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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
The range of global human rights institutions which have been created over the past half century is a remarkable achievement. Yet, their establishment and proliferation raises important questions. Why do states create such institutions and what do they want them to achieve? Does this differ from what the institutions themselves seek to accomplish? Are global human rights institutions effective remedies for violations of human dignity or temples for the performance of stale bureaucratic rituals? What happens to human rights when they are being framed in global institutions?
This book is an introduction to global human rights institutions and to the challenges and paradoxes of institutionalizing human rights. Drawing on international legal scholarship and international relations literature, it examines UN institutions with a human rights mandate, the process of mainstreaming human rights, international courts which adjudicate human rights, and non-governmental human rights organizations.
In mapping the ever more complex network of global human rights institutions it asks what these institutions are and what they are for. It critically assesses and appraises the ways in which global institutions bureaucratize human rights, and reflects on how this process is changing our perception of human rights.
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Seitenzahl: 435
Veröffentlichungsjahr: 2013
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Table of Contents
Cover
Title page
Copyright page
FOREWORD
ACKNOWLEDGEMENTS
ABBREVIATIONS
1 INTRODUCTION
2 INSTITUTIONALIZING HUMAN RIGHTS: EXPECTATIONS, PARADOXES AND CONSEQUENCES
Efficiency, legitimacy, power
Arena, instrument, actor
Autonomy and dependence
Form and function
Bureaucracy: authority and alienation
Predominance of law
Exclusion and inclusion
Guarding the guards
Remedy and ritual
3 THE RISE OF GLOBAL HUMAN RIGHTS INSTITUTIONS
A timeline
A typology
Functions, activities and expectations
4 UNITED NATIONS HUMAN RIGHTS INSTITUTIONS
Commission on Human Rights
Human Rights Council
Sub-Commission on the Promotion and Protection of Human Rights
Commission on the Status of Women
Economic and Social Council
General Assembly
United Nations High Commissioner for Human Rights
Treaty bodies
5 MAINSTREAMING HUMAN RIGHTS
From mandate to mainstreaming
International Labour Organization
United Nations Development Programme
United Nations Children’s Fund
United Nations Educational, Scientific and Cultural Organization
United Nations High Commissioner for Refugees
United Nations Human Settlements Programme
World Health Organization
Food and Agriculture Organization
World Bank and International Monetary Fund
World Trade Organization
Challenges ahead in mainstreaming human rights
United Nations Security Council
6 WORLD COURTS AND HUMAN RIGHTS
International Court of Justice
International Criminal Court
Towards a world court of human rights?
7 NON-GOVERNMENTAL ORGANIZATIONS
Independence between law and politics
Consultation, cooperation, compensation, competition
Functions
Legitimacy
Challenges
8 CONCLUSION
Coherent multilateralism and proliferation
Institutions matter
Sovereignty and community
The pitfalls of bureaucracy
Adequate design in an inadequate legal order
Power, law and politics
A regulatory framework for failures
Persuasion and coercion
Process and output
From vision to reality
REFERENCES
Index
Copyright © Gerd Oberleitner 2007
The right of Gerd Oberleitner to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2007 by Polity Press
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ISBN-13: 978-07456-3438-8
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ISBN-13: 978-07456-5408-9 (Multi-user ebook)
ISBN-13: 978-07456-5409-6 (Single-user ebook)
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FOREWORD
The idea of universal human rights needs more than ethics on its side if it is to survive in these turbulent times. Fortunately it has that something extra: a range of global human rights institutions with which to drive home its perspective while guarding against its evisceration by the countervailing forces of nationalism, extremism, ethnic particularism, politicized religion, or from wherever it is that the latest challenge has sprung. Global human rights institutions need to see these enemies off while protecting their own core from the dangers of bureaucratization, legalization and systematic hypocrisy. They must do all this while also developing and maturing as the world around them changes, finding new ways to help people both to avoid cruelty and to flourish through the assertion of their dignity. It is a tough task and of course these are failures along the way. But the trajectory is broadly upward, with the idea of human rights having been embedded in the public mind much more effectively for the existence of these institutions than would have been the case had they never been established.
Now global human rights institutions have their biographer. True, Gerd Oberleitner’s book contains much that is rightly critical of the bodies that he surveys; his is not only a descriptive account of the origins and development of global human rights institutions, but one which engages also with the darker side, the contact with political reality from which not even the purest of international institutions is immune. But Oberleitner’s support for his subject matter also shines through, his commitment to the cause of the institutionalization of human rights evident not only in the devotion that has produced this comprehensive account but also in the argument that he develops for the improvement and reform of the various organs that he has brought under his careful scrutiny. It is clear that ‘global human rights institutions matter as the best presently available format for realizing human rights’, with ‘their proliferation [being] more a benefit than a danger’ (p. 182). This diversity ‘offers multiple channels of influence: where once individuals stood alone in facing governmental oppression, today there are a multitude of formalized avenues for redress and assistance in global human rights institutions’ (p. 179). Dr Oberleitner sees global human rights institutions as particularly important because they ‘reflect the move from vision to reality. … They allow the move from the acknowledgment of values to their realization on the international level: agreeing on community norms, casting them in legal form, and inventing tools, mechanisms and instruments’ (p. 189). Their output ‘may often be scant and their power may rest solely on persuasion’, despite which ‘they realize, in a practical manner, what would otherwise remain a philosophical, moral, religious or political discourse, and as such would be even more remote from meeting the demands of those whose dignity is being trampled upon’ (p. 190).
It is clear that Gerd Oberleitner is right when he suggests that ‘much would be lost if international institutions were to disappear from the global institutional landscape’ (p. 179). Consider as a case study in their indispensability the current crisis generated by the inauguration by the United States and some of its allies of a ‘war on terror’ in the immediate aftermath of the attacks on New York and Washington on 11 September 2001. Initially human rights took a back seat while the Security Council and other international bodies sought to steer a course between the threat of serious international criminality on the one hand and the urge to sanction extreme state action in the name of counter-terrorism on the other. Gradually, however, as time has gone on, the language of human rights has reasserted itself, quietly at first and then with increased confidence and assurance. This could not have been done without the work of human rights functionaries such as high commissioner Louise Arbour, the special rapporteur on terrorism and human rights Kalliopi Koufa and, more recently, Martin Scheinin, with his report in December 2005 to the old Commission on Human Rights on ‘the promotion and protection of human rights and fundamental freedoms while countering terrorism’. At the time of writing, human rights-based pressures are growing to rein in the tendency of Security Council resolutions to disregard due process and fundamental rights in their rush to take strong but non-military action in trouble spots across the world. How would basic rules of fair play, of equity and of respect for human dignity have fared in the first decade of the twenty-first century had they not had their ethical advocate embedded in institutional form within the United Nations and other global bodies?
Gerd Oberleitner has performed an important service in providing an account of global human rights institutions which manages to combine an authoritative descriptive style with a critical scholarly eye. His definition of terms frees him to roam widely across global institutions, assessing those that are obviously central, of course, and also unafraid to delve down pathways that might have been missed by a more hurried writer, but at the end of which are important issues so far as human rights are concerned: the World Bank and IMF, for example (pp. 129–35) and the World Trade Organization (pp. 135–9). Even the role of NGOs, very important is this field, is not missed, securing a chapter all to themselves (chapter 7). The overall effect is one of concise authoritativeness; the interested reader need look no further than Oberleitner for a definitive introductory account of the milieu of global human rights institutions and organs with a brief including human rights that are now to be found scattered across the global stage.
What of the future? In his moving final paragraphs Oberleitner says this:
Administering and managing human rights, dispersing them into diverse institutional formats and diffusing them in an ever wider array of governmental and human activities may be unexciting and uninspiring and be accompanied by deficiencies and failures common to bureaucracies. This, however, is what it means to pursue a utopian aspiration in a tight political and normative framework, and this is what global human rights institutions do. After all, the road from vision to reality is called pragmatism. (p. 191)
Do we still as a community of nations want to pursue this ‘utopian aspiration’ or human rights? If we do not, then global human rights institutions will not save us from ourselves; they will drift into one of those nooks into which we manoeuvre ideas whose days have come and gone, an appendix on the international body politic, waiting its turn to be removed. But this is not an inevitable or even a probable future. The idea of human rights has demonstrated its flexible robustness in the past and gives no impression today of not continuing to capture the essence of the ethical life to which many of the worlds’ citizens aspire. As long as dreams of justice and fairness and equality remain, there will always be a utopian language of human rights to help put their hopes into words. And with those words comes via global human rights institutions the possibility of concrete action, slow maybe, tedious often, but as essential in its way as the dreams that made such progress conceivable in the first place.
Conor Gearty
ACKNOWLEDGEMENTS
A book is never just the product of a certain time of researching and writing. This one is the result of encountering human rights, over many years, in different international institutions. It draws on experiences made, as a researcher, in human rights bodies in the UN and in the European and African human rights systems; on being involved with local and international human rights NGOs; on repeated secondments to the human rights department in the office of the legal adviser of the Austrian Ministry for Foreign Affairs and the ensuing participation as a governmental delegate in international human rights bodies; and even on having been an intern, way back in the early 1990s, in the (then) UN Centre for Human Rights in Geneva. In each of these situations I saw human rights institutions with different eyes. The hopes which their work could raise and (more often) the frustrations which their shortcomings could provoke made me want to understand better what those institutions are for, what they do, and why they do it. More specifically, I became interested in what they do with human rights and to human rights.
When Polity Press expressed an interest in producing a textbook on global human rights institutions, I felt that mapping the field with a critical eye would allow me to wrestle with some of my assumptions, questions and doubts. The original plan of the book was laid out together with Conor Gearty, when I was a lecturer at the Centre for the Study of Human Rights at the London School of Economics and Political Science. I am indebted to Conor not only for working out the original proposal with me and for agreeing to write the preface, but for his encouragement throughout, for many comments on the draft, and for constantly reminding me to be guided by the kind of critical inter-disciplinary human rights scholarship which the centre has come to stand for under his leadership. While most of the book was written at my home institution, the Institute of International Law and International Relations at the University of Graz, I benefited greatly from having been accepted (back) so warmly as a Visiting Fellow at the Centre for the Study of Human Rights. I am grateful to colleagues at both institutions for their continuing support.
Louise Knight and Emma Hutchinson at Polity Press have been supportive and patient in equal measure, and I owe them my warm thanks for kicking off the whole project, putting their trust in me, and agreeing to the inter-disciplinary approach I have taken. I am indebted to many friends and colleagues who provided ideas and commented on various drafts. My particular thanks go to Wolfgang Benedek, Christine Chinkin, Frank Elbers, Francesca Klug, Renate Kicker, Zdzislaw Kedzia, Jan Klabbers, Manfred Nowak, Catrin Pekari, Christian Pippan, Kirsten Schmalenbach, Andrea Shemberg and Bert Theuermann, as well as to the two anonymous reviewers. The book also benefited greatly from many stimulating thoughts and questions from the students I have had the privilege to teach over the years in my human rights classes in the MSc human rights programme at the LSE, at the University of Graz, on the web, and in summer schools and courses in many places. The support of my wife throughout the writing has been essential – thanks, Carla! The book is dedicated to Felix, who makes such a difference.
ABBREVIATIONS
1
INTRODUCTION
The establishment of a breadth and range of global human rights institutions over the past half century seems a remarkable achievement. Today, a complex web of institutions is entrusted with protecting and promoting human rights and with preventing and remedying human rights violations. They fulfil a variety of functions that would have been inconceivable a few years, let alone decades, ago. What is often described as a system, though, is a multitude of entities which vary greatly in their range, remit and composition. Established ad hoc in response to concrete needs rather than as part of any master plan, such institutions have experienced sustained, yet mostly unplanned and uncoordinated, growth and internal development. In addition to the proliferation of institutions specifically entrusted with human rights matters, the idea of mainstreaming human rights is increasingly leading institutions charged with humanitarian, development, health-related, economic and other issues to perceive human rights as part of their mandate or to develop policies and activities on human rights.
The sustained development and growth of global human rights institutions pose considerable challenges to international politics, international legal and international relations scholarship and reveal a series of questions: Why do states create human rights institutions in the first place, knowing that all they will do is nag about states’ preparedness to respect human rights? What do states seek to achieve through such cooperation, and is it different from what the institutions themselves seek to accomplish? Questions as to the practical consequences and the effectiveness of establishing and expanding an ever tighter institutional web composed of bodies, councils and commissions, with their professional human rights bureaucrats, monitors, judges and experts, flow from these queries: Are multilateral forums suitable venues for protecting human rights, or do they provide a fig leaf for governmental inaction in the face of massive human suffering? What happens to human rights when they are being encased in global institutions? What are the benefits, consequences and drawbacks of institutionalizing human rights? Does the latter turn human rights, this powerful force for social change, into a stale bureaucratic routine? Or does it give practical meaning to otherwise lofty goals? How does the design of a global human rights ‘infrastructure’ impede the implementation of human rights, and how does their continuing institutionalization affect our understanding of human rights? Many of these questions have never been systematically examined (Steiner, 2003: 760).
Like states, individuals, too, have long since joined forces and established voluntary associations on a global scale. The likes of Amnesty International, Human Rights Watch and the International Commission of Jurists have over time acquired a strong position towards both states and inter-governmental organizations. In fact, those non-governmental organizations (NGOs) have become indispensable to the successful development and implementation of human rights, and their impact on the work of inter-governmental organizations can be considerable. As with inter-governmental organizations, their spread and rising influence deserves critical appraisal: What is their role and legal standing in international affairs and international law? Who do they represent? Are they the antithesis of inter-governmental organizations or merely another component in a proliferating global ‘bureaucratic’ web?
This book is an introduction both to the world of global human rights institutions and to the challenges and paradoxes of ‘institutionalizing’ human rights. It provides a comprehensive treatment of such institutions, both governmental and non-governmental. It examines institutions established within the United Nations (UN) which are explicitly mandated with the promotion and protection of human rights; the process of mainstreaming human rights into formerly ‘non-political’ or ‘technical’ institutions; international courts which adjudicate human rights; and human rights NGOs. In mapping the ever more complex network of such global human rights institutions it asks, in essence, what these institutions are and what they are for, and whether this ‘hardware’ of the global human rights system is fit for today’s demands.
This book does not describe or analyse human rights norms, standards and principles, nor is it a handbook on how to use international procedures and mechanisms. Such questions of substance (What are human rights?) and procedure (How are they realized?) find answers in a number of other textbooks. The analysis of institutional aspects of the global human rights system and the relationship between form and function has attracted less attention. What is of interest here are the expectations for and consequences of institutionalizing human rights, as well as the advantages and drawbacks of this process. By critically assessing and appraising the increased ‘institutionalization’ or ‘bureaucratization’ of human rights through an ever expanding range of global institutions, the following chapters reflect on how this process may change our perception of human rights. Given the approach and scope of the book as an introductory text, this will amount neither to an empirical assessment of how international human rights regimes lead to domestic change (such as the one undertaken by, e.g., Risse, Ropp and Sikkink, 1999) nor to the formulation of a comprehensive theory on the behaviour of international organizations (as carried out by, e.g., Barnett and Finnemore, 2004). What this book seeks to achieve is to bring together, in an accessible way, the multitude of global institutions which are concerned with human rights, and to acknowledge and analyse the manifold legal questions and theoretical concerns associated with the institutionalization of international relations in the field of human rights.
In examining these questions, the book draws on international legal scholarship and international relations literature alike. It goes without saying that such an approach may leave scholars in both fields unsatisfied, as it will not do justice to the particular theoretical depths which each discipline has reached in discussing human rights. This has to be weighed against the hope that the book will contribute to a growing literature that sees human rights as an inter-disciplinary concept. The need to understand the competences and constraints of human rights institutions necessitates, first and foremost, a dissection of international human rights law. As a consequence the predominance of legal discourse in matters of human rights will become visible in the following chapters. Yet, the book rests on the assumption that ‘excessive attention to human-rights law distorts our understanding of human rights’ (Freeman, 2002: 12). International law alone is insufficient to understand why human rights institutions are being formed, what they do and why they do it, what they seek to achieve and where they fail, and what sort of human rights infrastructure we are effectively creating.
For the purpose of this analysis, the term ‘global human rights institutions’ brings together a range of entities of diverse legal character, internal organization and appearance. The vagueness of the term ‘global human rights institution’ is one of deliberate choice: this is not a treatise of the law of international organizations, nor does it fan out theories on institutions and regimes as elements of international relations. It simply allows the examination of formally established institutions which have, or are perceived to have, a profound impact on the way in which human rights are developed, implemented, supervised, enforced or promoted on a global scale. The focus is on formally established institutions and not on ‘the human rights movement’ or networks and coalitions concerned with the promotion and protection of human rights, or on UN conferences or initiatives, such as the UN Global Compact (which brings together business, inter-governmental agencies and civil society groups in support of social and human rights principles). This is not to deny the importance of such networks and initiatives for the development of human rights; in fact some of those initiatives may have a more profound impact than the work of inter-governmental bodies. Likewise, the discussion of regional human rights institutions in Europe, the Americas and Africa is beyond the remit of this book, notwithstanding that some of these systems have more sophisticated and sustainable institutions, including human rights courts, for the protection and promotion of human rights.
The approach of the book is both descriptive in a functional sense, mapping the field of global human rights institutions and their activities, and analytical and critical in its exposure of the advantages and dangers of organizing human rights in institutional formats. Chapter 2 raises some theoretical questions and discusses the process of institutionalizing human rights, the (self-)perception of global human rights institutions and the paradoxes encountered in casting human rights in formal structures. Chapter 3 traces the development of global human rights institutions, from first attempts of social movements to promote humanitarian issues via the League of Nations and the International Labour Organization (ILO) to the UN. Chapters 4 to 6 present, discuss and critically assess global human rights institutions, thus demonstrating the practical consequences of the theoretical and conceptual concerns raised before. More specifically, chapter 4 introduces UN human rights institutions with an explicit mandate to promote and protect human rights, commonly referred to as the ‘UN human rights system’, including the UN Human Rights Council as the most recent innovation. Chapter 5 discusses the progress and challenges of mainstreaming human rights into institutions entrusted with global humanitarian, social, economic and financial concerns. In doing so, it takes stock of a decade of mainstreaming human rights since the UN Secretary-General’s proposal on this in 1997 and also highlights the Security Council’s position towards human rights. Chapter 6 is devoted to international tribunals, which play an increasingly important role for the adjudication of human rights violations. It examines the International Court of Justice (ICJ) and the International Criminal Court (ICC) and discusses the prospects for a world court on human rights. Chapter 7 turns to global non-governmental institutions, the rise of which not only accompanies but exceeds the growth of inter-governmental institutions. It focuses less on the role of NGOs vis-à-vis governments, or the emergence of a global civil society, and more on the nexus between inter-governmental and non-governmental institutions as two structural frameworks for human rights.
2
INSTITUTIONALIZING HUMAN RIGHTS: EXPECTATIONS, PARADOXES AND CONSEQUENCES
The term ‘institution’ is charged with a specific meaning in various academic disciplines and their schools. As a matter of fact, in both international law and international relations the respective terminology is disputed. While international law clearly sets apart inter-governmental from non-governmental organizations as two types of organization rooted in different legal grounds (the former in international law, the latter in national law), the difference between an international ‘organization’ and an ‘organ’ is less clear. At times a sharp distinction is made between the two, at others both terms are used interchangeably, or the notion ‘international institution’ is used as a synonym (Klabbers, 2002: 10). International relations theory applies the term institution differently from international law (Lang, 1994), and the move in the 1970s away from the study of formally established international organizations to that of ‘regimes’ has altered the discipline’s understanding of what an ‘institution’ is. Today, a range of usages of the notion ‘institution’ exist (Simmons and Martin, 2002: 192–4), and often institutions are equated with international regimes, that is ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations’, to use Krasner’s standard definition (Krasner, 1983: 2). In human rights scholarship, the term ‘human rights regime’ is, in a similar way, often used to describe the totality of relevant standards, procedures and institutions in the field of human rights (Donnelly, 1984; Nowak, 2003; Donnelly, 2003: 127–54).
For the purpose of this analysis, the term ‘institution’ refers to formally established international organizations and their organs, international courts and international non-governmental organizations. The following chapters approach global human rights institutions neither from a realist perspective (which would assert that such institutions are nothing but states in disguise) nor with an idealist assumption that their existence and output is necessarily beneficial for all parties concerned. What is said here is based on the premise that such institutions matter, but that we still find it difficult to explain why and how they matter. This analysis presents a range of such institutions, based on a more constructivist approach, which asks if, why, and how they are able to assert themselves as autonomous actors for ‘managing’ global human rights norms and what consequences this may entail.
The question why states set up global institutions continues to puzzle international relations scholars and drives international lawyers in their ongoing search for a legal theory of international organizations. With idealists and neoliberals pointing out their significance and necessity, functionalists invoking their usefulness, institutionalists and constructivists asserting their influence, realists being sceptical about all that, and normative theories dissecting their foundations, there is no shortage of analytical engagement with international organizations. Yet, as Abbott and Snidal have remarked, neither of these theories ‘adequately explains why states use formal international organizations; each holds key insights’ (Abbott and Snidal, 2001: 12–15). Once set up, international institutions confront us with another set of questions, which interestingly has found less resonance in international relations scholarship (Barnett and Finnemore, 2004: 2): What are such institutions: autonomous actors or puppets on governments’ strings? What makes them behave the way that they do? Is it their masters, the states, that set them up, or are they endowed with a will of their own? And where would such a will come from? International lawyers consider such questions in the form of legal theories. They award or deny international institutions different degrees of legal ‘personality’ or ‘subjectivity’, and they attribute or withdraw powers on the basis of such theories (e.g., Klabbers, 2002: 42–81).
Human rights institutions seem to be a particularly fertile ground for analysing such questions. The matter they manage – human rights – makes the existence and proliferation of such institutions even more enigmatic than the spread of international institutions in other fields. Unlike many global institutions devoted to cooperation in ‘technical’ areas (say, the Universal Postal Union), international cooperation in human rights is politically sensitive, and the activities of human rights institutions are more likely to be a constant provocation to governments, a conceptual challenge for international law and an irritation for (realist) international relations scholarship. The idea of human rights continuously tests the established concepts of sovereignty, territoriality and non-interference in domestic affairs, allows individuals to stand up against states in ways unimaginable in other fields of international law, questions the primacy of states in international affairs, and thus forecasts a more participatory and inclusive international legal order. Why would states support all this by setting up human rights institutions? Surprisingly, and in contrast to discussing the existence of international institutions as a general phenomenon, the evolution of international institutions specifically devoted to human rights has attracted less attention in international relations scholarship (Schmitz and Sikkink, 2002: 528), and so has their performance. Likewise, international legal scholarship, while engaging with human rights institutions, has largely been content to describe such institutions rather than to debate the conditions for and consequences of their establishment and proliferation. While this book does not aim to put forward a comprehensive theory to settle such questions, some assumptions and paradoxes with regard to the establishment and behaviour of such institutions will be discerned in the following, as they have a profound impact on the way in which these institutions approach human rights.
Efficiency, Legitimacy, Power
One main assumption as to why states set up international institutions is that such bodies are useful because they provide a means of cooperation in areas in which such cooperation is to the advantage of all participants. Bennett and Oliver, for example, argue that their creation is not only logical for states, but indispensable, because they provide channels for communication; they allow for decisions on such cooperation to be reached; they offer an administrative machinery for supporting this process and putting the decision into action; and they offer a way of settling differences and finding compromises, thus minimizing the effects of conflicts (Bennett and Oliver, 2002). The same is said to be true of the ability of international institutions to guarantee a higher level of stability, durability and predictability than can be achieved by purely inter-state relations (Abbott and Snidal, 2001). States may be interested in setting up and acceding to human rights institutions to achieve results they would find difficult or impossible to realize in bilateral encounters: adopting a treaty on the rights of children, defining the scope of the right to housing, or settling disputes over what constitutes a violation of freedom of expression.
The reduction of transaction costs in deciding on and implementing community norms is, however, only part of the answer as to why states set up human rights institutions. To the rationality and stability which international institutions may offer, other (sociological) considerations may be added which link international institutions with legitimacy and power (Barnett and Finnemore, 1999: 702). Wielding power, i.e., influencing decisions, is an important, if not the most important, incentive which makes states participate in human rights institutions. Such participation allows them to shape the outcome of the work of these institutions in line with their national interest, to defend their position, to avert scrutiny, to confront other states with accusations, or, at the very minimum, to be kept informed on developments and trends in the field of human rights. Still, states’ attitudes towards and expectations for human rights institutions differ. In the Commission on Human Rights, for example, China has repeatedly undertaken considerable efforts to avert, through procedural means, the adoption of a critical resolution on its own human rights situation, while other countries, such as Burma/Myanmar, largely ignore whatever resolution the Commission may consider passing. There are also differences in what, e.g., Cuba may seek to achieve by membership in the UN Human Rights Council compared to, e.g., Sweden. Yet, while there is some scholarly engagement with the factors affecting states’ desire to wield influence in international organizations (Smith, 2006: 27–8), there is comparably little (empirical) research to analyse and explain such different attitudes and expectations in the field of human rights (with a few exceptions, e.g., Kent, 1999).
Concerns over legitimacy, coupled with an interest in a state’s credibility and international reputation, is the third element in explaining why states participate in human rights institutions (Barnett and Finnemore, 1999: 703). Both the creation of an international human rights institution and the participation therein may be considered as endowing governments with legitimacy, credibility and reputation. Moreover, it is worth noting that sometimes institutions are not only set up for what they do, but also for what they are and what they symbolize (ibid.). Human rights institutions may be particularly prone to conveying the doubtful message that participation in such an institution would, in itself, raise a state’s reputation in matters of human rights or be a contribution to their advancement. Was this, for example, the reason why Libya sought to chair the UN Commission on Human Rights in 2003 (and succeeded in doing so)? Or was it the result of group dynamics in the African regional bloc in the commission which put its trust in Libya to best represent its concerns? Or was it other considerations that guided Libya’s decision? Again, in the absence of studies into these questions, speculations have to fill in where research is lacking. All three considerations together – efficiency, legitimacy and power – may, however, help to explain why international human rights institutions are set up, and why states compete for membership in human rights bodies.
Arena, Instrument, Actor
This description of international institutions as arenas, instruments and actors is also helpful for understanding why states set up human rights institutions and explaining their role, potential and limits (Archer, 2001: 68–92; White, 2005: 47–59). As instruments, international institutions are used by member states for their purposes and act as mere transmissions for participating governments, executing their decisions and projecting national policies to the international level. As an arena, they provide an (allegedly neutral) space in which inter-governmental action takes place, facilitating meetings, discussions, negotiations and decision-making. As actors, inter-governmental organizations assume independence above and beyond the wishes of member states. Such independence does not mean the elevation to actors on a par with states, but rather that the institutions may respond in ways that differ from states’ expectations and requests (Archer, 2001: 79). After all, institutions do not always develop as expected: ‘use confers power and power unused diminishes’ (O’Donovan, 1992: 105).
Those three functions are usually interwoven, with sometimes one function being foregrounded, then the other. And indeed no single function alone sufficiently explains what international institutions are and what they do. The view that they are mere instruments is proven wrong by many practical instances of institutions acting in their own capacity or simply misbehaving (Barnett and Finnemore, 1999: 715). The view that institutions are mere arenas is naïve, as it assumes that form and procedure of such institutions, and decisions over such form and procedure, are ‘apolitical’, which they most certainly are not (as will be shown below). And the view that institutions are independent has the utopian touch of institutions as global human rights guardians which are able to curtail states as they see fit, which is not the case in reality.
In the Commission on Human Rights, the arena/instrument dichotomy was usually expressed in terms of a ‘cooperative’ versus a ‘confrontational’ approach. Whenever a group of states (usually Western) pushed for the adoption of a country resolution, they were accused of instrumentalizing this allegedly neutral forum for political purposes – to which Western states responded that their counterparts would prevent the Commission from acting in an effective manner. At times, human rights institutions free themselves from the constraints of being mere instruments or arenas, and go about their business in a more autonomous way. The UN Human Rights Committee (the expert committee set up to monitor implementation of the International Covenant on Civil and Political Rights) is an independent body and arguably the closest the UN has come to a human rights ‘tribunal’ (notwithstanding it lacks any enforcement capacity). And the UN High Commissioner for Human Rights provides perhaps a striking example of the tensions arising from being an actor and an instrument, as the holder of this post is both secretary to the UN and its member states and mandated to speak out on human rights violations in those very states.
Ignoring that all human rights institutions, to varying degrees, may simultaneously be arena, instrument and actor leads to a misunderstanding as to their potential and limits. To put it in other words: the mistaken perception that global human rights institutions are always and only autonomous actors is at the heart of much of the frustration over their performance. On the other hand, the view that they do not matter at all because they are nothing other than a reflection of the will of some powerful states is equally short-sighted and does not properly reflect the reality of human rights institutions.
Autonomy and Dependence
The last of the three functions mentioned above – institutions as autonomous actors – deserves closer analysis, as it lies at the heart of the often heard outcry that ‘the UN must do something!’. Is there such a thing as ‘the UN’ (or ‘the Human Rights Council’) as an autonomous entity, or is the organization (or the organ, in the case of the Council) merely the sum of its members? Different strands of international relations and legal scholarship argue that international institutions can be autonomous and powerful actors in global politics (Barnett and Finnemore, 1999: 700, with an overview of the respective authors). In much the same vein, Abbott and Snidal speak of the two main functions of international organizations, centralization – i.e., managing ‘collective activities through a concrete and stable structure and a supportive administrative apparatus’ – and independence, which is ‘the ability to act with a degree of autonomy within defined spheres’ (Abbott and Snidal, 2001: 10–11). Similarly, principal-agent analysis understands international institutions as ‘agents’ of states (‘principals’), and asks whether agents are simple delegates of their principles or whether they pursue their own preferences (authors quoted in Barnett and Finnemore, 1999: 705).
International legal theory is plagued by the same problem: is an international organization an autonomous legal personality, distinct from the assembled member states and endowed with a will of its own, or does it depend entirely on its member states to function? The view that international organizations are mere arenas for international cooperation, empty shells to be filled with states’ demands, is now viewed largely as simplistic and outdated (White, 1997: 1–2). To explain the dichotomy of dependence and independence, different solutions have been put forward (Klabbers, 2002: 34–41; Alvarez, 2006: 336–9). The theory of functional necessity is based on the premise that an organization can claim all those rights and privileges which enable it to function effectively. The implied powers doctrine considers all those powers which an organization needs to function effectively as inferred in its founding documents. The doctrine of attributed powers leaves member states in control over their creation by negating all powers which have not expressly been attributed to it. An objective theory of the personality of international organizations was suggested by Seyersted in the 1960s, the effect of which would be to grant them inherent powers and allow them everything that is not expressly prohibited in their constituent documents (Klabbers, 2002: 75). Still, as in international relations scholarship, no overall or universally accepted theory has yet solved the dichotomy of the independence and at the same time dependence of international institutions.
This dichotomy affects human rights institutions, whether they are governmental councils, independent expert bodies, hybrid institutions composed of governmental and non-governmental representatives, secretariat units of international organizations, specialized agencies or international tribunals. As mentioned above, the position of UN High Commissioner for Human Rights, created by UN member states in a General Assembly resolution, is placed in a delicate situation. The High Commissioner is called upon to serve governments as part of the UN secretariat, but is at the same time entrusted with a mandate to protect and promote human rights as if acting as an independent entity, when in fact she or he remains answerable to the UN Human Rights Council, a governmental body. Despite the High Commissioner being entangled in this matrix of dependence and accountability, many perceive the post as a partner in – and even leader of – the global human rights movement. The shaky legal foundations of the special procedures of the Human Rights Council, to give yet another example, entitle mandate holders to work completely independently, yet they are unable to visit states without prior consent. Furthermore, they depend on the services of the UN secretariat, the resources and mandate of which are controlled by exactly the same governments that the mandate holders are meant to scrutinize. Nor are international courts exempt from this dichotomy. They are not only dependent on support from states, but the ICJ, for example, despite being part and parcel of the UN’s machinery, can only be accessed once states have specifically accepted its jurisdiction. The criminal tribunals for the former Yugoslavia and for Rwanda were set up by the Security Council and remain dependent on the Council, while the ICC is based on an international treaty, of which state parties remain the masters. The autonomy of international courts can, furthermore, be curtailed by legal manoeuvres such as the successful move of the USA to make states approve bilateral agreements requiring them not to surrender American nationals to the ICC (the so-called Article 98 agreements). International courts also remain dependent on states’ support in enforcing their decisions. Even the European Court of Human Rights, arguably the most advanced judicial mechanism for remedying human rights violations, has to rely on the Committee of Ministers (the Council of Europe’s inter-governmental body) to supervise the execution of its judgments.
All of this is a reflection of what may be termed ‘Frankenstein’s dilemma’. At some point in Mary Shelley’s novel, Frankenstein’s creature, trying to break free from his miserable life, hurls into Frankenstein’s face: ‘You are my creator, but I am your master; – obey!’ It is a dilemma all international institutions face (Klabbers, 2002: 28–81), but institutions mandated with upholding individual rights against the very states that have created them are exceptionally prone to suffer from it. In setting up human rights institutions, states seem to express a dual expectation: on the one hand they wish such institutions to remain at their disposal to increase efficiency in cooperation, enhance their legitimacy and power, and serve as their arenas and instruments. On the other hand, they want such institutions to reach a degree of autonomy from states which would allow them to confront their creators with their deviant behaviour. To fulfil the latter expectation, however, they would have to ‘develop along their human rights mandate rather than state preferences’ (Schmitz and Sikkink, 2002: 526).
Form and Function
Unlike human rights activists, movements or initiatives, global human rights institutions work in a strictly institutional, bureaucratic and legal framework. They seek to translate the concerns of human rights – upholding human dignity, protecting the vulnerable, empowering the powerless, remedying wrongdoing – into processes and procedures. In order to gain access to global human rights institutions, victims have to be turned into ‘parties’ submitting a ‘communication’, or else they go unheard; perpetrators have to be labelled as ‘agents of the state’, or else they cannot be held accountable; and NGOs have to seek ‘consultative status’ with inter-governmental bodies, or else they will not gain access to the conference hall. Form and procedure begin to matter, and function may be moulded to fit the form. In the choice of the appropriate body, the proper procedure and the suitable mechanism lie the chances for success and failure for those who seek redress, assistance or guidance. The novice in matters of human rights is confronted with an astounding array of questions: in the case of, say, torture, what is the appropriate forum, and why – the UN Human Rights Committee, the UN Committee on the Prevention of Torture, the UN Special Rapporteur on Torture, or the ICC? And what difference does it make that in 2004 the UN Commission on Human Rights appointed an Independent Expert on Sudan under its agenda item 3 (‘organization of work’) rather than item 9 (‘violation of human rights in any part of the world’)?
The choice of forum and procedure is crucial, but the exuberance of human rights bodies, committees, councils, working groups and commissions, with their different rules of procedures and working methods, makes access for victims and their advocates difficult. For the uninitiated, navigation through this jumble is challenging. Excluding unrepresented groups on procedural grounds is common, and even those groups and individuals who gain access to the meeting rooms of international institutions must transform their concerns in response to formal requirements. It is not so much the preamble of the UN Charter (‘We, the peoples’) that matters in UN conferences, but formal and informal codes of behaviour which regulate issues such as accreditation, speaking times, lobbying, or the circulation of documents. How to convey the plight of your fellow sufferers to a human rights body in only three minutes? How best to approach the ambassador of Pakistan? How to submit a document formally? For those wishing to participate or seeking redress and assistance, the rules of procedure are as important as the rules of personal networking (Smith, 2006: 223–45).
Form matters not only for individuals and groups seeking to access global human rights institutions, but for states, too, when they set up or participate in such institutions. In the architecture, structure and form of human rights institutions lies just as great a challenge for human rights as in interpreting their content and scope. Indeed, ‘in states’ decisions about architecture lie some of the most acerbic fights and deepest divisions in the human rights movement’ (Steiner and Alston, 2000: 562). One need not recall the struggle over setting up the ICC, as a more unassuming example may suffice: the composition of the Office of the High Commissioner in terms of the geographic distribution of staff is a recurring contentious issue in inter-governmental debates in the UN, as reflected in the Office’s most recent report in this respect (UN doc. E/CN.4/2006/103). Similarly, whenever human rights bodies have to resort to voluntary contributions to make up for what is lacking in an organization’s regular budget, discussions follow suit over the influence donors gain by offering such contributions. The struggle over design and modalities, procedure and membership, voting rules and methods of work is a fight not only over influence and power but often also over the place and role of human rights in international affairs.
Bureaucracy: Authority and Alienation
Let us take further the argument that form matters as much as substance: would we then have to conclude that the establishment of ever more institutions for the protection and promotion of human rights turns human rights, the rallying-cry of the subjugated against their oppressive governments, into a bureaucratic affair? And is this a development we should wish for or dread? Philip Allott has offered perhaps the most scathing critique of institutionalizing human rights:
But, as so often in human social experience, the installation of human rights in the international constitution after 1945 has been paradoxical. The idea of human rights quickly became perverted by the self-misconceiving of international society. Human rights were quickly appropriated by governments, embodied in treaties, made part of the stuff of primitive international relations, swept up into the maw of an international bureaucracy. The reality of the idea of human rights has been degraded. From being a source of ultimate anxiety for usurping holders of public social power, they were turned into bureaucratic small-change. Human rights, a reservoir of unlimited power in all the self-creating of society, became a plaything of governments and lawyers. The game of human rights has been played in international statal organizations by diplomats and bureaucrats, and their appointees, in the setting and ethos of traditional international relations. The result has been that the potential and energy of the idea has been dissipated. Alienation, corruption, tyranny, and oppression have continued wholesale in many societies all over the world. And in all societies governments have been reassured in their arrogance by the idea that, if they are not proved actually to be violating the substance of particularized human rights, if they can bring their willing and acting within the wording of this or that formula with its lawyerly qualifications and exceptions, then they are doing well enough. The idea of human rights should intimidate governments or it is worth nothing. If the idea of human rights reassures governments it is worse than nothing. (Allott, 1990: 287–8)
The development of international bureaucracies as embodied in international institutions follows the same pattern as described for domestic bureaucracies by various strands of sociological theory beginning with Max Weber (Barnett and Finnemore, 1999: 706). International bureaucracies, like all bureaucracies, control knowledge and information, and therein lies much of their strength and authority. It allows them to classify information, actors and actions; define problems; articulate norms; fix meanings; and enforce values and norms. Barnett and Finnemore have recently shown how the fact that international organizations are bureaucracies helps explain their status and behaviour as autonomous entities (Barnett and Finnemore, 2004: 16–44). Their argument rests on the idea that, in international relations, authority may not be derived only from state sovereignty. Consequently, the authority which international organizations possess may not come solely from being set up by states, but may be a rational-legal authority (stemming from the regulatory framework in which bureaucracies operate), a moral authority (which comes from a bureaucracy’s perceived neutrality, impartiality and objectivity) or an expert authority (which reflects the bureaucracy’s control over knowledge). International organizations, Barnett and Finnemore say,
