The United Nations System
Stefano Gennarini earned a Juris Doctorate from Notre Dame Law School and is a Blackstone Legal Fellow. Before attending law school, Stefano attended the Redemptoris House of Formation in London and Heythrop College, University of London where he obtained a Bachelor degree in Theology. He currently serves as the Director of Legal Studies at the Center for Family and Human Rights (C-Fam) in New York and oversees C-Fam’s Edmund Burke Fellowship program. While in the United Kingdom, Stefano also worked as an editor and translator. He has lived and worked in the United States, the United Kingdom, and Italy, and done missionary work in Nigeria, the West Indies, and Israel. He is fluent in Italian and Spanish. Stefano is married to Elizabeth; they have two daughters and live in New Jersey.
The purpose of this fact sheet is to give a brief overview of the United Nations Organization with a view to underlining the key bodies where life, faith and family issues are being debated. To this end, it will be divided into four parts. Part one will give an overview of the systemic and substantive issues. Part II will discuss the United Nations System, including key principal organs, special agencies and funds as well as human rights bodies. Part III will treat the role of the non-governmental organizations. Part IV will provide a list of selected issues.
1. Overview: Systemic and Substantive Issues
The United Nations Organization is not a world government. U.N. Members States are expected to implement their international undertakings, albeit with some nudging from treaty bodies and other mechanisms within the United Nations Organization, which functions in a horizontal international system, where Members States are considered sovereign and equal. Consequently, in working through the United Nations System, one needs to appreciate which instruments have or do not have binding effect on relations between member States.
There are three ways in which States may take on legal obligations in international law. On this point, it is common to cite art. 38, a.b.c. of the Statute of the International Court of Justice (ICJ) for the sources of international law that oblige States vis-a-vis States. The statute recognizes three: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations. It is generally recognized that there is no hierarchy to this list of sources.
In this horizontal system, the judicial decisions and opinion of scholars do not create international law. For example, Art 38.d. states that subject to art. 59 [that ICJ decisions have “no binding force except between the parties and in respect of that particular case”], judicial decisions and the teachings of the most highly qualified publicists of the various nations [are not sources of law but are] subsidiary means for the determination of rules of law. In brief, human rights may be either aspirational or binding on member states, and States are only bound to obligations they expressly or implicitly undertake, unless the obligations derive from a peremptory norm (e.g., freedom from slavery).
Human rights language “formulated at UN-sponsored negotiations now shapes and solidifies international, [regional] and national law,” on matters regarding life, faith and family. For example, there is no right to abortion in international law either by way of treaty obligation or through customary international law. In fact, several international agreements have provisions that expressly protect human life in the womb. However, there are ongoing efforts by some States, NGOs and U.N. bodies to argue that a “right to abortion” exists. Similarly, international law does not afford any special rights to individuals who identify as lesbian, gay, bisexual, transsexual and intersexed (LGBTI) by virtue of their “sexual orientation and gender identity” (SOGI) — a notion that is not a universally recognized category in international law. However, attempts continue to create “new rights”.
The promotion of certain ideologies within the United Nations system with negative effects for regional and national laws is largely due to the following:
- There has been a rapid increase in international human rights treaties as well as non-binding resolutions of U.N. organs that deal with the right to life, right to marry, the rights of the family, parents, women, children and religious freedom.
- Over the past three decades, mostly western countries and well-funded groups have used the U.N. human rights framework to lobby for certain ideologies. They have injected new and vague terminology in documents with a view to developing binding international norms.
- Notwithstanding significant success in influencing non-binding U.N. resolutions, as well as materials from the U.N. bureaucracy and U.N. agencies and programs, there is no universal right to abortion nor are their specific rights associated with subjective attractions or feelings recognized as a category of non-discrimination.
- Little distinction is made between binding and non-binding international human rights instruments based on the sources of international law outlined above. For example, the term “human rights standards” is employed that encompasses both binding and non-binding international human rights instruments.
- The terms and principles of non-binding instruments or conference outcome documents when adopted by consensus can be repeated with a view to creating customary international law, and only persistent objection by States can permit the said principle from becoming customary international law.
- In recent years, there has been increasing effort to argue that language from resolutions of a U.N. organ that does not include the whole membership of the U.N. (e.g., functional commissions of ECOSOC, see infra) is agreed language—a technical term referring to language agreed by consensus in the G.A. After all, when fewer members States are involved, it is generally easier for countries to introduce vague or ambiguous language or principles that mask a larger ideological platform.
- Largely due to the advancement of gender ideology, the 1948 Universal Declaration of Human Rights the foundational document of the International human rights system is currently being undermined, reinterpreted and even excluded from negotiations. Why? Because it is the only document that speaks to the source of human rights founded on the rights and duties that flow from an objective foundation, namely, the inherent dignity and equality of the human person, male and female, endowed with reason, conscience and freedom.
- The increased promotion of the participation of non-governmental organizations or “civil society” has led to the creation of well-funded lobbying groups, which have been very successful in influencing certain bodies, especially treaty bodies. An analysis of this phenomenon as regards abortion lobbying groups has been quite revealing (see e.g., Rights by Stealth: The Role of UN Human Rights Treaty Bodies in the Campaign for an International Right to Abortion).
2. U.N. System
a. Charter of the United Nations
In 1945, according to its preamble paragraphs the United Nations Organization was established by the U.N. Charter in response to “the scourge of war” which had wrought “untold sorrow to mankind”. The purpose was to promote international peace and security as well as respect for justice, international law and its sources, human rights, and social and economic development.
In particular, the preamble speaks about “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” Then article 1 underlines “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”
However, article 1 should be read with art. 2 of the U.N. Charter which states: “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.”
b. Principal Organs
The Charter establishes six principal organs, also known as charter bodies, which in turn, have created subsidiary bodies: General Assembly, Security Council, Economic and Social Council (ECOSOC), Trusteeship Council (suspended), International Court of Justice, and the Secretariat (see U.N. flow chart).
The United Nations has its headquarters in New York City, where the key bodies meet year round, but it also maintains an important presence in countries, especially Geneva, where the Human Rights Council and U.N. Treaty bodies meet. The daily Journal of the United Nations keeps one apprised of the activities at the New York Headquarters. For our purposes the following is noteworthy:
- In the General Assembly, every U.N. member state (193 in total) has one vote, and non-binding resolutions may be adopted by consensus or vote. It is the governing body of the United Nations and elects the membership of U.N. charter bodies as well as the Secretary General and other U.N. officials. It also controls the U.N. budget and exercises oversight over U.N. funds and programs. The work of the G.A. is decided in an annually agreed agenda and conducted according to rules of procedure. Its overall work is divided into six committees, the Second Committee devoted to development and the Third Committee dealing with economic, social and humanitarian affairs, both raise human rights issues of concern for life, faith and family.
- The Economic and Social Council (ECOSOC) is a consultative body of the General Assembly and also oversees the work of specialized agencies, and U.N. funds and programs. The 54 U.N. members states elected by the General Assembly and ECOSOC is divided into subsidiary organs (Functional Commissions, Regional Commissions, Standing Committees, Expert Bodies, and so forth) coordinated by periodic meetings called segments. ECOSOC provides overall policy and operational guidance to U.N. agencies, funds and programs, and has now become a testing ground for policies that may gain wider acceptance in the G.A. For example, there are annual and very heated negotiations in functional commissions tasked with reviewing the progress of non-binding outcome documents of world conferences, such as the Commission on the Status of Women, Commission on Population and Development, and Commission on Social Development, which promote controversial wording as regards life, faith and family.
- The Secretariat serves the principal bodies of the U.N. system and administers the programs developed by the same and coordinates the implementation of resolutions of these bodies throughout the U.N. system. It has over 40,000 employees working at offices around the world, who are on an average posted for longer periods than delegates of member states, and therefore, ensure a certain continuity and observance of protocols at U.N. meetings and negotiations.
- The Secretary General (S.G.) is the head of the secretariat. Early on in the history of the United Nations, S.Gs took on the role of representatives of the U.N. to the public, and agenda setters within the system, even though the S.G. mandate in the U.N. Charter is essentially bureaucratic. For example, the S.G. is referred to as the “chief administrative officer” of the U.N. (art. 97, Charter). The S.G. has increasingly placed the secretariat at the forefront of promoting controversial social policies and influencing all U.N. activity. Virtually every resolution is based on a report of the S.G., which some promote as an authoritative interpretation of U.N. resolutions, since virtually every resolution requests the S.G. to follow the resolution with some action. For example, in 2014 the SG published a guidance note that promotes abortion, entitled “Reparations for Conflict Related Sexual-Violence”. While the guidance note falls short of describing abortion as a right of reparation, or arguing that countries have a legal obligation under humanitarian law to allow unborn children conceived in rape to be aborted, U.N. officials are obliged to promote abortion in post-conflict settings.
- Office of the High Commissioner for Human Rights (OHCHR). The OHCHR is the human rights bureaucracy of the United Nations. Based in Geneva, it is divided into four divisions which reflect the major areas of OHCHR engagement with member states and within the UN system at large. It has a special role as regards Charter-based human Rights bodies (e.g. Human Rights Council, Special procedures and the complaint mechanism) and services the 9 core Treaty bodies. The New York Office of the OHCHR works to integrate human rights standards into the work of the principle organs situated there.
- Department of Economic and Social Affairs (DESA). DESA is tasked with supporting deliberations of the G.A. and ECOSOC and the latter’s subsidiary bodies. DESA also has monitored progress towards achieving U.N. development goals, including the UN Millennium Development Goals (MDGs),which have raised considerable debate over the years. DESA recently facilitated the process towards the elaboration of new Sustainable Development Goals, which will build upon the MDGs and converge in a new post 2015 development agenda, also the subject matter of much discussion. As regards the latter, recent debates have involved the promotion of abortion, “SOGI” and “sexual and reproductive health and rights” which is a conflation of two terms that were agreed and defined in ICPD, “sexual and reproductive health” and “reproductive rights.”
- Under the Charter, the Security Council is primarily responsible for the maintenance of international peace and security. It is comprised of 5 permanent members (China, France, Russian Federation, United Kingdom, United States), which hold a veto, and 10 non-permanent members elected for two year terms by the General Assembly. Security Council resolutions have a binding effect on U.N. members Sates depending upon the nature, content and intent of the respective resolution. The mandate of the Security Council is set out in the U.N. Charter (Chapter VII) in specific regard to international peace and security. Annual and controversial debates concern the Women, Peace, and Security Resolution 1325. Resolutions 2122 and 2106, which have been used as an opportunity to introduce troublesome language such as “sexual and reproductive health and services,” which could be interpreted as including a “women’s right to abortion” under humanitarian law.
c. Specialized Agencies, Funds and Programs
The UN is referred to as a system because of its 15 specialized agencies and 11 programs and funds. The agencies, programs, and funds have been used as a key vehicle to establish controversial new norms because of their influence on countries that rely heavily on their financial assistance and technical cooperation. For example, expenditures for development are now approximately $25 billion annually (see 2014 Report of the Secretary General). For example, consider the following two bodies:
- World Health Organization (WHO) describes itself as the coordinating authority for health in the UN system and is especially important to countries which do not have an adequate health infrastructure. Its governing body is the World Health Assembly, and its operations are overseen by a Director-General and Executive Board. The WHO has played a significant role in the development of arguments in favor of abortion rights and the definition of “sexual and reproductive health”. For some time, it emphasized safe abortion, where abortion is legal, but recently has taken a more open position against criminal restrictions on abortion in its technical guidance policy statement, which in response, was criticized for that guidance because it recommends sub-standard abortion practices.
- United Nations Population Fund (UNFPA) was established as a trust fund to finance population programs in 1967. It is entirely supported by voluntary contributions of governments, intergovernmental organizations, private sector foundations, other entities and individuals. ECOSOC guides the overall policy and works closely with the International Planned Parenthood Federation (IPPF). The UNFPA is by far the most controversial of all the UN agencies, funds and programs because of its involvement in the creation and implementation of the one child policy in China as well as other coercive or semi-coercive population control programs.
- The United Nations Educational, Scientific, and Cultural Organization (UNESCO) was founded in 1945 on the principle that political and economic cooperation is not sufficient for peace; rather, what is needed is the “moral and intellectual solidarity” of nations. To this end, UNESCO strives to promote quality education, intercultural understanding, scientific cooperation, and freedom of expression. In 2009, UNESCO drafted two sets of Technical Guidelines on Sexuality Education, which are “largely at odds with the foundational documents of international human rights law. The Guidelines ignore the rights of parents, misinterpret the roles of children and their families and sexualize children by exposing them to detailed information regarding human sexuality.” Indeed, these Guidelines are an example of how a social policy may overshadow the stated purpose of UNESCO, namely the advancement of the “moral and intellectual solidarity” of nations.
d. Human Rights Bodies: Treaty Bodies
Within the U.N. system a distinction is made between Charter-based bodies and Treaty-based bodies. The term “treaty-based bodies” as opposed to the correct term “treaty bodies” reflects how the OHCHR has gone beyond mere service to these committees (e.g., offering meeting space, etc) to integrating them into the U.N. system. For example, the Chair persons of all of the treaty bodies meet together in an effort to mainstream certain interpretations of human rights, which include certain ideologies. In addition, Chairpersons participate in meetings within the U.N. system on relevant topics.
In brief, there are 9 core human rights treaties, which have, in turn, established a respective, committee(s) or a “treaty body” that gives recommendations to State Parties as to the implementation of the respective treaty. Depending upon the provisions of the respective treaty or optional protocol thereto, there may be any one or a combination of the following mechanisms: a State Reporting Process; State v. State reporting system; an individual complaints mechanism; and/or an inquiry process.
The treaties and their instruments of ratification are deposited with the Secretary General. Not all U.N. member States are parties to each treaty. The parties to each treaty meet annually in a Conference of State Parties to assess the implementation of the treaty. The Conference of State Parties determines the membership of the committee and committee members are elected to terms varying from 4 to 6 years depending on the treaty. They are considered independent experts, that is, they do not represent a State party and they are not compensated for their work. The committees meet a few weeks out of the year.
Treaty bodies are not judicial organs. Their conclusions take the form of non-binding recommendations designed to assist State Parties in the implementation of their treaty obligations. Those conclusions are not judgements nor do they constitute “jurisprudence”, in the common law sense of the term. Treaty bodies have no competence to redefine the terms used in the substantive norms of their constitutive treaties, or create new rights or principles. In particular, treaty bodies cannot impose upon State Parties obligations which have not been expressly undertaken by those States when negotiating and ratifying the constituting treaty. In regard to the interpretation of treaties, the 1969 Vienna Convention on the Law of Treaties, articles 31 and 32 should be respected, in so far as they constitute treaty obligations or principles of customary international law, however, treaty bodies rarely refer to these principles.
e. Human Rights Bodies: Charter-Based Bodies
The Human Rights Council is a subsidiary of the GA that deals exclusively with Human Rights. It was established in 2006 by G.A. Res/60/251 and replaced the ECOSOC functional Commission on Human Rights—a body that became highly politicized and eventually discredited. At the same time, it created the Universal Periodic Review (UPR), which entails the review of the human rights records of all UN members States through an inter-active dialogue between the State under review and other States as well as inter-governmental organizations (IGOs) and non-governmental organizations (NGOs). In regard to life, faith and family issues, during the UPD, a few States along with NGOs may promote ideologies.
Special Procedures are mechanisms comprised of either an individual (special rapporteur or representative) or a working group (on thematic issues or country situations) established through a Human Rights Council resolution. Special procedures previously established under the former Commission on Human Rights carried over into the HRC. In 2009, the Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism cited the controversial “Yogyakarta Document” in support of the proposition that international treaties “requires States to ensure non-discrimination and equality (de jure and de facto) on the basis of “SOGI”.
3. Role of Non-Governmental Organizations (NGOS)
The U.N. has actively promoted NGO involvement which has gradually evolved from documenting, reporting, and condemning rights violations to full participation in the policy-making process. In 1945, pursuant to Article 71 of the Charter of the United Nations, the UN envisioned some role for NGOs, giving the Economic and Social Council (ECOSOC) the power to “make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence.” There has been a series of resolutions since, which have further defined the role of the NGO and there is a Standing Committee on Non-Governmental Organizations under ECOSOC, where non-governmental organizations, also known as “civil society” can apply for consultative status with ECOSOC, which permits them access to the UN headquarters for the purposes of lobbying. In addition, Guidelines were developed in 2008 for the involvement of NGOs in the Universal Periodic Review process.
4. Selected issues and ideologically charged terminology
a. Overreaching of Treaty Bodies
There has been much discussion about how treaty bodies, under core conventions, have been exceeding their mandates. G.A. launched a process of reforming the treaty body system in 2012 through resolution 66/254 in which it requested the President to open an intergovernmental process to conduct negotiations on the human rights treaty body system. The process of reform was extended until 2014 when the G.A. adopted resolution 68/268. This could be an important step towards reforming the treaty bodies and signals that the G.A. is going to continue to review the work of treaty bodies and how the secretariat services the treaty bodies in coming years. The reform process is known as treaty body strengthening. Treaty body experts refer to their own interpretations of the treaties they monitor as “authoritative” and often use the term “jurisprudence” in referencing their own interpretations of the treaties. That term “jurisprudence” is misleading since it may mean many things to people from different backgrounds. For example, the term is usually used to mean binding judicial precedent in common law countries, while in a civil law tradition the notion “jurisprudence” instead refers to the opinion of scholars about the law.
b. The terminology “Sexual and Reproductive Health and Reproductive Rights”
The 1994 International Conference on Population and Development held at Cairo (ICPD) was a watershed moment for those promoting abortion at the U.N. The non-binding conference outcome adopted by the G.A. includes abortion in the definition of the terms sexual and reproductive health, and sexual and reproductive health services—but not without ambiguity because the ICPD outcome also recognizes the sovereign prerogative of states to prohibit and restrict abortion. The most relevant portions are in Chapter VII on Reproductive Rights and Reproductive Health (especially 7.2 to 7.11), and Chapter VIII on “Health, Morbidity and Mortality (especially 8.25), which were met with reservations from many countries.
c. The expression “Maternal Health”
“In September 2000, the United Nations adopted the ‘Millennium Declaration,’ vowing to eradicate extreme poverty and improve the overall quality of life in the world. The fifth ‘Millennium Development Goal’ is to improve maternal health. Because this is a broad goal, it has come to mean many different things over the years. The target indicators of a society with improved maternal health, according to the UN, are a 75% reduction in maternal deaths and increased overall access to family planning. Many UN agencies and NGOs, such as the International Planned Parenthood Federation and the Guttmacher Institute, have used this goal as an opportunity to advance an agenda that supports abortion and contraception, claiming both as ‘reproductive rights.’”
d. The term “Gender” and “Gender Ideology”
A key controversy at the 4th World Conference on Women in 1995 was the term “gender.” The Beijing Declaration and Platform for Action, adopted by the General Assembly following the conference employed the term 233 times in the final document and sparked an open discussion about attempts to redefine gender as a social construct in line with the thought of Judith Butler (1990, Gender Trouble: Feminism and the Subversion of Identity). The controversy over the redefinition of gender erupted into debates about the promotion of abortion as a human right, a sexless world, sexual orientation and gender identity as human rights. A working group of sixty state representatives was formed to define gender as employed in the Beijing outcome document. Their convoluted conclusion is set out in Annex IV to the Report of the Fourth World Conference on Women, which says “gender” is only “to be interpreted and understood as it was in ordinary, generally accepted usage.” Upon a review of past documents, the “ordinary, generally accepted usage” of gender is to identify a person’s sex as either male or female with an emphasis on the issues pertaining to women and girls. The only binding definition of “gender” in an international treaty law is in the 1998 Rome Statute of the International Criminal Court (ICC Statute), which entered into force in 2002. This definition reads: “For the purposes of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above” (Article 7, 3). Attempts to redefine the term “gender” are ongoing, see the discussion infra, under “SOGI”.
e. The terms “Various Forms of the Family” or “Families”
The 1995 World Summit for Social Development, in Copenhagen, included the phrase, “various forms of family” (Dcl., 26.h) as well as “reproductive health”. The outcome document was adopted by a resolution of the G.A. For the full report, see: A/CONF.166/9: Report of the World Summit for Social Development including the Copenhagen Declaration and Programme of Action. On a more positive note, the outcome document firmly promoted a holistic view of social development in putting “people at the centre of development ” (Dcl. para. 26.a), and committing “to a political, economic, ethical and spiritual vision of social development that is based on human dignity, human rights, equality, respect, peace, democracy, mutual responsibility and cooperation, and full respect for the various religious and ethical values and cultural background of people (Dcl., para. 25).
f. The Expressions “Sexual Orientation” and “Gender Identity”
In 2006, a group of individuals drafted a document entitled Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. It attempts to introduce a new interpretation of international instruments in line with the lobbying interests of the self-defined group Lesbian, Gay, Bisexual, Transgender, Inter-sexed (hereinafter “LGBTI”). The document has no binding force in international law, however, certain drafters of the document, have since, in their capacity as Special Rapporteurs within the U.N. system cited the document in their reports, which, in turn, are non-binding. For example, one Report redefines the commonly understood definition of gender in stating: “Gender is not synonymous with women but rather encompasses the social constructions that underlie how women’s and men’s roles, functions and responsibilities, including in relation to sexual orientation and gender identity, are defined and understood. The report therefore discusses, besides the human rights of women, the gendered impact of counter-terrorism measures on men and persons of diverse sexual orientations and gender identities”.
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