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December 2016, No. 4 Vol. LIII, Human Rights
The United Nations was founded in the aftermath of the Second World War primarily as a guardian of peace and security in the world. From the very outset, the founders were aware of the close connection between peace and human rights: only under conditions of peace can human beings achieve full enjoyment of their rights. Never again should people be haunted by atrocities; never again should they become the victims of such genocidal policies as had devastated societies throughout Europe.
Accordingly, the Charter of the United Nations, in its Preamble, sets out as one of the aims of the world organization “to reaffirm 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”. Further provisos were included in the text of the Charter itself. Article 1(3) specifies that the United Nations shall be tasked with “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.
At the founding conference in San Francisco, it proved impossible, due to lack of time, to complement the Charter with a written catalogue of human rights. The decision was taken, however, to establish such a catalogue immediately after the Charter came into force, through the relevant specialized body, the Commission on Human Rights.
After only a few years of preparatory work in that Commission, the United Nations General Assembly proclaimed, on 10 December 1948, the Universal Declaration of Human Rights (UDHR) “as a common ?standard of achievement for all peoples and all nations”. The adoption was not achieved by unanimity. Eight nations—the then-existing socialist States along with Saudi Arabia and South Africa—abstained, but not a single negative vote was registered.
UDHR paved the way for the further development of the human rights idea. For the first time in human history, a list of basic human rights had been established that was to benefit everyone, based solely on his or her quality as a human being, without any distinction or discrimination. Earlier proclamations of human rights, including the French Déclaration des droits de l’homme et du citoyen (1789) and the United States Bill of Rights (1789/1791), had been restricted in manifold ways. Women did not enjoy the same rights as men; slavery was legal; and in many countries, the criterion of personal wealth played a decisive role in determining who enjoyed the exercise of rights and privileges. Additionally, people in colonial countries lived in a structural state of discrimination. Thus, UDHR became the fundamental manifesto for a new concept of human rights in the world. As a General Assembly resolution, it has never attained the status of a binding set of rules, but it has served as a source of inspiration, fomenting not only the codification process within the United Nations but also functioning as a model for national constitutions all over the world.
The first achievement at the level of binding international law was the adoption of the International Convention on the Elimination of All Forms of Racial Discrimination in 1965. One year later, the General Assembly adopted by consensus the two comprehensive International Covenants, on Economic, Social and Cultural Rights (ICESCR) and on Civil and Political Rights (ICCPR). To date, an overwhelming majority of United Nations Member States have adhered to these two? Covenants—164 States parties in the case of ICESCR and 168 in the case of ICCPR. Together, the Universal Declaration and the two Covenants form what is known as the “International Bill of Human Rights”. Another instrument designed to combat discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, was adopted by the Assembly in 1979.
At its inception, the Charter of the United Nations was characterized by a certain ambiguity. Although the horrors of mass murder in Europe were the driving force for the inclusion of human rights in its body, the Charter remained unspecific about the ways and means of actual implementation at the grass-roots level. Article 68 directed the Economic and Social Council to establish a commission “for the promotion of human rights”, but Article 2(7) enjoined the United Nations not to intervene in matters “essentially within the domestic jurisdiction of any State”. For more than a decade, the prevailing opinion, forcefully supported by the group of socialist States, maintained that the actual practice of promoting and protecting human rights pertained indeed to matters essentially under domestic jurisdiction. After the adoption of the two International Covenants in 1966, that opinion had completely lost its plausibility.
Progressively, therefore, the General Assembly and the Commission on Human Rights started looking into human rights in States against which complaints had been filed with the United Nations. Initially, walls of secrecy surrounded the relevant procedural details. From the mid-1970s, however, that discretion has been shed. The Assembly now voices openly its concerns vis-à-vis States that have engaged in consistent patterns of grave human rights abuses. Two United Nations resolutions have strengthened the Organization considerably. In 2005, the Assembly proclaimed the doctrine of the ‘responsibility to protect’, also known as ‘RtoP’ (Assembly resolution 60/1). According to this doctrine, every State has the responsibility “to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. Essentially, this was nothing new, since such responsibility flows directly from the actual recognition of basic human rights as core principles of the international legal order. The new element of RtoP, however, is the affirmation that if a State does not comply with that responsibility, the Security Council may make use of its powers under Chapter VII of the Charter to protect affected populations. In the case of Libya in 2011, the Security Council availed itself for the first time of that function with the adoption of resolution 1973(2011), which amounted to a significant extension of the notion of international peace and security, the criterion of “international ” being interpreted as encompassing horrendous violations of the international legal order in the field of human rights.
The establishment of the Human Rights Council (HRC) in 2006 has increased the review power of the international community significantly. HRC, composed of 47 member States, holds three regular sessions every year and may additionally convene for a special session as appropriate. It has become the main instrument for the enforcement of the view that human rights are intrinsically a matter of international concern. Among the procedures introduced by HRC, the Universal Periodic Review (UPR) is the most effective. All United Nations Member States have agreed to undergo a comprehensive test of their human rights practices, which consists of a review by their peers. The examination proceeds on a four-year cycle. To the extent that a State has remained aloof from the basic human rights treaties, UDHR is employed as the determinative yardstick. The final stage of UPR takes place in a three-hour meeting, which obviously does not permit any lengthy interrogation but does allow essential shortcomings to be raised in public session. At the end of the process, the State under review declares which of the many recommendations made it will implement and which it rejects. Thus, the State itself has the last word, with HRC abstaining from formulating a collective opinion. The key advantage of UPR is that the review proceeds close to realities without any diplomatic reservations or precautions.
To some extent, UPR currently overshadows the work of the expert bodies that were established separately for each one of the great human rights treaties. It stands to reason that the Human Rights Committee, which monitors compliance with ICCPR, has achieved a leading role in that all of the classic ‘negative rights’ fall within its jurisdiction. Accordingly, the Committee has the broadest field of experience and is thus automatically called upon to formulate the general rules that apply to all of those rights.
Most of the expert bodies have three kinds of competences. On the one hand, every State party to an international human rights treaty?elaborated under the auspices of the United Nations is placed under the obligation to submit at regular intervals a report on its activities regarding the implementation of the rights under the treaty concerned. Such reports are normally discussed in the presence of a delegation from the country under review. Initially, the heart of the procedure was the public exchange of arguments without any formal conclusion. Since the great change in the international system in 1990, all the expert bodies have moved to stating their opinions on the human rights situation in the country concerned in a frank and open manner, not shying away even from drastic statements on behalf of suffering populations when required.
Some of the human rights treaties provide for complaints procedures. Natural persons may be entitled to address the expert bodies by way of individual communications, and States parties may be empowered to file inter-State communications. Under an Optional Protocol to ICCPR, the remedy of individual communication has attained an important role. The Human Rights Committee has indeed become the equivalent of a court for human rights at the global level, its jurisprudence, consisting of non-binding views, being referred to also by the regional human rights courts. The inter-State complaint procedure has to date been less successful. Generally, Governments shy away from introducing formal proceedings against one of their sovereign partners.
United Nations human rights policies are characterized by two key principles. The dialogue with States is conceived as a force of persuasion for change. According to the principle of subsidiarity,?however, work on the ground must be left to state authorities. Only some specific functions have been assumed by United Nations institutions. Thus, the United Nations High Commissioner for Refugees takes care of the plight of those fleeing armed conflicts, persecution or natural disasters in their home countries, a task that individual States are unable to perform. In a similar manner, the World Food Programme seeks to provide food and shelter to people living in desperate situations.
The last of the United Nations institutions to be mentioned regarding the protection of human rights is the Security Council. Although initially not intended to act as a guarantor of those rights, the concept of RtoP has confirmed its authority to intervene in situations where the population of a country has suffered severe assaults on its dignity and rights, or is placed under a severe threat of such abuses. Under Chapter VII of the Charter of the United Nations, the Security Council is endowed with far-reaching powers to take the requisite remedial?action. Unfortunately, the veto power of the States holding a permanent seat on the Council often prevents that body from taking such action.
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