The U.N. and the Protection of Human Rights: An Uneasy Relationship

by Julian Ku

Ilya Somin has a characteristically thoughtful post on the shortcomings of the U.N. system for promoting human rights and of international human rights law more generally, as seen in the recent hapless efforts of the U.N. Human Rights Council to protect Iranians from repression by their own government.

The bottom line is that the main weaknesses of the international human rights system are structural. By giving so much influence to the very sorts of governments that human rights law is supposed to constrain, it actually empowers oppressors much more than victims. In the short run, liberal democratic governments should work to limit the scope of the system and and prevent its pernicious elements from overriding their own domestic law, a point McGinnis and I emphasized in our articles linked above. In places like Iran, progress in protecting human rights probably depends on action by liberal democracies and internal dissidents acting outside the confines of the UN system. Liberal democracies cannot and will not always prioritize the promotion of human rights. But they have fewer perverse incentives on these issues than dictatorships do.

I pretty much agree with Somin’s critique of the UN human rights system.  On the other hand, I am not sure what the U.S. and other liberal democracies’ posture should be with respect to the UN system. Rather than vilify the system, I think the U.S. should make a good faith effort to participate in the system (e.g. the current Obama Administration policy).  On the other hand, the U.N. system cannot be seen as the only legitimate source of the content of international human rights law.  U.S. and other liberal countries’ participation must never concede this point, and must always retain the option for a non-U.N. mechanism to enforce and protect human rights if the U.N. continues to be “captured” by unsavory regimes.  A separate “League of Democracies” might help.  I admit this sort of balancing policy is tricky, and the U.S. has never quite figured out how to do this. I am curious what his approach would be or the views of our readers.

http://opiniojuris.org/2010/03/15/the-un-and-the-protection-of-human-rights-an-uneasy-relationship/

7 Responses

  1. I’m afraid I disagree, not so much in the condemnation of the ‘politicized’ HR Council, but in equating UN Human Rights Protection Mechanisms with this intergovernmental organ. If there has been some sign of progress in UN human rights law, it has been essentially the work of special procedures — rapporteurs and special representatives — and of the treaty-bodies such as the HR Committee of the ICCPR, or the CAT Committee. One could object that the reports and decisions of these organs and individuals are not binding and have little power to change state behavior. But that is true of the HR Council as well, and of nearly everything the UN does.

    This is why the following statement from the original article, seems wrong to me: “Both the content and enforcement of international human rights law are heavily influenced by authoritarian states who have a strong interest in using the system to protect and legitimize their own oppressive practices.”.

    First, it is not only ‘authoritarian states’ that seek to use influence in the UN HR machinery to avoid condemnation. Take the US position with regard to torture, for instance. No condemnation from the Human Rights Council, plenty from special rapporteurs.  But enforcement, in a strict sense of strong measures to change behavior, are out of the UN HR toolbox by design. For that you have to go to regional courts, organs far more successful in enforcing human rights instruments.

    Moreover, it is doubtful whether the UN system was significantly more open and democratic during the drafting of the two International Covenants. Nonetheless, those two instruments are important contributions to the evolution of the UN human rights work, and in promoting HR worldwide. Has the content of real HR obligations been truly impaired by the UN?

    Finally, the notion of a League of Democracies is, in my humble opinion, not very productive either. Nothing is stopping democracies today from condemning regimes such as Iran, North Korea, or the US for the matter. States do so regularly. And this has generally not resulted in improved behavior. But having this new organization, with stricter rules for membership, go beyond strong-worded statements to actual enforcement action against third parties — things such as embargoes, targeted sanctions, etc. — would raise considerable problems under international law, wouldn’t it?

  2. Agreed that UN space is only one space in the human rights space.  Somin and McGinnis though are not so much concerned with that space as to be in an effort to attack international law as law – as if domestic law provides protections.  Reading the construction of citizenship over the past four centuries in the US, one can beg to differ with the appeals to domestic law.
    Best,
    Ben

  3. I personally look more towards NGOs as better protectors of human rights than Governments or inter-governmental organisations.

    The danger of looking towards ‘liberal democracies’ for the solution is that it’s built on a false premise – that being a democracy means you automatically don’t abuse human rights. This has been disproved time and time again. In fact, in the last session of the United Nations Commission on Human Rights (predecessor to the Human Rights Council), the USA tried to stop discussion of Guantanemo Bay.

    Consequently, you would have in any such ‘league of democracies’ organisation an arrogant complacency where abuses within democracies are ignored, played down or excused for entirely political reasons by those very countries that are supposed to be protecting rights.

  4. going with some of what Mattthias said, I think the UN system due to its design, practice, and history makes its specific contribution to the “HR evolution” and its character and context should be taken into acccount when judging it. (this does, of course, not prevent the UN system from legitimate criticism.)
    so my statement in the discussion would be something like: the UN system, as it exists, reflects to a large extent what is possible in the global HR realm.

    but there are much more advanced regional systems, like the ECHR, which show what is possible in a smaller, culturally/geographically circumscribed space beyond the nation-States.

    so my questions regarding these regional HR systems in relation with the UN system are:
    1) are these regional courts actually gaining importance and even taking the lead in respect to the “real” HR protection? my guess: yes, defenitely.
    2) what is the nature of the relationship between regional systems and the UN system? competition, cooperation, neglect? I favor the second, it’s in both system’s interests.

    as to the “League of Democracies” proposal:
    Julian Ku writes that this sort of balancing policy is tricky, and the U.S. has never quite figured out how to do this.
    I just can’t help thinking of the “Axis of Evil”/”Coalition of the Willing” concept. I think the US has just figured out how devastating this was. pardon me if I’m just being a bit provocative here.

  5. I hereby propose a… League.

    A League in which we shall gather gentlemen.

    Nay, not just any gentlemen, but extraordinary gentlemen.

    We shall call it:

    The League of Extraordinary Gentlemen.

    Your move, Fu Manchu. (Or is it… Ku Manchu?!)

  6. It seems a false premise that to promote human rights the United States needs to participate in the Human Rights Council etc. a la the Obama Administration.

    If, however, one takes the position, still be logically explained, why the UN Human Rights Council must be the mechanism utilized, the Obama Administration has failed miserably in proving such an effort to be of any value. I’m still waiting for that change….

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