"How to Protect Human Rights?"
 
 
 
 

THE UN HUMAN RIGHTS SYSTEM 
 

text by

Ewa Skoczkowa, Maria Bal-Nowak

Copyright by the Helsinki Foundation for Human Rights

Warsaw, 1997
 

THE UN HUMAN RIGHTS SYSTEM 

Human rights and freedoms (often referred to as human rights) are a set of fundamental responsibilities of the public authorities to each individual subject to the State’s jurisdiction (rights), and limits placed on the interference of the public authorities in certain sphere's of the individual's life (freedoms). Both human rights and freedoms evolve from the inherent dignity of the human being.

International law defines the minimum catalogue of human rights which states (varied in culture and tradition) are obliged to respect. Within the legal systems of particular states, this common, supra-cultural, minimum catalogue has been expanded.

The turning point in the development of an international system of human rights protection came at the end of the Second World War. The victorious Allied states decided to create an international organization which would have as its main goals the role of maintaining world peace, preventing armed conflicts and creating an effective system of human rights protection.

The establishment of such an organization was announced in the Atlantic Charter in 1941. As a result of the efforts of the World War II victors, the United Nations was established in April 1945 in San Francisco.

I. The United Nations - its purposes, functions, structure

The purposes and principles of the United Nations are set forth in the United Nations Charter which came into force on October 24, 1945. One of the aims of the Charter is: 

"...To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion...." 

The Charter of the United Nations also provides for the 6 principle organs of the United Nations:

1. General Assembly

2. Security Council

3. Economic and Social Council (ECOSOC)

4. Trusteeship Council

5. International Court of Justice

6. Secretariat

1. All members of the United Nations take part in the General Assembly. Each member may have no more than five representatives. Referred to as the largest parliament in the world, the General Assembly has a session system. In between sessions the permanent committees meet: seven Main Committees, Procedural Commissions, Permanent Commissions and others.

2. The Security Council is an executive organ. It is made up of 15 members: 5 permanent members (USA, Great Britain, France, China and Russia) and 10 non-permanent members chosen every 2 years by the General Assembly.

3. The Economic and Social Council (ECOSOC) is an organ of special significance in the UN structure, particularly in economic, social, cultural, educational, health and human rights matters. It consists of 54 members who meet twice a year. ECOSOC carries out its functions in the form of numerous committees and commissions (i.e. Commission on Human Rights) and specialized agencies (i.e. International Labor Organization [ILO], World Health Organization [WHO]).

4. The Trusteeship Council is an organ in the UN structure that has, practically speaking, lost all sense and reason to function. It had been established by the Charter as the organ responsible for administering the non-independent areas within the International Trusteeship System (art. 75 UN Charter). The aims of the Trusteeship System have been fulfilled to such an extent that the Council now meets as and where occasion may require.

5. The International Court of Justice, based in the Hague, is the principal judicial organ of the United Nations. Its function is to decide on inter-state conflicts, give opinions on concrete topics, rulings on conflicts as well as clarify international legal norms. It is not authorized to judge international conflicts of a political nature.

6. The Secretariat is the administrative staff, nominated by the Secretary-General, that helps carry out the necessary administrative functions within the UN. The Secretary-General is appointed by the General Assembly for a 5-year term. As of January 1, 1997, the Secretary-General is Kofi Annan (Ghana).

The preamble of the UN Charter emphasizes the purpose of the UN to protect human rights:

"We the peoples of the United Nations determined ... to reaffirm faith in fundamental human rights, in the dignity and worth of the human person...."
 
 

The Economic and Social Council plays a specific role in the area of human rights. Article 68 of the UN Charter requires the Council to set up a commission to promote human rights. On February 16, 1946, the Commission on Human Rights was founded. It is made up of 54 members who serve for three-year terms. The Economic and Social Council gave the Commission the major task of drafting international human rights laws, including The Universal Declaration of Human Rights.

II. Fundamental documents concerning human rights drafted by the UN:

1. The Universal Declaration of Human Rights

Drafted by the Commission on Human Rights, The Universal Declaration of Human Rights was adopted by the General Assembly on December 10, 1948, Paris. The human rights standards defined in the Declaration comprise all human beings, regardless of their race, skin color, sex, language, religion, opinions, national or social origin, property, birth or other status.

Among the rights and freedoms named in the Universal Declaration of Human Rights are 

• the right to life, liberty and security of person
• equality before the law
• the right to freedom of movement and residence
• freedom from torture and cruel, inhuman or degrading treatment or punishment
• the right to seek asylum in other countries
• freedom of thought, conscience and religion
• the right to own property
• the right to education
• the right to work and to form and join trade unions 
• the right to an adequate standard of living
• the right to health care
• the right to freely participate in the cultural life of the community

The Universal Declaration of Human Rights was not legally binding; it was not an international treaty. It was an expression of the will of the majority of member states. "The Declaration was the first stage in creating an international system of human rights protection, and the catalogue of human rights was the starting point for further work..."

It is important to emphasize, above all, the moral significance of the Declaration. The Declaration breaks away from the positivist thought that a person has only the rights which are defined in a given state's legal order by stressing the inherent dignity which every human being possesses. The Declaration recognizes dignity as the source of all human rights and freedoms. Hence human rights and freedoms pertain to each and every one of us because they arise from the very nature of the human race - regardless of the state's laws.

The Declaration was also extremely significant politically. It is important to remember that it was the outcome of a compromise reached by authors of very different cultural and political concepts. Furthermore, the Declaration encompasses all of the continents with their various traditions, political systems, and different levels of technical and economic development. A consensus, however, was not reached in December 1948. South Africa, Saudi Arabia and the Soviet-bloc countries abstained from voting for the Declaration.

The Universal Declaration of Human Rights is still one of the main model documents concerning international human rights protection. Even though more specialized documents have been written (such as conventions concerning specific groups or concrete problems) since its birth, it is still an important reference point when evaluating work in this field and when formulating new documents.

The prominence of the Universal Declaration is emphasized by the fact that International Human Rights Day is celebrated on the date of its birth, December 10. 

2. International Human Rights Covenants

For the purpose of transforming the Universal Declaration of Human Rights into legally binding international treaties, The General Assembly of the United Nations adopted the following:

1 - The International Covenant on Civil and Political Rights (ICCPR)

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

These international human rights treaties are international agreements. The argument for adopting two separate treaties based on the Universal Declaration was that political rights and freedoms as well as personal freedoms should be guaranteed immediately upon ratification, whereas economic, cultural and social rights can only be realized progressively. This concept can be found in both Covenants by looking at the manner in which the range of states' responsibilities are defined. The ICCPR obliges the State-Party "...to respect and to ensure to all individuals ....the rights recognized in the present Covenant." (art. 2, para. 1) Whereas the State-Party to the ICESCR "undertakes to take steps...to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant..." (art. 2, para. 1). The differences in which the State-Parties' obligations are defined indicate that the ICCPR is legally binding immediately and unconditionally, whereas the ICESCR orders the State-Party to undertake action in a specific direction. The ICESCR only obliges the State-Party to administer a certain policy.

The Optional Protocol supplements the ICCPR by giving the individual the opportunity to submit a complaint to a UN organ in the case of violations of rights defined in the International Covenant on Civil and Political Rights.

Poland ratified both Covenants on March 3, 1977 while refraining from ratification of the Optional Protocol to the ICCPR. Only since February 10, 1992 have individuals subject to Poland's jurisdiction had the right to submit an individual complaint against the Polish authorities to the UN.

By ratifying the International Covenant on Civil and Political Rights the State-Party agrees to respect and ensure the following rights and freedoms (among others):

• the right to life (art. 6)
• freedom from torture and cruel, inhuman or degrading treatment or punishment (art. 7)
• freedom from slavery and servitude (art. 8)
• freedom from forced or compulsory labor (art. 8, para. 3)
• the right to liberty and security of person (art. 9 & 11)
• the right to liberty of movement and freedom to choose his residence (art. 12)
• the right of legal aliens to protection from expulsion/deportation (art. 13)
• the right to a fair and public trial (art. 14)
• criminal law can not be retroactive (art. 15)
• the right to recognition as a person before the law (art. 16)
• the right to privacy (art. 17)
• freedom of thought, conscience and religion (art. 18)
• freedom of expression (art. 19 & 20)
• freedom of assembly and association (art. 20 & 21)
• the right to marry and to found a family (art. 23)
• the right of the child to such measures of protection as are required by his status as a minor (art. 24)
• the right to take part in the conduct of public affairs, including access to public service in his country (art. 25)
• freedom from discrimination (art. 26)
• rights of persons belonging to ethnic, religious and linguistic minorities (art. 27)

State-Parties to the International Covenant on Economic, Social and Cultural Rights are obliged to undertake the appropriate steps to achieve the realization of the following rights (among others):

• the right to work (art. 6)
• the right to form and join trade unions (art. 8)
• the right to social security & social insurance (art. 9)
• protection of the family (art. 10) 
• the right to an adequate standard of living (art. 11)
• the right to medical care (art. 12)
• the right to education (art. 13)
• the right to take part in cultural life and the right to enjoy the benefits of scientific progress and to benefit from the protection of the interests resulting from any scientific, artistic or literary production of which he is the author (art. 15)

The Universal Declaration of Human Rights, 

the two International Human Rights Covenants, and the Optional Protocol 

from the

International Bill of Rights

2a. The Human Rights Committee

For the purpose of ensuring that the rights and freedoms in the International Covenant on Civil and Political Rights (and only this Covenant) are respected, the Human Rights Committee was established (art. 28). 

The Committee is made up of 18 independent, elected experts who serve in their personal capacity (not as state representatives) for four-year terms. The Committee is based on Geneva.

The main functions of the Committee are:

• to review reports submitted by State-Parties
• to consider communications submitted by one state party against another
• to consider individual communications
• Periodic Reports

Article 40, para. 1 of the ICCPR requires states to "submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights".

The reports consist of two parts: general and specific. The general section should include information, including statistical data, concerning the general framework within which the civil and political rights recognized by the ICCPR are protected in the reporting state. The specific part should contain information regarding each of the articles as well as describe the practices of the courts and administrative organs which show to what degree the rights are actually being enjoyed. The Committee examines the reports and prepares a study for the UN Secretary General. Preparing the study, referred to officially as "General Comments", the Committee takes into consideration the information and comments on the government report submitted by non-governmental organizations. The Committee's general comments on the state reports are made public.

• State Communications

The ICCPR (art. 41) provides for the filing of a communication of one State Party against another if it has reason to believe that a State Party has not complied with the ICCPR. The communication is sent to the State Party that is accused of not fulfilling its obligations under the Covenant. If the matter is not resolved by the two states, either state has the right to refer it to the Human Rights Committee. 

• Individual Communications

The Optional Protocol to the ICCPR (art. 2) makes it possible for individuals whose rights listed in the ICCPR were violated, and who have exhausted all possible domestic remedies, to submit a complaint to the Committee.

Persons planning to submit a complaint to the Human Rights Committee should meet the following conditions based on articles 1,2,3 & 5(2) of the Optional Protocol and on the Committee's Statute:

a) The communication must concern the violation of a right, or rights, included in the International Covenant on Civil and Political Rights

b) The communication should be submitted by the victim of the violation or by the victim's representative (meaning a person authorized to act on behalf of the victim), however, the Committee may decide to consider a communication submitted by someone else if there is reason to believe that the victim has no way of acting on his own, or of authorizing someone to act on his behalf

c) The state against which the complaint is being submitted must be a party to the Optional Protocol

d) The complaint can only concern a person, or persons, who are subject to the jurisdiction of the state against which the complaint is being submitted

e) The alleged violations can only concern events that occurred on or after the day on which the Protocol came into force in the given state. An exception would be made if the alleged violations began before that date and: either are still taking place after the Protocol came into force or if the violations had taken place before that date, however, the consequences of the violations arose after the Protocol had come into force.

f) The individual must have exhausted all available domestic remedies, unless the situation is such that the application of these remedies is unreasonably prolonged.

g) If the same complaint is being considered by another international organ (i.e. the Inter-American Commission on Human Rights or the European Commission on Human Rights).

There are three stages to the examination procedure of the individual complaint:

1 - registration of the complaint

2 - examination of the admissibility of the complaint

3 - consideration of the communication on the merits

When the Human Rights Committee declares a communication subject to consideration on the merits, it must decide whether or not a violation of the rights in the International Covenant on Civil and Political Rights occurred. The Committee then formulates its "views" which are published in yearly UN documents. The Committee has no power to sanction or means of forcing the states to comply with its views. The official published views of the Committee are often the only sanctioning faced by the state violating the rights set forth in the ICCPR. The Committee usually informs the given state of its obligations to provide immediate and effective remedies to the victim and to take immediate steps to ensure strict observance of the provisions (i.e. to pay compensation to the victim and to amend particular pieces of legislation).

3. Specialized UN Conventions Concerning Human Rights 

Human rights protection in the UN developed in two directions. On the one hand, general documents were formulated; on the other hand, more specialized treaties that aim to expand on and specify the general principles within the Covenants were drawn up. There is no direct relation between the Covenants and specialized conventions - a state can ratify a specialized convention without being a party to the Covenants and vice versa (ratification of the Covenants does not oblige the state-party to ratify the specialized treaties).

Up until now, more than 60 specialized treaties have been adopted in the UN. Some of them are as follows:

1 - conventions which aim to protect certain categories of people: refugees, stateless persons, migrant workers and their families, women, children, families

2 - conventions on the elimination of discrimination due to race and sex and against discrimination in education and employment

3 - specialized conventions regarding: genocide, war crimes, crimes against humanity, slavery, forced labor, asylum, torture, freedom of information, privacy, and social welfare

It is often said that the foundation for the UN human rights system is made up of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the following specialized conventions:

• The Convention relating to the Status of Refugees, adopted in Geneva in 1951 along with the Protocol relating to the Status of Refugees adopted in New York in 1967. 

These documents set forth the type of shelter and protection that State-Parties guarantee refugees (the term "refugee" is defined in the treaties). The specialized agency dealing with this matter is the Office of the United Nations High Commissioner for Refugees (UNHCR). The states that are parties to the Geneva Convention and New York Protocol are obliged to cooperate with the UNHCR.

• The Convention on the Elimination of All Forms of Racial Discrimination, adopted in 1965.

The State-Parties to this convention are bound to eliminate racial discrimination and to penalize the dissemination of ideas based on racial superiority or hatred. The Committee on the Elimination of Racial Discrimination has the task of monitoring State-Parties’ compliance with the Convention.

• The Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979

This convention obliges its State-Parties to undertake actions meant to eliminate discrimination against women in political and public life, education, employment, health care, marriage, family, as well as to adopt appropriate legislative measures prohibiting discrimination. For the purpose of monitoring the progress made in complying with the Convention's provisions, the Committee on the Elimination of Discrimination against Women was established. 

• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984. 

This convention requires that the State-Parties prevent all acts of torture and that they ensure that all acts of torture are offenses in their criminal law code. The Convention calls for a Committee against Torture to monitor compliance with the treaty.

• The Convention on the Rights of the Child, adopted in 1989. 

This convention obliges the State-Parties to respect and ensure the rights of children. The Committee on the Rights of the Child is the treaty-based organ created to monitor compliance with the Convention.

International law in the area of human rights is superior to domestic law of a State-Party. These treaties demand that the State-Parties respect and ensure the said rights to all persons in their jurisdiction. Since the provisions of the treaties are applied within the states that are parties to them, it is the domestic laws of the states that regulate the relations between the individuals and the state. For example, by ratifying the Convention on the Rights of the Child the state is taking on the responsibility of guaranteeing children in its jurisdiction the level of protection that is defined in the Convention. Therefore, in order for the principles in the Human Rights Covenants and the specialized conventions to be realized, their provisions must be incorporated into domestic legislation. 

II. Other Human Rights Protection Mechanisms within the United Nations

In the mid-seventies ECOSOC along with the Commission on Human Rights took steps to expand the Commission's sphere of activity. The Commission was given a redefined mandate - it was given the power to respond to human rights violations wherever they may occur - on a global scale. The monitoring can be carried out by the Commission itself, or at its request according to permanent procedures or special procedures depending on the need.

1. Permanent procedures within the mandate of the Commission:

1503 Procedure - is a confidential procedure named after the number of the ECOSOC Resolution 1503 under which it was established. It is activated by a communication to the Commission about a consistent pattern of gross human rights violations such as: genocide, apartheid, racial or ethnic discrimination, torture, imprisonment without trial on a mass scale, forced mass migrations. The communication cannot be anonymous and does not require the permission of the state concerned. During the discussion with the state concerned the Commission decides on the recourse it will take.

If a state which was the subject of the 1503 Procedure continues to violate human rights on a mass scale and is not cooperating with the Commission, the Commission can turn to the harsher 1235 Procedure in order to put a stop to the violations. The 1235 Procedure authorizes the Commission to engage in public debate on the topic of the government's human rights violations.

1235 Procedure - is a procedure on the basis of which the Commission holds an annual public debate on gross human rights violations committed by a given state. If the situation still does not improve, one possible outcome can be the adoption of an ECOSOC resolution condemning the authorities of a given state for the violations. Such a resolution severely effects the prestige of the ruling authorities.

In addition to resolutions 1503 and 1235 the Commission has three types of special procedures.

2. Special Procedures:

• fact-finding missions: the study of the state of human rights in a given state by an independent expert or group of experts for the purpose of gathering information vital to the 1503 or 1235 procedures. An example of such an action is Tadeusz Mazowiecki in the former Yugoslavia from August 1992 to July 1995. During this time he prepared 18 reports on human rights violations.
• thematic mechanisms allow for the investigation of problems caused by human rights violations on a global scale (in an area covering more than one state). Working Groups and/or Special Rapporteurs are chosen for these purposes. Over time the number of Special Rapporteurs chosen for permanent investigations of the observation of particular human rights has grown. Some such Special Rapporteurs, for example, the Special Rapporteur on Torture or other forms of Inhuman or Degrading Treatment or Punishment are effective and act without delay, a feature uncommon to international organizations.
• advisory services which assist the states in bringing stability to the state of human rights observance. It is an advisory procedure that is based on organizing "aid" in the area of education, information and ensuring material and institutional observance of human rights.

The system of human rights protection within the United Nations is universal, which means that it encompasses the whole world, as opposed to regional systems such as the European System developed by the Council of Europe, or national systems of human rights protection. 

The UN system, from the perspective of international law, is for the most part based on treaties which are legally binding for the member states. It is also based on global activities promoting human rights culture and democracy.

Working on a global scale and promoting even a small catalogue of fundamental principles for diverse cultures such as for Europe, Islamic nations, South America and Africa is extremely difficult. This explains the caution taken in defining the rights and in building a procedure of monitoring the compliance with the treaties. Because it is easier to protect common principles in states that have a common culture, it was possible to give the European Convention for the Protection of Human Rights and Freedoms very strong mechanisms to ensure observance of the rights listed in it. 

This, however, does not change the fact that at least the fundamental human rights and freedoms are considered universal, meaning that they must be protected in all states regardless of their history or their political system.

In addition to the European system of human rights protection which is based on the European Convention for the Protection of Human Rights and Freedoms and many more conventions adopted by the Council of Europe, there are two more regional systems: the American system which encompasses the Latin American States, and the African system. Asia has not yet formed a regional system of human rights protection.