Transcript The UN Charter and the Origins of the UN

The Universal Declaration
of Human Rights
BACON, Paul
School of International Liberal Studies
Waseda University
UDHR download URL
 You
can read the UDHR in full
and download a copy using the
following URL:
 www.unhchr.ch/udhr/index.htm
Key points about human
rights
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The idea of human rights is an extremely
powerful idea that has been globalized.
But it is also the case that many human
rights have been and are being violated
around the world.
The UN has played a key role in the
codification of human rights.
The UN has attempted to establish human
rights norms, institutions and activities to
support these basic and universal human
rights.
Key points about human
rights
It is perhaps accurate to suggest
that the UN has been extremely
successful at codifying and
promoting human rights.
 But less successful at creating
institutions that protect human
rights.
 Individuals, NGOs, IGOs and
sometimes states have been the
prime movers in campaigns to
promote human rights.
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Human rights-Key events
 The
Holocaust.
 Apartheid in South Africa.
 Lack of civil and political rights
in eastern Europe during the
Cold War.
 Famine in Africa.
 Genocide in Bosnia and Rwanda
in the 1990s.
Roosevelt’s four freedoms
The four freedoms to which
Roosevelt referred were:
 Freedom of speech and
expression.
 Freedom of worship.
 Freedom from want.
 Freedom from fear.
The UN Charter and
Human Rights
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The UN Charter, which was signed in June 1945,
and came into legal force in October 1945,
mentions human rights in a number of different
places, as we have already seen. (the Preamble
to the Charter, Article 1, Article 13, Article 55,
Article 68).
One of the primary purposes of the UN is
“promoting and encouraging respect for human
rights and for fundamental freedoms for all,
without distinction as to race, sex, language or
religion”.
These commitments to human rights contradict
other important parts of the UN Charter, and are
ultimately ‘trumped’ by them.
-Human Rights in the UN Charter-
Chapter 10 Article 68
The Economic and Social Council
shall set up commissions in
economic and social fields and
for the promotion of human
rights, and such other
commissions as may be required
for the performance of its
functions.
 経済社会理事会は、経済的及び社会的分野
における委員会、人権の伸張に関する委員
会並びに自己の任務の遂行に必要なその他
の委員会を設ける。
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The UN Charter and the
Universal Declaration
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The UN Charter does not define human rights.
But it does establish a commitment and
obligation to human rights on behalf of states.
The UN Charter provides the UN with the legal
authority to define and codify human rights
(Article 68).
The UN General Assembly laid the foundations
for this effort on December 10th 1948, with the
passing of the Universal Declaration of Human
Rights.
The UN Charter and the Universal Declaration of
Human Rights together constitute a revolution in
the international politics of human rights.
The ORIGINAL UN Charterbased Human Rights Bodies
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ECOSOC was given the mandate to set up
human rights commissions. It established
three:
1. The Commission on Human Rights
(replaced in 2006).
2. The Sub-commission on the Prevention
of Discrimination and Protection of
Minorities. (Renamed in 1999).
3. The Commission on the Status of
Women.
The UN Charter-based Human
Rights Bodies TODAY
1. The Human Rights Council.
 2. The Sub-commission on the
Promotion and Protection of Human
Rights.
 3. The Commission on the Status of
Women.
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The UN Commission on
Human Rights
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The Commission on Human Rights has been at
the hub of the UN’s human rights-related
activities.
The Commission on Human Rights has also been
at the core of the UN human rights regime.
The Commission on Human Rights drafted and
negotiated the major human rights documents,
including the UDHR.
However, The Commission on Human Rights has
attracted fierce criticism for being ineffective,
slow, complex, selective and highly politicized.
The Commission on Human Rights was replaced
by a new UN Human Rights Council on June 19,
2006.
The UDHR
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Strictly speaking, the UDHR exists to
make rights more effective at a national
level, through national laws and national
institutions.
The UDHR draws on ideas which
influenced the French and American
revolutions. These revolutions also drew
on principles of natural rights.
The 30 rights which are contained in the
UDHR are intended to: maintain and
promote political freedom; preserve civil
society; and protect the economic and
social rights of individuals.
The UDHR
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It should be made clear that the UDHR was
intended as a first step.
From a legal point of view, the UDHR is merely a
recommendation made by the UN General
Assembly.
It was expected that the UDHR would be
followed by a covenant or treaty that would be
binding on all states that signed it.
In the late 1940s the Cold War developed
between the Soviet Union and the United States.
As a result of this conceptual and political
differences emerged between western and
socialist views on human rights.
These political and conceptual disagreements
delayed the approval of a covenant or treaty
that would give legal status to the rights which
are contained in the UDHR.
The ‘Western’ view
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To simplify somewhat, the western view
is that it is individuals that have rights.
These rights must be protected from
state intrusion.
According to the western view, the
following civil and political rights are
crucial for the functioning of society:
freedom of speech;
freedom of worship;
freedom of the press;
freedom of assembly.
The ‘Western’ view
These rights are often referred to as
first-generation rights, or negative
rights.
 They are referred to as firstgeneration because these were the
first rights to be incorporated into
modern political constitutions.
 They are referred to as negative
rights, because they prevent
government from interfering with
private individuals in civil society.
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The ‘socialist’ view
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Again to simplify somewhat, according to the
socialist view, human rights are the minimum
material benefits that the state must provide for
the people, so that they have the freedom to
realize their rights.
According to the socialist view, the state must
provide for the following economic and social
rights, which are crucial for the functioning of
society:
the right to employment;
the right to health care;
the right to education;
the right to social security.
The ‘socialist’ view
These rights are often referred to as
second-generation, or positive rights.
 They are associated with the 20th
century view that it is the
responsibility of government to
provide for social welfare.
 It should be noted that both firstand second- generation rights are
included in the UDHR.
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The ‘International Bill of
Human Rights’
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As a result of the political and ideological
differences which emerged during the Cold War,
it was eventually necessary to draft two separate
human rights Covenants.
- The International Covenant on Economic,
Social and Cultural Rights.
- The International Covenant on Civil and
Political Rights.
Both of these covenants were ratified by the UN
General Assembly in 1966, and came into legal
force in 1976, when they had been ratified by a
sufficient number of countries.
The ‘International Bill of
Human Rights’
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These two international covenants, taken
together with the UDHR, are sometimes referred
to as the ‘International Bill of Human Rights’.
The international bill of rights is a significant
achievement, which demonstrates the important
role which the UN has played in standard-setting
in human rights.
Prior to and following the approval of the two
standard-setting covenants, the UN has also
created five other major human rights treaties.
Subjects include women, slavery, torture,
refugees, forced labor, apartheid, and various
forms of discrimination.
The 8 major UN human
rights TREATIES (1)
ICERD – international convention on
the Elimination of All forms of Racial
Discrimination.
 ICCPR – International Covenant on
Civil and Political Rights.
 ICESCR – International Covenant on
Economic and Social Rights.
 CEDAW – Convention on the
Elimination of Discrimination against
Women.
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The 8 major UN human
rights TREATIES (2)
CAT - Convention against Torture
and Other Forms of Cruel, Inhuman
or Degrading Treatment or
Punishment.
 CRC - Convention on the Rights of
the Child.
 ICRMW - International Convention
on the Rights of All Migrant Workers
and members of Their Families.
 CRPD – Convention on the Rights of
Persons with Disabilities.
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The 8 major UN human
rights treaty BODIES
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CERD – Committee on the Elimination of Racial
Discrimination.
HRC – Human Rights Committee.
CESCR – Committee on Economic, Social and
cultural Rights.
CEDAW – Committee on the Elimination of
Discrimination against Women.
CAT – Committee against Torture.
CRC – Committee on the Rights of the Child.
CMW – Committee on the Protection of the
Rights of All Migrant Workers and Members of
Their Families.
CRPD – Committee on the Rights of Persons with
Disabilities.
Racial Discrimination
ICERD – International Convention on
the Elimination of All Forms of Racial
Discrimination. (173)
 CERD – Committee on the
Elimination of Racial Discrimination.
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Initial report due within: 1 year.
 Periodic report due every: 2 years.
 Number of committee members: 18.
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Civil and Political Rights
ICCPR – International Covenant on
Civil and Political Rights. (161)
 HRC – Human Rights Committee.
 ICCPR – OP1- First Optional Protocol
– Individual Complaints.
 ICCPR – OP2 – Second Optional
Protocol – the Abolition of the Death
penalty.
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Initial report due within: 1 year.
 Periodic report due every: 4 years.
 Number of committee members: 18.
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Economic, Social and Cultural
Rights.
ICESCR – International Covenant on
Economic, Social and Cultural Rights.
(158)
 CESCR – Committee on Economic,
Social and Cultural Rights.
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Initial report due within: 2 years.
 Periodic report due every: 5 years.
 Number of committee members: 18.
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Discrimination against
Women.
CEDAW – Convention on the
Elimination of Discrimination against
Women. (185)
 CEDAW – Committee on the
Elimination of Discrimination against
Women.
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Initial report due within: 1 year.
 Periodic report due every: 4 years.
 Number of committee members: 23.
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Torture
CAT - Convention against Torture
and Other Forms of Cruel, Inhuman
or Degrading Treatment or
Punishment. (145)
 CAT – Committee against Torture.
 OPCAT – Optional Protocol to the
Convention against Torture.
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Initial report due within: 1 year.
 Periodic report due every: 4 years.
 Number of committee members: 10.
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Rights of the Child
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CRC - Convention on the Rights of the
Child. (193)
CRC – Committee on the Rights of the
Child.
CRC – OPAC – Optional Protocol to the
CRC on the Involvement of Children in
Armed Conflict.
CRC – OPSC – Optional Protocol to the
CRC on the sale of children, child
prostitution, and child pornography.
Initial report due within: 2 years.
Periodic report due every: 5 years.
Number of committee members: 18.
Migrant Workers
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ICRMW - International Convention on the
Rights of All Migrant Workers and
members of Their Families. (37)
CMW – Committee on the Protection of
the Rights of All Migrant Workers and
Members of Their Families.
Initial report due within: 1 year.
Periodic report due every: 5 years.
Number of committee members: 10.
Persons with Disabilities
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CRPD – Convention on the Rights of
Persons with Disabilities.
CRPD – Committee on the Rights of
Persons with Disabilities.
Initial report due within: 2 years.
Periodic report due every: 4 years.
Number of committee members: 12.
Treaty Bodies and State Parties –
the reporting process
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1. Submission of initial report by the state party.
2. List of issues and questions drawn up by the
committee.
3. Written response to list of issues is drawn up
by the state party.
4. Other sources of information also available to
the committee, for example from NGOs or other
UN agencies.
5. Formal consideration of the report by the
committee, and constructive dialogue between
the committee and the state party.
6. Concluding observations and
recommendations drawn up by the committee.
7. These concluding observations are
implemented by the state party, and the first
periodic report is submitted as required.
Problems with the process
1. The treaties are legally binding,
but treaty bodies have no means of
enforcing their recommendations.
 2. The issue of self-executing law.
 3. Late reporting by state parties.
 4. Inaccurate or incomplete
reporting by state parties.
 5. Lack of follow-up implementation
by the state parties.
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Example of problems: the ICCPR
and the Human Rights Committee
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1. The ICCPR is not regarded as a selfexecuting document in, for example. the
US.
2. 22 countries have an initial report
which is five or more years overdue.
3. 23 countries have a report of some
kind which is ten or more years overdue.
4. 49 countries have a report of some
kind which is five or more years overdue.
5. In 2007, the committee only examined
the reports of 10 state parties.
Additional problems for the UN treatybased and charter-based human rights
bodies
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1. Historically the budget for human
rights protection has been low, although
this is changing.
2. Disagreement about the relative
priority of civil and political, and economic
and social rights (the authoritarian
advantage argument).
3. Disagreement as to whether there are
universal human rights, or whether there
are significant cultural variations (Asian
values vs. Western values).
Additional problems for the UN treatybased and charter-based human rights
bodies
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4. Western double standards with regard
to human rights.
5. Many non-western authoritarian
governments are reluctant to have their
human rights records examined.
6. “Organized hypocrisy” of most state
parties to the treaties.
7. “Institutional capture” of the
Commission on Human Rights, and
possibly the new Human Rights Council,
which I will discuss in more detail.