A flawed approach to national implementation of human rights

Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

State parties to United Nations conventions are obliged to protect and promote human rights in their countries, while international organizations contribute to the national implementation of human rights by monitoring and offering assistance. Very often these agencies concentrate their energies on building and supporting national institutions for protection of human rights. The multitudes of academic courses on human rights that have sprung up in recent years also spend a lot of time dwelling on these institutions.

But what are national institutions for protection of human rights? In recent years they have come to be synonymous with national human rights commissions or their equivalents. Considerable time is devoted to the study of these commissions, and UN agencies often recommend their improvement as a primary means to protect and promote human rights nationally.

This is a flawed approach to national implementation of human rights, caused by deep misunderstanding, and neglect of article 2 of the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural Rights. It is also an approach that indirectly denies the right of people to express their real frustrations at the lack of respect for human rights in their countries.

Article 2 makes it the primary obligation of the state “to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind”. It spells out these obligations:

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights in the present Covenant.

3. Each State Party to the present Covenant undertakes:

a. To ensure that any person whose rights or freedoms as herein are violated shall have an effective remedy, not withstanding that the violation has been committed by persons acting in an official capacity.

b. To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for the legal system of the State, and to develop the possibilities of judicial remedies.

c. To ensure that the competent authorities shall enforce such remedies when granted.

Article 2 captures the essence of what is meant by national implementation of human rights. It holds that the state must be able to protect human rights by ensuring competent and impartial investigations into violations and by taking other measures to protect persons in need of protection. It requires functioning and credible policing, impartial and speedy prosecutions and due process. It obliges the state to provide adequate facilities for the police, prosecution and judiciary to work accordingly. It points to the need to amend laws to remove hindrances and encourage the better functioning of these institutions for protection of human rights. In short, it puts the primary onus for protection of human rights on state agencies.

Academic programmes and UN bodies alike should emphasize national implementation of human rights via policing, the prosecution and judiciary. Students brought to measure human rights in terms of the effectiveness of these agencies will be much better equipped to raise and contribute to discussion on pertinent issues of human rights implementation, now and in the future. However, the vast numbers of research papers that are these days completed by students in human rights courses hardly ever pay any attention to policing and prosecution agencies. And to the extent that the judiciary is mentioned, it is more in terms of general principles rather than the specific problems it poses to the protection of human rights in a particular country. Students therefore fail to see and grapple with the real defects that must be addressed if there are to be improvements.

The established method of teaching and espousing human rights is that if ideal principles of human rights and law are taught then these can slowly displace bad systems and end violations. This method has been proved wrong by over a century of instruction about separation of powers, independence of the judiciary and so on in countries around the world that had been ruled by Europeans: first by the colonial powers themselves and later by local intellectuals. Generations of students have been taught about the independence of the judiciary in countries where the judiciary is a tool of the executive power, or where it has subtly adjusted itself to the needs of the executive. The lessons they have been taught have not equipped them in any way to address the enormous levels of judicial corruption and the extent of decrepitude that persist today.

So what can be expected of national human rights commissions? Most in Asia have been formed within the last decade with the expectation that they set out to protect and uphold human rights. International agencies and academic programmes have placed great store in this. But under even the best conditions the functions of these institutions are necessarily limited. Under the circumstances described above–without any practical measures taken by state parties to address judicial, police and prosecution corruption and ineptitude–it is absurd to expect that these commissions can make meaningful contributions, let alone serve as the main force for human rights protection in their respective countries.

This situation can be partly addressed by a concerted change in the methods of studying and teaching human rights adopted by universities and international agencies. What is needed is far greater input by persons knowledgeable about first the reality of human rights non-implementation in their countries, and then the principles. These persons must themselves be deeply committed to the promotion and protection of human rights by contributing to change locally. Such persons could do much to mend the present flawed approach on national implementation of human rights by meaningfully connecting the real problems that obstruct generally understood principles from becoming operative.

Persons who will spend their lives working to address not only individual violations of human rights but also a thoroughly corrupted legal culture must not be confined to learning and talking about principles that cannot be found in practice in their countries: they must begin with reality, and then with the principles and institutions needed to cause change. It is not difficult to begin with reality. Hardly anybody in Asia does not have some inner frustration that is linked to violations of human rights, whether it is about freedom of expression, police violence, working conditions, the environment or treatment of women. However, most of the time these frustrations remain private: perhaps shared among family and friends.

Human rights courses and international agencies, among others, could play a sorely needed role in giving voice to these frustrations, which can rarely be brought out to the fore in newspapers and electronic media, as these usually try to discourage the appearance of excessive discontent in a society: or simply prohibit such expressions altogether. So-called moral and ethical norms may also be invoked to deny expression.

Instead of persisting with their flawed approach to national implementation that starts with general principles, academics and international experts should be making a conscious effort to learn the detailed stories of individual violations and then connecting these to the institutional and systemic problems associated with article 2. This takes time. But over time, it leads to a meaningful understanding of why and how violations occur and what can be done to address them. When that happens, the shallow discussion about human rights that at present goes on in most universities and international agencies will be greatly enriched, and these institutions will in turn make a far greater impression on the wider narrative of human rights than they do at present.

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