Human Rights: International Protection, Monitoring, Enforcement

Janusz Symonides

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781351218443
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The series of volumes prepared by UNESCO for teaching human rights at higher education level comes to a successful conclusion with the publication of this volume. Human Rights: International Protection, Monitoring, Enforcement takes an institutional approach to the international protection of human rights, examining first the United Nations system, which may be seen as universal, and then analysing regional systems of protection. An indispensable source of information on the protection of human rights, the volume can also be employed as a practical guide to the use of existing procedures in the defence of human rights.

PART I
THE UNITED NATIONS SYSTEM

1 United Nations Mechanisms to Promote and Protect Human Rights

ZDZISLAW KEDZIA*

INTRODUCTION

Lessons drawn from the Second World War, especially those concerning the inability of the pre-war international community to prevent the plans of those whose actions tragically affected millions of lives, led political, social, and intellectual leaders to the conclusion that an effective protection of human rights was indispensable if future generations were to be spared a similar experience. It was also recognized that to achieve this end, human rights standards should not remain simply ‘law in books’ — just a beautiful promise. The rule, already in place at the domestic level, that appropriate organs and procedures are necessary to make them ‘law in action’ was also accepted at the international level. The critically evaluated weakness of the League of Nations in this regard was fairly helpful in outlining the place of human rights in the United Nations system. Though varying political interests and visions as to the role of the international community in the field of human rights made it impossible to go further, the United Nations Conference on International Organization (San Francisco, USA, 1945) gave expression to the principle of the internationalization of human rights in the Charter of the United Nations.¹ The subsequent months and years showed the internal dynamics of human rights, embodying the dreams of people, and brought amazing progress not only in standard-setting but also in creating organs and procedures to protect these rights. While looking at the results achieved in building this machinery, a human rights student might indeed be astonished that, despite the Cold War, despite diverging political and economic interests and despite cultural differences, such an impressive international human rights framework has been developed.

About 30 human rights treaties, as well as 50 declarations and resolutions — the latter sometimes referred to as ‘human rights soft law’ — have been adopted. The opinion is widely held that the ‘codification’ of human rights has by and large been completed; this does not mean, of course, that, in some cases, further drafting of human rights norms is, or will no longer be, necessary. Since about 1976 (the year when the International Covenants on Human Rights entered into force), the international community has, however, attached primary importance to the implementation of these rights. Initially, emphasis was placed on international monitoring of the observance of, and ex post measures addressing, violations of human rights. At that time, particular importance was attached to the activities of intergovernmental bodies, in particular the Commission on Human Rights, and the system of reporting by states to the established bodies about the fulfilment of their human rights commitments. Later, the communications procedures protecting individuals claiming to be victims of human rights violations or addressing mass and gross human rights violations² gained increasing importance. At present, especially since the 1993 World Conference on Human Rights in Vienna, the previous approach to the protection of human rights has been supplemented by the emphasis placed on the prevention of human rights violations and a proactive attitude to their protection (human rights advocacy). At the 54th session of the Commission on Human Rights, commemorating the 50th anniversary of the Universal Declaration of Human Rights, the Secretary-General of the United Nations appealed to the international community to make the twenty-first century the age of prevention.³ It is important to bear in mind this evolution in order to understand problems related to the effectiveness of international human rights mechanisms.

The consensus around human rights achieved at the 1993 World Conference in the post-Cold War spirit was reinforced by the United Nations Millennium Declaration in which all states declared to spare no effort to promote respect for all internationally recognized human rights and fundamental freedoms, including the right to development.⁴ The Vienna Declaration and Programme of Action adopted by the 1993 Conference recognized the necessity for a continuing adaptation of the United Nations human rights machinery to the current and future needs with a view, in particular, to improving its coordination, efficiency and effectiveness.⁵ This process launched at the General Assembly session in the same year by the the establishment of the post of the High Commissioner continues. The remarks below will refer to its essential elements.

Principles of the Machinery

The Vienna Declaration and Programme of Action reaffirms and/or develops the following principles which should guide the international human rights machinery:

●Human rights are universal. The Vienna Declaration and Programme of Action stresses that ‘The universal nature of these rights and freedoms is beyond question’ and continues ‘While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms’;⁶

●The promotion and protection of human rights constitute a legitimate concern of the international community;⁷

●Member states are obliged to develop international cooperation, including cooperation with the United Nations, to promote human right;⁸

●All human rights are indivisible, interdependent and interrelated. The Vienna Declaration and Programme of Action calls on the international community to treat them ‘globally in a fair and equal manner, on the same footing, and with the same emphasis’.⁹ It also emphasizes that ‘Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing’.¹⁰

Looking at these principles as a whole, one can observe that they produce a consistent body, the components of which are logically interconnected. However, this harmony is fragile and sensitive to a preferential emphasis placed on one or another principle. The debates in the Third Committee of the General Assembly and in the Commission on Human Rights concerning the reform of the human rights machinery should be consulted to discover related problems. Some of them will be highlighted below.

HUMAN RIGHTS MACHINERY

The Main Structure of the Machinery

The human rights machinery may be perceived in a narrow and broad sense. First, this notion embraces organs and procedures dealing explicitly and directly with human rights in the framework of the United Nations. This category includes:

1 intergovernmental organs established on the basis of the Charter of the United Nations (policy-making organs): the General Assembly, the Security Council, the Economic and Social Council, and the Commission on Human Rights. The Commission on the Status of Women and the Commission on Crime Prevention and Criminal Justice also address human rights issues within their respective mandates;

2 bodies established by human rights treaties;

3 reporting, communications, and investigating procedures established by policy-making organs and treaty-based bodies;

4 the parts of the United Nations Secretariat responsible for human rights activities, especially the United Nations High Commissioner for Human Rights. The Division for the Advancement of Women and the Centre for International Crime Prevention have also human rights responsibilities. The Office of the High Commissioner for Human Rights and the Division for the Advancement of Women adopt joint work plans.

In the broad sense, the notion ‘human rights machinery’ also includes those organs and procedures which have been established within the United Nations specialized agencies and programmes and deal, inter alia, with human rights or with specific aspects of human rights. Such organs and procedures exist in the framework of the International Labour Organization, UNESCO, the United Nations High Commissioner for Refugees, UNICEF, the United Nations Development Programme, and the United Nations Congresses on the Prevention of Crime and Treatment of Offenders. In this context, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Inter-national Criminal Court also need to be mentioned because of their competence to address the accountability of the perpetrators of human rights violations.

Policy-Making Bodies

The General Assembly

While the General Assembly has an overall competence to deal with all the matters covered by the Charter of the United Nations,¹¹ human rights issues are subject primarily to debate in its Third Committee (Social, Humanitarian and Cultural Committee). Nevertheless, decisions taken by other main committees of the General Assembly may also have an impact on this area. For instance, the Fifth (Administrative and Budgetary) Committee, while adopting the budget of the Organization, decides about an important part of the financial framework of United Nations human rights activities.¹² The Sixth Committee participates in the standard-setting process. The auxiliary bodies of the General Assembly frequently deal with human rights, thus contributing to development in this area. For example, the International Law Commission participates in standard-setting, and special committees of the General Assembly dealt, or are dealing with, decolonization, apartheid, the situation in Namibia and the rights of the Palestinian People.

The General Assembly adopted the Universal Declaration of Human Rights, both International Covenants on Human Rights, all other United Nations human rights treaties and all the major declarations concerning this field which, before adoption, were subject to drafting within the United Nations system, including the Committees of the General Assembly themselves. Yet drafting international instruments does not exhaust the activities of the General Assembly in the field of human rights. It also makes the most important decisions in this area. Among others, the General Assembly has convened both World Conferences on Human Rights (Tehran, 1968 and Vienna, 1993), established the post of the High Commissioner for Human Rights (1993), proclaimed United Nations Decades, such as the Decade for Human Rights Education (1995–2004), the Decades for Action to Combat Racism and Racial Discrimination (1973–1983, 1983–1993, 1993–2003), and the International Decade of the Rights of Indigenous People (1994–2004).

Matters considered by the General Assembly may be categorized in the following groups:

1 substantive human rights issues;

2 ‘human rights situations’ (this notion is used by the United Nations bodies to refer to situations of alleged human rights violations on a large scale);

3 dra...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Preface
• About the Contributors
• Part I The United Nations System
• Part II Regional Systems
• Part III Towards Further Strengthening of Human Rights Protection
• Index