The scale of the crisis in the UN human rights architecture is confirmed when the world’s biggest donor, and one of the world’s principal advocates of rule of law, unilaterally pulls out. The question now is how to preserve human rights at the core of the UN system, if at all, and to address the concerns that led to US withdrawal that it must be accepted is extremely damaging to the reputation of the human rights system.
By Matthew Parish
The language of human rights is omnipresent in International relations. Several conventions, declarations and treaties safeguard a range of different sorts of human rights. Human rights are said to be legal rights of individuals, either not to be treated in certain ways (negative rights – for example, the right not to be tortured) or to receive certain sorts of treatment from government (economic and social rights). The centrality of the human rights narrative emerged at the end of World War Two, the idea being that had the individuals persecuted by the Nazis benefitted from overriding legal rights protecting them from persecution, the institutions of the German state would have been restrained from their acts of mass murder.
This may have been a unique solution to a unique problem. Typically, acts of mass murder, torture, abuse and genocide are not enshrined in law and legal instruments in the way the Nazis undertook their atrocities. Nevertheless international organisations captured the idea that human rights form part of international law and proliferated it. Atop the treaties and conventions, the United Nations is host to several committees addressing human rights issues; a Human Rights Council, charged with investigating human rights in different member states; and a High Commissioner for Human Rights, in charge of the UN’s human rights policy.
Much criticism has been levelled at the system of international human rights. The principal charges are the following. (a) Human rights treaties make no difference. That is because democratic countries that respect civil rights in their domestic constitutions and laws will observe human rights, to the extent they do, even without having agreed to international human rights instruments. By contrast authoritarian governments and regimes will ignore human rights treaties they have signed.
(b) The United Nations’ human rights system is biased, because it works on a one member state, one vote system. This leads states to create coalitions to use the Human Rights Council and the various human rights committees to criticise or investigate their common enemies and/or pursue political agendas. Hence their output reflects political agendas rather than genuine assessments of human rights compliance within an international legal framework.
(c) A number of states, and the UN High Commissioner for Human Rights, have used the UN human rights framework as a mouthpiece for media attention and this is not within the proper remit of the United Nations. As soon as any international security crisis occurs, the High Commissioner makes a statement about the human rights situation that is not agreed by any group of UN member states and is often seen as one-sided. The UN is a multilateral organisation and the High Commissioner acts unilaterally.
(d) Although purporting to be a way of protecting essential human interests using legal tools, the UN human rights system is not legalistic. There is no UN human rights court with an independent judiciary to rule upon allegations of human rights violations or issue remedies or relief. If there is no impartial way of making law binding, then it is not really law at all.
Let us begin with the fourth criticism. The purpose of human rights discourse is to cast in legal language standards by which governments should act towards their citizens. The obvious question is whether there are any such standards that are universally applicable to all nations irrespective of context. For some human rights, such as the right not to be tortured, this is unarguable. For other human rights, such as the right to a fair trial, the principle is unambiguous but the question of what is fair may vary by legal culture and the same right may be understood in different ways by different nations.
For some rights, particularly positive ones such as a right to healthcare or education (which require the state to provide a service), the principle may be uncontroversial but everything depends upon the magnitude of resources accessible to the state, and the balance the state may choose to strike between allocation of resources to this social good and its various other priorities. Hence the so-called “right” is inchoate: there is no reliable judicial method of establishing whether a state’s obligations have not been met, because the relevant questions are about taxation, budget allocation, efficient use of resources, policy decisions underlying national priorities, and the like.
Then there are alleged human rights the very existence of which is hugely controversial, such as the alleged right of respect for one religion: which gives rise to criminal blasphemy laws. As a rule, western nations reject such a concept in its entirety. All these issues are problematic, because using human rights language to describe social goods is appropriate only if the rights are universal and subject to judicial determination. The social relativism, unmeasurable nature of some rights, and fundamental contests as to whether some rights exist at all, all suggest that human rights may not be as universal as they purport to be.
The point about using the language of human rights is to move into the legal and judicial sphere the social good at stake. Internationalisation of human rights suggests that the same rights apply to everybody worldwide, because law is of its nature of universal applicability. But if there is law then there must be courts to enforce it. Human rights must be a branch of law, or it is empty. The problem with international human rights is that there is no UN court to enforce those rights or to adjudicate whether they have been violated. That is why the human rights system of the United Nations is criticised.
Think of two ways of conceiving the right to education. One is that education of children is administered by a Department of Education, that is allocated resources and decides how best to spend them to educate children: subject to parliamentary oversight, for example. The other is that a minimum standard of education is set in law, and if a child is not educated to that standard then they can sue to enforce their legal right to education. The latter approach would operate very differently, because Judges are not suitable public servants to apply budgetary discretion or make decisions about resource allocation.
An approach to education based upon a legally enforceable right cannot start from the premise that a government has allocated a certain sum of money for education and is spending it more or less effectively in accordance with a policy, using administrative discretion. That is because Judges are not policymakers and they have neither the skills nor resources assess whether budgets are adequate or money is well-spent. Instead a Judge must commence with a series of rights capable of legal adjudication: for example, each child has the right to 35 hours per week of classroom education; a child has the right to be set five hours per week of homework; a child has the right to be in a class of 30 pupils or less; a child has the right to be taught by a teacher of not less than five years’ experience, etcetera.
The only way of rendering the social good of education legalised, as opposed to covered by the shifting sands of policy, is to list a series of enforceable legal rights of this kind. Then the courts will enforce those rights, irrespective of the cost to the state and irrespective of whether the education provided as a result is of a high quality. The whole system is turned on its head from a policymaker’s perspective, and that is why the human right to education is never actually enumerated in this way as a series of enforceable legal rights: either internationally or in any domestic system.
Quite aside from the fact that there are no international courts or judges with jurisdiction to adjudicate allegations of infringement of human rights (and very few countries’ domestic courts consider themselves to have jurisdiction to adjudicate complaints of breaches of UN human rights treaties), judges are not the right people to set government policy for the vast majority of rights asserted to exist in international human rights instruments. This gives rise to the question of why the language of human rights is adopted at all in the international context. If people have rights, they have them in domestic law and only to the extent that domestic courts are prepared to enforce them.
One could reply that international human rights law is normative it sets standards that domestic and international courts should be applying in enforcing rights. But the rights specified are insufficiently specific to be enforced by any court, and no judicial forum is specified for their enforcement. International human rights instruments are not laws, because they have insufficient details and do not involve any judges. Nor are they treaties, because a (good) treaty is self-enforcing by virtue of offering both parties to the treaty reciprocal benefits extended over time. There are no reciprocal benefits (or harms) under a human rights treaty. Unlike the Geneva Conventions, under which states agree not to abuse one-another’s prisoners of war on pain of the threat that if one side breaches the convention then the other may do so, human rights treaties have no self-enforcing properties. If you torture your citizens, there is no reciprocal harm If I therefore torture my citizens.
The foregoing discussion calls into question why human rights discourse is as prevalent as it is. The answer. is that by borrowing legal and judicial language and applying it to ambiguous concepts, talk of human rights legitimises political criticism of one’s opponents, and lends moral authority to debates about international relations. It is part of a trend to provide legal force to the traditional profession of diplomacy: disputes between nations are now articulated and discussed through a prism of international law. Diplomats now say that states are in violation of their legal obligations, and this is the basis for action of intervention by another state or states. This is very much the geopolitical world in which we live. This is very much the geopolitical world in which we live. The language of diplomacy is now framed within the language of law, and human rights are part of this discourse.
The Human Rights Council, an assembly of UN member states that meets in Geneva and includes amidst its members several countries with atrocious human rights records, is used as a platform for moral condemnation by member states of other member states. It is virtually the only authority of the United Nations in Geneva that routinely receives wide media coverage, and the reason why is that it purports to be a multilateral body presenting the United Nations’ periodic opinions upon human rights issues relevant to the world but in fact it is a miscellaneous set of statements by UN member states with their own axes to grind.
The UN High Commissioner for Human Rights is also a media platform, issuing (far) more press releases – all about human rights issues across the world – than the rest of the United Nations put together. Yet the High Commissioner has no legal authorities whatsoever. He is not a Judge and he has neither the authority to adjudicate complaints or disputes, nor the investigatory resources at his disposal to do so. In practice, his staff are engaged in assignments at the request of the Human Rights Council. The tasks the Human Rights Council assign to Its “Special Rapporteurs” involve investigating the most extraordinary array of issues under the moniker of human rights, all across the globe.
Because it was percevied that the Human Rights Council routinely criticises American ally Israel, the United States under 45th President Donald J. Trump withdrew from the Council in June 2018. The scale of the crisis in the UN human rights architecture is confirmed when the world’s biggest donor, and one of the world’s principal advocates of rule of law, unilaterally pulls out. The question now is how to preserve human rights at the core of the UN system, if at all, and to address the concerns that led to US withdrawal that it must be accepted is extremely damaging to the reputation of the human rights system.
The resolution of this crisis in multilateralism will surely turn upon other points of cooperation or antagonism between the United States and its principal allies. If other states want the United States to re-engage with the Human Rights Council, then they will have to push some reforms and they will have to give something else in return. Nevertheless we can make a few remarks about a vision for the future of human rights discourse in the multilateral system. The point of human rights language is to emphasise certain values as fundamental to civilised society, so that we remain focused upon that. They are a way of re-casting, admittedly in language borrowed from the legal profession, many of the values inherent in development economics and state-building. By using language focusing upon the individual who receives or uses government services or coercion, human rights language may rebalance a development narrative that in most part of the UN system focuses upon states rather than their citizens. Insofar as human rights are a different way of talking about the same sorts of problem as the rest of the United Nations struggles with, there is nothing wrong with it in principle. Where there may be a greater problem is if a separate UN official, and council body, emerge in parallel to the UN Secretary General and UN General Assembly, with the power of the microphone, and the capacity to issue resolutions censoring states, respectively.
One of the challenges facing the institutions of the High Commissioner and the Human Rights Council is that according to to some critics, they would appear just to be less restrained reflections of institutions already existing in New York. The High Commissioner makes public statements similar in nature to those of the UN Secretary General, particularly if we accept that human rights in the United Nations system are principally ways of talking, using language with a different emphasis, about the UN development agenda. But unlike the Secretary General, the High Commissioner does not serve at the effective pleasure of the P5 member states of the Security Council. The Security Council has no say in appointment of the High Commissioner, who is appointed by the Secretary General and confirmed by the General Assembly. Hence the High Commissioner – in practice agreed by the P3 (US, UK, France) to the exclusion of the P2 (Russia, China) might serve as an unmuzzled Secretary General European alternate, with a correspondingly quieter voice. An equivalent analogy might be made for the Human Rights Council vis-à-vis the General Assembly.
The United Nations cannot effectively operate with its New York and European nodes at loggerheads and with differing agendas. The solution to the much-discussed problems with the UN human rights system may be to amend the rules for appointment of the High Commissioner and his Council, to bring political incentives into line as between Geneva and New York. Imagine if the High Commissioner were appointed by the Secretary General and confirmed by the UN Security Council, rather than by the UN General Assembly.
Imagine if the Human Rights Council were expanded to be identical with the UN General Assembly. There may not be final proposals, but thoughts along these lines might re-align Geneva and New York and help unwind the current catastrophic state of the politics of the Human Rights Council and the damage that does to the UN system as a whole. Reforms of this kind might also impede the consistent career misfortunes of successive High Commissioners. Right now it is about the most dangerous job in the United Nations. It is obviously undesirable that the UN’s chief human rights position has such a reputation.
Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He has published two books and over 250 articles on the subject. In 2013 he was elected as a Young Global Leader of the World Economic Forum and he has was listed as one of the three hundred most influential people in Switzerland. He is currently a candidate of the United Kingdom of Great Britain and Northern Ireland for appointment to a position of Under Secretary General of the United Nations with an agenda for institutional reform.
The views expressed in this article do not necessarily reflect the views of TransConflict.