Human rights norms: it’s the implementation, stupid

by Marc Limon, Executive Director of the Universal Rights Group Blog BORRAR, Human rights implementation and impact, Human rights institutions and mechanisms BORRAR, Implementation BORRAR

The development of international human rights norms has been one of the great success stories of the UN. The first major achievement was the adoption of the Universal Declaration of Human Rights by the General Assembly on 10 December 1948 – “a common standard of achievement for all peoples and all nations”. Building on this first step, the UN went on to adopt the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Covenant on Economic, Social and Cultural Rightsand the International Covenant on Civil and Political Rights (both in 1966), and six other core conventions (so called because they take their inspiration from the provisions enshrined in the Universal Declaration).

With adoption and widespread ratification by States of these legally binding covenants and conventions (known as ‘hard law’), and the elaboration of other human rights instruments such as declarations, resolutions, guiding principles and codes of conduct (known as ‘soft law’), the international community has moved to create a comprehensive global code of human rights norms governing practically every area of the relationship between the individual and the State.

But what are the real world, practical, tangible implications of the global code of norms set down in international human rights law? From the perspective of politicians, diplomats, NGOs and the victim of human rights violations, is the ever-widening framework of norms meaningful? Is it useful?

The value of international law stems from the degree to which it sets down the basic common values of the international community or ‘international society’ (Henkin, 1995) and agreed norms of behavior. Ubi societas, ibi jus. Where the international community is able to identify such standards and values, international law serves to lock them in and present them as universal norms.

However, it is clear that such norms, and the laws that delineate them, have little or no value in the absence of effective compliance. Most scholars hold that international rules ‘are rarely enforced, but usually obeyed’ (Koh, 1997). In 1979, Louis Henkin asserted that ‘almost all nations observe almost all principles of international law almost all of the time’ (Henkin, 1979). According to Thomas Franck (1995), and Abram Chayes and Antonia Handler Chayes meanwhile, compliance stems from the fairness and legitimacy of the rules themselves, and the ‘iterative process of discourse among the parties, the treaty organization and the wider public’ (Chayes and Chayes, 1995).

These and other analyses appear to base their reasoning on the belief that states feel a moral obligation, heightened through participation in international process (i.e. with their peers), to obey an international norm and this then becomes ‘an internally binding domestic legal obligation when that norm has been interpreted and internalized into its domestic legal system’ (Koh, 1997).

Such conclusions would appear, however, to be somewhat utopian, and counter to the defining character of today’s neorealist world.

Human rights law presents an obvious case in point. In the case of universal human rights norms, there is little evidence to suggest that ‘almost all nations observe almost all principles of international law almost all of the time’, especially when such principles run counter to prevailing power structures.

The formation of international human rights law fits within the conditions put forward by Chayes and Chayes et al. Norm setting has tended to take place within an iterative process of international discourse and the results are, by and large, universally accepted. And yet, beyond a core of strong democracies, there is little evidence, in most regions of the world, of widespread internalization and compliance with human rights legal obligations.

In these and other cases of non-compliance, it is not enough, as Koh and others do, to rely on moral obligations and eventual obedience. What is needed, instead, are international institutions and mechanisms that can follow-up on and promote implementation of the obligations in question. In other words, international law is useful when it is obeyed, and in order for it to be widely and consistently obeyed, the law must be accompanied with effective compliance mechanisms. Only through the application and perseverance of such mechanisms can norms be internalized and obeyed, even where this may run counter to the will of the state(s) concerned and where it may challenge prevalent power structures.

Here again, the experience of the international human rights community and of international human rights law is particularly instructive.

For twenty years after the establishment of the United Nations and the adoption of the Universal Declaration of Human Rights (UDHR), states held to the belief, in line with the views of Henkin, Franck, Koh and others, that states should focus on setting international human rights norms and then promoting compliance through an ‘iterative process of discourse among the parties, the treaty organization and the wider public’. This was the Treaty Body system, designed to promote compliance with the obligations laid down in the International Bill of Rights and other human rights treaties.

According to the authors cited earlier, this process – what we have come to know as ‘promoting’ human rights – should have been sufficient to ensure that states would accept, internalize and obey the agreed norms.

However, it did not take long for UN diplomats and others to realize this would not be the case. Again and again, states were found to be flouting agreed norms and violating their human rights obligations. This led to increasing calls for stronger compliance mechanisms – mechanisms that could actively ‘protect’ human rights and hold states accountable against their obligations. The most prominent of these mechanisms was the Special Procedures which emerged in the late 1960s and has expanded in scale and importance ever since.

Today, the international human rights system continues to struggle to secure compliance with international human rights norms. In one sense this should come as no surprise – it is one thing for states to draft new laws, and quite another for them to accept international scrutiny of their compliance. And yet, if international human rights law is to be meaningful for those people around the world who need help and protection, it is clear that the international system’s mechanisms and processes to ensure implementation of norms, follow-up and compliance must be significantly strengthened.

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