Preamble section 4:

Whereas it is essential to promote the development of friendly relations between nations,

Discussion

Compliance with International Human Rights Obligations

Professor Louis Henkin

Are the leaders of powerful states, such as the US, really constrained in their actions and policies by the international laws of Human Rights?

Note:: Louis Henkin is the current US representative on the UN Human Rights Committee

Henkin notes that the human rights norms that grew out of the Universal Declaration into the two international covenants, especially that on civil and political rights, compare with those in enlightened libertarian national constitutions. Even the derogations and exceptions, e.g., for national security or public order, are not on their face extravagant or unduly permissive. The weakness is the law is in its enforcement, a weakness far greater here than in other international law. Since a violation by a state of the rights of its own inhabitants does not ordinarily infringe the national interests of other parties to the agreement, they have no compelling interest to scrutinize the violating behavior and call it to account. In other words, the law is not reciprocal between states and violations do not ordinarily affect friendly relations with other states or international credit or prestige.

The international law of human rights, then, cries for special machinery to enforce it, but governments have generally not been eager to create such machinery. Divisions emerged, requiring complex compromises when the law-makers struggled with the methods of implementing and enforcing the Covenant on Civil and Political Rights. Most governments resisted "activist" international bodies that could scrutinize, investigate, call violators to account. It was provided that parties would report voluntarily on their compliance to a Human Rights Committee created by the Covenant, but it was not clearly provided even that this Committee should scrutinize these reports and interrogate governments about them.

The Committee can hear complaints by one party that another has committed a violation only if the parties have agreed in advance to that effect. That the Committee might hear complaints from private individuals or organizations was relegated to a special optional Protocol to the Covenant. Even when the Committee was accorded this jurisdiction, it could only acts upon complaints discreetly, with public criticism possible only after extended private efforts failed to obtain rectification. Perhaps because enforcement was weak and not threatening, states adhered to these covenants, including some--like the USSR--whose human rights performance was found by outside observers to be less than satisfactory. But few accepted the optional provisions for either state-to-state or private complaint. While the number of states that today allows individual complaints under the Optional Protocol has increased, there has never been a state-to-state complaint under the terms of the ICCPR.

What then are the forces that influence governments toward compliance with the law of human rights?

Human rights have assumed a high place in the rhetoric of international relations and most governments, moved to adhere to international covenants, cannot lightly disregard them. While there is no other state that is directly "offended" by mistreatment of local inhabitants elsewhere, there are external knowledge and reaction to many human rights violations, and offending governments are sensitive to them. Some human rights, e.g., freedom from racial discrimination, have become major international political issues, and many governments will be quick to react and to seek international sanctions against violations. Other human rights, too, become major political issues and subject to sharp scrutiny and reaction. Apartheid in South Africa led to formal sanctions. Gross violations affect relations with some countries, and the subject of attack in the press and by NGOs. The obligation to report on compliance generates some inducement to comply, and international committees receive the reports and might be moved to scrutinize and act upon them. Even in the face of strong resistance, for example by the Communist-Arab bloc during the 1970's, there have also developed special official international mechanisms for "enforcement" "against a consistent pattern of gross violations of human rights" (the so-called "1503 and 1235 procedures") that help deter or persuade offending governments to discontinue them. In the European and Latin systems sophisticated institutions might bring embarrassing condemnation. In many countries domestic forces with a personal or ideological interest in individual rights serve to encourage compliance even by repressive regimes, e.g., vis-à-vis Jews desiring to emigrate or dissidents in the Soviet Union.

<<previous page

Peter Danchin, Columbia University