DEPARTMENT OF LAW & CONTINUING LEGAL EDUCATION

HUMAN RIGHTS: MECHANISMS & SYSTEMS

The History of Human Rights

Being human is being a member of the Homo sapiens species; a man, woman or child;
a person. Rights are things to which a person is entitled or allowed and freedoms
that are guaranteed. These are human entitlements simply by virtue of being human.

Human rights are based on the principle of respect for the individual. Their
fundamental assumption is that each person is a moral and rational being who
deserves to be treated with dignity. They are called human rights because they are
universal. Whereas nations or specialized groups enjoy specific rights that apply
only to them, human rights are the rights to which everyone is entitled—no matter
who they are or where they live—simply because they are human.

In ages past, there were no human rights. Then the idea emerged that people should
have certain freedoms. That idea, in the wake of World War II, resulted finally in the
document called the Universal Declaration of Human Rights and the thirty rights to
which all people are entitled. However, when exactly did Human Rights start?

In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia (Iran),
conquered the city of Babylon. However, it was his next actions that marked a major
advance for Man.

This Iron Age dynasty, sometimes called the Achaemenian Empire, was a global hub
of culture, religion, science, art and technology for more than 200 years (before it fell
to the invading armies of Alexander the Great of the Greek ancient Kingdom of
Macedonia.)

Cyrus the great freed the slaves, declared that all people had the right to choose their
own religion, and established racial equality. These and other decrees were recorded
on a baked-clay cylinder in the Akkadian language with cuneiform script. This was
referred to as the Cyrus Cylinder.

Known today as the Cyrus Cylinder, this ancient record has now been recognized as
the world’s first charter of human rights. It is translated into all six official languages

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of the United Nations and its provisions parallel the first four Articles of the
Universal Declaration of Human Rights.

From Babylon, the idea of human rights spread quickly to India, Greece and
eventually Rome. It is from Rome that the concept of “natural law” arose, in
observation of the fact that people tended to follow certain unwritten laws in the
course of life, and Roman law was based on rational ideas derived from the nature of
things. The Roman jurist and philosopher Cicero (106–43 BCE) in what some would
say definitive, conception of what is called “natural law.” In his work De
republica (On the Republic), he famously held that:

“true law is right reason in agreement with nature…to curtail this law is impious,
to amend it illicit, to repeal it impossible…nor will it be one law at Rome and a different one
at Athens, but one and the same Law, eternal and unchangeable”
Documents asserting individual rights, such as the Magna Carta (1215), the Petition
of Right (1628), the US Constitution (1787), the French Declaration of the Rights of
Man and of the Citizen (1789), and the US Bill of Rights (1791) are the written
precursors to many of today’s human rights documents.

The Magna Carta (1215) or “Great Charter,” was arguably the most significant early
influence on the extensive historical process that led to the rule of constitutional law
today in the English-speaking world.

In 1215, after King John of England violated a number of ancient laws and customs
by which England had been governed, his subjects forced him to sign the Magna
Carta, which enumerates what later came to be thought of as human rights. Widely
viewed as one of the most important legal documents in the development of modern
democracy, the Magna Carta was a crucial turning point in the struggle to establish
freedom.

Petition of Right (1628). The next recorded milestone in the development of human
rights was the Petition of Right, produced in 1628 by the English Parliament and sent
to Charles I as a statement of civil liberties.

The Petition of Right, initiated by Sir Edward Coke, was based upon earlier statutes
and charters and asserted four principles: 1. No taxes may be levied without consent
of Parliament 2. No subject may be imprisoned without cause shown (reaffirmation
of the right of habeas corpus) 3. No soldiers may be quartered upon the citizenry 4.
Martial law may not be used in time of peace. In 1628 the English Parliament sent
this statement of civil liberties to King Charles I.

The English Bill of Rights (1689). A determined attempt by King James II (1685–88) to
reinstate Catholic worship in England, coupled with his increasingly authoritarian
responses to the mainly protestant resistance, resulted in a wave of unrest in 1688.

James’s eldest daughter Mary, a Protestant, was the rightful heir to the
throne until 1688 when James had a son, James Francis Edward Stuart,

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whom he announced would be raised Catholic. The birth of James’s son
changed the line of succession, and many feared a Catholic dynasty in
England was imminent.

In November in what is known as the Glorious Revolution which involved the

bloodless overthrow of the Catholic King James II, who was replaced by his
(eldest) Protestant daughter Mary and her Dutch husband, William of
Orange (1688-1689). A Dutch force led by Prince William of Orange (the future King
William III, (1689–1702) invaded England in support of the king’s opponents. After
James’s army had crumbled and he had fled to France, where his Catholic
cousin Louis XIV held the throne.

William and Mary summoned a new Parliament, the ‘Convention’ that voted that
King James II had ‘abdicated the government’ by ‘breaking the original contract
between King and people’. Having ‘withdrawn himself out of the government’,
James had left the throne vacant.

On 13 February, both Houses went together where they offered William and Mary
the Crown, together with their Declaration of Rights. William III and Mary II,
who became co-rulers in England after the overthrow of King James II .

The English Bill of Rights is regarded as the primary law that set the stage
for a constitutional monarchy in England. It’s also credited as being an
inspiration for the U.S. Bill of Rights.

James II was eventually replaced by his Protestant daughter, Mary, and her
Dutch husband, William of Orange. The two leaders formed a joint
monarchy and agreed to give Parliament more rights and power.

Part of this settlement included signing the English Bill of Rights, which
was formally known as “An Act Declaring the Rights and Liberties of the
Subject and Settling the Succession of the Crown.”

The Bill of Rights condemned
declared that the monarchy
Parliament. The English Bill of
England, meaning the king or
powers are limited by law.
King James II for abusing his power and
could not rule without consent of the
Rights created a constitutional monarchy in
queen acts as head of state but his or her

United States Declaration of Independence (1776). On July 4, 1776, the United States
Congress approved the Declaration of Independence.

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Its primary author, Thomas Jefferson, wrote the Declaration as a formal explanation
of why Congress had voted on July 2 to declare independence from Great Britain,
more than a year after the outbreak of the American Revolutionary War, and as a
statement announcing that the thirteen American Colonies were no longer a part of
the British Empire. Congress issued the Declaration of Independence in several
forms. It was initially published as a printed broadsheet that was widely distributed
and read to the public.

Philosophically, the Declaration stressed two themes namely; individual rights and
the right of revolution. These ideas became widely held by Americans and spread
internationally as well, influencing in particular the French Revolution.

The Constitution of the United States of America (1787). Written during the summer
of 1787 in Philadelphia, the Constitution of the United States of America is the
fundamental law of the US federal system of government and the landmark
document of the Western world. It is the oldest written national constitution in use
and defines the principal organs of government and their jurisdictions and the basic
rights of citizens.

Declaration of the Rights of Man and of the Citizen (1789) . In 1789 the people of
France brought about the abolishment of the absolute monarchy and set the stage for
the establishment of the first French Republic. Just six weeks after the storming of
the Bastille, and barely three weeks after the abolition of feudalism, the Declaration
of the Rights of Man and of the Citizen was adopted by the National Constituent
Assembly as the first step toward writing a constitution for the Republic of France.
The Declaration proclaims that all citizens are to be guaranteed the rights of “liberty,
property, security, and resistance to oppression.” The Declaration of the Rights of
Man and of the Citizen granted specific freedoms from oppression, as an
“expression of the general will.”

Bill of Rights (1791) The Bill of Rights of the US Constitution protects basic freedoms
of United States citizens. The first ten amendments to the Constitution—the Bill of
Rights—came into effect on December 15, 1791, limiting the powers of the federal
government of the United States and protecting the rights of all citizens, residents
and visitors in American territory. The Bill of Rights protects freedom of speech,
freedom of religion, the right to keep and bear arms, the freedom of assembly and
the freedom to petition. It also prohibits unreasonable search and seizure, cruel and
unusual punishment and compelled self-incrimination.

The First Geneva Convention (1864). In 1864, sixteen European countries and several
American states attended a conference in Geneva, at the invitation of the Swiss
Federal Council, on the initiative of the Geneva Committee. The diplomatic
conference was held for the purpose of adopting a convention for the treatment of
wounded soldiers in combat. The main principles laid down in the Convention and
maintained by the later Geneva Conventions provided for the obligation to extend
care without discrimination to wounded and sick military personnel and respect for
and marking of medical personnel transports and equipment with the distinctive
sign of the red cross on a white background.

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The Geneva Conventions and their Additional Protocols is a body of Public
International Law, also known as the Humanitarian Law of Armed Conflicts, whose
purpose is to provide minimum protections, standards of humane treatment, and
fundamental guarantees of respect to individuals who become victims of armed
conflicts. The Geneva Conventions are a series of treaties on the treatment of
civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de
combat (French, literally "outside the fight"), or incapable of fighting.

The United Nations (1945). World War II had raged from 1939 to 1945, and as the
end drew near, cities throughout Europe and Asia lay in smoldering ruins. Millions
of people were dead; millions more were homeless or starving. Russian forces were
closing in on the remnants of German resistance in Germany’s bombed-out capital of
Berlin. In the Pacific, US Marines were still battling entrenched Japanese forces on
such islands as Okinawa.

In April 1945, delegates from fifty countries met in San Francisco full of optimism
and hope. The goal of the United Nations Conference on International Organization
was to fashion an international body to promote peace and prevent future wars. The
ideals of the organization were stated in the preamble to its proposed charter: “We
the peoples of the United Nations are determined to save succeeding generations
from the scourge of war, which twice in our lifetime has brought untold sorrow to
mankind.” The Charter of the new United Nations organization went into effect on
October 24, 1945, a date that is celebrated each year as United Nations Day.

Modern international human rights movement essentially emerged out of the ashes
of the World War II following the horrific experiences. The international community
then sought to create a mechanism that would capture the hopes, aspirations and
protections to which every person in the world was entitled and ensure that the
future of mankind would be different.

The most important factor that contributed to the current prominence of human
rights was the readiness of the international community to address some of the most
critical problems that faced the World War II leading to the San Francisco Meeting
that drafted the United Nations Charter in which members pledged to promote
respect for human rights. To advance this goal, the UN established a commission on
Human Rights charged with the task of drafting a document spelling out the
meaning of the fundamental rights and freedoms proclaimed in the charter.

The Universal Declaration of Human Rights (1948). By 1948, the United Nations’
new Human Rights Commission had captured the world’s attention. Under the
dynamic chairmanship of Eleanor Roosevelt— President Franklin Roosevelt’s
widow, a human rights champion in her own right and the United States delegate to
the UN—the Commission set out to draft the document that became the Universal
Declaration of Human Rights. Roosevelt, credited with its inspiration, referred to the
Declaration as the international Magna Carta for all mankind. It was adopted by the
United Nations on December 10, 1948. The Universal Declaration of Human Rights

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has inspired a number of other human rights laws and treaties throughout the
world.

In its preamble and in Article 1, the Declaration unequivocally proclaims the

inherent rights of all human beings: “Disregard and contempt for human rights have
resulted in barbarous acts which have outraged the conscience of mankind, and the
advent of a world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of
the common people...All human beings are born free and equal in dignity and
rights.”

The Member States of the United Nations pledged to work together to promote the
thirty Articles of human rights that, for the first time in history, had been assembled
and codified into a single document. The declaration was intended to become a
common standard of achievement for all people and nations. Over the years the
Declaration has acquired the status of Customary international law because most
states treat it as though it were law.

Another factor that played an important role in promoting human rights was the
emergence of the human rights movement and the growth of human rights
organizations. For instance, in 1961, a group of lawyers, journalists, writers and
others formed Appeal for Amnesty following the sentencing of two Portuguese
students to twenty years in prison; in 1978 the Helsinki watch merged with others to
form Human Rights Watch started by Russian activists. Chinese Democracy wall
Movement of 1979, Amnesty International particularly gained permanent observer
status as an NGO at the UN.

In consequence, many of these rights, in various forms, are today part of the
constitutional laws of democratic nations. Today all states have accepted the idea of
human rights in some form. The concept has been incorporated in virtually all
national constitutions although universal political and legal acceptance does not
guarantee equal respect for human rights.

The Human Rights Standards

The first major achievement of the UN in human rights was the adoption of the
Universal Declaration of Human Rights by the United Nations General Assembly
(UNGA) on 10th December 1948. The UNGA proclaimed the declaration to be a
common standard of achievement for all people and Nations. The Declaration
affirms the freedom, equality and dignity of all human beings and establishes the
basic principles like non-discrimination and equality before the law.

The Declaration includes civil and political and well as economic social and cultural
right, but these two categories of human rights were later divided into two: The
International Covenant of Economic Social and Cultural Rights (ICESCR)and the
International Covenant on Civil and Political Rights (ICCPR) and its Optional
Protocols.

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The reason for the split was two- fold; Firstly, Cold war politics. The cold war (1945-
1990) was a restricted rivalry that developed after World War II between groups of
nations practicing different ideologies and political systems. On the one side were
the union of Soviet Socialist Republics (USSR) and its allies often referred to as the
eastern Bloc. On the other hand, were the United States of American and its allies,
usually referred to as the Western Bloc.

The struggle was called the cold war because it did not actually lead to fighting or
hot war on any scale. However, there were proxy wars because they were fought by
the allies rather than the super powers themselves along with competition for
influence in the third world and a major super power arms race. This war increased
the likelihood of a third world war with the USA accusing the Soviet Union of
seeking to expand its version of communism through the world while The USA was
accused of practicing imperialism and attempting to stop revolutionary activity in
other countries.

The second rationale for the split of the ICCPR and ICESC R was that civil and
political rights were subject to immediate application, whereas economic social and
cultural rights require progressive realization and that therefore different
implementation measures were needed.

The Declaration contains Civil and political rights in articles 3 to 21 while the ICCPR
develops these rules and makes them binding for all states for instance the right to
life, right not to be subjected to torture cruel inhuman and degrading treatment,
prohibition of slavery, right not to be subjected to arbitrary arrest or detention,
prohibition against retroactive legislation, right to recognition everywhere as a
person before the law, freedom of thought, conscience, expression and religion,
freedom of movement, right to of the citizen to take part in the government of his or
her country etc.

The ICCPR permits the state to suspend the enjoyment of certain rights in cases of
officially proclaimed public emergencies which threaten the life of the nation. The
suspension is permitted only to the extent strictly required by the exigencies of the
situation so long as it does not involve discrimination on the ground of race, colour,
sex, language religion or social origin.

The Economic social and cultural rights set out in the ICESCR include the right to
work, right to enjoy juts and favorable conditions of work, right to social security,
right to education etc. Article 2 of the ICESCR requires states to undertake to take
steps individually through internationals assistance and cooperation to the
maximum of its available resources with a view to achieving progressively the full
realization of the rights recognized in the covenant. It is obviously difficult to
monitor to determine violations of these rights especially determining what
constitutes the maximum of available resources

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DEPARTMENT OF LAW & CONTINUING LEGAL EDUCATION

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 HUMAN RIGHTS: MECHANISMS & SYSTEMS

Sources Of Human Rights

Human rights are basic rights and freedoms to which all humans are entitled
such as civil and political rights like the right to life, freedom of thought and
expression; socio-economic and cultural rights. Human rights law is generally
part of public law. The source of human rights is basically historic and over time
it began to evolve through many sources. Sources of human rights include;

a) International treaties or conventions. International treaties are contracts

between states. They are legally binding and impose mutual obligations on
the states that are party to any particular relationship. Although sources of
human rights law are not hierarchical, treaties have a degree of primacy.
Treaties bear various titles including “covenant” “convention”, “protocol”

Treaties include Universal Declaration of Human rights, The international

convention on Economic Social and cultural rights, international convention
on civil and political rights, convention on the rights of the Child, optional
protocols etc Treaties have been adopted at the universal level ( within the
framework of the United Nations) and its agencies, for instance the ILO,
UNESCO as well as under the auspices of regional organizations such as the
Council of Europe (CoE) , The Organization of American States ( OAS). These
organizations have greatly contributed to the codification of a comprehensive
and consistent body of human rights.

b) International customs. This is essentially international customs. According to

the Statute of international Court of Justice refers to general practice accepted
as law. international custom is general practice representing a broad
consensus in terms of content and applicability deriving from a sense that
practice is obligatory (Opinio juris et necessitatis) whether or not they have
ratified any relevant treaty. For example, the Universal Declaration of Human
rights is one of the foremost sources of international custom.

c) General principles of law. These are logical propositions resulting from

judicial reasoning on the basis of exiting pieces of international law. These
principles occupy an important place in case law. For example, the principle
of proportionality which is important for human rights supervisory
mechanisms in assessing whether the interference with a human right may be
justified.

d) Judicial decisions. These are regarded as evidence of the state of the law.
These decisions are not confined to decisions of the international court of
justice (ICJ) and international human rights tribunals. These judicial decisions
are not confined to international decisions of the ICJ, the Inter- American
Court, The European Court of human Rights or the African Court on Human
Rights. They include decisions of tribunals relating to human rights

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e) Writings of the most qualified publicist and scholars. These together with
judicial decisions contribute to the development and analysis of human rights
law. These are subsidiary and indirect sources. Nevertheless, influential
contributions have been made by scholars and experts working in human
rights fora for instance the UN Sub-Commission on the promotion and
protection of Human Rights as well as NGOs such as Amnesty International
and the International Commission of jurists.

f) Soft law. This term is a description for a variety of non-legally binding

instruments used in contemporary international relations. This encompasses
among others, resolutions of the United Nations General Assembly, inter-sate
conference declarations, international standards adopted by transnational
networks of regulatory bodies.

The ICJ has in a number of cases utilized resolutions of the United Nations
General Assembly (UNGA) for instance the Advisory Opinion on the Legality
of the Threat of Use of Nuclear weapons, the ICJ asserted that the UNGA
resolutions may have “normative value and in particular provide evidence of
establishing the existence of a rule or the emergence of an opinion juris.
Secondly the ICJ observed that UNGA resolutions shows the gradual
evolution of the opinion juris required for the establishment of a new rule.

g) National constitutions and legislation.

DEPARTMENT OF LAW & CONTINUING LEGAL EDUCATION

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 HUMAN RIGHTS: MECHANISMS & SYSTEMS

THE UNITED NATIONS MECHANISMS & SYSTEMS (THE INTERNATIONAL

SYSTEM):

Charter Based Mechanisms & Systems

The United Nations (U.N.) is a global diplomatic and political organization

dedicated to international peace and stability. The U.N. was officially established in
1945 following the horrific events of World War II, when international leaders
proposed creating a new global organization to maintain peace and avoid the abuses
of war. The U.N. initially had just 51 member states; today, the organization, which
is headquartered in New York City, has 193 members. Major U.N. initiatives include
preventing conflict by exploring options to ensure peace, providing food and
medical assistance in emergencies, and offering humanitarian support to millions of
people around the world. While the United Nations is sometimes criticized for its
policies, bureaucracy and spending, the organization has accomplished hundreds of
successful peacekeeping missions.

Atlantic Charter

After World War I, an international group developed the League of Nations to solve
disputes between countries. When World War II started, the initiative failed but
highlighted the need for a new, reformed organization that could promote global
peace.

In August 1941, Franklin D. Roosevelt and Winston Churchill held a secret meeting
where they discussed the possibility of starting an international peace effort. They
came up with a declaration called the Atlantic Charter, which outlined ideal goals of
war and paved the way for the development of the U.N.

The United States joined the war in December 1941, and the title “United Nations”
was first adopted to identify the countries that allied against Germany, Italy and
Japan.

Representatives from 26 Allied nations met in Washington, D.C. on January 1, 1942

to sign the Declaration of the United Nations, which essentially described the war
objectives of the Allied powers. The United States, United Kingdom and Soviet
Union led the charge.

U.N. Charter

Over the next few years, several meetings took place to draft a post-war charter that
would decisively describe the roles of the U.N.

The main principles and structure of the United Nations Charter were determined
by leaders at the United Nations Conference on International Organization (UNCIO)
in San Francisco on April 25, 1945.

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After the war ended, the official United Nations Charter was ratified by 51 members
on October 24, 1945.

United Nation’s Four Main Goals

The organization’s purpose and principles are outlined in the U.N. Charter.
According to the document, the United Nations’ four main purposes are to:

 Maintain international peace and security;

 Develop friendly relations among nations;
 Achieve international cooperation in solving international problems; and
 Be a center for harmonizing the actions of nations in the attainment of these
common ends.

The specific human rights charter-based bodies have certain characteristics;

 Derive their establishment from provisions contained in the Charter of the

United Nations, 1945.
 Hold broad human rights mandates

The United Nation’s work in human rights is carried out by a number of human
rights bodies. A distinction must be made between Charter-based and treaty-based
human rights bodies. Charter-based bodies include;

1. The United Nations General Assembly (UNGA) which is the supreme

governing body of the UN in which all the member states are represented,
each with one vote. Article 13(1) of the UN charter empowers the UNGA to
initiate studies and make recommendations for the purpose of assisting in the
realization of human rights and fundamental freedoms for all.

2. The Security Council consists of five permanent and ten non-permanent

members elected for two years. The Security Council has five permanent
members—China, France, Russia, the United Kingdom, and the United States
—collectively known as the permanent Five (P5). Any one of them can veto a
resolution. The Security Council's veto power is granted solely to its
five permanent members, which allows them to block any resolution or
decision, whatever the majority opinion within the Council. The council’s ten
elected members, which serve two-year, non-consecutive terms, are not
afforded veto power.

The P5’s privileged status has its roots in the United Nations’ founding, in the
aftermath of World War II. The United States and Soviet Union were the
outright victors of the war, and, along with the United Kingdom, they shaped
the post war political order.

Article 34 of the UN charter entrusts the security council with the primary
responsibility for the maintenance of international peace and security.

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 The security Council in its mandate now considers gross violations of human
rights violations creating conflict and mass movements of refugees and
internally displaced threaten international peace and security. For decades,
however, human rights were seen as being largely outside the scope of the
Security Council and were seldom mentioned within its confines. Human
rights were widely perceived as a matter of state sovereignty in their
deliberations about international peace and security. But, after several
decades when most items on the Council agenda had been conflicts between
states, the nature of the situations the Council needed to address changed
towards the end of the 1980s increasingly to internal conflicts. In these
situations, human rights violations are often among the first warning signs of
a looming conflict; they may be part of a conflict’s root causes.

3. Trusteeship Council: In 1945, under Chapter XII of its Charter, the United
Nations established the International Trusteeship System for the supervision of
the eleven (11) Trust Territories that were placed under the management of
seven member states. By 1994, all the territories had gained self-government
or independence, and the body was suspended. But that same year, the
Council decided to continue meeting occasionally, instead of annuallyunder it
by individual agreements with the States administering them.

Under Article 77 of the Charter, the International Trusteeship System applied to:
 territories held under mandates established by the League of Nations after the First
World War;
 territories detached from "enemy States" as a result of the Second World War; and
 territories voluntarily placed under the System by States responsible for their
administration.

Pursuant to Article 76 of the Charter, the basic objectives of the International

Trusteeship System in accordance with the purposes of the United Nations
included: to promote the political, economic, social and educational advancement
of the inhabitants of the Trust Territories and their progressive development
towards self-government and independence; and to encourage respect for human
rights and fundamental freedoms for all and recognition of the interdependence
of the peoples of the world.
The Purpose was to supervise the administration of the Trust Territories, and to
ensure that Governments responsible for their administration took adequate steps
to prepare them for the achievement of the Charter goals.
The Charter authorized the Trusteeship Council to examine and discuss reports
from the Administering Authority (as per Article 81 of the Charter) on the
political, economic, social and educational advancement of the peoples of the
Trust Territories; to examine petitions from the Territories; and to undertake
special missions to the Territories.
All 11 Territories have either become independent States or have voluntarily
joined neighboring independent countries. In 1993, the last Trust Territory to do
so was the Trust Territory of the Pacific Islands (Palau) under the administration

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 of the United States. The Security Council terminated the United Nations
Trusteeship Agreement in 1994 for that Territory, after it had chosen free
association with the United States in a plebiscite in 1993. Palau
became independent in 1994, joining the United Nations as its 185th Member
State. With no Territories left in its agenda, the Trusteeship Council suspended its
operations on 1 November the same year.
Today, the Trusteeship Council continues to exist as an organ of the United
Nations, and meets as and where occasion requires it.

4. International Court of Justice: This branch is responsible for settling legal

disputes submitted by the states and answering questions in accordance with
international law.

5. Economic and social Council (ECOSOC) .), This is one of the six principal
organs of the United Nations (UN), responsible for the direction and
coordination of the economic, social, humanitarian, and cultural activities
carried out by the UN. It is the UN’s largest and most complex subsidiary
body. This is under the authority of the UNGA and has 54 members.
ECOSOC established the commission on human rights and the commission
on the status of Women.

The council was designed to be the UN’s main venue for the discussion of
international economic and social issues. ECOSOC conducts studies;
formulates resolutions, recommendations, and conventions for consideration
by the General Assembly; and coordinates the activities of various UN
organizations. Most of ECOSOC’s work is performed in functional
commissions on topics such as human rights, narcotics, population, social
development, statistics, the status of women, and science and technology; the
council also oversees regional commissions for Europe, Asia and the Pacific.

6. The Secretariat and Secretary General (SG). The secretariat is one of the
principal organs established by the UN Charter. It is headed by the SG who is
appointed by the UNGA on the recommendations of the Security Council for
a five-year renewal term. The secretariat consists of the Office of the Secretary
General; The SG may bring to the attention of the SC any matter which in his
or her opinion threatens international peace and security; The SG relies on
advice from the secretariat and the United Nations High Commissioner for
Human Rights (OHCHR).

The Secretariat also has the Office for the Coordination of humanitarian Affairs
(OCHA), The Department of peacekeeping and Operations((DPKO), the Department
of Economic and Social affairs (DESA), The department of Political Affairs (DPA),
the Department for Disarmament and Arms Regulation and the Office for legal
affairs.

Under the Secretariat is also the UN Office on Drugs and Crime. This office is
headquartered in Vienna, Austria. This office focuses on crime prevention and

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criminal justice. Among its function is provision of guidelines to UN member states
in this field, develop, monitor and review the implementation of UN crime
prevention programme; and, facilitation and coordination of activities on the
prevention of crime and the prevention of crime and the treatment of offenders

7. Office of the High Commissioner for Human Rights (OHCHR). This office is
based in Geneva forms part of the Secretariat and is responsible for UN’s
overall promotion and protection of human rights. The High Commissioner is
appointed by the SG with the approval of the UNGA.

The Office of the High Commissioner for Human Rights (UN Human Rights)
is the leading UN entity on human rights. They represent the world's
commitment to the promotion and protection of the full range of human
rights and freedoms set out in the Universal Declaration of Human Rights.

Both the High Commissioner and the Office have the primary role to:

(a) Promote and protect all human rights: They speak out objectively in the face of
human rights violations and help elaborate on the standards that are used to
evaluate human rights progress worldwide;
(b) Help empower people: Their research, education, and advocacy activities,
contribute to the increased awareness and engagement by the international
community and the public on human rights issues. This means thousands of
people in all regions of the world are empowered to claim their rights;
(c) Assist Governments: Through their field presences, they help prevent abuses
and contribute to defusing situations that could lead to conflict. Their
monitoring and analysis feed sensitive decision-making and development
programming. They also provide capacity-building and legal advice to
thousands, supporting the development and judicious enactment of laws and
policies the world around;
(d) Inject a human rights perspective into all UN programmes: They mainstream
human rights into all UN programmes to ensure that peace and security,
development, and human rights - the three pillars of the UN - are interlinked
and mutually reinforced.

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.

Specific Charter-Based human rights Mechanisms & Systems.

The current Charter-based bodies are the Human Rights Council and its subsidiaries,
including the Universal Periodic Review Working Group and the Advisory
Committee.

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The Special Procedures, such as Special Rapporteurs, have carried on their work
since 1947, reporting first to the Commission, then to the Council.

Human Rights Council (2006) The Human Rights Council is an inter-governmental

body within the United Nations system made up of 47 States responsible for the
promotion and protection of all human rights around the globe and for addressing
situations of human rights violations and making recommendations on them. It
replaced The Commission on Human Rights (1947-2006) was a subsidiary of the Economic
and Social Council; it concluded work in 2006. Its work is continued by the Human Rights
Council.

It has the ability to discuss all thematic human rights issues and situations that
require its attention throughout the year. It usually meets at the UN Office at
Geneva.

The Council adopted what is referred to as the "Institution-building package" to

guide its work and set up its procedures and mechanisms. Among them were the

(a) Universal Periodic Review mechanism which serves to assess the human
rights situations in all United Nations Member States;
(b) Advisory Committee which serves as the Council’s “think tank” providing it
with expertise and advice on thematic human rights issues and;
(c) Complaint Procedure which addresses or allows communications or
complaints from individuals, groups and non-governmental organizations to
bring human rights violations to the attention of the Council. The Human
Rights Council established the new complaint procedure to address consistent
patterns of gross and reliably attested violations of all human rights and all
fundamental freedoms occurring in any part of the world and under any
circumstances.

Like the former 1503 procedure, it is confidential, with a view to enhance

cooperation with the State concerned. The new complaint procedure has been
improved, where necessary, to ensure that the procedure be impartial, objective,
efficient, victims-oriented and conducted in a timely manner.

The Human Rights Council also works with the UN Special Procedures
established by the former Commission on Human Rights and now assumed by
the Council. These are made up of special rapporteurs, special representatives,
independent experts and working groups that monitor, examine, advise and
publicly report on thematic issues or human rights situations in specific
countries.

The Special Procedures of the Human Rights Council are independent human
rights experts with mandates to report and advise on human rights from a
thematic or country-specific perspective. The system of Special Procedures is a
central element of the United Nations human rights machinery and covers all
human rights: civil, cultural, economic, political, and social.

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Special procedures are either an individual (called "Special Rapporteur" or
"Independent Expert") or a working group composed of five members, one from
each of the five United Nations regional groupings: Africa, Asia, Latin America
and the Caribbean, Eastern Europe and the Western group. The Special
Rapporteurs, Independent Experts and members of the Working Groups are
appointed by the Human Rights Council and serve in their personal capacities.

With the support of the Office of the United Nations High Commissioner for
Human Rights (OHCHR), Special Procedures:

 undertake country visits,

 act on individual cases of alleged violations and concerns of a broader,
structural nature by sending communications to States,
 conduct thematic studies and convene expert consultations, contributing to
the development of international human rights standards,
 engage in advocacy and raise public awareness, and
 provide advice for technical cooperation.

Special Procedures report annually to the Human Rights Council and the
majority of the mandates also report annually to the General Assembly.

(c) Human Rights Council Advisory Committee (2007)

The Human Rights Council Advisory Committee is an expert body that
functions as a think-tank for the Human Rights Council. The Advisory
Committee replaces the former Sub-Commission on the Promotion and
Protection of Human Rights.

The Sub commission on the Promotion and Protection of Human Rights

(1947-2006) was the key subsidiary of the Commission on Human Rights. It
was established by the Commission on Human Rights under the authority of
Economic and Social Council resolution of 21 June 1946. The name had
changed from Sub commission on Prevention of Discrimination and
Protection of Minorities by ECOSOC decision of 27 July 1999.

(d) Special Procedures (1947). The Human Rights Council has responsibility for
the special procedures, including those originally established by the
Commission on Human Rights. Special procedure mechanisms include:
 special rapporteurs
 special representatives
 independent experts
 working groups

Special procedures investigate, discuss, and report on specific human rights

issues under a country mandate or thematic mandate.

Reports of the special procedures are issued under a variety of document

symbols. They may report on their topic to a principal organ, the Human Rights
Council, or to a subsidiary body.

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 DEPARTMENT OF LAW & CONTINUING LEGAL EDUCATION

HUMAN RIGHTS: MECHANISMS & SYSTEMS

Un System: Treaty- Based Mechanisms

In addition to the ICCPR and the ICESCR, four other treaties are considered the
major instruments of international human rights law. These are the convention on
the Elimination of All Forms of Racial Discrimination (CERD) , The Convention on
the Elimination of All Forms of Discrimination Against Women ( CEDAW); The
Convention Against Torture( CAT); and the Convention on the Rights of the Child
(CRC)
Each of these treaties has established a body to monitor the implementation of its
provisions by states parties. The six main treaty bodies are committees of
independent experts nominated by their governments and elected by the states

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parties as individuals of high moral standing and competence in the field covered by
the respective conventions. The committee members serve terms of four years. The
Committees are the Committee Against Torture; The Committee on Elimination of
Racial Discrimination, The Committee on Elimination of Discrimination against
Women; the Committee on the Rights of the Child). The Treaty- based mechanisms
are as hereinbelow;
1. State Reporting
Reporting is at the heart of international supervision of domestic implementation of
treaty obligations. Reporting strengthens accountability. The treaty bodies devote
much time examining and responding to state reports, noting progress and
deficiencies. In addition, for instance UNESCO and ILO oversee states reports and
procedures to deal with complaints relating to treaties under their respective
supervision.
States parties must periodically submit in their reports to the relevant treaty body,
indicating the measures they have adopted to give effect to the provisions of the
conventions. During annual sessions, committee members review these reports in
public meetings with Government representatives and explore with them areas from
further action. NGOs submit their ‘shadow reports’ providing an often-contrary
assessment of the situation which the committee members may take into account
when questioning the state representatives and when reaching their conclusions and
recommendations.
Whenever a treaty body finds that a certain state practice violates international
rights standards, it invites the state to include in the subsequent periodic report
information on measures taken to eliminate the violations.
A recurring problem is that the states parties fail to submit reports when they are
due. Dozens of reports are long overdue for each treaty body. The Committees also
make general recommendations to the states parties on how they can improve their
performance.
Despite the magnitude of the tasks and the terms of the Conventions, the committees
are understaffed and do not possess sufficient resources. This is why information
provided by Non-Governmental Organizations in their “Shadow reports” are so
important.
2. The Usual Complaints Procedure.
The Complaints procedure gives individuals the opportunity to bring violations
perpetrated by a government to the attention of an international forum. The
international supervisory bodies have jurisdiction only in those cases where
domestic remedies have been exhausted, that is when the national courts or
administrative bodies have heard and rejected the claim and there is no national
recourse or remedy left.
The complaint or communication is admitted if it has ben submitted by or on behalf
of an alleged victim, and if national remedies have been exhausted and if it is
compatible with the provisions of the covenant or treaty. When the committee

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expresses its views on the communication, that will be a its decision though not
legally binding.
For example, under the CERD, the convention establishes a procedure which makes
it possible for an individual or a group of persons who claim to be victims of racial
discrimination to lodge a complaint with the committee on the Elimination of Racial
Discrimination against the state. The complaints procedures are confidential, the
meetings of implementing bodies are closed and working documents are not
released publicly. Under treaty-based procedures however, all final decisions are
made public.
Also, under the Optional Protocol on the Committee on the Elimination of
Discrimination against women, the protocol establishes a mechanism for individuals
to file claims alleging violations under CEDAW to the Committee. This procedure is
optional because a treaty body cannot consider complaints against relating to a state
party unless that state has expressly recognized the trey body’s competence in this
regard, by either a declaration under the treaty or by accepting the relevant optional
protocol. The Committees however cannot enforce the quasi-judicial decision but
states parties have implemented the recommendations and granted a remedy.
Who can complain?
Any individual who claims that his or her rights under the treaty have been violated
by a state party may bring a communication before the relevant committee provided
that the state has recognized the competence of the committee to receive such
complaints. Complaints may also be brought by third parties if individuals
themselves have given their written consent or are incapable of giving such consent.
3. Inquiries
Five Treaty Bodies namely the Committee against Torture, The Committee on the
Elimination of Discrimination against Women. The Committee on the Rights of
persons with Disabilities, The Committee on Enforced Disappearances, the
Committee on Economic Social and cultural Rights and the Committee on the Rights
of the Child ( when relevant protocols enter into force) may initiate inquiries if they
receive reliable information containing well-founded indications of serious , grave or
systematic violations of the conventions in a state Party.
Which states may be subject to inquiries?
With the exception of inquiries by the Committee on Enforced Disappearances, for
which state parties automatically accept the Committee’s competence when they
ratify the convention, inquiries may be undertaken by the other committees only
with respect to the state parties that have separately and additionally recognized
their competence in that regard. At the time of signature, ratification or accession,
state parties to the Convention against Torture may opt out by making a declaration
under article 28 of the convention. State parties to the optional protocol to the
Convention on the Elimination of All Forms of Discrimination Against Women may
similarly exclude the competence of the committee by making a declaration under
Article 10 of the convention, States may equally opt out of the Optional Protocol to
the Convention on the Rights of persons with Disabilities by making a declaration.

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The Inquiry Procedure.
The said Conventions as mentioned above all set out the following basic procedure
for their committees to undertake urgent inquiries.
(a) The procedure is initiated if the committee receives reliable information
indicating that the rights contained in the treaty are being systematically
violated by a state party.

(b) The Committee first invites the state party to cooperate in the examination of
the information by submitting observations.

(c) The Committee may on the basis of the State party’s observations and other
relevant information, available to it, decide to designate one or more of its
members to make a confidential inquiry and report to the committee urgently.

(d) The findings of the designated member(s) are then examined by the
committee and transmitted to the state party together with any appropriate
comments or suggestions/ recommendations.

(e) Some treaties/ Conventions prescribe a deadline for the concerned party to
respond with its own observations on the committees findings, comments and
recommendations and to inform the committee taken in response to the
inquiry the committee invites it to do so; for instance the Convention on the
Rights of Persons with Disabilities prescribes a six- month period for the state
to respond.

(f) The Committee may decide in consultation with the State party, to include a
summary account of the results in its annual report. If the state party agrees,
the full inquiry and the state party’s response may be made public.

(g) The cooperation of the state party must be sought throughout the
proceedings.

4. Urgent action and Urgent Appeals to the General Assembly.

Some conventions for instance the International Convention for the Protection of
Persons form Enforced Disappearances enable their committees to take urgent
action by transmitting the communication to the state party concerned and
requesting it to provide observations within the time frame set by the committee.
However, if the violations amount to widespread or systematic acts for instance
crimes against humanity, the committee may after seeking form the state party
concerned all the relevant information on the situation, bring the matter to the
urgent attention of UNGA through the Secretary General.
5. Early warning and Urgent action.
Some committees like the Committee on the Elimination of All Forms of Racial
Discrimination establish an early warning and urgent action procedure for
prevention of serious violations of the convention.

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Under this procedure, the Committee may seek information form state parties
and may adopt a decision expressing specific concerns addressed not only to the
states parties in question but also to the Human Rights council and its special
procedures, the Special Adviser of the Secretary General as well as the High
Commissioner for Human Rights with a recommendation that the matter be
brought to the attention of the Security Council.
The committee may take action either on its own initiative or on the basis of
information submitted to it by state parties.
6. Regular Visits.
This is a mechanism that is adopted by some treaties like the Convention against
Torture (CAT) that establishes a global system of regular visits to all places where
there may be serious violations of human rights. State parties are required to
allow visits by the committee or the sub committee to any place under its
jurisdiction or control.
After the visit the subcommittee issues a confidential report with a series of
recommendations to the relevant state with a view to improving the treatment of
the persons under its control. The report on the visit is part of the dialogue
between the subcommittee and the state party concerned. The subcommittee will
publish the report whenever it is requested by the state concerned.

7. Inter-state communications
This is a rare procedure that involves exhaustion of local remedies for states that
have accepted the competence of the relevant committee. It involves resolution of
disputes through establishment of an ad hoc conciliation commission to resolve
the dispute.
8. General Comments.
Each Treaty body publishes its interpretation of the provisions of its respective
human rights treaty in form of General Comments or General Recommendations.
These cover a wide range of subjects from the comprehensive interpretation of
the substantive provisions such as the right to life or the right to adequate food
etc to general guidance on the information that should be submitted to state
parties relating to specific articles of the treaties.
General Comments have also dealt with wider cross-cutting issues such as the
role of national human rights institutions, the rights of persons with disabilities,
violence against women and the rights of minorities.
9. Days of General/ Thematic Debates.
Some treaty bodies hold days of general discussion on particular theme of
concern to them. These discussions usually open up to external participants such
as the UN partners, delegations from states parties, NGOs and individual

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experts. Their outcome may lead to the treaty body coming up with a general
Comment.

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