Enforcement of International Human Rights Laws: Barriers to Implementation

 

By Ashley Grimes – Licensed Attorney

I. Introduction

In 1998, the Office of the High Commissioner for Human Rights (OHCHR) celebrated the 50th anniversary of the Universal Declaration of Human Rights. The OHCHR posted a comment on their public website in reflection upon the significance of the event:

“On 10 December 1948, the international community adopted the Universal Declaration of Human Rights – a common standard of achievement, which recognized the inherent dignity and the equal and inalienable rights of all people in all nations.” The 50th Anniversary of this historic Declaration in 1998 provided the opportunity to look back on many accomplishments and to consider the lessons learned over the past 50 years in the promotion and protection of human rights. [1]

The OHCR is a department of the United Nations Secretariat, an organ that exists under the UN charter. One of OHCR’s main goals is to strengthen global awareness of international human rights laws and treaties in order to make progress in the use and application of those laws. With several other departments and organizations such as these, the United Nations, established in 1945 to maintain peace and international security, [2] constantly attempts to improve the implementation of international human rights laws. Some critics, especially those with extreme political views, tend to question the availability of tools that can truly enforce international human rights laws. This creates a heated debate about the deficiencies that exist within the scope of these laws and how those deficiencies should be met. People who support the functions of the United Nations feel that it has shown its usefulness through the establishment of legally binding treaties, declarations such as the above mentioned Declaration of Human Rights, and through the implementation of the legendary UN charter.

II. The Measurements of Implementation

The United Nations was founded in 1945, shortly after the Second World War came to an end. Its dedication to international human rights can be found in articles 1,13,55,56,62,68,76, and in the preamble of the UN Charter. The UN charter is the language that outlines the procedures, purposes, and goals of the United Nations. Currently, there are 191 member states existing in the United Nations. Within the body of the United Nations there are six organs that have specific responsibilities assigned to them. The Economic and Social Council (ESC), one of these six organs, has the sole obligation of overseeing all international economic, social, cultural, educational, health, and related matters. [3] This council designates subsidiary bodies that must meet regularly and report back to it so that those reports can be discussed, leading to the formulation of policy recommendations that are presented to the general assembly. Through this process important documents, such as The International Bill of Human Rights and many others, are created. These documents are very crucial to the enforcement of International Human Rights. The process of improving means of enforcement in human rights laws is like the process of spinning a delicate web. The web is created by time, challenges, and repeated correction. Necessary documents combined with the use of Customary International Law make up vital parts of the web. Customary International Law does not take effect overnight. Certain laws in relation to human rights only become binding with the aid of time, patience, and acceptance that is needed for the transformation into Customary International Law. When human rights issues take place on an international level, the way in which they are handled become a reference for future actions.

Eventually, over time the enforcement that is successful in handling human rights becomes more internationally accepted. This international acceptance and practice transforms some human rights documents into binding law. In some cases, international human rights laws immediately become customary international law if they are reflected throughout the majority of domestic laws already in place. An example of a document that is becoming closer to taking on the form of customary international law is The Universal Declaration of Human Rights.

The Universal Declaration of Human Rights started out as a guideline for human actions towards other humans, but as more cases are brought through the International Court of Justice, the more the Universal Declaration of Human Rights begins to transform into binding law. It can be combined with The International Covenant on Economic, Social and Cultural Rights, The International Covenant on Civil and Political Rights, and The Optional Protocol to the latter Covenant [4] to form The International Bill of Human Rights. The United Nations admits that The Covenants require countries ratifying them to recognize or protect a wide range of human rights [5], but nevertheless, The International Bill of Human Rights has proven to be very useful.

The covenants that make up the International Bill of Rights are also known as treaties. Treaties, when ratified, are a very powerful tool for enforcing international human rights laws. A law can only be enforced if it is somehow defined and specified. In addition to these definitions and specifications, measures for implementation must be explained. Conventions and treaties dealing with human rights accomplish this task. All states that ratify treaties created by the United Nations are party to the agreements and rules that those treaties set forth. This is a valuable process for carrying out international human rights laws because of its legally binding nature. Although not all states choose to become party to all treaties at present, more may ratify them in the future, leading to further expansion in their enforcement.

The body of the Secretariat as mentioned in the UN charter in Article 101 (2) has the ability to hire staff that can be assigned to the Economic and Social Council, ultimately aiding in the research on Human Rights Issues. The OHCHR, mentioned earlier, is one of the groups that is supported by the secretariat. The OHCHR has other bodies under it such as the Commission on Human Rights (CHR). A new Human Rights Council (HRC) was established by the General Assembly in resolution 60/251 on March 15 2006 that is to replace the CHR. It is constant efforts such as these that increase the usefulness of Human Rights every day. The UN Secretary commented on the HRC by stating:

“Now the real work begins. The true test of the Council’s credibility will be the use that Member States make of it. If, in the weeks and months ahead, they act on the commitments they have given in this resolution, I am confident that the Council will breathe new life into all our work for human rights, and thereby help to improve the lives of millions of people throughout the world.” [6]

III.     The Deficiencies

It is through the constant creation of resolutions such as these that international Human rights laws are shaped and formed. They are constantly improved upon and many are hopeful for their future implementation. Despite all of these movements towards enforcement, there are still very large areas that are lacking means of enforcement. In a 1999 review on human rights, the High Commissioner for Human Rights stated.

Despite some progress in reinforcing the founding vision of the Declaration’s drafters, it is manifest that the fundamental rights to decent living conditions, food, basic health care, and education are widely denied. [7] This view expresses one of the areas of concerns in human rights. There are many broad categories that fall under this same type of concern. One issue that is yet to be solved is the lack of a military body within the UN to ensure the enforcement of decisions that are carried out. Currently, if any kind of global situation occurs that impedes upon international human rights, there is not a law enforcement branch to deal with the situation. In a domestic government there are police officers, security personnel, armed forces, and the list goes on. Yet, within the United Nations, there is no equivalent. The fact that the United Nations deals with all human rights issues, on an international level, makes the number of incidents that must be handled enormous. The numbers of global human rights issues far surpass the number of domestic human rights issues. If several crises were to occur at one time, chaos would be uncontrollable due to a lack of sufficient force. In some situations, force, although a last resort, must be used. The additional areas that are lacking are in the speed of handling situations, the number of agencies available to handle situations, and judicial control.

There are many situations that must be filtered through the covenants that deal with International Human Rights. The personnel that must deal with reports and/or complaints simply do not match, in number, the complaints and reports coming in. This slows down the process greatly and delays enforcement. In addition to this, judicial control is completely absent from the 1966 Covenants. Issues such as these are responsible for hindering the enforcement of international human rights laws. When looking at the deficiencies in international human rights laws, one must also regard the role of politics.

Politics always plays a role in the view of International Human Rights Laws. This game can sometimes corrupt the image and the purpose of the United Nations. This happens because of the various members within the United Nations who play a very significant role in the world of politics. In consideration of this thought, one must also realize that there are many ways in which this issue is balanced. There are measures with in the UN charter that encourage a non-political approach to international peace and security. For example, if a Security Council member’s country is involved in a dispute brought before the council, that member cannot vote on the resolution. This keeps the resolutions created by the United Nations in an unbiased realm. This is just one of the examples in which political gain is kept from disrupting the peaceful goals of the United Nations. In consideration of all of these things, one must ask, “How incomplete are the measures of implementation of international human rights law?”

IV. Final Thoughts

In the view of this writer, measure of implementation are only incomplete to an extent. Others oppose this view greatly and even go so far to say that, unfortunate as this may be, numerous international human rights instruments do not guarantee anything. [8] This view seems to ignore the progress that has been made thus far in relation to the implementation of International Human Rights. There are several other critics that share this same view, but it is something that can be greatly contradicted if one studies the history of the United Nations.

The relationship between the United Nations enforcing international human rights laws upon the international world can be compared to the relationship of parents to their children. Parents set out certain rules and, by constantly stressing their importance and demonstrating the appropriate behavior, their children begin to follow those rules. Eventually, when children grow to become adults, the rules and morals that they learned at an early age are carried with them throughout life. In the same way, only by constant example and demonstration will the nations of the world follow the United Nations in supporting human rights enforcement. Over time the nations of the world will carry on the examples put forth by the United Nations and, hopefully, human rights laws will be passed down over the extent of time as children pass down the things they were taught by their parents, to their own children. However, the United Nations lacks the means of enforcement which are available to a parent for purposes of ensuring that children follow rules.

Therefore, in this way, the United Nations must rely on demonstration, guidance, and the example it puts forth. As with any means of enforcement in any legal system, the international human rights laws will never be enforced perfectly and completely. The world is constantly changing and so the laws by which it abides by must also constantly change to maintain balance, leaving them indefinitely incomplete. In the international scope of things, this task of constant evolution is extremely complex and delicate. Not only must international human rights laws stay current with global changes, but it must cross over a boundary that most other laws never cross; the boundary of cultural understanding. International human rights laws must speak in a language that can be heard and understood by every culture in the world as it applies to all human beings.

With such a difficult obligation at hand, the measures of implementation that have been set in place thus far, in regards to international human rights law, are not deficient enough to fail their purpose. The enforcement of these laws may not be executed in all situations with perfection and precision, but it is executed in a way that is effective enough to aid many situations that would otherwise be lost. Several measures for enforcement have been listed in detail and must not be ignored when discussing the debate on the effectiveness of current human rights laws. If the UN did not exist, the many achievements in international human rights laws over the years would vanish. Only then, would people realize how much they had taken for granted the means of enforcement for international human rights laws. After all, you never realize what you had until it is gone.

Sources:

[1] Office of the High Commissioner for Human Rights, Message from the Office of the High Commissioner for Human Rights, www.unhchr.ch/html/50th/50anniv.htm April 2006

[2] UN Charter, Article 1 (1)

[3] United Nations, United Nations Charter, (New York and Geneva: United Nations, 1945) Article 62, Paragraph 1

[4] United Nations, The International Bill of Human Rights, United Nations, 1985

[5] United Nations, The International Bill of Human Rights, United Nations, 1985

[6] Office of the High Commissioner for Human Rights, Human Rights Bodies www.ohchr.org/english/bodies/hrcouncil/ April 2006

[7] Robinson, M, Human Rights: A Quarterly Review of the Office of the United Nations High Commissioner for Human Right, Office Of the United Nations High Commissioner for Human Rights, vol. 1, issue no. 1, 1999, p 3

[8] Lung. L., Is Tibet A Country or Not, www.forum.pbase.com/viewtopic.php?p=118564 April 23, 2006