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The United Nations and Human Rights
The United Nations
and Human Rights
A Critical Appraisal
Second Edition

Edited by
F R É D É R IC M É G R E T
AND
PHILIP ALSTON

1
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© The Several Contributors 2020
The moral rights of the authors have been asserted
First Edition published in 1992
Second Edition published in 2020
Impression: 1
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a retrieval system, or transmitted, in any form or by any means, without the
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 Preface

This book appears at a particularly challenging moment in history in terms of govern-

mental support for the United Nations’ human rights enterprise. The first edition was
published in 1992, not long after the fall of the Berlin Wall, and just before the Vienna
World Conference on Human Rights, which sought to lock in the commitment of all
governments to a world governed largely in accordance with what were said to be truly
‘universal’ human rights precepts. The idea of a second edition was launched in those
relatively halcyon days, but it is only now coming to fruition.
There have been a great many delays along the way and we deeply regret the incon-
venience caused as a result. But if there is a silver lining to the delays, it is that in the
intervening period the UN’s human rights system has changed fundamentally. The
Human Rights Council replaced a discredited Commission, half-a-dozen new treaty
bodies were created, new complaints procedures adopted, and a host of additional spe-
cial rapporteurships and other initiatives sprung up, as well as the flourishing of a highly
active Office of the High Commissioner for Human Rights. We scrambled to commis-
sion new chapters, existing drafts needed radical updating, and the overall framework
came to look very different from what had been presented in the first edition. It felt at
times as if we were privileged witnesses, in real time, to some of the most interesting
years during which this massive international endeavor to construct an effective inter-
national human rights regime was taking place.
At any rate, we as editors take full responsibility for the delays and are mindful of the
toll they have taken on our contributors. The challenge involved in bringing the project
to a satisfying conclusion was fortunately matched by their stoic patience and gener-
osity with their time. We would especially like to acknowledge Laura Reanda and Oscar
Schachter who contributed draft chapters but subsequently passed away, and to thank
Asbjorn Eide, Rudiger Wolfrum, Rosalyn Higgins, and Thomas Buergenthal who were
all involved at different stages of the project.
We would like to acknowledge the assistance and support of researchers and
colleagues who have contributed along the way, including in particular Florian
Hoffmann and Mara Bustelo. As the project finally came together, James Pender was
instrumental in getting the whole volume into shape.
Finally, we would like to express our gratitude to OUP, particularly John Louth and
Merel Alstein, without whose steady guidance and encouragement the book might not
have been completed, and to Afrose A for having guided the editorial process.
 Contents

List of Contributors ix

Introduction: Appraising the United Nations Human Rights Regime 1

Philip Alston and Frédéric Mégret

PA RT I T H E H UM A N R IG H T S M A N DAT E O F
T H E P R I N C I PA L O R G A N S
1. The Security Council 39
Frédéric Mégret
2. The General Assembly 99
Andrew Clapham
3. The Economic and Social Council 131
Frédéric Mégret
4. The International Court of Justice 151
Bruno Simma

PA RT I I SU B SI D IA RY H UM A N R IG H T S O R G A N S
5. The Human Rights Council 181
Rosa Freedman
6. A Critical Appraisal of the Human Rights Council Advisory Committee 239
Laurence Boisson de Chazournes and Andrzej Gadkowski
7. The Commission on the Status of Women 253
Zehra F Kabasakal Arat
8. The Permanent Forum on Indigenous Issues 291
Madeleine Heyward

PA RT I I I O R G A N S M O N I T O R I N G T R E AT Y
C OM P L IA N C E
9. The Committee on the Elimination of Racial Discrimination (CERD) 309
Patrick Thornberry
10. The Human Rights Committee 339
Ludovic Hennebel
viii Contents
11. The Committee on the Elimination of Discrimination Against Women 393
Andrew Byrnes
12. The Committee on Economic, Social and Cultural Rights 439
Philip Alston
13. The Committee against Torture and the Subcommittee for
the Prevention of Torture 477
Andrew Byrnes
14. The Committee on the Rights of the Child 519
Christine Evans
15. The Committee on the Rights of Persons with Disabilities 547
Janet E Lord and Michael Ashley Stein
16. The Committee on Enforced Disappearances 579
Olivier de Frouville
17. The Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families 601
Vincent Chetail
18. Reform of the UN Human Rights Treaty Body System 645
Suzanne Egan

PA RT I V T H E G OV E R NA N C E O F H UM A N R IG H T S
19. The High Commissioner for Human Rights 667
Andrew Clapham
20. Human Rights Co-​Ordination Within the UN System 709
Georges Minet

Index 745
 List of Contributors

Philip Alston is John Norton Pomeroy Professor of Law at NYU School of Law, and Director of
the NYU Center for Human Rights and Global Justice.
Zehra F Kabasakal Arat is Professor of Political Science at the University of Connecticut.
Laurence Boisson de Chazournes is Professor of International Law and International
Organization at the University of Geneva.
Andrew Byrnes is Professor of Law at the University of New South Wales.
Vincent Chetail is Director of the Global Migration Centre and Professor of International Law
at the Graduate Institute of International and Development Studies, Geneva.
Andrew Clapham is Professor of Public International Law at the Graduate Institute of
International and Development Studies, Geneva.
Olivier de Frouville is Professor of Public Law at the University of Panthéon-​Assas (Paris II) and
Director of the Paris Center for Human Rights (CRDH).
Suzanne Egan is Associate Professor at the Sutherland School of Law, at University College
Dublin.
Christine Evans is a Human Rights Officer in the Office of the United Nations High
Commissioner for Human Rights.
Rosa Freedman is Professor of Law, Conflict and Global Development at the University of
Reading.
Andrzej Gadkowski is Assistant Professor at the Faculty of Law, Canon Law and Administration,
Catholic University of Lublin.
Ludovic Hennebel is Professor of Law at Aix-​en-​Provence Law School, and Director of the
Institute of International Humanitarian Studies, Aix-​Marseille University.
Madeleine Heyward was a Lionel Murphy Postgraduate Scholar at New York University School
of Law, and currently resides in Geneva.
Janet E Lord is Senior Fellow at the Harvard Law School Project on Disability and Adjunct
Professor of Law at the University of Maryland Carey School of Law.
Frédéric Mégret is Full-​Professor and William Dawson Scholar at the Faculty of Law of McGill
University.
Georges Minet is an independent researcher, formerly of the International Labour Office.
Bruno Simma is Professor of Law at the University of Michigan Law School.
Michael Ashley Stein is Executive Director at Harvard Law School Project on Disability, Visiting
Professor at Harvard Law School, and Extraordinary Professor at University of Pretoria Faculty
of Law Centre for Human Rights.
Patrick Thornberry is Emeritus Professor of International Law at the University of Keele.
 Introduction
Appraising the United Nations Human Rights Regime

Philip Alston and Frédéric Mégret

Recent years have seen immense challenges to the international human rights regime.
The resurgence of illiberal democracies around the world, nationalism and xenophobia
in Europe, China’s domestic crackdown combined with its efforts to export its model
of authoritarian capitalism, the Trump Presidency in the United States, Brexit, tech-
nological developments reflecting an ‘age of surveillance capitalism’,1 and the wide-
spread adoption of neoliberal policies spurring rapidly growing inequality, have all
served to put the regime on the defensive. These and related developments have also
been accompanied by a substantial critical literature written from a diverse array of
viewpoints questioning whether human rights still have a future and whether the
techniques by which they have been promoted domestically as well as internationally
retain their validity.2 But although the United Nations and its normative, institutional,
and procedural human rights activities sits at the heart of the international regime, it
has rarely been the subject of systematic analysis or evaluation in those contexts. This
volume does not purport to take on that entire challenge but it does provide much of
the essential material that is required to be taken into account by those who are looking
to evaluate the contributions of the United Nations to the past, present, and future of
the international human rights regime.
Almost thirty years have passed since the first edition of this book was published.
Since then the United Nations human rights regime has changed dramatically in al-
most every respect. In normative terms, major new instruments have been adopted
addressing the situation of persons with disabilities, disappearances, indigenous
­peoples, and many other groups, and the rights of lesbian, gay, bisexual, transsexual,
and intersex (LGBTI) persons are now squarely on the agenda from which they were

1 S Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power

(Harvard University Press, 2019).

2 D Kennedy, ‘The International Human Rights Regime: Still Part of the Problem?’ in R Dickinson et al (eds),

Examining Critical Perspectives on Human Rights (Cambridge University Press, 2013) 19; S Hopgood, The
Endtimes of Human Rights (Cornell University Press, 2013); M W Mutua, ‘Is the Age of Human Rights Over?’ in S
A McClennen and A Schultheis Moore (eds), Routledge Companion to Literature and Human Rights (Routledge,
2016) 450; S Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018); E Posner,
The Twilight of Human Rights Law (Oxford University Press, 2014); F Mégret, ‘Where Does the Critique of
International Human Rights Stand? An Exploration in 18 Vignettes’ in J M Beneyto and D Kennedy (eds), New
Approaches to International Law (TMC Asser –​Springer, 2012) 3.
2 Philip Alston and Frédéric Mégret
then almost entirely absent. The number of states that have ratified key treaties has ex-
panded significantly with, for example, the Convention against Torture moving from
73 States parties in 1992 to 165 in 2019, and the Convention on the Elimination of
All Forms of Discrimination against Women going from 123 states to 189. The web of
non-​treaty-​based procedures seeking to monitor compliance has grown much thicker
and almost all states are held regularly to account for their human rights performance,
especially by Special Procedures mandate-​holders whose numbers have almost tripled,
and by the Universal Periodic Review which began only in 2008 but has already al-
most completed its third full cycle of reviewing the performance of every state. The
number of treaty bodies has expanded from six to ten, and the powers of some of the
committees have been expanded significantly. In terms of staff, the relatively small
Center for Human Rights has been replaced by an Office of the High Commissioner for
Human Rights, and the UN now employs over 1,300 personnel in the Office: 43 per cent
of them are based in the field, and another 700 human rights officers are employed in
thirteen UN peace missions or political offices. In 1992, 0.7 per cent of the UN budget
went to the human rights programme, compared with 3.7 per cent in 2018–​19, more
than a fivefold increase.3
The goal of this book is not to try to evaluate all of these diverse developments,
let alone to gauge their impact on the actual enjoyment of human rights in the world.
Rather, it is to trace the evolution of the principal institutional actors within this
larger milieu. It is highly instructive to note the extent to which, since the first edi-
tion, institutions that were once central have declined in importance or disappeared
altogether, whilst mechanisms that were once seen as peripheral have moved to centre
stage. To cite but a few obvious examples: the Commission on Human Rights and the
Sub-​Commission on the Prevention of Discrimination and Protection of Minorities
no longer exist; the High Commissioner for Human Rights is now the foremost human
rights focal point within the UN rather than the Secretary-​General himself; and the
Security Council’s impact on human rights has completely eclipsed the role that the
Economic and Social Council once had. These dynamics illustrate the extent to which
the place of human rights within the broader constellation of global governance is sus-
ceptible to constant change.
It also underscores the plasticity of the UN human rights regime, and its need for
institutional adaptation in response to changes whether in the UN’s own role, in the
overall international system, or in the challenges confronting the human rights move-
ment. Different eras make different variants of the international human rights project
conceivable: hopes once vested in certain institutions are not fulfilled; competition and
overlap between organs create pressure for change; all the while, the system continues
to develop dynamically by responding more effectively to the needs of previously ne-
glected human rights constituencies such as women, children, migrant workers, indig-
enous peoples, and LGBTI groups. So much so that all chapters in this collection are

3 See UN Human Rights Report 2017 (Office of the High Commissioner for Human Rights, 2018), available

at: https://​www2.ohchr.org/​english/​OHCHRreport2017/​pages/​introduction.html.
 Introduction 3
new compared to the first edition. In addition, half a dozen chapters have been added,
some eliminated, and others shrunk quite dramatically.
At the same time, the questions asked in the first edition remain every bit as rele-
vant as they were then. There are legitimate concerns from a human-​rights perspective
about excessive institutionalization of what was after all once a radical project;4 some
even worry that the UN will lose its specificity and soul by becoming too invested in
human rights.5 The UN’s human rights activities are also criticized by a diverse array
of states, including some from the Global South which see rights as a Trojan horse for
liberal interventionism especially through the R2P concept,6 others which feel unjustly
victimized,7 and some who believe that rights should only be promoted through dia-
logue rather than condemnation.8
The task of evaluation has been made all the more important as a result of the prolif-
eration of populist, authoritarian, and illiberal democratic regimes in recent years, and
their propensity to reject both the international human rights standards themselves
and the institutional regime that seeks to monitor compliance with them. President
Rodrigo Duterte of the Philippines has attacked a number of UN human rights experts
and officials and withdrawn his country from the International Criminal Court. In
June 2018, the United States withdrew from its membership in the UN Human Rights
Council, with the Secretary of State labelling the Council ‘a poor defender of human
rights’ and ‘an exercise in shameless hypocrisy’. He warned that the US would not work
with organizations that undermine its national interests and its allies, or infringe its na-
tional sovereignty.9 Subsequently, the US ceased cooperating with UN mechanisms in
relation to all domestic issues.10 And in August 2018, prior to his election as President
of Brazil, Jair Bolsonaro indicated in response to a question about the role of the UN
Human Rights Council that he proposed to withdraw Brazil from the UN.11

4 M Koskenniemi, ‘The Effect of Rights on Political Culture’ (1999) 99 in P Alston (ed), The EU and Human

Rights (Oxford University Press, 2000) 112; H Charlesworth, ‘Not Waving but Drowning: Gender Mainstreaming
and Human Rights in the United Nations’ (2005) 18 Harvard Human Rights Journal 1; M Koskenniemi, ‘Human
Rights Mainstreaming as a Strategy for Institutional Power’ (2010) 1 Humanity: An International Journal of
Human Rights, Humanitarianism, and Development 47; F Mégret, ‘The Apology of Utopia; Some Thoughts on
Koskenniemian Themes, with Particular Emphasis on Massively Institutionalized International Human Rights
Law’ (2013) 27 Temple International and Comparative Law Journal 455.
5 I Wuerth, ‘International Law in the Post-​Human Rights Era’ (2017) 96 Texas Law Review 279.
6 M Serrano and T G Weiss, The International Politics of Human Rights: Rallying to the R2P Cause? (Routledge,

2014); T Liu and H Zhang, ‘Debates in China about the Responsibility to Protect as a Developing International
Norm: A General Assessment’ (2014) 14 Conflict, Security & Development 403; S Laskaris and J Kreutz, ‘Rising
Powers and the Responsibility to Protect: Will the Norm Survive in the Age of BRICS?’ (2015) 1 Global Affairs 149.
7 Israel has often complained bitterly of being discriminated against by UN human-​rights bodies. For a nuanced

treatment of that issue see ‘Israel and the United Nations’, Public Lecture for the Bullock Chair, Hebrew University,
Prof Stephen J Toope,19 May 2015, available at: http://​canadianstudies.huji.ac.il/​.upload//​Public%20Lectures/​
Prof_​Toope_​Israel%20and%20the%20UN%20TEXT.pdf.
8 See A Kent, ‘China and the International Multilateral Human Rights System’ in S Biddulph and J Rosenzweig

(eds), Handbook on Human Rights in China (Elgar, 2019) 61.

9 Remarks by Mike Pompeo, Secretary of State and Nikki Haley, US Permanent Representative to the United

Nations, Treaty Room, Washington, DC, 19 June 2018, available at: https://​geneva.usmission.gov/​2018/​06/​21/​
remarks-​on-​the-​un-​human-​rights-​council/​.
10 Ed Pilkington, ‘US Halts Cooperation with UN on Potential Human Rights Violations’, The Guardian,

4 January 2019, available at: https://​www.theguardian.com/​law/​2019/​jan/​04/​trump-​administration-​un-​human-​

rights-​violations.
11 https://​www.plataformamedia.com/​en-​uk/​news/​politics/​interior/​if-​im-​elected-​president-​i-​will-​leave-​the-​

un-​says-​bolsonaro-​9735658.html.
4 Philip Alston and Frédéric Mégret
Of course, not all of the critiques should be given the same weight: some come from
self-​acknowledged human-​rights violators and others from those who would throw the
baby out with the bath water merely because they see fault with one part of the system.
Indeed, the fact that the UN’s human rights activities, including finger pointing and oc-
casionally more coercive measures, provoke such strong reactions is a sign that they are
achieving something. Still, the pushback from both critics and sceptics highlights the
need to discuss more thoroughly the successes and failures of the UN’s human rights
regime.
This book takes stock of these developments, more than seventy years after the adop-
tion of the Universal Declaration of Human Rights, and critically assesses what they
portend for both the UN and human rights. It does so by focusing on the UN as an
institution, one which is the repository of many ambitions. It is first and foremost an in-
ternational organization, a factor that largely determines the type of efforts it can deploy
for the development and promotion of human rights. Institutionalization, moreover,
creates particular challenges for human rights as a project. At the same time, one should
be wary of counting mere institutional developments as the sum total of what the UN
actually does for human rights. The history of human rights even at the UN is more than
the sum total of the organs and acronym soup that are associated with human rights.
The UN’s human rights regime is complex and may even appear incongruous to
those encountering it for the first time. Committees, commissions, and councils co-
exist, without it being immediately obvious which are the most important and why;
there often seem to be strange overlaps among some of its activities; the sometimes
technocratic and jargonistic character of its institutional pronouncements may seem
far from the ethos of human rights. There are inevitably tensions between the principled
nature of human rights as a project, and the sometimes arcane institutional structures
of the UN. At the same time, even as the system is accused of being too technocratic, it
is also often alleged to be ‘politicized’, and acting as a sort of intergovernmental black
hole into which the brightest human rights ideas disappear. But which is it? Can it be
both? How does the UN’s complex amalgam of the political, the expert, and the techno-
cratic affect prospects for human rights? And if the UN achieves anything in the area,
does it do so despite or thanks to these characteristics?
Several important points should be borne in mind when assessing the UN’s role in
this area. First, the UN is only one part of a much broader international human rights
regime. In addition to the UN itself there are various affiliated agencies such as the
International Labour Organization (ILO), the World Health Organization (WHO),
and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
Even more significantly, there are a number of regional organizations including the
Council of Europe, the Organization of American States, and the African Union that
have considerable significance. These regional human rights initiatives, for example,
are significantly more focused on judicial adjudication. They also operate closer to the
ground and in more homogeneous contexts than the United Nations, enabling them,
in at least some cases, to make considerable headway towards the ideal of international
human rights protection.
 Introduction 5
To these intergovernmental bodies one must add the ever-​increasing role of civil so-
ciety not only locally and nationally, but internationally and globally. Today, just as we
are often reminded that some corporations have budgets and power that exceed those
of small states, there are a number of international human rights non-​governmental
organizations (NGOs) that clearly punch well above their weight in terms of influ-
ence, especially compared to some of the less influential United Nation bodies. The
development of the global human rights regime owes much to the labour and energy
of civil society groups. To cite but one example, most people outside the field of inter-
national human rights are more likely to have heard of Amnesty International than
the Human Rights Committee or even the Human Rights Council. NGOs have been
especially ­influential in the major international conferences on human rights and re-
lated issues, such as those held in Vienna in 1993, Beijing in 1995, and Durban in 2001.
They are an important presence at the Council on Human Rights and submit shadow
reports that are often crucial to the work of the treaty bodies. Their work thus straddles
many facets of the UN’s activities. Whilst international officials and even experts are
often ­somewhat constrained in their interaction with states, NGOs are able to adopt a
much more combative posture. And even in an era when much is being written about
shrinking civil society space as various governments seek to delegitimize, disable, or
prosecute human rights proponents, new initiatives continue to breathe life into efforts
by these actors.12
Notwithstanding the importance of other actors in the overall regime, the deep and
varied legal mandates possessed by UN bodies, whether based on the UN Charter,
widely ratified treaties, or other initiatives, give them a unique legitimacy and authority
in developing human rights standards and policy and in engaging with governments
and other actors. Indeed, the UN has by most standards succeeded in making itself the
major hub of the international human rights regime. It is the foremost intergovern-
mental organization in the field, and one which has a huge impact on global governance
and international policy-​making. There is no doubt that its activities have contributed
in very large measure to creating, shaping, and implementing the human rights regime
as a whole. It would be difficult, if not impossible, to understand, let alone evaluate, the
overall regime without an understanding of the functions performed by the relevant
United Nations ‘organs’.
Second, it is important to recall how relatively unforeseeable it was at the outset that
human rights preoccupations would become as prominent within the UN as they are
today, even if their status seems ever more precarious. While human rights were always
one of the three sets of ‘purposes’ of the organization, it was only relatively late that its
objectives were repackaged as comprising the three pillars of security, development,

12 P Evans and C Rodríguez-​ Garavito, Transnational Advocacy Networks: Reflecting on 20 years of Evolving
Theory and Practice (Dejusticia, 2018); R Youngs (ed), Global Civic Activism in Flux (2017); C Rodríguez-​Garavito
and K Gomez (eds), Rising to the Populist Challenge: A New Playbook for the Human Rights Field (Dejusticia, 2018);
and H Nichols Haddad, The Hidden Hands of Justice: NGOs, Human Rights, and International Courts (Cambridge
University Press, 2018).
6 Philip Alston and Frédéric Mégret
and human rights. At its creation, it was hardly a foregone conclusion that the UN
would have much to do in practical terms with human rights; and it was certainly not
created as an institution designed to deal primarily with rights. For the most part, its
mission was to preserve international peace and security and increase cooperation be-
tween states. Its goals seemed concerned with the international superstructure rather
than anything that might happen within states. Human rights did feature somewhat
discreetly in its Charter,13 providing at least some sort of normative foundation and le-
gitimacy for the efforts of those who sought to ensure that the UN would take human
rights seriously. However, that foothold was largely ignored in its first decades and
this could have remained so. The progress that has taken place has occurred against
a backdrop of resistance to perceived meddling by the UN in their sovereign affairs,
a response that continues to be prominent in the rhetoric of many states, even as they
somewhat paradoxically engage actively in the relevant debates.
Nonetheless, and for reasons documented extensively in this book, the place of
human rights within the UN, and the size and significance of the relevant machinery,
has continued to grow. There have certainly been setbacks, and human rights still com-
pete with many other priorities,14 but over time human rights promotion has emerged
as one of the signal functions of the United Nations. At the rhetorical level at least, as
reflected in the ‘Human Rights up Front’ agenda promoted by Secretary-​General Ban
Ki-​Moon (although downplayed by his successor), the UN is increasingly presented as
an organization whose very raison d’être is to promote human rights.15 It is important to
seek to understand how this change came about.
Third, an important question is whether there might also be significant downsides
to the growing connection between human rights and the United Nations. On one
reading, strong engagement is surely a good barometer of how seriously human rights
are taken internationally (depending in part on the times and the rights). It is difficult
to imagine how else human rights could have been universalized, if not through the
UN. At a minimum, the UN provides an international and even global forum to discuss
human rights issues; in the best of cases, it provides a source of expertise; and occa-
sionally it may be part of the enforcement or at least compliance inducement that is so
crucial to human rights.
At the same time, the human rights movement’s engagement with the UN comes
with its costs. This is, after all, an organization of states, some of which are more com-
mitted to human rights than others, depending on the rights concerned and the timing.
States will sometimes instrumentalize human rights discourse for ends that are, in ef-
fect, inimical to the goals of human rights. Debates may inflict wounds, leave scars,
and undermine the idea of universal agreement that is so central to human rights. The
ideal of human rights may be corrupted as a result. There is also the risk that the UN as

13See Articles 1(3), 13(1)(b), 55(c), 56, 62, 68, and 76 of the UN Charter.
14On human rights as merely a ‘limb’ of a much larger body, see L Henkin, ‘The United Nations and Human
Rights’ (1965) 19 International Organization 504.
15 Human Rights up Front: An Overview (2016), available at: https://​interagencystandingcommittee.org/​system/​

files/​overview_​of_​human_​rights_​up_​front_​july_​2015.pdf.
 Introduction 7
an international organization will renege on its commitment to human rights, for ex-
ample when it senses that a principled stance might compromise the pursuit of some
other significant other political, diplomatic or security goal. Finally, there is always the
possibility that human rights will become mired in the administrative inertia and dull
technocratization of any large international organization, and that the language of hope
and activism will become a language of procedures and mechanisms.
The relationship between the UN and human rights is thus infused with the ten-
sion between the project of human rights and that of universal organization, both
promising projects in their own right but whose modi operandi may be incompatible
in a multiplicity of ways, both foreseeable and not. It is to the study of some of these
tensions that this book is devoted. The present chapter seeks to do four things. First,
it sketches the broad nature of the institutional component of the UN regime by
providing a brief overview of the individual human rights organs and of their rela-
tionship to one another. Second, it considers the contemporary evolution of human
rights at the UN, distinguishing in particular between its Charter and treaty bodies.
Third, it highlights some of the main challenges of evaluating the UN’s human rights
work. Fourth, it considers what is, or should be, involved in the process of evaluating
or appraising the effectiveness of the UN human rights regime as a whole and of in-
dividual organs.

I.1 A sketch of the UN human rights system

The UN is an organization that pursues a range of goals and policies, including inter-
national peace and security and development. Human rights are therefore only one el-
ement among many and much of the hesitation about human rights at the UN can be
explained by the pursuit of competing priorities. There is, moreover, a fundamental
ambiguity about the relationship of human rights promotion and protection to the car-
dinal principle of sovereignty in the Charter. Indeed, a basic question that might be
posed is whether the UN should be involved in human rights at all, and if so in what
ways? Moreover, the UN is constrained in pursuing its policies by the inherent limi-
tations of the international system, as well as the wishes and priorities of its member
states. Clearly the UN as an international organization has a personality of its own
under international law but that hardly means that its policies are entirely of its own
making, in the sense that one might expect an NGO or even a state to have its ‘own’
human rights policy. In fact, to speak of a UN human rights policy is to speak of the
actions and initiatives of myriad actors, not all of whom work consistently towards the
same goals. The UN’s human rights ‘component’ is not exactly a coherent and well-​
designed whole, as much as the result of multiple attempts at reform and a constant re-
assessment of the place of human rights within the organization’s midst. Although the
UN is sometimes described as having a ‘human rights machinery’, that may be a more
imposing description than is warranted, even if it at least conveys the sense of a multi-
plicity of ‘mechanisms’ working more or less towards the same goal.
8 Philip Alston and Frédéric Mégret

I.2 The broad trajectory of human rights at the UN

In principle, there was much enthusiasm for human rights at the UN’s beginnings,
especially with the landmark adoption of the Universal Declaration in 1948. The UN
Charter instructed the organization to promote human rights but without specifying
what those rights were. Civil society groups the world over, governments and inter-
governmental organizations made representations to the Commission on Human
Rights about their hopes and aspirations as to both the content and the procedures for
promoting human rights. At the same time, many of these early hopes were quickly
dashed as the Cold War set in and the limits of what the UN could hope to achieve be-
came quite clear. From the beginning, for example, states had made it abundantly clear
that they considered the UDHR to be non-​binding, and that the role of the UN was
confined to merely promoting human rights with states, as one among many other ac-
tivities. As a result, the UN struggled to transcend invocations of sovereignty that were
particularly hostile to any notion of practical human rights inquiry.
The mere existence of the Commission did ensure that human rights would
not simply go away. It followed its own course, gradually developing sui generis
mechanisms, notably the procedures under ECOSOC resolutions 1235 and 1503, that
would come to define much of its work and that gradually added some bite to human
rights promotion. It moved such promotion from the very cautious and diplomatic
starting proposition that it should only set standards, to one where it was increasingly
open to the notion that it could also monitor state behaviour. For much of the Cold
War, however, action on human rights seemed to be paralysed by shared great power
interests in not encouraging undue scrutiny, outside a few causes célèbres such as South
Africa and the Palestinian Occupied Territories. Instead, most of the action focused on
the highly significant but more discreet and painstaking process of transforming the
UDHR into a true ‘Bill of International Human Rights’ by encouraging the adoption
of treaties. The adoption of the two Covenants, and of the CERD and CEDAW treaties,
were all part of this invaluable early effort to formalize human rights into binding in-
ternational instruments. Combined with the diligent work of the Sub-​Commission, the
normative basis of the international human rights regime was laid gradually.
In this context, one long popular description of the UN’s activities identified three
key ‘phases’ of activity since 1947: standard-​setting (1947–​1954), promotion (1955–​
1966), and protection (post–​1967). Each phase was said to have been devoted prima-
rily to the activity in question. To the extent that such a description sought to convey
the impression of a planned effort to move human rights gradually from paper to re-
ality, it is misleading. In fact, the phases have been cumulative rather than one replacing
the preceding one. As a result, recent decades have seen an acceleration of the pace of
change and a mingling of these phases. With the adoption of three major international
human rights treaties since 2000, and several other currently under consideration, it
hardly seems as if standard setting is a moribund activity, even as promotion and pro-
tection activities have continued to be extensive.
 Introduction 9
Overall, the human rights regime has had its ups and downs in the years since
1946, with growth spurts at regular intervals often followed by efforts to retrench.
Major international conferences such as the Tehran (1968) and Vienna (1993) World
Conferences on Human Rights proved to be major turning points that enabled var-
ious human rights ‘forces’ to regroup and push UN efforts in different directions. These
also helped promote shared understandings about the proper place of human rights
at the UN. There is no doubt that the UN’s human rights activities have further ex-
panded in the last two decades, and that human rights have become at least rhetorically
more central to what the organization does. There has been a systematic increase in the
number of UN bodies devoted primarily to dealing with human rights matters, as well
as a major increase in the time devoted by some of the existing ‘organs’ to the human
rights part of their mandates. Indeed, some organs which traditionally had very little
to do with human rights, such as the Security Council or the International Court of
Justice, have become more active in that field. Another important phenomenon is the
inclusion of human rights discussions in bodies with no formal human rights mandate
but in which they increasingly form part of a broader conversation about the shape of
various domestic and international policies.
By the same token, there are strong pressures, led by China and its allies, to gradu-
ally diminish the centrality of human rights in the UN’s activities. Major reforms of the
UN’s bureaucratic arrangements in 2019 have been portrayed as an effort to downgrade
the attention previously given to human rights.16 This is therefore an unfinished and
continuing process, one that remains precarious and subject to constant renegotiation.
If we look back at the past seventy years of the evolving human rights regime at the UN,
moreover, any depiction of the growth process as systematic, planned or even rational,
would be largely unwarranted. The system has grown ‘like Topsy’ and the boundaries
between the different organs are often only poorly delineated. Indeed, there is a degree
of overlap between various bodies (most notably in the last decade between the re-
porting obligations under treaty bodies and the Human Rights Council) that has often
proved resistant to reform. At times, describing it as a system or regime might even be
misleading given the extent to which different parts of that system are pushing in dif-
ferent directions.
For the most part, this incoherent pattern has been not entirely accidental. To begin
with, the development of the UN human rights regime is crucially indebted to macro
political developments and the resulting willingness or unwillingness of member
states to take human rights on board. For example, the rise of the Third World led to
significant investments by newly decolonized states in human rights like the right to
self-​determination and the right to be free of racial discrimination. Similarly, the end
of the Cold War ushered in a new era, inaugurated by the Vienna World Conference,
and committed to greater gender equality and less defensiveness on the grounds of

16 B Crossette, ‘Reform Clouds Darken the Future of the UN Development Program’, Passblue, 28 January 2019,

available at: https://​www.passblue.com/​2019/​01/​28/​reform-​clouds-​darken-​the-​future-​of-​the-​un-​development-​

program/​.
10 Philip Alston and Frédéric Mégret
sovereignty. By contrast, 9/​11 and the era that followed proved much less propitious to
international rights monitoring, although the Arab Spring in 2011 opened up signifi-
cant new opportunities in some areas and helped expedite the trend towards creating
international commissions of inquiry.17 There is only so much that the UN can do about
the influence of such world events given how fundamentally sensitive it is to them.
Specific human rights debates within the UN also continue to be significantly
influenced by global political conditions. The tendency of states to divide along geo-
political lines and regional groups has often proved a lasting obstacle to human rights
initiatives. Divisions reflect deep disagreements about the proper weight that should be
given to certain rights over others, as illustrated by the tension between individual and
collective rights; civil and political and economic and social right; and human rights
and national security. In order to overcome these sources of disagreement, coalitions
that combine different political interests have sometimes emerged. Thus, for example,
apartheid in South Africa offended both liberal individualist standards of equality as
well as more far-​reaching notions of emancipation from colonial rule and an anti-​racist
tradition. That relatively united front has not often been replicated at the UN.
By the same token, some issues do seem capable of transcending the standard polit-
ical divisions—​for better or for worse from the point of view of human rights. In a con-
text in which almost every state claims to be ‘for’ human rights while at the same time
seemingly disagreeing fundamentally about their content, it may be difficult to predict
who will take which side on a range of cross-​cutting issues. Certainly the West does not
have a monopoly over the contemporary meaning of international human rights law,
even as human rights rhetoric remains crucial to its modes of intervention. On issues
such as the death penalty, privacy in the era of technology, the rights of indigenous peo-
ples, gender equality, or sexual orientation, new coalitions may emerge where states
normally on opposite sides of a geopolitical divide nonetheless find common ground.
In 2018, for example, the United States was on the same side in UN human rights
debates as Iran, Russia, Saudi Arabia and others in opposing references to gender.18
Furthermore, the system’s complexity and inconsistency is the inevitable result of
a multiplicity of actors seeking to achieve diverse, and even irreconcilable, objectives
within the same overall institutional framework. If an existing body is considered un-
able to do a particular job, whether because of some intrinsic defects, sheer incom-
petence or, more likely, political disagreement, the preferred response will often be to
set up yet another. In a very short space of time, states and individual actors may well
then develop a vested interest in perpetuating the new body despite the duplication and
inefficiencies involved. This pattern has often been repeated in order to accommodate
the implementation of new policy agendas, to which existing bodies were perceived to
be insufficiently responsive. Only occasionally does pent-​up frustration boil over to
generate a more radical overhaul. This happened with the dumping of the Commission

17 C Henderson (ed), Commissions of Inquiry: Problems and Prospects (Hart, 2017).

18 J Borger, ‘Trump administration wants to remove ‘gender’ from UN human rights documents’, The Guardian,
25 October 2018.
 Introduction 11
and its replacement by the Human Rights Council—​although how much of an overhaul
that really turned out to be is open to debate. In general, it can be concluded that efforts
to identify and describe steady and principled patterns in the evolution of the various
procedures are misplaced and misleading.
One interesting dynamic in this context is the relationship between human rights
discourse and international human rights law. The quest to give legal form and
status to human rights principles drove many of the early efforts to entrench human
rights within the UN. The result has been a significant correlation between the de-
velopment of the substantive international law dimension and the creation of spe-
cific mechanisms. The treaty bodies are the clearest illustration of this link since
they are set up pursuant to particular treaties and adopt a more or less legalistic ap-
proach to the monitoring of state conduct. But it is also the case that much of what
might be characterized as human rights work proceeds relatively independently of
legal standards, reflecting the fact that not all developments within the human rights
regime are necessarily legal developments. And even when they are legal, this does
not necessarily lead to any particular promotional, monitoring or enforcement out-
come beyond a broad commitment, perhaps, to the notion that human rights should
be taken seriously as law.
At any rate, pragmatism, rather than principle has been the touchstone of the UN’s ev-
olution. This is especially apparent in almost any aspect of the activities of the Charter-​
based organs. Examples include: the reticence of those organs in spelling out the
normative basis on which they are acting in specific cases in condemning violations, es-
pecially in relation to states which are not parties to relevant treaty regimes; their failure
to adopt any particular framework designed to enhance the integrity and perceived
objectivity of fact finding activities, including commissions of inquiry; and their reluc-
tance to identify principles which would assist in determining the circumstances under
which technical assistance (advisory services) should be offered to states as well as the
kind of assistance that might appropriately be provided when violations are involved.
In each case, the main organs have tended to adopt ad hoc approaches from which
lessons might or might not be drawn for application in subsequent cases.
It is tempting to speak in highly critical terms of this evolution and to rue the lack of
coordination, of a rational division of labour, and of any clear institutional blueprint.
But while there is indeed much to criticize, it must also be borne in mind that this un-
stated preference for ‘letting a hundred flowers bloom’ was largely responsible for the
capacity of the system to respond to new circumstances and to take advantage of new
opportunities. It may simply be inevitable that a sprawling organization such as the UN
should have a human rights machinery to match: one that is complex, disaggregated,
and sometimes contradictory. Moreover, on occasion, pressure has accumulated for
transcendent reforms, for example to create the post of High Commissioner for Human
Rights, to establish the Human Rights Council, or to mainstream human rights within
the overall UN structure. The extent to which such institutional initiatives have brought
enduring systemic change remains disputed given the inertia of ingrained habits, but
they belie a narrative of despair.
12 Philip Alston and Frédéric Mégret

I.3 Classifying the organs

Various analytical classifications have been used in order to distinguish different types
of UN human rights organs. The main one is that which opposes those composed of
governmental representatives to those composed of experts. The latter might be elected
or appointed, but are for the most part nominated by governments. From that starting
point, analysts have suggested several dichotomies—​expert/​governmental, expert/​po-
litical, legal/​political and so on—​to describe the composition, the modus operandi or
the basis of decision-​making. To those categories may be added judicial/​non-​judicial
(with quasi-​judicial as a commonly used but somewhat problematic intermediate
classification).
While these might seem to be straightforward labels, they are often used to convey
a political message as well. For example, governmental officials may wish to empha-
size their representativeness and thus their pre-​eminence in the decision-​making hier-
archy. ‘Experts’, on the other hand, may wish to disclaim any political, or non-​technical,
influences upon their analyses. In UN institutional terms, such distinctions (for ex-
ample, ‘X’ is an expert committee, whereas ‘Y’ is a political body) are very useful be-
cause they constitute a form of shorthand to indicate the type of membership profiles
to be expected, the procedures to be used, and the outcomes envisaged. More funda-
mentally, they serve different functional needs. Thus, it is crucial to have experts who
are independent from the UN and, more importantly, their own governments, in order
to further a less partisan vision of human rights. At the same time, the UN remains an
organization of states and it is to some extent essential, especially when it comes to im-
plementation and enforcement, for it to be able to rely on their authority and political
good will.
But such analytical distinctions might also be less helpful than they appear to be.
First, the different connotations that attach to terms such as ‘expert’ or ‘political’ de-
rive less from any natural or inherent meaning than from the usage that has grown up
around the terms in UN practice. It is thus unsurprising that insights from theory as
well as practice confirm their limited utility for other purposes. For example, March
and Olsen argue that, despite the characteristics usually associated with each ap-
proach, ‘a sharp division of labor between specialists and policy-​makers is impossible
to sustain, either conceptually or behaviorally’.19 In some respects the same comment
applies to the bodies themselves. Second, a degree of overlap is involved insofar as the
main intergovernmental ‘political’ body, the Human Rights Council, can designate
special rapporteurs or commissioners who are themselves experts. Third, the High
Commissioner for Human Rights represents a third category of someone who is nei-
ther an independent expert nor a government representative. She is a UN civil servant
who serves as a focal point for human rights at the UN, but at the same time enjoys a
degree of autonomy to speak out that far exceeds that of ordinary UN civil servants.

19 J March and J Olsen, Rediscovering Institutions: The Organizational Basis of Politics (The Free Press, 1989) 30.
 Introduction 13
A more useful analytical distinction is between those organs established by reference
to the provisions of the UN Charter (Charter-​based organs) and those emerging on
the basis of provisions in specific treaties (treaty-​based organs). This distinction was,
of course, unavailable—​or at least meaningless—​until 1970 when the first of the UN’s
human rights treaty bodies met for its inaugural session. Since that time a clearly dis-
cernible two-​track approach to institutional arrangements has emerged, with Charter
bodies typically more intergovernmental and policy-​oriented, and treaty bodies more
expert focused and legal—​with the caveats in the previous paragraph about how these
categories sometimes blend.
Put succinctly, the essential role of each of the treaty bodies is to monitor and en-
courage compliance with a particular treaty regime, while the political organs have a
much broader mandate to promote awareness of and respect for human rights, and to
respond to violations thereof. Treaty bodies have been established either pursuant to
the terms of a specific treaty or for the specific purpose of monitoring compliance with
one. They thus have a limited clientele, consisting only of States parties to the treaty in
question; a clearly delineated set of concerns reflecting the terms of the treaty; a par-
ticular concern with developing the normative understanding of the relevant rights; a
limited range of procedural options for dealing with matters of concern; an incentive to
be cautious in setting precedents and to use consensus-​based decision-​making to the
greatest extent possible; and a non-​adversarial relationship with States parties based on
the concept of a ‘constructive dialogue’.
Charter-​based organs on the other hand derive their legitimacy and their mandate,
in the broadest sense, from the human-​rights-​related provisions of the Charter. Their fi-
delity is more to the Charter itself, where treaty bodies look to the terms of their partic-
ular treaty. Because the political organs typically focus on a more diverse range of issues
and are not confined to the terms of a given treaty, their competence is more universal
and every state is an actual or potential ‘client’ (or respondent), regardless of its specific
treaty obligations. The processes followed, whether by the Human Rights Council, the
General Assembly, or the Security Council, are overtly political. They can engage, as a
last resort, in adversarial actions vis-​à-​vis states; are more openly influenced by public
opinion; do not hesitate to take decisions on the basis of strongly-​contested majority
voting; often pay comparatively little attention to normative issues; and are very wary
about establishing specific procedural frameworks within which to work, preferring a
more ad hoc approach in most situations.
Charter and treaty bodies also differ in their degree of concern with human rights
policy as opposed to human rights law. While the two may be closely related, they are
not the same thing. Treaty bodies for example are more focused on legal developments,
the Human Rights Council is more interested in implementation, and the High
Commissioner stands somewhere in between. This is particularly obvious when
new treaty bodies are created and get down to the task of developing a jurisprudence
linked to the newly proclaimed rights. But even bodies not specifically engaged in
treaty monitoring will often devote considerable attention to the elaboration of new
standards. Thus, for example, many Special Rapporteurs have taken it upon themselves
14 Philip Alston and Frédéric Mégret
to develop ‘guiding principles’, norms, or other standards that enrich the overall corpus
of international human rights law if only as ‘soft law’.
In fact, it is easy to overstate the differences between the two types of organ and to
under-​estimate the ability of one type to emulate certain characteristics of the other.
Thus a Charter-​based organ might occasionally choose to play down its political char-
acter and devote some of its efforts to a systematic clarification of the normative con-
tent of a specific right, whilst a treaty-​based organ might play down its constructive
dialogue approach in order to indicate its strong disapproval of a state’s behaviour. Or
take the role played by the High Commissioner for Human Rights and human rights
‘mainstreaming’ (as described in Georges Minet’s chapter in this collection): the former
makes important inputs into the work of both Charter and treaty bodies, while the
latter seeks to ensure that human rights are taken into account throughout the UN by
a diverse range of institutional actors. Mainstreaming draws on the work of both types
of bodies and does not fall neatly within the Charter/​treaty dichotomy.20 Nevertheless,
the differences of mandate, content, and style between the two types of organs are
sufficiently clear and consistent as to justify using this as the principal distinction for
purposes of the analysis in this book.

I.4 Evolution of the UN system

The entire UN human rights machinery has changed significantly, especially over the
past four decades. The Charter/​treaty body distinction has remained quite firm, but
efforts are increasingly made for one to reinforce the other. For example, the Universal
Periodic Review undertaken by the Human Rights Council is a quintessentially political
exercise conducted among peer states, but it relies heavily upon information generated
by the treaty bodies and by the Council’s Special Procedures network of independent
experts.21 Similarly the annual coordination meeting of treaty-​body chairs, and the an-
nual meeting of Special Procedures mandate-​holders (including Special Rapporteurs)
regularly explore ways in which the work of one group can reinforce or draw upon that
of the other. Problems of duplication have by no means been eliminated, but efforts
have been made to both minimize and profit from them and to ensure that the overall
logics of the respective systems reinforce one another.

I.5 Charter bodies

There have been major changes in the roles played vis-​à-​vis human rights by the prin-
cipal Charter bodies. While the Charter defined the International Court of Justice,

20 P Hunt, ‘Configuring the UN Human Rights System in the “Era of Implementation”: Mainland and

Archipelago’ (2017) 39 Human Rights Quarterly 489.

21 A Nolan, R Freedman, and T Murphy, The United Nations Special Procedures System (Brill Nijhoff, 2017).
 Introduction 15
the Trusteeship Council, the General Assembly, the Economic and Social Council
(‘ECOSOC’), the Security Council, and the Secretariat as organs of equal importance,
this institutional formalism does little to conceal the deeper assumptions of the framers
of the UN Charter as to the existence of an implicit organizational hierarchy. For ex-
ample, the Security Council, with the veto power vested in each of the five permanent
members, was clearly at the head of the pecking order, with the General Assembly
next in line. While the other organs were each allocated significant spheres of insti-
tutional competence, they were, in any general political sense, inferior to the other
two. Nonetheless, it has become clear that the place occupied by a given organ within
the Charter’s general hierarchy does not necessarily determine its human rights rele-
vance or impact. An organ could be very powerful but not particularly concerned with
human rights (the Security Council until the 1990s) or relatively secondary in status
but pre-​eminent for human rights (the Commission on Human Rights).
During the first decades of the UN, the Security Council’s role was one of studied in-
difference, or at least political inability to act forcefully to prevent or respond to human
rights violations. By contrast, the General Assembly had the most significant profile
in terms of human rights both in its own right and through its various committees,
exercised a significant role. The role of ECOSOC as the parent body to the Commission
on Human Rights which in turn supervised the Sub-​Commission on the Prevention of
Discrimination and Protection of Minorities, should have remained central but actu-
ally ceded ground dramatically to the General Assembly in the 1970s. Nevertheless, the
Assembly’s attention was focused on a much broader range of issues, of which human
rights was only one. And its initial focus on human rights was confined to issues such
as the right to self-​determination and the fight against apartheid, although in later years
it took up the New International Economic Order agenda, as well as a limited set of
key situations involving gross violations. Understanding how that role has continued
to evolve, despite the clout of the Human Rights Commission and then Council, is the
object of one of Andrew Clapham’s chapter in this collection.
The end of the Cold War opened an era of intense competition over the proper def-
inition of the UN’s approach to human rights and led to a significant re-​alignment of
institutional responsibilities. A first clarification occurred with the creation of the post
of High Commissioner for Human Rights, one of the most concrete outcomes of the
Vienna Conference on Human Rights. This initiative responded to the perceived need
to have a human rights ‘champion’ within the UN, or at least a senior official who would
be specifically dedicated to the promotion of human rights. This could be seen as an im-
plicit critique of what had until then been the rather ambiguous role of the Secretariat
in this area, and it was not surprising that the Secretary-​General at the time, Boutros
Boutros-​Ghali, responded very negatively to the initiative.22
For several decades successive Secretaries General had rarely missed an opportunity
to affirm their frequent use of a ‘good offices’ role to promote the realization of human

22 See generally F Gaer and C Broecker (eds), The United Nations High Commissioner for Human

Rights: Conscience for the World (Martinus Nijhoff, 2014).

16 Philip Alston and Frédéric Mégret
rights, although given the confidential nature of such interventions it was (and still is)
difficult to know whether they actually achieved very much. Even Kofi Annan, the first
Secretary-​General to be more openly committed to the role of human rights, was not
ready to use his limited clout to weigh in heavily on human rights matters. In this con-
text, the creation of the High Commissioner for Human Rights arguably relieved the
Secretary-​General of a significant part of what human rights leadership role his office
should have had, at least outside those domains where it has a more specific compe-
tence, such as in relation to UN staff and peacekeeping. Indeed, whereas the previous
edition of this book contained a full chapter on the Secretary-​General, that role has
now been folded into that of the High Commissioner, who continues to report to the
Secretary-​General, but in practice has regularly asserted a separate and significantly
independent role. The role of the Secretary-​General is thus discussed merely briefly in
Andrew Clapham’s chapter on the High Commissioner.
For its part, the Security Council has gradually confirmed its role, especially at the
end of the Cold War, as effectively the most important body within the United Nations
given its role in maintaining international peace and security and its ability to authorize
the use of force and to create peacekeeping missions. The role that it has played in re-
lation to human rights, however, remains complex, as argued by Frédéric Mégret in
his chapter. For the first decades of its existence, the Council was reluctant to take on
a human rights role given its focus on international peace and security. But references
to human rights issues became much more common in Council debates starting in the
1990s, especially as human rights began to provide part of the justification for setting
up some peace missions. That movement has tended to intensify with the rise of inter-
national criminal justice and the tendency to both justify Council interventions on the
basis of human rights and humanitarian law violations, and to in turn draw on those
bodies of law as a way of addressing breaches of international peace and security. The
promotion of R2P has become largely conceptualized as an effort to bind the Security
Council to a more forceful agenda for the promotion of rights. That development re-
mains controversial given the power of the permanent members of the Council and
concerns that it will unduly politicize rights.
Somewhat less powerful but potentially the most important of the Charter bodies
in human-​rights terms are the General Assembly, the Human Rights Council, and,
to a lesser extent, the Commission on the Status of Women. The Human Rights
Council replaced the Commission on Human Rights and the Sub-​Commission.
Despite criticisms that it has reproduced some of its predecessor’s shortcomings, it has
succeeded in consolidating the significance of human rights at the UN. In contrast, the
Human Rights Advisory Council which effectively replaced the Sub-​Commission has
not gained anything like the prominence of its predecessor, as shown in the chapter by
Laurence Boisson de Chazournes and Andrzej Gadkowski in this book.
Of the other principal bodies, one has definitely increased its relevance for human
rights, one has largely abandoned any significant human rights role, and another has
been consigned to irrelevance. The first is the International Court of Justice. A priori,
the International Court of Justice (ICJ) has always been difficult to situate in relation
 Introduction 17
to the remaining organs, primarily because it is first and foremost an international
law rather than a human rights body. For many decades, its role was marginalized by
the Cold War and the general reluctance of states to commit themselves to accept the
decision of an independent arbiter. The attitude of many states in the Global South
towards the Court, especially after its early decision in the second phase of the South
West Africa Cases, was ambivalent at best and hostile at worst. When its contentious
jurisdiction was used, it was far more likely to be to settle traditional matters of inter-
national law such as border or maritime disputes than human rights questions. In the
last two decades, however, as Bruno Simma argues in his chapter, the ICJ has assumed
much greater salience in the international system. Surprisingly, this has been due in no
small part to the interest fuelled by human-​rights-​related disputes and requests for ad-
visory opinions. This has involved the adjudication of diverse issues such as diplomatic
protection of persons facing the death penalty, the immunities of UN rapporteurs and
of current and former heads of state, or the legality of either using nuclear weapons or
building a wall on occupied territory, all of which have had human rights implications
broadly understood. As a result of that resurgence, a specific chapter is devoted to the
ICJ’s role, whereas it was absent from the first edition of this book.
Of considerably less interest is the ECOSOC. Not only has it never been the UN’s
most significant human rights body but the potentially important role it could have had
has never come close to being realized. In the early years it served as an intermediary
between the Assembly and the Commission on Human Rights, but by the 1970s it had
come to do little more than rubber stamp the Commission’s work. As Frédéric Mégret
notes in his chapter, its significance lies principally today in its ability to affect civil so-
ciety participation in UN human rights debates through its role in determining which
NGOs receive much sought-​after observer status with the UN. Despite the obvious rel-
evance of human rights to economic and social matters, therefore, the encounter be-
tween the two has largely been a failed one at ECOSOC.
Finally, one principal organ whose contribution is not dealt with here is the
Trusteeship Council. This omission is due to the fact that its history has been adequately
analysed elsewhere and, more importantly, to the fact that its work has now been largely
completed.23 Indeed, references to the Trusteeship Council in today’s human rights lit-
erature are much more likely to examine how the Council can be transformed into a
super-​Human Rights Council than to consider the tiny and ever-​dwindling agenda that
it still retains.

I.6 Treaty bodies

The evolution of the treaty bodies has been determined less by the overall governance
structure of the UN and more by developments in the field of international human rights

23 A Hassan, ‘A Mandated Spectre: The Present Anomaly of the United Nations International Trusteeship

System’ (2017) 2 Perth International Law Journal 28.

18 Philip Alston and Frédéric Mégret
law itself. Since the Committee on the Elimination of All Forms of Racial Discrimination
(CERD), which is the object of Patrick Thornberry’s chapter in this collection, first met
in January 1970, the treaty-​based system has expanded at a rate which is without prec-
edent in the field of international organization. There are now no less than ten treaty
bodies, all of which are analysed in this book. In addition to the CERD, these are: the
Human Rights Committee (CCPR) (Ludovic Hennebel in this book), the Committee
on Economic, Social and Cultural Rights (CESCR) (Philip Alston), the Committee on
the Elimination of All Forms of Discrimination against Women (CEDAW) (Andrew
Byrnes), the Committee against Torture (CAT) and the Subcommittee on Prevention
of Torture (SPT) (Andrew Byrnes), the Committee on the Rights of the Child (CRC)
(Christine Evans), the Committee on Migrant Workers (CMW) (Vincent Chetail), the
Committee on the Rights of Persons with Disabilities (CRPD) (Michael Stein and Janet
Lord), and the Committee on Enforced Disappearances (CED) (Olivier de Frouville).24
The proliferation of treaty bodies reflects diverse phenomena: a certain fragmenta-
tion of human rights advocacy and promotion among groups with particular rights
concerns, such as children, migrant workers, and persons with disabilities; a logic of
specialization (for example torture and disappearances might readily be dealt with by
the Human Rights Committee, but the argument is that a more focused and special-
ized body is necessary); and both the relative enthusiasm of civil society for specialist
treaty bodies as well as the continued willingness of states to ratify new instruments.
Unsurprisingly, efforts to merge treaty bodies have often met serious resistance from
those who consider that this would detract attention from the specific issues at stake
and deprive the treaty bodies of very focused expertise.25 But the multiplication
of treaty bodies has not necessarily meant a proportionate increase in overall influ-
ence. Some have even suggested that it has dissipated their power and made them less
connected to the Charter bodies.26
Although there are some practical differences among the treaty bodies, such as the
fact that CESCR was created by ECOSOC; and the Sub-​committee on Torture does
mostly field work, all function along broadly similar lines in terms of expertise and
methods of work, which makes studying them jointly and comparatively a fruitful
endeavour.27 In brief, each of the treaty bodies performs the task of monitoring States
parties’ compliance with their obligations under the relevant treaty. They do so pri-
marily through a dialogue with the representatives of each of the States parties on the
basis of a detailed report (an ‘initial’ report, followed by ‘periodic’ reports at approxi-
mately 4–​5 year intervals). The principal outcome of this process is the record of the
resulting dialogue and the Committee’s identification of the key issues in its concluding

24 L Oette, ‘The UN Human Rights Treaty Bodies: Impact and Future’ in G Oberleitner (ed), International

Human Rights Institutions, Tribunals, and Courts (Springer, 2018) 95.

25 See generally S P Subedi, The Effectiveness of the UN Human Rights System Reform and the Judicialisation of

Human Rights (Routledge, 2017).

26 C A Spenlé and G C Stäubli, ‘The Weakness of the Present System of Treaty Monitoring and the Discussion of

Reform in General’ [2010] International Law, Conflict and Development 355.

27 W Vandenhole, The Procedures Before the UN Human Rights Treaty Bodies: Divergence Or Convergence?

(Intersentia nv, 2004).

Another random document with
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It was only the vicar's dog who had accidentally found his way in, but he was dressed in a paper cap,
and though he turned his head from side to side he could not get it off.

There was holly on the stair-rail and it pricked Noel; he leant over farther to get away from it, and
then to the horror of Nurse, who had followed him out, she saw him over balance himself, and with a
sudden awful thud, his little figure fell, his head striking the tiled floor of the hall with awful force.

Chris uttered a horrified cry which brought his mother out of her room.

She was the first to reach her darling, and raised him in her arms; but he lay still and unconscious. It
had been so swift, so sudden an accident, that he had not had time to utter a cry.

The little household gathered round him.

"He is killed!" cried Diana and Chris together.

"No—no—stunned!" said Mrs. Inglefield in her agony, still striving to allay the fears of her children.

Then she turned to Chris:

"Fetch the doctor. Go on your bicycle. Nurse, come with me."

Diana watched the limp, unconscious form of her small brother being carried upstairs. Mrs. Tubbs
followed Nurse; Cassy put her apron up to her eyes and began to cry.

"Oh, Miss Diana, 'tis his birthday; what an end to it!"

Diana seemed turned to stone.

How and why did these things happen? They were all so happy a few minutes ago, and now Noel
was perhaps dead and would never speak or laugh again.

She went slowly into the dining-room. The tea was all laid upon the table, the silver kettle boiling over
the methylated lamp. They would have all been sitting round the table now, mother would be pouring
out the tea, Noel's cake would have delighted him. It was a surprise—made by Mrs. Tubbs, who had
put her very best work into it. It was a big iced cake, and had seven candles upon it. In the centre
was a tiny little Christmas tree—a copy of Noel's. Its leaves and branches were frosted with sugar
and a robin perched on the topmost branch. In pink letters on the white surface was written:

"Noel Inglefield. Happy Returns of his Birthday,

and best Christmas Wishes."

As Diana gazed at the cake, tears crowded into her eyes.

Noel's cake! And he might never see it!

There were crackers round the table. What fun they would have had! There were jam sandwiches
and sugarcoated biscuits, and coco-nut cakes and shortbread.

Who would enjoy the tea now, when Noel lay dead or dying upstairs?

"Oh, it's awful! awful!" she cried, "worse than anything I have ever thought of or made up for my
stories! And I've spoken so crossly to him to-day, even though it was his birthday! Oh, what shall we
do! What shall we do!"
When Chris returned he found Diana pacing the hall like a demented person.

The doctor followed on his heels, and with two or three strides had mounted the stairs and gone into
the nursery.

"Oh, Chris," said Diana with tearful eyes, "what shall we do? I believe he is quite dead already."

"He can't be," said Chris. "Wasn't it awful seeing him fall! I've been thinking the whole way along to
the doctor's and back, of my cross words to him about the carol. We haven't been kind to him, Dinah
—over and over again we haven't! And we can't ask him to forgive us. And it's his birthday. Do you
think we could pray to God? Noel gets all his prayers answered, he says."

"He's so fond of God," moaned Diana; "perhaps God is very fond of him and wants him in heaven. I
wish mother would come to us."

But it was a long while before their mother came, and when she did, all the glow and brightness of
her face had vanished. She and the doctor went into her boudoir and talked a little, and then he went
away, saying:

"I'll be up the first thing in the morning, but there's nothing more can be done."

Then Chris and Diana crept up to their mother.

"Is he dead, Mums?" Chris whispered.

Mrs. Inglefield looked at them sorrowfully.

"He is very, very ill, dear. It is bad concussion of the brain, and he may be unconscious for a long
time. We must ask God to spare his precious little life."

A choke came in her voice, then she seemed to pull herself together.

"We must have some tea. Nurse is watching by him, and I will go and relieve her soon. Come along."

That was a most miserable meal for both mother and children.

Noel's chair opposite his cake was empty. His cheerful little voice, which was always making itself
heard, was hushed and silent now. Would they ever hear it again, his mother wondered?

And at last in desperation Chris spoke out his thoughts:

"Why has God let it happen on his birthday and on Christmas night, Mums? Any other time it
wouldn't have been so bad."

"Be quiet," said Diana in a whisper, giving him an angry nudge. "You'll only make Mums more
miserable."

Mrs. Inglefield caught the whisper.

"No, he won't, dear. God loves Noel better than any of us. He has sent this trouble to us for some
good reason. We must never question God's will."

The children were silent. They were glad when tea was over, but when their mother left them to
return to the sickroom, they wandered about the house, not knowing what to do with themselves.
Nurse came down at last, and told them that they must keep out of the nursery, as Noel must be kept
as quiet as possible.
"I should go to bed early if I were you," she told them. "Perhaps your little brother will be better to-
morrow morning."

"I know why God has let this accident happen," said Diana to Chris when Nurse had left them, and
they had gone into their mother's boudoir, and sitting down on two chairs near the fire had faced
each other in despairing silence; "it is to punish us. We haven't been good to him. We haven't loved
him, and now God is going to take him away from us."

"We'll miss him horribly if he dies," said Chris. "I wouldn't let him ride my bicycle the day before
yesterday."

"And I pushed him out of the nursery when I was writing," said Diana; "and told him he was a horrid
little bother."

These torturing memories went with them when they went to bed.

For the first time their mother failed to come and wish them good night. Nurse was having her
supper, and Mrs. Inglefield could not leave Noel.

But she did not forget them; only later on, when she did come, they had both forgotten their regrets,
and remorse, in sleep.

The following days were very sad. Noel lay unconscious for two days and two nights; and then when
he was able to eat, and take notice, his memory seemed to have left him. The house had to be kept
very quiet, and for days his life seemed to hang upon a thread.

It was astonishing how many friends the little fellow had. The back door was besieged by the
villagers during the first few days of his illness. Foster took the Christmas tree out of the drawing-
room and planted it in its old bed, but as he did so he was heard murmuring to himself:

"We'll never see his like again. He were too near heaven for a little chap like him!"

Mr. Wargrave, Miss Constance, Ted and Inez, all tried in turns to comfort and amuse poor Chris and
Diana.

As the days went on they began to hope, and when at last the doctor said that Noel was going to pull
through, they cheered up and began to smile once more.

But they were not allowed to see him. Mrs. Inglefield looked worn to a shadow; it was heart-breaking
to her to see her busy chattering little son lying in listless apathy on his bed, only moving his head to
and fro, and hardly recognizing his own mother.

Chris had to return to school before Noel was convalescent. Just before he went his mother let him
come in and see the little patient. Chris could hardly believe that the tiny pinched face with the big
restless eyes belonged to rosy, sturdy Noel.

He stooped over and kissed him very gently, and called him by name; but Noel took no notice, only
moved his head restlessly from side to side.

And Chris went out of the room fighting with his tears. The very next day Diana said to her mother:

"Will Noel never get better, Mums? God isn't answering our prayers. I pray ever so many times in the
day about him."

"Oh," cried her mother in anguish of tone, "don't pray too hard, darling, that we may keep him here.
God knows best. For his sake I dare not pray too earnestly for his recovery."
Diana could not understand this until she talked to Mrs. Tubbs in the kitchen about it.

"Bless your heart, missy, your poor mother is afraid he'll never get his senses again. Some is left
idiots after such a blow in the head. And Master Noel knows nobody yet, and p'r'aps never will."

This was a fresh horror to Diana. It was a good thing for her when Miss Morgan returned and lessons
began again.

But at last steady improvement set in, and Mrs. Inglefield went about with the light again in her eyes
and a smile upon her lips.

Inez came to wish Diana good-bye upon the day when the doctor was for the first time hopeful. She
was going to school, and had been dreadfully distressed about Noel.

"I liked him the best of you," she said; "he was always so funny and so naughty, and yet so very
good. And he talked like an angel. He's taught me more than anybody else, and I'm going to school
with quite a good character."

"I'll write to you, Inez, and tell you about him," said Diana, "and perhaps you'll like me to send you a
bit of my new story sometimes."

"I should love it."

They parted. Diana felt very lonely; she had never imagined that she would miss Noel so very much.

And then one Saturday when Chris was home, he and she went upstairs together to sit for a short
time with the little invalid.

He was decidedly better, his eyes were dear and bright, and he was able to talk a little, though his
voice was husky and weak. He smiled when he saw them.

"I've been very ill," he announced to them.

"Yes," said Diana, "we've missed you dreadfully, Noel. It will be nice when you're quite well again."

"I b'lieve," said Noel in his old slow way, "that I've been away to heaven, only I can't remember. I
know I haven't been here all the time."

Chris stooped over him:

"We'll never be cross to you again, Noel, never."

Noel looked at him, then asked gravely:

"Do you love me now?"

And Chris and Diana both cried out with all their hearts:

"Indeed we do. We'll always love you."

Noel smiled contentedly. Then after a pause he said: "Then will you be kind to my Chris'mas tree?
Will you give him some water and take care of him?"

"I'll water him every day," Diana rashly promised.

The interview was over; but Noel began to recover rapidly. It was a happy day when he was
downstairs again: and the first thing he did was to totter out into the garden, and make his way to his
beloved fir tree.

It stood there, looking rather bedraggled, and showing a great gap where the branch had been cut
off.

Noel was distressed at first, and then Chris, who was with him, said:

"He is like a soldier who has lost his arm in fighting for his King."

Noel's whole face brightened as he said:

"And he gave his branch to God for Jesus' birfday." He was comforted.

That same day, Bessie Sharpe came up to tell Mrs. Inglefield that her father had quietly passed
away.

"He were always talking of Master Noel. The last thing he said was, 'Tell Master Noel when he's well
enough to hear it, that my time of waiting is over and I'm going like his Christmas tree, to be taken in
for my Master's glory.'"

This message was given to Noel. He quite understood it.

"And Mr. Sharpe will be covered with glory," he said. "Everybody who goes to heaven will be like
Christmas trees lighted up. I almost wish I had wented there."

But Chris and Diana had cried out together:

"We want you here."

And their mother looked at them with a smile upon her face and deep thankfulness in her heart. She
knew now what had been the purpose in Noel's accident and illness. It was to bring the brothers and
sister closer together, and to bind them in a strong chain of love and understanding that would not
break under any provocation.

And Noel cried out:

"And I want to be here, for I love you all, specially—my dear Christmas tree."
 *** END OF THE PROJECT GUTENBERG EBOOK NOEL'S
CHRISTMAS TREE ***

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