The Development of International Human Rights Laws and Standards - Essay Example

? Topic: “The UN is essential to ensuring accountability by member s for their human rights obligations and commitments. The UN is also a key platform for the development of international human rights laws and standards.” How the UN acts as a key platform for the development of international human rights laws and standards?” Immediately at the end of the Second World War, it was felt necessary for the legal protection of human rights on international level, and this has paved the way for the establishment of United Nations in 1945. The United Nations Human Rights Commission (the Commission) was the chief intergovernmental decision-making body, particularly for human right issues and this was succeeded by the UN Human Rights Council (UNHRC) in 2006. “On 10 December 1948, the UN General Assembly espoused the Universal Declaration of Human Rights (UDHR).” Before the adoption of UDHR, human rights were guaranteed through protection of natural rights and the protection of human rights by the rule law by different nations around the globe. The declaration and implementation of UDHR in 1948 can be said to be a new beginning of the significant global march towards making sure that the human rights is safeguarded internationally by the rule of law. Thus, UDHR can be said to be legal foundation for modern international human rights law1. Though, UDHR is not legally binding instrument when it was introduced 64 ago, but UDHR is consistently employed to safeguard the international human rights, mainly through the rule of law. As compared to the earlier endeavour of including human rights provisions in the Covenant of the League of Nations immediately at the conclusion of the First World War in 1919, was futile. However, there was an effort by private sector and in 1929, the Institute of International Law, which was a private body of eminent officials of international law in USA, Asia and Europe perused the Declaration of the Rights of Man where it was stressed that it was the State’s responsibility to offer equal rights to every individual to their liberty, life and property. Though, the above Declaration was not a legally authenticated document, it facilitated wide publicity of the notion of the international human rights for the first time2. Massacres and atrocities unleashed during the Second World War had aggravated poignant humanitarian apprehensions and pushed the international community to introduce a global initiative to ensure the legal safeguard of human rights and accomplishment of world safety and peace3. Since its inception, UDHR played a major role in establishing a comprehensive body of human rights regulations and laws. Within six decades of its establishment, its function included to address particular human rights infringements and complaints together with wider human rights issues. The UN has established a system of unique methods to supervise, analyse and report on human rights infringements. The UN system addressed not only nation-specific human right infringement, but also ‘thematic’ cutting across human right infringement like religious prejudice, racial discrimination and refusal of freedom of expression. In Prosecutor v. Anto Furundzija4, it was observed by the International Criminal Tribunal that the general rule of honour for human dignity was the fundamental highlight of both national human rights law and global humanitarian law. (Olasolo 2008:34). In Juan Carlos Abella v. Argentina5, the Inter-American Commission on Human Rights observed that its authority to extend the international humanitarian law could be obtained from the overlie between the standards between the Geneva Conventions and the American Convention on Human Rights6. However, in the recent years, disagreement crept over the conduct of the commission members. Some nations which are criticised as systematic human rights infringers were voted as its members. Sudan, which is notorious for its human rights abuses, was elected as the member of the council in 2001. Sudan was widely censured for its ethnic cleansing in Darfur region. When Sudan was re-elected again in 2004 as a member, it erupted high opposition from various human rights organisations, and it made USA to walk out of the commission chamber in dissent .These developments poignantly impacted the credibility of UDHR. There was severe criticism by detractors that nations like Sudan misused their membership to distract the notice of their own human rights infringements by questioning the conduct of other member nations. Some member states that was notorious for their human rights violations had gone to the extent of blocking the voting against any human violations and even indulged in extreme bureaucratic manoeuvring to stop wide publicity of their infringements like what Sri Lanka tried to gather supports from various members recently for not passing a resolution against it7. Hence, efforts were undertaken to introduce a new but a smaller Council thereby replacing the Commission and hence, UN Human Rights Council (HRC) was established in 2006 in the place of the erstwhile commission. The establishment of Council is considered to be a part of wide-ranging UN reform. One of the main objectives of the Council is to have the periodic review universally to evaluate each member nation’s accomplishment of its human rights commitments. However, then Bush administration voted against the creation of Council and asserted that USA would engross with the Council “only in issues of deep national interest”. However, USA again was elected as Member of the Council during Obama region in 2009. The Council did engage in addressing the human rights scenarios in the Occupied Palestine Territories in Israel and also evinced keen interest in human rights scenarios in Darfur, Myanmar, DRC (the Democratic Republic of Congo) and Sri Lanka8. (Blanchfield 2009:1). OHCHR (The Office of the High Commissioner for Human Rights) is a department within UN Secretariat and is involved to promote and safeguard human rights globally through international affiliation, and through the cooperation and restructuring human rights initiatives within the UN system. The UN Human Rights Council which was established in 2006 is accountable for “encouraging worldwide admiration for the safeguard of all fundamental rights and human rights for all, without difference of any sort and in a fair and equal style. The Council is entrusted with the addressing of scenarios of infringement of human rights, which include gross and methodical infringement and forward suggestions thereon. It also makes periodical review of the each and every member state’s accomplishment of its human rights commitments and undertakings. How UN Human Rights Council Oversee Member Nations Human Rights Obligations and Commitments? “The Universal Periodic Review “(UPR) of UN Human Rights Council has the great prospective to encourage and to safeguard human rights even in the neglected regions of the world. UPR is a distinctive process which includes an evaluation of records of all 193 UN Member State’s human rights commitments once in every four years. UPR is handled by each State with the backing of UNHRC (Human Rights Council) which offers a chance to each State to detail their initiatives to enhance the human rights scenarios in their nations and to accomplish their human right commitments. When the human rights scenario is evaluated, the UPR is designed in such a way to offer analogues treatment for each and every Member nation. For example, from 25th May 2012 to 31st May 2012, UPR conducted the review for Brazil, Phililiphines, Algeria, Netherlands and South Africa9. As per OHCHR Report 2011, it has set up a country office in Tunisia in 2011 and in Libya, and more human rights staffs were added into the United Nation Support Mission. During the year 2011, the mandate for the HRC offices in Guatemala and Cambodia were extended, and Nepal office was closed down. As of 31st December 2011, OHCHR had the presence in 58 nations, had stand-alone offices in 13 nations and 15 peace missions with human rights components, twelve regional offices and eighteen advisers in the United Nations Country Teams. OHCHR is of the view that the presence of human rights mechanisms is crucial for offering national human rights officials with straight and targeted help in handling human rights issues10. In all parts of the world, even today, discrimination remains a major impediment to the enjoyment of fundamental human rights. OHCHR offers its valuable advice to States for the drafting of effective laws and to establish an institution to address discrimination. In 2011 alone, UHCHR has assisted to draft legislation to tackle discrimination in Cameroon, Afghanistan, Ecuador, Congo, Nepal, Mauritania, Republic of Moldova, Peru, Sierra Leone, Serbia and Uganda. To address the indigenous people related issues, in 20 May 2011, United Nations –Indigenous People’s Partnership (UNIPP) was established. Approval for the indigenous people programmes drawn by Nicaragua, Nepal, Congo, Bolivia, Central African Republic and Cameroon and also for a regional programme for South-East Asia was given by UNIPP in October 201111. UNIPP also gave its technical advice to Mexico for the access to justice by indigenous people. Due to OHCHR efforts, a Mayan woman who was in prison for than thirty-six months was set free. Now, OHCHR is taking efforts for the release of two indigenous Nahua human right activists, in Puebla. OHCHR also helped various States in implementing national strategies of action against racism, and it offered its backup to Uruguay, Costa Rica, Nigeria, Bolivia, Burkina Faso and Benin in 2011 alone12. The first ever UN resolution on transgender, gay, bisexual and lesbian persons was adopted in 2011 at the HRC. The resolution not only exhibited deep anxiety at discrimination and violence unleashed on gender identity and sexual orientation but also asked to prepare a study document on such discrimination and violence and to recommend the necessary remedies. Hence, the study was made and report was published on the discriminatory practices, violence and discriminatory laws, which include the provinces of education, employment, healthcare, gender recognition the recognition of relationships and the family13. OHCHR is also associated in the development of an acceptable policy on electoral help and offer its advice and support on the assimilation of international standards into electoral regulations and actively involved in constitutional drafting process in Somalia and Libya. OHCHR assisted the Colombia, Cambodia, Guinea-Bissau, Liberia, Honduras, Nepal, Senegal, Rwanda and Timor-Leste for integrating the international human rights law into their national legislation14. OHCHR prolonged to support the States in formulating indicators for human rights in Kenya, Ecuador and Mexico. In Nepal, the human right indicator developed by OHCHR for the recognition and dissemination of indicators to supervise social, economic and cultural privileges largely improved the Nepal government’s human right activities footed upon the approach in elimination of poverty and in national building15. UNCT (United Nations Country Team) in Madagascar requested the services of the HRA (Human Rights Advisor) to carry out human rights compliance evaluation of the mining company Rio Tinto/QMM in Madagascar. HRA’s report dealt with to enhance its consultation practices with the local authorities and communities. It has been warned that UN may not participate in any projects / programmes that infringe the privileges and atmosphere of local communities. OHCHR developed a unified contract for all migrant domestic workers in Lebanon16. Throughout the year 2011, OHCHR tackled a plenty of requirements due to Arab Spring. It has sent missions to the uprising Egypt, Tunisia, Bahrain and Yemen. Supervising and reporting functions are crucial to the promotion and safeguarding of human rights as objective and accurate data is essential to have an efficient dialogue, support and the offering of enough assistance and the protection of human rights. OHCHR is publishing bi-annual reports on Afghanistan on the safeguarding of civilians in armed conflict. Due to enhanced protection mechanisms that were perused as per the recommendation of the OHCHR report, the number of civilian causalities caused by pro-government forces was declined in Afghan17. In 2011, through four special sessions, UNHRC deliberated specific confronts to the safeguarding of human rights in Syria and in Libya. There were reviews of all 193 Member Nations of their human rights obligations and observation at the end of October 2011 with 100% participation from Member States. Of these, about four-fifth were represented at the Ministerial level, signifying the magnitude of the discussion. In about forty nations, there were followed up on whether UPR recommendations are being adopted or not with targeted state plans of framework or actions, roadmaps on the implementation by Kazakhstan, Guinea, Kenya, Armenia, Mongolia, Madagascar, Rwanda, Republic of Moldova, Somalia and Sierra Leone18. In the case of Libya, Kyrgyzstan and Ivory Coast, UNHRC efforts have been lauded as it extended its full support for these nations which are experiencing transition immediately after a crisis. These provinces offer the UNHRC with a chance to further consolidate its trustworthiness by strongly associating with these nations and to extend help to other countries, which witness analogues’ scenarios. The recent laudable effort by the UNHRC in the case of Sri Lanka where it successfully voted for a resolution in March 2012 demanding from the Sri Lankan government to apply its own resolutions and to reinvestigate into the civilian deaths during recent civil war. The resolution against Sri Lanka was sponsored by the USA with the support of India, EU and Nigeria despite backbreaking lobbying initiatives by Sri Lanka, is another instance of the crossing over the customary regional impediments19. International Covenant on Civil and Political Rights ( ICCPR) UN has enacted the ICCPR, mainly to signify the individual rights , individual political rights , individual civil liberties and empowerment of the citizens vis-a-vis the state .ICCPR entails preventing the instruments of the state so that both political and civil rights are not trampled upon. For instance , an Australian citizen filed a complaint to UNHRC against an Australian law which restrained consensual homosexual act in the province of Tasmania. It was ruled by UNHRC that the Australian law infringed the right to equal protection and right to privacy under ICCPR. Thus, in this manner, the sexual rights like other human rights , symbolizes the restructuring of the territorial of nation-states and UNHRC’s ability to make the member states accountable for violations of rigth to privacy of its citizens20. Right to Life UNHRC refers the right to life as a non=derogable right since without this right , there would be no rule of law. Under International Law , the right to life is a non-derogable right. According to professor Meron , the right to life is one of the irreducible core of non-derogable rights in the international human rights law. It has been observed by the various decision , that a state party should not deport an individual to another state where there is a real peril to that individual’s life and if so, it will be regarded as the violation of the right to life right guaranted under UDHR. This has been affired in “Judge v. Canada21 , Ng v.Canada22 ,” and “Soering v. United Kingdom” 23. In initiating actions to transfer an individual across borders when there is such a peril , it was found that state had infringed its own postive commitments to safeguard human rights under international law24. HRC Complaint System The Council’s complaint procedure has been framed to tackle regular prototypes of all grave and heinous human rights infringements, and all violations of fundamental rights happening in any part of the globe and under any scenarios. Council’s complaint system is consisting of two divergent working groups, namely the Working Group on Situations and the Working Group on Communications. It is these two Working Groups which bring the attention of the Council reliable patterns of grave and heinous human rights infringements. WGS (the Working Group on Situations) which is a five-State body will study the specific scenario referred to it by the WGC (the Working Group on Communications) and offers its references to the Human Rights Council25. Whether the UN is essential to ensuring accountability by member states for their human rights obligations and commitments? As per the Human Rights Committee, there are many crimes, which need prosecution compulsorily. War crimes and crime against humanity should not be exonerated. HRC compelled erring State parties like Burundi to bring to trial and sentence those accountable for gross infringement of human rights. As per HRC, gross infringement of both political and civil rights should be punishable for as long as needed. As regards to human rights violations in Croatia, HRC vehemently advocated that grave human rights infringement should not be pardonable. For instance, in case of Cambodia, the HRC urged that Cambodia should book the perpetrators of heinous human right infringement and crimes against humanity. In its observations on Senegal, it urged that amnesty should not be extended to those State officials who were accountable for infringement of human rights. In the concluding observation on Chile, the Committee criticised the grant of amnesty to infringers of human rights, which is incompatible with art. 2(1) – (3)26. In Boucherf v Algeria, it was referred by the committee that it has the capability to evaluate despite the fact that they are subject to an amnesty. Thus, the committee was of the view that failure to examine the disappearance was an infringement of the right to an effective remedy. Now, individuals from States which have espoused the First Optional Protocol can make individual complaints with the UNHRC for the violations enshrined in the International Covenant on Civil and Political Rights(ICCPR). Under International investment treaty or under regional investment treaty like NAFTA , the corporations and legal persons can now initiate action against improper appropriation or expropriation by States as held in Metalclad v USA 27. “Criticism against UNHRC” Critics are of the view that HRC body is following a selective approach, more politicised, the procedures followed by the Council to find out the human rights violations are very feeble and practically make an unassertive outcome. According to Heritage Foundation, the review process adopted by HRC is weak or feeble as it takes just three hours in every four years to make a review about a country where contributions from non-governmental organisations are at minimal. Thus, if a massive political crackdown or genocide may happen in Sudan, Myanmar, Venezuela, and China or in some other nation, and it would take nearly four years for the Council to arrive at a conclusion, whether a nation has addressed the human rights apprehensions during such review28. For more than a year, Syrian government is unleashing battle against its own citizens who are protesting the atrocity rule of President Assad. In the current upspring against Assad rule, more than 5000 Syrians are reported to be killed. Yet, the UNHRC has not done anything to put a full stop to this civilian death. The Allies tried to pass a resolution in the UN Security Council to bring peace in Syria, but this vetoed by Russia and China. This can be regarded as UN give top significance to the State sovereignty instead of safeguarding the human rights of Syrians. In 2007, UNHRC again charged as an impotent body as it did not take any action against the genocide in the Darfur region of Sudan, which was carried out by nation’s dictatorial Islamist government, as found out by its own investigators. The UN fact-finding commission had found that the government of Sudan has deliberately fallen short to safeguard the Darfur citizens from wide-range international crimes and alleged that Sudan’s government had itself devised and carried out in these heinous crimes. The real sorrow is that the UNHRC did not have the courage to term the mass killings by Sudan government in Darfur regions as a genocide and had been alleged as a silent spectator over the displacement over two million citizens as refugees and with unruly rapping of young girls and women29. To secure its sovereignty, Russia employed its veto power many times in the past in the UN Security Council. Even for supplying humanitarian aids to Kosovo, Russia once threatened that it will use its veto power to stop that. Russia always opposed military interventions through the backdoor. Russia was of the opinion that it was offering protection to Albanians Kosovars else Serbia would engage in the ethnic cleansing and if UN is allowed to interfere, then it would be tantamount to a precedent to international communities to mediate in human rights abuses by Russia. Hence , the use of veto power by any one of the five-member nations of the UN security council is greatly influenced the national interest of the particular member state instead of offering protection of citizen’s human rights. Hence, Kosovars had to remain patiently calm till the intervention by NATO30. As regards to the human rights issue in Myanmar, China used its veto power many times to stop the humanitarian intervention as China wished to safeguard its economic ties to Myanmar. In the past, China many a times used its veto power from initiating actions on the human right infringement in Myanmar. So, countries personal interest stands first as regards to the protection of human rights and these nations are abusing their UNSC special authority and hence, it is strongly recommended , that in case of gross infringement of human right violations , the five member nations should be deprived off their veto power and this will ensure that UN has adequate authority to stop violations instead of being a silent watcher. Thus, these nations are promoting their economic interest at the cost of the annihilation and woes of humanitarian sufferings31. Earlier, in Nicaragua v. United States of America32, it was held that by training, financing, and supplying arms to Contra forces and thereby assisting and encouraging both military and paramilitary activities in and against Nicaragua, USA has acted against the Republic of Nicaragua, in violation of its commitment under traditional international law not to mediate in the internal affairs of another nation33 According to Hillel Neuer, the UN Watch executive director, the UNHRC is an impotent body as it remained in silence when millions of victims of suffered human right abuses in its 193 member nations. Neurer chided that the rapists and murderers of Darfur women claimed that they concerned for the privileges of Palestian women, unauthorised occupiers of Tibet, namely China, insisted that they cared for those they occupied and the slaughters of Muslim in Chechnya claimed that they cared for the Muslims in Chechnya34. Conclusion Yes. I agree with the statmement of Amnesty International finding that UN is the watchdog on the safeguard of human rights on an international level but it has to be toothed with more authority and should be authorised to intervene and stop the human rights abuses at the initial stages itself . No doubt, safeguarding of human rights is one of the core objectives of global governance and when member states are not able to safeguard the human rights of their own citizens, or they have been indulged in infringing the human rights of their own citizen, then the UNHRC should intervene immediately and instantly instead of a silent spectator so that these rights are safeguarded. UDHR can be said to be legal foundation for modern international human rights law. In the current upspring against Assad rule, more than 5000 Syrians are reported to be killed. Yet, the UNHRC has not done anything to put a full stop to this civilian death. The Allies tried to pass a resolution in the UN Security Council to bring peace in Syria, but this vetoed by Russia and China. This can be regarded as UN give top significance to the State sovereignty instead of safeguarding the human rights of Syrians. The use of veto power by any one of the five member nations of the UN security council is greatly influenced the national interest of the particular member state instead of offering protection of citizen’s human rights. It is strongly recommended, that in case of gross infringement of human right violations, the five-member nations should be deprived off their veto power,and this will ensure that UN has adequate authority to stop violations instead of being a silent watcher. Thus, these nations are promoting their economic interest at the cost of the annihilation and woes of humanitarian sufferings. The quick response by HRC to the crises in Syria and in Libya, where emergency special sessions were organised quickly in the aftermath of massacres by government, should be taken as a model for initiating action for future crises. In order to establish its true reputation as a real watchdog for infringement of human rights infringement around the world, the UNHRC should closely monitor happenings around the globe more cautiously and should intervene swiftly at the beginning of a conflict itself. Both the current Syrian and Libyan disasters exposed poignant operational restrictions in the capability of the OHCHR to arrange and maintain long-run monitoring missions in crisis scenarios , and if any impediments that are witnessed by UNHRC during these contemporary conflicts must be resolved immediately by the UNHRC to accomplish its whole prospective. Bibliography Baderin & Ssenyonjo. (2010). International Human Rights Law: Six Decades After the UDHR and Beyond. 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