Among the plethora of issues on the UN’s agenda, few can be considered more important and challenging than the protection of individual human rights. But making sure that people can live in “freedom from fear,” as Secretary-General Dag Hammarskjöld summed up his philosophy of human rights in 1956, is not such a straightforward task as it may appear. 1 The basic problem is simple: the major violators of human rights tend to be states, and states are the major entities that make up the UN.
The central question is this: Is it more important to protect the integrity of a state or the individual being harassed by that state? From that question flow various others, such as: What about those people rendered stateless by violent conflict or ecological disaster? What about people’s right to move within and between nation-states?
Based on historical experience, the answer to the key question has often been somewhat unsatisfying. Protection of human rights, much like the general respect for them, has a contingent quality. The state—regardless of its nature (democratic, authoritarian, totalitarian)—has tended to reign supreme over the individual.
The canon: the International Bill of Rights
Human rights were a central issue at the very founding of the UN. Two mileposts from the 1940s established the UN’s human rights agenda: In December 1946, the first meeting of the Economic and Social Council (ECOSOC) established the UN Commission on Human Rights (UNCHR). One of its key members was Eleanor Roosevelt, the former First Lady of the United States. It was in large part due to her persistence that exactly two years later the General Assembly issued the Universal Declaration of Human Rights, a document that would later be considered a central part of the so-called International Bill of Rights. Upon submitting the text of the declaration to the UN General Assembly in 1948, Roosevelt spoke eloquently:
We stand today at the threshold of a great event both in the life of the United Nations and in the life of mankind. This declaration may well become the international Magna Carta for all men everywhere. We hope its proclamation by the General Assembly will be an event comparable to the proclamation in 1789 [of the French Declaration of the Rights of Man], the adoption of the Bill of Rights by the people of the United States, and the adoption of comparable declarations at different times in other countries.2
The 1948 declaration was based on a simple notion: the “inherent dignity” of all human beings. It linked human rights with international security by maintaining that the respect for human rights “was the foundation of freedom, justice, and peace in our world.” The declaration further specified a number of the most obvious violations of human rights, such as slavery and denial of the right to freedom of expression. The document revealed a certain Western bias when it stressed the equal rights of men and women. But it also stretched the concept of human rights to include, among others, the right to free education, “equal pay for equal work,” and the “right to rest and leisure.”
Among the tasks of UNCHR was to develop additional international human rights legislation that would add specificity and muscle to the Universal Declaration. In 1966 this work led to the adoption by the General Assembly of two additional human rights covenants: the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. As their names suggest, the two covenants focused on different aspects of the original 1948 Declaration.
Together the 1948 declaration and the two covenants of 1966 are known as the International Bill of Human Rights. They are undoubtedly a significant, almost revolutionary, achievement. By the mid-1960s there existed a series of universally approved principles that protected men and women against almost any possible—civil, political, economic, or social—form of discrimination and abuse.
The lengthy list of rights does suggest a number of practical problems. Perhaps most important, the list seems ill-suited to a world of nation-states, especially one loaded with nondemocratic nations. Indeed, the enforcement of the International Bill of Rights has not been spectacularly successful.
The International Bill of Human Rights
To supplement the Universal Declaration of Human Rights (1948), the UN General Assembly approved two additional covenants in 1966. Together, these documents comprise the basic canon of human rights today.
The practice: commissions, rapporteurs and the advance of human rights
In its six decades of existence, the UNCHR went through several stages of development that tended to mirror the overall changes of the UN. In its first two decades the commission focused on the general promotion of human rights but not on condemning violations thereof. The policy was, appropriately, called “absenteeism” and was justified by the UN Charter’s strict adherence to the principle of national sovereignty. More than that, a UN resolution of 1947 explicitly stated that the commission “had no power to take any action in regard to any complaints concerning human rights.” Petitioning the commission was, in other words, pointless.
Many violators—including both the Soviet Union (with its treatment of any political opposition) and the United States (with the institutionalized racism that was prevalent in the southern states)—were let off the hook. When pleas and petitions arrived, the commission could only state that it had “no competence” to investigate them, much less bring any perpetrators to justice. The UNCHR’s authority as an impartial judge of the observance of human rights was therefore damaged from the beginning.
In the mid-1960s the UNCHR moved toward a much more interventionist approach. Part of the reason for the change was the adoption of the International Bill of Rights in 1966. But the other driving force behind the shift was the increase in the number of African states that called upon the UN to condemn apartheid in South Africa. Cold War rivalry over the allegiance of these new states meant that the Soviets and the Americans would not openly object to the new human rights agenda. The UNCHR was thus made “competent”: it was given the power to take unilateral action in the case of gross human rights violations. A forum for the discussion of severe human rights abuses with target countries was established.
Accordingly, in the 1970s and 1980s the commission’s reach expanded. It was given an indirect boost by the 1975 Conference on Security and Cooperation in Europe (CSCE) that drew a link between human rights and international security (albeit only in the context of Europe). New regional (and even country-specific) and thematic working groups (for example, on minorities or torture) were formed to allow for the in-depth investigation into human rights abuses. A number of Special Rapporteurs were sent out on fact-finding missions to report on specific cases. As a result of such actions, the reporting on human rights violations certainly improved.
UN Special Rapporteurs have a specific mandate (normally for three years) to investigate, monitor, and recommend solutions to human rights problems. They often conduct fact-finding missions to countries to investigate allegations of human rights violations. But they can visit only those countries that have invited them. Rapporteurs also assess complaints from alleged victims of human rights violations.
UN Special Rapporteurs
UN Special Rapporteurs have a specific mandate (normally for three years) to investigate, monitor, and recommend solutions to human rights problems. They often conduct fact-finding missions to countries to investigate allegations of human rights violations. But they can only visit countries that have invited them. Rapporteurs also assess complaints from alleged victims of human rights violations.
The Rapporteurs have no legal powers and cannot take action against governments. They can lobby a government and urge it to respect human rights. They can also raise negative publicity by issuing press statements. Their effectiveness is, as a result, highly suspect and contingent.
In 2014 there were more than thirty Special Rapporteurs that could be divided into two groups, those concerned with specific countries (Burundi, Cambodia, Eritrea, North Korea, Sudan, and others) and those who held thematic mandates from the Human Rights Council (Right to Education, Freedom of Religion, Racism, Sale of Children, Trafficking of Persons etc.).
The enforcement capabilities of the Rapporteurs are limited. They have no legal powers and cannot take action against governments. They can lobby a government and urge it to respect human rights. They can also raise negative publicity by issuing press statements. Their effectiveness is, as a result, highly suspect and contingent. For a long time, the presence of a Special Rapporteur on Myanmar since 1992 has done nothing to quell the dictatorial conduct of that country’s military junta. If anything, Myanmar’s leadership engaged in some of the most brutal repression in the fall of 2007 and continued to keep the leader of the battered opposition, Aung San Suu Kyi, under house arrest (a status she has “enjoyed” since the late 1980s). A military government, such as Myanmar’s, bent on ignoring external opinion, is highly unlikely to change its conduct on the basis of criticism from the UN.
In the end, the overall respect for human rights—in the form of democratization—made rapid advances in the 1980s, culminating in the collapse of the totalitarian order in Eastern Europe and the Soviet Union in 1989–91, the end of apartheid in South Africa, and democratic reforms in a number of Latin American countries. Even as violations did continue—most spectacularly the 1989 Chinese government’s crackdown on student protesters in Beijing’s Tiananmen Square—the International Bill of Rights was finally being taken seriously around the globe.
The role of the UNCHR in the process was not necessarily evident, however. It had allowed the most flagrant cases of human rights abuses to go unnoticed. In the People’s Republic of China (PRC), Mao Zedong’s Great Leap Forward in the 1950s had caused the deaths of millions (some argue thirty million) of his countrymen; that not being enough, Mao engineered another widespread terror campaign in the late 1960s known as the Cultural Revolution. As “punishment” the PRC took Taiwan’s seat in the UN and became a permanent member of the Security Council in 1971. Other cases that went virtually unnoticed included the Soviet and Warsaw Pact crackdowns in East Germany (1953), Hungary (1956), and Czechoslovakia (1968). In Cambodia, the Khmer Rouge managed to kill millions (one-eighth of the country’s population) in the late 1970s until it was deposed following an invasion by another consistent violator of human rights, Vietnam. Democratization and the growing respect for human rights that accompanied it was as much, if not more, the result of the shifting international environment—the collapse of the cold war international order—than the increased activity of the UN in the field.
In fact, by the 1990s the Human Rights Commission had lost much of its status as a potentially effective guardian of human rights. There were many reasons for this. The Special Rapporteurs, as we read earlier, could visit only those countries that invited them; a major violator was unlikely to do so. The commission itself consisted of fifty-three members, many of them representing countries that were committing—or were implicated in committing—human rights violations (such as the People’s Republic of China, Algeria, and Syria).
The central problem that emerged and remains can be summarized as follows. The UNCHR was supposed to stand above the interests of nation-states and render impartial judgment based upon broadly accepted certain legal standards. But over the years, the commission became excessively politicized and was, in the end, unable to fulfill its mission effectively during the Cold War era. By the early 1990s it had lost much of its credibility.
The response to such concerns was in some ways a typical UN one: organize a big conference. The World Conference on Human Rights, which had been first proposed by the General Assembly in 1989, finally met in the summer of 1993 in Vienna. It brought together representatives from 171 countries and 800 NGOs, as well as academics and other interested parties. On June 25, 1993, the conference adopted the Vienna Declaration and Programme for Action, a document that emphasized the protection of women’s, children’s, and indigenous people’s rights. It also established the office of the High Commissioner for Human Rights (OHCHR), which represented a major organizational step. The process of reform had started.
Agendas and structures in the new millennium
The follow-up to the 1993 Vienna Conference was almost immediate. The first High Commissioner for Human Rights, Ecuadorian judge José Ayala Lasso, took office in April 1994. He was followed by former Irish president Mary Robinson (1997–2002), who had apparently been head-hunted for the job by Secretary-General Kofi Annan. A highly popular and successful politician, Robinson became a tireless global advocate of human rights. The first High Commissioner to visit Chinese-occupied Tibet, Robinson did not shy away from controversial arguments; she even criticized her native Ireland for exploiting foreign workers and attacked the use of capital punishment in the United States.
Upon her retirement in 2002, Robinson was followed by another high-profile High Commissioner, Brazil’s Sergio Vieira de Mello. A veteran of a number of refugee crises, de Mello had been a UN “careerist” since the late 1960s. He had won praise in the international press for handling the transition of East Timor (Timor Leste) from Indonesian occupation to independence between 1999 and 2002. Many thought of him as a potential successor to Kofi Annan, but his career ended tragically. In May 2003, de Mello accepted yet another high-profile mission, becoming the Secretary-General’s Special Representative to occupied Iraq. In August 2003 de Mello was killed in Baghdad after a terrorist attack. The UN is often criticized for its high-flying and overpaid diplomats. De Mello surely fit that description. Yet the circumstances of his death were a shocking reminder—almost at a par with the death of Secretary-General Dag Hammarskjöld in the Congo during a mediation mission—of the dangers inherent in working for the international organization.
Since de Mello’s death, the High Commissioner’s office was occupied by the Canadian human rights lawyer Louise Arbour. Her appointment signaled a shift toward a more legalistic approach. Arbour, a member of Canada’s Supreme Court, was the former Chief Prosecutor of War Crimes before the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia in The Hague. In that capacity she indicted Yugoslav president Slobodan Milošević for war crimes. The significance of the act was that Milošević was the first serving head of state called to account. Thus, Arbour’s term as the High Commissioner saw the doubling of the efforts at making human rights abusers face trial.
In addition to the sheer force of the personalities that have served in the post, the establishment of the High Commissioner’s office was a landmark shift in a number of other ways. Holding the rank of UN Under-Secretary-General, the OHCHR is near the top of the UN’s hierarchy. Headquartered in Geneva, the OHCHR has established a global presence by creating a network of regional and country offices and by assigning human rights advisors to individual areas. All of this activity—as well as a general push to emphasize a human rights agenda by successive UN Secretaries-General (Boutros Boutros-Ghali and Kofi Annan)—has had a positive impact. In the twenty-first century it has become increasingly difficult for human rights violations to go unnoticed.
Unfortunately, this does not mean that such violations have ended. In its first few years of operation the OHCHR had to face to a series of crises, such as ethnic cleansing in former Yugoslavia (including the 1995 Srebrenica massacre of Bosniaks by Serbs) and the 1994 genocide in Rwanda that resulted in the systematic killing of an estimated 800,000 ethnic Tutsis. In the end, even the most energetic of High Commissioners, such as Mary Robinson, could do little to stop determined violators from ignoring the basic principles of human rights, be they the Taliban in Afghanistan, Saddam Hussein’s regime in Iraq, communist governments in China or—much worse—in North Korea, or the many one-party dictatorships in sub-Saharan Africa.
Such black spots did not mean that there was no progress. In Central America, democratization progressed as the region left behind a long legacy of right-wing totalitarian rule and human rights abuses. To make sure that progress toward implementing good human rights practices is being made, the OHCHR works with national governments and occasionally, as it did in 2004 in Guatemala, opens field offices in order to monitor developments in particular countries. In many parts of Africa, the OHCHR’s thirteen field offices exert similar control and pressure—assuring that everything from children’s rights to voting rights is being observed. The challenges are great. Since its transformation from apartheid to democracy, South Africa has stood as a hopeful example of the steps taken forward in the advancement of human rights. Yet, in 2014 the OHCHR’s South African Bureau in Pretoria listed a staggering number of goals for its operations, ranging from educational campaigns to pressuring the government into improving its efforts to protect minorities and marginalized groups.
In fact, the biggest challenge for the OHCHR is the sheer number of issues—or abuses—that it has to deal with. In September 2014, for example, the OHCHR held meetings on arbitrary detention, involuntary disappearances, the rights of persons with disabilities, the fund for victims of torture, and held committee discussions about the rights of children and on the rights of migrant workers and their families. The ultimate irony though is that no matter what this or that commission or working group in Geneva decided to recommend, the OHCHR had very few tools of implementation.
The International Criminal Court and the Human Rights Council
The paradox between massive abuses and encouraging improvements in the world’s human rights record pointed to a need for further strengthening the existing UN structure. In the early twenty-first century this resulted in two important developments.
First, there was the establishment of the International Criminal Court (ICC) in 2002. Headquartered in The Hague, the ICC became a permanent tribunal to prosecute individuals for genocide, crimes against humanity, and war crimes. To be sure, the ICC suffers from several weaknesses: it can prosecute only crimes committed after July 1, 2002; it cannot prosecute individuals for crimes of aggression; and a number of countries have not become members of the ICC.
Most importantly, although US President Clinton signed the founding treaty of the ICC (the Rome Statute), in late 2000 (the treaty establishing the ICC was actually negotiated in 1998), he immediately announced that he would not submit it to the US Congress for ratification until several changes were made. In 2002, the Bush administration informed the UN that it had no intention of joining the ICC. There was little surprising in this American attitude. Both presidents were, in fact, reflecting a bipartisan consensus in the United States that considered the ICC to be an infringement on American national sovereignty. “It is an agreement that is harmful to the national interests of the United States, and harmful to our presence abroad,” commented John Bolton, the Bush administration’s ambassador to the UN. Basically, the Democrats and Republicans tended to share a broad agreement over the fact that only American courts should be allowed to judge American citizens. Another argument against the ICC was that since Americans were serving abroad in more than one hundred countries, they could be subjected to “frivolous or politically motivated persecutions.”3 Not for the first time, nationalism collided with universalism at the UN.
Second, the UN Commission on Human Rights (UNCHR) was replaced by the UN Human Rights Council (UNHRC) in 2006. Aside from the name change, the major purpose of the change was to address the criticism often targeted at the commission: that it tended to give high-profile positions to countries that were well-known abusers of human rights. In this regard, the 2003 election of Libya to the chairmanship of UNCHR had been the last straw to the growing body of skeptics. Thus, over the next few years the statutes of the UNHRC were drafted, negotiated, and, on March 15, 2006, voted upon. The resolution calling for the establishment of the UNHRC specifically stated that “members elected to the [Human Rights] Council shall uphold the highest standards in the promotion and protection of human rights.” The resolution passed with surprising unanimity: 170 members (out of a total of 191) voted affirmatively at the General Assembly.4
Only four countries voted against; among these was, as in the case of the ICC, the United States. Like the Marshall Islands, Palau, and Israel, the Americans claimed that the Human Rights Council would suffer from exactly the same problems as its predecessor: it would have too little power and would easily be overtaken by countries that abused human rights on a regular basis. In fact, a number of such countries, including Belarus, the Central African Republic, Iran, Liberia, North Korea, and Venezuela, abstained from the vote.
The critics were not entirely off the mark: many of the changes were cosmetic. Instead of the fifty-three-member UNCHR, the UNHRC would have forty-seven seats, each representing one of the UN member countries. Such streamlining aside, the seats are distributed among the UN’s regional groups as follows: thirteen for Africa, thirteen for Asia, six for Eastern Europe, eight for Latin America and the Caribbean, and seven for Western Europe and Oceania. The countries are elected for three-year terms (renewable once) by a majority vote at the General Assembly, in a secret ballot. As an additional check any council member may be suspended by a two-thirds vote of the General Assembly. This apportionment may seem democratic in terms of the distribution of the globe’s population, but it hardly did justice to the fact that it might be difficult—at any given time—to find thirteen countries in Asia or Africa with acceptable (let alone exemplary) human rights records. In 2007, for example, Nigeria, the People’s Republic of China, and Azerbaijan were members despite being under criticism for their respective governments’ abuse of power.
Perhaps the most glaring controversy regarding the Human Rights Council—as well as the overall human rights regime (including the ICC) in the twenty-first century—is the role of the United States. As a result of its refusal to join the ICC, a number of European countries cooperated in voting the United States out of the Commission on Human Rights in 2001. Although it was allowed to return two years later, the United States responded by boycotting both the ICC and the UNHRC. What has kept the United States out of the new human rights regime is, basically, the same conundrum that has handicapped the UN in so many other fields as well: the contradicting demands of national sovereignty and national security on the one hand, and universalism on the other hand. At the same time the American government continues to portray itself as a champion of human rights; indeed when compared to many members of the UNHRC or the ICC, Washington’s record was practically sublime until the outbreak of news regarding the abuse of terrorist suspects at the American base in Guantanamo Bay, Cuba, in 2003, and the use of torture by Americans at the Abu Ghraib prison camp in Iraq in 2004.
It is perhaps understandable that the United States would not want its citizens dragged in front of the ICC for, say, war crimes in Iraq. But by remaining outside the ICC and the UNHRC, the Americans send an unfortunate signal to other governments, which are engaged in large-scale human rights abuses, to follow suit. In part because of this, the Obama administration decided to join the UNHRC in 2009.
The question that faces the UN as a result is how to address the consequences of the inevitable violations of human rights. The ICC, for example, was created to address one part of the challenge: the need to bring to justice those that had committed crimes. But that remains a long-drawn-out process.
Human security and the “responsibility to protect”
The term “human security” became common usage after the 1975 Helsinki Conference on Security and Cooperation in Europe. The signing of the so-called Helsinki Accords in early August 1975 was a remarkable feat of multilateral diplomacy: thirty-five European countries as well as the United States, Canada, and the Soviet Union agreed on a document that established such basic rules as the inviolability of post-1945 borders in Europe. Most controversially at the time, however, the Helsinki Accords included a number of clauses—hidden in “Basket III” of the document—that emphasized respect for human rights as an important element of international security. The 1975 agreements therefore indicated a shift from a narrow state-centered concern over security to a more all-encompassing one. The rights of individuals and human linkages across national borders were given a special place alongside more traditional questions of borders. At the height of the Cold War a motto from the Helsinki conference captured the basic idea: “Security is not gained by erecting fences; security is enhanced by building bridges.”
In the twenty-first century “human security” has entered into common usage as shorthand for the concerns and practices that deal with the many faces of, and close relations between, freedom from fear and freedom from want. Reflecting the significance of the concept, Secretary-General Kofi Annan established the Commission on Human Security (CHS) in early 2001. The commission delivered its final report in 2003, proposing:
a new security framework that centers directly and specifically on people. Human security focuses on shielding people from critical and pervasive threats and empowering them to take charge of their lives. It demands creating genuine opportunities for people to live in safety and dignity and earn their livelihood.