The United Nations System for Protecting Human Rights

Volume IV

Dinah L. Shelton

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409443032
• eBook ISBN: 9781351880756
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The United Nations has been at the forefront of developing the international law of human rights for nearly seven decades. This volume brings together the leading research articles on the development of human rights law by the United Nations and also includes essays on issues relating to standard-setting, institutional evolution, and the creation of monitoring procedures.

Part I
The UN Charter and Human Rights

[1]
The Human Rights Law of the Charter

LOUIS B. SOHN*

I. The Charter of the United Nations

The Charter of the United Nations presents a radical departure from previous approaches to the international protection of human rights. For some 3,000 years the concern of the international community was restricted to the treatment of foreigners, and various procedures were devised for dealing with claims of a citizen of one country against another country for wrongs suffered in the territory of the second country, or due to violations of international law by its officials, citizens or inhabitants.¹ Only a hundred years ago, the international community expressed its interest in the fate of minorities in limited areas of Europe, and in the fate of people inhabiting certain parts of Africa.²

The League of Nations established special regimes for the protection of minorities in a few countries of Eastern and Southern Europe and the Middle East,³ and for the promotion of the well-being of inhabitants of territories under mandate,⁴ but suggestions to broaden the system to other countries received practically no support.⁵ The climate changed completely during the Second World War, when totalitarian regimes not only grossly violated human rights both at home and in occupied territories but also practiced wholesale extermination of groups of people because of their race, nationality or religion.⁶ Thus one of the basic goals of the United Nations became the preservation of "human rights and justice in their own lands as well as in other lands."⁷

While various drafts of an international bill of human rights were prepared during the war,⁸ the San Francisco Conference did not find time to discuss such a bill.⁹ Nevertheless, the Charter of the United Nations contains a variety of provisions on human rights. In the preamble to the Charter, the peoples of the United Nations have reaffirmed their "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," and their determination "to promote social progress and better standards of life in larger freedom." Article 1 of the Charter lists among the main purposes of the United Nations the achievement of international cooperation "in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." Similarly, in accordance with article 55 of the Charter, the United Nations has the duty to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion." In article 56, all Members of the United Nations "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55."

The Charter of the United Nations also contains significant grants of power to various organs of the United Nations. Thus, under article 13, the General Assembly has the duty to initiate studies and make recommendations for the purpose of "assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." Responsibility for the discharge of the functions set forth in chapter IX of the Charter (which includes articles 55 and 56 mentioned above) is vested by article 60 in the General Assembly and, "under the authority of the General Assembly, in the Economic and Social Council." In discharging this responsibility the Economic and Social Council may, according to article 62 (2), "make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all"; under article 68, the Council has an obligation to set up a commission "for the promotion of human rights," which is the only functional commission the establishment of which is expressly provided for by the Charter itself; and, under article 64, it may make arrangements with the Members of the United Nations to obtain reports on the steps which they have taken to give effect to the recommendations of the General Assembly and of the Council. Moreover, article 76 lists among the basic objectives of the United Nations trusteeship system the duty "to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion"; and article 87 provides for the supervision of the administration of trust territories through a system of reports, examination of petitions and periodic visits to these territories. Finally, in the declaration regarding other non-self-governing territories, which is embodied in article 73 of the Charter, the Administering States accept "as a sacred trust" the obligation to promote to the utmost "the well-being of the inhabitants of these territories," and to this end to ensure "their just treatment and their protection against abuses."

These provisions express clearly the obligations of all members and the powers of the organization in the field of human rights. While the provisions are general, nevertheless they have the force of positive international law and create basic duties which all members must fulfil in good faith. They must cooperate with the United Nations in promoting both universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. For this purpose, they have pledged themselves to take such joint and separate action as may be necessary. The General Assembly and, under the Assembly's authority, the Economic and Social Council are responsible, under article 60 of the Charter, for the discharge of the functions of the United Nations in this area, and for this purpose may initiate such studies and make such recommendations as they may deem necessary. Any refusal to participate in the United Nations program to promote the observance of human rights constitutes a violation of the Charter.¹⁰ The General Assembly may recommend, under article 14 of the Charter, "measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair Hie general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations." As the obligation to promote and encourage respect for human rights is set forth in the statement of purposes in article 1 of the Charter, the broad powers of the General Assembly under article 14 clearly apply in case of a violation of the duty to cooperate with the United Nations in this area.

The Charter is the cornerstone of international jus cogens, and its provisions prevail over all other international and domestic legislative acts.¹¹ Should a state conclude a treaty or issue a legislative act or regulation which constitutes a gross violation of human rights, such a treaty or act would be clearly invalid as contrary to a basic and overriding norm of the Charter, and any tribunal, international or domestic, which might be asked to apply such a treaty, act or regulation, should refuse to do so.¹² In addition, the provisions of the Charter and the continuous world wide debate about their implementation have brought a change in the moral and political climate, making it easier for public opinion to press for changes in old customs that are no longer consistent with the public policy enunciated in the Charter.¹³ Not only the letter of the Charter but also the spirit of its human rights provisions have thus had a profound influence on the changes in the human rights field which have occurred in many parts of the world since 1945.¹⁴

II. Universal Declaration of Human Rights

It has been contended that the provisions of the Charter are too general and cannot be applied to concrete situations, and that before the Charter can have practical consequences the human rights and fundamental freedoms mentioned in the Charter must be more specifically defined through an International Bill of Human Rights.¹⁵ The first step toward such a definition was taken when the General Assembly adopted in 1948 the Universal Declaration of Human Rights which provides an agreed upon list of such rights and freedoms. This list is a broad one, containing not only rights traditionally guaranteed by national constitutions but also such modern economic, social and cultural rights as the right to work and the right to education. Taking into account the realities of the situation and the variety of national circumstances, the Declaration did not impose a duty of immediate implementation but expressed the hope that this "common standard of achievement for all peoples and all nations" will be secured "by progressive measures, national and international."¹⁶

While there was at the beginning some disagreement on the legal effect of the Declaration,¹⁷ twenty years later the International Conference on Human Rights, held at Teheran in 1968, was able to proclaim unanimously that the Declaration "states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for all members of the international community."¹⁸ Today the Declaration not only constitutes an authoritative interpretation of the Charter obligations but also a binding instrument in its own right, representing the consensus of the international community on the human rights which each of its members must respect, promote and observe.

The practice of the United Nations confirms this conclusion.¹⁹ Even states which originally expressed doubts about the legal force of the Declaration have not hesitated to invoice it and to accuse other states of having violated their obligations under the ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I THE UN CHARTER AND HUMAN RIGHTS
• PART II UN LAW-MAKING ON HUMAN RIGHTS
• PART III THE CHARTER-BASED ORGANS, INSTITUTIONS AND PROCEDURES
• PART IV UN TREATY BODIES
• PART V HUMAN RIGHTS IN THE UN SPECIALIZED AGENCIES
• PART VI ASSESSMENTS AND CRITIQUES
• Name Index