Bringing human rights to the Security Council

Published: 15 May 2018 Author: Stefan Talmon

Germany has long championed strengthening the links between peace and security, development and human rights, the three pillars of the UN system. In particular, Germany has called for an examination of the connection between human rights and peace and security and ways in which to better integrate the work of the Human Rights Council and the Security Council. Germany took the position that human rights should be the international community’s measuring stick when the Security Council was deciding on sanctions or intervention, and that persistent human rights violations might serve as an early-warning sign of future crises and violent conflicts. With a side event during the high-level week of the 70th session of the UN General Assembly in September 2015, Germany initiated a discussion on how to better align the work of the Security Council and the Human Rights Council. This led Switzerland at the opening of the 32nd session of the Human Rights Council on 13 June 2016 to launch an Appeal “To put Human Rights at the Heart of Conflict Prevention”. The Appeal was supported by 70 States, including Germany. The Appeal proposed, inter alia, regular briefings by the High Commissioner for Human Rights to the Security Council at the request of Security Council members and a more systematic use of human rights reports by the Security Council, with such reports being brought to the attention of the Council by the Secretary-General.

The Swiss and German missions to the United Nations in New York followed up the Appeal by creating a small group of UN Member States – the Human Rights/Conflict Prevention Caucus. The objective of the caucus was to implement the ideas expressed in the Appeal and to strengthen the links between the Human Rights Council and the Security Council.

On 23 April 2018, Switzerland and Germany as co-chairs of the Human Rights/Conflict Prevention Caucus organized a high-level side event entitled “The preventive potential of human rights – what does it mean in practice?” at the Permanent Mission of Germany to the United Nations. During the event, Federal Foreign Minister Heiko Maas stated:

“[…] The violation of human rights is an important early warning indicator. It can point to possible threats of security. […] True security is guaranteed only when human rights are guaranteed. And that brings us to the key issues for our meeting today:

How can we make better use of the instruments the United Nations has developed in the field of human rights?

How can they help the Security Council to better fulfil its potential as a conflict prevention instrument?

And shouldn’t the Security Council look at the human rights situation in individual countries much more regularly?

True, it did so in the case of North Korea. But, as we all know, it was anything but easy to convince all Security Council members that the meeting was necessary.

So we have to ask ourselves:

Can the Security Council really afford to regularly ignore the comprehensive reports prepared for the Human Rights Council in Geneva?

And shouldn’t the Human Rights Council’s special rapporteurs and commissions of inquiry be listened to here in New York much more often?

Let me give you just one concrete example:

Reports had been circulating in Geneva about the difficult situation of the Rohingya for a long time before it escalated last year. Could that development not have been anticipated earlier in New York too?”

Foreign Minister Maas pledged that Germany, should it be elected to a non-permanent seat on the Security Council for the 2019-2020 term, would “work to improve the flow of information between Geneva and New York” because human rights, development and peace and security belonged together.

Despite the Security Council and the General Assembly having both recognized that “development, peace and security, and human rights are interlinked and mutually reinforcing”, the view that the Security Council should concern itself with human rights issues is not uncontroversial. There are a number of Member States who consider the Security Council the wrong forum for such issues.

On 11 December 2017, the Security Council adopted a procedural vote by 10 votes in favour to 3 against (Bolivia, China, Russian Federation), with 2 abstentions (Egypt, Ethiopia) allowing it for the first time to consider the human rights and humanitarian situation in a Member State – the Democratic People’s Republic of Korea – and to hear briefings on the situation in that country by senior United Nations officials, including the United Nations High Commissioner for Human Rights. The Member States who opposed the Council’s consideration of the human rights situation in North Korea argued that internal affairs or human rights situations in a country did not fall within the Council’s mandate which was the maintenance of international peace and security. While it is correct that the Security Council is not the organ within the UN system tasked with the promotion and protection of human rights, the questions of human rights and international peace and security cannot be neatly separated or compartmentalized. The massive and persistent violation of human rights in, for example, the case of genocide, war crimes, crimes against humanity and ethnic cleansing may impact on international peace and security and require the Council to act in order to fulfil its primary responsibility for the maintenance of international peace and security. It must be remembered that the Council’s task is not limited to the (reactive or remedial) removal of threats to the peace, breaches of the peace, or acts of aggression but also extends to the (proactive) prevention of such threats.

If the Security Council ever were to determine that the human rights situation in a State constituted a threat to the peace, it would have a wide range of measures at its disposal. It could order provisional measures, decide that the government of the State takes or refrains from taking certain actions impairing human rights, impose sanctions against government officials responsible for human rights violations, or authorize military intervention in order to bring such violations to an end.

The consideration by the Security Council of the human rights situation in a country in order to determine the existence of a threat to the peace in the context of Article 39 of the UN Charter must be distinguished from a more general mainstreaming of human rights in the work of the Security Council. Such mainstreaming could lead to the overlapping of mandates between the Security Council and the Human Rights Council and ultimately undermine the promotion and protection of human rights by the United Nations. It may also be questioned whether the Security Council as a high-profile political body is the appropriate forum for debating legal human rights issues more generally. Selective attempts by Council Members at calling out certain States for human rights violations may lead to a politicization of human rights and further undermine the credibility of the Security Council. It is also questionable whether the naming and shaming of a country during a Security Council debate by individual members will yield any positive results. Unlike the question of whether the human rights situation in a certain State may be discussed by the Council, the question of whether that State has violated its human rights obligations is not a procedural but a substantive question requiring an affirmative vote of nine members including the concurring votes of the five permanent members. Against this background it seems unlikely that human rights will play a major role in the work of the Security Council any time soon.

Categories: United Nations, human rights

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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