The Human Rights System Series: The Enforceability of Human Rights

Foreword

The search for a series of rules, principles, and regulations capable of organizing and safeguarding those fundamental rights and provisions inherent to the human character has represented, since the dawn of time, a primary interest of humanity as a whole. Human rights emerged from an institutional standpoint with the adoption of the Universal Declaration on Human Rights, adopted after the atrocities of the Second World War to make amends for the crimes committed during the conflict, but their roots predate the 1900s and their character has evolved and morphed drastically since the signing of the Universal Declaration on Human Rights. Indeed, questions concerning their ontology, scope of action, enforceability, and overall efficacy have characterized the debate surrounding the human rights system since its onset, sparking countless chances for debate and development.

This series entails 6 articles, each presenting a different question that emerged in the definition and implementation of the current human rights system, with the aim to analyze the historical and political developments that characterized this mechanism. Such analysis is fundamental in order to properly frame the current human rights system and its provisions but, given the mutable character of this notion and its different interpretations according to the geographical area and the socio-cultural background taken into consideration, the process is still subjected to constant questioning and development.

The Human Rights System Series will be mainly divided into the following chapters of content:

1. The Human Rights System Series: What are human rights? The ontology of right-bearing

2. The Human Rights System Series: Generations of rights. The route to the system

3. The Human Rights System Series: Particular or universal?Applicability of rights

4. The Human Rights System Series: The enforceability of human rights

5. The Human Rights System Series: Regional integration and global development 

6. The Human Rights System Series: The Role of Media and Civil Society

The Human Rights System Series: The Enforceability of Human Rights

The aftermath of the Second World War set the foundations for the emergence of a global socio-political consciousness on the absence of an overarching system of laws, provisions, and instruments to protect human rights. Such recognition led world leaders to take into consideration for the first time in history the inherent risks that such an environment could bear on fundamental rights. As the United States entered into war in 1941, then-president Franklin Roosevelt defined the philosophical background according to which the aforementioned socio-political conscience would be modeled. Through his “Four Freedoms Speech”, Roosevelt underlined the importance of the freedom of speech, of worship, from want, and from fear, symbolizing the need to lean on hope for the betterment of the world in a time where cruelty was rampant (F.D.R Presidential Library, 2018). The “Four Freedoms Speech” represented a starting point for politicians, philosophers, and political thinkers like Eleanor Roosevelt to actively promote human rights. The first lady of the United States of America from 1933 to 1945, she was appointed as a delegate to the United Nations General Assembly in 1946 and served as the first Chairperson of the Commission on Human Rights, playing a pivotal role in drafting the Universal Declaration of Human Rights (UDHR, United Nations).

The UDHR represented the paradigmatic switch that set the post-war world in motion toward the safeguarding of human rights through instruments like the International Covenant on Civil and Political Rights (ICCPR) or the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Indeed, the international community created a human rights regime designed to protect the basic human rights of all individuals. From this, additional international human rights treaties followed, creating a system that comprises six primary treaties to which the majority of States belong (Dutton, Y. M. 2012). The participation of the majority of international actors in conventions like the Convention on the Rights of the Child (CRC), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention Against Torture (CAT) highlights the conceptual commitment to human rights, but their implementation still has significant gaps.

As reported by the Office of the High Commissioner for Human Rights of the United Nations, the number of human rights treaties and declarations has shown a progressive increase, with growing participation from countries all over the world in the matter of rights-protection (OHCHR, 2023). Nonetheless, despite such a positive development, state sovereignty continues to play a crucial role concerning the enforcement of human rights, which is still seen as the "Achilles heel" of the global human rights system (Joseph, S. and Kyriakakis, J. 2010). Such enforcement mechanisms often do not dispose of a binding character, highlighting how human rights law has not yet succeeded to overcome the uncooperative stances of many states which can, at times, join treaties only as “window dressing” (Dutton, Y. M. 2012). The concept of “window dressing” refers to how states might ratify treaties in light of their political value, exploiting the fact that many of them have weak enforcement mechanisms to show commitment to the cause, while simultaneously not enduring any cost from a sovereignty standpoint (Hafner‐Burton, E. and Tsutsui, K. 2005). Since it relies primarily on governmental willingness to implement international standards in domestic systems, the regime tends to create the premises for State action to avoid responsibilities and pursue the objectives only based on convenience (Dutton, Y. M. 2012). In this context, most international human rights institutions end up being generally limited to monitoring and promoting international standards through dialogue, condemnation, and moral persuasion. Such context stops them from meaningfully delivering the promise of human rights to those most in need of protection (Donoho, D. 2006).

Attempting to understand the reasonings behind such lack of enforcement power would require first taking into consideration the mutable character of the regime itself. Such mutability is transposed into differentiated geographical commitments towards human rights, diverse structures of power, and distinct interpretations of the roles and authority of supranational bodies. For example, enforcement within the European System of Human Rights tends to distance itself from other forms of implementation like the United Nations (UN) treaty structure because of the binding character of the former and the commitment-based perspective of the latter (Donoho, D. 2006). The primary judicial body of the European System of Human Rights, namely the European Court of Human Rights (ECtHR), can present legally binding judgments on States, while the UN System disposes only of voluntary mechanisms (The Advocates for Human Rights, 2013). Indeed, the decisions, comments, and opinions issued by both the treaty-based and charter-based instruments of the United Nations are not legally binding and promote only strong political commitments to ensure the effective implementation of human rights, as guaranteed by international law (United Nations, 2015).

Nonetheless, although the practical transpositions of human rights mechanisms explain the mutable character of the regime, this notion is even better underlined by the lack of a common understanding of “enforcement mechanisms”. The disagreements on the scope of the term refer to the inherent ambiguity deriving from the different meanings that the term can take on and from the effects, it might create on international relations (Alvarez, J. 1998). “Enforcement” in the matter of human rights could refer to indirect pressure and influence, but it could also refer to authoritative mechanisms. These mechanisms are designed to promote direct consequences like changes in policies, the creation of structures of compensation, and the implementation of redress avenues. Overall, if “enforcement” was linked to authoritative mechanisms, it would inevitably involve an exchange between the prominence of national authorities and the growing role of international actors and mechanisms (Hart, H. 1961).

Striking balance between these two perspectives represents the main challenge in creating effective enforcement mechanisms in the matter of rights. The international human rights system – through instruments like the UDHR, the ICCPR, or the CEDAW – attempted to outline the contours of state action concerning human rights, creating a series of international institutions and rules to limit the chances for governmental oppression of people globally. The process of internationalization of rights provisions indeed attempted to identify a form of authority capable of limiting state sovereignty to protect rights through enforcement mechanisms and treaty provisions (Donoho, D. 2006). Nonetheless, the aforementioned authority seems to still be absent. Indeed, obligations in the matter often depend on national institutions which still reject the possibility of binding themselves to the mandatory implementation of human rights norms (OHCHR, 2023). Therefore, the international community finds itself stuck in a context in which it lacks not only the means to promote effective change concerning human rights but also the concrete practical incentives to do so. In the environment of international relations, states will attempt to balance their material interests with the potential obligations arising from treaties and will therefore only join them where the costs of commitment are small or outweighed by benefits that can derive from that commitment (Dutton, Y. M. 2012). Given how, most often, states tend to focus on the preservation of their interests, it is understandable how governments have favored national enforcement of human rights provisions, allowing only marginal authority for international supervisory bodies (Donoho, D. 2006).

Figure 3: Human Rights Council special session on “the deteriorating human rights situation in the occupied Palestinian territory. (Okic, E. 2018).

Such a perspective created the premises for the prominence of national authorities in the development of the regime that, to this day, deeply hinders the success of the mechanisms of protection. Indeed, this led to differentiated levels of implementation, with strong mechanisms for the protection of rights emerging where, paradoxically, the least amount of risks for human integrity are present (Dutton, Y. M. 2012). Most international human rights treaties attempted to tackle the conflict between the different levels of governance through “soft law” mechanisms promoting efforts towards identification, dialogue, and technical assistance. Nonetheless, these efforts, which often take the shape of advisory committees promoting fact-finding missions, reviewing periodic reports from Member States, and promoting general comments, lack binding authority to punish non-compliant behaviors and misconduct (Steiner, H. Alston, P. and Goodman, R. 2008).

Although this general framework highlights a commitment to the awarding of more authority to the mechanism put in place, it is still very far from the concrete enforcement as understood by Hart (1961). Indeed, the process of encouraging states to change their behavior towards human rights violations through confrontation might promote a global understanding of human rights. Nonetheless, the enforceability of the decisions of the various institutions is where the issue truly lies. The reliance on voluntariness represented the primary limit of the efficiency of the human rights system, and international human rights bodies are unlikely to influence states to create more authoritative enforcement mandates (Hafner‐Burton, E. and Tsutsui, K. 2005). Such context puts the aforementioned institutions in a peculiar position: their mandate embraces a wide range of human rights issues, but it lacks the institutional legitimacy that might engender widespread state trust and respect (Donoho, D. 2006).

The setbacks encountered by the conventional framework for the enforcement of human rights have sparked, throughout the decades, the attention of scholars like Geoff Dancy and Veronica Michel who focused on the identification of developing alternatives to traditional models of enforcement. Such alternatives have included domestic civil and criminal processes, as well as avenues referring to international criminal law. These developments represented the starting point to improve the already-existing approaches to human rights promotion, and to potentially reform the system as a whole. According to Dancy and Michel (2016), the past decade has shown an increase in prosecutions for human rights abuses in domestic courts, highlighting a growing effort of victims toward the development of bottom-up efforts for the enforcement of human rights provisions. The focus on violations of specific human rights norms and the reliance on judicial institutions have been central elements in the exploitation of domestic civil and criminal processes to pursue human rights and compliance with international law (Donoho, D. 2006). Dancy and Michel (2016) specifically highlighted how, as of today, justice for violations of fundamental rights often develops through the efforts of individuals, which tend to stimulate other victims to come forward creating a precedent, that they defined as “prosecutorial momentum”, capable of defining legal openings for further prosecutions (Dancy, G. Michel, V. 2015).

Currently, enforcement mechanisms remain the weakest component in the international human rights system, mainly because their value derives from voluntary state compliance, with the advisory role of many international institutions. Nonetheless, the growing presence of human rights in the global society creates the premises for pressuring governments and administrations to engage in the betterment of their track records in the matter. As highlighted by Hafner‐Burton and Tsutsui (2005), examining the linkages between international civil society and the global human rights regime would underline how despite weak institutions, international civil society has been using the legitimacy of human rights to pressure governments to improve human rights practices (Hafner‐Burton, E. and Tsutsui, K. 2005). In this context, civil society actors, through national and supranational judicial mechanisms, are taking the place of international institutions in serving the function of enforcement mechanisms. Although they might not represent a replacement for institutionalized bodies, the involvement of civil society in the promotion of human rights could help ease the conflict between the unwillingness of many national administrations to pursue human rights and the overall absence of international binding instruments.

Bibliographical References

Alvarez, J. (1998). Why Nations Behave. Michigan Journal of International Law, [online] 19(2), pp.303–317. Available at: https://repository.law.umich.edu/mjil/vol19/iss2/1/ [Accessed 3 Feb. 2023].

Bogdanova, I. (2022). "Chapter 3 The International Enforcement of Human Rights". In Unilateral Sanctions in International Law and the Enforcement of Human Rights. Leiden, The Netherlands: Brill | Nijhoff. doi: https://doi.org/10.1163/9789004507890_005

Dancy, G. and Michel, V. (2015). Human Rights Enforcement from Below: Private Actors and Prosecutorial Momentum in Latin America and Europe. International Studies Quarterly, p.n/a-n/a. doi:10.1111/isqu.12209.

Donoho, D. (2006). Human Rights Enforcement in the Twenty-First Century. Georgia Journal of International and Comparative Law, [online] 35(1). Available at: https://digitalcommons.law.uga.edu/gjicl/vol35/iss1/2/.

Franklin D. Roosevelt Presidential Library (2018). FDR and the Four Freedoms Speech - FDR Presidential Library & Museum. [online] Fdrlibrary.org. Available at: https://www.fdrlibrary.org/four-freedoms.

Hafner‐Burton, Emilie M. and Tsutsui, K. (2005). Human Rights in a Globalizing World: The Paradox of Empty Promises. American Journal of Sociology, 110(5), pp.1373–1411. doi:10.1086/428442.

Hart, H. (1961). The Concept of Law. [online] PhilPapers. Oxford University Press. Available at: https://philpapers.org/rec/HARTCO-9 [Accessed 3 Feb. 2023].

Joseph, S. and Kyriakakis, J. (2010). The United Nations and Human Rights. In: A. McBeth, ed., Research Handbook on International Human Rights Law. Edward Elgar Publishing Limited, pp.1–36.

Office of the High Commissioner for Human Rights of the United Nations (2023). Status of Ratification Interactive Dashboard. [online] indicators.ohchr.org. Available at: https://indicators.ohchr.org.

Steiner, H.J., Alston, P. and Goodman, R. (2008). International human rights in context : law, politics, morals : text and materials. Oxford Uk ; New York: Oxford University Press.

The Advocates for Human Rights (2013). Enforcement Mechanisms in the European System. [online] www.stopvaw.org. Available at: https://www.stopvaw.org/enforcement_mechanisms_in_the_european_human_rights_system.

United Nations (2015). The Human Rights Council a Practical Guide.

United Nations (n.d.). Human Rights Day - Women Who Shaped the Universal Declaration. [online] United Nations. Available at: https://www.un.org/en/observances/human-rights-day/women-who-shaped-the-universal-declaration.

Yvonne M. Dutton, Commitment to International Human Rights Treaties: The Role of Enforcement Mechanisms, 34 U. Pa. J. Int’l L. 1 (2012). Available at: https://scholarship.law.upenn.edu/jil/vol34/iss1/1

Visual Sources

Cover image: Eleanor Roosevelt of the United States holding a Universal Declaration of Human Rights poster in French. (United Nations, 1949). Available at https://www.flickr.com/photos/un_photo/31145729760

Figure 1: Untitled (Du Preez, P. 2020). Available at https://unsplash.com/photos/KNf9AeHpI9o

Figure 2: Untitled (Yannis, H. 2018). Available at https://unsplash.com/photos/uaPaEM7MiQQ

Figure 3: Human Rights Council special session on “the deteriorating human rights situation in the occupied Palestinian territory. (Okic, E. 2018). Available at: https://www.flickr.com/photos/unisgeneva/28316722488

Figure 4: The people of Manchester break lockdown to join the global Black Lives Matter protests. (Nash. S. 2020) Available at https://unsplash.com/photos/ZIKnVsJVJpg