The United Nations and Human Rights

Pustorino, Pietro

doi:10.1007/978-94-6265-563-8_5

Pietro Pustorino²

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Abstract

The chapter examines the contribution of the United Nations to the creation and progressive development of international human rights law. It first focuses on the main control bodies established by human rights treaties concluded within the framework of the UN. While these bodies do not adopt binding acts, their decisions are sometimes taken into consideration by national—even supreme—courts. Afterwards, the role played by the main UN organs in the field of human rights is analyzed, paying specific attention to the practice of the Security Council and to the interplay between its functions and those of the International Criminal Court.

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Notes

1.
See Chap. 1, Sect. 1.1.
2.
See Article 1(3).
3.
See Article 55(3).
4.
On soft law, see Chap. 3, Sect. 3.11.
5.
For an examination of that Convention, see Chap. 7, Sect. 7.8.
6.
See Article 40 ICCPR.
7.
See Article 41 of the Covenant.
8.
See Article 42 of the Covenant.
9.
See views of 13 March 2020, Elena Genero v. Italy, CCPR/C/128/D/2979/2017, para 6.2.
10.
See Chap. 4, Sect. 4.2.
11.
The said tendency now finds its legal basis in the Rules of Procedures of the HRC. Pursuant to Article 99(b), applicable to communications received by the Committee as of 1 January 2012, “a communication may constitute an abuse of the right of submission, when it is submitted five years after the exhaustion of domestic remedies by the author of the communication, or, where applicable, three years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay, taking into account all the circumstances of the communication”.
12.
See Articles 16–17 ICESCR.
13.
See Chap. 4, Sect. 4.2.
14.
See Chap. 3, Sect. 3.10.
15.
See Article 9 ICESCR.
16.
See Article 9 of the Convention.
17.
Id., Article 11(1)–(2).
18.
See the decision of 12 December 2019, State of Palestine v. Israel, CERD/C/100/5, para 3.38.
19.
Id., para 3.41.
20.
See Article 12(1) of the Convention.
21.
Id., Article 13.
22.
See para 66 of the Decision, CERD/C/103/R.6.
23.
Id., Article 14.
24.
See Article 18 of the Convention.
25.
See Article 8 of the Protocol.
26.
Id., Article 2.
27.
María de los Ángeles González Carreño v. Ministry of Justice.
28.
See CEDAW/C/58/D/47/2012.
29.
See respectively Articles 96 and 10(2) of the Spanish Constitution.
30.
See Article 24 of the Convention.
31.
See Article 7(4) of the Protocol.
32.
See Article 19 of the 1984 Convention.
33.
Id., Article 20.
34.
Id., Articles 21–22.
35.
See Parts I to III of the Protocol.
36.
See Article 26.
37.
See Article 29.
38.
Individual communications are considered inadmissible if they are anonymous, constitute an abuse of the right of submission or are incompatible with the Convention’s provisions, or the same matter is being examined under another procedure of international investigation or settlement of the same nature or when all effective available domestic remedies have not been exhausted: see Article 31(2).
39.
See Articles 31(3) and 31(4).
40.
See Article 31(5).
41.
In case of “well-founded indications that enforced disappearance is being practised on a widespread or systematic basis in the territory under the jurisdiction of a State Party”, Article 34 empowers the Committee to urgently bring the matter to the attention of the UNGA through the UNSG, after seeking from the State party concerned all relevant information on the situation.
42.
See Amparo en revisión no. 1077/2019.
43.
See para 130.
44.
Id., paras 132–133.
45.
With regard to the Government of Myanmar’s disregard for the result of the 1990 elections, see UNGA resolutions no. 47/144 of 18 December 1992 and no. 48/150 of 20 December 1993.
46.
As was effectively stated by the UNGA in the resolution of 9 November 1976, A/RES/31/6I (Situation in South Africa), “the racist regime of South Africa is illegitimate and has no right to represent the people of South Africa”: para 1.
47.
However, communications from individuals concerning specific and isolated human rights violations are not accepted.
48.
Currently, the third review cycle (2017–2022) is underway.
49.
See Chap. 3, Sect. 3.11.
50.
See supra, Sects. 5.2.1–5.2.6.
51.
See Resolution No. 745 of 28 February 1992.
52.
See Council Resolutions No. 232 of 16 December 1966 and No. 253 of 29 May 1968.
53.
See Resolution No. 277 of 18 March 1970.
54.
See Resolution No. 688 of 5 April 1991.
55.
See infra, Sect. 5.6.
56.
See para 4 of the resolution.
57.
On that doctrine, see Chap. 14, Sect. 14.5.
58.
See Resolution No. 827 of 25 May 1993.
59.
See Resolution No. 955 of 8 November 1994.
60.
See respectively cases nos. T-315/01, Kadi, and T-306/01, Al-Barakaat.
61.
See judgment of 3 September 2008, joined cases nos. C-402/05 P and C-415/05 P.
62.
See the judgment of the Grand Chamber in cases C584/10-P, C593/10-P and C595/10-P.
63.
Id., para 133.
64.
See appl. no. 10593/08.
65.
See appl. no. 5809/08.
66.
Acting under Chapter VII of the UN Charter, the UNSC, in the resolution of 12 July 2002, no. 1422, requested “consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise” (para 1). The request in question was also made in 2003 but was not subsequently renewed.
67.
See Decision on Africa’s Relationship with the ICC, Extraordinary Session of the Assembly of the AU, 12 October 2013, para 10(i).
68.
See Article 27(1) of the Statute.
69.
See the decisions of 13 December 2011 made by the Pre-Trial Chamber concerning non-cooperation with the ICC by Chad (ICC-02/05-01/09) and Malawi (ICC-02/05-01/09).
70.
See ICC-02/05-01/09 OA2, para 115 of the judgment.
71.
See the decision of 9 April 2014 made by the Pre-Trial Chamber concerning non-cooperation with the ICC by the Democratic Republic of the Congo, ICC-02/05-01/09-195.
72.
See ICC-02/05-01/09.
73.
In its judgment of 5 March 2020 (ICC-02/17 OA4), the Appeals Chamber of the ICC, reversing the conclusions reached by the Pre-Trial Chamber in its decision of 12 April 2019 (ICC-02/17), authorised the Prosecutor of the Court to initiate the aforementioned investigation.
74.
See Sections 1 and 4 of the Executive Order.

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Department of Law, Luiss University, Rome, Italy
Pietro Pustorino

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Pustorino, P. (2023). The United Nations and Human Rights. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_5

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DOI: https://doi.org/10.1007/978-94-6265-563-8_5
Published: 01 January 2023
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-562-1
Online ISBN: 978-94-6265-563-8
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