International Human Rights Law and UN Mechanisms

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International Human Rights Law and UN Mechanisms

• By Rajat Khosla

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Introduction to International Human Rights

• Modern international human rights law dates from
  World War II and its aftermath.
• The United Nations Charter, signed on June 26,
  1945, sought to acknowledge the importance of
  human rights and established it as a matter of
  international concern.

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Contd.

• Article 1(3) specifically states that one of the
  purposes of the UN is "to achieve international
  cooperation in solving international problems of
  an economic, social, cultural, or humanitarian
  character, and in promoting and encouraging
  respect for human rights and for fundamental
  freedoms for all without distinction as to race,
  sex, language, or religion"

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Contd.

• Articles 55 and 56 of the Charter set out the
  basic human rights obligations of the UN and its
  member states. 
• The rights and obligations enumerated in the
  Charter were codified in the Universal
  Declaration of Human Rights. This was the first
  instrument to really articulate the fundamental
  rights and freedoms of all people.

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Contd.

• Following the Declaration, the UN Commission on
  Human Rights drafted the International Covenant
  on Civil and Political Rights and the
  International Covenant on Economic, Social and
  Cultural Rights. Together, these three documents
  (with the Optional Protocols to the International
  Covenant on Civil and Political Rights) comprise
  the International Bill of Human Rights.
• Since 1948 a number of further human rights
  instruments have been drafted and adopted by the
  international community the Convention on the
  Prevention and Punishment of the Crime of
  Genocide (1948), the International Convention on
  the Elimination of All Forms of Racial
  Discrimination (1963), the Convention on the
  Elimination of All Forms of Discrimination
  against Women (1970), the Convention against
  Torture and Other Cruel, Inhuman or Degrading
  Treatment or Punishment (1984), the Convention on
  the Rights of the Child (1989) and the
  International Convention on the Protection of the
  Rights of All Migrant Workers and Members of
  Their Families (1990).
• In addition many other instruments for the
  protection of human rights exist, these include
  declarations, resolutions, recommendations and
  principles.

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Human Rights Law and Humanitarian Law

• Humanitarian law is the branch of public
  international law that comprises the rules,
  which, in times of armed conflict, seek to (i)
  protect persons who are not or are no longer
  taking part in the hostilities, (ii) restrict the
  methods and means of warfare employed, and (iii)
  resolve matters of humanitarian concern resulting
  from war.
• The term "humanitarian" is often used in everyday
  language in a very broad sense, and can be
  confused with the term "human rights.
• Although both are concerned with the protection
  of the individual, the two bodies of law apply to
  different circumstances and possess slightly
  different objectives.
• The main distinction between the two bodies of
  law is that humanitarian law applies to
  situations of armed conflict, while human rights
  protect the individual in times of both war and
  peace.
• Humanitarian law aims to limit the suffering
  caused by war by regulating the way in which
  military operations are conducted.

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Introduction to the UN Human Rights Treaty System

• The promotion and protection of human rights is
  one of the fundamental aims of the United
  Nations.
• The setting of legal standards in the field of
  human rights and the establishment of mechanisms
  to monitor those standards has been one the
  primary means of achieving this aim.
• The U.N. treaty system establishes the legitimacy
  of international interest in the protection of
  human rights.
• Every UN member state is a party to one or more
  of the seven major human rights treaties.
• The treaty standards are the benchmark for
  assessment and concern.

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Contd.

• Since the establishment of the first treaty body,
  the Committee on the Elimination of Racial
  Discrimination (CERD), the system has grown to
  include seven treaty bodies.
• Over the last decade ratifications in the treaty
  system and acceptance of communication procedures
  have risen exponentially. What began as an
  assertion of a few, is now a global proclamation
  of entitlements of the victims of human rights
  abuse.

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Contd.

• This participation by states has been voluntary,
  the obligations of the human rights treaties have
  been freely assumed. It is the legal character of
  these rights which places them at the core of the
  international system of human rights protection.
  For these rights generate corresponding legal
  duties upon state actors, to protect against,
  prevent, and remedy human rights violations.

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Contd.

• As the system has grown, it has confronted
  challenges. These include delays in submission
  and/or consideration of reports, non-reporting,
  and duplication of reporting requirements among
  treaty bodies. Improving the effectiveness of the
  human rights treaty system has been an ongoing
  interest of individual treaty bodies, the meeting
  of chairpersons of human rights treaty bodies,
  the (then) Commission on Human Rights and the
  General Assembly. These issues have also been the
  subject of discussion at the Inter-Committee
  Meeting.

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The Standards

• The human rights treaty system encompasses seven
  major treaties
• the Convention on the Elimination of all forms of
  Racial Discrimination (in force 4 January 1969)
• the International Covenant on Civil and Political
  Rights (CCPR) (in force 23 March 1976)
• the International Covenant on Economic, Social
  and Cultural Rights (in force 23 March 1976)
• the Convention on the Elimination of all forms of
  Discrimination Against Women (in force 3
  September 1981)
• the Convention Against Torture, and Other Cruel,
  Inhuman or Degrading Treatment or Punishment (in
  force 26 June 1987)
• the Convention on the Rights of the Child (in
  force 2 September 1990)
• the International Convention on the Protection of
  the Rights of All Migrant Workers and Members of
  Their Families (in force 1 July 2003).

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The Treaty Bodies

• The seven treaties are associated with seven
  treaty bodies which have the task of monitoring
  the implementation of treaty obligations. Six of
  the seven treaty bodies meet primarily in Geneva,
  and are serviced by the Office of the UN High
  Commissioner for Human Rights (OHCHR). These are
• the Committee on the Elimination of Racial
  Discrimination (CERD)
• the Human Rights Committee (HRC)
• the Committee on Economic, Social and Cultural
  Rights (CESCR)
• the Committee Against Torture (CAT)
• the Committee on the Rights of the Child (CRC)
• the Committee on Migrant Workers (CMW).
• One treaty body meets in New York and is serviced
  by the UN Division for the Advancement of Women
• the Committee on the Elimination of
  Discrimination Against Women (CEDAW).
• The treaty bodies are composed of members who are
  elected by the states parties to each treaty (or
  through the UN Economic and Social Council
  (ECOSOC) in the case of CESCR). In principle,
  treaty members are elected as experts who are to
  perform their functions in an independent
  capacity.

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The Functions of the Treaty Bodies

• Meeting periodically throughout the year, the
  treaty bodies fulfill their monitoring function
  through one or more of three different methods.
• First, all states parties are required by the
  treaties to produce state reports on the
  compliance of domestic standards and practices
  with treaty rights. These reports are reviewed at
  various intervals by the treaty bodies, normally
  in the presence of state representatives.
  Concluding observations, commenting on the
  adequacy of state compliance with treaty
  obligations, are issued by the treaty bodies
  following the review.
• Second, in the case of four treaties individuals
  may complain of violations of their rights under
  the treaty (the Civil and Political Covenant, the
  Racial Discrimination Convention, the Convention
  Against Torture, and the Women's Discrimination
  Convention). These complaints are considered by
  the treaty body which expresses a view as to the
  presence or absence of a violation.

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Contd.

• Third, in the case of CAT and CEDAW, their work
  includes another procedure. This is an inquiry
  procedure which provides for missions to states
  parties in the context of concerns about
  systematic or grave violations of treaty rights.
• In addition, the treaty bodies contribute to the
  development and understanding of international
  human rights standards through the process of
  writing General Comments or Recommendations.
  These are commentaries on the nature of
  obligations associated with particular treaty
  rights and freedoms.

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The National Level

• The international system has had implications at
  the national level.
• A multitude of domestic legal systems have been
  affected by the treaties.
• The treaties form the basis of a significant
  number of the world's bills of rights.
• There are also numerous instances of legal reform
  prompted by the treaties.
• Non-governmental organizations and national human
  rights institutions have invoked the treaty
  standards in relation to proposed government
  legislation and policies.
• Legislative committees have used treaty standards
  as reference points.
• The treaties have sometimes been incorporated
  into national law, had direct application through
  constitutional provisions to national law, and
  been used to interpret domestic law through
  judicial intervention.

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Other UN Monitoring Mechanisms

• Charter based bodies
• These derive their establishment from provisions
  contained in the Charter of the United Nations,
  and hold broad human rights mandates, address an
  unlimited audience and take action based on
  majority voting.
• These include bodies such as the Human Rights
  Council, Special Procedures, the Sub-Commission
  on the Promotion and Protection of Human Rights.

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Contd.

• Special Rapporteurs
• A UN Special Rapporteur is an independent expert
  appointed to promote and protect human rights.
• For many years, the UN appointed Special
  Rapporteurs to focus on the classic civil and
  political rights, like freedom of religion and
  the prohibition against torture.
• Recently the UN has appointed experts to focus on
  economic, social and cultural rights, the first
  being the Special Rapporteur on the right to
  education who was appointed in 1998
• In 2002, the UN decided to appoint a Special
  Rapporteur on the right to the highest attainable
  standard of health