PAU 3104: HUMAN RIGHTS & GENDER

CAT 1
DESCRIBE AND CRITIQUE THE HUMAN RIGHTS FRAMEWORK ESPOUSED
WITHIN THE UN CHARTER.

SUBMITTED TO:
Prof. J. Mwimali

DEGREE PROGRAMME:
MSC MATHEMATICS & MECHANICAL/MECHATRONICS
ENGINERING
Group 2

PARTICIPANTS REGISTRATION NUMBER

Admire Chityori MT300-0001/2021
Zangui Sabo Ibrahim MT300-0004/2021
Paulo Bungi Lubota MT300-0002/2021
Edgard Siryle Tolo MT300-0003/2021
Meseret Biazen Belete ME300-0008/2021
Tina Confort Kollie MS300-0004/2021

November 18th, 2022

Contents
1. INTRODUCTION ..................................................................................................................................1
2. UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) ...........................................................1
3. DEVELOPMENT AND EXPANSION OF THE UN HUMAN RIGHTS TREATY SYSTEM ...........2
4. THE SIGNIFICANCE OF THE UN CHARTER ON THE STATE OF HUMAN RIGHTS ................3
5. OBLIGATIONS OF MEMBER STATES UNDER THE UNITED NATIONS CHARTER ................4
6. OBJECTIONS TO IMPLEMENTATION ..............................................................................................5
7. CONCLUSION .......................................................................................................................................6
REFERENCES ...............................................................................................................................................7
 1. INTRODUCTION

Human rights can be defined and understood as those rights that are inherent in humans. Human
rights recognize that every human being has the right to exercise his or her human rights regardless
of race, colour, sex, language, religion, political or other opinion, national or social origin, property,
birth, or other status.

According to Kofi Annan, Secretary-General of the United Nations (UN), “Human Rights are the
foundation of human existence and coexistence.” They are universal, indivisible and
interdependent. And they lie at the heart of everything the UN aspires to achieve in its global
mission of peace and development.” In other words, human rights are the basic rights and freedoms
that belong to everyone [1].

Individuals and groups are protected by human rights law from actions that violate fundamental
freedoms and human dignity. They are expressed in treaties, customary international law, principle
bodies, and other legal sources. Human rights law binds states and forbids them from engaging in
certain activities. The law, however, does not establish human rights. Human rights are inviolable
rights that everyone has simply by virtue of being human. Treaties and other legal sources are
generally used to formally protect individuals' and groups' rights against government actions or
inaction that interfere with their enjoyment of their human rights [2].

Human rights are central to the United Nations' work. One of the goals of the United Nations is to
promote and encourage respect for human rights and fundamental freedoms for all people,
regardless of race, gender, language, or religion [1].

The United Nations is an international organization formed as a collective effort to regulate and
conduct inter-national affairs, to prevent wars between nations, and to respect the concept of
fundamental human rights. Nations did not begin to think positively about human rights until after
World War II [3]. Because of the tragic experience of the world wars, the ratification of the Charter
by member states and the formation of the United Nations should be viewed as nations' desire for
the organization to become the international protector of human rights.

2. UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

The UN Charter adopted by 56 countries established a standard of treatment in December 1948.

The language used in the Charter was broad, and states were not required to do anything other than

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'pledge' pursuant to Article 56 of the UN Charter to take joint and separate action in cooperation
with the organization for the achievement of the purposes set out in Article 55 [4]

The goals are: (a) higher living standards, full employment, and social progress and development
conditions; (b) international economic, social, health, and related problems; and international
cultural and educational cooperation; and (c) universal respect for and observance of human rights
and fundamental freedoms for all without regard to race, gender, language, or religion.

The United Nations General Assembly proclaims this Universal Declaration of Human Rights
(UDHR) as a common standard of achievement for all peoples and all nations, with the intent that
every individual and every organ of society, keeping this declaration in mind at all times, shall
strive by teaching and education to promote respect for these rights and freedoms, and by
progressive national and international measures to secure their universal and effective recognition
and observance, both among peoples and nations. [5]

The specific rights (Article 1-Article 30) in the UDHR include: Right to Equality; Freedom from
Discrimination; Right to Life, Liberty, and Personal Security; Freedom from Slavery; Freedom
from Torture and Degrading Treatment; Right to Recognition as a Person before the Law; Right to
Rest and Leisure; Right to Adequate Living Standard; and Right to Education, to name a few [5].

3. DEVELOPMENT AND EXPANSION OF THE UN HUMAN RIGHTS TREATY

SYSTEM
The International Bill of Human Rights, which consists of the Universal Declaration of Human
Rights plus the two Covenants (namely the International Covenant on Economic Social and Cultural
Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR)), was
written in 1966, more than 60 years after the UDHR was first drafted. However, the international
human rights treaty system has continued to grow with the adoption of new instruments and the
formation of new treaty bodies [6].
For instance, the International Convention for the Protection of All Persons from Enforced
Disappearance went into effect on December 23, 2010, which is one of the most recent
developments of the United Nations human rights treaty system. State ratification and reporting
requirements for international human rights treaties have increased as a result of the new universal
periodic review (UPR), which is another advantageous side effect. For example, in 2010, the nine
human rights treaty bodies with a reporting process reviewed more than 100 individual complaints
and over 130 nation reviews. This growth has prompted the United Nations High Commissioner

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for Human Rights (UNHCHR) to request all stakeholders to rethink the future of treaty bodies and
to come up with innovative and creative ideas to strengthen the system [6].

The preventive and operational mandate of the subcommittee on prevention of torture, as well as
the goals of the Optional Protocol to the convention against torture, can serve as additional
examples of how the treaty body system affects strengthening the protection and promotion of
human rights at the national level. The subcommittee's preventive field visits directly assist State
parties by observing the situation on the ground and making recommendations for the protection of
those who are imprisoned and the avoidance of torture. Additionally, the subcommittee supports
the development of national institutions by aiding and advising States parties in the creation of
independent national preventative mechanisms. These national organizations are required to review
how people who are deprived of their liberty are treated on a regular basis and to recommend
changes to the state's authorities for detention facilities [6].

The international standards set forth by the human rights treaties serve to further and defend human
rights all across the world. States commit to implementing the rights at the national level by
ratifying the treaties, adhering to certain standards; the treaty organizations assist and support the
States. Such a strategy may appear to be international-focused, but it is obvious that the national
level is where the promotion and defence of human rights are most important, so that all men,
women, and children in any nation can benefit from them [6].

4. THE SIGNIFICANCE OF THE UN CHARTER ON THE STATE OF HUMAN RIGHTS

In a democratic state governed by the rule of law, every individual is entitled to fundamental rights,
which is why the Charter was adopted [7]. The impact of the Charter on the current human rights
situation will be discussed below. The six sections of the UN Charter on Human Rights are as
follows:

 Human rights are a recurring theme that dominates the Charter.

 The United Nations Charter internationalized the concept of human rights.
 The United Nations Charter is the first international instrument in which nations agreed to
collaborate closely on a global scale to promote human rights.
 The provisions of the Charter contain broad non-discrimination clauses with regard
universality of human rights including the equality of men and women.
 The United Nations Charter is a multilateral treaty that imposes obligations on member
states that are legally binding under international law.

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  The United Nations Charter allows the propagation and education on the concept of
universal human rights.
According to this analysis, the United Nations Charter contains eleven explicit and implicit
references to human rights. Human rights were prioritized when the Charter was adopted, as
evidenced by the number of times human rights-related provisions appear in it. The subject is
brought up often throughout the Charter, both explicitly and implicitly. The concept of the
recognition and protection of human rights is woven like a golden thread throughout the entire
Charter as one of the main goals of the United Nations Organization, according to Oppenheim and
Lauterpacht (1955) [8].

5. OBLIGATIONS OF MEMBER STATES UNDER THE UNITED NATIONS CHARTER

One of the idea of "internationalizing" human rights, which permits a shift away from the
conventional definition of human rights as being local or domestic and toward rights that are
worldwide. The question of whether nations defend this principle out of their own free will or
because the Charter compels them to do so needs to be answered despite the fact that during the
past 50 years, member states' views on this topic have evolved dramatically. In order to determine
whether there is such a thing as positive responsibility, we need to look in the words of the Charter.
Although member states' perspectives on this question have evolved greatly over the past 50 years,
it is important to determine whether states adhere to these perspectives voluntarily or because the
Charter compels them to do so. We must look at the language employed in the Charter to assess if
such a positive responsibility actually exists. There are, without a doubt, provisions that make
reference to this issue, but they are more concerned with the objectives and guiding principles of
the UN as well as the roles and authority of the various UN-affiliated bodies and organs. The
undertaking phrase of Article 56 contains the exemption. According to the clause, the undertaking
itself imposes only a weak obligation on member states, requiring them to promote and uphold
human rights without discrimination. Therefore, the regulations appear advisory and supervisory
rather than mandatory [8].

According to Kelsen (1950), the Charter does not impose obligation on member states on matter of
human rights. He stated that “the language used by the Charter in this respect does not allow the
interpretation that the Members are under legal obligations regarding the rights and freedoms of
their subjects”. He further argued that human rights are well within a state domestic jurisdiction
because Article 2(7) of the Charter forbids intervention of United Nations on such matters with the
exception that the situation fits “….threats to the peace, breach of the peace….” as provided in
Article 39 of the Charter [9]

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There are a number of causes for this. First, as there is no universal definition of human rights in
the Charter, no responsibility may be imposed. Second, the signatories to the Charter would never
have agreed to a clause that expressly imposes obligations. Third, the provision's wording may have
been chosen with the goal of serving as the cornerstone of future international human rights
cooperation [9].

From Kelson's viewpoint, the Charter is seen as only a collective agreement between the contracting
states to cooperate in search of a common understanding on human rights and not as a legally
binding statement of human rights. However, this should not be viewed as a failure of the Charter
and instead should be viewed as evidence that the Charter was successful in the struggle for human
rights since it established the basis for how those rights are defined, codified, and strengthened [9].

6. OBJECTIONS TO IMPLEMENTATION
Even while the charter internationalizes human rights, they nonetheless largely fall under state law.
As a result, there are differences in how human rights are observed and applied between states.
Each state has the right to uphold the idea of universal human rights while also applying its own set
of rights, whether by fully embracing the internationally specified standards of rights or by creating
its own, potentially relativist, sui generis standards [9].

As an illustration, according to the Malaysian Federal Constitution, bumiputeras (those of the Malay
race and residents of Malaysia) are granted privileges under the country's affirmative action policy.
Shad Faruqi noted that many of Malaysia's economic, social, and educational programs are
organized along ethnic lines in relation to this [10]. Affirmative action is strongly endorsed by some
as being necessary to correct the country's inequities, while others argue that Malaysia is violating
human rights by enacting laws that encourage discrimination. The question is; is it really feasible
for foreign States to impose Malaysia with positive responsibilities to uphold universal human
rights through the international arena given these practices? [11].

On the other hand, the clause where a positive human rights requirement can be formed is found in
Articles 56 and 55(c). Based on the nations' vow, they demand that member states support and
uphold human rights. A state is deemed to have violated the Charter itself if it violates human rights
on its own soil in violation of that pledge. International law is the sole remedy that may be used in
certain situations, and the UN is not able to interfere because of Article 2(7).

“Nothing in the current Charter requires the Members to submit a matter for resolution under the
current Charter or authorizes the United Nations to intervene in matters that are essentially within

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the domestic jurisdiction of any state; however, this principle shall not preclude the use of
enforcement measures under Chapter VII (7)’’ Article 2(7). According to the article, the UN is
unable to get involved in any issues that are the sole purview of states. What exactly does the word
"intervene" signify is the question. Interventions are defined by writers like Lauterpacht and
Oppenheim as the authoritarian interference by a State in the affairs of another State with the goal
of maintaining or changing the current state of affairs. According to [12], the term "intervention"
may refer to "dictatorial interference" or "interference pure and simple". Citing the Charter's
drafting history, he came to the conclusion that intervene meant "intervention pure and simple" and
that the word's creators had no purpose of limiting it to "dictatorial interference." This reveals that
member countries recognized the supremacy of state sovereignty at the time the Charter was
written, making any interference in a state's internal affairs unlawful.

Additionally, the International Court of Justice decided in the Nicaragua case that the phrase
"intervention" in the Charter does not refer to interfering with a legitimate government. Any
authoritarian involvement with another State by one State is considered to be against international
law. In this case, it was determined that the United States had broken international law by interfering
in Nicaragua's internal affairs by supporting guerrilla rebels and illegally mining Nicaraguan ports
in violation of Art. 2(4) of the Charter [11].

7. CONCLUSION
We can certainly say that The United Nations is the source of the contemporary understanding of
human rights. It can be seen from the institution's charter that its primary goal is to prevent wars on
a worldwide scale, but the charter also contains a number of explicit and implied implications
regarding the accepted norms of human rights. Since the issue of human rights appears so many
times in the UN Charter, we can conclude that it has transcended the realm of domestic state law to
a higher plane of international law. Domestic human rights, which have been shaped by particular
domestic factors like culture and religion, will gradually be undermined by this transcendence. One
case at a time, domestic courts are perceived to gradually adapt and become skilled to the
international standard of human rights. Even though it is not explicitly required, the UN's concept
of human rights member states, it will gradually seep into domestic legislation and court rulings,
and there is a chance that eventually the same standard of human rights will be applied by all states
to produce a consistent new world order [13].

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REFERENCES

[1] UNDP, Human Rights in UNDP.

[2] United-Nations, Human Rights: A Basic Handbook for UN Staff, OFFICE OF THE HIGH
COMMISSIONER FOR HUMAN RIGHTS.

[3] T. Buergenthal, “International human rights in an historical perspective.,” In J. Symonides

(Ed.), Human rights: Concept and standards Aldershot, England: UNESCO., p. 11, 2000.

[4] [Online]. Available: http://www.unhchr.ch/udhr/index.htm for the Universal Declaration of

Human Rights in over 250 different languages..

[5] M. S. Pais, “A HUMAN RIGHTS CONCEPTUAL FRAMEWORK FOR UNICEF,”

UNICEF International Child Development Centre, Piazza S.S. Annunziata 12 - 50122
Florence, Italy, 1999.

[6] Office of the high commissioner, United Nations Human Rights, “The United Nations
Human Rights Treaty System,” New York, Geneva, 2012.

[7] “The Human Rights Law of the Charter,” (1977).

[8] A. A. Zakariah, “Human Rights and the United Nations Charter: Transcendence,” Pertanika
Journal of Social Science and Humanities , pp. 185 - 198, January 2017.

[9] Kelsen H., “The Law of the United Nations: A critical analysis of its fundamental problems,”
The Lawbook Exchange Ltd, no. New Jersey, 1950.

[10] S. Faruqi, “Document of destiny: The constitution of the Federal of Malaysia. Kuala
Lumpur,,” Star publication, 2008.

[11] Zakarian and A. A., “Human Rights and the United Nations Charter: Transcendence of the
International Standards of Human Rights,” ResearchGate, 2017.

[12] D. R. Gilmour, Article 2(7) of the United Nations Charter and the Practice of the Permanent
Member of the security Council., vol. 3, London: Australian Yearbook of International Law.,
1967.

[13] The United Nations, Charter of the United Nations and Statute of the International Court of
Justice, San Franciso, 1945.

[14] A. A. Zakariah, “SOCIAL SCIENCES & HUMANITIES,” Human Rights and the United
Nations Charter:, pp. 185 - 198, 2017.