The Effectiveness of the UN Human Rights System: Reform and the Judicialisation of Human Rights

Description

The UN human rights agenda has reached the mature age of 70 years and many UN mechanisms created to implement this agenda are themselves in their middle-age, yet human rights violations are still a daily occurrence around the globe. The scorecard of the UN human rights mechanisms appears impressive in terms of the promotion, spreading of education and engaging States in a dialogue to promote human rights, but when it comes to holding governments to account for violations of these rights, the picture is much more dismal. This book examines the effectiveness of UN mechanisms and suggests measures to reform them in order to create a system that is robust and fit to serve the 21st century. This book casts a critical eye on the rationale and effectiveness of each of the major UN human rights mechanisms, including the Human Rights Council, the human rights treaty bodies, the UN High Commissioner for Human Rights, the UN Special Rapporteurs and other Charter-based bodies. Surya P. Subedi argues most of the UN human rights mechanisms have remained toothless entities and proposes measures to reform and strengthen it by depoliticising the workings of UN human rights mechanisms and judicialising human rights at the international level. Cover Title Copyright Contents Preface Introduction Questions that arise Scope of this study Reform of the UN system and judicialisation of human rights Limitations of the International Criminal Court Limitations of the powers of reason and persuasion De-politicising the workings of the UN system of human rights mechanisms Organisation of this study Inspiration for this study 1 The place of human rights in the contemporary and globalised world 1.1 Introduction 1.2 Human rights as embracing modernity and redefining democracy 1.3 Human rights as a means of preventing revolutions 1.4 Human rights as part of social engineering 1.5 Human rights as the mantra of the modern world 1.6 Human rights as a check on the excesses of capitalism 1.7 Human rights as underpinning democracy 1.8 Supremacy of human rights 1.9 Human rights representing a silent revolution led by the UN 1.10 The UN human rights agenda as an agent of change 1.11 Promoting a rules-based international society through human rights 1.12 The corpus of international human rights law 1.13 The challenge of implementation and enforcement 1.14 Human rights as the third pillar of the UN 1.15 UN human rights mechanisms and their effectiveness 1.16 The impact on the UN human rights agenda by the rise of multi-polarism 1.17 Pitfalls of the middle path based on dialogue and cooperation 1.18 The legal status of human rights and the need for their judicialisation 1.19 Conclusions 2 The conceptual and international development of human rights 2.1 Introduction 2.2 The concept of human rights in antiquity 2.3 Philosophical foundations of human rights 2.4 The nature and category of human rights 2.5 Evolution of the modern concept of human rights 2.5.1 The contribution of Magna Carta to the evolution of human rights 2.5.2 The common law notions of fairness and justice and the evolution of human rights 2.5.3 The Glorious Revolution and the English Bill of Rights 2.5.4 The American Revolution 2.5.5 The French Declaration of the Rights of Man 2.5.6 Contribution of the inter-war period to the evolution of human rights 2.6 Foundations for international human rights law 2.7 Work of the UN Commission on Human Rights 2.8 The Universal Declaration of Human Rights 2.8.1 The Universal Declaration as a standard-setting instrument 2.8.2 Significance of the Universal Declaration of Human Rights 2.9 Implementation of the Universal Declaration of Human Rights 2.10 The first UN human rights treaty with a mechanism for implementation 2.11 The International Bill of Rights 2.12 Other human rights treaties and declarations 2.13 Momentum towards the universality of human rights 2.14 Measures for implementation of rights 2.15 Conclusions 3 Effectiveness of the UN human rights treaty bodies 3.1 Introduction 3.2 The rationale for treaty bodies 3.3 The origins of treaty bodies 3.4 The working method of treaty bodies 3.4.1 Consideration of the periodic reports by states parties to the Convention 3.4.2 Consideration of individual complaints or communications 3.4.3 Inter-state complaints 3.4.4 General comments or general recommendations 3.5 Difference in the nature and mandate of individual treaty bodies 3.5.1 The Human Rights Committee 3.5.2 Committee on Economic, Social and Cultural Rights 3.5.3 Committee on the Elimination of Racial Discrimination 3.5.4 Committee on the Elimination of Discrimination against Women 3.5.5 Committee against Torture 3.5.6 The Committee on the Rights of the Child 3.5.7 Committee on Migrant Workers 3.5.8 Committee on the Rights of Persons with Disabilities 3.5.9 Committee on Enforced Disappearances 3.6 An assessment of the effectiveness of the human rights treaty bodies 3.7 Problems and prospects for reform of the human rights treaty body system 3.8 Conclusions 4 Effectiveness of the UN Human Rights Council and its challenges 4.1 Introduction 4.2 Background to the creation of the Human Rights Council 4.3 The powers and functions of the Council 4.4 New features of the Council 4.5 From standard setting to implementation 4.6 Membership of the Council 4.7 The working methods of the Council 4.7.1 Advisory Committee 4.7.2 Complaint procedures 4.7.3 Special procedures 4.7.4 Commissions of inquiry 4.7.5 Universal Periodic Review 4.8 An assessment of the Universal Periodic Review mechanism 4.8.1 Lack of rigour 4.8.2 Generality and vagueness of the process 4.8.3 Promotion rather than protection of human rights 4.8.4 A common platform for all states 4.8.5 Inclusiveness of the process 4.8.6 Constructive approach 4.8.7 Absence of a follow-up mechanism 4.8.8 Enhancing the universality of human rights 4.9 An assessment of the Human Rights Council 4.9.1 Standard setting 4.9.2 Asserting and expanding its activities 4.9.3 Politicisation of the Council 4.10 The 2011 review of the Council 4.11 Conclusions 5 Effectiveness of the Office of the UN High Commissioner of Human Rights 5.1 Introduction 5.2 Evolution of the office of the High Commissioner for Human Rights 5.3 Functions and responsibilities of the UN High Commissioner 5.4 A snapshot of the activities of the UN High Commissioner 5.5 Effectiveness of the UN High Commissioner 5.6 Institutional limitations of the position 5.7 Political labelling of the position 5.8 Problems of funding 5.9 Design fault in the appointment process 5.10 Utility of the position of the UN High Commissioner 5.11 Areas for reform 5.12 Conclusions 6 The UN Human Rights Special Rapporteurs and their effectiveness in protecting human rights 6.1 Introduction 6.2 An outcome of accidental events 6.3 Current status of UN Special Rapporteurs 6.4 The UN approach to protecting human rights through UN Special Rapporteurs 6.4.1 Initial approach – no power to act 6.4.2 Shift in approach towards taking action 6.4.3 Taking a thematic approach 6.4.4 Special Rapporteurs as the public face of the UN human rights system 6.4.5 The scope of activities of the Special Rapporteurs 6.5 Effectiveness of Special Rapporteurs in protecting human rights 6.5.1 Independent actors 6.5.2 Flexibility 6.5.3 Utility of the interactive dialogues in the Human Rights Council 6.5.4 Lack of access to countries 6.5.5 Allegation of selectivity and the challenge of achieving balance 6.5.6 Changing roles of the Special Rapporteurs 6.5.7 Wider utility of the reports of Special Rapporteurs 6.5.8 Lack of meaningful powers to entertain individual petitions 6.6 Implementation of the recommendations of Special Rapporteurs 6.7 Impact of the work of Special Rapporteurs 6.8 Challenges ahead 6.9 Attempts to reform the system 6.10 Human rights treaty bodies and Special Rapporteurs 6.11 Conclusions 7 Effectiveness of other UN Charter-based bodies and agencies associated with the UN 7.1 Introduction 7.2 The General Assembly 7.3 The Third Committee of the General Assembly 7.4 The Sixth Committee of the General Assembly 7.5 The Economic and Social Council 7.6 The role of the Security Council 7.7 The role of the Secretary General 7.8 UN High Commissioner for Refugees 7.9 The role of the International Court of Justice 7.10 The role of the International Criminal Court and other tribunals 7.11 The role of the UN International Law Commission 7.12 The role of the International Labour Organization 7.13 The role of the World Health Organization 7.14 Conclusions 8 Reform of the UN human rights system and the judicialisation of human rights at the international level 8.1 Introduction 8.2 Major weaknesses of the UN human rights system 8.2.1 Conceptual and constitutional limitations 8.2.2 Politicisation of the UN human rights agenda 8.2.3 Lack of democracy at the heart of the UN 8.2.4 Lack of enforcement powers 8.3 The way forward 8.3.1 Overcoming the conceptual challenge 8.3.2 Overcoming the Cold War mindset 8.3.3 Placing emphasis on enforcement 8.3.4 Creating a self-contained mechanism for human rights 8.4 Judicialisation of human rights and establishment of an International Court of Human Rights 8.4.1 Adopting a new single consolidated world charter of human rights 8.4.2 Streamlining the human rights reporting system 8.4.3 Need for a single unified treaty body 8.4.4 Appointing one UN Special Rapporteur for every UN member 8.5 Reforming, empowering and elevating the status of the Human Rights Council 8.5.1 De-politicising the workings of the Human Rights Council 8.5.2 Reducing the number of members of the Human Rights Council 8.5.3 Empowering the UN High Commissioner for Human Rights 8.5.4 Streamlining the human rights law-making process 8.5.5 An annual human rights index and annual global report of the UN 8.6 Conclusions 9 Conclusions 9.1 Human wrongs and human rights 9.2 Democracy and human rights 9.3 Strengths and weaknesses of the international system 9.4 Addressing the challenges brought about by a multi-polar world 9.5 The need for reform of the UN system Select bibliography Index