International Protection of Human Rights: Present Realities and Prospects for the Future

By Maria Ihler

In 1973, 25 years after the adoption of the Universal Declaration of Human Rights (UDHR), John Peters Humphrey expressed great pessimism at the U.N.’s lack of effective tools for its implementation. In his speech “International Protection of Human Rights: Present Realities and Prospects for the Future”, he assesses available and potential means for the U.N. to enforce the Declaration.

This speech discusses a fundamental struggle in the field of human rights and international law generally: how do we secure compliance with international treaties, given the principle of non-intervention in states’ internal affairs? Humphrey offers his personal opinion on the UDHR’s potential, taking into consideration topics central to modern debates, such as humanitarian intervention, the efficacy of the U.N., and the power of public opinion.

Identifying key procedures and problems for implementing international human rights, Humphrey’s critique is still valid today, 70 years after he began his work on the UDHR. Humphrey discusses four procedures in particular, and his assessment of their current and potential value, along with an outline of their role today, is presented below.

1. The U.N. bodies

The problem with enforcing human rights through the U.N. is that it is composed of political actors whose interest is the state, not individuals. The fact that the Human Rights Commission (as of 2006 “the Human Rights Council”) is a political body, means national interests easily assume precedence over concern for individuals’ and minority groups’ sufferings, and the primary concerns of the state will thus always influence decisions. Humphrey criticizes states, especially Canada, but does not find it surprising that they are inclined to avoid what they consider unnecessary international tension on rights issues. He sees two solutions: one is employing objective rapporteurs, which will increase both the authority and validity of reports. The second is public opinion, which he considers “the most effective instrument for the promotion of / respect for human rights.”

He considers the Advisory Programme a success, because it employs aid and reward as motivation, encouraging governments to sponsor human rights, thus increasing public attention. Since the ratification of treaties is voluntary, punishments do not encourage participation in the process. As for the idea of a High Commissioner for Human Rights, Humphrey believed that it lacked significant support and was therefore “ready for the waste-paper basket”. Indeed, the office was not established until 1993.

A system Humphrey commends in principle is one that requires reports from governments to the U.N. to demonstrate compliance and progress on human rights. However, he deems the system essentially ineffective, solely due to the lack of U.N. willpower. Not only are the reports too infrequent, there is no proper follow up. Humphrey calls for assessments to be conducted by independent experts, and encourages further independent investigations of suspected violations. Even if states distort or withhold information, Humphrey believes reports ensure international pressure, the most effective instruments there is: “adverse publicity (…) is something to which even authoritarian states are sensitive.” Today, this is the system of the Universal Periodic Review, consisting of three reports by three actors: the state, U.N. agents, and national NGOs.

For national interest not to overpower human rights, and in order to protect individuals and minorities, Humphrey believes what is needed is an independent, objective, judiciary – ideally a Universal Court of Human Rights, such as the European or Inter-American Courts of Human Rights. He was not hopeful of such an institution at the time he gave his speech, and though the U.N. has since expanded its scope of courts and tribunals, there still does not exist a court for the human rights conventions and to which individuals have access. The Human Rights Council as of 2003 accepts complaints from individuals, groups and NGOs regarding repeated, gross violations, but it is not a judicial organ.

Humphrey imagines universal application of human rights as possible only if they become jus cogens, non-derogable custom binding all states. Nonetheless, the fundamental principle of national sovereignty prevents enforcing human rights against a state’s will. The question is whether, in the case of gross human rights violations, it is legal for the international community to intervene by force. Humphrey believed  it was less likely than ever, as the U.N. Charter, art. 2(4), require all members to refrain from threat or use of force against each other, unless there is a threat to international peace, or the government consents to intervention. Contemporary debates show, however, that many states think it should be legal, and it is increasingly a topic of debate after the genocides in Rwanda and Srebrenica in the 1990s. At the U.N. World Summit in 2005, the “Responsibility to Protect” all populations from genocide and crimes against humanity was formally accepted. While the legality of humanitarian intervention is still contested, interventions in the name of human rights are today a much more familiar concept.

Though he considered the UDHR a “very great achievement”, Humphrey did not find its implementation effective. He found the U.N. to be centered on national interests. Yet he still identified room for change, such as independent rapporteurs and follow-up reports. Some of this has since been altered in the direction he desired, while U.N. efficacy, a judicial organ and humanitarian intervention remain unresolved. He concludes that the catalyst for human rights, World War II, is now gone. His critique is still relevant today. Still, there has been an upsurge in what he considers the crucial factor, public opinion, and this is acting as a catalyst for taking action against gross violations to human rights.

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