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Working Group on elaboration CHR week 2-7
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All workgroup answers , also summarizes several chapters and articles. (Kiobel / apkan receptor approach)
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Week 2material to be studied
o Bantekas & Oette: chapters 4 & 5 & 7.1-7.4
o Reader:
- International Covenant on Civil and Political Rights (ICCPR, 1966)
- Optional Protocol to the ICCPR
- International Covenant on Economic Social and Cultural Rights (ICESCR, 1966)
- Optional Protocol to the ICESCR
- CESCR, General Comment No. 19, The right to social security (art. 9),
E/C.12/GC/19, 4 February 2008
- UN General Assembly Resolution establishing the Human Rights Council (60/251,
2006)
- Human Rights Council Resolution Res 5/1
- Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965)
- HRC, Broeks v. the Netherlands, Communication No. 172/1984, UN Doc.
CCPR/C/OP/2 at 196 (1987)
BOOK
CHAPTER 4: THE UNITED NATION CHARTER SYSTEM
4.1. Introduction
The UN Chartes was not designed to address human rights, but was instead a mechanism primarily
intended to maintain and secure international peace and security. Some human rights are visible but
these were not originally meant to confer strict obligations on states. Yet the human rights framework
of the Charter remains important cause in the sixty or so years since its adoption many of the
Charter’s principal organs and their subsidiary institutions have been instrumental in protection and
promotion of human rights worldwide. Since the end of the Cold War in the early 1990s there has
been a shift towards a more visible human rights-centered approach. This is visible in de
depoliticisation of human rights institutions, the adoption of a human rights agenda by the Security
Council and the mainstreaming of human rights within the Organization as a whole.
There is a difference between Charter based institutions and Treaty based institutions.
TABLE HC+WG
Charter-based (non-conventional) Treaty-based (conventional)
Based directly or indirectly on Charter Based on human rights treaties
(article 7)
Apply to all UN Member States Apply to States parties
Monitoring (mostly but not Monitoring by quasi-judicial bodies,
exclusively) by political organs independent experts
Important: If you can trace an organ back to the charter, it’s Charter based
based on UN Charter (1945)
- established by the UN Charter: art. 7
- established by a Charter-based body, e.g. UNGA established Human Rights Council
(Res. 60/251, 2006); High Commissioner for HR (GA RES 48/141, 1993)
, - and again by such bodies, e.g. special rapporteurs appointed by Human Rights
Council, etc.
based on treaties concluded by UN Member States
- main human rights treaties: ICCPR, ICESCR, CERD, CEDAW, CRC, CAT +
OPCAT, CRMW, CRPD, CED
Charter and treaty based: advantages/disadvantages:
- Is there a conflict of interest between charter and treaty based mechanisms?
- Any overlap between the work?
- “reporting fatigue”
- Multiple ineffective mechanisms?
- But: the potential to cover both individual and collective/narrow and broad complaints/issues
- 1503: allows for complaints re states who have not ratified treaties, and more political system
– provides for more than just treaty body “views” that rely on state cooperation and consent
4.2 The Human Rights dimension of the Charter
Article 103: of the Human Rights provisions of the Charter prevail over any conflicting provisions
contained in other treaties and are derogable solely in accordance with the charter. But this is only the
case if the provisions are couched in the form of concrete obligations for member states. Otherwise
the risk is that it is outside the mandate of the Charter’s organs and institutions. So originally, human
rights provisions were not a priority and a majorirty of members were averse to any reference to them.
Because of the efforts of Eleonor Roosevelt meagre provisions could make the Charter.
Article 1 (3), 55 and 56 are
Werkgroep opdrachten uitgewerkt
Week 2
April 2015
theme 2 – UN human rights mechanisms
lecture: dr. Marjolein van den Brink
The human rights mechanisms of the United Nations are the focus of this week. The UN has a great
number of bodies, experts and committees involved in the progressive realisation of human rights.
Some of these bodies where established by the UN’s Charter, or have subsequently been established
by any of these so-called ‘Charter-based bodies’. Many, but not all, are composed of state
representatives, and thus political in nature. An example is the Human Rights Council.
Of a different character are the ‘treaty-based bodies’. The UN has adopted a number of important
human rights treaties. To monitor States Parties’ implementation of these treaties, supervisory bodies
have been established, such as the Human Rights Committee that monitors the International
Convention on Civil and Political Rights (ICCPR). Treaty-based bodies are always composed of
independent experts, and thus more legal in character. The instruments available to some of the major
Charter-based bodies (the Human Rights Council in particular) as well as those of the treaty bodies
, will be explored.
material to be studied
Bantekas & Oette: chapters 4 & 5 & 7.1-7.4
Reader:
International Covenant on Civil and Political Rights (ICCPR, 1966)
Optional Protocol to the ICCPR
International Covenant on Economic Social and Cultural Rights (ICESCR, 1966)
Optional Protocol to the ICESCR
CESCR, General Comment No. 19, The right to social security (art. 9), E/C.12/GC/19, 4 February
2008
UN General Assembly Resolution establishing the Human Rights Council (60/251, 2006)
Human Rights Council Resolution Res 5/1
Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965)
HRC, Broeks v. the Netherlands, Communication No. 172/1984, UN Doc. CCPR/C/OP/2 at 196
(1987)
questions to be prepared
General:
HR Committee: monitors the ICCPR, treaty based
Commission on Human rights became the Human Rights Council because the commission failed
basically.
1.
Read the case of Broeks v. the Netherlands, decided by the Human Rights Committee in 1987
and answer the following questions:
a)
Summarize the facts of the case.
Broeks, a married Netherlands national, worked as a nurse for several years before her employer
dismissed her for reasons of disability. Broeks received benefits under the Netherlands social security
system for five years before her unemployment payments were terminated under Netherlands law. In
her complaint to the Committee, Broeks claimed that the Netherland's Unemployment Benefits Act
(WWV) made an unacceptable distinction on the grounds of sex and status, and discriminated against
her as a woman in violation of article 26 of the International Covenant on Civil and Political Rights
under which all persons are equal before the law and are entitled without any discrimination to its
protections. Broeks argued that because she was a married woman at the time of the dispute, the law
excluded her from continued unemployment benefits. Under section 13 subsection 1 of the
Unemployment Benefits Act (WWV), a married women, in order to receive WWV benefits, had to
prove that she was a "breadwinner" - a condition that did not apply to married men. Had she been a
man, civil status would not have been an issue, paragraph 8.2
b)
What does the Committee say about the applicability of the International Covenant on Civil and
Political Rights (ICCPR) and the overlap with provisions of the International Covenant on
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