Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”. – Article 2 of the Universal Declaration of Human Rights – UDHR.
Many agree that the concept of human rights was not born in the West. They trace its origin in ancient Greece and Rome. However, the “Cyrus Charter of Human Rights” was discovered in 1878 during the excavation of the site of Babylon. Many historians have considered this as the first declaration of human rights.
On 4 October 539 BC, Iranian (Persian) soldiers entered Babylon then the capital of Iraq (Babylonia). It was said that this bloodless war freed all the captive nationalities held as slaves for generations in Babylon. On 9 November Cyrus of Iran (Persia) visited Babylon and issued a declaration, inscribed on a baked clay barrel (cylinder), known as “the Cyrus Charter of Human Rights”. Even today, one can see this in the British Museum in London, UK.
However the concept and mechanisms of human rights were institutionalised and internationalised only after the birth of the United Nations. Human Rights are interdependent and based on freedom, dignity, equality and justice.
Generally, Human Rights guarantee freedom, dignity, equality and justice for everyone irrespective of age, sex, race, ethnicity, religion, nationality and any regional differences.
The United Nations Charter was signed on 26 June 1945 by 50 countries in a UN conference in San Francisco. But the UN officially came into existence only on 24 October 1945 when all five major powers - France, United Kingdom, USA, USSR (Today Russia) and China (Today Republic of China or Taiwan) ratified the Charter. To commemorate this occasion, 24 October is United Nations Day.
Universal Declaration of Human Rights (UDHR)
At its first session in 1946, the Commission on Human Rights – CHR was given a mandate to draft a declaration. An eight-member drafting committee drafted the Universal Declaration of Human Rights – UDHR. It was adopted on 10th December 1948 in the UN General Assembly sitting at the Palais de Chaillot in Paris. This day is celebrated all over the world as “International Human Rights Day”.
There are thirty articles set forth in the UDHR – article 1 (one) lays down the philosophical claim upon which the UDHR is based, article 2 (two) emphasises that human beings are born free in equal dignity and are entitled to all rights and freedoms set out in the UDHR without any kind of discrimination such as on grounds of race, colour, sex, language, religion, social, political or other opinion.
The following nineteen articles, 3 to 21 deal with the civil and political rights to which all human beings are entitled. The next six articles, articles 22 to 27 deal with economic, social and cultural rights and the concluding articles, article 28 and 29 recognise that everyone is entitled to social and international order in which human rights and fundamental freedoms can be fully realised, stressing the duties and responsibility which the individual owes in a democratic society. The final article 30 – gives cautionary notice that nothing in the UDHR may be interpreted as implying that any group or person has any right to do anything aimed at destroying the rights and freedoms set forth in the UDHR.
Even though the UDHR is not legally binding on member states, it is considered as having the value of customary international law since the main principles of UDHR are highly respected by all States. Also it is used for measuring the respect that states have for human rights.
In July 1997 when the fiftieth anniversary of UDHR was in celebration, one of the UN member states Malaysia, called for a review of the UDHR, claiming that the document was outdated. Malaysia further stated that when the UDHR was adopted by the UN, there were only 58 members’ states and this figure had since tripled.
While UDHR was in progress, the CHR was drafting two legally-binding covenants on human rights- the International Covenant on Civil and Political Rights - ICCPR and the International Covenant on Economic, Social and Cultural Rights - ICESCR. These two covenants were eventually adopted by the General Assembly in December 1966. Almost ten years later both Covenants came into effect. These Covenants incorporated the rights set out in the UDHR. The ICCPR and ICESCR are legally binding on member states who are signatories. Some states have ratified these Covenants with reservations to certain articles.
Human Rights
The Human Rights Council – HRC which replaced the for UN Commission on Human Rights - CHR was created by the United Nations General Assembly on 15 March 2006 by resolution 60/251. It is an inter-governmental body with membership of 47 UN member states. Its first session took place from 19 to 30 June 2006 and the forth coming session will be from February to March 2018 - the 37th session.
The HRC is responsible for the promotion, protection and strengthening of all human rights around the globe. HRC’s regular sessions takes place three times a year – March, June and September. But special sessions can be called by an appeal or declaration to the President of the HRC by at least 18 members of the HRC. Compared to the earlier CHR, the ten-year-old HRC has a new mechanism known as the Universal Periodic Review – UPR. This mechanism scrutinises or questions all UN member States on their track record on Human Rights. This is the only mechanism which allows member states to question or make recommendations to a fellow member state.
The Universal Periodic Review Working Group holds three two-week sessions per year. During each session 16 countries are reviewed, therefore 48 countries per year and 193 countries by the entire UN membership over the course of the UPR cycle. Each UPR review is facilitated by groups of three States, or “troikas”, who act as rapporteurs. Now the 3rd cycle is in process.
The UN Special Procedures established by the former CHR are now with the HRC - Special rapporteurs, Special representatives, Independent experts, Working groups and Committees that monitor, examine, advice and publicly report on thematic issues or human rights situations in specific countries.
The earlier Sub-Commission on Promotion and Protection of Human Rights is now known as the Advisory Committee which serves as the HRC’s “think tank” providing it with expertise and advice on thematic human rights issues and the Complaints Procedure.
Monitoring Mechanisms & ICC
The Rome statute of the International Criminal Court (ICC) and the Optional protocol to the CRC on the sale of Children, child prostitution and child pornography are very good examples of International NGOs lobby for the implementation of conventions because certain states will fund the promotion of their favourite conventions and protocols.
Even though there are 193 member states in the UN, as of 1 December 2017, only 123 countries are state Parties to the Rome Statute of the ICC. Out of them 33 are African states; 19 are Asia-Pacific states; 18 are from Eastern Europe; 28 are from Latin American and Caribbean states and 25 are from Western European and other states.
Normally the conventions which give a hard time, to interfere with the revenue of states, get the least funding and those conventions are not very popular among the money-making INGOs.
As of 28 November 2017, 167 countries have ratified the Optional Protocol on the involvement of children in armed conflict. Some of the countries which have signed the protocol have yet to ratify it.
As of 28 November 2017, 173 countries have ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Here too many countries have not yet ratified it.
The post of High Commissioner for Human Rights was established in December 1993 and functions under the Secretariat of the UN. The High Commissioner and the Human Rights Council co-ordinate with the General Assembly and the Secretary General.
The human rights records of all the member states are monitored through the HRC’s Working Groups, Special rapporteurs, Country rapporteurs, Special representatives and Independent experts. The Working Groups (e.g. Working Group on Arbitrary Detention, Working Group on Enforced or Involuntary Disappearances; Special Rapporteurs (Thematic – e.g. Extrajudicial summary or arbitrary executions, Freedom of opinion and expression, Freedom of religion or belief, Independence of judges and lawyers, Torture and other cruel, inhuman treatment, Violence against women, Right to food, Right to education, Adequate housing, etc.) and Country rapporteurs (Belarus, Cambodia, Central African Republic – CAR, Democratic People’s Republic of Korea - North Korea, Eritrea, Iran) operate under the guidance of the HRC. The HRC works closely with the Office of the High Commissioner for Human Rights - OHCHR.
In the meantime there are Special representatives and Independent experts under the UN Secretary General who also monitor Thematic issues and country situations (Human Rights Defenders, Children and Armed conflict, Internally Displaced people, Children and armed conflict, Cambodia, Haiti, Somalia, etc.). They also report on their findings to the session of the HRC.
By going through these UN human rights mechanisms, one can understand how far Sri Lanka respects those mechanisms. In brief, Sri Lanka is very good at signing whatever convention will please the international community. When it comes to implementation, they play hide and seek.
Politicisation of Human Rights
There is an accusation that UN Human Rights, mainly the HRC is politicised, is it true?
Governments other than the monarchy, military and dictatorship are elected from political parties. Whether a government is formed by a president/prime minister or monarchy or a military leader, they appoint their favourable candidates as ambassadors, high commissioners and representatives to their respective embassies and consulates in foreign countries including to the United Nations. These people are known to the world as diplomats. There are career diplomats as well as political appointees. Now-a-days even the career diplomats from developing countries are using their political influence to get their promotions and appointments for better assignments.
These diplomats become the spokesperson for their government’s policy and carry out the orders given by their political leaders through the Ministry of Foreign Affairs and other Ministries.
When these people are involved in UN affairs, especially UN Human Rights tasks, they are obviously part of politicization.
Now-a-days, the regional amity among the states, the club mentality among governments which have the worst record on human rights, the fact that many countries oppose UN scrutiny under the pretext of fighting terrorism, make the UN human rights mechanisms immovable. Since 11 September 2001, the states have found the easiest method of covering their bad record on human rights.
In the HRC, the powerful states use their political influence and support to avoid the examination of human rights violations in their countries and also to protect the countries which have bilateral links with them. Some states even insist that they are exempt from UN scrutiny because what takes place in their countries is an “internal affair”.
Right to self-determination
Oppression against the struggles in exercise of the right to self-determination is one of the main root causes for the horrendous human rights violations around the world.
Article 1 (one) of both the ICCPR and ICESCR states that “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.
Gradually Article 1 lost it weight. It is no longer in the agenda of the HRC because all five permanent members of the Security Council - the United States, United Kingdom, France, Russia and China have their own problem concerning this article. In USA the people of Alaska, Hawaii and Puerto Rico are struggling for self-determination; in the United Kingdom - the Northern Island crisis is still not resolved; Scotland and Walls are in the queue. In France the people of Corsica and Bretagne are demanding their political rights, while in Russia and China – people of Chechnya, Tibet, Uyghur (East Turkestan) and many others are struggling for their self-determination. On such situations regarding the question of right to self-determination, International law appears to be powerless. A few years ago it was a different story.
The recent political turmoil in Spain, Iraq and Italy: regarding the Catalan and Kurdish peoples, and northern regions of Italy - Veneto (Venice), and Lombardy (Milan) are good examples that self-determination is still an issue.
With all these hurdles, the NGOs have been successful to a certain extent in their human rights advocacy, “Naming and shaming” the states which are violating human rights. Some states misuse the UN procedures and have their own NGOs who are known as GONGOs (Government NGOs) in UN circles. These GONGOs not only advocate government policy, they also counter the accusations made by the genuine NGOs against states. GONGOs are indirectly funded by the governments’ agencies and they are to some extent members of the espionage. Since 2012, there have been many GONGOs working on Sri Lanka in the HRC in Geneva.
S. V. Kirubaharan,
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