Lecture: The International Human Rights Regime

Transcription

1 Lecture: The International Human Rights Regime

2 Today s Lecture Realising HR in practice Human rights indicators How states internalise treaties and human rights norms Understanding the spiral model and its effects on changing human rights norms in various states Transnational activism

3 How do these international norms influence the national and legal system of states? Have the principles had any effect on the actual behaviour of states towards their citizens? What accounts for the variation in the degree to which human rights norms are implemented?

4 International Human Rights System The international human rights system seeks to compel states to fulfil their obligations Enforcement generally occurs through vertical interpenetration (pressure from above leading to internalisation of human rights law supervisory mechanisms: human rights monitoring and promotion) But there are also horizontal modes of implementing and enforcing rights (nations seeking to implement and enforce human rights on one another ie via judicial redress for violations)

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6 International Human Rights Supervisory System Reporting system either to Human Rights Council or Treaty Bodies made up of independent experts mandated to monitor State parties' compliance with their treaty obligations Supervisory mechanism most used: An essential element of the human rights monitoring cycle Opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries Establishes a government s accountability

7 Aims of Reporting Initial review ensures that a state reviews its domestic law and practice to ensure it is in compliance with the treaty obligations Monitoring function: aims to identify and remedy human rights problems that may exist Policy formulation function: setting long term goals, changing multiple elements of political and social conduct Public scrutiny: enhance accountability to its own citizens Evaluation and Information Exchange: identification of problems and solutions

8 Monitoring State Progress: indicators Indicators, are a tools for policy formulation and evaluation. Their primary objective is to highlight HR norms and principles, spell out the essential attributes of the rights and translate them into contextually relevant indicators and benchmarks for implementing and measuring human rights at country level Move away from abstract, legalistic language and translate into tangible objectives for policy makers Together with national human rights action plans, baseline studies and rights based approaches to development and good governance, indicators provide concrete, practical tools for enforcing human rights and measuring their implementation.

9 Tools for measuring progress: Indicators However, may not be possible to have a set of universal indicators to assess the realisation of HR Certain HR indicators ie legal realisation, may be relevant across cultures. Others such as right to health or adequate housing may need to be adjusted to cultural context Ie. It may not be crucial to collect information on mortality rates for malaria in a Scandinavian country, where malaria is rare. However, in South Asia or parts of Africa, the incidence of malaria may be a good indicator for assessing the State s public health efforts in addressing critical right to health concerns.

10 Structural indicators: reflect the ratification and adoption of legal instruments and existence of basic mechanisms deemed necessary for realising HR focus on domestic law (THE LAW) Process indicators: Process indicators measure duty bearers ongoing efforts to transform their human rights commitments into the desired results including public programs and specific interventions that a state takes in order to realise human rights (what is being done) Outcome indicators: capture attainments, individual and collective, that reflect the realisation of HR in a given context

11 Example: The right to health Structural indicator number of HR treaties relevant to the right to health ratified by state, time frame and policy on child health and nutrition, number of active NGOs in the area Process indicator: proportion of school age children educated on health and nutrition issues, net official development assistance, proportion of received complaints on the right to health investigated and adjudicated, programs in place etc Outcome indicator: proportion of underweight children under 5 years of age, number of recorded deaths relating to certain illnesses, proportion of households with low level expenditure on certain services

12 Promoting and Protecting Rights Within the State

13 States as the Protectors and Enforcers of HR States remain the primary actors, the key conduits through which human rights must be realised. The obligation to respect and enforce human rights rests on states Louise Arbour Primarily guaranteed through substantive (the national legal protections) and institutional protections (the bodies involved in upholding human rights in national jurisdictions )

14 Adoption into Domestic Law: Substantive Protection Incorporation into national law essential States are required under IL to bring their national legal systems into line with their international obligations (either legislative incorporation or automatic incorporation) Incorporation into domestic law Constitutional guarantees Legislative protection into general human rights legislation or specific legislation Protection through common law

15 Committee on ESCR: General Comment No. 9: The domestic application of the Covenant duty to give effect in the domestic legal order A the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant Thus the norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place. B legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State party, thereby enabling individuals to seek enforcement of their rights before national courts and tribunals.

16 Adoption into Domestic Law: Institutional Protection All organs of the state have a responsibility for observing and promoting human rights in their respective spheres The Courts: apply and develop national human rights law, also apply international human rights law Political bodies: enact legislation, ensure legislation promotes and conforms to obligations Other bodies: Ombudsman, National Human Rights Institutions

17 Impact of Treaties: National Human Rights Institutions The rise of national human rights institutions tasked with addressing a range of HRs issues Can receive and adjudicate complaints, conducting national enquiries, audit proposed legislation, train public officials, educate and encourage ratification of treaties These institutions contribute to the reception of human rights norms into domestic legal and cultural systems Must receive sufficient financial and political support

18 Translating Human Rights Norms into Practice

19 Realising Human Rights What are the conditions under which international human rights norms are internalised in domestic practices Different way of registering how IHRL impact domestic practices How are IHRL norms implemented and embedded and then how do they change political and social processes? The link between vertical and horizontal rights diffusion

20 From Heyns and Viljoen, The Impact of the UN Human Rights Treaties on the Domestic Level (2002) (Study conducted with OHCHR examining treaty diffusion across states) Conditions effecting impact of International Human Rights Law Level of awareness of the treaties (amongst stakeholders, general populace etc) Constitutional recognition (whether human rights norms coincide with constitutional protections) Legislative reform (whether they lead to legislative changes) Judicial decisions (have the led to different judicial reasoning) Development of policy etc Use by NGOs Academic publications

21 From Heyns and Viljoen, The Impact of the UN Human Rights Treaties on the Domestic Level (2002) Factors Limiting: States relationship to sovereignty Ignorance of international treaty system The absence of domestic human rights culture Low level of domestic implementation of human rights norms Shortage of journalists with human rights training Socio economic factors Illiteracy problems Factors Limiting: Lack of coordination between governments and NGOs Different domestic political organisation Engagement with reporting Link to unpopular political causes (abolition of death penalty)

22 From Heyns and Viljoen, The Impact of the UN Human Rights Treaties on the Domestic Level (2002) Best Practices: Interdepartmental institutions have been created to co ordinate reporting on a continuous scale Public hearings on draft reports prior to their submission to the UN Translation of concluding observations by UN Committees Special procedures to ensure enforcement of treaty bodies comments Law reform commissions required to take international law treaties into account

23 Closing the Gap Haglund and Styrker identify three moments that shape the receptiveness of states to human rights norms and principles: 1) The impact of factors such as cultural beliefs, memory, social structures, and information shape actor s perceptions and desires regarding new normative frames 2) The translation of beliefs and desires into action 3) Actions and interactions coalesce to generate broader social change reflecting these new normative principles

24 Closing the Gap This framework raises three key questions regarding human rights and social transformation: 1) How is it that individuals and institutions come to accept a new set of norms and principles? 2) When and why do they begin to act in ways that support these principles 3) How and when do these changing beliefs and actions cumulate to meaningful social change?

25 Closing the Gap Mechanisms: MAP Framework for human rights internalisation In this framework are the means of rights translation how they effect change Mechanisms: comprise meso level processes that can produce change tend to centre on institutions formal and informal rules and routines of actions and the organisations that embody them Actors work through institutions and use institutions strategically in ways that can both enable and constrain their capacity to reach goals. Individuals, groups, organisations Pathways concretises and specifies rights translations processes by spatially and temporally locating the relevant actors and mechanisms in distinct contexts

26 Four models of human rights socialisation: 1) Spiral Model centred on domestic and transnational HR networks, strategic awareness raising, and pressure for change 2) Policy legalisation and court enforcement role of law and courts in ensuring accountability 3) Mobilisation of the MDGs 4) Social Guarantees Model

27 Socialisation: Risse, Ropp and Sikkink the spiral model Socialisation Sikkink and Risse use this term to describe the process by which international norms are internalised and implemented in domestic practice Attempts to explain how international human rights norms come to influence actual human rights practices domestically Three mechanisms (processes) of socialisation 5 stages (in world time) Method: comparing empirical cases: two selected rights (right to life, freedom form torture)

28 Risse, Ropp and Sikkink the spiral model the diffusion of international norms in the human rights area crucially depends upon the establishment and sustainability of networks among domestic and transnational actors who manage to link up with international regimes, to alert Western public opinion and Western governments Diffusion of HR by way of transnational advocacy networks

29 Transnational Advocacy networks Actors in network: international community, UN system, IGOs, liberal states, domestic NGOs and opposition groups contributors to a convergence of social and cultural norms able to support processes of regional and international integration. Build new links among actors in civil societies, states and international organizations, they multiply the opportunities for dialogue and exchange. Make international resources available

30 Impact of transnational networks Argue that these advocacy networks serve three purposes create the conditions necessary for sustainable domestic change 1) put norm violating states on the international agenda in terms of moral consciousness raising. 2) The empower and legitimate the claims of domestic opposition groups against norm violating governments, and they partially protect the physical integrity of such groups from government repression 3) They challenge norm violating governments by creating transnational structure pressuring such regimes simultaneously from above and from below

31 Transnational Advocacy Tactics (Margaret E. Keck and Kathryn Sikkink) These include: (a) information politics, or the ability to move politically usable information quickly and credibly to where it will have the most impact; (b) symbolic politics, or the ability to call upon symbols, actions or stories that make sense of a situation or claim for an audience that is frequently far away; (c) leverage politics, or the ability to call upon powerful actors to affect a situation where weaker members of a network are unlikely to have influence; and (d) accountability politics, or the effort to oblige more powerful actors to act on vaguer policies or principles they formally endorsed.

32 The Spiral Model Distinguish between three types of causal mechanisms which are necessary for the enduring internalisation of norms: 1) processes of instrumental adaption and strategic bargaining (talking the talk: dictators sign but do nothing, States change their behavior simply to get to a goal (aid, lifting of sanctions), but may not necessarily believe in the norm.) 2) processes of moral consciousness raising, argumentation, dialogue and persuasion (talk as discourse: not merely information exchange, but implying definitions and identities: shaming and blaming This "moral discourse" enables actors to understand the validity of norms.) 3) processes of institutionalisation and habitualisation

33 Spiral Model of social change 5 phase spiral model of human rights change with they argue explains the variation in the extent to which states have internalised these norms This model has five phases: repression, denial, tactical concessions, prescriptive status, and rule consistent behavior. These five steps work in a natural progression to first expose a state s human rights violations, and then change their norms to fit international standards.

34 The first step, repression, has to involve some cooperation for the advocacy network to understand the extent of the human rights violations. This cooperation can be explained by a state s desire to improve its status in the world s view. repression activates transnational civil society groups. Gathering of information, international attention, drawing focus

35 The Philippines Case After President Ferdinand Marcos had imposed martial law in September of 1972, he began a calculated campaign of human rights abuses, including the arrest of political dissidents and the arbitrary violation of civil and political rights of the citizens members of the Moro National Liberation Front and the Communist Party. Two primary human rights organizations emerged from these repressive activities: the Task Force Detainees of the Philippines and the Free Legal Assistance Group. Between these two groups the human rights abuses under Marcos regime were monitored and documented to the international community and thus attention and focus was brought to their cause ( )

36 There is a socialization process that the states need to go through, and it start with denial. Once human rights abuses are brought to the attention of the international community, the norm violating state is placed in the position of having to respond to the accusations of repression. As Risse and Sikkink write, we count the denial stage as part of the socialization process because the fact the state feels compelled to deny charges demonstrates that the process of international socialization is under way International condemnation, domestic opposition bypass the state and search for international allies

37 Tactical concessions: cosmetic changes, but a strengthened domestic opposition: the boomerang effect also a risk of backlash Underlines strength of transnational HR networks and vulnerability of state to external pressure Within this stage, governments begin to enact policies aimed at curbing human rights abuses, and some may even begin to incorporate the language of human rights into domestic political discourse. The stage of tactical concessions is, according to the authors, the most important stage in achieving sustainable, long term human rights improvements.

38 South Africa Case case of South Africa which, as David Black shows, ultimately brought about the deconstruction of apartheid and the transition to a democratic system based on respect for human rights. The impetus for change in the South African case was the increasing isolation and shaming of the government by the international community

39 Prescriptive status ratification and implementation: government accepts the validity of HR At this point norm violating states are confronted with fully mobilized human rights networks and an increasing internalization of human rights norms, which ultimately force the state to either liberalize their policies permanently or accept some form of substantive constitutional or governmental change. The impact of these networks can perhaps be most strongly felt when their continued efforts ultimately lead to a regime change. Of course, the South African example continues to apply here, but so also do the examples of the Philippines

40 Rule consistent behaviour: internalisation of HR norms in all government practice In this last stage, governments institutionalize international human rights norms into actual state practice. Within this study, seven of the ten country cases have reached this final stage: the Philippines, Poland, Czechoslovakia, South Africa, Chile, Guatemala, and Uganda.

41 Policy implications Transnational advocacy works, but is not sufficient alone. They must be complemented by domestic mobilization. Indirect effects that force governments to make concessions are also useful Different methods work best at different points of the process. Argument and shaming is effective International law matters to provide the prescriptive forms that states can adhere to. Human rights need the rule of law, consequently effective states, not their overthrow are required. consistent application of pressure is necessary. Sanctions can help drive a state to the tactical concession phase, but can be counter productive in later phases. Constructive engagement should only be used in later phases. Earlier it will be seen as weakness.

42 Questions Are you convinced by this theory? What are the problems/ benefits of thinking about human rights in terms of socialisation? Do you think it is reflective of patterns of human rights adoption across the world? Can you think of examples that do not fit this model?

43 Criticisms Despite the usefulness of the spiral model, it does not provide a truly complete picture. While the authors claim that their model is generalizable across cases irrespective of cultural, political, or economic differences among countries, the model seems much more applicable to smaller powers rather than great ones. Doesn t include the impact of great powers and major international actors