The law relating to
international human rights is embodied in the International Bill of Human
Rights, which consists of the Universal Declaration of Human Rights (UDHR), the
International Covenant on Economic, Social and Cultural Rights (ICESCR), the
International Covenant on Civil and Political Rights (ICCPR) and its Optional
Protocols. The creation of a body of international human rights has been a
major accomplishment of the United Nations (UN) an organization formed in 1945
after the World War II compelled to address problems of mass violations of
human rights and serious infringement of territorial sovereignty.
Since global problems can never be resolved by any one country acting
alone, as the world’s only truly universal institution, the United Nations
offers the best forum to galvanize global action to meet the challenges ahead.[3]
This is done through the charter based and treaty based organs that employ Charter
based and Treaty based mechanisms respectively in the promotion and protection
of human rights. Charter based organs include; General Assembly, the Security
Council and the Economic and Social Council among others while Treaty based
organs include; the Human Rights Committee and the Committee on the Rights of
the Child among others. These organs have engaged mechanisms in the promotion
and protection of Human rights which are hereafter assessed.The Charter based mechanisms
These are supervisory
mechanisms enshrined in the United Nations Charter. The mechanisms have been
effective in the ways hereafter analyzed.
The UN Charter [4]
allows the General Assembly to
“initiate studies and make recommendations” for the purpose of “assisting in the
realization of human rights and fundamental freedoms for all”. The
recommendations call upon states to take up particular developments that are
aimed at protecting and promoting human rights in the particular state. Though
such recommendations are not binding on states, their impact is particularly
strong. Most states have taken up the recommendations made by the General
Assembly in order to avoid being embarrassed on the international scene.
The UN Charter [5]
also entrusts the Security Council
with the primary responsibility of maintaining international peace and
security. In so doing, gross human rights violations creating conflict and mass
movements of refugees and internally displaced people have been highlighted as
threats to international peace and security. This implies that a state engaging
in any of the above mentioned violations will be deemed as disturbing
international peace. This was the case in the apartheid in South Africa, racial discrimination in Southern Rhodesia
and Israel’s treatment of the population in the occupied Palestinian
territories.[6]
The Security Council has through the above mechanism also addressed human
rights issues of Illicit trafficking in diamonds; refugees; internally
displaced persons; small arms trafficking; and children in armed conflict.
The Security Council in
furtherance of its responsibilities authorizes coercive action against states
that initiate acts that are calculated to disturb international peace. For
example, in the early 1990s, the Security
Council authorised coercive action against Iraq under Chapter VII of the
Charter to protect the Kurds in the north.[7]
The Security Council also regularly receives reports from peace keeping
operations and this enables it to monitor the observation of human rights in
war tone regions.
The
ECOSOC (economic and social committee) ECOSOC generally follows the lead of the Commission
on Human Rights on both human rights issues, generally, and minority rights, in
particular. It is empowered by the UN charter[8]
to make recommendations for the purpose of promoting respect for, and
observance of, human rights and fundamental freedoms for all.
UN
Commission on the Status of Women is another charter
based mechanism of protecting and promoting human rights through which the
rights of women are upheld. The Commission has developed a complaint procedure
which is designed to identify global trends and patterns concerning women’s
rights. It was established pursuant to a series of resolutions of the ECOSOC,
under which the Commission considers confidential and non-confidential
complaints regarding the status of women in any country in the world.
The
Human Rights Commission which has established programs for
the promotion of human rights, like human rights advisory services, and created
the Special Rapporteurs, Working Groups, Special Representatives, and Independent
Experts is another mechanism. Examples of Rapporteurs include; Special
Rapporteur on Torture; Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions; Special Rapporteur on Freedom of Religion.
Human
Rights Council complaint procedure (The 1503 procedure) The 1503 procedure is a
mechanism that allows the UN Human Rights Council to examine communications
received from individuals and other private groups, with the aim to ‘address
consistent patterns of gross and reliably attested violations of all human
rights and all fundamental freedoms occurring in any part of the world and
under any circumstances. This procedure is confidential and no individual
redress is possible under this procedure. Instead, the complaints aim at
identifying a consistent pattern of gross and reliably attested violations.
Upon receiving such a complaint the HRC can submit a request for additional
information from the state concerned, appoint an independent expert to monitor
the situation and report back to the Council, take the matter up under its
public procedure or recommend to the OHCHR to provide technical cooperation,
capacity‑ building assistance or advisory services to the state concerned.
Office
of the High Commissioner for Human Rights (OHCHR)
is a focal point for all human rights activities in the UN and serves as the
Secretariat for the Human Rights Commission and related bodies. The High
Commissioner him/herself is the UN Secretary-General’s personal representative on
human rights and is, authorized to provide constant encouragement to the
international community and States to uphold the universally agreed standards.
Universal
Periodic Review (UPR)
is a mechanism by which the Human Rights council reviews the human rights
records of the UN Member States once every four years. The UPR is a
State-driven process, under the auspices of the Human Rights Council, which
provides the opportunity for each State to declare what actions they have taken
to improve the human rights situations in their countries and to fulfill their
human rights obligations.
Special
procedures are mechanisms that usually call for the
examination, monitoring, and public reporting on human rights situations in
specific countries or territories, known as country mandates, or on major
phenomena of human rights violations worldwide, known as thematic mandates. The first Thematic procedures was the
Working Group on Enforced
or Involuntary Disappearances, established
by the Commission
in 1980. The next
was a Special
Rapporteur appointed in
1982 to investigate
summary or arbitrary executions.
The
International Court of Justice (ICJ) was set up in
1945 under the UN Charter as a world court. It settles disputes submitted by
States in accordance with international law and also gives legal advice to
authorized agencies. It is established under the UN Charter[9]
as the principal judicial body of the United Nations.
The
Treaty based mechanisms
These are supervisory
mechanisms enshrined in legally binding human rights instruments or
conventions. They include; the Human Rights Committee (HRC), created under the
ICCPR, the Committee on Economic, Social and Cultural Rights (CESCR), created
under the ICESCR, the Committee on the Elimination of Racial Discrimination
(CERD), created under the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD), the Committee on the Elimination of
Discrimination against Women (CEDAW), created under the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW), the Committee
Against Torture (CAT), created under the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Subcommittee on
Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(SPT), created under the Optional Protocol to the Convention against Torture
(OPCAT) the Committee on the Rights of the Child (CRC), created under the Convention
on the Rights of the Child (CRC), the Committee on Migrant Workers (CMW), created
under the International Convention on the Protection of the Rights of All Migrant
Workers and Their Families (ICRMW), the Committee on the Rights of Persons with
Disabilities (CRPD), created under the Convention on the Rights of Persons with
Disabilities (CRPD). The mechanisms have been effective in the ways hereafter
analyzed.
Periodic
reporting is a treaty based mechanism whereby member states
to a particular treaty are required to show what they have done to implement
the rights envisaged by the treaty – this can be demonstrated by legislative
initiatives, amendments to existing legislation, administrative and social
policies, educational campaigns and the progress that has been made towards
achieving the full enjoyment of the rights protected by the treaty. This method
has involved experts, Civil Society Organizations and government
representatives in reporting. It leads to constructive dialogue and thus NGOs,
have increasingly engaged with the treaty bodies by submitting ‘shadow reports’ on the state of human
rights in their country. A case in point is the Human rights officers in
Colombia, Haiti and Sierra Leone[10]
who have assisted NGOs in preparing these reports which have led to more
contentious meetings. In so doing, states have observed human rights as they
take up the recommendations made by the various treaty committees. A case in
point is Uganda which effected the amendment of existing legislation as
recommended by CEDAW that were discriminatory against women.[11]
Individual
reports are mechanisms through which an individual holds a
government directly accountable before an international supervisory body.
Several international conventions have created the opportunity for an
individual who feels that his or her rights have been violated to bring a
complaint alleging a violation of certain treaty rights to the body of experts
set up by the treaty for quasi-judicial adjudication or to an international
Court. But before an individual complaint is received, the violating state must
have ratified the convention, the violated rights must be covered by the
convention and all domestic remedies must have been exhausted.
Interstate
complaints is another mechanism where Some human
rights instruments allow states parties to a treaty to initiate a procedure
against another state party which is thought not to be fulfilling its
obligations under the treaty. In most cases, such a complaint may only be
submitted if both the claimant and the defendant state have recognized the
competence of the supervisory body to receive this type of complaint. An
example of an interstate complaint is seen in 2007 where Georgia lodged an application against the Russian Federation
with proceedings commencing in April 2009.
Inquiries
are
another mechanism used in which an independent person or group of persons may
raise, on the person’s or group’s own initiative, issues of non-compliance with
human rights. Such a group may initiate a visit in loco to gather information,
or do so as part of a regular visit-program. Article 20 of the Convention
Against Torture (CAT) for instance empowers the CAT to initiate an inquiry when
it receives ‘reliable information’ that suggests ‘well-founded indications that
torture is being systematically practiced in the territory of a state party.
This ensures the protection of human rights.[12]
General
comments are a mechanism in which treaty bodies publish their
interpretation of the provisions of the human rights treaties that they monitor.
General Comments present the views of the treaty body about the rights
contained in the relevant treaty, and constitute the most authoritative
interpretation of the substantive rights contained in the treaty. They are issued
as a way of promoting and protecting human rights.
The Committee on the
Elimination of Racial Discrimination holds thematic
discussions about issues related to racial discrimination such as the
prevention of genocide
The Committee on the
Rights of the Child holds days of general
discussion. The purpose of these discussions is to facilitate a better
understanding of the contents and implications of the Convention on the Rights
of the Child as they relate to specific articles or topics.
The
early warning system is a mechanism where early warning measures
are designed to prevent existing problems from escalating into conflicts, and
can also include confidence-building measures to identify and support whatever
strengthens and reinforces racial tolerance, particularly to prevent a
resumption of conflict where it has previously occurred. This procedure is
envisaged in the working paper adopted by CERD in 1993.[13]
However
the charter and treaty based mechanisms face quite a number of challenges that
render them ineffective in the promotion and protection of human rights.
The absence of legally
binding judgments has rendered the mechanisms ineffective. It should be noted
that the mechanisms usually stop at making recommendations which the violating
states either choose to uphold or neglect. This has led to the continued abuse
of human rights across the globe.
The overwhelming number
of individual complaints has led to a serious delay in the decision procedures.
This is partly because the receiving bodies are under staffed and poorly
funded. The delay in decision usually costs the victims a lot as they do not
get redress until a decision is made.
This has also promoted the abuse of human rights globally.
In the same voice, the
examination of violations takes a long time as the committees investigate on
whether what the victim has reported is actually true. It is noteworthy that some
situations require urgent response in order to effectively protect human
rights. But because the committees take so much time examining the violation,
their responses are usually ineffective.
The mechanisms have
proved inadequate and inefficient in a way that it is tiresome for bodies/
states to handle reports in time. A case
in point is Uganda that wrote a combined fourth, fifth, sixth, and seventh
periodic report for consideration by the CEDAW in 2009.[14]
This indicates a lack of consistency in the reporting which renders the
mechanism ineffective.
More so, some states do
not seem to take the reporting system seriously and there are a great
number of states that have not submitted reports required under the various
treaties. This has failed the mechanisms in the protection and promotion of
human rights.
Many states have not
recognized some treaties/conventions protecting certain human rights and as
such they are not bound by the obligations enshrined in these treaties. This
has greatly disadvantaged the promotion and protection of human rights
worldwide.
A challenge of non-domestication
of the treaties also renders ineffective the mechanisms of promoting human
rights as compliance to them becomes difficult. It should be noted that as a
general rule, treaties do not require a contracting state to bestow rights on
individuals, but what is necessary is that a state brings its domestic law into
line with international human rights standards.[15]
The requirement for a
state to have ratified an optional protocol before individual complaints are
accepted also frustrates the mechanisms in the protection of human rights. This
is seen in the cases of the ICCPR and CEDAW. Other treaties like CAT, ICERD and
the ICRMW require that a state makes a specific declaration accepting the
individual complaints system. This implies that individual reports from states
that have not ratified such protocols will not be accepted regardless of
whether the rights are being violated or not.
In
a nutshell, the charter based and treaty based mechanisms for
the protection of human rights have several functions, including; to advise, to
assist, to correct, and to provide relief or remedy. However these mechanisms
are at times frustrated and embarrassment of a government in an international
arena is usually the most potent remedy the UN can offer to correct human
rights abuses.
[1]
Bryan A. Garner - Black’s Law Dictionary – 8th Edition
[2]
Rhona K Smith – International Human Rights
[4]
Article 13(1)(b) of the UN Charter
[5]
Article 24 of the UN Charter
[6]
William G. O’Neill and Annette Lyth - Manual on Human Rights Monitoring, An
Introduction for Human Rights Field Officers
[7]
William G. O’Neill and Annette Lyth - Manual on Human Rights Monitoring, An
Introduction for Human Rights Field Officers
[8]
Article 62 (2)
[9]
Article 92
[10]
International Supervisory Mechanisms for Human Rights - Icelandic Human Rights
center
[11]
Divorce Act was discriminatory on grounds when petitioning court for divorce;
women were required to prove two grounds while men were to prove one
[12]
International Supervisory Mechanisms for Human Rights - Icelandic Human Rights
center
[14]
Combined 4th, 5th,
6th & 7th periodic report on the
implementation of CEDAW in Uganda - Ministry of Gender, Labor and Social
Development, 2009
[15]
E. Steinerte & R.M.M. Wallace - United Nations protection of human rights
Section A: Mechanisms for human rights protection by United Nations Bodies
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