Is Today's International Human Rights System a Global Governance Regime?Author(s): James W. NickelReviewed work(s):Source: The Journal of Ethics, Vol. 6, No. 4 (2002), pp. 353-371Published by: SpringerStable URL: http://www.jstor.org/stable/25115738 .
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JAMES W NICKEL
IS TODAY'S INTERNATIONAL HUMAN RIGHTS SYSTEM A GLOBAL GOVERNANCE REGIME?
(Received 15 June 2002; accepted in revised form 30 July 2002)
ABSTRACT. Enthusiasts of the idea of globalization often view international human
rights institutions as part of an emerging global governance regime. They claim that these
institutions illustrate how state sovereignty is being diminished. This paper looks at the
international system for the promotion and protection of human rights as part of normative
globalization. It argues that this system does not constitute a system of global governance,
although in some areas it comes close.
KEY WORDS: global governance, human rights, human rights treaties, human rights
enforcement, international law
Enthusiasts of the idea of globalization1 often view international human
rights institutions as part of an emerging global governance regime.
They claim that these institutions illustrate how state sovereignty is
being diminished and how "a new more complex form of multilayered
global governance" is emerging.2 Parts of this global governance regime include the European Union (EU), the United Nations (UN) system, free
trade organizations such as the World Trade Organization (WTO), the
North American Free Trade Agreement (NAFTA), Mercosul, international
environmental accords,3 and the international human rights system. In this
paper I look at human rights as part of globalization. I examine institutions
for the international promotion and protection of human rights in order to
determine whether they are already sufficiently powerful, autonomous, and
integrated to constitute a significant part of an emerging system of global
governance. My answer, ultimately, is "almost, but not quite." I am not concerned in this essay with globalization in the economic,
technological, communications, or cultural areas.4 Nor do I consider
whether human rights can somehow constrain the worst aspects of
1 For a definition of "globalization" see David Held, Anthony G. McGrew, David Gold
blatt and Jonathan Perraton, Global Transformations: Politics, Economics and Culture
(Stanford: Stanford University Press, 1999), pp. 14-20. 2 See David Held et al., Global Transformations, p. 85. 3
See David Held et al., Global Transformations, pp. 76-413, especially, p. 386. 4
The introduction to the 1999 U.S. State Department Human Rights report referred
to the globalization of human rights as an "overlooked 'third globalization' - the rise of
t4 The Journal of Ethics 6: 353-371,2002. ^T ? 2002 Kluwer Academic Publishers. Printed in the Netherlands.
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354 JAMES W. NICKEL
economic globalization. My present concern is analytical and descriptive, not normative.
The period since 1948 - when the Universal Declaration of Human
Rights was proclaimed by the UN - has seen steady growth of interna
tional human rights treaties and organizations. Not only has the number
of agencies increased, but so have their levels of activity. Further, the
end of the cold war lowered some significant barriers to the develop ment of an effective international human rights system. International
efforts to promote and protect human rights have expanded greatly in the
last decade, particularly within the UN. In what follows I describe and
analyze the international human rights regime that now exists, focusing on the European human rights system, UN human rights treaties, the UN
Commission on Human Rights, the UN Security Council, the international
criminal tribunals for Rwanda and Yugoslavia, international human rights
nongovernmental organizations (NGOs), and independent efforts by states
to promote human rights.
I. The Idea of a Global Human Rights Regime
To determine whether current international human rights institutions
constitute one part of a global governance regime we need to have a fairly clear idea of what that would mean. In this section I suggest six criteria.
If many of the main international human rights institutions satisfy these
criteria, and if together they constitute a coherent regime, then we would
have good reasons to say that the international human rights system really has become a global governance regime in the area of human rights.
A. Is It Global?
The first criterion concerns whether the institution is sufficiently global in
scope. Does the agency attempt to protect human rights in almost all of
the countries of the world? Are some states immune or invulnerable to its
efforts? And is the agency global in the sense that it involves or represents almost all of the countries of the world?
B. Is It a Governance Agency?
Is it the sort of institution that governs? Does it have ways of creating,
interpreting, applying, and enforcing norms? Although we cannot expect
transnational human rights networks ..." 1999 Country Reports on Human Rights Prac
tices, http://www.state.gov/www/global/human_rights/1999_hrp_report/99rirp_toc.html.
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 355
that global governance institutions will look just like the ones that exist at the state level, they should serve the same functions. To be a regime it
must be a coherent system. A governance regime will need to have some
of the agencies that governments usually have. It will need to have ways of
creating, interpreting, impartially applying, and enforcing norms, as well as methods of interacting with its constituents. To be a governance regime, it must govern, not merely preach. It must have some ability to impose norms and policies through harms that it can impose for noncompliance.
C. Is It Incipiently Federal?
Is this institution plausibly seen as part of a new "federal" level of power
existing at the global level? Does this governance regime regulate a
significant range of activities at subordinate levels?
D. Power?
Does this institution have substantial power over most states? Does it have
institutions, methods, and means to bring about compliance, even when
the state does not want to comply? To assess power we will need to ask the
following questions:
Quantity? How much power does the institution have?
Width? Is it narrow or broad? Does it deal with some human rights, all human rights, or human rights plus other matters as well?
Gaps? Can some states escape this power? Do some have a kind of
immunity to it?
Penetration? Can the agency influence the central decision-making organs or officials of a state or does it merely harass minor officials?
Modality? Is the power mainly influence, where that relies on persua sion and willingness to comply? Does it include governing power,
where noncompliance is not normally an option and obedience gener
ally occurs? And does it include real enforcement power? That is, are
sanctions or military measures available to support the decisions of
this agency?
E. Is It Authorized or Legitimate Power?
The ways in which power at the international level can be authorized or
legitimated are obviously complex. But for our purposes it will be suffi
cient to ask whether the agency's power is unauthorized and informal, authorized by custom, authorized by actions of superior agencies such as
the General Assembly or the Security Council, or authorized by treaty.
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356 JAMES W. NICKEL
F Is It Independent or Autonomous Power?
Is the agency's power independent of the states involved in or connected
with the agency? Independent power is often exercised by jurists or experts rather than by state representatives. Dependent power might be seen as
a vector sum of the powers of the participating or member states. Is
independence preserved when enforcement is required? As an analogy consider a business partnership in which the members make and imple
ment all major decisions unanimously and jointly. Here the firm's actions are nothing but the joint actions of the partners. In contrast, consider a
partnership in which an executive has been hired to run the business, and the partners are not active in day-to-day decision-making and imple
mentation but rather meet periodically to review the firm's progress and
to make major policy decisions. Here the firm's actions go beyond the
joint actions of the partners; it has a substantially autonomous capacity for
decision-making and implementation.5
II. International Human Rights institutions
and their Powers
In this section I survey the international human rights system and apply the six criteria proposed above to some of its key parts. In the concluding section I apply the criteria to the system as a whole.
A. A Brief History
The effort to build a system to promote and protect human rights began
during World War II. Early conceptions of the UN called for its charter
to include a binding treaty committing members to an international bill
of rights. But plans for such a treaty faltered, and a weaker commitment was incorporated in the 1945 UN Charter. Countries ratifying the Charter
5 In the following passage Henry Schermers suggests that some international organiza tions have independence or autonomy. "Most international organizations are no more than
fora where States cooperate ... [But] factually many international organizations have some
governmental power of their own .... Though [such organizations'] autonomous tasks are
still limited in number, they have led to a general recognition that international organi zations have their own legal personality under international law. Together with the States
they form the subjects which create the international legal order" [H.G. Schermers, "The
International Organizations," in Mohammed Bedjaoui (ed.), International Law: Achieve
ments and Prospects (Oxford: Oxford University Press, 1991), p. 67, quoted in Henry J.
Steiner and Philip Alston (eds.), International Human Rights in Context (Oxford: Oxford
University Press, 2000), p. 561].
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 357
agreed to "take joint and separate action in cooperation with the Organi zation" ... to promote "universal respect for, and observance of, human
rights ... ." This made promoting human rights a purpose of the UN.
Plans for an international bill of rights were not abandoned, however, and
the Universal Declaration of Human Rights emerged in 1948. This docu
ment was inspirational and hortatory rather than legally binding.6 It did,
however, succeed in establishing the content of "human rights." The list
that it provided is still in use with only minor changes. That list includes
security rights that protect people against murder and torture; due process
rights that protect people against arbitrary and excessively harsh punish
ments, and require fair and public trials for those accused of crimes; liberty
rights that protect people's freedoms in areas such as belief, expression,
association, and movement; political rights that protect people's liberty to participate in politics by assembling, protesting, voting, and serving in public office; equality rights that guarantee equal citizenship, equality
before the law, and freedom from discrimination; and welfare rights that
require that people be provided with education and protected against
starvation, poverty, and social marginalization. The cold war broke out shortly after 1948, and prospects for interna
tional human rights treaties seemed dim. The countries of Western Europe,
however, went ahead with plans to create an international system for the
protection of human rights. The European Convention on Human Rights was signed in 1950 within the Council of Europe, and went into force in
1953. It covers standard civil and political rights.
B. The European System
The European Convention has developed into the most effective current
system for the international promotion and protection of human rights. It now covers 41 countries and 800 million people.7 Its signatories were
originally the countries of Western Europe, but in the 1990s it expanded to
include countries from Lithuania to Russia to Malta. This system provides
adjudication of individual complaints about human rights violations.
A European Court of Human Rights operates in Strasbourg, France.
The members of the Court are appointed on a national basis (there is one
judge for each signatory state), but are appointed as independent experts or
6 On the Universal Declaration, see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania
Press, 1999). 7
Richard Bilder, "Overview of International Human Rights Law," in Hurst Hannum
(ed.), Guide to International Human Rights Practice (Philadelphia: University of
Pennsylvania Press, 1992), p. 5.
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358 JAMES W. NICKEL
jurists. They have considerable autonomy, and have developed a large body of jurisprudence applying and interpreting the European Convention?
The system works as follows. After the exhaustion of domestic
remedies, individuals in states adhering to this convention may complain of violations of the Convention to the Human Rights Court. States may also
complain to the Court about rights violations in member states, although this rarely occurs. If the Court deems the complaint plausible, it investi
gates it and makes a judgment. If questions of legal interpretation arise,
they can be addressed by the Court. Prior to issuing a judgment, efforts are
made at settling the case. But if conciliation fails, a judgment can be issued
ordering the government to remedy the case in a certain way. This has been
done in hundreds of cases, and governments almost always comply. They have agreed to be bound the Convention and its procedures, and they are
under pressure from their citizens and from other European governments to live up to their commitments.
Under the European Convention, one's own country remains the
primary addressee of one's human rights, and one's national political and
legal system remains the primary forum for dealing with alleged violations
of one's rights. But one's national system is guided by the norms of the
European Convention, and one has available in Strasbourg an additional
set of remedies for alleged violations of one's rights. As we will see,
this pattern is found throughout the international human rights system. One's state has primary responsibility for respecting, interpreting, and
protecting one's human rights. International human rights norms, and
agencies, attempt to provide guidance and encouragement to states in
meeting the many challenges this responsibility entails. When one's state
fails to do this, either in one's individual case or more generally, interna
tional human rights agencies are sometimes available to pressure or force
one's government to change course.9
The European Convention provides a paradigm of what it means to
implement human rights internationally. Its agencies are active, effective, and enjoy both the confidence of the member states and considerable
autonomy. But the European human rights system is a regional organi zation, not a global one (see Table 1). Its reach only extends to member
states; it does not deal with human rights cases or problems in the rest
8 For a sample of this jurisprudence, organized by topics, see Sarah Joseph, Jenny Schultz and Melissa Castan (eds.), The International Covenant on Civil and Political
Rights: Cases, Materials, and Commentary (New York: Oxford University Press, 2000). 9
See James W Nickel, "How Human Rights Generate Duties to Protect and Provide,"
Human Rights Quarterly 14 (1993), pp. 77-86. Reprinted in abridged form in Steiner and Alston (eds.), International Human Rights in Context, pp. 185-186.
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 359
of the world. And, with the exception of the Inter-American human rights
system,10 similar regional systems do not exist in other parts of the world.
The African system11 is very weak, and regional systems do not exist in
Asia and the Middle East. Because of its regional nature the European
system cannot serve as an illustration of actual globalization (see Table
1). It shows that international institutions of this kind are possible under
certain circumstances, but whether equally strong institutions are possible worldwide remains an open question.
John Locke suggested three main reasons why people need government, and these considerations also apply to human rights regimes at the inter
national level.12 One is that without law and government people lack a
known and settled law. They may know roughly what they should do, but
clear lines and known exceptions and excuses are missing. Another is that
without law and government people lack impartial judges. If they have to
try to resolve injustices themselves they may be biased in their own favor, lack knowledge of the law, or not know how to apply the law to the facts of
the situation. The third reason is that without law and government people lack means of executing just decisions. Confronting injustice on one's own
will often be dangerous, with the result that injustices go unaddressed.
The European system addresses the first two of these problems very well. It provides well-defined human rights norms that are known and
settled in the countries participating in the system. Case law resulting from
the adjudication of cases has developed. Secondly, the European system
provides impartial judges to investigate and resolve cases when individuals
believe that they suffered violation of their human rights at the national
level.
The European system has very limited enforcement capabilities. There
is a Committee of Ministers charged with overseeing the execution of the
Court's judgments, but there is nothing to force compliance other than
the threat of expulsion from the system and the pressure applied by other
European governments. Governments comply because they are committed to human rights and the rule of law, to the European human rights system,
10 On the American system, see Dinah L. Shelton, "The Inter-American Human
Rights System," in Hurst Hannum (ed.), Guide to International Human Rights Practice
(Philadelphia: University of Philadelphia Press, 1992), pp. 119-132. 11 On the African system, see Cees Flinterman and Evelyn Ankumah, "The African
Charter on Human and Peoples' Rights," in Hurst Hannum (ed.), Guide to International
Human Rights Practice, pp. 159-169. 12
John Locke, Second Treatise of Civil Government (Indianapolis: Hackett Publishing
Company, 1980), Chapter IX.
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TABLE 1 ?
o
Powers of international human rights agencies.
Human rights agency European human rights UN Human UN Human UN Security UN criminal Big inter- Independent
system including rights treaty Rights Council tribunals for national efforts by
European Court of system Commission Rwanda and human rights states to Human Rights with its Sub- Yugoslavia NGOs promote
Commission human rights
Global in reach? No Yes, since every Yes Yes No Yes Yes country has signed at least one human h
rights treaty ?!
Global as a gov- No Yes Yes Yes Yes No No
ernance agency? '
Are some states No (for the parti- No, although No 5 states with Yes, all except No Important O immune? cipating states) many have not veto powers Rwanda and allies or fi
ratified all of (China, France, Yugoslavia trading
the treaties Russia, UK, US) partners
Incipiently federal? Yes Yes Yes Yes Yes Unclear No
How much power? Medium Low Low without High High within Low Depends on
use of Security narrow scope the power of
Council the state
Wide or narrow Restricted to civil Wide, if all Restricted to Wide: deals Narrow: limited Often wide, Wide power? and political rights, human rights gross violations with all threats to individual but depends
although the treaties are of human rights to peace responsibility for on NGO's
European Social considered. genocide and charter
Charter deals with crimes against
welfare rights humanity
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TABLE 1
Continued. Human rights agency European human rights UN Human UN Human UN Security UN criminal Big inter- Independent
system including rights treaty Rights Council tribunals for national efforts by
European Court of system
Commission
Rwanda and human rights states to g Human Rights with its Sub- Yugoslavia NGOs promote ?
Commission human rights 2
- ?
Enforcement power No No No Yes No No Yes g*
of its own? c?
Authorized power? Yes; Yes; Based on Yes; Yes; No, with Yes (as long oo
authorized by authorized by custom and authorized by authorized by some as they are P
the treaty the treaty General UN Charter the Security qualifications not military CO
Assembly Council or in violation r
resolutions of trade ?
agreements) f?
Independent power? Yes Yes Yes, but it is Yes. Can defy Yes Yes N/A _;
a political a majority of 25 body with states. But a to state rep- political body
resentatives with state
representatives
U) Os
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362 JAMES W. NICKEL
and to membership in good standing in the Council of Europe.13 Whether
compliance will continue to be near-universal now that a far more diverse
and troubled group of countries has joined the system is an interesting
question. The European system is incipiently federal, or perhaps even actually
federal. The European Community, of which it is a part, clearly forms a
level of genuine governance at the transnational level. The powers of the
Court are authorized by treaty (the European Convention on Human Rights and its subsequent protocols). And the Court operates with considerable
independence from the member states.
C. The UN Human Rights System
UN human rights agencies have the global character we seek. UN agencies are often divided into "Charter-based" agencies, such as the Human Rights Commission and the Security Council, and "treaty-based" agencies that
help institutionalize UN human rights treaties such as the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social, and Cultural Rights.
1. The UN Human Rights Treaties
The cold war did not kill the effort to create human rights treaties within
the UN, but it did slow it down. Two treaties giving legal status to the rights of the Universal Declaration were submitted to the General Assembly in
1953, but were not approved by that body until 1966, and did not receive
the 35 state ratifications required for coming into force among the signa tories until 1976. These treaties are the International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.14 They represent, roughly, the first and second halves
of the Universal Declaration. Other treaties implemented in similar ways include the International Convention on the Elimination of All Forms of
Racial Discrimination, The Convention on the Elimination of All Forms
of Discrimination Against Women, The Convention on the Rights of the
Child, and The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
13 For an account of why the European human rights system has succeeded, see Laurence
R. Heifer and Anne-Marie Slaughter, "Toward a Theory of Effective Supranational
Adjudication," Yale Law Journal 107 (1997), p. 290. 14
http://www.unhchr.cri/html/menu3/b/a_ccpr.htm, and http://www.unhchr.ch/html/
menu3/b/a_cescr.htm.
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 363
The International Covenant on Civil and Political Rights, which has
been ratified by nearly 150 countries, can serve as an example of the
system for implementing these treaties. Broadly, the system for imple
menting the Covenant on Civil and Political Rights is a weaker version
of the system developed under the European Convention. The Covenant
created an agency, the Human Rights Committee (hereinafter the CCPR
Committee), to give life to its norms. The CCPR Committee's main job is to receive, study, and comment upon reports that signatory states are
required by the treaty to prepare and present.15 These reports address
compliance with the human rights norms of the treaty by the signatory state.
The 18 members of the CCPR Committee serve in their "personal
capacity" as "experts" rather than as representatives of the states of which
they are citizens. Unlike the European Convention, the Covenant on Civil
and Political Rights did not create a Human Rights Court to resolve
disputes about interpretations of the human rights listed in the docu
ment. Under an optional protocol requiring separate ratification, the CCPR
Committee is authorized to receive, investigate, and mediate complaints from individuals alleging that their rights under the Convention have been
violated by signatory states.
Signatory states subject themselves to the judgment of the CCPR
Committee in two ways. First, states are required to submit to the
Committee periodic reports on their progress in respecting and protecting civil and political rights. The Committee studies these reports and
discusses them in public proceedings attended by representatives of the
state being discussed and by interested NGOs. Eventually the CCPR
Committee publishes "Concluding Observations" that comment both
favorably and unfavorably on human rights matters in the reporting coun
tries. Through this process, states enter into a dialogue with the Committee
and have their human rights shortcomings exposed to international public
opinion. The reporting procedure is well suited to dealing with systemic human
rights problems. It encourages states to identify major ongoing human
rights problems and to plan methods of addressing them over time. It need
not be confrontational, and allows issues to be revisited in subsequent
reports and discussions. But this system has serious weaknesses. Some
states fail to report; reports are often superficial; and the Committee's
15 Ineke Boerefijn, The Reporting Procedure under the Covenant on Civil and Polit
ical Rights: Practice and Procedures of the Human Rights Committee (Oxford: Hart
Publishing, 1999).
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364 JAMES W. NICKEL
judgments frequently receive little attention, particularly from top political leaders.16
The second way that (some) states subject themselves to the
Committee's judgment depends on an optional protocol to the Covenant
that allows complaints by individuals. If a state has ratified this protocol, individuals from that state may complain to the CCPR Committee of
human rights violations they believe that they have suffered. As of 2000, 95 of the 144 states adhering to the Covenant had ratified this optional
protocol. If an individual complaint is deemed admissible, the CCPR
Committee investigates it and tries to reach a conclusion about whether
a violation actually occurred. Technically, the CCPR Committee only
expresses its "views" as to whether there has been a human rights violation; it does not have the power to issue legally binding judgments, as do the
European and Inter-American human rights courts.17
The CCPR Committee is part of a global organization, the UN, and
it is nearly global in its reach since the Covenant on Civil and Political
Rights has been ratified by most countries. The system for implementing the Covenant is a (weak) sort of governance system. It has norms, and the
Commission interprets them and promotes compliance with them. Further, it is incipiently federal since it operates with treaty authorization at the
trans-national level.
The power of the CCPR Committee is modest. It does not have the
power to order states to remedy a complaint or change their practices; it must rely on persuasion and mediation to achieve justice for those
whose complaints it deems valid. It can usually succeed in requiring repre sentatives of signatory states to endure its inquisitions and criticisms, but
it has little power to make them do anything about its criticisms and
recommendations. Its main tools are persuasion, mediation, and exposure of violators to world opinion. This may make us doubt that it is really a governance system. The Committee's power is wide enough, since it
covers the standard civil and political rights, but the Committee's pene
trating ability is severely limited since it is easy for states to send minor
officials from the diplomatic corps to present and discuss the reports they are required to submit, or to discuss human rights problems the CCPR
Committee has identified. And the CCPR has no real enforcement power of
16 See Steiner and Alston (eds.), International Human Rights in Context, pp. 774-775.
For recommendations for reforms in the UN treaty system, see Anne Bayefsky, The UN
Human Rights Treaty System: Universality at the Crossroads (Ardsley: Transnational,
2001). 17
Heifer and Slaughter, "Toward a Theory of Effective Supranational Adjudication,"
pp. 337, 351.
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 365
its own. Imposing sanctions or using force would have to be done through the Security Council or by member states. But neither the Security Council
nor member states have any standing commitment to play this enforcement
role for the CCPR Committee.
As mentioned earlier, the system used by the International Covenant
on Civil and Political Rights to institutionalize its norms is used, with
variations, by most of the other UN human rights treaties. Our conclusions
about the CCPR Committee would apply to their mechanisms as well.
2. The UN Human Rights Commission and its Sub-Commission1*
The Commission is a standing UN body that deals with gross violations
of human rights in all countries. Its 53 members are state representatives rather than independent experts or jurists, and hence the Commission is
more of a "political" body than the CCPR Committee. The Commis
sion was established in 1946, and authored the Universal Declaration
and the International Covenants. It also played a large role in the UN
campaign against apartheid in Southern Africa. The Commission has a
Sub-Commission on the Promotion and Protection of Human Rights,
consisting of experts and jurists rather than state representatives, that
assists it in its work.
Under its 1503 procedure, the Commission receives, and treats
confidentially, complaints pertaining to situations which "reveal a
consistent pattern of gross ... violations of human rights." Many dozens
of states have been investigated and discussed under this procedure. NGOs
are frequently in contact with the Commission concerning situations being
investigated. Under its 1235 procedure the Commission holds an annual public
session in which governments and NGOs are permitted to identify and
discuss situations thought to be worthy of the Commission's attention. If
the Commission decides to consider a situation, it can ask the government to respond to the allegations, appoint investigators, or refer the matter to the
Security Council. The Commission also has "thematic" working groups and individual rapporteurs that deal with particular kinds of human rights
problems in countries around the world.
The Commission is global both in the scope of its concerns and as a
wing of a organization, the UN, that represents almost all of the countries
of the world. The Commission was created by the UN Charter, although its role and prerogatives have grown over the years. No states are immune
18 See Nigel Rodley, "United Nations Non-Treaty Procedures for Dealing with Human
Rights Violations," in Hurst Hannum (ed.) Guide to International Human Rights Practice,
pp. 60-85. See also http://www.unhchr.en/html/menu2/2/chr.htm.
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366 JAMES W. NICKEL
to its inquiries. Since its members are state representatives it may be less
independent than treaty-authorized committees of experts, but members
the Sub-Commission do serve in their personal capacities. Like the CCPR
Committee, the Commission's main power is to expose human rights viola
tions to the pressure of world public opinion and to encourage member
states to use their power to bring about improvement in these situations.
The Commission can also bring large scale violations of human rights before the Security Council.
It is fair to say, I think, that the powers of the Human Rights Commis
sion, like those of the CCPR Committee, are modest. It has norms that
it interprets and promotes, but its powers to require compliance are so
modest that we may be doubtful that it really is a governance regime. Were
the Security Council to back up regularly the Commission's conclusions
such doubts would be removed. But, as we shall see, the Security Council
has a limited mandate; it only deals with human rights situations which
constitute threats to international peace and security.
3. The UN High-Commissioner for Human Rights Since 1993 the UN human rights system has had a High-Commissioner, an official authorized to oversee all of the UN's human rights activities.
This person receives complaints from individuals and NGOs, allocates
tasks among UN agencies (agenda setting), assists in the development of
new norms, supports the work of UN human rights agencies, responds to serious violations of human rights, provides education, information,
advisory services and technical assistance, and generally promotes human
rights within the UN and elsewhere.19
4. The UN Security Council20
The Security Council was created by the UN Charter. Article 24 of the
Charter gives the Security Council "primary responsibility for the mainte nance of international peace and security." It may take action by "air, sea, or land forces" (Article 42). Members of the UN agree to "accept and
carry out the decisions of the Security Council" (Article 25) and to make
available to the Security Council "armed forces, assistance, and facilities"
(Article 43). In addition to authorizing military interventions, the Security Council may impose diplomatic and economic sanctions.
The Security Council has fifteen members. Ten of these are elected by the General Assembly for two-year terms. Five members are permanent:
19 See http://www.urihchr.ch/html/hchr.htm.
20 See Sydney Dawson Bailey, The UN Security Council and Human Rights (New York: St. Martin's Press, 1994). See also http://www.un.org/Overview/Organs/sc.html.
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 367
China, France, Russia, the UK, and the USA. Substantive decisions require nine votes, including votes by all five of the permanent members. Thus
each of these five countries has a veto.
Historically the Security Council was reluctant to involve itself in
human rights disputes, although it was heavily involved in UN efforts
during the 60s and 70s to overturn the apartheid system in South Africa.
Since the end of the cold war the Security Council has dealt with many more issues involving human rights and war crimes. It has authorized the
use of military force in Iraq, Somalia, the former Yugoslavia, Rwanda, and Haiti, and has sponsored a number of peacekeeping missions. It has
established international criminal tribunals for Rwanda and Yugoslavia. And it has imposed sanctions on a number of countries.
Like the Commission on Human Rights, the Security Council is global in the scope of its concerns and in its role as a representative of the coun
tries of the world. These countries agreed, under the UN Charter, to accept the decisions of the Security Council, and hence the power of the Security
Council is both clearly authorized and incipiently federal. There is no
doubt that the Security Council is an international governance regime. The Security Council has enormous power, although that power is
limited to matters of international security. In the last decade it has
been willing to use that power to prevent massive violations of human
rights. Ernst Haas' observation that "The great lines of foreign policy are only marginally and gradually influenced by what goes on in inter
national organizations" now seems less true.21 Its enforcement efforts
require actions by member states to impose sanctions or provide troops and facilities to the UN.
It is more difficult, however, to describe the autonomy of the Security Council. In one sense it has great autonomy because a vote by nine of
its members can go against the wishes of the majority of the world's
states. But it has little autonomy as against its five permanent members
since each of them has the right to veto measures to which it is opposed. And its members are clearly representatives of their governments, not
quasi-independent experts or jurists. If the Security Council and its enforcement powers stood - in a general
way - behind the human rights agencies of the UN, their capacity to govern
human rights practices in member states would be greatly enhanced. But
the Security Council has no such standing relationship to the human rights
agencies. It is now active in the human rights field, but not in a way that
21 Ernst Haas, When Knowledge Is Power (Berkeley: University of California Press,
1990), p. 57, quoted in Steiner and Alston, International Human Rights in Context, p. 566.
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368 JAMES W. NICKEL
provides general and standing support for the decisions of other UN human
rights agencies.
5. UN Criminal Tribunals for Rwanda (1994) and Yugoslavia (1993)22 These are criminal courts, modeled on the Nuremburg Tribunals, estab
lished by the Security Council to prosecute war crimes and genocide in
Rwanda and Yugoslavia. Their work is still underway, and how successful
they will ultimately be remains to be seen. Currently their scope is narrow
(violations in Rwanda and Yugoslavia), but the Rome Statute creating an
International Criminal Court of general jurisdiction entered into force on
July 1, 2002.
The tribunals for Rwanda and Yugoslavia were created and authorized
by the Security Council, and hence they are sub-agencies of the UN.
As such, they have ample power within a very narrow range. They are
incipiently federal in the way that federal courts are federal. The Security Council can, on behalf of the Tribunals, call upon states for enforce
ment. The tribunals are staffed by independent jurists, and hence have
considerable autonomy. Do these tribunals constitute a governance regime? Yes, in the way that
national-level courts are governance regimes. The US Supreme Court has
no troops of its own; it relies on other branches of the federal govern ment to enforce its decisions. Analogously, the Tribunals rely on the UN
Security Council to ensure compliance. The approval of the International Criminal Court is a big step forward
for the international human rights system because it will provide a way to hold criminally liable at the international level those who engage in
war crimes and genocide. But this Court will not be a general UN human
rights court. Most human rights issues will not fall within its jurisdiction. Hence the norm-interpreting function will still be underserved within the
UN system.
D. International Human Rights NGOys23
Many nongovernmental organizations are active at the international level
in the areas of human rights, war crimes, and humanitarian aid. Examples include Amnesty International, Human Rights Watch, the International
Commission of Jurists, Medicins sans Frontieres, Oxfam, and CARE.
Representatives of such NGOs are seen everywhere in the international
human rights system. They attend and often participate in the meetings of
22 See http://www.ictr.org/, and http://www.un.org/icty/index.html.
23 See http://www.derechos.0rg/human-rights/world.html#ngo. See also http://www.
etown.edu/vl/humrts.html.
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 369
UN human rights bodies. They provide information about human rights situations through the reports they publish and the testimony they give.
They shape the agendas, policies, and treaties of the UN through their
participation and lobbying. And they provide links between the interna
tional human rights system and politics at the domestic level. Increasingly
professional, their workers energize the international human rights regime. Human rights NGOs are often global in reach, although some are
advocacy groups that work mainly in the capitals and others are relief agen cies that work mainly in the field. No states are immune to their criticisms.
They are not governing agencies themselves, but they are part of the inter
national human rights governance system. Their existence and roles are not
authorized by anything other than their own charters, although they may have consultative status with UN agencies. They are not representatives of
the people generally; they are rather political organizations that represent the perspectives of some of the people. They stand in the same relation to
international agencies like the UN that political parties, PACs, and labor
unions stand to national legislative bodies. They are "civil society" at the
international level.
Collectively, and in some cases individually, these organizations have a
lot of power, or at least a lot of influence. The loss of Amnesty International
would probably be a bigger blow to the international human rights move
ment than the repeal of the International Covenant on Civil and Political
Rights. The power of NGOs mainly comes from their roles in providing
information, lobbying, working with and energizing governmental and
international human rights agencies, and exposing human rights viola
tions to world public opinion. Like UN agencies, they use, or try to use, the military and sanctioning powers of states when real enforcement is
required. They play a large role in putting human rights problems on the
agenda of various UN human rights agencies. Some enthusiasts of globalization give enormous weight to the emer
gence of global civil society, as represented by thousands of human rights NGOs. They see human rights and other NGOs as a central part of the
emerging multi-layered system of global governance. I agree that human
rights NGOs make the international human rights system stronger and
more active. But the large role they play in energizing the system and
trying to augment its influence points to the system's weaknesses as well
as its strengths. If the system had more power of its own, perhaps through
standing mechanisms to increase the costs of noncompliance with human
rights norms, it would not be necessary for NGOs to do so much to back
up the system.
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370 JAMES W. NICKEL
E. Independent Efforts by States to Promote or Protect Human Rights24
States sometimes act, individually or jointly with other states, to promote or protect human rights in other countries. For example, Portugal attempted to defuse the crisis in East Timor. European countries often use diplomacy to promote respect for human rights in Africa and Asia. And Australia
led the military effort to restore peace and respect for human rights in
East Timor. Methods include diplomacy, publishing reports and state
ments, conditioning access to trade or aid on human rights improvements, economic sanctions, and military intervention.
Functionally speaking, these efforts help to add some real power to
the international human rights system. The countries of Western Europe,
Canada, Australia, and the US, have been the pillars of the human rights establishment. They have lent their considerable support and clout to
the system, keeping it going during hard times and helping it expand and flourish in better times. Although they have not always risen to the
challenge of human rights emergencies, they have sometimes done so at
considerable cost to themselves in money and lives. In doing this, they have often worked closely with the Security Council.
They do not, however, have a standing legal commitment to do this,
except their commitment to support the actions of the Security Council.
Although they make the global human rights system far stronger that
it could be without their regular support, the large role they play in
supporting the system illustrates the system's weaknesses as well as its
strengths.
Although states are not global agencies, the independent human rights efforts of some states are global in scope. How much power these efforts
have depends on the state(s) behind them, and on the means those states
are willing to use. These efforts are not incipiently federal. They are part of
traditional diplomacy in which states try to impose constraints and norms
on each other. The only authorization they have is that they fall within the
diplomatic, political, and economic prerogatives of states.
III. Conclusion
Can the international human rights system that exists today properly be
described as a global governance regime? Almost, but not quite. The
system is almost such a regime because it has well-established norms,
institutions for creating and modifying norms, institutions for identifying human rights violations around the world, agencies that can investigate
24 See, for example, http://www.state.gOv/g/drl/hr/.
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HUMAN RIGHTS AS GLOBAL GOVERNANCE 371
these violations and call governments to account for them, and means of
promoting respect for human rights norms. In performing these tasks the
system receives regular and useful assistance from NGOs and sympathetic
governments. International human rights agencies are authorized or legit imated in appropriate ways, and some of them are incipiently federal at
the global level. The power of these agencies is sufficiently independent in
most cases.
But the international human rights system falls short of being a global
governance regime. This is mainly because the system is still not very
powerful. Efforts to hold states accountable mainly threaten exposure and embarrassment, not serious economic or military pressure. Except for cases dealt with by the Security Council, there is no standing body to put political muscle behind the decisions of the human rights agen cies. Because the powers of international human rights agencies are very
limited, their ability to produce respect for human rights from countries
that seriously challenge those rights is often in doubt. Countries such as
China and Indonesia do not seem to be much influenced by the decisions
of UN human rights agencies. Insofar as these countries do worry about
human rights, it is because powerful countries and international institutions
support human rights and attach negative consequences to flouting them.
Another shortcoming of this system is that the judicial, norm
interpreting function is poorly provided for. Precedents are not created, case law does not grow, and hard cases cannot be adjudicated.
Enthusiasts of globalization can claim with justification that the inter
national human rights system is moving in the direction of becoming a
global governance system. But it is not there yet.
ACKNOWLEDGEMENTS
This paper was presented at a human rights conference in fall 2001 at Port
land State University. I am indebted to Hurst Hannum of Tufts University for helpful suggestions and criticisms.
Department of Philosophy
University of Colorado
Boulder, CO 80309-0232
USA E-mail: james. nickel @ Colorado, edu
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