Some reflections
As the recent demonstrations began in Burma, human rights violations were reported by e-mail, text message and digital photograph. ‘Citizen journalists’ recorded – often by the hour – the arrest of demonstrators, attacks on monks and shootings. These events were then reported by the international press, NGOs and some governments, as clear violations of the rights defined in the Universal Declaration of Human Rights.

While this information made the outside world acutely aware of what was happening, it could not transform knowledge into rights protection. Nor did it prevent the Burmese government from cutting internet links and blocking mobile phones. The speed at which information travels is new, but the old dilemma remains: how can the citizens of a sovereign state be protected against rights violations by their own government? Can political leaders be deterred from using torture by the knowledge that they may one day be prosecuted under the expanding arm of international criminal law?

Since its adoption 60 years ago, the history of the Universal Declaration of Human Rights has been one of continuing effort to protect rights and overcome the argument – made in the Security Council today, just as it was in the Commission on Human Rights in 1947 – that responsive action constitutes an interference in domestic affairs.

This problem lay at the centre of the concerns of the Declaration’s drafters: they sought to prevent “a repetition of what happened in 1933, when Germany began to massacre its own nationals, and everybody… bowed, saying ‘Thou are sovereign and master in thine own house’”. Today, the situation in Darfur gives René Cassin’s words a continuing and tragic relevance.

The Declaration was itself a compromise document. The Human Rights Commission’s original proposal included an international human rights court, and a UN agency to monitor the human rights situation in member states. These were set aside in favour of a non-binding declaration of rights. The UK was one of those which initially favoured a legally binding convention, fearing a declaration would be too vague, and a “perpetual source of mischief ”.

Throughout much of the Cold War period, support for human rights within the UN was at best passive, articulated in Dag Hammarskjöld’s metaphor of “a flying speed below which an airplane will not remain in the air”; he believed the human rights programme should remain “at that speed and no greater”. Until the mid-1970s, states were content to leave concern with human rights to the Human Rights Commission – then, as later, a largely political body which often acted as a weathervane of the international political climate.

But once the work of translating the broad principles of the Declaration into legal rights got under way, and once the two covenants – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) – had made human rights a matter of legal obligation, the Commission was joined by other, and eventually many other, UN institutions – political, legal and technical – in the work of developing and interpreting human rights. Women, children, migrant workers, and – most recently – those with disabilities now have their own treaties, which take the general rights in the Declaration, define the special protection needs of a particularly vulnerable group, and then set out the rights which individuals should enjoy, and states should protect.

Much has been written about the failures of human rights within the UN system. But it is easy to forget the political constraints imposed by member states, and especially the obstacles placed in the way of country monitoring. In the early years of the Human Rights Committee, which monitors implementation of the ICCPR, Amnesty International delivered its country reports personally to members, almost as samizdat documents, because the Secretariat was not allowed to distribute them. Ongoing controversy within the Commission, and now the Council, has focused on country mandates, and is a reminder both of the lengths to which states will go to avoid being named as human rights abusers, and of what will be achieved if the Universal Periodic Review is allowed to establish itself as an impartial monitoring mechanism.

The Last Ten Years
For much of the last decade, the Universal Declaration has not been served well by some of its oldest supporters, notably the US with its policies on human rights and the ‘war on terror’. But within the UN there have been important gains. Central to these was the 2005 UN World Summit’s endorsement of a new Human Rights Council, as well as its strong political backing for human rights ‘mainstreaming’ in all the UN’s work.

One result of Kofi Annan’s initial – 1997 – call for mainstreaming was a process in which lawyers and development economists were forced to sit at the same table, and find a common language in which to translate normative principle into operational action. Included in this was the move to transform the Office of the UN High Commissioner for Human Rights from a small and technical support service for the Commission and treaty bodies into an intelligent and effective agency which could work in the field, using human rights principles to prevent violations and protect victims, as it now does in Nepal and Colombia.

By appointing Mary Robinson, and then Louise Arbour, Annan defined a powerful role for the new High Commissioner for Human Rights. The International Criminal Court has closed the perverse gap between protection under human rights law and punishment under international criminal law, in the case of the gravest breaches – genocide and crimes against humanity. Through their accession to some or all of the human rights treaties, all states are now legally bound to protect human rights in their countries, and to subject themselves to a review process which, if adequately funded (which it is not), and if states were willing to elect only highly qualified members to the treaty bodies (which they are not), would become a solid and dynamic building block for the international human rights court proposed in 1947. Despite the handicaps, these reviews can act as an early warning mechanism for escalating violations in states, and already set an important compass course for national action. Criticism of selectivity and double standards should not obscure the work done by some of the Human Rights Commission’s – and now the Council’s – thematic procedures. When the Commission defined a new mandate for internally displaced people, this population – of more than 20 million – was uncounted, unrecognised in human rights terms, and without legal definition. Francis Deng’s work, and that of Walter Kälin, Deng’s successor as the UN Secretary-General’s Special Representative on Internally Displaced Persons, has set protection standards and given visibility to a group which had been excluded from national or international protection. Outstanding protection work has been done in relation to human rights defenders. Individual experts – on torture, and on violence against women – have shown how much can be done to monitor the situation in member states, even with meagre resources, and in politically contested territory such as that surrounding detention in Guantánamo.

Ten years ago, the Commission took the innovative decision to create thematic mandates on social and economic rights. This was at first difficult to implement because little substantive work had been done to define the practical meaning of rights such as that to health, food and education, or to understand poverty in human rights terms; and it was not easy to find individuals with a knowledge of economic issues as well as expertise in human rights. But again, and despite these obstacles, important work has been done on, for example, the right to health, through the combined efforts of UN Special Rapporteur Paul Hunt, the World Health Organization, and the Committee on Economic, Social and Cultural Rights.

At the World Summit, states acknowledged a responsibility to protect, specifically against genocide, crimes against humanity, war crimes and ethnic cleansing. Speaking recently in New York, Louise Arbour argued that the responsibility to protect comes with a set of obligations which focus not on those with “the socalled right to intervene” but on those who need protection. This leads to a new understanding, in which sovereignty is no longer a shield against accountability and scrutiny, but carries the responsibilities which come with the ‘privilege of governing’.

She suggested that the responsibility to protect includes the responsibility to prevent, to react, and to rebuild – including through punishment. In institutional terms, the duty to prevent would ‘sit’ in the Human Rights Council; the responsibility to react should be in the Security Council; and the responsibility to rebuild in the International Criminal Court and similar bodies, and in the Peacebuilding Commission.

The Challenges Ahead
One challenge for the next decade will be to develop analysis, action and political consensus along these lines. Another is to accept that – again in Louise Arbour’s words – we have done a “pretty good job” articulating the international human rights framework, but a “mediocre job” at implementing even the most basic of these rights. A useful first step would be for members of the Human Rights Council to direct their energies away from political division and towards enforcement of the recommendations of the Council’s own experts and of the treaty bodies. A third is to reverse the damage – direct and collateral – inflicted on the values of the Universal Declaration by the situation in Iraq and the Middle East.

There is much work to be done.

Stefanie Grant is a lawyer specialising in migration and refugee issues. She served formerly with the Office of the United Nations High Commissioner for Human Rights, as head of its research and development branch.
She was previously director of Amnesty International’s research department.

This article originally appeared in the Autumn issue of New World.