8. How to Make Human Rights Real?

Why can't the Universal Declaration, the international treaties, the UN agencies and even the ICC provide us with real human rights? And what kind of democratic mechanism is needed to make them real?

Episode Transcript

(00:08):
Today we’re going to talk about human rights.
Human rights, in theory, are rights thatall people have, just because they are human.
So, irrespective of nationality, race,
religion, gender, language, geography, colour,or any other distinguishing feature,
all people, in theory, share these rights.

(00:31):
Sounds good, doesn't it?
But there are some problems…
First we need to consider what are rights?
Rights are essentially principles of entitlement that are created by a society.
Rights are generally created by laws or statutes,
and to be effective they haveto be enforced by a legal and judicial system.

(00:53):
In most cases, rights aretherefore created and enforced by states.
So, for example, in many states citizens have the right to vote.
And if anyone tries to forcibly stop them from voting
they can appeal to the police or to the court systemto restrain the person trying to stop them from voting or to punish them.
Or in many states citizens have the right to private property.

(01:16):
So if someone else trespasses on your property, or steals your property,
you can go to the police or to the courts and seek redress.
If there were no police, and no courts,
then these rights would be rather meaningless, because you would have no way to defend them.
And this is exactly the problem with human rights.

(01:36):
These are rights that supposedly apply to everyone, everywhere.
So they are fundamentally global rights.
And as such they require a global system of enforcement,
some kind of global police force or global court.
But neither of these exist.
And therefore there is no way to defend, or enforce, human rights.

(01:59):
So they end up being theoretical,or aspirational, at best, but not real rights.
But hang on, you say, there’s the Universal Declaration of Human Rights,
and a whole system of international human rights law.
Surely that makes human rights real?
Well, let’s take a look.
The whole idea of human rights arose after the Second World War,

(02:23):
and in particular in response to the holocaust,
where the Nazi government actively murdered its own citizensif they happened to be Jewish, homosexual,
or have some other trait not considered to be ‘perfect Aryan’.
So after the war, it was considered really important
to set up a system through which citizens would be protected against abuses by their own governments.

(02:44):
In 1946 the newly established United Nations set upthe UN Commission on Human Rights to devise such a system.
The Commission established a Drafting Committeeof lawyers and philosophers, under the chairmanship of Eleanor Roosevelt.
And in 1948 they issued the Universal Declaration of Human Rights.
The Declaration lists 30 human rights.

(03:07):
It includes the right not to be tortured,
the right not to be enslaved,
the right to be considered innocent until proven guilty,
the right to education,
the rights to food and shelter,
the right to freedom of expression,
and so on and so on.
So far so good.
But as you may have noticed, many people today are sadly still tortured,

(03:29):
still enslaved, still deemed guilty without proof.
And vast numbers of people do not have access to education,
or to adequate food or shelter,or the ability to safely express themselves.
So what went wrong?
First of all, the Universal Declaration of Human Rightsis a Declaration, not a Treaty.
It is an aspirational document. But it has no legal force whatsoever.

(03:54):
If the creators had wanted to reallybring about these rights in the whole world
they would firstly have written a Treaty.
Treaties, in contrast to Declarations,at least in theory, are legally binding.
Secondly, they would have createdsome kind of global enforcement mechanism
to back up these rights and make them defendable.

(04:14):
This was in fact the original idea.
Right at the beginning of the discussions, during thesecond session of the Commission for Human Rights in 1947,
Australia introduced a draft resolution to establish an international court of human rights
to oversee violations of the proposed Covenant, or Treaty, of Human Rights

(04:35):
A Working Group was set up,consisting of Australia, Belgium, Iran and India,
to work out the details of this court.
How would it function? Where would it be located?
How many judges would there be and how would they be chosen?
Should it be a completely new courtor part of the already existing International Court of Justice?

(04:55):
And so on and so on.
But as this group were working out all the detailsand things seemed to be progressing well,
another group of countries stepped forward and opposed the whole idea.
And this group included big powers such as the US, China, and Russia
And so in the end the idea never got off the ground.

(05:15):
And to be honest, that effectively wasthe end of human rights, in any real sense of the term.
What happened instead was a long drawn out processof creating so-called ‘international human rights law,’
with lots of different treaties,but basically no meaningful enforcement system.

(05:36):
There are now nine core human rights treaties,
which are supposedly legally binding.
And there are also dozens of Declarations,
which are only aspirational documents, kind of voluntary normative guidelines.
But the treaties are the supposedly key part of international law.
So how do these treaties work?

(05:56):
Well, first the text is negotiated by states.This generally takes years.
Then, once the text has actually been agreed,states are invited to sign, and then to ratify, if they want to.
Many states choose not to sign or ratify these treaties.
And in this case the treaty simply does not apply to them.

(06:18):
A state is only legally bound by the treaty if they ratify it.
So that's the first problem.
As we might expect, there is a wide range in the number of ratifications for different treaties,
as states pick and choose the treaties which they feel might be beneficial to them
and avoid the treaties which mightlimit their powers in particular key areas.

(06:39):
So if we look at the International Covenant on Civil and Political Rights, for example,
we see it has been ratified by very many countries.
But if we look at the International Conventionfor the Protection of All Persons from Enforced Disappearance
we see that far fewer states have signed up.
And the situation regarding the International Convention on the Protection ofthe Rights of All Migrant Workers and Members of Their Families, is even worse.

(07:05):
The second problem is that even if states do sign and ratify a treaty,
such that in theory it is legally binding for that state,
there is no enforcement mechanism.
If a state abuses the rights of some of its citizens,these citizens have no global police to turn to, and no global court to turn to.

(07:25):
Basically, there is nothing they can do.
And thus many states continue to abuse many of these rights,even when they have signed up to the treaties.
Instead of setting up a courtor some other type of proper enforcement system,
the UN Human Rights Council has a number of different ‘mechanisms’
through which it ‘monitors’ the implementation of these treaties.

(07:48):
There are various different mechanisms:
Charter mechanisms, such as the Universal Periodic Review,
and Treaty mechanisms, such as Treaty Bodies.
But in most cases, what these boil down to is a processin which each state presents a report about its human rights performance,
and then the Human Rights Council,through one of these mechanisms, offers its ‘recommendations’.

(08:12):
None of this is legally binding or enforceable in any way,
and other than perhaps being a little bitembarrassing for the states presenting their reports,
it is really a largely pointless exercise.
Some people may argue thatit is better than nothing, and that is probably true.
But it is far, far short of whata real global human rights system could be.

(08:34):
One thing is clear, if we wanted a properly enforceablehuman rights system, we would not have designed it this way.
We would have followed the earlier suggestion of havinga proper Covenant of Human Rights and a global human rights court.
What we have instead is a system that, to the untrained eye,makes it look like we take human rights seriously,

(08:55):
when actually we don’t.
In recent years there have been some recent attemptsto push states to start taking human rights more seriously.
There were two initiatives to create global courtsto make human rights enforceable.
In the 1990s a large coalition of NGOs came together,spear-headed by the World Federalist Movement,
to push for the creation of an International Criminal Court

(09:16):
that would hold national leaders accountablefor the worst human rights abuses, such as genocide and war crimes.
There were some states that were in favour,and there were other states that were against.
And after several years of negotiation, eventuallythe Rome Statute of the International Criminal Court was adopted in 1998.
And in 2002 the court was established in The Hague, in the Netherlands.

(09:41):
This marked a big step forwards,
as this court is the first global court that canhold individuals, rather than states, accountable.
However, it is far from perfect.
One of the most serious problems is that the court can only ruleover individuals in states that have signed and ratified the Rome Statute,
and many states, including the US, have not.

(10:04):
A second attempt to beef upthe human rights system took place shortly after that.
In 2008 Switzerland put the ideaof a global human rights court back on the table.
They drew up a detailed proposal of how it could functionand tried to initiate discussion and debate.
However, whilst academics and NGOs were very much in favour,

(10:26):
most states were against the idea.
And, again, the idea did not get off the ground.
And so we see the difficulty of trying to create a global rights system, within an international state system.
The two just don’t sit together.
States that would have their powers limitedby enforceable global human rights law,

(10:47):
are supposed to be the ones that chooseto create such a law and appropriate enforcement bodies.
And of course, they don’t.
If we are serious about human rightsthen we need a truly democratic global system,
where we, the citizens of the world, can vote to create binding global human rights law
with a global court to enforce it.

(11:09):
At the moment, in the current ‘international order’or ‘global con-federation’ that we have,
this is just not possible, as we individuals do nothave a say or a vote with regard to what happens at the UN
or at the global level more generally.
If we had real global democracy
and a democratic global federation that united all the world’s citizens,

(11:32):
then we could create a system that would really protect our human rights.