The United Nations Human Rights Mechanism: What It Means For Human Rights

- John Mark Mangana
Intern, Human Rights Advocacy Programme

Progressive expansion of democratic space within the wider Commonwealth has in the recent past given much impetus to the entrenchment of the human rights debate within several specific Commonwealth countries. Resulting partly from this process is arguably a citizenry that is increasingly aware of its rights and that thirsts for greater exposure to human rights related activities.

The level of Government as well as private sector involvement in political and civic, as well as economic, social and cultural spheres of people lives shows evidence of this. However, on the negative side, what about the multiple cases of human rights violations involving governments and various players within the private sector?

Countries involved in cases of human rights violation are members of the United Nations (UN), and as such, are bound by the UN Charter. The UN in its Charter reaffirms respect for human rights based on the dignity and worth of the human person and commitment to social progress of all people and Articles 1 and 55 and express commitment to the protection and promotion of human rights. Specifically, Article 55(c) indicates that, “the UN will promote universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.

Consequently, the UN has developed machinery to protect and promote human rights. Through this machinery, human rights are said to have become more than just moral guidelines and have been included in international law.

In addition, this machinery offers ways to respond to human rights violations all over the world. Such human rights activities are pursued either by bodies created under the authority of the UN Charter, which are referred to as Charter-based bodies or by bodies established under various human rights treaties, also referred to as Treaty-based bodies1. In addition, several specialised agencies of the UN have important human rights functions, for example, the International Labour Organisation (ILO) and the UN High Commissioner for Refugees (UNHCR).

The Treaty based system is commonly used channel by individuals who believe their rights under the treaty have been violated. The process of contacting the various treaty bodies is relatively simple and as many examples exist from across the Commonwealth.

Currently five of the seven treaty bodies consider individual petitions. These are:

• The Human Rights Committee associated with associated with the International Covenant on Civil and Political Rights;
• The Committee on Elimination of Racial Discrimination associated with the International Convention on the Elimination of all Forms of Racial Discrimination;
• The Committee on the Elimination of Discrimination Against Women associated with the Convention on the Elimination of Discrimination Against Women;
• The Committee Against Torture associated with the Convention against Torture and
• The Committee on the Protection of Migrant Workers associated with the Convention on the Protection of Migrant Workers and their Families.

In simple terms, independent individuals can bring cases of human rights violation to the relevant treaty bodies. However, the state in question must have both ratified the treaty, and accepted its associated individual complaint mechanism.

The individual complaints procedure involves receipt of communication by the relevant treaty body. The treaty body registers the complain and subsequently examines its compliance with the admissibility criteria. If admissible, the treaty body will proceed to consider its merits.

The rules and procedure for each treaty body governed the admissibility of the complaints and are available in the Office of the United Nations High Commissioner for Human Rights website: www.ohchr.org. Most importantly, the author of the communication must be personally affected by the alleged violation. It is important to note that third-party submissions are not accepted except under special circumstances outlined in the treaty body sites.

Determining the merits of each case involves proving the facts beyond any doubt. This may require copies of arrest warrants, court judgements, affidavits, medical reports, outlining specific dates, etc. In cases where all or most of the information is in the hands of the accused state party, non-cooperation with the committee by the state in question will lead to a reversal of the burden of proof.

While individual complaints procedures have been used across the Commonwealth, available jurisprudence indicates a rather scattered and limited usage of the same. Australia, New Zealand and Canada are among the developed Commonwealth countries that have had cases against them taken to the various treaty bodies. But, this is by no means an indictment on their human rights record. On the contrary, it may be a reflection of their progressive human rights stand - as well as other factors such as community understanding of the treaties and associated committees.

There are far fewer cases from the category of developing Commonwealth countries. The government of Sri Lanka had a case registered against it in the year 2004, as did governments of Zambia, Namibia, Sierra Leone and Cameroon, with Jamaica notoriously appearing several times in the Human Rights
Committee jurisprudence.

Each of the advocacy avenues associated with the UN; present varying advantages as well as disadvantages. When on one hand it sets an important precedent in getting human rights issues noticed, on the other hand the lack of legal mandate which would force a government to follow the recommendations prescribed restricts its effectiveness.