United Nations Charter-based system of human rights protection

The UN Charter-based system of human rights protection includes the following principal mechanisms, which have undergone revision since the establishment of the new Human Rights Council to replace the Commission on Human Rights in 2006:

• The possibility of bringing complaints under the confidential 5/1 procedure

“to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances” (Human Rights Council (HRC) Res. 5/1 of 18 June 2007 – formerly the 1503 procedure under ECOSOC Res. 1503 (XLVIII) (1970));

• Special Procedures of the Human Rights Council, designating a rapporteur, working group or Special Representative of the UN Secretary-General to consider violations of human rights relating to a specific country situation or thematic issue in all parts of the world; and

• Universal periodic review (UPR), a state-driven process under the auspices of the Human Rights Council, which ensures that the human rights obligations of all 193 UN Member States are subject to scrutiny.

These UN Charter-based mechanisms are important for migrants because they are applicable to all UN Member States, whether or not they have ratified any of the international human rights treaties, including any specific instrument protecting migrants. The last two mechanisms are particularly relevant to ensuring that the rights of all migrants are adequately protected.

Box 2.12 Parliamentarians’ engagement with United Nations human rights mechanisms

Parliamentarians are ideally placed to bring international human rights standards to the national and community level and thus help ensure that they have real impact on the ground.

Parliaments and their members can play a key role in the UN Human Rights Council’s UPR and the work of the UN human rights treaty bodies, including the Committee on Migrant Workers, which oversee the implementation of the core UN human rights treaties.

A feature common to UPR and the UN human rights treaty bodies is the regular review, every four or five years, of individual states’ human rights situation and the adoption of concrete recommendations for action to enhance respect for human rights at the national level.

IPU has placed strong emphasis on enhanced parliamentary involvement in those international human rights procedures, in particular UPR. Regional seminars on fostering the contribution of parliaments to UPR have been organized by IPU and its partners since 2014, and the importance of the parliamentary contribution was affirmed in a unanimously adopted Human Rights Council resolution in June 2014 (A/HRC/RES/26/29). Among the outcomes of the seminars and the 2014 resolution was the recommendation that members of parliament can contribute to UPR process by participating:

• in the preparation of their respective state’s national report to the Human Rights Council;

• as part of the state delegation presenting the national report to the Human Rights Council; and

• in the consideration, follow-up and implementation of recommendations from the international community during the review.

Given the similarity between the reporting procedures of UPR and the UN human rights treaty bodies, these recommendations for enhanced parliamentary involvement are also applicable to the work of the treaty bodies.

As of 1 June 2015, there were 41 thematic mandates and 14 country mandates under the Special Procedures of the Human Rights Council. One very relevant thematic mandate is that of the UN Special Rapporteur on the human rights of migrants, which was established in 1999 by the former UN Commission on Human Rights and has been extended on five occasions. Professor François Crépeau (Canada) is the current incumbent. The Special Rapporteur’s main functions include examining ways and means to overcome the obstacles existing to the full and effective protection of the human rights of migrants; requesting and receiving information from all relevant sources, including migrants themselves, on violations of the human rights of migrants

the effective application of relevant international norms and standards on the issue.

The Special Rapporteur is also required to take into account a gender perspective when requesting and analysing information, and to give special attention to the occurrence of multiple discrimination and violence against migrant women. The Special Rapporteur presents regular reports, including on country visits, to the Human Rights Council and to the General Assembly.

Box 2.13 Engaging with the United Nations Special Rapporteur on the human rights of migrants

Since 2000, the Special Rapporteur on the human rights of migrants has engaged with parliamentarians from a number of states while on fact-finding country visits, including to Albania, Canada, Ecuador, Guatemala, Italy, Mexico, Peru, the Philippines, Romania, Senegal and South Africa.

The Special Rapporteur’s visits may also help stimulate action, including at the parliamentary level. During the 2001 visit to Ecuador, the authorities informed the Special Rapporteur that accession to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families had been approved by the Congressional Commission on International Affairs and National Defence. By the time the Rapporteur’s report was published in February 2002, Congress had ratified the Convention. The Ecuadorian Migration Act was also amended by Congress, in 2004, pursuant to the Special Rapporteur’s recommendation that the Act be in compliance with the Convention.

The human rights of migrants are not only the subject of Professor Crépeau’s

mandate but have also been considered under the thematic mandates of other special rapporteurs and working groups, such as the Special Rapporteur on trafficking in persons, especially in women and children, the Special Rapporteur on violence against women, its causes and consequences and the Special Rapporteur on contemporary forms of slavery, its causes and its consequences. The work of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance is particularly important since “migrants” are one of the groups to which the Special Rapporteur has to give particular attention when investigating incidents of contemporary forms of racism and racial discrimination. Moreover, the work of the Working Group on Arbitrary Detention has also drawn attention to the growing number of state detention practices in respect of migrants around the world.

With the examination of all UN Member States within its first cycle (2006 – 2011) now completed, UPR has proved to be a useful mechanism in drawing attention to the human rights obligations of states towards certain groups of persons at risk, including migrants. Frequent recommendations submitted to Member States by their peers include ratification of international human rights instruments, including ICRMW.