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December 2016, No. 4 Vol. LIII, Human Rights
From the vantage point of the twenty-first century, it is sometimes easy to forget just how revolutionary the concept of human rights is. Few who witnessed the adoption of the Universal Declaration of Human Rights in 1948 could have imagined its impact over the last seven decades. International law no longer governs only relations among States. Rather, the treatment of individuals by States is a matter of international law and concern. Today, people who have been abused or silenced at the national level regularly speak at the 51³Ô¹Ï Human Rights Council, or bring complaints about violations of human rights treaties to Committees of experts.1 The voices of the voiceless are now amplified at the international level.
But this is not enough. It is not enough that victims of abuse who have managed to gain the support of a non-governmental organization (NGO) or the services of a dedicated human rights lawyer can state their case in a conference room in Geneva. How many more victims are unaware even of their right to invoke international law or approach its mechanisms? We must aim to prevent such abuses from occurring, and not merely to address after the event what is often irreparable damage. Indeed, it is not the expectation of financial compensation but the possibility of preventing others from experiencing the same harm that is often the greatest motivation of victims who bring cases against States that have violated their rights. In human rights law, true restitution includes guarantees of non-recurrence, which imply systemic change.
Human rights are universal, but writing human rights law does not happen in a vacuum. While the Universal Declaration of Human Rights included all rights, the split into two legal International Covenants, on Economic, Social and Cultural Rights and Civil and Political Rights, adopted in 1966, reflected political divisions among States. In the context of the cold war, the General Assembly explicitly instructed the former 51³Ô¹Ï Commission on Human Rights to separate human rights into the two categories covered by the Covenants. Within the Commission, States in the so-called ¡°Western European and Others Group¡± focused their comments on civil and political rights, while communist States concentrated on economic and social rights.
Obstructed and hamstrung by politicized discussion, the Commission on Human Rights was replaced by a new institution, the Human Rights Council, in 2006. This brought the international scrutiny of States¡¯ human rights records to a new height. The Council¡¯s Universal Periodic Review (UPR) has now completed two cycles, meaning that every State in the world has submitted to detailed review of its human rights status by its peers and accepted recommendations for improvement, which are often extremely precise. This is the only human rights mechanism to ever achieve truly universal participation¡ªno small feat.
To watch a live webcast of a UPR session, with a high-level delegation responding to precise and comprehensive queries regarding the gender aspects of social protection systems, conditions in prisons, treatment of migrants, access to justice or the impact of business operations on human rights in a given country is to understand that the world has changed. But UPR recommendations emanate from States and are not a substitute for the legal rigour of the Covenants, or the independence of the experts who serve on the Committees that monitor implementation of the Covenants and other treaties.
This is perhaps best illustrated with examples. In 2011, in implementation of a decision of the Human Rights Committee, which monitors the International Covenant on Civil and Political Rights, Argentina agreed to pay compensation and a monthly life pension, and provided a scholarship to an indigenous girl who was raped and subsequently discriminated against by authorities on the basis of gender and ethnicity.2 Consistent with its obligations, the State also took action to ensure non-repetition, introducing compulsory training for judicial officials in the Province of Chaco to prevent gender discrimination and violence against women. This tragic case demonstrates the power of international human rights instruments: where justice has not been served at the national level, international human rights law can provide a last line of defence for the defenceless. By standing with victims and entering into constructive dialogues with States, Committees of experts can advise on the preventive actions required to ensure that violations are not repeated.
The Committees of experts have also clarified the meaning of international law, leading to greater international protection and focus. In 2002, the Committee on Economic, Social and Cultural Rights adopted what is called a ¡°general comment¡± outlining the scope of the right to water within the international human rights framework. This was an important advance, as this right is not specifically mentioned in the treaty but is clearly implicit in the articles protecting the rights to health and an adequate standard of living. As a result of the adoption of General Comment No. 15, the Human Rights Council established the first Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, which in turn led the General Assembly to recognize the human rights to water and to sanitation. Subsequently, 2015 saw the adoption of the Sustainable Development Goals, the sixth of which commits the international com- munity to ensure availability and sustainable management of water and sanitation for all.
The databases and filing systems in my Office are overflowing with similar examples. Human rights laws are not merely dry outcomes of political negotiation, but rather living instruments that can be used by individuals to access justice denied to them at the national level, or interpreted for the twenty-first century by Committees of experts to ensure that no one is left behind. The recommendations of Committees, UPR or independent experts appointed by the Human Rights Council are then used in advocacy by civil society organizations throughout the world to effect change at the community, local and national levels. This practical cooperation on the ground is the true essence of human rights work. For, while the ability of an individual to access some of these international mechanisms may depend on ratification of a treaty, human rights are not bestowed by States, but are inherent in the dignity of each and every one of us, and are truly empowering.
The progress in the promotion and protection of human rights over the last 50 years has been enormous, inspiring and deeply humbling. The last five decades have witnessed the adoption of resolutions and conventions dedicated to groups who were previously voiceless in international fora¡ªethnic minorities, women, children, migrant workers, persons with disabilities, and victims of the very worst human rights violations, including torture and enforced disappearance. During this period, work in the field of human rights has increasingly focused on prevention and sharing good practices, from policing reform and detention monitoring to inclusive education. A plethora of guidelines have been proposed and applied, changing lives. We often hear of failures to protect human rights, but how many lives have been transformed by the application of these standards, and how many violations prevented?
While the progress has been awe-inspiring, we must not take it for granted, nor can we be complacent in thinking that it cannot be pushed back. The Human Rights Council is becoming increasingly divided. As established international consensus is challenged on such fundamental human rights issues as the right of refugees fleeing atrocities to seek asylum, and as populists and demagogues dominate national discourses and, in some worrying instances, rise to power, constructive dialogue in the Council on finding solutions to common?? problems is too often replaced with a rehashing of political positions.
These divisions in multilateral fora perhaps reflect the fact that we ourselves have rarely been more divided, with curated news sources that reinforce rather than challenge our views, and deepening inequalities within and among States that effectively segregate us. This division is self-perpetuating. Years of research have amply demonstrated that children who never meet someone from a different background are more likely to grow into prejudiced adults. And adults who live in ethnically, economically or politically segregated societies are unlikely to see those prejudices challenged. Contrary to received ?wisdom, academic research shows that diverse societies are, in fact, less likely to experience conflict. This should not surprise us. After all, most Islamophobes could not name a single pillar of Islam¡ªwe tend to fear what we do not know or understand, not what we see every day, and stereotypes simply cannot survive exposure to reality.
So, where do we go from here? When the marginalized feel more represented in the nostalgia of demagogues than in a human rights discourse that they are told only benefits extremists and prisoners, how do we return from the brink? We stand at a pivotal moment. Contradictory trends pull us in opposite directions, and we are all obliged to take a stand. The fiftieth anniversary of the adoption of the Covenants should be seen as a call to action, to protect the principles they enshrine. To that end, on 10 December 2016¡ªHuman Rights Day¡ªmy office launched the ¡°Stand Up¡± campaign to bring the pursuit of human rights back to the grass roots where it began, and where its greatest power still lies.
We face great challenges, but we must remember that the Universal Declaration of Human Rights and the Covenants based upon it were developed not in some perfect utopia, but as our collective response to?? one of humanity¡¯s greatest atrocities. Together, we must continue to construct an alternative narrative of solidarity and human rights to contradict the demagogues¡¯ message of division and hate. Human rights treaties provide us with the tools to do so. Ensuring that the Covenants are implemented on the ground, far from conference rooms??? in Geneva, requires all of us to stand up with those who risk harassment or discrimination. History has tended towards greater inclusion and justice for all, and by continuing to stand together for human rights, it is within our power to ensure that this trend is not reversed.
Notes
1? These Committees, collectively known as treaty bodies, are mandated to monitor implementation of the core international human rights treaties and, where applicable, optional protocols to those treaties. They are the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, the Committee on the Rights of the Child, the Committee on Migrant Workers, the Committee on the Rights of Persons with Disabilities, the Committee on Enforced Disappearances, and the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
2??? LNP v Argentina, Merits, UN Doc CCPR/C/102/D/1610/2007, IHRL 251 (UNHRC 2011), 18th July 2011, Human Rights Committee [UNHRC].
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