A Proposal for How to Realize Human Rights at the National and Regional Level: A Three-Pillar Strategy

 

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Human Rights Quarterly 33 (2011) 826–855 © 2011 by The Johns Hopkins University Press

A Proposal for How to Realize Human Rights at the National and Regional Level: A Three-Pillar Strategy

Homayoun Alizadeh*

ABSTRACT

This article proposes a “Three-Pillar Strategy” (TPS) as an overall human rights protection strategy for OHCHR field presences. The main idea is to integrate recommendations of UN treaty bodies (Pillar One), special procedures (Pillar Two), and the Universal Periodic Review process (Pillar Three) into UN Country Teams’ (UNCTs) work and planning, and likewise to integrate UNCTs into the implementation process of the TPS. Within the One UN Concept, the TPS could be used as an entry point to sup- port building and strengthening national human rights protection systems, including the administration of justice, legislative reform, national human rights institutions, and civil society.

I. INTRODUCTION

Over the past decades, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has developed itself from a “small” Centre for Human Rights at the Palais des Nations in Geneva, providing services solely to the treaty body and special procedures mechanisms1 within the UN system, to a more people’s-oriented entity focusing on the establish- ment of structures for the promotion and protection of human rights at the global, regional, national, and local levels. While the number of OHCHR field presences has rapidly increased over the past years, discussion contin- ues on how to achieve its goals as defined within the High Commissioner’s Strategic Management Plan (SMP) since 2006.

OHCHR staff members working at headquarters and in the field want to have a clear idea and vision of how the goals of OHCHR can best be achieved globally, regionally, and at the national level. Questions relating to the policy and strategy of OHCHR both at headquarters (HQ) and field levels vis-à-vis duty-bearers and rights-holders thus take on new relevancy. In addition, no one has yet indicated how the overall objective of OHCHR, “to [help] bridge a range of [human rights] implementation gaps, including those related to knowledge, capacity, commitment and security,” can be realized.2 OHCHR’s role in mainstreaming human rights issues within the UN system still needs to be defined more precisely. Other crucial elements that require a clearly defined policy and strategy include the issue of protec- tion and the role of each UN agency in translating human rights protection principles into effective protection measures on the ground, as well as the issue of building up structures for the promotion and protection of human rights and preventing human rights violations from occurring at the field level.

The main objectives of this article are: (1) to contribute to the ongoing discussion of how best the goals, as defined within the framework of the SMP, “to work for the protection of all human rights for all people [and] to help empower people to realize their rights,” can be achieved,3 and (2) to devise concrete proposals and ideas for an overall human rights protection strategy for OHCHR Field Presences.

Because the primary responsibility of a member state is to protect the rights and lives of its own citizens, the question arises: to what extent could the UN system in general and OHCHR in particular address violations of economic, social, cultural, civil, and political rights in the countries where they operate? This article, which seeks to outline some elements for effec- tive human rights protection, contains a number of concrete proposals to implement more effectively and efficiently the protection mandate of the UN system at the country level in general and within the OHCHR Field Presences in particular. A definition of protection would allow the formula- tion of a unified strategy from which one could identify specific types of action at headquarters and country levels in response to protection needs. Operational guidelines are required in order to translate protection principles into effective protection on the ground.

II. CONTEXT

The main objectives of the majority of field presences include (1) to contribute to the establishment of structures for the protection and promotion of hu- man rights at national and regional levels and (2) to establish a coordination mechanism for human rights activities both at national and regional levels.

A. Challenges

The field presences face diverse challenges.4 These challenges could be described as follows:

1. General

• Many UN member states consider human rights a challenge to their political, economic, social, and cultural systems. Within this framework, they often regard human rights protection as an interference with their internal affairs.
• Many states give absolute priority to national economic growth (i.e. maxi- mizing GDP), and give less consideration to national plans of action that address issues relating to human rights.
• A culture of impunity prevails in many countries.
• Governmental organizations and nongovernmental organizations (NGOs) lack structures which would allow them to address violations of human rights committed by state agents.
• Although national human rights commissions have been established in many countries, some lack political support from their respective governments. The International Coordination Committee (ICC) on National Human Rights Institutions (NHRIs) has questioned the independence of some of these insti- tutions, as well as their compliance with the Paris Principles.5 Furthermore, the absence of human rights protection mechanisms within existing com- missions means that the commissions focus more on promotional activities than on the monitoring of violations of human rights.
• Member states still lack information on human rights issues and available mechanisms to address human rights violations.
• The effectiveness of civil society organizations to address human rights issues varies widely.2. Specific:

2. Specific

See INTERNATIONAL COORDINATING COMMITTEE OF NATIONAL INSTITUTIONS FOR THE PROMOTION AND PRO- TECTION OF HUMAN RIGHTS, REPORT AND RECOMMENDATIONS OF THE SESSION OF THE SUB-COMMITTEE ON ACCREDITATION 1–7 (2009), available at http://www.nhri.net/2009/SCA_REPORT_March%20 2009%20Session_(English).pdf.

Monitoring and follow up mechanisms on the implementation of treaty body and special procedure recommendations are lacking at both national and local levels.

Treaty body and special procedures recommendations are often not used in a practical way to address human rights challenges and problems, such as poverty eradication, access to justice, climate change, and the global financial crisis.

UN Country Teams (UNCTs) are not often involved in the implementation process of treaty body and Universal Periodic Review (UPR)6 recommenda- tions.

Gender-related policy and legislation are lacking and sex-disaggregated data is often not available.

While Action 27 is producing some positive results, the human rights-based programming of various UN agencies is hardly connected to treaty body mechanisms, special procedures, and the UPR process.

No substantial connection exists between the Common Country Assessment (CCA), United Nations Development Assistance Framework (UNDAF), and other UN development assistance programs, on the one hand, and the treaty body and special procedure recommendations, on the other.

NHRIs have no clearly defined role in either the treaty body reporting process or in implementing treaty body recommendations.

Member states often fail to issue standing invitations to special procedure mandate holders.

There is no comprehensive system for OHCHR field presences at national and regional levels to follow up on recommendations made by special procedures mandate holders.

UN member states, including government officials and the media, lack knowl- edge and understanding of the UPR process, and how to link its outcome with treaty body and special procedure recommendations.

See Resolution on the Human Rights Council, G.A. Res. 60/251, adopted 15 Mar. 2006, U.N. GAOR, 60th Sess., 72d plen. mtg., Agenda Items 46, 120, ¶ 5(e), U.N. Doc. A/ RES/60/251 (2006). This document, which created the Human Rights Council, decided that the Council shall “[u]ndertake 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 con- sideration given to its capacity-building needs . . . .”

See discussion infra Part IV.A.

6.

7.

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III. POLICY DEVELOPMENT STRATEGY

Based on the above-mentioned challenges and constraints, this article pro- poses a Three-Pillar Strategy (TPS) to assist governments in implementing the recommendations of treaty bodies (Pillar One), special procedures (Pillar Two), and the UPR process (Pillar Three).

A. Treaty Bodies

Although some UN member states have harmonized their national domestic laws with international human rights standards, the issue of how to imple- ment human rights norms at the national level remains unresolved. In the context of the One-UN concept,8 the goal is to integrate recommendations of treaty bodies into the work and planning of UNCTs and likewise to integrate UNCTs into the implementation process of treaty body recommendations.9 The implementation of recommendations of treaty bodies, which should be seen as one of the main human rights-based strategies, should help govern- mental and nongovernmental institutions, in cooperation with respective UN agencies, to address human rights thematic priorities such as impunity, discrimination, and weak institutions. It should also help them ensure that a cooperative mechanism based on an interactive dialogue, with the full involvement of all relevant stakeholders, is in place.

The human rights-based strategy, as a collaborative approach, should ensure that each UN agency’s role and task is defined regarding a particular international human rights instrument and the agency’s responsibility to assist governments with its implementation. It should also ensure that a follow up system for the implementation of treaty body recommendations is in place. Prioritizing treaty body recommendations and identifying implementation gaps should help respective governments take concrete measures to address human rights problems on the ground.

B. Special Procedures

Establishing a follow up system for communications of the special procedures to UN member states should ensure that their respective governments take concrete human rights protection measures to address individual cases where

8. UN SECRETARY-GENERAL’S HIGH-LEVEL PANEL ON UN SYSTEM-WIDE COHERENCE IN THE AREAS OF DE- VELOPMENT, HUMANITARIAN ASSISTANCE, AND THE ENVIRONMENT, DELIVERING AS ONE: REPORT OF THE SECRETARY-GENERAL’S HIGH-LEVEL PANEL (2006) [hereinafter DELIVERING AS ONE].

9. Id.

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violations of human rights committed by state agents are reported. The TPS not only aims to encourage governments to be more effectively engaged in responding to individual cases communicated by the special procedures, but also aims to identify human rights protection gaps that must be addressed. The identification of such gaps would in turn help the concerned member states build up their national structures for the promotion and protection of human rights. An interactive dialogue between OHCHR field presences and government officials on individual cases would present an opportunity for respective member states to develop a better understanding of the role of various special procedures mandate holders. Such a strategy would hope- fully lead member states to issue more standing invitations to the special procedures mandate holders to visit those states. The TPS also focuses on assisting governments with the implementation of recommendations of spe- cial procedures mandate holders as contained in their reports to the Human Rights Council and General Assembly.

C. Universal Periodic Review (UPR)

The UPR10 is a new human rights mechanism the purpose of which is to regularly assess the human rights situation of UN member states. For it to be effective, it requires all relevant governmental and nongovernmental institutions to participate by preparing state reports and submitting them to the Human Rights Council. UPR offers a new window of opportunity not only to integrate all stakeholders into a single process, but also to link the outcomes of the UPR with the recommendations of treaty bodies and special procedures. The TPS includes the full integration of all relevant stakehold- ers in the review process and the creation of an environment of trust and confidence which enables sensitive human rights issues to be addressed. The combination of a collaborative approach and an increased interactive dialogue among various stakeholders, including the state concerned, national institutions, and civil society organizations, should help stakeholders come up with concrete proposals, recommendations, and clearly defined strate- gies to improve the human rights situation on the ground. It should also help stakeholders identify human rights protection gaps in need of attention. The TPS could help create a cooperative mechanism based on principles of transparency, objectivity, non-selectivity, constructivity, non-confrontation, and non-politicization. In addition, it could help to ensure a fully integrated gender perspective when considering legislative and judicial matters.

10. See Resolution on the Human Rights Council, supra note 6.

2011 A Three-Pillar Strategy 833

IV. HUMAN RIGHTS PROTECTION

The issue of human rights protection is complex and multi-dimensional. In order to define human rights protection and the role of the UN system in addressing protection issues at the country level, one must first understand how the issue of human rights has evolved within the UN system.

A. Human Rights within the UN System

The General Assembly Resolution 48/141 of 20 December 1993 laid the foundation for the establishment of the post of the UN High Commissioner for Human Rights.11 The Resolution also includes references to protection, monitoring, and advocacy for victims of human rights violations as an integral part of the mandate of OHCHR.12

The Vienna Declaration and Programme of Action, adopted at the 1993 World Summit on Human Rights, reaffirmed the crucial link between de- mocracy, development, and respect for human rights.13 This nexus should inform all human rights-related UN activities in supporting national human rights protection systems.

Following Secretary-General Kofi Annan’s inaugural reform report to the United Nations in 1997, entitled “Renewing the United Nations: A Pro- gramme for Reform,”14 development strategy tools15 such as the Common

11. High Commissioner for the Promotion and Protection of All Human Rights: Resolution, adopted 20 Dec. 1993, G.A. Res. 48/141, U.N. GAOR, 48th Sess., 85th plen. mtg. Agenda Item 114(b), U.N. Doc. A/RES/48/141 (1994) [hereinafter G.A. Resolution 48/141].
12. Id. The mandate of the UN High Commissioner is as follows: a) to promote and protect all human rights for all; b) to make recommendations to the competent bodies of the UN system for improving promotion and protection of human rights; c) to promote the right to development; d) to provide technical assistance for human rights; e) to coordinate UN human rights education and public information programs; f) to play an active role in removing obstacles to the realization of human rights; g) to play an active role in preventing the continuation of human rights violations; h) to engage in dialogue with governments with a view to securing respect for all human rights; i) to enhance inter- national cooperation; j) to coordinate human rights promotion and protection activities throughout the UN system; and k) to rationalize, adapt, strengthen and streamline the UN human rights machinery. See id. ¶ 4.
13. Vienna Declaration and Programme of Action, adopted 25 June 1993, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., ¶ 8, U.N. Doc. A/CONF.157/23 (1993), reprinted in 32 I.L.M. 1661 (1993).
14. Renewing the United Nations: A Programme for Reform: Report of the Secretary-General, U.N. GAOR, 51st Sess., Agenda Item 168, U.N. Doc. A/51/950 (1997) [hereinafter Renewing the UN].
15. “The Comprehensive Development Framework” was proposed by the World Bank in 1999. The goal was to base national development and poverty reduction strategies on a holistic approach to development and to seek better balance in policy-making by high- lighting the interdependence of the social, structural, human, environmental, economic,

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Country Assessment16 and the UN Development Assistance Framework17 were introduced. These tools have become an entry point for the UN system, together with its counterparts, to advance the promotion and protection of human rights at the country level.18

The Millennium Declaration at the Millennium Summit of the General Assembly in 2000 placed special emphasis on human rights, including the right to development. 19 As indicated in the Secretary-General’s report on the “Road Map Towards the Implementation of the United Nations Millennium Declaration,” a set of eight Millennium Development Goals (MDGs) has been established.20 “In the area of human rights,” this report “notes a clear shift in attitudes towards human rights protection by member states, mov- ing from considerations of human rights as a matter of national sovereignty to a more universal concern.”21 The report “also notes that human rights,

and financial elements of development as well as governance. For more information, see Ibrahim Elbadawi & John Randa, Assessing the Development Impact of CDF-like Experiences: A Multi-Partner Evaluation of the Comprehensive Development Framework (The World Bank Group, Independent Evaluation Group, Working Paper, 2004), available at http://lnweb90.worldbank.org/oed/oeddoclib.nsf/0/eae0149454884fa485256e4c007 7bf3e/$FILE/CDF_Impact_CDF_WP.pdf.

16. UN DEVELOPMENT GROUP [UNDG], COMMON COUNTRY ASSESSMENT AND UNITED NATIONS DE- VELOPMENT ASSISTANCE FRAMEWORK: GUIDELINES FOR UN COUNTRY TEAMS ON PREPARING A CCA AND UNDAF (update Feb. 2009), available at http://www.undg.org/docs/9879/CCA-and- UNDAF-Guidelines-FINAL-February-2009.doc [hereinafter UN, GUIDELINES]. “The CCA is a common instrument of the United Nations system to analyze the national development situation and identify key development issues with a focus on the MD/MDGs, and other internationally agreed development goals and treaty obligations.” Id. ¶ 41.
17. The UN Development Assistance Framework (UNDAF) is the common strategic framework for the operational activities of the UN system at the country level. It provides a collective, coherent, and integrated UN system response to national priorities and needs within the framework of the Millennium Development Goals (MDGs); other commitments, goals, and targets of the Millennium Declaration; and the declarations and programs of action adopted at international conferences and summits and through major UN conventions. The UNDAF emerges from the analytical and collaborative effort of the CCA and is the foundation for the UN system program of cooperation. See generally UNDG, United Nations Development Assistance Framework (UNDAF), http://www.undg.org/?P=232.
18. According to the CCA and UNDAF Guidelines of 2009, the application of the human rights-based approach to programming is mandatory for all UN country teams. UN, GUIDELINES, supra note 16, ¶ 18.
19. United Nations Millennium Declaration, adopted 8 Sept. 2000, G.A. Res. 55/2, U.N. GAOR, 55th Sess., 8th plen. mtg., Agenda Item 60(b), U.N. Doc. A/RES/55/2 (2000).
20. Road Map Towards the Implementation of the United Nations Millenium Declaration, Report of the Secretary-General, U.N. GAOR, 56th Sess., Prov. Agenda Item 40, U.N. Doc. A/56/326 (2001). The Millennium Development Goals are to: (1) “eradicate extreme poverty and hunger”; (2) “achieve universal primary education”; (3) “promote gender equality and empower women”; (4) “reduce child mortality”; (5) “improve maternal health”; (6) “combat HIV/AIDS, malaria and other diseases”; (7) “ensure environmental sustainability”; and (8) “develop a global partnership for development.” Id. at 56–58.
21. WILLIAM O’NEILL & VEGARD BYE, FROM HIGH PRINCIPLES TO OPERATIONAL PRACTICE: STRENGTHENING OHCHR CAPACITY TO SUPPORT UN COUNTRY TEAMS TO INTEGRATE HUMAN RIGHTS IN DEVELOPMENT PROGRAMMING 13 (2002), available at http://www.humanrightsprofessionals.org/images/ oneill_bye_unct_hrs.pdf.

2011 A Three-Pillar Strategy 835

as a central tenet of UN reform, are becoming increasingly emphasized in activities throughout the system, and that this evolution is reflected in a diverse range of UN forums.”22 Finally, “The report affirms that economic, social and cultural rights are at the heart of almost all the millennium de- velopment goals.”23

The Action 2 Initiative stems from the September 2002 report of the Secretary-General entitled, “Strengthening of the United Nations: An Agenda for Further Change.”24 In that report the Secretary General stated, “The promotion and protection of human rights is a bedrock requirement for the realization of the Charter’s vision of a just and peaceful world.”25 The goal of the subsequent Action 2 Plan of Action, developed by twenty-one heads of UN departments and agencies, was to support the sustainability of national human rights protection systems through coordinated and strengthened UN system-wide support, including by promotion of the human rights-based approach.26 Integrating human rights throughout the UN system in all its humanitarian, development, and peacekeeping work, and promoting a human rights-based approach to programming, were essential to the implementation of the Plan of Action. The report mandates OHCHR to “work through the resident coordinator system to ensure that human rights are incorporated into country level analysis, planning and programme implementation.”27 It specifically requests that OHCHR develop a “capacity to train country teams, assess and disseminate best practice[s], and develop monitoring mechanisms for measuring the impact of its human rights programming.”28

In 2003, the United Nations Development Group (UNDG) succeeded in coming up with a formulation of the “UN Common Understanding of a

22. Id.
23. Id.
24. Strengthening of the United Nations: An Agenda for Further Change: Report of theSecretary-General, U.N. GAOR, 57th Sess., Prov. Agenda Item 53, U.N. Doc. A/57/387(2002) [hereinafter Strengthening the UN].
25. Id. ¶ 45.
26. See UNITED NATIONS, STRENGTHENING HUMAN RIGHTS-RELATED UNITED NATIONS ACTION AT COUNTRY LEVEL: NATIONAL HUMAN RIGHTS PROMOTION AND PROTECTION SYSTEMS PLAN OF ACTION 4 (2003), available at http://www.un.org/events/action2/action2plan.pdf.
27. Strengthening the UN, supra note 24, ¶ 51.
28. Id. As a knowledge management tool in the field of human rights, the UN Human RightsPolicy Network (HuriTALK) is a network offering members the opportunity for policy dialogue on emerging human rights issues. It presently has more than 1100 members, representing 100 countries and twelve UN entities, and it is still growing. See UN De- velopment Programme [UNDP], Annex III: Results Framework Overview, ¶ 2.4, available at http://www.undp.org/execbrd/pdf/dp08-45_AnnexIII.pdf. HuriTALK acts as a forum through which members can share information and tools, as well as discuss and build knowledge on best strategies for integrating human rights standards and principles into development programming. It is an important tool for translating the UN commitment to integrating human rights into all aspects of its work. Id.

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Human Rights-Based Approach to Development Cooperation” as a frame- work definition of a human rights-based approach for the UN system.29 This formulation has helped the UN system to mainstream human rights into various development assistance programs such as MDGs, poverty reduc- tion strategies, CCAs, and the UNDAF.30 On the basis of the “UN Common Understanding,” several tools and guidelines have been elaborated to help UN agencies and development practitioners understand the human rights- based approach. These include the OHCHR publications “Frequently Asked Questions on a Human Rights Based Approach to Development Coopera- tion” and “Claiming the Millennium Development Goals: A Human Rights Approach.”31

In 2005 Secretary-General Kofi Annan released his third report on UN reform, entitled “In Larger Freedom: Towards Development, Security and Human Rights for All.”32 In this report he highlighted that human rights are, alongside development and security, one of the three pillars of the United Nations.33 Accordingly, he proposed a number of reforms, including the establishment of the Human Rights Council.34 In this report he stated, “[W] e will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for hu- man rights.”35

29. This formulation gives an orientation for various UN agencies to ensure that (1) all pro- grams of development cooperation, policies, and technical assistance should further the realization of human rights as laid down in the Universal Declaration of Human Rights (UDHR) and other international human rights instruments; (2) human rights standards and principles guide all development cooperation and programming in all sectors and phases of the programming process; and (3) development cooperation helps duty-bearers to meet their obligations or rights-holders to claim their rights. See generally OHCHR, FREQUENTLY ASKED QUESTIONS ON A HUMAN RIGHTS BASED APPROACH TO DEVELOPMENT COOPERATION (2006), available at http://www.ohchr.org/Documents/Publications/FAQen.pdf [hereinafter OHCHR, FREQUENTLY ASKED QUESTIONS].
30. Poverty Reduction Strategy Papers (PRSP) are prepared by member countries through a participatory process involving domestic stakeholders as well as external development partners, including the World Bank and the International Monetary Fund. Updated every three years with annual progress reports, PRSPs describe the country’s macroeconomic, structural, and social policies and programs over a three year or longer horizon to pro- mote broad-based growth and reduce poverty, as well as associated external financing needs and major sources of financing. See Press Release, International Monetary Fund [IMF], Factsheet: Poverty Reduction Strategy Papers (PRSP), available at http://www.imf. org/external/np/exr/facts/prsp.htm.
31. OHCHR, FREQUENTLY ASKED QUESTIONS, supra note 29; OHCHR, CLAIMING THE MILLENIUM DEVELOPMENT GOALS: A HUMAN RIGHTS APPROACH (2008), available at http://www.ohchr.org/ Documents/Publications/Claiming_MDGs_en.pdf.
32. In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, U.N. GAOR, 59th Sess., Agenda Item 45 & 55, U.N. Doc. A/59/2005 (2005) [hereinafter In Larger Freedom].
33. Id. ¶ 17.
34. Id. ¶ 181.
35. Id. ¶ 17.

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With the World Summit Outcome Document of 2005,36 member states committed themselves to support the further mainstreaming of human rights throughout the UN system.37 The human rights agenda has become, along with peace and security, and development, one of the three pillars of UN reform.

In May 2008 the UN Secretary-General, Mr. Ban Ki-Moon, emphasized the centrality of human rights in the development work of the United Na- tions.38 He also stressed the universality of human rights and the unique role and mandate of the UN system.39 In addition, the the Secretary-General’s Policy Committee, which held a discussion on human rights and develop- ment on 20 May 2008 in New York, highlighted the need for operational guidelines for the Resident Coordinator (RC) System in the area of human rights, particularly with regard to human rights violations and other sensi- tive issues.40

V. UNDG HUMAN RIGHTS MECHANISM

In response to the request of the Secretary General in May 2008, the OHCHR proposed, in consultation with the UNDG chair, that a dedicated senior-level mechanism within the UNDG framework be established to

36. 2005 World Summit Outcome, adopted 16 Sept. 2005, G.A. Res. 60/1, U.N. GOAR, 60th Sess., 8th plen. mtg., Agenda Items 46, 120 U.N. Doc. A/RES/60/1 (2005). At the World Summit in September 2005, the sixtieth anniversary of the United Nations, the United Nations hosted the largest gathering of world leaders in history. There was a widespread consensus in the international community that the institution needed to be strengthened in order to meet the challenges of a new century—and for the first time member states agreed that UN reform was possible. Member states discussed Secretary General Kofi Annan’s groundbreaking proposals to promote democracy, protect human rights, end poverty, and fight global terrorism. See id.
37. Id. ¶¶ 119–20. The World Summit document refers to human rights and the rule of law: a) it is important to strengthen the Office of the High Commissioner for Human Rights and its field offices in order to respond to the broad range of human rights challenges facing the international community; b) democracy is a universal value where people can express and freely decide their own political system, and thus member states should contribute to the new Democracy Fund to assist transitional democracies; c) impunity for genocide, crimes against humanity, and war crimes must end by cooperating with the International Criminal Court, and existing institutions for international justice; and d) the international community should endorse the “responsibility to protect” people from genocide, war crimes, ethnic cleansing, and crimes against humanity. Id. ¶¶ 138–40. This includes the need for the Security Council to work cooperatively to protect civil- ian populations, while the five permanent members should not use their veto power to block action to fulfill this responsibility.
38. Renewing the UN supra note 14, ¶ 78.
39. Id. ¶¶ 194–95.
40. See Policy Update, HUM. RTS. FOR DEV. NEWS BRIEF (UNDP), Jan. 2009, at 11, availableat http://www.undp.se/assets/Ovriga-publikationer/newsbrief-lo-res.pdf. However, the RC Guidelines “state that the RC has no role with respect to human rights monitoring, investigation or case-work.” Id.

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further institutionalize the mainstreaming of human rights in United Nations development work.41 This mechanism would enable UNDG to consolidate the achievements made by the Action 2 program between 2004 and 2008— mentioned above—as well as those from other UNDG Working Groups. On 12 November 2009 the UNDG confirmed that the new UNDG mechanism on human rights mainstreaming (UNDG-HRM) would focus on four broad priorities.42 These four priorities provide the framework for the UNDG-HRM’s three year work plan, which is split into two parts: (1) a priority work plan for 2010 to 2011;43 and (2) a medium term work plan for 2011 to 2013.44

41. See Interview with Kyung-Wha Kang, Deputy High Commissioner for Human Rights, HUM. RTS. FOR DEV. NEWS BRIEF (UNDP), 2010, at 12, available at http://content.undp.org/ go/cms-service/download/publication/?version=live&id=3204822; UNDG, Delivering as One on Human Rights: A Proposal to Institutionalize Human Rights Mainstreaming in the UNDG (12 Nov. 2009), available at http://www.undg.org/docs/11744/UNDG- proposal-on-HR-mainstreaming.pdf.
42. Those priorities are:
    1. Promoting a coordinated and coherent UN system-wide approach towards the integration of hu- man rights principles and international standards into UN operational activities for development;
    2. Providing coherent and coordinated support to Resident Coordinators and UN country teamsin mainstreaming human rights;
    3. Developing a coherent UN system-wide approach, through cooperation and collaborationamong UN agencies, to providing support towards strengthening national human rights protec-tion systems at the request of governments; and
    4. Contributing to the integration of human rights issues in the overall UNDG advocacy on thedevelopment agenda and global issues.
    See UNDG, Delivering as One on Human Rights, supra note 41.
43. The initial priorities during UNDG-HRM’s first year will be:
    1. Supporting (and updating) critical ongoing efforts:
       • Updating the human rights-based approach (HRBA) Common Learning Package and continu-ing support to HRBA training delivery, to strengthen the skills and knowledge of UNCT staffand national partners in applying HRBA in UN common country programming;
       • Expansion of current knowledge platform and products (HuriTALK/HRBA Portal);
       • Updating the current guidance on human rights for Resident Coordinators/UNCTs;
       • Review of Human Rights Adviser deployment
    2. Laying the ground work for scaled-up support in 2011–2012:
       • Mapping existing policy and operational guidance, tools and resources to identify areas inwhich policy coherence and operational synergies could be strengthened;
       • Carrying out a survey to identify needs and expectations from Resident Coordinators, UNCTsand Regional UNDG Teams for expanded support;
       • Initiating discussions to develop possible indicators and benchmarks to assess the progressof human rights mainstreaming and its impact at country level;
    3. Focusing on strategic opportunities to build system-wide advocacy:• Developing key messages and advocacy tools on the linkages between human rights and development (e.g., for the 2010 MDGs Review Summit and the 2011 High-level Forum on Aid Effectiveness).
    See UNDG, UNDG Human Rights Mainstreaming Mechanism (UNDG-HRM): Initial priorities in the context of the endorsed overall UNDG Strategic Priorities 2010–2011 (July 2010), available at: http://www.undg.org/docs/11361/UNDG-HRM-Initial-Prior- ities_FINAL.doc; see also UNDG, UNDG Human Right Mainstreaming Mechanism (UNDG-HRM): Draft Work Plan 2010–2011: Priority Activities (24 Aug. 2010), available at http://www.undg.org/docs/11714/UNDG-HRM-draft-work-plan-priority-activities-2010- 2011-(final).pdf.
44. UNDG, UNDG Human Right Mainstreaming Mechanism (UNDG-HRM), Draft Medium- Term Work Plan 2011–2013 (24 Aug. 2010), available at http://www.undg.org/docs/11714/ UNDG-HRM-draft-work-plan-mid-term-2011-2013-(Oct-21).pdf.

2011 A Three-Pillar Strategy 839

A. Definition

The concept of human rights protection encompasses all activities that aim toward obtaining full respect for human rights in accordance with the relevant bodies of law (e.g., human rights law, International Humanitarian Law (IHL), and refugee law).45 The concept includes any activity—consistent with the above-mentioned purpose—aimed at creating an environment conducive to respect for human beings, preventing or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution, and rehabilitation.46

The UN system as a whole still faces the challenge of how to more effec- tively address protection concerns in both emergency47 and non-emergency48 situations. In this regard, one must consider the issues of methodology, ap- proaches, and how to operationalize the implementation of human rights protection on the ground.

According to the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, there are four framework categories of protection:49

• Rights related to physical security and integrity (protection of the right to life and to be free of torture and cruel and inhuman treatment, assault, rape, arbitrary detention, disappearances, kidnapping, and threats of such);
• Basic rights related to basic necessities of life (e.g., the right to food, drinking water, shelter, adequate clothing, adequate health services and sanitation);
• Rights related to other economic, social and cultural protection needs (e.g., the rights to work, receive restitution or compensation for lost property, and have access to courts, and freedom from discrimination); and
• Rights related to other civil and political protection needs (e.g., the right to religious freedom and freedom of speech, personal documentation, political participation, access to courts, and freedom from discrimination).Human rights-based approaches to programming provide new tools to ensure that all programs focus on the realization of all rights of all ben- eficiaries, including civil, political, economic, social, and cultural rights. Participation, local ownership, capacity development, and sustainability are essential characteristics of rights-based programming, and should be at the

45. THIRD WORKSHOP ON PROTECTION FOR HUMAN RIGHTS AND HUMANITARIAN ORGANIZATIONS 21 (Carlo von Flüe & Jacques de Maio eds., 1999) [hereinafter THIRD WORKSHOP].
46. Id.
47. Regarding, e.g., natural disasters and armed conflicts.
48. Regarding, e.g., the rights of arrestees/detainees and discrimination against minorities.
49. See Specific Groups and Individuals: Mass Exoduses and Displaced Persons: Report ofthe Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, U.N. ESCOR, Comm’n on Hum. Rts., 61st Sess., Prov. Agenda Item 14(c), ¶ 42, U.N. Doc. E/CN.4/2005/84 (2004).

840 HUMAN RIGHTS QUARTERLY Vol. 33

forefront of planning. Equal access, the principles of universality, and non- discrimination are central concerns in the development and implementation of programs.

The human rights protection strategies also include any activity aimed at creating or consolidating a global environment conducive to respect for the rights of individuals50 and any activity to ensure that humanitarian and human rights issues and concerns are taken into account. These strategies also include ensuring that any kind of human rights violation, including vio- lations of economic, social, cultural, civil, and political rights, is brought to the attention of concerned authorities to restore dignified living conditions.51

It is therefore the collective responsibility of all components of the UN system at the country level to define a unified position on human rights protection issues and to develop a strategy to ensure that protection responsibilities are discharged effectively.52 Such a collaborative approach to addressing human rights issues through the UNCT Resident Coordinator (UNCT/RC) would help to mainstream protection issues within the UNCTs.53

Recommendations of treaty bodies, special procedures, and the UPR should be seen as an entry point for the UNCTs and RC offices to develop a collaborative approach to assist governments in implementing those rec- ommendations. This approach would involve government officials, other UN agencies, international organizations, and international and national NGOs. It, in turn, would help governments to fulfill their international human rights obligations and to come up with concrete national plans of action to strengthen national structures for the protection and promotion of human rights.

VI. DIVISION OF TASKS

Former UN Under Secretary-General for Humanitarian Affairs and the Emer- gency Relief Coordinator, Jan Egeland, launched discussions on humanitar- ian reform in order to develop a concrete plan of action on a cluster-based response mechanism to address humanitarian crises in a systematic and

50. The 1999 International Committee of the Red Cross (ICRC) Workshop on Protection identified categories under which different types of activities were grouped: Environment building, Responsive Action, and Remedial Action. THIRD WORKSHOP, supra note 45, at 25.
51. Id.
52. UN agencies and international NGOs regularly witness human rights abuses, but arehardly able to intervene.
53. Politically, the UNCT/RC should be in a position to address human rights violations, butthis will probably depend very much on the country. In some countries, the UNTC/RC will not want to intervene for fear of jeopardizing her relationship with the government.

2011 A Three-Pillar Strategy 841

proper way.54 The goal was to have an improved and more predictable humanitarian response for those affected by conflict situations and natural disasters. For the UN system as a whole, these new commitments were a major step forward in addressing long-acknowledged gaps in the humani- tarian responses to crises and in providing much-needed predictability and accountability for the collaborative response to internally displaced persons (IDPs) in particular. It was agreed that the lead of each cluster accepted the responsibility to be the agency of “the first port of call” and the “provider of last resort” within the cluster (i.e., to ensure that assessments and strategies in a given humanitarian crisis are in place within the areas of its responsibil- ity).55 As cluster lead, the assigned UN agency has to ensure that other actors assume their own allocated responsibilities to the best of their capacities.56 In an analogue to the Millennium Development Goals, agencies have been assigned to take the lead in ensuring that, in cooperation with respective member states, the twenty targets of MDGs are addressed properly.57

54. See COSTANZA ADINOLFI ET AL., HUMANITARIAN RESPONSE REVIEW (2005), available at http://onere- sponse.info/Coordination/ClusterApproach/Documents/Humanitarian%20Response%20 Review.pdf. The cluster designation is seen by the United Nations as a genuine means of improving accountability and improving the way that the humanitarian system works. The lead organizations of each cluster are meant to provide a means of supporting the Resident and Humanitarian Coordinators in ensuring a coordinated response. Id.
55. Tim Morris, UNHCR, IDPs and Clusters, FORCED MIGRATION REV. May, 2006, at 54, avail- able at http://www.fmreview.org/FMRpdfs/FMR25/FMR2531.pdf.
56. Press Release, UN Office for the Coordination of Humanitarian Affairs (OCHA), Ques- tions and Answers on the Cluster Approach and Cluster Implementation Issues, avail- able at http://www.undp.org/cpr/iasc/content/docs/QA_on_Clusters.doc. The following agencies are acting as leads with managerial responsibility and accountability for nine clusters: (1) Camp Coordination and Management—UN Refugee Agency (UNHCR) (for conflict-generated IDPs) ; (2) Emergency Telecommunications—OCHA for overall process owner; UNICEF for data collection; World Food Programme (WFP) for common security telecommunications service; (3) Early Recovery (formerly called Reintegration and Recovery)—UNDP; (4) Emergency Shelter—UNHCR (for conflict-generated IDPs); (5) Health—WHO; (6) Logistics—WFP; (7) Nutrition—UNICEF; (8) Protection—UNHCR (for conflict-generated IDPs); and (9) Water and Sanitation—UNICEF. Id. at 3.
57. Goal 1: Eradicate extreme poverty and hunger
    Target 1.A: Halve, between 1990 and 2015, the proportion of people whose income is less than one dollar a day.
    Target 1.B: Achieve full and productive employment and decent work for all, including women and young people.
    Target 1.C: Halve, between 1990 and 2015, the proportion of people who suffer from hunger.
    Goal 2: Achieve universal primary education
    Target 2.A: Ensure that, by 2015, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling.
    Goal 3: Promote gender equality and empower women
    Target 3.A: Eliminate gender disparity in primary and secondary education, preferably by 2005, and in all levels of education no later than 2015.
    Goal 4: Reduce child mortality
    Target 4.A: Reduce by two-thirds, between 1990 and 2015, the under-five mortality rate. Goal 5: Improve maternal health
    Target 5.A: Reduce by three quarters, between 1990 and 2015, the maternal mortality ratio.

842 HUMAN RIGHTS QUARTERLY Vol. 33

Based on the above-mentioned allocation of tasks within the UN system, this article proposes a similar pattern and form of cooperation between UN agencies and the treaty body and special procedures systems, as well as the Universal Periodic Review. The goal is to ensure that respective interna- tional human rights instruments and their implementation at the field level are covered by UN agencies based on their mandate and programming. Each UN agency should take the lead in cooperation with their respective counterparts (i.e., governmental and nongovernmental institutions, including NHRIs) in assisting governments in implementing recommendations of treaty bodies, specials procedures, and UPR mechanisms at the country level. This collaborative approach should in turn help to:

• •

increase the degree of implementation of core international human rights instruments that have been ratified by countries in the region;

ensure the timely submission of state reports to human rights treaty bodies;

Target 5.B: Achieve, by 2015, universal access to reproductive health.

Goal 6: Combat HIV/AIDS, malaria and other diseases

Target 6.A: Have halted by 2015 and begun to reverse the spread of HIV/AIDS.
Target 6.B: Achieve, by 2010, universal access to treatment for HIV/AIDS for all those who need it.
Target 6.C: Have halted by 2015 and begun to reverse the incidence of malaria and other major diseases.
Goal 7: Ensure environmental sustainability
Target 7.A: Integrate the principles of sustainable development into country policies and programmes and reverse the loss of environmental resources.
Target 7.B: Reduce biodiversity loss, achieving, by 2010, a significant reduction in the rate of loss.
Target 7.C: Halve, by 2015, the proportion of people without sustainable access to safe drinking water and basic sanitation.
Target 7.D: By 2020, to have achieved a significant improvement in the lives of at least 100 million slum dwellers.
Goal 8: Develop a global partnership for development
Target 8.A: Develop further an open, rule-based, predictable, nondiscriminatory trading and financial system.
Target 8.B: Address the special needs of the least developed countries.
Target 8.C: Address the special needs of landlocked developing countries and small island developing States (through the Programme of Action for the Sustainable Development of Small Island Developing States and the outcome of the twenty-second special session of the General Assembly).
Target 8.D: Deal comprehensively with the debt problems of developing countries through national and international measures in order to make debt sustainable in the long term.
Target 8.E: In cooperation with pharmaceutical companies, provide access to affordable essential drugs in developing countries.
Target 8.F: In cooperation with the private sector, make available the benefits of new technologies, especially information and communications.
United Nations Millennium Declaration, adopted 8 Sept. 2000, G.A. Res. 55/2, U.N. GAOR, 55th Sess, 8th plen. mtg., U.N. Doc. A/RES/55/2 (2000). For a convenient list, see also UN Statistics Division, Official List of Millennium Development Goals Indicators,available at http://mdgs.un.org/unsd/mdg/Resources/Attach/Indicators/OfficialList2008. pdf.

2011 A Three-Pillar Strategy 843

• increase the knowledge and understanding of treaty body procedures andrecommendations among citizens, government officials, and the media,;
• facilitate dissemination, as well as awareness-raising and supporting advocacy campaigns, at the national level concerning treaty body and special procedure recommendations;
• create monitoring and follow up mechanisms on the implementation of treaty body and special procedure recommendations both at national and local levels;
• increase the practical use of treaty body and special procedures recommen- dations to address human rights challenges and problems such as poverty eradication, access to justice, climate change, and the global financial crisis;
• define gender-related policy and legislation at the field level;
• link UN development assistance frameworks such as CCA, UNDAF, and human rights-based programming to treaty body mechanisms, special pro- cedures, and the UPR processes; and
• increase the number of standing invitations to special procedure mandate holders.The division of tasks within the UNCT is proposed as follows:

No. UN Agency58

1. 1  UNDP & UNESCO
2. 2  UNICEF & UNESCO
3. 3  UN Women & UNFPA
4. 4  ILO & IOM
5. 5  ILO
6. 6  UNESCO
7. 7  UNODC
8. 8  OHCHR

International HR Instrument59

ICESCR CRC CEDAW CMW CRPD CERD CPAPED

ICCPR & CAT

As with the cluster approach in humanitarian crises, stakeholders will need to comprehensively consult each other in order to agree to this proposed

58. UNDP: UN Development Programme; UNESCO: UN Educational, Scientific and Cultural Organization; UNICEF: UN Children’s Fund; UN WOMEN: UN Development Fund for Women; UNFPA: UN Population Fund; ILO: International Labour Organisation; IOM: International Organisation for Migration; UNODC: UN Office on Drugs and Crime.
59. ICESCR: The International Covenant on Economic, Social and Cultural Rights; CRC: the Convention on the Rights of the Child; CEDAW: the Convention on the Elimination of All Forms of Discrimination against Women; CMW: the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families; CRDP: the Convention on the Rights of Persons with Disabilities; CERD: the International Conven- tion on the Elimination of All Forms of Racial Discrimination; CPAPED: the International Convention for the Protection of All Persons From Enforced Disappearance; ICCPR: the International Covenant on Civil and Political Rights; and CAT: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment.

844 HUMAN RIGHTS QUARTERLY Vol. 33

division of tasks within the UN system. The proposed division of tasks should help UN agencies such as UNDP, UN Women, UNICEF, World Bank, and UNHCR, which are promoting good governance, democracy, and the rule of law as part of their development assistance programs, link their programs and activities with recommendations of treaty bodies, special procedures, and the UPR mechanisms at the country level. The programs and activities of various UN agencies are directly linked to the realization of human rights at the national level. These activities include: creating an “enabling envi- ronment” for human development; access to justice; development of legal systems; security sector reforms; monitoring the impact of judicial reforms; decentralization and local governance, including constitutional frameworks for effective devolution; strengthening accountability and anti-corruption systems; conflict prevention and resolution initiatives; advocacy and train- ing programs concerning the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) for the judiciary; review and reform of national laws from the gender perspective; gender mainstreaming in programming processes such as CCA and UNDAF; placing HIV/AIDS at the center of national planning and budgets; promoting access for the poor to energy services, clean water, and sanitation services, and supporting liveli- hoods that lead to sustainable management of lands, forests, and fisheries; and conservation and sustainable use of bio-diversity as well as indigenous peoples’ policy. Recommendations of treaty bodies, special procedures, and the UPR mechanisms should be seen as the main and necessary tools for accomplishing these activities.

VII. AN OPERATIONAL STRATEGY

OHCHR Regional Offices, together with Country Offices, are at the forefront of OHCHR’s efforts to build relationships with governments at the regional and national levels in accordance with the Office’s above-mentioned ob- jective to improve protection and empower rights-holders by supporting compliance with human rights standards by duty-bearers.60

The “Three-Pillars Strategy” (treaty bodies, special procedures, and the UPR process) should be seen as an integral part of any country-level activity for the following reasons:

60. In accordance with the UN Charter and the mandate of the UN High Commissioner for Human Rights, as set out in General Assembly Resolution 48/141 of 20 Dec. 1993, Regional Offices will engage with governments, inter-governmental and nongovernmental organizations, as well as relevant UN partners, to formulate and implement strategies, programs, and activities for the promotion and protection of all human rights in the countries covered by the Regional Office. See G.A. Resolution 48/141, supra note 11.

2011 A Three-Pillar Strategy 845

• The TPS should be the basis of the national protection framework, as only this framework and process establish legal obligations for states and attract the accountability that only legal obligations predicate, even as national laws and practices change;
• The process of TPS implementation (including the preparation of reports, follow-up measures to implement recommendations of treaty bodies, special procedures, and the UPR process) provides a critical mechanism to bring about legislative, policy, and programmatic change, as well as transparency at the national level;
• The TPS identifies specific human rights problems, which may help set priorities at the national level;
• The TPS process may provide a framework for joint action by governments, UN agencies, NGOs, and other partners, as well as a guiding reference tool for CCA and UNDAF programming;
• The TPS and follow-up can be used as a focus for a national dialogue on human rights among the various stakeholders in the process, thus engaging with and facilitating the host society’s efforts, which are indispensable for achieving sustainability;
• The TPS provides additional tools for National Human Rights Institutions, whose responsibilities include encouraging ratification or accession to in- ternational human rights instruments and ensuring their implementation, as well as contributing to state party reports;
• The reporting and follow-up process (treaty body & UPR), including the preparation and examination of the state parties’ reports, provides an op- portunity for public scrutiny of government policies and encourages the involvement of various sectors of society in the formulation, evaluation, and review of policies;
• International human rights standards provide additional tools for national courts and provide a framework for human rights accountability at interna- tional and national levels; and
• Finally, the TPS clarifies the meaning of universal human rights standards. Among its many benefits, the “Three-Pillars Strategy” provides:

• a non-confrontational strategy to engage governments in human rights issues;
• a tool of accountability in dialogue with governments;
• a means of enhancing government officials’ and civil society’s knowledge of human rights;
• a useful tool for advocacy and in benchmarking the level of knowledge and implementation of relevant human rights standards at the national level;
• an entry point for capacity building programs for governmental and non- governmental institutions;

846
•

• •

VIII.

HUMAN RIGHTS QUARTERLY Vol. 33

a useful means to strengthen channels of communication between govern- mental and nongovernmental institutions;

an instrument to strengthen NGO networking both at national and regional levels to develop joint strategies to improve human rights protection; and

a low budget for implementation and operationalization.

TREATY BODIES: PILLAR ONE

Nine core human rights treaties set the legal standards for states parties to follow for the promotion and protection of human rights at the national level.61 Currently, eight UN human rights treaty body committees monitor the implementation at the national level of human rights provisions contained in those treaties which that have entered into force.62 The human rights treaty body system primarily seeks to ensure the realization of human rights protection at the national level through implementation of the human rights contained in the treaties.63

61. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR]; International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter ICCPR]; International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966) [hereinafter ICERD]; Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., U.N. Doc. A/34/46 (1980), 1249 U.N.T.S. 13 (entered into force 3 Sept. 1981) [hereinafter CEDAW]; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., U.N. Doc. A/39/51 (1985), 1465 U.N.T.S. 85 (entered into force 26 June 1987) [hereinafter CAT]; Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3 (entered into force 2 Sept. 1990) [hereinafter CRC]; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted 18 Dec. 1990, G.A. Res. 45/158, U.N. GAOR, 45th Sess., U.N. Doc. A/RES/45/158 (1990) (entered into force 1 July 2003) [hereinafter CMW]; Convention on the Rights of Persons with Dis- abilities, adopted 13 Dec. 2006, G.A. Res. 61/106, U.N. GAOR, 61st Sess., U.N. Doc. A/RES/61/106 (2006) (entered into force 3 May 2008) [hereinafter CRPD]; International Convention for the Protection of All Persons from Enforced Disappearance, adopted 20 Dec. 2006, G.A. Res. 61/177, U.N. GAOR, 61st Sess., U.N. Doc. A/Res/61/177 (2006) (entered into force 23 Dec. 2010) [hereinafter CPAPED].
62. See OHCHR, Human Rights Bodies, http://ohchr.org/en/hrbodies/Pages/HumanRights- Bodies.aspx. Each treaty body is comprised of a committee of experts, who are of recognized competence in the field of human rights, who are nominated and elected by states parties to the treaties, but serve in their individual capacities. Id.
63. Monitoring and encouragement of implementation are affected by the treaty bodies through several procedures. Each treaty body reviews reports submitted by states parties on a periodic basis; five treaty bodies are mandated to review complaints of individuals; and two treaty bodies are empowered to carry out inquiries into systematic violations of the treaty concerned. See id.

2011 A Three-Pillar Strategy 847

Reporting under the treaty bodies is a process rather than an event. Accordingly, a policy of mutual cooperation between the treaty bodies and the UNCTs in general, and OHCHR field presences in particular, should increase the continuing human rights dialogue at the field level and help to strengthen national human rights protection systems. The effectiveness of the treaty body system will depend to a large extent on the support provided by the Treaty Body Branch at headquarters in Geneva, the field presences, and the UNCTs.

Activities relating to the treaty implementation process at the country level are proposed as follows:

• •

•

• •

• •

Linking recommendations of treaty bodies with the Regional Coordination Mechanism’s Thematic Working Groups64 and the Regional Directors Team (RDT);65

Identifying one to three treaty body recommendations (through a consultative process between UN agencies, respective governmental and nongovernmen- tal institutions, and NHRIs) to assist governments in implementing within a certain period of time;

Providing training workshops, seminars, and sharing of best practices to contribute to awareness raising among national stakeholders, including governments, NHRIs, UN partners, regional organizations, and civil society on such subjects as treaty bodies, their recommendations, and follow-up;

Providing technical and substantive support during the drafting of state party reports, as well as “shadow reports,” and analyzing barriers to reporting;

Assisting governmental and nongovernmental institutions, including NHRIs, in establishing their “National Reporting System,” through which a coordi- nation mechanism and a mapping structure (e.g., responsible state agents) concerning the roles of various stakeholders in the reporting process will be in place;

Preparing a user-friendly table which breaks down treaty body recommenda- tions into human rights thematic issues and identifies their relevance to the CCA and UNDAF programs;

Providing assistance to governments in translating concluding observations and treaty body recommendations into national languages and ensuring their wide dissemination throughout the country;

This could include issues such as education; environment and disaster management; health; poverty and hunger; international migration and human trafficking; gender equality; and empowerment of women.
The roles and functions of the RDT include: (1) strategic guidance and support to RCs and UNCTs; (2) support the work of UNCTs for strategic prioritization and guidance of CCA-UNDAF processes, change management and harmonization of business practices; and (3) annual joint performance assessments of the RCs and of the UNCTs. See UNDG, Terms of Reference for the Chair of the Regional Directors Team (RDT), available at http://www.undg.org/docs/10752/Final_RDT_ToRs.docx.

64. 65.

848
•

• • • •

HUMAN RIGHTS QUARTERLY Vol. 33

Launching awareness-raising and advocacy campaigns on treaty body recom- mendations at the national level;

Bringing the treaty bodies to the region: for example, the organization of a meeting of committee members in the region to discuss the drafting of a general comment that is of particular relevance for the region;

Creating a monitoring system within the UNCTs to evaluate and monitor the progress in implementing treaty body recommendations, including through mid-term and end-term assessments and participatory processes;

Providing concise and substantive input by the UNCTs and OHCHR field presences to treaty bodies on particular areas of concern with regard to the implementation of the respective convention under consideration;66 and

Catalyzing actions through Geneva and New York where direct intervention at the regional and national level seems non-conducive or counter-productive.

IX. SPECIAL PROCEDURES: PILLAR TWO

Special procedures mechanisms are one of the most effective human rights protection mechanisms within the whole UN system. They offer prompt and direct action, providing victims of human rights violations with a unique oppor- tunity to see those violations openly addressed at the Human Rights Council.67

Special procedures can also function as a useful diagnostic tool for governments’ follow-up action, including in cooperation with UN techni- cal assistance programs. Various activities can be undertaken by special procedures, including responding to individual complaints, conducting studies, visiting countries, providing advice on technical cooperation, and engaging in general promotional activities. Crucially, mandate holders help all stakeholders better understand how human rights norms are applied in practice on the ground. This ability to provide practical information based on directly observed situations or diligently researched data and public reports complements the work of other human rights institutions. Moreover, mandate holders can identify emerging trends and areas in need of improvement in relation to thematic issues or countries visited.68 They can also provide thematic expertise and advice for capacity building in human rights.

An active dialogue and interaction between the UNCTs and the special procedures mandate holders should help to strengthen national human rights

66. Treaty body experts value contributions submitted by human rights field presences as a reliable source of up-to-date information on particular concerns regarding the imple- mentation of the respective treaties in the territory of the state party.
67. See Special Procedures of the Human Rights Council, supra note 1.
68. One example: Upon the request of the government, the Special Rapporteur on torture visited Georgia in February 2005. The UNDP Country Office was involved and acted as the focal point for organization and facilitation of the mission, including provision of information on the current state of affairs regarding human rights and the appall- ing conditions in penitentiaries. The possibility of UNDP’s further involvement in the

2011 A Three-Pillar Strategy 849

protection systems. Channeling the recommendations of special procedure mandate holders to UNCTs, as well as governmental and nongovernmental institutions, and having them followed up at the country level should have a positive impact on the overall human rights situation. The effectiveness of the special procedures will certainly depend on the support provided by the Special Procedures Division at headquarters in Geneva, the field pres- ences, and the UNCTs.

Activities relating to the implementation of recommendations of special procedures mandate holders at the country and regional levels are proposed as follows:

• •

Prioritizing recommendations of the special procedures mandate holders to be implemented by all stakeholders;

Inviting experts (mandate holders) to panel discussions initiated by UNCTs on various human rights thematic issues on a regular basis;69

implementation of recommendations and follow-up actions was discussed together with the UNCT and the donor community. Draft recommendations were presented to the UNCT and a discussion was held on supporting governments in overcoming a culture of impunity and on ratifying the Optional Protocol on the Convention Against Torture (OPCAT) in order to establish a truly independent monitoring system for penitentiaries. The government ratified OPCAT in 2006. As a result of the visit and recommendations of the Special Rapporteur, the new Country Program Action Plan (CPAP) extended its focus on justice and human rights. In addition, in the framework of an ongoing project supporting the National Human Rights Institution, a number of trainings were added and conducted on the Convention Against Torture (CAT) and the Optional Protocol on the Convention Against Torture, both for the staff of the Public Defenders Office as well as the law enforcement institutions. See Civil and Political Rights, Including: The Questions of Torture and Detention, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Mission to Georgia, U.N. ESCOR, Comm’n on Hum. Rts., 62d Sess., Prov. Agenda Item 11(a), U.N. Doc. E/CN.4/2006/6/Add.3 (2005). For the follow-up, see Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, U.N. GAOR, Hum. Rts. Council, 4th Sess., Agenda Item 2, ¶¶ 193–306, U.N. Doc. A/HRC/4/33/Add.2 (2007); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, U.N. GAOR, Hum. Rts. Council, 7th Sess., Agenda Item 3, ¶¶ 167–237, U.N. Doc. A/HRC/7/3/Add.2 (2008); Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, U.N. GAOR, Hum. Rts. Council, 13th Sess., Agenda Item 3, ¶¶ 26–31, U.N. Doc. A/HRC/13/39/Add.6 (2010).

Another example is represented by the recent visit of the UN Special Rapporteur on Torture to Uruguay from 20–28 March 2009. The visit provided the Special Rapporteur with the opportunity to discuss several issues with both the UNCT and the government and to formulate a number of recommendations, which have already been the subject of specific follow-up by the UNCT and have stimulated the government’s action. See Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Addendum, U.N. GAOR, Hum. Rts. Council, 13th Sess., Agenda Item 3, U.N. Doc. A/HRC/13/39/Add.2 (2009).

This would offer an opportunity to build up channels of communication and confidence between the invitee and government officials, which would encourage governments to cooperate with special procedures in a positive and constructive way by, inter alia, issuing a standing invitation to the special procedures mandate holders.

69.

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•

• •

•

• •

•

•

Information-sharing on a specific country or regional situation with members of the UNCTs, governmental and nongovernmental institutions, as well as national human rights institutions;

Launching awareness-raising and advocacy campaigns on general recom- mendations of the special procedures mandate holders at the national level;

Disseminating the Weekly Briefing Note on Special Procedures, the quarterly Bulletin on Special Procedures, the Annual Facts and Figures, the annual compilation of recommendations of special procedures by country, the An- nual Communication Bulletin, the communication leaflets and other relevant information on special procedures to all stakeholders, including the UNCTs, civil society organizations, and targeted governmental institutions;

Encouraging members of the UNCTs, civil society organizations, and mem- bers of NHRIs to attend the special procedures mandate holders meeting that takes place annually in Geneva;70

Providing concise and substantive input by the UNCTs and OHCHR field presences to special procedures on particular areas of concern;71

Organizing workshops with civil society organizations and NHRIs on the mandate, function, and work of the special procedures mandate holders and encouraging them to build up their channels of communication with mandate holders;

Organizing a seminar on what methods of work can be adopted to make the interaction between special procedures mandate holders and other stakeholders, including the UNCTs, governmental and nongovernmental institutions, as well as NHRIs, more strategic and conducive to a greater implementation of special procedures’ recommendations; and

Producing a table on best practices of special procedures to be shared among all stakeholders.

OHCHR, SPECIAL PROCEDURES MANDATE HOLDERS, MANUAL OF OPERATIONS OF THE SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL 116–17 (2008).
A concrete example is that, as a result of excellent cooperation between UNICEF and the Mexican Government, a national commission was set up following the Special Rap- porteur’s report on the sale of children, child prostitution, and child pornography. See Report Submitted by the Special Rapporteur on the Sale of Children, Child prostitution and Child pornography, Juan Miguel Petit, Addendum: Mission to Mexico, U.N. GAOR, Hum. Rts. Council, 7th Sess., Agenda Item 3, U.N. Doc. A/HRC/7/8/Add.2 (2008).

Another is that in Lao PDR, where the Inter-Agency Group on Trafficking of Children/ Mekong Group was established thanks to the Special Rapporteur’s awareness-raising within the UNCT. See Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, Ms. Ofelia Calcetas-Santos, Addendum: Mission of the Special Rapporteur to the Lao People’s Democratic Republic on the Issue of Traf- ficking of Children (21–25 September 1998), U.N. ESCOR, Comm’n on Hum. Rts., 55th Sess., Prov. Agenda Item 13, U.N. Doc. E/CN.4/1999/71/Add.1 (1999).

70. 71.

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X. UNIVERSAL PERIODIC REVIEW (UPR): PILLAR THREE

The UPR is a new procedure which complements other UN human rights mechanisms. The procedure involves examining all 192 member states, over a four-year cycle, in order to evaluate their fulfillment of their human rights obligations.72 The process represents a new opportunity for member states, UN agencies, international organizations, and national NGOs to look into the human rights situation73 of the respective country, develop concrete recommendations, and follow up to improve the situation in that country. The background and framework of the National Reports are based on the international obligations of the respective member state, including the ratification status of the nine core instruments and their protocols, recom- mendations made by human rights mechanisms for the ratification of other international instruments, concerns and recommendations by human rights mechanisms on declarations, and reservations made by the state.74

Each state member must present its National Report to the Human Rights Council, which should contain four key parts: (1) an overview of the current human rights situation; (2) analysis of fulfillment of human rights obligations and commitments; (3) strategies and commitments for improving the enjoyment of human rights; and (4) information about the consultation process undertaken in preparing the report.75

72. On 15 March 2006, the General Assembly adopted resolution 60/251, by which it established the Human Rights Council See Resolution on the Human Rights Council, supra note 6. On 18 June 2007, at its fifth session, the Council adopted resolution 5/1, entitled “Institution-building of the United Nations Human Rights Council,” by which it agreed, among other things, on the process and modalities to be followed in the conduct of the UPR. Institution-Building of the United Nations Human Rights Council, adopted 18 June 2007, H.R.C. Res. 5/1, U.N. GAOR, Hum. Rts. Council, 5th Sess., 9th mtg., U.N. Doc. A/HRC/RES/5/1 (2007).
73. Resolution 5/1 provides that the review will be based on information prepared by the state under review, taking the form of a national report, as well as a compilation of information contained in the reports of treaty bodies, special procedures, and other relevant official UN documents, and a summary of the information provided by other relevant stakeholders. The latter two documents are to be prepared by the OHCHR. Id. annex ¶ 15.
74. The objectives of the UPR, as per resolution 5/1, are (a) “[t]he improvement of the human rights situation on the ground,” (b) “[t]he fulfillment of the State’s human rights obliga- tions and commitments and assessment of positive developments and challenges faced by the State,” (c) “[t]he enhancement of the State’s capacity and of technical assistance, in consultation with, and with the consent of, the State concerned,” (d) “[t]he sharing of best practices among States and other stakeholders,” (e) “[s]upport for cooperation in the promotion and protection of human rights,” and (f) “[t]he encouragement of full cooperation and engagement with the Council, other human rights bodies, and the [OHCHR].” Id. annex ¶ 4.
75. The National report should include the UPR principles of: a) promoting the universal- ity, interdependence, indivisibility and interrelatedness of all human rights; b) being a cooperative mechanism; c) ensuring universal coverage and equal treatment; d) fully involving the country under review including through ensuring the participation of all

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One of the principles of the UPR is to “[e]nsure the participation of all relevant stakeholders, including non-governmental organizations and national human rights institutions.”76 This resolution encourages states to “prepare the information [contained in their reports] through a broad consultation process at the national level with all relevant stakeholders.”77

The UPR process has already become an integral part of OHCHR’s overall priorities, programming, and activities. It has been undertaken in conjunc- tion with the follow up to other UN human rights mechanisms, including the recommendations from the High Commissioner, the treaty bodies, and special procedures mechanisms.

Activities relating to the implementation of recommendations of the UPR at the country level are proposed as follows:

• •

•

• •

Continuing to organize regional UPR consultations with all stakeholders, including government officials, NHRIs, civil society organizations, and UN agencies on the preparation of national reports;

Identifying one to three UPR outcome recommendations to be made through a consultative process between UN agencies, respective governmental and nongovernmental institutions, as well as NHRIs, and to collectively assist governments in implementation;

Providing training workshops, seminars, and sharing of best practices to raise awareness among national stakeholders, including governmental and nongovernmental institutions, NHRIs, UN partners, regional organizations, NGOs, and civil society, on the UPR outcome and its recommendations and follow up in coordination with workshops under the other two pillars;

Assisting civil society networks and platforms as a check on governmental entities regarding, inter alia, the implementation of the UPR recommenda- tions;

Systematically disseminating the UPR outcome and recommendations to UNCTs and encouraging them to integrate the UPR outcome in their program and activities planning in coordination with the other two pillars;

relevant stakeholders; e) conducting activities in an objective, transparent, non-selective, constructive, non-confrontational, and non-politicized manner; and f) ensuring a fully integrated gender perspective. Id. annex ¶ 3. As far as this last principle is concerned, a gender-sensitive approach should be adopted in all phases of the UPR, including through the data collected and consultations undertaken with women’s groups; in addition, the report could include a specific consideration of gender issues and women’s rights.

Id. annex ¶ 3(m).
Id. annex ¶ 15(a). States are thus encouraged to involve stakeholders at the national level in preparing their report. They may wish to consider the possibility of holding national consultative meetings and other processes for eliciting stakeholders’ views. The outcome of such meetings and processes would provide valuable inputs to the national report. Consideration should be given to how one might incorporate the views of all relevant stakeholders.

76. 77.

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• Assisting the governmental and nongovernmental institutions and NHRIs in establishing a “coordination/steering committee” and designating focal points (e.g., inter-ministerial mechanisms) for the preparation of the National Report;
• Launching awareness-raising and advocacy campaigns on UPR recommenda- tions at the national level;
• Including in the online Human Rights index database the UPR outcome and recommendations, as well as the voluntary pledges, commitments, and responses from the state under review;78 and
• Creating a monitoring system within the UNCTs to evaluate and monitor the progress of the implementation of the UPR outcome and its recommenda- tions, in coordination with the other two pillars, including through mid-term and end-term assessments and participatory processes.XI. CONCLUSIONSOHCHR must take a stance on protection issues. It has a distinct role within the UN system in addressing human rights violations and ensuring that protection responsibilities within the UN system are discharged effectively. Within the framework of mainstreaming human rights, OHCHR has to in- tegrate its protection mandate into the UN system at the country level. The United Nations as a whole has a protection mandate (humanitarian and human rights). The UNCTs must take a proactive role on behalf of persons whose human rights are threatened or have been violated.Creating and maintaining a unified and coordinated UN position on protection issues is an essential responsibility of the UNCTs. The protection mandate must be mainstreamed within the UNCTs, and protection aspects must be integrated in the programs of all UN agencies acting at the country level.The primary role of field presences is to act as a facilitator to ensure the existence and functioning of a system for assisting governments with the implementation of recommendations of treaty bodies, special procedures, and the UPR process within the UNCTs. This kind of human rights main- streaming among other UN agencies should help not only to increase the knowledge of UN staff members in human rights issues, but also to engage the UN system as a whole to deal with human rights problems both at national and regional levels.

78. See Universal Human Rights Index of United Nations Documents, http://www.univers- alhumanrightsindex.org.

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In general, the proposed TPS, which is one of the most realistic strategies to realize human rights at the national and regional levels, should been seen as a confidence-building measure, the purpose of which is not only to build up channels of communication with governmental institutions, but also to find ways in which those institutions can be constructively engaged in hu- man rights issues. It should also been seen as an entry point for OHCHR’s partners, including government officials, other UN agencies, international organizations, and international and national NGOs, to build up structures for the promotion and protection of human rights both at national and regional levels.

In the context of the One-UN concept, it is crucial to integrate rec- ommendations of all the pillars into UNCTs’ work and planning and, likewise, to integrate UNCTs into the implementation process of the TPS. The implementation of the TPS should be seen as one of the main human rights-based strategies. The human rights-based strategy as a collaborative approach should ensure that the role and task of each UN agency is defined with regard to the respective international human rights instrument and its implementation process, and that a follow-up system for the implementation of the TPS is in place. Prioritizing treaty body, special procedures, and the UPR recommendations and identifying implementation gaps should help respective governments to take concrete measures to address human rights problems on the ground.

The TPS should be seen as an instrument for UNCTs in the region within the “Delivery as One”79 to devise a unified position and strategy on human rights protection issues and to ensure that protection responsibilities are discharged effectively. The TPS will also help to mainstream human rights promotion and protection issues within the UNCTs, and thus to address human rights issues at the country level. Recommendations of treaty bod- ies, special procedures, and the UPR process should be seen as an entry point for the UNCTs and RC Offices to develop a collaborative approach involving all stakeholders so that they can identify human rights problems at the country level and address them collectively. Through close cooperation between the UNCTs and governmental and nongovernmental institutions, the TPS will assist governments in fulfilling their international human rights obligations and in devising concrete national plans of action to strengthen national structures for the protection and promotion of human rights.

The TPS will help to identify gaps within governmental and nongovern- mental institutions, and to come up with concrete plans of action, as well as follow-up measures, to prevent violations of human rights from occurring. The process of TPS implementation also provides a critical mechanism to

79. See DELIVERING AS ONE, supra note 8.

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bring about legislative, policy, and programmatic change, as well as trans- parency at the national level.

Within the One-UN Concept, the TPS could be used as an entry point to support building and strengthening national human rights protection systems, including the administration of justice, legislative reform, national human rights institutions, and civil society.

The framework provided by the international human rights instruments and the inputs derived from the recommendations of international human rights mechanisms should be considered central in guiding the process of harmonization and simplification of the common country programming process (CCA/UNDAF).80 The challenge now lies in ensuring that the TPS informs the programming process at the country level. The direct involvement of OHCHR with UNCTs (as non-resident agency) is crucial for mainstream- ing human rights in UN agencies’ work at the country level.

The TPS is also an opportunity for the UNCTs and international organi- zations and national NGOs to encourage governments to ratify outstanding international human rights instruments, remove reservations, submit reports which are due to treaty bodies, and issue standing invitations to special procedures.

The TPS as a strategic framework for action at the field level will help strengthen the treaty body mechanisms, special procedures, and the UPR, which in turn will help to increase their overall impact. This two-way ap- proach will help fill the existing gap between the field presences, on the one hand, and the Human Rights Treaties Branch, the Special Procedures Divi- sion, and the Human Rights Council Branch at headquarters, on the other. Filling this gap will ensure that within the One-UN Concept, human rights issues are adequately addressed at the national, regional, and global levels.

The role of OHCHR in the overall process of TPS is to ensure that ad- visory services and expertise in the field of human rights are provided in a professional and timely manner.

* HomayounAlizadehwasborninZürich,Switzerlandandattendedprimaryandhighschoolin Teheran and Shiraz, Iran. He received a Ph. D. in Political Science and Law at the University of Vienna, Austria, and graduated from the Diplomatic Academy of the Austrian Ministry of Foreign Affairs in 1983. Since 1987, Alizadeh has been working with the Austrian Federal Ministry of the Interior as Deputy Director of the Department for Refugees and Migration. He is currently on leave. Since 1995, Alizadeh has been working with the United Nations. From 1995 to 1998, he worked as Government Liaison Officer and Assistant to Chief of Mission with the United Nations Human Rights Field Operation in Rwanda (UNHRFOR), and from 1999 to 2001, he worked as a member of the Identification Commission and was Coordinator of the Appeals Analysis Teams with the United Nations Mission for the Referen- dum in Western Sahara (MINURSO). From March 2001 to June 2005, Alizadeh was Head of Office of the United Nations High Commissioner for Human Rights (OHCHR) in Khartoum, Sudan. He is currently working as the Regional Representative of OHCHR for South-East Asia with its seat in Bangkok, Thailand. Alizadeh has longstanding experience in human rights training programs for members of the armed forces, including military, security, and police personnel. As a human rights activist, he worked with Amnesty International (AI) from 1976 to 1981. As a board member of the Austrian Section of AI he was responsible for adoption groups and served as coordinator of the campaign against the death penalty. From 1982 to 1987, he was chairperson of the Austrian Committee for the Defense of Human Rights in Iran.