QUESTION;
Assess the effectiveness of both the treaty based human rights system in promotion and protection of human rights.
Introduction
Human rights are rights inherent to all human beings, whatever their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. The principle of universality of human rights is the cornerstone of international human rights law. This principle was first emphasized in the Universal Declaration on Human Rights in 1948, it has since then been embraced by various conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights for example noted that it is the duty of states to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems. The promotion and protection of human rights and fundamental freedoms is one of the main mandates of the United Nations (UN), as set out in its Charter. Since the adoption of the Universal Declaration of Human Rights on 10 December 1948, the UN has developed a wide range of international human rights standards and norms, as well as mechanisms to promote and protect those rights. The participation of other actors, including non-governmental organizations (NGOs), has been essential to this process. In spite of evident progress, serious human rights violations continue to occur worldwide. In this context, and in recognition of the limitations of the international human rights system, the UN has recently launched a far-reaching reform process. Its main objective is to rationalize and improve the existing international mechanisms in order to ensure the realization of all human rights for all. Some significant changes have already taken place, notably the establishment, in 2006, of the Human Rights Council as a replacement for the former Commission on Human Rights. Today, there are more than 100 international human rights instruments (treaties, declarations, principles, recommendations, guidelines, etc.).
Assessment of the effectiveness of both the charter and treaty based human rights system in promotion and protection of human rights.
The principle of universality of human rights is the cornerstone of international human rights law. This principle was first emphasized in the Universal Declaration on Human Rights in 1948, it has since then been embraced by various conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights for example noted that it is the duty of states to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems. The promotion and protection of human rights and fundamental freedoms is one of the main mandates of the United Nations (UN), as set out in its Charter. Since the adoption of the Universal Declaration of Human Rights on 10 December 1948, the UN has developed a wide range of international human rights standards and norms, as well as mechanisms to promote and protect those rights. The charter based aspect for the protection of human rights is mainly a set of obligations put henceforth by the UN charter that should be followed in order to avoid the blatant abuse of human rights. According the UN Charter of 1945 the duty of protecting individual human rights is vested in the state. Further to this, the UN Charter (1945) drives to the end of maintaining international peace and security, and to the affective collective measures for the prevention and removal of threats to the peace, and for the suppression of act of aggression or breach of peace... in the charter, the security council is vested with the power to the maintenance of international peace and security and equitable geographical distribution. According to the UN charter protection of human rights is mainly done through the various organs put in place for the maintenance of human rights observation. Individual claims can be lodged to the UN Security Council where a state fails to observe the human rights of its nationals. Accordingly the organ put in place by charter for the settlement of interstate disputes is the security where inter state disputes are also lodged.
The International Bill of Human Rights
The term ‘International Bill of Human Rights’ encompasses the human rights provisions of the 1948 Universal Declaration of Human Rights and the two international Covenants on human rights: the UN Covenant on the Civil and Political Rights, its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights. The Preamble to the UN Charter declares a cardinal principle of the UN as being to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small… However the predominant guiding principle of the founding fathers of the UN was to establish an international framework which would prevent further occurrences of major armed conflict by the promotion of international peace and security and cooperation among nation states. This international community was premised on ‘faith in fundamental human rights’: equality, the rule of law, social progress and cooperation between nations. Under Article 62(2) of the UN Charter the Economic, Social and Cultural Council (ECOSOC) was charged with a general duty to make ‘recommendations for the purpose of promoting respect for, and human rights and fundamental freedoms for all’. In pursuit of this aim the ECOSOC created the Commission on Human Rights, which became the central UN organ in the human rights area.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted early in the life of the UN, by a General Assembly Resolution on 10 December 1948. It was drafted by the Commission on Human Rights. As a General Assembly resolution, the UDHR is not a legally binding instrument. That was not the intention; rather, in the words of Eleanor Roosevelt, Chair of the UN Commission on Human Rights and US Representative to the General Assembly, the UDHR was to act as a ‘common standard of achievement for all peoples of all nations’. The UDHR set down minimum standards in respect of a number of wide ranging identified rights and freedoms. It contains 30 Articles relating to those rights and freedoms which are regarded as being every person’s birthright. Articles 1 and 2 are regarded as fundamental, underlying all human rights: the right to freedom and equality and to freedom from discrimination. Articles 3–21 set out civil and political rights whereas Articles 22–27 refer to economic, social and cultural rights. The last three Articles call for a social and international order safeguarding the universal enjoyment of all human rights in which, inter alia, individuals have duties to the community.
The rights and freedoms set out in the UDHR were not enforceable, although today most would be recognised as customary international law and some even as jus cogens. However, the UDHR did represent the first attempt to afford comprehensive international protection for the individual. It is obviously important that UN human rights instruments be assessed as to their impact on promoting and protecting the human rights of individuals who are the nationals of contracting parties.
The objective of the human rights treaty system is to ensure human rights protection at the national level through the implementation of the human rights obligations contained in the treaties. The primary aims of the treaty system are to:
• encourage a culture of human rights
• focus the human rights system on standards and obligations
• engage all states in the treaty system
• interpret the treaties through reporting and communications
• identify benchmarks through general comments and recommendations
• provide an accurate, pragmatic, quality end product in the form of concluding observations for each state
• provide a remedial forum for individual complaints
• encourage a serious national process of review and reform through partnerships at the national level
• operationalize standards
• mainstream human rights in the UN system and mobilize the UN community to assist with implementation and the dissemination of the message of rights and obligations.
Accordingly, the effectiveness of the treaty system must be assessed by the extent of the national implementation of the recommendations resulting from constructive dialogue under reporting procedures, decisions under the four individual complaints procedures currently in operation and the outcome of inquiries. It must also be assessed by how successful the system has been in providing States with authoritative guidance on the meaning of treaty provisions, preventing human rights violations, and ensuring prompt and effective action in cases where such violations occur.
The system’s effectiveness should also be assessed by how far the output of these procedures has been integrated into all national, regional and international efforts to protect human rights.
The nine core international human rights treaties dealing with specific human rights are:
1. The International Covenant on Civil and Political Rights (ICCPR) (1976)
2. The International Covenant on Economic, Social and Cultural Rights (ICESCR) (1976)
3. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1969)
4. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1981)
5. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1987)
6. The Convention on the Rights of the Child (CRC) (1990)
7. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (2003)
8. The International Convention on the Rights of Persons with Disabilities (2008)
9. The International Convention for the Protection of All Persons from Enforced Disappearance (This treaty had not entered into force as of June 2008.)
A treaty enters into force once a certain number of States (as determined by the treaty itself) have ratified or acceded to it. Of the nine core international human rights treaties, only the International Convention for the Protection of All Persons from Enforced Disappearance had not entered into force as of June 2008, as it had not yet been ratified by the required 20 States.
Some treaties are supplemented by optional protocols, which State Parties to the treaty may ratify. Optional protocols normally contain provisions regarding a specific issue and/or allow for specific procedures, such as individual complaints or inquiries.
Accordingly a number of mechanisms have been introduced in an attempt to monitor compliance with each human rights treaty.
The main international human rights treaties have established special committees which have been specifically entrusted with the task of supervising the way countries abide by their treaty obligations. These treaty bodies of which are currently nine, have been created pursuant to the relevant UN human rights treaties, as follows:
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 treaty bodies conduct their implementation programmes in three major phenomenons which include;
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. 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.
On becoming a party to a treaty, a state undertakes certain legal obligations and is legally bound to implement the rights set out in that treaty. As we have seen, the guarantee of a right is only good if there is compliance with the treaty. In other words, an individual can only derive actual benefit from the UN human rights treaty provisions if their state is implementing the provisions of the treaty. Compliance with the treaty needs to be monitored, and to this end reporting procedures have been introduced. So as to establish how a contracting party is giving effect to the rights it has pledged to provide within its territory, all UN human rights treaties impose the obligation of periodic reporting upon states parties. This normally means that on becoming a party to a convention, a state must submit an initial report (normally a year after joining the treaty). Following this initial report, a state is obliged to submit periodic reports and these often vary according to the treaty. In these reports states are required to elaborate on ‘the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights’ (Art. 40 of the ICCPR). Each state party must first show what it has done to implement the rights envisaged by the treaty and this can be demonstrated by legislative initiatives, amendments to existing legislation, administrative and social policies, and educational campaigns and so on.
Secondly, the progress that has been made towards achieving the full enjoyment of the rights protected by the treaty is also required to be presented to the committee. The treaty body may then present the state with a number of issues and questions based on the report submitted. Similarly, the committee is presented with a shadow report from another organ which it compares with the state report for inconsistencies. The Concluding Observations represent the treaty body’s ‘jurisprudence’ and reflect its understanding and interpretation of the substantive rights contained in the treaty and the way these should be implemented. They are normally made public, so the Concluding Observations of the situation in one state can be a good point of reference for other states. The treaty bodies may also use the reporting obligation of the countries to request ad hoc reports. Thus, for example, according to Article 9 of ICERD, states parties are obliged to submit initial reports within one year of the entry into force of the Convention for the state concerned. Thereafter the reports must be submitted every two years and whenever the Committee so requests. Submission of reports by state parties allows the treaty body to monitor the general situation in the country and see what measures governments are taking to implement the obligations they have undertaken pursuant to their treaty obligations.
A number of UN human rights treaties have introduced special provisions for individual communications i.e.: individual complaints of human rights violations. These treaties are:
ICCPR – First Optional Protocol
ICERD
CAT
ICRMW
CEDAW – Optional Protocol
CRPD – Optional Protocol.
However, by becoming a party to a treaty, the state party does not automatically accept the individual complaints procedure. This can be done by either ratifying an optional protocol, as in the cases of the ICCPR and CEDAW, or by making a specific declaration accepting the individual complaints system, as with CAT, ICERD and the ICRMW.
Once again, each of these treaties contains provisions specifying how its individual complaints system operates, but there are some common features. In general, domestic remedies must have been exhausted for a communication to be held admissible. This rule respects the general principle of state sovereignty and provides each state party with the possibility of addressing the problem domestically before involving the international mechanism. However, if the applicant can show that the domestic remedy will be ineffective (for example, unduly long and cumbersome), the treaty body may still accept the communication. The communication must not be under consideration by any other international or regional human rights body or be subject to an international settlement procedure. The communication must not be anonymous. The communication must be submitted by a victim of the violation. This means that complaints of an actio popularis nature are not admissible and the applicant must show how his/her rights have been infringed. However, this does not mean that a communication cannot be submitted on someone’s behalf. This can be done with authorization from a victim or even without explicit authorisation where the vicarious complainant has a close relationship to the victim. It should be noted that some treaties, for example the Optional Protocol to CEDAW, also allow communications from groups of victims. Communications which the treaty body deems to be an abuse of the right to individual complaint or to be incompatible with the provisions of the treaty are not considered. Thus the communication must be substantiated. Inter state procedure similar to the individual complaints, this procedure allows one state party to complain to the treaty body that another state party has failed to comply with its obligations under a treaty. Periodic reporting and the complaints systems are the two most common mechanisms for ensuring and monitoring state compliance with obligations imposed by UN human rights treaties. However, other devices have been employed by various treaty bodies, including among others General Comments and inquiries. 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 thus represent another important source of information for states parties in guiding their understanding of the obligations they have undertaken.
Some of the treaty bodies are empowered to initiate inquiries. The Optional Protocol to CEDAW provides the Committee on the Elimination of Discrimination Against Women with the right to initiate inquiries if it has received reliable information attesting to well-founded instances of serious or systematic violation of Convention rights. Similarly, CAT provides the Committee against Torture with the right to initiate inquiries if it has received reliable information on the commission of an act of torture. The early warning system is a procedure is envisaged in the working paper adopted by CERD in 1993. It is designed to help the Committee on the Elimination of Racial Discrimination develop measures to prevent and respond more effectively to violations of ICERD. 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. There are also other mechanisms devised by some treaty bodies. Thus, for example, the Committee on the Elimination of Racial Discrimination holds thematic discussions about issues related to racial discrimination such as the prevention of genocide. (Thematic Discussion on the Prevention of Genocide, http://www.unhchr.ch/)
Similarly, 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 General Comments and other mechanisms identified above add to the body of ‘jurisprudence’ of each of the treaty bodies in that they provide the interpretation of the duties that states have undertaken by becoming parties to a particular treaty.
Bibliography
Charter of the United Nations 1945
Optional Protocol to CEDAW
The United Nations System: How to make it work for you, 2008
The UN Human Rights Treaty System, Universality at Cross roads, 2001
United Nations Protection of Human Rights, Mechanisms for Human Rights Protection by United Nations Bodies, University of London Press 2009
http://www.ohchr.org/english/bodies/cerd/early-warning
