Chapter 5: Protection of Human Rights in the Framework of the United Nations

Introduction

After the Second World War, the United Nations (UN) made the respect for human rights and fundamental freedoms one of the rocks that the new world organization was built upon. Preamble of the Charter speaks of reaffirming the “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”.

Article 1/3 of the UN Charter declares that one of the purposes of the UN is “to achieve 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”. There are six other references to human rights in the Charter, but it does not provide a definition of the term or enumerate these rights.

United Nations Charter Framework

The main pillars of the UN human rights machinery are the General Assembly, the human rights treaties’ monitoring bodies, the Human Rights Council (Commission on Human Rights before 2006), and the Secretariat.

The Economic and Social Council (ECOSOC), which was the other main organ beside the General Assembly, entrusted with the promotion of human rights lost most of its relevance when the Commission on Human Rights was abolished in 2006 and a new sub-organ, Human Rights Council was established under the General Assembly. On the other hand, the Secretariat’s relevance was heightened when the position of the High Commissioner for Human Rights was created in 1993 under the Secretariat.

Charter’s Framework

After determining the promotion of human rights as one of the organization’s purposes in Article 1/3, UN Charter gives place to human rights in its articles 13, 55, 56, 62, 68, and 76.

Article 13 gives the General Assembly the task of initiating studies and making recommendations forassisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 55 states that the UN will promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. According to Article 56, all Members promise to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

Articles 62 and 68 are under the Chapter X devoted to the ECOSOC. Article 62/2 provides that the ECOSOC may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. Article 68 is the basis of the Commission of Human Rights since it gives the ECOSOC the power to set up commissions for the promotion of human rights.

Article 76 is placed under Chapter XII titled “International Trusteeship System”. It makes the purposes of the UN as an organization provided in Article 1, also the purposes of the trusteeship system.

It can be discerned from the relevant articles that the Charter’s main concern was the discrimination based on race, sex, language or religion. This concern was also reflected in the Preamble in the formula of the “faith in the equal rights of men and women”.

The International Bill of Rights: Universal Declaration of Human Rights and International Covenants

General Assembly approved the ECOSOC’s proposal for the Commission on Human Rights to prepare an international bill of rights (GA Res. 43(I), Dec. 11,1946). Universal Declaration was adopted two years later, at 10 December 1948 by the General Assembly.

Since General Assembly cannot take binding decisions for the member states, but only recommendations according the Article 10 of the Charter, Declaration is not a binding document. On the other hand, some of it constitutes general principles of law. Its greatest significance is that it provides an authoritative guide to the interpretation of the relevant Charter provisions.

Moreover, it propounds the principles upon which binding conventions were based and rights which were going to be provided with binding power. In addition, many rights it presented have become customary international law and binding on all states. It is such an important document that the date it was accepted by the General Assembly is still celebrated as the Human Rights Day all over the world.

Rights covered by the Declaration are mostly of the first generation, namely civil and political rights. Besides them, it covers some second generation economic, social and cultural rights like right to leisure, right to a standard of living, right to education, etc. It was right to own property, which has caused extensive debates and abstention of the Soviet Union and its allies.

Other Conventions

The UN system includes fifteen conventions related to the protection of human rights in total, nine of them as ‘core’. Two of the nine are 1966 International Covenants. Others are below.

• 1965 International Convention on the Elimination of All Forms of Racial Discrimination
• 1979 Convention on the Elimination of All Forms of Discrimination against Women
• 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• 1989 Convention on the Rights of the Child
• 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
• 2006 Convention on the Rights of Persons with Disabilities
• 2006 International Convention for the Protection of All Persons from Enforced Disappearance

Main Bodies and Foremost Subsidiary Bodies

General Assembly has adopted and opened for signature international conventions prepared by the Commission on Human Rights and/or Human Rights Council. It also adopted declarations of it as well as Universal Declaration of Human Rights. Besides that, it created several subsidiary organs to help it in the domain of human rights. The General Assembly’s Third Committee (Social, Humanitarian and Cultural) examines a range of issues, including human rights questions.

Security Council has limited competence in this area. It decided that serious and repeated violations of human rights may constitute threats against peace under Article 39 and made this determination on several occasions, although it did not decide for sanctions on every occasion. Another aspect of human rights issues which concern the Security Council is in the context of the post-conflict UN peacebuilding support activities.

ECOSOC is the main organ which had principal responsibility for the work aimed promoting and protecting human rights. The Commission on Human Rights was established under the ECOSOC and member states were chosen by it. Although the Human Rights Council established under the General Assembly, the ECOSOC’s mandate working for the protection of human rights still continues.

The General Assembly and the ECOSOC make recommendations to member states of the UN and other actors. The Office of the High Commissioner for Human Rights interacts with and provides support to these bodies and mechanisms. The Security Council deals with grave human rights violations, especially in the conflict areas. The Secretary-General appoints special representatives against major human rights violations.

The Commission on Human Rights to the Human Rights Council

The Commission on Human Rights was an instructed subsidiary body elected by the ECOSOC. It has started its work together with the foundation of the UN. Article 68 stipulates that the Economic and Social Council shall set up commission for the promotion human rights. It was comprised of 53 member states elected by the ECOSOC for five years.

The Commission drafted the Covenants, and several other conventions. It prepared recommendations and declarations adopted both by the ECOSOC and the General Assembly. Its work has taken basically two forms: standard setting, and monitoring and enforcement.

The Commission on Human Rights was replaced with the Human Rights Council in 2006 in accordance to the General Assembly resolution 60/251. New Council was also moved to a higher position in the hierarchy of bodies and organs of the UN and established as a subsidiary organ of the General Assembly instead of the ECOSOC.

The Council took over the special procedures and complaint procedure mechanism of the defunct Commission as well. It meets three times a year, ten weeks in total compared to the six weeks of the Commission. It can also convene a special session.

The UN High Commissioner for Human Rights (UNHCHR)

UNHCHR was a post created in 1994 fulfilling a longhoped expectation. General Assembly Resolution 48/141 mandated this position in 1993. The appointment is made by the General Assembly for a four-year term.

Resolution 48/141 mandated that the new UNHCHR be the UN official with principal responsibility for UN human rights activities under the direction and authority of the Secretary- General, play an active role in preventing the continuation of human rights violations throughout the world, coordinate human rights promotion and protection activities throughout the UN system, and rationalize, adapt, strengthen and streamline the UN machinery in the field of human rights. High Commissioners carry out many key activities like developing standards, and conducting and coordinating visits and reports by expert mechanisms. The OHCHR prepares summaries of information about each state for the Universal Periodic Review procedure. There are 14 country offices with a mandate of human rights observation, protection, technical cooperation activities and public reporting.

Supervisory System of Conventions

Member states are supervised with the aim of human rights protection by using two main approaches. First is the mechanism brought by the conventions. Under all of the conventions, state parties are obliged to submit periodic reports. They also endow state parties with the right of complaining against another state party. They do not take instructions from UN bodies, but they report to the General Assembly and interact with the UN Secretariat.

Committees

The committees are charged with the responsibility to receive and review state reports. They can formulate general recommendations, observations, or comments.

There are three main procedures for bringing complaints of violations of the provisions of the human rights treaties before the human rights treaty bodies: individual communications; state-to-state complaints; and inquiries. These committees are:

• 1966 Human Rights Committee (CCPR),
• 1985 The Committee on Economic, Social and Cultural Rights (CESCR),
• 1965 The Committee on the Elimination of Racial Discrimination (CERD),
• 1979 The Committee on the Elimination of Discrimination Against Women (CEDAW),
• 1984 Committee Against Torture (CAT),
• 1989 Committee on the Rights of the Child (CRC),
• 2004 Committee on Migrant Workers (CMW),
• 2006 Committee on the Rights of Persons with Disabilities (CRPD),
• 2006 Committee on Enforced Disappearances (CED),
• 2007 The Subcommittee on Prevention of Torture (SPT).

Supervisory Power of the Committees

The Human Rights Committee is a body of 18 independent experts. Methods of regular reports and interstate complaint were stipulated in the original covenant. In the First Optional Protocol that was adopted together with the original covenant gives the Committee competence to examine individual complaints as well. Its competence is extended by the Second Optional Protocol that was adopted in 1989 to the issue of abolition of the death penalty. The Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues or its methods of work.

The Committee on Economic, Social and Cultural Rights (CESCR) (18 independent experts) was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions of the Covenant. In addition to the reporting procedure, the Optional Protocol which entered into force in 2013 provides the Committee competence to receive and consider communications from individuals claiming that their rights under the Covenant have been violated. The Committee may also, under certain circumstances, undertake inquiries on grave or systematic violations of any of the economic, social and cultural rights set forth in the Covenant, and consider inter-state complaints.

The Committee on the Elimination of Racial Discrimination (CERD), in addition to the reporting procedure, performs monitoring functions: the earlywarning procedure, the examination of inter-state complaints and the examination of individual complaints if related state party accepted this procedure by a declaration.

CEDAW Committee (23 experts): In accordance with the Optional Protocol to the Convention, the Committee is mandated to (1) receive communications from individuals or groups of individuals submitting claims of violations of rights protected under the Convention to the Committee and (2) initiate inquiries into situations of grave or systematic violations of women’s rights.

The Committee against Torture (CAT) is a body of 10 independent experts. In addition to the reporting procedure, the Convention establishes three other mechanisms through which the Committee performs its monitoring functions: the Committee may also consider individual complaints or communications from individuals if related state party accepted this procedure by a declaration, undertake inquiries, and consider inter-state complaints.

The Optional Protocol to the Convention, which entered into force in June 2006, creates the Subcommittee on Prevention of Torture (SPT). The SPT has a mandate to visit places where persons are deprived of their liberty in the States parties.

The Committee on the Rights of the Child (CRC) is a body of 18 Independent experts. It also monitors implementation of two Optional Protocols to the Convention, on involvement of children in armed conflict and on sale of children, child prostitution and child pornography. The Protocol entered into force in April 2014.

The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) is a body of 14 independent experts. Besides reporting, The Committee will also be able to consider individual complaints or communications once 10 States parties have accepted this procedure. It did not enter into the force yet.

The Committee on the Rights of Persons with Disabilities (CRPD) is a body of 18 independent experts. Other than reporting, it can receive individual complaints and undertake inquiries for the state parties who also become a party of the optional protocol adopted together with the original convention.

The Committee on Enforced Disappearances (CED) is a body of 10 independent experts. In addition to the reporting and inter-state complaint procedures, the Committee is able to receive individual communications if related state party made the necessary declaration under the convention.

Charter-Based Mechanisms

Charter-based supervisory mechanisms are based on the Article 1/3 of the UN Charter.

Special Procedures of the Commission/Council

Any member state can be examined under special procedures even though it has never been a party to any convention made under the auspice of the UN. They are created according to the implied powers of the UN whose purposes include the protection of human rights. Under implied powers, an international organization can create necessary means to achieve its purpose, even though a certain means is not mentioned in its founding treaty.

As the UNHCHR stated, “The Special Procedures of the Human Rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective”

Special procedures are either an individual or a working group composed of five members, one from each of the five United Nations regional groupings. They are appointed by the Human Rights Council and serve in their personal capacities. They are not United Nations staff members and do not receive financial remuneration. The independent status of the mandate-holders is crucial for them to be able to fulfil their functions in impartiality. A mandate-holder’s tenure in a given function, whether it is a thematic or country mandate, is limited to a maximum of six years.

The 1503 Procedure

The ECOSOC also created the 1235 Procedure, which should not be confused with the 1503 Procedure. The 1235 Procedure allowed the Commission on Human Rights to create an ad hoc working group of its own members to conduct investigations concerning systematic and grave human rights violations, and first of its kind as stated earlier. Nevertheless, that procedure used in a limited way, focusing only on the issues related to racial discrimination and colonialism.

In 1970, the ECOSOC allowed the Commission to examine communications and replies of governments if they appear to reveal a consistent pattern of gross violations of human rights. Commonly referred as 1503 procedure, it was considered as a major step forward. Governments concerned were somewhat compelled to do something about them, as no country wished to be put under spotlight for violating human rights.

The Universal Periodic Review

The Universal Periodic Review was set up in 2006 together with the establishment of the Human Rights Council. It is a State-driven process which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations.

The examination proceeds on a four-year cycle. All member states of the UN are obliged to submit their report for the examination of other member states. The final stage of it is a three-hour meeting.

The final outcome of the review is the pledges or commitments of the reviewed state to the recommendations made. Most important of them are the pledges to ratify certain conventions on human rights and to strengthen their cooperation with special procedures.