Human Rights: Law or Just Statements of Aspiration?

One of the purposes of the United Nations as stated in its Charter is to “promote and encourage respect for human rights,”[i] thereby instilling a legal obligation on member States to do all possible to ensure the achievement of the goals. Thus, the assumption that human rights are statements of aspirations and not law does not reflect the purposes of the Charter, or the developments of HR law over the past 50 years.[ii] The result of decades of human rights activism and campaign has led to an increasing amount of State ratification of HR treaties and compliance.[iii] On the other hand viewing human rights merely as law equally does little justice to the non-judicial mechanisms of human rights enforcement.[iv]

HR law, however, as a component of international law is gripped by the same inconsistencies as those that lie in the system of international law. Namely; that States sovereignty still plays a vital role[v], a flaw which has allowed even State parties to human rights treaties to systematically violate them[vi] without reasonable redress. For the system to be more efficient HR monitors need to address these concerns.[vii]

Although the impact of treaties and special procedures has elevated the status of the individual as actor,[viii] the HR machine has only slightly breached the levee of State sovereignty[ix]. This fault lies with the inability of HR to adequately tackle the issues of treaty breach, leading to countries being rewarded for positions rather than effects, the result being that “governments can take the positions that they do not honour and benefit from doing so.”[x]

Moreover the argument that even though there are no adequate enforcement capabilities governments still feel compelled to perform what is requested of them[xi] is not a sufficient enough reasoning for the maintenance of the status quo. This view also fails to consider the instances where a States may not feel compelled to act as is required, and unfortunately there are too many of such instances.[xii]

Some have proposed a European-like court system[xiii] in replacement of the Human Rights Council, with the view that States will no longer be given the discretion to implement HR’s.[xiv] This is a worthy approach but does not come without critique. The European system falls under a backdrop of regional integration. Majority of the European states are aligned with strong liberal democracies.[xv] The proposal of such a system on an international level (though not impossible) would require a heavy dose of state agreement. In our European example the European Union was the incentive for signature onto the European Convention on Human Rights. How would this quid-pro quo system work on the international level?

Perhaps the increase in regional judicial bodies is the answer.[xvi] However, where you have regional institutions, those States who are not members of regional blocks[xvii] risk exclusion. If the idea is that HR’s are a “basic requirements in any society and a pre-requisite for human progress and development,”[xviii] then limiting the call for universal rights to regional institutions will not suffice.

The protective roles of national human rights institutions (NHR’s) have also been duly welcomed.[xix] Internal independent bodies have proved to be “one of the more promising developments in global efforts to uphold human rights.”[xx] But as is with its international counterpart NHRI’s have often been dubbed “toothless bulldogs” because majority of them are created without the vital enforcement mechanisms.[xxi]

Europe has proved that HR institutions can be successful and even more so addressed the notion that HR’s are not merely inspirational goals. The United Nations treaty bodies continue to establish ground breaking mechanisms for state compliance,[xxii] (Bleir v Uraguay[xxiii]). To a large extent the “shame” mechanism has gotten State attention. However, in the long run the achievement of universal human rights as envisaged by the Charter cannot be based on such uncertain grounds. Helfer and Slaughter argue that the Human Rights Council places itself under the tutelage of the ECtHR to develop tools necessary for an effective supranational adjudicative body.[xxiv] I propose this, but also an amalgamation of all the other suggestions.

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[i] United Nations Charter Art. 1(3), also see: Art. 56, 62, 68 and 76

[ii] The very development of treaty law in human rights field can hardly be ignored. Human rights remains the only area of law whose treaties have been ratified by all States in the world

[iii] See for instance: Oyama v California, 332 U.S. 633 (1948), the application of UN Charter Art. 55 and 56

[iv] Koh, Harold ‘How is International Human Rights Law Enforced?’ Addison C. Harris Lecture, 1998, “they are enforced through a complex, little-understood legal process that I call the transnational legal process”

[v] Delbruek, Jost ‘International Protect of Human Rights and State Sovereignty’ Indiana Law Review, vol.57 (fall ’82), p.g. 567-78

[vi] Neumayer, Eric, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ Journal of Conflict Resolution, vol. 49, (May 1, 2005), p.g. 6. Available at SSRN: http://ssrn.com/abstract=607681 or DOI: 10.2139/ssrn.607681

[vii] Helfer and Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ Yale Law Journal, vol.107 p.g. 273, (1997)

[viii] See: The Ad-hoc tribunals on the Former Yugoslavia and Rwanda

[ix] Traisbach, Knut (2006) Reframing Human Rights III ‘The Individual in International Law’ [Workshop] p.g. 1

[x] Hathaway, Oona A.,Do Human Rights Treaties Make a Difference? Yale Law Journal, vol. 111, 2002, p.g. 1941; Available at SSRN: http://ssrn.com/abstract=311359

[xi] Weissbrodt and La Vega (2007)‘International Human Rights Law: An Introduction’ University of Pennsylvania Press, p.g. 251

[xii] Examples include, Iran, China, Russia, Sudan, Iraq, DRC

[xiii] European Convention on Human Rights (1950)

[xiv] See: Art.2 Optional Protocol on Economic Social and Political Rights

[xv] Helfer and Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ Yale Law Journal, vol.107 p.g. 274

[xvi] Conference of Ministers of Justice/Attomey General on the Establishment of an African-Court on Human

and Peoples' Rights, Addis Ababa, Ethiopia, 12 December, 1997, Draft Protocol to the Afiican Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights.

[xvii] Either not signed to the documents establishing a regional body, or is by some form of geographical anomaly not integrated within a community

[xviii] Secretary General “Talks Open in Addis Ababa on Establishing African Human Rights Court. DEUTSCHE

PRESSE-AGENTUR, December 12. 1997. available in LEXJS. News Ubrary. Curnws Rle.”

[xix] The Paris Principles, Resolution 1992/54 of 1992 and General Assembly, Resolution 48/134 of 1993

[xx] Ramcharan, Bertrand (2003) ‘The Protection Role of National Human Rights Institutions’ Leiden, Boston, p.g. vii

[xxi] Ramcharan, Bertrand (2003) ‘The Protection Role of National Human Rights Institutions’ Leiden, Boston, p.g. 43...see: The Ghana Commission on Human Rights and Administrative Justice, and the Fiji Human Rights Commission as illustrative on this point

[xxii] Art. 2 Optional Protocol to Economic Social and Political Rights, the procedure for individual complaint

[xxiii] Bleir v Uraguay, 30/1978 (R.7/30)...Human Rights Council individual complaint hearing

[xxiv] Helfer and Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ Yale Law Journal, vol.107 p.g. 273, (1997)