It is often difficult to make a clear distinction between ‘supervision’ and ‘implementation’ of human rights, and no consistent international terminology is used. In human rights literature, protection, supervision, monitoring, and implementation are terms often used indiscriminately to cover both the mechanisms established to determine whether the standards are adhered to, on the one hand, and actual compliance by states with those standards, on the other. The term ‘supervision’, discussed in the previous chapter, refers to all procedures that have been instituted at the international level, with the aim of monitoring compliance with human rights standards at the domestic level. The term ‘implementation’ is used here in reference to actual compliance with human rights standards by individual states as well as all initiatives taken by those states themselves, other states and international organs or other bodies to enhance respect for human rights and prevent violations. Sometimes there is an overlap between the two terms and some institutions use the same or similar processes for both supervision and implementation. Two examples illustrate this:
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Advisory services in the UN human rights system address compliance of states with human rights obligations (supervision) and assist states in improving respect for human rights through, for example, the provision of fellowships and expert advice (implementation).
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The UN Human Rights Council allows individual states to discuss implementation questions in addition to dealing with supervision (e.g., through the establishment of the position of a country rapporteur).
A. Implementation at the national level
The implementation of human rights law depends to a large extent on the political will (and often, as regards economic, cultural and social rights, the economic capacity) of states to comply with international standards (see V§1). Ideally, a co-operative network of non-state actors and international institutions all ensure the effective implementation of the international norms and standards. Implementation entails an array of activities. These include primarily activities to improve compliance by the states themselves, such as enacting national laws or administrative practices to comply with human rights standards, strengthening the judiciary branch of government, educating the population, establishing national human rights institutions, improvement of minimum health standards, improving prison conditions, and increasing participation in government. From the variety of activities that states are to take at the national level to implement human rights standards this section briefly discusses three: the incorporation of international standards into domestic law; the establishment of national human rights institutions and human rights education. Generally, to implement international human rights standards, states must affirmatively incorporate them into domestic law. In general, international treaties do not stipulate how states should implement human rights standards, leaving it to each state to decide how obligations will be implemented at the domestic level. However, it is notable that a few treaties specifically mandate the adoption of domestic laws as a part of its implementation framework. For example, both CEDAW (Article 2) and the Convention on the Rights of the Child (Article 4) mandate that states parties pass domestic laws to give effect to the rights set forth in the respective treaties. There are a great variety of domestic methods for implementation of international human rights instruments. Scholars have classified them, for example, into adoption, incorporation, transformation, passive transformation and reference. Moreover, states may apply more than one of these methods. In very broad terms, two systems can be identified. In some states there is an automatic incorporation of treaty provisions once they have been ratified and published in the official gazette (e.g., France, Mexico and The Netherlands). These legal systems are referred to as ‘monist’, in that both domestic and international law are considered together and as having the same effect. Other states require the express legislative enactment of treaty provisions before they become domestic law (e.g., the United Kingdom, other Commonwealth countries and Scandinavian countries). These legal systems are referred to as ‘dualist’ in that a strong distinction is maintained between domestic and international law, and the latter must be written into the former in order to carry substantial and enforceable weight. Regardless of whether a domestic law society is monist or dualist, the crux of the matter is whether or not their domestic courts and other legal operators apply human rights norms in their decisions; the effect of international human rights law cannot be assessed in the abstract on the basis of the constitution and legislation of a given country only. If international standards are fully incorporated or written into national legislation, it is easier for domestic courts and legal operators to apply them. However, even when international human rights treaties have not been formally incorporated into domestic law, national courts can use international human rights standards as guidance in interpreting national law. In other words, national courts and legal operators may look at international and regional human rights norms when interpreting and developing national law, and they may use international human rights law as the minimum standard of protection that national law should attain. It is important to stress that the domestic implementation of human rights norms requires a joint and co-ordinated effort of all branches of the government (judiciary, legislative and executive). Training and education in human rights is also of vital importance for the effective implementation of human rights at the domestic level. In addition, it is important to note that in order to ensure that human rights are protected and advanced in a sustained manner in the long term, states should encourage and facilitate the establishment of national human rights institutions, such as ombudspersons, ‘defensorias del pueblo’, and ‘procuradorias de derechos humanos’. Details of these important components of implementation are discussed (see V§1.A). Finally, most treaties require that states take actions to raise awareness about human rights. They should inform the public about human rights and the available resources for redress to those whose human rights have been violated. Information should be accessible to all - in particular to those most disadvantaged and vulnerable groups - and available in a form that can be understood by everybody. States must initiate information campaigns and public education programmes on human rights at all levels in the judicial, law enforcement, social welfare and educational systems.
B. Implementation at the international level
Implementation of human rights standards can be a difficult task for developing countries where the scarcity of resources may impose challenging obstacles to achieve compliance with human rights within a reasonable time. For example, while a state may in theory agree that people have the right to health, housing or other economic standards, it may not have the capacity radically to change everyone’s living conditions in order to bring them up to the level of the norms aspired to. Similarly, one’s right to a speedy and fair trial may require that a state increase funding to its judiciary system. Thus, international co-operation is essential to assist countries’ adherence to international standards. The promotion of human rights standards in another country can take place through a ‘positive’ approach, whereby support is given to the improvement of conditions that facilitate compliance with human rights, or through a reaction to a violation of human rights. Often a differentiated approach is chosen, as this may often be the most effective way to bring about compliance. One sees international treaty organs, other countries and non-governmental organisations all working to promote human rights compliance. For a comprehensive examination of the role of states and bodies such as the European Union in enforcing human rights standards (see VI§2.C).
1. PROMOTION OF HUMAN RIGHTS - POSITIVE APPROACHES
One way to promote human rights is through the establishment of international human rights organisations. Many institutions monitor or assist in the compliance with specific human rights, such as the Office for Democratic Institutions and Human Rights (ODIHR) (promoting democratic institutions in OSCE countries), the International Institute for Democracy and Electoral Assistance (promoting electoral systems world-wide), and the Inter-American Institute of Human Rights (promoting human rights awareness in Latin America). Human rights NGOs serve several general functions. Some provide humanitarian assistance. Some act as watch dogs pointing out states’ failures to enforce rights in their countries and human rights violations in other countries. This may often happen through shadow reports to human rights treaty bodies or reports released to the press, or through direct shaming and other pressure tactics. For example, in the spring of 2007 several NGOs used the upcoming 2008 Summer Olympics in Beijing, China to pressure the Chinese government, which is one of the primary importers of Sudanese oil, into working bilaterally and through the UN Security Council to help combat the human rights violations in the Darfur region of The Sudan. Other forms of co-operation include technical assistance, such as that provided under the advisory services system of the UN Human Rights Council, or direct bilateral or multilateral technical assistance, for instance to improve the administration of justice. Furthermore, bilateral agreements or international agencies, such as the World Bank and UNDP, may provide financial support so that minimum standards in the sphere of economic and social rights (for instance, primary health care or education) are met. Positive approaches may also take other forms such as advocacy efforts directed at government officials and the public for human rights compliance; assistance to human rights organisations; support for the establishment of national institutions which promote or monitor human rights compliance; support for liberalisation processes; and strengthening and supporting equitable trade arrangements. It should be emphasised that in developing international co-operation on human rights many factors come into play, so a case-by-case approach should always be followed. NGOs, neighbouring countries and treaty bodies must analyse what particular needs or rights are not being met, and identify situation-specific methods and approaches to deal with them.
2. RESPONSES TO HUMAN RIGHTS VIOLATIONS - REACTIVE APPROACHES
The call for positive measures to promote international co-operation to construct an ‘international human rights environment’ should not minimise the constant need to respond to human rights violations. While many countries struggle to meet their human rights obligations, the lack of resources cannot justify violations of fundamental human rights. States should respond to human rights violations in other countries in order to promote international compliance based on rights and values as opposed to national interests. A wide range of measures can be resorted to in reaction to human rights violations. Some of the following measures may be taken, depending on the seriousness of the situation at hand:
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Confidential representations with the government concerned, e.g. discreetly raising the issue, through enquiries as to the circumstances in specific cases.
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Using visits of political officials (Ministers, diplomats, etc.) to a country, to raise the issue confidentially and, in serious cases, publicly.
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Bilateral or joint démarches or joint representations with the government concerned - normally taking place in the country concerned through its representatives.
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Parliamentary questions and debates on a specific issue.
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Public démarches, statements, or declarations.
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Using multilateral fora to draw attention to the situation (UNGA, ECOSOC, Human Rights Council, OSCE, etc.).
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Withdrawing development assistance or tying development aid to the recipient state’s human rights performance.
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Withdrawing diplomatic personnel.
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Changing trade relationships.
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Sanctions in various forms.
This list is not exhaustive. The suitability of a measure in a given situation depends on the specific characteristics of the case at hand, and the potential impact of the responses. Additionally, it should be noted that most states will strongly consider foreign policy ramifications as a reason not to ‘interfere’ or ‘meddle’ with the domestic affairs of another state.
3. HOLISTIC APPROACHES TO HUMAN RIGHTS SITUATIONS
While sometimes the most appropriate approach seems obvious, the available options have to be carefully weighed. Obviously, measures taken simply to promote respect for human rights are less controversial than possible steps in response to violations such as trade sanctions or humanitarian intervention. But at the same time, one should not overlook the fact that the promotion of human rights through development, economic, or trade co-operation programmes by its very nature takes a structural, long-term form. This frequently entails co-operation with recipient countries over a fairly long period, even if the human rights situation continues to leave much to be desired. Effective human rights promotion is generally contingent on the resources available to fund such activities and on the political will of the government whose behaviour is at issue. Without a clear and proven political commitment to improvement of human rights, supportive initiatives often fail. Sometimes a strong reaction is the best option when violations of human rights have taken place. Here again, a case-by-case approach has to be followed. There is, in principle, no ‘trigger mechanism’ leading to an automatic response from states to violations. States have gradually developed various holistic approaches with regards to human rights, whereby in each situation a concept is developed, consisting of a combination of different measures and responses, both supportive and reactive. Each case will have to be looked at separately in order to avoid callous and often inadequate responses. To allow such holistic approaches, human rights clauses are included in various co-operation agreements, both in the field of development co-operation (e.g., EU Lomé treaties), and in the field of trade and economic relations (see V§2). It allows for a change in a co-operative relationship if circumstances concerning human rights change. Nuanced, holistic approaches are increasingly the most appropriate response, since the number of countries where human rights are grossly and systematically violated is in decline. In other words, the number of unquestionably repulsive situations, where simple, sometimes highly visible reactive decisions may be taken, is decreasing. Two patterns seem to emerge. On the one hand, there seems to be an increasing number of countries in which there are both in society and the government, bodies, groups and persons engaged, or prepared to engage, in the improvement of the human rights situation. On the other hand, violations may continue, sometimes despite the generally good intentions of the official authorities. The response of other states is, increasingly, to undertake combined measures, reacting to developments in the society concerned. The increase in human rights violations by non-governmental entities such as guerrilla groups, paramilitary groups, and multi-national corporations is disturbing, and it is sometimes difficult to hold the government accountable for such violations. This element is in some cases further complicated by political instability and internal conflict. Nonetheless, such cases merit a stronger response than the mere denunciation of human rights violations. It should be iterated that NGOs and individuals play a vital role in the actual implementation process. Not only are NGOs and individuals often more effective than governments and international organisations in collecting accurate, disaggregated data, and more flexible in raising issues in connection with human rights violations, they also provide the crucial external and legitimacy to, and research support for, the actions of states towards third countries. In the current era of globalisation individuals in developed countries are increasingly using their personal investment as a tool for human rights activism. They may choose to divest from particular companies or industry sectors (such as tobacco and military munitions manufacturers), or from companies operating in countries which they believe to be violating human rights norms. Such activity may be self-directed or performed in response to public awareness campaigns conducted by NGOs. Local pressure has often resulted in local, regional and national governments diverting funds from violating countries with abusive regimes. These practices starting in the 1970s and 1980s among those opposed to the Apartheid regime in South Africa, have come into prominence only in recent years. International organisations, such as the United Nations, are following suit focusing on the impact of individual and collective investor behaviour for human rights promotion, as demonstrated by the Global Compact and the UN Principles for Responsible Investment (see III§6.C).