United Nations Sub-Commission Research Articles

Nino Cassese and the Early Stages in the Fight against Enforced Disappearances

Nino Cassese’s fundamental contribution to the early stages of the fight against the crime of enforced disappearance is charted in this brief homage. Commencing with Cassese’s strong stance in the face of intimidation by the Ambassador of Argentina, we move to his continued resolve to place credible reports on disappearances in Argentina onto the agenda of the international community, in particular, the United Nations (UN) Sub-Commission on Prevention of Discrimination and Protection of Minorities. Cassese’s struggle against this heinous crime culminated in the adoption by the UN General Assembly of a resolution on disappearances and the establishment of the first human rights special procedures mandate — the Working Group on Enforced or Involuntary Disappearances — which continues to operate to this day. The Mapping of Cassese’s role as the driving force behind this evolution brings to light his underlying convictions in law and life.

Der Europäische Minderheitenbegriff. Entwicklung und Wirkung. Teil 1

In Europe, more than 330 ethnic groups with altogether more than 100 million members exist. Almost all European countries host minorities on their national territory. But until now, the term “minority” has not been clearly and unambiguously defined in international law. However, there is mutual consent that a single state is not entitled to decide upon the existence of minorities on its national territory on its own. Otherwise, the state could simply deny the existence of a minority and withdraw itself from all internationally binding legal obligations in that area. Therefore, since the times of World War I, various efforts have been made to define the term “minority”.In international law, a universally recognized and binding concept of minorities does not exist. However, in order to determine which minorities are supposed to be protected, after World War II some regularly applied characteristics have been developed in international documents. Even without giving a clear definition of the term “minority”, documents of the UN, the UNESCO or the CSCE/OSCE provide a special protection of different kinds of minorities, such as ethnic, national, religious and linguistic minorities. First and foremost, they are protected by the Universal Declaration on Human Rights (UDHR) of 1948, the International Covenant on Civil and Political Rights (ICCPR) of 1966, the Convention on the Rights of the Child (CRC) of 1989, the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (UN Minorities Declaration) of 1992, various declarations by the UNESCO as well as several documents by the CSCE and later OSCE. However, the only international document within the frame of the UN, the UNESCO and the CSCE/OSCE, offering a (non-binding) definition of the term “minority”, is a UN study conducted by Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Francesco Capotorti. According to that study, which was published in 1979, the term “minority” denotes a group numerically inferior to the rest of a state’s population, in a non-dominant position, whose members are nationals of the state of residence and possess ethnic, religious or linguistic characteristics differing from the rest of the population and showing a certain sense of solidarity towards the group itself.In the second part of the essay, it will be shown that the European states took these documents as basis to create their own concept of minorities, which can be deduced from documents of the Council of Europe and the EC/EU.

The World Trade Organization and Human Rights: The Role of Principles of Good Governance

Over the past decade the World Trade Organization (WTO) has increasingly become the whipping post of those that criticize globalization. There have been violent expressions of this critique on the streets of cities around the world. But the critique has also arisen in documents of respected international organizations. A striking example is the report on globalization and human rights written in 2000 by two special rapporteurs of the United Nations Sub-Commission on Human Rights in which the WTO is described as being a ‘veritable nightmare’ for developing countries. The main critique of the WTO is that its activities have serious human rights implications and that the organization as such does not properly address the human rights aspects of these activities. The present article will address the question as to the human rights implications of its activities. We will demonstrate that generally the WTO as an international organization does not directly violate human rights. The WTO cannot be compared to other international organizations whose operations may violate the human rights of individuals. To make this clear we will examine to what extent the WTO has been attributed an international legal personality (i.e., was given certain autonomy by its founders) in the first part of this article. Subsequently, it will be argued that even though the WTO does not violate human rights directly its activities can have implications for the enjoyment and protection of human rights.

Post-Conflict Property Restitution: Flawed Legal and Theoretical Foundations

The international community has recently hailed the restoration of property rights for people uprooted by armed conflict as a means of remedying forced displacement. Proponents of property restitution assert that this remedy can enhance the rule of in a post-conflict society by promoting reconciliation and bolstering economic and social stability. A United Nations (U.N.) subcommission has endorsed a set of legal and technical guidelines for constructing a property restitution scheme. While other authors have written in support of this plan and a general right to property restitution, this Article represents a critical analysis of the remedy, pointing to weaknesses in its legal and theoretical foundations. The current emphasis on property restitution is similar to past efforts of the United States and other Western nations to promote the rule of and economic through exporting an instrumentalist model of law. Just as these well-intentioned law and development efforts were plagued by unforeseen, deleterious consequences, so too might the export of property restitution laws and processes suffer from ill side effects. This Article identifies some of the possible unintentional outcomes of property restitution, including, ironically, that the U.N.'s property restitution scheme may ultimately undermine of the rule of law. The Article seeks to spur further debate on the merits of property restitution so that unintended consequences might be avoided and the remedies to forced displacement can be strengthened to meet the needs of refugees and internally displaced people.

Review of the Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Professor John Ruggie to the United Nations Human Rights Council, Protect, Respect and Remedy: A Framework for Business and Human Rights Ah/Hrc/8/5, 7 April 2008

The responsibilities of Transnational Corporations (TNCs) in the area of human rights have been on the international agenda for sometime now and have gain more momentum in the last two decades. In the past, several attempts were made under the auspices of the United Nations to devise a framework for controlling Transnational corporations without much success. In the face of increasing allegation of human rights abuses by TNCs, the United Nations Sub-commission on the Promotion and Protection of Human Rights approved the 'Norms on Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights' (Norms).

Business and Human Rights: The Evolving International Agenda

The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations, the most visible embodiment of globalization. This paper reviews two recent chapters in this endeavor, focused specifically human rights: the Draft Norms the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, adopted by the United Nations Sub-Commission the Promotion and Protection of Human Rights but not by its parent body, the UN Human Rights Commission (since replaced by the Human Rights Council); and the author's subsequent UN mandate as Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. The paper analyzes key conceptual flaws of the draft Norms, noting the pitfalls of imposing corporations, directly under international law, the same range of human rights duties that states have; it presents an empirical mapping of current international standards and practices regarding business and human rights, ranging from the most deeply rooted international legal obligations to voluntary initiatives; and it proposes a strategy for building existing momentum in order to reduce human rights protection gaps in relation to corporate activities.

Highlights of the Fifty-Eighth Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

Highlights of the Fifty-Eighth Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

Highlights of the Fifty-Seventh Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

Highlights of the Fifty-Seventh Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

A Review of the Fifty-Sixth Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

A Review of the Fifty-Sixth Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

The Sub-Commission's Initiative on Human Rights and Intellectual Property

In 2000 the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted a resolution raising concerns about the consistency of international intellectual property protections and human rights norms. This article summarises human rights norms relevant to intellectual property and the pertinent aspects of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which overlap or potentially conflict. The article provides several examples of potential conflict and how they might be resolved. The article demonstrates that the Sub-Commission resolution helped to initiate a major international discussion and some action on the relationship between human rights and intellectual property.

UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights

The United Nations Sub-Commission for the Promotion and Protection of Human Rights unanimously approved the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights” (the Norms) on 13 August 2003. Together with the interpretative Commentary, the Norms constitute an authoritative guide to corporate social responsibility. They are the first set of comprehensive international human rights norms specifically aimed at and applying to transnational corporations and other business entities (companies). They set out the responsibilities of companies with regard to human rights and labor rights, and provide guidelines for companies in conflict zones. They prohibit bribery and provide obligations with regard to consumer protection and the environment. General provisions of implementation include the obligation to provide reparation for a failure to comply with the Norms.

A Review of the Fifty-Fourth Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

A Review of the Fifty-Fourth Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

A Review of the Fifty-Third Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

A Review of the Fifty-Third Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

A Review of the Fifty-Second Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

A Review of the Fifty-Second Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

An Analysis of the Fifty-first Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

An Analysis of the Fifty-first Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

Appendix I: A Review of the 51st Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

Appendix I: A Review of the 51st Session of the United Nations Sub-Commission on the Promotion and Protection of Human Rights

Appendix II: Brief Summary of the 50th Session of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities

Appendix II: Brief Summary of the 50th Session of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities

Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights

Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights Cees Flinterman (bio), Scott Leckie (bio), and Victor Dankwa (bio) I. Introduction In 1986 the International Commission of Jurists, the Maastricht Centre for Human Rights of the University of Limburg (the Netherlands), and the Urban Morgan Institute for Human Rights, College of Law, University of Cincinnati (Ohio, USA) convened a group of distinguished experts in international law to consider the nature and scope of the obligations of state parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR). 1 This meeting (which was attended, among others, by some members of the then newly constituted ECOSOC Committee on Economic, Social and Cultural Rights and by staff members of the United Nations and Specialized Agencies) resulted in the adoption of the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. At the initiative of the Netherlands government, these Principles have been issued as an official UN document; they have also [End Page 705] been published in the Human Rights Quarterly and in the Review of the International Commission of Jurists. 2 Over the past ten years economic, social and cultural rights have received more, although certainly not yet sufficient, attention at the international governmental level. The Committee on Economic, Social and Cultural Rights has played a most constructive role in this respect. Mention should also be made of the various studies in the field of economic, social and cultural rights undertaken by special rapporteurs appointed by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. In 1993, the Second World Conference on Human Rights in Vienna reaffirmed the universality, interdependence, and indivisibility of economic, social, cultural, civil, and political rights, and stressed the need for elaborating an Optional Protocol to the ICESCR. 3 In this respect also relevant is the comprehensive report of the Netherlands Advisory Committee on Human Rights and Foreign Policy on the issue of economic, social and cultural rights. 4 This report contains twenty-nine recommendations concerning, inter alia, economic, social and cultural rights in a UN context, in specialized UN organizations, and in regional organizations. It also submits some recommendations concerning certain fundamental questions, such as the relevance of an integrated approach to civil and political rights and economic, social and cultural rights. 5 The report was in general favorably received by the Netherlands government, except for the recommendation concerning the introduction of an individual and collective complaint procedure under the ICESCR. 6 The monitoring of the progressive realization of economic, social and cultural rights is extremely complicated and requires an enormous amount of good quality data. Some have expounded the view that economic and social indicators should be developed to assess progress in the realization of [End Page 706] economic, social and cultural rights. 7 It is certainly worthwhile to pursue this inquiry in light of the conclusions reached by a UN Seminar on Appropriate Indicators to Measure Achievements in the Progressive Realization of Economic, Social and Cultural Rights. This seminar concluded inter alia that it is necessary to develop new approaches in data collection, analysis, and interpretation, focusing on the status of the poor and disadvantaged groups but also disaggregating the data for a number of variables, including gender. 8 However, another potentially fruitful approach may be to focus on identifying violations enumerated in the ICESCR. The proposal to elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is based on the same premise. This proposal was submitted by the Committee on Economic, Social and Cultural Rights, the monitoring body under the ICESCR, and is now pending before the UN Commission on Human Rights. The Optional Protocol is intended to provide for a communications procedure concerning violations of all rights set forth in the ICESCR. 9 The Limburg Principles already made an early start in identifying the issue of violations of economic, social and cultural rights. 10 In a recent [End Page 707] article on a violations approach for monitoring the ICESCR, Audrey Chapman argued that it is time for NGOs, governments, and human rights monitoring bodies to reorient their work toward identifying and rectifying violations...

Women and the Right to Adequate Housing

In August 1997, the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a resolution entitled ‘Women and the right to adequate housing and to land and property’. This resolution was the first of its kind, recognising the specific problems that women encounter when pursuing their right to adequate housing. This article deals with the legal foundations of the right to adequate housing in United Nations instruments. Since women face particular problems with regard to this right – direct violations such as discrimination but also problems as a result of poverty and their social position – these difficulties will be addressed. An overview is given of action that has been taken by various UN organs and bodies, especially the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination Against Women. The adopted Sub-Commission resolution is dealt with in detail.

The 42nd Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities

1. The official report of the 42nd session is found in U.N. Doc. E/UCN.4/Sub.2/1990/59 (1990) (hereinafter 1990 Report). The United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities was established by the Commission on Human Rights in 1947 to make recommendations on issues related to discrimination and minorities. The scope of human rights issues considered by the Sub-Commission increased as the human rights issues considered by the Commission grew. The Sub-Commission helps the Commission develop international standards in many areas of human rights by producing reports, studies, and draft instruments on human rights. This article is adapted from one which appeared in 45 ICJ Rev. 15 (1990). The authors also wish to thank Leslie Anderson for her help on the section of this article dealing with the Working Group on Contemporary Forms of Slavery. For other analyses of the 1990 session see generally, Macpherson, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 42nd Session, Quaker United Nations Office, (1990); Zoller, Reform, Independence and Expertise: Analysis of the 42nd Session of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 10 Hum. Rts. Monitor 3 (1990). For analyses of previous sessions of the Sub-Commission see generally, Maher & Weissbrodt, The 41st Session of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 12 Hum. Rts. Q. 290 (1990); Brennan, Brody & Weissbrodt, The 40th Session of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 11 Hum. Rts. Q. 295 (1989); Rosen & Weissbrodt, The 39th Session of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 10 Hum. Rts. Q. 487 (1988). For other articles on the Sub-Commission see Maher & Weissbrodt, supra, at 290.