United Nations System for the Protection of Human Rights - Research Paper Example

United Nations System for the Protection of Human Rights The Charter of the United Nations (1945) states that one of the major objectives of the United Nations is to support and advocate respect for human rights and basic freedoms for all. This term was first given a tangible expression in 1948 with the broadcast of the Universal Declaration of Human Rights by the United Nations General Assembly.1 The foundation laying such objectives can be traced back to the philosophies of Locke and Montesquieu. All these philosophies had common building blocks like negation of social and religious rigidity, intolerance, discrimination, violence and socio-economic restraints. Their aim was to set up a society based on harmony, humanity and ethics. The notion of Human Rights came into existence back in the 18th century where President Thomas Jefferson declared that everyone is born equal and has access to certain undeniable rights of humanity such as “Life, Liberty and Pursuit of Happiness”.2 The United Nations system for the protection of human rights has undergone major changes in both the Charter-based management body and the treaty-based body. The reorganization of the Charter-based body has led pretty quickly to concrete outcomes. The deeply criticized Commission on Human Rights has been substituted by a new Human Rights Council that is meant to be more efficient and well-organized than the previous one. Also, the Treaty-based system, which had been receiving quite less attention from the media, has now been focused to make important reform since the 1980s, showing the way to a number of ad hoc developments in the operation of its several committees. 3 On 15th March 2006, the United Nations General Assembly formed the Human Rights Council (HRC) to protect and promote the human rights across the world. The key objective of forming the council was to attend to the problems arising from the violation of Human Rights and offer solutions to the issues. The council is an inter-governmental organization made up of forty seven countries.4 In 2007, HRC formed its Institution Building Package to carry out its functions more concretely. The package consisted of the Advisory Committee (acting as the working head of the Council) to advise the Council and offer expertise on human rights issues, a new Universal Periodic Review machine that evaluates the Human Rights conditions in its 192 member countries and also a new and updated Complaints Procedure that facilitates the people and organizations to lodge complaints against the infringement of human rights and draw the attention of the Council.5 The system which is followed in the European Convention of Human Rights (ECHR) and The Council of Europe is that the evaluation and judgment of the existing human rights position is assigned to the permanent and autonomous body of the European Court of Human Rights which gives binding verdicts on persons and inter-State complaints. The job of the Committee of Ministers of the Council of Europe (its peak political body), is to regulate the implementation of the Court's judgments. The Organization of American states also have an autonomous and completely independent Human Rights Court (since the period of cold war) that has the authority to give final and obligatory verdicts on the individual as well as inter-state complaints. The African Union (previously known as the Organization of the African Unity) formed an African Court in 1998 to safeguard the Human and People’s Rights in Africa. These regions had their regional courts to take up their grievances and complaints regarding the violation of human rights.6 On the other hand, the United Nations is deficient of such collaboration between the authorities and political bodies which reduces its efficiency level and induces a great extent of politicization of the UN Human Rights organization. Although the Commission on Human Rights made its judgment about a nation’s condition somewhat on the basis of reports and suggestions of special members and other specialists of the Commission, the treaty supervising bodies were left by themselves to monitor the execution of their non-binding verdicts on personal complaints and also their closing notes and recommendations concerning the State reporting and investigation procedures. The formation of the Human Rights Council as the chief political human rights organization of the United Nations with a sturdier directive demands a stronger corresponding part among the self-regulating expert bodies so as to develop an efficient and operating division of labor between political and proficient agencies.7 The function of the Office of the High Commissioner for Human Rights (OHCHR) is to provide expertise and assistance to the different human rights supervising bodies in the United Nations system like the UN Charter-based bodies, together with the Human Rights Council, and organizations formed under the international human rights treaties and is constituted of autonomous experts authorized to manage and control State parties' agreements with their treaty obligations. The majority of these bodies get secretariat backing from the Human Rights Council and Treaties Division of the Office of the High Commissioner for Human Rights.8 The Human Right Treaty- based bodies supervise and control the execution of the Core International Human Rights Treaties. These include 8 bodies namely, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), United Nations Economic and Social Council (ECOSOC), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination Against Women (CEDAW), Committee Against Torture (CAT) & Optional Protocol to the Convention against Torture (OPCAT) - Subcommittee on Prevention of Torture, Committee on the Rights of the Child (CRC), Committee on Migrant Workers (CMW), Committee on the Rights of Persons with Disabilities (CRPD).9 It also includes the Declaration on the safeguard of Women and Children in Emergency and Armed Conflict, the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, the Convention for the Rights of Persons with Disabilities and the Convention for the Protection of All Persons from Enforced Disappearances.10 The notion that the protection of human rights has no global boundaries and that the international organization has the responsibility to make sure that governments pledge and protect human rights has increasingly captured the thoughts of people. The view that the authority to protect the individual’s rights should go to the United Nations Organization strengthened after the catastrophic events of the Second World War and the atrocious violations of human rights during that time. With the end of the cold war, the struggles for the ideals of Human Rights declined which led to the fortification of the International Human Rights Movement. These days those who defies the human rights can no more bank upon either of the power blocs to safeguard them against international conviction, a custom that was prevalent in the past which had a very injurious effect on the progress and function of the human rights laws. This is no way means that a great number of infringements of human rights are no longer taking place, or that the international bodies created to check such violations are all in position and running effectively. Many governments still breach human rights on a huge level and given the opportunity others would also choose to tread on the same steps. Nevertheless the reality is that these rights are being enforced all the time more by a number of external and internal bodies to take action for their conduct. This fact restricts their freedom of action and in several, although not all, cases adds to an enhanced human rights condition.11 There is also a persistent problem of inefficiencies of the mechanisms imposed by the Human Rights Commission. The Universal Periodic Review was formed under the resolution 60/125 of the UN General assembly to appraise the process of the Human Rights record in its 192 member nations every 4 years. The UPR reviews papers of any nation and present a very useful and concise outline of the human rights problems of that nation and thus is instrumental to structure any individual case. Nevertheless the system is politicized and brings in inefficiency. The main reason behind this is the fact that there are a huge number of states to be reviewed in a very short span of time without many resources to back such a complicated task. Again there is a dearth of expertise in the process and there are no incentives for governments to monitor themselves in some way that is different from their usual superficial manner. 12 The developing and underdeveloped countries backed by the East European Countries started demanding for a further general, non-treaty type complaint procedure that would pursue the effort against apartheid and imperialist policies in the colonial countries particularly southern Africa. This resulted in two distinct procedures- one formed under ECOSOC Resolution 1235 which authorized the Commission to deal with human rights infringement mainly apartheid and other racial discrimination and, the other was 1503 procedure built upon the 1235 resolution which became more popular than the former. The 1503 mechanism that came in place of the Economic and social resolution Council Resolution 1503 in 1970 empowers the Commission to deal with complaints related to gross and extreme abuse of human rights. The 1503 procedure, although improved is still subject to criticism because of its sluggishness, complication and vulnerability to political influence. Further, the mechanism can handle a very limited number of complaints.13 The limitation of procedure 1253c can be seen in the case of Afghanistan. The 1235 public procedure has been exercised in case of Afghanistan. On the other hand, owing to the bureaucratic limitations of the United Nations, there is hardly any hope that the United Nations could hold Afghanistan responsible for its gross infringements of women’s human rights.14 There exists a clear interdependence between the violation of human rights and intractable struggle. Violation of human rights frequently gives rise to conflict, and these in turn results in human rights violations leading to a vicious circle of conflicts and violation of these rights. Therefore, it is evident that the infringements of human rights are at the root causes of conflicts and protection of the human rights is vital to resolve these conflicts.15 When a country ratifies a treaty it agrees to abide by both the negative obligations which means to abstain from actions that go against human rights and; the positive obligations, that is, to take positive measures to ensure that human rights are guarded.  In order to make sure that governments are accomplishing both negative and positive commitments, the United Nations organization includes a number of enforcement mechanisms.  Enforcement mechanisms are generally categorized by the sort of UN machine that receives communications (or, complaints) or conducts the monitoring practices.  There are 3 broad classes of enforcement mechanisms namely, Charter-based Mechanisms (the UN Commission on the Status of Women, for instance), Convention or Treaty-based mechanisms (the Committee on the Elimination of Discrimination Against Women, for instance) and Mechanisms enclosed in UN specialized bodies, like the World Health Organization or the International Labor Organization.  Each of these agencies supervises either a definite human rights problem or particular treaties. The categorization of enforcement mechanisms into these classes elucidates the functioning of the UN body.  The general public or non-governmental organizations (NGOs) can report against the violation of human rights, or disobedience of human rights obligations to the UN systems referred above by means of two mechanisms- complaint mechanisms and reporting or monitoring mechanisms.16  Each course of action has its own necessities, limitations and results.  In choosing to look for enforcement of human rights commitments, campaigners should carefully assess at first the existing mechanisms that are available to them with respect to the treaty endorsement of their country’s government, and, second, the preferred remedy or result for the victims of human rights violations.  There are also explicit differences between the practices and methods. Advocates should take into account the remedies accessible at the international level under the United Nations, as a part of a bigger strategy to fight violence against women.  There are a number of reasons for which the international enforcement mechanisms are to be addressed only after trying to achieve the desired outcome by means of the national legal system.  The UN enforcement agencies that allow direct complaints firstly need a complete exhaustion of domestic solutions before accepting a complaint.  Again, the more important thing is that the solutions offered under international law may not always be beneficial for the individual victim.  The UN mechanisms are generally very lengthy and time-consuming and privacy of the appellant cannot always be guaranteed.  Victims of aggression may have inadequate resources to invest in a prolonged procedure. In addition, protection for the victim should be a supreme concern, and the UN is inadequate in its ability to arbitrate and shield individual victims of human rights infringements.17 Many of the Human Rights systems that establish the monitoring mechanisms and the setting up of treaty bodies have also been put into use at the international level. Hence, there exists an overlap amongst the different treaty bodies.18 Nowak has focused entirely on the Human Rights Committee and the Covenant on Civil and Political Rights. The frequent notes in Nowak's work to different human rights instruments is useful, mainly because there exists overlapping between the rights secured in the Covenant on Civil and Political Rights (CCPR) and rights guaranteed in other human rights pacts. He has explicated the Committee's position, and demonstrated the places where the explanation of associated treaty provisions coincided or differed. For instance, the section on Article 7, which includes the prevention of torture and other types of brutal, cruel, inhuman or mortifying treatment19, includes an explanation of the development of the Committee's take on corporal punishment. The Covenant does not address clearly to this kind of punishment, and the issue that arises from it is whether it is covered by ‘cruel, inhuman or degrading treatment’.20 Torture is a severe violation of human rights and is rigorously forbidden by international law. Since the use of torture attacks at the very core of civil and political liberties, it came as one of the first subjects discussed and dealt by the United Nations (UN) in its program of developing the human rights principles. One of its initial measures was to put an end to corporal sentence in colonial countries in 1949. International law forbids torture and other sorts of inhuman and mortifying treatment, which cannot be permitted under any circumstances. Despite being strictly forbidden, torture continues to be used in a number of countries round the globe.21 A 2001 report by Amnesty International showed that torture was practices by about a hundred and forty states between the year 1997 and 2001, and discovered that in every year thousands of people practicing torture hit, rape and electrocute other people.22 Nowak's justification has a brief excursus to the Convention Against Torture, where he explained how, at the instigation of Islamic nations, the Convention Against Torture (which was afterward adopted by the CCPR) ruled out ‘lawful sanctions’ from the meaning of torture23. In the context of corporal punishment, Human Rights Committee has adopted a clear decision and declared that corporal punishment leads to the violation of Article 7. The Committee Against Torture has not come across the case of corporal punishment while conducting the individual complaints procedure whereas, in the reporting procedure only a few incidents have occurred addressing this issue, and declared that it represents a violation of the Convention, with however, no explanation as to how this connects to the ‘lawful sanctions’ section in Article 1 of the Convention24. Study of such transversal issues are indispensable in evaluating the implications of setting up of an integrated treaty body, even though it was not Nowak's plan to conduct a systematic study of all the interrelated and overlapping provisions.25 To shield human rights is to make sure that individuals receive some level of civilized, humane and decent treatment. To breach the most fundamental human rights is to refuse individuals their basic moral rights. Violation of rights means to treat individuals as if they are not human and are not up to the level of receiving respect and nobility. These kinds of behaviors are more formally termed as crime against humanity. These acts mainly include, torture, slavery, genocide, rape, forceful sterilization or medical trialing, and intentional starvation. Since these strategies are occasionally put into practice by governments, restraining the uninhibited command of the state is an essential element of international law. The fundamental laws that forbid the different types of crimes against humanity are the concepts of nondiscrimination and the perception that some specific rights are fundamental for all and need to be applied universally.26 Abuses of political and economic privileges are the basic causes of a number of crises. When entitlements to sufficient food, shelter, employment, and social life are deprived and a huge number of people are barred from taking part in the society's decision-making practices, it is expected to provoke social turbulence. Such situations often lead to conflicts related to justice where people demand that their fundamental requirements be met. It is a fact that most of the conflicts are caused or spread by the abuses of human rights. It might be for instance, that genocide or torture arouses hatred and animosity of a certain section of people suffering from it and makes their decision to create even more aggression, thus leading to further violence. This might eventually give rise to a spiraling of conflicts and take thing out of control. The use and extent of military force in shielding the human rights plays an important role in the protection of human rights. This type of dispute shoots mainly from a conflict between state sovereignty and rights of the people. Military aggression often leads to disruption in the social, political and economic stability of a nation which in turn violates the human rights of the citizens. This is because the government bodies that give justice to people collapse during internal aggression and social unrest.27 Nevertheless there are certain actions committed by the law enforcing bodies in a nation that go against the human rights memorandum and highlights the failure of the enforcement mechanisms of the United Nations Human Rights Council. Different countries have different outlook toward justice and methods of executing their decisions. The governments are most of the time disinclined to entrust armed forces and resources to protect human rights. Moreover, the use of aggression to stop human rights violations causes a moral dilemma because such interferences may lead to additional loss of innocent lives. It is very important to employ the minimum amount of force that is indispensable to attain humanitarian objectives such that the intervention leads to a more positive outcome than a negative one. A recent violation highlighted by the Amnesty International showed how Turkey is not curbing the rights of its military force in fighting against terrorism. There are number of articles under the Penal Code and various other laws that restrict the right to freedom of speech and expression both directly and indirectly, because of their unclear wording and random application. The persons or groups normally made the target of these trials include reporters, journalists, human rights protectors, attorneys, officers and activist members of political parties supporting the Kurds. Speech expressing disputing opinions on the subject of the condition of Armenians or Kurds in Turkey and condemnation of state bodies, particularly the military forces, often leads to criminal prosecution. Any person can be shot down anywhere on the basis of sudden or unreasonable suspect if he/ she is found to escape. Torture, threatening and other sorts of physical harassment are also prominent. The human rights activists are threatened and suppressed and their allegations are often unreported or given biased judgments. This calls for a number of steps that need to be taken up immediately. These are mainly the sanction of the Optional Protocol to the Convention against Torture and to form an independent state monitoring mechanism to make frequent and unannounced calls to all the locations of detention; assure quick, independent, unbiased and meticulous investigations of all the accusations of human rights abuses by members of the armed and police forces and; build up an efficient complaints mechanism to carry out prompt, independent, impartial and thorough investigations of the infringements of human rights allegedly carried out by law enforcement officers.28 Another incident that shows that the Human Rights Council has yet to strengthen its presence and make its enforcement mechanism more stringent is concerned with the implementation and execution of the Constitutional norms that protect the human rights in Cambodia. The judicial system in Cambodia lacks integrity and sovereignty due to immense political interference. The country is also subjected to the assassinations of trade union activists, enforced evictions, harassment and terrorization of human rights protectors, restraining the rights related to freedom of expression, participation and meeting, as well as sexual violence against females. In April 2007, Cambodia sanctioned the Optional Protocol to the Convention against Torture, although it has yet to set up a self-regulating National Preventative Mechanism as directed by the Protocol. In 2008, the government of Cambodia involved in negotiations about setting up such an apparatus and approved to receive an appointment by the UN Sub- Committee on Prevention of Torture in 2009. It is necessary for Cambodia to respect and defend the right of human rights advocates as well as the people working on economic, social and political rights and help them to carry out their work without obstacles, threats or harassment, along the lines of the UN Declaration on Human Rights Defenders as well as improve the speed and integrity of its judicial reforms.29 The treaty bodies of the Human Rights Council that supervise and assess state policies and procedures play a crucial role. Although a lot has been achieved by the UN especially in the developing countries with respect to health, education, poverty alleviation and other social and cultural aspects of life yet the whole organization has been stretched out almost to a snapping point30. The organization is under-funded. Most of the countries neglect to report or do so very casually and mostly, not on time. There are growing numbers of individual complaints, extensive reservations have been lodged by a number of governments, and the efficiency of committee members is under question.31 References 1. The Human Rights Council, “Human Rights” (n.d.) Available from: http://www2.ohchr.org/english/bodies/hrcouncil/ (Accessed on Dec 31, 2009) 2. Human Rights Bodies, “United Nations Human Rights Office of the High Commissioner for Human Rights” (n.d.) Available from: http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx (Accessed on Dec 31, 2009) 3. The United Nations Human Rights Enforcement Machinery training, “International development and human rights” (2009), Available from: http://international.lawsociety.org.uk/node/5704 (Accessed on Dec 31, 2009) 4. Buergenthal, Thomas, “The Normative and Institutional Evolution of International Human Rights”, Human Rights Quarterly (1997) 5. Enforcement Mechanisms In The United Nations, “United Nations Systems” (2007) Available from: http://www.stopvaw.org/Enforcement_Mechanisms_In_The_United_Nations.html (Accessed on Dec 31, 2009) 6. The United Nations Human Rights Enforcement Machinery training, “International development and human rights” (2009), Available from: http://international.lawsociety.org.uk/node/5704 (Accessed on Dec 31, 2009) 7. Boerefijn, Ineke, “UN Covenant on Civil and Political Rights. CCPR Commentary”, European Journal of International Law (2007) Vol.18, No. 1. 8. Nowak, Manfred, “Relationship between the Human Rights Council and the World Court”, The need for a World Court of Human Rights (2007) 9. Preamble, “The United Nations International Covenant On Civil And Political Rights” (1994), Available from: http://www.hrweb.org/legal/cpr.html (Accessed on Dec 31, 2009) 10. Article 1, “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, (1994), Available from: http://www.hrweb.org/legal/cat.html (Accessed on Jan 1, 2010) 11. Torture and ill-treatment, “Amnesty International”, (2001), Available from: http://www.amnesty.org/en/library/asset/POL30/006/2001/en/bed859c5-d8b6-11dd-ad8c-f3d4445c118e/pol300062001en.pdf (Accessed on Jan 1, 2010) 12. Maiese, Michelle, “Human Rights Violations”, Available from: www.beyondintractability.org/.../enforcement_mechanisms/ (Accessed on Jan 1, 2010) 13. “Eighth session of the UPR Working Group of the Human Rights Council”, Turkey Submission to the UN Universal Periodic Review (2009), Available from: http://www.amnesty.org/en/library/asset/EUR44/005/2009/en/a55ff4b4-1f7b-462d-a173-ae38ab6a0303/eur440052009en.pdf (Accessed on Jan 1, 2010) 14. “ Sixth session of the UPR Working Group of the Human Rights Council”, Cambodia Submission to the UN Universal Periodic Review, (2009), Available from: http://www.amnesty.org/en/library/asset/ASA23/005/2009/en/e1caf4e5-0cb8-426c-821c-56eb909df82f/asa230052009en.pdf (Accessed on Jan 1, 2010) 15. Smith, Rhona K. M, Textbook on International Human Rights, Oxford University Press, 2007 16. Alston, Philip and Crawford, James, The future of UN human rights treaty monitoring, Cambridge University Press, 2000 17. Steiner, Henry J, Alston, Philip and Goodman, Ryan, International human rights in context: law, politics, morals : text and materials, US: Oxford University Press, 2008 18. Julie Mertus, The United Nations and human rights: a guide for a new era, Routledge, 2005 Jennifer Aengst, “The Taliban and Human Rights”, (2000), Available from: http://www.du.edu/intl/humanrights/taliban.pdf (Accessed on Jan 9, 2010) Read More