Rights Law and UN
By Rajat Khosla
Introduction to International
Modern international human rights law dates
from World War II and its aftermath.
The United Nations Charter, signed on June
26, 1945, sought to acknowledge the
importance of human rights and established it
as a matter of international concern.
Article 1(3) specifically states that one of the
purposes of the UN is "[t]o 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"
Articles 55 and 56 of the Charter set out the
basic human rights obligations of the UN and
its member states.
The rights and obligations enumerated in the
Charter were codified in the Universal
Declaration of Human Rights. This was the
first instrument to really articulate the
fundamental rights and freedoms of all
Following the Declaration, the UN Commission on Human Rights drafted the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights. Together, these three
documents (with the Optional Protocols to the International Covenant on Civil
and Political Rights) comprise the International Bill of Human Rights.
Since 1948 a number of further human rights instruments have been drafted
and adopted by the international community: the Convention on the Prevention
and Punishment of the Crime of Genocide (1948), the International Convention
on the Elimination of All Forms of Racial Discrimination (1963), the Convention
on the Elimination of All Forms of Discrimination against Women (1970), the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984), the Convention on the Rights of the Child (1989) and the
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families (1990).
In addition many other instruments for the protection of human rights
exist, these include declarations, resolutions, recommendations and principles.
Human Rights Law and
Humanitarian law is the branch of public international law that
comprises the rules, which, in times of armed conflict, seek to (i) protect
persons who are not or are no longer taking part in the hostilities, (ii)
restrict the methods and means of warfare employed, and (iii) resolve
matters of humanitarian concern resulting from war.
The term "humanitarian" is often used in everyday language in a very
broad sense, and can be confused with the term "human rights.“
Although both are concerned with the protection of the individual, the
two bodies of law apply to different circumstances and possess slightly
The main distinction between the two bodies of law is that humanitarian
law applies to situations of armed conflict, while human rights protect
the individual in times of both war and peace.
Humanitarian law aims to limit the suffering caused by war by regulating
the way in which military operations are conducted.
Introduction to the UN Human
Rights Treaty System
The promotion and protection of human rights is one of the
fundamental aims of the United Nations.
The setting of legal standards in the field of human rights and the
establishment of mechanisms to monitor those standards has
been one the primary means of achieving this aim.
The U.N. treaty system establishes the legitimacy of international
interest in the protection of human rights.
Every UN member state is a party to one or more of the seven
major human rights treaties.
The treaty standards are the benchmark for assessment and
Since the establishment of the first treaty
body, the Committee on the Elimination of
Racial Discrimination (CERD), the system
has grown to include seven treaty bodies.
Over the last decade ratifications in the treaty
system and acceptance of communication
procedures have risen exponentially. What
began as an assertion of a few, is now a
global proclamation of entitlements of the
victims of human rights abuse.
This participation by states has been
voluntary, the obligations of the human rights
treaties have been freely assumed. It is the
legal character of these rights which places
them at the core of the international system
of human rights protection. For these rights
generate corresponding legal duties upon
state actors, to protect against, prevent, and
remedy human rights violations.
As the system has grown, it has confronted
challenges. These include delays in submission
and/or consideration of reports, non-reporting, and
duplication of reporting requirements among treaty
bodies. Improving the effectiveness of the human
rights treaty system has been an ongoing interest of
individual treaty bodies, the meeting of chairpersons
of human rights treaty bodies, the (then)
Commission on Human Rights and the General
Assembly. These issues have also been the subject
of discussion at the Inter-Committee Meeting.
The human rights treaty system encompasses seven major treaties:
the Convention on the Elimination of all forms of Racial Discrimination
(in force 4 January 1969)
the International Covenant on Civil and Political Rights (CCPR)
(in force 23 March 1976)
the International Covenant on Economic, Social and Cultural Rights
(in force 23 March 1976)
the Convention on the Elimination of all forms of Discrimination Against Women
(in force 3 September 1981)
the Convention Against Torture, and Other Cruel, Inhuman or Degrading
Treatment or Punishment
(in force 26 June 1987)
the Convention on the Rights of the Child (in force 2 September 1990)
the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families
(in force 1 July 2003).
The Treaty Bodies
The seven treaties are associated with seven treaty bodies which have the task of
monitoring the implementation of treaty obligations. Six of the seven treaty
bodies meet primarily in Geneva, and are serviced by the Office of the UN High
Commissioner for Human Rights (OHCHR). These are:
the Committee on the Elimination of Racial Discrimination (CERD)
the Human Rights Committee (HRC)
the Committee on Economic, Social and Cultural Rights (CESCR)
the Committee Against Torture (CAT)
the Committee on the Rights of the Child (CRC)
the Committee on Migrant Workers (CMW).
One treaty body meets in New York and is serviced by the UN Division for the
Advancement of Women:
the Committee on the Elimination of Discrimination Against Women (CEDAW).
The treaty bodies are composed of members who are elected by the states parties
to each treaty (or through the UN Economic and Social Council (ECOSOC) in
the case of CESCR). In principle, treaty members are elected as experts who
are to perform their functions in an independent capacity.
The Functions of the Treaty
Meeting periodically throughout the year, the treaty bodies fulfill
their monitoring function through one or more of three different
First, all states parties are required by the treaties to produce
state reports on the compliance of domestic standards and
practices with treaty rights. These reports are reviewed at various
intervals by the treaty bodies, normally in the presence of state
representatives. Concluding observations, commenting on the
adequacy of state compliance with treaty obligations, are issued
by the treaty bodies following the review.
Second, in the case of four treaties individuals may complain of
violations of their rights under the treaty (the Civil and Political
Covenant, the Racial Discrimination Convention, the Convention
Against Torture, and the Women's Discrimination Convention).
These complaints are considered by the treaty body which
expresses a view as to the presence or absence of a violation.
Third, in the case of CAT and CEDAW, their work
includes another procedure. This is an inquiry
procedure which provides for missions to states
parties in the context of concerns about systematic
or grave violations of treaty rights.
In addition, the treaty bodies contribute to the
development and understanding of international
human rights standards through the process of
writing General Comments or Recommendations.
These are commentaries on the nature of
obligations associated with particular treaty rights
The National Level
The international system has had implications at the national level.
A multitude of domestic legal systems have been affected by the
The treaties form the basis of a significant number of the world's bills of
There are also numerous instances of legal reform prompted by the
Non-governmental organizations and national human rights institutions
have invoked the treaty standards in relation to proposed government
legislation and policies.
Legislative committees have used treaty standards as reference points.
The treaties have sometimes been incorporated into national law, had
direct application through constitutional provisions to national law, and
been used to interpret domestic law through judicial intervention.
Other UN Monitoring
Charter based bodies
These derive their establishment from
provisions contained in the Charter of the
United Nations, and hold broad human rights
mandates, address an unlimited audience
and take action based on majority voting.
These include bodies such as the Human
Rights Council, Special Procedures, the Sub-
Commission on the Promotion and Protection
of Human Rights.
A UN Special Rapporteur is an independent expert appointed to
promote and protect human rights.
For many years, the UN appointed Special Rapporteurs to focus
on the classic civil and political rights, like freedom of religion and
the prohibition against torture.
Recently the UN has appointed experts to focus on
economic, social and cultural rights, the first being the Special
Rapporteur on the right to education who was appointed in 1998
In 2002, the UN decided to appoint a Special Rapporteur on the
right to the highest attainable standard of health