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6. Implementation of Human Rights

6.1 Introduction

The framers of the UDHR, led by Eleanor Roosevelt, envisaged three parts to the postwar human rights enterprise: a set of general principles; the codification of those principles into law; and practical means of implementation.1

Today implementation takes many forms, ranging from top-down monitoring by human rights treaty bodies and adjudication by international courts and tribunals, to capacity building in civil society organizations and human rights education at the grass-roots level. We should recognize that effective implementation includes not only retrospective complaint mechanisms, but also forward-looking efforts to cultivate respect for human rights. This is reflected in the mandate of the Office of the High Commissioner for Human Rights, which is both to promote and protect human rights.

The Commission’s starting point in considering human rights implementation is Article 28 of the UDHR, which provides that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” This statement invites us to focus on the disparity between the world as it is, and the world we should hope to live in. More specifically, it raises the question of why the human rights embedded in the UDHR are far from realized today, and what more the international community can – and must – do to make real the ideal of human rights for all. This section of the report deals with that challenge.

In sections 6.2 and 6.3, we look at particular areas of rights, to give an indication of how the implementation of human rights is faring, and we develop a number of specific suggestions. In 6.4, we take on some more general issues about sovereignty and state responsibility, identifying the obstacles to and the opportunities for the greater vindication of human rights.

6.2 State of play on representative rights

The Commission has considered the implementation of the following representative provisions of the UDHR: the anti-slavery provision (Article 4); the anti-torture provision (Article 5); the free expression provision (Article 19) and the free association provision (Article 20); and the education provision (Article 26). We singled out these articles because they represent some of the most pressing human rights concerns of the early twenty-first century.

We set out below short summaries of the Commission’s conclusions with respect to each of these rights. The full case studies, on which these findings are based, are set out in Online Appendix E.2

a. Anti-slavery (Article 4)

Slavery constitutes a profound human rights violation and an affront to any sense of human dignity. While definitions vary, at its core slavery involves one person taking away another person’s freedom – their freedom to leave their workplace or employer/slavemaster at their own choosing, to control their body, to choose their work – so that they can be exploited. This is achieved not through lawful means (as is the case with military service or imprisonment) but through threats, violence, or coercion.

The concept of slavery and slavery-like practices can cover a range of practices, including forced labor (e.g., debt bondage, serfdom, and forced sex work), exploitative child labor (e.g., child soldiers), descent-based slavery, forced or servile marriage (e.g., exchanging a woman for payment), and human trafficking. They all have in common an inability for the individual to leave a workplace or employer/slavemaster at their own free will.

Article 4 of the UDHR asserts that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” This prohibition has been reaffirmed in a range of treaty provisions: Article 8 of the ICCPR, Article 5 of the African Charter on Human and Peoples’ Rights, Article 6 of the American Convention on Human Rights, Article 10 of the Arab Charter on Human Rights, Article 13 of the Association of Southeast Asian Nations Human Rights Declaration, and Article 4 of the European Convention on Human Rights. The Rome Statute of the International Criminal Court criminalizes, as crimes against humanity, enslavement, sexual slavery, and enforced prostitution. As war crimes, it criminalizes sexual slavery and enforced prostitution. In addition, there are a number of conventions that aim to eradicate slavery, most notably the 1926 Slavery Convention, as amended by the 1956 Supplementary Convention on the Abolition of Slavery; the 2000 International Labour Organization Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour; and the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. In 2007, the Human Rights Council established a Special Rapporteur on contemporary forms of slavery, including its causes and consequences.

Despite this extensive array of treaty provisions embodying the spirit of Article 4 of the UDHR, slavery persists across the world, even in countries that have ratified anti-slavery treaties. According to ILO estimates, almost 21 million individuals across the globe were forced laborers in 2012; 11.4 million of them were female and 9.5 million were male. Walk Free estimates of modern slavery – which include forced marriage – place the number of people living in servitude far higher at 35.8 million. Children are particularly vulnerable, especially as child soldiers, domestic servants, and sex slaves. Against this reality, the U.S. Department of State estimates that there are only around 10,000 prosecutions annually for human trafficking offences.

Clearly, the task of preventing slavery is not as straightforward as simply declaring it to be illegal. Slavery has different root causes, and many factors that sustain both vulnerability to enslavement and the impunity of offenders. Conflict, corruption, poverty, and discrimination are key drivers of vulnerability, as are historical relationships of power, colonialism, and exploitation – relationships that have become embedded in local culture and social norms. Weak rule of law, the failure of legal systems to operate effectively across international borders, failure of social safety nets, and even the normalization of some forms of exploitation facilitate the continued existence of slavery.

Ending slavery is deeply connected with the mission of the UDHR. This will require a deep focus on discrimination and inequality, and the systems that allow these to persist. It will require governments, corporations, and private citizens to focus serious attention (and resources) on practical realization of the social and economic rights that allow people to protect themselves from slavery, whether this is through social insurance in times of shocks, food and shelter in times of crisis, or their ability to access decent work. It will require governments to address the corruption that perpetuates the impunity of offenders.

b. Anti-torture (Article 5)

Torture has enduring effects on the physical, mental, and emotional well-being of its survivors, crippling or destroying their abilities to pursue fulfillment and happiness. In many nations, torture is used to extract confessions from alleged criminals or political prisoners. Torture is utterly inconsistent with basic human rights.

Article 5 of the UDHR states: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Since torture has devastating consequences for its victims, the international prohibition against it is absolute. Article 7 of the ICCPR reaffirms the UDHR’s proscription of torture, and expressly bans non-consensual medical or scientific experimentation. Most importantly, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment obliges every country to take effective legislative, administrative, and judicial measures to prevent torture in any territory under its jurisdiction (Article 2.1), and forbids states from sending a person to another state where they would be in danger of being tortured (Article 3). The 158 state parties to CAT are required to ban the use of evidence obtained through torture in their courts (Article 15). In addition, CAT provides that all state parties must ensure “education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel,” or any other persons who are involved in interrogations of those arrested, detained, or imprisoned (Article 10.1).

The repudiation of torture is supposed to be realized in international law through three primary mechanisms. First, CAT establishes a Committee against Torture that reviews reports submitted by state parties on the measures they have taken to fulfill their obligations under the convention. The Committee also initiates inquiries concerning allegations of systematic torture by a state party. Second, the Optional Protocol to CAT (OPCAT) establishes an international inspection system for places of detention with the objective of preventing torture, modeled on the system that has existed in Europe since 1987 (the Committee for the Prevention of Torture). Third, in 1985 the UN Commission on Human Rights established the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment. The Special Rapporteur examines relevant questions in all countries, regardless of whether a state has ratified CAT or OPCAT.

Nevertheless, torture remains a shamefully common practice. Amnesty International reported that torture occurred in 144 countries – scattered across all continents – between January 2009 and May 2013. Torture takes many forms. In 2013 to 2014 alone, Amnesty International documented over 27 variants worldwide, the most common of which were beatings, electric shocks, stress positions, extended isolation, and whipping.

Why is torture so persistent and pervasive? First, many countries have not adopted domestic laws criminalizing it. Second, even where there are laws against torture, real steps to bar it are often not taken. Third, victims frequently come from the ranks of the marginal and the vulnerable such as minority groups, the poor, and opposition political parties and movements. They have little or no power to demand and obtain redress. Fourth, international efforts to combat torture are limited by a lack of data identifying where violations occur most and who suffers them most. Finally, anti-torture efforts are undermined by the widespread misconception that torture is an efficient and reliable shortcut to establish guilt and secure justice. A survey conducted in 2013–2014 by Amnesty International across 21 countries and 21,000 respondents found that over a third of them agreed that torture is sometimes “necessary and acceptable.”

c. Free expression (Article 19) and free association (Article 20)

Although enumerated in separate articles of the UDHR (Articles 19 and 20), freedom of opinion, expression, assembly, and association (collectively, expression rights) are inextricably linked. Expression rights are both essential for good government and central to the affirmation of the dignity of every individual. They are accordingly the hallmark of a free and open society.

Article 19 affirms: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Article 20 is similarly emphatic: “(1) Everyone has the right to freedom of peaceful assembly and association,” and “(2) No one may be compelled to belong to an association.”

Articles 19, 21, and 22 of the ICCPR collectively declare wide-ranging rights in the domains of opinion, expression, assembly, and association. Article 19 guarantees the right to “hold opinions without interference,” as well as the ability to “seek and impart information and ideas of all kinds [...] through any other media regardless of frontiers.” Article 21 upholds the right to peaceful assembly, while Article 22 insists on the right to free association, including, notably, “the right to form and join trade unions.” Article 8 of the ICESCR extends the right to trade unions to national and international confederations, and clearly enshrines the right to strike as a bargaining tool. The ICCPR and ICESCR establish a set of exceptions to expression, assembly, and association rights, for the protection of national security, public order and safety, and public health and morals.

A number of other international treaties have widened the writ of the ICCPR and the ICESCR, setting out distinct prohibitions against specific types of dissent-suppression. Most prominently, the Convention for the Elimination of all Forms of Discrimination Against Women and the Convention on the Rights of the Child explicitly declare that expression rights are women’s rights and children’s rights too. Regional treaties – including the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and People’s Rights, and the ASEAN Human Rights Declaration – have likewise broadened the recognition of expression rights in the post-war period. Generally, regional treaties have followed the template of the ICCPR, protecting conscience, expression, association, and assembly – with exceptions for public health and morals, national security, public order, and harm to others’ rights and reputations.

Although there has been a degree of progress in securing expression rights, they are not observed today in many parts of the world. The Commission notes that three actors bear particular responsibility for advancing expression rights: states, international organizations, and corporations.

States are obviously of key importance here. Although many national constitutions affirm rights to freedom of opinion, expression, assembly, and association, they are impermissibly circumscribed by states. Restrictions on expression rights must be proportionate, necessary, and lawful in order to be justified. However, many countries routinely suppress expression, particularly political dissent. State interference in four areas is of pressing concern: first, Internet censorship and surveillance; second, the blocking of funds to civil society organizations (CSOs); third, burdensome restraints on assembly; and fourth, the detention of and violence directed at journalists.

International organizations must also defend and extend expression rights. Currently a number of international organizations erect barriers to CSO participation and engagement with their work. They should reduce barriers to participation in their decision-making and foster active stakeholder engagement. Corporations too have an obligation to observe expression rights, including the right to unionize and to protest near places of business.

d. Education (Article 26)

The right to education is both a human right in itself and an indispensable means of realizing other human rights. Education empowers individuals to raise themselves out of poverty and advance their socio-economic status. Politically and socially, education offers people the necessary skills to identify common goals, assume a full and active place in community life, recognize manipulative media practices, and resist oppression. Despite its vital importance in securing human rights and advancing socio-economic development, education commands too little media attention. There is a stubborn and unacceptable gap between education needs and available resources. Indeed, total global financial support for education has actually fallen in recent years.

The right to education is articulated in Article 26 of the UDHR, which emphasizes universality, equal access, and the role of education in promoting respect for human rights and tolerance among nations and social groups. The right to education is likewise reaffirmed in Article 13 of the ICESCR and Articles 28 and 29 of the CRC. The major regional human rights instruments similarly recognize a universal right to education, including the African Charter on Human and Peoples’ Rights (Article 17(1)), the European Convention on Human Rights (Article 2 of the First Protocol), and the Association of Southeast Asian Nations’ Human Rights Declaration (Article 31). One exception is the American Convention on Human Rights, which lacks a specific provision on education. The Commission on Human Rights appointed a Special Rapporteur on Education in 1998. In 2000, the Special Rapporteur developed the Right to Education Project, supported by prominent international NGOs, including ActionAid International, Amnesty International, Save the Children, and Human Rights Watch. Again and again the international community has set higher goals for progress in education. Quantitative targets have been set in the Millennium Development Goals (MDGs), the Education for All (EFA) movement, and the SDGs.

Unfortunately, although gains were made on these goals in the early 2000s – reducing the number of out of school children from 120 million to less than 60 million – further progress has stalled. For example, in recent years, the number of out of school children has increased from 58 to 59 million. In order to reverse this trend, the 4-A framework for education must be fulfilled. The 4-A framework emphasizes availability of educational institutions and programs, the physical and economic accessibility of educational institutions and programs to everyone without discrimination, the acceptability of curricula and teaching methods (e.g., culturally appropriate and good quality), and the adaptability of education to diverse social and cultural settings, as well as to students’ special requirements.

There are four primary barriers to achieving the right to education: first, lack of investment and finance; second, economic barriers to access for both children and adults; third, discrimination, particularly gender-based discrimination; and fourth, challenges in large-scale emergency situations. According to a 2015 UNESCO report, an annual financing gap of 39 billion USD will have to be met from 2015–2030, totaling 585 billion USD over the fifteen-year period, if the international community is to achieve universal pre-primary, primary, and secondary education of decent quality in low and lower-middle income countries.

Delivering the right to education has far-reaching benefits. The Global Partnership for Education estimates that the increase in women’s education, for instance, has prevented over four million child deaths. Similarly, if all children were to acquire basic reading skills, the Partnership estimates that 171 million people would be lifted from poverty, a reduction in global poverty rates of 12 percent. Over 40 years, a mere 0.1 percent improvement in a country’s educational equality can increase per capita GDP by 23 percent.

e. Summary

In our examination of the implementation of select rights in the Declaration – which looked beyond the representative rights we have listed here – a number of themes emerged.

First, the UDHR represents the founding document in a process of progressive elaboration of human rights. As we approach the 70th anniversary of the Declaration, this achievement should be celebrated.

Second, historic progress has been made in the promotion and protection of rights since 1948, including the development of a body of human rights law and implementation mechanisms that simply could not have been envisioned in the 1920s and 1930s. It is vital to account for, understand, and take this development seriously as a platform for further progress.

Third, despite the gains, we must recognize and respond to the reality that human rights continue to be violated on an alarming scale across the globe, even by nations that have signed the relevant human rights treaties. Our case studies demonstrate that it is the poorest people and countries, and the most vulnerable members of society – particularly women and children, ethnic and religious minorities, migrants and refugees, and persons with disabilities – who are most susceptible to human rights violations. They also remind us that violations are conducted and perpetuated not only by states, but also by international organizations, corporations, and private persons.

Fourth, the fullness of human rights will only be achieved through multiple overlapping and coordinated mechanisms. We need mechanisms that operate at both the international and national levels, and which engage both governmental and non-governmental institutions. Human rights education also has an indispensable role to play.

The Commission hopes that the brief case studies appended illustrate the great challenges that remain in achieving the widespread and regular application and enforcement of human rights standards. It is beyond the scope of the Commission’s work to examine the full range of mechanisms that promote and protect rights. Instead we have identified four areas for particular analysis: first, the UN system of human rights implementation; second, national and regional legal systems; third, non-governmental organizations; and fourth, human rights education. In singling out these four areas, the Commission does not suggest that other mechanisms are not important. They are. The project of human rights implementation will require ongoing analysis, review, and hard work in the decades ahead.

6.3 Suggestions on implementation

a. Recommendations for strengthening the UN system on human rights implementation

Much action is still needed to ensure that the rights so eloquently espoused in the UDHR, and codified by the later covenants and conventions, are made realities in life as well as law. In this section, the Commission supports a number of existing proposals for improving the UN system for the protection of human rights. We call on the UN to establish a commission to consider these and other proposals for realizing Article 28 of the Declaration.

i. Implement the recommendations of UN human rights mechanisms

There are different human rights monitoring mechanisms in the United Nations system, based either on the UN Charter or on UN treaties. The most prominent Charter-based bodies are the Human Rights Council and its regime of Special Procedures and the Universal Periodic Review (UPR). Of the ten current human rights treaty bodies, nine monitor implementation of the core international human rights treaties while the Subcommittee on Prevention of Torture monitors places of detention in states that are party to the Optional Protocol to the Convention against Torture.

The UN human rights mechanisms produce a rich array of findings, decisions, and recommendations, many on a country-by-country basis, including recommendations adopted by treaty bodies after examining the implementation of a human rights treaty by a state party; recommendations issued by Special Procedures of the Human Rights Council in reports on country visits, thematic reports, and communications on individual cases; recommendations stemming from the UPR; and recommendations of commissions of inquiry, fact-finding missions, and other ad hoc human rights investigations initiated by the Human Rights Council, the Security Council, the High Commissioner for Human Rights, or the UN Secretary-General.

But the problems and priorities identified through UN human rights mechanisms do not command sufficient attention and action from the international community and the UN as a whole, including its security and development endeavors. The UN should enhance its system-wide support and follow-up aimed at ensuring the findings, decisions, and recommendations made – country by country – by the UN’s human rights mechanisms are enforced through a better alignment between human rights and development. For instance, the OECD Development Assistance Committee should recognize that, in order to be effective, official development assistance must increasingly address the good governance, rule of law, and human rights gaps revealed by the human rights mechanisms, especially when recipient countries accept and agree with stipulated changes.

ii. Enhance the OHCHR’s field presence

Away from its headquarters in Geneva, the operations of the Office of the High Commissioner for Human Rights’ (OHCHR) can be strategic entry points for pursuing human rights at country level, integrating a human rights perspective into the work of United Nations country teams and peace missions, and strengthening national institutions and civil society. OHCHR’s field operations already scrutinize the human rights situations in specific countries, while also building the capacity of Member States and other duty-bearers to address shortfalls and abuses.

Over the years, the OHCHR has gradually widened its presence in the field; however, its operations are not yet fully fit for purpose. First, OHCHR is underrepresented: it has 65 field presences but only 13 country offices – compared to the World Bank or United Nations Development Programme, for example, which maintain permanent offices in well over 100 member countries. Moreover, the OHCHR’s regional offices provide no coverage in North-East Asia, South Asia, and North America. Second, its field operations are underfunded. Indeed human rights account for less than 3 percent of the UN’s regular budget, which inhibits the ability of the OHCHR to effectively monitor and champion human rights on the ground.

The UN should expand the OHCHR’s regional and country field presence and significantly raise its financial support for priority human rights activities in line with countries’ legal obligations and political commitments made in the UPR. This is crucial to strengthening national human rights protection systems through development cooperation as well as peace-keeping and peace-building budgets. It will enhance the prevention of violations and the success and sustainability of peace and development efforts.

Of course, none of this is of any consequence unless states cooperate with, allow access for, and do not inhibit or intimidate UN personnel seeking to promote and protect rights and to investigate alleged abuses.

iii. Raise human rights concerns for consideration by the UN Security Council

There is no formal procedure permitting UN human rights bodies to take the initiative in raising an issue for consideration by the Security Council. In recent years, it has become increasingly common for the OHCHR and the Special Procedures of the Human Rights Council to brief the Security Council through an informal procedure known as the “Arria-formula.” However, such sessions can be convened only at the initiative of a member or members of the Security Council and then the extent to which such sessions are convened depends on the Presidency of the Council.

Human rights concerns are root causes of conflict, and early action by the UN system and the international community can prove critical in averting violence. The Secretary-General already has the power under Article 99 of the UN Charter to bring to the Security Council any matter that may threaten the maintenance of international peace and security. We urge the Secretary-General to exercise this power whenever advised to do so by the High Commissioner for Human Rights, the Special Procedures of the Human Rights Council, or the heads of the human rights components of UN peace missions.

iv. Limit the UN Security Council veto in the case of mass atrocities

Again and again, vetoes or threats of vetoes by permanent members (the P5) have blocked Security Council action to maintain international peace and security in a range of crises. The Council’s inability to act on behalf of civilians in Syria and elsewhere has not only had a massive cost in human life, but has dangerously eroded the credibility of the UN system. Inaction has given the green light to perpetrators to engage in ever more flagrant human rights abuses.

To address this, France has proposed that the P5 voluntarily suspend veto rights in situations involving mass atrocities. In the wake of the events in Syria, France has argued that such a step would enhance the legitimacy of the Security Council, strengthen its integrity, restore the power of discussion and constructive negotiation, and convey the will of the international community to make the protection of human life a true priority. The logic here is clear: when the misuse of the veto blocks action to stem atrocities, it contravenes the principles of the UN. All Member States should support the French initiative for restraining the veto in the case of mass atrocities.

More generally, the P5 should accept an affirmative obligation to offer a reasoned justification for any exercise of the veto, and to propose an alternative plan in accordance with international law to achieve the same objectives.

v. Harness technology to enhance human rights accountability

Advances in technology since 1948, and particularly the creation of the Internet, present an unprecedented opportunity to amplify human rights accountability. The UN should encourage and enable the development at the country level – by national human rights institutions and (currently only a few) Parliaments’ Human Rights Committees – of online platforms through which citizens can rate their governments’ performance on human rights issues. This can empower citizens to exert pressure on governments responsible for violations.

In addition, we recommend a direct mechanism supported by the UN, which could take two forms. First, an online “complaint clearinghouse” would let citizens register complaints about human rights abuses directly with the UN. The clearinghouse would help overcome existing data shortcomings on human rights and enable the OHCHR and other human rights mechanisms to target their activities more accurately. Second, a global human rights wiki, accessible to and editable by recognized human rights organizations, would equip the relevant actors to readily combine and share data regarding ongoing crises, improving both the speed and effectiveness of global responses. The UN should consider these measures and others to harness new forms of technology that can widen the writ and reach of human rights for all in the twenty-first century.

As such mechanisms are put in place, we should meet the inevitable need to provide protection and security for those who take the risk of identifying and complaining about human rights violations. Encryption of the relevant technology can have the effect of encouraging people to submit testimony and evidence that might then be put to good use by the international community.

b. National and regional legal systems

Many of the suggestions we have made have to do with global institutions and NGOs. However, we should never forget a point we have stressed a number of times in this document, that the front-line work of upholding human rights is always conducted under the auspices of national constitutions and bills of rights. They are intended to provide primary protections, through national legal systems. And any account of implementation must look to them, in the first instance, because at too many times and in too many places, between the intention and the reality falls a dark shadow.

This implies that, as we scrutinize the human rights records of particular countries, we should pay attention not only to their constitutional arrangements, but also to the work that is being done by lawyers and rights-related NGOs in those countries. So, for example, no account of human rights implementation in the United States can be complete without a full account of the way in which state and national bills of rights operate, nor without an account of the way in which bar associations and groups like the American Civil Liberties Union advocate for the protection of rights domestically. The point is perhaps obvious in the case of the United States. It may be less obvious in developing nations and emerging democracies, where there is a temptation to think that all the work has to be done by outside agencies assisting with development and nation-building.

The judiciary has a pivotal role to play in upholding human rights. Only an independent judiciary can render justice impartially on the basis of law, thereby assuring the rights and fundamental freedoms of the individual. The basic principle is laid down in Article 10 of the UDHR: “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” In this era, however, in country after country, there has been a rising wave of attacks on the independence of judges, lawyers, prosecutors, and court officials, particularly in the form of threats, intimidation, and interference in the discharge of their professional functions. The international community must redouble its resolve to safeguard and enhance the independence and effectiveness of judiciaries worldwide, in line with existing international principles of the rule of law.

Consistent with this imperative, the international community should pay attention to the impact of statutes of limitation governing human rights claims. California became the first American jurisdiction, through recently enacted legislation, to offer survivors of abuse a longer period of time to bring their claims to court. This legislation – California Assembly Bill 15 – extended the period from two years to 10 years for serious transgressions such as torture, war crimes, extrajudicial killing, crimes against humanity, and human trafficking. This reform should provoke a wide-ranging discussion of the procedural obstacles to the effective implementation of human rights.

Regional human rights courts are and can be powerful instruments for the vindication of human rights. This is the purpose of the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples’ Rights. The international community should aim to bolster the role of these institutions, ensuring that they have both sufficient resources and competent personnel. The international community should also encourage the development of new regional human rights courts by the League of Arab States and in Asia and the Pacific. These courts should hear complaints not only from state parties, but also from individuals. All UN Member States should agree to submit themselves to the authority of international tribunals whose jurisdiction can appropriately – geographically or otherwise – be extended to them. Given that compliance has not always been automatic, we reiterate that state parties have a binding obligation under the treaties creating these courts to give effect to their rulings.

At the global level, the UN should consider the creation of a World Human Rights Court, consistent with the principle of complementarity. While this is presently an aspiration, considered and considerable thought should be given to whether a World Human Rights Court could reinforce the maintenance of human rights across the globe.

c. NGOs

The implementation of human rights does not depend just on official institutions. It presupposes and is enriched by a vigilant civil society at national, regional, and international levels. The Human Rights Council already accredits a number of NGOs specifically dedicated to human rights. Such organizations play a frontline role in highlighting the importance of the rights protected in the UDHR, in drawing attention to shortcomings in their implementation, and in naming and shaming governments that are guilty of violations or of failing to protect their citizens from human rights abuses. In light of this, it is especially important that states make reasonable accommodation for NGOs aiming to promote, protect, and investigate violations of human rights.

d. Human rights education

i. The UDHR and human rights education for all

The preamble of the UDHR states that “every individual and every organ of society shall strive by teaching and education to promote respect for these rights and freedoms.”

ii. The UDHR and human rights education since 1948

Since 1948, the ideals of the UDHR and later instruments have gained greater acceptance and achieved greater realization, and human rights education (HRE) has advanced alongside this. In the first few decades after the UDHR, HRE consisted mostly of legal training focused on the formal standards codified by the UN and other intergovernmental organizations, or else popular education carried out by NGOs in the global south. In the 1970s, UNESCO promoted HRE, and social movements adopted human rights discourse to support legal campaigns for the effectuation of human rights at the national and international levels. Meanwhile, as national educational systems were expanding in scope and competence across the world, newer and older democracies alike started and continued to incorporate HRE into formal education, although mostly in the legal rather than the popular sphere.

UNESCO’s third congress on HRE in Montreal in 1993 proposed a world plan of action on education for human rights and democracy, endorsed that same year by the World Conference on Human Rights in Vienna, which proposed a Decade for Human Rights Education. The next year, with the support of HRE NGOs, the UN General Assembly proclaimed that decade would run from 1995 to 2004. The General Assembly created a World Programme for HRE in 2005, and in 2012 adopted the United Nations Declaration on Human Rights Education and Training, which outlined the obligations of states and other duty-bearers to implement HRE universally. It mandated educational training, information, awareness-raising, and learning activities aimed at promoting universal respect for and observance of all human rights and fundamental freedoms. The aim was to prevent violations and abuses by providing people with knowledge, skills, and understanding to shape their own attitudes and behaviors – thus empowering them as active agents in the building and strengthening of a universal culture of human rights.

The leading international network of HRE actors is HRE2020: The Global Coalition for Human Rights Education. This alliance was formed by NGOs in 2014 to encourage and enhance the HRE compliance of states by raising awareness and urging progress, by integrating HRE into UN mechanisms, and by monitoring the implementation of HRE commitments. The coalition has set the year 2020 as a benchmark for assessing the performance of governments, international institutions, and civil society in providing access to quality human rights education.

iii. Transformative human rights education

HRE is necessarily diverse in goals, content, and delivery. Some educational reforms that followed from the UN’s Decade for Human Rights Education involved little more than incorporating human rights language into the educational standards or textbooks of Member States. The integration of HRE into formal school curricula can be the most effective way to broadly execute HRE; but a simultaneous community-based approach to HRE can help ensure that school children educated in HRE do not encounter resistance outside the classroom door.

“Transformative HRE” is a community-based approach to HRE, intended for children, youth, and adults in formal or non-formal settings, and including cognitive, affective, and action-oriented elements. Contextualized and relevant studies are paired with interactive learning to bring human rights to life and to foster in students and citizens an awareness of global citizenship and a respect for human rights. Transformative HRE exposes gaps between rights and realities, and provokes group dialogue on the specific steps essential to closing the gaps. Learners engage in critical reflection, open discussion, and individual and collective action to move the cause of human rights forward locally, nationally, and globally. Transformative HRE can yield remarkable results for individuals and groups.

iv. Advancing transformative human rights education

Fostering a universal culture of human rights among all individuals and institutions through transformative HRE “from the bottom up” can add important impetus to the adoption and enforcement of legal standards by governments “from the top down.”

Yet many states lack a national HRE plan for formal education; many with a plan do not implement it well; and many who implement HRE focus on its basic legal literacy rather than advancing its transformative potential. NGOs and other civil society organizations have been the most active promoters and implementers of HRE, campaigning for the incorporation of HRE into formal education. The Commission calls on all governments, international organizations, and NGOs to encourage and support transformative human rights education.

We see our work as part of a process of public education about human rights, not as an ending, but as a beginning that must be carried forward. Further details of ongoing HRE initiatives are found in Online Appendix D.3

6.4 Sovereignty

In addition to the suggestions in the previous section, we must also consider deeper structural issues that make the implementation of human rights more or less successful. The most prominent is the issue of national sovereignty. Although, as we stressed in section 6.3(b), much implementation can be achieved within the legal system of particular countries, the pressure for progress must sometimes come from the outside. If domestic policy fails or if human rights are systemically flouted within a particular society, external pressure may have to come to the assistance of those whose rights are threatened.

Accordingly, no account of implementation can dispense with the general issue of sovereignty and the way in which it has come to be viewed in the new era of global human rights consciousness.

a. General (human rights as limits on sovereignty)

The era of human rights that was initiated by the UDHR has certainly disposed of any notion of state sovereignty that purports to insulate states from external criticism of internal rights violations. Occasionally we hear countries invoke that insular and outdated notion of sovereignty, but such claims are increasingly half-hearted and no longer treated as credible by the international community. Countries change in their willingness to accept and listen to criticism from beyond their borders. In any case, such criticism – including public official comment – is not to be equated with intervention. Nor is it to be rebutted with the rationalization that violations are internal matters and “none of the outside state’s business.” One principle the UDHR represents, and rightly so, is that human rights in every country are the world’s business. To that extent, the rights culture inculcated by the UDHR has to a real degree transformed the world of sovereign states.

The intermediate case is where nations or members of the international community sponsor NGOs or perhaps opposition parties within another state – sponsorship that can be characterized as an attempt to influence the political process of the target state. This is a question on which there is considerable disagreement. It is not a matter on which the UDHR takes sides, except perhaps implicitly in the proclamation clause’s insistence that “every organ of society [...] shall strive [...] to promote respect for these rights.”

We should not regard it as a failure of the UDHR that it does not resolve questions like this. They are worked out more effectively in the terms of the Covenants. But the Commission wishes to affirm: first, that countries may not misuse their national sovereignty as an excuse for insulating themselves from external pressure on human rights; and second, that it is legitimate for states to raise human rights issues in conducting foreign relations.

b. Sanctions, denunciations, and other measures

The international community needs a toolkit of governmental and multilateral responses to rights violations that is more legitimate and more sophisticated than we have today, and which relies on mechanisms other than the use of force. There are many instruments of change used: some widely acknowledged, like trade sanctions; some far less recognized, such as human rights “name and shame” mechanisms; and others perhaps less clearly articulated, such as providing shelter to migrants fleeing from neighboring countries in times of great distress. Armed force is seldom the best option. We recommend that a study be undertaken of what governments do when they genuinely want to seek to change another government’s behavior, and what governments are susceptible to in terms of real world pressures on human rights.

c. Responsibility to Protect

The Responsibility to Protect – known as RtoP – refers to the obligation of states toward their populations and toward all populations at risk of genocide and other mass atrocities.

Though the international community – as part of the doctrine of RtoP – has reserved the right to intervene militarily in countries where grave and widespread violations are underway, that has been and is likely to remain an exceptional occurrence. We can say that in such cases, human rights do represent a limit on state sovereignty. But since the most flagrant cases will be rare, and since individual rights violations on a smaller scale will remain quite frequent, there are questions about state sovereignty and human rights that have to be resolved in the case of less dramatic violations. Thus, in our view it is wrong to ignore the wider challenge and rivet attention exclusively on RtoP and the instances where it may be invoked.

RtoP stipulates three pillars of responsibility: first, every state has the Responsibility to Protect its people from four grave crimes – genocide, war crimes, crimes against humanity, and ethnic cleansing; second, the wider international community has the responsibility to encourage and assist individual states in meeting that obligation; and third, if a state is manifestly failing to protect its people, the international community must be prepared to take appropriate collective action in a timely and decisive manner and in accordance with the UN Charter.

These principles originated in a 2001 report of the International Commission on Intervention and State Sovereignty and were endorsed by the United Nations General Assembly in the 2005 World Summit Outcome Document. In January of 2009, the UN Secretary-General released a report on implementing the Responsibility to Protect, followed in July by the first General Assembly debate on the issue. During the debate, UN Member States overwhelmingly reaffirmed the 2005 commitment and the General Assembly passed a consensus resolution (A/RES/63/308) taking note of the Secretary-General’s report. Since then, the Responsibility to Protect has featured prominently in a number of resolutions adopted by the Security Council, including those in relation to Libya (2011), Côte d’Ivoire (2011), Yemen (2011), Mali (2012), Syria (2014), South Sudan (2014), and the Central African Republic (2015).

The Commission supports the concept of RtoP governing the process of humanitarian intervention. However, intervention under the auspices of RtoP will be far from regular and will be appropriate only in the case of egregious and widespread human rights violations. Such intervention is certainly justified. But it is no substitute for routine responsibility for the rights of individuals and it cannot be the main focus of our analysis of responsibility for rights. Instead we should look, wherever possible, to the regular institutional arrangements in each society, not just to a few dramatic cases.

We have to emphasize that in the final analysis rights are an individual matter. Every person has rights. And the violation of rights, the erosion of rights, or the failure to fulfill rights are matters of concern, even when they are not widespread. For example, when a particular woman or man is tortured or detained without trial, there may be no prospect of any international military mobilization: but a human right has been trampled on. Too much concentration on RtoP can lead us to assume that human rights violations only become serious when they are en masse and egregious. In a general sense, out of our common humanity, we all have a responsibility with regard to any violation – even if it is only sporadic or individual.

The specter of mass atrocity must never lead us to overlook the wrong that is done when any human right is violated at a lesser level. Any time a violation occurs – which may affect one person or one thousand – we must take notice. Underpinning this imperative is the principle that the violation of the rights of anyone is the concern of everyone. Of course, in the first instance it is the province of every national legal system to deal with human rights violations within that country. The international human rights community becomes involved either when this national responsibility falters, or when the rights violations reach a certain level of frequency or severity. We know that there is a challenge of setting priorities here. Not all of us can be on duty all the time. But nobody is entitled to say of any human rights violation that it is, in principle, “none of my business.”

When an international response is appropriate, it should be chosen from a range of options, depending on circumstances. The selected response should be consistent with the protection of other rights. It should be proportionate to the violation; you cannot deploy armed force over an issue of educational reform. The question must be: “Is this response producing a net gain for human rights or not?” For the danger is not just failing to act, but doing more harm than good. On the range of possible actions, military intervention for the Rwanda genocide would be at the far end; but the range also spans diplomatic démarches, sanctions, formal findings by state departments, informal protests, and raising issues at a ministerial level. One of the advantages of this approach is that the need for coordination mounts at the far end of the range, but does not necessarily accrue at the near end. If there is any question of armed intervention, that is an issue for the Security Council. If there is a question of sanctions, that is a matter for the international community. If denunciation is the right option, it is not clear that we need Security Council clearance. And countries have unilaterally taken up the task of naming and shaming rights violators. Therefore, we should confine a requirement for some authoritative multilateral declaration to the far end of the spectrum: military intervention, and perhaps sanctions too.


1 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (London: Random House, 2001), Chapter 6. At its second meeting – in Geneva in December 1947 – the Human Rights Commission pressed forward in three working groups. The first group, chaired by Eleanor Roosevelt, worked on the draft Declaration. The second group, chaired by Lord Dukeston of the United Kingdom, sought to prepare a draft Convention. The third group, chaired by Hansa Mehta of India, investigated methods of implementation that might or might not later be incorporated into a Covenant.

2 Appendix E, on Human Rights Implementation, is available at https://www.openbookpublishers.com/isbn/9781783742189#resources. The case studies on the anti-slavery provision, the anti-torture provision, the free expression and free association provisions, and the education provision were prepared for the Commission by the Center on Global Justice (University of California, San Diego). The case study on the equality and non-discrimination provision – which the Commission also considered in its analysis of human rights implementation – was prepared by Dr. Dimitrina Petrova, the founding Executive Director of the Equal Rights Trust.

3 Appendix D, on Human Rights Education, is available at https://www.openbook
publishers.com/isbn/9781783742189#resources
. This Appendix was prepared for the Commission by a working group on human rights education under the auspices of the Center on Global Justice (University of California, San Diego).