United Nations and International Human Rights Law

The role of the international treaties as a legal framework for an international collaboration of the states gains momentum. Contract form of regulation of international relations determines the stability and continuity of the development of the world order1.

One of the peculiarities of international law is that the process of concluding an international agreement is a process of negotiation of the will of the states, the result of which is an agreement embodies the agreement norms2. The primary purpose of the paper is to evaluate to what extent treaties provided by the United Nations can be considered to be effective in practice when it comes to ensuring that states comply with their human rights obligations. The paper is focused on the problems, limitations, and effectiveness of the United Nations and providing cases to prove that despite regulations human rights are not always protected.

The Charter of the United Nations, Declaration of Human Rights, and other treaties were developed in 19453. The major legally mandatory international sources to prevent and prohibit violations of individual rights are the provisions of the United Nation Charter (Articles 1, 55 and 75). Thus, Article 1 (3) states that one of the purposes of the United Nations is respect for human rights and fundamental freedoms without any distinction regarding the race, sex, language or religion4.

Article 55 of the Charter refers, also, to a number of other rights, the right to economic, social and cultural development, to respect for human rights and fundamental freedoms for all without distinction regarding the race, sex, language or religion5.

Article 56 is centred on the obligation for the states that are members of the United Nations to take actions in cooperation with the organization to achieve the objectives set in Article 556. This article and Article 13 (1) served as the legal basis for granting certain powers to such bodies like the United Nations, the United Nations General Assembly, and the Economic and Social Council. The powers are focused on fulfilling the United Nation’s goals and the creation of bodies specialized in the international protection of individual rights (human rights commission, Commission on the Status of Women, the High Commissioner for Human Rights, and others).

These United Nations agencies and intergovernmental conferences have developed several international legal instruments that have become a crucial means of prevention of violations and protection of individual rights. In some cases, they are focused on the protection of human rights in general, whereas some of them are related to specific vulnerable population groups (women, stateless people, refugees, children, migrant workers).

Every state should be responsible for the implementation of human rights on its territory. Although the obligation of rights protection is the primary objective of the states, the enforcement of the rights seems to be questionable. To provide the citizens with the right, the vast majority of the countries created the constitution that corresponds the main key points of the Charter of the United Nations7. The ideal system is that human rights should be protected on every level of the governmental structure.

The enforcement mechanisms are not well developed and demand further advance and improvement. To solve this problem, several committees were created to make sure that the states comply with certain treaties. In case someone will report concerning the wrongdoings of the state, the councils and committees do not have enough power to influence the fractious country8. The only thing the committees can do is to report regarding the human right violation to other states; however, these reports are commonly not public9.

The United Nation International Court belongs to the classic international judiciary10. Although, the protection of human rights as such is not the subject of Court’s jurisdiction, among the sources of decisions made by the Court is Article 38 of the Statute that deals with human rights violations11. The Court considered issues related to human rights and humanitarian law, both in judicial and advisory powers. The most famous cases are LaGrand case (Germany v. United States), the application of the on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) project Gabcikovo-Nagymaros (Hungary v Slovakia), illegal use of force (8 cases of Yugoslavia against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the UK) 12.

It is significantly important to make sure that formal norms are fulfilled not only de jure but de facto as well. The following cases prove that despite regulations, human rights are not always protected.

On October 15, 2008, the International Court of Justice decided the request for the indication of temporary measures, represented by Georgia in the case concerning the application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation)13. The Court stated that both parties should refrain from any acts of promotion of racial discrimination, they should protect and secure human rights, promote humanitarian assistance. The Court stated that countries should respect and follow international regulations to eliminate the conflict. The Court noted that the parties must follow the International Convention on the Elimination of All Forms of Racial Discrimination.

The LaGrand case (Germany v. United States) is one of the examples where the subject of conflict was related to international relationships and violation of human rights. Germany abolished the death penalty after the Second World War; the United States was accused of violation of the Vienna Convention on Consular Relations between two countries. After the arrest of brothers LaGrand, American judicial authorities did not inform detainees regarding their right to contact the German Consulate in the United States. The Court stated that the United States violated Article 36 (1, 2) of the Vienna Convention on Consular Relations and is guilty to human rights violation14.

The Court decided that the United States should not execute Walter LaGrand (his brother Charles had already been executed). Nevertheless, despite the decision made by the Court, Walter LaGrand faced the death penalty. Decisions made by the International Court of Justice are mandatory; however, it does not have the right to punish those who disobeyed.

Another case, which highlights the human rights violation, is Mexico v. the United States. Mexico argues that the United States violated its obligations under the Vienna Convention on Consular Relations. The United States did not inform 52 Mexican citizens regarding their right to talk to the employees of the consulate15.

These individuals were sentenced to death in the territory of the United States for various kinds of crimes. Mexico urges the United States to abolish the death penalty for convicted Mexicans and ensure a comprehensive and effective review of the penalties. The United States asked the Court to reject the claim of Mexico. Mexican citizens arrested in the United States were not provided with the right for consular assistance. Also, the government of the United States failed to inform the Mexican consular offices in the United States about the arrests of Mexican citizens and trials over them. As a result, Mexico was prevented from contact with detainees and failed to provide them with assistance provided by the Geneva Convention. The United States violated Article 36 (1) of the Vienna Convention on Consular Relations and is guilty to the human rights violation.

The United Nations is dependent on the political atmosphere in the world. The task of the organization is to be objective; however, it is impossible because of dependence. This fact undermines the credibility of the United Nations16. Thus, this sphere demands reforms to make the organization as objective as possible. The reforms should also be centred on the reduction of the bureaucratic apparatus. Moreover, the reforms should be directed into the increase in responsiveness to crises and conflicts.

The major objective of the United Nations in terms of global processes is the creation of the unified legal framework. The coherence of law is focused on the creation of the law that will be acceptable to different kinds of legal frameworks and states. These laws should serve people and protect their rights and freedom.

The United Nations is not the body of power; it is an advisor, counsellor, and generator of fundamental human values, whose task is to unite all the best from the humanistic ideas and to attract as many countries as possible17. Nevertheless, every country determines what is acceptable or not. The United Nations can only give recommendations, however, not punish18. That is, the effective implementation of the treaties is questionable. Moreover, the collaboration between the organization and well-developed democratic countries is more effective than the cooperation with countries of Eastern Europe and Africa.

In conclusion, it should be pointed out that the enforcement mechanisms of international treaties are rather weak. There is a lack of sanctions that regulate these processes by the United Nations. The United Nations can make public reports, point out the country that does not follow the international treaties or violates the human rights; however, it cannot prevent or punish the violation because of lack of power. The United Nations relies on society that will see what is happening in the world. They can only show their concern regarding certain aspect, hoping that the society will react. However, in reality, the treaties of the United Nations are not effective, especially the case with Eastern Europe, Russia, Belarus, Romania, and others19.

The major goal of the United Nations is to provide a human being, not with the protection or security but to stimulate society to feel dignity and to be able to fight for rights. The United Nations can make certain pronouncements on the political arena, but a real power to change the attitude towards the protection of human rights is highly dependent on every person, society in general, and the government. Feeling the support of the international unions, the society can change the system that violates the human rights and create the country that will be respectful to every citizen20.

Bibliography

Addo M, “Practice Of United Nations Human Rights Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights” (2010) 32 Human Rights Quarterly 601.

Avena And Other Mexican Nationals (Mexico v. United States of America) [2003] International Court of Justice.

Bailliet C, Promoting Peace through International Law (Oxford University Press 2015).

Banakar R, Rights In Context: Law and Justice in Late Modern Society (Ashgate Pub Co 2010).

Doyle M, “Dialectics of a Global Constitution: The Struggle over the UN Charter” (2011) 18 European Journal of International Relations 601.

Fassbender B, The United Nations Charter As the Constitution of the International Community (Martinus Nijhoff Publishers 2009).

Georgia v. Russian Federation [2008] International Court of Justice.

Germany v. United States of America [1999] International Court of Justice.

Guglielmo Verdirame, The UN And Human Rights: Who Guards the Guardians? (Cambridge University Press 2011).

Hafner-Burton E, Making Human Rights a Reality (Princeton University Press 2013).

Hill D, “Estimating The Effects of Human Rights Treaties on State Behavior” (2010) 72 The Journal of Politics 1161.

Keller H, Ulfstein G and Grover L, UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012).

Londras F and Doody J, The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (Routledge 2015).

McQuigg R, International Human Rights Law and Domestic Violence: the Effectiveness of International Human Rights Law (Routledge 2011).

Pillay N, “Ratification Of Human Rights Treaties: the Beginning Not the End” (2009) 374 The Lancet 447.

Ramcharan B, The UN Human Rights Council (Routledge 2011).

Schutter O, International Human Rights Law: Cases, Materials, Commentary (Cambridge University Press 2010).

Verdirame G, The UN And Human Rights: Who Guards the Guardians? (Cambridge University Press 2011).

Vijapur A, “The Question Of Domestic Jurisdiction and the Evolution of United Nations Law of Human Rights” (2010) 47 International Studies 247.

Zimmermann A, The Statute Of the International Court of Justice: a Commentary (Oxford University Press 2012).

Footnotes

  1. Emilie Hafner-Burton, Making Human Rights a Reality (Princeton University Press 2013).
  2. Michael Addo, “Practice Of United Nations Human Rights Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights” (2010) 32 Human Rights Quarterly 60.
  3. Michael Doyle, “Dialectics of a Global Constitution: The Struggle over the UN Charter” (2011) 18 European Journal of International Relations 601.
  4. Andreas Zimmermann, The Statute Of the International Court of Justice: a Commentary (Oxford University Press 2012).
  5. Cecilia Bailliet, Promoting Peace through International Law (Oxford University Press 2015).
  6. Navi Pillay, “Ratification Of Human Rights Treaties: the Beginning Not the End” (2009) 374 The Lancet 447.
  7. Hellen Keller, Geir Ulfstein and Leena Grover, UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012).
  8. Fiona Londras and Josephine Doody, The Impact, Legitimacy and Effectiveness of EU Counter-Terrorism (Routledge 2015).
  9. Ronald McQuigg, International Human Rights Law and Domestic Violence: the Effectiveness of International Human Rights Law (Routledge 2011).
  10. Rosa Freedman, Failing To Protect: the UN and the Politicization of Human Rights (Oxford University Press 2015).
  11. Bardo Fassbender, The United Nations Charter As the Constitution of the International Community (Martinus Nijhoff Publishers 2009).
  12. Oliver Schutter International Human Rights Law: Cases, Materials, Commentary (Cambridge University Press 2010).
  13. Georgia v. Russian Federation [2008] International Court of Justice.
  14. Germany v. United States of America [1999] International Court of Justice.
  15. Avena And Other Mexican Nationals (Mexico v. United States of America) [2003] International Court of Justice.
  16. Abdulrahim Vijapur, “The Question Of Domestic Jurisdiction and the Evolution of United Nations Law of Human Rights” (2010) 47 International Studies 247.
  17. Bertrand Ramcharan, The UN Human Rights Council (Routledge 2011).
  18. Daniel Hill, “Estimating The Effects of Human Rights Treaties on State Behavior” (2010) 72 The Journal of Politics 1161.
  19. Guglielmo Verdirame, The UN And Human Rights: Who Guards the Guardians? (Cambridge University Press 2011).
  20. Reza Banakar, Rights In Context: Law and Justice in Late Modern Society (Ashgate Pub Co 2010).