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Saturday, 30 November 2019

EFFECTIVENESS OF UNITED NATIONS (UN) HUMAN RIGHTS PROTECTION MECHANISM

The United Nations (UN) played an essential role by internationalizing the concept of human rights. The birth of the UN itself was a great milestone in the development of the modern human rights movement. As a buildup to the discussions that lead to the framing of the UN Charter, the world faced a number of human rights violations including racism, genocide, and oppression of civil and political rights. However, the task of promotion and enforcement of human rights the world over as will be shown is a difficult task.

1.0               Introduction

The United Nations (UN) played an essential role by internationalizing the concept of human rights. The birth of the UN itself was a great milestone in the development of the modern human rights movement. As a buildup to the discussions that lead to the framing of the UN Charter, the world faced a number of human rights violations including racism, genocide, and oppression of civil and political rights. However, the task of promotion and enforcement of human rights the world over as will be shown is a difficult task.

2.0               Enforcement of human right under the United Nations System

Under the UN system, human rights protection measures could be summed into treaty-based mechanism and charter based mechanisms.


2.1.                Charter-based mechanisms

These refer to those mechanisms and organs directly vested with powers to engage in human rights protection and promotion. The three main bodies in the United Nations with the responsibility of human right are the Security Council, General Assembly   and the United Nations Human Rights Commission established by the Economic and Social Council of the UN (ECOSOC), under Article 68 of the UN Charter.

The Security Council mandate is restricted to human rights situations which endanger International peace and security. This has covered the situation in S. Rhodesia, South Africa, Iraq, Somalia, and Haiti. The Security Council’s response to human situations has included mandatory economic and political sanctions and in limited circumstances (notably Somalia), the use of force.
The General Assembly has passed a number of Resolutions and Declarations on human rights issues and has held discussions on the more serious abuses. Of specific interest to Africa have been resolutions to set up both the United Nations Criminal Tribunal for Rwanda (UN-ICTR) and the United Nations Special Court for Sierra Leone (UN-SCSL) which have both been used to try gross human rights violations. 

Of the UN Bodies, the most important has been the Human Rights Commission which has drafted the more important Universal Treaties on human right and head complaints from individuals alleging widespread and serious human rights abuses which may then be dealt with confidentially by the Commissions, Sub-Commissions (Res 1503, 1970) or in a public forum by The commission itself (Res 1235, 1967).

Since the 1980s the Human Rights Commission has developed a thematic approach to human rights, establishing independent reporters or working group to examine particular problems in cases of involuntary disappearances, arbitrary executions, torture, religious intolerance and the problem of mercenaries.

2.2.                Criticisms of Charter Based Mechanisms

Charter-based mechanisms can be criticized for being too formalized and distant especially with regard to individual violation of rights. Additionally, it must be noted that the UN is very much a political organ. Thus where members of the security council holding veto powers deem it against there interest to intervene in a given issue, politics may stand in the way of genuine violations of human rights.

2.3.                Treaty Based Mechanisms

This form of human rights promotion and protection refers to the various human right conventions, their structures and the mechanisms employed by them.


2.4.                The International Covenant on Civil and Political Rights (ICCPR) 1966

The ICCPR established the Human Rights Committee, a body of independent experts, whose function is to examine reports from states submitted every five years. A public debate is then entered into between the state and the Committee, in which constructive dialogue is encouraged. The Committee’s reports are general in nature and it should not make specific a comment aimed at particular states.

There are two further (optional) methods of implementation under the covenant. Article 41 provides for state-on-state complaints to be made to the Committee, which will attempt to bring about the amicable solution, but only where both states have adopted this Article under the First Optional Protocol, adopted at the same time as the Covenant, the state may accept the possibility if the Individual petition.

Here the individual victim may bring a claim to the Committee which will consider the case on the basis of the written evidence alone. The Committee does not hold an oral hearing, as it is not a judicial body but makes reports which may be considered as non-binding recommendations. Where the state refuses to cooperate with the Committee may draw adverse conclusions as in Bleir v. Uruguay (1982) where it was alleged that the victim had disappeared while in the custody of the state. As Uruguay refused to co-operate and grant the Committee access to the relevant information, the Committee decided that it would consider such allegations as proved in the absence of contrary evidence.

2.5.                The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966

The ICESCR establishes an independent Committee to review the implementation of the Covenant. States make reports every five years after submitting an initial report. The Committee holds public meetings with the states concerned to discuss this implementation. The Committee makes comments of a general nature and does not make specific criticisms of individual states. There is no provision for state-on-state complaints or individual petition, reflecting the nature of human rights obligation under the Covenant.

2.6.                Criticisms of Treaty Based Mechanisms 

The nature of treaties is such that the state passes such competence in respect of its treatment of its population to the treat the regime as it deems fit. The mechanisms have traditionally involved compromise and have not been the most effective available. Indeed it may be argued that the real effect of human right treaties is not in the short term for the individual whose rights are violated, but a longer-term change in a state’s altitude to human rights within its jurisdiction.
States are legitimately able to avoid obligations under human rights treaties by making reservations to specific treat provisions, thus avoiding being bound by them or by derogating from the provisions of a treaty. Derogation enables the state to act in contravention of treaty obligations in special circumstances justifying that violation.

3.0               Conclusion

As a result of the failures of the UN system to adequately provide for protection and promotion of human rights, the need for regionally accentuated systems have taken precedence. However, the role of the UN system played in the formation of a universally accepted code for human rights cannot be overlooked.

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