Making Sense of Human Rights Revised Edition 11 September 2004 all rights reserved



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Thirdly, today’s human rights differ from eighteenth-century natural rights in being internationally oriented and promoted. Not only are they prescribed internationally--which is nothing new--but they are also seen as appropriate objects of international action and concern. Although eighteenth-century natural rights were viewed as rights of all people, they served mainly as criteria for justifying rebellion against existing governments. International organizations with power to investigate, expose, and adjudicate human rights problems were not yet on the horizon. While states remain jealous of their sovereignty and anxious to prevent outsiders from interfering in their affairs, the principle that international inquiries and interventions are justifiable in cases of large-scale violations of human rights is now well established.



The International Protection of Human Rights

The international orientation of human rights today is evident in the organizations and treaties that promote and protect human rights at the transnational level. Treaties such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "European Convention"; Council of Europe 1950), the International Covenant on Civil and Political Rights (United Nations 1966b), and the Convention against Torture (United Nations 1984) give human rights an established place within international law. This section offers brief descriptions of some of the most important treaties and enforcement mechanisms. Chapter 9 describes treaties and declarations dealing with the human rights of minorities. Readers with limited interest in international organizations and human rights treaties are invited to skim this section and move on to Chapter 2.



The European Convention on Human Rights

The Cold War did not kill the idea of enforcing human rights through international treaties and organizations. Throughout the fifties and sixties, efforts to create international human rights treaties continued within the United Nations and other international organizations. In the early 1950s the countries of Western Europe created within the Council of Europe a human rights treaty, the European Convention, that contained a list of civil and political rights similar to the one found in first twenty-one articles of the UDHR. Economic and social rights were treated in a separate document, the European Social Charter (Council of Europe, 1961). The participants in the European Convention were originally the countries of Western Europe, but with the end of the Cold War in the early 1990s many countries in Eastern Europe, including Russia, have joined. In 2003, the Convention covered 41 countries and 800 million people.

The European Convention created a human rights court to interpret human rights norms and to adjudicate disputes. Countries that ratify the Convention agree to respect and implement a list of rights, but they also agree to the investigation, mediation, and adjudication of human rights complaints. The European Convention provides a judicial body, the European Court of Human Rights, to which complaints about human rights violations can be made and remedies for them pursued. It is the most effective system currently operating for protecting human rights at the international level. The Court, based in Strasbourg, France, has one judge from each participating state—although the judges are appointed as independent jurists rather than as state representatives. Individuals from the participating countries with human rights complaints who have been unable to find a remedy in their national courts are able to petition the European Court of Human Rights. Complaints by governments about human rights violations in another participating country, though rarely made, are also permitted. If the Court agrees to hear a complaint, it investigates and adjudicates it. Prior to issuing a judgment, the Court attempts to mediate the dispute. If conciliation fails, the Court will issue a judgment and impose a remedy. Through this process a large body of international human rights jurisprudence has developed (Jacobs and White 1996, Janis, Kay and Bradley 1995). Governments almost always accept the Court's judgments. Compliance occurs because governments are committed to human rights and because their membership in good standing in the European Community would be endangered were they to defy the Court.

United Nations Human Rights Treaties


Efforts to create international human rights treaties went ahead within the United Nations in spite of the Cold War. The Genocide Convention was approved in 1948, and as of 2003 has more than 130 signatories. It defines genocide and makes it a crime under international law. It also calls for action by UN bodies to prevent and suppress acts of genocide and requires states to enact national legislation prohibiting genocide, to try and punish persons or officials who commit genocide, and to allow extradition of persons accused of genocide. The International Criminal Court, which was created by the Rome Treaty of 1998, is authorized to prosecute genocide, along with crimes against humanity and war crimes, at the international level.

The plan to follow the UDHR with analogous treaties also went ahead, but at a glacial pace. Drafts of the International Covenants were submitted to the General Assembly for approval in 1953. To accommodate those who believed that economic and social rights were not genuine human rights or that they were not enforceable in the same way as civil and political rights, two treaties were prepared, the International Covenant on Civil and Political Rights (hereinafter "Civil and Political Covenant," United Nations 1966a) and the International Covenant on Economic, Social, and Cultural Rights (hereinafter "Economic and Social Covenant," United Nations 1966b). These treaties embodying the UDHR's rights were not approved by the General Assembly until 1966 and did not receive enough ratifications to become operative until 1976. The Civil and Political Covenant contains most of the civil and political rights found in the UDHR. The Economic and Social Covenant contains the economic and social rights found in the second half of the UDHR.

Between the UDHR of 1948 and the General Assembly's approval of the International Covenants in 1966, many African and Asian nations, recently freed from colonial rule, entered the United Nations. These countries were generally willing to go along with the human rights enterprise, but they modified it to reflect their own interests and concerns such as finishing off colonialism, criticizing apartheid in South Africa, and condemning racial discrimination around the world. The two Covenants reflect these concerns; both contain identical articles asserting rights of peoples to self-determination and to control their own natural resources. Rights against discrimination were given a prominent place. And the UDHR's rights to property and to remuneration for property taken by the state were deleted from the Covenants.

A country ratifying a UN human rights treaty agrees to respect and implement the rights the treaty covers. It also agrees to accept and respond to international scrutiny and criticism of its record. The Civil and Political Covenant, which has been ratified by nearly 150 countries, illustrates the standard UN system for implementing an international bill of rights. The Civil and Political Covenant created an agency, the Human Rights Committee, to promote compliance with its norms. The eighteen members of the Human Rights Committee serve in their personal capacity as experts rather than as state representatives. Unlike the European Convention, the Civil and Political Covenant did not create a human rights court to give authoritative interpretations of its norms. The Human Rights Committee can express its views as to whether a particular practice is a human rights violation, but it is not authorized to issue legally binding reports (Alston and Crawford 2000).

The Civil and Political Covenant requires participating states to prepare and present periodic reports on their compliance with the treaty, and the Human Rights Committee has the job of receiving, studying, and commenting critically on these reports (Boerefijn 1999, McGoldrick 1994). While doing so, the Committee holds public meetings in which it hears from non-governmental organizations such as Amnesty International and meets with representatives of the state making the report. At the end of this process the Human Rights Committee publishes "Concluding Observations" that evaluate human rights compliance by the reporting country. This process requires countries to hold discussions with the Human Rights Committee and have their human rights problems exposed to world public opinion. The reporting procedure is useful in encouraging countries to identify their major human rights problems and to devise methods of dealing with them over time. But the reporting system has few teeth when it is required to deal with countries that stonewall or fail to report, and the Human Rights Committee's conclusions often receive little attention (Bayefsky 2001). In addition to the reports on compliance that the treaty requires of all participating countries, the Civil and Political Covenant has an optional provision requiring separate ratification that authorizes the Human Rights Committee to receive, investigate, and mediate complaints from individuals alleging that their rights under the Civil and Political Covenant have been violated by a participating state (Joseph, Schultz, and Castan 2000). By 2000, 95 of the 144 states adhering to the Covenant had ratified this optional provision.

Overall, this system for implementing human rights is limited. It does not give the Human Rights Committee the power to order states to change their practices or compensate a victim. Its tools are limited to persuasion, mediation, and exposure of violations to public scrutiny.

Many other UN human rights treaties are implemented in roughly the same way as the Civil and Political Covenant. These include the International Convention on the Elimination of All Forms of Racial Discrimination (United Nations 1965), the Convention on the Elimination of All Forms of Discrimination Against Women (United Nations 1979), the Convention on the Rights of the Child (United Nations 1989), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations 1984).

Another treaty-based UN agency with jurisdiction in the human rights area is the International Criminal Court (United Nations, 1998). As noted above, its jurisdiction includes genocide, war crimes, and crimes against humanity such as extermination, enslavement, and torture (Schabas 2001).



Other Human Rights Agencies within the United Nations

Human Rights treaties are only one part of the UN's human rights program. There are a number of UN agencies that are charged with promoting human rights independently of the requirements imposed by human rights treaties. These bodies include the UN High-Commissioner for Human Rights, the Human Rights Commission, and the UN Security Council.

The High Commissioner for Human Rights is charged with coordinating the many human rights activities that go on within the UN. The High Commissioner receives complaints about human rights violations, assists in the development of new treaties and procedures, sets the agenda for human rights agencies within the UN, and provides advisory services to governments. Most importantly, the High Commissioner serves as a full-time advocate for human rights within the United Nations (Kory 1998, 369).

The Human Rights Commission is a standing body, created by the UN Charter, composed of 53 state representatives. Its main job is to deal with gross violations of human rights wherever they occur. Because its members are state representatives rather than independent experts or jurists, the Commission is more of a political body than the Human Rights Committee established by the Civil and Political Covenant. If the Human Rights Committee established under the Covenant deals with human rights issues as a matter of international law, the Human Rights Commission often deals with human rights issues as matters of international politics and diplomacy. Achievements of the Human Rights Commission include authoring the UDHR and many human rights treaties, as well as the extended and successful campaign against apartheid in South Africa (Tolley 1987). 

The Commission's main focus is situations revealing "a consistent pattern of gross…violations of human rights." The Commission is authorized to receive complaints alleging gross violations, and it deals with these complaints in closed sessions. The Human Rights Commission also holds a public session each year in which states and nongovernmental organizations are invited to identify areas of the world in which there are serious human rights problems for the Commission to address. When the Commission decides to take up a complaint it has a number of means it can use. It can ask the government to respond to the complaint, appoint investigators of its own, or refer the matter to the Security Council. The Commission also has "thematic" working groups that work with particular types of human rights problems.

The Security Council's mandate under the UN Charter is the maintenance of international peace and security. The fifteen-member body can authorize military interventions and impose diplomatic and economic sanctions (Bailey 1994, Ramcharan 2002, Rodley 1999). During the Cold War the Security Council tended to avoid human rights disputes other than apartheid in South Africa. But since the early 1990s the Security Council has dealt with many issues pertaining to human rights and war crimes. It authorized the use of military force in Somalia, the former Yugoslavia, Rwanda, Haiti, and East Timor, and sponsored a number of peacekeeping missions (Katayanagi 2002). It also established international criminal tribunals for Rwanda and Yugoslavia.




Regional Systems


There are two regional systems outside of Europe. One is the Inter-American system operating in North, Central, and South America under the auspices of the Organization of American States; the other is the African system sponsored by the African Union.

The Inter-American system, which includes almost all countries of the Americas, is broadly similar to the European system. It includes a human rights declaration, the American Declaration of the Rights and Duties of Man (Organization of American States, 1948); a treaty, the American Convention on Human Rights (Organization of American States 1969); a Commission, and a Court. The Commission investigates individual complaints and prepares reports on countries with severe human rights problems. The Inter-American Court of Human Rights is authorized to interpret and enforce the Convention (Davidson 1997). Although this system is broadly similar to the European human rights regime, the context in which it operates is very different. The scale of human rights problems in Latin America is far larger than in Europe, and during the 1980s many governments were committed to flouting human rights. So far, the Commission has been a far more important actor than the Court (Farer 1997). 

The African System, which covers the countries of the African continent, has a human rights treaty and a human rights commission. The treaty, created by the African Union (formerly the Organization of African Unity), is the African Charter on Human and Peoples' Rights (African Union 1981). The African Commission on Human and Peoples' Rights, created in 1986, promotes human rights in Africa and monitors compliance with the treaty. Countries must submit regular reports to the Commission on their human rights problems and efforts to address them. An effort to create a court, the African Court on Human and Peoples' Rights, is currently underway. The African system has enormous human rights problems to address, frequently faces non-cooperation by governments, and has inadequate resources to play a major role (Evan and Murray 2002, Flinterman and Ankumah 1999).

Promotion of Human Rights by States


States sometimes act, individually or jointly with other states, to promote or protect human rights in other countries. Governments often use diplomacy and other measures to promote respect for human rights in countries with severe human rights problems. For example, Portugal attempted to defuse the 1999 crisis in East Timor, and when that attempt failed, Australia led the military effort to restore peace and respect for human rights. The methods used by governments include diplomacy, publishing reports and statements, conditioning access to trade or aid on human rights improvements, economic sanctions, and military intervention.

These efforts by states add some real power to the international human rights system. The countries of Western Europe plus Canada, Australia, and the United States have been the pillars of the human rights establishment. They have lent their considerable support and clout to the system, keeping it going during hard times and helping it expand and flourish in better times. Although they have not always risen to the challenge of human rights emergencies, they have sometimes done so at considerable cost to themselves in money and lives. In doing this, they have often worked closely with the Security Council. They do not, however, have a standing legal commitment to do this, except their commitment in the UN Charter to support the actions of the Security Council (Steiner and Alston 2000, 987f).


Nongovernmental Organizations Dealing With Human Rights


Many nongovernmental organizations are active at the international level in the areas of human rights, war crimes, and humanitarian aid. Examples include Amnesty International, Human Rights Watch, the International Commission of Jurists, Doctors without Borders, and Oxfam. NGOs are seen everywhere in the international human rights system. They attend and often participate in the meetings of UN human rights bodies. They provide information about human rights situations through the reports they publish and the testimony they give. They shape the agendas, policies, and treaties of the UN through their participation and lobbying, and they provide links between the international human rights system and politics at the domestic level (Korey 1998).

Modest Achievements?


The human rights regime within international law is still under construction. So far it has developed a substantial body of norms and a variety of international institutions to promote and protect them. Outside of the European system, it relies more on encouragement, consciousness-raising, persuasion, exposure, and shaming than it does on imposing sanctions. Legal enforcement of human rights at the national level--in countries where it is actually available--continues to be the main vehicle for the effective implementation of human rights.

The fact that the international human rights system only rarely forces recalcitrant violators to change their practices leads many people to view it as ineffectual and hypocritical. There is truth in this, but the system has helped to create an international climate in which most countries are willing to discuss and address human rights issues. Powerful countries such as China and the United States can resist its demands, but the system creates continuous pressure on countries, including powerful ones, to take human rights seriously.





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