The United Nations Is An International Organization Law International Essay

Published Date: 02 Nov 2017

COURSEWORK TITLE

Select one human rights region and analyse the mechanisms for the protection of up to two human rights issues. Your essay should be divided into two parts:

a) For your chosen human rights issue(s), you should critically evaluate the legislation and policy documents adopted by the political organs within the region. Consider to what extent there is consistency within the various political organs on the human rights issue(s).

b) Analyse the judicial decisions on the human rights issue(s) you are engaged with. Consider to what extent the judicial decisions reflect the human rights standards created at the legislative and policy levels. Does the judicial body give less, the same, or greater protection of human rights than is found at the policy levels? Give reasons for your answer.

The region I have chosen is United Nations

The United Nations is an international organization founded in 1945 after the Second World War committed to maintaining international peace and security, developing friendly relations among nations and promoting social progress, better living standards and human rights. The United Nation has four main purposes:

To keep peace throughout the world

To develop friendly relations among nations

To help nations work together to improve the lives of poor people, to conquer hunger, disease and illiteracy, and to encourage respect for each others rights and freedoms

To be a centre for harmonizing the actions of nations to achieve these goals

The promotion and protection of human rights has been a major preoccupation for the UN since 1945, when the Organisation's founding nations resolved that the circumstances such as the Second World War should never be allowed to recur. Respect for human rights and human dignity "is the foundation of freedom, justice and peace in the world", the General Assembly declared three years later in the Universal Declaration of Human Rights.

Since 2011, the UN has 193 member states. From its offices around the world, the UN and its specialized agencies decide on substantive and administrative issues in regular meetings held throughout the year. The organization has six principal organs: the General Assembly (the main deliberative assembly); the Security Council (for deciding certain resolutions for peace and security); the Economic and Social Council (for assisting in promoting international economic and social cooperation and development); the Secretariat (for providing studies, information, and facilities needed by the UN); the International Court of Justice (the primary judicial organ); and the United Nations Trusteeship Council (which is currently inactive). Other prominent UN System agencies include the World Health Organization (WHO), the World Food Programme (WFP) and United Nations Children's Fund (UNICEF). The UN's most prominent position is that of the office of Secretary-General which has been held by Ban Ki-moon of South Korea since 2007.

The United Nations Population Fund (UNFPA) is a UN organization. The work of the UNFPA involves promotion of the right of every woman, man and child to enjoy a life of health and equal opportunity. UNFPA and its UN partners now work to fulfill the rights of people, rather than the needs of beneficiaries. There is a critical distinction between these: A need not fulfilled leads to dissatisfaction. In contrast to this, a right that is not respected will lead to a violation, and its redress or reparation can be legally and legitimately claimed. The definition of human rights derives from Ishay (2004), Donnelly (2007) and Hunt (2007). ‘Human rights are held by individuals simply because they are a part of the human species. They are rights shared equally by everyone regardless of sex, race, nationality and economic background. They are universal in content’ defines Ishay (2004: 3). Donnelly describes them as ‘equal and inalienable entitlements held by all individuals that may be exercised against the state and society’ (2007: 40). One has them simply because one is human. According to Hunt (2007: 12), to be called human rights they require three overlapping qualities: ‘rights must be natural (inherent in human beings), equal (the same for everyone) and universal (applicable everywhere).’ As for their actual content, human rights are the rights that are described in the Universal Declaration of Human Rights of the United Nations of 1948, the Human Rights Covenants and the subsequent Human Rights Conventions.

Thomas Hobbes describes natural rights – entitled to each person by nature – in his Leviathan (1651). ‘The right of nature…is the liberty that each man has to use his own power, as he will himself, for the preservation of his own nature…’ He also stresses the right to be free from impediments like imprisonment, torture and forced labour, principles that are now acknowledged as human rights – but he does not use the word as such. http://www.liberales.be/essays/humanity

In a rights-based approach, every human being is recognised both as a person and as a right-holder. The approach aims to focus on those who are most vulnerable, excluded or discriminated against. The approach strives to secure the freedom, well-being and dignity of all people everywhere, within the framework of essential standards and principles, duties and obligations. Rights fall into three categories: indivisible, interdependent and interrelated. Human rights are indivisible. This means that whether they relate to civil, cultural, economic, political or social issues, human rights are inherent to the dignity of every human person. Consequently, all human rights have equal status, and cannot be positioned in a hierarchical order. Denial of one right invariably impedes enjoyment of other rights. Thus, the right of everyone to an adequate standard of living cannot be compromised at the expense of other rights, such as the right to health or the right to education. Human rights are interdependent and interrelated because each one contributes to the realization of a person’s human dignity through the satisfaction of his or her developmental, physical, psychological and spiritual needs. The fulfilment of one right often depends, wholly or in part, upon the fulfilment of others. For instance, fulfilment of the right to health may depend, in certain circumstances, on fulfilment of the right to development, to education or to information.

Governments have three levels of obligation to their citizens; to respect, protect and fulfill every right. Firstly, to respect a right means to refrain from interfering with the enjoyment of that right. Secondly, to protect the right means enacting laws that will create mechanisms to prevent violation of the right by state authorities or by non-state actors. This protection is to be granted equally to all. Finally, to fulfill the right means to take active steps to put in place institutions and procedures, including the allocation of resources, to enable people to enjoy the right.

The approaches of the UN and EU are similar in that they are both organizations that are created by their members to serve over-arching purposes in multiple issue areas. They attempt to create peace through stability and economic cooperation. They are both fundamentally bound to the idea of democracy. And they both represent the collective will of their members.

The UN strives for equality and the fair treatment of every human being, while the EU strives for regional economic integration and a binding of the states. The EU is trying to eliminate trade barriers and standardize business and government practices across member states. The goal is that business can flow freely over the borders of the EU, and that the social, economic and environmental concerns of a few EU countries are considered concerns of all member states. It is not trying to create one culture or one language for all of EU, and individual countries of the EU can still make their own laws, practice their own cultures, speak their own languages, etc.

On the other hand, the UN is a platform for member countries to discuss problems and fund collaborative ways to address them. Only the UN Security Council has any real power, for example - to level sanctions or to recommend troops be sent to a country. The UN General Assembly has no real power -- its votes are entirely non-binding. Membership in the UN is also relatively easy, unlike the EU. The individual agencies of the UN (UNICEF, WFP, UNESCO, UNDP, etc.) are largely independent bodies.

Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.  Everyone is entitled to these rights, without discrimination. Ishay states ‘Human rights are rights held by individuals by virtue of being a human being’ International human rights law lays down the obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. Since its establishment in 1945, one of the fundamental goals of the United Nations has been promoting and encouraging respect for human rights for all, as stipulated in the United Nations Charter.

"Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom… Now, therefore the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations…" - Preamble, Universal Declaration of Human Rights, 1948

The Human Right I have chosen is The Right to Life – talk about the UN and the right to life

The Purposes of the United Nations are:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

To be a centre for harmonizing the actions of nations in the attainment of these common ends

Article 2 of the ECHR is the right to life which is an absolute right. It states that ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’. [1] The ‘right to life’ is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being. The concept of a right to life is central to debates on the issues of euthanasia, capital punishment, abortion, self defence and war. It has been used in this way to discuss whether or not the right to life can also imply a right to die.

In order to uphold the right to life, signatories to the ECHR must ensure that the laws of their country uphold this right. The UK satisfies this requirement because both murder and manslaughter are criminal offences. The Article used to contain the exception that an individual’s right to life may be overridden if they are sentenced to death by a court following their conviction for a crime and a lawfully executed death penalty is not a breach of an individual’s human rights. However, two later amendments to the ECHR abolished the death penalty. The first amendment abolished the death penalty in all circumstances other than in a time of war and the second amendment abolished the death penalty in any circumstances. The UK has brought both of these amendments into force and therefore under UK law no one can be sentenced to death.

Talk about the policy and judicial interpretation of my human right.

Article 2 states that an individual may lawfully be deprived of their right to life if it is necessary to do so in order to protect any person from unlawful violence, lawfully arrest an individual or to prevent the escape of an individual from lawful custody or to lawfully prevent a riot or an insurrection or rebellion against the established authority of a state. Where an individual is killed in any of the above circumstances, their right to life may have been breached if the force used was more than was absolutely necessary to prevent the relevant circumstances from occurring.

There are a few different situations where the state’s or a public authority’s duty to protect an individual’s right to life may be invoked. For example if an individual receives death threats, if hospitals or medical practitioners fail to provide a patient with life-saving treatment and if a foreign national facing deportation risks being killed on their return. There are many situations where individuals have unsuccessfully tried to argue that the right to life applies. The right to life cannot be invoked to prevent a woman from having a legal abortion. Under UK law it has also been held that the right to life cannot be relied upon by a person who is terminally ill and wishes to end their life.

Outline some cases that deal with the human right

Osman v United Kingdom (1998)

A teacher had developed an unhealthy interest in one of his pupils that included following him home, locking him in a classroom, vandalising his home and victimising his school friend. The teacher’s behaviour was reported to the headmaster and to the police. The teacher subsequently shot the pupil and his father, injuring the pupil and killing his father. The European Court of Human Rights found that the police had not failed in their duty under Article 2 to safeguard the father’s right to life. There was insufficient proof that the teacher posed a real and immediate threat to life which the police knew about or ought to know about. The positive obligation to safeguard life must not impose an impossible or disproportionate burden on public authorities.

(Case summaries taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)

The first paragraph of Article 2 contains an exception for lawful executions, although this exception has largely been superseded by Protocols 6 and 13. Protocol 6 prohibits the imposition of the death penalty in peacetime, while Protocol 13 extends the prohibition to all circumstances. The second paragraph of Article 2 provides that death resulting from defending oneself or others, arresting a suspect or fugitive, or suppressing riots or insurrections, will not contravene the Article when the use of force involved is "no more than absolutely necessary". Signatory states to the Convention can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war.

The European Court of Human Rights did not rule upon the right to life until 1995, when in McCann v. United Kingdom it ruled that the exception contained in the second paragraph do not constitute situations when it is permitted to kill, but situations where it is permitted to use force which might result in the deprivation of life.

The Court has ruled that states have three main duties under Article 2:

a duty to refrain from unlawful killing,

a duty to investigate suspicious deaths and,

in certain circumstances, a positive duty to prevent foreseeable loss of life

Article 2 has been interpreted to include the positive requirement of the state to ensure preventative measures are taken to protect citizens. The leading case on the matter is Osman v UK which overruled the UK court's decision in Hill v West Yorkshire as to the fact that public bodies could not be held to be negligent.

In A Local Authority v Mr Z, it was decided that where a disabled but legally competent person wished her husband to arrange assisted suicide for her in Switzerland, the local authority had no duty to seek the continuation of an injunction restraining the husband from removing his wife from England for that purpose. The injunction was refused. The expert evidence was based on the fact that the wife was legally competent to make her own decisions.  Although the local authority was obliged to treat the wife as a vulnerable adult under the Department of Health guidance issued under the Local Authority Social Services Act 1970 s.7, the court had no basis in law for exercising the jurisdiction so as to prohibit the wife from taking her own life. Suicide was not punishable as a criminal act under Section 1 of the Suicide Act 1961, but aiding, abetting, counselling or procuring suicide or attempted suicide was an offence under section 2. Although assisted suicide was not criminal under the law of Switzerland, the husband would contravene s.2 by making arrangements and taking steps in the UK to assist his wife to travel to Switzerland for that purpose. So it would require criminal conduct by the husband to help the wife implement her decision. In the context of a legally competent person, the right to life under Article 2 of the Convention did not assume primacy over the rights of autonomy and self-determination. The local authority had a duty to investigate the position of the wife as a vulnerable person and to consider whether she was legally competent, and to consider whether to invoke the jurisdiction of the High Court if necessary and exceptionally to invoke that jurisdiction. Its duty did not extend, where the person was competent, beyond giving advice or assistance in accordance with the person's best interests and informing the police if a criminal offence might be involved. The local authority had no duty to seek the continuation of the injunction. The court would not of its own motion continue the injunction where no one with the necessary standing sought any such order, where the criminal justice agencies had the necessary powers to prosecute any breach of the criminal law and where the effect of the injunction was to deny to a seriously disabled but competent person a right that could not be exercised by reason of the disability.

The case of McCann v UK went to the ECHR. The court considered whether the shooting was disproportionate to the aims to be achieved by the state in apprehending the suspects and defending the citizens of Gibraltar from unlawful violence. The court ruled that the actions of the soldiers at the time met the requirement of absolute necessity because they believed the suspects were reaching for detonators which intelligence and superiors had specifically warned them against. The alleged breach of Article 2 was found by a vote of 10 to 9 in the planning by the Authorities in that it was not "strictly proportionate" to the objectives to be achieved; i.e. saving lives. First, the court found a breach in the failure to arrest the suspects at the border so as to safeguard all human lives. Second, the court found that the authorities did not consider the correctness of the intelligence and, thirdly, the use of SAS soldiers also amounted to a procedural failure in planning the mission which breached article 2. The court rejected that the U.K. had specifically planned an execution mission and not an arrest mission and dismissed unanimously the applicants' claims save for compensation for legal expenses.

Pretty v United Kingdom (2002)

A woman suffering from an incurable degenerative disease wanted to control when and how she died. In order to avoid an undignified death through respiratory failure, she wanted her husband to help her commit suicide and sought an assurance that he would not be prosecuted for his assistance. The European Court of Human Rights found that the right to life does not create an entitlement to choose death rather than life. So, there was no right to die at the hands of a third person or with the assistance of a public authority.