United Nations Human Rights System

Author: Thamil Ananthavinayagan, Grażyna Baranowska

This is a text created by OpenRewi. We are dedicated to creating Open Educational Resources. Follow us on Twitter or sign up for our newsletter.

Comments, critique or questions regarding parts of this chapter?

Use our texts in accordance with our Instructions for Reuse.

Preliminary Remarks

The official first edition of this chapter has been published by Routledge. It can be purchased as a printed book or downloaded. This Wikibook serves as an open access backup of the official version. It should be noted that some chapters have not yet been adapted to match the official version. For authoritative reading, we therefore refer you to the version published by Routledge.

For each chapter, interactive exercises have been created which can be accessed on our website. Simply follow this link or scan the QR code to access the exercises.

Required knowledge:
Public International Law/History of International Law
Public International Law/Sources of International Law
Public International Law/Actors in International Law/International Organizations
Link

Learning objectives: Understanding XY.

Test your knowledge in our learning area.

A. Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is hailed as the first document of global reach that 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. It also set the stage for various other human rights documents to follow, such as the twin human rights convenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESCR).^[1] While the UDHR is a non-binding document, some of its provisions have passed into customary international law.

In the 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, an 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 origins. 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. Despite its rather elitist and hegemonic origins, the UDHR triggered a larger discussion and codification of human rights in different parts of the world, especially in the Global South amid its decolonization period.^[3] The evolving UN treaty bodies - which are expert bodies created to monitor implementation the core human rights treaties - were the result of the UDHR and will be discussed in the next section.

1.Nature and obligations of human rights

Human Rights are divided into positive and negative obligations. As mentioned at the beginning, civil and political rights predominantly invoke negative obligations upon the State to refrain from infringing on the exercise of human rights, while economic and social rights invoke positive obligations, which demand the State to act.^[4] Through it various human rights treaties, the UN human rights covers both positive and negative obligations.

2. The United Nations' approach to human rights protection

The United Nations General Assembly has given the Office of the High Commissioner for Human Rights (OHCHR) the responsibility of promoting and defending the enjoyment and complete realisation of all human rights by all people. To that end, the OHCHR is mandated by the United Nations General Assembly with its resolution 48/141 to:

"Promote and protect all human rights for all;

Recommend that bodies of the UN system improve the promotion and protection of all human rights;

Promote and protect the right to development;

Provide technical assistance to States for human rights activities;

Coordinate UN human rights education and public information programmes;

Work actively to remove obstacles to the realization of human rights and to prevent the continuation of human rights violations;

Engage in dialogue with Governments in order to secure respect for all human rights;

Enhance international cooperation for the promotion and protection of all human rights;

Coordinate human rights promotion and protection activities throughout the United Nations system;

Rationalize, adapt, strengthen and streamline the UN human rights machinery"

The approaches of the United Nations human rights machinery through the treaty-based and charter-based strands will be discussed in the following sections.

B. Treaty bodies & core international human rights treaties

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 UDHR triggered the creation of the prime human rights treaties, namely the ICESCR and the ICCPR. 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 body was created with a preventive mandate: the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The Subcommittee differs slightly from the other treaty bodies, as it created a two-pillar system of monitoring places of detention. Consequently, there are currently ten UN treaty bodies.

Human rights treaties, which led to setting up of treaty bodies (entry into force)	Treaty bodies
International Convention on the Elimination of All Forms of Racial Discrimination (1969)	Committee on the Elimination of Racial Discrimination
International Covenant on Economic, Social and Cultural Rights (1976)	Committee on Economic, Social and Cultural Rights
International Covenant on Civil and Political Rights (1976)	Human Rights Committee
Convention on the Elimination of All Forms of Discrimination against Women (1981)	Committee on the Elimination of Discrimination against Women
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987)	Committee against Torture
Convention on the Rights of the Child (1990)	Committee on the Rights of the Child
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (2003)	Committee on the Protection of the Rights of All Migrant Workers and Members of their Families
Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (2006)	Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
Convention on the Rights of Persons with Disabilities (2008)	Committee on the Rights of Persons with Disabilities
International Convention for the Protection of All Persons from Enforced Disappearance (2010)	Committee on Enforced Disappearances

1. Treaty bodies’ members

The members of treaty bodies 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) ^[6].

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). 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 competences

Treaty bodies are set up to monitor the respective 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 reports

States that have ratified a 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. Afterwards, they discuss with State representatives each state report and adopt a non-binding 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 by the state to the relevant treaty body (see for example the declarations to 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 ten 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 regarding their admissibility and substance. After reviewing the case, the committees issue non-binding “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.

c) Inter-state communications

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

inter-state communications regarding 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, as well as State of Palestine v Israel.

d) Adopting general comments

All treaty bodies adopt general comments, which explain how the respective 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 competences

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 system

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. The reason for this development and replacement was the perception of the United Nations Human Rights Commission as being increasingly politicised. 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.^[7]

However, throughout the 1990s and the 2000s, debate arose about the human rights records of a few commission members who were widely viewed as persistent human rights violators. The credibility of the commission was seriously impacted by these incidents.^[8]

The United Nations Human Rights Council was created on 15 March 2006 by the 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.^[9] 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 to 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.^[10]

D. Complementarity / competition? UN system and regional systems

In 1993, the then-Commission on Human Rights adopted several resolutions that encouraged the United Nations Secretary General to strengthen cooperation and knowledge-exchange with 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 that the Secretary-General is requested to continue fostering exchanges between the United Nations and regional intergovernmental organizations that deal with human rights, as called for in the medium-term plan for the years 1992–1997. The fact that the Centre for Human Rights will continue to host national, regional, and sub-regional workshops and training courses for government officials involved is also amplified.^[11] 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. Conclusion

The emergence of an international human rights infrastructure was crucial to address human rights violations at a global scale. 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.^[12]

The ability of State Parties to fulfill their responsibilities, the effectiveness of the treaty and charter bodies, and eventually the access to the system by rights holders—the system's true beneficiaries— is in a constant flux of development. More than ever, it is obvious that strengthening depends on choices being made by States parties, treaty bodies, and the Office of the High Commissioner within the bounds of their respective powers and in cooperation with one another. All must contribute in order for the system to work correctly. This specifically implies that individuals must make highly critical judgments. The United Nations has established a worldwide framework for the promotion and protection of human rights, generally in accordance with its Charter, legally enforceable treaties, and other initiatives aimed at promoting democracy and human rights globally. However, the human rights system still has a long way to go in a rapidly changing world.

Conclusion

All of these facts above do not include Women.