Developing International Human Rights - Essay Example

? Introduction The Preamble to the United Nations Charter speaks about the human rights which details as follows: “We, the people of United Nations resolved ---- to reiterate faith in basic human rights, in the worth and the dignity of the individuals, in the analogues’ rights both to women and men and of countries, irrespective of their size either small or large”. In Article 1/3, one of the main objectives has been mentioned as to encourage and promoting respect for human rights and in Article 55, emphasis has been made that the United Nations shall promote global honour for, and adherence of, human rights, offering basic freedoms for all citizens without discrimination as to language, race, sex, or religion1. In general, the two Covenants on Human Rights of 1966 for the United Nations human rights system really emphasise the assessment of the periodical reports that are filed by respective state parties at periodical time phases to the United Nations Human Rights Committee.(hitherto will be known as committee). In addition to this, the International Covenant of Civil and Political Rights (ICCPR) introduce oversight through controversial procedure in the guise of an inter-state complaint2.Further, the First Optional Protocol to this Covenant permits an individual to request for an assessment of a said infringement of the covenant3. However , the UN committee referred above is not toothed with adequate authority and hence , being criticised as “ in no sense a court of law ” which can be regarded as less competent as compared to the Inter-American or European Court4. One of the efficient ways of guaranteeing honour for human rights is to submit the said infringements or queries to an international judicial setup. However, under international community, it is very arduous to implement such submission as international community is very vigilant about any sort of judicial review or statement5. It is to be noted that the mechanism for human rights protection not only existing on the international level but also on the regional level like the “American Convention on Human Rights and Fundamental Freedoms and the European Convention for the Protection of Human Rights and the African Charter on Human and People’s Rights.” The Inter-American Court and Commission and the European Court of Human Rights, have poignant authority to ensure the effective safeguard of the rights that are highlighted in the relevant conventions. Further, the verdicts made by these institutions are as effective as national court’s verdicts. As already seen, the UNHRC (the United Nations Human Rights Committee) created under the International Covenant on Civil and Political Rights (ICCPR) has the authority to look into complaints made by the individual on said human rights infringement. However, the UNHRC is in short of poignant authority to be as effective as the regional human rights courts in America and in Europe. This research paper evaluates the efficacy of the UNHRC through a comparative evaluation. The comparison between the regional and international human rights committee is being carried over on the following grounds; The visibleness of such courts ,particularly in the public domain To pursue interim steps to bar the frustration of such infringement The ability and fact finding calibre of the Court The implementation of final verdicts and the follow-ups thereto. Analysis It is to be noted that in spite of existence of statutory shortcomings of both the Covenant and the Optional Protocol, the UNCHR can function in an efficient way as that of regional human rights courts without amending these instruments. This can be reality if the committee’s interim measure is given a binding status; further, through the reversal of burden of proof, the committee can surmount the lack of its autonomous fact-finding capacity. Further, the UNCHR should enhance its visibility and should give wide publicity of its verdicts, and the committee should see that compliances by states with its final, up-to-point binding verdicts. Thus, UNCHR will thus be able to transform itself as efficient as of the regional courts of human rights and in reality, could evolve into an “efficient court of human rights” on an international level. A conglomeration of monitoring mechanisms is being employed on the global level for the protection of human rights. The States accepts such international body monitoring as it had comparatively less impact on sovereignty of States6. Further, as these international monitoring bodies had no binding force on the final evaluation as these are constituted with the state’s representatives and the sessions were not open to public debates. Further, these monitoring bodies are regarded as a weak human right institution as contrasted to any other guise of adjudication. This demonstrates that even though the states are cooperative to establish legally binding standards in the guise of a treaty, but they are hesitant to establish supervisory bodies that could evaluate the state’s demeanour and any international judicial verdicts is regarded to violate on the norms of state’s sovereignty7. What is Human Rights Standards? The Universal Declaration of Human Rights contains standards about human rights, and various other international conventions also speak about the minimum norms needed to ensure human respect. In four major areas, it explores the link between the human rights and good governance namely the provision of State services, democratic institutions, anti-corruption initiatives and the rule of law. It demonstrates how a number of institutional and social actors , ranging from minority and women’s groups ,Civil society, media and state agencies have implemented the reforms in these major areas, In the background of provision of State services to the general public , good governance reforms promote human rights when they enhance the State’s capability to accomplish its accountability to offer public services, which are necessary for the safeguard of a variety of human rights like right to health , education and food . Human Rights Standards are contained in the Universal Declaration of Human Rights of 1948 and enacted and further explained in various international conventions. These standards require the bare minimum standards to guarantee human dignity on the significance available in various philosophies and religions. These conventions include a set of norms by which various governments around the world could judge the same for its implementation. When the nations ratify these instruments, then they are under obligation to apply the same in their region. The main international human rights conventions are: “The International Convention on the Elimination of All Forms of Racial Discrimination (1965). “ “The International Covenant on Economic, Social and Cultural Rights (1966). “ “The International Covenant on Civil and Political Rights (1966). “ “The Convention on the Elimination of All forms of Discrimination against Women (1979). “ “The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). “ “The Convention on the Rights of the Child (1989). “ “The International Convention on the Protection of Rights of All Migrant Workers and Members of their Families. (1990). “ “The Convention of the Rights of Persons with Disabilities (2006). “ “The International Convention for the Protection of All Persons from Enforced Disappearance (2006)8. “ UNO and Fortification of Human Rights For the safeguard and promotion of human rights around the world, the UN has been developing various measures like the UN Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities, which are endorsed through the resolution 1235(XLII). Further, under the same resolution, the Economic and Social Council (ECOSOC) has been authorised to investigate the information pertaining to gross infringement of fundamental rights and human rights issues. Further, under the above resolution, UN has established a variety of special Rapporteurs, Experts, Special Representatives and Independent Experts for Investigations. As per resolution 1503 (XLVIII) approved by the UN Economic and Social Councils in 1970, the UN Commission on Human Rights has considered “ scenarios, which seem to expose regular style of gross and consistently involvement in the infringement of human rights9. However, the above procedure has been criticised by the critics as the same has been regarded to be feeble due to high magnitude of confidentiality and politicisation. Further, both individuals complaining system and periodic state –reporting procedures are in operation, mainly through various UN treaties like the “ International Convention on the Elimination of All Forms of Cruel, Inhuman or Degrading Treatment, the International Covenant on Civil and Political Rights and the International Convention on Civil and Political Rights10.“ It is to be observed that the absence of any authority of implementation of decisions prolongs a major lacuna of the UN human rights safeguard mechanism. In the case of treaty bodies, the only useful instrument remains the publicity that publicises the verdicts, which are regularly brought out in the annual reports to the UN General Assembly by the treaty bodies11. We cannot altogether condemn the impotence of the UN in safeguarding the human rights on the international level. There are several case laws available where the court has awarded compensation and immediate release where illegal detention was involved. Even individuals can file suit against the State under UNHRC and seek appropriate relief whenever there is gross infringement of human rights. In Burgos v Uruguay12, where a wife filed a petition for the alleged mental and physical torture and other human degrading, or cruel treatment of her husband who was illegally detained in Buenos Aires prison. He suffered severe injuries and was treated in a military hospital for more than a year and then charges were fabricated against him and brought to trial before the military court and was not permitted to engage a counsel to defend him. The UNCPR committee held that there was serious infringement under article 5(4) of the Optional Protocol. Article 7 was infringed due to treatment suffered by Lopez Burgos in the hands of Uruguayan military both in Uruguay and in Argentina. Article 14(3) was infringed as Burgos was not allowed to engage his own counsel and was forced to engage a counsel engaged by the military. Accordingly, the Committee found that the State party is under duty as per article 2(3) of the Covenant to offer immediate relief and release to Burgos, with approval to leave Uruguay and ordered a compensation for infringement he suffered and also advised the State party to initiate proper steps to make sure that the analogues’ infringement does not occur in the future13. Majority of the human rights instruments includes a prohibition on cruel, torture, punishment or degrading treatment– these provisions are employed whether corporal punishment can be awarded? For instance, the ECHR (European Court of Human Rights) viewed that judicial corporal punishment was in divergent to Art 3 of the European Convention on Human Rights as held in14 Burgos v Uruguay 15 . Likewise, there had been condemnation against corporal punishment against convicted prisoners as held in 16South Africa v Staggie17 and in 18South Africa v Daniels19 “Article 19 of the UN Convention on the Rights of the Child 1989 warrants that the State Parties should take all necessary steps with proper administrative , legislative , educational and communal measures to safeguard the kids from all guises of mental or corporal injury ,aggression , cruelty , neglect or mistreatment, misuse , maltreatment including sexual torture while in the care of either legal guardians or parents’ custody or any other individuals who can be known as concierge of such a child”20. Likewise , the Councils of European Committee of Social Rights , Conclusions xv-2, vol.1 (2001) vide article 17 needs a bar in the law against any kind of violence against kids, whether at their home ,at school , in educational institutions or elsewhere21. In A v United Kingdom22 , a stepfather was acquitted from the charge of torture to his stepson under the defence of reasonable chastisement by a trial court in England23. On an appeal to the European Court of Human Rights, the ECHR was of the opinion that there had been an infringement of Article 3 – brutality to children and Article 3 for the beating a kid by his stepfather. In this case, the ECHR court evaluated the freedom and rights defined under Article 1 of the Convention together with the Article 3 which needs States to implement steps to make sure that individuals are not involved in degrading or inhuman treatment or torture as held in 24H.L.R v France25 verdict. It is to be noted that Children and other susceptible individuals are entitled to protection from State in the guise of effective deterrence , against any kind of grave infringement of personal integrity as held in 26X and Y v. The Netherlands27 , in Stubbings and Others v the United Kingdom28 and also under Articles 19 and 37 of the United Nations Convention on the Rights of the Child29. Why UN Human Rights Protection Mechanism Lacks Effectiveness Some forty year ago, the UN human rights supervising mechanism was developed. As of today, seven treaties with its own supervising bodies are there, and another three more such bodies are in the pipeline. Though, at the initial stages, the treaty monitoring system was not anticipated to function on an analogues’ way, but now, treaty bodies offer their poignant services to the State Parties in adherence with the treaty commitments. However, many critics have criticised the prevalence of a wide fissure between the actual performance of the committee and the probable performance in making the States liable and in increasing the implementation of human rights protection at the national stage. The reason for ineffectiveness of Committee can be attributed to the acute under –resourcing, the prevalence of inadequate infrastructure and administrative support and political factors. Failure to report and belated reporting to treaty monitoring systems has been regarded as the unique features of the system. In certain cases, failure to report is ascribable to want of political will of the concerned State30. It is to be noted that ample powers vested with the regional human rights courts is not available with the UNCHR. UNCHR has no chance to start oral hearings or to make on-site visits and also has no independent fact-finding capacity. Further, there is no longer available provision to authorise the Committee to come with interim orders and there is no enforcement procedure, which is provided for either in the Optional Protocol on in the Covenant. Moreover, its final verdict has no binding on the state parties. Thus, the happenings and the final verdict of the regional human rights court is entirely varied with the proceedings and outcome of the Committee31. There had been humanitarian calamity throughout the 1990s, and it had been alleged that UN was impotent to address the human right violations in Rwanda, Kosovo, Somalia, Bosnia and Sudan. When there had been massacre of human beings in these regions, UN was urged to interfere with military interventions thereby overriding the state’s sovereignty. Thus, UN has been urged to disregard the state’s sovereignty when there was massacre against humanity. However, UN has not used its military intervention to tackle the situation above. If really UN wants to be an efficient international monitoring organisation, it should assume responsibility to safeguard people when their own government is unleashing atrocities against its own people or to prevent mass killings or to wipe out a certain section of its community. If UN wants to be real player and to act as a Messiah for the safeguarding the humanities against mass killings, then it should apply its rules universally and hence there is a need to safeguard the human rights irrespective of the state’s boundaries. A vibrant United Nations with a strong commitment to protect the unruly attacks on the innocent people by their own government will act as an efficient deterrent to the future atrocities. By perusing a vibrant UN position on the duty to protect, States can be made to seize their accountability more critically and thereby making the necessity for actual intervention very exceptional. Both United Nations and World have been a silent spectator against the atrocities unveiled against its own people in Bosnia, Cambodia, Darfur and Rwanda where genocide and grave infringement of human rights were unleashed upon gullible civil population where there was a total failure on the United Nations to act swiftly. If UN Security Council acted in right time, a lot of lives might have been saved and millions of people might have been saved from being fled to neighbouring nations as refugees. It is sad that UN Security Council failed to take appropriate action. This demonstrates that UN security council should be toothed with more powers to prevent such atrocities in the future or those nations which are not interested in the prevention of such annihilation should be ousted out from the security council32. How International Human Rights Standards Works? On the concepts borrowed from the UN Human Rights charter, the Australia introduced the Bill of Rights in its Capital Territory, which fortified the Australian government’s understanding on human rights when planning and introducing public policies. In the case of Republic of Korea, many tangible advantages derived due to legal reform and ushered on to the many illegal immigrants living in that nations. The Korean case also proves that capacity –building may enhance governance in various government institutions like prison, police and courts. For instance, in Malawi, there has been an expedition in processing of cases in Malawi due to reform in prison procedures as the human rights training of the prisoners and the prison administration had enhanced their understanding the value of human rights33. The Phililiphines case study shows that how partnerships among provincial and national governments, media organisations, local governments, civil society and non-state operators works together in dissemination of knowledge about human rights. Thus, in Phililiphines there had been cooperation between civil society and the media which worked together with local communities, local governments to offer sustained information on local affairs. To fight against HIV / AIDS, in Brail, the national parliamentarians worked together with municipalities, networks of experts from State and the civil society. In Lebanon, a non-governmental agency published the details about the procedures that associated in issuing construction permits by local authorities which no doubt educated the public by obviously mentioning the citizen’s privileges against government agencies. The openness in the government budget’s process in Ecuador which kindled an informed public debate about the quantum of expenditure by government and finally Ecuador government accepted to allocate larger funds to health, education, welfare, housing and employment. Indian citizens now able to access to government documents through Right to Information Act, which leads to more accountability on the part of government officials34. Examples of how UN human rights lack effectiveness Though , UK has adopted the European Human Rights Charter in its Human Rights Act thereby bringing it at par with the UN Human Rights Charter , but , in practical , still British courts are reluctant to offer protection to human rights violation in the name of so- called “ war-on-terror “ immediately after the happenings of September 11 incident . It is criticised that Human Rights Act has been used by the government as an instrument to infringe the human rights than its observance. For instance, after the introduction of Human Rights Act in UK, there has been a substantial increase in police powers to arrest and search; the monitoring authority of public bodies and local authorities have been enlarged, and this may be even ordered without any judicial warrant now, and the privacy of the citizens has been infringed by the CCTV which is in ubiquitous in whole of the UK, and UK is said to be the largest DNA holder in the global level. Despite of signatory to various international conventions and European Human Rights Charter, it is alleged that in UK, there has been imprecise custody of terrorist suspects where no attempt to file any conviction of any offence, growing militarisation of the police, the convincing accusation of British involvement in the use of torture against gullible accused and the usage of house arrest in the guise of control orders35. Adam Tomkins comments that immediately after the passage of anti-terror legislation in UK, despite of judicial interventionism, particularly in the case of Belmarsh was demonstrated to be inefficacy, especially police torture and unwarranted detention of prisoners who are labelled as terrorist suspects36. This is a pure case no regard has been shown to the accused in case of terrorist suspects through its ant-terror legislation ,which is no doubt against the basic human rights guaranteed by UN charter37. Conclusion and Recommendation Coming to the topic that “although the United Nations has led the way in developing international human rights law, the approach taken for the protection of human rights lacks effectiveness” , I agree with this view but not totally as I have shown where Committee has interrupted and chided the State Parties for not honouring the human rights commitments. I suggest that UN should be strengthened more with powers and authority to make even military action when there is a dire need of it thereby surpassing the State’s sovereignty. It is criticised that Human Rights Act has been used by the government as an instrument to infringe the human rights than its observance. There had been humanitarian calamity throughout the 1990s, and it had been alleged that UN was impotent to address the human right violations in Rwanda, Kosovo, Somalia, Bosnia and Sudan. The reason for ineffectiveness of Committee can be attributed to the acute under –resourcing, the prevalence of inadequate infrastructure and administrative support and political factors. Failure to report and belated reporting to treaty monitoring systems has been regarded as the unique features of the system. In certain cases, failure to report is ascribable to want of political will of the concerned State. UNCHR has no chance to start oral hearings or to make on-site visits and also has no independent fact-finding capacity. Further, there is no longer available provision to authorise the Committee to come with interim orders and there is no enforcement procedure, which is provided for either in the Optional Protocol on in the Covenant. Moreover, its final verdict has no binding on the state parties. In Burgos v Uruguay case, the UNCHR committee ordered even compensation to the human rights abuse victim. In South Africa v Staggie and in South Africa v Daniels, there had been condemnation against corporal punishment against convicted prisoners. In A v United Kingdom, in H.L.R v France, in X and Y v. The Netherlands and in Stubbings and Others v the United Kingdom Children and other susceptible individuals are entitled to protection from State in the guise of effective deterrence. It is to be observed that the absence of any authority of implementation of decisions prolongs a major lacuna of the UN human rights safeguard mechanism. This can be reality if the UNCHR committee’s interim measure is given a binding status; further, through the reversal of burden of proof, the committee can surmount the lack of its autonomous fact-finding capacity. Further, the UNCHR should enhance its visibility and should give wide publicity of its verdicts, and the committee should see that compliances by states with its final, up-to-point binding verdicts. If really UN wants to be an efficient international monitoring organisation, it should assume responsibility to safeguard people when their own government is unleashing atrocities against its own people or to prevent mass killings or to wipe out a certain section of its community. If UN wants to be real player and to act as a Messiah for the safeguarding the humanities against mass killings, then it should apply its rules universally and hence there is a need to safeguard the human rights irrespective of the state’s boundaries. A vibrant United Nations with a strong commitment to protect the unruly attacks on the innocent people by their own government will act as an efficient deterrent to the future atrocities. UN Security Council should be toothed with more powers to prevent such atrocities in the future or those nations which are not interested in the prevention of such annihilation should be ousted out from the Security Council. 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