Transnationalism, Sovereignty and the Problems of Human Rights Enforcement

Although international, regional, and domestic actors have spearheaded a large role in the pursuit of legitimate human rights enforcement, the world still lacks a universally applicable enforcement mechanism that protects human rights. Accordingly, there are many issues – both logistical and political – with the enforcement of human rights; namely the issue of ratification, the issue of funding, the issue of overlapping jurisdictions, and the issue of the politics of intervention. Ultimately, the principal issue with human rights enforcement, or rather the lack thereof, is that it is contingent on the voluntary compliance of states.[1] Thus, the solution – in order to successfully enforce human rights around the world – is the creation of a neutral and universally applicable enforcement mechanism that can establish responsibility with legitimate discernment.

Human Rights Enforcement Mechanisms

Multiple avenues have been pursued with regards to enforcing human rights. In effect, the avenues can be reduced to three categories: the international level, the regional level, and the domestic level. The international level has three substantial mechanisms to enforce human rights: the Commission on Human Rights, the Office of the UN High Commissioner for Human Rights, and the International Criminal Court. The attempt to enforce human rights through international and transnational organizations began as early as the creation of the United Nations. In 1946, the Commission on Human Rights was established under the United Nations Charter, to which all UN member states are signatories.[2] This was revolutionary, as it was one of the first times in history the major global actors collectively agreed upon the existence of human rights and the need to enforce them. Accordingly, the CHR drafted the Universal Declaration of Human Rights in 1947, compromising one of the three documents that consist of the International Bill of Rights.[3]

However, over time, the CHR’s legitimacy towards enforcing human rights diminished, as the membership of the CHR often compromised states with very poor human rights records, such as Sudan.[4] Thus in 2005, the CHR was transformed into the Human Rights Council. This is especially significant to the enforcement of human rights as the HRC reserved the right to universal periodic review.[5] In effect, universal periodic review seeks to rectify the problem of ratification, which will be later addressed. Under this provision, every UN member state must come before the HRC to report on their progress or lack thereof on Human Rights.[6] Thus, even countries such as the United States, who have failed to ratify certain conventions such as CEDAW or CRC, are subject to universal periodic review. The Human Rights Council was an important step for the international system towards enforcing human rights.

The Office of the United Nations High Commissioner for Human Rights, brought about in 1993, is another international mechanism for enforcing human rights. In effect, the OHCHR coordinates human rights undertakings in the United Nations.[7] This office legitimized the Vienna Declaration and reflected upon the fundamental principles established in the UN Charter. The OHCHR has the power to create and oversee committees that can monitor states to make sure they adhere to the guidelines of Conventions that they have ratified;[8] for example, the Committee on the Rights of a Child monitors implementation of the Convention on the Rights of a Child. The problem with the OHCHR is that it lacks jurisdiction over non-ratifying states, which often commit the worst violations.

A similar problem also exists for the International Criminal Court.[9] Established by the Rome Statute in 1997, the ICC did not come into being until 2002 when sufficient ratification was reached. The ICC is revolutionary in that it holds international jurisdiction over war crimes, crimes against humanity, and genocide and has the ability to legitimately prosecute individuals.[10] However, three permanent members of the Security Council – Russia, China and the United States – have failed to ratify the treaty governing the ICC.[11] Further, China and India – together encompassing roughly 1/3 of the global population– have failed to ratify it as well.[12][13] This brings up issues of legitimacy, which will be addressed in depth later.

At the regional level, there exists three notable regional human rights regimes: the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the European Convention on Human Rights.[14] The latter is the best example of a successful regional human rights regime in that all members of the Council of Europe have ratified it.[15] Accordingly, the ECHR is a binding, legal convention that applies to all states in the Council of Europe.[16] In effect, regardless if a state is a signatory to the Convention Against Torture, they are still bound per the European Convention of Human Rights vis-à-vis the European Court of Human Rights. Thus human rights can be enforced at not only the international level, but also the regional level.

However, the domestic level is the most effective way to implement human rights legislation; states have far more power than international organizations in passing and administering laws. In effect, legitimate human rights enforcement comes from inside a country’s own legal system. Indeed Hannum asserts, “most human rights treaties require that parties incorporate relevant obligations into their domestic law.”[17] For example, after Canada ratified the Convention Against Torture, they also amended their respective domestic legislation to remain consistent.[18] Although CAT does not have an enforcement mechanism per se, the Canadian judicial system does. The most effective way to enforce human rights is through the domestic level since states have a prima facie responsibility to adhere to their own laws.

Ultimately, human rights can be enforced at many levels: the international, the regional, and the domestic. But, although the enforcement of human rights is approached in multiple ways, this does not mean that the enforcement of human rights is universal.

The Problem with Enforcing Human Rights

There exists a number of problems at all levels of human rights enforcement. These problems can be reduced into namely four categorical issues: the issue of ratification, the issue of funding, the issue of overlapping jurisdictions, and the issue of the politics of intervention. Ultimately, the principal issue with human rights enforcement is that it is contingent on voluntary compliance.

The issue of ratification consists of the fact that conventions are only binding if a country has ratified said convention. In effect, countries are only liable to conventions that they have actually ratified. Thus, the United States is bound neither to the International Criminal Court nor the Convention on the Rights of a Child, since they have failed to ratify either of these conventions.[19] Likewise, Canada is not liable and thereby not bound by the Indigenous and Tribal Peoples Convention since they have not ratified it.[20]. The problem with ratification is that is rests on voluntary compliance, and countries that will be condemned or punished by international human rights law have the easy option to refuse to ratify treaties and gain an easy exemption.

The issue of funding is self-explanatory. Despite the fact that the cost of the UN operating bodies is growing, human rights activities account for less than two percent of the UN budget.[21] The issue with funding regional or international organizations is that it rests on the very states that created them. Since UN funding is acquired through state contributions, allocating money towards human rights enforcement relies on voluntary compliance. If powerful states wish to undermine human rights enforcement, they can simply tighten their purse strings.

The issue of overlapping jurisdictions relates to what Weiss, Forsyth and Coate call the “vicious circle.”[22] States are willing to approve human rights treaties supervised by the UN, but they do not allow effective enforcement. Accordingly, this results in the creation of excessive organizations with the same mandate.  For example, with regards to the subject of torture, the UN Sub-Commission on Human Rights, the UN Human Rights Commission, the ECOSOC, the UN Committee Against Torture, and NGOs such as Amnesty International are all active.[23] This is an inefficient approach to human rights enforcement.

The issue of the politics of intervention is its inherent clash with state sovereignty.  States with ulterior motives will attempt to justify intervention in a foreign state by citing human rights.[24] The most prominent case study is the 2003 U.S invasion of Iraq. The U.S justified intervening without a Security Council resolution on the basis of human rights.[25] Indeed, Saddam Hussein committed human rights violations earlier.[26] The irony exists, however, that the U.S themselves were guilty of committing human rights violations after invading Iraq – alienating and radicalizing the Iraqi population.[27] Further, the politics of human rights bleeds over into other situations. Many states in the African Union believe that the accusation of human rights abuse is an excuse for imperialism.[28] The AU points to the fact that the ICC has only ever prosecuted African leaders.[29]  The United Nations is consistently flirting with the fine line between humanitarian aid and regime change. In Cote d’Ivoire, the Security Council overturned the results of an admittedly flawed national election through force.[30] For legitimate and justified intervention, there requires neutrality and the consent of both the intervening and subject state. The problem is that this rests on voluntary compliance.

Ultimately, the principal issue with human rights enforcement is that it is contingent on voluntary compliance. Despite the advent of international, regional, and domestic actors pursuing means of legitimate human rights enforcement, there still lacks a universally applicable mechanism that protects human rights. To avoid the issue of ratification, a solution mechanism needs to apply and bind all states – this calls for universality. To avoid the politics of intervention, a solution mechanism needs to be external and impartial – this calls for neutrality. Thus, in order to legitimately enforce human rights around the world, there requires a neutral and universally applicable enforcement mechanism that establishes responsibility without discernment.

-Richad Hirani