Global Human Rights Institutions

Gerd Oberleitner

• Publisher: Polity
• Year: 2013
• ISBN:
  9780745654089
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

The range of global human rights institutions which have been created over the past half century is a remarkable achievement. Yet, their establishment and proliferation raises important questions. Why do states create such institutions and what do they want them to achieve? Does this differ from what the institutions themselves seek to accomplish? Are global human rights institutions effective remedies for violations of human dignity or temples for the performance of stale bureaucratic rituals? What happens to human rights when they are being framed in global institutions?

This book is an introduction to global human rights institutions and to the challenges and paradoxes of institutionalizing human rights. Drawing on international legal scholarship and international relations literature, it examines UN institutions with a human rights mandate, the process of mainstreaming human rights, international courts which adjudicate human rights, and non-governmental human rights organizations.

In mapping the ever more complex network of global human rights institutions it asks what these institutions are and what they are for. It critically assesses and appraises the ways in which global institutions bureaucratize human rights, and reflects on how this process is changing our perception of human rights.

1

INTRODUCTION

The establishment of a breadth and range of global human rights institutions over the past half century seems a remarkable achievement. Today, a complex web of institutions is entrusted with protecting and promoting human rights and with preventing and remedying human rights violations. They fulfil a variety of functions that would have been inconceivable a few years, let alone decades, ago. What is often described as a system, though, is a multitude of entities which vary greatly in their range, remit and composition. Established ad hoc in response to concrete needs rather than as part of any master plan, such institutions have experienced sustained, yet mostly unplanned and uncoordinated, growth and internal development. In addition to the proliferation of institutions specifically entrusted with human rights matters, the idea of mainstreaming human rights is increasingly leading institutions charged with humanitarian, development, health-related, economic and other issues to perceive human rights as part of their mandate or to develop policies and activities on human rights.

The sustained development and growth of global human rights institutions pose considerable challenges to international politics, international legal and international relations scholarship and reveal a series of questions: Why do states create human rights institutions in the first place, knowing that all they will do is nag about states’ preparedness to respect human rights? What do states seek to achieve through such cooperation, and is it different from what the institutions themselves seek to accomplish? Questions as to the practical consequences and the effectiveness of establishing and expanding an ever tighter institutional web composed of bodies, councils and commissions, with their professional human rights bureaucrats, monitors, judges and experts, flow from these queries: Are multilateral forums suitable venues for protecting human rights, or do they provide a fig leaf for governmental inaction in the face of massive human suffering? What happens to human rights when they are being encased in global institutions? What are the benefits, consequences and drawbacks of institutionalizing human rights? Does the latter turn human rights, this powerful force for social change, into a stale bureaucratic routine? Or does it give practical meaning to otherwise lofty goals? How does the design of a global human rights ‘infrastructure’ impede the implementation of human rights, and how does their continuing institutionalization affect our understanding of human rights? Many of these questions have never been systematically examined (Steiner, 2003: 760).

Like states, individuals, too, have long since joined forces and established voluntary associations on a global scale. The likes of Amnesty International, Human Rights Watch and the International Commission of Jurists have over time acquired a strong position towards both states and inter-governmental organizations. In fact, those non-governmental organizations (NGOs) have become indispensable to the successful development and implementation of human rights, and their impact on the work of inter-governmental organizations can be considerable. As with inter-governmental organizations, their spread and rising influence deserves critical appraisal: What is their role and legal standing in international affairs and international law? Who do they represent? Are they the antithesis of inter-governmental organizations or merely another component in a proliferating global ‘bureaucratic’ web?

This book is an introduction both to the world of global human rights institutions and to the challenges and paradoxes of ‘institutionalizing’ human rights. It provides a comprehensive treatment of such institutions, both governmental and non-governmental. It examines institutions established within the United Nations (UN) which are explicitly mandated with the promotion and protection of human rights; the process of mainstreaming human rights into formerly ‘non-political’ or ‘technical’ institutions; international courts which adjudicate human rights; and human rights NGOs. In mapping the ever more complex network of such global human rights institutions it asks, in essence, what these institutions are and what they are for, and whether this ‘hardware’ of the global human rights system is fit for today’s demands.

This book does not describe or analyse human rights norms, standards and principles, nor is it a handbook on how to use international procedures and mechanisms. Such questions of substance (What are human rights?) and procedure (How are they realized?) find answers in a number of other textbooks. The analysis of institutional aspects of the global human rights system and the relationship between form and function has attracted less attention. What is of interest here are the expectations for and consequences of institutionalizing human rights, as well as the advantages and drawbacks of this process. By critically assessing and appraising the increased ‘institutionalization’ or ‘bureaucratization’ of human rights through an ever expanding range of global institutions, the following chapters reflect on how this process may change our perception of human rights. Given the approach and scope of the book as an introductory text, this will amount neither to an empirical assessment of how international human rights regimes lead to domestic change (such as the one undertaken by, e.g., Risse, Ropp and Sikkink, 1999) nor to the formulation of a comprehensive theory on the behaviour of international organizations (as carried out by, e.g., Barnett and Finnemore, 2004). What this book seeks to achieve is to bring together, in an accessible way, the multitude of global institutions which are concerned with human rights, and to acknowledge and analyse the manifold legal questions and theoretical concerns associated with the institutionalization of international relations in the field of human rights.

In examining these questions, the book draws on international legal scholarship and international relations literature alike. It goes without saying that such an approach may leave scholars in both fields unsatisfied, as it will not do justice to the particular theoretical depths which each discipline has reached in discussing human rights. This has to be weighed against the hope that the book will contribute to a growing literature that sees human rights as an inter-disciplinary concept. The need to understand the competences and constraints of human rights institutions necessitates, first and foremost, a dissection of international human rights law. As a consequence the predominance of legal discourse in matters of human rights will become visible in the following chapters. Yet, the book rests on the assumption that ‘excessive attention to human-rights law distorts our understanding of human rights’ (Freeman, 2002: 12). International law alone is insufficient to understand why human rights institutions are being formed, what they do and why they do it, what they seek to achieve and where they fail, and what sort of human rights infrastructure we are effectively creating.

For the purpose of this analysis, the term ‘global human rights institutions’ brings together a range of entities of diverse legal character, internal organization and appearance. The vagueness of the term ‘global human rights institution’ is one of deliberate choice: this is not a treatise of the law of international organizations, nor does it fan out theories on institutions and regimes as elements of international relations. It simply allows the examination of formally established institutions which have, or are perceived to have, a profound impact on the way in which human rights are developed, implemented, supervised, enforced or promoted on a global scale. The focus is on formally established institutions and not on ‘the human rights movement’ or networks and coalitions concerned with the promotion and protection of human rights, or on UN conferences or initiatives, such as the UN Global Compact (which brings together business, inter-governmental agencies and civil society groups in support of social and human rights principles). This is not to deny the importance of such networks and initiatives for the development of human rights; in fact some of those initiatives may have a more profound impact than the work of inter-governmental bodies. Likewise, the discussion of regional human rights institutions in Europe, the Americas and Africa is beyond the remit of this book, notwithstanding that some of these systems have more sophisticated and sustainable institutions, including human rights courts, for the protection and promotion of human rights.

The approach of the book is both descriptive in a functional sense, mapping the field of global human rights institutions and their activities, and analytical and critical in its exposure of the advantages and dangers of organizing human rights in institutional formats. Chapter 2 raises some theoretical questions and discusses the process of institutionalizing human rights, the (self-)perception of global human rights institutions and the paradoxes encountered in casting human rights in formal structures. Chapter 3 traces the development of global human rights institutions, from first attempts of social movements to promote humanitarian issues via the League of Nations and the International Labour Organization (ILO) to the UN. Chapters 4 to 6 present, discuss and critically assess global human rights institutions, thus demonstrating the practical consequences of the theoretical and conceptual concerns raised before. More specifically, chapter 4 introduces UN human rights institutions with an explicit mandate to promote and protect human rights, commonly referred to as the ‘UN human rights system’, including the UN Human Rights Council as the most recent innovation. Chapter 5 discusses the progress and challenges of mainstreaming human rights into institutions entrusted with global humanitarian, social, economic and financial concerns. In doing so, it takes stock of a decade of mainstreaming human rights since the UN Secretary-General’s proposal on this in 1997 and also highlights the Security Council’s position towards human rights. Chapter 6 is devoted to international tribunals, which play an increasingly important role for the adjudication of human rights violations. It examines the International Court of Justice (ICJ) and the International Criminal Court (ICC) and discusses the prospects for a world court on human rights. Chapter 7 turns to global non-governmental institutions, the rise of which not only accompanies but exceeds the growth of inter-governmental institutions. It focuses less on the role of NGOs vis-à-vis governments, or the emergence of a global civil society, and more on the nexus between inter-governmental and non-governmental institutions as two structural frameworks for human rights.

2

INSTITUTIONALIZING HUMAN RIGHTS: EXPECTATIONS, PARADOXES AND CONSEQUENCES

The term ‘institution’ is charged with a specific meaning in various academic disciplines and their schools. As a matter of fact, in both international law and international relations the respective terminology is disputed. While international law clearly sets apart inter-governmental from non-governmental organizations as two types of organization rooted in different legal grounds (the former in international law, the latter in national law), the difference between an international ‘organization’ and an ‘organ’ is less clear. At times a sharp distinction is made between the two, at others both terms are used interchangeably, or the notion ‘international institution’ is used as a synonym (Klabbers, 2002: 10). International relations theory applies the term institution differently from international law (Lang, 1994), and the move in the 1970s away from the study of formally established international organizations to that of ‘regimes’ has altered the discipline’s understanding of what an ‘institution’ is. Today, a range of usages of the notion ‘institution’ exist (Simmons and Martin, 2002: 192–4), and often institutions are equated with international regimes, that is ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations’, to use Krasner’s standard definition (Krasner, 1983: 2). In human rights scholarship, the term ‘human rights regime’ is, in a similar way, often used to describe the totality of relevant standards, procedures and institutions in the field of human rights (Donnelly, 1984; Nowak, 2003; Donnelly, 2003: 127–54).

For the purpose of this analysis, the term ‘institution’ refers to formally established international organizations and their organs, international courts and international non-governmental organizations. The following chapters approach global human rights institutions neither from a realist perspective (which would assert that such institutions are nothing but states in disguise) nor with an idealist assumption that their existence and output is necessarily beneficial for all parties concerned. What is said here is based on the premise that such institutions matter, but that we still find it difficult to explain why and how they matter. This analysis presents a range of such institutions, based on a more constructivist approach, which asks if, why, and how they are able to assert themselves as autonomous actors for ‘managing’ global human rights norms and what consequences this may entail.

The question why states set up global institutions continues to puzzle international relations scholars and drives international lawyers in their ongoing search for a legal theory of international organizations. With idealists and neoliberals pointing out their significance and necessity, functionalists invoking their usefulness, institutionalists and constructivists asserting their influence, realists being sceptical about all that, and normative theories dissecting their foundations, there is no shortage of analytical engagement with international organizations. Yet, as Abbott and Snidal have remarked, neither of these theories ‘adequately explains why states use formal international organizations; each holds key insights’ (Abbott and Snidal, 2001: 12–15). Once set up, international institutions confront us with another set of questions, which interestingly has found less resonance in international relations scholarship (Barnett and Finnemore, 2004: 2): What are such institutions: autonomous actors or puppets on governments’ strings? What makes them behave the way that they do? Is it their masters, the states, that set them up, or are they endowed with a will of their own? And where would such a will come from? International lawyers consider such questions in the form of legal theories. They award or deny international institutions different degrees of legal ‘personality’ or ‘subjectivity’, and they attribute or withdraw powers on the basis of such theories (e.g., Klabbers, 2002: 42–81).

Human rights institutions seem to be a particularly fertile ground for analysing such questions. The matter they manage – human rights – makes the existence and proliferation of such institutions even more enigmatic than the spread of international institutions in other fields. Unlike many global institutions devoted to cooperation in ‘technical’ areas (say, the Universal Postal Union), international cooperation in human rights is politically sensitive, and the activities of human rights institutions are more likely to be a constant provocation to governments, a conceptual challenge for international law and an irritation for (realist) international relations scholarship. The idea of human rights continuously tests the established concepts of sovereignty, territoriality and non-interference in domestic affairs, allows individuals to stand up against states in ways unimaginable in other fields of international law, questions the primacy of states in international affairs, and thus forecasts a more participatory and inclusive international legal order. Why would states support all this by setting up human rights institutions? Surprisingly, and in contrast to discussing the existence of international institutions as a general phenomenon, the evolution of international institutions specifically devoted to human rights has attracted less attention in international relations scholarship (Schmitz and Sikkink, 2002: 528), and so has their performance. Likewise, international legal scholarship, while engaging with human rights institutions, has largely been content to describe such institutions rather than to debate the conditions for and consequences of their establishment and proliferation. While this book does not aim to put forward a comprehensive theory to settle such questions, some assumptions and paradoxes with regard to the establishment and behaviour of such institutions will be discerned in the following, as they have a profound impact on the way in which these institutions approach human rights.

Efficiency, Legitimacy, Power

One main assumption as to why states set up international institutions is that such bodies are useful because they provide a means of cooperation in areas in which such cooperation is to the advantage of all participants. Bennett and Oliver, for example, argue that their creation is not only logical for states, but indispensable, because they provide channels for communication; they allow for decisions on such cooperation to be reached; they offer an administrative machinery for supporting this process and putting the decision into action; and they offer a way of settling differences and finding compromises, thus minimizing the effects of conflicts (Bennett and Oliver, 2002). The same is said to be true of the ability of international institutions to guarantee a higher level of stability, durability and predictability than can be achieved by purely inter-state relations (Abbott and Snidal, 2001). States may be interested in setting up and acceding to human rights institutions to achieve results they would find difficult or impossible to realize in bilateral encounters: adopting a treaty on the rights of children, defining the scope of the right to housing, or settling disputes over what constitutes a violation of freedom of expression.

The reduction of transaction costs in deciding on and implementing community norms is, however, only part of the answer as to why states set up human rights institutions. To the rationality and stability which international institutions may offer, other (sociological) considerations may be added which link international institutions with legitimacy and power (Barnett and Finnemore, 1999: 702). Wielding power, i.e., influencing decisions, is an important, if not the most important, incentive which makes states participate in human rights institutions. Such participation allows them to shape the outcome of the work of these institutions in line with their national interest, to defend their position, to avert scrutiny, to confront other states with accusations, or, at the very minimum, to be kept informed on developments and trends in the field of human rights. Still, states’ attitudes towards and expectations for human rights institutions differ. In the Commission on Human Rights, for example, China has repeatedly undertaken considerable efforts to avert, through procedural means, the adoption of a critical resolution on its own human rights situation, while other countries, such as Burma/Myanmar, largely ignore whatever resolution the Commission may consider passing. There are also differences in what, e.g., Cuba may seek to achieve by membership in the UN Human Rights Council compared to, e.g., Sweden. Yet, while there is some scholarly engagement with the factors affecting states’ desire to wield influence in international organizations (Smith, 2006: 27–8), there is comparably little (empirical) research to analyse and explain such different attitudes and expectations in the field of human rights (with a few exceptions, e.g., Kent, 1999).

Concerns over legitimacy, coupled with an interest in a state’s credibility and international reputation, is the third element in explaining why states participate in human rights institutions (Barnett and Finnemore, 1999: 703). Both the creation of an international human rights institution and the participation therein may be considered as endowing governments with legitimacy, credibility and reputation. Moreover, it is worth noting that sometimes institutions are not only set up for what they do, but also for what they are and what they symbolize (ibid.). Human rights institutions may be particularly prone to conveying the doubtful message that participation in such an institution would, in itself, raise a state’s reputation in matters of human rights or be a contribution to their advancement. Was this, for example, the reason why Libya sought to chair the UN Commission on Human Rights in 2003 (and succeeded in doing so)? Or was it the result of group dynamics in the African regional bloc in the commission which put its trust in Libya to best represent its concerns? Or was it other considerations that guided Libya’s decision? Again, in the absence of studies into these questions, speculations have to fill in where research is lacking. All three considerations together – efficiency, legitimacy and power – may, however, help to explain why international human rights institutions are set up, and why states compete for membership in human rights bodies.

Arena, Instrument, Actor

This description of international institutions as arenas, instruments and actors is also helpful for understanding why states set up human rights institutions and explaining their role, potential and limits (Archer, 2001: 68–92; White, 2005: 47–59). As instruments, international institutions are used by member states for their purposes and act as mere transmissions for participating governments, executing their decisions and projecting national policies to the international level. As an arena, they provide an (allegedly neutral) space in which inter-governmental action takes place, facilitating meetings, discussions, negotiations and decision-making. As actors, inter-governmental organizations assume independence above and beyond the wishes of member states. Such independence does not mean the elevation to actors on a par with states, but rather that the institutions may respond in ways that differ from states’ expectations and requests (Archer, 2001: 79). After all, institutions do not always develop as expected: ‘use confers power and power unused diminishes’ (O’Donovan, 1992: 105).

Those three functions are usually interwoven, with sometimes one function being foregrounded, then the other. And indeed no single function alone sufficiently explains what international institutions are and what they do. The view that they are mere instruments is proven wrong by many practical instances of institutions acting in their own capacity or simply misbehaving (Barnett and Finnemore, 1999: 715). The view that institutions are mere arenas is naïve, as it assumes that form and procedure of such institutions, and deci...

Table of contents

• Cover
• Title page
• Copyright page
• FOREWORD
• ACKNOWLEDGEMENTS
• ABBREVIATIONS
• 1 INTRODUCTION
• 2 INSTITUTIONALIZING HUMAN RIGHTS: EXPECTATIONS, PARADOXES AND CONSEQUENCES
• 3 THE RISE OF GLOBAL HUMAN RIGHTS INSTITUTIONS
• 4 UNITED NATIONS HUMAN RIGHTS INSTITUTIONS
• 5 MAINSTREAMING HUMAN RIGHTS
• 6 WORLD COURTS AND HUMAN RIGHTS
• 7 NON-GOVERNMENTAL ORGANIZATIONS
• 8 CONCLUSION
• REFERENCES
• Index