Effectiveness of the UN Treaty System - Essay Example

Effectiveness of the UN Treaty System in Developing Human Rights Standards and Ensuring Compliance Introduction The protection and promotion of human right in global context have become one of the prime objectives of the United Nations and its member countries all over the world. Since the establishment of the organization in 1945 its mission to promote peace has received several significant twists. One of these twists was put into action by the establishment of the UN Treaty System to safeguard human right and freedoms in 1948 (Baehr et al, 1999: 23). During the years after its establishment the Organization has had to deal with some serious challenges in both the philosophical and applied contexts. The first and foremost challenge that the United Nation faced in its attempt to promote human right in a global context is the controversy within its approach to the concept of human right and freedom (Wright, 2001: 59). The perpetual debate on the universality of human right apparently overshadowed its achievements to a great extent. The oriental scholars and political authorities often are often found to criticize the provisions of the UN Charter of human rights considering that these provisions are completely “devoid of any legal commitment” (Flinterman and Gutter, n.d: 1). But the view of human right that is conveyed in the UN Declaration of Right has also been defended on the point that the provisions of the UN Charter were not the mere propositions of a European mind, as Hersch Lauterpacht (1950: 147) asserts, "These provisions are no mere embellishment of a historic document….They were adopted, with deliberation and after prolonged discussion before and during the San Francisco Conference, as part of the philosophy of the new international system…”. Origin of the UN’s Approach to Human Rights Indeed the trend for the promotion of human right lies in the founding premises of the organization. It was widely assessed by the scholars that the seed of the Second World War was found to be in the core of the massive violation of human rights by Adolf Hitler in Europe. Also the establishment of this organization was geared up by the realization that the failure of the previous, League of Nation, to prevent human right violation is to be held responsible for the initiation of the destructive war (Baehr et al, 1999: 67-88). Necessarily it does not mean that the League of Nation was totally indifferent to the issues of human right. But a close review of the stance of the League of Nations makes reveals the fact that its dealing with the concept of human rights was not multi-faceted enough to prevent oppressions of the mightier. It rather adopted a narrow and tapered view of human right. The League of Nations was primarily concerned with the protection of the minorities, in the European Continent, under the covenants of "just treatment of the native inhabitants of territories under their control" and "fair and humane conditions of labor for men, women and children" (Weston & Marks, 1999: 34). Flinterman and Gutter (n.d: 1) refer to the deficiency of the stance of the League of Nations regarding the notion of human rights, “In its quest for peace, however, the League of Nations lacked an overall perspective on human rights and an overall philosophy linking respect for human rights and fundamental freedoms - the inherent dignity of every human being – and peace” (Flinterman & Gutter, n.d: 1). Therefore in the foundation of the United Nations the amendments of these ontological flaws of the previous organization received remarkable attentions. The notion of human rights was approached from an anthropological perspective in order to embrace both the context-specific and universal traits of human rights in a global context. As in this regard, Flinterman and Gutter (n.d: 1) say, “At the end of the Second World War, more than ever, it was felt a comprehensive humanitarian dimension should be added to international relations and international law”. Standards of Human Rights Though the Universal Declaration of Human Rights was first accepted in the year 1948, the standards of human right have significantly been adopted newer traits and strategies throughout the passage of time in order to cope with the demands of newer contexts. Behind the formulation of these strategies and standards, the declaration of 1948 played an inspirational role to a great extent (Rayner, n.d). Referring to the inspirational role of the Universal Declaration of Human Rights, Flinterman and Gutter (n.d.) say, “it stands out as a continuous source of inspiration and lays down the foundations for the international promotion and protection of human rights and fundamental freedoms by the United Nations and its Member States” (4). While the composition the provisions of this declaration, a continuous attempt was made to embrace the universality of rights. The universal aspects of human rights were proclaimed in the principles of the UN Charter in order to draw the international respect (Baehr et al, 1999: 49; Gibson, 1991). But this trend to adopt a universal aspect of right was significantly divided into two sections. First it was assumed that the rights of human beings all over the world are essentially same. Hence, equality appears to form the prime tone of the perception of human rights. Secondly, the non-uniformity of the application of human rights was taken for granted under this universal trait considering that “in a world of great variety, a world of different cultures, some human rights may be interpreted and applied differently by different states” (Flinterman & Gutter, 4). Indeed through this bilateral approach to the concept of human right, the Universal Declaration affirms a two-dimensional role for its member states. When the Universal Declaration assumes that the application of human right is context and culture specific, it does not necessarily mean that the states are assigned with the authority to violate the universal aspect of human rights (Baehr et al, 1999: 65). Rather the UN Declaration of Human asserts that the by their commitment to the Organization the states are bound to adhere to the provisions of the declaration by protecting the rights of human beings in a context that goes against the freedom of individuals, as Flinterman and Gutter (n.d: 4) say, “By subscribing to the principles of the Organization as elaborated upon in the Universal Declaration, they committed themselves to observing the universal culture of human rights, and to respecting a core of inalienable human rights and fundamental freedoms”. Here the UN’s approach necessarily puts stress on the indivisible nature of human rights that is perceived more or less in the same way. Effectiveness of the Treaty System in Ensuring the Human Right Standard The UN Treaty System plays significant roles in developing various standards of human rights. A set of standards of human rights such as “right racial discrimination”, “right against gender discrimination”, “right against torture”, “rights of the child” “rights of the migrant workers” by these treaties. It is remarkable that the structure of the Treaty System possesses the treaty bodies to ensure the compliance level. All of the treaties are allocated under a treaty body and the states are obliged to prepare present reports to the UN Treaty Bodies. Referring to the state level reporting process, Niemi and Scheinin (2002: 7) say, “Reporting is an obligation every State automatically accepts upon the ratification of the CCPR, CESCR, CERD, CAT, CEDAW or CRC”. Indeed the ideological conflict in the UN’s approach to human right significantly influenced the formulation and the implementations of the treaties of the UN charter. In the setting of human right standards, the treaties adopted at different times played different roles. In whole Treaty Systems of the UN, the Universal Declaration of Human Rights itself is to be considered as the initiation of the standard setting activities, as Flinterman and Gutter (n.d: 5) say, “The Universal Declaration has served as a starting-point for further standard-setting activities initiated within the framework of the United Nations”. In the adoptions of all the treaties of the UN, the interrelated nature of all human rights can be found to determinate the sole traits of the adoption process (Bayefsky, 2000). Consequently the treaties can be considered as the reaffirmation and reinforcement of the principles of the Universal Declaration. The initial covenant of the Universal Declaration was proposed to encompass all of the universal and indivisible traits of human rights. But the ideological conflict with the universality of human forced the commission of human right to adopt two different covenants: “International Covenant on Civil and Political Rights 1966” and “International Covenant on Economic, Social and Cultural Rights 1966”. The Ideological Conflicts in Setting the Standards of Human Right The concept of universality of human rights in the Universal Declaration confronts with the dilemma whether universal human right is applicable to a context while no universal culture exists on this globe (Birinci, n.d). The approach to human right in the UN Declaration is argued from both for both relativistic and universalistic views. The conflicts between these two opposing approaches emerge from the epistemological context-specific differences between the norms and cultures of the worlds (Cohen, 1989: 1015). So norms and values that serves the purposes of guidance for the members of a society or culture cannot be universal. This socio-cultural diversity evolves from the concepts of rights are extensively prejudiced by the socio-cultural views of individuals. There is also another controversy on the point whether human rights can be assumed as both universal and political. Here the concept of universal right is also the found to be in conflict of the democratic political system. As a democratic political system ensures that the role of an elected government is that of a representative of the majority (Galston, 1999). Hence the Political system of a country is expected by the majority to apply human rights in harmony with their norms, values, culture and religion. So the question whether human rights can be both political and universal is in other words whether human rights can be both social and universal. So far as the established norms, values, culture and religion of a society are concerned with the rights of individuals in a society, the definition of human rights may vary from culture to culture, religion to religion, etc. Often in a society violation of human rights are cloaked in the apparels institutional culture, practice, customs. Even these violations may take place in the established apparatus of the judiciary systems of societies of the world. It seems to be difficult to compose an all embracing definition for rights of human being: what rights are and what are not. Simply this difficulty emerges from the concerns of views of individuals on deciding upon what rights are. What is considered to be right in a society is considered to be the violation of right. In some cases its definition appears to be self-contradictory and self-destroying. Role of Treaties in Creating Standards of Human Rights and Ensuring Compliance After the Universal Declaration of Human Right in 1948, the UN Treaty System has played an essential role to create standards of human rights and to ensure the compliance of its member states. Indeed all of the later treaties and the standards that they develop are based on the Universal Declaration of Human Rights. First of all, the premise of human rights lies in two assertions: “a common standard of achievement for all peoples and all nations” and “All human beings are born free and equal in dignity and rights” (United Nation Fact Sheet, n.d: 9). Henceforth the treaties were implemented at various times in order to develop various standards of human rights and enforce them in a global context. Indeed these treaties emphasize specific aspects of human rights and their enforcement. While implementing these treaties, there was a continuous effort to achieve the high possible compliance the levels of the states. International Convention on the Elimination of All Forms of Racial Discrimination 1965 The Universal Declaration of 1948 was intended to eliminate all types of discriminations such “Racial, sexual, language, Religion, political, National or social origin, Property, birth or other status” (The United Nations Fact Sheet). But in the year 1965 concerns grew over the racial discrimination in the African region and specifically this treaty was implemented to address the racial discrimination in South Africa, it is said in the United Nations’ Fact Sheet No. 30: “Given the political imperatives of the day arising from the apartheid regime of South Africa, the first treaty to be agreed dealt with the specific phenomenon of racial discrimination: adopted by the General Assembly in December 1965” (The United Nations’ Fact Sheet No. 30). In article 1 of this convention, the definition of “Racial Discrimination” was indented to embrace the issue of racial discrimination in a global context. The Convention also emphasizes on the compliance on both on the state level and social level. It requires that states should take proper steps to eliminate racial discriminations. Indeed “The Convention, in Part II, requires all States parties to report regularly to the Committee on the Elimination of Racial Discrimination which is establishes to monitor implementation of the treaty’s provisions” (The United Nations Fact Sheets No. 30, n.d: 12). Treaties: ICCPR 1966 and ICESCR 1966 Indeed the covenant, “International Covenant on Civil and Political Rights 1966” was intended to conjure the standards of human beings’ civil and political rights that were first set out in the Universal Declaration of Human Rights. Meanwhile, the covenant, “International Covenant on Economic, Social and Cultural Rights 1966” (the United Nations’ Fact Sheet No. 30) deals with human beings’ social and cultural rights. Though these two covenants, the following standards of human rights are set out: Right to nondiscrimination Right to work Just & favorable conditions of work Trade union rights Right to social security Protection of the family Right to adequate standard of living Right to health Right to education Right to participate in cultural life (The United Nations Fact Sheet, n.d: 14) In order to ensure the compliance with these standards the “Covenant, in Part IV, requires all States to report regularly to the Human Rights Committee which is established to monitor implementation of the Covenant’s’ provisions” (The United Nations Fact Sheet). Indeed another two protocols were added to ensure the compliance. The first protocol allows an individual to have the right to put a petition to the Human right committee and the other protocol emphasizes the abolition of death penalty in the legal system of the state. But the approaches in these covenants both to universality and culture often create some ideological problems. Convention on the Elimination of All Forms of Discrimination against Women 1979 Basically the convention against the discrimination originates from the Universal Declaration of Human Rights. Primarily the Universal Declaration proclaims equality against all sorts of discrimination. But the implementation of this treaty establishes the right of Women against all sorts of discrimination as one of the standards of human rights. Under two covenants of this treaty the standard of Women Right and the compliance of the member states were established and ensured. Though the format of this treaty was modeled on the prior treaty on racial discrimination, it adopted some innovations in order to treat the sex based discrimination. After the adoption of the treaty in 1979 the treaty ensured the compliance level step by step. The beginning articles of this treaty emphasize that a member state should refrain from any discriminatory dealings regarding the issues of women. According to these articles the state should not only refrain from sex-base discriminations but should take proper steps to eliminate them. After all the treaties not only ensure an all-out effort to establish women rights and to eliminate discriminations from all spheres of life but also require the compliance of the state, as it is reported in the United Nations’ Fact Sheet No. 30: “The Convention, in Part V, requires all States parties to report regularly to the Committee on the Elimination of Discrimination against Women which it established to monitor implementation of the treaty’s provisions” (Fact Sheet No.30, p. 16). Treaties: CAT 1984 and Convention on the Rights of the Child 1989 In order to deal with the specific phenomenon of the torture, other inhuman activities and violence of the rights of the child, the international community adopted new treaties, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” and “Convention on the Rights of the Child” in 1984 and in 1989. But to a great extent the CAT is to be considered as a complementary effort to the previous treaties. The most remarkable aspect of this treaty is that it emphasizes on punishment of the inhuman activities and torture and ensures that the states should take appropriate measures to punish the criminals and torturers. The definition of the torture and other inhuman activities includes directly the role of a state to stop and punish torturer. It stresses that in no circumstance torture can be accepted. Therefore the law enforcement system of a country undergoes this convention. The convention in part II of this treaty “requires each State party to report regularly to the Committee against Torture established to monitor implementation of the treaty’s provisions. Under articles 21 and 22, States may also choose to accept the Committee’s competence to consider complaints from other States parties or individuals” (the United Nation Fact Sheet No.30, n.d: 17). Country Level Compliance Country level compliance is an important factor in the ensuring compliance with the standards of human. Though the timely submission is often ensured by the developed countries, it is often violated in the developing and under developed countries and under developed countries. By it does not necessarily mean that all of the developed countries adhere to the timely submission. In this regard Niemi and Scheinin (2002: 8) note, “It should be noted at the outset that although developing countries top the list of States with the largest number of overdue reports, late reporting is not a problem for developing countries only”. About 70% of the member States are late in their submission of reports to the treaty bodies of the UN. But due to various socio-economic and political barriers in the third world countries, the compliance levels of these countries often differ from each. For example Columbia, Senegal, Zambia, South Africa, Egypt and some of the Middle Eastern countries like Iran and Iraq have shown different compliance levels (Bayefsky, 2000: 24). Conclusion The fact whether the UN Treaty System for human right is successful enough to develop human right standards and to implement these standards internationally may engender a set of controversies on the point that the UN approach itself to the concept of human right is a subject of fierce debate among the scholars (Baehr et al, 1999: 49; Gibson, 1991). On the philosophical level the UN attempt to develop human right standard has to deal with the question of universality of human. After all, the contribution of the UN Treaty System in developing the Standards of human rights and ensuring the compliance with these standards is noteworthy, though often the advancement of the organization in developing and implementing the standards are grossly hampered by the philosophical controversies regarding the cultural and universal perspective of human rights (Gibson, 1991). References Baehr, P., Flinterman, C. and Senders, M. (1999) Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights, Amsterdam: Royal Netherlands Academy of Arts and Sciences Bayefsky, A. F. (2000) The UN Human Rights Treaty System in the 21st Century. Hague: Kluwer. Birinci, G. (n.d.) Global Pluralism versus Universal Human Rights. Available at: www.wiscnetwork.org/getpaper.php?id=128 - Cohen, R., 1989, “Human Rights and Cultural Relativism: The Need for a New Approach”, American Anthropologist, New Series, Vol. 91, No. 4, pp. 1014-1017. Galston, A. W. 1999, ‘Value Pluralism and Liberal Political Theory’, The American Political Science Review, Vol.93, No. 4, pp. 769-778. Gibson, J S. 1991, ‘International Organizations, Constitution Law and Human Rights”. Praeger Publishers. Flinterman, C. and Gutter, J. (n.d.) “The United Nations and Human Rights: Achievements and Challenges” [Online] available at http://hdr.undp.org/en/reports/global/hdr2000/papers/flinterman2000.pdf (accessed 03/11/2009) Lauterpacht, H. (`1950) International Law and Human Rights, London: Stevens and Sons Limited p. 147. Niemi, H. and Scheinin, M. (2002) “Reform of the United Nations Human Rights Treaty Body System Seen from the Developing Country Perspective” Institute for Human Rights. Åbo Akademi University Rayner, M. (n.d) History Of Universal Human Rights - UP TO WW2, Available at: http://www.universalrights.net/main/histof.htm The United Nations, “An introduction to the core human rights treaties and the treaty bodies” Fact Sheet No. 30, [online] available at http://www2.ohchr.org/english/bodies/docs/OHCHR-FactSheet30.pdf (accessed 03/11/2009) "Universal Declaration of Human Rights adopted by General Assembly resolution 217 A (III) of 10 December 1948". Weston, H. B. and Marks, S. P. (1999) The Future of International Human Rights, New York: Transnational Publishers Inc. Wright, S. 2001. International Human Rights, Decolonization and Globalization: Becoming Human. Routledge Read More