Law of international organisations - Essay Example

?Introduction The idea of human rights receives formal universal recognition that the international community strives to maintain and enforce en dthrough the United Nations Charter signed on June 26, 1945 with the main objective of saving generations of humans from war and reaffirms the faith in fundamental rights and freedoms. The main objective of the United Nations is to achieve international cooperation, through promoting and encouraging respect for human rights and the fundamental freedoms that accrue to them without the discrimination in terms of aspects such as sex, race, language or religion.1 It is important to note that the enforcement of these rights and freedoms can be undertaken through joint or separate actions by the member states.2 The provisions of the Articles of the United Nations Charter have the force of prudent international law as the charter is a treaty and binds to those nations that have ratified it. Therefore, state parties are required to fulfil the obligations and the responsibilities enshrined in the Charter including the obligations to defend human privileges and the major liberties, the promotion of the observance of the civil liberties and the cooperation with the United Nations in attaining these inherent obligations. The UDHR3 establishes the principles of universality and indivisibility of the rights to humans such as the rights to life and liberty, right to education, decent work and adequate standard of living that have been coded in the International Covenant on Civil and Political Rights (ICCPR)4 and the International Covenant on Economic Social and Cultural Rights (ICESCR).5 Through the UN Commission on Human Rights established in 1946, the United Nations makes policies for human rights including the definition of the basic rights and freedoms, reviewing of the human rights issues, developing and codifying new international norms as well as make recommendations to governments. The universal Declaration on Human Rights spells out the rights and freedoms that accrue to any person by virtue of being human and is built on the fundamental principle that human rights are based on the inherent dignity of every person. The United Nations creates a culture of human rights through a broad and lawfully obligatory civil rights agreement established upon and coded in the International Covenant on Civil and Political Rights and the ICESCR. Since the Universal Declaration became international law there have been other conventions and treaties that create regional courts that also help in the enforcement of fundamental rights and freedoms. Due to the dramatic increase of human rights activities in the twentieth and twenty first century, there has been need to combine the monitoring of the human rights violations and matters concerning their enforcement. The establishment of the International Criminal Court formed a vital part of an emerging system of international human rights protection in that it is empowered to take legal action and castigate individuals liable for offenses against humankind. The growing international awareness of the need to protect human rights and guarantee freedoms has rejuvenated the need for upholding them. Yet, serious violation and deprivation of human rights and fundamental freedoms still exist that require a remedy in the shortest time possible. To remedy this situation, there have been regional courts with the jurisdiction to protect human rights and fundamental freedoms. However, these courts must strive and adhere to the already established norm that the supremacy of the United Nations Charter. In Britain, for example, the Human Rights Act of 1998 is an act of Parliament, whose main aim is to ensure that it gives further force the laws concerning human rights, contained in the European Convention and the United Nations Charter. It gives the courts in the United Kingdom the power to deal with those issues, which might cause the citizens of this country to go to the European Court of Human Rights. The act makes it illegal for all public bodies to take any actions or decisions, which are in contravention to the European Convention on Human Rights. The only exception to this is Parliament, because it has the legislative capacity in the United Kingdom, and should remain sovereign. This Act requires all the courts in the United Kingdom to take into account the decisions, which have been made by the court at Strasbourg, as well as to interpret the legislation of Parliament, so that their decisions can be as far as possible in compatibility with the Convention on Human Rights. It is, however, impossible to interpret an Act of Parliament to ensure that it is harmonious with the provisions of the Convention, because courts are not permitted to override such acts. Instead, all these courts are allowed to do is to issue a declaration of incompatibility so that the validity of a Parliamentary Act is not affected. One of the reasons why this Act does not affect Parliamentary Acts is because one of its aims is to ensure that the sovereignty of Parliament is maintained in the United Kingdom, because it is the supreme legislative body. However, the Act still gives individuals the option of taking their cases to the court of Strasbourg if they feel that they are not satisfied by the decisions of the local courts. This paper seeks to establish the efficacy of the regional courts and questions as well as evaluates their ability to uphold the supremacy of the United Nations Charter. Overview of Regional Human Rights Mechanisms in Comparison with the United Nations Charter The Universal Declaration of Human Rights (UDHR) is the foundation of recognizable international human rights and freedoms and is fully committed to its implementation by all state parties to the UN Charter. It declares and warrants that every person is entitled to a societal and universal mandate that guarantees the civil liberties and privileges established in the Declaration and those that can be realized by the state parties to the UN Treaty.6 This is premised on the fact that human rights cannot be enforced exclusively through the judicial processes initiated by sovereign states, but through several frameworks such as international tribunals and regional courts amongst other mechanisms. There is currently no international court tasked with the administration of international human rights law, although there are quasi-judicial bodies that exist under some UN treaties. The International Criminal Court (ICC) has got jurisdictions over crimes such as genocide, war crimes and crimes against humanity but must be by a state accepting its jurisdiction, while regional courts such as The European Court of Human Rights and the Inter-American Court of Human Rights enforce regional human rights. Despite the fact that these regional courts are created to monitor and promote human rights, they still have problems in enforcing them and ensuring that they abide by the supremacy of the UN Charter. The regional courts that help in the enforcement of human rights and freedoms offer many advantages as governments have a stronger incentive to promote and protect the human rights within their regions and the fact that countries falling within a region often share similar cultural and political histories. The implication of this is that countries can easily find a consensus on the content of the rights and how they were to be enforced. The United Nations therefore encourages the development of regional human treaties and conventions as well as courts to complement the work of the United Nations in the implementation and enforcement of human rights legal regime. The European Human Rights System The European Human Rights system is one of the most effective regional human rights systems with strong enforcement mechanisms that are developed along the lines of those of the UN Charter. It promotes the rule of law and human rights in Europe and although the member states retain separate political systems, they commit to the agreed standards of enforcement of human rights and fundamental freedoms ratified in their convention. Through the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), there is an effective regional system for the promotion and fortification of civil liberties within the European Union as a whole.7 This means that if the domestic remedies have been exhausted, a person who feels that his rights and fundamental freedoms have been violated may file a case at the ECHR. In the Kadi Case8 the European Court of Justice (ECJ) was faced with the question as to the relationship between the laws of the European Union as compared to that of international law as enshrined in the United Nations Charter with respect to enforcement of human rights and the guarantee to freedom. In this case, the ECJ held and confirmed that the fundamental rights that include the rights of defence and judicial review were deprived on the appellants, as the EU Council did not communicate to the petitioners the proof used against them to explain the restraining actions enforced on them. Further, the court held that the imposition of restrictive measures on the appellant constituted a restriction of his right to property, and therefore the ECJ emphasized the primacy of the obligations under the UN Charter in the enforcement of human rights and fundamental freedoms.9 The Inter-American Human Rights System The Inter-American system is a successor to the American Declaration of the Rights and Duties of Man which created the Inter-American Commission on Human Rights which has the authority to examine instances or occurrences that may allege violations of human rights in member states to the treaty. Further, it has developed the American Convention on Human Rights (ACHR), which is binding to state parties and has the capability of enforcing the protection and promotion of human rights. The Inter-American Court has the powers to review other members of the Organization of American States (OAS) but faces challenges in terms of compliance with its provisions.10 This was evident in the case of Awas Tingni v. Nicaragua, whereby the court found that the state of Nicaragua dishonoured the civil rights of the Awas Tingni community through a denial of the right to property. The government had therefore violated their rights especially collective land rights that are also expressly protected under the United Nations Charter.11 The African Human Rights System The Organization of African Union (OAU) created the African Charter on Human and Peoples‘ Rights (also known as the Banjul Charter) that incorporates regional views on the content of civil liberties and the relationship between privileges and duties as well as recognizing safety of family and folks’ rights. These rights balances the individual rights as weighed against collective rights stressing that the freedoms and rights of each individual can only be exercised with due regard to the rights and freedoms of others as contained in the Article 27 of the Banjul Charter.12 This African Charter also establishes the African Commission on Human and Peoples ‘Rights that interprets its provisions as well as reviews the compliance in terms of safeguarding the human rights of citizens in the African states. Later in 1998, the Protocol to the Charter establishing an African Court on Human and People‘s Rights was adopted later culminating to be the African Court of Human Rights and Justice. This Court had the power to issue binding decisions that address violations to the Charter by those state parties that have ratified it and acknowledge its inherent jurisdiction.13 The major premise for the creation of this court was therefore the enforcement of the human rights and fundamental freedoms to the African populace in line with the provisions of the UN Charter. Despite encouragements from the United Nations for all regions to establish regional courts14, there is still no human rights mechanisms in the Asia-Pacific region due to a number of factors amongst them the vast area covered by Asia and the diversity of the region in terms of the economic, political and social traditions.15 However, there are now efforts to create a regional court for the enforcement of human rights and fundamental freedoms in the Asia Pacific region in line with the requirements of the United Nations Charter. The choice that regional courts with jurisdiction over the protection of human rights and fundamental freedoms and the Member States of the United Nations are facing is to respect the supremacy of the United Nations Charter and the international legal order or to uphold the fundamental freedoms of individuals. This means that all the regional courts established in order to protect and promote human rights and freedoms must endeavour to always uphold and enforce human rights. Through the strict adherence to the aforementioned mantra, these regional courts have the potential of bestowing authenticity as to their existence and importance. This has the ability of offering concrete solution to the problems of violations of human rights or deprivations often experienced in most parts of the world. These human rights courts and quasi-judicial bodies continue to play an integral role in the provision of individual and structural remedies whenever there is any form of human rights violations and the development of jurisprudence on human rights.16 Conclusion The role of regional courts in the protection, promotion and enforcement of human rights and the fundamental freedoms cannot be gainsaid as they supplement the mechanisms put in place by the United Nations Charter. However, it must be stressed that for these courts to undertake the roles that they have been established to do, they must adhere to the supremacy of the universal rights and freedoms enshrined in the United Nations Charter. It is contemplated that the United Nations Charter utilizes the regional judicial systems in the enforcement of human rights and freedoms that inherently accrue to all human beings. To achieve this, the United Nations encourages state parties to resort to regional courts to achieve and enforce the settlement of human rights and freedoms disputes in line with the UN Charter. This means that regions or continents must establish viable, functional and working continental courts for the enforcement of the rights and freedoms of humans. The human rights court in different regions of the world have a greater role to play and must be made to function soundly in a manner that serves the best interests f the individuals concerned. This can be seen through the fact that regional courts have actively pursued an agenda that protects and promotes the human rights and the fundamental freedoms of persons. The power of these regional courts in enforcing the human rights if channeled correctly have the capacity to serve the best interests and rights of humans generally. However, there is a contrasting argument that the proliferation of regional courts may not aid in the protection and the promotion of the provisions of the United Nations Charter. The basis of such argument is that these regional courts have overlapping mandates and therefore have the risk of conflicting jurisprudence in terms of the interpretation of the rules and regulations concerning human rights. This can be overcome by ensuring that there are no overlapping mandates of the regional courts for human rights administration through constant consultation and cooperation between the states concerned in order that there is a uniform system and judicial procedure in the enforcement of human rights and freedom. This can be achieved by aligning the conventions and treaties establishing these regional courts to the provisions of the United Nations Charter. Bibliography Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, entered into force, Sept. 3, 1953, 213 UNTS 221.55 United Nations Charter Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948). International Covenant on Civil and Political Rights, S. Treaty Doc. No. 95 -20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 (Dec. 16, 1966) International Covenant on Economic, Social and Cultural Rights, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3 (Dec. 16, 1966) Maeijer, Vicky. The Kadi Case: The European Court of Justice and Its Duty to Preserve the Law: Analysing the Balance between the Fight against Terrorism and Protecting Fundamental Rights in the European Legal Order by the Community Courts. Rotterdam: Erasmus Universiteit, 2009. Print. James L. Cavallaro and Stephanie Erin Brewer, Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court, 102 AM. J. INT‘L L. 791 (2008). James Anaya and Claudio Grossman, The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples, 19 ARIZ. J. INT‘L & COMP . L. 3 (2002). Christof Heyns, The African Regional Human Rights System: The African Charter, 108 PENN ST . L. REV . 679 (2004). Dinah Shelton, Regional Protection of Human Rights (2008). Sou Chiam, Reports From Regional Human Rights Mechanisms: Asia’s Experience in the Quest for a Regional Human Rights Mechanism, 40 Victoria U Wellington L. Rev. 127 (2009); Hidetoshi Hashimoto, Prospects For A Regional Human Rights Mechanism In East Asia, 139-43 (2004). Heynes, C.; Killander, M. 2010. Towards minimum standards for regional human rights systems. In: ARSANJANI, M.H. et al. Looking to the future: Essays on international law in honor of W. Michael Reisman. 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