Tuesday, August 26, 2014

The Trouble with the Institutions of International Human Rights--Dissonance and Incoherence Between States and the International Organizations that Serve Them

One of the most interesting elements of the elaboration of an international legal architecture for the management of relations among states and for the constraints on the conduct of states within their own borders has been the dissonance between what a number of states believe they are creating and what the inhabitants of the international organizations created believe. Some states believe that they have created an instrument in international organizations that may be used in the course of inter governmental relations unconstrained by the legalisms that affect a state's behavior within their borders. Others believe that they have created a system of governance (some might call it law--and it may be so when such states have the power to force these rules on other states). Most interesting perhaps is the view from within the international bodies themselves.

(Pix (c) Larry Catá Backer 2014)

A recent speech given by Navi Pillay, the outgoing High Commissioner for Human Rights nicely frames the contradictions and constrains of the architecture for international peace and security that is the product of the premises of framework for organizing the community of states from a global community just emerging from the last global war in 1945, a community that has for all practical purposes now passed onto history. As described in the press release announcing the speech (which is quite short as far as these things go) it was noted that
Briefing a Security Council open debate on international peace and security, the High Commissioner listed examples where OHCHR's work has helped prevent, de-escalate and resolve crises. She noted that the scrutiny of Special Procedures and Treaty Bodies contributes to early warning of the human rights grievances that are the underlying causes of conflict. And yet, she said, despite increasing interest by the Security Council in human rights over the course of her tenure, "There has not always been a firm and principled decision by Members to put an end to crises. Short-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of - and long-term threats to - international peace and security. I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives."
Full text of the speech HERE.  The speech is particularly useful for illustrating the quite specific self conception of the role of international organizations and the frustration that results when these self conceptions bump up against the realities of the more traditional and conventional thinking of its stakeholders.

My object in this post to to provide a gloss on that speech.  Both the text of the speech and my gloss [in brackets] follow:

Security Council Open Debate on Maintenance of International Peace and Security

Mr. President
Distinguished members of the Council,

Thank you for this opportunity to interact with the Security Council a few days before the end of my term.

Conflict prevention is complex, but it can be achieved. In many States, democratic institutions de-escalate disputes long before they reach boiling point. Even after violence has broken out, international actors can help broker and enforce peace. In my own country, South Africa, the United Nations helped end 300 years of injustice when it declared apartheid a crime against humanity and imposed sanctions; and democratic institutions were installed to resolve future disputes. [Two points here worth mentioning.  The first is that the relationship between itself and democratic institutions has been problematic at best.  The issue of the legitimacy of democratic institutions and the range of its form continues to evade the OHCHR and the concept itself has been used more as an instrument for the advancement of state policy than for  much of anything else.  The only thing that appears clear at the international level is that these organs like to see the masses vote. And indeed, one need only recall the current situation in Libya to understands that "democracy" can be as much the cause of instability as its solution.  The problem is not "democracy" or democratic values" the problem is that at the international level these remain somewhat empty (or malleable) concepts. Second, and more important, is way in which the mythologizing of the singular (and perhaps unique) situation that produced a transition from apartheid South Africa to its current regime, and the universalization of the "lessons" of that experience, like the more ancient cluster of "lessons" produced by the close of the Second World War, can be as much an impediment as a positive force for engaging with evolving contemporary global norms and issues.  There are lots of lessons to be drawn from transition in South Africa--one of them is that those lessons can be modulated and distorted to advance state interests, or the interests of factions of civil society and the international community, today. The other is that it can be used as an epithet to shut down discourse  where it is used instrumentally to de legitimate states (for example Israel)].

In Nepal, following almost a decade of armed conflict, my Office's efforts included, deployment of both short- and long-term strategies. They included support for Constituent Assembly elections; and capacity-building for police, civil society, and important government initiatives such as addressing caste based discrimination. [This was indeed a great success of the OHCHR and ought to be lauded for its effects.  But it is harder to extrapolate from this success onto other contexts.  And it is even harder, as in the case of South Africa, to distill universal lessons that might be mindlessly applied merely through the expedient of invocation of a historical success.  Having said that, however, it is important to make the effort the OHCHR attempts here--the difficulty comes not from seeking to draw lessons, but from attempting to extend them beyond their limits.  Such excess extension produces the distortions and lack of clear analysis that sometimes plague policy choices in different contexts].

Following the 2007 massacres in Guinea – a country at high risk of violence and civil war – OHCHR's work demonstrated the criticality of early engagement, notably in building civil society’s capacity to investigate and document human rights violations. There was coherent action by national, regional and international actors; and this Council established a Commission of Inquiry. Today OHCHR’s country office continues to support stronger institutions, transitional justice and reconciliation. [The OHCHR here makes an excellent point and one well worth transposing into other situations.  Engagement is the key to success.  But engagement that is methodologically rigid, or advanced through formulaic application of "insights" from prior work, may ensure the opposite of success.  Here engagement was indeed crucial; but it does not necessarily follow that engagement to build civil society is invariably the appropriate approach.  Here against the ghosts of South African successes may be useful but ought not to blind one to the importance of context. And indeed, civil peace may have been ought in this case at a high price--corruption and the transfer of effective control of rich natural resources to other states and the enterprises they might control].

None of these crises erupted without warning. They built up over years – and sometimes decades – of human rights grievances: deficient or corrupt governance and judicial institutions; discrimination and exclusion; inequities in development; exploitation and denial of economic and social rights; and repression of civil society and public freedoms. [The OHCHR produces a worthy vision of premises and quite rightly notes that social and political explosions do not occur without years of preparation.  Yet years of efforts to bring greater transparency on thise points is limited both by political contests about the meaning of the terms and the difficulty of inter governmental organizations ot free themselves from the interests of states in the development of the meaning of these terms and their application in context].

The Council’s interest in human rights has increased markedly during my tenure. But despite repeated briefings regarding escalating violations in multiple crises – by OHCHR and other human rights mechanisms – there has not always been a firm and principled decision by Members to put an end to crises. Short-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of – and long-term threats to – international peace and security. I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives. [The observation is true enough; yet it lies at the center of the system which gave birth to the OHCHR and the HR Council. What is lamented is not impediments but structural constraints on the operation of an inter governmental organization that sees itself as autonomous of its creators but which is seen in instrumental terms by its creators.  Indeed, in the absence of the constitutionalization of the United Nations system, and a confirmation of the autonomy and power of that system as against its creators, it is hard to understand (from the perspective of states) not grounding state behavior in narrow self interest even in the face of "intolerable human suffering"; indeed the essence  of inter governmentalism is to measure national tolerance for suffering by metrics that appear quite distinct from those implied by the OHCHR].


State sovereignty is often invoked to deflect UN action to prevent serious human rights violations. But as I have often said to the representatives of Governments, "You made the law; now you must observe it". Sovereign states established the UN, and built the international human rights framework, precisely because they knew that human rights violations cause conflict and undermine sovereignty. Early UN action to address human rights protects States, by warding off the threat of devastating violence. [The OHCHR understands the constraints on her power to deploy the institutions subject to her leadership, but controlled directly by a cluster of state stakeholders, as sourced in the hierarchical relationship between her office and states.  Or, better put, she understands that her office is largely constrained by the power that created it and the architecture of U.N. based human rights mechanisms.  And that brings up both the essence of the complaint lodged in this paragraph and its essential tension with the realities of the structures of international law which are quite distinct from that suggested by the OHCHR.  It is true enough that, as a matter of social norm, states may have made "law" and ought to "observe" it; but as a matter of legal norm, that is hardly the case. States may bind themselves, wholly or partially, to instruments that they retain the power to impose on themselves.  There are a few norms that may be imposed on otherwise unwilling states because of the power of custom and its license to act (e.g. jus cogens) or where a powerful coalition of states imposes its view on a matter and projects its power on the unwilling (as is likely to happen in the case of the resolution of the Jewish problem posed by Israel in the minds of many of the states that would see this disappear to their liking). But such obligations may bind states--as states--they do not invariably bind the state as a to its domestic legal order and thus may have no deep effects among those non-state actors that may fall within the control of such states. As such, the OHCHR's declaration is more a hope, a social imperative, than a legal imperative.  Well aware of this, she reminds her audience of the tensions that this quite distinct view of international "law" causes frustration in the ability of an international organization that (at least at some level) is seeking to operate autonomously of and with respect to its law making in a position superior to, the state].

This Council can take a number of innovative approaches to prevent threats to international peace and security. Within Rights Up Front, the Secretary-General can be even more proactive in alerting to potential crises, including situations that are not formally on the Council’s agenda. To further strengthen early warning, the Council could also ask for more regular and comprehensive human rights reporting by protection actors; for example my successor as the High Commissioner could provide an informal monthly briefing. [Retreating from the disjunction unmasked int he prior paragraph, the OHCHR does offer the sort of practical steps that may be the only ones available.  And indeed, transparency is likely the most powerful tool in the OHCHR arsenal, one that is sadly underused especially in relationship with civil society actors.  On that score, of course, it has become clearer that members of the Human Rights Council are more actively seeking to manage and control information and participation by non state actors than at anytime in recent memory. Thus the focus on the Security Council's role masks the growing difficulties of strengthening early warning within the architecture of the OHCHR itself].

The work done by Commissions of Inquiry to establish clarity, and prepare accountability, should be followed by implementation by this Council of many more of their recommendations for follow-up. And I trust that in the future they too will benefit from regular, official channels of communications to this Council. [Whiel the work of these commissions, of course, have been laudable and produced a measure of openness that has not existed before, there is still much work to be done to effectively distance this commissions from the "Short-term geopolitical considerations and national interest, narrowly defined" that the OHCHR leveled earlier as a basic critique of state involvement. And indeed, the transposition of such interests within human rights mechanisms continues to inhibit the work of these commissions.  A great stride forward in that respect will be attained when the OHCHR does not appear to work backwards from a desired outcome in the appointment of members to such commissions and in the development of the charges given thereto. This is far more difficult to accomplish than to state. And the task is made more difficult when such mechanisms are constructed in the wake of quite pointed and judgmental statements about the effects of the situations ot be studied that sometimes form from the OHCHR. But this points to a more fundamental problem with the structure of the OHCHR and its Human Rights Council--it is hard to exercise quasi judicial functions when one simultaneously engages in advocacy and executive functions directed by some of the parties that may be the subject of the inquiry or their allies. Yet it is in the judicialization of many of these mechanisms that the legitimacy of the work of the OHCHR can be enhanced.  The issue of judicialization and the character of the fact finding work of the OHCHR remains one of the great frontiers of that office.].

Finally, the Council could adopt a standing consensus on a menu of possible new responses to such alerts violations, such as rapid, flexible and resource-efficient human rights monitoring missions, limited in time and scope. Another innovative option could build on the new Arms Trade Treaty, which requires arms exporters and importers to confirm that weapons will not be used to commit violations. States Parties could agree that where there are concerns about human rights in States that purchase arms, one condition of sale would be that they accept a small human rights monitoring team, with deployment funded by the Treaty's Trust Fund. [That failure of its judicialization function, of course, affects the possibilities outlined in this paragraph, a paragraph that includes quite sensible suggestions to enhance the work of the OHCHR. And sadly, the suggestions must be made without reference to the short term and narrow interests of the Human Rights Council and its administrative structures, if they are to acquire the long term legitimacy that is a foundation of any movement toward autonomy and authority of these institutions.].

Thank you. It has been an honour to serve the United Nations.

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