The United Nations human rights treaty system. (c2006)

Abstract

Today, the United Nations in general and the International Human Rights system in particular are undergoing reforms because they have often been accused of inefficiency. At the eve of creating the new Human Rights Council at the United Nations, it is important to analyze the current system along with its present shortcomings in order to enhance the role of the United Nations in promoting and protecting the human rights of all peoples. This paper describes the International treaty system; and it assesses its success and failures. It is composed of three chapters. The first chapter provides a broad overview of the International human rights system, by defining first what is meant by human rights, then by explaining the historical background of each of the three generations of human rights which are civil and political,(the first generation) , economic, social and cultural (the second generation) , and collective rights (the third generation). The first chapter also describes how the International system for the promotion and protection of human rights first started after World War II with the creation of the United Nations in 1945, followed by the drafting of the Universal Declaration on Human Rights in 1948, and it assess the two covenants on civil and political rights and on economic, social and cultural rights (ICCPR and ICESCR). We also discuss in the first chapter how the United Nations human rights system evolved from standard -setting to creating specialized mechanisms for protecting human rights and moving into the field with peace keeping missions and ad-hoc tribunals (such as the two tribunals for Rwanda and former Yugoslavia), due to a more assertive role of the UN Security Council following the end of the cold war. The second chapter focuses on the individual rights as translated in the five Human Rights Conventions which is The Convention on the Elimination of Racial Discrimination (ICERD), The Convention on the Elimination of all Forms of Discrimination against Women (CEDA W), The Convention against Torture (CAT),The Convention on the Rights of the Child (CRe); and the Convention on the Protection of the Rights of Migrant Workers and Members of Their Families (ICMW). Before assessing each of these conventions, this paper provides an exhaustive and detailed explanation of almost every human right by resorting to the interpretive comments issued by the respective treaty body mechanism .( each convention has a respective committee that issues general comments which interpret some of the articles of each convention.) This is a novelty in human rights literature as to date no one has systematically explained each right in accordance with its respective UN general comment. As most rights are sometimes complex and bard to understand. This paper not only assesses the strength and weaknesses of the seven human rights conventions, but also explains in details every human right. The second chapter then, as mentioned, attempts to analyze the strength and weaknesses of these legal texts by examining the reservations placed by the state parties and by resorting to the interpretation of the Vienna Convention on the Law of Treaties (1969). When states ratify any convention, they usually place reservations on some provisions or articles of a given convention because they believe that these provisions contradict their national laws and might infringe upon their sovereignty. Therefore, the best way to assess a legal text or convention is by studying the reservations that states have entered upon it in order to discover whether this convention contains any polemical or ill-defined rights. We have examined all the reservations that states have entered into the seven human rights conventions and we were able to assess which convention had ill-defined certain rights or might have contained some rights that states consider as a violation to their sovereignty. How to reconcile state sovereignty with the proper implementation of the human rights conventions is at the heart of this paper, therefore we attempt in chapter two to shed light on this debate and propose ways to adhere better to the spirit and letter of every convention. In addition to examining state reservations, resorting to the Vienna Convention on the Law of Treaties (1969) is the ideal way to interpret any convention. The Vienna Convention on the Law of Treaties (1969), has set the rules for states and it has defined their obligations under any treaty or convention. Therefore, the provisions of this convention have been often used throughout this paper in order to explain how states should and can implement human rights conventions. Finally, a last way to assess human rights conventions can be undertaken by examining the interpretive comments of the United Nations treaty body mechanisms which are often issued to explain to member states and ordinary people the provisions of the conventions and the significance of each and every human right. The third and final chapter describes and assesses the effectiveness and impact of every treaty-body mechanism which are the state reports, inquiry, inter -state and individual complaints procedures. Upon ratifying any human rights convention, states are obliged to submit a periodical detailed report that would describe how they are adhering to their international commitment. Furthermore, some treaty bodies are empowered with more than reviewing periodical reports, as they might also examine individual complaints of people whose rights have been violated. Some treaty bodies might also organize an inquiry and send a commission to member states in order to investigate the violation of certain rights. A last mechanism would be the inter-state complaints system that has been never used to date and that allows states to complain to the treaty body when they believe that another state is violating the convention. All of these mechanisms are assessed and case studies are provided in the third chapter. After examining in details all seven human rights conventions and assessing the mandate and work of their respective committees, we can conclude the following: although this treaty-body system can be accredited with a unique role of standard –setting and the creation of new human rights norms, yet its main weakness lies in the fact that I often favors state sovereignty over protecting human rights. The voluntary ratification process, reservations, derogations, ill-defined rights, limitation clauses, and non-binding views; have been intentionally permitted by the United Nations system in order to protect state sovereignty and non- intervention. The best solution to protect human rights would be probably to empower the International Organization to ensure that International law is respected: what is needed is a more forceful approach by the United Nations in dealing with member states.