Introduction
In today’s dynamic world countries are in constant conflict with each other. Each country wants to become a superpower and want to be one step ahead of their enemy countries. In such a scenario there is a need of an organization that can control International Law and provide some universal law that includes some basic rights which should be provided to everyone without any discrimination. The United Nation is the organization that had played this role by providing customary law regarding human rights. It provides each individual with some basic human rights without any discrimination and protects the weak.
Nature and Definition of Human Rights
“Human Rights are those moral rights held equally by all human beings unconditionally and unilaterally”.
Fenberg
Human Rights are absolute in nature and are inalienable which means that they cannot be taken away. They are available to everyone and are universal and unalterable. All rights are indivisible and interdependent upon each other. However some restrictions can be put by the state on these rights for the common public good.
“Human Rights are said to be fundamental rights to every man and women inhabiting in any part of the world shall be deemed entitled be merely by the virtue of having being born as human being”.
S.C. Kashyap
History of Relationship between Human Rights and United Nations
The League of Nations failed to do the job of maintaining the international peace. The World War 2 took life of too many innocent people. From there countries realised that there is a need of law for the protection of human rights. There was need of a new organization that can act globally and can have uniform laws for the countries so that the peace can be maintained.
On 14 August, 1941 The Atlantic Charter was also signed which contained the eight principles for a better world. On 2 January 1942 in came was Declaration of United Nations where 26 countries met to draft the founding provision of United Nation. It was the first time the word United Nations was being used.
On January 06, 1945 the President of the United States gave the Four Freedom Speech which included freedom of speech, worship, want and fear.
In 1945 in San Francisco, fifty non- government organisations came together and supported each other to include provision on human rights under the United Nations. Protest was done for the same which resulted that in seven places in the Charter of the United Nations the human rights were included.
In 1945 Nuremberg Tribunals also played an important role for human rights and took steps to punish people who violated human rights. It hold individual and important diplomats be punished for their crimes against the humanity. Murdering of the innocent civilians was declared as crime and their state power can’t defend them against such crimes.
After that Tokyo trials also came in 1946 to punish people who commit crimes against the human rights. This role is now played by the International Criminal Court which came into force on July 1, 2002 which prosecutes people for violating human rights by genocide, war crime etc.
United Nations
United Nations came into force in 1945. There are currently 193 member countries that are part of the United Nations. It has its own charter which contains the guiding principles for its working. It has 111 Articles in it divided into 19 Chapters. It is formed of bodies like General Assembly, Economic and Social Council, Security Council etc which are responsible for its working. The main aim of the United Nations is to promote peace and protection among the countries, so that the order of International Law is maintained. It also solves disputes arising among the different countries.
Role of United Nations in Human Rights
United Nations has played an important role in the development of human rights .In 1948 when Universal Declaration of Human Rights (UDHR) came into force it contained various provisions regarding the human rights. It was formed by the Economic and Social Council under Article 68 of the United Nations Charter and was a declaration of United Nation’s General Assembly. It has been described as the international magna carta of human rights. Although it was not binding upon state still it formed the part of customary international law.
United Nation has been given with the responsibility of “protection and promotion of human rights”. The role of the “promotion of the human rights” has been given to the General Assembly and Economic and Social Council along with Human Rights Council. They play a crucial role is spreading awareness regarding the human rights and keeps a check on the other states that they follow the laws which are binding upon them.
Talking about the “protection of human rights” by United Nation, it lacks the enforcement measures. The Security Council and International Court of Justice have some authority to take enforcement measures but those measures are not sufficient. Thus, United Nation has sufficient measures for promotion of human rights but have some loop holes in protection of the same.
United Nation Charter and Human Rights
United Nation Charter has several provisions which talk about the promotion and protection of human rights. These provisions are-
1. Preamble-
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.
The preamble of the United Nations specifically states about the removable of the discrimination among people irrespective of which country they belong and assumes the role to protect dignity of people. They want people to believe in their human rights provided to them and respect other people rights as well.
2. Article 1 Paragraph 3-
To achieve international co-operation 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.
This provision states that all the countries should co-operate with each other to solve all the human rights issues and to promote human rights without any discrimination among people.
3. Article 13 (1)(b)-
The General Assembly shall initiate studies and make recommendations for the purpose of promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
As General Assembly has been given the responsibility of promotion and protection of human rights, this provision tells about the power given to them. They can initiate studies regarding how all the countries can work together for protection of these rights. They can make recommendations regarding the same. This provision mainly focuses upon how human rights can be promoted.
4. Article 39-
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
This Article tells us about the power of the Security Council to take enforcement measures if there is any breach of peace. They can make the use of the armed forces to restore the peace and against the countries that do not follow the provisions under the Charter.
5. Article 55-
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
- higher standards of living, full employment, and conditions of economic and social progress and development;
- solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
- universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
This provision tells us that United Nation has been under the responsibility of promotion of all these rights mentioned above as these rights are necessary for the maintenance of peace and stability among the countries. They want that all the people should have equal human rights.
6. Article 56-
All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.
This Article has to be read along with Article 55. It states that all the countries should ensure that all the rights given under Article 55 are being followed or not. This article also talks about the co-operation among the countries for the protection of human rights. They can co-operate with other states or can take action separately along with United Nation’s help.
7. Article 62-
- The Economic and Social Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.
- It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.
This Article tells about the power of Economic and Social Council.it can just like the General Assembly initiate studies and make recommendations regarding the rights contained in this provision. It also plays the role of promotion of the human rights.
8. Article 68-
The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.
This Article tells that Economic and Social Council has to set up other commissions under it so that the economic and social rights of people can be protected. The Commission on Status of Women and Commission on Human Rights are two such commissions.
9. Article 76 (c) –
The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world.
This Article specifies about the role of Trusteeship Council and there role to promote human rights without any discrimination. The aim is to provide basic rights to everyone to which each and every person must be entitled universally.
Protection System for Human Rights under United Nation
There are two kind of protection system for the human rights under United Nation which are-
1) United Nation Human Rights Framework-
Under this there are three Charter based bodies which are-
a. Human Rights Council
Under Article 68 of the United Nation Charter first there was a Commission on the Human Rights which was formed by the Economic and Social Council. It was originally 18 membered body which gradually increased to 53 members. This Commission was responsible for the formation of the UDHR, ICCPR and ICESR. It also provided advisory services to various countries. However in 2001 the United States didn’t get a seat in the Commission and the country like Libya got elected. It was the time when United States wanted the formation of the new body.
In 2006 Commission was dissolved and a new body Human Rights Council was formed in its place which reported directly to General Assembly. It consists of the 47 members who are elected by the voting in the General Assembly. The period for which the countries can get elected is 3 years and they can get elected for consecutively 2 elections.
Now the Human Rights Council has four procedures it-
- Universal Periodic Review– In this every member country performance is reviewed in the field of human rights. A working group is formed under this which is assisted by a body name TROIKA which consists of 3 member countries appointed by draw of lots.
Every year 42 countries are reviewed. They have to submit the report of their performance to the working group. Every country has to submit its report for every 4 year 6 months. There are three king of reports that have to be submitted which are Report of the State, Shareholder Report and Office of High Commissioner on Human Rights Report. Every country report is reviewed and other countries can ask questions regarding the same.
- Complaint Procedure– Under this complaint can be filed by one country against another if there is a violation of human right. The complaint can be filled to the Council. The procedure for the complaint hasn’t changed and is same as before which was at the time of the Commission. There are two working group formed under this. On is Working Group of Communication and the other is Working Group of Situation.
- Special Procedure– It is formed for the observatory role. They observe everything and remain in direct touch with the Council and inform them everything. It consists of four groups which are Independent Experts, Special Rapporteurs, Working Groups and Special Representative of Security General.
- Advisory Committee– They advise the Council on various matters referred to them by the Council.
b. Office of High Commissioner on Human Rights (OHCRC)
This was created in 1993 under the Vienna Conference. This body is headed by the High Commissioner, who is appointed for a period of four year. He is the person under whose control all the activities of this body takes place. It also consists of the Deputy High Commissioner and Assistant Secretary General is also appointed. The mandates of OHCRC are-
- To promote and protect the human rights without any discrimination on race, caste, sex, and religion.
- To carry out any specific responsibility given to it by any other United Nation’s body to complete.
- To give advisory and financial services to the other countries so that the protection of human rights can be done.
- To indulge in all the relevant programmes of the United Nation to promote the human rights.
- They all remove all the hindrances so that working can be done smoothly and strengthen the United Nation machinery.
c. Commission on Status of Women (CSW)
This body was established by the Economic and Social Council which consists of 45 members. This body is specifically formed to protect the human rights of women and aimed at promotion of these rights. The Beijing Conference played an important role in its formation. It was the result of this Conference only that CSW came into force.
They in their initial years found the standing of the women in different countries. Their main focus was to constitutionalize the basic human rights for women. They worked with different Non-Governmental Organisations around the world to spread the awareness about the rights of the women.
The Commission formulated its first Convention in 1953 which was The Convention on the Political Rights of Women which promoted and protected the political rights of the women. But the most important that came was Convention on Elimination of all forms of Discrimination against the Women (CEDAW) in 1979 along with its Optional Protocols which came in 1999.
2) Human Rights Treaty Framework
Treaty puts up the legal obligation on the country who signs them as they become binding on them. They have mandatorily provides all the rights given in the treaty to the people of their country except in cases of certain exceptions. These treaties promote the human rights and provide the procedure to implement them in case where country fails to provide them.
There are 9 Treaties that form the framework which are-
- The International Covenant on Economic, Social and Cultural Rights
- The International Convention on Elimination of All form of Racial Discrimination
- The International Covenant on Civil and Political Rights
- The Convention on Rights of the Child
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- The Convention of Elimination of All forms of Discrimination against Women
- The Convention on Rights of Persons with Disabilities
- The International Convention on the Protection of the Rights of All Migrants Workers and Members of their Family
- The International Convention for the Protection of All Persons from Enforced Disappearances
All the Treaties formed under this have their own committees. Each committee monitor the different countries who have signed their treaty that whether the treaty obligations are being fulfilled or not. For this the reports are submitted by each country showing their performance in providing the rights given under the treaty. Procedures have been made for complaint in case of failure to perform obligations.
3) Complaint System under Treaties
The various Treaties that have been formed by the United Nation gives the rights to make complaints if there is a violation of human rights by one country upon whom treaty is binding. There are two types of complaints-
· Complaints by the States-
Complaint can be made by country against another if there is failure to fulfil the obligations under the treaty. The complaint can be made to the respective Committees formed under the treaty. Then there is a procedure of conciliation provided for the settlement of disputes
.
· Complaints by the Individuals-
Complaints can also be taken up by the Committees of individuals against the country to which they are nationals if there is failure in fulfilling the obligations. The Optional Protocol to the Treaties provides this right. Country must have ratified both the Treaty and Optional Protocol to exercise this right.
Conclusion
We can conclude that the United Nation has played a crucial role in the field of human rights. It has various bodies and legal instruments under its control that in working for protection of human rights. Its Charter aims for the welfare of people. It has got its own protection system which monitors the action of each and every country. However United Nations has successfully promoted the human right but there are still some loop holes as to the enforcement measures. It doesn’t have strict measures to act against a country who violates the laws.
References
- https://en.wikipedia.org/wiki/United_Nations
- https://www.un.org/en/sections/what-we-do/protect-human-rights/
- https://www.unwomen.org/en/csw/brief-history
- https://www.humanrights.gov.au/our-work/education/human-rights-explained-fact-sheet-8promoting-and-protecting-human-rights-un
- https://www.un.org/en/sections/un-charter/preamble/index.html
- https://www.ohchr.org/Documents/Publications/FactSheet30Rev1.pdf
- Dr. H.O. Agarwal, Human Rights, Central Law Publication, 6th Edition, 2018
Questions
- Explain the history of formation of United Nation?
- Explain the provisions under United Nation Charter that talk about human rights?
- Explain the Human Rights Council working?
- How treaties of United Nation protect human rights?
- What are the mandates of OHCRC?
