Key traced back to the discussion during

Key
words

 

Human Rights

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Human rights are the rights a person has
simply because he or she is a human being. They are entitlements owed to a
person by virtue of creation and they are held by all persons equally,
universally, and forever. Article 1 of the Universal Declaration proclaims that
“all human beings are born free and equal in dignity and rights…” Human
rights are inalienable and indivisible, so you cannot lose these
rights any more than you can cease being a human being and you cannot be denied
a right because it is “less important” or “non-essential.”  

 

Treaty-based mechanisms

Treaty-based mechanisms are supervisory
mechanisms enshrined in legally binding human rights instruments or conventions
(IHRC 2010). Within the UN framework these mechanisms are often called ‘treaty
bodies’, for example the Human Rights Committee and the Committee on the Rights
of the Child.

 

The United Nations Charter

The United Nations Charter is a legally binding
pact upon the contracting States that was signed on 26 June 1945, in San Francisco,
at the conclusion of the United Nations Conference on International
Organization, and came into force on 24 October 19451.
The Statute of the International Court of Justice is an integral part of the
Charter

 

 

Introduction

One of the critical contagious As
international concern, human rights issues are among the most widely debated in
the world today. This is because the question of Human Rights is fundamental to
mankind2.
For a long time human rights have remained an issue strictly within national
jurisdiction, that is until the end of the 1940’s, when they became
internationalized. The roots of the human rights development are much older.
They can be traced back to the discussion during the 17th century of the social
contract, and in particular to the introduction of the notion of natural
rights, as distinct from the much older concept of natural law (Eide. A. 1999).

 

In 1899, at the International Peace
Conference that was organised in Hague, over 25 nations met for ten weeks to
codify the laws of war, both on land and at sea. In addition to this monumental
agreement, they also formulated instruments for peaceful crisis settlement and
war prevention. This formal statement on the desirability of international peace
laid the foundation for organisations such as the League of Nations. At the
Treaty of Versailles in 1919, the victors of the First World War convened to
negotiate a peace settlement. At this conference, the League, which later
become the United Nations (UN), was formed “to promote international
cooperation and to achieve peace and security” throughout the world.
Member states agreed not to go to war with one another without first submitting
complaints to any offending state; and for offending states who were not
members of the League, its members pledged not to go to war without an enquiry
to the state. The League was proposed by Woodrow Wilson, the president of the
United States of America (USA), but due to domestic pressure, the USA failed to
join the League. The League of Nations lasted only until 1946 and it dissolved
after failing to prevent the outbreak of World War II.

 

Internationalization of human rights
came after World War II in which cases of trauma and violence against humanity
were greatly exercised. World War II inspired the Allied Nations to try to establish
a peace-keeping organisation for the prevention of the recurrence of such
horrors. On June 12, 1941, a preliminary move toward the establishment of the
UN occurred with the signing of the Inter-Allied Declaration. Signed in London,
the Inter-Allied Declaration pledged that the Allied powers would “work
together, with other free peoples, both in war and in peace”.  The United Nations was founded to promote international
cooperation while at the same time focusing on the establishment and sustenance
of world peace and global security.  

 

The United Nations introduced the UN
Charter, soon after the first modern international legal agreement to focus on
human rights. There is a widespread agreement that the creation of the Charter,
the Universal Declaration of Human Rights, and the formation of the Human
Rights Council led to a significant collation of standards, rules, and
directives that serve as binding conventions in the international system. According
to (Johnson & Mack 2014), the UN Charter is a constitutional document
delineating the institutional structures and functions of the UN system.

 

The charter highlights the importance of
human rights and proposes the promotion and protection of human rights as the
key foundations of the United Nations. In 1948, the UN General Assembly adopted
the Universal Declaration of Human Rights and this later led to the formation
of the United Nations Commission on Human Rights (UNCHR), which was succeeded
by the Human Rights Council (UNHRC). UNHRC was established by the UN General
Assembly on March 15, 2006.   

                                                                                                     

The UN system for the protection of
human rights employs three different strategies for the protection and enforcement
of human rights. Firstly, it focuses on establishing and maintaining
international standards through its legally enforceable treaties and non
binding declarations, agreements and documents. Secondly it focuses on using
experts in varying fields of human rights and Special Rapporteurs for the
promotion and enforcement of human rights. Thirdly, the UN system provides a
voluntary fund for advisory services and technical assistance in the arena of
human rights.

 

Even though there is widespread
political acceptance of the idea of international protection of human rights,
many human rights violations have continued to occur around the world. The
failure of the United Nations systems to act promptly has resulted in numerous
tragedies in Bosnia, Rwanda, Somalia and former Yugoslavia (Eide 1999).

 

Therefore, basing on the above
background, this paper will assess the effectiveness of the charter and Treaty
mechanisms in protecting and protecting human rights. Assessment will be done
on the treaty bodies and UN organs including the International Bill of Rights;
the Commission on Human Rights (1946-2006); the Human Rights Council (2006);
the Vienna Conference (1993) and the Office of the UN High Commissioner for
Human Rights (1994).  

 

Charter-based
Mechanisms for Human Rights Protection and Promotion

The United Nations protect human rights
basing on two systems- Charter based and treaty-based mechanisms. The mechanisms
based on the UN Charter include: the Universal Declaration of Human Rights; the
Human Rights Council; and the Sub-Commission on the Promotion and Protection of
Human Rights.

 

The UN Charter promotes fundamental
freedoms, but also affirms that nations cannot interfere with domestic matters.
The utility of accountability measures, such as sanctions or force, and under
what conditions, is also debatable. At times, to secure an end to violent
conflict, negotiators choose not to hold human rights violators accountable.
Furthermore, developing nations are often incapable of protecting rights within
their borders, and the international community needs to bolster their capacity
to do so—especially in the wake of the Arab Spring.

 

The Universal Declaration of Human
Rights

The Universal Declaration of Human
Rights (UDHR) is one of the first international documents to be based on the
idea that rights are guaranteed to each human being. Susan
Waltz (2001) offers a detailed history into the creation of the UDHR and
suggests the document was formulated between specific elite nations (the West)
at the time. Stephen Marks (2006) supports Waltz’s idea as during the Cold War,
the terms “democracy”, “freedom”, and “human rights” often were used in
opposition to communism until the early 1990s.   

 

The UDHR was written with the aim of
establishing world peace by promoting human rights. Originally, the UDHR
brought together 58 distinct geographic, cultural and political backgrounds in
the formation of one universal document. Although the UDHR is not legally
binding it has created international human rights standards that are codified
in various international treaties. The UDHR consists of 30
articles specifying basic rights guaranteed to each individual. The first two
articles establish the document’s premise, that all humans share universal
equality, and that this equality is based on the fundamental dignity bestowed
upon humanity. This equality of human dignity translates to universality of
human rights. Included in the notion of universality is the idea that these
rights are automatically extended to everyone and may not be denied for any
reason or because of any action an individual may commit.

Article
1 states: “All human beings are born
equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.”

Article
2 continues: “Everyone is entitled
to all the rights and freedoms set forth in this Declaration, without
distinction of any kind such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.”

 

Human Rights Council

Composed of 47 member states, the Human
Rights Council is a UN body that directly deals with the area of human rights.
It is assisted by the Sub-Commission on the Promotion and Protection of Human
Rights, individual experts, representatives, and Special Rapporteurs. The HRC
also devotes much time to monitoring the implementation of the standards it has
set. In evaluating a situation, the Council may choose to monitor a situation
itself or may request for an outside body to do so.

 

The council was established by the
UN
General Assembly on March 15, 2006, as a successor to
United Nations Commission on Human Rights (UNCHR). The UNCHR had been criticised
for failing to act promptly on its members who were committing human rights
violations thus undermining the confidence, credibility, and authority of the
body.

 

When the Council was created it took on
all the existing functions, mandates and responsibilities of the CHR. There was
however additional burden on the Council as well, merely that the General
Assembly wanted the Council to review and improve the existing mechanisms
alongside rationalizing them where necessary. To some extent, the Council has
been successful.

Furthermore, unlike the Commission which
was meeting once a year, the Council meets three times a year which could not
be less than three weeks in duration. Even though, the proposal to make the
Council a standing body was rejected, a better substitute was put in its place,
merely that when the need arose, at a member’s request and with the help of one
third of its membership, the Council could meet again.

 

 

Sub-Commission on the Promotion and
Protection of Human Rights

The Sub-Commission was established by
the Commission on Human Rights at its first meeting in 1947, and was titled the
Sub-Commission on Prevention of Discrimination and Protection of Minorities
before a 1999 vote to change its name. It serves as the main subsidiary body to
the Human Rights Council.

 

The Sub-Commission is comprised of 26
member experts acting independently, without affiliation to their state of
origin, though they are elected by the Council proportionally according to
geographical population distribution. Presently, member experts are divided as
follows: seven from Africa, six from Western Europe and other States, five from
Asia, five from Latin America and three from Eastern Europe. Each member has
one alternate; half the members and their alternates are elected every two
years and each serves for a term of four years. 

 

 

Treaty
Mechanisms for Human Rights Protection and Promotion

International law takes precedence over
the domestic law of a state. Thus, when a nation signs a treaty, it is pledging
to adopt the provisions set forth within the treaty into the domestic law of a
state. In this way, treaty-based mechanisms vary from Charter-based ones.
Whereas the UN Charter’s mechanisms are at times either not legally binding or
require permission to be executed, treaties are backed by the norms regulating international
law and are therefore legally binding.

 

The UN currently has seven human rights
treaties: the International Covenant on Economic, Social and Cultural Rights
(ICESCR); the International Covenant on Civil and Political Rights (ICCPR); the
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD); the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW); the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on
the Rights of the Child (CRC); and the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families.

 

International Covenant on Economic,
Social and Cultural Rights (ICESCR)

This International Covenant on Economic,
Social and Cultural Rights (ICESCR) was adopted by the United Nations in 1966
and entered into force one decade later, in 1976. The amount of time that it
took the ICESCR to enter into force may be partly attributed to the Cold War,
in which Communist regimes, who advocated for economic, social and cultural
rights, stood squarely against Western capitalist democracies, who embraced the
civil and political rights codified in the International Covenant on Civil and
Political Rights.  The ICESCR defines a
broad set of rights related to the economic, social, and cultural elements of
life that states must provide to their citizens. Specific rights relate to:

·        
Housing

·        
Education

·        
Labour

·        
Environment

·        
Health

·        
Cultural rights (including language and
religion)

·        
Self-determination

The ISCESR also requires state parties
to submit reports on their implementation of the Covenant. Initially, the
Economic and Social Council (ECOSOC) of the UN was responsible for the review
of state parties’ reports. However, in 1985, the ECOSOC established the
Committee on Economic, Social, and Cultural Rights (“the Committee”) to assume
all monitoring functions of the implementation of the ICESCR. The Committee is
a group of 18 independent experts on economic, social, and cultural rights who
meet twice a year in Geneva. The Committee provides guidance for and also
monitors each state party’s compliance with the ICESCR by drafting general
comments on the scope of treaty obligations and conducting reviews of state
parties’ progress in implementing the treaty.

 

International Covenant on Civil and
Political Rights (ICCPR)

The International Covenant on Civil and
Political Rights, like the ICESCR, was adopted by the UN in 1966, but did not
enter into force until 1976. Also like the ICESCR, the ICCPR saw a great deal
of delay in its ratification due to the Cold War conflicts. ICCPR is one of the
two treaties that give legal force to the Universal Declaration of Human Rights,
the other being the ICESCR. ICCPR rights are fundamental to
enabling people to enjoy a broad range of human rights, including those
relating to:

·        
freedom from torture and other cruel,
inhuman or degrading treatment or punishment

·        
freedom from slavery and forced labour

·        
arrest, detention and imprisonment

·        
movement into, within and out of a state

·        
treatment by the judicial process

·        
privacy, home and family life

·        
freedom of thought, religion and
expression

·        
peaceful assembly

·        
freedom of association, including
through trade unions

·        
marriage and the rights of children

·        
political participation, and

·        
equality and non-discrimination.

 

 

 

International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD)

The International Convention on the
Elimination of All Forms of Racial Discrimination was adopted in 1965 and
entered into force in 1969. It seeks to eliminate all forms of racial
discriminations, and is monitored by the Committee on the Elimination of Racial
Discrimination. ICERD is monitored by the Committee on the Elimination of
Racial Discrimination. The Convention also includes an
individual complaints mechanism, effectively making it enforceable against its
parties. This has led to the development of a limited jurisprudence on the
interpretation and implementation of the Convention.

 

Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW)

The Convention on the Elimination of All
Forms of Discrimination against Women was adopted 1979 and entered into force
in 1981. It focuses on the areas of education, employment, health, marriage,
and the family as each area relates specifically to women. CEDAW calls for the
elimination of discrimination against women within society as well as the
adoption of legislation to further women’s rights. It is monitored by the Committee
on the Elimination of all forms of Discrimination against Women.

 

Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

The Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment was adopted in 1984 and
entered into force in1987. Among other provisions, it bans torture and rape as
weapons during wartime. It is monitored by the Committee against Torture. It I
monitored by the Committee against Torture.

 

Convention on the Rights of the Child
(CRC)

The Convention on the
Rights of the Child was adopted in November of 1989 and entered into force less
than a year later, in September of 1990. It is the UN’s most universally
ratified human rights convention. It protects children from economic and sexual
exploitation, among

1 http://www.un.org/en/sections/un-charter/un-charter-full-text/

2 Azinge,
E. (1992). Millstone decision on human rights.

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