/CN.4/2001/65 (2001):

Myanmar

161. The Special Rapporteur has taken note of the report of the Special Rapporteur on the Commission of Human Rights on the situation of human rights in Myanmar (A/55/359, paras. 27-29). The report stated that “the administration of justice is greatly marked by legal and factual constraints that are inconsistent with judicial independence. Not only are the courts not independent but they are also powerless in protecting the rights of victims in violations of their basic rights?. The report also noted that there was a lack of information on whether the system of the administration of justice had changed or as to whether repressive laws from the former colonial regime were no longer being applied in a manner that violated fundamental human rights.

Observation

162. The Special Rapporteur will continue to monitor the situation. . . .

* * * * *

Civil and Political Rights Including the Questions of Torture and Detention, Report of the Special Rapporteur, Mr. Theo Van Boven, U.N. Doc. E/CN.4/2005/62/Add.1 (2001): . . .

Myanmar

978. By letter dated 14 July 2004, the Special Rapporteur notified the Government that he
had received allegations concerning:

979. Zaai Ku, a 24-year-old villager from Kun Mong, Kung Mong village tract, Murng-
Mai township, who returned from Thailand where he had been working for 11 months. He
was accused of being a Shan soldier by State Peace and Development Council (SPDC) troops
stationed at Kun Mong village and arrested at his family home on 12 July 2003. While being
interrogated, he was beaten and subjected to other forms of ill- treatment.

980. Ti-Ya, aged 31, Kaw-Lin, aged 26, and Zit-Ta, aged 35, all originally from Loi
Keng village, Loi Keng village tract, Kun-Hing township but forcibly relocated to Kun-Hing
town relocation site in 1996. On 24 July 2003, they were conscripted to serve as porters by a
patrol of approximately 50 SPDC troops from Infantry Battalion (IB) 246, led by a captain
(whose name is known to the Special Rapporteur). The three men were severely beaten while
their heads were covered with plastic bags. As a result, they lost consciousness several times.

981. Zaai Kawn, a 28- year-old owner of a motorcycle taxi in Ta-Khi-Laek township. In
August 2003 he was stopped by four SPDC troops from Light Infantry Battalion (LIB) 331
who were guarding a bridge over the Nam Tum stream between Sali Ngawk and Wan Pong
villages. He was beaten until he fainted and his motorcycle was taken away. He received first aid from some villagers who found him unconscious. However, as he had serious head
wounds, he was taken to Ta-Khi-Laek township hospital. It is reported that when he tried to
lodge a complaint with the SPDC township authorities, he was told that nothing could be done because there was no witness and it was not possible to identify those responsible.

982. Lung Thawn, a 53-year-old farmer. He was severely beaten by a patrol of SPDC
troops from LIB514 on 19 August 2003, when he was weeding a rice field near Murng-Kerng
town. He was accused of being a Shan soldier and taken to the military base. He was released after community leaders guaranteed that he was not a Shan soldier and after 5,000 kyat were paid to the military. Lung Thawn suffered severe injuries resulting from the beating and was hospitalized for several weeks. . . .

984. Ms. Lung Kawn, aged 54, Lung Leng, aged 55, and Pa Ming, aged 31. They were
kicked and beaten in September 2003 by SPDC troops from LIB524 and IB246 during a
military training course in Kun-Hing township. As a result, Lung Kawn suffered a broken rib, Lung Leng sustained injuries to the torso and Pa Ming sustained bruises and sprains of the arms and legs. . . .

986. By letter dated 21 July 2004, sent jointly with the Special Rapporteur on extrajudicial, summary or arbitrary executions, and the Special Rapporteur on the right to freedom of opinion and expression, the Special Rapporteur notified the Government that he had received allegations concerning Aye Myint, Min Kyi and Shwe Mann (cited in a previously transmitted communication, E/CN.4/2004/62/Add.1, para. 546). According to new information received, during a visit by representatives of the International Labour Organization (ILO) at Insein Prison on 19 March 2004, the two detainees had told them that after their arrest, they had been interrogated for several days, deprived of food, water and sleep and beaten. After his visit, the ILO informal facilitator considered that the case “was not investigated or prosecuted in a systematic or credible way. It appeared that police or
intelligence officers initially used methods of entrapment and that the subsequent procedures
of investigation and prosecution were unsound, without any of the fundamental guarantees
necessary to produce a credible outcome.? (ILO document GB/289/8/2). Shwe Mann was
visited by ILO representatives on 25 March 2004. He is also alleged to have been beaten at
the time of his arrest and during interrogation at an MI detention centre. . . .

[987 - 990 refer to communications regarding arbitrary executions.]

[991 - 994 refer to communications regarding torture and ill treatment.]

[995 - 1008 refer to communications regarding arbitrary executions and violence against women.]

Urgent appeals

1009. On 18 October 2004, the Special Rapporteur sent a joint urgent appeal with the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special
Rapporteur on the right to freedom of opinion and expression and the Special Representative
of the Secretary-General on the situation of human rights defenders, regarding U Aye Kyu,
also known as “Monywa? Aung Shin, a former newspaper editor, U Aung Myint, also known as “Phyapon? Ni Loan Oo, a newspaper journalist, U Tun Myint, a teacher, U Naing Naing, also known as Saw Naing Naing, an elected member of Parliament, and U Soe Han, a former high court advocate, all of whom have been involved in the work of the National League for Democracy (NLD). According to the allegations received, U Aye Kyu, U Tun Myint, U Naing Naing and U Soe Han, who are currently detained in the Insein Prison, all suffer from serious health problems. U Aye Kyu specifically suffers from asthma and respiratory problems. U Aung Myint is currently held in the Kalay Prison, approximately 600 miles away from Yangon, where prisoners allegedly rely on relatives for the provision of food and medicine.

Observations

1010. The Special Rapporteur considers it appropriate to draw attention to the concerns of
the Committee on the Rights of the Child (CRC/C/15/Add.237, para. 40) about the lack of
information regarding ill-conduct of law enforcement officia ls and army personnel, especially in the light of numerous reports of torture, serious ill- treatment and sexually abuse, including rape, of children by these officials. . . .

* * * * *

Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Yakin Ertürk, U.N. Doc. E/CN.4/2005/72/Add.1 (2005) (footnotes omitted): . . .

Myanmar . . .

Allegation letter

260. By letter dated 21 September 2004, sent jointly with the Special Rapporteur on
extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture, the Special Rapporteur notified the Government that she had received the following allegations.

261. N.K., aged 30, and her husband, Z.Y., aged 40, both originally from Nawng Hai village,
Kho Lam village tract, but forcibly relocated to Kho Lam village relocation site in 1997. On 17 September 2003, Z.Y. was taken away from their farm by a group of men believed to be SPDC soldiers. Half an hour later, a patrol of approximately 50 SPDC troops from Infantry Battalion (IB) 246 came to the farm and interrogated N.K. about the whereabouts of her husband. When she told them that he had been abducted by unknown soldiers, she was accused of being the wife of a Shan soldier. She was reportedly beaten, kicked and gang-raped. She lost consciousness several times. After the troops left the farm, some villagers assisted her. As her condition worsened after this assault, she eventually fled to Thailand to receive medical treatment. She reportedly died on 29 March 2004 in Chiangrai provincial hospital, in Thailand. As far as the Special Rapporteurs have been informed, the whereabouts of her husband are still unknown. . . .

263. S.Z.-N. a 45-year-old villager from Pang Sa, and his pregnant wife, N.N., as well as another woman, N.Z. S.Z-N. was shot dead by a patrol of SPDC troops from the 55th Division near Paang Sa village, Loi La village tract, Nam-Zarng township, on 23 August 2003, when he was fetching water from the Nam Taeng river. On 26 August 2003, a column of the same SPDC troops arrested N.N. in Paang Sa village and took her to Ta Zao Murng, a Nam Taeng river harbour. Another woman, N.Z., encountered on their way, was taken with them. Once there, the two women were interrogated about boats in the area and severely beaten with bamboo sticks. They were also threatened with death. They were later released. As a result of the beatings, N.N. suffered from internal injuries and had a miscarriage.

264. N.K. aged 22, and her sister, N.L. aged 19. They were raped by a patrol of SPDC troops from Lai-Kha-based LIB 515 on 16 October 2003, when they were harvesting rice at their farm in Wan Zing village tract. Their father was tied to a tree. Afterwards, the two sisters were taken to a forest by the troops. Their dead bodies were found by villagers some days later, dumped in a hole. . . .

266. P.O., a 40-year-old woman with mental disability, originally from Khur Nim village but
who had been forcibly relocated to Maak Laang village. In late 2003, she was forcibly seized by SPDC troops from LIB 515 in Maak Laang village. She was dragged out of the village and gang raped by the soldiers. She reportedly died four days later. . . .

Urgent appeal

268. On 20 April 2004, the Special Rapporteur sent an urgent appeal jointly with the
Chairperson-Rapporteur of the Working Group on Arbitrary Detention and the Special
Rapporteur on the situation of human rights in Myanmar concerning two rape victims, M.S.S.A. and M.A.M.S., who were imprisoned for attempting to charge the alleged perpetrator of the crime. They were allegedly raped on 25 and 26 November 2002 . . .. M.S.S.A. was reportedly aged 15 at the time of the incident. On 19 December 2002, the alleged perpetrator was charged with rape. However, it is reported that he was not arrested, nor was he brought before an official judicial body. Instead, the police sought the advice of the Pyapon District Law Office, which allegedly recommended that the charges against this official be dropped and that charges be brought against the two women for falsely accusing a government officer. On 20 October 2003, the two women were sentenced to four years’ imprisonment on charges of falsely accusing a government officer. During the trial, M.S.S.A., still a child, was reportedly treated as an adult. The source adds that this incident is part of a larger pattern of rape with impunity by officials and soldiers, which can, as in this case, even lead to the prosecution of the victims.

Government reply

269. By letter dated 22 October 2004, the Government reported that on 21 November 2002,
M.S.S.A. and M.A.M.S. were summoned and given warning by the Village Peace and
Development Council Chairman when village heads reported their indecent behaviour with a
man in an abandoned house. On 26 November, they filled a complaint at the police station in
Kyonkadoon village against another man for having raped them. The two women allegedly
blackmailed the daughter of the man to withdraw the complaint against her father. The man then filed a complaint against the girls for blackmail. They were found guilty and sentenced to four years’ imprisonment on 23 October 2003. The man they accused is aged 76. He has always been actively involved in the social and religious affairs of the village. He has no background of misconduct throughout his life.

Observation

270. The Special Rapporteur would like to thank the Government for its reply. While
acknowledging that the accused has always been actively involved in the social and religious
affairs of the village, the Special Rapporteur would like to stress that this should not prevent the authorities from conducting a proper investigation into the accusations brought against him. . . .
_______________________________________________________________________

4. Human Rights in Transition: the Human Rights Council

As this chapter has previously noted, U.N. procedures for dealing with violations of human rights are in a process of change and will likely continue evolving for the next several years. This reform process presents the student of human rights with several difficult questions, such as: What are the current U.N. procedures for addressing violations of human rights? Does a human rights protection gap exist during this period of transition? How can NGOs and other interested members of civil society positively influence the formation of new U.N. procedures?

This section provides the student with a map of the current human rights terrain under the supervision of the Human Rights Council, which will offer guidance in answering the aforementioned questions. Students can use this map to navigate the future sessions and debate that will shape the Human Rights Council during the coming years. The challenge for the student will be to identify U.N. procedures advancing the protection of human rights while avoiding regressive procedures, some of which are a legacy of the former Commission. The following chart compares the structure and mechanisms of the former Commission against the structure and mechanisms of the Council.

 

 

 

Membership

KEY: WEOG = Western Europe and Other Groups; GRULAC = Group of Latin American and Caribbean States
Commission on Human Rights Human Rights Council
53 Member States

Balance of five regional groups:
• 15 Members - Africa (28%)
• 12 Members - Asia (23%)
• 5 Members - Eastern Europe (9%)
• 11 Members - GRULAC (21%)
• 10 Members - WEOG (19%)

Elected for three year terms by ECOSOC
• No consideration of candidate’s contribution to promotion and protection of human rights
• No term limits on membership

• Membership cannot be suspended 47 Member States

Balance of five regional groups:
• 13 Members - Africa (27%)
• 13 Members - Asia (28%)
• 6 Members - Eastern Europe (13%)
• 8 Members - GRULAC (17%)
• 7 Members - WEOG (15%)

Elected for three year terms by GA
• Consideration of candidate’s voluntary pledge and contribution to promotion and protection of human rights
• Member cannot serve more than two consecutive three year terms
• Member committing gross and systematic violations of human rights can be suspended by two-thirds vote of the GA
Bureau
Commission on Human Rights Human Rights Council
Pre-1990s Commission elected a Bureau
• Chairperson
• Three vice-chairpersons
• Rapporteur

Late 1990s Commission elected an expanded Bureau:
• Chairperson
• Three vice-chairpersons
• Rapporteur
• Five coordinators, one for each regional group The Council must elect [at a minimum]:
• President
• Two vice-presidents
• Rapporteur

The Council can choose to elect an expanded Bureau
Meeting Schedule
Commission on Human Rights Human Rights Council
Pre-1995 Commission met for six weeks in Geneva beginning late January / early February

1995 - 2005 Commission met for six weeks in Geneva beginning March / April
Minimum of three sessions for no less than ten weeks to be held in Geneva
Procedures Available for Human Rights Violations
Commission on Human Rights Human Rights Council
Public procedure
• ECOSOC Resolution 1235

Private procedure
• ECOSOC Resolution 1503

Independent Body of Experts
• Sub-Commission for the Promotion and Protection of Human Rights Public Procedure to be reviewed by the Council
• ECOSOC Resolution 1235

Private Procedure to be reviewed by the Council
• ECOSOC Resolution 1503

Independent Body of Experts
• GA Resolution 60/251 OP-6 refers to maintaining a system of expert advice
Special Sessions
Commission on Human Rights Human Rights Council
Request by one member and supported by majority of members of Commission
• First: Yugoslavia (1992, 2 days)

• Second: Yugoslavia (1992, 2 days)
• Third: Rwanda (1994, 2 days)
• Fourth: East Timor (1999, 5 days)
• Fifth: Palestinian people (2000, 3 days)
Request by one member and support of one-third of membership of Council
• First: Occupied Palestinian Territories (2006, 2 days)
• Second: Lebanon / Israeli conflict (2006, 2 days)

 

Thematic Procedures, Country Specific Mandates, and the UPR

KEY: SR = Special Rapporteur; SRSG = Special Representative of the Secretary General; WG = Working Group; IE = Independent Expert; PR = Personal Representative; HCHR = High Commissioner for Human Rights
Commission on Human Rights Human Rights Council
5 Country Specific Mandates
(1) SR on Belarus
(2) PR of HCHR on Cuba
(3) SR on Democratic People’s Republic of Korea
(4) SR on Myanmar
(5) SR on Occupied Palestinian Territories
5 Country Specific Mandates
• Mandates from the Commission extended for one year starting June 2006
28 Thematic procedures
(1) WG on Enforced or Involuntary Disappearances (1980)
(2) SR on summary or arbitrary executions (1982)
(3) SR on torture (1985)
(4) SR on religious intolerance (1986)
(5) SR on the sale of children (1990)
(6) WG on Arbitrary Detention (1991)
(7) SRSG on internally displaced persons (1993)
(8) SR on racism and xenophobia (1993)
(9) SR on freedom of opinion and expression (1993)
(10) SR on violence against women (1994)
(11) SR on the independence of judges and lawyers (1994)
(12) SR on toxic waste (1995)
(13) SR on the right to education (1998)
(14) IE on human rights and extreme poverty (1998)
(15) SR on the human rights of migrants (1999)
(16) IE on structural adjustment policies and foreign debt (2000)
(17) SR on human rights defenders (2000)
(18) SR on the right to food (2000)
(19) SR on adequate housing (2000)
(20) SR on indigenous people (2001)
(21) WG on people of African descent (2002)
(22) SR on physical and mental health (2002)
(23) SR on trafficking in persons (2004)
(24) WG on Use of Mercenaries (2005)
(25) IE on minority issues (2005)
(26) IE on solidarity (2005)
(27) SR on terrorism (2005)
(28) SRSG on transnational corporations (2005) 28 Thematic procedures
• Mandates from the Commission extended for one year starting June 2006

Universal Periodic Review guiding principles:
• Be based on objective and reliable information
• Involve an interactive dialogue
• Be a cooperative mechanism
• Ensure universality of coverage and equal treatment
• Have full involvement of the country concerned
• Take into consideration the capacity building needs of the country.
• Not duplicate the work of the treaty bodies

 

 

a. Institutional Changes Affecting the 1503 Procedure

In 2006, the Human Rights Council extended exceptionally for one year the mandates and mandate-holders of the 1503 procedure (XLVIII). The Council also requested the 1503 procedure to continue its work until the Council is able to undertake a review of the procedure. Pursuant to GA resolution 60/251 operative paragraph 6, the Council is required “to maintain a . . . complaint procedure . . .? This requirement leaves the Council with three choices: authorize the 1503 procedure to continue unchanged, improve upon the existing procedure and rationalize any changes made, or create an entirely new complaint procedure. The 1503 procedure is the oldest U.N. human rights complaint mechanism, so the Council may wish to update it in light of advances made by other complaint procedures. The following description of the advantages and disadvantages of the 1503 procedures highlights the issues the Council must consider in maintaining a complaint procedure:

International Services for Human Rights & Friedrich Ebert Stiftung, Complaint Procedure, in A New Chapter for Human Rights: A Handbook on Issues of Transition From the Commission on Human Rights to the Human Rights Council, 66-67 (Meghna Abraham, 2006)(footnotes omitted): . . .

The 1503 procedure was a limited mechanism. Unlike most complaint procedures, it did not offer any direct relief for victims. Its main advantages were that 1) it acted as a channel through which any victim, NGO, or other individual could directly submit information to the Commission to bring their concerns about human rights violations to its attention; 2) the submission of information on particular violations under the 1503 procedure often helped lead to the [former] Commission setting up a public procedure to deal with the issue; 3) it was part of an incremental technique for “placing gradually increasing pressure on offending governments?; 4) it was one of the few forums available to submit complaints regarding governments that have not ratified many human rights treaties or agreed to treaty bodies receiving communications; and 5) the prospect of being named under the 1503 procedure could be embarrassing for the concerned government.

Its main disadvantages were that: 1) the lack of remedies or even information about outcomes to victims; 2) “the Commission has only responded to violations of only a limited range of civil and political rights, which in turn has ensured that while Third World countries are disproportionately represented on the 1503 blacklist, developed countries (both West and East) have only very rarely been called into account?; 3) violations of economic, social and cultural rights have never been examined seriously; 4) at the level of both the Sub-Commission and the Commission, political considerations have led to a failure to act on serious country situations and against some governments; 5) selectivity and double standards in the choice of countries that were referred and in its decisions led to the Commission investigating “political detention in one case while disregarding more egregious mass killings in another?; 6) it was time-consuming, slow, had complex procedures, and gave unequal opportunities of participation to States in comparison to complainant; and 7) the secrecy of the proceedings worked to the advantage of the concerned State and also shielded the members of the Commission from scrutiny of their decisions.

* * * * *

b. Review of Mandates

GA resolution 60/251 requires the Council to undertake a review of all mandates “in order to maintain a system of special procedures, expert advice, and a complaint procedure.? The Council, during its first session, adopted two resolutions to begin work on the review process. The first decision provisionally extended “the mandates, mechanisms, functions and responsibilities? of the former Commission for one year beginning in June, 2006. U.N. Doc. A/HRC/1/Dec/102 (2006). The second decision created a Working Group to “assume, review, and where necessary, improve and rationalize? the mandates received from the Commission. U.N. Doc. A/HRC/1/Dec/104 (2006). This Working Group has broken its task into three main areas: (1) consideration of all outstanding reports submitted by the Commission, the Commission’s sub-bodies, Special Procedures, and the 1503 procedure, (2) holding of open-ended informal discussions regarding possible improvements to the major mandate categories (Special Procedures, 1503 procedure, and the Sub-Commission), and (3) creation of a final report recommending specific actions to be taken by the Council. Discussions within the Working Group indicate a growing consensus that the Sub-Commission should continue in a similar fashion to the past and that the 1503 procedure needs reform. Consensus has not been reached regarding Special Procedures, some states attack them as too numerous and politically motivated while other states praise them as a necessarily complex system that should only be revised to remove overlap and fill in protection gaps.

c. Universal Periodic Review

The UPR authorized in GA resolution 60/251 represents a major innovation as compared with the former Commission. As discussed earlier, see p. 10 supra, U.N. procedures dealing with violations of human rights have slowly evolved from a “no power? approach to a constructive engagement approach. The Universal Periodic Review envisions a process of constructive engagement by virtue of its mandate and guiding principles. First, the language in GA resolution 60/251 mandates constructive engagement by using the phrases “interactive dialogue,? “cooperative mechanism,? and “full involvement of the country concerned.? Second, the guiding principles behind the UPR are universality, impartiality, objectivity, and non-selectivity. It is in this engagement context that the Council has referred to the UPR as a capacity building mechanism that will help states to enhance an existing, but poorly implemented human rights commitment.

The UPR is truly universal since it applies to all states, not just members of the Council. The goal is to ensure that human rights obligations will be reviewed worldwide, regardless of specific treaty obligations. The starting point of the review process will be the voluntary pledges that states submitted during their campaigns to be elected as members of the Council. The universal scope of the UPR will likely quiet the accusations of double-standards and politization that plagued the former Commission. The universal breadth of the UPR, however, poses several operational problems. For example, if the UPR were to review thirteen states per year (a reasonable number suggested by many states), the Council would review each state approximately once every fifteen years. As the treaty-body review mechanisms have demonstrated, see supra chapter 4, a time horizon of fifteen years may be so long as to cripple the vision and effectiveness of the UPR process. Several other key issues surrounding the UPR include:
(1) Which among member states, the OHCHR, treaty bodies, special procedures, national institutions, intergovernmental organizations (IGOs), and NGOs should contribute to the process?
(2) What information other than the voluntary pledges should be considered in the review process?
(3) What universal standard of review could the UPR adopt while keeping in mind the cultural and capacity differences that exist between developed and developing states?
(4) What follow-up procedures should exist to ensure that recommendations of the UPR are implemented?
(5) How can the UPR avoid duplicating the work of the existing treaty-bodies?
Many of these questions will need to be answered soon since the Working Group on UPR is required to develop the modalities and schedule of review for the UPR within one year of the Council’s inaugural session.

d. Special Sessions

Immediately following its inaugural session in June 2006, the Council held two special sessions on the topics of Palestine and Lebanon. See Report on the First Special Session of the Human Rights Council. U.N. Doc. A/HRC/S-1/3 (2006); Report of the Human Rights Council on its Second Special Session. U.N. Doc. A/HRC/S-2/2 (2006). The Council used for the first time the significantly diminished margin of only one-third of its members required to convene special sessions. Both special sessions dispatched fact-finding missions: one to the occupied Palestinian territories and the other to Lebanon. The Commission, in contrast to the Council, convened only five special sessions since the 1990 ECOSOC resolution that authorized it to meet exceptionally at the request of a majority of its members. In the future, members may utilize the simplified procedures regarding special sessions to request the Council to convene more frequently than the former Commission.

5. Further Remarks on 1235, 1503, Country Rapporteurs, Theme Procedures, and the Security Council

In 2006, the Security Council by a vote of ten in favor to four against (China, Congo, Qatar, Russian Federation) with one abstention (United Republic of Tanzania) added “the situation in Myanmar? as a new item to its agenda. This action suggests that the serious human rights situation in Myanmar – including internally displaced persons, abuse of political prisoners, and forced labor – may constitute a threat to the peace. Certainly the Security Council’s determination contributes yet another context in which a Charter-based organ may monitor developments in Myanmar, may receive information from NGOs, and may take action.

In cases of human rights violations such as Myanmar, advocates must choose between: (1) making an oral presentation to the Human Rights Council under resolution 1235, (2) encouraging a governmental representative or an NGO to make an oral presentation, (3) seeking the establishment of a country rapporteur or expert under 1235, (4) providing information to a country rapporteur or expert already established by resolution 1235, (5) submitting a communication under the confidential procedure established by resolution 1503, and (6) providing information to a thematic working group or special rapporteur. Each mechanism has the purpose of promoting and protecting human rights and can be used in regard to any country, regardless of whether they have ratified a particular treaty or consented to the monitoring procedures.

Resolution 1235 is effective in situations wherein prompt publicity, public action, and continuous monitoring are required. Oral presentations to the Council can be made by accredited NGOs. An oral presentation will be more effective than submitting a communication through the 1503 process when prompt attention is needed. Positive results of making an oral presentation include general hortatory resolutions passed by the Council and publicity. The publicity may motivate the government to solve the problem on its own.

Quick, public action results from a successful campaign to establish a country mechanism. Country rapporteurs have been successful at publicizing human rights violations, collecting information, and encouraging governments to end human rights violations. Establishing a country rapporteur, however, is a difficult task.

The U.N. Secretariat may refuse to circulate a written NGO intervention about a specific country, unless that country is already on the 1235 agenda for the Council or the written statement is carefully crafted to deal with a human rights issue as to which the country is mentioned only as one of several examples. A written intervention about violations in a country not already on the agenda will ordinarily be received as a complaint under resolution 1503. Also, to mention the complaint in public discussion under 1235 risks an objection that the advocate has violated the confidentiality assured by 1503. In addition, one should note that country rapporteurs have limited monetary and human resources available, which affects their ability to carry out their mandate adequately.

Providing information to an established country rapporteur or expert, while an indirect way of influencing U.N. action, is a relatively simple procedure. Individuals, groups, NGOs, and governments may offer information on human rights violations. If a 1235 procedure has been established, this option is often better than submitting a communication under 1503, as it is faster and can draw public attention. It is also available to individuals, unlike the 1503 procedure.

The 1503 process may encourage governments to engage in an exchange of views and possibly to improve the situation without the glare of substantial publicity. It affords an incremental technique for placing gradually increasing pressure on offending governments. Many governments, including the U.S., regularly respond to 1503 communications. They may not provide a substantive answer to public criticism heard at the Council, because they have insufficient opportunity during the busy debate (under resolution 1235) to research and submit a good response. Also, unless there is a substantial consensus for action under 1235, governments may realize the public criticism can safely be ignored. In addition, a few governments are so offended by public criticism that they stubbornly refuse to take action to improve the situation. Hence, the 1503 procedure may sometimes afford a better opportunity for constructive dialogue than the public 1235 process. Until 1989 Iran was an example of a country which was intransigent in the face of public actions under 1235. It is doubtful, however, that Iran would have been more responsive under 1503. See supra chapter 5.

Resolution 1503 was created to handle continuing patterns of gross violations of human rights. If a consistent pattern can be shown, therefore, the confidential procedure may be a good choice. Although 1503 was not designed to deal with individual cases, however, U.N. officials familiar with the 1503 process indicate that large numbers of individuals have petitioned the U.N. pursuant to resolution 1503 and have obtained relief. The 1503 process may be helpful to individual victims whose government has not accepted the individual complaint procedure established by the Optional Protocol to the Civil and Political Covenant, even though such individual communications under resolutions 728F and 1503 will not likely be referred to the Council. For example, until the opening of the Berlin Wall in 1989, a large number of individual complaints were filed on behalf of residents of the German Democratic Republic who were detained for attempting to emigrate. The G.D.R. government reportedly responded to such complaints on a number of occasions by releasing the individuals. Also, those individuals were often the subject of buying-out arrangements with the Federal Republic of Germany such that they were able to leave the G.D.R. At minimum resolution 1503 affords a mechanism for complaints to be received through the official channels of the U.N. and for governments to be able to respond, if they so desire.

The 1503 process, however, is painfully slow, complex, secret, and vulnerable to political influence at several junctures. The confidentiality of the process can be used as a barrier to effective U.N. action in the case of governments that do not respond to incremental pressure and continue to engage, over several years, in grave and widespread violations of human rights. Resolution 1503 cannot offer prompt assistance in emergency situations. To use the 1503 procedure, communications must be submitted by the end of May. Often, communications are held over by the Working Group on Communications, the Working Group on Situations, or the Council for consideration the next year. Situations arising after the submission deadline, could not be considered by the Council for almost two years. If the objective is to obtain prompt publicity or public action for serious human rights violations, the 1503 process is inappropriate.

The thematic procedures are likely the most effective and prompt choice for cases involving individual victims of human rights abuses and for emergency situations. Since 1503 was created to respond to patterns of gross violations, the Working Group on Communications is not likely to forward a communication regarding an individual victim of a human rights violation unless it indicates a broader human rights problem. In emergency cases, requiring immediate attention, the thematic rapporteurs and working groups can achieve prompt action. They have had success with urgent appeals to governments concerning individual human rights abuses.

The drawbacks of the thematic procedures include a lack of human and financial resources to effectively carry out their mandates. The special rapporteurs have become overwhelmed with their increasing workload and limited resources. Another problem is that since their reports are so broad, and list violations occurring around the world, situations in particular countries often do not receive the attention they deserve.

In addition to the different strengths and weaknesses of the procedures, their functions often overlap. For example, thematic rapporteurs have submitted specific country reports along with their comprehensive annual reports. One author described that trend as follows:

Last year the Special Rapporteur on Torture and the Working Group on Disappearances both published a report on the Philippines in addition to their regular reports and in this way in fact acted like some sort of country rapporteurs, be it only on torture and disappearances. This year the Working Group issued a report on disappearances in Sri Lanka and the Rapporteur on Torture issued one on Indonesia and East Timor.

The consolidation of this practice of country reports by thematic mechanisms can in my view only be welcomed, since the “real? country rapporteurs seem to be under a lot of pressure in recent years. A specific advantage of this approach is that no new mandate and therefore no new decision by the Commission is needed for country reports by thematic rapporteurs; the process of getting agreement on new country rapporteurs has always proved to be cumbersome.

Koen Davidse, The 48th Session of the UN Commission on Human Rights and UN Monitoring of Violations of Civil and Political Rights, 10 Neth. Q. Hum. Rts. 283, 290 (1992) (citations omitted).

* * * * *

Another potential area of duplication involves resolution 1503 and the thematic procedures. Both mechanisms were established to handle human rights violations in areas such as torture, disappearances, and arbitrary detention, and both may be concentrating time and resources on the same situations. Their functions are distinct, however, inasmuch as the confidential procedure responds to situations of human rights violations in a country, and the thematic procedures respond to individual cases, on a global level.

The excerpts below illustrate how resolutions 1235 and 1503 and the thematic procedures have been used.

 

Marc Bossuyt, The Development of Special Procedures of the United Nations Commission on Human Rights, 6 Hum. Rts. L. J. 179, 181-94, 202-03 (1985) (footnotes omitted):

I. THE CONFIDENTIAL PROCEDURE . . .

The confidential nature of the 1503 procedure is often criticized. It is, however, not without justification that the communications are kept confidential in the initial phase of the procedure, and that discussions of the Working Group and of the . . . Commission [and now the Council] on those communications are held in closed sessions. After all, the pre-trial enquiry and the deliberations of judges in a judicial trial are generally also confidential. Nevertheless, the emphasis on confidentiality in the 1503 procedure is grossly exaggerated. . . .

Being confidential, the 1503 procedure has all the advantages of established procedure, consisting of successive steps taken by the organs involved. A progressive adoption of these steps, which individually are considered to constitute sanctions, may induce the government concerned to accept a dialogue with the UN-organ involved. Before reaching the level of the Commission [and now the Council], the governments concerned are invited to present written replies; at the level of the Commission [and now the Council] they are moreover invited to participate in the discussion of the human rights situation in their country. At every level of the procedure, it may be assumed that the cooperation shown by the government concerned in replying to these invitations, will generally dispose the organ involved favourably, and eventually increase the chances of the government of escaping further review. Whatever the organ may be, it is quite probable that cooperation will be appreciated and neglect resented.

Everything which induces a government to cooperate is particularly important because the efficacity of United Nations procedures in the field of human rights depends to a large extent, on the measure of dialogue which can be established between the United Nations and the government of the country concerned. The procedure is useful as long as it is a means of exercising pressure on the country concerned. By expressing regrets when communications are kept pending . . . instead of being forwarded to the superior organ, human rights friends overlook the point that there is no real solution to the problem at the end of the procedure. The succession of steps composing the procedure is more influential than the actual step itself. Keeping a communication pending . . . can be more effective for inducing a government to start a dialogue with the United Nations than forwarding the communication to the Commission [and now the Council], where it can be rejected as soon as it gets there.

The possible effects of the 1503 procedure are often minimized because of its confidential nature. However, one should be aware of the limits of the confidentiality of the procedure. As a matter of fact, with the exception of the deliberations of the Sub-Commission’s Working Group on communications which are really secret, . . . the . . . Governments which compose the constantly renewed Commission [and now the Council] . . . know exactly what happens under the confidential procedure. Consequently, all decision makers in the United Nations in the field of human rights are aware of the available information on the human rights situation in the countries concerned. This fact can be quite embarrassing to the governments concerned, particularly when they are invited to explain themselves before the Commission [and now the Council]. There is no doubt that a continuous review of the human rights situation in a country progressively erodes its human rights reputation at the United Nations.

The main usefulness of the procedure is twofold:

a) confronting the human rights situation in a given country within the framework of the confidential procedure may facilitate the Commission’s [and now the Council’s] eventual decision to deal with it in public session. As will be demonstrated below, most “country oriented? (public) procedures have been preceded by a decision of the Sub-Commission to forward communications to the Commission [and now the Council] within the framework of the confidential procedure;

b) situations in countries neglected by world public opinion can be brought to the attention of the . . . [Working Group on Communications, the Working Group on Situations] -- and eventually the Commission [and now the Council]-- within the framework of the confidential procedure, although it is highly unlikely that these organs would ever address themselves to these situations if there was no such procedure.

However, since the adoption of ECOSOC resolution 1503 (XLVIII) of 27 May 1970, a tremendous development has taken place in the form of new public procedures. Particularly the “thematic? procedures, which grew out of the “country oriented? procedures -- to which development the confidential procedure contributed substantially -- could decrease somewhat the importance of the confidential procedure. The “thematic? working group and special rapporteurs can act much more swiftly than the organs involved in the confidential procedure. The confidential procedure probably suffers more from its inability to react immediately on urgent information and from the difficulty of breaking through the majority requirements of the . . . Working Group on Communications, than from its confidential nature.

II. THE PUBLIC PROCEDURE

Within the framework of the public procedure on “violation of human rights?, which is based on ECOSOC-resolution 1235 (XLII) of 6 June 1967, the members of the Commission [and now the Council] . . . can, during a debate in public session, refer to violations of human rights in any part of the world. This procedure may lead to the adoption of resolutions and in exceptional cases to [the] establishment of special procedures [in the Council]. There has been a genuine breakthrough of those procedures since 1975. Before 1975, there was only the procedure concerning the Republic of Viet-Nam (in 1963) and the ongoing procedures concerning the “outcasts? of the United Nations in human rights: Southern Africa (since 1967) and the Israeli occupied territories (since 1969). . . .

[Since 1975] several additional procedures concerning a variety of countries came into existence. These procedures concern Chile (1975), Equatorial Guinea (1979), Bolivia, El Salvador and Guatemala (1981), Poland and Iran (1982), and Afghanistan (1984). Along with this “country oriented? approach, a “thematic? approach came into existence and expanded with procedures regarding missing persons (1980), mass exoduses (1981), summary executions (1982) and torture (1985).

III. ANALYTICAL ASSESSMENT . . .

2. Interaction with the confidential procedure
There are also interactions between the confidential and the public procedure. Confidential procedure being confidential, it is not always possible to demonstrate these interactions. In exceptional cases it is nevertheless possible to give indications, particularly since the Chairman of the Commission started in 1978, to announce which countries are dealt with by the Commission [and now the Council] within the framework of this procedure.

The interaction between the confidential and the public procedure is obvious in the case of Equatorial Guinea, since [ECOSOC] has, on the recommendation of the Commission, decided on 10 May 1979 (decision 1979/35) to make the relevant material public. The forwarding in 1975 of communications by the Sub-Commission to the Commission was not successful in 1976, but it was in 1977. When the government concerned refused to establish direct contacts with the Secretary-General on the matter, the Commission requested its Chairman in March 1979 to appoint a special rapporteur, as announced within the framework of the confidential procedure in 1978.

The situation of human rights in Bolivia, El Salvador and Guatemala had already been submitted to the Commission by the Sub-Commission within the framework of the confidential procedure when the Commission decided in 1981 to start with a public procedure. The Sub-Commission had decided thus in 1977 for Bolivia, and in 1980 for El Salvador and Guatemala.

The Commission’s review of the situation in Afghanistan under the confidential procedure from 1981 onward, did not prevent the Commission . . . from adopting public resolutions with respect to the human rights situation in that country. When the Commission decided in its resolution 1984/55 of 15 March 1984 to request its Chairman to appoint a special rapporteur, its Chairman announced the following day that the Commission had decided to discontinue its review of the situation in Afghanistan within the framework of the confidential procedure.

The situation of human rights in Haiti, which was also under review by the Commission within the framework of the confidential procedure since 1981, led in March 1984 to a public request by the Commission to the Secretary-General to hold consultations with the Government of Haiti. It appears from the report of the expert appointed by the Secretary-General on his visit to Haiti, that previously he had already accomplished several missions to Haiti within the framework of the confidential procedure. . . .

* * * * *

Sandra Coliver, United Nations Machineries on Women’s Rights: How Might They Better Help Women Whose Rights are Being Violated? in New Directions in Human Rights 25, (Ellen Lutz, Hurst Hannum, & Kathryn Burke 1989) (footnotes omitted):

The 1235 and 1503 procedures derive their effectiveness from the Commission’s ability to “mobilize shame.? They are most likely to have an impact when the investigated government is sensitive to international scrutiny and condemnation, when publicity or the threat of publicity is substantial, and when the Commission identifies concrete steps that must be taken if the government is to escape scrutiny. A few countries appear impervious to UN condemnation but most are not. On several occasions governments have announced planned reforms during Commission or Sub-Commission meetings as concessions to escape further criticism. Most governments respond to requests from rapporteurs concerning specific cases; even when they deny allegations, their treatment of victims often improves.
__________________________________________________________________________

NOTES

1. Resolution 1503 calls for a review of its procedure “if any new organ entitled to deal with such communications should be established within the United Nations or by international agreement.? On March 23, 1976, the Optional Protocol to the International Covenant on Civil and Political Rights entered into force authorizing the Human Rights Committee to consider communications from individuals who claim to be victims of violations by governments party to the Optional Protocol. In 1977 the Human Rights Committee began considering such communications. In 1979 the Secretary-General prepared an analysis comparing resolution 1503 procedures with the Optional Protocol and concluding that the two procedures were quite different. U.N. Doc. E/CN.4/1317, at 8-12 (1979). Resolution 1503 communications must reveal a consistent pattern of gross and reliably attested violations of human rights. Communications under the Optional Protocol can relate simply to a single individual. Also, 1503 communications may be filed against any government, but the Optional Protocol applies only to the 107 countries that are party to it. See U.N. Centre for Human Rights, How do the Procedures Differ, Communications Procedures, Fact Sheet No. 7, at 12-13 (1989); see also chapter 5, supra.

2. How do the Optional Protocol and the thematic mechanisms differ?

3. In addition to human rights actions taken by special rapporteurs, thematic rapporteurs, and working groups, the United Nations High Commissioner for Human Rights monitors and responds to human rights violations. The General Assembly created that position in 1993 because of shortcomings in the existing procedures. For example, they suffered from inadequate funding and understaffing, which resulted in incomprehensive reactions to situations. The High Commissioner has a great deal of discretion in his activities, but her mandate does direct her to take “an active role . . . in preventing the continuation of human rights violations around the world.? U.N. Doc. E/CN.4/1995/98 (1995); see also Philip Alston, The United Nations High Commissioner for Human Rights, ASIL Newsletter, at 1 (Sept.-Oct. 1995).

4. For further reading on ECOSOC resolutions 728F, 1235, and 1503, see:

Maria Bartolomei, Gross and Massive Violations of Human Rights in Argentina, 1976-1983: An analysis of the Procedure Under ECOSOC Resolution 1503 (1991);

Anne F. Bayefsky, Direct Petition in the UN Human Rights Treaty System, 95 Am. Soc’y Int’l L. Proc. 71 (2001);

Marc Bossuyt, The Development of Special Procedures of the United Nations Commission on Human Rights, 6 Hum. Rts. L.J. 179 (1985);

Reed Brody, Penny Parker, & David Weissbrodt, Major Developments in 1990 at the UN Commission on Human Rights, 12 Hum. Rts. Q. 559 (1990);

Alfred de Zayas, Petitioning the United Nations, 95 Am. Soc’y Int’l L. Proc. 82 (2001);

Joan Fitzpatrick, Human Rights In Crisis (1994);

Laboni Amena Hoq, Note, The Women’s Convention and Its Optional Protocol: Empowering Women to Claim Their Internationally Protected Rights, 32 Colum. Hum. Rts. L. Rev. 677, 694-97 (2001);

Karen Kenny, Formal and Informal Innovations in the United Nations Protection of Human Rights: The Special Rapporteur on the Former Yugoslavia, 48 Austrian Journal of Public and International Law, 19 (1995).

Manfred Nowak, Country-Oriented Human Rights Protection by the UN Commission on Human Rights and its Sub-Commission, 22 Netherlands Y.B. Int’l L. 39 (1991);

Office of the High Commissioner for Human Rights, Manual of the United Nations Human Rights Special Procedures [Draft] (2006), http://www.ohchr.org/english/bodies/chr/special/docs/Manual_English.doc

Office of the High Commissioner for Human Rights, Fact Sheet No.7/Rev.1, Complaint Procedures, http://193.194.138.190/html/menu6/2/fs7.htm;

Office of the High Commissioner for Human Rights, The Revised 1503 Procedure, http://193.194.138.190/html/menu2/8/1503.htm;

Penny Parker & David Weissbrodt, Major Developments at the UN Commission on Human Rights in 1991, 13 Hum. Rts. Q. 573 (1991);

Joe Pitts & David Weissbrodt, Major Developments at the UN Commission on Human Rights in 1992, 15 Hum. Rts. Q. 122 (1993);

B.G. Ramcharan, The Concept and Present Status of the International Protection of Human Rights 104-09 (public debate principally under 1235), 113-14 (written NGO statements), 136-41 (1503), 151-57 (“thorough study?) (1989);

Howard Tolley, The U.N. Commission on Human Rights 111-33 (1987);

Howard Tolley, The Concealed Crack in the Citadel: The United Nations Commission on Human Rights’ Response to Confidential Communications, 6 Hum. Rts. Q. 420 (1984);

United Nations Action in the Field of Human Rights, U.N. Doc. ST/HR/2/Rev.3, at 314-26 (1988);

U.N. High Commissioner for Human Rights, Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Effective Functioning of Human Rights Mechanisms (2006), http://www.ohchr.org/english/bodies/chr/special/docs/13threport.AEV.pdf;

Ton Zuijdwijk, Petitioning the United Nations (1982).
___________________________________________________________________________

6. Role of the Secretary-General

In addition to the mechanisms of the Security Council, the General Assembly, and the Human Rights Council. The U.N. Secretary-General occasionally undertake efforts to improve the human rights situation in particular countries. The following report relates to the situation in Myanmar, but is relatively typical of the efforts which the Secretary-General and his special envoys may pursue:

Situation of human rights in Myanmar, U.N. Doc. A/59/269 (2004) (footnoted omitted)

Report of the Secretary-General . . .

1. The present report is submitted pursuant General Assembly resolution 58/247 of 23 December 2003, entitled “Situation of human rights in Myanmar?, in paragraph 7 of which the Assembly requested the Secretary-General to continue to provide his good offices and to pursue discussions on the situation of human rights and the restoration of democracy with the Government and people of Myanmar, including all relevant parties to the national reconciliation process in Myanmar, and to report to the Assembly at its fifty-ninth session and to the Commission on Human Rights at its sixtieth session on the progress made in the implementation of the resolution.

2. As indicated in his previous reports, the role entrusted to the Secretary-General by the General Assembly is specifically that of good offices, as opposed to the factfinding mandate assigned by the Commission on Human Rights to the Special Rapporteur. In that context, the Assembly, in its resolution 58/247, welcomed the visits to Myanmar during the past year by the Special Envoy of the Secretary-General.

3. In implementation of resolution 58/247, the Special Envoy visited Myanmar from 1 to 4 March 2004. Prior to his visit, certain important developments had taken place, including the announcement by the Government that it would reconvene the National Convention, adjourned in 1996, as the first step in the seven-step road map; the resumption of peace talks between the Government and the rebel group, the Karen National Union (KNU), which has fought the central Government since 1948; and the convening by Thailand of an international meeting of “like-minded? countries to facilitate the implementation of the seven-step road map, a process known as the Bangkok Process. At that meeting, U Win Aung, the Minister for Foreign Affairs, promised those present that there were no plans to push Daw Aung San Suu Kyi or the National League for Democracy (NLD) aside. On 11 February 2004, media reports quoted the Minister as having stated that “there is no foundation for the exclusion of the National League for Democracy — it is still a legal political party? and that “Aung San Suu Kyi will be fully free, able to meet other members of her party and conduct normal political activities before the National Convention convenes?. Against that backdrop, the primary objective of the Special Envoy’s visit was to assess how the Government’s efforts to implement its road map were progressing and to urge the Government to make the process as transparent and all inclusive as possible.

II. Contents of the discussions

4. During his visit, the Special Envoy met with the Prime Minister, General Khin Nyunt, the Minister of Foreign Affairs, the Minister of Labour, Tin Win and the Deputy Minister of Foreign Affairs, Khin Maung Win. On the NLD side, he met twice with Daw Aung San Suu Kyi at her residence, once with Vice-Chairman Tin Oo, who was also under house arrest, and once with five other members of the NLD Central Executive Committee (CEC), who had been released. He also met with members of the National Unity Party and the United Nationalities Alliance, a group of eight ethnic nationality political parties. The Special Envoy stressed to all the parties that in order to be credible the road map process for a democratic transition in Myanmar should be all-inclusive, open and transparent.

5. Prime Minister General Khin Nyunt assured the Special Envoy that the Government would implement the road map in “good faith?, noting that his three senior representatives had had monthly meetings with Daw Aung San Suu Kyi since December 2003. The Prime Minister also stated that he was working hard to include all the parties concerned in the National Convention, but said that he was not able to provide a date for Daw Aung San Suu Kyi’s release. Nor was he able to offer a time frame for the road map. With regard to the peace talks with the KNU, the Prime Minister explained that talks were progressing well in general, although some difficulties had surfaced lately. . . .

9. While acknowledging that the Government had made efforts to bring all parties into the National Convention, the Secretary-General replied by expressing his concern that no commitment to release Daw Aung San Suu Kyi or U Tin Oo was made . . .. He reiterated that in order for the Government’s political road map to be considered a credible and all-inclusive vehicle for democratization and national reconciliation, the remaining restrictions on Daw Aung San Suu Kyi and U Tin Oo should first be lifted and the NLD offices permitted to reopen. Moreover, he stressed that Daw Aung San Suu Kyi’s release could help to ensure the stable and orderly implementation of the road map, rather than impede its smooth progress. The Secretary-General also asked for the help of the Minister for Foreign Affairs in facilitating his Special Envoy’s return to Yangon. Unfortunately, the authorities responded to that request, and to subsequent, similar requests, by saying that the set of dates proposed was “not convenient? for their national leaders, who were busy with the National Convention. Consequently, the Special Envoy has been denied an opportunity to effectively facilitate dialogue between the Government and Daw Aung San Suu Kyi, as well as the representatives of ethnic nationality groups. The response of the SPDC raises serious questions about its willingness to engage with the United Nations. It also runs contrary to the official position of the Association of Southeast Asian Nations (ASEAN), of which Myanmar is a member, whose foreign ministers, at their past two meetings, have publicly supported the role of the Secretary-General’s Special Envoy in helping Myanmar to achieve democratization and have also collectively called for Daw Aung San Suu Kyi’s release. . . .

11. While the omission of the NLD and some other political parties made it impossible to recognize the National Convention as a complete and credible forum for democratization and national reconciliation in Myanmar, the Convention process provided the ceasefire groups with a venue in which to meet and discuss issues of common concern. A joint proposal was reportedly submitted by 13 ceasefire groups, which proposed that the states and the regions be given more authority to promulgate laws in vital areas, including security and defence, aspects of foreign affairs, border trade, control of natural resources, the preservation of literature and culture and taxation. The joint proposal also suggested that states and regions should have the right to adopt their own constitutions, provided they did not contradict the Union constitution, and to legislate concerning the appointment of civil servants. However, the National Convention authorities reportedly required the ceasefire groups to amend their proposals. The National Convention was adjourned on 9 July. While no date has been indicated as to when it will reconvene, a government statement of 10 July stated that when the Convention resumed, detailed basic principles on the legislative, executive and judiciary, as well as the sharing and distribution of legislative power and the formation of a financial commission, would be laid down in accordance with the consent of the majority of the delegates.

III. Observations

12. The Secretary-General accepts that the Union of Myanmar faces complex and difficult challenges in its transition to democracy and its quest for national reconciliation. For that reason, he cautiously welcomed the announcement by the Government of its seven-stage road map, and acknowledged the potential role that a body such as the National Convention could play in the transition to democracy. However, the Secretary-General has consistently advised that for the process to be credible it has to be all-inclusive and democratic, permitting views to be expressed freely and openly from the beginning. Thus the Secretary-General believes that the National Convention, as currently configured, does not adhere to the recommendations made by successive resolutions of the General Assembly and the Commission on Human Rights. . . .

15. Finally, the Secretary-General believes that the SPDC has an obligation to the people of Myanmar to ensure that they experience the same benefits of economic, social and political development as their counterparts elsewhere in the region. Myanmar’s citizens have endured unnecessary social and economic hardship because of the absence of an all-inclusive process of democratization and national reconciliation in their country. Their predicament has been compounded by economic policies that have prevented the majority of them from improving their livelihoods. The Secretary-General is firmly of the view that Myanmar’s citizens are unfortunate casualties of the prevailing situation. In that context, he wants to take the opportunity to underscore the United Nations system’s parallel commitment to investing in Myanmar’s long-term future, within the existing constraints, by enhancing the scale and scope of its social and humanitarian engagement with the people and communities across the country. In the event that sustainable progress towards democratization and national reconciliation occurs, the Secretary-General remains committed to taking further, appropriate steps to underpin progress, in partnership with the international community.

____________________________________________________________________

NOTES AND QUESTIONS

1. The report of the U.N. Secretary-General mentions obliquely the work of the International Labor Organization (ILO) in regard to Myanmar. As discussed in chapter 16, infra, the ILO sent a Commission of Inquiry to Myanmar, which found forced labor in that country was “widespread and systematic.? ILO, Report of the Commission of Inquiry Appointed under Article 26 of the Constitution of the International Labour Organisation to Examine the Observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), 81 Off. Bull., Series B, para. 536 (July 2, 1998), available at http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm. The Commission of Inquiry recommended several measures to Myanmar aimed at reducing forced labor pursuant to ILO Convention No. 29 and stopping the use of child labour. Nonetheless, according to a report of an ILO technical team in October 2000, the government actions of Myanmar had not met the ILO’s recommendations. ILO, Report of the ILO Technical Cooperation Mission to Myanmar, Provisional Record No. 8 (June 2, 2000), at http://www.ilo.org/public/english/standards/relm/ilc/ilc88/pr-8.htm. As a result, for the first time in its more than 80 years the ILO decided to invoke sanctions in calling on “governments, employers and workers to review their relationships with Myanmar ‘and take appropriate measures to ensure that [Myanmar] cannot take advantage of such relations to perpetuate or extend the system of forced or compulsory labor’; and to ‘contribute as far as possible to the implementation’ of the recommendations of the Committee of Inquiry.? International Labour Conference, 88th Session, Geneva, 30 May - 15 June 2000, Fourth report: Resolution submitted to the Conference, http://www.ilo.org/public/english/standards/relm/ilc/ilc88/com-seld.htm#Resolution; see ILO Focus, ILO Takes Historic Step to Compel Myanmar to End Forced Labor (Winter 2000/2001), at 1-2, available at http://us.ilo.org/news/focus/0012/FOCUS-1.html.

2. How should the various parts of the U.N. system, including the Secretary-General, treaty bodies, the U.N. Human Rights Council, and specialized agencies, such as the ILO, work together in achieving shared human rights objectives?

3. The Freedom of Information Act (FOIA), 5 U.S.C. § 552, requires the U.S. government to make public government documents with certain specified exceptions. Complainants under ECOSOC resolution 1503 have used this statute to obtain copies of the U.S. government’s response to their complaints. In June 1981 the President of the Black Law Student Association at the University of Minnesota filed a communication under ECOSOC resolution 1503 against the U.S. The communication alleged multiple violations of the human rights of black people in the U.S. The Working Group on Communications considered the communication but did not recommend it to the Sub-Commission. In October 1981 another student at the University of Minnesota requested, under the FOIA, a copy of the U.S. government’s response to the 1503 communication. The U.S. government sent the material requested without protest.

Similarly, the Indian Law Resource Center submitted a 1503 communication in 1980 relating to human rights violations against the Six Nations Iroquois Confederacy. The communication was held for a year by the Sub-Commission and was then referred to the U.N. Working Group on Indigenous Populations. The Working Group on Indigenous Populations never considered the communication. The Indian Law Resource Center filed an FOIA request for the U.S. response to the 1503 communication. At first the State Department refused because the U.N. process was not clearly completed. After it became obvious that the Six Nations communication was no longer under consideration, the State Department released the U.S. response to the communication.

Does the availability of this material through the Freedom of Information Act suggest any uses of 1503 procedures with regard to cases in the United States? How can 1503 procedures be used in coordination with suits in U.S. courts and/or actions in the political arena for the protection of human rights in the U.S.? See infra chapter 13.

 



Home || Treaties || Search || Links