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For example:
* During World War I, many diplomats and intellectuals called for the creation of an international organization to prevent future wars. In 1918, Democratic President Woodrow Wilson—a founder of progressivism—proposed a “general association of nations” as part of his Fourteen Points plan for peace.[1] [2] [3]
* In 1919, about 30 victors of World War I met at the Paris Peace Conference to discuss the terms of peace. They wrote the Treaty of Versailles, which included the creation of the League of Nations.[4]
* The purpose of the League of Nations was to prevent future wars by providing an international system for settling disputes and reducing arms. Members agreed to bring serious disagreements to the League for mediation prior to engaging in war.[5] [6] [7]
* The U.S. Senate did not ratify the Treaty of Versailles on the grounds that it required members to defend one another and gave the League power to “advise upon the means by which this obligation shall be fulfilled.” Opponents of the treaty argued that it would:
* Some historians believe that the League of Nations was not fully effective because the United States did not join. They claim that the League’s plan to avoid war through economic pressure and negotiation could not be effective without the United States’ participation.[11] [12]
* In 1935, Italy invaded Ethiopia under the leadership of Mussolini. The League of Nations implemented a boycott of Italian imports and stopped exporting arms or raw materials to Italy. However, the British and French governments made a separate settlement with Mussolini, and Italy annexed Ethiopia in 1936. Some historians believe this was a major defeat to the League of Nations’ effectiveness.[13] [14]
* The League of Nations’ covenant required members to reduce their arms to a level determined by the League.[15] However, member states—particularly Germany’s neighbors—were reluctant to reduce their arms without the guarantee that they were safe from invasion. In the 1930s, an arms race began between several nations.[16] [17] [18]
* Members of the League of Nations were able to withdraw from the organization, which made enforcement of its policies difficult. In 1933, Germany withdrew during talks of reducing arms, and Japan withdrew over its invasion into Manchuria.[19] [20]
* In the 1930s, the United States generally followed a policy of isolationism—refusal to participate in conflicts or politics in Europe and Asia.[21] During this time, Congress passed the Neutrality Acts. These laws initially banned Americans from exporting arms or making loans to nations at war. The final Neutrality Act, passed in 1939, allowed arms trading but continued the ban on making loans and transporting goods to nations in conflict.[22] [23]
* World War II began in September 1939 without any of the warring nations attempting to negotiate through the League of Nations. The League did not have any meetings during the war and was officially disbanded in 1946.[24]
* During the early stages of World War II, the United States provided supplies to the U.K. and its allies but refused to join the war.[25]
* In August of 1941, President Franklin Roosevelt and British Prime Minister Winston Churchill issued a joint declaration called the Atlantic Charter. It outlined the countries’ “common principles” for the future, including:
* After Japan’s attack on Pearl Harbor in December of 1941, the U.S. Congress declared war on Japan. Three days later, Japan’s allies, Germany and Italy, declared war on the United States. The U.S. Congress voted unanimously to respond.[28]
* In 1942, 26 nations signed the Declaration of the United Nations. This document united the countries fighting against the Axis forces of Italy, Germany, and Japan. It also prohibited them from making a separate peace with any of the Axis countries.[29]
* In 1944, representatives of China, the Soviet Union, the United States, and the United Kingdom met at Dumbarton Oaks, a private mansion in Washington, DC. Their goal was to create a world organization to replace the League of Nations.[30]
* In April of 1945, President Franklin Roosevelt died and was succeeded by President Harry Truman.[31] [32]
* World War II ended later in 1945. It was the most widespread and deadliest conflict in world history, claiming 40–50 million lives.[33] [34]
* The United Nations Conference on International Organization met in San Francisco from April to June of 1945. Using the Dumbarton Oaks proposal as a guide, 850 delegates from 50 countries met to draft the Charter of the United Nations.[35] [36] The United States’ delegation was led by Secretary of State Edward Stettinius, Jr.[37] [38]
* The secretary-general of the conference that created the charter of the United Nations was Alger Hiss. With regard to this individual:
* In June 1945, 50 countries signed the United Nations Charter. The United States Senate approved this charter on July 28, 1945 with a vote of 89 to 2.[43] [44]
* The United Nations officially came into existence in October 1945 when the charter was ratified by China, France, the Soviet Union, the United Kingdom, the United States, and a majority of the other countries.[45]
* As of December 2018, the United Nations had 193 members.[46]
* The Charter of the United Nations has established six principal organs:[47]
* The General Assembly is the main policymaking body of the United Nations, where:
* The UN Security Council is responsible for maintaining international peace and security, and it:
* The International Court of Justice is the judicial body of the United Nations,[83] and it:
* The Secretariat is the administrative arm of the United Nations, and it:
* The Economic and Social Council oversees global progress on economic, social, and environmental sustainable development. It:
* The Trusteeship Council:
* In 2016, the United Nations reported $48.7 billion in expenditures. These funds came from both required and voluntary contributions of member countries.[111] [112]
* The Committee on Contributions—an 18-member committee appointed by the General Assembly—evaluates each country’s ability to contribute to the United Nations’ expenses. It recommends to the General Assembly what portion each member country should be required to pay towards:
* The regular budget is prepared by the Secretary-General and approved by the General Assembly with a two-thirds majority vote. It covers administrative costs such as the General Assembly, Security Council, Secretariat, International Court of Justice, and Human Rights Council.[117] [118] [119]
* The regular budget covers two-year periods. For 2018–2019 it is about $5.4 billion, or $2.7 billion per year.[120] [121] [122]
* In 2018, countries’ assessments rates ranged from 0.0001% to 22% of the regular budget, with a median of 0.01% and an average of 0.51%. This equals contributions ranging from $26,881 to $591 million, with a median of $376,338 and an average of $14 million. Together, the United States, Japan, China, Germany, and France are assessed more than the other 188 countries combined:[123]
* The approved budget for peacekeeping operations for July 1, 2018 to June 30, 2019 is $6.7 billion. The budget is prepared by the Secretary-General and approved by the General Assembly.[125]
* The five permanent members of the Security Council—the United States, the United Kingdom, China, France, and Russia—are required to pay a larger share of the peacekeeping budget because they have a “special responsibility” to maintain international peace and security. Their combined portion of the 2018 peacekeeping budget is 54%, and the U.S. portion alone is 28%.[126] [127]
* There are 15 agencies in the UN system that require separate direct payments from their members, and each has its own scale of assessments. These agencies are legally independent organizations with their own memberships and rules.[128]
* The United States is the largest financial contributor to the United Nations.[129] According to UN data, the U.S. contributed a total of $9.7 billion ($9,718,025,938) to the United Nations in 2016.[130] This amounted to:
* The U.S. Congress struggles to accurately estimate its total funding to the UN system. This is primarily because of differences in fiscal year schedules and the decentralized structure of both the UN system and U.S. payments.[134]
* About 62% of United States’ payments to the UN in 2016 were voluntary contributions.[135] The largest portion of funding goes to humanitarian-related activities. These are funded by congress but generally allocated by the president.[136]
* The U.S. Congress uses its spending power to influence policy or initiate reform at the United Nations.[137] In 1993, it began withholding a portion of payments in order to persuade the UN to create an independent oversight office. The following year, the General Assembly established the Office of Internal Oversight Services.[138] [139]
* The U.S. Congress has also limited payments to UN agencies to object to their assessment levels. In 1995, it capped the U.S. portion of the peacekeeping budget at 25% instead of its assessed level of over 30%.[140] [141]
* A member country that owes two years’ worth of payments to the regular and peacekeeping budgets automatically loses its vote in the General Assembly. The General Assembly may allow a country to keep its vote if it determines that the failure to pay was “due to conditions beyond the control of the Member.”[142] [143] [144] [145]
* The General Assembly made an exception to this rule in 1965. The Soviet Union and France were eligible to lose their General Assembly votes because of their refusal to fund peacekeeping operations in the Middle East and Congo. Instead, the General Assembly waived the past-due payments owed for those operations.[146] Arthur Goldberg, the U.S. Ambassador to the UN, announced that:
* In 1999, the U.S. General Accounting Office projected that the U.S.’s cumulative withholdings from the UN—$1.4 billion by the end of that year—would make it eligible to lose its General Assembly vote in January 2000.[148]
* In 1999, Republican Senator Jesse Helms and Democratic Senator Joe Biden negotiated an agreement to pay a substantial amount of U.S. withholdings. The agreement required the UN to reduce the United States’ portion of the regular and peacekeeping budgets. The following year, the UN General Assembly reduced the U.S. portion of the regular budget from 25% to 22% and the portion of the peacekeeping budget from 30% to 28%.[149] [150]
* In 2017 and 2018, the U.S. Congress applied a 25% cap on its payment to the peacekeeping budget, as required by the 1995 law.[151] In September of 2017, the U.S. State Department estimated that the U.S.’s cumulative withholdings from the UN were about $883 million.[152]
* As of 2018, the UN holds the U.S. responsible for paying 22% of the regular budget ($591 million) and 28% of the peacekeeping budget ($1.9 billion for July 1, 2018–June 30, 2019).[153] [154]
* Since the 1980s, the United States has withheld a portion of its regular budget payments that would otherwise go to programs related to Palestinians. Through laws passed in the 1990s, it also refuses to fund UN agencies that admit Palestine as a member.[155]
* In 2011, the U.S. cut off funding to the UN Educational, Scientific, and Cultural Organization because Palestine was admitted as a member. Democratic President Barack Obama opposed Palestinian membership but also requested about $80 million for the agency in his 2013 fiscal year budget proposal. The U.S. Congress denied the request, and in 2013 the United States lost its vote at the agency’s General Conference because of its refusal to pay this assessment.[156] [157] [158]
* Under the executive authority of Republican President Donald Trump, the U.S. announced its withdrawal from the UN Educational, Scientific, and Cultural Organization, effective December 31, 2018. When announcing its withdrawal, the U.S. State Department mentioned the U.S.’s unpaid assessments and concerns over the agency’s “anti-Israel bias.”[159] [160]
* The UN Relief and Works Agency for Palestine Refugees in the Near East provides services to about five million displaced Palestinians and their descendants.[161] [162] Historically the U.S. has been its largest donor,[163] providing 27% of its $1.3 billion budget in 2016.[164] President Trump’s administration announced in August 2018 that the U.S. will not provide any more funding to the agency.[165]
* UN membership is open to “peace-loving” nation-states that accept and, “in the judgment of the Organization, are able and willing to carry out” the responsibilities in the United Nations charter.[166]
* A nation-state is an entity with:
* A nation-state seeking membership in the UN:
* If the UN approves a nation-state for membership, this does not oblige all UN members to recognize that nation-state.[172] [173]
* When two existing members merge, the UN generally does not require the resulting country to apply as a new member. For instance, East and West Germany became Germany, and the Yemen Arab Republic and the People’s Democratic Republic of Yemen became Yemen.[174] [175] [176]
* Within the UN system, 15 legally independent agencies operate with their own constitutions and membership criteria.[177]
* When Soviet-backed communists took over China in 1949,[178] the nation’s previous government fled to Taiwan but continued to represent China at the United Nations.[179]
* In 1971, the United States co-sponsored a resolution to give the communist and Taiwanese governments simultaneous representation at the UN. The UN General Assembly did not vote on this resolution.[180]
* In October of 1971, the UN General Assembly voted to make the communist government the “only lawful” representative of China to the United Nations and expelled the government of Taiwan. The vote was 76–35, and the U.S. voted against this.[181] [182] [183]
* From 1950 until 1972, the U.S. recognized the government of Taiwan as the sole legitimate ruler of the lands encompassing China and Taiwan. In 1972, Republican President Richard Nixon ended this policy.[184] [185]
* In 1979, Democratic President Jimmy Carter recognized the communist government in China as the sole legitimate ruler of both China and Taiwan, and he diplomatically derecognized Taiwan.[186] [187]
* In response to Carter’s actions, Congress passed the Taiwan Relations Act. This law obligates the U.S. to help Taiwan defend itself against a Chinese attack. The law does not specify that the U.S. must intervene with force, but it requires the president and U.S. Congress to respond with “appropriate action.”[188] [189] [190]
* From 1993 to 2007, Taiwan tried to reestablish itself in diplomatic circles by applying to regain its lost seat at the United Nations. UN Secretary-General Ban Ki-moon rejected the 2007 application and later said “the position of the United Nations is that Taiwan is part of China.” [191] [192] [193]
* Taiwan is currently forbidden from having representation at the United Nations, while having a larger population than 72% of UN members and a larger economy than 85% of them.[194] [195] [196] [197]
* Taiwan has freedom of religion, speech, assembly, and press. Freedom House, an independent watchdog organization, describes Taiwan as a “vibrant and competitive democratic system” with “generally robust” civil liberties protections.[198] [199]
* As of 2019, 17 countries formally recognize Taiwan.[200] [201]
* At the outset of 1991, the Soviet Union or Union of Soviet Socialist Republics (USSR) consisted of 15 nations. That year, independence movements and a failed coup led to the USSR’s dissolution with the resignation of its president, Mikhail Gorbachev.[202] [203]
* In September 1991, three nations—Lithuania, Latvia, and Estonia—broke from the USSR and became members of the United Nations.[204] [205]
* The remaining Soviet republics declared that the USSR ceased to exist and formed the Commonwealth of Independent States. They agreed that Russia, as the largest member, should take over the USSR’s membership in the UN, including its permanent seat in the Security Council.[206]
* By 1992, all of the countries in the Commonwealth of Independent States had become independent members of the United Nations.[207]
* In December 1991, the Russian Federation announced it would take over the membership of the USSR in the United Nations. None of the other UN members protested. Some scholars have asserted that:
* Other members of the Security Council worried that objecting to Russia taking over the Soviet seat could lead to demands for changes to the Security Council membership, such as previous proposals to:
* According to Encyclopedia Britannica, Palestine covers areas east of the Mediterranean Sea in and around Israel, although its boundaries are under dispute with Israel. Palestine’s official government seeks to define its territory based on borders established in 1948, parts of which Israel currently occupies. Palestinians are Arab (non-Jewish) descendants of the region.[214] [215] [216] [217]
* In October 2011, the UN Educational, Scientific, and Cultural Organization (UNESCO) admitted Palestine as a member.[218] This agency allows non-UN members to join on recommendation of its Executive Board and the approval of two-thirds of its General Conference.[219]
* Palestine’s membership in UNESCO makes it eligible for membership in other UN agencies.[220] [221] [222] [223] Thus, in 2018, Palestine automatically became a member of the UN Industrial Development Organization when it officially agreed to the terms of the agency’s constitution.[224]
* The U.S. Congress passed legislation in the 1990s that prohibits funding to UN agencies that admit Palestine as a member.[225] The U.S. cut off funding to UNESCO in 2011 when Palestine became a member.[226]
* Democratic President Barack Obama opposed Palestinian membership in UNESCO but also requested about $80 million for the agency in his 2013 fiscal year budget proposal. The U.S. Congress refused to waive the funding restrictions, and the U.S. lost its right to vote at the UNESCO General Conference.[227] [228] [229]
* Under the executive authority of President Trump, the U.S. announced its withdrawal from UNESCO, effective December 31, 2018. The U.S. State Department cited the U.S.’s unpaid assessments and concerns over the agency’s “anti-Israel bias.”[230] [231]
* In 2011, Palestine applied for full membership in the United Nations. The Security Council’s membership committee was “unable to make a unanimous recommendation” regarding the application.[232] [233] [234]
* In 2011, the Obama administration threatened to veto any Security Council resolution recommending Palestinian membership.[235] [236]
* In 2012, the UN General Assembly changed Palestine’s status from observer entity to non-member observer state by a vote of 138–9. The United States cast one of the nine votes against the change.[237] [238] [239]
* As of 2019, Palestine is formally recognized by 137 countries.[240]
* The “Group of 77,” a coalition of 134 developing countries in the UN,[241] elected Palestine as its chair for 2019. The UN General Assembly then passed a resolution by a vote of 146–3 (including a dissenting vote from the U.S.) giving Palestine “additional rights and privileges of participation” during its chairmanship of this group. These include the right to:
* According to the United Nations, its “central mission” is “the maintenance of international peace and security.” The UN Security Council has the primary responsibility for carrying out that mission.[244] [245] [246]
* Non-procedural Security Council decisions require nine affirmative votes, including all five permanent members—China, France, Russia, the United Kingdom, and the United States. This means that any of the five permanent members can veto decisions regarding international peace and security.[247]
* A Security Council member is required to abstain from a vote if it is party to a dispute, and the decision concerns the peaceful settlement of that dispute. In practice, this rule is not applied consistently and was last exercised in 1960.[248] [249] [250]
* When the Security Council identifies a threat to the peace, it usually first recommends a non-forceful solution between the parties in conflict. It may impose economic sanctions, arms embargoes, financial penalties, or travel bans. The UN Charter requires all members to enforce sanctions, but there are no measures in place to punish countries that do not comply.[251] [252] [253] [254] [255]
* The Targeted Sanctions Consortium, based at the Graduate Institute of Geneva and the Watson Institute at Brown University,[256] is a group of about 50 scholars and policy practitioners who conduct studies on UN targeted sanctions. In a 2013 study of 22 UN sanctions programs, the consortium found evidence of sanctioned parties using “evasion or coping strategies” in 90% of cases. These strategies include but are not limited to:
* The Targeted Sanctions Consortium measured the effectiveness of UN targeted sanctions in fulfilling three general purposes. Sanctions:
* The United Nations is not authorized by its charter to interfere in countries’ domestic affairs unless the Security Council finds a “threat to the peace, breach of the peace, or act of aggression” that disrupts international peace and security.[260] The Security Council has used this authority to intervene in human rights situations, even in cases of civil war. For example, it:
* The Security Council alone has the right and responsibility to identify threats to the peace and to decide what actions will maintain or restore international peace and security. If it decides that peaceful measures are inadequate, it may take action “by air, sea, or land forces,” regardless of whether the conflict is essentially a domestic situation.[267]
* The intent of the UN Charter was for member countries to keep armed forces on call to carry out Security Council decisions to use force. The amount and types of troops each country would contribute was to be defined by “a special agreement or agreements” between member countries and the Security Council.[268] In reality, none of the member countries finalized an agreement, so the Security Council does not have armed forces under its control.[269]
* Since the Security Council cannot direct its own military strikes, when it decides armed action is necessary, it authorizes member countries to use force on its behalf.[270] [271]
* The Security Council may also direct a ceasefire, send military observers, or set up a peacekeeping mission.[272]
* The UN Charter does not explicitly provide for peacekeeping operations. These operations are launched with the consent of the involved parties.[273] [274] [275]
* When it decides that a peacekeeping operation is appropriate, the Security Council passes a resolution setting the mission’s goal and size.[276] These resolutions require nine out of the 15 Council members to agree, including all five of the permanent members—China, France, Russia, the United Kingdom, and the United States. This means that any of the five permanent members can block a peacekeeping operation’s creation or goals.[277] [278]
* The military and police deployed during peacekeeping operations are provided voluntarily by member countries. They are first members of their own national armies and second under the United Nations’ command.[279] [280]
* From 1948 to 1988, the UN launched 13 peacekeeping operations. These operations generally involved unarmed military observers and lightly armed troops concerned with maintaining ceasefires and stabilizing situations on the ground. Tensions between Cold War rivals often prevented the Security Council from creating more or larger mandates.[281] [282] [283] [284]
* The first two peacekeeping operations are still active:
* After the end of the Cold War in 1989, the number of peacekeeping operations increased. From 1989 to 1994, the Security Council started 20 new operations.[287] In the 1990s, the Security Council expanded the mandates for peacekeeping operations to occasionally include:
* As of May 2019, the United Nations Department of Peacekeeping Operations had 14 active peacekeeping operations. These operations involve about 100,000 personnel from 122 different countries, including about 73,000 troops.[290]
* In 2018, the U.S. Government Accountability Office produced a case study on the costs of the UN peacekeeping operation in the Central African Republic. It found that if the United States conducted the same operation, the total cost would more than double from about $2.4 billion to about $5.7 billion. The report noted that because the results are based on one case study, they cannot be generalized to all UN peacekeeping operations.[291]
* In 1994, approximately 800,000 civilians in Rwanda were killed during a genocide planned by the army and militia groups.[292] [293] UN peacekeepers were present to monitor a cease-fire agreement but were not allowed to use force.[294] [295] [296]
* A 1999 report by an independent commission to the UN Security Council found that the Rwandan genocide reflected “a failure by the United Nations system as a whole.” The commission found that the UN:
* The UN Security Council set up a criminal tribunal for Rwanda that operated from 1995 to 2015. It sentenced 62 people to prison terms for genocide and other violations of international humanitarian law during the events of 1994.[298] [299]
* During the Bosnian conflict of 1992–95, the Security Council tasked the UN Protection Force with facilitating the delivery of humanitarian aid and protecting UN-declared “safe areas” with the use of force.[300] [301]
* In July of 1995, over 7,000 Bosnian Muslims were killed by Bosnian Serbs within the safe area of Srebrenica. A Dutch court held the Netherlands partly liable for some of these death because its peacekeepers failed to protect civilians inside the safe area.[302] [303] [304] [305]
* The UN Security Council set up a criminal tribunal for the Bosnian conflict that operated from 1993 to 2017. It sentenced 89 people to prison terms for war crimes in the Balkans from 1991 to 2001.[306] [307] [308] [309]
* In 2000, UN Secretary-General Kofi Annan convened a panel to review the UN’s peacekeeping system and make recommendations for improvement.[310] The panel’s Brahimi Report stated that over the previous decade, the United Nations “repeatedly failed” to meet its goal of protecting future generations “from the scourge of war.”[311] [312]
* The Brahimi Report outlined several reasons for this “repeated” failure, including:
* In March of 2018—18 years after the Brahimi Report—UN Secretary-General António Guterres announced an initiative to implement reforms in peacekeeping. He outlined three areas for action, which are:
* Since the 1990s, the UN has been aware of peacekeeping personnel committing sexual exploitation and abuse during their missions.[317] Some examples include the following:
* Some of the risk factors for sexual exploitation and abuse during peacekeeping missions are:
* In 2003, the Secretary-General released a bulletin establishing a “zero tolerance” policy for sexual exploitation and abuse by UN staff and peacekeepers.[327] [328]
* Each country is responsible for enforcing laws and UN rules and punishing its own peacekeeping troops for violations. The UN does not have the authority to bring criminal charges or punish peacekeepers, and the host country may only prosecute soldiers that are handed over by their home country. The host country is also barred from conducting investigations.[329] [330]
* In 2004, UN Secretary-General Kofi Annan assigned Prince Zeid Ra’ad Al Hussein—Permanent UN Representative from Jordan and later UN High Commissioner for Human Rights—as his advisor on sexual abuse and exploitation. Zeid prepared a report for the General Assembly reviewing the problem of sexual exploitation and abuse by UN peacekeepers. He recommended that the UN:
* According to a 2013 UN report prepared by a team of experts:
* In 2015, an independent panel of legal experts commissioned by UN Secretary-General Ban Ki-moon noted that—despite the UN receiving a variety of analyses and recommendations on the problem of sexual exploitation and abuse—“substantively little has changed on the ground.” It further stated that:
* A primary purpose of the United Nations is to promote human rights.[336] It has created various documents that set human rights standards and the commitment of members that ratify them.[337]
* The UN has formed multiple bodies to promote and monitor human rights, such as:
* At the end of the 2005 UN World Summit, the General Assembly unanimously passed a resolution that each country has the “responsibility to protect” its people against genocide and other crimes against humanity. This policy also calls on the international community to intervene if a country fails to meet this responsibility.[356]
* Although the United Nations is not authorized by its charter to interfere in countries’ domestic affairs, it is allowed to do so if the Security Council finds a “threat to the peace, breach of the peace, or act of aggression.”[357] The Security Council has used this authority to intervene in human rights situations. For example, it:
* The Human Rights Council has 47 members elected by a majority vote in the General Assembly. Members can serve two consecutive terms. During the election process, the General Assembly is supposed to consider a country’s “contribution to the promotion and protection of human rights.”[363]
* Seats on the Human Rights Council are divided between five regional groups: Africa, Asia-Pacific, Eastern Europe, Latin America and the Caribbean, and Western Europe and others.[364] Elections can have a candidate running unopposed to represent a region. The election held in October of 2018 had 18 candidates running for 18 seats. Noncompetitive elections occasionally lead to the membership of countries that have committed human rights violations.[365] [366] [367] [368]
* As of October 2018, the Human Rights Council includes 14 countries that are ranked as “not free” by Freedom House, an independent watchdog organization. This is the largest proportion of “not free” members in the Council’s 12 year history.[369] [370] [371]
* A joint report by UN Watch, the Human Rights Foundation, and the Raoul Wallenburg Centre for Human Rights evaluated the candidates for the 2018 Human Rights Council election. It deemed six candidates—all of whom were elected—as unqualified:[372] [373]
* The General Assembly may suspend a member of the Human Rights Council with a two-thirds majority vote. Libya was suspended in 2011 while under the leadership of Muammar Al-Qadhafi.[380] [381]
* At each session of the Human Rights Council, there are 10 permanent agenda items. The seventh agenda item—the human rights impact of Israeli occupation in Palestine—is the only permanent topic that focuses on a specific country. The United States Department of State has opposed the existence of this permanent topic as evidence of bias against Israel.[382] [383]
* In June 2018, the United States withdrew from the Human Rights Council. Secretary of State Mike Pompeo and UN Ambassador Nikki Haley cited the Council’s bias against Israel, the membership of countries with poor human rights records, and the Council’s refusal to address ongoing human rights abuses.[384] [385] [386]
* A treaty—also known as a charter, covenant, or convention—is a written agreement that binds participating parties to its terms.[387]
* Once a nation ratifies a treaty, and it takes effect, the nation is obligated to follow it under international law. However, the U.S. Supreme Court has ruled that “not all international law obligations automatically constitute binding federal law enforceable in United States courts.” With regard to this, various Supreme Court rulings divide treaties into two categories, although distinctions between them are a matter of debate:
* The U.S. Constitution makes the Constitution, federal laws, and treaties the “supreme Law of the Land” over state laws.[393] Within the U.S. system, a self-executing treaty:
* When ratifying certain treaties, the U.S. Senate has included provisions to make clear that the treaties are not self-executing and cannot usurp the U.S. Constitution or existing federal, state, or local laws.[406] [407] [408] [409]
* The United States is a party to five legally binding UN human rights treaties:
* The United States is not a party to the:[412]
* Nine groups of elected human rights experts monitor the implementation of the UN’s human rights treaties.[423] [424]
* The UN General Assembly adopted the Universal Declaration of Human Rights on December 10, 1948, which is now Human Rights Day.[425] The UN committee that drafted the Universal Declaration of Human Rights was chaired by Eleanor Roosevelt, widow of U.S. Democratic President Franklin D. Roosevelt.[426]
* The declaration is a nonbinding document that became the foundation for international human rights law. Some countries have incorporated it into their constitutions, and the Human Rights Council uses it as a basis for reviewing countries’ human rights situations.[427] [428] [429]
* The declaration lists everyone’s civil and political rights,[430] including but not limited to:
* According to the declaration, everyone’s economic, social, and cultural rights include but are not limited to: [437]
* The declaration also states that:
* The International Covenant on Economic, Social, and Cultural Rights (ICESCR) passed in the UN General Assembly in 1966 and entered into legal force in 1976.[445] [446]
* The administration of Democratic President Jimmy Carter signed the ICESCR in 1977 and submitted it to the U.S. Senate. The Senate did not ratify the treaty, so the United States is not a party to it.[447] [448] [449]
* Parties to the ICESCR must “take steps” to create and ensure “rights” to:[450] [451] [452]
* As of 2019, 169 countries have adopted the ICESCR.[463]
* A supplemental treaty allows individuals to report perceived violations of the ICESCR to a UN committee. The committee may only accept accusations from people in nations that have adopted the treaty. As of 2019, this totals 24 countries.[464] [465]
* The International Covenant on Civil and Political Rights (ICCPR) passed in the UN General Assembly in 1966 and entered into legal force in 1976.[466] [467] [468]
* The administration of Democratic President Jimmy Carter signed the ICCPR in 1977 and submitted it to the U.S. Senate. In 1992, the Senate ratified it with several “reservations, understandings, declarations and proviso.” This includes provisions that prevent the treaty from usurping the Constitution of the United States.[469] [470] [471]
* Parties to the ICCPR agree to pass laws to implement civil and political rights such as:[472]
* As of 2019, 172 countries have adopted the ICCPR.[478]
* A supplemental treaty allows individuals to report perceived violations of the ICCPR to a UN committee. The committee may only accept accusations from people in nations that have adopted the treaty. As of 2019, this totals 116 countries. The United States has not signed or ratified it.[479] [480]
* A second supplemental treaty to the ICCPR requires the abolition of the death penalty. As of 2019, there are 87 parties to this treaty. The United States has not signed or ratified it.[481] [482]
* In 1989, the UN General Assembly passed the Convention on the Rights of the Child (CRC). This treaty became effective in 1990.[483] [484]
* Democratic President Bill Clinton signed the CRC in 1995 but did not submit it to the U.S. Senate for ratification. The U.S. is the only UN member country that has not ratified the full CRC.[485] [486] [487] [488]
* In 2002, the United States ratified two treaties related to the CRC. They address the:
* A third supplemental treaty allows children in participating nations to report violations of the CRC and its related treaties to a UN committee.[490] As of 2019, 44 countries—which do not include the United States—are parties to this treaty.[491]
* Governments that ratify the CRC agree to:
* The Committee on the Rights of the Child interprets and oversees implementation of the CRC. This committee is a group of 18 “experts of high moral standing and recognized competence” elected from among countries that have ratified the CRC. Parties to the CRC must submit regular reports to the committee, which then provides nonbinding recommendations.[500] [501]
* The U.S. played a “pivotal role” during the drafting of the CRC.[502] [503] Without ratification, the U.S. cannot participate on the Committee on the Rights of the Child but is subject to the committee’s review under the CRC’s related treaties.[504] [505] [506] [507]
* Opponents of ratifying the CRC say that it:
* Supporters of ratifying the CRC say that ratification would protect children against government abuse—not bypass the role of parents.[511] [512] [513]
* As defined by the CRC, a parent’s role is to raise a child according to the child’s “best interests” and to provide “guidance” appropriate to a child’s level of development.[514] [515] [516] According to the UN Committee on the Rights of the Child, which interprets and oversees implementation of the CRC,[517] this means that:
* Professor Geraldine van Bueren—who helped draft the CRC and wrote a textbook on international children’s rights—wrote that the treaty:
* The CRC does not contain any provisions giving children the right to sue their parents. Its supplemental treaty on reporting rights violations provides a process for accusing governments, not parents.[525] [526] [527]
* The UN Committee on the Rights of the Child has urged individual countries to establish an “independent child-friendly mechanism” for reporting violations. This recommendation does not specify whether complaints could be made against parents.[528]
* Opponents of ratifying the CRC say that it:
* Supporters of the CRC say that U.S. laws regarding children are inferior to international requirements and should be replaced.[531] [532] [533] [534]
* In the United States, treaties—along with the Constitution and federal laws—are the “supreme Law of the Land.”[535] If a court deems a treaty to be “self-executing,” it overrides all existing federal, state, and local laws.[536] [537] [538] [539] [540] [541] [542]
* When ratifying certain treaties, the U.S. Senate has included provisions to make clear that the treaties are not self-executing and cannot usurp the U.S. Constitution or existing federal, state, or local laws.[543] [544] [545] [546] The CRC prohibits such provisions if they are “incompatible” with its “object and purpose.”[547] According to the UN Committee on the Rights of the Child, which interprets and oversees implementation of the CRC,[548] limiting the treaty with a country’s existing laws violates this requirement.[549]
* The Committee on the Rights of the Child states that the treaty requires countries to outlaw corporal punishment in schools and private homes. This includes, for example, spanking, regardless of how “light” it may be.[550] [551] This issue is currently regulated by the individual U.S. states.[552]
* The CRC requires governments to outlaw “all forms of physical or mental violence” against children and to ensure that “no child shall be subjected to … cruel, inhuman or degrading treatment or punishment.”[553]
* The U.S. Supreme Court referenced the CRC when it struck down the death penalty for juveniles in 2005. If the U.S. ratifies the CRC, it must also outlaw life sentences without parole for juveniles.[554] [555] [556]
* The U.S. does not have a national education curriculum. Individual states set standards for primary and secondary schools in order to receive federal education funding.[557] [558] [559] [560]
* The CRC mandates that educational standards include:
* The Committee on the Rights of the Child asserts that implementing these standards requires national laws, a “fundamental reworking of curricula,” and “systematic revision of textbooks.”[562] The CRC allows for homeschooling and private schools as long as they conform to national standards including the principles listed above.[563] [564]
* The CRC does not directly address abortion. It states that every child has “the inherent right to life.”[565] Its preamble states that:
* The CRC requires governments to ensure that “no child is deprived of his or her right of access” to health care services and to develop “family planning education and services.”[567] Based on these provisions, the Committee on the Rights of the Child, which interprets and oversees implementation of the CRC,[568] has recommended that:
* The CRC further requires governments to pass laws protecting children from “arbitrary or unlawful interference with his or her privacy.”[575] This provision contradicts state laws in the U.S. that require parental notification or consent for minors to have an abortion.[576] [577] [578]
* The CRC requires federal governments to:
* The Committee on the Rights of the Child, which interprets and oversees implementation of the CRC,[588] has criticized multiple countries for not spending enough money on social welfare programs to benefit children. This includes nations such as the United Kingdom,[589] Australia,[590] Austria,[591] and Indonesia.[592]
* Participating countries must apply the CRC’s provisions to “each child within their jurisdiction” “irrespective of the child’s or his or her parent’s national … or other status.” Ratification could require the U.S. federal government to expand the services it provides to illegal immigrants to include:
* Sustainable development aims to meet today’s needs without hindering future generations from doing the same.[598]
* In 2000, the UN General Assembly set development goals—to be reached by 2015—centered on fighting poverty and its effects. In 2005, an independent report commissioned by the UN found that progress towards the goals was uneven.[599]
* In 2015, the General Assembly unanimously adopted the 2030 Agenda for Sustainable Development. This plan aimed to build on the prior goals and complete what it failed to achieve. In addition to addressing poverty and health, the new goals cover other areas such as the environment, gender equality, and human rights.[600] [601] [602]
* While the Sustainable Development Goals are not legally binding, countries are “expected to take ownership” and make plans towards achieving them.[603]
* Per the UN Department of Economic and Social Affairs’ 2018 report:
* The United Nations system has over 30 entities involved in development efforts, such as funding, coordination, research, and progress reviews.[605] [606] [607] [608] [609] [610] [611] [612] [613] [614] [615]
* In 2006, the UN secretary-general convened a panel to recommend improvements for coordinating the UN’s efforts toward its development goals. The panel’s report called the UN system “fragmented and weak” with “overlapping functions, coordination failures, and policy inconsistencies.” For example:
* In a 2018 UN report, governments stated that UN development entities “lack a clear division of labor” due to factors including but not limited to:
* In 2014, the UN Conference on Trade and Development estimated that the Sustainable Development Goals require $5 trillion to $7 trillion of investment per year.[618] As of 2017, this amounts to:
* In 2016, the UN spent about $11.8 billion on development assistance, which was 24% of its total expenditures.[623]
* The UN Department of Economic and Social Affairs, in a 2012 report, proposed an international tax system to help provide funding for development. Its suggestions included a:
* In 2015, the General Assembly convened the Third International Conference on Financing for Development. The conference adopted the Addis Ababa Action Agenda, a non-binding action plan for financing global sustainable development.[625] [626] [627] The agenda:
* In 2015, an international body established by a treaty called the United Nations Framework Convention on Climate Change adopted an accord called the Paris Agreement. Its primary aim “is to strengthen global response to the threat of climate change” by limiting the increase in global temperature to “well below 2 degrees Celsius [3.6° F] above pre-industrial levels.”[629] This agreement:
* The U.S. Constitution requires the approval of the president and a two-thirds majority vote of the Senate to ratify a treaty.[640] In 2016, Democratic President Barack Obama accepted the Paris Agreement without submitting it to the U.S. Senate for ratification. In 2017, Republican President Donald Trump announced that he is withdrawing the United States from the agreement.[641]
* As of December 2018, 184 of 197 parties to the United Nations Framework Convention on Climate Change had ratified the Paris Agreement.[642] [643]
* In a 2018 progress report on development, the UN secretary-general noted that the 2030 Agenda for Sustainable Development, the Addis Ababa Action Agenda, and the Paris Agreement “impose very high demands on the system” that require “repositioning” to a cohesive, system-wide approach.[644] [645]
* One of the United Nations’ stated purposes is to “achieve international cooperation” in solving international humanitarian problems.[646]
* Among the UN entities that provide specialized humanitarian assistance are the:
* The Office for the Coordination of Humanitarian Affairs (OCHA) coordinates humanitarian aid plans. It does not directly distribute aid.[656] [657] Instead, it works through the Inter-Agency Standing Committee—a forum for humanitarian agencies both inside and outside the United Nations—to assess needs, divide responsibilities, and address gaps in response.[658] [659] [660]
* Humanitarian crises are typically caused by armed conflict or natural disasters and can be worsened by poor economic conditions.[661] [662] [663]
* At the end of 2017, OCHA forecasted 21 humanitarian response plans plus a Syria Regional Refugee Plan for 2018.[664] It spent about $14 billion for these programs to provide aid to about 91 million people.[665]
* According to OCHA, “humanitarian crises affect more people, for longer” despite funding reaching record highs in 2017 and 2018.[666] [667] This is because of a “failure to address the root causes.” Specifically:
* In order to prioritize resources, the Inter-Agency Standing Committee uses a classification system for humanitarian emergencies. The most dire classification—a system-wide Level 3 emergency—requires large-scale efforts from a wide range of humanitarian aid providers, because resources are not already in place to coordinate and deliver assistance.[674] [675] [676] In 2017, there were four system-wide Level 3 emergencies:[677]
* A corporate emergency may be equally as severe as a system-wide emergency but does not involve as many aid providers—it exceeds the capacity of a specific agency’s regional resources. If the Emergency Relief Coordinator declares an OCHA corporate emergency, the response requires the global support of all OCHA offices because of a sudden or quickly worsening crisis. In 2017, there were four OCHA corporate emergencies:[687] [688] [689]
* Peacekeeping operations sometimes have humanitarian goals, such as the following:
* The Emergency Relief Coordinator—who heads OCHA and the Inter-Agency Standing Committee—helps aid organizations gain access to people who need help. Barriers can include interference from governments or other parties, violent conflict, lack of security for humanitarian workers or goods, and diversion of aid to other parties. [708] [709] [710] [711]
* Delivering humanitarian aid to its intended recipients can be further hampered because of:
* When it makes humanitarian response plans, OCHA considers these access problems. Hence, it does not help all people in need and reduced the portion of people it will try to assist in the Congo in 2019.[714]
* The UN Security Council can play a role in opening access for humanitarian aid. For example, in 2014 it authorized aid agencies to enter Syria from neighboring countries.[715] The Syrian government has refused some UN requests to deliver aid, despite Security Council resolutions demanding their cooperation.[716] [717] [718]
* In October 2010, cholera appeared in Haiti for the first time in almost 100 years.[719] According to OCHA, over 800,000 cases and about 9,700 deaths from cholera occurred in Haiti from October 2010 to March 2018.[720]
* Scientific studies indicate that the cholera outbreak likely started with UN peacekeepers from Nepal.[721] [722] [723] In 2016, Secretary-General Ban Ki-moon apologized to the Haitian people for the UN’s role in the outbreak.[724]
* Haiti’s National Cholera Elimination Plan will cost about $2.1 billion. The UN Children’s Fund and peacekeeping mission have provided treatment, sanitation, water, and prevention kits.[725]
* Humanitarian aid efforts can have other unwanted effects on their intended beneficiaries. For example:
* After Iraq invaded Kuwait in 1990, the UN Security Council imposed sanctions that prohibited all countries from trading with Iraq except for medical or humanitarian supplies. The Security Council also set up a sanctions committee to monitor compliance.[732] [733]
* In 1991, a UN mission reported that the Iraqi people required “massive life-supporting” aid to avoid possible epidemic and famine.[734] [735]
* In 1996, the UN Security Council began the Oil-for-Food Program, which allowed Iraq to sell oil in order to buy food and humanitarian relief supplies. Part of the money also funded war reparations and inspections.[736] [737]
* Under the program, the Iraqi government negotiated its oil and commodity contracts, subject to UN approval. Proceeds from the oil sales went into a UN-controlled account, which funded payments to suppliers.[738] [739]
* From 1997 to 2003, Iraq sold over $67 billion in oil through the Oil-for-Food Program and purchased about $31 billion in humanitarian assistance.[740] [741] According to the UN, the program funded humanitarian relief for 27 million Iraqis and helped:
* During and after the Oil-for-Food Program, several entities conducted investigations of the program’s management and Iraq’s activities. Some of these include the:
* These investigations found that Iraq:
* The investigations also found that Iraq violated sanctions and the terms of the Oil-for-Food Program by generating revenue outside of the UN’s control. UN sanctions forbade Iraq from selling any oil outside of the Oil-for-Food Program. In violation of these sanctions, it made $5 billion to $8 billion in unauthorized oil sales. These sales included:
* Per the U.S. Government Accountability Office:
* The investigations also identified various problems with the UN’s management of the funds it controlled under the Oil-for-Food Program. For example, UN entities:
* One objective of the United Nations is to:
* International law is the set of rules that countries follow in their conduct with each other and comes from a variety of sources. There is not a central legislative body that creates international law in the same way countries create domestic laws.[771] [772]
* Treaties serve as the primary source for international law.[773] A treaty—also known as a charter, covenant, or convention—is a written agreement that binds participating parties to its terms.[774]
* The United Nations Charter is an international treaty that entered into force in October of 1945. The United States Senate approved it in July of 1945 with a vote of 89 to 2.[775] As a treaty, its members are bound by its provisions, although the charter recognizes the sovereignty of its members. According to the charter, member countries agree to accept and carry out the decisions of the UN Security Council, however there is no consistent method of enforcing these decisions. Resolutions passed by the UN General Assembly, unless dealing with procedural issues, are not legally binding.[776] [777] [778] [779] [780]
* The primary UN agencies related to international law are the:
* The International Law Commission wrote the first draft of the statute that created the International Criminal Court.[784] Although the court—which tries certain individuals accused of genocide, war crimes, and crimes against humanity—is independent of the UN, the Security Council may refer cases to it.[785] [786]
* The UN Security Council can set up temporary judicial bodies to handle criminal cases. The International Criminal Tribunal for the former Yugoslavia operated from 1993 to 2017. It sentenced 89 people for war crimes that took place in the Balkans from 1991 to 2001. The International Criminal Tribunal for Rwanda operated from 1995 to 2015. It sentenced 62 people responsible for genocide and other violations of international humanitarian law in Rwanda in 1994.[787] [788] [789] [790]
* The International Court of Justice (ICJ) can only hear cases between countries that accept its jurisdiction. Countries may do this:
* Judgements made by the ICJ are binding and cannot be appealed. Advisory opinions are not binding, unless another agreement—such as a treaty—gives them binding force.[794] [795] [796]
* The ICJ does not have the power to enforce its decisions. If a country does not comply with the court’s ruling, the other country in the case may bring the issue to the UN Security Council. It is uncommon for this to actually occur.[797] [798] [799] [800]
* As of 2018, 73 countries recognize the court’s jurisdiction as compulsory through declarations filed with the UN secretary-general. Of these, the only permanent member of the UN Security Council is the U.K.[801] [802]
* In 1986, the United States withdrew its general consent to the court’s jurisdiction, in accord with the six month’s notice allowed in its declaration.[803] [804] [805]
* The United States has announced its withdrawal from some treaties or optional protocols that recognize the court’s jurisdiction. Each treaty has its own provision for withdrawal that can include written notice and a waiting period. In October of 2018, U.S. national security advisor John Bolton announced that the United States would review all international agreements “that may still expose the United States to the ICJ’s jurisdiction.”[806] [807] [808]
* In addition to treaties, the ICJ considers other sources for international law:
* Judicial decisions and the scholarly work of experts are used as subsidiary sources for determining the rule of law. They are not the basis for law but can help define or prove the existence of a custom or general principle of law.[812] [813]
* Republican President Ronald Reagan sought UN reform by encouraging the U.S. Congress to withhold some of its payments.[814] [815]
* In 1988, Reagan requested $188 million in payments to the UN from these withheld funds. He acknowledged the UN’s progress on reform and “very constructive” efforts to end the Persian Gulf War and Soviet occupation in Afghanistan.[816]
* From March 1971 to January 1973, George H.W. Bush was the U.S. Ambassador to the United Nations. He is the only U.S. president to have served in this role.[817]
* Republican President George H.W. Bush proposed a plan for the United States to pay the UN all of the funds that the U.S. Congress previously withheld.[818] [819]
* In 2005, Bush was UN special envoy for the Indian Ocean tsunami disaster.[820]
* In 1999, the United States and other members of the North Atlantic Treaty Organization began Operation Allied Force in Yugoslavia without the consent of the UN Security Council.[821]
* From 2005 to 2007, former Democratic President Bill Clinton served as special envoy for UN humanitarian aid after a tsunami in the Indian Ocean.[822]
* In 2009, Clinton was named as UN special envoy to Haiti. He then oversaw UN aid efforts after a large earthquake hit the country in January 2010.[823]
* Under Republican President George W. Bush, the United States boycotted the Human Rights Council because of beliefs that the council had anti-Israel bias and that membership included countries with poor human rights records.[824] [825]
* In 2003, the United States sought a UN Security Council resolution authorizing armed force against Iraq, but the resolution did not pass. Operation Iraqi Freedom began in March of 2003 without authority from the UN Security Council.[826]
* Under Democratic President Barack Obama, the United States joined the Human Rights Council with the stated purpose of “working from within” towards reform.[827] [828]
* In 2011, the U.S. cut off funding to the UN Educational, Scientific, and Cultural Organization because Palestine was admitted as a member. Obama opposed Palestinian membership but also requested about $80 million for the agency in his 2013 fiscal year budget proposal. The U.S. Congress denied the request, and in 2013 the United States lost its vote at the agency’s General Conference because of its refusal to pay this assessment.[829] [830] [831]
* In 2014, the Obama administration stated it would veto any Security Council resolution recommending Palestinian membership into the UN.[832] [833]
* In August of 2016, Obama approved the Paris Agreement without submitting it to Congress for ratification.[834] [835] This agreement intends to limit global temperature increases by encouraging countries to limit their greenhouse gas emissions.[836] [837] [838]
* Under Republican President Donald Trump, the United States withdrew from the Human Rights Council. Secretary of State Mike Pompeo and UN Ambassador Nikki Haley cited the council’s bias against Israel, membership of countries with poor human rights records, and refusal to address ongoing human rights abuses.[839] [840] [841]
* In June of 2017, fulfilling a campaign promise,[842] [843] Trump announced that he is withdrawing the U.S. from the Paris Agreement.[844]
* From 1997 to 2009, U.S. Rep. Ron Paul (R-TX) introduced the “American Sovereignty Restoration Act,” every two years. The bill required the United States to withdraw from the United Nations.[845] [846] [847] [848] [849] [850] [851] [852]
* In 2015 and 2017, U.S. Rep. Mike Rogers (R-AL) introduced the “American Sovereignty Restoration Act,” which is similar to Rep. Ron Paul’s bill that requires the United States to withdraw from the United Nations.[853] [854]
* In 2017, U.S. Rep. Alexander Mooney (R-WV) introduced legislation that would remove all United States funding from the United Nations if the UN tries to impose taxes.[855]
* In 2017, U.S. Rep. Edward Royce (R-CA) introduced a resolution objecting to a UN Security Council resolution condemning Israel’s occupation of the West Bank and East Jerusalem. The U.S. House of Representatives passed the resolution with a vote of 342 to 80.[856] [857]
[1] Entry: “League of Nations.” Encyclopedia Britannica, July 20, 1998. Last updated 8/3/18. <www.britannica.com>
“The terrible losses of World War I produced, as years went by and peace seemed no nearer, an ever growing public demand that some method be found to prevent the renewal of the suffering and destruction which were now seen to be an inescapable part of modern war.”
[2] Webpage: “The League of Nations, 1920.” U.S. Department of State, Office of the Historian. Accessed October 18, 2018 at <history.state.gov>
Speaking before the U.S. Congress on January 8, 1918, President Woodrow Wilson enumerated the last of his Fourteen Points, which called for a “general association of nations … formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.” … In calling for the formation of a “general association of nations,” Wilson voiced the wartime opinions of many diplomats and intellectuals on both sides of the Atlantic who believed there was a need for a new type of standing international organization dedicated to fostering international cooperation, providing security for its members, and ensuring a lasting peace. With Europe’s population exhausted by four years of total war, and with many in the United States optimistic that a new organization would be able to solve the international disputes that had led to war in 1914, Wilson’s articulation of a League of Nations was wildly popular.
[3] Article: “Woodrow Wilson’s Legacy Gets Complicated.” By Jennifer Schuessler. New York Times, November 29, 2015. <www.nytimes.com>
“The irony here is that Wilson really is the architect of a lot of modern liberalism,” said Julian E. Zelizer, a professor of history and public affairs at Princeton. “The tradition that runs through F.D.R. to L.B.J. and Obama really starts with his administration.” …
“Going to the mat for Wilson should not be hard,” said David Greenberg, a historian at Rutgers University. “If your standards are liberal progressive values in general, Wilson deserves to be celebrated.”
[4] Webpage: “The Paris Peace Conference and the Treaty of Versailles.” U.S. Department of State, Office of the Historian. Accessed October 11, 2018 at <history.state.gov>
The Paris Peace Conference convened in January 1919 at Versailles just outside Paris. The conference was called to establish the terms of the peace after World War I. Though nearly thirty nations participated, the representatives of the United Kingdom, France, the United States, and Italy … dominated the proceedings that led to the formulation of the Treaty of Versailles, a treaty that ended World War I.
The Treaty of Versailles articulated the compromises reached at the conference. It included the planned formation of the League of Nations, which would serve both as an international forum and an international collective security arrangement.
[5] Webpage: “The League of Nations, 1920.” U.S. Department of State, Office of the Historian. Accessed October 18, 2018 at <history.state.gov>
Wilson voiced the wartime opinions of many diplomats and intellectuals on both sides of the Atlantic who believed there was a need for a new type of standing international organization dedicated to fostering international cooperation, providing security for its members, and ensuring a lasting peace. …
The idea of the League was grounded in the broad, international revulsion against the unprecedented destruction of the First World War and the contemporary understanding of its origins. This was reflected in all of Wilson’s Fourteen Points, which were themselves based on theories of collective security and international organization debated amongst academics, jurists, socialists and utopians before and during the war. …
… Most important for Wilson, the League would guarantee the territorial integrity and political independence of member states, authorize the League to take “any action … to safeguard the peace,” establish procedures for arbitration, and create the mechanisms for economic and military sanctions.
[6] Entry: “League of Nations.” Encyclopedia Britannica, July 20, 1998. Last updated 8/3/18. <www.britannica.com>
The central, basic idea of the movement was that aggressive war is a crime not only against the immediate victim but against the whole human community. Accordingly it is the right and duty of all states to join in preventing it; if it is certain that they will so act, no aggression is likely to take place. …
… All members undertook to reduce their armaments to the lowest possible level, to suppress the “evil effects” of the private manufacture of arms, and to exchange full information as to their existing armaments and their programs for the future. … Each member undertook (Article 10) to respect the integrity and independence of all the others and to join in preserving them against aggression. Article 11 declared that any war or threat of war was a matter of concern to all members, whether directly affected or not; every member had the right to demand that the question be considered by the Council and, if necessary, to insist on an immediate meeting. By Article 12, all bound themselves to submit all serious disputes to peaceful settlement or to inquiry by the Council and in no case to resort to war until these procedures had had time to lead to a settlement. Even then, if no settlement were reached, they promised to wait a further three months before going to war.
The Covenant purported to cover each of the main proposals which had emerged during the preparatory period—collective security; arbitration and judicial settlement, including the creation of an international court; international cooperation or control in economic and social affairs; disarmament; and open diplomacy.
[7] “The Covenant of the League of Nations (Art. 1 to 26).” U.S. Department of State, Office of the Historian. Accessed October 18, 2018 at <history.state.gov>
“The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the report by the Council.”
[8] Webpage: “The Paris Peace Conference and the Treaty of Versailles.” U.S. Department of State, Office of the Historian. Accessed October 11, 2018 at <history.state.gov>
The struggle to ratify the Treaty of Versailles and the Covenant in the U.S. Congress helped define the most important political division over the role of the United States in the world for a generation. A triumphant Wilson returned to the United States in February 1919 to submit the Treaty and Covenant to Congress for its consent and ratification. Unfortunately for the President, while popular support for the League was still strong, opposition within Congress and the press had begun building even before he had left for Paris. Spearheading the challenge was the Senate majority leader and chairman of the Foreign Relations Committee, Henry Cabot Lodge.
Motivated by Republican concerns that the League would commit the United States to an expensive organization that would reduce the United States’ ability to defend its own interests, Lodge led the opposition to joining the League. Where Wilson and the League’s supporters saw merit in an international body that would work for peace and collective security for its members, Lodge and his supporters feared the consequences of involvement in Europe’s tangled politics, now even more complex because of the 1919 peace settlement. They adhered to a vision of the United States returning to its traditional aversion to commitments outside the Western Hemisphere. Wilson and Lodge’s personal dislike of each other poisoned any hopes for a compromise, and in March 1920, the Treaty and Covenant were defeated by a 49–35 Senate vote. Nine months later, Warren Harding was elected President on a platform opposing the League.
The United States never joined the League.
[9] Webpage: “The League of Nations, 1920.” U.S. Department of State, Office of the Historian. Accessed October 18, 2018 at <history.state.gov>
“Senate opposition cited Article 10 of the Treaty, which dealt with collective security and the League of Nations. This article, opponents argued, ceded the war powers of the U.S. Government to the League’s Council.”
[10] “Treaty of Peace with Germany (Treaty of Versailles).” U.S. Library of Congress. Accessed December 3, 2018 at <www.loc.gov>
The Covenant of the League of Nations …
Article 10
The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.
[11] Entry: “League of Nations.” Encyclopedia Britannica, July 20, 1998. Last updated 8/3/18. <www.britannica.com>
[I]n the United States Senate, the leaders of the Republican opposition … had resolved to return to the policy of isolationism. … In November 1919 and again in March 1920 the proposal to ratify with substantial reservations was defeated, and the hope of U.S. membership disappeared, as it proved, forever.
The effect of this event upon the future of the League was, in one sense, decisive, since it ruled out all possibility of collective security as embodied in the Covenant. There was no certainty of a complete economic boycott which, it was confidently expected, would suffice to make even the most aggressive government prefer to settle its disputes by negotiation rather than by armed attack. The other component parts of the system could still function, and did in fact function, though with less effectiveness than if the United States had fully participated therein. The knowledge that the world’s greatest economic power would stand aside from sanctions robbed that part of the Covenant of its main threat for the aggressor and destroyed, in consequence, the confidence that other members could place in it.
[12] Webpage: “The Paris Peace Conference and the Treaty of Versailles.” U.S. Department of State, Office of the Historian. Accessed October 23, 2018 at <history.state.gov>
The United States never joined the League. Most historians hold that the League operated much less effectively without U.S. participation than it would have otherwise. However, even while rejecting membership, the Republican Presidents of the period, and their foreign policy architects, agreed with many of its goals. To the extent that Congress allowed, the Harding, Coolidge, and Hoover administrations associated the United States with League efforts on several issues.
[13] Entry: “League of Nations.” Encyclopedia Britannica, July 20, 1998. Last updated 8/3/18. <www.britannica.com>
On October 3, 1935, Mussolini invaded Ethiopia, after rejecting all efforts to dissuade him from the aggression which he was openly planning. By the following summer he had occupied and annexed the whole country, in spite of the economic sanctions enforced against him in execution of the Covenant. From this defeat the League was not destined to recover. … Under British leadership the members, with only three exceptions, agreed to stop the export of arms and raw materials to Italy, to halt the extension of financial credit to Italy, and to cease all imports from Italian sources. By December the effect of these measures was beginning to be seriously felt, and the League members were about to consider imposing an embargo on oil, which, it seemed, would quickly force Mussolini to retreat from Ethiopia.
Mussolini was saved, and all further sanctions were arrested, by the sudden action of the British and French governments. Without consulting their fellow members, they proposed to Italy and Ethiopia a settlement calculated to give the maximum satisfaction to the invader. Though existing sanctions dragged on for several months, they could not prevent the Italian victory.
[14] Paper: “Why Did the League of Nations Fail?” By Jari Eloranta. Cliometrica, January 2011. <www.researchgate.net>
[I]nability of the League to halt Italian … aggression in Abyssinia in 1935–1936 turned out to be its most decisive fiasco. Mussolini, in essence, was able to achieve his illicit conquest despite the protestations of the other European and world powers. Especially the British, who initially were the prominent force behind them, were against the continuation of the sanctions put in place under Article 16 initially, and thus even the sanctions were removed in July 1936. This merely acknowledged the prevailing situation: the Great Powers were not ready to initiate aggression against Italy due to this conflict, and that Mussolini’s victory in Abyssinia had already been sealed months before.
[15] “Treaty of Peace with Germany (Treaty of Versailles).” U.S. Library of Congress. Accessed December 3, 2018 at <www.loc.gov>
The Covenant of the League of Nations …
Article 8
The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations. The Council, taking account of the geographical situation and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Governments.
[16] Paper: “Why Did the League of Nations Fail?” By Jari Eloranta. Cliometrica, January 2011. <www.researchgate.net>
Page 23: “Their views on disarmament differed drastically as well, since for example the British were not willing to commit to extensive collective security arrangements, and the French were not willing, in the absence of such commitments, to disarm. Both were at best skeptical of the chances of the League to provide real security solutions.60”
Pages 25–26:
If we think of the disarmament as a game, the near impossibility of the disarmament becomes apparent. When the participants in the game had, broadly speaking, either the goal of obtaining comprehensive collective security guarantees (like France) or, at the other end of the spectrum, were willing to accept disarmament without any agreement at all, the disarmament process certainly faced an uphill battle in order to be a success. At the level of individual countries’ foreign policy, the aims and motivations of the participants differed even more drastically. Furthermore, when repeated negotiations failed to produce results and centralized military leadership—either by the League of Nations or the leader nations—was not forthcoming, an arms race ensued in the 1930s.
[17] Entry: “League of Nations.” Encyclopedia Britannica, July 20, 1998. Last updated 8/3/18. <www.britannica.com>
The proposal to admit Germany to the League was supported by the former neutrals as well as those among the belligerents who had hoped to achieve a new beginning through reconciliation. The latter group also called for the execution without further delay of the Covenant provisions for disarmament. In France, Poland, and other countries which were neighbours of Germany, these sentiments … were accompanied by deep anxiety lest the military ambitions of the German empire might again become uppermost in the Weimar Republic. … Germany’s neighbours maintained that the security provided by the Covenant was inadequate and that disarmament could only be undertaken after they had received guarantees of prompt and effective support in case a new aggression should take place. …
Many other League members, including those of the British Commonwealth, considered the Covenant not as inadequate but as the utmost limit of what they could safely promise. … Thus it became accepted League doctrine that increased security was a necessary condition for disarmament and that general disarmament was a necessary condition of security. This double thesis was embodied by the Assembly of 1923 in a draft treaty of mutual security, which was promptly rejected by all the principal countries except France.
[18] Book: Arms Races in International Politics: From the Nineteenth to the Twenty-First Century. By Thomas Mahnken, Joseph Maiolo, and David Stevenson. Oxford University Press, 2016. <books.google.com>
Pages 64–65:
[W]hile diplomats in Geneva searched for minimum number of tanks, guns, and planes to insert in the blank tables of the draft disarmament treaties, staff officers in Japan, Germany, the Soviet Union, and Italy planned to organize their national economies to produce munitions on a grand scale.8 … In July 1934, the Geneva disarmament conference adjourned. In 1934–5, Germany began to rearm at full speed…. In March 1935 Germany introduced conscription and Hitler unveiled the Luftwaffe. In 1935–6, Britain and France replied with large rearmament programmes of their own.
…[M]ilitary competition between the great powers between 1936 and 1941 took the form of multiple air, land, and naval races.
Page 78: “If the early 1930s can be characterized—in theoretical terms—as a time of limited ‘arms competition’ the later 1930s—especially 1936–9—can be seen as the stage of ‘arms racing.’ ”
[19] Entry: “League of Nations.” Encyclopedia Britannica, July 20, 1998. Last updated 8/3/18. <www.britannica.com>
Article 1 defined the League’s original members … and any member could withdraw after giving two years’ notice. …
Throughout these years, laborious efforts were being made at Geneva to reach an effective agreement on disarmament. … The German demand for rearmament became more threatening. The powers who feared a German attack were the more resolved to keep their superiority in weapons.
… In the next months Adolf Hitler became master of Germany, and, in the atmosphere of fear and mistrust created by this event, the [World Disarmament] conference could make no progress. In October 1933 Hitler, finding that the Entente powers had proposed to maintain the restrictions of the peace treaty for another four years, seized the occasion to make a spectacular withdrawal from the conference and from the League. From then on Germany was openly rearming, and all prospects of disarmament disappeared. …
The third period of League history, the period of conflict, opened with the Mukden Incident, a sudden attack made on September 18, 1931, by the Japanese army on the Chinese authorities in Manchuria. This was clearly an act of war in violation of the Covenant. … Many of the smaller members of the League, and League supporters everywhere, called for the strict application of the Covenant and an economic boycott of Japan. The chief Council members were themselves in the grip of economic crisis, however, and the cooperation of the United States and the U.S.S.R. was certain to be refused. Economic sanctions were never seriously envisaged. … Nevertheless, the commission drew up a full report, concluding that Manchuria should be returned to Chinese sovereignty, with various safeguards for the rights and needs of Japan. The conclusions of this report were unanimously adopted by the Assembly (February 1933). Japan rejected them and a month later withdrew from the League.
[20] Paper: “Why Did the League of Nations Fail?” By Jari Eloranta. Cliometrica, January 2011. <www.researchgate.net>
Pages 12–13:
[W]hen did the League’s impotence in the task of maintaining the world peace become apparent to all of its members? In fact, it was the weaknesses that were contained in the League framework and the foreign policy stances of the members that made it impossible for the system to work. The real test of the covenants first came with the surprising Japanese aggression in Manchuria. … The … incident developed into an international conflict as the Japanese made considerable headway against the inferior Chinese forces. This prompted extensive debate in the Council, yet it was not willing to put heavy pressure against Japan. … When a special report condemning Japan was approved on February 24, 1933, the Japanese delegation walked out of the Assembly. Japan announced her formal withdrawal from the League on March 27, 1933.43
[21] Webpage: “American Isolationism in the 1930s.” U.S. Department of State, Office of the Historian. Accessed October 23, 2018 at <history.state.gov>
During the 1930s, the combination of the Great Depression and the memory of tragic losses in World War I contributed to pushing American public opinion and policy toward isolationism. Isolationists advocated non-involvement in European and Asian conflicts and non-entanglement in international politics. … During World War I, however, President Woodrow Wilson made a case for U.S. intervention in the conflict and a U.S. interest in maintaining a peaceful world order. Nevertheless, the American experience in that war served to bolster the arguments of isolationists; they argued that marginal U.S. interests in that conflict did not justify the number of U.S. casualties.
[22] Webpage: “The Neutrality Acts, 1930s.” U.S. Department of State, Office of the Historian. Accessed October 23, 2018 at <history.state.gov>
In the 1930s, the United States Government enacted a series of laws designed to prevent the United States from being embroiled in a foreign war by clearly stating the terms of U.S. neutrality. …
By the mid-1930s, events in Europe and Asia indicated that a new world war might soon erupt and the U.S. Congress took action to enforce U.S. neutrality. On August 31, 1935, Congress passed the first Neutrality Act prohibiting the export of “arms, ammunition, and implements of war” from the United States to foreign nations at war and requiring arms manufacturers in the United States to apply for an export license. … On February 29, 1936, Congress renewed the Act until May of 1937 and prohibited Americans from extending any loans to belligerent nations.
… Under [the Neutrality Act of 1937], U.S. citizens were forbidden from traveling on belligerent ships, and American merchant ships were prevented from transporting arms to belligerents even if those arms were produced outside of the United States. The Act gave the President the authority to bar all belligerent ships from U.S. waters, and to extend the export embargo to any additional “articles or materials.” … The Neutrality Act of 1937 did contain one important concession to Roosevelt: belligerent nations were allowed, at the discretion of the President, to acquire any items except arms from the United States, so long as they immediately paid for such items and carried them on non-American ships—the so-called “cash-and-carry” provision. …
After a fierce debate in Congress, in November of 1939, a final Neutrality Act passed. This Act lifted the arms embargo and put all trade with belligerent nations under the terms of “cash-and-carry.” The ban on loans remained in effect, and American ships were barred from transporting goods to belligerent ports.
[23] Entry: “United States.” Encyclopedia Britannica, October 26, 1998. Last updated 10/21/18. <www.britannica.com>
“As the European situation became more tense, the United States continued to hold to its isolationist policy. Congress, with the approval of Roosevelt and Secretary of State Cordell Hull, enacted a series of neutrality laws that legislated against the factors that supposedly had taken the United States into World War I.”
[24] Entry: “League of Nations.” Encyclopedia Britannica, July 20, 1998. Last updated 8/3/18. <www.britannica.com>
While the U.S. Congress was passing a succession of Neutrality Acts, the majority of League members were declaring that they no longer considered themselves bound by the obligations of the Covenant.
… When World War II broke out in September 1939, no appeal of any sort was made to Geneva. …
No further meetings of the Council or Assembly took place during the war. …
The powers and functions entrusted to the League by many treaties were transferred to the [United Nations], which also inherited its material possessions, including the Palais des Nations. On April 19, 1946, the existence of the League was formally ended.
[25] Entry: “United States.” Encyclopedia Britannica, October 26, 1998. Last updated 10/21/18. <www.britannica.com>
When Germany’s invasion of Poland in 1939 touched off World War II, Roosevelt called Congress into special session to revise the Neutrality Act to allow belligerents (in reality only Great Britain and France, both on the Allied side) to purchase munitions on a cash-and-carry basis. With the fall of France to Germany in June 1940, Roosevelt, with heavy public support, threw the resources of the United States behind the British. …
The question of how much and what type of additional aid should be given to the Allies became a major issue of the election of 1940…. Public opinion polls … showed that most Americans favoured Britain but still wished to stay out of war. Roosevelt’s opponent, Wendell Willkie, capitalized on this and rose steadily in the polls by attacking the president as a warmonger. An alarmed Roosevelt fought back, going so far as to make what he knew was an empty promise. “Your boys,” he said just before the election, “are not going to be sent into any foreign wars.”
Upon being returned to office, Roosevelt moved quickly to aid the Allies. His Lend-Lease Act, passed in March 1941 after vehement debate, committed the United States to supply the Allies on credit. …
Although in retrospect U.S. entry into World War II seems inevitable, in 1941 it was still the subject of great debate. Isolationism was a great political force, and many influential individuals were determined that U.S. aid policy stop short of war.
[26] “Atlantic Charter.” Signed August 14, 1941. <avalon.law.yale.edu>
The President of the United States of America and the Prime Minister, Mr. Churchill, representing His Majesty’s Government in the United Kingdom, being met together, deem it right to make known certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world.
First, their countries seek no aggrandizement, territorial or other;
Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned;
Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self government restored to those who have been forcibly deprived of them;
Fourth, they will endeavor, with due respect for their existing obligations, to further the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity;
Fifth, they desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor standards, economic advancement and social security;
Sixth, after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all lands may live out their lives in freedom from fear and want;
Seventh, such a peace should enable all men to traverse the high seas and oceans without hindrance;
Eighth, they believe that all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers, they believe, pending the establishment of a wider and permanent system of general security, that the disarmament of such nations is essential. They will likewise aid and encourage all other practicable measure which will lighten for peace-loving peoples the crushing burden of armaments.
[27] Webpage: “1941: The Atlantic Charter.” United Nations. Accessed October 23, 2018 at <www.un.org>
14 August 1941: A Joint Declaration
Then, one afternoon, came the news that President Roosevelt and Prime Minister Churchill were in conference “somewhere at sea”—the same seas on which the desperate Battle of the Atlantic was being fought—and on August 14 the two leaders issued a joint declaration destined to be known in history as the Atlantic Charter.
This document was not a treaty between the two powers. Nor was it a final and formal expression of peace aims. It was only an affirmation, as the document declared, “of certain common principles in the national policies of their respective countries on which they based their hopes for a better future for the world.”
[28] Entry: “United States.” Encyclopedia Britannica, October 26, 1998. Last updated 10/21/18. <www.britannica.com>
[O]n December 7 Japan directed its first blow against naval and air installations in Hawaii. In a bold surprise attack, Japanese aircraft destroyed or damaged 18 ships of war at Pearl Harbor, including the entire battleship force, and 347 planes. Total U.S. casualties amounted to 2,403 dead and 1,178 wounded.
On December 8, 1941, Congress with only one dissenting vote declared war against Japan. Three days later Germany and Italy declared war against the United States; and Congress, voting unanimously, reciprocated.
[29] Webpage: “1942: Declaration of the United Nations.” United Nations. Accessed October 10, 2018 at <www.un.org>
Representatives of 26 countries fighting the Rome–Berlin–Tokyo Axis, decide to affirm their support by Signing the Declaration by United Nations. …
On New Year’s Day 1942, President Roosevelt, Prime Minister Churchill, Maxim Litvinov, of the USSR, and T. V. Soong, of China, signed a short document which later came to be known as the United Nations Declaration. The next day the representatives of twenty-two other nations added their signatures. This important document pledged the signatory governments to the maximum war effort and bound them against making a separate peace.
[30] Webpage: “1944–1945: Dumbarton Oaks and Yalta.” United Nations. Accessed October 11, 2018 at <www.un.org>
The Dumbarton Oaks Conference constituted the first important step taken to carry out paragraph 4 of the Moscow Declaration of 1943, which recognized the need for a postwar international organization to succeed the League of Nations. …
For this purpose, representatives of China, Great Britain, the USSR and the United States met for a business-like conference at Dumbarton Oaks, a private mansion in Washington, D.C. The discussions were completed on October 7, 1944, and a proposal for the structure of the world organization was submitted by the four powers to all the United Nations governments and to the peoples of all countries for their study and discussion.
[31] Entry: “Harry S. Truman.” By Alfred Steinberg. Encyclopedia Britannica, July 28, 1999. Last updated 10/12/18. <www.britannica.com>
“Roosevelt died suddenly of a cerebral hemorrhage on April 12, 1945, leaving Truman and the public in shock. … Truman was sworn in as president on the same day as Roosevelt’s death…. He began his presidency with great energy, making final arrangements for the San Francisco meeting to draft a charter for the United Nations….”
[32] Webpage: “1944–1945: Dumbarton Oaks and Yalta.” United Nations. Accessed October 11, 2018 at <www.un.org>
“Soon after, in early April, came the sudden death of President Roosevelt, to whose statesmanship the plans for the San Francisco Conference owed so much. There was fear for a time that the conference might have to be postponed, but President Truman decided to carry out all the arrangements already made, and the conference opened on the appointed date.”
[33] Article: “Federal Reserve’s Role During WWII.” By Gary Richardson. Federal Reserve Bank of Richmond, Federal Reserve History, November 22, 2013. <www.federalreservehistory.org>
In September 1939, Germany’s invasion of Poland triggered war among the principal European powers. In December 1941, Japan attacked Pearl Harbor. Germany and Italy declared war on the United States. The American “arsenal of democracy” joined the Allied nations, including Britain, France, China, the Soviet Union, and numerous others, in the fight against the Axis alliance. The Allied counteroffensive began in 1942. The Axis surrendered in 1945.
[34] Article: “World War II.” Encyclopædia Britannica Ultimate Reference Suite 2004.
[It was] also called Second World War, a conflict that involved virtually every part of the world during the years 1939–45. The principal belligerents were the Axis powers—Germany, Italy, and Japan—and the Allies—France, Great Britain, the United States, the Soviet Union, and, to a lesser extent, China. The war was in many respects a continuation, after an uneasy 20-year hiatus, of the disputes left unsettled by World War I. The 40,000,000–50,000,000 deaths incurred in World War II make it the bloodiest conflict as well as the largest war in history. …
The surrender of the German forces in northwestern Europe was signed at Montgomery’s headquarters on Lüneburg Heath on May 4; and a further document, covering all the German forces, was signed with more ceremony at Eisenhower’s headquarters at Reims, in the presence of Soviet as well as U.S., British, and French delegations. At midnight on May 8, 1945, the war in Europe was officially over. …
… [B]y September 2, when the formal [Japanese] surrender ceremonies took place, the way had been smoothed. …
… The document was then signed by MacArthur, Nimitz, and representatives of the other Allied powers. Japan concluded a separate surrender ceremony with China in Nanking on Sept. 9, 1945. With this last formal surrender, World War II came to an end.
[35] Webpage: “1945: The San Francisco Conference.” United Nations. Accessed October 23, 2018 at <www.un.org>
[D]elegates of fifty nations in all, gathered at the City of the Golden Gate, representatives of over eighty per cent of the world’s population, people of every race, religion and continent; all determined to set up an organization which would preserve peace and help build a better world. They had before them the Dumbarton Oaks proposals as the agenda for the conference and, working on this basis, they had to produce a Charter acceptable to all the countries. …
There were 850 delegates, and their advisers and staff together with the conference secretariat brought the total to 3,500. …
… [T]he voting procedure at San Francisco was important. Every part of the Charter had to be and was passed by a two-thirds majority. …
Thus it was that in the Opera House at San Francisco on June 25, the delegates met in full session for the last meeting. Lord Halifax presided and put the final draft of the Charter to the meeting. “This issue upon which we are about to vote,” he said, “is as important as any we shall ever vote in our lifetime.”
In view of the world importance of the occasion, he suggested that it would be appropriate to depart from the customary method of voting by a show of hands. Then, as the issue was put, every delegate rose and remained standing. So did everyone present, the staffs, the press and some 3000 visitors, and the hall resounded to a mighty ovation as the Chairman announced that the Charter had been passed unanimously.
[36] Entry: “United Nations.” By Cecelia M. Lynch, Jacques Fomerand, and Karen Mingst, Encyclopedia Britannica, July 26, 1999. Last updated 9/20/18. <www.britannica.com>
The Dumbarton Oaks proposals, with modifications from the Yalta Conference, formed the basis of negotiations at the United Nations Conference on International Organization (UNCIO), which convened in San Francisco on April 25, 1945, and produced the final Charter of the United Nations. The San Francisco conference was attended by representatives of 50 countries from all geographic areas of the world: 9 from Europe, 21 from the Americas, 7 from the Middle East, 2 from East Asia, and 3 from Africa, as well as 1 each from the Ukrainian Soviet Socialist Republic and the Belorussian Soviet Socialist Republic (in addition to the Soviet Union itself) and 5 from British Commonwealth countries. Poland, which was not present at the conference, was permitted to become an original member of the UN.
[37] Entry: “San Francisco Conference.” Encyclopedia Britannica, July 20, 1998. Revised and updated 3/31/08. <www.britannica.com>
“[T]he leading roles were taken by the foreign ministers of the so-called Big Four nations: U.S. Secretary of State Edward Reilly Stettinius, Jr., Anthony Eden of Great Britain, Vyacheslav Mikhaylovich Molotov of the U.S.S.R., and T.V. Soong of China.”
[38] Webpage: “1945: The San Francisco Conference.” United Nations. Accessed October 23, 2018 at <www.un.org>
“The heads of the delegations of the sponsoring countries took turns as chairman of the plenary meetings: Anthony Eden, of Britain, Edward Stettinius, of the United States, T. V. Soong, of China, and Vyacheslav Molotov, of the Soviet Union.”
[39] Article: “United States.” Encyclopedia of the United Nations and International Agreements: A to Z (3rd edition). By Edmund Jan Osmanczyk. Taylor & Francis, 2003. Pages 2541–2545.
Page 2543: “The United States was one of the four sponsors at the San Francisco Conference on International Organization in 1945 … and was intimately involved in the drafting of the UN Charter. Alger Hiss, a senior official in the US State Department, was secretary-general of the conference, and the secretariat consisted largely of US citizens.”
[40] Webpage: “Alger Hiss.” U.S. Department of Justice, Federal Bureau of Investigation. Accessed January 7, 2019 at <www.fbi.gov>
The central issue of the trial was espionage. In August 1948, Whittaker Chambers—a senior editor at Time magazine—was called by the House Committee on Un-American Activities to corroborate the testimony of Elizabeth Bentley, a Soviet spy who had defected in 1945 and accused dozens of members of the U.S. government of espionage. One official she named as possibly connected to the Soviets was Alger Hiss. …
A key turn of events came in November 1948, when Chambers produced documents showing both he and Hiss were committing espionage. Then, in early December, Chambers provided the committee with a package of microfilm and other information he had hidden inside a pumpkin on his Maryland farm. The two revelations, which became known as the “Pumpkin Papers,” contained images of State Department materials—including notes in Hiss’ own handwriting.
… Hiss was charged with perjury; he could not be indicted for espionage because the statute of limitations had run out. An extensive FBI investigation helped develop a great deal of evidence verifying Chambers’ statements and revealing Hiss’ cover-ups.
In 1949, the first trial resulted in a hung jury, but in 1950, Hiss was convicted. On January 21, 1950, he was sentenced to five years in prison, ending an important case that helped further confirm the increasing penetration of the U.S. government by the Soviets during the Cold War.
[41] Webpage: “The Alger Hiss Case.” Central Intelligence Agency, May 8, 2007. Last updated 8/3/11. <www.cia.gov>
He appealed his conviction but lost; Hiss served 44 months in Lewisburg Federal Penitentiary and was released in 1954. …
In October 1996, the CIA and NSA released the Venona files, copies of decrypted Soviet intelligence cables from the 1930s and 1940s. The most famous of the cables, dated 30 March 1945, describes ALES, the covername for an American agent who had been working for Soviet military intelligence since 1935, attended the Yalta conference, and then gone on to Moscow where Soviet Foreign Minister Vyshinsky thanked him for his work. Of the Americans at Yalta who then went to Moscow with Secretary of State Stettinius, only Hiss fits this profile.
[42] Book: Venona: Soviet Espionage and the American Response 1939–1957 (Part II: Selected Venona Messages). National Security Agency and Central Intelligence Agency, 1996.
Page 423:
89. Washington 1822 to Moscow, 30 March 1945. …
As a result of … chat with “ALES”ii the following has been ascertained:
1. ALES has been working with the NEIGHBORS (SOSEDI)iii continuously since 1935.
2. For some years past he has been the leader of a small group of the NEIGHBORS’ probationere … for the most part consisting of his relations.
3. The group and ALES himself work on obtaining military information only. Materials on the “BANK”iv allegedly interest the NEIGHBORS very little and he does not produce them regularly.
4. All the last few years ALES has been working with “POL”v who also meets other members of the group occasionally.
5. Recently ALES and his whole group were awarded Soviet decorations.
6. After the YALTA Conference, when he had gone on to MOSCOW, a Soviet personage in a very responsible position (ALES gave to understand that it was Comrade Vyshinskij) allegedly got in touch with ALES and at the behest of the Military NEIGHBORS passed on to him their gratitude and so on.
ii ALES: Probably Alger Hiss.
iii SOSEDI: Members of another Soviet Intelligence organization….
iv BANK: The U.S. State Department.
[43] Webpage: “The Formation of the United Nations, 1945.” U.S. Department of State, Office of the Historian. Accessed December 12, 2018 at <history.state.gov>
The Roosevelt administration strove to avoid Woodrow Wilson’s mistakes in selling the League of Nations to the Senate. It sought bipartisan support and in September 1943 the Republican Party endorsed U.S. participation in a postwar international organization, after which both houses of Congress overwhelmingly endorsed participation. Roosevelt also sought to convince the public that an international organization was the best means to prevent future wars. The Senate approved the UN Charter on July 28, 1945, by a vote of 89 to 2. The United Nations came into existence on October 24, 1945, after 29 nations had ratified the Charter.
[44] Webpage: “History of the United Nations.” United Nations. Accessed October 11, 2018 at <www.un.org>
The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States.
The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories.
[45] Webpage: “History of the United Nations.” United Nations. Accessed October 11, 2018 at <www.un.org>
“The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories.”
[46] Webpage: “Overview.” United Nations. Accessed December 3, 2018 at <www.un.org>
“The United Nations is … currently made up of 193 Member States.”
[47] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Chapter III: Organs
Article 7
1 There are established as principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice and a Secretariat.
[48] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 9
1 The General Assembly shall consist of all the Members of the United Nations.
[49] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
The General Assembly is the main deliberative, policymaking and representative organ of the UN. All 193 Member States of the UN are represented in the General Assembly, making it the only UN body with universal representation. Each year, in September, the full UN membership meets in the General Assembly Hall in New York for the annual General Assembly session, and general debate, which many heads of state attend and address. … The General Assembly, each year, elects a GA President to serve a one-year term of office.
[50] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 23
1 The Security Council shall consist of fifteen Members of the United Nations. …
Article 24
1 In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
[51] Webpage: “Members of the Court.” International Court of Justice. Accessed October 25, 2018 at <www.icj-cij.org>
“The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately.”
[52] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 92
The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.
[53] “Charter of the United Nations.” Accessed November 2, 2018 at <www.un.org>
Article 97
The Secretariat shall comprise a Secretary-General and such staff as the Organization may require. The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council. He shall be the chief administrative officer of the Organization.
[54] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
“The Secretariat comprises the Secretary-General and tens of thousands of international UN staff members who carry out the day-to-day work of the UN as mandated by the General Assembly and the Organization’s other principal organs.”
[55] “Charter of the United Nations.” Accessed November 1, 2018 at <www.un.org>
Article 61
1 The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the General Assembly.
[56] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
“The Economic and Social Council is the principal body for coordination, policy review, policy dialogue and recommendations on economic, social and environmental issues, as well as implementation of internationally agreed development goals.”
[57] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
The Trusteeship Council was established in 1945 by the UN Charter, under Chapter XIII, to provide international supervision for 11 Trust Territories that had been placed under the administration of seven Member States, and ensure that adequate steps were taken to prepare the Territories for self-government and independence. By 1994, all Trust Territories had attained self-government or independence. The Trusteeship Council suspended operation on 1 November 1994.
[58] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
The General Assembly is the main deliberative, policymaking and representative organ of the UN. All 193 Member States of the UN are represented in the General Assembly, making it the only UN body with universal representation. Each year, in September, the full UN membership meets in the General Assembly Hall in New York for the annual General Assembly session, and general debate, which many heads of state attend and address. … The General Assembly, each year, elects a GA President to serve a one-year term of office.
[59] Webpage: “About the General Assembly.” United Nations. Accessed October 30, 2018 at <www.un.org>
“The General Assembly is one of the six main organs of the United Nations, the only one in which all Member States have equal representation: one nation, one vote.”
[60] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 9
1 The General Assembly shall consist of all the Members of the United Nations.
2 Each Member shall have not more than five representatives in the General Assembly. …
Article 12
1 While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests. …
Article 18
1 Each member of the General Assembly shall have one vote.
2 Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the elections of members of the Trusteeship Council … the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions.
3 Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting.
[61] Webpage: “General Assembly of the United Nations: Rules of Procedure.” United Nations. Accessed November 6, 2018 at <www.un.org>
Rule 30 …
Unless the General Assembly decides otherwise, the General Assembly shall elect a President and twenty-one Vice-Presidents1 at least three months before the opening of the session over which they are to preside. …
Rule 35 …
In addition to exercising the powers conferred upon him elsewhere by these rules, the President shall declare the opening and closing of each plenary meeting of the session, direct the discussions in plenary meeting, ensure observance of these rules, accord the right to speak, put questions and announce decisions. He shall rule on points of order and, subject to these rules, shall have complete control of the proceedings at any meeting and over the maintenance of order thereat.
The President may, in the course of the discussion of an item, propose to the General Assembly the limitation of the time to be allowed to speakers, the limitation of the number of times each representative may speak, the closure of the list of speakers or the closure of the debate. He may also propose the suspension or the adjournment of the meeting or the adjournment of the debate on the item under discussion. …
Rule 37 …
The President, or a Vice-President acting as President, shall not vote but shall designate another member of his delegation to vote in his place.
1 In the annex to resolution 33/138 of 19 December 1978, the General Assembly decided as follows:
1. In the election of the President of the General Assembly, regard shall be had for equitable geographical rotation of this office among the regions mentioned in paragraph 4 below [Africa, Asia, Eastern Europe, Latin America, and Western Europe].
2. The twenty-one Vice-Presidents of the General Assembly shall be elected according to the following pattern, subject to paragraph 3 below:
(a) Six representatives from African States;
(b) Five representatives from Asian States
(c) One representative from an Eastern European State
(d) Three representatives from Latin American States
(e) Two representatives from Western European or other States
(f) Five representatives from the permanent members of the Security Council
3. The election of the President of the General Assembly will, however, have the effect of reducing by one the number of vice-presidencies allocated to the region from which the President is elected.
[62] Webpage: “General Assembly of the United Nations: Ordinary Sessions.” United Nations. Accessed November 12, 2018 at <www.un.org>
Since the 60th session in 2005, the President-elect of the General Assembly suggests a theme of global concern for the upcoming general debate, based on informal discussions with Member States, the President of the current session of the General Assembly, and the Secretary-General. Shortly after his/her election, the President-elect sends a letter to all Member States announcing the theme for the upcoming general debate and inviting them to focus their speeches on the proposed theme.
[63] Webpage: “What is the Theme for the General Debate of the 73rd Session of the General Assembly?” United Nations, Dag Hammarskjold Library, October 3, 2018. <ask.un.org>
The theme for the general debate of the 73rd session of the General Assembly is “Making the United Nations relevant to all people: global leadership and shared responsibilities for peaceful, equitable and sustainable societies.”
The theme and additional information about the general debate can found in “Arrangements for the high-level meetings and the general debate of the seventy-third session of the General Assembly: United Nations Headquarters, 24 September–1 October 2018: Information note for delegations” (A/INF/73/4).
[64] Webpage: “Main Committees.” General Assembly of the United Nations. Accessed November 12, 2018 at <www.un.org>
Each Member State may be represented by one person on each Main Committee and on any other committee that may be established upon which all Member States have the right to be represented.
Member States may also assign advisers, technical advisers, experts or persons of similar status to these committees (Rule 100 of the rules of procedure of the General Assembly).
Main Committees
• First Committee (Disarmament & International Security)
• Second Committee (Economic & Financial)
• Third Committee (Social, Humanitarian & Cultural)
• Fourth Committee (Special Political & Decolonization)
• Fifth Committee (Administrative & Budgetary)
• Sixth Committee (Legal)
[65] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
“The Security Council has primary responsibility, under the UN Charter, for the maintenance of international peace and security. It has 15 Members (5 permanent and 10 non-permanent members).”
[66] Webpage: “Current Members.” United Nations Security Council. Accessed January 21, 2019 at <www.un.org>
The Council is composed of 15 Members:
Five permanent members: China, France, Russian Federation, the United Kingdom, and the United States, and ten non-permanent members elected for two-year terms by the General Assembly (with end of term year):
• Belgium (2020)
• Côte d’Ivoire (2019)
• Dominican Republic (2020)
• Equatorial Guinea (2019)
• Germany (2020)
• Indonesia (2020)
• Kuwait (2019)
• Peru (2019)
• Poland (2019)
• South Africa (2020)
[67] Webpage: “Security Council Presidency.” United Nations Security Council. Accessed March 19, 2019 at <www.un.org>
“The presidency of the Council is held by each of the members in turn for one month, following the English alphabetical order of the Member States names.”
[68] Although China has been a member of the United Nations since the organization’s founding, the government that represents it at the UN has changed. After communists seized power of China in 1949, the nationalist government of Chiang Kai-shek fled to Taiwan but continued to represent China at the United Nations.† In 1971, the UN General Assembly passed a resolution establishing the government of the People’s Republic of China as the “only lawful” representative of China to the United Nations and expelling the Chiang Kai-shek representatives.‡
NOTES:
[69] Textbook: Akehurst’s Modern Introduction to International Law (7th edition). By Peter Malanczuk. Routledge, 1997.
Page 373:
The Security Council consists of fifteen member states.70 Five are permanent members: China, France, the United Kingdom, the United States and Russia, which had informed the UN in 1991 that, with the support of the eleven members of the Commonwealth of Independent States arising from the remains of the former Soviet Empire, it would continue the membership of the USSR in all UN organs.71 This step taken by the Russian Federation is remarkable because it did not meet with any protest by a UN member state, although, strictly speaking, one could argue that in this matter an amendment of the Charter was necessary to change the composition of the Security Council.72
[70] Webpage: “The United Nations Security Council Counter-Terrorism Committee.” United Nations Security Council. Accessed November 1, 2018 at <www.un.org>
“Guided by Security Council resolutions 1373 (2001) and 1624 (2005), the CTC [Counter-Terrorism Committee] works to bolster the ability of United Nations Member States to prevent terrorist acts both within their borders and across regions. It was established in the wake of the 11 September terrorist attacks in the United States.”
[71] Webpage: “Frequently Asked Questions on Resolution 1540 (2004).” United Nations. Accessed November 1, 2018 at <www.un.org>
Resolution 1540 (2004) is a decision of the Security Council … affirming that the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security. …
Resolution 1540 (2004) requires States to refrain from providing any form of support to non-state actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery. States are also required, in accordance with their national procedures, to adopt and enforce appropriate effective laws that prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them. …
The main objective of resolution 1540 (2004) is to prevent the proliferation of weapons of mass destruction and their means of delivery and, to that end, to prohibit any non-State actor from engaging in any proliferation-related activities, in particular for terrorist purposes. …
The 1540 Committee is a subsidiary body of the Security Council, composed of the fifteen current members of the Council. The mandate and scope of activities of the 1540 Committee are derived from resolution 1540 (2004) and subsequent resolutions…. [T]he Committee established, and subsequently maintained, working groups in the following areas:
(i) Monitoring and national implementation;
(ii) Assistance;
(iii) Cooperation with international organisations …
(iv) Transparency and media outreach. …
The 1540 Committee is not a sanctions committee. It does not investigate or prosecute alleged violations of non-proliferation obligations. The 1540 Committee and its group of experts are committed to a cooperative relationship with the international community to facilitate implementation of resolution 1540 (2004) by all States.
[72] Resolution 1540 (2004). United Nations Security Council, April 28, 2004. <archive.ipu.org>
“The Security Council … decides to establish … a Committee of the Security Council, consisting of all members of the Council, which will, calling as appropriate on other expertise, report to the Security Council for its examination, on the implementation of this resolution….”
[73] Webpage: “Current Members.” United Nations Security Council. Accessed January 21, 2019 at <www.un.org>
A State which is a Member of the United Nations but not of the Security Council may participate, without a vote, in its discussions when the Council considers that country’s interests are affected. Both Members and non-members of the United Nations, if they are parties to a dispute being considered by the Council, may be invited to take part, without a vote, in the Council’s discussions; the Council sets the conditions for participation by a non-member State.
[74] “Charter of the United Nations.” Accessed November 2, 2018 at <www.un.org>
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. …
Article 27
1 Each member of the Security Council shall have one vote.
2 Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
3 Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting. …
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. …
Article 43
1 All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
2 Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
3 The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes. …
Article 48
1 The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.
2 Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.
Article 49
The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.
[75] Webpage: “Voting System.” United Nations Security Council. Accessed January 21, 2019 at <www.un.org>
The creators of the United Nations Charter conceived that five countries—China, France, the Union of Soviet Socialist Republics (USSR) (which was succeeded in 1990 by the Russian Federation), the United Kingdom and the United States—, because of their key roles in the establishment of the United Nations, would continue to play important roles in the maintenance of international peace and security.
They were granted the special status of Permanent Member States at the Security Council, along with a special voting power known as the “right to veto.” It was agreed by the drafters that if any one of the five permanent members cast a negative vote in the 15-member Security Council, the resolution or decision would not be approved.
All five permanent members have exercised the right of veto at one time or another. If a permanent member does not fully agree with a proposed resolution but does not wish to cast a veto, it may choose to abstain, thus allowing the resolution to be adopted if it obtains the required number of nine favourable votes.
[76] Webpage: “The Security Council.” United Nations. Accessed November 1, 2018 at <www.un.org>
The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security.
[77] Webpage: “Role of the Security Council.” United Nations, Department of Peacekeeping Operations. Accessed November 5, 2018 at <peacekeeping.un.org>
“Under Article 25 of the Charter, all UN members agree to accept and carry out the decisions of the Security Council. While other organs of the UN make recommendations to Member States, the Council alone has the power to take decisions which Member States are obligated to implement.”
[78] Book: Economic Sanctions: Panacea or Peacebuilding in a Post-Cold War World? Edited by David Cortright and George A. Lopez. Westview Press, 1995. Chapter 2: “The United Nations Experience with Sanctions.” By James C. Ngobi. Pages 17–28.
Page 21:
The Security Council has consistently declared or implied that the responsibility for implementing the sanctions it establishes lies with states…. This position probably springs from the realization that acts violating sanctions will be committed in the jurisdiction of some state, which must then investigate and/or prevent the act and deal with the guilty parties….
Pages 23–24:
[E]xclusive reliance on states for imposing sanctions means that the Security Council committees do not have an independent external mechanism to implement sanctions or to verify that the investigations undertaken by governments are sufficient and conclusive. …
Fourth, there should be measures to punish the offenders who continue to trade with a sanctioned country. … If it is found that the countries in which such companies or individuals reside are not exercising sufficient control or restraint on their national entities, a threat of secondary sanctions against such countries would likely yield amazing results in the field of compliance.
[79] Webpage: “Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Chapter VII).” United Nations Security Council. Accessed December 3, 2018 at <www.un.org>
Article 43 – Member States’ Obligation to Offer Assistance in the Maintenance of International Peace and Security
The obligation for United Nations members to undertake to make armed forces available to the Security Council, render assistance and accord relief as necessary for the maintenance of international peace and security exists only in accordance with one or more special agreements. Nevertheless, such agreements were never concluded and no State is obligated to make troops available to the Council in a particular situation. Consequently, the United Nations has to enter into negotiations every time a situation calls for the establishment of an operation.
[80] Webpage: “Military.” United Nations, Department of Peacekeeping Operations. Accessed November 6, 2018 at <peacekeeping.un.org>
All military personnel working under the Blue Helmet are first and foremost members of their own national armies and are then seconded to work under the command and control of the UN.
We have more than 100,000 UN uniformed personnel coming from over 120 countries. …
It takes considerable time to deploy troops and we are often asked why we do not have a standing reserve.
The UN can only deploy military personnel when there is a UN Security Council resolution authorizing them to do so. The Security Council will say how many military personnel are required, and UN Headquarters will liaise with the Member States to identify personnel and deploy them. This can take time—often more than six months from the date of the resolution to get boots and equipment on the ground.
[81] “Charter of the United Nations.” Accessed November 2, 2018 at <www.un.org>
Article 43
1 All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
2 Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
[82] Webpage: “Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Chapter VII).” United Nations Security Council. Accessed December 3, 2018 at <www.un.org>
Article 43 – Member States’ Obligation to Offer Assistance in the Maintenance of International Peace and Security
The obligation for United Nations members to undertake to make armed forces available to the Security Council, render assistance and accord relief as necessary for the maintenance of international peace and security exists only in accordance with one or more special agreements. Nevertheless, such agreements were never concluded and no State is obligated to make troops available to the Council in a particular situation. Consequently, the United Nations has to enter into negotiations every time a situation calls for the establishment of an operation.
[83] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 92
The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.
[84] Webpage: “The Court.” International Court of Justice. Accessed October 25, 2018 at <www.icj-cij.org>
“The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). … The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.”
[85] Webpage: “Members of the Court.” International Court of Justice. Accessed October 25, 2018 at <www.icj-cij.org>
The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. This sometimes makes it necessary for a number of rounds of voting to be held.
In order to ensure a degree of continuity, one third of the Court is elected every three years. Judges are eligible for re-election. Should a judge die or resign during his or her term of office, a special election is held as soon as possible to choose a judge to fill the unexpired part of the term.
Elections are held in New York (United States of America) during the annual autumn session of the General Assembly. The judges elected at a triennial election commence their term of office on 6 February of the following year, after which the Court holds a secret ballot to elect a President and a Vice-President to hold office for three years.
[86] Webpage: “The Court.” International Court of Justice. Accessed October 25, 2018 at <www.icj-cij.org>
“The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America).”
[87] Webpage: “How the Court Works.” International Court of Justice. Accessed October 30, 2018 at <www.icj-cij.org>
Only States (States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to contentious cases.
The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:
• by entering into a special agreement to submit the dispute to the Court;
• by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court;
• through the reciprocal effect of declarations made by them under the Statute, whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.
[88] “Statute of the International Court of Justice.” Accessed November 28, 2018 at <www.icj-cij.org>
Article 36
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
a) the interpretation of a treaty;
b) any question of international law;
c) the existence of any fact which, if established, would constitute a breach of an international obligation;
d) the nature or extent of the reparation to be made for the breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
[89] Webpage: “Basis of the Court’s Jurisdiction.” International Court of Justice. Accessed November 28, 2018 at <www.icj-cij.org>
The jurisdiction of the Court in contentious proceedings is based on the consent of the States to which it is open.1 The form in which this consent is expressed determines the manner in which a case may be brought before the Court.
(a) Special Agreement
Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court comprises all cases which the parties refer to it. Such cases normally come before the Court by notification to the Registry of an agreement known as a special agreement, concluded by the parties specially for this purpose.2 …
(b) Matters Provided for in Treaties and Conventions
Article 36, paragraph 1, of the Statute also provides that the jurisdiction of the Court comprises all matters specially provided for in treaties and conventions in force. Such matters are normally brought before the Court by means of a written application instituting proceedings;3 this is a unilateral document which must indicate the subject of the dispute and the parties … and, as far as possible, specify the provision on which the applicant founds the jurisdiction of the Court (Rules, Art. 38). …
(c) Compulsory Jurisdiction in Legal Disputes
The Statute provides that a State may recognize as compulsory, in relation to any other State accepting the same obligation, the jurisdiction of the Court in legal disputes. …
[90] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
The Secretariat comprises the Secretary-General and tens of thousands of international UN staff members who carry out the day-to-day work of the UN as mandated by the General Assembly and the Organization’s other principal organs. The Secretary-General is chief administrative officer of the Organization, appointed by the General Assembly on the recommendation of the Security Council for a five-year, renewable term.
[91] Webpage: “Appointment Process.” United Nations Secretary-General. Accessed October 31, 2018 at <www.un.org>
The Secretary-General is appointed by the General Assembly, on the recommendation of the Security Council. The Secretary-General’s selection is therefore subject to the veto of any of the five permanent members of the Security Council. … Although there is technically no limit to number of five-year terms a Secretary-General may serve, none so far has held office for more than two terms.
[92] Webpage: “The Role of the Secretary-General.” United Nations. Accessed October 31, 2018 at <www.un.org>
“Each year, the Secretary-General issues a report on the work of the United Nations that appraises its activities and outlines future priorities.”
[93] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
“The Secretariat comprises the Secretary-General and tens of thousands of international UN staff members who carry out the day-to-day work of the UN as mandated by the General Assembly and the Organization’s other principal organs.”
[94] Webpage: “Secretariat.” United Nations. Accessed October 31, 2018 at <www.un.org>
“The Secretariat, one of the main organs of the UN, is organized along departmental lines, with each department or office having a distinct area of action and responsibility. Offices and departments coordinate with each other to ensure cohesion as they carry out the day to day work of the Organization in offices and duty stations around the world.”
[95] Webpage: “Office of Internal Oversight Services.” Office of Internal Oversight Services. Accessed October 31, 2018 at <oios.un.org>
The Office of Internal Oversight Services is the internal oversight body of the United Nations. Established in 1994 by the General Assembly, the office assists the Secretary-General in fulfilling his oversight responsibilities in respect of the resources and staff of the Organization through the provision of audit, investigation, inspection, and evaluation services. The Office aims to be an agent of change that promotes responsible administration of resources, a culture of accountability and transparency, and improved programme performance.
[96] Webpage: “What We Do.” United Nations, Department of Political Affairs. Accessed October 31, 2018 at <dpa.un.org>
DPA [Department of Political Affairs] monitors and assesses global political developments with an eye to detecting potential crises before they erupt and devising effective responses. The Department provides support to the Secretary-General and his envoys, as well as to UN political missions deployed around the world to help defuse crises or promote lasting solutions to conflict.
[97] Webpage: “Department of Peacekeeping Operations.” United Nations, Department of Peacekeeping Operations. Accessed November 5, 2018 at <peacekeeping.un.org>
The Department of Peacekeeping Operations (DPKO) is dedicated to assisting the Member States and the Secretary-General in their efforts to maintain international peace and security.
DPKO provides political and executive direction to UN Peacekeeping operations around the world and maintains contact with the Security Council, troop and financial contributors, and parties to the conflict in the implementation of Security Council mandates.
[98] Webpage: “Who We Are.” United Nations Office for the Coordination of Humanitarian Affairs. Accessed November 21, 2018 at <www.unocha.org>
“OCHA [Office for the Coordination of Humanitarian Affairs] is the part of the United Nations Secretariat responsible for bringing together humanitarian actors to ensure a coherent response to emergencies. OCHA also ensures there is a framework within which each actor can contribute to the overall response effort.”
[99] Webpage: “Who We Are.” United Nations, Department of Economic and Social Affairs. Accessed November 21, 2018 at <www.un.org>
“UN DESA [Department of Economic and Social Affairs] holds up the development pillar of the UN Secretariat. Its Divisions and Offices work together towards a common goal to promote the social, economic and environmental dimensions of sustainable development.”
[100] Webpage: “Who We Are.” United Nations, Office of the High Commissioner for Human Rights. Accessed November 21, 2018 at <www.ohchr.org>
The Office of the High Commissioner for Human Rights (UN Human Rights) is the leading UN entity on human rights. The General Assembly entrusted both the High Commissioner and her Office with a unique mandate to promote and protect all human rights for all people. …
UN Human Rights provides assistance in the form of technical expertise and capacity-development in order to support the implementation of international human rights standards on the ground. It assists governments, which bear the primary responsibility for the protection of human rights, to fulfil their obligations and supports individuals to claim their rights. Moreover, it speaks out objectively on human rights violations.
UN Human Rights is part of the United Nations Secretariat, with a staff of some 1300 people and its headquarters in Geneva, as well as an office in New York. It has field presences that comprise regional and country/stand-alone offices. Furthermore, UN Human Rights supports the human rights components of UN peace missions or political offices and deploys human rights advisers to work with the United Nations Country teams.
[101] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
“The Economic and Social Council is the principal body for coordination, policy review, policy dialogue and recommendations on economic, social and environmental issues, as well as implementation of internationally agreed development goals.”
[102] “Charter of the United Nations.” Accessed November 1, 2018 at <www.un.org>
Article 61
1 The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the General Assembly.
2 Subject to the provisions of paragraph 3, eighteen members of the Economic and Social Council shall be elected each year for a term of three years. A retiring member shall be eligible for immediate re-election. …
Article 67
1 Each member of the Economic and Social Council shall have one vote.
2 Decisions of the Economic and Social Council shall be made by a majority of the members present and voting.
[103] Webpage: “ECOSOC Members.” United Nations Economic and Social Council. Accessed October 31, 2018 at <www.un.org>
The Council’s 54 member Governments are elected by the General Assembly for overlapping three-year terms. Seats on the Council are allotted based on geographical representation with fourteen allocated to African States, eleven to Asian States, six to Eastern European States, ten to Latin American and Caribbean States, and thirteen to Western European and other States.
[104] Webpage: “About Us.” United Nations Economic and Social Council. Accessed November 1, 2018 at <www.un.org>
The Economic and Social Council is at the heart of the United Nations system to advance the three dimensions of sustainable development—economic, social and environmental. …
Each year, ECOSOC structures its work around an annual theme of global importance to sustainable development. This ensures focused attention, among ECOSOC’s array of partners, and throughout the UN development system. …
ECOSOC’s annual High-Level Segment includes:
• High-Level Political Forum provides political leadership, guidance and recommendations for sustainable development, and reviews progress in implementing sustainable development commitments.
• Development Cooperation Forum reviews trends and progress in development cooperation.
[105] Webpage: “High-Level Political Forum on Sustainable Development.” United Nations Department of Social and Economic Affairs, Division for Sustainable Development Goals. Accessed November 1, 2018 at <sustainabledevelopment.un.org>
The Forum meets annually under the auspices of the Economic and Social Council….
The HLPF [High-Level Political Forum] is the main United Nations platform on sustainable development and it has a central role in the follow-up and review of the 2030 Agenda for Sustainable Development the Sustainable Development Goals (SDGs) at the global level.
[106] Entry: “United Nations.” By Cecelia M. Lynch, Jacques Fomerand, and Karen Mingst. Encyclopedia Britannica, July 26, 1999. Last updated 9/20/18. <www.britannica.com>
Designed to be the UN’s main venue for the discussion of international economic and social issues, the Economic and Social Council (ECOSOC) directs and coordinates the economic, social, humanitarian, and cultural activities of the UN and its specialized agencies. Established by the UN Charter, ECOSOC is empowered to recommend international action on economic and social issues; promote universal respect for human rights; and work for global cooperation on health, education, and cultural and related areas. ECOSOC conducts studies; formulates resolutions, recommendations, and conventions for consideration by the General Assembly; and coordinates the activities of various UN programs and specialized agencies.
[107] Paper: “The Economic and Social Council of the United Nations.” By Gert Rosenthal. Friedrich Ebert Stiftung Dialogue on Globalization, February 2005. <library.fes.de>
Page 4: [T]he Charter makes clear that the decisions taken by the Council are not binding on member states, or even on the specialized agencies of the United Nations System.”
[108] “Charter of the United Nations.” Accessed November 1, 2018 at <www.un.org>
Article 77
1 The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:
a. territories now held under mandate;
b. territories which may be detached from enemy states as a result of the Second World War; and
c. territories voluntarily placed under the system by states responsible for their administration.
[109] Webpage: “Main Organs.” United Nations. Accessed October 25, 2018 at <www.un.org>
The Trusteeship Council was established … to provide international supervision for 11 Trust Territories that had been placed under the administration of seven Member States, and ensure that adequate steps were taken to prepare the Territories for self-government and independence. By 1994, all Trust Territories had attained self-government or independence. The Trusteeship Council suspended operation on 1 November 1994.
[110] Webpage: “International Trusteeship System.” United Nations. Accessed November 1, 2018 at <www.un.org>
In 1945, under Chapter XII of the Charter, the United Nations established the International Trusteeship System for the supervision of Trust Territories placed under it by individual agreements with the States administering them.
Under Article 77 of the Charter, the Trusteeship System applied to:
• Territories held under Mandates established by the League of Nations after the First World War;
• Territories detached from “enemy States” as a result of the Second World War;
• Territories voluntarily placed under the System by States responsible for their administration. …
The Security Council in 1994 terminated the United Nations Trusteeship Agreement for the last Territory—the Trust Territory of the Pacific Islands (Palau), administered by the United States….
In the early years of the United Nations, 11 Territories were placed under the Trusteeship System. Today, all 11 Territories have either become independent States or have voluntary associated themselves with a State. With no Territories left in its agenda, the Trusteeship System had completed its historic task.
[111] Dataset: “Total Expenditure.” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“2016 … Expenditure [=] 48,764,755,110”
[112] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 2 (of PDF):
U.N. bodies are funded by a combination of assessed and voluntary contributions. Assessed contributions are required dues shared among U.N. member states to pay for the expenses of the organization. The U.N. regular budget, peacekeeping operations, and specialized agencies are funded mainly by assessed contributions. Voluntary contributions fund U.N. funds, programs, and offices.
[113] Webpage: “Committee on Contributions.” United Nations General Assembly. Accessed November 2, 2018 at <www.un.org>
The Committee on Contributions advises the General Assembly on the apportionment, under Article 17, of the expenses of the Organization among Members broadly according to capacity to pay. The Committee also advises the General Assembly on the assessments to be fixed for new Members, and on appeals by Members for a change of assessments. …
… The report of the Committee is considered by the General Assembly at its main session.
[114] Webpage: “Committee on Contributions: Regular Budget and Working Capital Fund.” United Nations General Assembly. Accessed November 2, 2018 at <www.un.org>
[T]he General Assembly decided that the scale of assessments for the period 2016–2018 shall be based on the following elements and criteria:
1. Estimates of gross national income;
2. Average statistical base periods of three and six years;
3. Conversion rates based on market exchange rates, except where that would cause excessive fluctuations and distortions in the income of some Member States, when price-adjusted rates of exchange or other appropriate conversion rates should be employed, taking due account of its resolution 46/221 B;
4. The debt-burden approach employed in the scale of assessments for the period 2013–2015;
5. A low per capita income adjustment of 80 per cent, with a threshold per capita income limit of the average per capita gross national income of all Member States for the statistical base periods;
6. A minimum assessment rate of 0.001 per cent;
7. A maximum assessment rate for the least developed countries of 0.01 per cent;
8. A maximum assessment rate of 22 per cent.
[115] Webpage: “Rules of Procedure.” General Assembly of the United Nations. Accessed November 2, 2018 at <www.un.org>
Rule 158 …
The General Assembly shall appoint an expert Committee on Contributions consisting of eighteen members.
Composition
Rule 159 …
The members of the Committee on Contributions, no two of whom shall be nationals of the same State, shall be selected on the basis of broad geographical representation, personal qualifications and experience and shall serve for a period of three years corresponding to three calendar years. Members shall retire by rotation and shall be eligible for reappointment. The General Assembly shall appoint the members of the Committee on Contributions at the regular session immediately preceding the expiration of the term of office of the members or, in the case of vacancies, at the next session.
Functions
Rule 160
The Committee on Contributions shall advise the General Assembly concerning the apportionment, under Article 17, paragraph 2, of the Charter, of the expenses of the Organization among Members, broadly according to capacity to pay. The scale of assessments, when once fixed by the General Assembly, shall not be subject to a general revision for at least three years unless it is clear that there have been substantial changes in relative capacity to pay. The Committee shall also advise the General Assembly on the assessments to be fixed for new Members, on appeals by Members for a change of assessments and on the action to be taken with regard to the application of Article 19 of the Charter.
[116] Webpage: “Committee on Contributions: Assessments.” United Nations General Assembly. Accessed November 2, 2018 at <www.un.org>
Assessment is the term used for the amount of money that the General Assembly determines should be assessed to finance the approved appropriation, which is shared among Member States to pay for the expenses of the Organization. Assessments are made to Member States for the following:
• Regular budget
• International tribunals
• Capital master plan
• Peacekeeping operations
[117] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 17
1 The General Assembly shall consider and approve the budget of the Organization. …
Article 18 …
2 Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: … budgetary questions.
[118] Webpage: “UN Documentation: Principal Budgeting Bodies.” United Nations, Dag Hammarskjold Library. Accessed November 2, 2018 at <research.un.org>
The Secretary-General and the Secretariat prepare the following documents for consideration by the General Assembly and its subsidiaries:
• Proposed Strategic Framework
• Proposed Programme Budget
• First and Second Performance Reports
• Programme Performance for the Biennium
• Financial Report and Audited Financial Statements …
Chapter IV, Article 17 of the Charter of the United Nations gives the General Assembly responsibility for approving the budget. Substantive deliberations about the budget are generally delegated to the appropriate entities:
• Fifth Committee
• Advisory Committee on Administrative and Budgetary Questions
• Committee for Programme and Coordination
• Board of Auditors
• Committee on Contributions
Resolutions and decisions about the budget are adopted by the plenary of the General Assembly and may touch on any aspect of the planning, programming, budgeting, monitoring and evaluation cycle. In general, the General Assembly takes action on the budget on the basis of the recommendation of the Fifth Committee.
[119] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 3:
U.N. members pay assessed contributions to the U.N. regular budget, which funds the core administrative costs of the organization.8 … As outlined in the U.N. Charter, budget decisions are made by a two-thirds majority of members present and voting in the Assembly, with each country having one vote. Since the late 1980s, however, decisions related to the budget have, with few exceptions, been adopted by consensus.
8 Core administrative costs include the General Assembly, Security Council, Secretariat, International Court of Justice, special political missions, and human rights mechanisms, including the Human Rights Council.
[120] Webpage: “UN Documentation: Introduction.” United Nations, Dag Hammarskjold Library. Accessed November 2, 2018 at <research.un.org>
“The UN programme budget now covers a two year period, beginning in January of an even-numbered year (e.g. 2016–2017).”
[121] Article: “General Assembly Approves $5.4 Billion UN Budget for Next Two Years.” United Nations UN News, December 26, 2017. <news.un.org>
“Concluding the main part of its 72nd session, the United Nations General Assembly on Sunday took a number of key actions, including approving a nearly $5.4 billion programme budget for the Organization for the biennium 2018–2019.”
[122] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 3: “The approved U.N. regular budget for the 2018–2019 biennium is $5.39 billion (about $2.7 billion per year).9”
[123] Calculated with data from the report: “Assessment of Member States’ Advances to the Working Capital Fund for the Biennium 2018–2019 and Contributions to the United Nations Regular Budget for 2018.” United Nations Secretariat, December 29, 2017. <undocs.org>
Pages 8–12: “B. Contributions by Member States to the United Nations Regular Budget for the Year 2018.”
NOTE: An Excel file containing the data and calculations is available upon request.
[124] Report: “Assessment of Member States’ Advances to the Working Capital Fund for the Biennium 2018–2019 and Contributions to the United Nations Regular Budget for 2018.” United Nations Secretariat, December 29, 2017. <undocs.org>
Pages 8–12: “B. Contributions by Member States to the United Nations Regular Budget for the Year 2018.”
NOTE: An Excel file containing the data is available upon request.
[125] Webpage: “How We Are Funded.” United Nations, Department of Peacekeeping Operations. Accessed November 2, 2018 at <peacekeeping.un.org>
The approved budget for UN Peacekeeping operations for the fiscal year 1 July 2018–30 June 2019 is $6.7 billion. …
The Secretary-General submits budget proposal to the Advisory Committee on Administrative and Budgetary Questions (ACABQ). The ACABQ reviews the proposal and makes recommendations to the General Assembly’s Fifth Committee for its review and approval. Ultimately, the budget is endorsed by the General Assembly as a whole.
[126] Webpage: “How We Are Funded.” United Nations, Department of Peacekeeping Operations. Accessed November 2, 2018 at <peacekeeping.un.org>
The General Assembly apportions peacekeeping expenses based on a special scale of assessments under a complex formula that Member States themselves have established. This formula takes into account, among other things, the relative economic wealth of Member States, with the five permanent members of the Security Council required to pay a larger share because of their special responsibility for the maintenance of international peace and security.
[127] “Report of the Secretary-General: Implementation of General Assembly Resolutions 55/235 and 55/236.” United Nations General Assembly, December 28, 2015. <undocs.org>
Page 2:
Effective Rates of Assessment for Peacekeeping Operations, 1 January 2016 to 31 December 2018, Based on the Scale of Assessments Adopted by the General Assembly in Its Resolution 70/245 and the Composition of Levels Endorsed by the Assembly in Its Resolution 70/246 …
Level A … 2018 … China [=] 10.2377 … France [=] 6.2801 … Russian Federation [=] 3.9912 … United Kingdom of Great Britain and Northern Ireland [=] 5.7683 … United States of America [=] 28.4344 … Total A [=] 54.7116
[128] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 4:
There are currently 15 specialized agencies in the U.N. system, including the International Atomic Energy Agency (IAEA) and the World Bank Group (Figure 3).11 Each of these entities is a legally independent intergovernmental organization with its own constitution, rules, membership, organs, and financial resources, including scale of assessments. Some agencies follow the assessment levels for the U.N. regular budget, while others use their own formulas. The United States is a member of all specialized agencies except for the U.N. Industrial Development Organization (UNIDO) and U.N. World Tourism Organization (WTO); it is currently in the process of withdrawing from the U.N. Educational, Scientific, and Cultural Organization (UNESCO).12
[129] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 1: “The United States is the largest single financial contributor to the United Nations (U.N.) system.”
[130] Dataset: “Total Revenue by Government Donor.” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“2016 … United States of America [=] 9,718,025,938”
[131] Calculated with data from:
a) Dataset: “Total Revenue by Government Donor.” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“2016 … United States of America [=] 9,718,025,938”
b) Dataset: “Table 7.1. Selected Per Capita Product and Income Series in Current and Chained Dollars.” U.S. Department of Commerce, Bureau of Economic Analysis. Last revised January 26, 2018. <www.bea.gov>
“Population (Midperiod, Thousands) … 2016 [=] 323,668”
CALCULATION: $9,718,025,938 / 323,668,000 people = $30.02 per person
[132] Calculated with data from:
a) Dataset: “Total Revenue by Government Donor.” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“2016 … United States of America [=] 9,718,025,938”
b) Report: “Fiscal Year 2019 Historical Tables: Budget of the U.S. Government.” White House Office of Management and Budget, February 3, 2018. <www.whitehouse.gov>
Pages 50–59: “Table 3.1—Outlays by Superfunction and Function: 1940–2023 … In Millions of Dollars … International Affairs … 2016 [=] 45,306”
CALCULATION: $9,718,025,938 / $45,306,000,000 = 21.4%
NOTE: The available data on international affairs expenditures is for the federal government’s 2016 fiscal year, which was October 1, 2015 to September 30, 2016.
[133] Calculated with data from:
a) Dataset: “Total Revenue by Government Donor.” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“2016 … United States of America [=] 9,718,025,938”
b) Dataset: “Total Revenue.” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“2016 … Revenue [=] 49,333,227,820 … The revenue amounts reflect total revenue as reported by organizations in their respective financial statements, without adjustments for revenue and or expenses associated with transfers of funding between UN organizations.”
CALCULATION: $9,718,025,938 / $49,333,227,820 = 19.7%
[134] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 8:
An ongoing challenge facing U.S. policymakers is tracking and determining the full scope of U.S. funding to the U.N. system across all U.S. government agencies and accounts. There is no “one number” that represents total U.S. funding to the U.N. system at any given point in time. This is due to the complicated nature of U.S. and U.N. budget processes, the decentralized structure of the United Nations, and the range of U.S. government agencies, departments, and offices that, either directly or indirectly, fund various U.N. entities and activities. Over the decades, Congress has enacted several U.N. funding-related reporting requirements to help address this issue. While some have provided useful snapshots of U.S. funding during particular time periods or to select U.N. bodies, for a variety of reasons few have consistently or comprehensively captured the full scope of U.S. contributions to the entire U.N. system.21
Page 18:
A key challenge to compiling U.N. funding-related data is one of self-reporting. According to the State Department, each participating agency is responsible for the completeness and accuracy of the information provided in the reports, and not all executive branch agencies provide the requested data. The agencies charged with compiling the reports, such as the State Department or OMB, often lack the authority to require other agencies to respond accurately or within a given timeframe, if at all. Consequently, some reporting requirements are incomplete and may not illustrate the full scope of U.S contributions.
[135] Calculated with data from:
a) Dataset: “Agency Revenue by Government Donor (Voluntary Contributions, Non-Specified).” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
b) Dataset: “Agency Revenue by Government Donor (Voluntary Contributions, Specified).” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
NOTE: An Excel file containing the data and calculations is available upon request.
[136] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 7: “Voluntary contributions to U.N. humanitarian-related entities are funded through the global humanitarian accounts…. Congress generally appropriates overall funding for each of these accounts, while the executive branch determines how funds are allocated based on humanitarian needs and U.S. policy priorities.”
Page 12:
The majority of U.S. humanitarian assistance is provided to U.N. entities through the global humanitarian accounts, which fund voluntary contributions to U.N. entities.38 These contributions, which represent the bulk of U.S. funding to the United Nations, are sometimes viewed through a different lens because they do not fall under the umbrella of U.N. assessed contributions. Yet total U.S. funding to U.N. humanitarian-related activities is often equal to or greater than U.S. contributions to peacekeeping, the regular budget, and specialized agencies combined.
[137] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 14: “Withholding funding from U.N. entities is one of the most common mechanisms by which Congress asserts or seeks to influence U.S. policy at the United Nations.”
[138] Report: “United Nations System Funding: Congressional Issues.” By Marjorie Ann Browne. Congressional Research Service, January 15, 2013. <fas.org>
Page 53:
In 1993, Congress provided that 10% of the U.S. assessed contribution to the U.N. regular budget be available only when the Secretary of State had certified to Congress that “the United Nations has established an independent office with responsibilities and powers substantially similar to offices of Inspectors General authorized by the Inspector General Act of 1978.”150 Many in Congress believed that an independent mechanism was needed to reduce and eliminate instances of “waste, fraud, and abuse” at the United Nations. On November 16, 1993, U.S. Ambassador Madeleine Albright proposed that the United Nations establish such a post. On July 29, 1994, the General Assembly established an Office of Internal Oversight Services (OIOS) headed by an Under-Secretary General appointed by the U.N. Secretary-General with the approval of the General Assembly.151 Eleven annual reports on the activities of the office through June 30, 2005, have been submitted to the General Assembly, and the office has undertaken an increasing number of monitoring, auditing, and investigative activities.152
[139] Resolution 48/218B. United Nations General Assembly, August 12, 1994. <undocs.org>
“The General Assembly … decides to establish an Office of Internal Oversight Services under the authority of the Secretary-General, the head of which will be at the rank of Under-Secretary-General….”
[140] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 14:
Congress has at times limited U.S. payments to assessed budgets due to concerns that U.S. assessments were too high. In 1990s, for example, Congress capped the U.S. contribution to the U.N. regular budget at 22% and the U.N. peacekeeping assessment at 25%.44
44 Both of these caps are stated in U.S. law. The U.N. regular budget cap is included in United Nations Reform Act of 1999, Title IX of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (H.R. 3427), incorporated by reference in Section 1000(a)(7) of division B of the Consolidated Appropriations Act, 2000 (P.L. 106–113), November 19, 1999. The peacekeeping cap is included in Section 404 of P.L. 103–236, Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, April 30, 1994.
Page 28: “Table E-1. U.N. and U.S. Peacekeeping Assessment Levels: FY1994–FY2019. … 1995 … U.N. Assessment [=] 31.1510% … Recognized by U.S. Law [=] 30.4% through Sept.; 25% beginning Oct. 1 … 1996 … U.N. Assessment [=] 30.9650% … Recognized by U.S. Law [=] 25%”
[141] Public Law 103-236: “Foreign Relations Authorization Act, Fiscal Years 1994 and 1995.” 103rd Congress. Signed into law by Bill Clinton on April 30, 1994. <www.govinfo.gov>
Title IV, Part A, Section 404:
Assessed Contributions for United Nations Peacekeeping Operations …
(b) Limitation on United States Contributions …
(2) Subsequent Fiscal Years—Funds authorized to be appropriated for “Contributions for International Peacekeeping Activities” for any fiscal year after fiscal year 1995 shall not be available for the payment of the United States assessed contribution for a United Nations peacekeeping operation in an amount which is greater than 25 percent of the total of all assessed contributions for that operation.
[142] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 19
A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member.
[143] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 17:
A consequence of accumulating arrears to the United Nations is the loss of voting rights in the General Assembly. Under Article 19 of the U.N. Charter, members who are in arrears “shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years.” In practice, the “amount of the contributions” refers to both assessed contributions to the U.N. regular budget and to U.N peacekeeping operations.49 Each U.N. specialized agency has its own rules and guidelines for nonpayment of arrears and the possible effects on membership.
[144] Textbook: Oppenheim’s International Law: United Nations. By Rosalyn Higgins and others. Oxford University Press, 2017.
Page 489:
The loss of the right to vote is automatic and not dependent upon a General Assembly resolution.196
196 The automatic effect of Art 19 is confirmed by the ordinary meaning of the text (“shall have no vote”), the reference to the General Assembly’s taking a positive action in the second clause of the Article, and a comparison with Art 5 of the UN’s Charter, which does require a constitutive resolution (Tomuschat, n 194, 645). This was the view adopted by the Legal Counsel when the Soviet Union claimed that a two-thirds majority of the Assembly was required ([1968] UN Juridical YB 186–8. The same view was expressed in 1974 ([1974] UN Juridical YB 156–7). The compromise of 1965 avoided the application of Art 19 (see also para 14.47).
[145] Report: “U.N Secretary-General’s Interpretation of Article 19.” By U Thant. United Nations General Assembly, July 26, 1968. <www.jstor.org>
It has always been the understanding of the Secretary-General that the express language of the first sentence of Article 19 does not call for a decision of the General Assembly prior to deprivation of vote…. The Secretary-General believes that voting under Article 19 is only required in two possible instances…. The first instance would be if the Secretary-General’s reports indicating that one or more States were in arrears were challenged as factually incorrect. The second instance would be if a Member State in arrears were to request the Assembly to exercise the discretion accorded in the second sentence of Article 19 to permit that Member State to vote, provided the Assembly is satisfied that failure to pay was due to conditions beyond the Member State’s control. …
The foregoing conclusions are based upon legal considerations which are set out in a detailed opinion of the Legal Counsel.
[146] Report: “United Nations: Financial Issues and U.S. Arrears.” U.S. General Accounting Office, June 1998. <www.gao.gov>
Page 49:
In the past, a number of governments have contested U.N. arrears, and the General Assembly has agreed to either waive article 19 or forgive the debt owed. For example, in 1964–65, although the former Soviet Union, France, and several other countries supported the resolution creating the United Nations Emergency Force in the Middle East (UNEF, later referred to as UNEF I) and the United Nations Operation in Congo (ONUC), they refused to pay for peacekeeping operations and U.N. regular budget expenses related to the operations. By 1964, arrears of the former Soviet Union exceeded the level permitted to maintain its voting rights in the General Assembly. France became subject to the article 19 sanction by January 1, 1965. The U.S. Representative to the United Nations announced before the General Assembly that there could be no double standard in the United Nations. If any member state could insist on making an exception to its obligations with respect to certain activities, “the United States reserves the same option to make exceptions.” The General Assembly decided to waive all member’s arrears for these operations. The arrears for these countries are still counted in the total unpaid contributions owed, but are not included in calculations for article 19.
[147] Article: “United States Dues Arrearages in the United Nations and Possible Loss of Vote in the UN General Assembly.” By Frederic L. Kirgis. American Society of International Law Insights, July 3, 1998. <www.asil.org>
[M]ost member states were unwilling to risk the consequences if a vote were taken in the General Assembly without allowing France and the Soviet Union to participate. The result was a standoff during the 19th session (1964–1965), when no votes at all were taken in the General Assembly. Finally, on August 16, 1965, Arthur Goldberg, the United States representative to the United Nations, conceded that “the General Assembly was not prepared to carry out the relevant provisions of the Charter, that is, to apply the loss-of-vote sanction provided in Article 19.” Thus even though the United States continued to maintain that Article 19 applied, it said it would not stand in the way of the consensus favoring General Assembly votes, including votes by France and the Soviet Union. Ambassador Goldberg concluded in what has come to be known as the Goldberg reservation, “At the same time, if any Member State could make an exception to the principle of collective financial responsibility with respect to certain United Nations activities, the United States reserves the same option to make exceptions if, in its view, there were strong and compelling reasons to do so. There could be no double standard among the Members of the Organization.” (13 Marjorie Whiteman, Digest of International Law 331-332 (1968))
[148] Report: “United Nations: Status of U.S. Contributions and Arrears.” U.S. General Accounting Office, July 28, 1999. <www.gao.gov>
Page 6:
We estimate that the United States will need to pay about $153 million in addition to currently anticipated payments of $508 million before the end of 1999 to reduce its arrears sufficiently to avoid losing its right to vote in the General Assembly on January 1, 2000. Our estimate of this shortfall reflects the difference between a projected arrears balance on January 1, 2000, of $1,435 million and projected assessed contributions for 1998 and 1999 of $1,282 million (see table 2). Changes in these assumptions or U.N. financial needs during the remainder of 1999, particularly changes in the amount of peacekeeping assessments that the United States receives and pays, could affect our estimate.
[149] Report: “United Nations System Funding: Congressional Issues.” By Vita Bite. Congressional Research Service. Updated April 20, 2005. <fas.org>
Pages 5–6:
The Helms-Biden Agreement and Payment of U.N. Arrears
P.L. [public law] 106-113 incorporated the Helms-Biden agreement and authorized appropriations for payment of some U.S. arrears to international organizations provided certain conditions were met and certified by the Secretary of State. The agreement authorized payment of $819 million ($100 million of FY1998 funds, $475 million of FY1999 funds, and $244 million of FY2000 funds), and authorized $107 million owed by the United Nations to the United States for peacekeeping to be forgiven provided the United Nations applied it to reduce U.S. arrears.
P.L. 106-113 required that State Department certification for release of FY1998 funds include stipulations that neither the United Nations nor any U.N. affiliated agency has required the United States to violate the Constitution or cede sovereignty, taxed U.S. nationals, created a standing army, charged the United States interest on arrears, borrowed externally, or exercised authority or control over any U.S. national park, wildlife preserve, monument or property. In December 1999 the certification was made and $100 million was paid to the United Nations.
Release of FY1999 appropriated arrearage funds required additional certification that the assessment ceiling for the U.N. regular budget had been reduced to 22% and to 25% for U.N. peacekeeping.
In December 2000 the U.N. General Assembly agreed on a financial restructuring of both the regular and peacekeeping assessment structures. As a result the U.S. share of the regular budget was reduced from 25% to 22% and for peacekeeping from about 30.4% to 28.14%, initially, and falling somewhat lower in subsequent years.
The changed assessment scale met the requirement of the Helms-Biden agreement for reduction of the regular budget scale to 22%, in order to release the second tranche of arrears payment. The new peacekeeping scale, however, while a substantial reduction, did not meet the Helms-Biden requirement of 25%. On October 5, 2001, the President signed into law P.L. 107-46 (S. 248) which raised the percentage for U.S. peacekeeping assessments from 25 to 28.15 as a condition for release of arrears funds, thereby making available $582 million (FY1999 appropriations of $475 million, plus $107 million credit to the United Nations against U.S. arrears).
However, because of another existing statutory prohibition on U.S. payment of more than 25% of U.N. assessed peacekeeping costs (sec. 404, P.L. 103-236), the United States continued to build up arrears in its assessed peacekeeping payments. P.L. 107-228 (H.R. 1646), the Foreign Relations Authorization for FY2003, changed the allowable level for U.S. peacekeeping assessments as follows: for calendar year 2001, 28.15%; for calendar year 2002, 27.9%; for calendar year 2003, 27.4%; and for calendar year 2004, 27.4%. P.L. 108- 447 raised the cap to 27.1% for calendar year 2005.
Payment of the third installment of U.S. arrears from FY2000 appropriations required certification that the United Nations and designated U.N. specialized agencies (FAO, ILO, and WHO) had reduced the maximum assessment levels to 20% (waivable to 22%, in effect) and had instituted a number of other administrative reforms.
P.L. 107-228 also amended the Helms-Biden agreement to allow the third and last installment of arrears to be paid to each international organization upon certification of the conditions established for that agency or immediately if no conditions applied. Certification was made on October 21, 2002, and the final $244 million was paid ($30 million for U.N. peacekeeping arrears and the other $214 million to other international organizations including U.N. system agencies).
[150] Resolution 55/5C: “Scale of Assessments for the Apportionment of the Expenses of the United Nations.” United Nations General Assembly, December 23, 2000. <www.un.org>
“The General Assembly … establishes, as from 1 January 2001, a reduced ceiling of 22 per cent for the assessed contribution of any individual Member State….”
[151] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 11:
The U.S. assessment for U.N. peacekeeping operations is 28.43%; however, since the mid-1990s Congress has capped the U.S. assessment at 25%—at times leading to funding shortfalls.32 Over the years, the State Department and Congress covered these shortfalls by raising the cap for limited periods and allowing for the application of U.N. peacekeeping credits (excess U.N. funds from previous peacekeeping missions) to be applied to U.S. outstanding balances.33 For several years, these actions resulted in full U.S. payments to U.N. peacekeeping; however, in FY2017 and FY2018 Congress declined to raise the cap, and since mid-2017 the Trump Administration has allowed for the application of peacekeeping credits up to, and not beyond, the 25% cap.34
[152] Calculated with data from the report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 17: “As of September 2017, the State Department reports that total estimated U.S. arrears to the U.N. regular budget are $347 million, while estimated arrears to U.N. peacekeeping budgets are $536 million.51”
CALCULATION: $347,000,000 + $536,000,000 = $883,000,000
[153] Report: “Assessment of Member States’ Advances to the Working Capital Fund for the Biennium 2018–2019 and Contributions to the United Nations Regular Budget for 2018.” United Nations Secretariat, December 29, 2017. <undocs.org>
Pages 8–12: “B. Contributions by Member States to the United Nations Regular Budget for the Year 2018 (United States Dollars). … United States of America … Scale of Assessments (percentage) [=] 22.000 … Gross Contributions [=] 591,388,114”
[154] Calculated with data from:
a) Webpage: “How We Are Funded.” United Nations, Department of Peacekeeping Operations. Accessed November 2, 2018 at <peacekeeping.un.org>
“The approved budget for UN Peacekeeping operations for the fiscal year 1 July 2018–30 June 2019 is $6.7 billion.”
b) “Report of the Secretary-General: Implementation of General Assembly Resolutions 55/235 and 55/236.” United Nations General Assembly, December 28, 2015. <undocs.org>
Page 2: “Effective Rates of Assessment for Peacekeeping Operations, 1 January 2016 to 31 December 2018, Based on the Scale of Assessments Adopted by the General Assembly in Its Resolution 70/245 and the Composition of Levels Endorsed by the Assembly in Its Resolution 70/246 … United States of America … Effective Rates … 2018 [=] 28.4344”
CALCULATION: $6,700,000,000 budget × 28% assessment rate = $1,876,000,000
[155] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 16:
Since the 1980s, the United States has withheld a proportionate share of assessed contributions to the U.N. regular budget for selected activities or programs related to the Palestinians (Section 114 of P.L. 98–164). This provision has impacted U.N. regular budget funding through the CIO [Contributions to International Organizations] account. … Two laws enacted in the 1990s prohibit funding to U.N. entities that admit the Palestine Liberation Organization (PLO) as a member, or grant full membership as a state to any group that does not have the internationally recognized attributes of statehood (Section 414 of P.L. 101–246; Section 410 of P.L. 103–236).
[156] Report: “The United Nations Educational, Scientific, and Cultural Organization (UNESCO).” By Luisa Blanchfield and Marjorie Ann Brown. Congressional Research Service, March 18, 2013. <fas.org>
Page 1:
The Obama Administration actively opposes Palestinian membership in UNESCO [UN Educational, Scientific, and Cultural Organization]. It argues that Palestinian statehood can only be realized through direct negotiation between Israel and Palestinians, and not through membership in international organizations. At the same time, the Administration maintains that U.S. participation in UNESCO is in the interest of the United States and that the government should continue to fund and participate in the organization. In his FY2013 budget proposal, President Obama requested $78.968 million in assessed contributions for UNESCO and stated that the Administration intended to work with Congress to “waive” the funding restrictions.
[157] Article: “U.S. Withdrawal From the United Nations Educational, Scientific and Cultural Organization (UNESCO).” By Luisa Blanchfield. Congressional Research Service Insight, October 17, 2017. <fas.org>
Page 2 (of PDF): The Obama Administration asked Congress to support legislation that would provide authority to waive the legislative restrictions; Congress did not enact such a waiver. … In November 2013, as a result of the financial withholding, the United States lost its vote in the UNESCO General Conference.”
[158] Press release: “Loss of U.S. Vote at UNESCO.” By Jen Psaki. U.S. Department of State, November 8, 2013. <2009-2017.state.gov>
We regret that today the United States lost its vote in the United Nations Educational, Scientific and Cultural Organization (UNESCO) General Conference as a result of legislative restrictions that have precluded payment of U.S. dues to UNESCO. The restrictions were triggered when UNESCO member states voted to grant the Palestinians membership as a state in 2011.
[159] Press release: “The United States Withdraws from UNESCO.” By Heather Nauert. U.S. Department of State, October 12, 2017. <www.state.gov>
On October 12, 2017, the Department of State notified UNESCO Director-General Irina Bokova of the U.S. decision to withdraw from the organization and to seek to establish a permanent observer mission to UNESCO. This decision was not taken lightly, and reflects U.S. concerns with mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias at UNESCO. … Pursuant to Article II(6) of the UNESCO Constitution, U.S. withdrawal will take effect on December 31, 2018.
[160] Webpage: “The Executive Branch.” White House. Accessed January 21, 2019 at <www.whitehouse.gov>
Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress. Fifteen executive departments—each led by an appointed member of the President's Cabinet—carry out the day-to-day administration of the federal government. …
Department of State
The Department of State plays the lead role in developing and implementing the President’s foreign policy. Major responsibilities include United States representation abroad, foreign assistance, foreign military training programs, countering international crime, and a wide assortment of services to U.S. citizens and foreign nationals seeking entrance to the U.S.
[161] Webpage: “Who We Are.” United Nations Relief and Works Agency for Palestine Refugees in the Near East. Accessed May 6, 2019 at <www.unrwa.org>
We provide assistance and protection for some 5 million registered Palestine refugees to help them achieve their full potential in human development. …
Following the 1948 Arab–Israeli conflict, UNRWA [United Nations Relief and Works Agency for Palestine Refugees in the Near East] was established by United Nations General Assembly Resolution 302 (IV) of 8 December 1949 to carry out direct relief and works programmes for Palestine refugees. The Agency began operations on 1 May 1950.
In the absence of a solution to the Palestine refugee problem, the General Assembly has repeatedly renewed UNRWA’s mandate, most recently extending it until 30 June 2020.
Palestine Refugees
UNRWA is unique in terms of its long-standing commitment to one group of refugees. It has contributed to the welfare and human development of four generations of Palestine refugees, defined as “persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.” The descendants of Palestine refugee males, including legally adopted children, are also eligible for registration.
UNRWA services are available to all those living in its areas of operations who meet this definition, who are registered with the Agency and who need assistance. When the Agency began operations in 1950, it was responding to the needs of about 750,000 Palestine refugees. Today, some 5 million Palestine refugees are eligible for UNRWA services.
[162] Webpage: “Frequently Asked Questions.” United Nations Relief and Works Agency for Palestine Refugees in the Near East. Accessed May 6, 2019 at <www.unrwa.org>
Who Is a Palestine Refugee?
The operational definition of a Palestine refugee is any person whose “normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948 and who lost both home and means of livelihood as a result of the 1948 conflict.”
Palestine refugees are persons who fulfil the above definition and descendants of fathers fulfilling the definition.
Read the full eligibility rules (PDF).
In May 1951, UNRWA [United Nations Relief and Works Agency for Palestine Refugees in the Near East] inherited a list of 950,000 persons from its predecessor agencies.
In the first four months of operations, UNRWA reduced this list to 860,000 persons, based on painstaking census efforts and identification of fraudulent claims.
The 1948 registered refugees and their descendants now number 5.4 million, and mainly reside in the West Bank, Gaza, Jordan, Lebanon or Syria.
Does UNRWA Only Provide Services to Palestine Refugees?
No. For example, the Agency also provides services to refugees and people displaced by the Arab–Israeli conflict of 1967 and subsequent hostilities. …
UNRWA’s contemporary mandate is to provide relief, human development and protection services to Palestine refugees and persons displaced by the 1967 hostilities in its fields of operation: Jordan, Lebanon, the Syrian Arab Republic, West Bank and the Gaza Strip. UNRWA’s mandate has been repeatedly renewed by the UN General Assembly. The current mandate runs until 30 June 2020.
[163] Webpage: “United States: A Long-Standing Partner of UNRWA.” United Nations Relief and Works Agency for Palestine Refugees in the Near East. Accessed May 6, 2019 at <www.unrwa.org>
“For over six decades, the United States has been a strong partner of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Members of the Advisory Commission since 1949, the U.S. is the largest bilateral donor to UNRWA and has long been one of the Agency’s most reliable supporters.”
[164] Calculated with data from:
a) Dataset: “Agency Revenue by Government Donor (Voluntary Contributions, Non-Specified).” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“Agency [=] UNRWA … 2016 … United States of America … Revenue [=] $152,271,964”
b) Dataset: “Agency Revenue by Government Donor (Voluntary Contributions, Specified).” United Nations System, Chief Executives Board for Coordination. Accessed November 14, 2018 at <www.unsceb.org>
“Agency [=] UNRWA … 2016 … United States of America … Revenue [=] $207,226,610”
c) Dataset: “Expenditure by Category.” United Nations System, Chief Executives Board for Coordination. Accessed May 6, 2019 at <www.unsceb.org>
“2016 … UNRWA … Expense Category [=] Humanitarian Assistance … Expenditure [=] 1,316,762,306
CALCULATION: ($152,271,964 + $207,226,610) / $1,316,762,306 = 27.3%
[165] Press release: “On U.S. Assistance to UNRWA.” By Heather Nauert. U.S. State Department, August 31, 2018. <www.state.gov>
The Administration has carefully reviewed the issue and determined that the United States will not make additional contributions to UNRWA [UN Relief and Works Agency for Palestine Refugees in the Near East]. When we made a U.S. contribution of $60 million in January, we made it clear that the United States was no longer willing to shoulder the very disproportionate share of the burden of UNRWA’s costs that we had assumed for many years. Several countries, including Jordan, Egypt, Sweden, Qatar, and the UAE [United Arab Emirates] have shown leadership in addressing this problem, but the overall international response has not been sufficient.
Beyond the budget gap itself and failure to mobilize adequate and appropriate burden sharing, the fundamental business model and fiscal practices that have marked UNRWA for years—tied to UNRWA’s endlessly and exponentially expanding community of entitled beneficiaries—is simply unsustainable and has been in crisis mode for many years. The United States will no longer commit further funding to this irredeemably flawed operation. We are very mindful of and deeply concerned regarding the impact upon innocent Palestinians, especially school children, of the failure of UNRWA and key members of the regional and international donor community to reform and reset the UNRWA way of doing business. These children are part of the future of the Middle East. Palestinians, wherever they live, deserve better than an endlessly crisis-driven service provision model. They deserve to be able to plan for the future.
Accordingly, the United States will intensify dialogue with the United Nations, host governments, and international stakeholders about new models and new approaches, which may include direct bilateral assistance from the United States and other partners, that can provide today’s Palestinian children with a more durable and dependable path towards a brighter tomorrow.
[166] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 3
The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110.
Article 4
1 Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
[167] Textbook: Akehurst’s Modern Introduction to International Law (8th edition). By Alexander Orakhelashvili. Routledge, 2019.
Page 72:
States form the principal category of international legal persons.1 The generally accepted definition of a State is provided in Article 1 of the 1933 Montevideo Convention on Rights and Duties of States, as an entity that possesses “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.”2 The sum of these criteria reflects the effective existence of a State.3 However, “capacity” under section (d) has legal as well as factual connotations. It may signify the factual capacity of the entity that claims to be a State to establish relations with other States (not the intensity or frequency of relations actually established), which is essentially the same as the existence of government that can act accordingly. It may also run into the legal issues of independence of States or legality of their creation.
For the purposes of international law, a “State” means an entity that functions through the organised public authority and is not subjected to the authority of any other entity.
[168] “Report of the Committee on the Admission of New Members Concerning the Application of Palestine for Admission to Membership in the United Nations.” United Nations Security Council, November 11, 2011. <undocs.org>
Page 2: “On the criterion of statehood, reference was made to the 1933 Montevideo Convention on the Rights and Duties of States, which declares that a State as a person of international law should possess a permanent population, a defined territory, a government and the capacity to enter into relations with other States.”
[169] Webpage: “About UN Membership.” United Nations. Accessed February 21, 2019 at <www.un.org>
The procedure is briefly as follows:
1. The State submits an application to the Secretary-General and a letter formally stating that it accepts the obligations under the Charter.
2. The Security Council considers the application. Any recommendation for admission must receive the affirmative votes of 9 of the 15 members of the Council, provided that none of its five permanent members—China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America—have voted against the application.
3. If the Council recommends admission, the recommendation is presented to the General Assembly for consideration. A two-thirds majority vote is necessary in the Assembly for admission of a new State.
4. Membership becomes effective the date the resolution for admission is adopted.
[170] Webpage: “Provisional Rules of Procedure of the Security Council.” United Nations Security Council. Accessed February 21, 2019 at <undocs.org>
Rule 58
Any State which desires to become a Member of the United Nations shall submit an application to the Secretary-General. This application shall contain a declaration made in a formal instrument that it accepts the obligations contained in the Charter.
Rule 59
The Secretary-General shall immediately place the application for membership before the representatives of the Security Council. Unless the Security Council decides otherwise, the application shall be referred by the President to a committee of the Security Council upon which each member of the Security Council shall be represented. The committee shall examine any application referred to it and report its conclusions thereon to the council not less than thirty-five days in advance of a regular session of the General Assembly or, if a special session of the General Assembly is called, not less than fourteen days in advance of such session.
[171] Webpage: “Rules of Procedure.” United Nations General Assembly. Accessed October 23, 2018 at <www.un.org>
Rule 136
If the Security Council recommends the applicant State for membership, the General Assembly shall consider whether the applicant is a peace-loving State and is able and willing to carry out the obligations contained in the Charter and shall decide, by a two-thirds majority of the members present and voting, upon its application for membership.
[172] Webpage: “About UN Membership.” United Nations. Accessed February 21, 2019 at <www.un.org>
The recognition of a new State or Government is an act that only other States and Governments may grant or withhold. It generally implies readiness to assume diplomatic relations. The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State or a Government. As an organization of independent States, it may admit a new State to its membership or accept the credentials of the representatives of a new Government.
[173] Report: “Membership in the United Nations and Its Specialized Agencies.” By Luisa Blanchfield and Marjorie Ann Browne. Congressional Research Service. Updated June 19, 2014. <crsreports.congress.gov>
Page 3:
A key area of ongoing debate regarding U.N. membership is the organization’s possible role in determining statehood. By international practice, a state is generally understood to be “an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.”7 On the one hand, the United Nations—as an organization of independent states—does not recognize states; rather, states recognize states. As such, many experts and observers, including the United Nations itself, argue that the organization does not have the authority to recognize either a state or government.8
On the other hand, many analysts agree that U.N. membership is an acknowledgement by U.N. members that an entity has satisfied the requirements of statehood. It provides governments with legitimacy, not only internationally, but also domestically. For many countries, membership in the United Nations provides an equal voice in U.N. bodies like the General Assembly, an international platform to advocate and pursue national and foreign policy objectives, and the opportunity to receive or provide technical or development assistance through multilateral mechanisms. Consequently, obtaining U.N. membership is often a priority for new countries, territories, organizations, or entities (hereinafter referred to as “entities” for the purpose of this report) aiming to obtain statehood.9
[174] Report: “Membership in the United Nations and Its Specialized Agencies.” By Luisa Blanchfield and Marjorie Ann Browne. Congressional Research Service. Updated June 19, 2014. <crsreports.congress.gov>
Page 4: “In some cases, two existing member states have merged. In practice, the process for admitting such members has been flexible; the newly merged states did not have to reapply for membership. Examples include East and West Germany (Germany) and the Yemen Arab Republic and the People’s Democratic Republic of Yemen (Yemen).”
[175] Webpage: “UN Member States on the Record: Germany.” United Nations. Accessed March 8, 2019 at <www.un.org>
“Through accession of the German Democratic Republic to the Federal Republic of Germany with effect from 3 Oct. 1990, the two German States have united to form one sovereign State. As from the date of unification, the Federal Republic of Germany acts in the United Nations under the designation ‘Germany.’ ”
[176] Webpage: “Multilateral Treaties Deposited with the Secretary-General.” United Nations Treaty Collection. Accessed March 8, 2019 at <treaties.un.org>
In a letter dated 19 May 1990, the Ministers of Foreign Affairs of the Yemen Arab Republic and the People’s Democratic Republic of Yemen informed the Secretary-General of the following:
“The People’s Democratic Republic of Yemen and the Yemen Arab Republic will merge in a single sovereign State called the Republic of Yemen (short form: Yemen) with Sana’a as its capital, as soon as it is proclaimed on Tuesday, 22 May 1990. The Republic of Yemen will have single membership in the United Nations and be bound by the provisions of the Charter. All treaties and agreements concluded between either the Yemen Arab Republic or the People’s Democratic Republic of Yemen and other States and international organizations in accordance with international law which are in force on 22 May 1990 will remain in effect, and international relations existing on 22 May 1990 between the People’s Democratic Republic of Yemen and the Yemen Arab Republic and other States will continue.”
As concerns the treaties concluded prior to their union by the Yemen Arab Republic or the People’s Democratic Republic of Yemen, the Republic of Yemen (as now united) is accordingly to be considered as a party to those treaties as from the date when one of these States first became a party to those treaties.
[177] Report: “Membership in the United Nations and Its Specialized Agencies.” By Luisa Blanchfield and Marjorie Ann Browne. Congressional Research Service. Updated June 19, 2014. <crsreports.congress.gov>
Page 8: “The process and criteria for membership in U.N. specialized agencies vary depending on the organization. There are currently 15 specialized agencies in the U.N. system (see text box). Each of these entities is a legally independent intergovernmental organization with its own constitution, rules, membership, organs, and financial resources.29”
[178] Article: “Chinese Civil War: 1945–1949.” By Michael Ray. Encyclopedia Britannica, January 12, 2018. <www.britannica.com>
From his capital at Peking, Mao proclaimed the establishment of the People’s Republic of China on October 1, 1949. Within days the Soviet Union and the communist bloc recognized it as the legitimate government of China, and by year’s end several other countries had followed suit. … By the end of 1949, virtually all of mainland China was under Communist control.
[179] Textbook: Akehurst’s Modern Introduction to International Law (8th edition). By Alexander Orakhelashvili. Routledge, 2019.
Page 92:
The communists seized power in China at the end of 1949, but until 1971 China was represented at the United Nations by the nationalist government of Chiang Kai-shek based in Taiwan.97 Although many States did not recognize the communist government of China until the 1970’s, it is undeniable that that government had been the effective government of China since the end of 1949, and that change of government did not affect China’s identity. …
… If communist China had been admitted to the UN as a new member State, Taiwan could have remained a member of the United Nations (and a permanent member of the Security Council) even afterwards. However, the question was treated as one of representation as opposed to membership, and the arrival in 1971 of communist representatives was accompanied by the departure of nationalist representatives from all the organs of the United Nations, because a State cannot be represented simultaneously by two rival governments in an international organization….
[180] Yearbook of the United Nations 1971 (Volume 25). United Nations, Office of Public Information, 1974. <www.unmultimedia.org>
Pages 127–128:
In the explanatory memorandum accompanying its request of 17 August 1971, the United States said that, in dealing with the problem of the representation of China, the United Nations should take cognizance of the existence of both the People’s Republic of China and the Republic of China; it should reflect that incontestable reality in the manner in which it made provision for China’s representation. The United Nations should not be required to take a position on the respective conflicting claims of the People’s Republic of China or the Republic of China pending a peaceful resolution of the matter as called for by the United Nations Charter. Thus, the memorandum added, the People’s Republic of China should be represented and at the same time provision should be made to ensure that the Republic of China was not deprived of its representation. To succeed in its peace-keeping role and in advancing the well-being of mankind, the United Nations should deal with the question of the representation of China in such a just and realistic manner. …
The third draft resolution, also submitted on 29 September, was sponsored by 19 States, namely: Australia, Bolivia, Chad, Costa Rica, the Dominican Republic, Fiji, the Gambia, Haiti, Honduras, Japan, Lesotho, Liberia, Mauritius, New Zealand, the Philippines, Swaziland, Thailand, the United States and Uruguay. …
By the operative part of the draft resolution, the General Assembly would: (1) affirm the right of representation of the People’s Republic of China and recommend that it be seated as one of the five permanent members of the Security Council; (2) affirm the continued right of representation of the Republic of China; and (3) recommend that all United Nations bodies and the specialized agencies take into account the provisions of this resolution in deciding the question of Chinese representation.
Page 132: “The Assembly then adopted the 23-power text, by a roll-call vote of 76 to 35, with 17 abstentions, as resolution 2758(XXVI). It did not proceed to a vote on the 19-power draft text.”
[181] Resolution 2758 (XXVI): “Restoration of the Lawful Rights of the People’s Republic of China in the United Nations.” United Nations General Assembly, October 25, 1971. <www.un.org>
The General Assembly … recognizing that the representatives of the Government of the People’s Republic of China are the only lawful representatives of China to the United Nations and that the People’s Republic of China is one of the five permanent members of the Security Council … decides to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it.
[182] Paper: “Chinese Policy Toward the Third World and the Superpowers in the UN General Assembly 1971–1977: A Voting Analysis.” By Trong R. Chai. University of Wisconsin Press International Organization, 1979. Pages 391–403. <www.jstor.org>
Page 391:
On 25 October 1971, after nearly a quarter-century of bitter conflict, the UN General Assembly passed a resolution to seat the government of the People’s Republic of China (PRC).1
1 UN Doc. A/RES/2758(XXVI), 25 October 1971. The vote was 76–35–17–3.
[183] Paper: “Representation of China Within the United Nations System.” International Legal Materials, 1972. Pages 561–570. <www.jstor.org>
Page 561:
In favour: Afghanistan, Albania, Algeria, Austria, Belgium, Bhutan, Botswana, Bulgaria, Burma, Burundi, Byelorussian SSR, Cameroon, Canada, Ceylon, Chile, Cuba, Czechoslovakia, Denmark, Ecuador, Egypt, Equatorial Guinea, Ethiopia, Finland, France, Ghana, Guinea, Guyana, Hungary, Iceland, India, Iran, Iraq, Ireland, Israel, Italy, Kenya, Kuwait, Laos, Libyan Arab Republic, Malaysia, Mali, Mauritania, Mexico, Mongolia, Morocco, Nepal, Netherlands, Nigeria, Norway, Pakistan, People’s Democratic Republic of Yemen, People’s Republic of the Congo, Peru, Poland, Portugal, Romania, Rwanda, Senegal, Sierra Leone, Singapore, Somalia, Sudan, Sweden, Syria, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, Ukrainian SSR, USSR, United Kingdom, United Republic of Tanzania, Yemen, Yugoslavia, Zambia.
Against: Australia, Bolivia, Brazil, Central African Republic, Chad, Congo, (Democratic Republic of), Costa Rica, Dahomey, Dominican Republic, El Salvador, Gabon, Gambia, Guatemala, Haiti, Honduras, Ivory Coast, Japan, Khmer Republic, Lesotho, Liberia, Madagascar, Malawi, Malta, New Zealand, Nicaragua, Niger, Paraguay, Philippines, Saudi Arabia, South Africa, Swaziland, United States, Upper Volta, Uruguay, Venezuela.
Abstentions: Argentina, Bahrain, Barbados, Colombia, Cyprus, Fiji, Greece, Indonesia, Jamaica, Jordan, Lebanon, Luxembourg, Mauritius, Panama, Qatar, Spain, Thailand.
[184] Webpage: “China Policy.” United States Department of State, Office of the Historian, Bureau of Public Affairs. Accessed April 15, 2019 at <history.state.gov>
In 1949, Chinese Communist Party forces defeated the Government of the Republic of China in the Chinese Civil War and founded the People’s Republic of China, eliminating ROC [Republic of China] authority from mainland China. Nonetheless, for the next thirty years, the U.S. Government continued to recognize the Republic of China on Taiwan as the sole legal government over all of China. During that period, the U.S. and PRC [People’s Republic of China] Governments had only intermittent contact through forums such as the Sino-U.S. Ambassadorial talks in Warsaw, which began in 1955.
[185] Webpage: “U.S.–PRC Joint Communique (1972).” American Institute in Taiwan. Accessed April 15, 2019 at <www.ait.org.tw>
President Richard Nixon of the United States of America visited the People’s Republic of China at the invitation of Premier Chou En-lai of the People’s Republic of China from February 21 to February 28, 1972. Accompanying the President were Mrs. Nixon, U.S. Secretary of State William Rogers, Assistant to the President Dr. Henry Kissinger, and other American officials. …
The two sides reviewed the long-standing serious disputes between China and the United States. The Chinese side reaffirmed its position: the Taiwan question is the crucial question obstructing the normalization of relations between China and the United States; the Government of the People’s Republic of China is the sole legal government of China; Taiwan is a province of China which has long been returned to the motherland; the liberation of Taiwan is China’s internal affair in which no other country has the right to interfere; and all U.S. forces and military installations must be withdrawn from Taiwan. The Chinese Government firmly opposes any activities which aim at the creation of “one China, one Taiwan,” “one China, two governments,” “two Chinas,” an “independent Taiwan” or advocate that “the status of Taiwan remains to be determined.”
The U.S. side declared: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves. With this prospect in mind, it affirms the ultimate objective of the withdrawal of all U.S. forces and military installations from Taiwan. In the meantime, it will progressively reduce its forces and military installations on Taiwan as the tension in the area diminishes.
[186] Paper: “Taiwan Re-Recognized: A Model for Taiwan’s Future Global Status.” By Michael E. Mangelson. BYU Law Review, March 1, 1992. <digitalcommons.law.byu.edu>
Pages 233–234:
While Washington was convinced of the benefits of better relations with the PRC [People’s Republic of China], it took three U.S. presidents and twenty years to ultimately normalize relations with the PRC.8 Normalization9 was initiated by Richard Nixon, fostered by Gerald Ford, and consummated by Jimmy Carter on January 1, 1979 when the United States established official diplomatic relations with the PRC.10
As a condition to recognizing the PRC, the United States broke off official diplomatic relations and abrogated its security pact with the ROC [Republic of China].11 Derecognition seemed unavoidable since both the PRC and the ROC insisted that they were the legitimate government of China. After derecognition, the ROC was no longer China to the United States, but simply Taiwan and its people.
[187] Webpage: “China Policy.” United States Department of State, Office of the Historian, Bureau of Public Affairs. Accessed April 15, 2019 at <history.state.gov>
During Jimmy Carter’s presidency, the most dramatic moment in Sino–American relations occurred on December 15, 1978, when, following months of secret negotiations, the United States and the People’s Republic of China (PRC) announced that they would recognize one another and establish official diplomatic relations. As part of the agreement, the United States recognized the Government of the People’s Republic of China as the sole legal government of China, and declared it would withdraw diplomatic recognition from Taiwan (also known as the Republic of China [ROC]).
Prior to 1979, the United States and the People’s Republic of China had never established formal diplomatic relations. In 1949, Chinese Communist Party forces defeated the Government of the Republic of China in the Chinese Civil War and founded the People’s Republic of China, eliminating ROC authority from mainland China. Nonetheless, for the next thirty years, the U.S. Government continued to recognize the Republic of China on Taiwan as the sole legal government over all of China. …
In the spring of 1978, Carter decided to proceed with normalization. A handful of top U.S. officials agreed upon instructions, which the President approved, that were sent to the U.S. negotiator Leonard Woodcock, the head of the U.S. Liaison Office in Beijing. By the terms of the agreement the two sides reached, the United States acknowledged “the Chinese position that there is but one China and Taiwan is part of China.” The United States declared its intention to abrogate the Mutual Defense Treaty between the United States and the Republic of China, originally signed in December 1954. Simultaneously, however, the United States declared in the Joint Communiqué that it would “maintain cultural, commercial, and other unofficial relations with the people of Taiwan.” In Carter’s address to the nation on December 15, 1978, he announced that in accordance with “the Shanghai communiqué, issued on President Nixon’s historic visit, we will continue to have an interest in the peaceful resolution of the Taiwan issue.” The Joint Communiqué stated that the United States would begin official diplomatic relations with the People’s Republic of China on January 1, 1979, and that the two countries would open Embassies on March 1.
[188] Public Law 96-8: “Taiwan Relations Act.” 96th U.S. Congress. Signed into law by Jimmy Carter on April 10, 1979. <www.govinfo.gov>
Section 2
(a) The President having terminated governmental relations between the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, the Congress finds that the enactment of this Act is necessary….
(b) It is the policy of the United States—
(1) to preserve and promote extensive, close, and friendly commercial, cultural, and other relations between the people of the United States and the people on Taiwan, as well as the people on the China mainland and all other peoples of the Western Pacific area;
(2) to declare that peace and stability in the area are in the political, security, and economic interests of the United States, and are matters of international concern;
(3) to make clear that the United States decision to establish diplomatic relations with the People’s Republic of China rests upon the expectation that the future of Taiwan will be determined by peaceful means;
(4) to consider any effort to determine the future of Taiwan by other than peaceful means, including by boycotts or embargoes, a threat to the peace and security of the Western Pacific area and of grave concern to the United States;
(5) to provide Taiwan with arms of a defensive character; and
(6) to maintain the capacity of the United States to resist any resort to force or other forms of coercion that would jeopardize the security, or the social or economic system, of the people on Taiwan. …
Section 3
(a) In furtherance of the policy set forth in section 2 of this Act, the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.
(b) The President and the Congress shall determine the nature and quantity of such defense articles and services based solely upon their judgment of the needs of Taiwan, in accordance with procedures established by law. Such determination of Taiwan’s defense needs shall include review by United States military authorities in connection with recommendations to the President and the Congress.
(c) The President is directed to inform the Congress promptly of any threat to the security or the social or economic system of the people on Taiwan and any danger to the interests of the United States arising therefrom. The President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.
[189] Report: “Taiwan: Issues for Congress.” By Susan V. Lawrence and Wayne M. Morrison. Congressional Research Service, October 30, 2017. <fas.org>
Page 9: “On April 10, 1979, 100 days after terminating diplomatic relations with Taiwan, President Carter signed into law the Taiwan Relations Act (P.L. 96-8, U.S.C. 3301 et seq.), including security commitments that Congress added to the Carter Administration’s original draft of the legislation.”
Page 10:
The Taiwan Relations Act does not require the United States to come to Taiwan’s defense in the case of a potential attack from China, but leaves open the possibility that the United States might do so, creating a policy often referred to as “strategic ambiguity.” The policy is intended to deter the PRC [People’s Republic of China] from attacking Taiwan and to deter Taiwan from taking actions that might provoke a PRC attack.
Page 14: “At the Shangri La Dialogue in Singapore on June 3, 2017, Secretary of Defense Jim Mattis provided reassurance to Taiwan that the Trump Administration would continue to sell it arms, as called for in the Taiwan Relations Act. … The Trump Administration notified Congress of a suite of arms sales to Taiwan on June 29, 2017.”
[190] Report: “United States–Taiwan Relations Act.” Committee on Foreign Affairs, U.S. House of Representatives, March 3, 1979. <www.cia.gov>
Page 6:
[T]he committee is making clear in this legislation that the United States will continue to sell arms to Taiwan for its defense. … It is the committee’s intent that the United States will continue to make available modern weapons for Taiwan, and not shift to a policy of supplying only obsolete weapons. In fact the United States should make available those types of conventional weapons and equipment needed for Taiwan’s defense and not upon the reaction that supplying such defense articles or defense services might stimulate.
If … an armed attack or use of force against Taiwan were to occur, the legislation makes clear that there should be a prompt response by the United States. What would be appropriate action, including possible use of force in Taiwan’s defense, would depend on the specific circumstances. The committee does not attempt to specify in advance what the particular circumstances or response might be; and in any event, U.S. action is to be according to Constitutional processes.
[191] Report: “Taiwan: Issues for Congress.” By Susan V. Lawrence and Wayne M. Morrison. Congressional Research Service, October 30, 2017. <fas.org>
Page 57: “Between 1993 and 2006, Taiwan sought annually to regain membership in the United Nations, first under the name ‘Republic of China,’ and then in 2007 under the name ‘Taiwan.’ ”
[192] “Transcript of Press Conference by Secretary-General Ban Ki-Moon at United Nations Headquarters.” United Nations, September 18, 2007. <www.un.org>
Question: Taiwan has made fresh applications in the last couple of months to join the United Nations. A series of United Nations bodies, including your own Secretariat, has rejected its letters of application without being willing to consider them. They say that your interpretation of the General Assembly resolution that expelled Chang Kai-shek’s representatives from the United Nations is incorrect and doesn’t apply to present-day Taiwan. Why do you refuse even to allow their application to be considered?
The Secretary-General: First of all, by resolution 2758 (XXVI) of 1971, the General Assembly decided to recognize the representatives of the People’s Republic of China as the only legitimate representatives of China to the United Nations. This has been the official position of the United Nations and has not changed since 1971.
The matter which you asked me was very carefully considered by the Secretariat and, in light of the resolution which I mentioned, 2758, it was not legally possible to receive the purported application for membership. At the same time, I would just note that some Member States have submitted applications for consideration by the General Assembly of the membership of Taiwan. Accordingly, the question of membership of the United Nations, they want it to be included in a supplementary item of the sixty-second session of the General Assembly. I hope that, accordingly, this question will have to be discussed by the Member States.
[193] Press conference: “Secretary-General’s Press Encounter with California Governor Arnold Schwarzenegger.” United Nations, July 27, 2007. <www.un.org>
Membership is given to a sovereign country. The position of the United Nations is that the People’s Republic of China is representing the whole of China as the sole and legitimate representative Government of China. The decision until now about the wish of the people in Taiwan to join the United Nations has been decided on that basis. The resolution that you just mentioned is clearly mentioning that the Government of China is the sole and legitimate Government and the position of the United Nations is that Taiwan is part of China.
[194] Article: “As U.N. Gathers, Taiwan, Frozen Out, Struggles to Get Noticed.” By Chris Horton. New York Times, September 21, 2018. <www.nytimes.com>
As the United Nations General Assembly convenes in New York, Taiwan, a democracy of 23 million people without U.N. representation, is making its case to be heard. … China, which insists that Taiwan is part of its territory, is a major power at the U.N., not least because of its veto as a permanent member of the Security Council. Barring seismic political shifts in Beijing, Taiwan won’t be joining the United Nations anytime soon.
[195] Webpage: “East Asia/Southeast Asia: Taiwan.” The World Factbook, U.S. Central Intelligence Agency. Last updated April 19, 2019. <www.cia.gov>
“Population: 23,545,963 (July 2018 est.)”
[196] Calculated with data from:
a) Webpage: “Country Comparison: Population.” The World Factbook, U.S. Central Intelligence Agency. Accessed April 30, 2019 at <www.cia.gov>
b) Webpage: “Member States.” United Nations. Accessed April 30, 2019 at <www.un.org>
NOTE: An Excel file containing the data and calculations is available upon request.
[197] Calculated with data from:
a) Dataset: “World Economic Outlook Database: All Countries, Gross Domestic Product, Current Prices (Purchasing Power Parity, International Dollars), 2018.” International Monetary Fund, October 2018. <www.imf.org>
b) Webpage: “Member States.” United Nations. Accessed April 30, 2019 at <www.un.org>
NOTE: An Excel file containing the data and calculations is available upon request.
[198] Report: “Freedom in the World 2018: Taiwan Profile.” Freedom House, 2018. <freedomhouse.org>
Freedom Status: Free …
Aggregate Score: 93 / 100 (0=Least Free, 100=Most Free) …
Taiwan’s vibrant and competitive democratic system has allowed three peaceful transfers of power between rival parties since 2000, and protections for civil liberties are generally robust. …
… Direct elections for the president, held since 1996, have been considered generally free and fair. …
… Direct legislative elections, held since 1991, have been considered generally free and fair. …
Taiwan’s constitution grants all citizens the right to vote. This guarantee applies regardless of gender, ethnicity, religion, sexual orientation, or gender identity. …
Taiwan’s media reflect a diversity of views and report aggressively on government policies and corruption allegations, though many outlets display strong party affiliation in their coverage. … [T]he Taiwanese press was able to report freely on the 2016 elections. The government does not restrict internet access. …
Taiwanese of all faiths can worship freely. Religious organizations that choose to register with the government receive tax-exempt status. …
Private discussion is open and free, and there were no reports of the government illegally monitoring online communication. …
Taiwan’s Assembly and Parade Act, passed in 1988, enables authorities to prosecute protesters who fail to obtain a permit or follow orders to disperse, but freedom of assembly is largely respected in practice. …
[199] “About Us.” Freedom House. Accessed December 5, 2018 at <freedomhouse.org>
“Freedom House is an independent watchdog organization dedicated to the expansion of freedom and democracy around the world.”
[200] Webpage: “Diplomatic Allies.” Ministry of Foreign Affairs, Republic of China (Taiwan). Accessed May 6, 2019 at <www.mofa.gov.tw>
Country with Whom We Currently Have Diplomatic Relations …
Kiribati … Nauru … Solomon Islands … Republic of the Marshall Islands … Republic of Palau … Tuvalu … Eswatini [Swaziland] … Holy See … Belize … Haiti … Nicaragua … St. Kitts and Nevis … St. Vincent & the Grenadines … the Republic of Guatemala … the Republic of Honduras … the Republic of Paraguay … Saint Lucia
[201] Article: “El Salvador Recognizes China in Blow to Taiwan.” By Chris Horton. New York Times, August 21, 2018. <www.nytimes.com>
“El Salvador severed diplomatic relations with Taiwan on Tuesday and established ties with China, leaving only 17 nations that officially recognize the Taiwanese government.”
[202] Paper: “Russia Takes Over the Soviet Union’s Seat at the United Nations.” By Yehuda Z. Blum. European Journal of International Law, 1992. Pages 354–362. <www.ejil.org>
Page 354: “Prior to the upheavals of 1991, the Soviet Union consisted of fifteen republics….”
Page 355:
Following the failed coup d’état in Moscow in August 1991, the independence of the three Baltic republics of the Soviet Union (Lithuania, Latvia and Estonia) was recognized by a large number of States, including most of the western European countries and the United States.
[203] Article: “Collapse of the Soviet Union.” By Michael Ray. Encyclopedia Britannica, July 13, 2018. <www.britannica.com>
Collapse of the Soviet Union, sequence of events that led to the dissolution of the Soviet Union on December 31, 1991. The former superpower was replaced by 15 independent countries: Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
That the Soviet Union was disintegrating had been subtly apparent for some time, but the final act began at 4:50 PM on Sunday, August 18, 1991. Soviet Pres. Mikhail Gorbachev … and his family were placed under house arrest by Gen. Igor Maltsev, commander-in-chief of the Soviet Air Defense Troops. …
The collapse of the coup led to the demise of Soviet communism…. The remarkable economic decline of the Soviet Union during the 1980s had exacerbated ethnic tensions and promoted regionalism and nationalism. The coup, directed first and foremost at crushing attempts to expand Russian sovereignty, accelerated the breakup of the Soviet empire. …
Independence Movements And The Dissolution Of The Soviet Union
After the coup the republics moved rapidly to claim their independence. In a vain attempt to preserve its power, the Communist Party of Belarus led the rush by declaring independence on August 25, just 72 hours after Gorbachev’s return to Moscow. On August 27 the parliament and Grand National Assembly of Moldavia, renamed Moldova, proclaimed the republic’s independence and initiated the process of leaving the union. In September all three Baltic states formally left the Soviet Union and were admitted to the United Nations as the independent countries of Estonia, Latvia, and Lithuania. …
In November seven republics, including Russia, agreed to form a new “Union of Sovereign States,” but it remained a shell. On December 1 Ukraine voted overwhelmingly for independence, and, a week later, on December 8, representatives from the three Slavic republics—Belarus, Russia, and Ukraine—met in Brest, Belarus, and declared that the Soviet Union no longer existed. They proclaimed the establishment of the Commonwealth of Independent States (CIS), an international association of sovereign countries….
On December 25, 1991, Gorbachev announced his resignation of the presidency of the Soviet Union in a televised address. At 7:32 PM, less than a half hour after the conclusion of Gorbachev’s speech, the Soviet hammer-and-sickle flag was lowered from outside the Kremlin for the final time. … For six days, the Soviet Union continued to exist in name only, and at midnight on December 31, 1991, it was formally dissolved.
[204] Paper: “Russia Takes Over the Soviet Union’s Seat at the United Nations.” By Yehuda Z. Blum. European Journal of International Law, 1992. Pages 354–362. <www.ejil.org>
Page 355:
Following the failed coup d’état in Moscow in August 1991, the independence of the three Baltic republics of the Soviet Union (Lithuania, Latvia and Estonia) was recognized by a large number of States, including most of the western European countries and the United States. Bowing to the inevitable, on 6 September 1991, the State Council of the Soviet Union released these three republics from its ranks and recognized their independence.5 On 17 September 1991, they were admitted to the United Nations.
[205] Webpage: “Member States.” United Nations. Accessed April 22, 2019 at <www.un.org>
“Estonia Date of Admission 17-09-91 … Latvia Date of Admission 17-09-91 … Lithuania Date of Admission 17-09-91”
[206] Paper: “Russia Takes Over the Soviet Union’s Seat at the United Nations.” By Yehuda Z. Blum. European Journal of International Law, 1992. Pages 354–362. <www.ejil.org>
Pages 355–356:
The remaining twelve republics, having in turn all proclaimed their independence by December 1991, then proceeded … to declare that the Soviet Union had ceased to exist as a subject of international law and that they would henceforth constitute the Commonwealth of Independent States. In the preamble to the two declarations adopted in Minsk … the three signatories stated that “the USSR, as a subject of international law and a geopolitical reality, is ceasing its existence.”8 Likewise, the eleven participating republics at the Alma-Ata conference stated … that “with the formation of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist.”9 Furthermore, in Article 1 of the fifth declaration, entitled “On UN Membership,” the eleven signatories agreed that “Member states of the Commonwealth support Russia in taking over the USSR membership in the UN, including permanent membership in the Security Council.”
7 Georgia attended the Alma-Ata conference as an observer and has not yet joined the Commonwealth of Independent States.
[207] Paper: “Russia Takes Over the Soviet Union’s Seat at the United Nations.” By Yehuda Z. Blum. European Journal of International Law, 1992. Pages 354–362. <www.ejil.org>
Page 356:
[T]wo other members of the Commonwealth of Independent States (Ukraine and Belarus) had already been … members of the United Nations.15 The remaining eight members of the Commonwealth of Independent States were admitted to the United Nations on 2 March 1992.16 Georgia was admitted to the UN on 31 July 1992, under General Assembly resolution A/46/241.
16 New York Times, 3 March 1992, A3, col. 1. The republics thus admitted were, in alphabetical order, Azerbeijan, Armenia, Kazakhstan, Kirghizia, Moldova, Tajikistan, Turkmenistan and Uzbekistan.
[208] Textbook: Akehurst’s Modern Introduction to International Law (7th edition). By Peter Malanczuk. Routledge, 1997.
Page 373: “Russia … informed the UN in 1991 that … it would continue the membership of the USSR in all UN organs.71 This step taken by the Russian Federation … did not meet with any protest by a UN member state, although, strictly speaking, one could argue that in this matter an amendment of the Charter was necessary to change the composition of the Security Council.72”
[209] Paper: “Russia Takes Over the Soviet Union’s Seat at the United Nations.” By Yehuda Z. Blum. European Journal of International Law, 1992. Pages 354–362. <www.ejil.org>
Page 356:
In the absence of any objection, the delegation of the Russian Federation took over the Soviet seat in the UN General Assembly, in the Security Council and in other organs of the United Nations…. On 31 January 1992 Russian President Yeltsin himself was in the Russian Federation’s seat in the Security Council during the “summit meeting” of the Council attended by heads of state and government.
Pages 359–360:
[A]ll the constituent republics of the former Soviet Union adamantly and unambiguously asserted that the international legal personality of the Soviet Union had been extinguished; indeed, their very assertion of their independence rested on the claim … that the Soviet Union, as a subject of international law, had ceased to exist. …
The logical legal conclusion that should have been drawn from these facts thus seems to be clear: with the demise of the Soviet Union itself, its membership in the UN should have automatically lapsed and Russia should have been admitted to membership in the same way as the other newly-independent republics…. As already stated by the UN General Assembly’s Sixth Committee in 1947, the rights and obligations of membership of a State cease to exist “with its extinction as a legal person internationally recognized as such.”
… This claim of the Russian Federation … that it was “continuing” the legal existence and hence the UN membership of the latter, must thus be considered—irrespective of its obvious political merits—as being seriously flawed from the legal point of view. …
The conclusion arrived at in the previous section—if adhered to—might have also brought about the elimination of Soviet (and subsequently Russian) permanent membership in the UN Security Council. Such an outcome would have clearly precipitated a serious constitutional crisis for the United Nations: the resulting situation would have violated the explicit provisions of Article 23(1) of the UN Charter, as amended, under which the Council should consist of five permanent and ten non-permanent members.33
33 The disappearance of a permanent member of the Security Council would have had constitutional implications also beyond the activities of the Security Council itself: under Article 86(1) of the Charter a permanent member of the Security Council is also automatically seated on the Trusteeship Council. Under Article 108 the ratification by all five permanent members of the Security Council is one of the conditions required for a Charter amendment to take effect.
[210] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 23
1 The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. …
Article 108
Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.
[211] Paper: “Musical Chairs: The Dissolution of States and Membership in the United Nations.” By Michael P. Scharf. Cornell International Law Journal, 1995. Pages 29–69. <scholarship.law.cornell.edu>
Pages 46–48:
As late as December 22, U.S. officials were still publicly stating that for Russia to replace the Soviet Union on the Security Council, it must “first apply for the seat, after which the matter would be debated by the General Assembly and Security Council.”91 …
Finally … President Bush announced that the United States would “support Russia’s [automatic] assumption of the U.S.S.R.’s seat as a permanent member of the United Nations’ Security Council.”
Page 49:
A letter from Boris Yeltsin to President Bush stated, “the end of existence of the USSR as a subject of international law require that … the question of the Security Council permanent member’s seat be urgently addressed. …”112
In contrast, Yeltsin’s December 26 letter to the Secretary-General made no such references to the extinction of the Soviet Union…. Rather, Yeltsin asserted that the Soviet Union’s U.N. membership “is continued” by the Russian Federation.
[212] Paper: “Musical Chairs: The Dissolution of States and Membership in the United Nations.” By Michael P. Scharf. Cornell International Law Journal, 1995. Pages 29–69. <scholarship.law.cornell.edu>
Pages 47–48:
The question of the disposition of the Soviet Union’s seat came against a backdrop of efforts to seek amendment of the U.N. Charter to provide for greater representation on the Security Council and to abolish or modify the veto. … The other members of the Perm Five worried that any change to the Soviet seat would set off a scramble by other countries for Security Council reform.98
… A proposal gaining increasing support among many countries would merge the British and French permanent seats and give this new single seat to the European Community, with the leftover seat going to Japan.102
The permanent members of the Security Council thus had an interest in ensuring that changes to Soviet membership in the United Nations would not produce challenges to other features of the Security Council…. In particular, the permanent members reportedly feared that leaving the Soviet seat vacant would be seen as an open invitation to other members to push their proposals for expanding or altering the composition of the Perm Five.105
[213] Paper: “Expanding Permanent Membership in the UN Security Council: Opening a Pandora’s Box or Needed Change?” By Michelle D. Smith. Penn State International Law Review, September 1, 1993. Pages 173–193. <elibrary.law.psu.edu>
Page 188:
On December 24, 1991, Russian President Boris Yeltsin wrote a letter to the UN declaring that Russia would occupy the Soviet Union’s seat.151 The permanent members accepted this action, although China did so reluctantly.152 The move was seen as a purely political act because Yeltsin had no legal standing to demand the seat.153 …
Ultimately, Russia’s action proved to be a simple solution to a potentially complicated problem. Instead of opening a “Pandora's box” by attempting to decide what country was worthy of the seat, the permanent members simply let the new government take over. Regardless, although resolving the immediate dispute over the Soviet Union’s former seat, the Russian move renewed talk of adding permanent seats to the Security Council.
[214] Article: “Palestine.” By Glenn Richard Bugh and others. Encyclopedia Britannica, July 26, 1999. Last updated 3/28/19. <www.britannica.com>
Palestine, area of the eastern Mediterranean region, comprising parts of modern Israel and the Palestinian territories of the Gaza Strip (along the coast of the Mediterranean Sea) and the West Bank (the area west of the Jordan River).
The term Palestine has been associated variously and sometimes controversially with this small region…. Since the 20th century it has been the object of conflicting claims of Jewish and Arab national movements, and the conflict has led to prolonged violence and, in several instances, open warfare. …
The name Palestine has long been in popular use as a general term to denote a traditional region, but this usage does not imply precise boundaries. …
Both Zionists and Palestinian Arab nationalists have at various times since the 19th century claimed rightful possession of the area west of the Jordan River. The rivalry between the two groups and their claims have been major causes of the numerous Arab–Israeli conflicts and the continuing crises in the region. …
Henceforth the term Palestinian will be used when referring to the Arabs of the former mandated Palestine, excluding Israel. … Until the establishment of Israel, the term Palestinian was used by Jews and foreigners to describe the inhabitants of Palestine and had only begun to be used by the Arabs themselves at the turn of the 20th century.
[215] Report: “The Palestinians: Background and U.S. Relations.” By Jim Zanotti. Congressional Research Service. Updated November 21, 2018. <crsreports.congress.gov>
Page 1:
The Palestinians are an Arab people whose origins are in present-day Israel, the West Bank, and the Gaza Strip, or who have historical and cultural ties to that area. Since the early 20th century, the dominant Palestinian national goal has been to establish an independent state in historic Palestine (the area covered by the British Mandate until the British withdrawal in 1948). Over time, Palestinians have debated among themselves, with Israelis, and with others over the nature and extent of such a state and how to achieve it.
Page 2: “In the West Bank, a Fatah-led Palestinian Authority (PA) exercises limited self-rule in specified urban areas (where Israel maintains overarching control). In Gaza, Hamas maintains de facto control.”
Page 8:
An estimated 4.82 million Palestinians live in the West Bank, Gaza Strip, and East Jerusalem—approximately 2.94 million in the West Bank and East Jerusalem, and 1.88 million in Gaza.24 Of these, more than 2 million are registered as refugees in their own right or as descendants of the original refugees from the 1948 Arab–Israeli War. In addition, approximately 593,000 Jewish Israeli citizens live in the West Bank and East Jerusalem.
Page 27:
The PLO [Palestine Liberation Organization] is recognized by the United Nations (including Israel since 1993) as the sole legitimate representative of the Palestinian people, wherever they may reside. It is an umbrella organization that includes 10 Palestinian factions (but not Hamas or other Islamist groups). … Under the name “Palestine,” the PLO maintains a permanent observer mission to the United Nations in New York and in Geneva as a “non-member state,” and has missions and embassies in other countries—some with full diplomatic status.
[216] Webpage: “Borders.” Palestine Liberation Organization, Negotiations Affairs Department. Accessed June 10, 2019 at <www.nad.ps>
The delineation and demarcation of agreed upon borders are central to reaching an end of conflict on the basis of the two-state solution. A State of Palestine based on pre June 4th 1967 border with East Jerusalem as its Capital. The Palestinian position on borders has undergone a significant transformation since 1948. The national movement once laid claim to its rights over all of historic Palestine, an area that includes modern day state of Israel. Since 1988, however, in the interest of achieving peace and ending the conflict, the Palestinian leadership limited the national aspirations to statehood to 22 percent of mandate Palestine, seeking a state in the West Bank and Gaza Strip, with East Jerusalem as its capital (that is, all of the territory occupied by Israel in 1967).
[217] Webpage: “Middle East: West Bank.” The World Factbook, U.S. Central Intelligence Agency. Last updated April 29, 2019. <www.cia.gov>
Under a series of agreements known as the Oslo Accords signed between 1994 and 1999, Israel transferred to the newly created Palestinian Authority (PA) security and civilian responsibility for many Palestinian-populated areas of the West Bank as well as the Gaza Strip. Negotiations to determine the permanent status of the West Bank and Gaza Strip stalled in 2001, after which the area witnessed a violent intifada or uprising.
Roughly 60% of the West Bank, including East Jerusalem, remains under Israeli military control. In early 2006, the Islamic Resistance Movement (HAMAS) won a majority in the Palestinian Legislative Council election and since 2007, the PA has administered areas of the West Bank under its control while HAMAS maintains de facto control of Gaza. Fatah, the dominant Palestinian political party in the West Bank, and HAMAS have made several attempts at reconciliation, but the factions have been unable to implement any agreements reached; a reconciliation agreement signed in October 2017 remains unimplemented.
[218] Article: “UNESCO Votes to Admit Palestine as Full Member.” United Nations UN News, October 31, 2011. <news.un.org>
“The United Nations Educational, Scientific and Cultural Organization (UNESCO) today voted to admit Palestine as a full member of the Paris-based agency. UNESCO’s General Conference, the agency’s highest ruling body, took the decision by a vote of 107 in favour to 14 against, with 52 abstentions, according to a news release.”
[219] “UNESCO Constitution.” United Nations Educational, Scientific and Cultural Organization. Accessed February 28, 2019 at <www.unesco.org>
“Subject to the conditions of the Agreement between this Organization and the United Nations Organization, approved pursuant to Article X of this Constitution, States not Members of the United Nations Organization may be admitted to membership of the Organization, upon recommendation of the Executive Board, by a two thirds majority vote of the General Conference.”
[220] Report: “Membership in the United Nations and Its Specialized Agencies.” By Luisa Blanchfield and Marjorie Ann Browne. Congressional Research Service. Updated June 19, 2014. <crsreports.congress.gov>
Page 13: “When Palestine was admitted to UNESCO [United Nations Educational, Scientific and Cultural Organization] in October 2011, for example, it also became eligible for membership, without a vote, in IFAD[International Fund for Agricultural Development], UNIDO [U.N. Industrial Development Organization], and WIPO [World Intellectual Property Organization].”
[221] Webpage: “International Fund for Agricultural Development: Membership.” United Nations System Chief Executives Board for Coordination. Accessed February 28, 2019 at <www.unsceb.org>
“IFAD [International Fund for Agricultural Development] membership is open to any state that is a member of the UN or its specialised agencies, or the International Atomic Energy Agency (IAEA). Countries may join the Fund after approval by IFAD’s Governing Council and accession to the Agreement Establishing IFAD.”
[222] Webpage: “Member States.” World Intellectual Property Organization. Accessed February 28, 2019 at <www.wipo.int>
To become a member, a state must deposit an instrument of ratification or accession with the Director General. The WIPO [World Intellectual Property Organization] Convention provides that membership is open to any state that is:
• a member of the Paris Union for the Protection of Industrial Property, or member of the Berne Union for the Protection of Literary and Artistic Works; or
• a member of the United Nations, or of any of the United Nations’ Specialized Agencies, or of the International Atomic Energy Agency, or that is a party to the Statute of the International Court of Justice; or
• invited by the WIPO General Assembly to become a member state of the Organization.
[223] “Constitution of the United Nations Industrial Development Organization.” United Nations Industrial Development Organization. Accessed February 28, 2019 at <www.unido.org>
“State members of the United Nations or of a specialized agency or of the International Atomic Energy Agency may become Members of the Organization by becoming parties to this Constitution….”
[224] Article: “State of Palestine Accedes to the UNIDO Constitution.” United Nations Industrial Development Organization, May 25, 2018. <www.unido.org>
On 17 May 2018, the State of Palestine deposited its instruments of accession to the Constitution of the United Nations Industrial Development Organization (UNIDO) with the Secretary-General of the United Nations, who is the depositary of the UNIDO Constitution, at the Treaty Section of the Legal Office of the UN Secretariat in New York. …
On 18 May 2018, the UN Treaty Section informed UNIDO that its Constitution entered into force for the State of Palestine on 17 May 2018. The State of Palestine has therefore automatically become a member of the Organization.
[225] Report: “U.S. Funding to the United Nations System: Overview and Selected Policy Issues.” By Luisa Blanchfield. Congressional Research Service. Updated April 25, 2018. <fas.org>
Page 16:
Since the 1980s, the United States has withheld a proportionate share of assessed contributions to the U.N. regular budget for selected activities or programs related to the Palestinians (Section 114 of P.L. 98–164). This provision has impacted U.N. regular budget funding through the CIO [Contributions to International Organizations] account. … Two laws enacted in the 1990s prohibit funding to U.N. entities that admit the Palestine Liberation Organization (PLO) as a member, or grant full membership as a state to any group that does not have the internationally recognized attributes of statehood (Section 414 of P.L. 101–246; Section 410 of P.L. 103–236).
[226] Report: “The Palestinians: Background and U.S. Relations.” By Jim Zanotti. Congressional Research Service. Updated October 17, 2017. <crsreports.congress.gov>
Page 17: “In fall 2011, the Palestinians obtained membership in the U.N. Educational, Scientific and Cultural Organization (UNESCO).43 Under U.S. laws passed in 1990 and 1994,44 Palestinian admission to membership in UNESCO in 2011 triggered the withholding of U.S. assessed and voluntary financial contributions to the organization.”
[227] Report: “The United Nations Educational, Scientific, and Cultural Organization (UNESCO).” By Luisa Blanchfield and Marjorie Ann Brown. Congressional Research Service, March 18, 2013. <fas.org>
Page 1:
The Obama Administration actively opposes Palestinian membership in UNESCO [UN Educational, Scientific, and Cultural Organization]. It argues that Palestinian statehood can only be realized through direct negotiation between Israel and Palestinians, and not through membership in international organizations. At the same time, the Administration maintains that U.S. participation in UNESCO is in the interest of the United States and that the government should continue to fund and participate in the organization. In his FY2013 budget proposal, President Obama requested $78.968 million in assessed contributions for UNESCO and stated that the Administration intended to work with Congress to “waive” the funding restrictions.
[228] Article: “U.S. Withdrawal From the United Nations Educational, Scientific and Cultural Organization (UNESCO).” By Luisa Blanchfield. Congressional Research Service Insight, October 17, 2017. <fas.org>
Page 2 (of PDF): “The Obama Administration asked Congress to support legislation that would provide authority to waive the legislative restrictions; Congress did not enact such a waiver. … In November 2013, as a result of the financial withholding, the United States lost its vote in the UNESCO General Conference.”
[229] Press release: “Loss of U.S. Vote at UNESCO.” By Jen Psaki. U.S. Department of State, November 8, 2013. <2009-2017.state.gov>
We regret that today the United States lost its vote in the United Nations Educational, Scientific and Cultural Organization (UNESCO) General Conference as a result of legislative restrictions that have precluded payment of U.S. dues to UNESCO. The restrictions were triggered when UNESCO member states voted to grant the Palestinians membership as a state in 2011.
[230] Press release: “The United States Withdraws from UNESCO.” By Heather Nauert. U.S. Department of State, October 12, 2017. <www.state.gov>
On October 12, 2017, the Department of State notified UNESCO Director-General Irina Bokova of the U.S. decision to withdraw from the organization and to seek to establish a permanent observer mission to UNESCO. This decision was not taken lightly, and reflects U.S. concerns with mounting arrears at UNESCO, the need for fundamental reform in the organization, and continuing anti-Israel bias at UNESCO. … Pursuant to Article II(6) of the UNESCO Constitution, U.S. withdrawal will take effect on December 31, 2018.
[231] Webpage: “The Executive Branch.” White House. Accessed January 21, 2019 at <www.whitehouse.gov>
Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress. Fifteen executive departments—each led by an appointed member of the President’s Cabinet—carry out the day-to-day administration of the federal government. …
Department of State
The Department of State plays the lead role in developing and implementing the President’s foreign policy. Major responsibilities include United States representation abroad, foreign assistance, foreign military training programs, countering international crime, and a wide assortment of services to U.S. citizens and foreign nationals seeking entrance to the U.S.
[232] Report: “Membership in the United Nations and Its Specialized Agencies.” By Luisa Blanchfield and Marjorie Ann Browne. Congressional Research Service. Updated June 19, 2014. <crsreports.congress.gov>
Pages 9–10: “In September 2011, Palestine submitted an application for membership to the U.N. Secretary-General Ban Ki-moon. The Secretary-General subsequently submitted it to the Security Council for consideration.”
[233] “Report of the Committee on the Admission of New Members Concerning the Application of Palestine for Admission to Membership in the United Nations.” United Nations Security Council, November 11, 2011. <undocs.org>
Page 1:
At its 6624th meeting, on 28 September 2011, the Security Council had before it the application of Palestine for admission to membership in the United Nations (S/2011/592). In accordance with rule 59 of the provisional rules of procedure and in the absence of a proposal to the contrary, the President of the Council (Lebanon) referred the application to the Committee on the Admission of New Members for examination and report.
Page 4: “In summing up the debate at the 110th meeting of the Committee, the Chair stated that the Committee was unable to make a unanimous recommendation to the Security Council.”
[234] Article: “Palestine.” By William Charles Brice and others. Encyclopedia Britannica, July 26, 1999. Last updated 3/28/19. <www.britannica.com>
A round of direct peace talks between Israel and the PA [Palestinian Authority] was held in September 2010, but those talks quickly came to a halt over the construction of Israeli settlements in the West Bank. Following the failure of direct talks in 2010, Abbas shifted his efforts toward gaining international recognition for a Palestinian state. In September 2011 he submitted a request to the UN Security Council asking for the admission of an independent Palestinian state to the UN. The action—which was opposed by Israel and the United States—had become necessary, he argued, because the U.S.-mediated peace negotiations had placed too little pressure on Israel to make concessions for peace. The bid for recognition by the Security Council stalled when it became clear that the United States would veto it and that several other members would abstain from voting.
[235] Report: “Membership in the United Nations and Its Specialized Agencies.” By Luisa Blanchfield and Marjorie Ann Browne. Congressional Research Service. Updated June 19, 2014. <crsreports.congress.gov>
Page 10: “The application remains pending and is unlikely to be considered by the Council. The Obama Administration has stated that the United States would veto any proposed Security Council resolution recommending Palestinian membership.”
[236] Article: “Obama Administration Confirms It Would Veto Palestinian Statehood at the U.N.” By Josh Rogin. Foreign Policy The Cable, September 8, 2011. <foreignpolicy.com>
“We’ve seen the press furor around this. Frankly, it was surprising to us. It should not come as a shock to anyone in this room that the U.S. opposes a move in New York by the Palestinians to try to establish a state that can only be achieved through negotiations,” said [State Department spokesperson Victoria] Nuland. “So, yes, if something comes to a vote in the U.N. Security Council, the U.S. will veto.”
[237] Resolution 67/19: “Status of Palestine in the United Nations.” United Nations General Assembly, November 29, 2012. <www.un.org>
“The General Assembly … decides to accord to Palestine non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice….”
[238] Article: “General Assembly Votes Overwhelmingly to Accord Palestine ‘Non-Member Observer State’ Status in United Nations.” United Nations, November 29, 2012. <www.un.org>
The Palestinian Liberation Organization was recognized as an observer entity in 1974. …
The draft resolution on the Status of Palestine at the United Nations (document A/67/L.28) was adopted by a recorded vote of 138 in favour to 9 against, with 41 abstentions, as follows:
In favour: Afghanistan, Algeria, Angola, Antigua and Barbuda, Argentina, Armenia, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cambodia, Cape Verde, Central African Republic, Chad, Chile, China, Comoros, Congo, Costa Rica, Côte d’Ivoire, Cuba, Cyprus, Democratic People’s Republic of Korea, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Eritrea, Ethiopia, Finland, France, Gabon, Gambia, Georgia, Ghana, Greece, Grenada, Guinea, Guinea-Bissau, Guyana, Honduras, Iceland, India, Indonesia, Iran, Iraq, Ireland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lao People’s Democratic Republic, Lebanon, Lesotho, Libya, Liechtenstein, Luxembourg, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Mozambique, Myanmar, Namibia, Nepal, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Peru, Philippines, Portugal, Qatar, Russian Federation, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Solomon Islands, Somalia, South Africa, South Sudan, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syria, Tajikistan, Thailand, Timor-Leste, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Tuvalu, Uganda, United Arab Emirates, United Republic of Tanzania, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Zambia, Zimbabwe.
Against: Canada, Czech Republic, Israel, Marshall Islands, Micronesia (Federated States of), Nauru, Palau, Panama, United States.
Abstain: Albania, Andorra, Australia, Bahamas, Barbados, Bosnia and Herzegovina, Bulgaria, Cameroon, Colombia, Croatia, Democratic Republic of the Congo, Estonia, Fiji, Germany, Guatemala, Haiti, Hungary, Latvia, Lithuania, Malawi, Monaco, Mongolia, Montenegro, Netherlands, Papua New Guinea, Paraguay, Poland, Republic of Korea, Republic of Moldova, Romania, Rwanda, Samoa, San Marino, Singapore, Slovakia, Slovenia, The former Yugoslav Republic of Macedonia, Togo, Tonga, United Kingdom, Vanuatu.
Absent: Equatorial Guinea, Kiribati, Liberia, Madagascar, Ukraine.
[239] Article: “Palestine.” By Glenn Richard Bugh and others. Encyclopedia Britannica, July 26, 1999. Last updated 3/28/19. <www.britannica.com>
A year after the failure of the Palestinian bid for full membership in the UN, Abbas announced that he would seek the UN General Assembly’s implicit recognition of Palestinian statehood by submitting a draft resolution requesting that the status of the Palestinian mission to the UN (officially called Palestine within the UN) be upgraded from “permanent observer” to “nonmember observer state.” The designation, though falling short of full UN membership, would allow Palestinians to seek membership in international bodies such as the International Criminal Court. The resolution passed on November 29, 2012, with 138 countries in favour, 9 opposed, and 41 abstentions. The resolution also urged Israel and the Palestinians to resume stalled negotiations toward a two-state solution. Israeli officials opposed Abbas’s bid for recognition, saying that such unilateral actions by the Palestinians would hold up negotiations with Israel.
[240] Webpage: “Diplomatic Relations.” Permanent Observer Mission of the State of Palestine to the United Nations, April 11, 2019. <palestineun.org>
The State of Palestine currently enjoys bilateral recognition from 137 States. Many States extended recognition to the State of Palestine following the Declaration of Independence by the Palestine National Council on 15 November 1988 in Algiers, Algeria. Other States recognized the State of Palestine in the recent period following extensive bilateral and multilateral diplomatic efforts. Below you will find a list of those States which have extended recognition to the State of Palestine and their corresponding date of recognition.
[241] Webpage: “About the Group of 77.” Group of 77 at the United Nations. Accessed March 4, 2019 at <www.g77.org>
The Group of 77 (G-77) was established on 15 June 1964 by seventy-seven developing countries signatories of the “Joint Declaration of the Seventy-Seven Developing Countries” issued at the end of the first session of the United Nations Conference on Trade and Development (UNCTAD) in Geneva. … Although the members of the G-77 have increased to 134 countries, the original name was retained due to its historic significance.
Aims
The Group of 77 is the largest intergovernmental organization of developing countries in the United Nations, which provides the means for the countries of the South to articulate and promote their collective economic interests and enhance their joint negotiating capacity on all major international economic issues within the United Nations system, and promote South–South cooperation for development. …
The Group of 77 also makes statements at various Main Committees of the General Assembly, ECOSOC [Economic and Social Council] and other subsidiary bodies, sponsors and negotiates resolutions and decisions at major conferences and other meetings held under the aegis of the United Nations dealing with international economic cooperation and development as well as the reform of the United Nations.
[242] Resolution 73/5: “Chair of the Group of 77 for 2019.” United Nations General Assembly, October 16, 2018. <www.un.org>
The General Assembly … taking note of the decision by the forty-second annual meeting of the Ministers for Foreign Affairs of the States members of the Group of 77 of 27 September 2018 to elect the State of Palestine to chair the Group of 77 for the year 2019 … decides to adopt the modalities set out in the annex to the present resolution for the participation of the State of Palestine in the sessions and work of the General Assembly and the international conferences convened under the auspices of the Assembly or other organs of the United Nations, as well as in United Nations conferences, for the duration of the chairmanship by the State of Palestine of the Group of 77….
Annex
The additional rights and privileges of participation of the State of Palestine for 2019 shall be given effect through the following modalities, without prejudice to its existing rights and privileges:
(a) The right to make statements on behalf of the Group of 77 and China, including among representatives of major groups;
(b) The right to submit proposals and amendments and introduce them on behalf of the Group of 77 and China;
(c) The right to co-sponsor proposals and amendments;
(d) The right to make explanations of vote on behalf of the States Members of the United Nations that are members of the Group of 77 and China;
(e) The right of reply regarding positions of the Group of 77 and China;
(f) The right to raise procedural motions, including points of order and requests to put proposals to the vote, on behalf of the Group of 77 and China.
[243] Press release: “State of Palestine to Gain Enhanced Rights, Privileges in General Assembly Work, Sessions When It Assumes 2019 Group of 77 Chairmanship.” United Nations General Assembly, October 16, 2018. <www.un.org>
The General Assembly decided today to provide additional rights and privileges of participation to the State of Palestine when it assumes its position as chair of the “Group of 77” developing countries and China for the year 2019.
The Assembly set out those terms in a resolution (document A/73/L.5) adopted by a recorded vote of 146 in favour to 3 against (Australia, Israel, United States), with 15 abstentions. …
For his part, the representative of the United States said his country does not recognize that there is a Palestinian State and therefore strongly opposes this decision to make Palestine the Chair of the Group of 77. The United States has long opposed enhancements of Palestinian status at the United Nations and has consistently opposed Palestinian accession to treaties the United States is party to. Achieving real peace requires the courage to sit down at the table and make compromises. “This is the exact opposite,” he stressed.
[244] Webpage: “Maintain International Peace and Security.” United Nations. Accessed October 11, 2018 at <www.un.org>
“The United Nations came into being … with one central mission: the maintenance of international peace and security. … The UN Security Council has the primary responsibility for international peace and security.”
[245] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 24
1 In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
[246] Entry: “United Nations.” By Cecelia M. Lynch, Jacques Fomerand, and Karen Mingst. Encyclopedia Britannica, July 26, 1999. Last updated 9/20/18. <www.britannica.com>
“The main function of the United Nations is to preserve international peace and security. Chapter 6 of the Charter provides for the pacific settlement of disputes, through the intervention of the Security Council, by means such as negotiation, mediation, arbitration, and judicial decisions.”
[247] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 23
The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council. …
Article 27
1 Each member of the Security Council shall have one vote.
2 Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
3 Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.
[248] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 27 …
3 Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting. …
Chapter VI: Pacific Settlement of Disputes …
Article 52 …
3 The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangement or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.
[249] Paper: “Russia’s Veto in the Security Council: Whither the Duty to Abstain Under Art. 27(3) of the UN Charter?” By Enrico Milano. Heidelberg Journal of International Law, 2015. Pages 215–231. <www.zaoerv.de>
Pages 222–223:
The obligatory abstention under Art. 27, para. 3, was consistently honoured and recalled in the first years of the organization. A glimpse at the Repertoire of the practice of the Security Council in the time frame 1946–1951 shows that on eight different occasions a member of the Council abstained in compliance with Art. 27, para. 3.24 …
After that, an analysis of the relevant practice of the Security Council shows that the provision has been prominent for its non-application. The last few and controversial instances in which the matter of its application was raised during the debates date back to the period between 1960 and 1982. …
In the period between 1952 and 1990, Blum identifies 16 clear instances of non-compliance with the rule. …
In the Post Cold War period, the obligatory abstention rule has been raised in a concrete case only once….
[250] Article: “In Hindsight: Obligatory Abstentions.” Security Council Report Monthly Forecast, April 2014. <www.securitycouncilreport.org>
Article 27(3) of the UN Charter not only enshrines the veto power of permanent members, but also institutes a limitation of this power through the principle of obligatory abstentions. In providing that “in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting”, the Charter seeks to ensure that a Council member “should not be allowed to be party, judge and jury at the same time” (S/PV.4753).
Although obligatory abstentions are a compromise, slightly tempering the scope of the veto, they apply in equal measure to permanent and non-permanent members: any member of the Security Council may be required to abstain from voting on a decision on which it is a party to the dispute. This, however, only applies under all of the following conditions: the decision to be voted is not procedural; the decision falls under Chapter VI or Article 52 (3); there is a dispute; and a Council member is a party to the dispute. Obligatory abstentions do not affect the veto of Chapter VII decisions.
The practice of the Security Council, and its members, in terms of raising and complying with Article 27(3) abstentions, has been inconsistent since 1946, and basically inexistent since 17 April 2000, the last time the issue was raised by a member state to no effect in the Council (S/PV.4128). With the exception of the UK in 1947, permanent members have never shown an interest in raising the matter, and non-permanent members have only done so sporadically. …
Obligatory abstentions are rare. There have been only six Council members that have abstained from voting in the Council, or else cast an abstention, explicitly or implicitly acknowledging Article 27(3). …
[T]he last Article 27(3) abstention dates back to 23 June 1960, and the most recent reference to the spirit of the provision in a Council meeting dates back to 13 May 2003 (S/PV.4753)…. In practical terms, disregard by parties to a dispute that are non-permanent members has limited effects, as the adoption of a decision cannot be prevented if it enjoys nine affirmative votes. In the case of permanent members, however, if the other Council members forego Article 27(3) when applicable, nothing stands in the way of the permanent member to veto a decision under Chapter VI on a dispute to which it is a party.
[251] Webpage: “The Security Council.” United Nations. Accessed November 1, 2018 at <www.un.org>
The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security.
[252] Webpage: “What is the Security Council?” United Nations Security Council. Accessed March 19, 2019 at <www.un.org>
When a complaint concerning a threat to peace is brought before it, the Council’s first action is usually to recommend that the parties try to reach agreement by peaceful means. The Council may:
• undertake investigation and mediation, in some cases;
• dispatch a mission;
• appoint special envoys; or
• request the Secretary-General to use his good offices to achieve a pacific settlement of the dispute.
When a dispute leads to hostilities, the Council’s primary concern is to bring them to an end as soon as possible. In that case, the Council may:
• issue ceasefire directives that can help prevent an escalation of the conflict;
• dispatch military observers or a peacekeeping force to help reduce tensions, separate opposing forces and establish a calm in which peaceful settlements may be sought.
Beyond this, the Council may opt for enforcement measures, including:
• economic sanctions, arms embargoes, financial penalties and restrictions, and travel bans;
• severance of diplomatic relations;
• blockade;
• or even collective military action.
[253] “Charter of the United Nations.” Accessed November 2, 2018 at <www.un.org>
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
[254] Report: “UN Sanctions.” Security Council Report, November 25, 2013. <www.securitycouncilreport.org>
Page 13: “Another important factor affecting the implementation of sanctions regimes is the role played by neighbouring states and regional organisations. UN member states have the primary obligation to enforce UN sanctions. This requires two basic components—state capacity and political will—and implementation typically fails in the absence of either.”
[255] Book: Economic Sanctions: Panacea or Peacebuilding in a Post-Cold War World? Edited by David Cortright and George A. Lopez. Westview Press, 1995. Chapter 2: “The United Nations Experience with Sanctions.” By James C. Ngobi. Pages 17–28.
Page 21:
The Security Council has consistently declared or implied that the responsibility for implementing the sanctions it establishes lies with states…. This position probably springs from the realization that acts violating sanctions will be committed in the jurisdiction of some state, which must then investigate and/or prevent the act and deal with the guilty parties….
Pages 23–24:
[E]xclusive reliance on states for imposing sanctions means that the Security Council committees do not have an independent external mechanism to implement sanctions or to verify that the investigations undertaken by governments are sufficient and conclusive. …
Fourth, there should be measures to punish the offenders who continue to trade with a sanctioned country. … If it is found that the countries in which such companies or individuals reside are not exercising sufficient control or restraint on their national entities, a threat of secondary sanctions against such countries would likely yield amazing results in the field of compliance.
[256] Book: Targeted Sanctions: The Impacts and Effectiveness of United Nations Action. Edited by Thomas J. Biersteker, Sue E. Eckhert, and Marco Tourinho. Cambridge University Press, March 2016. <doi.org>
Page 386:
Appendix 4 – Targeted Sanctions Consortium (TSC) Participants …
The project has been co-directed by Professor Thomas J. Biersteker, Gasteyger Professor of International Security and Director of the Programme for the Study of International Governance at the Graduate Institute, Geneva … and the Honorable Sue E. Eckert, Senior Fellow, Watson Institute for International and Public Affairs, Brown University….
[257] Report: “The Effectiveness of United Nations Targeted Sanctions.” Targeted Sanctions Consortium, November 2013. <repository.graduateinstitute.ch>
Page 1: “The Graduate Institute Geneva … Programme for the Study of International Governance … Watson Institute for International Studies: Brown University”
Page 3:
The TSC [Targeted Sanctions Consortium] is composed of more than fifty scholars and policy practitioners worldwide who are conducting the first comprehensive, systematic, and comparative assessment of the design and effectiveness of UN targeted sanctions over the past twenty-two years. The purpose of this policy-engaged research is both to enhance the quality of public knowledge and discourse about this important instrument of global governance and to contribute to improved policy analysis and use of targeted sanctions. The TSC was first convened in 2009 and has been engaged in research and periodic policy briefings since that time. …
The objective of the TSC from the outset has been to develop a sound empirical basis for evaluating the design and effectiveness of UN targeted sanctions.
Page 9: “During the research phase, research teams … conducted original research, utilizing a common research framework for analyses of all 22 UN targeted sanctions regimes imposed since 1990….”
Page 18:
Sanctions are prohibition norms that create powerful incentives for evasion, and there is evidence of evasion or coping strategies in over 90% of the cases of UN targeted sanctions. Targets of sanctions commonly devise means of evading the measures, from employing black market contractors (who charge a premium for their services) to using safe havens, disguises of identity, or front companies. At the same time, targets are likely to explore a variety of adjustment strategies to cope with the impacts of the sanctions. Stockpiling of critical materials is likely if sanctions are threatened in advance, while diverting trade through third countries, diversifying investment partners, and developing new technologies or industries that may be made economic the longer the sanctions remain in place.
[258] Report: “UN Sanctions.” Security Council Report, November 25, 2013. <www.securitycouncilreport.org>
Page 12:
In some ways, sanctions busting seems to have much in common with what is generally understood as transnational organised crime—relying on methods such as the use of front companies, black-market trading, re-flagging and renumbering of cargo ships and cross-border smuggling. On an individual level, possible tactics include relying on personal networks, assuming a false identity or relocating to a state with a government that is allied, corrupt or lacks enforcement capacity.
[259] Report: “The Effectiveness of United Nations Targeted Sanctions.” Targeted Sanctions Consortium, November 2013. <repository.graduateinstitute.ch>
Pages 12–13:
In broad terms, sanctions can have three principal and fundamentally different purposes: to coerce a change in target’s behavior; to constrain a target from engaging in a proscribed activity; or to signal and/or stigmatize a target or others about the violation of an international norm.5 …
Sanctions that attempt to coerce seek to make targets fulfill (in part or completely) specific demands made in a UN Security Council Resolution. Constraining sanctions attempt to deny a target access to essential resources needed to engage in a proscribed activity (e.g. financing, technical knowledge, material), raising its costs or forcing it to change its strategy. Signaling and stigmatizing occurs when the deviation from an international norm is clearly articulated and acknowledged by the Security Council and the broader international community. These different purposes may be directed simultaneously to more than one audience, aiming for example at a rebel faction, as well as its key supporters, as well as to domestic constituencies in sanctions sending states.
Page 21:
[W]e find that targeted sanctions are much more effective in constraining or signaling a target than they are in coercing a change in target behavior. They are effective in coercing a change in behavior only 10% of the time. By contrast, they are effective in constraining target behavior (increasing costs and inducing changes in strategy) almost three times as frequently, or 28% of the time. They are nearly as effective in sending signals to target audiences, which they do 27% of the time. Table 2.1 displays the frequency distribution and associated percentages of each category of purpose of targeted sanctions.
![[Sanctions Effectiveness Distribution]](http://www.justfacts.com/images/unitednations/sanctions-full.png)
[260] “Charter of the United Nations.” Accessed November 1, 2018 at <www.un.org>
Article 2 …
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. …
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. …
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
[261] Resolution 1556. United Nations Security Council, July 30, 2004. <unscr.com>
The Security Council …
Reiterating its grave concern at the ongoing humanitarian crisis and widespread human rights violations, including continued attacks on civilians that are placing the lives of hundreds of thousands at risk,
Condemning all acts of violence and violations of human rights and international humanitarian law by all parties to the crisis, in particular by the Janjaweed, including indiscriminate attacks on civilians, rapes, forced displacements, and acts of violence especially those with an ethnic dimension, and expressing its utmost concern at the consequences of the conflict in Darfur on the civilian population, including women, children, internally displaced persons, and refugees,
Recalling in this regard that the Government of Sudan bears the primary responsibility to respect human rights while maintaining law and order and protecting its population within its territory and that all parties are obliged to respect international humanitarian law,
Urging all the parties to take the necessary steps to prevent and put an end to violations of human rights and international humanitarian law and underlining that there will be no impunity for violators,
Welcoming the commitment by the Government of Sudan to investigate the atrocities and prosecute those responsible …
Acting under Chapter VII of the Charter of the United Nations …
Decides that all states shall take the necessary measures to prevent the sale or supply, to all non-governmental entities and individuals, including the Janjaweed, operating in the states of North Darfur, South Darfur and West Darfur, by their nationals or from their territories or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories;
Decides that all states shall take the necessary measures to prevent any provision to the non-governmental entities and individuals identified in paragraph 7 operating in the states of North Darfur, South Darfur and West Darfur by their nationals or from their territories of technical training or assistance related to the provision, manufacture, maintenance or use of the items listed in paragraph 7 above….
[262] Resolution 1591. United Nations Security Council, March 29, 2005. <unscr.com>
The Security Council …
Strongly condemning all violations of human rights and international humanitarian law in the Darfur region, in particular the continuation of violence against civilians and sexual violence against women and girls since the adoption of resolution 1574 (2004), urging all parties to take necessary steps to prevent further violations, and expressing its determination to ensure that those responsible for all such violations are identified and brought to justice without delay …
Acting under Chapter VII of the Charter of the United Nations … condemns … the failure of the Government of Sudan to disarm Janjaweed militiamen and apprehend and bring to justice Janajaweed leaders and their associates who have carried out human rights and international humanitarian law violations and other atrocities …
Decides, in light of the failure of all parties to the conflict in Darfur to fulfil their commitments …
(c) that those individuals … who … commit violations of international humanitarian or human rights law or other atrocities … shall be subject to the measures identified in subparagraphs (d) and (e) below …
(d) that all States shall take the necessary measures to prevent entry into or transit through their territories of all persons as designated by the Committee pursuant to subparagraph (c) above …
(e) that all States shall freeze all funds, financial assets and economic resources … that are owned or controlled, directly or indirectly, by the persons designated by the Committee pursuant to subparagraph (c) above …
Reaffirms the measures imposed by … resolution 1556 (2004), and decides that these measures shall immediately upon adoption of this resolution, also apply to all the parties to the N’djamena Ceasefire Agreement and any other belligerents in the states of North Darfur, South Darfur and West Darfur….
[263] Article: “Sudan.” By Robert O. Collins and others. Encyclopedia Britannica, January 25, 1999. Last updated 2/26/19. <www.britannica.com>
“The government of Sudan and rebels eventually signed an agreement in January 2005, known as the Comprehensive Peace Agreement (CPA), finally ending the country’s long-running civil war.”
[264] Resolution 1970. United Nations Security Council, February 26, 2011. <undocs.org>
The Security Council …
Deploring the gross and systematic violation of human rights …
Recalling the Libyan authorities’ responsibility to protect its population …
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41 …
Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya … of arms and related material of all types, …
Decides that the Libyan Arab Jamahiriya shall cease the export of all arms and related material, …
Decides to authorize all Member States to, and that all Member States shall, upon discovery of items prohibited … seize and dispose … items the supply, sale, transfer or export of which is prohibited by … this resolution; …
Decides that all Member States shall take the necessary measures to prevent the entry into or transit through their territories of individuals listed in Annex I of this resolution …
Decides that all Member States shall freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities listed in annex II of this resolution….
[265] Resolution 1973. United Nations Security Council, March 17, 2011. <undocs.org>
The Security Council …
Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians, condemning the gross and systematic violation of human rights, …
Deploring the continuing use of mercenaries by the Libyan authorities …
Acting under Chapter VII of the Charter of the United Nations …
Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi….
[266] Article: “Libya Crisis ‘Festering,’ UN Envoy Warns, Urging Decisive Action to Build National Unity.” United Nations UN News, March 4, 2015. <news.un.org>
“The latest wave of violence has further rattled the war-weary nation, in conflict since the beginning of its civil war in 2011, which resulted in the ouster of late Libyan leader Muammar Gaddafi.”
[267] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Chapter I: Purposes and Principles
Article 1
The purposes of the United Nations are:
1 To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace …
Article 2 …
1 The Organization is based on the principle of the sovereign equality of all its Members. …
5 All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventative or enforcement action. …
7 Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
Chapter V: The Security Council …
Article 24 …
1 In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
2 In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. …
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. …
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
[268] “Charter of the United Nations.” Accessed October 23, 2018 at <www.un.org>
Article 43
1 All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.
2 Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.
3 The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.
[269] Webpage: “Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Chapter VII).” United Nations Security Council. Accessed December 3, 2018 at <www.un.org>
Article 43 – Member States’ Obligation to Offer Assistance in the Maintenance of International Peace and Security
The obligation for United Nations members to undertake to make armed forces available to the Security Council, render assistance and accord relief as necessary for the maintenance of international peace and security exists only in accordance with one or more special agreements. Nevertheless, such agreements were never concluded and no State is obligated to make troops available to the Council in a particular situation. Consequently, the United Nations has to enter into negotiations every time a situation calls for the establishment of an operation.
[270] Textbook: Akehurst’s Modern Introduction to International Law (8th edition). By Alexander Orakhelashvili. Routledge, 2019.
Page 514:
Article 42 provides that, if Article 41 measures “would be inadequate or have proved to be inadequate,” the Council “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of Members of the United Nations.” In practice, the Security Council tends to refer only to Chapter VII as such and not to specific Articles.
The initially envisaged arrangement was made under Article 43, which provided that all members of the UN would make armed forces available to the Council, and conclude respective agreements with it. This never materialised, and the Military Staff Committee established under Article 47 does not yield any real authority in the Chapter VII affairs. Nevertheless, Article 43 describes a manner in which the Security Council may act, but it does not prevent the Security Council from choosing an alternative procedure. The alternative worked out in practice has been that the Security Council can authorise States to use force, if the conditions of Articles 39 and 42 are met.
[271] Paper: “Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing.’ ” By Niels Blokker. European Journal of International Law, 2000. Pages 541–568. <www.ejil.org>
Pages 542–543:
This article will focus on … the widespread use made of resolutions of the Security Council which authorize member states to use force in particular cases. These resolutions have become the primary instrument through which the Security Council has acted if the use of military force was considered necessary. This practice is likely to continue in the future.
… It is true that under Article 42, a power is given to the Security Council to take enforcement action. However, as can be concluded from the travaux preparatoires and from the Charter system, the only explicit power given to the Council under this provision is a power to undertake such action by its own forces to be made available by the members in accordance with Article 43.2 When no such forces were made available to the Council, the question arose whether this gap could be filled by implying powers such as the power to use forces that are not its own and therefore escape its full control.
Such delegated enforcement action has been considered a “half-way house” between the unilateral recourse to force by states and collective security as laid down in the Charter.3
[272] Webpage: “What is the Security Council?” United Nations Security Council. Accessed November 1, 2018 at <www.un.org>
When a dispute leads to hostilities, the Council’s primary concern is to bring them to an end as soon as possible. In that case, the Council may:
• issue ceasefire directives that can help prevent an escalation of the conflict;
• dispatch military observers or a peacekeeping force to help reduce tensions, separate opposing forces and establish a calm in which peaceful settlements may be sought.
[273] Textbook: Akehurst’s Modern Introduction to International Law (8th edition). By Alexander Orakhelashvili. Routledge, 2019.
Page 504: “The function of the UN in the area of peace and security can be classified into three broad categories. … The third category deals with the UN peacekeeping operations which have no explicit legal bases in the Charter, but have developed in practice.”
Page 529:
UN peacekeeping operations83 have traditionally been distinguished from “enforcement action” under Chapter VII, because they have always been based upon the consent of the conflicting parties to the deployment of peacekeeping troops and military observers under the auspices of the UN. The distinction between the enforcement action and peacekeeping is, however, not that strict. Peacekeeping operations can also be arranged and undertaken within the enforcement context of Chapter VII.
[274] Paper: “The United States and the United Nations in the Persian Gulf War: New Order or Disorder.” By John Quigley. Cornell International Law Journal, 1992. Pages 1–49. <scholarship.law.cornell.edu>
Page 25: “Although the Charter basis for peace-keeping operations is unclear,145 they violate the rights of no state since they are taken with the consent of the host state and are directed against no state.146”
[275] Webpage: “Principles of Peacekeeping.” United Nations, Department of Peacekeeping Operations. Accessed November 6, 2018 at <peacekeeping.un.org>
There are three basic principles that continue to set UN peacekeeping operations apart as a tool for maintaining international peace and security. …
1. Consent of the Parties
UN peacekeeping operations are deployed with the consent of the main parties to the conflict. … In the absence of such consent, a peacekeeping operation risks becoming a party to the conflict; and being drawn towards enforcement action, and away from its fundamental role of keeping the peace. …
2. Impartiality …
3. Non-Use of Force Except in Self-Defence and Defence of the Mandate
UN peacekeeping operations are not an enforcement tool. However, they may use force at the tactical level, with the authorization of the Security Council, if acting in self-defence and defence of the mandate.
In certain volatile situations, the Security Council has given UN peacekeeping operations “robust” mandates authorizing them to “use all necessary means” to deter forceful attempts to disrupt the political process, protect civilians under imminent threat of physical attack, and/or assist the national authorities in maintaining law and order.
Although on the ground they may sometimes appear similar, robust peacekeeping should not be confused with peace enforcement, as envisaged under Chapter VII of the United Nations Charter.
• Robust peacekeeping involves the use of force at the tactical level with the authorization of the Security Council and consent of the host nation and/or the main parties to the conflict.
• By contrast, peace enforcement does not require the consent of the main parties and may involve the use of military force at the strategic or international level, which is normally prohibited for Member States under Article 2(4) of the Charter, unless authorized by the Security Council.
A UN peacekeeping operation should only use force as a measure of last resort.
[276] Webpage: “Role of the Security Council.” United Nations, Department of Peacekeeping Operations. Accessed November 5, 2018 at <peacekeeping.un.org>
It is for the Security Council to determine when and where a UN Peacekeeping operation should be deployed. … The Security Council establishes a peacekeeping operation by adopting a Security Council resolution. The resolution sets out that mission’s mandate and size. The Security Council monitors the work of UN Peacekeeping operations on an ongoing basis, including through periodic reports from the Secretary-General and by holding dedicated Security Council sessions to discuss the work of specific operations.
The Security Council can vote to extend, amend or end mission mandates as it deems appropriate.
[277] “Charter of the United Nations.” Accessed November 2, 2018 at <www.un.org>
Article 27
1 Each member of the Security Council shall have one vote.
2 Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
3 Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.
[278] Webpage: “Current Members.” United Nations Security Council. Accessed January 21, 2019 at <www.un.org>
The Council is composed of 15 Members:
• five permanent members: China, France, Russian Federation, the United Kingdom, and the United States,
• and ten non-permanent members elected for two-year terms by the General Assembly….
[279] Webpage: “Military.” United Nations, Department of Peacekeeping Operations. Accessed November 6, 2018 at <peacekeeping.un.org>
All military personnel working under the Blue Helmet are first and foremost members of their own national armies and are then seconded to work under the command and control of the UN. …
It takes considerable time to deploy troops and we are often asked why we do not have a standing reserve.
The UN can only deploy military personnel when there is a UN Security Council resolution authorizing them to do so. The Security Council will say how many military personnel are required, and UN Headquarters will liaise with the Member States to identify personnel and deploy them. This can take time—often more than six months from the date of the resolution to get boots and equipment on the ground.
[280] Webpage: “Forming a New Operation.” United Nations, Department of Peacekeeping Operations. Accessed November 5, 2018 at <peacekeeping.un.org>
“The UN has no standing army or police force of its own, and Member States are asked to contribute military and police personnel required for each operation. Peacekeepers wear their countries’ uniform and are identified as UN Peacekeepers only by a UN blue helmet or beret and a badge.”
[281] Paper: “UN Peacekeeping in the Post-Cold War Era.” By Muzaffer Ercan Yilmaz. International Journal on World Peace, June 2005. Pages 13–28. <www.jstor.org>
Pages 15–16:
Until the collapse of communism in the late 1980s, there were only 13 UN peacekeeping operations, most of which concerned conflicts that had arisen after European de-colonization. Many other issues, particularly East–West conflicts, on the other hand, were dealt with outside the UN due to the lack of cooperation between the United States and the Soviet Union.
As they evolved from the 1950s to the 1980s, the traditional tasks of UN peacekeeping operations included interposing between conflicting parties and monitoring cease-fires. …
The principle of non-force was especially central to UN peacekeeping for many years, In fact, more than half of the UN peacekeeping operations before 1988 had consisted only of unarmed military observers and no counting situational exceptions, force was used only in cases of self-defense (Liu, 1992).
Pages 16–17: “From 1948 to 1978, only a total of 13 peacekeeping forces were set up, and in the following ten-year period, no new forces were established. … For instance, from 1945 to 1990 the permanent members of the Security Council cast the following number of vetoes: China, 3; France, 18; United Kingdom, 30; US, 60; and the Soviet Union, 114.”
[282] Webpage: “Peace and Security.” United Nations. Accessed November 6, 2018 at <www.un.org>
“Born at the time when Cold War rivalries frequently paralyzed the Security Council, UN peacekeeping goals were primarily limited to maintaining ceasefires and stabilizing situations on the ground, so that efforts could be made at the political level to resolve the conflict by peaceful means.”
[283] “Report of the Panel on United Nations Peace Operations.” United Nations General Assembly, August 21, 2000. <undocs.org>
Page 3:
Until the end of the cold war, United Nations peacekeeping operations mostly had traditional ceasefire-monitoring mandates and no direct peacebuilding responsibilities. The “entry strategy” or sequence of events and decisions leading to United Nations deployment was straightforward: war, ceasefire, invitation to monitor ceasefire compliance and deployment of military observers or units to do so, while efforts continued for a political settlement.
[284] Paper: “From Cold War to a System of Peacekeeping Operations: The Discussions on Peacekeeping Operations in the UN During the 1980s Up to 1992.” By Chen Kertcher. Journal of Contemporary History, July 2012. <www.jstor.org>
Page 614:
During the 1980s the organization was relatively negligible in world politics. In that decade the Security Council was able to decide on approximately 18 resolutions a year, most of them dealing with Israel. …
The grim international horizon which affected the UN’s ability to influence world security during the 1980s was even harsher concerning peacekeeping operations. The Soviet bloc refused to cooperate with peacekeeping operations and the USSR had a large debt to the organization. … During most of the 1980s there were only five UN peacekeeping operations in the world and their contribution to solving conflicts was in dispute.
Page 615: “[I]n the autobiography of the retired UN Under-Secretary-General for Special Political Affairs Brian Urquhart … he ‘felt that only an invasion from outer space would be a sufficiently non-controversial disaster to bring the Council back to the great power unanimity that the UN Charter required in order to make the UN effective.’ ”
[285] Webpage: “UNTSO Fact Sheet.” United Nations, Department of Peacekeeping Operations. Accessed December 4, 2018 at <peacekeeping.un.org>
United Nations Truce Supervision Organization
Location: Middle East
Headquarters: Government House, Jerusalem
Established: May 1948 …
Helping to Bring Stability in the Middle East
Set up in May 1948, UNTSO was the first ever peacekeeping operation established by the United Nations. Since then, UNTSO military observers have remained in the Middle East to monitor ceasefires, supervise armistice agreements, prevent isolated incidents from escalating and assist other UN peacekeeping operations in the region to fulfil their respective mandates. …
Deployed Number of Personnel as of September 2018
(Civilian data as of May 2018)
376 Total personnel
222 Civilians
154 Experts on Mission
[286] Webpage: “UNMOGIP Fact Sheet.” United Nations, Department of Peacekeeping Operations. Accessed December 4, 2018 at <peacekeeping.un.org>
United Nations Military Observer Group in India and Pakistan
Location: India and Pakistan
Headquarters: (November to April) and Srinagar (May to October)
Established: January 1949 …
Observing the Ceasefire in Jammu and Kashmir
The first group of United Nations military observers arrived in the mission area on 24 January of 1949 to supervise the ceasefire between India and Pakistan in the State of Jammu and Kashmir. These observers, under the command of the Military Adviser appointed by the UN Secretary-General, formed the nucleus of the United Nations Military Observer Group in India and Pakistan (UNMOGIP).
Following renewed hostilities of 1971, UNMOGIP has remained in the area to observe developments pertaining to the strict observance of the ceasefire of 17 December 1971 and report thereon to the Secretary-General. …
Deployed Number of Personnel as of October 2018
(Civilian data as of May 2018)
114 Total personnel
72 Civilians
42 Experts on Mission
[287] Webpage: “Our History.” United Nations, Department of Peacekeeping Operations. Accessed November 5, 2018 at <peacekeeping.un.org>
“After the Cold War ended, there was a rapid increase in the number of peacekeeping operations. With a new consensus and a common sense of purpose, the Security Council authorized a total of 20 new operations between 1989 and 1994, raising the number of peacekeepers from 11,000 to 75,000.”
[288] Paper: “UN Peacekeeping in the Post-Cold War Era.” By Muzaffer Ercan Yilmaz. International Journal on World Peace, June 2005. Pages 13–28. <www.jstor.org>
Page 18:
Apart from the numerical increase in peacekeeping forces, since the end of the Cold War UN peacekeeping operations have also involved a great number of activities that have been either totally new or implemented on a much larger scale than before, such as:
• Monitoring and even running local elections, as in Namibia, Angola, Mozambique, the Congo, and East Timor.
• Protecting certain areas as “safe areas” from adversary attacks so that people feel secure at least in these areas.
• Guarding the weapons surrendered by or taken from the parties in conflict.
• Ensuring the smooth delivery of humanitarian relief supplies during an ongoing conflict, as typically the case in Somalia, Rwanda, Liberia, and Sudan.
• Assisting in the reconstruction of state function in war-torn societies, as in Bosnia Herzegovina, El Salvador, the Congo, East Timor, and Liberia (Eide, 2001; Berdal, 2003).
[289] Webpage: “Our History.” United Nations, Department of Peacekeeping Operations. Accessed November 5, 2018 at <peacekeeping.un.org>
With the end of the Cold War, the strategic context for UN Peacekeeping changed dramatically.
The UN shifted and expanded its field operations from “traditional” missions involving generally observational tasks performed by military personnel to complex “multidimensional” enterprises. These multidimensional missions were designed to ensure the implementation of comprehensive peace agreements and assist in laying the foundations for sustainable peace. …
UN Peacekeepers were now increasingly asked to undertake a wide variety of complex tasks, from helping to build sustainable institutions of governance, to human rights monitoring, to security sector reform, to the disarmament, demobilization and reintegration of former combatants. …
The general success of earlier missions raised expectations for UN Peacekeeping beyond its capacity to deliver. This was especially true in the mid 1990’s in situations when the Security Council was not able to authorize sufficiently robust mandates or provide adequate resources.
[290] Webpage: “Data.” United Nations, Department of Peacekeeping Operations. Accessed July 10, 2019 at <peacekeeping.un.org>
Global Peacekeeping Data (as of 31 May 2019)
Total number of personnel serving in 14 peacekeeping operations: 100,945
Countries contributing uniformed personnel: 122
71 Peacekeeping operations since 1948
14 Current peacekeeping operations
86,679 Uniformed personnel
73,251 Contingent Troops
1,240 Experts on Mission
10,178 Police
2,010 Staff Officers
12,932 Civilian Personnel
1,334 UN Volunteers
* Civilian personnel as of May 2018.
[291] Report: “Cost Estimate for Hypothetical U.S. Operation Exceeds Actual Costs for Comparable UN Operation.” U.S. Government Accountability Office, February 2018. <www.gao.gov>
Page 2 (of PDF):
Based on United Nations (UN) and Departments of Defense (DOD) and State (State) data, GAO estimates that it would cost the United States more than twice as much as it would cost the UN to implement a hypothetical operation comparable to the UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA). MINUSCA cost the UN approximately $2.4 billion for the first 39 months of the operation. GAO estimates that a hypothetical U.S. peacekeeping operation in the Central African Republic of roughly the same size and duration would cost nearly $5.7 billion—almost eight times more than the $700 million the United States contributed to MINUSCA over the same time period.
Page 22: “Because the results of our cost comparison are based on a single case study, they cannot be generalized to all UN peacekeeping operations.”
[292] Article: “Rwanda Genocide of 1994.” By Amy McKenna. Encyclopedia Britannica, March 25, 2011. <www.britannica.com>
Rwanda genocide of 1994, planned campaign of mass murder in Rwanda that occurred over the course of some 100 days in April–July 1994. The genocide was conceived by extremist elements of Rwanda’s majority Hutu population who planned to kill the minority Tutsi population and anyone who opposed those genocidal intentions. It is estimated that some 200,000 Hutu, spurred on by propaganda from various media outlets, participated in the genocide. More than 800,000 civilians—primarily Tutsi, but also moderate Hutu—were killed during the campaign. As many as 2,000,000 Rwandans fled the country during or immediately after the genocide. …
On the evening of April 6, 1994, a plane carrying [Rwandan President] Habyarimana and Burundian Pres. Cyprien Ntaryamira was shot down over Kigali; the ensuing crash killed everyone on board. … The organized killing of Tutsi and moderate Hutu began that night, led by Hutu extremists. Prime Minister Agathe Uwilingiyimana, a moderate Hutu, was assassinated the next day, as were 10 Belgian soldiers (part of a United Nations peacekeeping force already in the country) who were guarding her. Her murder was part of a campaign to eliminate moderate Hutu or Tutsi politicians, with the goal of creating a political vacuum and thus allowing for the formation of an interim government of Hutu extremists assembled by Col. Théoneste Bagosora, who later would be identified as having played a significant role in organizing the genocide. The speaker of the National Development Council (Rwanda’s legislative body at the time), Theodore Sindikubwabo, became interim president on April 8, and the interim government was inaugurated on April 9.
The next few months saw a wave of anarchy and mass killings, in which the army and Hutu militia groups known as the Interahamwe (“Those Who Attack Together”) and Impuzamugambi (“Those Who Have the Same Goal”) played a central role. Radio broadcasts further fueled the genocide by encouraging Hutu civilians to kill their Tutsi neighbours, who were referred to as “cockroaches” who needed to be exterminated. It is estimated that some 200,000 Hutu participated in the genocide, although some were unwilling and consequently were forced to do so by the army and Hutu militia groups.
[293] Paper: “Explaining the 1994 Genocide in Rwanda.” By Helen M. Hintjens. Journal of Modern African Studies, 1999. Pages 241–284. <pdfs.semanticscholar.org>
Page 244:
[T]he genocide took place under the aegis of the Rwandan state, and Rwandan subjects and citizens were the main actors in the genocide (Mamdani 1996). A range of public and private institutions were responsible for the critical task of planning the genocide in advance, and for ensuring its subsequent implementation through the participation of most Rwandan people, resulting in the victimisation of a significant minority.
Pages 246–247:
The 1994 killings were a genocide precisely because they were planned well before April 1994, with predictions of the mass killings that were to take place being made months, and even years, before they actually occurred. Certainly, by January 1994, it was clear to the UN’s special envoy for human rights that death lists were being drawn up in preparation for the killing of Batutsi, and the elimination of Bahutu opposition politicians and human rights activists (FIDH 1993: 4; Reyntjens 1995: 59). From 1992 onwards, members of “Hutu power” militias were being trained in techniques of hunt and destroy operations, rather than in open armed combat. The regime in power in Rwanda during the early 1990s, along with its regional and international allies, was fully responsible for the genocide of 1994.
[294] Resolution 872: “Rwanda.” United Nations Security Council, October 5, 1993. <documents-dds-ny.un.org>
The Security Council … resolved that the United Nations should, at the request of the parties and under peaceful conditions with the full cooperation of all the parties, make its full contribution to the implementation of the Arusha Peace Agreement … decides to establish a peace-keeping operation under the name “United Nations Assistance Mission for Rwanda” (UNAMIR) … decides that … UNAMIR shall have the following mandate: …
(b) to monitor observance of the cease-fire arrangement….
[295] “Report of the Independent Inquiry Into the Actions of the United Nations During the 1994 Genocide in Rwanda.” United Nations Security Council, December 15, 1999. <www.un.org>
Page 9:
On 23 November 1993, Dallaire sent Headquarters a draft set of Rules of Engagement … specifically allowing the mission to act, and even to use force, in response to crimes against humanity and other abuses (“There may also be ethnically or politically motivated criminal acts committed during this mandate which will morally and legally require UNAMIR to use all available means to halt them. …) Headquarters never responded formally to the Force Commander’s request for approval.
Page 11: “The cable from Headquarters ended with the pointed statement that ‘the overriding consideration is the need to avoid entering into a course of action that might lead to the use of force and unanticipated repercussions.’ ”
Page 35: “When the genocide began, the weaknesses of UNAMIR’s mandate became devastatingly clear. … The mission was under rules of engagement not to use force except in self-defence. … Civilians were drawn to UNAMIR posts but the mission proved incapable of sustaining protection of them.”
Page 45:
The role of UNAMIR in the protection of civilians during the genocide is one of the most debated and painful issues of this period. Considerable efforts were made by members of UNAMIR, sometimes at risk to themselves, to provide protection to civilians at risk during the massacres. However, there do not seem to have been conscious and consistent orders down the chain of command on this issue.
[296] “Report of the Independent Inquiry Into the Actions of the United Nations During the 1994 Genocide in Rwanda.” United Nations Security Council, December 15, 1999. <www.un.org>
Page 9:
On 23 November 1993, Dallaire sent Headquarters a draft set of Rules of Engagement … specifically allowing the mission to act, and even to use force, in response to crimes against humanity and other abuses (“There may also be ethnically or politically motivated criminal acts committed during this mandate which will morally and legally require UNAMIR [United Nations Assistance Mission for Rwanda] to use all available means to halt them. …) Headquarters never responded formally to the Force Commander’s request for approval.
Page 35: “When the genocide began, the weaknesses of UNAMIR’s mandate became devastatingly clear. … The mission was under rules of engagement not to use force except in self-defence.”
[297] “Report of the Independent Inquiry Into the Actions of the United Nations During the 1994 Genocide in Rwanda.” United Nations Security Council, December 15, 1999. <www.un.org>
Page 3:
The failure by the United Nations to prevent, and subsequently, to stop the genocide in Rwanda was a failure by the United Nations system as a whole. The fundamental failure was the lack of resources and political commitment devoted to developments in Rwanda and to the United Nations presence there. There was a persistent lack of political will by Member States to act, or to act with enough assertiveness. This lack of political will affected the response by the Secretariat and decision-making by the Security Council, but was also evident in the recurrent difficulties to get the necessary troops for the United Nations Assistance Mission for Rwanda (UNAMIR). Finally, although UNAMIR suffered from a chronic lack of resources and political priority, it must also be said that serious mistake were made with those resources which were at the disposal of the United Nations.
Page 9:
On 23 November 1993, Dallaire sent Headquarters a draft set of Rules of Engagement … specifically allowing the mission to act, and even to use force, in response to crimes against humanity and other abuses (“There may also be ethnically or politically motivated criminal acts committed during this mandate which will morally and legally require UNAMIR to use all available means to halt them. …) Headquarters never responded formally to the Force Commander’s request for approval.
Page 11: “The cable from Headquarters ended with the pointed statement that ‘the overriding consideration is the need to avoid entering into a course of action that might lead to the use of force and unanticipated repercussions.’ ”
Page 33:
[I]t is incomprehensible to the Inquiry that not more was done to follow up on the information provided by the informant. …
… Information that received by a United Nations mission that plans are being made to exterminate any group of people requires an immediate and determined response, in this case certainly action more forceful than the meetings which were held….
The information on the existence of arms caches was also serious. While the quantity of arms in that particular cache … was not a magnitude or a nature to determine the outcome of the genocide later that year, the instructions from New York certainly gave the signal to the … extremists that UNAMIR was not going to take assertive action to deal with such caches.
Page 34:
The concern expressed by the leadership of UNAMIR throughout January and February about the consequences of the arms distribution is very clear. Given that Headquarters had determined that raiding the arms caches … was not within the scope of the mandate, the Inquiry feels that this issue should have been raised with the Security Council as a fundamental weakness in the mandate of the mission….
Page 35: “When the genocide began, the weaknesses of UNAMIR’s mandate became devastatingly clear. … The mission was under rules of engagement not to use force except in self-defence. … Civilians were drawn to UNAMIR posts but the mission proved incapable of sustaining protection of them.”
Page 45:
The role of UNAMIR in the protection of civilians during the genocide is one of the most debated and painful issues of this period. Considerable efforts were made by members of UNAMIR, sometimes at risk to themselves, to provide protection to civilians at risk during the massacres. However, there do not seem to have been conscious and consistent orders down the chain of command on this issue. During the early days of the genocide, thousands of civilians congregated in places where UN troops were stationed…. And when UNAMIR later came to withdraw from areas under its protection, civilians were placed at risk. Tragically, there is evidence that in certain instances, the trust placed in UNAMIR by civilians left them in a situation of greater risk when the UN troops withdrew than they would have been otherwise.
Page 50:
The fact that Rwanda, represented by the Habyarimana government, was a member of the Security Council from January 1994 was a problem in the Security Council’s handling of the Rwanda issue. In effect, one of the parties to the Arusha Peace Agreement had full access to the discussions of the Council and had the opportunity to try to influence decision-making in the Council on its own behalf. That a party to a conflict on the agenda of the Council, which was the host country of a peacekeeping operation, later subject to an arms embargo imposed by the body of which it was a member, shows the damaging effect of Rwanda’s membership on the Council.
The damage was evident in the actions of the Rwandan representatives on the Security Council during this period. Both Secretariat officials and representatives of Members of the Council at the time have told the Inquiry that the Rwandan presence hampered the quality of the information that the Secretariat felt it possible to provide to the Council and the nature of the discussion in that body.
[298] Webpage: “The ICTR in Brief.” United Nations, International Residue Mechanism for Criminal Tribunals. Accessed December 9, 2018 at <unictr.irmct.org>
Since the ICTR’s [International Criminal Tribunal for Rwanda’s] closure on 31 December 2015, the Mechanism maintains this website as part of its mission to preserve and promote the legacy of the UN International Criminal Tribunals. …
For the first time in history, an international tribunal—the ICTR—delivered verdicts against persons responsible for committing genocide. …
62 Sentenced …
The United Nations Security Council established the International Criminal Tribunal for Rwanda to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring States, between 1 January 1994 and 31 December 1994.” …
Since it opened in 1995, the Tribunal has indicted 93 individuals whom it considered responsible for serious violations of international humanitarian law committed in Rwanda in 1994. Those indicted include high-ranking military and government officials, politicians, businessmen, as well as religious, militia, and media leaders.
[299] Webpage: “Enforcement of Sentences.” United Nations International Residual Mechanism for Criminal Tribunals. Accessed June 10, 2019 at <www.irmct.org>
Individuals convicted of crimes by the ICTR [International Criminal Tribunal for Rwanda], ICTY [International Criminal Tribunal for the Former Yugoslavia], or the Mechanism do not serve their sentences in the United Nations detention facilities in Arusha or The Hague, because these facilities are not penitentiaries. Sentences are served in UN Member States that have concluded enforcement agreements with the United Nations for sentences pronounced by the ICTR, the ICTY or the Mechanism.
[300] Entry: “Bosnian Conflict.” By John R. Lampe. Encyclopedia Britannica, March 24, 2009. <www.britannica.com>
“The United Nations (UN) refused to intervene in the Bosnian conflict, but UN Protection Force (UNPROFOR) troops did facilitate the delivery of humanitarian aid. The organization later extended its role to the protection of a number of UN-declared ‘safe areas.’ ”
[301] Paper: “The Use of Force in a United Nations Peace-Keeping Operation: Lessons Learnt from the Safe Areas Mandate.” By Yasushi Akashi. Fordham International Law Journal, 1995. Pages 312–323. <ir.lawnet.fordham.edu>
Page 2 (of PDF): “The United Nations Protection Force for the former Yugoslavia (‘UNPROFOR’ or ‘Force’) was established to deter attacks on the safe areas with the use of force, to promote the withdrawal of non-Government forces from the area, and to safeguard the delivery of humanitarian aid.”
[302] Entry: “Bosnian Conflict.” By John R. Lampe. Encyclopedia Britannica, March 24, 2009. <www.britannica.com>
The United Nations (UN) refused to intervene in the Bosnian conflict, but UN Protection Force (UNPROFOR) troops did facilitate the delivery of humanitarian aid. The organization later extended its role to the protection of a number of UN-declared “safe areas.” However, the UN failed to protect the safe area of Srebrenica in July 1995, when Bosnian Serb forces perpetrated the massacre of more than 7,000 Bosniak men.
[303] Entry: “Srebrenica Massacre.” By R. Jeffrey Smith. Encyclopedia Britannica, July 7, 2010. Last updated 11/22/17. <www.britannica.com>
Srebrenica massacre, slaying of more than 7,000 Bosniak (Bosnian Muslim) boys and men, perpetrated by Bosnian Serb forces in Srebrenica, a town in eastern Bosnia and Herzegovina, in July 1995. In addition to the killings, more than 20,000 civilians were expelled from the area—a process known as ethnic cleansing. …
The International Criminal Tribunal for the Former Yugoslavia … pinned principal responsibility on senior officers in the Bosnian Serb army. But the United Nations (UN) and its Western supporters also accepted a portion of the blame for having failed to protect the Bosniak men, women, and children in Srebrenica, which in 1993 the UN Security Council had formally designated a “safe area.” In a critical internal review in 1999, UN Secretary-General Kofi Annan wrote, “Through error, misjudgment and an inability to recognize the scope of the evil confronting us, we failed to do our part to help save the people of Srebrenica from the [Bosnian] Serb campaign of mass murder.” …
… Amid chaos and terror, thousands of civilians fled Srebrenica for the nearby village of Potočari, where a contingent of about 200 Dutch peacekeepers was stationed. Some of the Dutch surrendered, while others withdrew; none fired on the advancing Bosnian Serb forces. …
In July 2011 a Dutch appeals court ruled that the Netherlands was responsible for the deaths of three Bosniak men who, in July 1995 after Dutch troops forced them out of the UN compound in Potočari, had been killed by Bosnian Serbs. The court’s decision marked the first time that a country had been held liable for the actions of its peacekeeping forces operating under a UN mandate. In July 2014 the Dutch government was found liable by a Dutch court for the deaths of more than 300 Bosniak men and boys at Srebrenica, and … in June 2017 a Dutch appellate court … ruled that the Netherlands should only be held responsible for 30 percent of any financial damages awarded to the families of the slain. The court deemed that there was a 70 percent likelihood that Bosnian Serbs would have seized the refugees regardless of the actions of the Dutch peacekeepers.
[304] Paper: “The Use of Force in a United Nations Peace-Keeping Operation: Lessons Learnt from the Safe Areas Mandate.” By Yasushi Akashi. Fordham International Law Journal, 1995. Pages 312–323. <ir.lawnet.fordham.edu>
Page 317:
For failing to make a clear distinction in Resolution 836 between what UNPROFOR [United Nations Protection Force for the former Yugoslavia] was authorized to do and what it was obliged to do, the Security Council may, in some respects, have contributed to the warring parties’ failure to understand, or fully respect, the safe area concept. The Security Council may also be held partly responsible for the subsequent misconceptions that have arisen over the extent of the use of force UNPROFOR was entitled to employ in implementing its mandates.
[305] Article: “Srebrenica: Dutch State Partly Responsible for 350 Deaths.” BBC, June 27, 2017. <www.bbc.com>
Some 5,000 Bosniaks had sought shelter from Bosnian Serb soldiers in a UN base, which was being defended by the lightly-armed Dutch peacekeepers….
But after the base was overrun, the Muslim men and boys were told by the peacekeepers they would be safe and handed over to the Bosnian Serb army.
In 2014, a Dutch court found the Netherlands liable for the deaths of 350 who had been inside the base, but not those outside. …
The Dutch government has previously acknowledged its failure to protect the refugees, while the Bosnian Serbs were responsible for the killings.
[306] Webpage: “International Criminal Tribunal for the Former Yugoslavia.” United Nations, International Criminal Tribunal for the Former Yugoslavia. Accessed December 9, 2018 at <www.icty.org>
The International Criminal Tribunal for the former Yugoslavia (ICTY) was a United Nations court of law that dealt with war crimes that took place during the conflicts in the Balkans in the 1990s. During its mandate, which lasted from 1993–2017, it irreversibly changed the landscape of international humanitarian law, provided victims an opportunity to voice the horrors they witnessed and experienced, and proved that those suspected of bearing the greatest responsibility for atrocities committed during armed conflicts can be called to account.
[307] Entry: “War Crime.” By Mary Margaret Penrose. Encyclopedia Britannica, July 20, 1998. Updated 5/3/17. <www.britannica.com>
In May 1993, in an attempt to prevent further acts of “ethnic cleansing” in the conflict between states of the former Yugoslavia and to restore peace and security to the Balkan region, the United Nations Security Council established the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, commonly known as the ICTY.
[308] Webpage: “Key Figures of the Cases.” United Nations International Criminal Tribunal for the Former Yugoslavia. Updated June 2018. <www.icty.org>
89 Sentenced
5 awaiting transfer to a State to serve their sentence …
17 transferred to a State to serve their sentence …
58 have served their sentence …
9 died after trial or while serving their sentence….
[309] Webpage: “Enforcement of Sentences.” United Nations International Residual Mechanism for Criminal Tribunals. Accessed June 10, 2019 at <www.irmct.org>
Individuals convicted of crimes by the ICTR [International Criminal Tribunal for Rwanda], ICTY [International Criminal Tribunal for the Former Yugoslavia], or the Mechanism do not serve their sentences in the United Nations detention facilities in Arusha or The Hague, because these facilities are not penitentiaries. Sentences are served in UN Member States that have concluded enforcement agreements with the United Nations for sentences pronounced by the ICTR, the ICTY or the Mechanism.
[310] Webpage: “Reforming Peacekeeping.” United Nations, Department of Peacekeeping Operations. Accessed November 6, 2018 at <peacekeeping.un.org>
“In March 2000, the Secretary-General appointed the Panel on United Nations Peace Operations to assess the shortcomings of the then existing system and to make specific and realistic recommendations for change.”
[311] “Report of the Panel on United Nations Peace Operations.” United Nations General Assembly, August 21, 2000. <undocs.org>
Page 1:
The United Nations was founded, in the words of its Charter, in order “to save succeeding generations from the scourge of war.” Meeting this challenge is the most important function of the Organization, and to a very significant degree it is the yardstick with which the Organization is judged by the peoples it exists to serve. Over the last decade, the United Nations has repeatedly failed to meet the challenge, and it can do no better today. Without renewed commitment on the part of Member States, significant institutional change and increased financial support, the United Nations will not be capable of executing the critical peacekeeping and peacebuilding tasks that the Member States assign to it in coming months and years.
[312] Webpage: “ ‘Brahimi Report’: Report of the Panel on United Nations Peace Operations (2000).” United Nations. Accessed November 6, 2018 at <www.un.org>
After publishing two reports in 1999 which highlighted the United Nations failure to prevent genocide in Rwanda in 1994 and to protect the inhabitants of Srebrenica (Bosnia and Herzegovina) in 1995, Secretary-General Kofi Annan appointed the Panel on United Nations Peace Operations. He asked the Panel to assess the shortcomings of the then existing peace operations system and to make specific and realistic recommendations for change. The panel was composed of individuals experienced in conflict prevention, peacekeeping and peacebuilding.
[313] “Report of the Panel on United Nations Peace Operations.” United Nations, General Assembly, August 21, 2000. <undocs.org>
Page 10:
As a political body, the Security Council focuses on consensus-building, even though it can take decisions with less than unanimity. But the compromises required to build consensus can be made at the expense of specificity, and the resulting ambiguity can have serious consequences in the field if the mandate is then subject to varying interpretation by different elements of a peace operation, or if local actors perceive a less than complete Council commitment to peace implementation that offers encouragement to spoilers. Ambiguity may also paper over differences that emerge later, under pressure of a crisis, to prevent urgent Council action. While it acknowledges the utility of political compromise in many cases, the Panel comes down in this case on the side of clarity, especially for operations that will deploy into dangerous circumstances. Rather than send an operation into danger with unclear instructions, the Panel urges that the Council refrain from mandating such a mission.
Page 17: “The absence of detailed statistics on responses notwithstanding, many Member States are saying ‘no’ to deploying formed military units to United Nations-led peacekeeping operations, far more often than they are saying ‘yes.’ ”
Page 18:
[T]he Secretary-General finds himself in an untenable position. He is given a Security Council resolution specifying troop levels on paper, but without knowing whether he will be given the troops to put on the ground. The troops that eventually arrive in theatre may still be underequipped: Some countries have provided soldiers without rifles, or with rifles but no helmets, or with helmets but no flak jackets, or with no organic transport capability (trucks or troops carriers). Troops may be untrained in peacekeeping operations, and in any case the various contingents in an operation are unlikely to have trained or worked together before. Some units may have no personnel who can speak the mission language. Even if language is not a problem, they may lack common operating procedures and have differing interpretations of key elements of command and control and of the mission’s rules of engagement, and may have differing expectations about mission requirements for the use of force.
[314] Speech: “Secretary-General’s Remarks to Security Council High-Level Debate on Collective Action to Improve UN Peacekeeping Operations.” United Nations, Office of the Secretary-General, March 28, 2018. <www.un.org>
Put simply, peace operations cannot succeed if they are deployed instead of a political solution, rather than in support of one. … UN peacekeepers are often under-equipped, under-prepared and unready for the dangerous environments in which they now operate. …
We are damaging the instrument of peacekeeping, and indeed multilateralism itself, in creating unrealistic expectations. Lives and credibility are being lost. These challenges require strong, collective action. We should focus our efforts in three areas: First, to refocus peacekeeping with realistic expectations; Second, to make peacekeeping missions stronger and safer; And, third, to mobilize greater support for political solutions and for well-structured, well-equipped, well-trained forces. …
First, we are working to improve the safety and security of peacekeepers. We have already started to implement measures to improve the preparedness and response of missions at high risk by strengthening training, reviewing medical support, and addressing performance issues. Second, we are conducting independent reviews of our peacekeeping missions, aimed at refining their priorities and configuration, while assessing the viability of mandates and political processes. …
We urgently need a quantum leap in collective engagement. This is why I am launching a new initiative, “Action for Peacekeeping,” aimed at mobilizing all partners and stakeholders to support the great enterprise of United Nations peacekeeping. …
As we build this agreement together, I have six immediate requests for Member States. First, I urge Security Council members to sharpen and streamline mandates. Please put an end to mandates that look like Christmas trees. Christmas is over, and the United Nations Mission in South Sudan cannot possibly implement 209 mandated tasks. By attempting too much, we dilute our efforts and weaken our impact. I hope our mission reviews will help to end this mandate inflation. Second, I call on Member States to sustain your political engagement and push for political solutions and inclusive peace processes, including through bilateral diplomacy and sanctions if necessary. A peacekeeping operation is not an army, or a counter-terrorist force, or a humanitarian agency. It is a tool to create the space for a nationally-owned political solution.
[315] Webpage: “Peacekeeping Reform.” United Nations, Department of Peacekeeping Operations. Accessed December 4, 2018 at <peacekeeping.un.org>
Political decisions are often lacking, and mission mandates do not appear to include specific goals and clear priorities. Comprehensive threats in a number of situations lead to an increase in the number of dead and wounded peacekeepers, while missions sometimes lack the personnel and technical means to deal with such threats. When conducting peacekeeping operations, one also faces challenges in the implementation of protection mandates.
Desiring to solve these problems, the Secretary-General launched the Peacekeeping Action Initiative (A4P) in order to renew mutual political commitments in peacekeeping operations. The Secretary-General called upon Member States to work with him to develop a set of mutually agreed principles and commitments for organizing peace operations that would meet the requirements of the future, with a view to reaching a formal agreement by the end of 2018.
[316] Webpage: “Who Is and Has Been Secretary-General of the United Nations?” United Nations, Dag Hammarskjold Library. Accessed December 4, 2018 at <ask.un.org>
“António Guterres is the current Secretary-General of the United Nations. He is the ninth Secretary-General, his term began 1 January 2017.”
[317] Report: “A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations.” United Nations General Assembly, March 24, 2005. <undocs.org>
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Besides the United Nations, media and human rights organizations in particular have documented the involvement of peacekeeping personnel in sexual exploitation and abuse in operations ranging from those in Bosnia and Herzegovina and Kosovo in the early 1990s to Cambodia and Timor-Leste in the early and late 1990s to West Africa in 2002 and the Democratic Republic of the Congo in 2004.
[318] Paper: “Sexual Exploitation and Abuse in Peace Operations: Trends, Policy Responses and Future Directions.” By Jasmine-Kim Westendorf and Louise Searle. International Affairs, March 2017. Pages 365–387. <doi.org>
Page 366:
SEA [sexual exploitation and abuse] first emerged as a peacekeeping issue during the UN Transitional Authority in Cambodia (UNTAC) in 1993, when the number of prostitutes in Cambodia rose from 6,000 before the mission to more than 25,000 in 1993. The widespread use of prostitutes involved violence and the sexual abuse of girls, with women reporting that “UNTAC customers could be more cruel” than Cambodians.5 The UN response was threefold: the head of mission dismissed the issue’s significance, declaring that “boys will be boys”;6 mission leadership advised peacekeepers not to wear uniforms when visiting brothels or park UN vehicles directly outside; and an additional 800,000 condoms were shipped to the country to prevent the spread of HIV.7
6 Judy Ledgerwood, “UN Peacekeeping Missions: The Lessons From Cambodia,” AsiaPacific Issues No. 11 (Honolulu: EastWest Center, 1994), <www.seasite.niu.edu>.
[319] Paper: “Sexual Exploitation and Abuse in Peace Operations: Trends, Policy Responses and Future Directions.” By Jasmine-Kim Westendorf and Louise Searle. International Affairs, March 2017. Pages 365–387. <doi.org>
Page 367:
In 1995, the issue of peacekeeper SEA [sexual abuse and exploitation] arose again, this time in Bosnia and Herzegovina, where evidence emerged that women and girls were being trafficked to work as sex slaves in brothels frequented by UN personnel, and later, that interveners were complicit in sex trafficking. However, it was not until 1999 that negative media and rising public attention prompted the UN Mission in Bosnia and Herzegovina and the Office of the High Commissioner for Human Rights to develop policy responses—which suggests a reluctance “to recognise the direct and indirect involvement of peacekeepers in trafficking.”8 Once under way, the UN response adopted a more limited definition of trafficking than that set out under international law, and failed to provide adequate victim protection.
[320] Paper: “Sexual Exploitation and Abuse in Peace Operations: Trends, Policy Responses and Future Directions.” By Jasmine-Kim Westendorf and Louise Searle. International Affairs, March 2017. Pages 365–387. <doi.org>
Page 367:
[I]ndependent consultants raised the alarm that UN and NGO [non-government organization] staff were abusing and exploiting local women and girls in refugee camps in Guinea, Liberia and Sierra Leone. A subsequent Office of Internal Oversight Services (OIOS) investigation in 2001 verified that SEA [sexual exploitation and abuse] was prevalent, documenting the sexual relationship between a UN civilian staff member and a 17-year-old refugee in exchange for school fees, the violent rape of girls by NGO staff, the rape of boys by peacekeepers in Sierra Leone, the exchange of sex for food provided by NGO staff, and the refusal of international staff to take responsibility for children fathered with local women.9
[321] Article: “Haiti: Over 100 Sri Lankan Blue Helmets Repatriated on Disciplinary Grounds.” United Nations, UN News, November 2, 2007. <news.un.org>
The United Nations today announced that it will repatriate more than 100 Sri Lankan peacekeepers serving with the UN Stabilization Mission in Haiti (MINUSTAH) on disciplinary grounds.
Out of a total of 950 members of the Sri Lankan battalion (SriBat), 108 will be repatriated tomorrow, 3 November, with the cooperation of Sri Lankan authorities and following the receipt of a preliminary report by the UN Office of Internal Oversight Services (OIOS).
The move comes in response to allegations which are “of a transactional sex nature,” the Secretary-General’s spokesperson Michele Montas told reporters, adding that “there is a question of some underage girls.”
[322] Article: “AP Investigation: UN Troops Lured Kids Into Haiti Sex Ring.” By Paisley Dodds. Associated Press, April 12, 2017. <www.apnews.com>
“From 2004 to 2007, nine Haitian children were exploited by a child sex ring involving at least 134 Sri Lankan peacekeepers, according to a U.N. report obtained by The Associated Press. Often the children were given cookies or a few dollars in exchange for sex. Although 114 of the peacekeepers were sent home, none was ever jailed for the abuse.”
[323] “Taking Action on Sexual Exploitation and Abuse by Peacekeepers: Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic.” By Marie Deschamps, Hassan B. Jallow, and Yasmin Sooka. United Nations, December 17, 2015. <www.un.org>
Page ii:
Between May and June 2014, a Human Rights Officer (“HRO”) working for the UN mission in CAR [Central African Republic], together with local UNICEF [UN Children’s Fund] staff, interviewed six young boys. The children reported that they had been subjected to sexual abuse by international peacekeeping troops or that they had witnessed other children being abused. In most cases, the alleged perpetrators were from the French Sangaris Forces. In exchange, the children received small amounts of food or cash from the soldiers. All of the incidents occurred between December 2013 and June 2014, near the M’Poko Internally Displaced Persons Camp in Bangui. In some cases the children also reported detailed information about the perpetrators, including names and certain distinguishing features such as tattoos, piercings and facial features.
[324] “Final Report: Expert Mission to Evaluate Risks to SEA Prevention Efforts in MINUSTAH, UNMIL, MONUSCO, and UNMISS.” By Dr. Thelma Awori, Dr. Catherine Lutz, and General Paban J. Thapa. United Nations, November 3, 2013. <static1.squarespace.com>
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Poverty as a Context for SEA
The four missions are situated in post conflict contexts with all the characteristics of the most extreme social and economic disintegration and dysfunction; the countries (for which data are available) rank at 161 (Haiti), 174 (Liberia), and 186 (Congo) out of 187 countries on the Human Development Index. … Given this background, in all four missions, poverty presents a context for transactional sex. With few alternatives for livelihood, women and girls risk finding no alternative but sex for pay or food. This has been especially well documented in South Sudan (Veldwijk and Groenendijk 2011). It is not surprising, then, that research shows that less developed countries have higher rates of SEA in peacekeeping missions (Nordas and Rustad 2013).
The information reported by the children indicates that the violations were likely not isolated incidents. For example, some of the children described witnessing the rape of other child victims (who were not interviewed by the HRO); others indicated that it was known that they could approach certain Sangaris soldiers for food, but would be compelled to submit to sexual abuse in exchange. In several cases soldiers reportedly acknowledged or coordinated with each other, for example by bringing a child onto the base, past guards, where civilians were not authorized to be, or by calling out to children and instructing them to approach (indicating that the perpetrators did not fear being caught). In sum, if the Allegations are substantiated by further investigation, they could potentially indicate the existence of a pattern of sexual violence against children by some peacekeeping forces in CAR.
[325] “Final Report: Expert Mission to Evaluate Risks to SEA Prevention Efforts in MINUSTAH, UNMIL, MONUSCO, and UNMISS.” By Dr. Thelma Awori, Dr. Catherine Lutz, and General Paban J. Thapa. United Nations, November 3, 2013. <static1.squarespace.com>
Page 6:
Culture of Impunity and Normalization for Gender-Based Violence and Exploitation
Post-conflict societies are characterized by a breakdown of norms with respect to human rights and dignity. In these situations, women are especially vulnerable. Endemic rape and abuse during the conflict that led up to the peacekeeping mission has also normalized SEA in each case. In the post conflict situation, the level of rape of women and children has often remained high, even as high as or higher than in the more conflict-ridden period (Jewkes 2007). In Liberia for instance, the UNMIL Gender Office reports that four referral hospitals in Monrovia alone treated 814 cases of rape between January to June 2013. The overwhelming majority (95 percent) of the victims were children under 18 years. This “normalization” process creates a conducive atmosphere on both the perpetrators’ side and the victims’, with the local community accepting the abuse to some degree. In addition, in all four mission areas, legal assistance and protections for women are weak or even nonexistent. Even were they not, many families are reported to settle sexual violence cases among themselves to avoid stigma, a stigma which often adheres to the victim rather than the perpetrator (D’Awol 2011). As has been shown across peacekeeping cases, this all has likely made reporting of SEA by peacekeepers or others less likely (Kent 2007).
[326] “Final Report: Expert Mission to Evaluate Risks to SEA Prevention Efforts in MINUSTAH, UNMIL, MONUSCO, and UNMISS.” By Dr. Thelma Awori, Dr. Catherine Lutz, and General Paban J. Thapa. United Nations, November 3, 2013. <static1.squarespace.com>
Pages 6–7:
Background and Cultural Norms of Peacekeepers
UN Peacekeepers come from cultural backgrounds that are not totally different from their host countries in terms of how women are treated or how gender relations are managed. That is, sexual objectification or sexual coercion of women may be seen as normal and acceptable. Local women may additional be seen as exploitable by virtue of their place in a racial or ethnic hierarchy. … Some peacekeepers … come to mission with racial ideas that suggest superiority to the local population. …
The UN has as yet not been able to address these issues of sex and race bias directly.
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At root, the behavior of SEA and the failure to report SEA when it is observed in others is rooted in peacekeeper attitudes towards the zero tolerance policy as well as toward the local population, particularly of women and girls. … Moreover, rape has been found to occur at higher rates where the victim is devalued (Malamuth 1986), particularly by virtue of her gender, race, ethnicity, or impoverishment. Training does not always directly address and challenge these assumptions and value orientations (and specifically and especially around racism and attitudes to women).
[327] “Secretary-General’s Bulletin: Special Measures for Protection From Sexual Exploitation and Sexual Abuse.” United Nations Secretariat, October 9, 2003. <undocs.org>
For the purposes of the present bulletin, the term “sexual exploitation” means any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another. Similarly, the term “sexual abuse” means the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions. …
The present bulletin shall apply to all staff of the United Nations, including staff of separately administered organs and programmes of the United Nations. …
United Nations forces conducting operations under United Nations command and control are prohibited from committing acts of sexual exploitation and sexual abuse, and have a particular duty of care towards women and children, pursuant to section 7 of Secretary-General’s bulletin ST/SGB/1999/13, entitled “Observance by United Nations forces of international humanitarian law.” …
Sexual exploitation and sexual abuse violate universally recognized international legal norms and standards and have always been unacceptable behaviour and prohibited conduct for United Nations staff. Such conduct is prohibited by the United Nations Staff Regulations and Rules. …
In order to further protect the most vulnerable populations, especially women and children, the following specific standards which reiterate existing general obligations under the United Nations Staff Regulations and Rules, are promulgated:
(a) Sexual exploitation and sexual abuse constitute acts of serious misconduct and are therefore grounds for disciplinary measures, including summary dismissal;
(b) Sexual activity with children (persons under the age of 18) is prohibited regardless of the age of majority or age of consent locally. Mistaken belief in the age of a child is not a defence;
(c) Exchange of money, employment, goods or services for sex, including sexual favours or other forms of humiliating, degrading or exploitative behaviour, is prohibited. This includes any exchange of assistance that is due to beneficiaries of assistance;
(d) Sexual relationships between United Nations staff and beneficiaries of assistance, since they are based on inherently unequal power dynamics, undermine the credibility and integrity of the work of the United Nations and are strongly discouraged;
(e) Where a United Nations staff member develops concerns or suspicions regarding sexual exploitation or sexual abuse by a fellow worker, whether in the same agency or not and whether or not within the United Nations system, he or she must report such concerns via established reporting mechanisms;
(f) United Nations staff are obliged to create and maintain an environment that prevents sexual exploitation and sexual abuse. Managers at all levels have a particular responsibility to support and develop systems that maintain this environment. …
The standards set out above are not intended to be an exhaustive list. Other types of sexually exploitive or sexually abusive behaviour may be grounds for administrative action or disciplinary measures, including summary dismissal, pursuant to the United Nations Staff Regulations and Rules.
[328] “Taking Action on Sexual Exploitation and Abuse by Peacekeepers: Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic.” By Marie Deschamps, Hassan B. Jallow, and Yasmin Sooka. United Nations, December 17, 2015. <www.un.org>
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UN peacekeepers have been implicated in sex scandals since the early 1990s with cases reported in Bosnia and Herzegovina, Kosovo, Cambodia, East Timor, West Africa, the Democratic Republic of the Congo, Haiti, Liberia, South Sudan,34 and the recent cases in CAR [Central African Republic] in 2014 and 2015.
In 2003, after two decades of repeated incidents of sexual violence by peacekeepers, the UN Secretary-General issued a Bulletin on Protection from Sexual Exploitation and Abuse,35 setting out extensive prohibitions regarding sexual conduct by UN staff and peacekeepers, including a prohibition on sexual relations with members of the local community, given the “inherently unequal power dynamics.”36 The Bulletin also specifically prohibits sexual activity with children, “regardless of the age of majority or age of consent locally,” as well as prohibiting prostitution in general.37 This Bulletin is generally referred to as the UN’s zero tolerance policy.38
[329] Article: “Tough UN Line on Peacekeeper Abuses.” By Michael Fleshman. United Nations Africa Renewal, April 2005. <www.un.org>
Although UN personnel rules and peacekeeping codes have been steadily strengthened in recent years, enforcement of such rules for peacekeeping troops, including punishment for violations, is the responsibility of individual contributing countries. Under agreements regulating the relationship between the UN and troop contributors, peacekeepers are deployed as national contingents, each with its own commanders. The UN can ask for repatriation of individuals suspected of misconduct, request that the contributing country take appropriate disciplinary action and bar the suspects from future missions. But the UN does not have the authority to bring criminal charges or to convict and punish blue helmets for misconduct. It is the responsibility of each government to decide whether or how to punish its nationals for misconduct on UN missions.
[330] Paper: “UNaccountable: A New Approach to Peacekeepers and Sexual Abuse.” By Rosa Freedman. European Journal of International Law, November 9, 2018. Pages 961–985. <doi.org>
Page 964:
In relation to soldiers, there are again many factors that must be understood in relation to the failure to hold accountable perpetrators of sexual violence. These range from some countries having inadequate national laws on sexual abuse, to cultural and political resistance, and to failures by the UN to monitor and follow up on the implementation of the legal obligations of troop-contributing countries.
Pages 968–969:
Soldiers are not directly employed by the UN; they remain under the control of their home country, which in turn has a contract with the UN. Those individuals are covered by bilateral agreements between their sending state (the TCC) and the UN, and it is that document that sets out jurisdiction over such personnel if they commit crimes while on peacekeeping operations.18 Military personnel operate under a system where the host state is barred from exercising jurisdiction in relation to crimes committed by those individuals. That is not an immunity per se as the TCC retains exclusive jurisdiction over its own soldiers and commits to exercise that jurisdiction to prosecute troops who commit criminal offences while on missions.19 However, it does operate as an absolute immunity from the jurisdiction of the host state. The jurisdictional bars prevent host countries from investigating or prosecuting any crimes, regardless of whether they were committed as part of official functions. The TCC is obligated to investigate and prosecute such crimes, with the UN being limited to administrative investigations and, even then, only if the TCC fails to undertake its own investigations within 10 days of an allegation being handed over to its authorities. Prosecutions may occur by the host state if a soldier is court-martialled in situ and handed over to local authorities or if that soldier is taken to military courts or national courts in their home state. The decision as to how to proceed, therefore, belongs exclusively to the TCC.20
[331] Report: “A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations.” United Nations General Assembly, March 24, 2005. <undocs.org>
Page 1:
Letter Dated 24 March 2005 From Secretary-General to the President of the General Assembly …
[I]n July 2004, I invited His Royal Highness Prince Zeid Ra’ad Zeid Al-Hussein, Permanent Representative of Jordan, to act as my adviser and assist me in addressing the problem of sexual exploitation and abuse by United Nations peacekeeping personnel. As the Permanent Representative of a major troop- and police-contributing country and a former civilian peacekeeper, Prince Zeid has brought a vital perspective to the problem and potential solutions. Thus, when the Special Committee on Peacekeeping Operations, in its 2005 report (A/59/19), requested me to make available a comprehensive report with recommendations on sexual exploitation and abuse by United Nations peacekeeping personnel, I asked Prince Zeid to undertake its preparation. This report I now submit to you.
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The prohibitions against sexual exploitation and abuse for all categories of peacekeeping personnel should be those set out in the 2003 Secretary-General’s bulletin. …
It is recommended that the Special Committee recommend to the General Assembly that all civilian and uniformed personnel appointed or contracted by the United Nations be bound by the standards set out in the 2003 bulletin and that all peacekeeping personnel appointed by the Secretary-General be bound by appropriate language in their contracts or letters of engagement. …
As to military members of contingents, it is recommended that the Special Committee recommend to the General Assembly that it adopt the standards set out in the 2003 bulletin as a uniform standard of conduct for all military members of national contingents serving in peacekeeping operations. It is recommended that the General Assembly decide that those standards should be incorporated into the model memorandums of understanding between the United Nations and troop-contributing countries and that the model memorandum of understanding should require that troop-contributing countries issue those standards in a form binding on their contingent members.
Page 15: “It is thus recommended that, for cases of sexual exploitation and abuse … the Secretary-General establish a permanent professional investigative capacity sharing some of the administrative machinery of the Department of Peacekeeping Operations yet remaining totally independent of the command structures of the Department and the missions.”
Page 27:
It is therefore recommended that the model memorandum of understanding contain a clause indicating that if a Department of Peacekeeping Operations investigation … concludes that the allegations are well founded, the troop-contributing country is obligated to forward the case to its national authorities to be considered for prosecution. The model memorandum of understanding should further provide that those authorities will take their decision in the same manner as they would for an offence of a similar grave nature falling under the laws of that country. …
It must be emphasized that the provisions outlined above do not obligate a troop-contributing country to prosecute. A decision whether or not to prosecute is an act of sovereignty. However, these provisions will require a troop-contributing country to submit the case to the appropriate authorities, who must decide whether or not to prosecute in the same way as they would for an offence of a similar grave nature under their laws in their own jurisdiction. The suggested provisions would also obligate the troop-contributing country to report the outcome of the case in its jurisdiction.
[332] Article: “General Assembly Confirms Jordan’s Prince Zeid as New UN Human Rights Chief.” United Nations UN News, June 16, 2014. <news.un.org>
“The United Nations General Assembly today unanimously approved Prince Zeid Ra’ad Zeid al-Hussein of Jordan as the new High Commissioner for Human Rights, succeeding Navi Pillay of South Africa.”
[333] “Final Report: Expert Mission to Evaluate Risks to SEA Prevention Efforts in MINUSTAH, UNMIL, MONUSCO, and UNMISS.” By Dr. Thelma Awori, Dr. Catherine Lutz, and General Paban J. Thapa. United Nations, November 3, 2013. <static1.squarespace.com>
Page 2:
Sexual Exploitation and Abuse has been judged the most significant risk to UN peacekeeping missions, above and beyond other key risks including protection of civilians. Certain UN missions have consistently experienced the largest number of reported allegations of SEA, namely the Democratic Republic of Congo (MONUSCO), Haiti (MINUSTAH), Liberia (UNMIL), and South Sudan (UNMISS) which together account for 85 percent of cases. While it is true that the number of SEA cases is decreasing in these missions, of the 60 allegations reported in 2012, 27 (45 percent) involved the most serious forms of sexual exploitation and abuse: there were 18 allegations of sexual activities with minors (30 percent) and an additional 9 allegations of non-consensual sex with persons aged 18 or older (15 percent). The facts call for urgent action on the part of the United Nations and its member states in order to fulfill the mandate of the UN.
Context
Against this background, the Secretary General of the United Nations prepares regular reports for the General Assembly and the Security Council on the status of observance of the 2003 Secretary General’s Bulletin on Special Measures for Protection from Sexual Exploitation and Sexual Abuse. In preparation for the upcoming report, a small team of experts were contracted to assess and identify any risk factors that might continue to undermine the tremendous amount of work that has gone into ensuring the successful implementation of this policy.
[334] “Taking Action on Sexual Exploitation and Abuse by Peacekeepers: Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic.” By Marie Deschamps, Hassan B. Jallow, and Yasmin Sooka. United Nations, December 17, 2015. <www.un.org>
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The reoccurrence of allegations of sexual violence by peacekeeping forces has led the UN to conduct a number of high-level inquiries into the problem over the last decade.41 These Reports contain careful and considered analyses of the problem of sexual exploitation and abuse in peacekeeping operations, as well as clear recommendations for change. In some cases, the Organization has made efforts to implement the recommendations. For example, following on the recommendation of the 2005 Zeid Report, the UN clarified standards of conduct in relation to sexual exploitation and abuse for peacekeepers and created a Conduct and Discipline Unit in charge of conduct and discipline issues in field missions. The Conduct and Discipline Unit is charged with formulating policies, conducting training, and handling allegations of misconduct by peacekeepers operating under UN command.42 Yet critical recommendations have never been implemented. For example, the Zeid Report identified the importance of creating a permanent professional investigative mechanism.43 This recommendation was never adopted and remains a serious gap in promoting accountability.
Despite the fact that the UN has had the benefit of these reports for some time, substantively little has changed on the ground. As a result of the problems identified, the previous expert reports remain just as much at issue today. Worse, the culture of impunity has only become more entrenched as both victims and perpetrators have little reason to believe that crimes will be punished in any meaningful way, or that effective measures will be put in place to prevent future abuses. It was in the context of this culture of impunity that the Allegations that are the subject of this Report arose.
[335] Press release: “Secretary-General Appoints Independent Review Panel on UN Response to Allegations of Sexual Abuse by Foreign Military Forces in Central African Republic.” United Nations, June 22, 2015. <www.un.org>
The Secretary-General remains deeply concerned by the allegations of sexual exploitation and abuse of children by foreign military forces not under the command of the United Nations in the Central African Republic, and the United Nations system’s response to these allegations.
The Secretary-General had previously announced his intention to set up a panel to conduct an External Independent Review into this matter.
He has, today, appointed the panel, which will be chaired by Marie Deschamps of Canada, a former Justice of the Supreme Court of Canada. The other two members will be Hassan Jallow of the Gambia, the Prosecutor of the United Nations International Criminal Tribunal for Rwanda (ICTR), and Yasmin Sooka of South Africa, the Executive Director of the Foundation for Human Rights in South Africa. …
The panel will conduct its work independently and will receive unrestricted access to all United Nations records and full access to staff members and other United Nations personnel. …
The panel will begin its work in July and aim to submit its report within 10 weeks. The panel is also mandated to make recommendations on how the United Nations should respond to similar allegations in the future and on any shortcomings in existing procedures. The Secretary-General will make this report public, subject to due process and confidentiality considerations. …
Marie Deschamps (Canada) was called to the Quebec Bar in 1975 and subsequently practiced as a litigator in family, civil, commercial, and criminal law at several law firms. She was appointed judge to the Quebec Superior Court in 1990, to the Court of Appeal in 1992, and to the Supreme Court in 2002. She retired from the judiciary in August 2012 and re-joined the Quebec Bar in 2013. … She served as the External Review Authority of the External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces. …
Hassan Bubacar Jallow (Gambia) is currently the Prosecutor of the United Nations International Criminal Tribunal for Rwanda (ICTR), established by the United Nations Security Council with responsibility for investigating and prosecuting the principal perpetrators of the 1994 Rwandan genocide. … Justice Jallow has served his country, the Gambia, as Solicitor General, Attorney-General and Minister of Justice, and as Justice of the Supreme Court of the Gambia. He was elected by the United Nations General Assembly as an ad litem Judge of the ICTY, and has served as a Judge of the Appeals Chamber of the United Nations Special Court for Sierra Leone as well as a member of the Commonwealth Arbitral Tribunal. …
Yasmin Louise Sooka (South Africa) is the Executive Director of the Foundation for Human Rights in South Africa. In 2010 and 2011 she was as a member of an Expert Advisory Panel on Sri Lanka to United Nations Secretary-General Ban Ki-moon. … In 2002 she was appointed by Mary Robinson, then High Commissioner for Human Rights, as an International Commissioner to the Truth Commission in Sierra Leone in 2002. She is widely regarded as an expert on transitional justice as well as gender and reparations. She has also worked extensively on disappearances and victims’ claims. She has served on a number of expert missions and regularly acts as consultant to several Governments and civil society organizations.
[336] “Charter of the United Nations.” Accessed November 1, 2018 at <www.un.org>
We the peoples of the United Nations determined … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of national large and small … have resolved to combine our efforts to accomplish these aims. …
Article 1
The Purposes of the United Nations are: …
3 To achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion….
[337] Webpage: “Protect Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
In 1948, the Universal Declaration of Human Rights brought human rights into the realm of international law. Since then, the Organization has diligently protected human rights through legal instruments and on-the-ground activities. … A series of international human rights treaties and other instruments adopted since 1945 have expanded the body of international human rights law.
[338] Entry: “United Nations.” By Jacques Fomerand, Karen Mingst, and Cecelia M. Lynch. Encyclopedia Britannica, July 26, 1999. Updated 10/13/17. <www.britannica.com>
[T]he Commission on Human Rights … was created in 1946 to develop conventions on a wide range of issues, including an international bill of rights, civil liberties, the status of women (for which there is now a separate commission), freedom of information, the protection of minorities, the prevention of discrimination on the grounds of race, sex, language, or religion, and any other human rights concerns. The commission prepared the nonbinding Universal Declaration of Human Rights, which was adopted by the General Assembly in 1948.
After the declaration, the commission began drafting two covenants … [and] the General Assembly eventually adopted the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966. The covenants, which entered into force in 1976, are known collectively, along with the Universal Declaration of Human Rights, as the international bill of rights.
[339] Entry: “Human Rights.” By Burns H. Weston. Encyclopedia Britannica, July 20, 1998. Revised 3/20/14. <www.britannica.com>
Between 1946 and 2006 the UN Commission on Human Rights, created as a subsidiary body of ECOSOC [Economic and Social Council], served as the UN’s central policy organ in the human rights field. For the first 20 years of its existence, however, the commission believed itself to be unauthorized to deal with human rights complaints. During its first two decades, therefore, and together with other UN bodies … it concentrated on setting human rights standards and drafting a number of historically vital international human rights instruments. Among the most important of these were the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols (1966 and 1989). Together, these three instruments and the Optional Protocols constitute what has come to be known as the International Bill of Human Rights, serving as touchstones for interpreting the human rights provisions of the UN Charter. Also central in this regard were the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989), each of which elaborated on provisions of the International Bill of Human Rights.
[340] Book: The UN Special Procedures in the Field of Human Rights. By Ingrid Nifosi. Intersentia Publishers, 2005.
Page 8: “The first phase of the CHR’s [Commission on Human Rights] Practice (1946–1966) may be identified as the period of the ‘no power to act’ doctrine. … With this statement the CHR took a very restrictive interpretation of its mandate, confining its activity and authority to a mere promotional ambit.”
Page 10:
The “no power to act” doctrine informed the practice of the CHR for twenty years,39 during which time priority was given to the drafting of international human rights instruments such as the Universal Declaration on Human Rights,40 the Convention on Genocide,41 the two Covenants of 1966,42 the Declaration on the Right of the Child,43 and the Declaration on Territorial Asylum.44
[341] Report: “In Larger Freedom: Towards Development, Security and Human Rights for All.” By Kofi Annan. United Nations General Assembly, March 21, 2005. <undocs.org>
Page 45:
[T]he Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.
… If the United Nations is to meet the expectations of men and women everywhere—and indeed, if the Organization is to take the cause of human rights as seriously as those of security and development—then Member States should agree to replace the Commission on Human Rights with a smaller standing Human Rights Council. … The creation of the Council would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations. … Those elected to the Council should undertake to abide by the highest human rights standards.
[342] Article: “ ‘In Larger Freedom’: Decision Time at the UN.” By Kofi Annan. Council on Foreign Relations Foreign Affairs, May 2005. <www.foreignaffairs.com>
The Commission on Human Rights has been discredited in the eyes of many. Too often states seek membership to insulate themselves from criticism or to criticize others, rather than to assist in the body’s true task, which is to monitor and encourage the compliance of all states with their human rights obligations. The time has come for real reform. The commission should be transformed into a new Human Rights Council. The members of this council should be elected directly by the General Assembly and pledge to abide by the highest human rights standards.
[343] Webpage: “Protect Human Rights.” United Nations. Accessed November 2, 2018 at <www.un.org>
“The Human Rights Council, established in 2006, replaced the 60-year-old UN Commission on Human Rights as the key independent UN intergovernmental body responsible for human rights.”
[344] Report: “The Human Rights Council: A Practical Guide.” Permanent Mission of Switzerland to the United Nations Office, 2015. <www.eda.admin.ch>
Page 5:
The HRC [Human Rights Council] is the principal inter-governmental forum within the United Nations for questions relating to human rights. Its resolutions and decisions are not legally binding but do contain strong political commitments.
The HRC’s function is to ensure the effective implementation of human rights as guaranteed by international law, and in particular by the various instruments of the United Nations
Specifically, the HRC:
• addresses situations of violations of human rights around the world and in relation to specific countries or thematic issues (e.g. discrimination against women), adopts a position and makes recommendations;
• establishes international ‘standards’ in the field of human rights (e.g. guidelines on human rights and private enterprises);
• develops instruments which are legally binding (e.g. protocol providing for a complaints procedure for the Convention on the Rights of the Child);
• promotes human rights through dialogue, by reinforcing capacity-building and by providing technical assistance.
Page 23:
Resolutions generally have indirect and long-term repercussions as their primary purpose is to instigate or induce legislative change or best practice at the national level. Resolutions also allow the international community’s attention to be drawn to particular topics or country-specific situations. Resolutions of this kind sometimes serve as triggers for action by other institutions, such as the Security Council. The SG [secretary-general] and OHCHR [Office of the High Commissioner for Human Rights] regularly send questionnaires to the states enquiring in detail as to how they are implementing a given thematic resolution. The states are free to reply or not.
[345] Webpage: “Universal Periodic Review.” United Nations Human Rights Council. Accessed November 12, 2018 at <www.ohchr.org>
The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all UN Member States. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations.
As one of the main features of the Council, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed. The ultimate aim of this mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur. Currently, no other universal mechanism of this kind exists.
[346] Report: “The Human Rights Council: A Practical Guide.” Permanent Mission of Switzerland to the United Nations Office, 2015. <www.eda.admin.ch>
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The Universal Periodic Review (UPR)
The HRC [Human Rights Council] peer review mechanism involves examining the human rights record of each UN member state according to a fixed and predictable schedule. … The current periodicity of the UPR is four and a half years. … The UPR is a full-circle process comprising three key stages:
• An assessment of the human rights situation in the country under review;
• Between two reviews (4.5 years), implementation by the state concerned of the recommendations given and any voluntary pledges made;
• At the next review, an account of the implementation of these recommendations and commitments and an assessment of the human rights situation in that country since the last review. …
The UPR is based on the legal and political commitments to human rights contained in the United Nations Charter, the Universal Declaration of Human Rights, the international human rights instruments to which the states under review are party, and the voluntary commitments made by the states, especially those undertaken when presenting their candidature for election to the HRC. A significant number of recommendations also relate to questions of compliance with and implementation of international humanitarian law. A growing number of recommendations refer to the Rome Statute of the International Criminal Court.
For each state, the review is based on three documents from three distinct sources:
• The national report: without being obliged to do so, the states are nevertheless expected to present a national report (of no more than 20 pages). …
• A compilation of United Nations information; the OHCHR [Office of the High Commission on Human Rights] compiles a summary, no more than 10 pages long, of information deriving from official UN documents (e.g. from treaty bodies, special procedures or special agencies such as the UNDP and UNICEF, etc.);
• A stakeholders’ report: the OHCHR puts together a ten-page summary of information provided by all other relevant stakeholders. The latter primarily include NGOs [non-government organizations], NHRIs [national human rights institutions], defenders of human rights, academic institutions, regional organisations and other representatives of civil society.
[347] Webpage: “Universal Periodic Review Frequently Asked Questions.” U.S. Department of State. Accessed November 12, 2018 at <www.state.gov>
The reviews are conducted by the UPR [Universal Periodic Review] Working Group, which consists of the 47 members of the Council; however, any UN Member State can take part in the discussion. …
The basis of review includes: the Charter of the United Nations; the Universal Declaration of Human Rights, human rights instruments to which a State is party; voluntary pledges and commitments made by States, including those undertaken when presenting their candidatures for election to the Human Rights Council; and, given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review also takes into account applicable international humanitarian law.
During the UPR session, three documents are considered. First, there is a “national report” that is provided by the State under review. Second, there is a UN report, compiled by the Office of the UN High Commissioner for Human Rights (OHCHR), that includes information provided by relevant experts such as human rights treaty bodies and UN Human Rights Special Rapporteurs. Third, there is a “stakeholders report,” compiled by OHCHR consisting of information provided from non-governmental organizations (NGOs) and national human rights institutions.
[348] Report: “The Human Rights Council: A Practical Guide.” Permanent Mission of Switzerland to the United Nations Office, 2015. <www.eda.admin.ch>
Page 12:
The outcome of the review is a report prepared by the troika with the involvement of the state under review and the assistance of the HRC [Human Rights Council] Secretariat. This report contains a summary of the interactive dialogue, the responses of the state under review to the questions put and, above all, a complete list of the recommendations made to the state concerned by the other states. These recommendations are intended to improve the human rights situation in the state under review. Although they may differ in nature and in terms of topic addressed, they remain the key element of the review. The state being reviewed may accept or refuse to accept/note these recommendations. The state under review may respond to all or part of the recommendations during the review process or may take the time to reflect on them before presenting its views (at the latest immediately prior to adoption of the UPR report by the HRC).
[349] Webpage: “Universal Periodic Review Frequently Asked Questions.” U.S. Department of State. Accessed November 12, 2018 at <www.state.gov>
Reviews take place through an interactive discussion between the State under review and other UN Member States at a meeting conducted by the UPR [Universal Periodic Review] Working Group. During this discussion any UN Member State can pose questions, offer comments, and make recommendations to the States under review. … The duration of the review … has been extended to three hours and 30 minutes.
[350] Webpage: “Protect Human Rights.” United Nations. Accessed November 9, 2018 at <www.un.org>
“The High Commissioner for Human Rights regularly comments on human rights situations in the world and has the authority to investigate situations and issue reports on them.”
[351] “UN Human Rights Report 2017.” United Nations, Office of the High Commissioner for Human Rights, June 2018. <www2.ohchr.org>
Pages 57–58:
The Office of the High Commissioner for Human Rights (UN Human Rights) is the leading UN entity on human rights. …
The work of UN Human Rights encompasses three broad areas, namely, human rights standard-setting, monitoring and supporting the implementation of human rights obligations by States. Substantive and technical support is provided to the various UN human rights bodies as they undertake their standard-setting and monitoring duties. …
The Human Rights Council (HRC) … receives secretariat and technical support from the Office in its work, including in the context of its regular and special sessions, organizational meetings and the meetings of its subsidiary bodies. UN Human Rights also organizes and supports stakeholder meetings, special events, discussions and expert panels.
In addition, UN Human Rights supports the Council’s Universal Periodic Review (UPR) mechanism. By November 2016, all 193 Member States had been reviewed by the UPR for the second time and in May 2017, the third cycle began. …
Furthermore, UN Human Rights provides secretariat and technical assistance to independent human rights experts, known as special procedures mandate-holders, who are appointed by the Council and mandated to report and advise on human rights issues and situations from a thematic or country-specific perspective. …
Finally, UN Human Rights provides support to the 10 human rights treaty bodies. The treaty bodies are committees of independent experts that consider the progress that has been made and the challenges that are being faced by countries in implementing the obligations of the international human rights treaties they have ratified.
[352] Webpage: “Who We Are.” United Nations, Office of the High Commissioner for Human Rights. Accessed November 2, 2018 at <www.ohchr.org>
UN Human Rights provides assistance in the form of technical expertise and capacity-development in order to support the implementation of international human rights standards on the ground. It assists governments, which bear the primary responsibility for the protection of human rights, to fulfil their obligations and supports individuals to claim their rights. …
UN Human Rights is part of the United Nations Secretariat, with a staff of some 1300 people and its headquarters in Geneva, as well as an office in New York.
[353] Webpage: “Human Rights Treaty Bodies.” United Nations, Office of the High Commissioner for Human Rights. Accessed December 13, 2018 at <www.ohchr.org>
The human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. Each State party to a treaty has an obligation to take steps to ensure that everyone in the State can enjoy the rights set out in the treaty.
Currently, there are nine human rights international treaties, and one optional protocol, from which 10 treaty bodies have been established. The treaty bodies are composed of independent experts of recognized competence in human rights, who are nominated and elected for fixed renewable terms of four years by State parties.
[354] Webpage: “Social, Humanitarian & Cultural Issues (Third Committee).” General Assembly of the United Nations. Accessed December 13, 2018 at <www.un.org>
The General Assembly allocates to the Third Committee, agenda items relating to a range of social, humanitarian affairs and human rights issues that affect people all over the world.
As in previous sessions, an important part of the work of the Committee will focus on the examination of human rights questions, including reports of the special procedures of the Human Rights Council which was established in 2006. In October 2018, the Committee will hear and interact with special rapporteurs, independent experts, and chairs of working groups as mandated by the Human Rights Council. …
At the seventy-second session of the General Assembly, the Third Committee considered over 60 draft resolutions, more than half of which were submitted under the human rights agenda item alone. These included three so-called country-specific resolutions on human rights situations.
[355] Entry: “International Law.” By Malcolm Shaw. Encyclopedia Britannica, July 26, 1999. Revised 9/30/08. <www.britannica.com>
“[A]lthough the United Nations (UN) General Assembly, which consists of representatives of some 190 countries, has the outward appearances of a legislature, it has no power to issue binding laws.”
[356] Resolution 60/1: “2005 World Summit Outcome.” United Nations General Assembly, September 16, 2005. <undocs.org>
138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to those assisting those which are under stress before crises and conflicts break out.
[357] “Charter of the United Nations.” Accessed November 1, 2018 at <www.un.org>
Article 2 …
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. …
Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. …
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
[358] Resolution 418. United Nations Security Council, November 4, 1977. <undocs.org>
The Security Council,
Recalling its resolution 392 (1976) of 19 June 1976, strongly condemning the South African Government for its resort to massive violence against and killings of the African people, including schoolchildren and students and others opposing racial discrimination, and calling upon that Government urgently to end violence against the African people and to take urgent steps to eliminate apartheid and racial discrimination …
Strongly condemning the South African Government for its acts of repression, its defiant continuance of the system of apartheid and its attacks against neighbouring independent States …
Acting therefore upon Chapter VII of the Charter of the United Nations, … decides that all States shall cease forthwith any provision to South Africa of arms and related material of all types, including the sale or transfer of weapons and ammunition, military vehicles and equipment, paramilitary police equipment, and spare parts for the aforementioned, and shall cease as well the provision of all types of equipment and supplies and grants of licensing arrangements for the manufacture or maintenance of the aforementioned.
[359] Resolution 1556. United Nations Security Council, July 30, 2004. <unscr.com>
The Security Council …
Reiterating its grave concern at the ongoing humanitarian crisis and widespread human rights violations, including continued attacks on civilians that are placing the lives of hundreds of thousands at risk,
Condemning all acts of violence and violations of human rights and international humanitarian law by all parties to the crisis, in particular by the Janjaweed, including indiscriminate attacks on civilians, rapes, forced displacements, and acts of violence especially those with an ethnic dimension, and expressing its utmost concern at the consequences of the conflict in Darfur on the civilian population, including women, children, internally displaced persons, and refugees,
Recalling in this regard that the Government of Sudan bears the primary responsibility to respect human rights while maintaining law and order and protecting its population within its territory and that all parties are obliged to respect international humanitarian law,
Urging all the parties to take the necessary steps to prevent and put an end to violations of human rights and international humanitarian law and underlining that there will be no impunity for violators,
Welcoming the commitment by the Government of Sudan to investigate the atrocities and prosecute those responsible …
Acting under Chapter VII of the Charter of the United Nations …
Decides that all states shall take the necessary measures to prevent the sale or supply, to all non-governmental entities and individuals, including the Janjaweed, operating in the states of North Darfur, South Darfur and West Darfur, by their nationals or from their territories or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, whether or not originating in their territories;
Decides that all states shall take the necessary measures to prevent any provision to the non-governmental entities and individuals identified in paragraph 7 operating in the states of North Darfur, South Darfur and West Darfur by their nationals or from their territories of technical training or assistance related to the provision, manufacture, maintenance or use of the items listed in paragraph 7 above….
[360] Resolution 1591. United Nations Security Council, March 29, 2005. <unscr.com>
The Security Council …
Strongly condemning all violations of human rights and international humanitarian law in the Darfur region, in particular the continuation of violence against civilians and sexual violence against women and girls since the adoption of resolution 1574 (2004), urging all parties to take necessary steps to prevent further violations, and expressing its determination to ensure that those responsible for all such violations are identified and brought to justice without delay …
Acting under Chapter VII of the Charter of the United Nations … condemns … the failure of the Government of Sudan to disarm Janjaweed militiamen and apprehend and bring to justice Janajaweed leaders and their associates who have carried out human rights and international humanitarian law violations and other atrocities …
Decides, in light of the failure of all parties to the conflict in Darfur to fulfil their commitments …
(c) that those individuals … who … commit violations of international humanitarian or human rights law or other atrocities … shall be subject to the measures identified in subparagraphs (d) and (e) below …
(d) that all States shall take the necessary measures to prevent entry into or transit through their territories of all persons as designated by the Committee pursuant to subparagraph (c) above …
(e) that all States shall freeze all funds, financial assets and economic resources … that are owned or controlled, directly or indirectly, by the persons designated by the Committee pursuant to subparagraph (c) above …
Reaffirms the measures imposed by … resolution 1556 (2004), and decides that these measures shall immediately upon adoption of this resolution, also apply to all the parties to the N’djamena Ceasefire Agreement and any other belligerents in the states of North Darfur, South Darfur and West Darfur….
[361] Resolution 1970. United Nations Security Council, February 26, 2011. <undocs.org>
The Security Council …
Deploring the gross and systematic violation of human rights …
Recalling the Libyan authorities’ responsibility to protect its population …
Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to the Libyan Arab Jamahiriya … of arms and related material of all types, …
Decides that the Libyan Arab Jamahiriya shall cease the export of all arms and related material, …
Decides to authorize all Member States to, and that all Member States shall, upon discovery of items prohibited … seize and dispose … items the supply, sale, transfer or export of which is prohibited by … this resolution; …
Decides that all Member States shall take the necessary measures to prevent the entry into or transit through their territories of individuals listed in Annex I of this resolution …
Decides that all Member States shall freeze without delay all funds, other financial assets and economic resources which are on their territories, which are owned or controlled, directly or indirectly, by the individuals or entities listed in annex II of this resolution….
[362] Resolution 1973. United Nations Security Council, March 17, 2011. <undocs.org>
The Security Council …
Reiterating the responsibility of the Libyan authorities to protect the Libyan population and reaffirming that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians, condemning the gross and systematic violation of human rights, …
Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures … to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi….
[363] Webpage: “Membership of the Human Rights Council.” United Nations Human Rights Council. Accessed November 2, 2018 at <www.ohchr.org>
The Council is made of 47 Member States, which are elected by the majority of members of the General Assembly of the United Nations through direct and secret ballot. The General Assembly takes into account the candidate States’ contribution to the promotion and protection of human rights, as well as their voluntary pledges and commitments in this regard. …
Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms.
[364] Webpage: “Membership of the Human Rights Council.” United Nations Human Rights Council. Accessed November 2, 2018 at <www.ohchr.org>
The Council’s Membership is based on equitable geographical distribution. Seats are distributed as follows:
1. African States: 13 seats
2. Asia-Pacific States: 13 seats
3. Latin American and Caribbean States: 8 seats
4. Western European and other States: 7 seats
5. Eastern European States: 6 seats
[365] Article: “Human Rights Council Election: 5 Things You Need to Know About It.” United Nations UN News, October 15, 2018. <news.un.org>
How Come Some Countries Accused of Human Rights Violations Still Serve?
[D]uring the elections for each regional group, the General Assembly allows extra blank slates: this should theoretically ensure there are more candidates than available seats, enabling a competitive process. However, if—as was the case this year with 18 candidacies for 18 available seats—no extra countries apply, then no competition occurs, and whichever Member State applies, is likely to get elected.
[366] Article: U.S. Withdraws from U.N. Human Rights Council Over Perceived Bias Against Israel.” By Carol Morell. Washington Post, June 19, 2018. <www.washingtonpost.com>
“The United States initially shunned the panel [Human Rights Council] over President George W. Bush’s concerns that so many human rights offenders could be seated through noncompetitive elections for members nominated by their regional colleagues.”
[367] Webpage: “Assessing the United Nations Human Rights Council.” By Ted Piccone. Brookings Institution, May 25, 2017. <www.brookings.edu>
Regional blocs too often put forward clean slates that give the General Assembly no real alternatives. We know that when slates are competitive, the UNGA [UN General Assembly] has voted to deny seats to some of the world’s worst human rights performers….
To address the membership problem, the United States and its democratic allies in the Community of Democracies should redouble their efforts to recruit other like-minded states to run, especially the many electoral democracies that have never sought a seat on the Council. They should build consensus in the GA for new rules that would mandate competitive slates for membership and lead by example in their own regional blocs. … Where regional slates are closed, the United States mission in New York should lead efforts to block the worst offenders from reaching the minimum 97 affirmative votes needed to be elected.
[368] Article: “UN to Elect 6 More Abusers to Rights Council on Friday, NGOs Protest.” UN Watch, October 8, 2018. <www.unwatch.org>
This year there will be no competition in any of the five regional groups, with the same amount of candidates running as there are available seats.
“The whole point of the 2006 reform, initiated by the late UN chief Kofi Annan, was to create competition that would weed out the worst abusers. Sadly, this was never respected, with current elected members including Saudi Arabia, China, Cuba, Burundi and Venezuela. Yet this year, there is not even the illusion of competition,” said Hillel Neuer of the Geneva-based UN Watch.
Despite the lack of competition in each regional group, Neuer emphasized that there is a myth among UN diplomats that they are obliged to vote for all candidates on a clean slate.
“As made clear in our report, voting nations can and should refrain from electing rights abusers to the UN’s highest human rights body. We need to hear the EU’s Federica Mogherini and EU member states lead the call to oppose the worst abusers. So far, they have been silent.”
[369] “About Us.” Freedom House. Accessed December 5, 2018 at <freedomhouse.org>
“Freedom House is an independent watchdog organization dedicated to the expansion of freedom and democracy around the world.”
[370] Article: “With New Members, the UN Human Rights Council Goes From Bad to Worse.” By Robert Herman and Michael Gallagher. Freedom House Freedom At Issue, November 19, 2018. <freedomhouse.org>
The October 12 elections for seats on the UN Human Rights Council ushered in several new members with abysmal records on democracy and fundamental human rights. …
According to Freedom in the World, Freedom House’s annual global analysis of political rights and civil liberties, the 46 new and returning council members include 22 countries rated Free, 10 Partly Free countries, and 14 that are considered Not Free. …
Indeed, the proportion of Not Free members, 30 percent, is the highest since the council was established to replace the UN Commission on Human Rights in 2006.
[371] Article: U.S. Withdraws from U.N. Human Rights Council Over Perceived Bias Against Israel.” By Carol Morell. Washington Post, June 19, 2018. <www.washingtonpost.com>
“The council’s current membership includes 14 countries that are ranked as ‘not free’ by Freedom House: Afghanistan, Angola, Burundi, China, Cuba, Congo, Egypt, Ethiopia, Iraq, Qatar, Rwanda, Saudi Arabia, the United Arab Emirates and Venezuela.”
[372] Report: “Evaluation of UNHRC Candidates for 2019–2021.” UN Watch, 2018. <www.unwatch.org>
Page 1:
This report, co-sponsored by UN Watch, Human Rights Foundation and the Raoul
Wallenberg Centre for Human Rights, evaluates the country candidates for the October 12, 2018 election of 18 new members to the UN Human Rights Council. …
Unqualified
Six candidates have poor records and fail to qualify: Bahrain, Bangladesh, Cameroon, Eritrea, Philippines, Somalia
Pages 4–5:
The country evaluations in this report are based on information, ratings and analysis from the following sources:
• The Economist Democracy Index (2017), which considers a country’s electoral process and pluralism, civil liberties, government functioning, political participation, and political culture, and ranks it as: Full Democracy, Flawed Democracy, Hybrid Regime or Authoritarian Regime.
• Reporters Sans Frontières Worldwide Press Freedom Index (2018), which measures the degree of freedom that journalists and news organizations enjoy in each country, and the efforts made by state authorities to respect and ensure respect for this freedom, ranking each country as Good, Fairly Good, Problematic, Bad or Very bad.
• Freedom in the World (2018), the annual survey by Freedom House that measures political rights and civil liberties worldwide, ranking countries as: Free, Partly Free or Not Free.
• Voting record at the UN General Assembly, examining countries by how they voted at the UN on ten different thematic and country-specific human rights proposals, and classifying their voting records accordingly as either Positive, Negative, or Mixed. Countries were credited with one point for voting to support human rights, debited one point for opposing human rights and given no points for abstaining or being absent. Countries who scored between 4 to 10 are ranked as having Positive voting records; those scoring 0 to 3 are Mixed; and those scoring below zero are Negative.
[373] Press release: “General Assembly Elects 18 Member States to Human Rights Council, Allowing Vote by 3 Member States in Article 19 Exemption Over Financial Dues.” United Nations, October 12, 2018. <www.un.org>
The General Assembly today elected 18 States to the Human Rights Council, the United Nations body responsible for promoting and protecting all human rights around the globe.
By secret ballot, the Assembly elected Argentina, Austria, Bahamas, Bahrain, Bangladesh, Bulgaria, Burkina Faso, Cameroon, Czechia, Denmark, Eritrea, Fiji, India, Italy, Philippines, Somalia, Togo and Uruguay.
[374] Report: “Evaluation of UNHRC Candidates for 2019–2021.” UN Watch, 2018. <www.unwatch.org>
Page 2: “Country … Bahrain … FH Rating [=] Not Free … Economist Rating [=] Authoritarian Regime … RSF Rating [=] Very Bad … UN Voting Record [=] Mixed … Suitability for Membership [=] Unqualified”
Page 7:
Bahrain commits serious human rights violations, including:
• Arbitrary killings by security forces
• Torture of detainees
• Harsh and potentially life-threatening prison conditions
• Arbitrary arrest
• Holds political prisoners
• Unlawful interference with privacy
• Restrictions on freedom of expression
• Restrictions on freedom of the press
• Restrictions on freedom of association
• Restrictions on freedom of movement, including arbitrary revocation of citizenship
Pages 8–9:
[O]n June 4, 2017, the Ministry of Information Affairs indefinitely suspended al-Wasat, the only independent newspaper in Bahrain, after it reported on protests in Morocco.11
In April 2017, King Hamad ratified a constitutional amendment allowing military courts to try civilians accused of threatening the security of the state.12 The UN Human Rights Committee expressly criticized this amendment in its recent review of Bahrain.13 In addition, in April 2018, seven UN experts deplored a military court’s imposition of the death penalty on four men charged with terrorism, following coerced confessions and a trial lacking due process.14
In May 2017, police violently suppressed a protest outside the home of Shia Cleric Sheikh Isa Qassim, killing five protesters.15 …
Bahrain also has clamped down on freedom of speech and freedom of association, and punished dissidents. Activist Nabeel Rajab, head of the Bahrain Center for Human Rights, was sentenced to jail time in July 2017 for criticizing the government.18 … Women’s rights activist Ebtisam al-Sayegh was detained and interrogated multiple times in 2017, including upon her return from attending a UN Human Rights Council session. According to al-Sayegh, during one of her interrogations, she was beaten, stripped and sexually assaulted, and her family was threatened.20
In June 2017, UN rights experts sharply criticized Bahrain for resorting to “torture, arbitrary detention, unfounded convictions, the stripping of citizenship, the use of travel bans, intimidation, including death threats, and reprisals for cooperating with international organizations,” as means of curbing dissent.22 In recent concluding observations, both the Human Rights Committee and the Committee Against Torture criticized Bahrain for frequent use of torture and ill-treatment in prisons, and as a means of eliciting confessions.23
[375] Report: “Evaluation of UNHRC Candidates for 2019–2021.” UN Watch, 2018. <www.unwatch.org>
Page 2: “Country … Bangladesh … FH Rating [=] Partly Free … Economist Rating [=] Hybrid Regime … RSF Rating [=] Bad … UN Voting Record [=] Negative … Suitability for Membership [=] Unqualified”
Page 9:
Bangladesh commits serious human rights violations, including:
• Extrajudicial killings
• Torture
• Arbitrary detention
• Forced disappearances by government forces
• Restrictions on freedom of the speech and the press
• Restrictions on NGOs [non-government organizations]
• Lack of freedom to participate in the political process
• Corruption
• Violence and discrimination against women
• Violence and discrimination against LGBT
• Violence and discrimination based on religion, caste, or tribe
• Trafficking in persons
• Child labor and other violations of worker’s rights
• Widespread impunity for security forces
Page 11:
Bangladesh’s security forces are known to commit extrajudicial killings, enforced disappearances, and torture. The government frequently justifies extrajudicial killings claiming the suspect died in a “gunfight.” Local human rights agencies estimated that some 160 individuals were killed extrajudicially in 2017. …
… In April, Swedish Radio published a secretly recorded interview with a senior
member of the security forces who admitted to routine instances of murdering suspects and then disposing of the bodies. In July, a judicial inquiry concluded that enforced disappearances occurred and ordered the police to take action.44 The government has not responded to a request for a visit from the UN Working Group on Enforced Disappearances.
Bangladesh’s UN Voting Record
Negative: At the General Assembly, Bangladesh voted for a resolution denying countries the right to sanction regimes that abuse human rights, and voted to delay the work of the Special Rapporteur on violence against LGBT. While Bangladesh supported the resolution on Myanmar, it failed to support resolutions speaking out for human rights victims in North Korea, Syria and Iran.
[376] Report: “Evaluation of UNHRC Candidates for 2019–2021.” UN Watch, 2018. <www.unwatch.org>
Page 2: “Country … Cameroon … FH Rating [=] Not Free … Economist Rating [=] Authoritarian Regime … RSF Rating [=] Bad … UN Voting Record [=] Negative … Suitability for Membership [=] Unqualified”
Pages 12–13:
Cameroon commits serious human rights violations, including:
• Arbitrary and unlawful killings
• Disappearances by security forces
• Torture and abuse by security forces
• Arbitrary detention
• Harsh and life-threatening prison conditions
• Violations of freedom of expression and freedom of assembly
• Periodic government restrictions on internet access
• Trafficking in persons
• Criminalization and arrest of LGBT
• Violations of worker’s rights
• Corruption …
Cameroon is ruled by President Paul Biya of the Cameroon People’s Democratic Movement (CPDM) who has governed the country since 1982.46 Though Cameroon holds elections, irregularities are commonplace, including bribery, gerrymandering, and government control of the electoral commission. According to Freedom House, “corruption is systemic and bribery is commonplace in all sectors.”47 …
… Government forces are accused of numerous violations, including massacring civilians, rape, and burning villages.52 A recent report by Human Rights Watch charges government forces with killing unarmed civilians, including older women and individuals with physical and mental disabilities, arson attacks in at least 20 villages, and mass arrests.53
… Other government tactics against the protesters have included arbitrary detention, enforced disappearances, torture and other cruel, inhuman or degrading treatment, and sexual abuse.55
[377] Report: “Evaluation of UNHRC Candidates for 2019–2021.” UN Watch, 2018. <www.unwatch.org>
Page 2: “Country … Eritrea … FH Rating [=] Not Free … Economist Rating [=] Authoritarian Regime … RSF Rating [=] Very Bad … UN Voting Record [=] Negative … Suitability for Membership [=] Unqualified”
Page 14:
Eritrea commits serious human rights violations, including:
• Arbitrary executions
• Enforced disappearances and incommunicado detention
• Torture, and other cruel, inhuman, and degrading treatment
• Harsh prison conditions
• Arbitrary arrest
• Denial of fair public trial
• Arbitrary interference with privacy
• Restrictions on freedom of speech and press
• Restrictions on internet freedom and academic freedom
• Restrictions on freedom of assembly, association, and religion
• Restrictions on freedom of movement
• Lack of free and fair elections
• Corruption
• Restrictions on international NGOs [non-governmental organizations]
• Violence against women and girls
• Human trafficking
• Criminalization of same-sex sexual conduct
• Forced labor …
Eritrea is an authoritarian regime ruled by President Isaias Afwerki, head of the country’s sole political party—The People’s Front for Democracy and Justice (PFDJ). Eritrea has not held national elections since it became independent from Ethiopia in 1993.61 Though the constitution, ratified in 1997, calls for an elected 150-seat National Assembly, this assembly has not met since 2002.62 Any opposition groups must operate from abroad, as the PFDJ is the only legally recognized political party in Eritrea.63
Eritrea is the subject of an annual Human Rights Council resolution condemning “in the strongest terms the reported systematic, widespread and gross human rights violations” committed by the government in a climate of “generalized impunity.”64 The resolution itemizes numerous human rights abuses including: arbitrary detention, torture, lack of democracy and free press, and indefinite military or national service.
[378] Report: “Evaluation of UNHRC Candidates for 2019–2021.” UN Watch, 2018. <www.unwatch.org>
Page 2: “Country … Philippines … FH Rating [=] Partly Free … Economist Rating [=] Flawed Democracy … RSF Rating [=] Bad … UN Voting Record [=] Negative … Suitability for Membership [=] Unqualified”
Page 16:
The Philippines commits serious human rights violations, including:
• Extrajudicial killings
• Torture and abuse of prisoners
• Harsh and life-threatening prison conditions
• Warrantless arrests and disregard of due process
• Political prisoners
• Killings of and threats against journalists
• Official corruption and abuse of power
• Threats of violence against human rights activists
• Violence against women
• Forced labor
Page 17:
Although the numbers vary based on the source, according to Freedom House, Duterte’s War on Drugs resulted in the killing of more than 12,000 people during the 18 month period from July 2016 to December 2017.86 The US State Department cites the statistic from local Philippines law enforcement agencies which reported approximately 4,000 drug-related deaths in connection with anti-drug operations in that same period.87
In one case on June 30, 2017, police killed Ozamiz City Mayor Reynaldo Parojinog, his wife, and 10 others in anti-drug raids.88 … The Philippines Commission of Human Rights reports routine abuse of prisoners by police and security forces, including use of torture.90 …
According to Freedom House, The Philippines is one of the most dangerous places in the world for journalists with two reporters having been murdered in 2017.92 …
Page 18:
In March 2018, the government filed a “suspected terrorist” hit list with a Manila Court, listing the names of many civil society activists. Some on the list have already been detained or disappeared.97 UN human rights experts expressed deep concern about this list, which also included the name of the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, who had criticized the government.98
… Philippines’ Senator Leila De Lima was arrested in February 2017 and remains in prison on politically motivated charges related to her criticism of President Duterte’s War on Drugs.99 De Lima’s detention has been widely condemned by human rights groups and others who have called for her immediate release.100 President Duterte is also believed to be behind the May 2018 removal of Supreme Court Chief Justice Maria Lourdes Sereno. She was removed after Duterte threatened her and called her an “enemy” for voting against several Duterte proposals.101
[379] Report: “Evaluation of UNHRC Candidates for 2019–2021.” UN Watch, 2018. <www.unwatch.org>
Page 2: “Country … Somalia … FH Rating [=] Not Free … Economist Rating [=] N/A … RSF Rating [=] Very Bad … UN Voting Record [=] Negative … Suitability for Membership [=] Unqualified”
Pages 19–20:
Somalia commits serious human rights violations, including:
• Killing of civilians by security forces
• Disappearances
• Torture and other cruel, inhuman, or degrading treatment
• Arbitrary or politically motivated arrest and detentions
• Child soldiers
• Restrictions on free speech, free press and freedom of association
• Abuse of internally displaced persons
• Disruption and seizure of humanitarian assistance
• Lack of free and fair elections
• Trafficking in persons
• Widespread violence against women and girls, including rape and FGM [female genital mutilation]
• Criminalization of same-sex sexual conduct
• Forced labor
Even in the area controlled by the national government, there have never been direct elections. The recent parliamentary elections, concluded in February 2017, saw delegates voted in by clan elders. The elections were characterized by numerous irregularities, including vote-buying, intimidation, threats, violence and kidnapping.104 This was followed by an indirect presidential election, in which the newly elected Parliament selected Mohamed Abdullahi Mohamed Farmaajo as president.105 …
Arbitrary arrests and killings are routinely committed by all actors in Somalia, including government security forces.109 …
Several groups operating in Somalia, primarily al-Shabaab but also government forces, use child soldiers. …
Women in Somalia are vulnerable to many forms of violence. They are subjected to rape and other sexual violence, including by government forces. …
Somalia’s civilian judiciary is nonfunctional, strongly influenced by corruption and clan-based politics, and not widely respected.118 As a result, military courts try many cases not legally within their jurisdiction, and in proceedings not compliant with international standards for due process.119
[380] Press release: “General Assembly Suspends Libya From Human Rights Council.” United Nations, March 1, 2011. <www.un.org>
“In an unprecedented move today, the United Nations General Assembly suspended Libya’s membership in the Human Rights Council, the Organization’s pre-eminent human rights body, expressing its deep concern about the situation in that country in the wake of Muammar Al-Qadhafi’s violent crackdown on anti-Government protestors.”
[381] Report: “The Human Rights Council: A Practical Guide.” Permanent Mission of Switzerland to the United Nations Office, 2015. <www.eda.admin.ch>
Page 6: “The GA [General Assembly] may, by a two-thirds majority of the members present and voting, suspend a member of the Council if it has committed gross and systematic violations of human rights. This has only happened on one occasion to date—when Libya was suspended from 1 March to 19 November 2011 by consensus.”
[382] Report: “The Human Rights Council: A Practical Guide.” Permanent Mission of Switzerland to the United Nations Office, 2015. <www.eda.admin.ch>
Pages 8–9:
The HRC [Human Rights Council] holds three regular sessions a year, lasting for a total duration of 10 weeks. These sessions take place in March (main session of four weeks), June (three weeks) and September (three weeks). Each regular session systematically follows an order of the day consisting of ten agenda items: …
Item 7: Human rights situation in Palestine and other occupied Arab territories. This is the only country-based situation to feature as a permanent item on the order of the day (other situations are examined under items 4 or 10, and, by way of exception, under item 2). Item 7 focuses on the impact of the Israeli occupation on human rights in Palestine and other occupied Arab territories (see e.g. A/HRC/RES/19/16). The question of the right of the Palestinian people to self-determination is also dealt with under this item (see e.g. A/HRC/RES/19/15).
[383] Press Release: “Opposition to UN Human Rights Council Agenda Item Seven.” U.S. Department of State, March 20, 2017. <www.state.gov>
The United States strongly and unequivocally opposes the existence of the UN Human Rights Council’s Agenda Item Seven: “Human rights situation in Palestine and other occupied Arab territories.” Today’s actions in the Council are yet another reminder of that body’s long-standing bias against Israel. No other nation has an entire agenda item dedicated to it at the Council. The continued existence of this agenda item is among the largest threats to the credibility of the Council.
As an expression of our deeply-held conviction that this bias must be addressed in order for the Council to realize its legitimate purpose, the United States decided not to attend the Council’s Item Seven General Debate session. It does not serve the interests of the Council to single out one country in an unbalanced matter. Later this week, the United States will vote against every resolution put forth under this agenda item and is encouraging other countries to do the same.
[384] “Remarks on the Human Rights Council.” By Mike Pompeo and Nikki Haley. U.S. Department of State, June 19, 2018. <www.state.gov>
[T]he Human Rights Council has become an exercise in shameless hypocrisy—with many of the world’s worst human rights abuses going ignored, and some of the world’s most serious offenders sitting on the council itself. …
A mere look around the world today demonstrates that the council has failed in its stated objectives.
Its membership includes authoritarian governments with unambiguous and abhorrent human rights records, such as China, Cuba, and Venezuela.
There is no fair or competitive election process, and countries have colluded with one another to undermine the current method of selecting members.
And the council’s continued and well-documented bias against Israel is unconscionable. Since its creation, the council has adopted more resolutions condemning Israel than against the rest of the world combined.
[385] Article: “US Withdraws from UN Human Rights Council.” By Conor Finnegan. ABC News, June 19, 2018. <abcnews.go.com>
The U.S. will withdraw from the United Nations Human Rights Council, Secretary of State Mike Pompeo and U.S. Ambassador to the U.N. Nikki Haley announced Tuesday. …
After repeated warnings by the Trump administration, Haley said, “Regrettably, it is now clear that our call for reform was not heeded.”
The administration has argued that the body, which issues a report on Israel at every session, is inherently biased against the U.S. ally. But it’s also criticized it for including repressive regimes among its ranks and not speaking out against member states.
[386] Article: “U.S. Withdraws from U.N. Human Rights Council Over Perceived Bias Against Israel.” By Carol Morell. Washington Post, June 19, 2018. <www.washingtonpost.com>
The Trump administration withdrew from the United Nations Human Rights Council on Tuesday in protest of what it perceives as an entrenched bias against Israel and a willingness to allow notorious human rights abusers as members.
A year ago, she [Haley] denigrated it as a “forum for politics, hypocrisy and evasion,” and threatened a U.S. exit if the council did not kick out abusive regimes and remove Item 7, the standing resolution critical of Israel’s treatment of Palestinians.
[387] Entry: “International Law.” By Malcolm Shaw. Encyclopedia Britannica, July 26, 1999. Revised 9/30/08. <www.britannica.com>
Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. … Countries that do not sign and ratify a treaty are not bound by its provisions.
[388] Ruling: Medellin v. Texas. U.S. Supreme Court, March 25, 2008. Decided 6–3. Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Concurring: Stevens. Dissenting: Breyer, Ginsberg, Souter. <caselaw.findlaw.com>
Majority:
No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ [International Court of Justice] jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. … In sum, while treaties “may comprise international commitments … they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).2 …
The interpretation of a treaty, like the interpretation of a statute, begins with its text. Air France v. Saks, 470 U. S. 392, 396-397 (1985). Because a treaty ratified by the United States is “an agreement among sovereign powers,” we have also considered as “aids to its interpretation” the negotiation and drafting history of the treaty as well as “the post ratification understanding” of signatory nations. …
[N]either our approach nor our cases require that a treaty provide for self-execution in so many talismanic words; that is a caricature of the Court’s opinion. Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.
2 The label “self-executing” has on occasion been used to convey different meanings. What we mean by “self-executing” is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.
Dissent:
The case law provides no simple magic answer to the question whether a particular treaty provision is self-executing. But the case law does make clear that, insofar as today’s majority looks for language about “self-execution” in the treaty itself and insofar as it erects “clear statement” presumptions designed to help find an answer, it is misguided. …
… Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation’s domestic law regards the provision’s legal status. And that domestic status-determining law differs markedly from one nation to another. …
The majority correctly notes that the treaties do not explicitly state that the relevant obligations are self-executing. But given the differences among nations, why would drafters write treaty language stating that a provision about, say, alien property inheritance, is self-executing? How could those drafters achieve agreement when one signatory nation follows one tradition and a second follows another? Why would such a difference matter sufficiently for drafters to try to secure language that would prevent, for example, Britain’s following treaty ratification with a further law while (perhaps unnecessarily) insisting that the United States apply a treaty provision without further domestic legislation? Above all, what does the absence of specific language about “self-execution” prove? It may reflect the drafters’ awareness of national differences. It may reflect the practical fact that drafters, favoring speedy, effective implementation, conclude they should best leave national legal practices alone. It may reflect the fact that achieving international agreement on this point is simply a game not worth the candle. …
The case law also suggests practical, context-specific criteria that this Court previously used to help determine whether, for Supremacy Clause purposes, a treaty provision is self-executing. The provision’s text matters very much.
[389] Ruling: Whitney v. Robertson. U.S. Supreme Court, January 9, 1888. Decided 7–0. Majority: Field, Waite, Miller, Bradley, Harlan, Matthews, Blatchford. <caselaw.findlaw.com>
A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing.
[390] Ruling: Foster v. Neilson. U.S. Supreme Court, January 1, 1829. Decided 6–0. Majority: Marshall, Duvall, Johnson, Story, Thomson, Washington. <caselaw.findlaw.com>
A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.
In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.
[391] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>
Pages 528–529:
Several references have been made above to a distinction between treaties as self-executing and as merely executory, in which case they are enforceable only after the enactment of “legislation to carry them into effect.”339 But what is it about a treaty that makes it the law of the land and gives a private litigant the right to rely on it in a court of law? As early as 1801, the Supreme Court took notice of a treaty, and, finding it applicable to the situation before it, gave judgment for the petitioner based on it.340 In Foster v. Neilson,341 Chief Justice Marshall explained that a treaty is to be regarded “as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.” A treaty will not be self-executing, however, “when the terms of the [treaty] stipulation import a contract—when either of the parties engages to perform a particular act….” When this is the case, “the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court.”342
Sometimes the nature of a treaty will determine whether it requires legislative execution or “conveys an intention that it be ‘self-executing’ and is ratified on these terms.”343 One authority states that whether a treaty is self-executing “depends upon whether the obligation is imposed on private individuals or on public authorities….”
… It may well be that these two characteristics merge with each other at many points and the language of the Court is not always helpful in distinguishing them.345
342 27 U.S. (2 Pet.) at 314. Generally, qualifications may have been inserted in treaties out of a belief in their constitutional necessity or because of some policy reason. In regard to the former, it has always apparently been the practice to insert in treaties affecting the revenue laws of the United States a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress. 1 W. Willoughby, supra, at 558. Perhaps of the same nature was a qualification that cession of certain property in the Canal Zone should be dependent upon action by Congress inserted in Article V of the 1955 Treaty with Panama. TIAS 3297, 6 U.S.T. 2273, 2278. In regard to the latter, it may be noted that Article V of the Webster-Ashburton Treaty, 8 Stat. 572, 575 (1842), providing for the transfer to Canada of land in Maine and Massachusetts was conditioned upon assent by the two states and payment to them of compensation. S. Crandall, supra, at 222–224.
[392] Report: “International Law and Agreements: Their Effect Upon U.S. Law.” By Stephen P. Mulligan. Congressional Research Service. Updated September 19, 2018. <fas.org>
Page 15:
Some provisions of international treaties or executive agreements are considered “self-executing,” meaning that they have the force of domestic law without the need for subsequent congressional action.113 Provisions that are not considered self-executing are understood to require implementing legislation to provide U.S. agencies with legal authority to carry out the functions and obligations contemplated by the agreement or to make them enforceable in court.114 The Supreme Court has deemed a provision non-self-executing when the text manifests an intent that the provision not be directly enforceable in U.S. courts115 or when the Senate conditions its advice and consent on the understanding that the provision is non-self-executing.116
113 See, e.g., Medellín v. Texas, 552 U.S. 491, 505 n.2 (2008) (“What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification.”); Cook v. United States, 288 U.S. 102, 119 (1933) (“For in a strict sense the [t]reaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions.”); Foster v. Neilson, 27 (2 Pet.) U.S. 253, 254 (1829) (Marshall, C.J.) (describing a treaty as “equivalent to an act of the legislature” when it “operates of itself without the aid of any legislative provision”), overruled on other grounds by United States v. Perchemann, 32 (7 Pet.) U.S. 51 (1833)).
115 See, e.g., Medellín, 552 U.S. at 507-08 (holding that Article 94 of the U.N. Charter, which states that each member of the U.N. “undertakes to comply” with the decisions of the International Court of Justice (ICJ) did not render an ICJ decision self-executing in the sense that it overrode contradictory state law); Foster, 27 U.S. at 254 (concluding that a provision in a treaty between United States and Spain that purported to preserve prior Spanish lands grants was nonself-executing).
116 See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (“[T]he United States ratified the ICCPR [International Covenant on Civil and Political Rights] on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.”).
Page 16:
[I]nternational law generally allows each individual nation to decide how to implement its treaty commitments into its own domestic legal system.128 The self-execution doctrine concerns how a treaty provision is implemented in U.S. domestic law, but it does not affect the United States’ obligation to comply with the provision under international law.129 When a treaty is ratified or an executive order concluded, the United States acquires obligations under international regardless of self-execution, and it may be in default of the obligations unless implementing legislation is enacted.130
Page 21:
Treaties and executive agreements that are not self-executing, on the other hand, have generally been understood not to displace existing state or federal law in the absence of implementing legislation.160 “The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.”161 Accordingly, it appears unlikely that a non-self-executing agreement could be converted into judicially enforceable domestic law absent legislative action through the bicameral process.162
161 Medellín v. Texas, 552 U.S. 491, 525-26 (2008).
162 Id. (holding that presidential memorandum ordering a U.S. state court to give effect to non-self-executing treaty requirement did not constitute federal law preempting the state’s procedural default rules).
[393] Constitution of the United States. Signed September 17, 1787. Enacted June 21, 1788. <www.justfacts.com>
Article VI, Clause 2 (<www.justfacts.com>):
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
[394] Constitution of the United States. Signed September 17, 1787. Enacted June 21, 1788. <www.justfacts.com>
Article VI, Clause 2 (<www.justfacts.com>):
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article I, Section 8, Clause 18 (<www.justfacts.com>):
[The Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
[395] Ruling: Ware v. Hylton. U.S. Supreme Court, February 1, 1796. Decided 5–0. Majority: Chase, Cushing, Wilson, Iredell, Paterson. <caselaw.findlaw.com>
If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides “That all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution, or laws, of any State to the contrary notwithstanding.” There can be no limitation on the power of the people of the United States. By their authority the State Constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the State Constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the Constitution of a State (which is the fundamental law of the State, and paramount to its Legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act [3 U.S. 199, 237] of the State Legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded.
[396] Ruling: De Geofroy v. Riggs. U.S. Supreme Court, February 3, 1890. Decided 8–0. Majority: Field, Fuller, Bradley, Blatchford, Gray, Lamar, Miller, Brewer. <www.law.cornell.edu>
Article 7 of the convention of 1800 was in force when the act of Congress adopting the laws of Maryland, February 27, 1801, was passed. That law adopted and continued in force the law of Maryland as it then existed. It did not adopt the law of Maryland as it existed previous to the treaty, for that would have been in effect to repeal the treaty so far as the District of Columbia was affected. In adopting it as it then existed, it adopted the law, with its provisions suspended during the continuance of the treaty, so far as they conflicted with it. In other words, the treaty, being part of the supreme law of the land, controlled the statute and common law of Maryland whenever it differed from them. The treaty expired by its own limitation in eight years pursuant to an article inserted by the Senate. 8 Stat. 192. During its continuance, citizens of France could take property in the District of Columbia by inheritance from citizens of the United States. But after its expiration, that right was limited, as provided by the statute and common law of Maryland, as adopted by Congress on the 27th of February, 1801, until the convention between the United States and France was concluded, February 23, 1853.
[397] Ruling: Whitney v. Robertson. U.S. Supreme Court, January 9, 1888. Decided 7–0. Majority: Field, Waite, Miller, Bradley, Harlan, Matthews, Blatchford. <caselaw.findlaw.com>
By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing.
[398] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>
Page 526: “What happens when a treaty provision and an act of Congress conflict? The answer is that neither has any intrinsic superiority over the other and therefore the later one will prevail.”
[399] Ruling: Whitney v. Robertson. U.S. Supreme Court, January 9, 1888. Decided 7–0. Majority: Field, Waite, Miller, Bradley, Harlan, Matthews, Blatchford. <caselaw.findlaw.com>
By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing.
[400] Ruling: Reid v. Covert. U.S. Supreme Court, June 11, 1956. Decided 6–2. Majority: Black, Warren, Douglas, Brennan. Concurring: Frankfurter. Concurring: Harlan. Dissent: Clark, Burton. <www.law.cornell.edu>
Majority: “This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.”
[401] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>
Page 526: “What happens when a treaty provision and an act of Congress conflict? The answer is that neither has any intrinsic superiority over the other and therefore the later one will prevail.”
[402] Ruling: Reid v. Covert. U.S. Supreme Court, June 11, 1956. Decided 6–2. Majority: Black, Warren, Douglas, Brennan. Concurring: Frankfurter. Concurring: Harlan. Dissent: Clark, Burton. <caselaw.findlaw.com>
Majority:
The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.
Article VI, the Supremacy Clause of the Constitution, declares:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; …
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect.31
It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.32 In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined. …
This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.34 It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.
[403] Ruling: Igartua de la Rosa v. United States. U.S. Court of Appeals for the First Circuit, August 2, 2005. Decided 7–0. Majority: Boudin, Campbell, Torruella, Selya, Lynch, Lipez, Howard. <caselaw.findlaw.com>
Treaties—sometimes—have the force of domestic law, just like legislation; but the Constitution is the supreme law of the land, and neither a statute nor a treaty can override the Constitution. …
… The present claim is also probably not justiciable in the sense that any effective relief could be provided; 4 it is enough to let common sense play upon the conjecture that the Constitution would be amended if only a federal court declared that a treaty’s generalities so required.
[404] Ruling: De Geofroy v. Riggs. U.S. Supreme Court, February 3, 1890. Decided 8–0. Majority: Field, Fuller, Bradley, Blatchford, Gray, Lamar, Miller, Brewer. <www.law.cornell.edu>
The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 114 U. S. 541. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; People v. Gerke, 5 Cal. 381.
[405] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>
Pages 531–532:
Constitutional Limitations on the Treaty Power
A question growing out of the discussion above is whether the treaty power is bounded by constitutional limitations. By the Supremacy Clause, both statutes and treaties “are declared … to be the supreme law of the land, and no superior efficacy is given to either over the other.”357 As statutes may be held void because they contravene the Constitution, it should follow that treaties may be held void, the Constitution being superior to both. And indeed the Court has numerous times so stated.358 It does not appear that the Court has ever held a treaty unconstitutional,359 although there are cases in which the decision seemed to be compelled by constitutional considerations.360
357 Whitney v. Robertson, 124 U.S. 190, 194 (1888).
358 “The treaty is … a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853). “It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. (11 Wall.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).
359 W. Willoughby, supra, at 561; L. Henkin, supra, at 137. In Power Authority of New York v. FPC, 247 F.2d 538 (2d Cir. 1957), a reservation attached by the Senate to a 1950 treaty with Canada was held invalid. The court observed that the reservation was properly not a part of the treaty but that if it were it would still be void as an attempt to circumvent constitutional procedures for enacting amendments to existing federal laws. The Supreme Court vacated the judgment on mootness grounds. 355 U.S. 64 (1957). In United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953), an executive agreement with Canada was held void as conflicting with existing legislation. The Supreme Court affirmed on nonconstitutional grounds. 348 U.S. 296 (1955).
360 Cf. City of New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Rocca v. Thompson, 223 U.S. 317 (1912).
[406] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Accessed December 14, 2018 at <indicators.ohchr.org>
United States of America
Declarations
International Convention on the Elimination of All Forms of Racial Discrimination
[N]othing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America. … The Senate’s advice and consent is subject to the following understanding, which shall apply to the obligations of the United States under this Convention: That the United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. … The Senate’s advice and consent is subject to the following declaration: That the United States declares that the provisions of the Convention are not self-executing. …
International Covenant on Civil and Political Rights …
Reservations: (1) That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. … (3) That the United States considers itself bound by article 7 to the extent that “cruel, inhuman or degrading treatment or punishment” means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. … Understandings: … (5) That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant. Declarations: (1) That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing. …
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment …
The Senate’s advice and consent is subject to the following reservations: … That the United States considers itself bound by the obligation under article 16 to prevent “cruel, inhuman or degrading treatment or punishment,” only insofar as the term “cruel, inhuman or degrading treatment or punishment” means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. … The Senate’s advice and consent is subject to the following declarations: (1) That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing. …
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography …
To the extent that the domestic law of the United States does not provide for jurisdiction over an offense described in Article 3 (1) of the Protocol if the offense is committed on board a ship or aircraft registered in the United States, the obligation with respect to jurisdiction over that offense shall not apply to the United States until such time as the United States may notify the Secretary-General of the United Nations that United States domestic law is in full conformity with the requirements of Article 4 (1) of the Protocol. The Senate’s advice and consent is subject to the following understandings: … The United States understands that the Protocol shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the State and local governments. To the extent that State and local governments exercise jurisdiction over such matters, the Federal Government shall as necessary, take appropriate measures to ensure the fulfillment of the Protocol.
[407] Paper: “Reservations to the Convention on the Rights of the Child.” By William A. Schabas. Human Rights Quarterly, May 1996. Pages 472–491. <www.jstor.org>
Page 473: “Making reservations to multilateral treaties is a well-accepted practice in international law.4 … It also encourages ratification, because it is possible for a state to avoid assuming obligations in conflict with certain aspects of its internal legislation.”
[408] “Resolution of Ratification: Senate Consideration of Treaty Document 95-20.” United States Senate, April 2, 1992. <www.congress.gov>
“The Senate’s advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President: Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”
[409] Paper: “U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence.” By Kristina Ash. Northwestern Journal of International Human Rights, 2005. <scholarlycommons.law.northwestern.edu>
Page 4 (of PDF): “In 1992, after attaching a number of RUDs [reservations, understandings, and declarations] which rendered the treaty powerless under domestic law, the United States Senate finally voted to ratify the ICCPR [International Covenant on Civil and Political Rights], twenty-six years after it was unanimously adopted by the U.N.”
[410] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Accessed December 14, 2018 at <indicators.ohchr.org>
United States of America … International Convention on the Elimination of All Forms of Racial Discrimination … Ratification Status [=] Signature: 1966, Ratification/Accession: 1994 … International Covenant on Civil and Political Rights … Ratification Status [=] Signature: 1977, Ratification/Accession: 1992 … Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment … Ratification Status [=] Signature: 1988, Ratification/Accession: 1994 … Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [=] Signature: 2000, Ratification/Accession: 2002 … Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography [=] Signature: 2000, Ratification/Accession: 2002
[411] Entry: “International Law.” By Malcolm Shaw. Encyclopedia Britannica, July 26, 1999. Revised 9/30/08. <www.britannica.com>
Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. … Countries that do not sign and ratify a treaty are not bound by its provisions. … A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith.
[412] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
A “State Party” to a treaty is a state that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after formal reception by the United Nations Secretariat of the State’s decision to be a party). A “Signatory” to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it.
[413] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
“United States of America … International Covenant on Economic, Social and Cultural Rights … Signature: 1977, Ratification/Accession: NA … Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: 2013 … Signature: NA, Ratification/Accession: NA”
[414] “Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.” United Nations General Assembly, December 10, 2008. <www.ohchr.org>
[I]n order to further to achieve the purposes of the Covenant and the implementation of its provisions, it would be appropriate to enable the Committee on Economic, Social and Cultural Rights … to carry out the functions provided for in the present Protocol….
Article 1
Competence of the Committee to Receive and Consider Communication
1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications as provided for by the provisions of the present Protocol.
2. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.
Article 2
Communications
Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation on any of the economic, social and cultural rights set forth in the Covenant by that State Party.
[415] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
“United States of America … Convention on the Rights of the Child … Signature: 1995, Ratification/Accession: NA … Optional Protocol to the Convention on the Rights of the Child on a communications procedure … Signature: NA, Ratification/Accession: NA”
[416] “Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.” United Nations General Assembly, December 19, 2011. <www.ohchr.org>
[I]t would be appropriate to enable the Committee on the Rights of the Child … to carry out the functions provided for in the present Protocol….
Article 5
Individual Communications
1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in any of the following instruments to which that State is a party:
• The Convention;
• The Optional Protocol to the Convention on the sale of children, child prostitution and child pornography;
• The Optional Protocol to the Convention on the involvement of children in armed conflict.
[417] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
“United States of America … Convention on the Elimination of All Forms of Discrimination against Women … Signature: 1980, Ratification/Accession: NA … Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women … Signature: NA, Ratification/Accession: NA”
[418] “Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women.” United Nations General Assembly, October 15, 1999. <www.ohchr.org>
Article 1
A State Party to the present Protocol (“State Party”) recognizes the competence of the Committee on the Elimination of Discrimination against Women (“the Committee”) to receive and consider communications submitted in accordance with article 2.
Article 2
Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.
[419] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
“United States of America … International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families … Signature: NA, Ratification/Accession: NA”
[420] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
“United States of America … International Convention for the Protection of All Persons From Enforced Disappearance … Signature: NA, Ratification/Accession: NA”
[421] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
“United States of America … Convention on the Rights of Persons with Disabilities … Signature: 2008, Ratification/Accession: NA … Optional Protocol to the Convention on the Rights of Persons with Disabilities … Signature: NA, Ratification/Accession: NA”
[422] “Optional Protocol to the Convention on the Rights of Persons with Disabilities.” United Nations General Assembly, December 13, 2006. <www.ohchr.org>
“A State Party to the present Protocol (“State Party”) recognizes the competence of the Committee on the Rights of Persons with Disabilities (“the Committee”) to receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention.”
[423] Webpage: “Human Rights Bodies.” United Nations Office of the High Commissioner for Human Rights. Accessed May 14, 2019 at <www.ohchr.org>
There are currently ten human rights treaty bodies, which are committees of independent experts. Nine of these treaty bodies monitor implementation of the core international human rights treaties while the tenth treaty body, the Subcommittee on Prevention of Torture, established under the Optional Protocol to the Convention against Torture, monitors places of detention in States parties to the Optional Protocol.
[424] Webpage: “Human Rights Treaty Bodies.” United Nations Office of the High Commissioner for Human Rights. Accessed May 14, 2019 at <www.ohchr.org>
The human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. Each State party to a treaty has an obligation to take steps to ensure that everyone in the State can enjoy the rights set out in the treaty.
Currently, there are nine human rights international treaties, and one optional protocol, from which 10 treaty bodies have been established. The treaty bodies are composed of independent experts of recognized competence in human rights, who are nominated and elected for fixed renewable terms of four years by State parties.
[425] Entry: “Universal Declaration of Human Rights.” By George J. Andreopoulos. Encyclopedia Britannica, July 20, 1998. Revised 3/17/05. <www.britannica.com>
After minor changes it was adopted unanimously—though with abstentions from the Belorussian Soviet Socialist Republic (SSR), Czechoslovakia, Poland, Saudi Arabia, South Africa, the Soviet Union, the Ukrainian SSR, and Yugoslavia—by the UN General Assembly on December 10, 1948 (now celebrated annually as Human Rights Day), as a “common standard of achievement for all peoples and all nations.”
[426] Webpage: “History of the Document.” United Nations. Accessed November 12, 2018 at <www.un.org>
Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, chaired the UDHR [Universal Declaration of Human Rights] drafting committee. With her were René Cassin of France, who composed the first draft of the Declaration, the Committee Rapporteur Charles Malik of Lebanon, Vice-Chairman Peng Chung Chang of China, and John Humphrey of Canada, Director of the UN’s Human Rights Division, who prepared the Declaration’s blueprint. But Mrs. Roosevelt was recognized as the driving force for the Declaration’s adoption. …
[427] Entry: “Universal Declaration of Human Rights.” By George J. Andreopoulos. Encyclopedia Britannica, July 20, 1998. Revised 3/17/05. <www.britannica.com>
Universal Declaration of Human Rights (UDHR), foundational document of international human rights law. It has been referred to as humanity’s Magna Carta by Eleanor Roosevelt, who chaired the United Nations (UN) Commission on Human Rights that was responsible for the drafting of the document. …
The document’s nonbinding status was initially perceived as one of its major weaknesses. Authoritarian states, which usually sought to protect themselves against what they considered interference in their internal affairs, approved of this feature of the declaration, and even some democratic countries initially worried about the potentially intrusive nature of the obligations that a legally binding document would impose. Some observers have argued, however, that its nonbinding status is one of the UDHR’s major advantages. Its inherent flexibility has offered ample room for new strategies to promote human rights and has allowed it to serve as a springboard for the development of numerous legislative initiatives in international human rights law, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of which were adopted in 1966. In addition, the UDHR has been reaffirmed in numerous resolutions passed by organs and agencies of the UN, and many countries have incorporated it into their national constitutions. These developments have led many analysts to conclude that, despite its nonbinding status, its provisions have achieved a juridical status akin to that of norms of customary international law.
[428] Webpage: “The Foundation of International Human Rights Law.” United Nations. Accessed November 12, 2018 at <www.un.org>
The Universal Declaration of Human Rights is generally agreed to be the foundation of international human rights law. Adopted in 1948, the UDHR has inspired a rich body of legally binding international human rights treaties. It continues to be an inspiration to us all whether in addressing injustices, in times of conflicts, in societies suffering repression, and in our efforts towards achieving universal enjoyment of human rights.
[429] Report: “The Human Rights Council: A Practical Guide.” Permanent Mission of Switzerland to the United Nations Office, 2015. <www.eda.admin.ch>
Page 11:
The Universal Periodic Review (UPR) …
The UPR is based on the legal and political commitments to human rights contained in the United Nations Charter, the Universal Declaration of Human Rights, the international human rights instruments to which the states under review are party, and the voluntary commitments made by the states, especially those undertaken when presenting their candidature for election to the HRC [Human Rights Council].
[430] Entry: “Universal Declaration of Human Rights.” By George J. Andreopoulos. Encyclopedia Britannica, July 20, 1998. Revised 3/17/05. <www.britannica.com>
“The UDHR [Universal Declaration of Human Rights] comprises 30 articles that contain a comprehensive listing of key civil, political, economic, social, and cultural rights. Articles 3 through 21 outline civil and political rights, which include the right against torture, the right to an effective remedy for human rights violations, and the right to take part in government.”
[431] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. …
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
[432] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. …
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of penalty be imposed than the one that was applicable at the time the penal offence was committed.
[433] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. …
Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
[434] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
[435] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.
[436] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 21
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
[437] Entry: “Universal Declaration of Human Rights.” By George J. Andreopoulos. Encyclopedia Britannica, July 20, 1998. Revised 3/17/05. <www.britannica.com>
“Articles 22 through 27 detail economic, social, and cultural rights, such as the right to work, the right to form and to join trade unions, and the right to participate freely in the cultural life of the community.”
[438] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
[439] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
[440] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.
[441] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
[442] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 27 …
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
[443] “Universal Declaration of Human Rights.” United Nations. Accessed December 13, 2018 at <www.un.org>
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
[444] Book: The Universal Declaration of Human Rights: Origins, Drafting, and Intent. By Johannes Morsink. University of Pennsylvania Press, 1999.
Page 86:
[T]he Second Session adopted the following text: “All laws in any State shall be in conformity with the purposes and principles of the United Nations as embodied in the Charter insofar as they deal with human rights.” … That is a positive demand for implementation and was for that very reason rejected. But it is not all that different from the phrase “not be contrary to,” which is how this article came to be rephrased….
As a result of Egyptian and French proposals the Third Committee added this paragraph to Article 29: “These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.” We should note that the disagreement between General Romulo, who wanted just the Charter mentioned and Professor Cassin, who had wanted to also make reference to the Declaration, was settled by way of a compromise. Neither document is mentioned. But the new wording leaves no doubt that “the purposes and principles of the United Nations” include the rights listed in the Declaration, for they were proclaimed by the Third General Assembly of the United Nations. This is a roundabout way of saying that the legal systems of countries should be in conformity with the Declaration.
[445] “International Covenant on Economic, Social and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
“Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 … entry into force 3 January 1976, in accordance with article 27”
[446] Entry: “International Law.” By Malcolm Shaw. Encyclopedia Britannica, July 26, 1999. Revised 9/30/08. <www.britannica.com>
Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. … Countries that do not sign and ratify a treaty are not bound by its provisions. … A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith.
[447] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Accessed December 14, 2018 at <indicators.ohchr.org>
“United States of America … International Covenant on Economic, Social, and Cultural Rights: 1976 … Ratification Status [=] Signature: 1977, Ratification/Accession: N/A”
[448] Webpage: “Treaties Pending in the Senate.” U.S. Department of State. Updated as of January 2, 2019. <www.state.gov>
“International Covenant on Economic, Social and Cultural Rights, done at New York December 16, 1966, and signed by the United States on October 5, 1977 (Treaty Doc.: Ex. D, 95th Cong., 2nd Sess.); submitted to Senate February 23, 1978.”
[449] Entry: “International Law.” By Malcolm Shaw. Encyclopedia Britannica, July 26, 1999. Revised 9/30/08. <www.britannica.com>
Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. … Countries that do not sign and ratify a treaty are not bound by its provisions.
[450] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
[451] Article: “Human Rights.” By Burns H. Weston. Encyclopedia Britannica, July 20, 1998. Revised 3/20/14. <www.britannica.com>
The International Covenant on Economic, Social and Cultural Rights …
Unlike its companion agreement … generally this covenant, sometimes called a “promotional convention,” was not intended for immediate implementation, the state parties having agreed only to “take steps” toward “achieving progressively the full realization of the rights recognized in the … Covenant,” and then subject to “the maximum of [their] available resources.”
[452] Article: “Emerging Limitations on the Rights of the Child: The U.N. Convention on the Rights of the Child and Its Early Case Law.” By Jonathan Todres. Georgia State University College of Law Reading Room, January 1, 1998. <readingroom.law.gsu.edu>
Page 178:
In many respects the ICESCR is a relatively weak international human rights treaty, since it generally only requires States Parties to “take steps” toward ensuring rights rather than requiring that they ensure those rights.90
90 Since the International Covenant on Economic, Social and Cultural Rights only requires that States Parties “take steps” toward the realization of certain rights, it is difficult to assess whether a State Party has fulfilled its obligations. Further, some States Parties may “fulfill” their obligations by taking relatively small or insignificant steps towards ensuring the rights in the Covenant. See id.
[453] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 6
1. The State Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
[454] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant….
[455] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: …
(b) Safe and healthy working conditions….
[456] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: …
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.
[457] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; …
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.
[458] Entry: “trade union.” American Heritage Dictionary of the English Language. Houghton Mifflin, 2016. <www.thefreedictionary.com>
“A labor union, especially one limited in membership to people in the same trade.”
[459] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
“The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.”
[460] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
[461] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
[462] “International Covenant on Economic, Social, and Cultural Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 13
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
[463] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
A “State party” to a treaty is a State that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after formal reception by the United Nations Secretariat of the State’s decision to be a party). A “Signatory to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it. “No action” means that a State did not express its consent. … International Covenant on Economic, Social, and Cultural Rights … State Party (169) … Signatory (4) … No Action (24)
[464] “Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.” United Nations General Assembly, December 10, 2008. <www.ohchr.org>
[I]n order to further to achieve the purposes of the Covenant and the implementation of its provisions, it would be appropriate to enable the Committee on Economic, Social and Cultural Rights … to carry out the functions provided for in the present Protocol….
Article 1
Competence of the Committee to Receive and Consider Communication
1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications as provided for by the provisions of the present Protocol.
2. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.
Article 2
Communications
Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation on any of the economic, social and cultural rights set forth in the Covenant by that State Party.
[465] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
A “State party” to a treaty is a State that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after formal reception by the United Nations Secretariat of the State’s decision to be a party). A “Signatory to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it. “No action” means that a State did not express its consent. … State Party (24) … Signatory (25) … No Action (149)
[466] “International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
“Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49”
[467] Entry: “United Nations.” By Jacques Fomerand, Karen Mingst, and Cecelia M. Lynch. Encyclopedia Britannica, July 26, 1999. Updated 10/13/17. <www.britannica.com>
“[T]he [UN] General Assembly eventually adopted the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights in 1966. The covenants, which entered into force in 1976, are known collectively, along with the Universal Declaration of Human Rights, as the international bill of rights.”
[468] Entry: “International Law.” By Malcolm Shaw. Encyclopedia Britannica, July 26, 1999. Revised 9/30/08. <www.britannica.com>
Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. … Countries that do not sign and ratify a treaty are not bound by its provisions. … A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith.
[469] Paper: “U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence.” By Kristina Ash. Northwestern Journal of International Human Rights, 2005. <scholarlycommons.law.northwestern.edu>
Page 4 (of PDF): “In 1992, after attaching a number of RUDs [reservations, understandings, and declarations] which rendered the treaty powerless under domestic law, the United States Senate finally voted to ratify the ICCPR [International Covenant on Civil and Political Rights], twenty-six years after it was unanimously adopted by the U.N.”
Page 5 (of PDF): “Even though U.S. Congressmen ‘recognize[d] the importance of adhering to internationally recognized standards of human rights,’44 they nonetheless excepted the United States from several provisions in the treaty by making an unprecedented number of RUDs.”
[470] “Resolution of Ratification: Senate Consideration of Treaty Document 95-20.” United States Senate, April 2, 1992. <www.congress.gov>
“The Senate’s advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President: Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”
[471] Webpage: “Status of Ratification Interactive Dashboard: United States of America.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
International Covenant on Civil and Political Rights (ICCPR)
Reservations:
(1) That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. …
(3) That the United States considers itself bound by article 7 to the extent that “cruel, inhuman or degrading treatment or punishment” means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. …
That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant.
[472] “International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 2 …
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. …
[473] “International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. …
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
[474] “International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 8
1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. …
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release. …
[475] “International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release. …
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by the law. …
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.
[476] “International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. …
Article 19
1. Everyone shall have the right to hold opinions without interference. …
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Article 22
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. …
[477] “International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16, 1966. <www.ohchr.org>
Article 25
Every citizen shall have the right and the opportunity…
(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors….
[478] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
A “State party” to a treaty is a State that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after formal reception by the United Nations Secretariat of the State’s decision to be a party). A “Signatory to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it. “No action” means that a State did not express its consent. … International Covenant on Civil and Political Rights … State Party (172) … Signatory (6) … No Action (19)
[479] “Optional Protocol to the International Covenant on Civil and Political Rights.” United Nations General Assembly, December 16,1966. <www.ohchr.org>
Article 1
A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the right set forth in the Covenant. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.
Article 2
Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.
[480] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
Optional Protocol to the International Covenant on Civil and Political Rights … A “State party” to a treaty is a State that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after formal reception by the United Nations Secretariat of the State’s decision to be a party). A “Signatory to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it. “No action” means that a State did not express its consent. … State Party (116) … Signatory (3) … No Action (78) …
United States of America … Optional Protocol to the International Covenant on Civil and Political Rights: 1976 … Signature: NA, Ratification/Accession: NA
[481] “Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty.” United Nations General Assembly, December 15,1989. <www.ohchr.org>
Article 1
1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.
2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.
[482] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty … A “State party” to a treaty is a State that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after formal reception by the United Nations Secretariat of the State’s decision to be a party). A “Signatory to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it. “No action” means that a State did not express its consent. … State Party (87) … Signatory (1) … No Action (109) …
United States of America … Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty: 1991 … Signature: NA, Ratification/Accession: NA
[483] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
“Adopted and opened for signature, ratification and accession by the General Assembly resolution 44/25 as of 20 November 1989 … entry into force 2 September 1990, in accordance with article 49”
[484] Entry: “International Law.” By Malcolm Shaw. Encyclopedia Britannica, July 26, 1999. Revised 9/30/08. <www.britannica.com>
Treaties are known by a variety of terms—conventions, agreements, pacts, general acts, charters, and covenants—all of which signify written instruments in which the participants (usually but not always states) agree to be bound by the negotiated terms. … Countries that do not sign and ratify a treaty are not bound by its provisions. … A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith.
[485] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated April 15, 2019. <indicators.ohchr.org>
“United States of America … Convention on the Rights of the Child: 1990 [=] Signature: 1995, Ratification/Accession: NA”
[486] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Page 2 (of PDF):
The Clinton Administration signed the Convention in February 1995, but did not submit it to the Senate primarily because of strong opposition from several Members of Congress. The George W. Bush Administration opposed CRC [Convention on the Rights of the Child] and expressed serious political and legal concerns with the treaty, arguing that it conflicted with U.S. laws regarding privacy and family rights. The election of President Obama in 2008 focused renewed attention on the possibility of U.S. ratification. The Administration has stated that it supports the goals of the Convention and that the decision to pursue ratification of CRC is being determined through an interagency policy review.
Page 4: “The United States has signed, but not ratified, the Convention on the Rights of the Child, and the President has not transmitted CRC to the Senate for its advice and consent to ratification.”
[487] “Report of the Secretary-General: Status of the Convention on the Rights of the Child.” United Nations General Assembly, August 24, 2017. <reliefweb.int>
Page 2: “As at 1 July 2017, the Convention on the Rights of the Child has been ratified or acceded to by 196 States. One Member State, the United States of America, is not yet party to the Convention.”
[488] Webpage: “Status of Ratification: Convention on the Rights of the Child.” United Nations Office of the High Commissioner for Human Rights. Last updated April 15, 2019. <indicators.ohchr.org>
A “State Party” to a treaty is a State that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after forma reception by the United Nations Secretariat of the State’s decision to be a party.) A “Signatory” to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it. … Country Status … State Party (196) … Signatory (1)
[489] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
“United States of America … Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict … Signature: 2000, Ratification/Accession: 2002 … Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography … Signature: 2000, Ratification/Accession: 2002”
[490] “Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.” United Nations General Assembly, December 19, 2011. <www.ohchr.org>
[I]t would be appropriate to enable the Committee on the Rights of the Child … to carry out the functions provided for in the present Protocol….
Article 5
Individual Communications
1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in any of the following instruments to which that State is a party:
• The Convention;
• The Optional Protocol to the Convention on the sale of children, child prostitution and child pornography;
• The Optional Protocol to the Convention on the involvement of children in armed conflict.
[491] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Last updated May 13, 2019. <indicators.ohchr.org>
A “State Party” to a treaty is a State that has expressed its consent, by an act of ratification, accession or succession, and where the treaty has entered into force (or a State about to become a party after formal reception by the United Nations Secretariat of the State’s decision to be a party). A “Signatory” to a treaty is a State that provided a preliminary endorsement of the instrument and its intent to examine the treaty domestically and consider ratifying it. “No action” means that a State did not express its consent. … Optional Protocol to the Convention on the Rights of the Child on a communications procedure … State Party (44) … Signatory (19) … No Action (135) … United States of America … Signature: NA, Ratification/Accession: NA
[492] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 13
1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others; or
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 15
1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.
2. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
NOTE: Just Facts searched the treaty for the words “parents” and “parental.” This produced no results related to the freedom of expression, freedom of association, or freedom of peaceful assembly.
[493] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
[494] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 4
States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.
Article 24
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. …
4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries. …
Article 28 …
3. State Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taking of the needs of developing countries.
[495] “General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child (Arts. 4, 42 and 44, para.6).” United Nations Committee on the Rights of the Child, November 27, 2003. <www.unicef-irc.org>
Article 4, while reflecting States parties’ overall implementation obligation, suggests a distinction between civil and political rights and economic, social and cultural rights in its second sentence: “With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.” There is no simple or authoritative division of human rights in general or of Convention rights into the two categories. The Committee’s reporting guidelines group articles 7, 8, 13–17 and 37 (a) under the heading “Civil rights and freedoms,” but indicate by the context that these are not the only civil and political rights in the Convention. Indeed, it is clear that many other articles, including articles 2, 3, 6 and 12 of the Convention, contain elements which constitute civil/political rights, thus reflecting the interdependence and indivisibility of all human rights. Enjoyment of economic, social and cultural rights is inextricably intertwined with enjoyment of civil and political rights. …
7. The second sentence of article 4 reflects a realistic acceptance that lack of resources—financial and other resources—can hamper the full implementation of economic, social and cultural rights in some States; this introduces the concept of “progressive realization” of such rights: States need to be able to demonstrate that they have implemented “to the maximum extent of their available resources” and, where necessary, have sought international cooperation. When States ratify the Convention, they take upon themselves obligations not only to implement it within their jurisdiction, but also to contribute, through international cooperation, to global implementation (see paragraph 60 below). …
60. Article 4 emphasizes that implementation of the Convention is a cooperative exercise for the States of the world. This article and others in the Convention highlight the need for international cooperation.16 The Charter of the United Nations (Arts. 55 and 56) identifies the overall purposes of international economic and social cooperation, and members pledge themselves under the Charter “to take joint and separate action in cooperation with the Organization” to achieve these purposes. In the United Nations Millennium Declaration and at other global meetings, including the United Nations General Assembly special session on children, States have pledged themselves, in particular, to international cooperation to eliminate poverty.
61. The Committee advises States parties that the Convention should form the framework for international development assistance related directly or indirectly to children and that programmes of donor States should be rights-based. The Committee urges States to meet internationally agreed targets, including the United Nations target for international development assistance of 0.7 per cent of gross domestic product. This goal was reiterated along with other targets in the Monterrey Consensus, arising from the 2002 International Conference on Financing for Development.17 The Committee encourages States parties that receive international aid and assistance to allocate a substantive part of that aid specifically to children. The Committee expects States parties to be able to identify on a yearly basis the amount and proportion of international support earmarked for the implementation of children’s rights.
62. The Committee endorses the aims of the 20/20 initiative, to achieve universal access to basic social services of good quality on a sustainable basis, as a shared responsibility of developing and donor States. The Committee notes that international meetings held to review progress have concluded that many States are going to have difficulty meeting fundamental economic and social rights unless additional resources are allocated and efficiency in resource allocation is increased. The Committee takes note of and encourages efforts being made to reduce poverty in the most heavily indebted countries through the Poverty Reduction Strategy Paper (PRSP). As the central, country-led strategy for achieving the millennium development goals, PRSPs must include a strong focus on children’s rights. The Committee urges Governments, donors and civil society to ensure that children are a prominent priority in the development of PRSPs and sectorwide approaches to development (SWAps). Both PRSPs and SWAps should reflect children’s rights principles, with a holistic, child-centred approach recognizing children as holders of rights and the incorporation of development goals and objectives which are relevant to children.
[496] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 4
… With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. …
Article 26
1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law.
2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.
Article 27
1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
[497] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 4
States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. …
Article 6
1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. …
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. …
Article 19
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. …
Article 32
1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.
2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
(a) Provide for a minimum age or minimum ages for admission to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. …
Article 34
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
Article 35
States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.
Article 36
States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.
Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
[498] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. …
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[499] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Page 3:
[The Convention on the Rights of the Child] states that the best interest of the child should be the primary consideration in all actions concerning children. Countries that are party to CRC agree to take all appropriate legislative, administrative, and other measures to ensure that all children in their jurisdiction have the rights set forth in the Convention. Such rights include life and development; name, nationality, and parental care; health and access to healthcare services; and education. They also include protection from abuse and neglect, and freedom of expression, religion, association, and peaceful assembly. CRC calls for the protection of children from economic, sexual, and other forms of exploitation; torture; and capital punishment for offenses committed before the age of 18. It also provides special protections for orphans, refugees, and the disabled.
[500] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 43
1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.
2. The Committee shall consist of eighteen experts of high moral standing and recognized competence in the field covered by this Convention.1 The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems.
3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.
4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention.
5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.
6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting.
7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee.
8. The Committee shall establish its own rules of procedure.
9. The Committee shall elect its officers for a period of two years.
10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.
11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.
12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.
Article 44
1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights
(a) Within two years of the entry into force of the Convention for the State Party concerned;
(b) Thereafter every five years.
2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.
3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided.
4. The Committee may request from States Parties further information relevant to the implementation of the Convention.
5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities.
6. States Parties shall make their reports widely available to the public in their own countries.
Article 45
In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:
(a) The specialized agencies, the United Nations Children’s Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children’s Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;
(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children’s Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests or indications;
(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child;
(d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.
[501] Webpage: “Committee on the Rights of the Child: Monitoring Children’s Rights.” United Nations Office of the High Commissioner for Human Rights. Accessed January 31, 2019 at <www.ohchr.org>
The Committee on the Rights of the Child (CRC) is the body of 18 Independent experts that monitors implementation of the Convention on the Rights of the Child by its State parties. …
All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. … The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.” …
The Committee also publishes its interpretation of the content of the human rights provisions, known as general comments on thematic issues and organizes days of general discussion.
[502] Paper: “The Role of the United States in the Drafting of the Convention on the Rights of the Child.” By Cynthia Price Cohen. Emory International Law Review, 2006. Pages 185–198. <jjustice.org>
Page 185: “It is indisputable that the United States played a pivotal role in the drafting of the Convention [on the Rights of the Child] and, thus, in changing the world for children.5”
[503] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Pages 5–6: “The Ronald Reagan and George H.W. Bush Administrations played a leading role in drafting CRC [Convention on the Rights of the Child]. Neither Administration supported U.S. ratification, however, due to concerns regarding the Convention’s impact on state and federal laws, parental rights, and U.S. sovereignty.”
[504] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 43
1. For the purpose of the examining the progress made by State Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the child, which shall carry out the functions hereinafter provided.
2. The Committee shall consist of ten experts of high moral standing and recognized competence in the field covered by this Convention. The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems.
[505] “Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.” United Nations General Assembly, May 25, 2000. <www.ohchr.org>
Article 8
1. Each State Party shall submit, within two years following the entry into force of the Protocol for that State Party, a report to the Committee on the Rights of the Child providing comprehensive information on the measures it has taken to implement the provisions of the Protocol, including the measures taken to implement the provisions on participation and recruitment.
2. Following the submission of the comprehensive report, each State Party shall include in the reports they submit to the Committee on the Rights of the Child, in accordance with article 44 of the Convention, any further information with respect to the implementation of the Protocol. Other States Parties to the Protocol shall submit a report every five years.
3. The Committee on the Rights of the Child may request from States Parties further information relevant to the implementation of this Protocol.
[506] “Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.” United Nations General Assembly, May 25, 2000. <www.ohchr.org>
Article 12
1 . Each State Party shall submit, within two years following the entry into force of the Protocol for that State Party, a report to the Committee on the Rights of the Child providing comprehensive information on the measures it has taken to implement the provisions of the Protocol.
2. Following the submission of the comprehensive report, each State Party shall include in the reports they submit to the Committee on the Rights of the Child, in accordance with Article 44 of the Convention, any further information with respect to the implementation of the Protocol. Other States Parties to the Protocol shall submit a report every five years.
3. The Committee on the Rights of the Child may request from States Parties further information relevant to the implementation of this Protocol.
[507] Paper: “Does the U.N. Convention on the Rights of the Child Make a Difference?” By Howard Davidson. Michigan State International Law Review, 2014. <digitalcommons.law.msu.edu>
Pages 507–508: “[T]he U.S. is precluded from playing an influential role in the creation of highly relevant, evolving international human rights law for children because, as a non-party to the core underlying treaty, it cannot participate in the work of, or have membership on, the Committee on the Rights of the Child.”
[508] Resolution LC 28 5696. Georgia General Assembly. Accessed December 14, 2018 at <www.legis.ga.gov>
Urging the members of the United States Senate to oppose ratification of the United Nations Convention on the Rights of the Child; and for other purposes. …
Whereas, the substance of the treaty as interpreted and applied by this official United Nations tribunal bans all corporal punishment, including reasonable spanking by parents; gives the government the authority to review a broad scope of parental decisions without the necessity of proving that the parents are unfit or have harmed the child; allows children and the government to override reasonable and ordinary decisions concerning the religious upbringing of the child; allows the government the ability to review any parental decision concerning the education of their child, even if that decision fully complies with the law of Georgia; requires a level of socialized spending programs for the supposed needs of children, which in too many cases simply employ more government workers, that would bankrupt any American state; and grants to children a legally enforceable right to leisure and many other particular “rights” that are contrary to American traditions and common sense.
Now, therefore, be it resolved by the Senate that the members of this body condemn the United Nations Convention on the Rights of the Child and urge the United States Senate to reject its ratification.
[509] Webpage: “Summary of Senate Resolution 519.” U.S. Senate, 111th Congress (2009–2010). Accessed December 14, 2018 at <www.congress.gov>
Sponsor: DeMint, Jim [R-SC] (Introduced 5/10/10) …
Expresses the sense of the Senate that: (1) the United Nations Convention on the Rights of the Child is incompatible with the U.S. Constitution, laws, and traditions; (2) the Convention would undermine presumptions of freedom and independence for U.S. families; (3) the Convention would interfere with the principles of U.S. sovereignty, independence, and self-government that preclude the propriety of adopting international law to govern domestic matters; and (4) the President should not transmit the Convention to the Senate for its advice and consent.
[510] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Page 2 (of PDF): “The George W. Bush Administration opposed CRC [Convention on the Rights of the Child] and expressed serious political and legal concerns with the treaty, arguing that it conflicted with U.S. laws regarding privacy and family rights.”
Page 7:
Perhaps more than other human rights treaties, CRC addresses areas that are usually considered to be primarily or exclusively under the jurisdiction of state or local governments. … Areas where state and federal laws might conflict include juvenile justice, child labor, child education, welfare, custody and visitation, and adoption.34 State and local jurisdictions often address these issues differently and, according to some, U.S. ratification of CRC could, for the first time, apply federal laws to issues traditionally handled by individual states—thereby undermining the U.S. system of federalism.35
Pages 9–11:
A key area of debate regarding U.S. ratification of CRC is its possible impact on the rights of parents. Some critics have expressed strong concern that the Convention will give the U.N. Committee on the Rights of the Child or the U.S. government authority over the family structure and how parents choose to raise their children.44 Many believe that parents should be able to raise their children in a way that reflects their morals and values without interference from outside parties, and some have argued that under CRC parental responsibility exists only in the context of its role in furthering the independent choices of children.45 Moreover, CRC opponents argue that U.S. ratification would encourage children to disregard parental authority, possibly leading them to file complaints against or sue their parents. Such actions, they argue, would undermine parental rights and give children inappropriate influence over their own lives.46
In particular, some Convention opponents are concerned about how the CRC Committee may interpret the Convention’s provisions on the “best interest of the child,” which is referenced in several articles, including 3, 9, 18, and 40. Critics maintain that allowing a U.N. Committee to interpret what is in the best interest of U.S. children severely undermines the role of U.S. parents to determine how to raise, educate, and discipline their children. …
Privacy – Article 16(1) states, “no child shall be subjected to arbitrary or unlawful interference with his or her privacy.” Some have interpreted this to mean that parents may not have the right to search their children’s rooms or be notified if a child is arrested or undergoes an abortion. …
Freedom of thought, conscience, and religion – Some maintain that Article 14(1), which states that “States Parties shall respect the right of the child to freedom of thought, conscience and religion,” might give children the right to object to their parents’ religious beliefs or training. …
Education – Critics assert that Article 28(1), which states that States Parties recognize “the right of the child to education,” could lead to the government or CRC Committee mandating public schooling or interfering with the right of parents to home-school or send their children to private school. Some are concerned that Article 29(1), which addresses elements that shall be included in a child’s education, could lead to government interference in private school and home-school curricula. …
Freedom of association—Some are concerned that Article 15(1), which calls on States Parties to “recognize the rights of the child to freedom of association and to freedom of peaceful assembly” could give children the right to associate with people that his or her parents do not approve of, including cults or gangs.51
[511] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Page 11:
Supporters of the Convention emphasize that it was established not to circumvent the role of parents but to protect children against government intrusion and abuse. They contend, for example, that Article 16 on the child’s right to privacy is meant to protect children not from their parents but from government intrusion into the child’s or family’s privacy.52 Similarly, proponents maintain that Article 13 on a child’s right to freedom of expression is intended to protect children from states that undermine parental authority by denying children the right to artistic, religious, or other forms of expression. Some also make a similar argument regarding Article 14 on a child’s right to thought, conscience, and religion. In their view, the Article is not meant as a means for children to challenge their parent’s religion or discipline, but to protect children from state interference in these areas, particularly if children are separated from their families. …
Similarly, supporters emphasize that CRC [Convention on the Rights of the Child] provisions on children’s access to information (Article 17) and freedom of association (Article 15) are meant to protect children not from parental authority, but from government intrusion in these areas.54 CRC supporters also note that provisions that address a child’s right to education (Articles 28 and 29) are not intended to undermine the role of parents in choosing a child’s education. Rather, they are meant to establish and protect children’s rights in countries with poor or unbalanced educational systems.
Page 12: “Advocates further assert that there is no language in the Convention that allows for prosecutions, lawsuits, or investigations of parents or guardians. Any such actions, they argue, would be based on existing U.S. laws rather than CRC provisions or recommendations of the CRC Committee.56”
[512] Book: The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification. Edited by Jonathan Todres, Mark E. Wojcik, and Cris R. Revas. Transnational Publishers, 2006. Chapter 3: “Analyzing the Opposition to U.S. Ratification of the U.N. Convention on the Rights of the Child.” By Jonathan Todres. Pages 19–32.
Page 20: “The drafters of the CRC [Convention on the Rights of the Child] never intended the CRC to be anti-parent or in any way undermine the family unit. … The drafters of the CRC … saw the development of children’s rights not as pitting children against their parents but as providing legal protections for the millions of children around the globe who are at risk….”
[513] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
The States Parties to the present Convention, …
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community … have agreed as follows: …
Article 3 …
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. …
Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. …
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
[514] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 5
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. …
Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
[515] Report: “General Comment No. 12 (2009): The Right of the Child to Be Heard.” United Nations, Committee on the Rights of the Child, July 20, 2009. <tbinternet.ohchr.org>
Page 20:
Article 5 of the Convention states that States parties shall respect the responsibilities, rights and duties of parents, legal guardians, or members of the extended family or community as provided for by local custom, to give direction and guidance to the child in her or his exercise of the rights recognized in the Convention. Consequently, the child has a right to direction and guidance, which have to compensate for the lack of knowledge, experience and understanding of the child and are restricted by his or her evolving capacities, as stated in this article. The more the child himself or herself knows, has experienced and understands, the more the parent, legal guardian or other persons legally responsible for the child have to transform direction and guidance into reminders and advice and later to an exchange on an equal footing. This transformation will not take place at a fixed point in a child’s development, but will steadily increase as the child is encouraged to contribute her or his views.
Page 21: “The Convention recognizes the rights and responsibilities of parents, or other legal guardians, to provide appropriate direction and guidance to their children … but underlines that this is to enable the child to exercise his or her rights and requires that direction and guidance are undertaken in a manner consistent with the evolving capacities of the child.”
[516] Paper: “Implications of the United States Ratification of the United Nations Convention on the Rights of the Child: Civil Rights, the Constitution and the Family.” By Barbara J. Nauck. Cleveland State Law Review, 1994. Pages 675–703. <engagedscholarship.csuohio.edu><www.google.com>
Page 688:
The Convention [on the Rights of the Child] provides, in all sections discussing parental authority, that the authority is to be exercised “consistent with the evolving capacities of the child.”73 Thus, under the UNCRC [United Nations Convention on the Rights of the Child], the private realm, which the state could not enter except for compelling reasons, would now be open to scrutiny to assure that parents are permitting their children to exercise rights in accordance with the UNCRC.
[517] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 43
1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.
2. The Committee shall consist of eighteen experts of high moral standing and recognized competence in the field covered by this Convention.1 The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems.
3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.
4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention.
5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.
6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting.
7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee.
8. The Committee shall establish its own rules of procedure.
9. The Committee shall elect its officers for a period of two years.
10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.
11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.
12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.
Article 44
1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights
(a) Within two years of the entry into force of the Convention for the State Party concerned;
(b) Thereafter every five years.
2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.
3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided.
4. The Committee may request from States Parties further information relevant to the implementation of the Convention.
5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities.
6. States Parties shall make their reports widely available to the public in their own countries.
Article 45
In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:
(a) The specialized agencies, the United Nations Children’s Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children’s Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;
(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children’s Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests or indications;
(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child;
(d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.
[518] Report: “General Comment No. 20 (2016) on the Implementation of the Rights of the Child During Adolescence.” United Nations, Committee on the Rights of the Child, December 6, 2016. <tbinternet.ohchr.org>
Page 6:
Article 5 of the Convention requires that parental direction and guidance be provided in a manner consistent with the evolving capacities of the child. The Committee defines evolving capacities as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding3 and increasing levels of agency to take responsibility and exercise their rights. The Committee has argued that the more a child knows and understands, the more his or her parents will have to transform direction and guidance into reminders and gradually to an exchange on an equal footing.4
Pages 12–13:
The Committee urges States parties to withdraw any reservations to article 14 of the Convention, which highlights the right of the child to freedom of religion and recognizes the rights and duties of parents and guardians to provide direction to the child in a manner consistent with his or her evolving capacities (see also art. 5). In other words, it is the child who exercises the right to freedom of religion, not the parent, and the parental role necessarily diminishes as the child acquires an increasingly active role in exercising choice throughout adolescence. Freedom of religion should be respected in schools and other institutions, including with regard to choice over attendance in religious instruction classes, and discrimination on the grounds of religious beliefs should be prohibited.19 …
46. The right to privacy takes on increasing significance during adolescence. The Committee has repeatedly raised concerns about violations of privacy in respect of, for example, confidential medical advice; space for and belongings of adolescents in institutions; correspondence and other communications, either in the family or other forms of care; and exposure of those involved in criminal proceedings.20 … States should, through dialogue with adolescents, ascertain where breaches of privacy have taken place, including in relation to personal engagement in the digital environment and the use of data by commercial and other entities. States should also take all appropriate measures to strengthen and ensure respect for the confidentiality of data and the privacy of adolescents, consistent with their evolving capacities.
[519] Report: “General Comment No. 7 (2005): Implementing Child Rights in Early Childhood.” United Nations, Committee on the Rights of the Child, September 20, 2006. <tbinternet.ohchr.org>
Page 8:
Article 5 draws on the concept of “evolving capacities” to refer to processes of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, including acquiring understanding about their rights and about how they can best be realized. Respecting young children’s evolving capacities is crucial for the realization of their rights, and especially significant during early childhood, because of the rapid transformations in children’s physical, cognitive, social and emotional functioning, from earliest infancy to the beginnings of schooling. Article 5 contains the principle that parents (and others) have the responsibility to continually adjust the levels of support and guidance they offer to a child. These adjustments take account of a child’s interests and wishes as well as the child’s capacities for autonomous decision-making and comprehension of his or her best interests. While a young child generally requires more guidance than an older child, it is important to take account of individual variations in the capacities of children of the same age and of their ways of reacting to situations. Evolving capacities should be seen as a positive and enabling process, not an excuse for authoritarian practices that restrict children’s autonomy and self-expression and which have traditionally been justified by pointing to children’s relative immaturity and their need for socialization. Parents (and others) should be encouraged to offer “direction and guidance” in a child-centred way, through dialogue and example, in ways that enhance young children’s capacities to exercise their rights, including their right to participation (art. 12) and their right to freedom of thought, conscience and religion (art. 14).1
[520] Report: “General Comment No. 12 (2009): The Right of the Child to Be Heard.” United Nations, Committee on the Rights of the Child, July 20, 2009. <tbinternet.ohchr.org>
Page 20:
Article 5 of the Convention states that States parties shall respect the responsibilities, rights and duties of parents, legal guardians, or members of the extended family or community as provided for by local custom, to give direction and guidance to the child in her or his exercise of the rights recognized in the Convention. Consequently, the child has a right to direction and guidance, which have to compensate for the lack of knowledge, experience and understanding of the child and are restricted by his or her evolving capacities, as stated in this article. The more the child himself or herself knows, has experienced and understands, the more the parent, legal guardian or other persons legally responsible for the child have to transform direction and guidance into reminders and advice and later to an exchange on an equal footing. This transformation will not take place at a fixed point in a child’s development, but will steadily increase as the child is encouraged to contribute her or his views.
85. This requirement is stimulated by article 12 of the Convention, which stipulates that the child’s views must be given due weight, whenever the child is capable of forming her or his own views. In other words, as children acquire capacities, so they are entitled to an increasing level of responsibility for the regulation of matters affecting them.12
Pages 21–22:
92. States parties should encourage, through legislation and policy, parents, guardians and childminders to listen to children and give due weight to their views in matters that concern them. Parents should also be advised to support children in realizing the right to express their views freely and to have children’s views duly taken into account at all levels of society.
93. In order to support the development of parenting styles respecting the child’s right to be heard, the Committee recommends that States parties promote parent education programmes, which build on existing positive behaviours and attitudes and disseminate information on the rights of children and parents enshrined in the Convention.
94. Such programmes need to address:
• The relationship of mutual respect between parents and children
• The involvement of children in decision-making
• The implication of giving due weight to the views of every family member
• The understanding, promotion and respect for children’s evolving capacities
• Ways of dealing with conflicting views within the family
[521] Report: “General Comment No. 4 (2003): Adolescent Health and Development in the Context of the Convention on the Rights of the Child.” United Nations, Committee on the Rights of the Child, July 1, 2003. <tbinternet.ohchr.org>
Page 1:
The Convention on the Rights of the Child defines a child as “every human being below the age of 18 years unless, under the law applicable, majority is attained earlier” (art. 1). Consequently, adolescents up to 18 years old are holders of all the rights enshrined in the Convention; they are entitled to special protection measures and, according to their evolving capacities, they can progressively exercise their rights (art. 5).
Pages 3–4:
In order to promote the health and development of adolescents, States parties are also encouraged to respect strictly their right to privacy and confidentiality, including with respect to advice and counselling on health matters (art. 16). Health-care providers have an obligation to keep confidential medical information concerning adolescents, bearing in mind the basic principles of the Convention. Such information may only be disclosed with the consent of the adolescent, or in the same situations applying to the violation of an adult’s confidentiality. Adolescents deemed mature enough to receive counselling without the presence of a parent or other person are entitled to privacy and may request confidential services, including treatment.
Pages 8–9:
States parties should take measures to reduce maternal morbidity and mortality in adolescent girls, particularly caused by early pregnancy and unsafe abortion practices, and to support adolescent parents. … The Committee urges States parties (a) to develop and implement programmes that provide access to sexual and reproductive health services, including family planning, contraception and safe abortion services where abortion is not against the law, adequate and comprehensive obstetric care and counselling….
32. Before parents give their consent, adolescents need to have a chance to express their views freely and their views should be given due weight, in accordance with article 12 of the Convention. However, if the adolescent is of sufficient maturity, informed consent shall be obtained from the adolescent her/himself, while informing the parents if that is in the “best interest of the child” (art. 3).
33. With regard to privacy and confidentiality, and the related issue of informed consent to treatment, States parties should (a) enact laws or regulations to ensure that confidential advice concerning treatment is provided to adolescents so that they can give their informed consent. Such laws or regulations should stipulate an age for this process, or refer to the evolving capacity of the child; and (b) provide training for health personnel on the rights of adolescents to privacy and confidentiality, to be informed about planned treatment and to give their informed consent to treatment.
[522] Report: “General Comment No. 20 (2016) on the Implementation of the Rights of the Child During Adolescence.” United Nations, Committee on the Rights of the Child, December 6, 2016. <tbinternet.ohchr.org>
Page 16:
There should be no barriers to commodities, information and counselling on sexual and reproductive health and rights, such as requirements for third-party consent or authorization. … The Committee urges States to decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.
[523] Webpage: “Professor Geraldine Van Bueren QC.” Queen Mary University of London School of Law. Accessed January 31, 2019 at <www.qmul.ac.uk>
Professor Van Bueren is one of the original drafters of the United Nations Convention on the Rights of the Child and also helped draft the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the UNHCR [United Nations High Commissioner for Refugees] Guidelines on Refugee Children and the United Nations Programme of Action on Children in the Criminal Justice System.
[524] Textbook: The International Law on the Rights of the Child. By Geraldine van Bueren. Brill Academic Publishers, October 1998.
Pages 45–46:
Although the best interests of the child is common in domestic legislation,92 it is not expressly incorporated into many major human rights instruments. … This is partly because the rights approach of human rights treaties is at odds with the traditional welfare approach of best interests which undermines the child’s autonomy. Therefore the inclusion of best interests of the child in a rights treaty, the Convention on the Rights of the Child, suggests that this traditional concept has been remoulded.94 In its broadest application the principle is articulated in article 3(1) of the Convention, which provides that, “in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies the best interests of the child shall be a primary consideration.”95 … Although the express application of best interests to parents and guardians was rejected in article 3,97 it does appear in article 18(1) as a guiding principle for parents.
Article 3(1) does not create rights or duties, it is only a principle of interpretation which has to be considered in all actions concerning children. It therefore has the advantage, unlike article 2(1), of operating as a principle to be considered in relation to each of the rights in the Convention and importantly, residually, to all actions concerning children.
As has been frequently observed, although the question is viewed from the child’s best interests, the answer is frequently given from an adult perspective.98 Best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child. Thus the Convention challenges the concept that family life is always in the best interests of children and that parents are always capable of deciding what is in the best interests of children.99
[525] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Page 12: “Advocates further assert that there is no language in the Convention that allows for prosecutions, lawsuits, or investigations of parents or guardians. Any such actions, they argue, would be based on existing U.S. laws rather than CRC provisions or recommendations of the CRC Committee.56”
[526] Book: The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification. Edited by Jonathan Todres, Mark E. Wojcik, and Cris R. Revas. Transnational Publishers, 2006. Chapter 3: “Analyzing the Opposition to U.S. Ratification of the U.N. Convention on the Rights of the Child.” By Jonathan Todres. Pages 19–32.
Page 24:
One of the more common arguments in opposition to U.S. ratification of the CRC [Convention on the Rights of the Child] is that ratification … will give children the right to sue their parents. This is simply not true. The Convention does not provide any direct means for a child to bring a lawsuit against his or her parents. Any legal action by children against their parents must be based on existing national or state law.13
[527] “Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.” United Nations General Assembly, December 19, 2011. <www.ohchr.org>
[I]t would be appropriate to enable the Committee on the Rights of the Child … to carry out the functions provided for in the present Protocol….
Article 5
Individual Communications
1. Communications may be submitted by or on behalf of an individual or group of individuals, within the jurisdiction of a State party, claiming to be victims of a violation by that State party of any of the rights set forth in any of the following instruments to which that State is a party:
• The Convention;
• The Optional Protocol to the Convention on the sale of children, child prostitution and child pornography;
• The Optional Protocol to the Convention on the involvement of children in armed conflict.
[528] Report: “Concluding Observations: Belize.” United Nations Committee on the Rights of the Child, May 10, 1999. <tbinternet.ohchr.org>
Page 3:
The Committee also expresses concern at the absence of an independent mechanism to register and address complaints from children concerning violations of their rights under the Convention. The Committee suggests that an independent child-friendly mechanism be made accessible to children to deal with complaints of violations of their rights and to provide remedies for such violations. The Committee further suggests that the State party undertake an awareness-raising campaign to facilitate the effective use by children of such a mechanism.
[529] Webpage: “Summary of Senate Resolution 519.” U.S. Senate, 111th Congress (2009–2010). Accessed December 14, 2018 at <www.congress.gov>
Sponsor: DeMint, Jim [R-SC] (Introduced 5/10/10) …
Expresses the sense of the Senate that: (1) the United Nations Convention on the Rights of the Child is incompatible with the U.S. Constitution, laws, and traditions; (2) the Convention would undermine presumptions of freedom and independence for U.S. families; (3) the Convention would interfere with the principles of U.S. sovereignty, independence, and self-government that preclude the propriety of adopting international law to govern domestic matters; and (4) the President should not transmit the Convention to the Senate for its advice and consent.
[530] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Page 2 (of PDF): “The George W. Bush Administration opposed CRC [Convention on the Rights of the Child] and expressed serious political and legal concerns with the treaty, arguing that it conflicted with U.S. laws regarding privacy and family rights.”
Page 7:
Perhaps more than other human rights treaties, CRC addresses areas that are usually considered to be primarily or exclusively under the jurisdiction of state or local governments. … Areas where state and federal laws might conflict include juvenile justice, child labor, child education, welfare, custody and visitation, and adoption.34 State and local jurisdictions often address these issues differently and, according to some, U.S. ratification of CRC could, for the first time, apply federal laws to issues traditionally handled by individual states—thereby undermining the U.S. system of federalism.35
[531] Paper: “Ratification of the Convention on the Rights of the Child.” By David P. Stewart. Georgetown Journal on Fighting Poverty, 1998. Pages 161–186. <www.law.du.edu>
Pages 163–164: “Many advocates of children’s rights view the Convention as a potentially powerful vehicle for requiring governments at all levels in the United States to improve their treatment of children, by devoting additional resources to such vital areas as health care, education and employment … and modifying other existing laws and practices.27”
[532] Webpage: “Children’s Rights in the U.S.” American Society for the Positive Care of Children. Accessed May 10, 2019 at <americanspcc.org>
Ratification … would trigger a comprehensive U.S. review of federal, state, and local laws and policies to best align them with CRC [Convention on the Rights of the Child] obligations through domestic implementing legislation. Such a review will help highlight areas where the U.S. can improve its efforts to advance children’s rights and strengthen families. …
American children need the CRC to provide an incentive to enhance federal and state laws to better protect the lives, safety, healthy development, protection, and welfare of all those under 18, including the most vulnerable and marginalized children.
[533] Report: “The United Nations Convention on the Rights of the Child.” By Luisa Blanchfield. Congressional Research Service, April 1, 2013. <fas.org>
Page 8: “Some proponents argue that instead of placing limiting conditions on U.S. ratification, U.S. law should be brought into conformance with international standards when, in their view, the international standard is higher.”
[534] Paper: “The Role of the United States in the Drafting of the Convention on the Rights of the Child.” By Cynthia Price Cohen. Emory International Law Review, 2006. Pages 185–198. <jjustice.org>
Page 198: “[R]atification would provide a measuring stick for scrutinizing U.S. children’s rights policies, thereby giving power and legitimacy to the work of children’s rights advocates. In addition to relying on moral suasion, advocates could also cite international law as a basis for their child rights efforts.”
[535] Constitution of the United States. Signed September 17, 1787. Enacted June 21, 1788. <www.justfacts.com>
Article VI, Clause 2 (<www.justfacts.com>):
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
[536] Ruling: Medellin v. Texas. U.S. Supreme Court, March 25, 2008. Decided 6–3. Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Concurring: Stevens. Dissenting: Breyer, Ginsberg, Souter. <caselaw.findlaw.com>
Majority:
No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ [International Court of Justice] jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts.
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. … In sum, while treaties “may comprise international commitments … they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).2 …
The interpretation of a treaty, like the interpretation of a statute, begins with its text. Air France v. Saks, 470 U. S. 392, 396-397 (1985). Because a treaty ratified by the United States is “an agreement among sovereign powers,” we have also considered as “aids to its interpretation” the negotiation and drafting history of the treaty as well as “the post ratification understanding” of signatory nations. …
[N]either our approach nor our cases require that a treaty provide for self-execution in so many talismanic words; that is a caricature of the Court’s opinion. Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.
2 The label “self-executing” has on occasion been used to convey different meanings. What we mean by “self-executing” is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.
Dissent:
The case law provides no simple magic answer to the question whether a particular treaty provision is self-executing. But the case law does make clear that, insofar as today’s majority looks for language about “self-execution” in the treaty itself and insofar as it erects “clear statement” presumptions designed to help find an answer, it is misguided. …
… Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation’s domestic law regards the provision’s legal status. And that domestic status-determining law differs markedly from one nation to another. …
The majority correctly notes that the treaties do not explicitly state that the relevant obligations are self-executing. But given the differences among nations, why would drafters write treaty language stating that a provision about, say, alien property inheritance, is self-executing? How could those drafters achieve agreement when one signatory nation follows one tradition and a second follows another? Why would such a difference matter sufficiently for drafters to try to secure language that would prevent, for example, Britain’s following treaty ratification with a further law while (perhaps unnecessarily) insisting that the United States apply a treaty provision without further domestic legislation? Above all, what does the absence of specific language about “self-execution” prove? It may reflect the drafters’ awareness of national differences. It may reflect the practical fact that drafters, favoring speedy, effective implementation, conclude they should best leave national legal practices alone. It may reflect the fact that achieving international agreement on this point is simply a game not worth the candle. …
The case law also suggests practical, context-specific criteria that this Court previously used to help determine whether, for Supremacy Clause purposes, a treaty provision is self-executing. The provision’s text matters very much.
[537] Ruling: Foster v. Neilson. U.S. Supreme Court, January 1, 1829. Decided 6–0. Majority: Marshall, Duvall, Johnson, Story, Thomson, Washington. <caselaw.findlaw.com>
A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.
In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.
[538] Report: “International Law and Agreements: Their Effect Upon U.S. Law.” By Stephen P. Mulligan. Congressional Research Service. Updated September 19, 2018. <fas.org>
Page 15:
Some provisions of international treaties or executive agreements are considered “self-executing,” meaning that they have the force of domestic law without the need for subsequent congressional action.113 Provisions that are not considered self-executing are understood to require implementing legislation to provide U.S. agencies with legal authority to carry out the functions and obligations contemplated by the agreement or to make them enforceable in court.114 The Supreme Court has deemed a provision non-self-executing when the text manifests an intent that the provision not be directly enforceable in U.S. courts115 or when the Senate conditions its advice and consent on the understanding that the provision is non-self-executing.116
113 See, e.g., Medellín v. Texas, 552 U.S. 491, 505 n.2 (2008) (“What we mean by ‘self-executing’ is that the treaty has automatic domestic effect as federal law upon ratification.”); Cook v. United States, 288 U.S. 102, 119 (1933) (“For in a strict sense the [t]reaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions.”); Foster v. Neilson, 27 (2 Pet.) U.S. 253, 254 (1829) (Marshall, C.J.) (describing a treaty as “equivalent to an act of the legislature” when it “operates of itself without the aid of any legislative provision”), overruled on other grounds by United States v. Perchemann, 32 (7 Pet.) U.S. 51 (1833)).
115 See, e.g., Medellín, 552 U.S. at 507-08 (holding that Article 94 of the U.N. Charter, which states that each member of the U.N. “undertakes to comply” with the decisions of the International Court of Justice (ICJ) did not render an ICJ decision self-executing in the sense that it overrode contradictory state law); Foster, 27 U.S. at 254 (concluding that a provision in a treaty between United States and Spain that purported to preserve prior Spanish lands grants was nonself-executing).
116 See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (“[T]he United States ratified the ICCPR [International Covenant on Civil and Political Rights] on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.”).
Page 16:
[I]nternational law generally allows each individual nation to decide how to implement its treaty commitments into its own domestic legal system.128 The self-execution doctrine concerns how a treaty provision is implemented in U.S. domestic law, but it does not affect the United States’ obligation to comply with the provision under international law.129 When a treaty is ratified or an executive order concluded, the United States acquires obligations under international regardless of self-execution, and it may be in default of the obligations unless implementing legislation is enacted.130
Page 21:
Treaties and executive agreements that are not self-executing, on the other hand, have generally been understood not to displace existing state or federal law in the absence of implementing legislation.160 “The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress.”161 Accordingly, it appears unlikely that a non-self-executing agreement could be converted into judicially enforceable domestic law absent legislative action through the bicameral process.162
161 Medellín v. Texas, 552 U.S. 491, 525-26 (2008).
162 Id. (holding that presidential memorandum ordering a U.S. state court to give effect to non-self-executing treaty requirement did not constitute federal law preempting the state’s procedural default rules).
[539] Ruling: Ware v. Hylton. U.S. Supreme Court, February 1, 1796. Decided 5–0. Majority: Chase, Cushing, Wilson, Iredell, Paterson. <caselaw.findlaw.com>
If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides “That all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution, or laws, of any State to the contrary notwithstanding.” There can be no limitation on the power of the people of the United States. By their authority the State Constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the State Constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the Constitution of a State (which is the fundamental law of the State, and paramount to its Legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act [3 U.S. 199, 237] of the State Legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded.
[540] Ruling: De Geofroy v. Riggs. U.S. Supreme Court, February 3, 1890. Decided 8–0. Majority: Field, Fuller, Bradley, Blatchford, Gray, Lamar, Miller, Brewer. <www.law.cornell.edu>
Article 7 of the convention of 1800 was in force when the act of Congress adopting the laws of Maryland, February 27, 1801, was passed. That law adopted and continued in force the law of Maryland as it then existed. It did not adopt the law of Maryland as it existed previous to the treaty, for that would have been in effect to repeal the treaty so far as the District of Columbia was affected. In adopting it as it then existed, it adopted the law, with its provisions suspended during the continuance of the treaty, so far as they conflicted with it. In other words, the treaty, being part of the supreme law of the land, controlled the statute and common law of Maryland whenever it differed from them. The treaty expired by its own limitation in eight years pursuant to an article inserted by the Senate. 8 Stat. 192. During its continuance, citizens of France could take property in the District of Columbia by inheritance from citizens of the United States. But after its expiration, that right was limited, as provided by the statute and common law of Maryland, as adopted by Congress on the 27th of February, 1801, until the convention between the United States and France was concluded, February 23, 1853.
[541] Ruling: Whitney v. Robertson. U.S. Supreme Court, January 9, 1888. Decided 7–0. Majority: Field, Waite, Miller, Bradley, Harlan, Matthews, Blatchford. <caselaw.findlaw.com>
By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing.
[542] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. <www.gpo.gov>
Page 526: “What happens when a treaty provision and an act of Congress conflict? The answer is that neither has any intrinsic superiority over the other and therefore the later one will prevail.”
[543] Webpage: “Status of Ratification Interactive Dashboard.” United Nations Office of the High Commissioner for Human Rights. Accessed December 14, 2018 at <indicators.ohchr.org>
United States of America
Declarations
International Convention on the Elimination of All Forms of Racial Discrimination
[N]othing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America. … The Senate’s advice and consent is subject to the following understanding, which shall apply to the obligations of the United States under this Convention: That the United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. … The Senate’s advice and consent is subject to the following declaration: That the United States declares that the provisions of the Convention are not self-executing. …
International Covenant on Civil and Political Rights …
Reservations: (1) That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. … (3) That the United States considers itself bound by article 7 to the extent that “cruel, inhuman or degrading treatment or punishment” means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. … Understandings: … (5) That the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant. Declarations: (1) That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing. …
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment …
The Senate’s advice and consent is subject to the following reservations: … That the United States considers itself bound by the obligation under article 16 to prevent “cruel, inhuman or degrading treatment or punishment,” only insofar as the term “cruel, inhuman or degrading treatment or punishment” means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. … The Senate’s advice and consent is subject to the following declarations: (1) That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing. …
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography …
To the extent that the domestic law of the United States does not provide for jurisdiction over an offense described in Article 3 (1) of the Protocol if the offense is committed on board a ship or aircraft registered in the United States, the obligation with respect to jurisdiction over that offense shall not apply to the United States until such time as the United States may notify the Secretary-General of the United Nations that United States domestic law is in full conformity with the requirements of Article 4 (1) of the Protocol. The Senate’s advice and consent is subject to the following understandings: … The United States understands that the Protocol shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the State and local governments. To the extent that State and local governments exercise jurisdiction over such matters, the Federal Government shall as necessary, take appropriate measures to ensure the fulfillment of the Protocol.
[544] Paper: “Reservations to the Convention on the Rights of the Child.” By William A. Schabas. Human Rights Quarterly, May 1996. Pages 472–491. <www.jstor.org>
Page 473: “Making reservations to multilateral treaties is a well-accepted practice in international law.4 … It also encourages ratification, because it is possible for a state to avoid assuming obligations in conflict with certain aspects of its internal legislation.”
[545] “Resolution of Ratification: Senate Consideration of Treaty Document 95-20.” United States Senate, April 2, 1992. <www.congress.gov>
“The Senate’s advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President: Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.”
[546] Paper: “U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence.” By Kristina Ash. Northwestern Journal of International Human Rights, 2005. <scholarlycommons.law.northwestern.edu>
Page 4 (of PDF): “In 1992, after attaching a number of RUDs [reservations, understandings, and declarations] which rendered the treaty powerless under domestic law, the United States Senate finally voted to ratify the ICCPR [International Covenant on Civil and Political Rights], twenty-six years after it was unanimously adopted by the U.N.”
[547] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 51
1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of ratification or accession.
2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to that effect addressed to the Secretary-General of the United Nations, who shall then inform all States. Such notification shall take effect on the date on which it is received by the Secretary-General.
[548] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 43
1. For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of the Child, which shall carry out the functions hereinafter provided.
2. The Committee shall consist of eighteen experts of high moral standing and recognized competence in the field covered by this Convention.1 The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, as well as to the principal legal systems.
3. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.
4. The initial election to the Committee shall be held no later than six months after the date of the entry into force of the present Convention and thereafter every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to States Parties inviting them to submit their nominations within two months. The Secretary-General shall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating States Parties which have nominated them, and shall submit it to the States Parties to the present Convention.
5. The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.
6. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. The term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairman of the meeting.
7. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party which nominated the member shall appoint another expert from among its nationals to serve for the remainder of the term, subject to the approval of the Committee.
8. The Committee shall establish its own rules of procedure.
9. The Committee shall elect its officers for a period of two years.
10. The meetings of the Committee shall normally be held at United Nations Headquarters or at any other convenient place as determined by the Committee. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.
11. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.
12. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.
Article 44
1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made on the enjoyment of those rights
(a) Within two years of the entry into force of the Convention for the State Party concerned;
(b) Thereafter every five years.
2. Reports made under the present article shall indicate factors and difficulties, if any, affecting the degree of fulfilment of the obligations under the present Convention. Reports shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.
3. A State Party which has submitted a comprehensive initial report to the Committee need not, in its subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic information previously provided.
4. The Committee may request from States Parties further information relevant to the implementation of the Convention.
5. The Committee shall submit to the General Assembly, through the Economic and Social Council, every two years, reports on its activities.
6. States Parties shall make their reports widely available to the public in their own countries.
Article 45
In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:
(a) The specialized agencies, the United Nations Children’s Fund, and other United Nations organs shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children’s Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children’s Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;
(b) The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children’s Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee’s observations and suggestions, if any, on these requests or indications;
(c) The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child;
(d) The Committee may make suggestions and general recommendations based on information received pursuant to articles 44 and 45 of the present Convention. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties.
[549] Report: “General Comment No. 5 (2003): General Measures of Implementation of the Convention on the Rights of the Child (Arts. 4, 42 and 44, para. 6).” United Nations Committee on the Rights of the Child, November 27, 2003. <tbinternet.ohchr.org>
Page 5:
15. Article 51, paragraph 2, of the Convention on the Rights of the Child reflects this: “A reservation incompatible with the object and purpose of the present Convention shall not be permitted.” The Committee is deeply concerned that some States have made reservations which plainly breach article 51 (2) by suggesting, for example, that respect for the Convention is limited by the State’s existing Constitution or legislation, including in some cases religious law. …
16. The Committee notes that, in some cases, States parties have lodged formal objections to such wide-ranging reservations made by other States parties. It commends any action which contributes to ensuring the fullest possible respect for the Convention in all States parties.
[550] Report: “General Comment No. 8 (2006): The Right of the Child to Protection From Corporal Punishment and Other Cruel or Degrading Forms of Punishment.” United Nations, Committee on the Rights of the Child, March 2, 2007. <tbinternet.ohchr.org>
Page 3: “Since it began examining State parties’ reports the Committee has recommended prohibition of all corporal punishment, in the family and other settings, to more than 130 States in all continents.”
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The Committee defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting … children, with the hand or with an implement…. But it can also involve, for example … forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading. In addition, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.
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Article 37 of the Convention requires States to ensure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” This is complemented and extended by article 19, which requires States to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” There is no ambiguity: “all forms of physical or mental violence” does not leave room for any level of legalized violence against children. Corporal punishment and other cruel or degrading forms of punishment are forms of violence and States must take all appropriate legislative, administrative, social and educational measures to eliminate them.
19. In addition, article 28, paragraph 2, of the Convention refers to school discipline and requires States parties to “take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention”.
20. Article 19 and article 28, paragraph 2, do not refer explicitly to corporal punishment. The travaux préparatoires for the Convention do not record any discussion of corporal punishment during the drafting sessions. But the Convention, like all human rights instruments, must be regarded as a living instrument, whose interpretation develops over time. In the 17 years since the Convention was adopted, the prevalence of corporal punishment of children in their homes, schools and other institutions has become more visible, through the reporting process under the Convention and through research and advocacy by, among others, national human rights institutions and non-governmental organizations (NGOs).
21. Once visible, it is clear that the practice directly conflicts with the equal and inalienable rights of children to respect for their human dignity and physical integrity. The distinct nature of children, their initial dependent and developmental state, their unique human potential as well as their vulnerability, all demand the need for more, rather than less, legal and other protection from all forms of violence.
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33. In some States, the Committee has observed that while there is no explicit defence or justification of corporal punishment in the legislation, nevertheless traditional attitudes to children imply that corporal punishment is permitted. Sometimes these attitudes are reflected in court decisions (in which parents or teachers or other carers have been acquitted of assault or ill-treatment on the grounds that they were exercising a right or freedom to use moderate “correction”).
34. In the light of the traditional acceptance of violent and humiliating forms of punishment of children, a growing number of States have recognized that … explicit prohibition of corporal punishment and other cruel or degrading forms of punishment, in their civil or criminal legislation, is required in order to make it absolutely clear that it is as unlawful to hit or “smack” or “spank” a child as to do so to an adult, and that the criminal law on assault does apply equally to such violence, regardless of whether it is termed “discipline” or “reasonable correction.”
35. Once the criminal law applies fully to assaults on children, the child is protected from corporal punishment wherever he or she is and whoever the perpetrator is. But in the view of the Committee, given the traditional acceptance of corporal punishment, it is essential that the applicable sectoral legislation—e.g. family law, education law, law relating to all forms of alternative care and justice systems, employment law—clearly prohibits its use in the relevant settings. In addition, it is valuable if professional codes of ethics and guidance for teachers, carers and others, and also the rules or charters of institutions, emphasize the illegality of corporal punishment and other cruel or degrading forms of punishment.
[551] Report: “Concluding Observations: Ireland.” United Nations Committee on the Rights of the Child, September 29, 2006. <tbinternet.ohchr.org>
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Corporal Punishment
39. While noting that the prohibition of corporal punishment within the family is under review and that parental educational programmes have been developed, the Committee is deeply concerned that corporal punishment within the family is still not prohibited by law.
40. The Committee reiterates its previous recommendation (CRC/C/15/Add.85 para. 39) and urges the State party to:
(a) Explicitly prohibit all forms of corporal punishment in the family;
(b) Sensitize and educate parents and the general public about the unacceptability of corporal punishment;
(c) Promote positive, non-violent forms of discipline as an alternative to corporal punishment; and
(d) Take into account the Committee’s general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment.
[552] Report: “Corporal Punishment of Children in the USA.” Global Initiative to End All Corporal Punishment of Children. Last updated April 2019. <www.endcorporalpunishment.org>
Page 2: “Corporal punishment is lawful in the home in all states. State laws confirm the right of parents to inflict physical punishment on their children and legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing.”
Page 3: “There is no prohibition at federal level of corporal punishment in all public and private schools. … Corporal punishment is unlawful in public schools in 31 states and the District of Columbia, though in some of these there is no explicit prohibition. … It is lawful in public and private schools in 19 states.”
[553] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
Article 19
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. …
Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age….
[554] “Convention on the Rights of the Child.” United Nations General Assembly, November 20, 1989. <www.ohchr.org>
“No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age….”
[555] Report: “General Comment No. 10 (2007): Children’s Rights in Juvenile Justice.” United Nations, Committee on the Rights of the Child, April 25, 2007. <tbinternet.ohchr.org>
Page 5: “The death penalty and a life sentence without parole are explicitly prohibited under article 37(a) of CRC [Convention on the Rights of the Child]…. The use of deprivation of liberty has very negative consequences for the child’s harmonious development and seriously hampers his/her reintegration in society.”
[556] Ruling: Roper v. Simmons. U.S. Supreme Court, March 1, 2005. Decided 5–4. Majority: Kennedy, Stevens, Souter, Ginsburg, Breyer. Dissenting: O’Connor, Scalia, Thomas, Rehnquist. <caselaw.findlaw.com>
Majority: Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” …
As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. …
The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgement of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed.
[557] Fact sheet: “Structure of the “US Education System: Curriculum and Content Standards.” U.S. Department of Education, February 2008. <www2.ed.gov>
Primary and Secondary Standards
While there is no national curriculum in the United States, states, school districts and national associations do require or recommend that certain standards be used to guide school instruction. In addition, federal law mandates that state standards be developed and improved in order for states to receive federal assistance.
[558] Paper: “Ratification of the Convention on the Rights of the Child.” By David P. Stewart. Georgetown Journal on Fighting Poverty, 1998. Pages 161–186. <www.law.du.edu>
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[E]ducational issues remain primarily within the purview of the states and local governments. Even at those levels, tensions exist regarding the proper scope of regulation of private and parochial schools and institutions of higher education. Nor is there a general assurance that curricula
