UN versus Iran's children rights viloations ( part I )

Following are a series of articles written by SCE Campaign member D.W. Duke in response to a question that was raised at the Stop Child Executions Discussion Forum :

Does United Nations have any means to question or penalize countries such as Iran who are signatories to CRC and ICCPR but contiinue to violate its rules ?

The most basic enforcement authority probably derives from Article 56 of the UN Charter whereby all member nations pledge to “take joint and separate action in cooperation with the Organization (UN) for the achievement of the purposes set forth in Article 55.” Article 55 includes several paragraphs most notably here “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”
So how does this language translate into “real world” enforcement? Standing alone not very well. Despite its broad language Article 55 only confers limited powers on the Organization. The obligation to “promote” lies with the UN General Assembly and the Economic and Social Counsel whose resolutions on the subject are not legally binding. Moreover, the vague language imposing the obligation of member states to promote human rights and fundamental freedoms and to take joint and separate action in furtherance thereof is likely too vague for serious enforcement. Article 13(1) of the Charter requires the General Assembly to conduct studies and make recommendations to accomplish the objectives of Article 55. Although the impact of the Charter was initially in question See J. Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary (1946) a member nation can no longer assert that mistreatment of its citizens is a subject only for its own sovereign concern. See L. Sohn & T. Buergenthal, International Protection of Human Rights 556 (1973) and L. Henkin The Age of Rights 51 (1990).

The United Nations has also promulgated the International Bill of Human Rights which consists of provisions of the UN Charter, the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural Rights, the Covenant on Civil and Political Rights and the Optional Protocols to the Covenant on Civil and Political Rights. These documents are seen as a code of human rights which provide guidance in understanding the meaning of the phrase in Article 55 “human rights and fundamental freedoms.”

Today the question is seen as one of compliance with the responsibility to promote “human rights and fundamental freedoms.” The question is often phrased in terms of whether a member nation engages in acts that constitute a “consistent pattern of gross violations.” The UN has created Charter based institutions designed to insure compliance by member states. For example, the UN has established the UN Commission on Human Rights and its bodies to establish procedures for reviewing allegations of abuse.

The Universal Declaration of Human Rights is not a treaty and thus, has no legal force and effect except perhaps in the generic concept of international human rights law. However, The Covenant on Economic, Social and Cultural Rights and The Covenant on Civil and Political Rights are actual treaties and are binding on the member nations. The Covenants each establish a distinct international enforcement system to insure compliance by member nations which are expanded in the ICCPR by the Optional Protocols which permits private individuals to file petitions charging violations of rights under the Covenant.

The ICCPR established the Human Rights Committee (HRC) which has been given various administrative and reporting functions designed to insure that ratifying nations are in compliance. It established an interstate complaint mechanism and the private right of petitions. This Committee consists of 18 members nominated by the State Parties but who serve in their individual capacities rather than as government representatives. (This is designed to avoid bias). The State parties are required to give reports on their progress which are then examined by the Committee members. The Committee has established comprehensive reporting guidelines for dealing with the reports. The State representatives may be called upon to address specific concerns and non-compliant acts consisting of grave violations may be reported to the UN General Assembly and the UN Secretary General.

Article 40(1) of the ICCPR requires ratifying nations to submit reports concerning the progress made toward promoting the rights secured by the Covenant. The reports are to identify any difficulties experienced by the member State that has impacted the implementation of those rights. The initial report is to be submitted within one year of entry into the Covenant and whenever requested thereafter. Generally, the report is to be made every five years. Generally, designated members of the Committee prepare questions to ask of the State representative and one full day is usually devoted to the oral examination of a member State. After completing the public hearing the Committee prepares its “Concluding Observations.” These general observations are transmitted to the member State and also to the UN General Assembly.

One of the primary problems with this reporting system is that it is dependent upon the cooperation of the member nation. If a nation does not submit its report in a timely fashion, which is commonly the case, then the Committee is limited in its ability to prepare a timely report. Unfortunately, at present the Committee only meets three times per year and for only three weeks. Thus, only about five reports can be addressed in a single session. As a result there is a serious backlog in addressing the reports. Moreover, serious financial limitations within the UN have forced a reduction in the Committee staff further hampering the ability to study the information and to complete reports. As a result the Committee has adopted a practice of submitting General Comments to the State members which are designed to provide guidance in discharging reporting obligations. The General Comments have become a vehicle for interpreting the language of the ICCPR which is now accepted as the authoritative word on this issue.

Another feature of the ICCPR is that Articles 41 and 42 provide for interstate communications thus allowing one state to charge another with violation of a treaty. However, given the optional nature of this procedure it can only be used against nations that recognize the jurisdiction of the Committee to receive and act on complaints. Generally, however, the Committee has no jurisdictional authority to act on a given complaint. Instead its authority is one of mediation or conciliation. In cases where a settlement is reached, the Committee reports the terms of the settlement. But where there is no settlement, the Committee must within 12 months prepare a report containing a brief submission of the facts and the oral statements of the parties. In this situation the Committee can form its own recommendation of how a given matter should be addressed. In most cases, the proceedings terminate upon the recommendation by the Committee. Where, however, the States so choose, they may form an ad hoc Conciliation Commission consisting of five members who serve in their individual capacities. This Commission will make further efforts to settle the dispute. Where the parties are still unable to resolve their disputes, Article 44 of the ICCPR authorizes the States to utilize other procedures for resolving the disputes in a manner consistent with the international agreements that are in effect between the parties. Where both States accept the jurisdiction of the International Court of Justice, the dispute may be presented to that forum. Unfortunately, it is often the case that a State will accept the jurisdiction of this court when it suits that State’s purpose but not where the Court is likely to rule in a manner contrary to that State’s position.

Next: UN Reporting mechanism and consequential actions

Partial List of References:

1. United Nations Charter
2. United Nations Universal Declaration of Human Rights
3. United Nations Covenant on Economic, Social and Cultural Rights
4. United Nations Covenant on Civil and Political Rights (ICCPR)
5. The First Optional Protocol on the Covenant on Civil and Political Rights
6. The Second Optional Protocol on the Covenant on Civil and Political Rights
7. The United Nations International Covention on the Rights of the Child
8. J. Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary (1946)
9. L. Sohn & T. Buergenthal, International Protection of Human Rights 556 (1973) and L. Henkin The Age of Rights 51 (1990)
10. D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights 300 (1994)
11. International Human Rights, 3d edition, Buergenthal,Shelton and Stewart, (2002) West Publishing Company
12. International Human Rights in Context, 2d edition, Steiner and Alston, (2000) Oxford University Press