The Effectiveness of the UN Human Rights System

Reform and the Judicialisation of Human Rights

Surya Subedi, OBE, QC (Hon)

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351778954
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The UN human rights agenda has reached the mature age of 70 years and many UN mechanisms created to implement this agenda are themselves in their middle-age, yet human rights violations are still a daily occurrence around the globe. The scorecard of the UN human rights mechanisms appears impressive in terms of the promotion, spreading of education and engaging States in a dialogue to promote human rights, but when it comes to holding governments to account for violations of these rights, the picture is much more dismal.

This book examines the effectiveness of UN mechanisms and suggests measures to reform them in order to create a system that is robust and fit to serve the 21st century. This book casts a critical eye on the rationale and effectiveness of each of the major UN human rights mechanisms, including the Human Rights Council, the human rights treaty bodies, the UN High Commissioner for Human Rights, the UN Special Rapporteurs and other Charter-based bodies. Surya P. Subedi argues most of the UN human rights mechanisms have remained toothless entities and proposes measures to reform and strengthen it by depoliticising the workings of UN human rights mechanisms and judicialising human rights at the international level.

1
The place of human rights in the contemporary and globalised world

1.1 Introduction

Prior to examining the effectiveness of the UN human rights mechanisms in making the application of human rights truly universal in the chapters that follow, this chapter aims to assess the place and role of human rights in the contemporary and globalised world, and the role of the UN in promoting and protecting human rights, and introduces by way of a general overview some of the key challenges and themes pertinent to the operation of the UN human rights project in the current century. These issues will then be explored in more detail in subsequent chapters.

1.2 Human rights as embracing modernity and redefining democracy

The modern concept of human rights, known largely as civil rights and liberties until the advent of the United Nations, has evolved over a long period of time as an integral part of the concept of the rule of law. It has redefined the concept of democracy itself in the sense that even after winning an election a government enjoying the support of the majority, even an overwhelming one, cannot breach the core rights of individuals, including minorities. Such matters are monitored not just politically, but also judicially. These checks and balances have the aim of preventing tyranny.

In most countries, except for a few Islamic States, mainly in the Gulf region, and certain parts of Africa, embracing human rights has meant embracing modernity in the approach to life and in social relations. Human rights are about advancing civilisation – enabling people of any background, origin, race, colour, nationality, creed and sexual orientation to lead a more dignified and sophisticated life. Just as society changes and humans become more refined in their lifestyle and thought processes, the greater the demand there will be for the respect and protection of human rights. The concept of ‘human rights’ is organic and will keep evolving with the evolution of society, with the recognition and addition of new rights, or the new or expanded definition of existing rights. The concept of human rights is by its very nature anti-feudalist and is based on individualistic foundations of Western political philosophy in general – and Anglo-Saxon notions of individual autonomy in particular – the latter being grounded on common law principles including fairness, justice, equity, and the individual right to property. The common law notion of the Anglo-Saxon world was that law emanated from the people, rather than being imposed from on high by government. In this respect, the law belongs to the people, not the State; rights are taken, not granted; the law should be there not to control the individual but to free and empower them, with the State being the servant, not the master, of the individual, oiling the wheels of human creativity and ingenuity whether through the upholding of rights, or providing security of property and inviolability of private contract. These common law principles have contributed to the evolution of human rights – the notion of personal freedom inherent in the individual later evolved into the concept of human rights.

Although a number of group rights, such as those relating to minority rights and the rights of indigenous peoples, are an integral part of the international human rights agenda, when we speak of human rights we are speaking, in essence, of the rights of individuals. This is because group rights stem from individual rights. Until the Middle Ages, when people spoke of a society, it was understood to be an association of families, rather than of individuals, where inequality within a family or society was accepted. It was the earlier natural rights or civil rights, and later the human rights agenda, which sought to address this inequality arising from domination by the patriarchal family structure, and the oppression of priests operating within an authoritarian church.¹ The human rights agenda sought to empower the individual first, and then women, by freeing them from the clutches of feudal and theocratic societal relations rooted in inequality. This agenda enabled the concept of the individual to gradually displace the family, tribe, clan or caste as the basis of social organisation. The concepts of both secularism and human rights were instrumental in advancing the interests of the individual, and undercut traditional inequalities of status. Thus, the concept of human rights is by its very nature and origin a progressive and emancipating concept.

Originally developed as a defence of individuals against the State, and inspired later by other developments such as the jurisprudence of the Nuremberg² and Eichmann³ trials, human rights have, over the decades, come to encompass a variety of socioeconomic and cultural issues, including entitlement to citizen welfare in the form of economic justice, and not only the equality and the empowerment of women but also of other groups of individuals and minorities.⁴

1.3 Human rights as a means of preventing revolutions

Unlike some political ideologies which often call for armed revolutions (such as certain manifestations of Communism), the human rights agenda seeks to bring about change in an orderly, gradual and peaceful manner. There is no need for revolution or outside intervention in countries where human rights are respected. In modern times, revolutions or foreign interventions have taken place in countries where the rulers have not respected human rights. Revolutions and foreign interventions in a given country do not guarantee a better quality of life for the citizens of the country concerned, or greater respect for human rights in the aftermath. Egypt and Libya are examples of countries where a revolution has brought about more misery for the people, as well as more chaos and further violations of human rights. In Egypt President el-Sisi has turned out to be a more brutal dictator than the former President Hosni Mubarak, who was overthrown by a revolution.⁵ Libya, Iraq and Afghanistan are examples of countries where foreign interventions have led to situations which are worse than what had prevailed prior to such interventions. More people have been killed in these countries after foreign interventions than before.

Foreign intervention does not seem to work in a country which has not readied itself through a gradual process of embracing democratic culture and respect for human rights. An imposition of democratic values from outside does not seem to be the answer to the problems resulting from bad governance. It is clear that to be truly successful, the international human rights agenda requires States to make gradual and incremental progress in protecting and promoting human rights – the UN human rights mechanisms are one such group of processes that are designed to ensure that States do deliver on their promises to do so, and thus reinforce this sense of gradual, but nonetheless continuous, progress. This process removes the need for a revolution or foreign intervention. For instance, by implementing the recommendations of the author in the capacity of UN Special Rapporteur for Human Rights in Cambodia concerning the reform of State institutions, the country avoided further violence in the aftermath of the 2013 general election and embarked on the road to peaceful political transition. Those countries which have committed themselves to respecting human rights and reforming their system of governance have witnessed more stable governments, economic growth and a maturing democracy peacefully.

1.4 Human rights as part of social engineering

The UN human rights programme is part of an attempt at social engineering at an international level, designed to ensure that events like the ones experienced during the Second World War are not repeated. The atrocities committed by Nazi Germany against the Jewish population of Europe during the War provided the backdrop, and impetus, for the creation of the UN human rights agenda. This may be one reason why the UN human rights agenda was traditionally perceived as a programme designed to protect the rights of minorities.

1.5 Human rights as the mantra of the modern world

All major religions of the world including Buddhism, Christianity, Hinduism, and Islam, have in the past occupied huge swathes of land in order to spread and cement their influence. Big cathedrals, mosques, temples and pagodas were built to spread the mantra of the religious values of the day. Yet, the mantra of the modern human rights movement is not about building large physical structures, but about building ideas and temples of knowledge and enlightenment in the minds of the people. Thus, the human rights treaties, declarations, resolutions and the mechanisms created to promote, protect and implement these rights and freedoms arguably provide the structures of a modern day religion. Since the notions of the rule of law and human rights are evolving and are intertwined, the journey of both will long continue even if the UN or the international legal order in its present form were to cease. Both the rule of law and human rights are now associated with human civilisation and as long as humans continue to advance their civilisation, these concepts will continue to be part of that process, even if they may be known by different names in the future.

1.6 Human rights as a check on the excesses of capitalism

Since human rights are premised on individual freedom, autonomy of the individual and personal liberty, they work hand in hand with democracy and capitalism. However, neither democracy nor capitalism is free of its own pitfalls. Karl Marx built his Communist philosophy on the back of the pitfalls of capitalism, highlighting its exploitative character. He offered an alternative that numerous States subscribed to. However, that alternative did not succeed and Communism collapsed altogether, for all practical purposes, after being in existence for only approximately 70 years. Of course, countries like China, North Korea and Vietnam still profess to practise Communism. But having made a wholesale subscription to a capitalist economy it is doubtful whether China and Vietnam can still be regarded as Communist countries. They are holding on to the word ‘communism’ or ‘socialism’ in order to deny the people in the country the civil and political rights to which they are entitled under international human rights law and to prolong the monopoly of power for the Communist parties in these countries. North Korea is a different case altogether. It is an isolated totalitarian State, brutally governed by a regime which does not seem to believe in any international norms. Regardless of the situation in countries such as China, North Korea and Vietnam, it can be submitted that Communism is dead as a political philosophy and is no longer capable of mounting a challenge to the notion of human rights and personal liberty. What the human rights agenda has sought to do is to temper both capitalism and democracy, and offer a certain degree of protection to people from the excesses of capitalism and from the repercussions of the malfunctioning of democracy. In other words, the philosophy of human rights provides the middle path, or the third way, by which people are free to do what they wish to with their life, knowledge, ingenuity, or property; but in exercising their freedom they are to pay due respect to the rights of others. This due respect applies to State and non-State actors, to individuals and to communities, to corporations and other organisations and, not least of all, to governments.

1.7 Human rights as underpinning democracy

Democracy without human rights can become a mobcracy, kleptocracy, chumocracy, technocracy, theocracy and even an autocracy. Democracy is viewed primarily as a system based on periodic free and fair elections, albeit there is more to it than that. Yet, the governments thus elected can become dictatorships if the system of governance is not underpinned by human rights and the rule of law. Indeed, as stated candidly by Joseph Goebbels, Nazi Minister of Propaganda (1933–1945), ‘This will always remain one of the best jokes of democracy that it gave its deadly enemies the means by which it was destroyed’.⁶ Democracy can be demolished by popular will – the very ideal on which democracy is based – but not if it is underpinned by the principles of the rule of law and human rights. If democracy is not underpinned by human rights and the rule of law it cannot remain a democracy in the real sense of the term. Thus, human rights and democracy are concepts that are intertwined. The international human rights instruments and especially the 1966 International Covenant on Civil and Political Rights, contain provisions which in effect support the idea of a right to democratic governance without explicitly mentioning it.⁷

1.8 Supremacy of human rights

The advancement of the international human rights agenda has meant that neither parliament, nor a State’s constitution, nor its highest domestic court is supreme any longer. The situation of human rights is a matter of legitimate concern of the international community, challenging as it does State sovereignty. Human rights and their norms reign supreme. No parliament can enact laws undermining those human rights that are internationally recognised. To say that even the most powerful of parliaments, such as the British parliament, is sovereign or supreme is a fiction. Nor can a domestic constitution curtail people’s rights enshrined in international human rights instruments. Therefore, the claim of constitutional supremacy in countries such as the US is no longer valid. The same is the case with the claim of supremacy of the supreme courts of countries such as the US or India, which have the ability to repeal a law deemed to be inconsistent with the constitution of the country. Although it has been said that the law is what judges say is law, and that ‘the Constitution means whatsoever a majority of the Supreme Court says it means’,⁸ such a majority is not free to interpret the provisions of a constitution in a manner that undermines the rights of people guaranteed in international law. While the rule of law is an abstract concept, human rights have sought to accord a concrete meaning to the ideas behind the supremacy of the rule of law or its empire.⁹

1.9 Human rights representing a silent revolution led by the UN

For our time, and for the purposes of this study, human rights are taken to be those that are enshrined in a number of international human rights treaties adopted under the auspices of the UN. Greater respect for human rights has spurred a revolution in societal ideas and values, and resulted in the transformation of many traditional societies. The international human rights agenda of our time has helped accelerate the globalisation of ideas, instilled confidence in people to not onl...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Introduction
• 1 The place of human rights in the contemporary and globalised world
• 2 The conceptual and international development of human rights
• 3 Effectiveness of the UN human rights treaty bodies
• 4 Effectiveness of the UN Human Rights Council and its challenges
• 5 Effectiveness of the Office of the UN High Commissioner of Human Rights
• 6 The UN Human Rights Special Rapporteurs and their effectiveness in protecting human rights
• 7 Effectiveness of other UN Charter-based bodies and agencies associated with the UN
• 8 Reform of the UN human rights system and the judicialisation of human rights at the international level
• 9 Conclusions
• Select bibliography
• Index