Post No.: 0862
Unlike trade or investment treaties – human rights treaties aren’t concluded as an exchange of advantages or interests between the member States concerned but as commitments that States make towards the people over whom they exercise control. International law is normally enforced by States holding other States to account, but with human rights laws there are few incentives for States to police each other for non-compliance. This is why we see so many insufficiently-punished human rights violations across the globe.
If a government is violating the human rights of its own citizens, or failing to intervene when violations are being committed between its own citizens privately (read Post No.: 0840) – why would another State spend its own resources or risk its own international trade opportunities to help those citizens of another country? Some covenants do establish international courts whose judgments are binding, and States do typically comply with them, but enforcement mechanisms at the international level are generally weak. This is why the domestic enforcement of IHRL is vital.
Except in rare cases, individuals must first exhaust the local remedies available to them before filing a complaint at the international level anyway, in order to respect the sovereignty of States. This supposedly incentivises States to provide effective remedies for individuals at the domestic level, in order to not be accused at the international level. States effectively have a chance (or a second chance when it comes to violations that are attributable to the State itself) to remedy any violations before they’re forced to respond before an international mechanism.
However, not all States accept that their domestic courts can directly apply international laws; courts may be corrupt or insufficiently independent from the executive branch of government; and although domestic courts may be able to offer reparations to victims on a case-by-case basis, they’re not set up to tackle the structural causes of violations (these matters are usually tackled via e.g. general government policies, parliamentary committees who perform human rights impact assessments of proposed laws or policies, committed activists or the collective action of civil society).
Regarding something like secret State surveillance into private lives – where the violations are widespread but only minimally affect each individual concerned, or people mightn’t even notice that their rights are being violated at all – no individual will likely bother bringing their own case to court or accept the expensive burden of litigating on behalf of everyone who’s in the same boat (a class action lawsuit), thus judicial mechanisms may prove ineffective. So, perversely, some human rights violations remain unaddressed precisely because they’re widespread and collective action problems. Citizens may also fear reprisals if they try to challenge their government.
For these reasons, national human rights institutions (NHRIs) are crucial for ensuring that States comply with the IHRL treaties that they’re members of. These are officially-established and State-funded national entities that are independent from whoever is in government, with a mandate to promote and protect IHRL standards at domestic level. They’re non-judicial, advisory bodies but have strong expertise and recognised moral standing. They cooperate with civil society organisations (e.g. trade unions, churches, academics) to compile reports and influence government policies and laws. The Paris Principles set the guiding principles for NHRIs (although not all NHRIs in countries that have them comply with them equally). One big problem though is that NHRIs, as consultative bodies, can usually only offer non-binding recommendations.
Whether a State agent or private party commits an alleged violation, people have a right to have every plausible allegation examined by an independent and impartial judicial court/tribunal (preferably) or administrative body, that has the power to order a cessation of the violation or grant reparations (preferably in-kind and by replacing the victim back to the position she/he would’ve been in had the violation not occurred). It doesn’t matter whether the court is directly applying human rights from international or domestic law – it’s the results of an effective remedy that matters for the victim. Meow!
Social and economic rights such as the right to education, food, health or housing aren’t sufficiently well-defined to lend themselves to be adjudicated though, and a judge would inherently be acting arbitrarily by seeking to provide meaning to those rights i.e. the courts would be making the law rather than merely applying it, which would go against the classic understanding of the separation of powers between the legislature, executive and judiciary. One or both of the former branches of government, rather than the latter, should decide choices of social policy. Courts or expert bodies don’t have the required legitimacy to second-guess choices made by democratically-elected assemblies.
Courts also only prosecute the individual cases of individual litigants thus are ill-equipped to deal with complex, society-wide issues (e.g. how to rank priorities in public spending between health, education, social housing, defence, etc., or whether it’s more important to save the life of one individual requiring expensive life-saving medical treatment or use those funds for primary healthcare services that reach more people in impoverished areas?) The enforcement of social rights isn’t a matter of legal interpretation as much as social policy, which requires experts like health specialists or urban planners rather than judges or human rights experts.
Courts only intervene when requested to do so by claimants, thus many instances of violations go without punishment or remedial action. Moreover, generally only those individuals who can afford to litigate will bring a case to court, thus if judges keep on deciding to award these relatively wealthy litigants relief for their own individual cases then, if the State is the defendant, that’ll be paid out from public funds that could be better allocated in society via democratically-approved decisions. We want to ensure that not only the rights of individual claimants are safeguarded but everyone else’s who’s in a similar situation too. (This also highlights how protecting rights costs money – liberty depends on taxes!)
Courts don’t proactively prevent violations – they only address violations after they’ve happened or as they’re already happening. Only where a violation is imminent may they exceptionally intervene preventatively. They address individual cases and each case relies only on the information provided by the litigants in their own separate case, thus they cannot design solutions that are based on the views of the full range of stakeholders concerned by a particular pervasive issue. And they can only grant a confined range of remedies thus have limited ability to provide innovative fluffy solutions.
The courts can and do sometimes influence social schemes and policies. Yet the above limitations warrant the need for non-judicial mechanisms, like NHRIs, to complement the courts in protecting and promoting humans rights at the domestic level.
The UN has several mechanisms to enforce human rights at the international level – ‘Charter-based’ ones that apply to all UN member States (these are in the paws of the UN Human Rights Council (UNHRC), a subsidiary body of the UN General Assembly); and ‘treaty-based’ ones that apply only to those States that have ratified the specific treaties concerned.
The UNHRC has a complaints mechanism where consistent patterns of gross and reliably-attested violations of IHRL can be addressed, a Universal Periodic Review intergovernmental peer-review process that assesses State compliance and each State’s own pledges and commitments to human rights, and Special Procedures. The latter consists of independent experts, ‘special rapporteurs’ or working groups of five members, who go on missions on the ground and report on certain thematic issues or on certain countries where the human rights situation is particularly problematic. Progress in human rights is often made by restating general principles in concrete settings. They also engage in advocacy, raise State awareness of their human rights obligations, provide advice for technical cooperation, and more. Country visits require invitation but are a fundamental tool for mandate holders, who are unpaid and sit in their individual capacity, independent to whichever country they come from.
Victims, or individuals/organisations who have direct knowledge, of alleged violations may also correspond with the relevant Special Procedures mandate holder. They can do this via urgent appeals or letters of allegation. These aren’t judicial in nature but are relayed to the government and/or corporation implicated, who must then respond to them in a timely fashion. The victims, or whistleblowers, are usually kept anonymous to protect them from retaliation or reprisals.
The UN currently has 9 core international human rights treaties or instruments. These instruments each have a committee of independent experts acting as monitoring bodies. Presently, 9 optional protocols dealing with specific concerns supplement the above instruments. One of these optional protocols has also established a subcommittee of experts as a monitoring body.
The main competence of these monitoring bodies is to receive reports about how the member States concerned are implementing their treaty provisions, and to adopt concluding observations on the basis of this information. This is the only mode of supervision that’s actually obligatory for all member States. If a State consents to it, a body may also receive individual communications from victims of violations, receive inter-State communications (although no State has ever exercised this possibility so far), or make enquiries into certain situations; which may entail a visit on that State’s territory.
The value of human rights monitoring bodies holding elected governments to account is arguably precisely because they’re not led by majoritarian opinion. This means they can protect minority groups, who are usually the most frequently oppressed.
When it works, IHRL works to constrain States not just via the prospects of economic sanctions, diplomatic sanctions, national sports team sanctions or other kinds of sanctions if a State fails to comply, but also because of the reputational risks involved. For a State to be respected on the international stage, it must act in accordance with the values it professes to adhere to – especially when it seeks to impose those same values upon other States. Pledges may not alone be legally binding here but there’s strong pressure on States to deliver on their own promises.
The Human Rights Committee (HRC) (under the First Optional Protocol to the ICCPR), the Committee on the Elimination of Racial Discrimination (CERD), the Committee against Torture (CAT), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on Migrant Workers (CMW), the Committee on Economic, Social and Cultural Rights (CESCR) (under the Optional Protocol to the ICESCR), the Committee on the Rights of Persons with Disabilities (CRPD) (under its Optional Protocol), and the Committee on the Rights of the Child (CRC) (under its Optional Protocol) – may all receive communications from individuals who claim to be victims of violations of the respective treaties that they monitor, provided that the State concerned has agreed to this or has ratified the relevant optional protocol; plus some other conditions.
Where violations have been found, these treaty bodies generally expect States to provide them with information about what measures they’ve adopted on the basis of the bodies’ decisions. States should in principle provide remedies or compensation to aggrieved individuals, and perhaps update domestic legislation to prevent any offences from reoccurring.
Victims of IHRL violations will actually sometimes be able to select between different available international mechanisms when they wish to challenge the inability of the State to protect their rights at domestic level. And the most effective are those established in regional settings – the most well-established of which are currently within the Council of Europe, the Organization of American States, and the African Union.
Europe has the Council of Europe, the European Union, and the Organisation for Security and Cooperation in Europe. The former has, amongst other human rights mechanisms and instruments, the European Convention on Human Rights (ECHR), which is enforced by the European Court of Human Rights. This, to a large extent, provided the model for the Organization for American States and the African Union to follow.
Meow. I hope this foundational tour of International Human Rights Law has been informative and will spur you to continue to be interested in it!