 ENFORECMENT ESSAY

The statement in the question refers to a discussion of general protection of Human Rights and the enforcement
mechanism adopted by United Nations. It demands a contrast with the procedure adopted by UN bodies in protection of
rights all over the world with the procedure and mechanism of courts in granting remedies. The essay will tend to agree
with the statement and will illustrate how both the mechanisms differ from each other, by discussing in detail the
Charter Bodies and the Treaty Bodies. Steiner and Alston (2000) observe that for individuals whose human rights have
been violated, and for the groups that seek to defend them, the effectiveness of the UN’s human rights system
depends to an important degree upon its ability to ‘enforce’ respect for the legal norms that originated within it.

When discussing the work UN in regards with the protection of Human Rights, there is an important distinction that
needs to be acknowledged, that is between the promotion and protection of rights. This often gets blurry. Within the UN
the bodies can be classified into two groups. First group includes those who derive their authority from the UN Charter
itself, they are known as the Charter bodies. While the second category includes those bodies that have been created
under various human rights treaties and are known as the Treaty Bodies. The distinction relates to the source of
authority to promote and protect human rights. When the Charter bodies are concerned politics play a role in the design
of the mechanisms and methods of enforcement, while Treaty Bodies are generally independent of political matters.

The Human Rights Council and its predecessor, the Commission on Human Rights, are called "Charter-based" as they
were established by resolutions of principal organs of the UN whose authority flows from the UN Charter. The UN
initially established, the Commission on Human Rights. In 1946, the Economic and Social Council (ECOSOC), relying on
the authority mandated to it by the UN Charter, passed a resolution that created the Commission on Human Rights. The
Commission was charged with various functions, one of which was to alert the Security Council to abuses of human
rights. One of the first tasks of the Commission was to draft the Universal Declaration on Human Rights (UDHR), which
was thereafter presented before the General Assembly on 10 December 1948. The Commission then went on to draft
two further human rights treaties: the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, which were both adopted in 1966. Collectively, the three documents
are known as the International Bill of Human Rights.

The Procedure 1503 enabled Commission on Human Rights to investigate specific types of complaints- those which
appear to show consistent or widespread patterns of gross and reliably attested human rights abuses and it applies
broadly to any country in the world, not only UN members. While another Procedure 1235 allowed the Commission on
Human Rights to create an ad hoc working group of its own members for public study of gross violations of human
rights. So despite much valuable work, the Commission on Human Rights began to be seen as far too political and
therefore compromised and discreditable. As a result, a successor body, the UN Human Rights Council was established in
2006.

Commission on HRs had created what were generally known as special mechanisms/special procedures, which were
then carried forward by the HR Council after its creation in 2006. These procedures consisted of experts (University
professors, HR Lawyers etc.), who sought to set standards, examine themes and evaluate situations in states. They work
on either thematic or country mandate. There are rapporteurs, independent experts or working groups examining the
situation in, for example, the Occupied Palestinian Territories; Cambodia; the Democratic Republic of Congo; North
Korea and Somalia. In terms of themes, the issues currently under examination include religious freedom; the right to
food; torture; the death penalty; arbitrary detention; disability; indigenous peoples and the rights of older people.

Rapporteurs are independent and operate in their personal capacity with a brief that covers certain mandates. A
mandate requires a rapporteur or working group to examine and report on either human rights abuses in specific
countries (country mandate), or to examine a major issue of general concern (a thematic mandate). There are at least
three different interpretations of the role of rapporteur. The first highlights the fact finding and documentation function
of the role, the second sees the office primarily in terms prosecutorial/ publicity function, and the third stresses the
conciliation function.

The functions undertaken by the Special procedures primarily include 4 functions. First one entails the Standard Setting,
which entails taking an action on alleged violations, usually by means of correspondence with the government
concerned or occasionally by a public statement. Second function known as the Country Reporting, undertake fact
finding missions to specific countries to examine the situation and make recommendations to the government and the
Council. Third involves Examining complaints, which requires to undertake studies of a particular right or issue with a
view to enhancing understanding and perhaps contributing to the process of developing jurisprudence. And lastly,
Carrying out the Universal Periodic Review: report annually to the Council and in some cases also the General
Assembly. Therefore, these procedures along with the services of Rapporteurs enable the Charter bodies to keep a
watch on the rights that re breached all over the world and ensure that the victims are compensated accordingly by
effectively enforcing the provisions of the Charter.

Moving on to discuss the Treaty Bodies, it’s important to note that there are a number of human rights treaty bodies
that derive their powers from the treaties. These bodies derive their existence from provisions contained in a specific
legal instrument; hold more narrow mandates (the set of issues codified in the legal instrument) and address a limited
audience: only those countries that have ratified the legal instrument. There are ten human rights treaty bodies that
monitor implementation of the core international human rights treaties. Those include The International Covenant on
Civil and Political Rights (CCPR), Committee on Economic, Social and Cultural Rights (CESCR), Committee on the
Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination against Women (CEDAW),
Committee against Torture (CAT), Sub-committee on Prevention of Torture (SPT), Committee on the Rights of the Child
(CRC), Committee on Migrant Workers (CMW), Committee on the Rights of Persons with Disabilities (CRPD) and the
Committee on Enforced Disappearances (CED).

The first one of the above mentioned treaty bodies, which is also known as the HR Committee, is the body of
independent experts that monitors implementation of the ICCPR by its State parties. All States parties are obliged to
submit regular reports to the Committee on how the rights are being implemented. States must report initially one year
after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee
examines each report and addresses its concerns and recommendations to the State party in the form of "concluding
observations”. Furthermore, the First Optional Protocol to the Covenant gives the Committee competence to examine
individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol. While the
Second Protocol concerns the abolition of the death penalty is seen as central to the enhancement of human dignity and
progressive development of human rights.

The HR Committee has four primary functions to perform. First one entails the consideration of the states’ reports. The
essence of which is that diverse and accurate information is essential to the Committee’s work. Second function involves
the adoption of ‘General Comments’ . Philip Alston observes that General Comments are significant because many
“international human right norms are notoriously, but unavoidably, vague or open-ended.” Hellen Keller and Leena
Grover describe them as “secondary soft law instruments”, meaning sources of non-binding norms that interpret and
add detail to the [relevant] rights and obligations. Third one involves the examination of ‘communications,’ i.e.
complaints from individuals claiming to be victims of violations by state parties of the Covenant. However one of the
biggest challenges for the Committee is its inability to undertake independent fact-finding when confronted with
contradictory evidence offered by a complainant and a state party.E.g. the Committee responded to a claim that an
individual on death row in Guyana had been tortured by stating that it is generally not in the position to assess facts and
evaluate evidence presented before a domestic court. In regards to the particular claim, however, the Committee took
the view that the individual’s right to a fair trial was violated (Deolall v Guyana). Last function involves an interstate
complaints procedure.

It is clear from the discussion above that the UN human rights treaty bodies consider state reports and communications.
The fact that the same body engages in both constructive dialogues through the reporting procedure with state
representatives and also sits in judgment upon a state’s compliance with its obligations under the same treaty is not
without problems. The first problem entails a concern for the workload of the individuals involved. More importantly,
there may be the potential incompatibility of the two. It is a hard assignment for one body, first to engage a state party
in constructive, fruitful dialogue and then for the same body to behave as a quasi-judicial investigative and settlement
body. Despite these concerns Communications allow detailed legal analysis and determination of the extent to which a
state party is complying with its obligations in a way that the reporting system simply does not. Criticism of the
duplication of effort can be rejected on the basis that as the same body will be involved in both compliance mechanisms,
it can utilize its own work for both procedures. The relationship between communications and reporting is a complex
one but both systems can function more effectively if used in a complementary manner.

Conclusively, it’s submitted that the UN system doesn’t operate in a court like fashion. Rather, the Charter and the
Treaty Bodies effectively have an oversight and reporting function. They also initiate debates and publicize good and bad
practices. It’s evident that these methods are not similar to a court applying a remedy. Nonetheless, it might be fair to
argue that they do indeed operate to build pressure on Nations to rectify their HR abuses. However, there is a need to
reform in certain areas where UN Treaty Bodies lack. . Approximately 85% of States parties are unable to comply with
their reporting obligations to the TB system. The treaty bodies’ workload has significantly increased which resulted in
the huge backlogs in the consideration of reports and individual communications. An improved treaty body system will
impact positively on the human rights by States.