United Nations Human Rights System

Author: Thamil Ananthavinayagan, Grażyna Baranowska

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A. Universal Declaration of Human RightsEdit

The Universal Declaration of Human Rights (UDHR) is hailed as the first document of global reach which encompassed a wide range of human rights, touching upon civil and political rights on the one hand and, on the other hand, also economic and social rights. And it also set the stage for various other human rights documents to follow, such as the twin human rights convents, the International Covenant on Civil and Political Rights and then the International Covenant on Economic and Social Rights.^[1]

In face of the destruction caused by the Second World War - and to this end with the failure of the League of Nations - the world leaders of the post-war world assembled in New York to create the United Nations, the assembly of states to prevent the outbreak of the Third World War. At the same time, the UDHR was drafted by persons from different cultural backgrounds, such as Charles Malik, Carlos P. Romulo, Peng-chun Chang and Eleanore Roosevelt. It cannot be denied, however, that the UDHR has European origin. As Suzanne Waltz writes: “It would be foolish to deny a connection between Western philosophy and the modern notion of human rights: philosophical writings in support of human rights are easily located in the larger body of Western thought.” ^[2] In fact, the drafters of the UDHR were predominantly from the West or were exposed to Eurocentric education.

The General Assembly, dominated by Western states, adopted the Universal Declaration on 10.12.1948 and echoed the four freedoms proclaimed in the Atlantic Charter of 12.08.1941 by Franklin D. Roosevelt, the former president of the United States.^[3] Despite its rather elitist and hegemonic origins, the UDHR triggered a larger discussion and codification on human rights in different parts of the world, especially in the Global South amid its decolonisation period.^[4] The evolving treaty bodies were the result of the UDHR and will be discussed in the next section.

B. Treaty bodies & core international human rights treatiesEdit

The United Nations (UN) treaty based human rights system is based on nine core international human rights treaties (and associated optional protocols). Each of those treaties is monitored by a committee, called treaty body.

The aforementioned Universal Declaration of Human Rights triggered the creation of the prime human rights treaties, namely the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. While the work initially was supposed to lead to one general treaty on human rights, the different perspective on political and economic rights led to the adoption of two treaties, each called “Covenant”: one on civil and political rights and the other on economic, social and cultural rights. The remaining core human rights treaties are called “Conventions”.

While the negotiations to adopt the two covenants were ongoing, states within the UN decided to work on a specialised treaty, on racial discrimination, which was adopted in 1965, a year before the two covenants.^[5] Since then, specialised conventions on discrimination against women, torture, rights of the child, migrant workers, persons with disabilities and enforced disappearances have been adopted.

Besides the nine committees set up to monitor the core treaties, an additional treaty bodies was created, with a preventive mandate: the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Consequently, there are currently ten UN treaty bodies.

Human rights treaties, which led to setting up of treaty bodies (entry into force)	Treaty bodies
OHCHR \| International Convention on the Elimination of All Forms of Racial Discrimination (1969)	OHCHR \| Committee on the Elimination of Racial Discrimination
OHCHR \| International Covenant on Economic, Social and Cultural Rights (1976)	OHCHR \| Committee on Economic, Social and Cultural Rights
OHCHR \| International Covenant on Civil and Political Rights (1976)	OHCHR \| Human Rights Committee
OHCHR \| Convention on the Elimination of All Forms of Discrimination against Women(1981)	OHCHR \| Committee on the Elimination of Discrimination against Women
OHCHR \| Convention against Torture (1987)	OHCHR \| Committee against Torture
OHCHR \| Convention on the Rights of the Child (1990)	OHCHR \| Committee on the Rights of the Child
OHCHR \| International Convention on the Protection of the Rights of All Migrant Workers (2003)	OHCHR \| Committee on Migrant Workers
OHCHR \| Optional Protocol to the Convention against Torture (2006)	OHCHR \| Introduction
OHCHR \| Convention on the Rights of Persons with Disabilities (2008)	OHCHR \| Committee on the Rights of Persons with Disabilities
OHCHR \| Convention CED (2010)	OHCHR \| Committee on Enforced Disappearances

1. Treaty bodies’ membersEdit

Treaty bodies’ members are independent human rights experts, who are nominated and elected by the respective state parties to the covenants. The exception is the Committee on Economic, Social and Cultural Rights, whose members are elected by the Economic and Social Council (ECOSOC). While treaty body members should be elected with the aim to ensure diversity, this has not been achieved yet, with regard to neither gender nor geographic representation (Geneva Academy, 2018).

The number of members in each committee varies between 25 (Subcommittee on Prevention of Torture) and 10 (Committee Against Torture, Committee on Enforced Disappearances). They serve in their personal capacity and are expected to carry out their duties impartially (see also Addis Ababa Guidelines^[6]). The UN does not pay the treaty bodies members; they do receive an allowance for the sessions, which usually take place twice a year in Geneva.

2. Treaty bodies competencesEdit

Treaty bodies are set up to monitor the relevant human rights treaty. To achieve this goal, their main competences are reviewing state parties’ periodic reports and communications, as well as adopting general comments.

a) State parties periodic reportsEdit

States that have ratified each treaty are obliged to submit regularly reports to the relevant committee. Those reports are usually submitted every four years. The treaty bodies analyse the state report, considering also information submitted by NGOs and national human rights institutions. Then, they discuss with state representatives each state report and adopt a document called “concluding observations”, which contains recommendations to the relevant state party. All documents submitted within the periodic reviews are available on the treaty body database .

b) Individual communications

Treaty bodies also have the competence to review individual and inter-state communications. This competence requires an additional approval of a state – either through the ratification of an Additional Protocol (for example the Human Rights Committee) or through a declaration (for example the Committee on the Elimination of Discrimination against Women). Communications can concern only those states that have accepted the communication procedure. Currently eight of the treaty bodies have the competence to review individual communications. The Committee on Migrant Workers does not yet review individual communications, as the convention requires 10 states to accept this competence before it comes into force (art. 76.2 of the International Convention on the Protection of the Rights of All Migrant Workers). The Subcommittee on Prevention of Torture does not have the competence to review communications.

Communications are reviewed by the treaty bodies, both with regard to their admissibility and substance. After reviewing the case, the committees issue “views”, in which they state whether the provisions of the relevant treaty have been violated. Finally, the treaty bodies monitor whether and how states implement the views. All views of the treaty bodies can be found in the jurisprudence database.^[7]

c) Inter-state communicationsEdit

Seven of the treaty bodies allow state parties to raise alleged violation of the treaty by another treaty body. The relevant procedure take different forms:

· inter-state communications with regard to states that have declared accepting this competence of the relevant committee (Committee on Migrant Workers, Committee Against Torture, Committee Against Enforced Disappearances, Committee on the Rights of the Child),

· setting up ad hoc conciliation commissions (Committee on the Elimination of Racial Discrimination, Human Rights Committee),

· settling disputes on the interpretation or application of the treaty (Committee on the Elimination of Discrimination against Women, Committee Against Torture, Committee on Migrant Workers).

Inter-state procedures at treaty bodies are extremely rare. So far, the Committee on the Elimination of Racial Discrimination reviewed three inter-state cases: Qatar v. the Kingdom of Saudi Arabia and Qatar v. the United Arab Emirates, that were suspended (NATIONS UNIES (ohchr.org)^[8] and NATIONS UNIES (ohchr.org)^[9]), as well as State of Palestine v Israel (OHCHR | Inter-State Communications)^[10].

d) Adopting general commentsEdit

All treaty bodies adopt general comments, which are explaining how the treaty bodies interpret a treaty provision, thematic issues or methods of work. Some treaties provide for this competence within the treaty (for example the Convention on the Elimination of All Forms of Discrimination against Women, par. 21, which uses the term “general recommendation”). All general comments are available on the treaty bodies’ webpages.

e) Other competencesEdit

Treaty bodies also have other competences that are specific to their mandate. For example, the Committee Against Enforced Disappearances’ urgent action procedure is a request from the committee to the state to immediately take all necessary measures to search for, locate and protect a disappeared person, and investigate the disappearance. Another example is the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment establishes a system of regular visits by independent national and international bodies to places where people are deprived their liberty.

C. Charter based systemEdit

The United Nations human rights machinery, in addition to the treaty-based strand of human rights protection and promotion, has a charter-based strand. At the beginning of the United Nations, this consisted of the United Nations Human Rights Commission, replaced by its successor, the United Nations Human Rights Council. To this end, as it is written elsewhere:

As a binding international document, the United Nations Charter comprises international law. It is precisely, for this reason, that it was an innovation to include and give effect to compelling moral principles and political ideas of human rights. With the adoption of Resolution 5 (I) on the 16th of February 1946, the Economic and Social Council decided to pave the way for the conception of the Commission on Human Rights, which benefited from the privilege of birth, being the only technical commission and possessing the quality of an organ with statuary character.^[11]

However, “in the late 1990s and early 2000s, controversy developed over the human rights records of some commission members that were widely perceived as systematic violators of human rights. These instances significantly affected the commission’s credibility.”^[12]

The United Nations Human Rights Council was created on 15.03.2006 by UN General Assembly “to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights” according to United Nations General Assembly Resolution 60/251.^[13] The Human Rights Council has different mechanisms to ensure the promotion and protection of human rights: the Universal Periodic Review, the Special Procedures, the Advisory Committee and the Complaint Procedure. Up until now, the United Nations Human Rights Council proved to be a body of universal relevance. In the next section, the article will discuss the United Nations human rights machinery’s role aside the regional human right bodies.^[14]

D. Complementarity / competition? UN system and regional systemsEdit

In 1993 the then-Commission on Human Rights adopted several resolutions which encouraged the United Nations Secretary General to strengthen cooperation and knowledge-exchange international and regional human rights bodies, while inviting the treaty bodies to explore ways to increase the exchange of information and cooperation with regional human rights mechanisms. To this end, the Resolution 1993/51 states:

10. Requests the Secretary-General, as foreseen in the medium-term plan for the period 1992-1997, to continue to strengthen exchanges between the United Nations and regional intergovernmental organizations dealing with human rights, and welcomes, in this connection, the fact that the Centre for Human Rights will continue to organize national, regional and sub-regional workshops and training courses for government officials engaged in the administration of justice and in the implementation of the international human rights instruments and that more countries in all regions of the world are expected to develop forms of cooperation and assistance with the Centre for Human Rights, in keeping with their specific needs.^[15]

Since then, several United Nations Human Rights Council resolutions, i.e. A/HRC/RES/6/20 of 2007; A/HRC/RES/12/15 of 2009, A/HRC/RES/18/14 of 2011 and A/HRC/RES/24/19 of 2013, have been passed. The United Nations Human Rights system, has held a range of workshops to examine how the United Nations and regional human rights mechanisms can work more closely and effectively together. To this end, the United Nations and the regional system pursue close cooperation rather than cooperation.

E. ConclusionEdit

The emergence of an international human rights infrastructure was crucial to address human rights violations at a global scale. We have also seen the development when human rights violations cannot happen in isolation and in the shadows anymore. Human rights became a dominant force for the liberation of Third World peoples. As Anthony Anghie writes:

The international human rights law that emerged as a central and revolutionary part of the United Nations period offered one mechanism by which Third World peoples could seek protection, through international law, from the depredations of the sometimes pathological Third World state. It was for this reason that international human rights law held a special appeal for Third World scholars.^[16]

Human rights, eventually, is a means to an end: accessing sovereign space where economic and political influence is creating neo-colonial dependencies. Against this background Anna Spain Bradley has ascertained that the United Nations Charter and the UDHR assisted in the making of the new post-war world order. And she goes further to state that this post-world order maintained the racial superiority of Western states and the United Nations was to no avail to overcome this racial superiority.^[17] With the same rigour, Makau Mutua explains that the

human rights corpus is essentially European. This exclusivity and cultural specificity necessarily deny the concept of universality. The fact that human rights are violated in liberal democracies is of little consequence to my argument and does not distinguish the human rights corpus from the ideology of Western liberalism; rather, it emphasises the contradictions and imperfections of liberalism.^[18]

The United Nations, as noted elsewhere, is trapped within the prescriptive parameters of Western liberal democratic governance and of free market values, while human rights law has become the undergirding fundament to support the Western hegemonic post-war world structure.^[19] Human rights and its international institutions which carry its reputation, have too often carried and perpetuated the criticism of human rights universalism and the goal of entrenching Eurocentrism. The goal will be, in the future, to decolonise human rights through international institutions in a global effort of solidarity.

ConclusionEdit

Summary I
Summary II