How Effective are International Human Rights Treaties?

“The United States is alone among developed countries in insisting that while human rights are of fundamental importance, they do not include rights that guard against dying of hunger, dying from a lack of access to affordable healthcare, or growing up in a context of total deprivation.”

— Philip Alston

Last December, Law Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights, visited the United States at the invitation of the federal government to look at whether the persistence of extreme poverty in America undermines the enjoyment of human rights by its citizens. Several CounterPunch articles have provided excellent summaries of the contents of this devastating report: Poverty American Style, The Professor and the Poverty Tour, and War and Poverty: A Compromise With Hell. The report itself should be read by everyone.

How did this visitation happen, and how effective is the UN human rights monitoring process?

Comprehensive international human rights law began with the creation of the UN. “Before the end of World War II, how a state treated its own inhabitants was nobody else’s business” (Louis Henkin). Protecting and advancing human rights was one goal of the UN, as many were horrified at the atrocities that led up to and continued throughout World War II. The Universal Declaration of Human Rights, adopted by all members of the UN General Assembly in 1948 is not binding, yet it was a prelude to legally binding treaties (often called conventions or covenants). The US Constitution provides that treaties become “the law of the land.”

The UDHR was inspired by both the US Declaration of Independence and President Franklin Roosevelt’s “Four Freedoms Speech” (the 1941 State of the Union address). He proposed four fundamental freedoms that people “everywhere in the world” ought to enjoy: “Freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear.”

UDHR: PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. . .

The UN preparation committee divided the content of the UDHR into two treaties, partly because the US wouldn’t go along with the social provisions. These included such un-American ideas as the right to work, to adequate remuneration, to join unions, to rest and leisure, to medical care, and equal pay for equal work.

The International Covenant on Civil and Political Rights was ratified by the US. This provides guarantees similar to the Bill of Rights of the US Constitution: freedom of speech, press, etc.; and due process in criminal proceedings. It goes beyond it, asserting such rights as joining and forming trade unions, equality of men and women, abolition of discrimination, “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors,” and “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”

As with all treaties, nations may join with reservations. Thus, the US objected to Article 20: “1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The US stated that it would not impose restrictions on free speech, unlike many countries, e.g., Denmark, France, Germany, Canada, Mexico, South Africa, which ban hate speech (an attack on a person or group based on gender, ethnic origin, religion, race, disability, or sexual orientation). The US also wouldn’t agree to the protocol (addition) that required abolition of the death penalty, and it maintained that the treaty was not “self-executing.” This means that it can be applied in or to the US only if there is a US law supporting its provisions.

The International Covenant on Economic, Social, and Cultural Rights was not ratified by US; 164 other countries are parties to it. Rights to an adequate standard of living, to work, to social security, to paid maternity leave, and to health care are not part of mainstream US ideology. Furthermore, the very first article is a challenge to our cherished “manifest destiny”:

1) All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3) The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Other human rights conventions include the International Convention on the Elimination of All Forms of Racial Discrimination. The US is a party, and has signed with reservations specifying no bans on either hate speech or affirmative action.

Convention on the Elimination of All Forms of Discrimination Against Women. Unlike 189 other countries, the US has not ratified this one.

Convention on the Rights of the Child. US is the only country that has not joined this party. Treaty ratification in the US requires the assent of the President and 2/3 of the Senate. The last part is the hardest; often treaties are not even submitted to the Senate in anticipation of rejection. A typical attitude among our leaders is that no foreigners should tell us what to do. Another reason offered by our Senators is that these provisions are matters for state government in the US. Others say children should not have rights but must obey their parents. The lack of strong demands from citizens for ratification of human rights conventions also informs our Senators that they will gain little from such action and could lose the support of conservative constituents.

The convention includes children’s rights to health care, a decent standard of living, freedom of speech, religion, and “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.” Nations are required to promote breastfeeding.

The US has not joined the main convention but it has ratified 2 protocols. One states that children should be excluded from armed conflict. To this the US made a reservation permitting those under 18 to volunteer for the army. Another protocol that was accepted protected children from prostitution and the worst forms of child labor.

The 1951 Convention on the Status of Refugees has not been ratified by the US but it is a party to a 1967 protocol. The most recent UN human rights treaty is the Convention on the Rights of Persons with Disabilities, not yet joined by the US.

How are these treaties enforced? Upon ratification, nations agree to the methods of enforcement that are stated in the document. In large part, the provisions are incorporated into the laws and constitutions of the countries that are parties to the conventions, and their national courts take them into account in their decisions. Often local governments use the treaties as policy guides. There are organizations in each country (government agencies and non-governmental organizations) that have a stake in observing human rights, and will use the conventions to promote those rights.

Human rights treaties are also enforced by the requirement that nations make a report every few years to the relevant UN committee. A major motive for compliance is the desire to be known as a humane society. Inspectors and investigators might be required; hence Alston’s visit was part of the agreed treaty terms.

While the specialized treaties have their own review committees, the most general one, examining all countries, is the UN Human Rights Council. The reviews are based on a national report, information from UN human rights experts (including Special Rapporteurs), non-governmental organizations, and government human rights agencies. They are conducted by the Universal Periodic Review (UPR) Working Group which consists of the 47 members of the Council; however, any UN member nation can take part in the discussion. It is interesting to read, e.g., what the Albanian delegation says about Iceland, or the Maldives comments on Ecuador. The review concludes with some recommendations for improvement, which will be checked out at the next review, usually in four or five years.

While the US is not a party to the Economic, Social, and Cultural Rights Convention, it has ratified the one on Civil and Political Rights. Thus Alston was officially reporting on how poverty affected the rights to which the US has sworn allegiance: liberty and justice for all.

In addition to the treaties concerning national policies, there are regional human rights treaties that permit aggrieved individuals to bring cases to international judicial institutions if their national courts provide no resolution for human rights violations. Two principal ones are the European Court of Human Rights and the Inter-American Court of Human Rights.

What good are the UN human rights treaties and reports? Certainly there have been many cases where there have been significant improvements in attaining rights, especially where non-governmental organizations and government agencies have participated, as legal scholar Gráinne de Búrca reports. In addition, the mere existence of the treaties serves an educational function, and they are prominent in the curricula for children in many countries.

Several scholars, for example, Stephen Hopgood, in The Endtimes of Human Rights consider the whole process useless or worse. Those of us who are aware of what is going on in the world in developing and developed nations, even in the “greatest” of them including its outposts in Cuba and rendition sites, cannot be too hopeful. The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, gave a gloomy report on September 11, 2017, and he was discussing only 40 countries.

Why has the return on this noble project been so meager? Here is one possibility. Part of the impetus for human rights treaties was the Cold War (arguably begun in 1848). Liberal reformers in many countries recognized the validity of the socialist critique of capitalism, but maintained that revolutionary change was not needed; no “recourse. . . to rebellion against tyranny and oppression” in contrast to its justification in the US Declaration of Independence. Reforms could cure the ills. Among the remedies were guaranteed rights to a decent standard of living, to work, to health care, to rest and leisure, etc. Thus FDR’s advocacy of “freedom from want.” On the other hand, it was argued that the socialist countries deprived the human spirit of essential aspects of humanity such as freedom of expression and religion.

One result of Cold War “soft diplomacy” was the Helsinki Accord of 1975. The USSR requested a European security agreement. Western European nations agreed, with the conditions that Canada and the United States be parties to it, and that economic and human rights standards be incorporated. Its emphasis on civil liberties led to Helsinki Watch, an international NGO created by foundations to monitor the agreements. This organization became Human Rights Watch, with crucial support from Rockefeller, Ford, and Soros Foundations. Other human rights organizations, such as the Campaign for Peace and Democracy/ East and West, operated throughout Eastern Europe.

Western intervention into USSR and Eastern European societies to support dissidents gained legitimacy, unlike some of the earlier attempts, such as the Assembly of Captive European Nations that had prominent Nazi contingents. Another effort of “soft diplomacy” was the cultural cold war. While praising liberal freedoms, private foundations working with US government agencies promoted religion, nationalism, and “identity politics,” in order to counter the godless communists and their internationalism, i.e., workers of the world unite.

Today an important role in international human rights monitoring is played by non-governmental organizations such as Amnesty International and Human Rights Watch. These and others are dependent on funding from the foundations that have been so helpful in fighting the cold war. As a result, there is far less publicity and prosecution regarding the lapses of the “victors” as a recent study by Cliquennois and Champetier indicates.

The Cold War itself is no friend to human rights. Surveillance and purges, manipulated elections, puppet governments (on both sides) do not enhance democracy. Invasions and contra wars, revolutions and counter-revolutions make it worse, in addition to consuming resources that could otherwise provide an adequate standard of living for everyone. For a long time, the world has been under the regime of the global war on terror, or endless war, including the “humanitarian” destruction of Yugoslavia.

We can’t know what the world would be like if the hard and soft interventions by the capitalist imperialist powers hadn’t attacked socialists or even moderate reformers. However, it is difficult to believe that it would have been worse. Killing Hope, extensively documented by Bill Blum, has resulted in fascist, gangster, and corrupt banana republics, our “uranium curtain.” One can reasonably argue that the rise of Stalin, and the atrocities of Stalinism, were enabled by the allied invasion of the Soviet Union, and the continued attempts to destroy it. The overthrow of Mossadegh in Iran, Arbenz in Guatemala, Allende in Chile, and Sukarno in Indonesia (among many others) had consequences for “human rights” in their regions down to the present. On the other hand, the cost of maintaining empires challenged by “rebels against tyranny and oppression” has intensified “fear” and “want” in the homelands.