ASSIGNMENT:

ANALYSIS OF UN MECHANISM

GROUP 4

Amio, John P.
Cabase, Athina Maricar M.
Evangelista, Nicole G.
Nacua, Vincent John V.
Uy, Hian T.

EH305

S.Y. 2021-2022
DISCUSSION
 
1. What are the opportunities under the UN Human Rights Mechanisms for a
person to complain for violation of human rights?

1) Any victim of human rights violation can raise a complaint against a

violating State .

The basic concept of the complaint mechanism under the human rights treaties is
that anyone may bring a complaint against a State party allegation violation of treaty
rights to the body of experts monitoring the treaty. 1 These treaty bodies monitor the
implementation by State parties of the rights stipulated in the treaties and decide on
complaints brought against the violating states.

The Human Rights Council adopted a resolution entitled “Institution Building of UN

Human Rights Council” wherein a new complaint procedure was established to address
consistent patterns of violations under any circumstances. 2 The complaint procedure
addresses complaint submitted by individuals, groups and even non-governmental
organizations claiming to be victims of human rights.

2) Interim measures: special circumstances of urgency or sensitivity can be

addressed more promptly.

At any stage of the procedure, a committee may request the State party to take
measures to prevent any irreparable harm to the complainant. These interim measures
are issued to prevent actions that cannot be undone later on such as execution of a
death sentence or deportation where complainant would face a risk of potential
torture.3

However, it is worth noting that the committee may only consider issuing these
interim measures if the case has a reasonable likelihood of success on merits. Thus, if a
complainant requests for interim measures, he should state explicitly and clearly, and
explain with specificity why such action is necessary.

3) A system of international check-and-balance among and between States

for their human rights obligation.

1
UN Individual Complaint Procedure under the UN HR Treaties. 2013.
2
UNHRC: Human Rights Council Complaint Procedure. 2007.
3
Ibid.

Group 4: Analysis of UN Mechanism | Amio, Cabase, Evangelista, Nacua, Uy 1

 The UN Human Rights Mechanism is a collection of mechanisms that work together
to hold states accountable for their human rights obligation. Nonetheless, some states
object UN actions to address protect human rights and address violations contending
that these represent unwarranted foreign interference of their respective domestic
sovereign affairs.4 The international principle of non-interference of among sovereign
state tends to be abused by states notoriously known for human rights violation.

With the established UN Human Rights Mechanisms, it becomes imperative for

states to be held accountable for their human rights obligations and/or violations. 5 If
there is a complaint on human rights violation against a state, there is an opportunity to
apply international law and norms and co-relate it with their domestic laws and
practices. Human right defenders could draw attention to abuses and prompt an expert-
led response.6

In an international community, negotiations and agreements are essential to ensure

that every state’s national interest is taken into consideration. Hence, with the UN
Human Rights Mechanism such as the Human Rights Treaty-Based Mechanism, the
treaty body can examine any violations committed against treaty stipulations. Further,
they can make recommendations, examine on a case-to-case basis, and monitor the
situation over time.

Therefore, the UN Human Rights Mechanism likewise provides an opportunity for

a person to raise a complaint on human rights violation and to call on states to
investigate, monitor and report violations.

2. What are the limitation of the UN Human Rights Mechanism for the
enforcement of human rights?

Since the ratification of the Universal Declaration of Human Rights, several United
Nations Mechanisms for enforcing and protecting rights set out therein have emerged.
Despite efforts to effectively enforce human rights, there remain limitations that
challenge these UN Mechanisms.

It is worthy to note in the outset that political will is the most important factor
for enforcing human rights7. That UN Human Rights Mechanisms exist does guarantee
the effective enforcement of human rights. Cooperation from State leaders is ultimately
needed to make rights real, in the sense of their enforcement for that matter.
4
Universal Rights Group: The United Nations and the Universal Human Rights System. 2017.
5
Sexual Rights Initiative: UN Mechanism, The Human Rights Council.
6
The Special Procedures: The Basics by ISHR Global. 2019
7
Making Rights Real: The Challenge of Implementing Human Rights Decision by Christian De Vos. 2013.

Group 4: Analysis of UN Mechanism | Amio, Cabase, Evangelista, Nacua, Uy 2

 Some of these limitations – which all boil down to dependence on political will – are
enumerated and discussed below, as follows:

1) Country visits by UN Special Rapporteurs require invitation (consent)

from concerned Government.

Case in point is the manner by which country visits of Special Procedures of the
Human Rights Council are conducted. “Special Procedures” are independent human
rights experts with mandates to report and advise on human rights from a thematic or
country-specific perspective. These experts, once given mandates, carry out country
visits to assess the situation of human rights at the national level. At the request of a
mandate-holder, the Government will send an invitation (consent) for a fact-finding
mission8.

Some countries have issued standing invitations, which means that they are, in
principle, prepared to receive a visit from any thematic mandate-holder, but some do
not. As of August 21, 2021, there are only 127 Member States and 1 non-Member
Observer State that have extended a standing invitation to thematic special
procedures9. For countries that did not issue standing invitations, the possibility of
carrying out country visits really depends upon State leaders; one of these countries is
the Philippines.

An invitation from the concerned State is important because prior to the country visit,
the State must agree on the visit’s “Terms of Reference,” which basically guides
Governments in the conduct of the visit. The same Terms of Reference reflect the
assurances by the Government that no persons who have been in contact with
mandate-holders will suffer threats, harassment or punishment for doing so and
appropriate security arrangement without restricting the mandate-holder’s freedom of
movement and inquiry10.

2) Poorly-resourced States tend to resort to ad hoc national mechanism for

reporting and follow-up.

A national mechanism for reporting and follow-up is a mechanism or structure that

is fully part of the Government, with a mandate that is closely tied to reporting to and

8
UN HR Office of the High Commissioner: Country and Other Visits of Special Procedure.
9
UN HR Office of the High Commissioner: Standing Invitations.
10
Terms of Reference for Country Visits by Special Procedures. 2016.

Group 4: Analysis of UN Mechanism | Amio, Cabase, Evangelista, Nacua, Uy 3

engaging with international and regional human rights mechanisms, as well as following
up their recommendations or decisions11.

There are four main types of national mechanisms, depending on their location and
degree of institutionalization and status: ad hoc; ministerial; inter-ministerial; and
institutionally separate. The last three are referred to as standing mechanisms 12.

Political commitment, technical knowledge and dedicated resources and capacity are
among the factors to be considered in choosing whether a national mechanism for
reporting and follow-up should be ad hoc or standing. States that use ad hoc
mechanisms to prepare their reports typically face the same capacity constraints every
time they constitute a new drafting committee and face challenges caused by a lack of
coordination and weak institutional memory13.

Thus, it is recommended that authorities consider investing in the establishment

and/or strengthening of a standing mechanism. Such a mechanism would address the
identified issues, while establishing sustainable links across different ministries 14. For
countries that have poor resources, the chances of this happening is slim. Thus,
resorting to ad hoc mechanisms becomes inevitable.

3) Enforcement mechanisms are virtually toothless.

This is a common theme in the enforcement aspect of public international law,

which also applies in UN Human Rights Mechanisms, specifically the Universal Periodic
Review.

At the end of every period review, an “outcome report” is adopted. This outcome report
contains recommendations to address human rights issues in the State subject of the
review. The concerned State has the primary responsibility to implement the
recommendations15.

11
Page 4, National Mechanisms for Reporting and Follow-Up: A Practical Guide to Effective State
Engagement with International Human Rights Mechanisms. 2016.
12
Page 5, National Mechanisms for Reporting and Follow-Up: A Practical Guide to Effective State
Engagement with International Human Rights Mechanisms. 2016.
13
Page 8, National Mechanisms for Reporting and Follow-Up: A Practical Guide to Effective State
Engagement with International Human Rights Mechanisms. 2016.
14
Page 9, National Mechanisms for Reporting and Follow-Up: A Practical Guide to Effective State
Engagement with International Human Rights Mechanisms. 2016.
15
OHCHR: UN Human Rights Council Basic Facts about UPR.

Group 4: Analysis of UN Mechanism | Amio, Cabase, Evangelista, Nacua, Uy 4

 Although the UPR ensures that all countries are accountable for progress or failure
in implementing these recommendations, there is no clear-cut measure to ensure
compliance from concerned States. In fact, in case of persistent non-cooperation by a
State with the UPR, the Human Rights Council will still have to decide on what
measures it would to take to address such non-cooperation 16.

3. What can be done to maximize these mechanisms for the enforcement of

rights despite its limitations?

1) UPR ensures that all countries are accountable for progress or failure in implementing
recommendations.

The Universal Periodic Review (UPR) is tasked to ensure that all countries are accountable for
progress or failure in implementing the recommendations. 17 During the first review, the State give
recommendations while during the second review, the State provides information on what they have
been doing to implement the recommendations  and any developments in the field of human rights. Then
the international community should also assist in implementing these recommendations and conclusions
regarding capacity-building and technical assistance. 

Furthermore, the Council will address cases where States are not co-operating, if necessary. In
the recent years, the enforcement mechanism is the United Nations Security Council, acting under
Chapter VII of the UN Charter. 18 Under the provisions of that Chapter, the Security Council may
determine the existence of any threat to the peace, breach of the peace or act of aggression, and may
impose mandatory sanctions to try to rectify the situation. 19 The sanctions may be economic (such as a
trade embargo against a country threatening the peace), diplomatic (such as severance of diplomatic
relations) or military (the use of armed force to maintain or restore international peace and security).

2) (Add here)
3) (Add here)

16
Ibid.
17
Ibid.
18
Enforcing International Law Vol 1, Issue 1 by Frederic Kirgis. 1996.
19
Ibid.

Group 4: Analysis of UN Mechanism | Amio, Cabase, Evangelista, Nacua, Uy 5