Human Right
Many of
the basic ideas that animated the human rights movement developed
in the aftermath of the Second World War and
the atrocities of The Holocaust, culminating in the adoption of the Universal
Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. The
ancient world did not possess the concept of universal human rights.[5] Ancient
societies had "elaborate systems of duties... conceptions of justice,
political legitimacy, and human flourishing that sought to realize human
dignity, flourishing, or well-being entirely independent of human
rights".[6] The modern concept of human rights developed during the early Modern period, alongside the European
secularization of Judeo-Christian ethics.[7]
The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the
medieval Natural law tradition that became prominent during
the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently
in the political discourse of the American Revolution and the French Revolution.
From this foundation, the modern human
rights arguments emerged over the latter half of the twentieth century. Gelling
as social activism and political rhetoric in many nations put it high on the
world agenda.
All human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.
Article
1 of the United Nations Universal Declaration of Human Rights (UDHR)
All human rights are indivisible, whether
they are civil and political rights, such as the right to life, equality before
the law and freedom of expression; economic, social and cultural rights, such
as the rights to work, social security and education, or collective rights,
such as the rights to development and self-determination, are indivisible,
interrelated and interdependent. The improvement of one right facilitates advancement
of the others. Likewise, the deprivation of one right adversely affects the
others.
History of concept
The
modern sense of human rights can be traced to Renaissance Europe and the Protestant Reformation, alongside the disappearance of
the feudal authoritarianism and religious
conservativism that dominated the Middle Ages. Human rights were defined as a result of
European scholars attempting to form a "secularized version of
Judeo-Christian ethics".[7] Although ideas of rights and liberty have
existed in some form for much of human history, they do not resemble the modern
conception of human rights. According to Jack Donnelly, in the ancient world,
"traditional societies typically have had elaborate systems of duties...
conceptions of justice, political legitimacy, and human flourishing that sought
to realize human dignity, flourishing, or well-being entirely independent of
human rights. These institutions and practices are alternative to, rather than
different formulations of, human rights".[6] The most commonly held view
is that concept of human rights evolved in the West, and that while earlier
cultures had important ethical concepts, they generally lacked a concept of
human rights. For example, McIntyre argues there is no word for
"right" in any language before 1400.[5] Medieval charters of liberty
such as the English Magna Carta were
not charters of human rights, rather they were the foundation [10] and
constituted a form of limited political and legal agreement to address specific
political circumstances, in the case of Magna Carta later being recognised in
the course of early modern debates about rights.[11] One of the oldest records
of human rights is the statute of Kalisz (1264),
giving privileges to the Jewish minority in the Kingdom of Poland such as protection from
discrimination and hate speech.[12] The basis of most modern legal
interpretations of human rights can be traced back to recent European history.
The Twelve Articles (1525) are considered to be the
first record of human rights in Europe. They were part of the peasants' demands
raised towards the Swabian League in
the German Peasants' War in Germany.
The
earliest conceptualization of human rights is credited to ideas about natural rightsemanating from natural law. In particular, the issue of universal
rights was introduced by the examination of the rights of indigenous peoples by
Spanish clerics, such as Francisco de Vitoria and Bartolomé de Las Casas. In the Valladolid debate, Juan Ginés de Sepúlveda, who maintained an Aristotelian
view of humanity as divided into classes of different worth, argued with Las
Casas, who argued in favor of equal rights to freedom of slavery for all humans
regardless of race or religion. In Britain in 1683, the English Bill of Rights (or "An Act Declaring the
Rights and Liberties of the Subject and Settling the Succession of the
Crown") and the Scottish Claim of Right each
made illegal a range of oppressive governmental actions. Two major revolutions
occurred during the 18th century, in the United States (1776) and in France
(1789), leading to the adoption of the United States Declaration of Independence and the
French Declaration of the Rights of Man and of the Citizen respectively,
both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded
into law a number of fundamental civil rightsand civil freedoms.
Declaration
of the Rights of Man and of the Citizen approved by the National
Assembly of France, August 26, 1789.
We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness
—United States Declaration of
Independence, 1776
These
were followed by developments in philosophy of human rights by philosophers
such as Thomas Paine, John Stuart Mill and G.W.F. Hegel during the 18th and 19th centuries.
The term human rights probably came into use some time between Paine's The
Rights of Man and William Lloyd Garrison's 1831
writings in The Liberator, in
which he stated that he was trying to enlist his readers in "the great
cause of human rights".
In the 19th century, human
rights became a central concern over the issue of slavery. A number of
reformers, such as William Wilberforce in Britain, worked towards theabolition
of slavery. This was achieved in the British Empire by the Slave Trade Act 1807
and the Slavery Abolition Act 1833. In the United States, all the northern
states had abolished the institution of slavery between 1777 and 1804, although
southern states clung tightly to the "peculiar institution". Conflict
and debates over the expansion of slavery to new territories constituted one of
the reasons for the southern states' secession and the American Civil War.
During the reconstruction period immediately following the war, several
amendments to the United States Constitution were made. These included the 13th
amendment, banning slavery, the 14th amendment, assuring full citizenship and
civil rights to all people born in the United States, and the 15th amendment,
guaranteeing African Americans the right to vote.
Many groups and movements have
achieved profound social changes over the course of the 20th century in the
name of human rights. In Europe and North America, labour unions brought about
laws granting workers the right to strike, establishing minimum work conditions
and forbidding or regulating child labor. The women's rights movement succeeded
in gaining for many women the right to vote. National liberation movements in
many countries succeeded in driving out colonial powers. One of the most
influential was Mahatma Gandhi's movement to free his native India from British
rule. Movements by long-oppressed racial and religious minorities succeeded in
many parts of the world, among them the African American Civil Rights Movement,
and more recent diverse identity politics movements, on behalf of women and
minorities in the United States.
The establishment of the
International Committee of the Red Cross, the 1864 Lieber Code and the first of
the Geneva Conventions in 1864 laid the foundations of International
humanitarian law, to be further developed following the two World Wars.
The World Wars, and the huge
losses of life and gross abuses of human rights that took place during them,
were a driving force behind the development of modern human rights instruments.
The League of Nations was established in 1919 at the negotiations over the
Treaty of Versailles following the end of World War I. The League's goals
included disarmament, preventing war through collective security, settling
disputes between countries through negotiation and diplomacy, and improving
global welfare. Enshrined in its charter was a mandate to promote many of the
rights later included in the Universal Declaration of Human Rights.
At the 1945 Yalta Conference,
the Allied Powers agreed to create a new body to supplant the League's role;
this was to be the United Nations. The United Nations has played an important
role in international human-rights law since its creation. Following the World
Wars, the United Nations and its members developed much of the discourse and
the bodies of law that now make up international humanitarian law and
international human rights law.
Main article: Philosophy of human rights
The philosophy of human rights attempts to examine the underlying basis of the
concept of human rights and critically looks at its content and justification.
Several theoretical approaches have been advanced to explain how and why human
rights have become a part of social expectations.
One of the oldest Western philosophies of
human rights is that they are a product of a natural law, stemming from
different philosophical or religious grounds. Other theories hold that human
rights codify moral behavior which is a human social product developed by a
process of biological and social evolution (associated with Hume). Human rights
are also described as a sociological pattern of rule setting (as in the sociological
theory of law and the work of Weber). These approaches include the notion that
individuals in a society accept rules from legitimate authority in exchange for
security and economic advantage (as in Rawls) – a social contract. The two
theories that dominate contemporary human rights discussion are the interest
theory and the will theory. Interest theory argues that the principal function
of human rights is to protect and promote certain essential human interests,
while will theory attempts to establish the validity of human rights based on
the unique human capacity for freedom.
Criticisms
The strong claims made by human rights to
universality have led to persistent criticism. Philosophers who have criticized
the concept of human rights include Jeremy Bentham,Edmund Burke, Friedrich
Nietzsche and Karl Marx. Political philosophy professor Charles Blattberg
argues that discussion of human rights, being abstract, demotivates people from
upholding the values that rights are meant to affirm.[15] The Internet
Encyclopedia of Philosophy gives particular attention to two types of
criticisms: the one questioning universality of human rights and the one
denying them objective ground.[16] Alain Pellet, an international law scholar,
criticizes "human rightism" approach as denying the principle of
sovereignty and claiming a special place for human rights among the branches of
international law;[17] Alain de Benoist questions human rights premises of
human equality.[18] David Kennedy had listed pragmatic worries and polemical
charges concerning human rights in 2002 in Harvard Human Rights Journal.
Classification
Human rights can be classified and
organized in a number of different ways, at an international level the most
common categorisation of human rights has been to split them into civil and
political rights, and economic, social and cultural rights.
Civil and political rights are enshrined in
articles 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the
International Covenant on Civil and Political Rights(ICCPR). Economic, social
and cultural rights are enshrined in articles 22 to 28 of the Universal
Declaration of Human Rights (UDHR) and in the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
Indivisibility
A. UDHR included both economic, social and
cultural rights and civil and political rights because it was based on the
principle that the different rights could only successfully exist in
combination:
The
ideal of free human beings enjoying civil and political freedom and freedom
from fear and want can only be achieved if conditions are created whereby
everyone may enjoy his civil and political rights, as well as his social,
economic and cultural rights.
—International Covenant on Civil and
Political Rights and the International Covenant on Economic Social and Cultural
Rights, 1966
This is held to be true because without
civil and political rights the public cannot assert their economic, social and
cultural rights. Similarly, without livelihoods and a working society, the public
cannot assert or make use of civil or political rights (known as the full belly
thesis).
The indivisibility and interdependence of
all human rights has been confirmed by the 1993 Vienna Declaration and
Programme of Action:
All
human rights are universal, indivisible and interdependent and related. The
international community must treat human rights globally in a fair and equal
manner, on the same footing, and with the same emphasis.
—Vienna Declaration and Programme of Action,
World Conference on Human Rights, 1993
This statement was again endorsed at the
2005 World Summit in New York (paragraph 121).
Although accepted by the signatories to the
UDHR, most do not in practice give equal weight to the different types of
rights. Some Western cultures have often given priority to civil and political
rights, sometimes at the expense of economic and social rights such as the
right to work, to education, health and housing. Similarly the ex Soviet bloc
countries and Asian countries have tended to give priority to economic, social
and cultural rights, but have often failed to provide civil and political
rights.
Categorization
Opponents of the indivisibility of human
rights argue that economic, social and cultural rights are fundamentally
different from civil and political rights and require completely different
approaches. Economic, social and cultural rights are argued to be:
positive,
meaning that they require active provision of entitlements by the state (as
opposed to the state being required only to prevent the breach of rights)
resource-intensive,
meaning that they are expensive and difficult to provide
progressive,
meaning that they will take significant time to implement
vague, meaning they cannot be
quantitatively measured, and whether they are adequately provided or not is
difficult to judge
ideologically
divisive/political, meaning that there is no consensus on what should and
shouldn't be provided as a right
socialist,
as opposed to capitalist
non-justiciable,
meaning that their provision, or the breach of them, cannot be judged in a
court of law
aspirations
or goals, as opposed to real 'legal' rights
Similarly civil and political rights are
categorized as:
negative,
meaning the state can protect them simply by taking no action
cost-free
non-ideological/non-political
capitalist
justiciable
justiciable
real
'legal' rights
Olivia Ball and Paul Gready argue that for
both civil and political rights and economic, social and cultural rights, it is
easy to find examples which do not fit into the above categorisation. Among
several others, they highlight the fact that maintaining a judicial system, a
fundamental requirement of the civil right to due process before the law and
other rights relating to judicial process, is positive, resource-intensive,
progressive and vague, while the social right to housing is precise,
justiciable and can be a real 'legal' right.
Three generations
Another categorization, offered by Karel
Vasak, is that there are three generations of human rights: first-generation
civil and political rights (right to life and political participation),
second-generation economic, social and cultural rights (right to subsistence)
and third-generation solidarity rights (right to peace, right to clean
environment). Out of these generations, the third generation is the most
debated and lacks both legal and political recognition. This categorisation is
at odds with the indivisibility of rights, as it implicitly states that some
rights can exist without others. Prioritisation of rights for pragmatic reasons
is however a widely accepted necessity. Human rights expertPhilip Alston
argues:
If
every possible human rights element is deemed to be essential or necessary,
then nothing will be treated as though it is truly important.
He, and others, urge caution with
prioritisation of rights:
[T]he
call for prioritizing is not to suggest that any obvious violations of rights
can be ignored.
—Philip Alston
Priorities, where necessary, should adhere
to core concepts (such as reasonable attempts at progressive realization) and
principles (such as non-discrimination, equality and participation.
—Olivia
Ball, Paul Gready
Some human rights are said to be
"inalienable rights". The term inalienable rights (or unalienable
rights) refers to "a set of human rights that are fundamental, are not
awarded by human power, and cannot be surrendered."
International protection
Main article: International human rights
law
In the aftermath of the atrocities of World
War II, there was increased concern for the social and legal protection of
human rights as fundamental freedoms. The foundation of the United Nations and
the provisions of the United Nations Charter provided a basis for a
comprehensive system of international law and practise for the protection of
human rights. Since then, international human rights law has been characterized
by a linked system of conventions, treaties, organisations, and political
bodies, rather than any single entity or set of laws.
United Nations Charter
Main article: United Nations Charter
The provisions of the United Nations
Charter provided a basis for the development of international human rights
protection.[23] The preamble of the charter provides that the members
"reaffirm faith in fundamental human rights, in the equal rights of men
and women" and Article 1(3) of the United Nations charter states that one
of the purposes of the UN is: "to achieve international cooperation 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".[24] Article 55 provides that:
The
United Nations shall promote: a) higher standards of living, full employment,
and conditions of economic and social progress and development; b) solutions of
international economic, social, health, and related problems; c) international
cultural and educational cooperation; d) universal respect for, and observance
of, human rights and fundamental freedoms for all without distinction as to
race, sex, language, or religion.
Of particular importance is Article 56 of
the charter:"All Members pledge themselves to take joint and separate
action in co-operation with the Organization for the achievement of the
purposes set forth in Article 55." This is a binding treaty provision
applicable to both the Organisation and its members and has been taken to
constitute a legal obligation for the members of the United Nations.[23]
Overall, the references to human rights in the Charter are general and vague.
The Charter does not contain specific legal rights, nor does it mandate any
enforcement procedures to protect these rights.[25] Despite this, the
significance of the espousal of human rights within the UN charter must not be
understated. The importance of human rights on the global stage can be traced
to the importance of human rights within the United Nations framework and the
UN Charter can be seen as the starting point for the development of a broad
array of declarations, treaties, implementation and enforcement mechanisms, UN
organs, committees and reports on the protection of human rights.[25] The
rights espoused in the UN charter would be codified and defined in the
International Bill of Human Rights, composing the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights.
Universal Declaration of Human Rights
Main article: Universal Declaration of
Human Rights
"It is not a treaty...[In the future,
it]
may well become the
international Magna Carta."
Eleanor Roosevelt with the
Spanish text of the Universal
Declaration in 1949.
A.
Universal Declaration of Human Rights (UDHR) was adopted by the
United Nations General Assembly[9] in 1948, partly in response to the
atrocities of World War II. Although the UDHR was a non-binding resolution, it
is now considered by some to have acquired the force of international customary
law which may be invoked in appropriate circumstances by national and other
judiciaries.The UDHR urges member nations to promote a number of human, civil,
economic and social rights, asserting these rights as part of the
"foundation of freedom, justice and peace in the world." The
declaration was the first international legal effort to limit the behaviour of
states and press upon them duties to their citizens following the model of the
rights-duty duality.
...recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world.
—Preamble to the Universal
Declaration of Human Rights, 1948
The UDHR was framed by members of the Human
Rights Commission, with former First Lady Eleanor Roosevelt as Chair, who began
to discuss an International Bill of Rights in 1947. The members of the
Commission did not immediately agree on the form of such a bill of rights, and
whether, or how, it should be enforced. The Commission proceeded to frame the
UDHR and accompanying treaties, but the UDHR quickly became the priority.
Canadian law professor John Humphrey and French lawyer René Cassin were
responsible for much of the cross-national research and the structure of the
document respectively, where the articles of the declaration were
interpretative of the general principle of the preamble. The document was
structured by Cassin to include the basic principles of dignity, liberty,
equality and brotherhood in the first two articles, followed successively by
rights pertaining to individuals; rights of individuals in relation to each
other and to groups; spiritual, public and political rights; and economic,
social and cultural rights. The final three articles place, according to
Cassin, rights in the context of limits, duties and the social and political
order in which they are to be realized. Humphrey and Cassin intended the rights
in the UDHR to be legally enforceable through some means, as is reflected in
the third clause of the preamble:
...Whereas it is essential, if man is not to be compelled
to have recourse, as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the rule of law.
—Preamble to the Universal
Declaration of Human Rights, 1948
Some of the UDHR was researched
and written by a committee of international experts on human rights, including
representatives from all continents and all major religions, and drawing on
consultation with leaders such as Mahatma Gandhi. The inclusion of civil,
political, economic, social and cultural rights was predicated on the
assumption that all human rights are indivisible and that the different types
of rights listed are inextricably linked. This principle was not then opposed
by any member states (the declaration was adopted unanimously, Byelorussian
SSR, Czechoslovakia, Poland, Saudi Arabia, Ukrainian SSR, Union of South
Africa, USSR, Yugoslavia.); however, this principle was later subject to
significant challenges.
The Universal Declaration was bifurcated
into treaties, a Covenant on Civil and Political Rights and another on social,
economic, and cultural rights, due to questions about the relevance and
propriety of economic and social provisions in covenants on human rights. Both
covenants begin with the right of people to self-determination and to
sovereignty over their natural resources. This debate over whether human rights
are more fundamental than economic rights has continued to the present day.
The drafters of the Covenants
initially intended only one instrument. The original drafts included only
political and civil rights, but economic and social rights were also proposed.
The disagreement over which rights were basic human rights resulted in there
being two covenants. The debate was whether economic and social rights are
aspirational, as contrasted with basic human rights which all people possess
purely by being human, because economic and social rights depend on wealth and
the availability of resources. In addition, which social and economic rights
should be recognised depends on ideology or economic theories, in contrast to
basic human rights, which are defined purely by the nature (mental and physical
abilities) of human beings. It was debated whether economic rights were
appropriate subjects for binding obligations and whether the lack of consensus
over such rights would dilute the strength of political-civil rights. There was
wide agreement and clear recognition that the means required to enforce or
induce compliance with socio-economic undertakings were different from the
means required for civil-political rights.
This debate and the desire for
the greatest number of signatories to human-rights law led to the two
covenants. The Soviet bloc and a number of developing countries had argued for
the inclusion of all rights in a so-called Unity Resolution. Both covenants
allowed states to derogate some rights.[citation needed] Those in favor of a
single treaty could not gain sufficient consensus.
International treaties
In 1966, the International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant
on Economic, Social and Cultural Rights (ICESCR) were adopted by theUnited
Nations, between them making the rights contained in the UDHR binding on all
states that have signed this treaty, creating human-rights law.
Since then numerous other
treaties (pieces of legislation) have been offered at the international level.
They are generally known as human rights instruments. Some of the most
significant, referred to (with ICCPR and ICESCR) as "the seven core
treaties", are:
Convention on the Elimination of All Forms of Racial
Discrimination (CERD) (adopted 1966, entry into force: 1969)
Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) (adopted 1979, entry into force: 1981)
United Nations Convention Against Torture (CAT) (adopted
1984, entry into force: 1984)
Convention on the Rights of the Child (CRC) (adopted 1989, entry
into force: 1989)
Convention on the Rights of Persons with Disabilities (CRPD)
(adopted 2006, entry into force: 2008)
International Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families (ICRMW or more often MWC)
(adopted 1990, entry into force: 2003)
Customary international law
Main article: Customary
international law
In addition to protection by
international treaties, customary international law may protect some human
rights, such as the prohibition of torture, genocide and slavery and the
principle of non-discrimination.
International humanitarian law
Main articles: Geneva
Conventions and International humanitarian law
A. Geneva Conventions came into
being between 1864 and 1949 as a result of efforts by Henry Dunant, the founder
of the International Committee of the Red Cross. The conventions safeguard the
human rights of individuals involved in armed conflict, and build on the Hague
Conventions of 1899 and 1907, the international community's first attempt to
formalize the laws of war and war crimes in the nascent body of secular
international law. The conventions were revised as a result of World War II and
readopted by the international community in 1949.
United Nations system
Structure of the United Nations
Human
Rights Bodies and Mechanisms
Main article: United Nations
Under the mandate of the UN
charter, the and the multilateral UN human rights treaties, the United Nations
(UN) as an intergovernmental body seeks to apply internationaljurisdiction for
universal human-rights legislation.[37] Within the UN machinery, human-rights
issues are primarily the concern of the United Nations Security Council and
theUnited Nations Human Rights Council, and there are numerous committees
within the UN with responsibilities for safeguarding different human-rights
treaties. The most senior body of the UN in the sphere of human rights is the
Office of the High Commissioner for Human Rights. The United Nations has an
international mandate 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, gender, language, or religion.
—Article 1–3 of the United
Nations Charter
Political
bodies
Security Council
Main article: United Nations
Security Council
A. United Nations Security
Council has the primary responsibility for maintaining international peace and
security and is the only body of the UN that can authorize the use of force. It
has been criticised for failing to take action to prevent human rights abuses,
including the Darfur crisis, the Srebrenica massacre and the Rwandan
Genocide.[38]For example, critics blamed the presence of non-democracies on the
Security Council for its failure regarding.
On April 28, 2006 the Security
Council adopted resolution 1674 that reaffirmed the responsibility to protect
populations from genocide, war crimes, ethnic cleansing andcrimes against
humanity" and committed the Security Council to action to protect civilians
in armed conflict.
General Assembly
The UN General Assembly
Main article: United Nations
General Assembly
United Nations General
Assembly, under Article 13 of the UN Charter, has the power to initiate studies
and make recommendations on human rights issues.[41] Under this provision, the
general assembly passed the Universal Declaration of Human Rights in 1948, and
since then a wide variety of other human rights instruments.[41] The assembly
has several subsidiary organs that deal with specific human rights issues, such
as the Special Committee on Decolonisation and the Special Commission against
Apartheid (no longer operational). In addition the general assembly has set up
a number of subsidiary organs that consider human rights issues in a number of
high-profile contexts: such as the UN Council on Namibia, the Special Committee
to Investigate Israeli Practises in the Occupied territories and the Committee
on the Exercise of the Inalienable rights of the Palestine People.
Human Rights Council
Main article: United Nations
Human Rights Council
A. United Nations Human Rights Council,
created at the 2005 World Summit to replace the United Nations Commission on
Human Rights, has a mandate to investigate violations of human rights.[43] The
Human Rights Council is a subsidiary body of the General Assembly[44] and
reports directly to it. It ranks below the Security Council, which is the final
authority for the interpretation of the United Nations Charter.[45] Forty-seven
of the one hundred ninety-one member states sit on the council, elected by
simple majority in a secret ballot of the United Nations General Assembly. Members
serve a maximum of six years and may have their membership suspended for gross
human rights abuses. The Council is based in Geneva, and meets three times a
year; with additional meetings to respond to urgent situations.
Independent experts
(rapporteurs) are retained by the Council to investigate alleged human rights
abuses and to provide the Council with reports.
The Human Rights Council may
request that the Security Council take action when human rights violations
occur. This action may be direct actions, may involve sanctions, and the
Security Council may also refer cases to the International Criminal Court (ICC)
even if the issue being referred is outside the normal jurisdiction of the ICC.
Treaty bodies
In addition to the political
bodies whose mandate flows from the UN charter, the UN has set up a number of
treaty-based bodies, comprising committees of independent experts who monitor
compliance with human rights standards and norms flowing from the core
international human rights treaties. They are supported by and are created by
the treaty that they monitor, With the exception of theCESCR, which was
established under a resolution of the Economic and Social Council to carry out
the monitoring functions originally assigned to that body under the Covenant,
they are technically autonomous bodies, established by the treaties that they
monitor and accountable to the state parties of those treaties - rather than
subsidiary to the United Nations. Though in practise they are closely
intertwined with the United Nations system and are supported by the UN High
Commissioner for Human Rights (UNHCHR) and the UN Center for Human Rights.
The Human Rights Committee promotes participation with the
standards of the ICCPR. The eighteen members of the committee express opinions
on member countries and make judgments on individual complaints against
countries which have ratified an Optional Protocol to the treaty. The
judgments, termed "views", are not legally binding.
The Committee on Economic, Social and Cultural Rights monitors
the ICESCR and makes general comments on ratifying countries performance. It
will have the power to receive complaints against the countries that opted into
the Optional Protocol once it has come into force. It is important to note that
unlike the other treaty bodies, the economic committee is not an autonomous
body responsible to the treaty parties, but directly responsible to the
Economic and Social Council and ultimately to the General Assembly. This means
that the Economic Committee faces particular difficulties at its disposal only
relatively "weak" means of implementation in comparison to other
treaty bodies.[49] Particular difficulties noted by commentators include:
perceived vagueness of the principles of the treaty, relative lack of legal texts
and decisions, ambivalence of many states in addressing economic, social and
cultural rights, comparatively few non-governmental organisations focused on
the area and problems with obtaining relevant and precise information.
The Committee on the Elimination of Racial Discrimination
monitors the CERD and conducts regular reviews of countries' performance. It
can make judgments on complaints against member states allowing it, but these
are not legally binding. It issues warnings to attempt to prevent serious
contraventions of the convention.
The Committee on the Elimination of
Discrimination against Women monitors the CEDAW. It receives states' reports on
their performance and comments on them, and can make judgments on complaints
against countries which have opted into the 1999 Optional Protocol.
The Committee Against Torture monitors the CAT and
receives states' reports on their performance every four years and comments on
them. Its subcommittee may visit and inspect countries which have opted into the
Optional Protocol.
The Committee on the Rights of the Child monitors the CRC
and makes comments on reports submitted by states every five years. It does not
have the power to receive complaints.
The Committee on Migrant Workers was established in 2004 and
monitors the ICRMW and makes comments on reports submitted by states every five
years. It will have the power to receive complaints of specific violations only
once ten member states allow it.
The Committee on the Rights of Persons with Disabilities was
established in 2008 to monitor the Convention on the Rights of Persons with
Disabilities. It has the power to receive complaints against the countries
which have opted into the Optional Protocol to the Convention on the Rights of
Persons with Disabilities.
Each treaty body receives
secretariat support from the Human Rights Council and Treaties Division of
Office of the High Commissioner on Human Rights (OHCHR) in Geneva except CEDAW,
which is supported by the Division for the Advancement of Women (DAW). CEDAW
formerly held all its sessions at United Nations headquarters in New York but
now frequently meets at the United Nations Office in Geneva; the other treaty
bodies meet in Geneva. The Human Rights Committee usually holds its March
session in New York City.
Regional human rights regimes
Main article: Regional human
rights regimes
International human rights
regime's are in several cases "nested" within more comprehensive and
overlapping regional agreements. These regional regimes can be seen as
relatively independently coherent human rights sub-regimes.[51] Three principle
regional human rights instruments can be identified, the African Charter on
Human and Peoples' Rights, the American Convention on Human Rights (the
Americas) and the European Convention on Human Rights. The European Convention
on Human Rights has since 1950 defined and guaranteed human rights and
fundamental freedoms in Europe.[52] All 47 member states of the Council of
Europe have signed the Convention and are therefore under the jurisdiction of
the European Court of Human Rights in Strasbourg.
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