Human rights and the international community: twenty questions
All you wanted to know about human rights! Leah Levin answers questions all of us have asked at least once in our lifetimes. What is meant by human rights? How is this idea reflected in practice? What can the Human Rights Committee do if it considers that governments are not complying with their undertakings? Does the Committee deal with individual complaints? Can anyone who feels that human rights are being violated appeal to the United Nations? And many others.
What is meant by human rights?
The concept of human rights is the acceptance of an inherent and inalienable right due to man simply because of being man. It is a moral right which derives from being a human being, and which in turn ensures the dignity of every human being.
How is this idea reflected in practice?
Human life and human dignity have been disregarded and violated throughout history and continue to be so violated. Nevertheless, the idea of natural law common to all mankind equally dates back many centuries. Natural law was long accepted as the source and standard of political right. During the eighteenth century the early ideas of natural law developed into an acceptance of natural rights, and these rights for the first time became a basic part of national constitutions, thus reflecting an almost contractual relationship between the States and the individual and emphasizing the power of the State as deriving from the assent of the free individual. The American Declaration of Independence and the French Declaration of the Rights of Man were based on this premise. During the nineteenth and twentieth centuries this principle was followed by a number of European, Latin American, and Asian States. During the 1960s, with the attainment of independence by a large number of African States, they too included recognition of human rights in their new constitutions, sometimes by incorporating into them the Universal Declaration of Human Rights. Despite the recognition of human rights in constitutions, these rights can be and are still violated by States, and can be removed by legislation or arbitrary means.
Is there any other way of ensuring the protection of human rights?
The State is the guarantor and protector of human rights, both traditionally and historically. But since the First World War there has been a growing belief that governments alone cannot be left to safeguard these rights, and that they are a subject for international guarantees. Although its mandate did not mention human rights, the League of Nations nevertheless tried to undertake the protection of human rights through international means. Its concerns, however, were limited to the extent of establishing certain conditions for the protection 'of minorities in a few countries. The major pressure for internationalization, however, built up after the Second World War, during which totalitarian regimes grossly violated human rights in their own and occupied territories, and were responsible for the elimination of entire groups because of their race, religion or nationality. This approach to the protection of human rights is reflected and reinforced in the Charter of the United Nations. Article 1 of the Charter states that the UN aims to achieve international co-operation by "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." Article 55 expresses a similar undertaking; and in Article 56 all members of the U.N. "pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55". The provisions of these Articles also form the basis of UNESCO's activity in the sphere of human rights through its relationship as a specialized agency of the UN in accordance with Article 63 of the Charter. The provisions of the Charter have the force of positive international law because the Charter is a treaty and therefore a legally binding document. Its provisions should not be contradicted by national laws or practices. It also establishes basic duties which all members must fulfil in good faith. Thus nations, as an integral part of the Charter, have the obligation to promote respect for, and encourage observance of human rights and are committed to cooperate with other nations in fulfilling these aims.
Why do States resist international scrutiny of their compliance with their duties to promote and protect human rights under the Charter?
One of the Articles of the Charter (Article 2) states that the UN should not intervene "in matters which are essentially within the domestic jurisdiction of any State..." This provides the basis for the claims of States when they do not want their affairs discussed, and do not wish to be shown up as having contravened their undertakings in respect of human rights, even though they may be prepared to discuss the affairs of other States. These same governments have supported United Nation's resolutions which sanctioned investigation into the affairs of other Member States. Thus different governments have taken different positions at different times. It is also widely argued that "intervention" does not include discussion and examination since it means essentially "physical" intervention. There is consequently a growing acceptance in legal terms that when States have undertaken similar obligations it is legitimate for each State to undertake that other States respect them.
Does it follow that the UN Charter can have an effect on actual situations? The Charter recognizes that peace and stability among nations is related to the recognition of respect for human rights and seeks to establish conditions under which this can be achieved. It also establishes a close link between human rights and other worldwide concerns such as the promotion of economic and social co-operation. Since the signing of the Charter, great changes have occurred, especially regarding decolonization, and many new nations have emerged. However, as the provisions of the Charter are of a general nature, it was necessary to establish more specific definitions of human rights and freedoms in order that these could be practically applied.
How was this done?
In 1945, a UN Commission on Human Rights was established and entrusted with the task of drawing up an International Bill of Human Rights, whereby these rights and freedoms would be defined.
The first part of the Bill of Rights was achieved when on 10 December 1948 the General Assembly unanimously adopted the Universal Declaration of Human Rights "as a common standard of achievement for all peoples and all nations."
Do States which were not at the time members of the United Nations accept the Declaration?
The impact of the Declaration and the use made of it bear out the universal acceptance of the Declaration and it has become a norm of reference in human rights for all countries. In a formal sense, parts of the Declaration have been cited in national constitutions and other international instruments. Governments have no hesitation in invoking the Declaration when accusing other countries of violating their obligations under the Declaration; parts of the Declaration were also included in many new United Nations instruments agreed to by Member States. The Declaration, together with the Charter, served both as an inspiration and a means for millions of people under colonial rule to achieve self-determination. The universality of the claim to human rights provided the justification and the means for liberation of these oppressed peoples. In 1961 President Julius Nyerere of Tanganyika in addressing the United Nations General Assembly said "We shall try to use the Declaration of Human Rights as a basis for both our external and internal policies". All Member States take part in nominating and electing members to the Commission on Human Rights and participate in the implementation machinery.
What are the rights proclaimed in the Declaration? These rights can be broadly divided into two kinds. The first consists of civil and political rights which include the right to life, liberty, security of person; freedom from torture or slavery; political participation; property, marriage and the fundamental freedoms of opinion, expression, thought, conscience, and religion; freedom of association and assembly. The second kind are social, economic and cultural rights which relate to work, a reasonable standard of living, education and freedom of cultural life. In addition, the first article of the Declaration expresses the universality of rights in terms of the equality of human dignity; and the second article expresses the entitlement of all persons to the rights set out without discrimination of any kind. The priorities underlying the rights proclaimed in the Declaration are contained in the preamble to the Declaration, which starts by recognizing the "inherent dignity, and the equal and inalienable rights of all members of the human family".
Is the Declaration legally binding upon States?
The Declaration is not, as such, a legally binding document, but by their actions and use of the Declaration, nations have endowed the Declaration with a legitimacy which allows it to be invoked both legally and politically at the international and domestic levels. The consensus of the international community was expressed in these terms at the Tehran Conference on Human Rights in 1968: the Declaration "states a common understanding of the people of the world concerning the inalienable rights of all members of the human family and constitutes an obligation for all members of the international community". There is no legal sanction to compel States to meet this obligation. As with other areas of international law and practice the main sanction available to the international community is the withdrawal from States of the confidence of other States upon their unwillingness to co-operate to discharge their obligations.
What steps were taken toward implementation?
The Universal Declaration of Human Rights was the first tier in a three-tier objective. The second and third parts of the International Bill of Rights were adopted by the General Assembly on 16 December 1966. They consisted of two Covenants the International Covenant on Civil and Political Rights; and the International Covenant on Social, Economic and Cultural Rightsand the Optional Protocol to the Covenant on Civil and Political Rights. In adopting these Covenants agreement was reached by the international community, not only on the contents of each right, but also in respect of the right of States to derogate from or restrict these rights.
How do the Covenants differ from the Declaration?
Firstly, the Covenants, once ratified by thirty-five governments, are legally binding treaties. Secondly, upon agreeing to become party to the Covenants, States undertake to submit reports on their compliance with the provisions of the Covenants. Thirdly, although the General Assembly adopted the Covenants in 1966, they only entered into force in 1976 when the required thirty-five States had ratified them. Fourthly, the Covenants are only binding on those States which are parties to them. In September 1978 fifty States had become parties to the Covenants.
How do the Covenants relate to the Charter?
The Declaration interprets the basic rules on international law on the subject of human rights embodied in the Charter of the United Nations. Although the Covenants apply only directly to the States which have ratified them, they have a relevance to all States in respect of the obligations of Member States of the United Nations under the Charter and as interpreted by the Universal Declaration of Human Rights which were both adopted as international standards to be achieved.
What means are provided for implementation?
A special Human Rights Committee has been established under the Covenant on Civil and Political Rights, consisting of eighteen independent experts nominated by, but not representing, their governments. This Committee receives and examines reports from States as to how they are implementing their undertakings in respect of the Covenants. The Committee is able to question the government concerned, and forwards comments to the government subsequently. The Committee is also empowered to receive inter-State complaints when one State considers that another State is not giving effect to its obligations under the Covenants. This provision is not yet operative as the number of States required to agree to it in the first instance is ten, and to date there have only been six acceptances.
What can the Human Rights Committee do if it considers that governments are not complying with their undertakings?
Since the immediate protection of human rights depends upon compliance at the national level, the effectiveness of the Committee is limited as there is no enforcement machinery. However, there is a persuasive value derived from the examination of reports in public. Governments are sensitive to criticism of their human rights performance. The principal object of the Committee is to develop a constructive dialogue with reporting States and thereby promote the compliance of States with the provisions of the Covenant.
Does the Committee deal with individual complaints?
Under the provisions of the Optional Protocol to the Covenant on Civil and Political Rights, the Committee can act on complaints by individuals of violations of their rights by a State. Only citizens of countries which have ratified this undertaking can make complaints to the Committee, and only after all domestic remedies have been tried. Representation may also be made by another person on behalf of a victim who is not able personally to appeal to the Committee. These complaints are considered privately, and the Committee then makes its comments to the individual and to the State concerned.
What provision is there for the implementation of the Covenant on Social, Economic and Cultural rights?
Under this Covenant States party to it submit reports to the Economic and Social Council (ECOSOC) of the United Nations on progress made in achieving the rights recognized. A working group of fifteen of its members, representing States which are parties to the Covenant, has been appointed by ECOSOC to consider these reports. All other States can attend as observers. In addition, the sections of the reports relating to the sphere of competence of the International Labour Organisation (ILO) or of UNESCOare examined by these bodies. Since most of the economic and social rights are outside the reach of most of the world's peoples, largely through no fault of their own, it remains the responsibility of the international community to work towards the realization of these rights for all peoples.
Are there other human rights instruments besides the Bill of Rights?
There are a number of declarations and conventions adopted by the General Assembly which elaborate and detail the specific obligations and safeguards relating to particular human rights laid down in the Declaration and the International Covenants. Among these are conventions relating to discrimination and to the right to life.
In December 1948 the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. It came into force in 1961 and has now been ratified by eighty-two States. Genocide is defined in the Convention as the committing of certain acts with the intent to destroy, in whole, or in part, a national, ethnic, racial or religious group. Genocide is designated a crime under international law, whether committed in time of war or of peace.
The International Convention on the Elimination of all forms of Racial Discrimination entered into force in 1969 and has been ratified by ninety-seven States. It represents the most comprehensive United Nations statement regarding discrimination on the grounds of race, colour or ethnic origin. States parties to the Convention undertake to pursue a policy of eliminating racial discrimination in all its forms and to ensure the protection of special racial groups guaranteeing their members full and equal enjoyment of human rights and fundamental freedoms. A special Committee on the Elimination of Racial Discrimination was established under the Convention to supervise governmental compliance.
What are the functions of this Committee?
The Committee has four functions. The first, and hitherto its main occupation, is the examination of reports from States on the measures they have taken to implement the Convention. The second procedure, which has not yet been invoked by any State, allows the Committee to deal with inter-state complaints. The third allows the Committee to examine complaints from individuals against States, provided that the State concerned has recognized the right of private petition. This procedure is not yet operative as it requires at least ten States to have recognized this right and only five have done so, to date. The fourth function is to provide assistance to the UN organs which review petitions from inhabitants of trust and non-self-governing territories.
The way in which the Committee has conducted its task of handling and examining reports has yielded a measure of success insofar as getting States to file reports is concerned, and in ensuring that governments are represented at the examination of their reports. The latter procedure allows for eliciting additional information to that contained in the report. The Committee refrains from any formal condemnation and pursues the means of informal dialogue to encourage governments to comply with their obligations. It is entitled to make "suggestions and recommendations", but is dependent upon the General Assembly to endorse and give authority to these.
Can anyone who feels that human rights are being violated appeal to the United Nations?
Since its inception the United Nations has received annually thousands of complaints from individuals and organizations alleging violations of human rights. Between 1951 and 1971 there were 120,000 such communications.
What is done about them?
The Human Rights Commission, which is a subsidiary body to the Economic and Social Council, is the body primarily responsible for dealing with these complaints, but it has no power, under any of its procedures, to take action in respect of individual com¬ plaints. The method of dealing with complaints has been laid down by the Economic and Social Council.
Confidential lists of complaints are handed to members of the Commission, and States are informed of complaints against them; but replies received from States are not passed on to the person or organization submitting the complaint. In the early 1960s, the deep concern of many new nations with the colonial and racial attitudes in southern Africa prompted a move towards extending the United Nations measures so that gross violations of Human Rights could be dealt with. In 1967, the Economic and Social Council adopted a Resolution, instructing the Commission on Human Rights to "make a thorough study of situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of Apartheid"; and to report and make recommendations to the Economic and Social Council.
Fact-finding studies were then initiated, mainly concerned with southern Africa, followed later by fact-finding groups of government experts concerned with other territories. Despite the fact that none of these groups has ever been allowed to enter the territories concerned they have been able to gather a great deal of evidence on which subsequent resolutions of the General Assembly and the Commission on Human Rights have been based. The activities of these groups are carried out in public; but it has nevertheless been a restricted operation, as it has not been extended to situations beyond those mentioned.
In 1970, an Economic and Social Council Resolution set up a rather complex confidential procedure whereby complaints which reveal "a consistent pattern of gross and reliably attested violation of human rights and fundamental freedoms" should be examined. For the first time, evidence could be submitted not only by victims of violations, but also by any person, group or non-governmental organization with a direct and reliable knowledge of the violations.
The complaints are examined in the first instance by a Working Group of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (a subsidiary of the Commission on Human Rights), which makes recommendations to its Sub-Committee, which in turn makes recommendations to a Working Group of the Commission on Human Rights, which in turn makes recommendations to the Commission on Human Rights. The Commission on Human Rights has to decide whether to recommend to the Economic and Social Council that the situation requires a thorough study, and report on whether an ad hoc committee should be established to investigate the situation in cooperation with the State concerned.
The entire procedure is confidential until such time as the Commission on Human Rights makes a recommendation to the Economic and Social Council; hence there has been no official information hitherto regarding the operation of the procedure. For the first time, in March 1978, the Commission listed the countries which had been considered at its session that year under this procedure. To date, however, no situation has been publicly reported to have been recommended for further study.
This article is adapted from a longer study, Human Rights: Questions and Answers, prepared at UNESCO's request to serve as a model for teaching materials in human rights education. The author, Lean Levin is secretary of the Human Rights Committee of the United Nations Association of Great Britain and Northern Ireland.