International Human Rights Law by wuyunyi


									International Human
 Rights Law and UN
        By Rajat Khosla
Introduction to International
Human Rights

   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
   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
    different objectives.
   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 Standards
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
    and freedoms.
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.
Special Rapporteurs
   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

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