1) Which rights have been proclaimed by the Universal Declaration of Human Rights?
The main principle upholding human rights contained in the Declaration is that of instrinsic human dignity and equal and inalienable rights for all of mankind. Such rights are commonly divided into two groups:
- Civil and political rights contain such standards as the rights to life, freedom, and security of person; freedom form slavery, servitude or torture; equality before the law, protection from arbitrary detainment, incarceration or exile; right to a fair trial; right of property; right to political participation; freedom of thought, conscience, religion, opinion and expression; right of peaceful assembly and association; right to participate in national government, either directly or by means of elected representatives.
- Economic, social and cultural rights include right to work, right to equal remuneration for work of equal value, right to form and to join trade unions, right to adequate standard of living, right to education, right to take part in cultural life.
All these rights have been specifically addressed by two Covenants; the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Additionally, there are two Optional Protocols to the International Covenant on Civil and Political Rights which allow for personal complaints to be presented when an individual considers his or her rights have been violated.
2) How can we understand the debate between civil and political rights and economic, social and cultural rights?
Traditionally, many people have generalised that economic, social and cultural rights such as those recognised in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are aspirational "" policy goals that do not entail specific entitlements.
There are background reasons why economic, social and cultural rights have lagged behind civil and political rights in terms of enforceability. First, during the Cold War economic, social and cultural rights were accredited to be linked with Communism and the Eastern Block, a claim which retains force today in spite of the fall of the Berlin Wall. Second, current neo-liberal thinking promotes the protection of freedoms, but rejects the notion of social entitlements and social justice, with a view to creating a free market (but not necessarily a fair market). Third, economic, social and cultural rights are inter-disciplinary.
It is often argued that civil and political rights carry negative obligations, while economic, social and cultural rights carry positive obligations. For example, freedom from torture requires the State not to torture while the right to health requires the state to provide or ensure an accessible, affordable, and adequate health system. Yet the positive/negative distinction is simplistic. As a means of clarifying the obligations of States in relation to economic, social and cultural rights, the Committee on Economic, Social and Cultural Rights adopted the typology of obligations, namely, the duty to respect, the duty to protect and the duty to fulfill (see reference in this Category).
The inclusion of the notion of progressive realization in the ICESCR and in some national constitutions but not in the International Covenant of Civil and Political Rights highlights an important distinction. Ultimately, what is required is for the State to take steps to improve the situation. Thus, the State should adopt legislation, a policy or plan that takes into account the needs of the poor, the socially excluded and the most vulnerable. Similarly, the notion of progressive realization requires the provision of adequate resources, in light of overall resources and adequate prioritization within the overall budget.
3) What do the obligations of promotion, protection, and fulfillment of human rights involve?
Under international human rights law, State Parties have specific obligations to (i) respect, (ii) protect and (iii) fulfill the rights contained in the treaties and conventions.
(i) The obligation to respect requires States Parties to refrain from interfering with the enjoyment of rights. For example, the right to education is violated if the State Party denies pregnant girls to continue in the school system.
(ii) The obligation to protect requires States Parties to prevent violations of rights by third parties. For instance, the failure to ensure that health systems comply with basic quality reproductive health care services may amount to a violation of the right to health. Violence against women and girls is another example of the failure to protect them from the perpetrators of violence and abuse.
(iii) The obligation to fulfill requires States Parties to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of rights.
As such, respect for human rights is to be reflected in a States' norms, institutions, legal frameworks and enabling economic, political and policy environment. States are obliged to move as expeditiously as possible towards the implementation of these obligations. Constraints due to the limits of available resources cannot be interpreted as a reason for inaction.
4) Which is the definition of a duty-bearer and a rights-holder in a human rights-based approach?
In a human rights-based approach, human rights determine the relationship between individuals and groups with valid claims (rights-holders) and State and non-State actors with obligations (duty-bearers). A HRBA identifies rights-holders (and their entitlements) and corresponding duty-bearers (and their obligations) and works towards strengthening the capacities of rights-holders to make their claims, and of duty-bearers to meet their obligations.
The growing international legal system sets the context for a rights-based approach to development, by placing human rights laws at the center of development practice. Under this system, the population or "rights holders" have the right to demand from the "duty-bearer," which is often the state, that it meets its obligations under international law to respect, protect and fulfill people's rights. The duty bearer can also be a private entity such as a corporation, a family, or a local government.
5) What are binding and non-binding international instruments or documents?
Human rights are embodied in international and regional agreements and conventions adopted by governments, under the auspices of the United Nations.
- Binding instruments refer to the international treaties that are signed and ratified by governments, and impose obligations under international law for State Parties to the conventions to comply with those agreements. ("States Parties"? refers to the countries that have signed and ratified a Convention.)
- Non-binding instruments refer primarily to the UN Conference and UN General Assembly agreements adopted through inter-governmental consensus. While not binding in a legal sense, the UN Conference agreements, such as the Vienna Programme of Action on Human Rights, the ICPD and the Beijing Platform for Action; or UN General Assembly Declarations "" such as the Declaration on the Elimination of Violence Against Women (1993), the Millennium Declaration on the MDGs (2000), or the Declaration of Commitment on HIV/AIDS (2001) - become international customary law. That is, they form an integral part of the international human rights framework, and become established as human rights principles and standards of conduct that governments are expected to promote and protect.
6) How do a declaration, a convention and a covenant differ from one another?
A declaration is a series of norms and principles drafted by states by and which they pledge to abide by. However, there is no forceful component to a declaration; those States who do not observe those norms and principles are subject to “moral sanctions” before the international community. (i.e. The American Declaration of the Rights and Duties of Man)
A convention involves a series of agreements amongst States which include norms and principles which States are obliged to comply with. (i.e. The American Convention on Human Rights)
A covenant represents an addition of new norms and principles to a previously adopted convention. (i.e. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, "Protocol of San Salvador")
Given the obligations they impose on sates, both conventions and covenants enter into force only after they have been ratified by the State’s government. Signing these instruments is not enough for them to become legally binding.
7) What is the Inter-American Human Rights System?
The Inter-American system for the promotion and protection of fundamental rights and freedoms dates back to the adoption of the American Declaration of the Rights and Duties of Man at the Ninth International Conference of American States (Bogota, Colombia, 1948), which created the Organization of American States.
The human rights framework within the Inter-American system, which up until that moment consisted of declarations, experienced a substantial shift with the adoption of the American Convention on Human Rights in San José, Costa Rica in 1969. This instrument strengthened the entire system by enhancing the Commission’s efficiency, together with the complementary mechanisms of promotion and protection of human rights.
8) What is the United Nations Human Rights System?
The United Nations system for the promotion and protection of human rights consists of two main types of body: bodies created under the UN Charter, including the Commission on Human Rights, and bodies created under the international human rights treaties. Most of these bodies receive secretariat support from the Treaties and Commission Branch of the Office of the High Commissioner for Human Rights (OHCHR).
There are several other important United Nations bodies which are concerned with the promotion and protection of human rights. These bodies are not serviced by OHCHR and include: the United Nations General Assembly, the Third Committee of the General Assembly, the Economic and Social Council, the International Court of Justice.
9) What are the Special Procedures of the Commission on Human Rights?
“Special procedures” is the general name given to the mechanisms established by the Commission on Human Rights to address either specific country situations or thematic issues. The special procedures are a way for the Commission to be constantly engaged on an issue of concern throughout the year. Although they may be constituted in any manner, special procedures commonly are either an individual, called a special rapporteur or representative or an independent expert, or a group of individuals, called a working group.
An individual who serves as a special rapporteur, representative, independent expert or member of a working group is appointed by the Chairperson of the Commission on Human Rights after consultation with the five regional groups, which consist of Member States of the Commission. The special procedures are independent, are not paid and serve in a personal capacity for a maximum of 6 years. Currently there are over 30 special procedures mechanisms. The Commission on Human Rights requests the Office of the High Commissioner for Human Rights to provide these mechanisms with personnel and logistical assistance to aid them in the discharge of their mandates.
Although the mandates given to special procedure mechanisms vary, they usually are to examine, monitor, advise, and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations worldwide, known as thematic mandates. Various activities can be undertaken by special procedures, including conducting studies, providing advice on technical cooperation, responding to individual complaints, and engaging in general promotional activities.
In carrying out their mandates, special rapporteurs and other mandate-holders undertake country visits (and report back to the Commission on Human Rights. These missions take place at the request of the relevant special procedure or at the invitation of the country concerned. Many countries have extended standing invitations to all thematic special procedures of the Commission. The activities which can be undertaken, along with the scope and length of the mandate of each special procedure, are set out in the Commission on Human Rights resolutions on the specific mandate. All special procedures are required to report on their activities to the annual session of the Commission on Human Rights, which takes place in March-April each year.
10) How do the international human rights treaty bodies work?
There are seven human rights treaty bodies, or committees, formed by independent experts that monitor implementation of the core international human rights treaties (The International Covenant on Civil and Political Rights and its optional protocols; the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment; Convention on the Rights of the Child and its optional protocols; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families).
These bodies are created in accordance with the provisions of the treaty that they monitor, and each treaty body receives secretariat support from the Treaties and Commission Branch of OHCHR in Geneva except CEDAW, which is supported by the Division for the Advancement of Women (DAW). CEDAW meets at United Nations headquarters in New York; the other treaty bodies generally meet at the United Nations Office in Geneva, although the Human Rights Committee usually holds its March session in New York.
The treaty bodies perform a number of functions in accordance with the provisions of the treaties that created them. These include consideration of State parties' reports, consideration of individual complaints or communications, as well as publishing general comments on the treaties and organize discussions on related themes.
When a country ratifies one of these treaties, it assumes a legal obligation to implement the rights recognized in that treaty. But signing up is only the first step, because recognition of rights on paper is not sufficient to guarantee that they will be enjoyed in practice. So the country incurs an additional obligation to submit regular reports to the monitoring committee set up under that treaty on how the rights are being implemented. This system of human rights monitoring is common to most of the UN human rights treaties.
To meet their reporting obligation, States must report submit an initial report usually one year after joining (two years in the case of the CRC) and then periodically in accordance with the provisions of the treaty (usually every four or five years). In addition to the government report, the treaty bodies may receive information on a country’s human rights situation from other sources, including non-governmental organizations, UN agencies, other intergovernmental organizations, academic institutions and the press. In the light of all the information available, the Committee examines the report together with government representatives. Based on this dialogue, the Committee publishes its concerns and recommendations, referred to as “concluding observations”.
In addition to the reporting procedure, some of the treaty bodies may perform additional monitoring functions through three other mechanisms: the inquiry procedure, the examination of inter-state complaints and the examination of individual complaints. Four of the Committees (HRC, CERD, CAT and CEDAW) can, under certain conditions, receive petitions from individuals who claim that their rights under the treaties have been violated.
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