SOMEONE ELSE’S WINDOWS: A note on UNHRC

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MindaNews / 23 July 2019 – The approval by the UN Human Rights Council early this month of a resolution sponsored by Iceland to investigate the human rights situation in the Philippines, in particular the deaths caused by the war on drugs, has put the Duterte administration on a defensive. It acted in a manner similar to how it responded to calls to subject the country to an examination by the International Criminal Court for possible crimes against humanity.

Threats of retaliatory measures ranging from severing diplomatic ties with Iceland to withdrawing from the UN echoed from the Palace as well as from lawmakers allied with the President. Their main contention is that the matter was a domestic concern and that the UNHRC action violated the country’s sovereignty.

For his part, Foreign Affairs Secretary Teddyboy Locsin Jr. warned of “consequences” which he didn’t elaborate. He declared the government would not allow such an investigation to take place. “And that’s final,” he said on Twitter. He even belittled the outcome of the UNHRC vote as insignificant. The Council voted 18 for and 14 against, with 15 abstentions.

Philippine officials thus dismissed the resolution as void on two grounds: (1) it failed to get the vote of majority of the Council members, and (2) investigating the alleged human rights abuses is a purely domestic function, which would render the first ground immaterial regardless of how the 47-member Council had voted. Are these arguments valid?

By belittling the vote as a minority decision, the government subtly pushed the argument that abstaining is as good as saying “no”. Fact is an abstention is a refusal to vote or take sides on an issue. As such, the party that abstains, or fence-sits, opts to leave the issue at stake to the judgment of those who may vote for or against it. It follows that the majority-minority question is left to those who choose to vote.

With regard to the question of sovereignty, the UN Charter does provide that “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.” [UN Charter, Chapter I (Purposes and Principles), Article 2, Principle 7] Now, does the UNHCR resolution contravene this principle of non-interference?

The UNHRC mechanisms include “the Universal Periodic Review which serves to assess the human rights situations in all United Nations Member States, the Advisory Committee which serves as the Council’s ‘think tank’ providing it with expertise and advice on thematic human rights issues and the Complaint Procedure which allows individuals and organizations to bring human rights violations to the attention of the Council.”

The Complaint Procedure observes tedious processes and requirements before the Council may act on complaints to ensure impartiality and objectivity. Besides, unless it decides otherwise, the Council reviews the situation contained in a complaint in a confidential manner to enhance cooperation with the State concerned.

Moreover, the Council only acts on what it deems to be “consistent patterns of gross violations” or those that were so severe that they could “no longer [be] regarded as falling exclusively within the domestic jurisdiction of States.” Apparently, the thousands of unresolved killings attributed to the war on drugs qualify under this criterion.

But while the Council may examine, monitor and accept complaints from individuals and organizations on human rights violations, it can only make recommendations on them. Such recommendations may include asking the Office of the High Commissioner for Human Rights to provide technical cooperation, capacity building and advisory services to the State concerned. Consistent with the principle of non-interference in the UN Charter, its work doesn’t supersede the functions of any country’s legal system and other domestic avenues for redress.

(H. Marcos C. Mordeno attended a three-week training on International Human Rights Law and International Humanitarian Law in Bangkok, Thailand in February 2003. The event was organized by the Faculty of Law of the University of New South Wales and Thammasat University.)

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