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Human Rights Standards: Learning from Experience
International
Commission of Jurists & the International Service for Human
Rights
2006
http://sangonet.org.za/portal/index.php?option=com_content&task=view&id=5827
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Introduction
The
adoption of the Universal Declaration of Human Rights (UDHR)
in 1948 paved the way for the creation of an unprecedented number
of standards to protect human dignity.
The most significant
are the International Covenant on Civil and Political Rights
(ICCPR, 1966) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR, 1966), which provided the
foundation of the international legal framework that protects human
rights.1 These two Covenants
together with the UDHR form the International Bill of Human Rights.
Other major human rights treaties include the International Convention
on the Elimination of All Forms of Racial Discrimination (CERD,
1965); the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW, 1979);2
the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT, 1984); the Convention on the Rights of the Child (CRC,
1989);3 and the International Convention
on the Protection of the Rights of All Migrant Workers and Members
of Their Families (ICMW, 1990). Dozens of other documents have
been adopted
on issues as varied as the treatment of prisoners and consent to
marriage.
The Cold War was
at its height when the Covenants were drafted, and this influenced
their negotiation. After the UDHR, the United Nations (UN) adopted
no global human rights treaties for almost two decades.4
Though many new standards were created following adoption of the
Covenants, major political divisions, including the Cold War and
frictions between North and South have regularly influenced the
negotiation of new human ri ghts standards.
Over the same
period human rights received attention in other forums and at regional
level. The International Labour Organization (ILO) adopted numerous
human rights conventions on non-discrimination, forced labour, child
labour, freedom of association and collective bargaining, and indigenous
and tribal populations. Regional organisations also developed many
standards. Major human rights treaties adopted under the auspices
of the Council of Europe include the European Convention for
the Protection of Human Rights and Fundamental Freedoms (ECHR,
1950), the European Social Charter (ESC, 1961), the European
Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (ECPT, 1987) and the Framework
Convention for
the Protection of National Minorities (Convention on Minorities,
1994). For its part, the Organisation of American States adopted
the American Declaration of the Rights and Duties of Man (1948),5
the American Convention on Human Rights (American Convention,
1969),6 the Convention
to Prevent and
Punish Torture (1985), the Convention on the Forced Disappearances
of Persons (1994), the Convention on the Prevention, Punishment
and Eradication of Violence against Women (1995), and the Convention
on the Elimination of All Forms of Discrimination against Persons
with Disabilities (1999). The Organisation of African Unity,
now the African Union, adopted the African Charter on Human and
Peoples’ Rights (African Charter, 1981),7
the Convention Governing the Specific Aspects of Refugee Problems
in Africa (1969) and the African Charter on the Rights and
Welfare of the Child (1990).
The value of
this work is undeniable. Taken together, international human rights
standards have transformed the nature of the relationship between
governments and individuals, and made public authorities far more
accountable. At the same time, the proliferation of standards has
created new challenges. Some overlap and
duplicate one another, for instance: the UN, the ILO, the Council
of Europe and the European Union have each developed standards on
social security and discrimination that offer different forms and
degrees of protection.
The system developed
to monitor their implementation and handle complaints is also under
stress. States find it burdensome to submit so many reports and
the United Nations committees that monitor human rights treaties
and deal with complaints have accumulated a backlog of work.8
As a result, even cooperative states have become more reluctant
to adopt new monitoring mechanisms, without which legal standards
risk becoming ineffective.
In addition,
much more needs to be done to improve implementation of standards
that exist. There is little point in elaborating standards if they
are not implemented. In some countries, standards have not been
incorporated in domestic law, or remain aspirations. In others,
standards still are not fully implemented despite incorporation.9
The slowness
of standard-setting processes is a further deterrent. Even if there
are exceptions to every rule, most recent negotiations have been
cumbersome and long-winded, and their outcomes have been uncertain.10
Some texts have
been watered down, others have been abandoned. The creation of new standards is
so time-consuming that many states have become reluctant to discuss
new initiatives, while non-governmental organisations (NGOs) are
starting to question whether they should engage in protracted negotiations
that might result in weak texts.
As a result
of these challenges, some fear that efforts to create new standards
may weaken rather than strengthen protection of rights, or even
undermine the entire system. On this basis, it is sometimes argued
that governments and human rights advocates should broaden the application
of existing standards, in order to extend protection as required,
rather than create new ones. Yet there are limits to the extension
of existing standards: new standards will continue to be needed
in the future. Society is continually changing and human rights
laws must also change when gaps in protection appear. As social
and cultural values evolve, new claims will be made that international
law will need to address. As this report went to press, two important
standards had just been adopted by the United Nations Human Rights
Council (HRC or Council), one dealing with enforced disappearances
and the other with the rights of indigenous peoples. Two new standards
were being drafted, concerning people with disabilities and violations
of economic, social and cultural rights. Additionally, calls were
being made to develop standards to cover discrimination on the basis
of sexual orientation and the human rights responsibilities of businesses.
Nor should the
influence of new standards be underestimated. Especially when supported
by public advocacy, they can promote reform of domestic law and
practices, and they provide objective benchmarks by which to measure
the performance of state institutions. They can therefore improve
accountability and the redress available to victims. At the same
time, standard-setting may take new forms in the future, and those
involved may need to organise in new ways - while the creation of
the HRC, which replaced the Commission on Human Rights (CHR or Commission)
in 2006, provides an opportunity to respond creatively to the challenges
encountered in standard-setting to date.11
For all these reasons, it is a good moment to consider what we can
learn from past experience. Looking back, at a moment of change,
may help us to understand what we can most usefully take forward
into the future.
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1. The Covenants entered
into force in 1976.
2 An Optional
Protocol to the Convention on the Elimination of Discrimination
against Women (OP-CEDAW) was adopted in 1999.
3 This Convention has
two additional protocols, the Optional Protocol to the Convention
on the Rights of the Child on the involvement of children in armed
conflicts (OP-CRC-AC,
2000) and the Optional Protocol to the Convention on the Rights
of the Child on the sale of children, child prostitution and child
pornography (OP-CRC-SC, 2000).
4 This said, the Convention
on the Prevention and Punishment of the Crime of Genocide was adopted
in 1951 and CERD in 1965 (one year earlier than the Covenants) and
other global organisations, such as the ILO, adopted human rights
treaties during this time.
5. This Declaration was
adopted a few months before the UDHR on 2 May 1948.
6 This Convention
has been complemented by two protocols, the Protocol of San Salvador
on economic, social, and cultural rights (1998) and the Protocol
to Abolish the Death Penalty (1990).
7 Two protocols to the
Charter have been adopted: the Additional Protocol on the Establishment
of the African Court on Human and Peoples' Rights (1998), and the
Protocol on the Rights of Women in Africa (2003).
8 The High Commissioner
for Human Rights published a concept paper in 2006 that proposed
the creation of a single committee to monitor all human rights treaties.
See Concept Paper on the High Commissioner's Proposal for a Unified
Standing Treaty Body, HRI/MC/2006/ CRP.1 (14 March 2006).
9. "The
historic legacy of the United Nations human rights programme is
found especially in the wide-ranging body of human rights norms
and standards produced in the last 60 years. But putting new resources
and capacities to work in response to the human rights problems
posed today by poverty, discrimination, conflict, impunity, democratic
deficits and institution weaknesses will necessitate a heightened
focus on implementation." Letter from the United Nations Secretary-General
transmitting his report In Larger Freedom to the President of the
General Assembly, 26 May 2005, www.un.org/largerfreedom/add3.htm
(accessed 28 August 2006).
10 Some instruments have
taken more than a decade to negotiate. They include the Declaration
on Human Rights Defenders (A/RES/53/144), the Declaration on the
Protection of All Persons from Enforced Disappearance (A/RES/47/133),
the Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities (A/ RES/47/135), the
Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law (E/CN.4/RES/2005/35),
and the Set of Principles for the Protection and Promotion of Human
Rights through Action to Combat Impunity (E/CN.4/ RES/2005/81).
11. The Council
was established by General Assembly resolution 60/251 of 3 April
2006. It is a subsidiary organ of the General Assembly, and therefore
has higher status within the UN than its predecessor, the CHR. In
five years the General Assembly will review its status. If at that
time the Council is found to have established its authority, states
may agree to amend the UN Charter and elevate the Council to the
status of a principal organ of the United Nations.
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