Faculty of Law, University of Lucknow

CRIMINAL JUSTICE SYSTEM & HUMAN RIGHTS

Submitted By, Submitted To,

Anshumali Yadav, Dr. Vineeta Kacher

1. Background ................................................................................................................................ 2

2. Philosophy of Human Rights ..................................................................................................... 2

 Plurality: .............................................................................................................................. 3

 Universality:......................................................................................................................... 4

 Inalienability: ....................................................................................................................... 4

 Indivisibility: ........................................................................................................................ 4

3. Human Rights in the UN Charter .............................................................................................. 4

4. The Universal Declaration of Human Rights ............................................................................ 5

 Protection and Promotion of Human Rights and The United Nations ................................ 6

 Promoting and Protecting Human Rights through the United Nations ............................... 6

 Promotion and Protection Through UN Human Rights Mechanisms ................................. 6

 Promoting and Protecting Human Rights through Charter-Based Procedures .................. 8

 The High Commissioner for Human Rights ......................................................................... 9

 Commission on Human Rights ........................................................................................... 10

 The Human Rights Council (UNHRC) ............................................................................... 10

 Complaints Procedures ...................................................................................................... 11

 Procedure for "Gross Violations of Human Rights" under Resolution 1503 (XLVII) of the
United Nations Economic and Social Council (ECOSOC)................................................ 12

 Special Procedures of Thematic and Country Rapporteurs .............................................. 13

 Universal Periodic Review (UPR) ..................................................................................... 14

 Promoting and Protecting Human Rights through Treaty-Based Procedures .................. 15

 Promoting and Protecting Human Rights through Peace Operations .............................. 15

5. Protection through Peace Enforcement and the Responsibility to Protect ............................. 16

6. Conclusion ............................................................................................................................... 18

7. References ................................................................................................................................ 19

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 Role of United Nations in Protecting and Promoting Human Rights

"There can be no peace without development, no development without peace, and no lasting peace or
sustainable development without respect for human rights and the rule of law."

-Former UN Deputy Secretary-General Jan Eliasson

Background

In history, there have always been aggressive and strong centres of power that dictated their own rules
and enforced their pretended “values” through violence. Thereby value systems, philosophies and
ideologies with a devastating aftermath for humankind were generated.

Sad climaxes of these grave violations of human rights were the First and Second World War, at the
end of which the international governments realized the necessity to agree on a universal value system
that was accepted by everyone and which should guarantee a life in peace and with a minimum of
personal freedom to all human beings.

Thus, as direct reaction to World War II and its disregard and disrespect of human rights that led to
acts of barbarism, on the 10th of December 1948 at the Palais de Chaillot in Paris, the General
Assembly of the United Nations proclaimed and authorized the Universal Declaration of Human
Rights (“All human beings are born free and equal in dignity and rights.” Universal Declaration of
Human Rights). Since then the 10th December is celebrated as International Day of Human Rights.
Declared aim of this declaration is that, Human Rights should be protected by the rule of law, if man
is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression,”.

Thereupon in the year 1968, the General Assembly of the United Nation resolved on the, under
international law binding, Covenants of Human Rights: “International Covenant on Civil and Political
Rights (CCPR)” as well as the “International Covenant on Economic, Social and Cultural Rights
(CCPR)”. Both became operative in the year 1976 and are binding.

Philosophy of Human Rights

Human rights are moral principles or norms for certain standards of human behaviour and are protected
by Municipal and International Law.1

1
Nickel, James, "Human Rights", The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.), Metaphysics Research
Lab, Stanford University, 2019

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Human Rights can be defined those subjective rights that every human being is entitled to in equal
measure. In a more narrow sense, the term “Human Rights” is understood as antonym to “Civil Rights”
and therefore stands for basic rights that, independent of the nationality, are inherent to all human
beings. The concept of human rights acts on the assumption that all human beings are endowed with
the same rights due to their person hood and that these rights, targeted on political, civil and social
equality are universal, inalienable and indivisible.

The idea of human rights is closely connected to the idea, developed during the era of Humanism and
Enlightenment, of the “Natural Right” (every human being is endowed by nature with inalienable
rights – independent of gender, age, nationality or the form of government he lives in – which include
the right of life and physical integrity and the right of personal freedom). Through this phrasing and
assessment of basic rights in constitutions and international agreements, human rights have now
become actionable rights. Nowadays human rights are the “only value system, which rightfully can
claim the title of universal application”

The philosophy of human rights addresses questions about the existence, content, nature, universality,
justification, and legal status of human rights. The strong claims often made on behalf of human rights
(for example, that they are universal, inalienable, or exist independently of legal enactment as justified
moral norms) have frequently provoked skeptical doubts and countering philosophical defences.

Two people can have the same general idea of human rights even though they disagree about which
rights belong on a list of such rights and even about whether universal moral rights exist. Henceforth,
Human rights carries certain attributes that are defined as follows

1. Plurality: If someone accepted that there are human rights but held that there is only one of
them, this might make sense if she meant that there is one abstract underlying right that
generates a list of specific2. But if this person meant that there is just one specific right such as
the right to peaceful assembly this would be a highly revisionary view. Human rights address
a variety of specific problems such as guaranteeing fair trials, ending slavery, ensuring the
availability of education, and preventing genocide. Some philosophers advocate very short lists
of human rights but nevertheless accept plurality3

2
Dworkin, R., 2011, Justice for Hedgehogs, Cambridge, MA: Harvard University Press. - 1978, Taking Rights Seriously,
Cambridge, MA: Harvard University Press.
3
Ignatieff, M., 2004, The Lesser Evil, Princeton University Press.

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 2. Universality: All living humans—or perhaps all living persons—have human rights. One does
not have to be a particular kind of person or a member of some specific nation or religion to
have human rights. Included in the idea of universality is some conception of independent
existence. People have human rights independently of whether they are found in the practices,
morality, or law of their country or culture. This idea of universality needs several
qualifications, however. First, some rights, such as the right to vote, are held only by adult
citizens or residents and apply only to voting in one’s own country. Second, the human right
to freedom of movement may be taken away temporarily from a person who is convicted of
committing a serious crime. And third, some human rights treaties focus on the rights of
vulnerable groups such as minorities, women, indigenous peoples, and children.
3. Inalienability: Inalienability does not mean that rights are absolute or can never be overridden
by other considerations. Rather it means that its holder cannot lose it temporarily or
permanently by bad conduct or by voluntarily giving it up. It is doubtful that all human rights
are inalienable in this sense. One who endorses both human rights and imprisonment as
punishment for serious crimes must hold that people’s rights to freedom of movement can be
forfeited temporarily or permanently by just convictions of serious crimes. Perhaps it is
sufficient to say that human rights are very hard to lose.4
4. Indivisibility: Human rights are indivisible. Whether civil, political, economic, social or
cultural in nature, they are all inherent to the dignity of every human person. Consequently,
they all have equal status as rights. There is no such thing as a 'small' right. There is no hierarchy
of human rights.5

Human Rights in the UN Charter

The founders of the UN, not content to treat human rights as merely one among many shared objectives
of UN member governments, implicitly articulated a theory of peace according to which respect for
human rights and fundamental freedoms is a necessary condition for peace within and among nations.
The Charter’s Preamble places “faith in fundamental human rights” immediately after its aim “to save
succeeding generations from the scourge of war.” Yet the Charter does not apply this theory to the
relative powers of the UN’s main organs. Instead, the human rights provisions are relegated, in the
chapter on the purposes of the UN, to achieving international cooperation (art. 1(3)) and, in the chapter
on international economic and social cooperation, to promoting “universal respect for, and observance

4
Donnelly, J., 2012, International Human Rights, 4th edition, Philadelphia: Westview Press.
5
https://www.unicef.org/child-rights-convention/what-are-human-rights, last accessed 18-07-2021

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of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or
religion” (art. 55). The UN General Assembly (UNGA) may initiate studies and make
recommendations for the purpose of “assisting in the realization of human rights” (art. 13(1)) and the
Economic and Social Council (ECOSOC) may make recommendations and draft conventions on
human rights (art. 62(2) & (3)) as well as set up commissions, including to promote human rights (art.
68), which it did in 1946 by establishing the UN Commission on Human Rights (replaced in 2006 by
the UN Human Rights Council or HRC). The Charter language was deliberately weak, emphasizing
“promotion” rather than “protection” by the General Assembly and ECOSOC, while granting to the
UN Security Council (UNSC) sole authority to render binding decisions and require states, under the
threat of economic, military, or other sanction, to modify their aggressive behaviours.

Articles 55 and 56 of the Charter stipulate that the member states pledge themselves to take joint and
separate action in cooperation with the Organization to “promote . . . universal respect for and
observance of human rights.” This “pledge” (a legally ambiguous term) remains the core human rights
obligation of member states. In practice, it has meant mainly promotion rather than protection but has
nonetheless resulted in an impressive body of international human rights law, as well as studies and
public information on a wide range of human rights and related issues. However, the widely recognized
principles of territorial sovereignty and non-intervention into “matters which are essentially within the
domestic jurisdiction of any state” (art. 2(7)), have prevented the UN from taking decisive action to
stop governments from mistreating their populations in violation of their Article 56 pledge.

The Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) was adopted early in the life of the UN, by a
General Assembly Resolution on 10 December 1948. It was drafted by the Commission on Human
Rights. As a General Assembly resolution, the UDHR is not a legally binding instrument. That was
not the intention; rather, in the words of Eleanor Roosevelt, Chair of the UN Commission on Human
Rights and US Representative to the General Assembly, the UDHR was to act as a ‘common standard
of achievement for all peoples of all nations’. The UDHR set down minimum standards in respect of
a number of wideranging identified rights and freedoms. It contains 30 Articles relating to those rights
and freedoms which are regarded as being every person’s birthright. Articles 1 and 2 are regarded as
fundamental, underlying all human rights: the right to freedom and equality and to freedom from
discrimination. Articles 3–21 set out civil and political rights whereas Articles 22–27 refer to
economic, social and cultural rights. The last three Articles call for a social and international order
safeguarding the universal enjoyment of all human rights in which, inter alia, individuals have duties

5|Page
to the community. The rights and freedoms set out in the UDHR were not enforceable, although today
most would be recognised as customary international law and some even as jus cogens.

However, the UDHR did represent the first attempt to afford comprehensive international protection
for the individual. It also provided the foundation for two legally binding UN documents, the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which were opened for signature in 1966 and entered
into force in 1976. The UDHR also served as a blueprint to young independent states as they sought
to establish constitutions and Bills of Rights. The UDHR has continued to evolve as a living
instrument, and many of the rights and freedoms that it contains have become international customary
law. The ICCPR and the ICESCR heralded the next stage in the UN’s protection of human rights –
protection by way of a legally binding treaty

Protection and Promotion of Human Rights and The United Nations

Since the ratification of the Universal Declaration of Human Rights, several United Nations
mechanisms for enforcing and protecting economic, social, and cultural rights have emerged.

Promoting and Protecting Human Rights through the United Nations

The space for UN action in a wide range of human rights concerns has been opened over that last thirty
years owing to a political willingness to limit the scope of Charter Article 2(7) (domestic jurisdiction)
and expand that of the Article 56 (cooperation with the UN to achieve human rights). The UN does
much today that would have been deemed “intervention” by most states a few decades ago, e.g.,
investigation of abuse, adoption of resolutions by the UNGA and Human Rights Council explicitly
denouncing countries by name, sending special envoys and rapporteurs, receiving complaints from
individuals, addressing urgent appeals to governments, and conducting inquiries. Indeed, the range of
UN action to realize its Charter mandate to promote and protect human rights covers at least three
means of preventing harm (education and information, standard-setting and interpretation, and
institution building within Member States) and five tools to respond to human rights situations and
protect human rights (monitoring through reporting and factfinding, adjudication, political
supervision, humanitarian action, and coercive action). Taken together, these means and methods for
promoting and protecting human rights describe what the UN can do to move from the lofty words of
the UDHR to action that affect peoples lives.

Promotion and Protection Through UN Human Rights Mechanisms

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Originally, the principal body responsible for human rights in the UN was the Commission on Human
Rights. It carried out the bulk of the standard-setting activity of the early years following the adoption
of the UDHR. In the 1950s and early 1960s, the first human rights treaties adopted by the UN related
to trafficking and prostitution, the political rights of women, the nationality of married women, and
consent to marriage, minimum age for marriage, and registration of marriages. A major milestone was
the adoption in 1966 of the two international covenants—International Covenant on Economic, Social
and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR)—
which together transformed the aspirational rights of the UDHR into binding treaty law. A second
milestone was the systematic advancement of women’s rights in the Declaration on the Elimination of
Discrimination against Women of 1967, followed by the 1979 Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW). In the 1970s and 1980s the UN adopted other
core human rights treaties on racial discrimination, torture, children’s rights, and, in the 1990s and
2000s, rights of migrant workers and persons with disabilities. For all their shortcomings, the
expansion of the thirty articles of the UDHR into a considerable body of treaty law, with an impressive
amount of interpretative work by nine treaty-monitoring bodies is an undeniable UN accomplishment.6

One of the most important international mechanisms for defending and promoting human rights is the
Committee on Economic, Social, and Cultural Rights (CESCR) whose mandate is to specifically
monitor state parties fulfillment of their obligations under the International Covenant on Economic,
Social and Cultural Rights. Articles 16 and 17 of the ICESCR require states to prepare reports every
five years on the situation of ESCR in their country, which are reviewed by the CESCR. The CESCR
examines the extent to which ESCR are being achieved by state parties, serves as a base for formulating
policies that promote ESCR via General Comments and allows the public to learn about the work of
their government concerning the achievement of ESCR. The CESCR overviews five or six reports
every year. If a country fails to report, the CESCR may review the situation in that country using
alternative sources. After examining a country's report and other sources, the CESCR then releases
concluding observations which highlight the progress made in fulfilling ESCR, difficulties in
achieving these rights, areas of concern, and recommendations. CESCR also accepts reports by
members of the civil society on the situation of ESCR in their countries as part of the review process.

6
Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia, PA: University of Pennsylvania Press, 2002):
39-70

7|Page
The CESCR is an organ of the United Nations Economic and Social Counci (ECOSOC). It has 18
members who are experts in the area of human rights and are elected by the ECOSOC.7

Beside the CESCR, other important mechanisms for human rights within the UN are the Office of the
United Nations High Commissioner on Human Rights (OHCHR), the Human Rights Council and
treaty-monitoring bodies like The Committee on the Elimination of Discrimination against Women
and The Committee on the Rights of the Child.

Promoting and Protecting Human Rights through Charter-Based Procedures

Most of our discussion of the Charter-based procedures relates to the principal UN organs with
responsibility over human rights, namely, the UNGA (especially its subsidiary body the UNHRC),
ECOSOC, and the Secretariat (principally the OHCHR). However, other units of the UN secretariat
have significant human rights responsibilities, such as Office for the Coordination of Humanitarian
Affairs (OCHA), Department of Political Affairs (DPA) and Department of Peacekeeping Operations
(DPKO). Moreover, other main organs of the UN occasionally address human rights, such as the
International Court of Justice (ICJ) and the Security Council (discussed below in relation to use of
coercive force for human rights purposes).

In addition, there are funds and programs of ECOSOC and the UNGA, which engage in human rights
work, such as the United Nations Development Programme (UNDP), the United Nations Children’s
Fund (UNICEF), the United Nations Fund for Population Activities (UNFPA), the United Nations
High Commissioner for Refugees (UNHCR) and the United Nations Entity for Gender Equality and
the Empowerment of Women (UN-Women). Among the 14 Specialized Agencies, which are
autonomous organizations coordinated by ECOSOC and the UNGA, the International Labour
Organization (ILO), the Food and Agriculture Organization (FAO), the United Nations Educational,
Scientific and Cultural Organization (UNESCO), and the World Health Organization (WHO)
contribute in various ways to human rights. OHCHR and six other agencies (UNDP, UNICEF,
UNFPA, UNESCO, WHO and FAO) adopted in 2003 the “Common Understanding among UN
Agencies on a Human Rights-Based Approach to Development Cooperation,” which defined a number
of criteria for a UN standard Human Rights-Based Approach (HRBA).9 These agencies will not be

7
International Network for Economic, Social and Cultural Rights https://www.escr-net.org/resources/human-rights-
enforcement-mechanisms-united-nations last accessed 18-07-2021

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further reviewed as we proceed with some background on the OHCHR and the UNHRC, followed by
brief discussion of the various procedures that function under the UNHRC.8

The High Commissioner for Human Rights

The post of UN High Commissioner for Human Rights, whose origins may be traced to a proposal
from René Cassin of France to create a position of “Attorney-General for Human Rights,” was
established, as recommended by the VDPA in 1993. The UNGA resolution creating the post9 stipulates
that the High Commissioner be appointed for four years (renewable once) by the UN Secretary-
General, be approved by the UNGA, and be tasked with promoting and protecting the effective
enjoyment by all people of all civil, cultural, economic, political and social rights, including the right
to development. The first High Commissioner functioned as a senior official promoting human rights
alongside the Secretariat’s Centre for Human Rights in Geneva. The second High Commissioner,
former President of Ireland Mary Robinson, merged the Centre into the OHCHR and considerably
expanded its role. Four others have served in this capacity as of this writing, with a seventh High
Commission to be selected in 2014.

The stature of the OHCHR has grown, as has its size. Half of the staff is located in the Geneva
Headquarters, 2% in the New York Office, and the rest deployed in 104 field offices (18 country or
stand-alone offices, 12 regional offices or centers, 12 human rights components of UN peace missions
and 44 human rights advisers to UN Country Teams). The country offices engage in monitoring, public
reporting, and technical assistance.10

In humanitarian or other crises, OHCHR staff may be deployed in the field by the Rapid Response
Unit for fact-finding missions and commissions of inquiry. Since 2006, the Rapid Response Unit has
deployed for these purposes in Timor-Leste, Western Sahara, Sudan, Liberia, Lebanon, Beit-Hanoun,
(Occupied Palestinian Territories), Kenya, Togo, Guinea, three times in OpT (Goldstone, Committee
of high level expert to follow Goldstone and Israeli attack on humanitarian flotilla). It has also
conducted human rights assessment missions in Togo, Sierra Leone, Bolivia, Somalia and Madagascar.
In 2020, Rapid Response Unit was deployed to monitor the deteriorating human rights situation in

8
UNDP, Report from the Second Inter-Agency Workshop on Implementing a Human Rights-Based Approach in the
Context of UN Reform, held at Stamford, CT, USA, 5-7 May 2003
9
General Assembly resolution 48/141 of 20 Dec 1993, reprinted in III Weston & Carlson
10
OHCHR Management Plan 2012-2013. Working for Results (Geneva: OHCHR, 2011): 11-15

9|Page
Nicaragua and Ecuador; and in Cox’s Bazar, Bangladesh, to provide human rights advice to the
humanitarian organisations that assist the Rohingya refugees.11

In 2020, The UN human rights commissioner has highlighted several times that CAA would be
discriminatory and violates India’s commitments made under international law. In a significant
development, the United Nations Human Rights Commissioner (OHCHR) Michelle Bachelet moved
an intervention application in the Supreme Court of India against the Citizenship Amendment Act.
OHCHR sought to intervene as an amicus curiae “by virtue of the mandate to inter aria protect and
promote all human rights and to conduct necessary advocacy in that regard.”12

Commission on Human Rights

The UN Commission on Human Rights was established by the UN Economic and Social Council on
16 February, 1946 (Resolution 5(1)) in accordance with Article 68 of the United Nations Charter which
authorises the Council to set up "Commissions in economic and social fields and for the protection of
human rights".

It assists the Economic and Social Council in the coordination of activities concerning human rights
in the United Nations system.13 Since its first meeting in 1947, the Commission had been at the
forefront of international activity to define, promote and protect human rights and fundamental
freedoms. In addition to preparing a number of international treaties and declarations on them, the
Commission had considered many situations involving violation of those rights and freedoms sought,
through persuasion and dialogue, to prevent and eliminate human rights violations, recommended
measures to ensure compliance with universally recognised norms of human rights and has offered
and provided upon request, advisory services and other expert assistance to reduce the incidence of
violations of human rights.

The Commission employed a special procedure, established by the Economic and Social Council in
Resolution 1503 (XLVIII) of 27 May, 1970, in examining situations which appear to reveal a
consistent pattern of violations of human rights.

The Human Rights Council (UNHRC)

11
https://www.ohchr.org/en/countries/pages/workinfield.aspx last accessed 18-07-2021
12
United Nations General Assembly resolution 48/141
13
ECOSOC Resolution, session 36, 1979, approved in General Assembly Resolution 34/25.

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Kofi Annan, Secretary-General of the United Nations urged Member States of the United Nations for
the establishment of a Human Rights Council (HRC), in his report, In Larger Freedom: Towards
Development, Security and Human Rights for All. 14

The UNHRC was created by UNGA resolution 60/251 in 2006 to replace the Charter-based
Commission on Human Rights. After a review, its working methods were set out in Council Resolution
16/21 of 25 March 2011. It meets in regular session at least three times a year, for a total of at least ten
weeks and can meet at any time in special session to address human rights violations and emergencies
if one third of the Member States so request. By early 2014, it had held 20 special sessions, dealing
with such issues as the Palestinian Occupied Territories, the war in Lebanon, the situation in Darfur,
Myanmar, Sri Lanka, the Democratic Republic of Congo, Haiti, Côte d’Ivoire, Libya, Syria, and the
Central African Republic, as well as the food and financial crises. The major innovations of the reform
are the Council’s Advisory Committee (18 experts, functioning as a think-tank for the Council) and
the Universal Periodic Review (UPR).

On 3 July 2015, UNHRC voted Resolution A/HRC/29/L.35 "ensuring accountability and justice for
all violations of international law in the Occupied Palestinian Territory, including East Jerusalem." In
2018, the UNHRC declared that six generals in Myanmar should be prosecuted for the genocide against
the Rohingya Muslims.15

Complaints Procedures

Since the late 1960s, the UN has had two non-treaty procedures for receiving complaints (“petitions”)
to review alleged human rights violations. The first is the so-called “public” procedure, established in
1967 by ECOSOC Resolution 1235 (XLII), according to which the former Commission could “make
a study of situations which reveal a consistent pattern of violations of human rights, as exemplified by
the policy of apartheid . . . and racial discrimination . . . and report, with recommendations thereon, to
the Economic and Social Council.” Although conceived as a means of attracting attention to apartheid
in South Africa and other situations characterized by colonialism and racism, the “1235 procedure”16
was used to examine all types of situations and usually involved appointing a Special Rapporteur to
visit the country under scrutiny. The Rapporteurs’ reports of relevant findings are the basis for the
Commission’s resolution on that country. The political willingness of the UNHRC to create thematic

14
Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All ,
A/59/2005, 21 March, 2005. Available on http://www.un.org/largerfreedom/ contents.htm visited on 18-07-2021
15
"Politics this week". The Economist, 3 September 2018.
16
The public procedure is described in Economic and Social Council resolution 1235 (XLII).

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and country mandates described in the next section and that of the mandate holders to receive
complaints and take urgent actions by alerting government to concerns brought to their attention has
made the 1235 procedure unnecessary.

Procedure for "Gross Violations of Human Rights" under Resolution 1503 (XLVII) of the
United Nations Economic and Social Council (ECOSOC)

In 1970, ECOSOC adopted a confidential complaints procedure called the “1503 procedure”.
Resolution 1503 is generally not regarded as creating direct legal obligations for States. Its application
depends to a large extent upon "the good will" of governments. 17 However, it has been said, the UN
Charter does create a legal duty for Member States to cooperate with the UN for the application of its
recommendations or, at least, not to obstruct such application.18

The purpose of the 1503 procedure, under paragraph 5 of the Resolution, is to identify and, hopefully,
eliminate global "situations which appear to reveal a consistent pattern of gross...violations of human
rights". In the light of this global purpose, individual complaints are taken essentially as sources of
information to show "consistent patterns of gross violations", not as cases calling for redress or relief
in each specific instance.

Although it was a cumbersome procedure (involving closed meetings of a working group in a sub-
commission, then a working group of the Commission before it reaching the Commission), the
possibility of the situation being placed on a public list or transferred to a public procedure was a
source of pressure on governments complained against. Such pressure does not change a regime but
contributes to efforts to alter abusive practices. On 18 June 2007, the UNHRC, in its resolution 5/1 on
institution building, replaced the 1503 procedure with a new confidential 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 circumstance.

These complaints between 11,000 and 15,000 annually19 may be submitted by individuals, groups, or
non-governmental organizations that claim to be victims of human rights violations or that have direct,
reliable knowledge of such violations. This is the only universal complaint procedure covering all

17
E/CN. 4/1317, para. 29.
18
Goodrich, Hambro and Simons, The Charter of the United Nations, Commentary and Documents (third rev. ed.,
1969), p. 381, and opinion of Judge Lauterpacht in the South Africa Voting Procedure Case , ICJ Reports , 1955 , pp.
188-220.
19
Jane Connors and Markus Schmidt, “United Nations,” in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran
(eds.), Textbook on International Human Rights Law (Oxford University Press, 2d edition, 2013): 371

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human rights and fundamental freedoms in all UN member States. An average of 4,000
communications are accepted to the Complaint Procedure each year20. It has been claimed that 94% of
countries respond to complaints relating to human rights situations. Of course, a response does not
mean the situation is corrected, only that the government sees fit to provide its views and explanations
and may while not necessarily admitting that it has been prodded by the procedure correct the situation
to avoid a Council or UNGA resolution denouncing its violations.21

Since 2006 the Council has taken up and eventually discontinued consideration of human rights
situations in Iran, Uzbekistan, Turkmenistan, the Maldives, the DRC, Guinea, Tajikistan, and Iraq. 22
The Council decided to discontinue reviewing the case under the confidential procedure and take up
public consideration of a matter in two instances, concerning Kyrgyzstan in 2006, following its
consideration under the 1503 procedure and Eritrea in 2012.23

Special Procedures of Thematic and Country Rapporteurs

Beginning in 1980, the Commission on Human Rights appointed numerous working groups or Special
Rapporteurs, Representatives, and Experts, either through “thematic mandates,” which examine a
general problem of particular significance to ensuring respect for human rights, or through “country
mandates,” focused on a country whose human rights performance has convinced the Council that
monitoring is necessary.

Special Procedures undertake country visits; act on individual cases and concerns of a broader,
structural nature by sending communications to States and other actors bringing alleged violations or
abuses to their attention; conduct thematic studies and convene expert consultations; contribute to the
development of international human rights standards; engage in advocacy; raise public awareness; and
provide advice for technical cooperation. These independent experts report at least once a year to the
Council on their findings and recommendations, as well as to the UN General Assembly. At times they
are the only mechanism alerting the international community to certain human rights issues.

Currently there are 80 active Special Procedures mandate holders for 56 mandates - 44 thematic
mandates, such as water and sanitation, arbitrary detention, the rights of migrants, violence against
women, torture and human trafficking, extreme poverty, food, freedom of opinion and expression, the

20
https://www.ohchr.org/Documents/HRBodies/HRCouncil/HRC_booklet_en.pdf last accessed 18-07-2021
21
Ibid.
22
https://www.ohchr.org/Documents/HRBodies/ComplaintProcedure/SituationsConsideredUnderComplaintProcedures
.pdf last accessed 18-07-2021
23
https://www.ohchr.org/en/hrbodies/hrc/complaintprocedure/pages/faq.aspx last accessed 18-07-2021

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independence of judges and lawyers, migrants, environmentally sound management, disposal of
hazardous substances and wastes, contemporary forms of racism, safe drinking water and sanitation,
transnational corporations, older persons, foreign debt, terrorism, violence against women, and health
and 12 country-specific mandates.24

In the case of “country mandates,” the country rapporteurs communicate with victims, their
representatives, NGOs, and governments. In 2014 a total of 14 countries were under scrutiny by
Special Rapporteurs or Independent Experts (Belarus, Cambodia, Central African Republic, Côte
d’Ivoire, Eritrea, North Korea, Haiti, Iran, Mali, Myanmar, OPT, Somalia, Sudan and Syria).25

Universal Periodic Review (UPR)

The UPR was created at the same time as the Human Rights Council, which adopted its modalities in
2007.25 It allows the Council to review the human rights records of all the UN Member States (193 as
of this writing) on the basis of information provided by the reporting government, UN treaty bodies
and special procedures, and stakeholders, including nongovernmental organizations, national human
rights institutions, human rights defenders, academic institutions, research institutes, and regional
organizations.

The ultimate aim of this process is to improve concretely the human rights situation in all countries
with significant consequences for people around the globe and address human rights violations
wherever they occur.

Members of the Council address recommendations to the government, which are often specific and
penetrating. For example, the UPR of the United States in 2010 resulted in 228 recommendations,
including such issues as torture and the closing of the Guantanamo Bay facility.26 Setbacks include
Israel’s refusal to attend its own UPR and the successful effort by the Russian Federation to remove
two recommendations by Georgia and have them relegated to footnotes. Similarly, Uzbekistan, Egypt27
and Singapore rejected recommendations addressed to them because they were allegedly “factually

24
https://www.ohchr.org/Documents/HRBodies/HRCouncil/HRC_booklet_en.pdf last accessed 18-07-2021
25
Marks, P. Stephen, The United Nations and Human Rights,
http://www.ohchr.org/Documents/HRBodies/HRCouncil/SituationsconsideredHRCJan2013.pdf last accessed 18-07-
2021
26
Report of the Working Group on the Universal Periodic Review. United States of America, UN Doc A/HRC/16/11, 4
January 2011.
27
UK Mission to the WTO, UN and Other International Organisations (Geneva), 12 March 2020
https://www.gov.uk/government/news/un-human-rights-council-43-universal-periodic-review-on-egypt last accessed
18-07-2021

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wrong” or “based on incorrect assumptions or premises” 28. These are dangerous precedents for an
otherwise positive evolution of the UPR process.

Promoting and Protecting Human Rights through Treaty-Based Procedures

Nine of the UN human rights treaties have functioning monitoring committees, called “treaty bodies,”
that examine states parties’ reports on progress made and problems encountered, and formulate their
observations on what needs to be done to comply with the obligations of the treaty in question: the
1966 ICESCR and ICCPR, the 1965 International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD), the 1979 Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), the 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), the 1989 Convention on the Rights of the
Child (CRC), the 1990 International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (CMW), the 2006 International Convention on the Rights of
Persons with Disabilities (CPRD), and the 2006 International Convention for the Protection of All
Persons from Enforced Disappearance (CED). A tenth treaty body, the Subcommittee on Prevention
of Torture, monitors places of detention under CAT.

Treaty bodies can issue general comments judiciously clarifying the normative content of their
respective treaties and providing guidance to states and civil society as to what is expected to fulfill
their obligations. While not technically binding on the states parties, many of these statements have
acquired considerable interpretive authority. For example, the Supreme Court of India relied on the
general recommendations of CEDAW in Vishaka & Ors vs State Of Rajasthan & Ors29to enforce the
fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India.

In Sum, the Charter-based and treaty-based procedures have evolved to the point of forcing
governments to address a remarkable range of human rights problems, sometimes with real results.
The prospects of making real progress through the UN diminish as governments face national security
emergencies and or engage in massive human rights violations, each of which call for the UN to use
other mechanism primarily through the Security Council to seek human rights-conforming behaviour.

Promoting and Protecting Human Rights through Peace Operations

28
https://www.upr-info.org/en/news/uzbekistan-rejects-again-recommendations-being-factually-wrong last accessed
18-07-2021
29
AIR 1997 SC 3011

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A humanitarian emergency and intense diplomatic pressure is required before the Security Council
will use its enforcement powers, and occasionally has used those powers for human rights purposes.
The UNSC is much more willing to support deployment of UN personnel in the context of a
comprehensive political settlement to a long-festering conflict, and the doctrine applicable in such
cases has been called “second generation” or “expanded” peacekeeping. The setting up and running of
peacekeeping operations (PKOs) is the responsibility of the Department of Peacekeeping Operations
(DPKO), which functions out of UN headquarters in New York. Human rights components have been
part of PKOs in Angola, Burundi, Cambodia, Central African Republic, El Salvador, Guinea Bissau,
Haiti, Kosovo, Iraq, Rwanda, Sierra Leone, Somalia, and Timor-Leste. There are human rights
components in most UN peacekeeping operations, including the Democratic Republic of the Congo
(MONUSCO), Darfur (UNAMID), South Sudan (UNMISS), Liberia (UNMIL), Côte d'Ivoire
(UNOCI), Haiti (MINUSTAH) and Afghanistan (UNAMA).

The potential impact of the UN’s efforts is considerable, whether through an explicit human rights
program or through the promotion of the rule of law and good governance. At the same time, however,
the UN itself has been accused of human rights violations30 and of responsibility for major public
health disasters.31

Beyond the investigative and educational tasks of human rights components of peacekeeping, UN field
operations are called upon to contribute to the institutionalization of key democratic institutions,
without which progress to ensure human rights during a peace operation will be short-lived. Judicial
reform, constitution drafting, professionalization and demilitarization of the police―all are tasks that
the UN has been given and in respect of which its capacity to produce lasting results has not been
adequately tested

Protection through Peace Enforcement and the Responsibility to Protect

If and only if the Security Council, acting under Chapter VII of the UN Charter, determines by nine
votes out of fifteen, including a concurring vote of all five permanent members (art. 27), that there is
a “threat to the peace, breach of the peace, or act of aggression,” (art. 39) may it adopt economic
sanctions or authorize military force to restore peace. The practice of the UNSC has been uncertain

30
Frédéric Mégret & Florian Hoffmann, “The UN as a Human Rights Violator? Some Reflections on the United Nations
Changing Human Rights Responsibilities,” 25 Hum. Rts. Q. (2003): 314-42.
31
Report of the independent expert on the situation of human rights in Haiti, Gustavo Gallón, UN Doc. A /HRC/25/71,
para. 77

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about using this power for human rights purposes. For example, under Resolution 688 (1991),32 it
demanded the end of repression and respect for human rights of the Kurds in Northern Iraq, followed
by the UK and the US establishing no-fly zones to protect humanitarian operations, although not
specifically authorized by the resolution. However, in 1994 the UN failed to act to halt the genocide
perpetrated in Rwanda, resulting in 800,000 deaths.

The UN Force Commander concluded, “the only solution to this unacceptable apathy and selective
attention is a revitalized and reformed international institution charged with maintaining the world’s
peace and security, supported by the international community and guided by the founding principles
of its Charter and the Universal Declaration of Human Rights.”33

In response to the Kosovo intervention by NATO, the International Commission on Intervention and
State Sovereignty (ICISS) was created in 2000 to address this gap between legality and legitimacy.
The commission recommended “that the General Assembly adopted resolution embodying the basic
principles of the responsibility to protect.”34

After accepting it in 2005, the UN has been reluctant to invoke R2P in recent conflicts, in spite of the
commitment of states “to take collective action, in a timely and decisive manner, through the Security
Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in
cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate
and national authorities are manifestly failing to protect their populations from genocide, war crimes,
ethnic cleansing and crimes against humanity.” The doctrine has been referred to in Security Council
Resolutions concerning the Great Lakes region, Sudan, Libya, Côte d’Ivoire, Yemen, Mali, South
Sudan, Central African Republic, and Syria,35 but only in Darfur36 and Libya37 was it used to authorize
enforcement action. The way R2P was applied in Libya explains in part the reluctance to use it for
enforcement action in the civil war in Syria.38

32
http://unscr.com/en/resolutions/688 last accessed 18-07-2021
33
Roméo Dallaire, Shake Hands with the Devil (Toronto: Random House, 2004): 520
34
G.A. Res. 60/1, UN DOC. A/RES/60/1 (Sept. 15, 2005) [Hereinafter 2005 World Summit Outcome], 138 and 139. The
doctrine was endorsed by the Security Council in its unanimous Resolution 1674 of 28 April 2006 on the Protection of
Civilians in Armed Conflict,
35
References to Responsibility to Protect (RtoP or R2P) in Security Council Resolutions,
http://www.responsibilitytoprotect.org/index.php/component/content/article/136-latest-news/5221--references-to-
the-responsibility-to-protect-in-security-council-resolutions last accessed 18-07-2021
36
Security Council Resolution 1706 of 31 August 2006
37
Security Council Resolution 1970, of 26 February 2011, and Security Council Resolution 1973 of 17 March 2011
38
Spencer Zifcak, “The Responsibility to Protect after Libya and Syria,” 13 Melbourne J. Int’l .L. (2012): 2- 35.

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A final observation on the human rights dimensions of the UN’s mandate in international peace and
security is the use of enforcement powers for the prosecution of individuals responsible for genocide,
crimes against humanity, and war crimes. Using the authority of Chapter VII, the Security Council
innovated in the 1990s by establishing a mechanism for trying those accused of genocide, war crimes
and crimes against humanity, through two ad hoc UN criminal tribunals, the International Criminal
Tribunal for the Former Yugoslavia (“ICTY”) in 1991 and the International Criminal Tribunal for
Rwanda (“ICTR”) in 1994. In 1998, governments adopted the Rome Statute creating the International
Criminal Court (“ICC”), which came into force in 2002, establishing a permanent tribunal,
independent of the UN, with jurisdiction to investigate and bring to justice individuals who commit
the most serious crimes of international concern, specifically genocide, war crimes, and crimes against
humanity.

Conclusion

There is a complex web of UN institutions and bodies having vast potential to contribute, through
multilateral diplomacy and action, to the realization of human rights. It should be clear that state
sovereignty is less than ever an insurmountable obstacle to UN action to pursue the Charter objective
of universal respect for human rights. The traditional limitations based on Article 2(7) are receding.
As a result, the margin for action by the UN has expanded. Treaty bodies have demonstrated
considerable vigor by drawing governments’ attention to failures to meet human rights obligations and
by expanding the power to respond to individual complaints. Mandate holders in special procedures
have enhanced their independence and expertise. They have provided extensive documentation of
thematic and country problems, addressing specific recommendations to governments and political
bodies (specifically, the Human Rights Council and the General Assembly).

The UN provides support to the International Criminal Court (ICC) and other prosecutorial
mechanisms to hold perpetrators and their commanders criminally responsible. Preventive diplomacy,
peacemaking, and peacekeeping functions have demonstrated the value of integrating the human rights
dimension into comprehensive peace agreements, with the support of OHCHR.

The UN’s human rights institutions, principally the OHCHR, have been supportive and have provided
technical assistance for building human rights institutions. However, massive violations continue to
occur in the course of internal armed conflict, especially when fed by xenophobic nationalism and
religious fanaticism.

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References

 James Nickel, "Human Rights", The Stanford Encyclopedia of Philosophy, Stanford

 Ronald Dworkin, Justice for Hedgehogs, Harvard University Press, 2011

 Jack Donnelly, International Human Rights, 4th edition, Westview Press, 2012

 Makau Mutua, Human Rights: A Political and Cultural Critique, University of

 Leland M. Goodrich, The Charter of the United Nations, Commentary and Documents,
3rd ed., Columbia University Press, 1969

 Sangeeta Shah, Sandesh Sivakumaran, Textbook on International Human Rights Law, 2nd
ed., Oxford University Press, 2013

 Roméo Dallaire, Shake Hands with the Devil, Random House, 2004

 Rashee Jain, Textbook On Human Rights Law And Practice, 3rd ed., Universal Law
Publishers, 2016

 K.C. Joshi, International Law & Human Rights, 4th ed., Eastern Book Company, 2019

 Manoj Kumar Sinha, Implementation of Basic Human Rights, Lexis Nexis, 2013

 Stephen P. Marks, The United Nations and Human Rights. In Human Rights in the World
Community: Issues and Action, 4th ed, edited by Richard Pierre Claude, Burns H. Weston
and Anna Grear, University of Pennsylvania Press, 2016

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