EIDHR - Training on Monitoring International Mechanisms

July 2010

Module 2 International mechanisms, engagement and

examples

Indigenous Peoples Links (PIPLinks)

http://www.piplinks.org

Plan of presentation

1. UN Committee on the Elimination of Racial Discrimination (covering country reports & early warning urgent action)

2. UN Special Rapporteur on Indigenous Peoples (& other Special Rapporteurs)

3. ILO complaints mechanisms (ILO 169, with focus on ILO 111)

4. Human Rights Council’s Universal Periodic Review

5. Other UN mechanisms

6. Regional human rights mechanisms and courts (ASEAN)

1a. UN CERD – What is it?

• UNCERD is a committee of 18 independent experts (appointed by governments on 4 year renewable terms)

• CERD operates to monitor and uphold the international treaty, the International Convention on the Elimination of all forms of Racial Discrimination)

• The Philippines is a signatory to ICERD, and it has also ratified the treaty

• CERD meets two times each year in Geneva, Switzerland (generally around February and August)

1b. UN CERD - What is it? (2)

• It operates on a recognition of Indigenous Peoples rights and the problem of discrimination. (See document General Comment 23)

• 3 main methods of work

a. It requires regular country reports of all states

b. An Urgent Action Early Warning procedure

c. An optional protocol which allows CERD to hear and resolve cases brought to them (NB The Philippines has not yet signed on to this protocol)

1c. UN CERD - How it works

• When there are country reports from governments like the Philippines the CERD invites the submission of material (shadow reports) by NGOs and others – see 2009 civil society submission on GoP report

• CERD designates one of their expert members to read the submissions and prepare comments

• The government presents their report normally in an afternoon session(3 hours). There are questions by committee members and answers given during the same session and the next session (3 hours) - NB during the official sessions observers are allowed in but not normally allowed to speak or comment

1d. UN CERD - How it works (2)

• Reports, and supplementary materials, are welcomed. They should best be submitted more than 1 month before the meeting for the secretariat to distribute. It is best to submit a minimum of 20 copies. Reports are better off being short, and make viable recommendations

• POs / NGOs can also request from the secretariat a space to give a one hour lunch time briefing to those committee members who will attend (& informal meetings are possible). Allow time for questions, and concentrate on recommendations

• CERD may issue written concluding remarks, or ask further questions of the government.

1e. UN CERD - How it works (3)

• Urgent Action Early Warning (EWUA) procedure - CERD every meeting looks at preventive measures which include early-warning aimed at situations requiring immediate attention or preventing conflict (NB – You will need to successfully argue the urgency of the case)

• POs/NGOs submit an urgent action and the EWUA sub-committee consider it. They may seek clarifications, especially from the government, but they will also make specific recommendations

• Various indigenous groups have submitted urgent actions, including the Subanon. The Subanon complaint was made in July 2007, and is still part of the CERD process under follow up procedures.

1f. UN CERD - Positive aspects

• Specific commitment to IP issues (see general comment 23)• Precedents have been set• Format for submissions relatively simple• Relatively quick (if an urgent action)(country reports-need

to monitor timetable?)• High profile and of press interest• There are follow up opportunities-• It is a Treaty monitoring body- Government normally obliged

to respond.• You can and should make your own recommendations for

action• Has links to other UN mechanisms which you can use in

conjunction

1g. UN CERD - Negative aspects

• CERD has no powers to enforce (apart from for the protocol)

• There are sometimes long gaps between country reports (GoP was in 1997 then 2009)

• CERD has limited capacity to cope with the many issues (meets for 6 weeks each year only)

• Meetings always in Switzerland so attendance is expensive & you ideally need good partners to advise.

1h. UN CERD – Meeting examples

• Has anyone had experience of working with the 2009 CERD shadow report

• What aspects of your situation might make a CERD urgent action?

• Possible input to national discussions before 2012

1i. UN CERD – Previous examples

• Canatuan Subanon put in an urgent action in for the August 2007 CERD meeting. There have been further interventions, and questions to the Government from CERD

• The Subanon submission reminded the CERD that Philippine Government report was overdue, which led to their reporting. Various groups worked in a 2009 Shadow country report and video, and presented at the meeting

• Western Shoshone from the USA submitted an urgent action to CERD over land disputes with the US Government and mining companies which has the inspiration of other applications, including the Subanon

2a. Special Rapporteurs – What are they?

• Special Rapporteur is a title given to expert independent individuals working on behalf of the UN who bear a specific mandate from the Human Rights Council to investigate, monitor and recommend solutions to human rights problems. They are also called "Special Procedures"

• Special Rapporteurs cover a range of issues, including IP rights and other relevant areas (e.g. Right to Food, Freedom of Religion, Extra-judicial Killings, Housing). There are currently 31 thematic and 8 country procedures - they can be looked up in our attached table

• Each expert is supported by OHCHR secretariat staff (see

• Each expert reports to Human Rights Council and maybe other bodies.

2b. Special Rapporteurs – What are they? (2)

• Most Special Rapporteurs receive information on specific allegations of human rights violations and send urgent appeals or letters of allegation to governments asking for clarification

• In 2008, a total of 911 communications were sent to Governments in 118 countries. 66% of these were joint communications of two or more Rapporteurs

• They do country visits and advice to countries. Some countries have standing invitations, but not the Philippines

• They write annual reports and sometimes special reports for UN HRC and other UN bodies.

• NB UN reports influence whole system

2c. Special Rapporteurs – How it works

• The current Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous Peoples (SRIPs) is Professor James Anaya. He is a Native American law professor, based in the USA

• A letter or written submission can be sent at any time. The OHCHR website gives advice on a format to help all to submit the right information. It is best to keep it short and give evidence to support information where possible.

• Professor Anaya also regularly attends and holds side meetings at the UN EMRIP in Geneva, and reports to the HRC (Geneva) and UNPFII (New York)

• Invitations for him to visit your community are also possible.

2d. Special Rapporteurs – Positive aspects

• Simple and can be done at any time (it is a good starting action, or you can copy the SRs in to other action)

• UNSR will try to keep your identity secret from government in their questioning (unless you ask not to)

• Deals well with specific community issues

• There is often a prompt response

• The different Special Rapporteurs often work together

• They can make country visits (e.g. 2002) (producing a quotable report)

2e. Special Rapporteurs – Negative aspects

• They have no effective sanctions

• Initial communications are with the government and replies are often private

• A country visit depends on an official invitation

2f. Special Rapporteurs – Meeting examples

• Has anyone had experience of sending information to the Special Rapporteurs, or met the previous UNSRIP when he visited the Philippines?

• What aspects of your situation might make a good complaint to the UNSRIP?

• What other Special Rapporteurs could you send materials to as well, or instead of SRIP? Why do this?

2g. Special Rapporteurs – Previous examples

• The Peoples Organisation in Didipio presented a complaint to the SRIP when he was hosting meetings at the EMRIP in Geneva in 2009. (However, the complaint has stalled while they wait for Philippine Human Rights Commission

• The previous SRIP, Rodolfo Stavenhagen, visited the Philippines twice (the first time for a full investigation in 2002, and the second for a follow up in 2007) He has a report. Contents……

3a. ILO – What is it?

• The International Labour Organization (ILO) is the United Nations system’s specialized agency that deals with labour issues. Its headquarters are based in Geneva

• It is a tripartite body made up of workers and employers organisations and governments. The ILO requires states to report regularly on conventions it has signed.

• It sets international labour standards, through the adoption of a wide range of conventions and recommendations, which governments can then ratify (sign up to).

• ILO Convention 107 is the longest standing UN document /treaty concerned with indigenous rights. It was later added to in ILO 169. However, neither are ratified by the Philippines

3b. ILO – What is it? (2)

• ILO Convention 111 is concerned with the right to a livelihood. It is a core (or principle/fundamental) instrument of ILO, meaning it has more importance. It has been ratified by most countries, including Philippines

• The Convention assigns to each State which ratified it the fundamental aim of promoting equality of opportunity and treatment by declaring and pursuing a national policy aimed at eliminating all forms of discrimination in respect of employment

• Convention No. 111 provides an important framework for promoting the rights of indigenous women and men to equality and decent work including traditional occupations.

3c. ILO – How it works

• If your traditional livelihood is threatened by a mining project you can use the instrument to claim your threatened traditional livelihoods are being discriminated against

• The first step in this is to form a workers’ (or employers’!) organisation covering the livelihood and/or to get a union to support you to make the complaint on your behalf

• You would then make a representation (complaint), under Special Procedures to ILO alleging the failure of the Government in reference to Convention 111. This should be submitted in writing, and invoke article 24 of the ILO Constitution, as well as outline which provisions of the Convention in question are alleged to have been violated

3d. ILO – How it works (2)

• Once the representation has been received, the ILO’s Governing Body appoints a Tripartite Committee (i.e. one government representative, one employer representative and one worker representative) to examine it

• This would be a new process for all of us, but there is a specialist office in the ILO that support Indigenous Peoples’ issues that would provide support – see http://pro169.org

3e. ILO – Positive aspects

• Governments are required to report on Convention 111 every 2 years

• The Philippines is a signatory, so has to respond

• There is a specialised advisory document and unit in ILO to provide support

• It is a new opportunity which in the right circumstances could add to projection of your issues

3f. ILO – Negative aspects

• It would need an organisation, probably a union, to support any representation. Or we form a Workers Cooperative of IP

• It’s meetings are in Geneva, which is distant and expensive

• This is a new process, so there are not many people who would be able to give advice from experience, and new mistakes may be made

• There is a lack of strong sanctions

3g. ILO – Meeting examples

• Are there threatened livelihoods in your situation that might make a complaint under ILO Convention 111?

• How might you seek to form a ‘worker’s organisation’?

• How might you get support from a union or other to provide support?

• (NB – There are no previous examples to give!!)

4a. UPR – What is it?

• The Universal Periodic Review (UPR) is a review of the human rights records of all 192 UN Member States to the Human Rights Council (HRC) once every four years

• The was created through the UN General Assembly on 15 March 2006

• The UPR provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries

• As one of the main features of the HRC, the UPR is designed to ensure equal treatment for every country when their human rights situations are assessed

4b. UPR – How it works

The documents on which the reviews are based are:

1. information provided by the State under review, which can take the form of a “national report”;

2. information contained in the reports of independent human rights experts, known as the Special Procedures, human rights treaty bodies, and other UN entities;

3. information from other stakeholders including NGOs (national and international) and national human rights institutions 

4c. UPR – How it works (2)

• Reviews takes place during a meeting of the UPR Working Group at meetings twice a year (country sessions last 3 hours)

• They create troikas of 3 states as rapporteurs. They group issues or questions in an interactive state-to-state dialogue. During this discussion any state can pose questions, comments and/or make recommendations to the States under review 

• NGOs can submit information which can be added to the “other stakeholders” report, which is considered during the review. NGOs can attend the UPR meetings and can make statements at the regular session of the HRC, when the outcome of the State reviews are considered

• OHCHR has released "Technical guidelines for the submission of stakeholders”

4d. UPR – Positive aspects

• It is a very high level review, and very high profile

• It takes account of UN Special Procedures reports

• It will allow NGO submissions

• Philippines reviewed in 2008, and may be reviewed again 2012

4e. UPR – Negative aspects

• It is run by other states so often weak scrutiny (and some states may not wish to take up indigenous issues)

• NGOs can submit reports, but others processed them

• NGOs are nominally allowed to speak, but very short time and much competition

• There is a very short time involved, with 3 hours per state, and indigenous issues mixed in with others

• It needs an expert lobby support, and is better with national coordination

4f. UPR – Meeting examples

• Have you had any input into the first Philippines UPR in 2008?

• What issues would you raise with the UPR?

• How might you have input into future UPRs? Who could you work with in order to get input

5a. Other mechanisms – CEDAW

• There are a number of other conventions, aside from ICERD. The next most relevant is probably the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted in 1979. The Philippines has ratified it

• The Committee on the Elimination of Discrimination against Women (CEDAW) is the body of (23) independent experts that monitors implementation of the Convention.

• The Committee receives complaints from individuals or groups of individuals on violations of rights protected under the Convention, and initiates inquiries into situations of grave or systematic violations of women’s rights

• Positive/negative

5b. Other mechanisms – UNPFII

• The UN Permanent Forum on Indigenous Issues (UNPFII) is an advisory body to ECOSOC, with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights

• It was established in 2000. It is made up of 16 experts, who serve a term of 3 years. 8 are nominated by governments, 8 from indigenous organisations themselves (via region)

• It meets over 10 days once a year in New York (around May). Each session has a theme, and indigenous peoples can attend, intervene (in short interventions) and submit materials. The materials can then be used as ‘UN materials’

5c. Other mechanisms – EMRIP

• The Expert Mechanism on the Rights of Indigenous Peoples (UNEMRIP) is a new United Nations mechanism created by the HRC in order to continue the work of the Working Group on Indigenous Populations (WGIP)

• The Expert Mechanism is a subsidiary expert mechanism of the HRC, in order to provide thematic expertise to the HRC.

• It is composed of 5 indigenous experts, the Expert Mechanism will on the rights of indigenous peoples to the Human Rights Council. It meets once a year in Geneva to discuss specific themes. Indigenous Peoples can attend in the same manner as PFII. It’s third session will take place in July 2010

5d. Other mechanisms – CSD

• The Commission on Sustainable Development (UNCSD) was established in December 1992 by the General Assembly, tasked with implementing the sustainable development chapter of Agenda 21 (from 1992 Rio Earth Summit)

• World Summit on Sustainable Development 2002

• It meets once a year in New York (around April) to discuss a number of themes. One of the themes discussed at CSD 18 (this year and next year) was/is “mining”. Various stakeholders are allowed to input (including an Indigenous peoples caucus, but also including industry)

• CSD 19 will come up with policy recommendations in 2011, and groups are planning to collectively input into it

5e. Other mechanisms – CBD

• The 1993 Convention on Biological Diversity (CBD) is an international legally binding treaty for the conservation and sustainable use of biological diversity. It came out of the 1992 Rio Earth Summit, and is seen as the key document regarding sustainable development. The Philippines has ratified it. 2010 is the International Year of Biodiversity

• The convention's governing body is the Conference of the Parties (COP), consisting of all ratifying governments

• It has openings for Indigenous Peoples, as it recognises their contribution to biodiversity, and their sustainable use

5f. Other mechanisms – Meeting examples

• Which of the above mechanism – if any – would aid you in your advocacy?

• Could you use them in a combination to increase the impact of your advocacy?

6a. Regional Mechanisms

• Various regions have their own human rights mechanisms, which people in the region can use

• In the Americas there is the American Convention on Human Rights, with the Inter-American Commission and Court of Human Rights

• In Africa there is the African Charter on Human and People's Rights, which is implemented by the African Commission on Human and People's Rights

• In Europe there is the European Social Charter, which is implemented by the European Court of Human Rights

6b. Regional Mechanisms - ASEAN

• In many ways Asia is behind in this regard, as its regional body ASEAN has a less developed human rights framework

• There may be ways to try to access some of the other mechanisms, or at least claim a precedent in other court decisions, even if it officially does not cover Asia

• ASEAN has, resisted setting up a body specifically on human rights (often arguing it would interfere in national affairs, which was not the Asian way). A consensus basis for working means states have a veto. Human Rights body is now in development.

6c. Regional Mechanisms - ASEAN

• The Association of Southeast Asian Nations (ASEAN) was founded in 1967 by the ASEAN Declaration (“Bangkok Declaration”). Its original members were Indonesia, Malaysia, Singapore, Thailand and the Philippines – others joined later (now 10 members)

• The 1967 Bangkok Declaration talked about social progress, coupled with respect for justice and the rule of law – but does not mention human rights

• After much lobbying the ASEAN Intergovernmental Commission on Human Rights was created at 15th ASEAN Summit in Thailand in October 2009

6d. Regional Mechanisms - ASEAN

• After much lobbying the ASEAN Intergovernmental Commission on Human Rights (AIHRC) was created at 15th ASEAN Summit in Thailand in October 2009

• It is a consultative body that exists to promote and protect human rights, and regional co-operation on human rights

• The AICHR is directed by a body of Representatives, one per member state, and answerable to their government

• It has been much criticised as toothless (concentrating on promotion & not protection). Amnesty International tried to put in individual complaints to the first meeting in Jakarata in March 2010, but the meeting refused to hear them

6e. ASEAN – positive & negative

• On the positive side, there is now a regional body dealing with human rights issues. As it is new there is a potential to lobby it

• On the negative side, it is government controlled and seems not to want to upset other ASEAN members by looking at specific violations

• If there is any plans to use it they should be done via national networks, such as Amnesty Philippines, and others.