Universal Human Rights


UNIVERSAL PROTECTION AND
IMPLEMENTATION OF HUMAN RIGHTS
* Pan Mohamad Faiz

A. Universal Protection of Human Right
Broadly speaking human right may be regarded as those fundamental and inalienable rights which are essential for life as human being. Human rights are the rights which are possessed by very human being, irrespective of his or her nationality, race, religion, sex, etc., simply because he or she is a human being. Human rights are thus rights which are inherent in our nature and without which we cannot live as human being.

J.E.S. Fawcett explains that Human Right are sometimes called fundamental rights or basic rights or natural rights. As fundamental or basic rights they are the rights which cannot, rather must not, be taken away by any legislature or any Act of the government and which are often set out in constitution. As natural rights they are seen as belonging to men and women by their very nature.

1. UN Charter and Human Right

Human rights would occupy a significant chapter in any story of the U.N. Their place in the origin conception of the U.N. is underlined in the Charter and there are as many as seven references in the Preamble.

The provision of the U.N. Charter concerning human rights provides a foundation for and an impetus to further improvement in the protection of human rights. They indicate the wide possibilities of the international recognition of human rights. Article 1 puts the promotion of respect for human rights on the same level as the maintenance of international peace and security as a purpose of the U.N.

One of the basic objective of the trusteeship in accordance with the purpose of the U.N. Charter shall be to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion to encourage recognition of the interdependence of the peoples of the world.

2. Human Rights and Domestic Jurisdiction

It may be noted that the domestic and international aspects are closely interwoven. Almost every problem that concerns international relation must come with the domestic boundaries of one nation and may across over into another and create an international problem. Therefore a matter is not essential one of the domestic jurisdiction if it has become the subject of international obligation undertaken by the state.

It may also be noted that Article 2(7) which contains the prohibition in respect of domestic jurisdiction provider an exception in respect of the application of enforcement measures under Chapter VII of the Charter. Thus if violations of human being give rise to a dispute or situation which poses a threat to international peace and security, the Security Council may take enforcement measures under Chapter VII. But as pointed out by an eminent author, the organization will act, as many resolutions particularly in matters relating to Southern Africa show, even if there is no threat to the peace.

3. U.N. Commission on Human Rights

The United Nation Commission on Human Rights (UNHCR) was a functional commission within the overall framework of the United Nations. It was a subsidiary body of the UN Economic and Social Council (ECOSOC), and was also assisted in its work by the office of the UN High Commisioner for Human Rights (UNHCR). It was the UN’s principal mechanism and international forum concerned with the promotion and protection of human rights. On 15 March 2006 the UN General Assembly voted overwhelming to replace UNHCR with the UN Human Rights Council.

The Sub-Commission on the Promotion and Protection of Human Rights was the main subsidiary body of the Commission on Human Rights. It was composed of twenty six-experts whose responsibility was to undertake studies, particularly in the light of the Universal Declaration of Human Rights, and make recommendation of discrimination of any kind relating to human rights and fundamental freedoms and the protection of racial, national, religious and linguistic minorities. Membership was selected with regard to equitable geographic distribution.

The commission was repeatedly criticized for the composition of its membership. In particular, several of its member countries themselves had dubious human rights records, including states that representatives have been elected to chair the Commission. Another criticism was that the Commission did not engage in constructive discussion of human right issues, but was a form for politically selective finger – pointing and criticism. The desire of states with problematic human rights records to be elected to the Commission was viewed largely as a way to defend themselves from such attacks.

4. United Nation Human Rights Council

The United Nation Human Rights Council (UNHRC) is an international body within the UN system. Its stated purpose is to address human rights violation. The Council is the successor to the UNCHR, which was often criticised for the high-profile positions it gave to member states that did not guarantee the human rights of their own citizens.

On Wednesday, 15 March 2006, the United Nations General Assembly voted overwhelmingly in favour of creating the new human rights body, with the resolution receiving approval from 170 members of the 191-nation Assembly. Only the United States, the Marshall Islands, Palau, and Israel voted against the Council’s creation, claiming that it would have too little power and that there were insufficient safeguards to prevent human rights-abusing nations from taking control.

The 47-seat Human Rights Council replaces the former 53-member Commission on H.R. The Commission was an independent body, but the Council has been elevated to the states of a subsidiary body of the Assembly. The 47-seats in the Council are distributed among the UN’s regional groups as follows: 13 for Africa, 13 for Asia, 6 for Eastern Europe, 8 for Latin America and the Caribbean, and 7 for the Western European and others group.

Various activities can be undertaking by special procedures including responding to individual complaints, conducting studies, providing advice on technical cooperation, and engaging in promotional activities. The special mechanism is categorized according to thematic mandates and country mandates. Currently, they are 20 thematics and 13 country mandates under special procedures.

5. Universal Declaration of Human Right (UDHR)

The Universal Declaration of Human Right was prepared by the Commission on Human Right in 1947 and 1948 and was adopted by the General Assembly on December 10, 1948. It was a most elegant expression of hope by a world emerging from the most devastating war in the history of human race.

The General Assembly proclaims the UDHR as a common standard of achievement for all people, and of all nations, to the end that every individual and every organ of society, keeping this declaration constantly in mind, shall strive by teaching and education to promote respect of these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the people of Member states themselves and among the people of territories under their jurisdiction.

The right proclaimed in the UDHR may be classified into following fair categories:
1. General (Article 1 and 2);
2. Civil and Political (Articles 3 to 21);
3. Economic, Social and Cultural Rights (Articles 22 to 27), and
4. Concluding (Articles 28 to 30).

Since its adoption the UDHR has exercised a powerful influence, both internationally and nationality, it has been rightly pointed out, that “whatever its legal quality, the Declaration has set a standard by which national behaviour can be measured and to which nations can aspire. The Declaration has helped to give contour and content to the generalities of the Charter reflecting the spirit and the needs of the day.

The UDHR was a public, and indeed a global proclamation of a common standard of achievement for all people and all nations. It’s the mine from which other conventions as well as national constitutions protecting these rights have been and are being quarried.

The rights and freedoms enshrined in the UDHR have been incorporated in various declaration adopted by the UN, International Convention, regional convention (European Convention for the Protection of Human Right and Fundamental Rights), and have cited by judges of ICJ.

6. The International Bill of Human Rights

a. ICCPR

The international Bill of Human Rights comprises of the following:
1. The Universal Declaration of Human Right;
2. The International Covenant on Civil and Political Rights (ICCPR), 1966;
3. The International Covenant on Economic, Social and Cultural Rights (ECOSOC), 1966;
4. The Optional Protocol to the ICCPR, 1966.

The ICCPR, 1966 comprises of 53 Articles divided into VI Parts. For the convenience of study, these articles may be classified into following categories:
a. Preamble;
b. General (Article 1 to 3 and 5);
c. Rights in Emergency (Article 4);
d. Substantive Rights (Article 4);
e. Implementation of Enforcement Machinery (Article 28 to 45);
f. Interpretation of Saving Provision (Article 46 to 46);
g. Final or concluding provisions, regarding ratification, of accession of the covenant, amendments, etc.

The implementation or enforcement machinery is provided under Part IV of the Covenant. The Covenant provides for the establishment of an eighteen-member Human Rights Committee. The Committee performs the functions of implementation of the Human Right in following ways: 1. The Reporting Procedure;
2. The Inter-State Communication System;
3. Conciliation Commission, and
4. Individual’s Communication System.

b. ECOSOC

Beside preamble the International Covenant on Economic, Social and Cultural Rights comprises of 31 Article divided into five parts:
1. Preamble;
2. General (Article 1 to 5);
3. Substantive Rights (Article 6 to 15);
4. Measures for implementation (Article 16 to 25);
5. Final or Concluding Provisions (Article 26 to 31).

State parties to the Covenant have an obligation to submit to the Secretary General of the U.N. reports on the measures which they have adopted and the progress made. The Secretary General shall then transit copies of report to the Economic and Social Council. The ECOSOC may transmit the reports to the Commission for study and general recommendation.

B. Implementation of Human Rights

It is proposed to discuss below the measures for implementation of human rights under the following:
1. International Covenant on Economic, Social and Cultural Rights, 1966;
2. International Covenant on Civil and Political Rights, 1966;
3. Optional Protocol to the ICCPR, 1966.
4. Second Optional Protocol to the ICCPR, aiming at the abolition of Death Penalty, 1989.

1. Under the International Covenant on Economic, Social and Cultural Rights

The machinery for the implementation of the rights enumerated in the covenant on economic, social and cultural rights is quite different from the Covenant on Civil and Political Rights. It is so primarily because implementation of economic and social rights is local and national issue. The Covenant provided reporting system for the implementation of the provisions.

Article 16 of the Covenant provides that States Parties are to undertake to submit reports to the Secretary General of the U.N. who shall transmit copies to the ECOSOC for consideration and to the concerned specialized agencies. The States in the reports are requires to mention the measures which they have adopted and the progress made in achieving the observance of the rights recognised therein.

They also required indicating factors and responsibility affecting the degree of fulfillment of obligations under the present Covenant. The report shall be furnished in stages. The State parties to the Covenant and the specialized agencies concerned may submit comments to the economic and social council on any general recommendation in any report of the commission on human rights or any documentation referred to therein. The Council may submit from time to time to the general assembly the reports with the recommendation of a general nature and the summary of the information received from the state parties to the covenant and the specialized agencies

2. Under the International Covenant on Civil and Political Rights

The implementation procedure under the ICCPR is carried on by the human rights committee consisting of 18 persons who are required to be persons of high moral character and recognized competence in the filed of human rights. The member serves in their personal capacity. The committee carries out the implementation of human rights stipulated in the covenant in seveal different ways in following:
a. The system of Reporting;
b. Intern-State of Reporting;
c. Conciliation Procedure.

a. The system of Reporting

In accordance with Article 40(1) state parties undertake to submit report on the measures they have adopted which give effect to the rights recognized herein and the progress made in the enjoyment of those rights every 5 years. The report indicates the factors and difficulties affecting the implementation of provisions. The committee as it may consider appropriate to the state as it may consider appropriate to the state parties. The reporting system enables the committee to develop a dialogue with each state party in regard to the implementation of the Covenant. For this purpose, the representative of the State whose report is being considered is permitted to be present at the meeting of the committee.

b. Inter-State Communication System

The violation of human right provision by one state is the concern of the whole world. Under this procedure if the provisions of the covenant are not given affect by a state, other states parties may make complaints regarding the violations before the human rights committee.

This procedure has two stages. First is the bilateral negotiations between the states i.e., a state party to covenant may make communication in writing bringing the attention of defaulting member state to a matter. Within 3 months of receiving such communication the receiving state communicates an explanation which includes reference to the domestic procedures and remedies taken, pending or available or any other statement clarifying the matter.

Secondly, if the matter is not adjusted to the satisfaction of both the state parties concerned within the 6 months after the receipt of initial communication by the receiving state, either state has right to refer the matter to the human rights committee. If any communication is received by the committee, it examines only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law.

In every such matter committee is required to make a report within 12 months time from the receipt of the notice give by the state party. If a solution is reached then report is confined to brief statement of facts and of solution reached. If committee fails to reach a solution, then its report is confined to a brief statement of fact.

c. Conciliation Procedure

If an Inter-State Communication provided under Article 41, not resolved to the satisfaction of the State Parties concerned, the Committee may, with the prior consent of the State Parties concerned, appoint in ad hoc conciliation commission with a view to make an amicable solution of the matter on the basis with respect for the present covenant.

The commission shall be consisted of five persons acceptable to the state parties concerned. If the State Parties concerned fail to reach agreement within 3 months on the composition of the commission then such members shall be elected by secret ballot by a two-third majority vote of the committee amongst its members. The members of the Commission shall serve in their personal capacity.

If an amicable solution is reached it shall confine its report to a brief statement of facts and the solution reached. If a solution is not reached, the report of the Commission shall embody its finding on all question of fact relevant to the issues between the states are required to notify the Chairman within 3 months of the receipt of the report whether or not they accept the contents of the report of the Commission.

3. Under Optional Protocol to the ICCPR, 1966

In addition to the aforementioned three methods of implementation of the rights recognised under the ICCPR, 1966, a fourth method, i.e., individual’s communication system is provided under the optional protocol to the Covenant on Civil and Political Rights (optional protocol).

In order to avail the above method of implementation, i.e., individual’s communication system following conditions must be satisfied:
1. The competence of the committee to receive and consider communication is limited to the individuals whose states is parties to Optional Protocol as well as Covenant on Civil and Political Rights.
2. The communication of the individual must concern the rights enumerated in the Civil Covenant.
3. Before submitting a written communication to the committee, the individuals must have exhausted all available domestic remedies.
4. A communication submitted must not be anonymous nor must it be an abuse of the right of submission with the provisions of the Civil Covenant.
5. The committee shall not be considers any communication from individual unless it has ascertained that the same matter is not being examined under another procedure of international settlement.

4. Under the Second Protocol to the ICCPR, aiming at the Abolition of Death Penalty

The second optional protocol is necessarily and invariably related to the International Covenant on Civil and Political Rights and the (first) Optional Protocol. The machinery for implementation therefore is also the same, namely the Human Right Committee.

The Second Protocol provides for following three ways of implementation:
a. The Reporting system;
b. Inter-State communication system;
c. Individual’s communication system.

***

The writer is a Postgraduate Student on Master of Comparative Law Programme at Faculty of Law, University of Delhi.

Main References:
1. UN Declaration of Human Rights.
2. International Covenant on Civil and Political Rights with Its Protocols.
3. International Covenant on Economic, Social and Cultural Rights.
4. S.K. Kapoor, International Law and Human Rights, Central Law Agency, 2006.
5. H.O. Agarwal, International Law and Human Rights, Central Law Publications, 2006
6. J.L. Koul and S.L. Bhalla, Law of International Organisation and Human Rights, Privated Circulation, 2004,
7. etc.

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