JUR 5710 Institutions and Procedures

15 September 2008 Maria Lundberg, NCHR 1

JUR 5710 Institutions and Procedures

The right of self-determination

UN Procedures


UN Charter (1)

• Article 1 of the Charter of the United Nations (1945): “The Purposes of the United Nations are:

– To maintain international peace and security, …

– To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

– To achieve international co-operation in solving international

problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and


UN Charter (2)

• Article 55– With a view to the creation of conditions of stability and well-

being which are necessary for peaceful and friendly relations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

– c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

• Article 56– All Members pledge themselves to take joint and separate

action in co-operation with the Organization for the achievement of the purposes set forth in Article 55


UN Charter (3)

• Non-self-governing territories– Article 73 (b)

• Trust territories– Article 76(b)

• GA Res. 1514 (XV) 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples– All peoples have the right to self-determination

• GA Res.2625 (XXV) 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations – Equal rights and self-determination of all peoples

• Respect for territorial integrity


The two UN Covenants

• Article 1 ICCPR and the ICESCR:1. All Peoples have the right of self-determination. By

virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development

2. All peoples may for their own ends, freely dispose of their natural wealth and resources…In no case may a people be deprived of its own means of subsistence

3. The State Parties to the present Covenant, including those having responsibility fi the administration of Non-Self-Governing and Trust Territories, shall promote the realization of …and shall respect that right, in conformity with the provisions of the Charter of the United Nations


The two UN Covenants

• Identical Article 1:• Political and resource dimensions• Political:

– external aspect: sovereignty– Internal aspect: governance

• No deprivation of own means of subsistence

• Obligations on all states to promote and respect the right of self-determination


Indigenous peoples

• GA Res. 61/295 2007 United Nations Declaration on the Rights of Indigenous Peoples

• Article 3: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development

• Cf. ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989) Articles 1, 6, 7, 13 , 14 and 15


Indigenous peoples

• GA Res. 61/295 2007 Declaration on the Rights of Indigenous Peoples

• Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal or local affairs, as well as means of financing their autonomous functions.

• Article 20.1: Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress. See also Art. 28

• Articles 26-30, 32, 31


Procedures

• ICCPR – Reporting (Art. 40) (ICESCR)– Inter-state communications (Art.41)– Individual communications (Art. 1 Optional Protocol)

• Human Rights Council– UPR– Special procedures– Complaints procedures: consistent patterns of gross

and reliably attested violations of human rights


ICCPR

• Progressive development – interdependence of rights

• Gen Comment 12- right of self-determination• Political dimension and resource dimension

– meaningful consultation of affected indigenous or minority group/community

– securing the sustainability of traditional/distinctive way of life of the group

– Kitok v. Sweden, Lubicon Lake Band v. Canada, Länsman cases v. Finland

• Gen Comment 23 – rights of minorities


Procedures

• ICCPR or ECSCR

• Other treaty bodies– CERD?

• Human Rights Council

• Principal organs– GA, SC, ICJ?


For discussion

• Think about how a case of a violation of the right of self-determination could be “handled” through UN Procedures? Positive or negative aspects with different alternatives.

Documents

JUR 5710 Institutions and Procedures