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The Global Human Rights Regime

Issue Brief

The Global Human Rights Regime - the-global-human-rights-regime

Publisher Council on Foreign Relations

Release Date Updated: June 19, 2013

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Overview

This page is part of the multimedia Global Governance Monitor from the International Institutions and Global Governance program.


Scope of the Challenge

Although the concept of human rights is abstract, how it is applied has a direct and enormous impact on daily life worldwide. Millions have suffered crimes against humanity. Millions more toil in bonded labor. In the last decade alone, authoritarian rule has denied civil and political liberties to billions. The idea of human rights has a long history, but only in the past century has the international community sought to galvanize a regime to promote and guard them. Particularly, since the United Nations (UN) was established in 1945, world leaders have cooperated to codify human rights in a universally recognized regime of treaties, institutions, and norms.

Global Governance Monitor: Human Rights

An elaborate global system is being developed. Governments are striving to promote human rights domestically and abroad, and are partnering with multilateral institutions to do so. A particularly dynamic and decentralized network of civil-society actors is also involved in the effort.

Together, these players have achieved marked success, though the institutionalization and implementation of different rights is progressing at varying rates. Response to mass atrocities has seen the greatest progress, even if enforcement remains inconsistent. The imperative to provide people with adequate public health care is strongly embedded across the globe, and substantial resources have been devoted to the challenge. The right to freedom from slavery and forced labor has also been integrated into international and national institutions, and has benefited from high-profile pressure to combat forced labor. Finally, the steady accumulation of human-rights-related conventions has encouraged most states to do more to implement binding legislation in their constitutions and statutes.

Significant challenges to promoting human rights norms remain, however. To begin with, the umbrella of human rights is massive. Freedom from slavery and torture, the imperative to prevent gender and racial persecution, and the right to education and health care are only some of the issues asserted as human rights. Furthermore, nations continue to dispute the importance of civil and political versus economic, social, and cultural rights. National governments sometimes resist adhering to international norms they perceive as contradicting local cultural or social values. Western countries—especially the United States—resist international rights cooperation from a concern that it might harm business, infringe on autonomy, or limit freedom of speech. The world struggles to balance democracy's promise of human rights protection against its historically Western identification.

Moreover, implementing respect for established human rights is problematic. Some of the worst violators have not joined central rights treaties or institutions, undermining the initiatives' perceived effectiveness. Negligence of international obligations is difficult to penalize. The UN Charter promotes "fundamental freedoms," for example, but also affirms that nations cannot interfere with domestic matters. The utility of accountability measures, such as sanctions or force, and under what conditions, is also debatable. At times, to secure an end to violent conflict, negotiators choose not to hold human rights violators accountable. Furthermore, developing nations are often incapable of protecting rights within their borders, and the international community needs to bolster their capacity to do so—especially in the wake of the Arab Spring. Finally, questions remain over whether the UN, regional bodies, or other global actors should be the primary forums to advance human rights.

In the long term, strengthening the human rights regime will require a broadened and elevated UN human rights architecture. A steady coalition between the global North and South to harmonize political and economic rights within democratic institutions will also be necessary. In the meantime, regional organizations and nongovernmental organizations must play a larger role from the bottom up, and rising powers must do more to lead. Together, these changes are the world's best hope for durable and universal enjoyment of human rights.

Human Rights: Strengths and Weaknesses

Overall assessment: Heightened attention, uneven regional efforts, weak global compliance

The international human rights regime has made several welcome advances—including increased responsiveness in the Muslim world, attention to prevention and accountability for atrocities, and great powers less frequently standing in the way of action, notably at the UN Security Council (UNSC). Yet, despite responses to emergency cases demanding action, such as Sudan and Libya, global governance in ensuring human rights has faltered.

Many experts credit intergovernmental organizations (IGOs) for advances—particularly in civil and political rights. These scholars cite the creation of an assortment of secretariats, administrative support, and expert personnel to institutionalize and implement human rights norms. Overall, the United Nations (UN) remains the central global institution for developing international norms and legitimizing efforts to implement them, but the number of actors involved has grown exponentially.

The primary mechanisms include UNSC action, the UN Human Rights Council(UNHRC), committees of elected experts, various rapporteurs, special representatives, and working groups. War crimes tribunals—the International Criminal Court (ICC), tribunals for the former Yugoslavia and Rwanda, and hybrid courts in Sierra Leone andCambodia—also contribute to the development and enforcement of standards. All seek to raise political will and public consciousness, assess human-rights-related conduct of states and warring parties, and offer technical advice to states on improving human rights.

However, these mechanisms are far from consistent. Generally, when they are effective, they change states' conduct by publicizing abuses rather than by providing technical advice or applying punitive measures. For example, no global body was capable of forcing the United States to stop its mistreatment of detainees at the Guantanamo Bay Detention Facility, but mounting international pressure [PDF] did encourage fundamental U.S. reform of its detention and interrogation policies in 2009. As a result, skeptics also counter that other grassroots movements or organizations hold greater responsibility for rights improvements than global institutions. Furthermore, although progress in condemning and responding to atrocities has been significant, it has been limited in advancing civil and political rights. Many in the international community are reassessing economic, social, and cultural rights as IGOs increasingly link human rights to business practices and public health. Elsewhere, attention to the rights of women, minorities, and persecuted ethnic groups has steadily increased.

Of all rights-centered UN bodies, the UN Human Rights Council receives the most attention. In its former incarnation as the Commission on Human Rights, it developed a reputation for allowing the participation—and even leadership—of notorious human rights abusers, undermining its legitimacy. Reconstituted as the UNHRC in 2006, the new forty-seven-member body has a higher threshold for membership as well as a universal periodic review (UPR) process, which evaluates the human rights records of states, including those on the council. Generally, the UPR has been welcomed as encouraging accountability and highlighting progress, and states have largely cooperated. However, Israel became the first state to withdraw from the review panel, breaking the established precedent of collaboration and cooperation. This follows a pattern of disproportionate focus on Israel—more than half of resolutions passed since 2006 have focused on Israeli actions in the Palestinian territories—while ignoring major abuses in other states.

The UN Security Council (UNSC) has more power to take action against human rights abusers. It can impose sanctions, mandate peacekeeping operations, and authorize use of force in extreme cases. Furthermore, UNSC deliberations are higher profile than UNHRC meetings and thus substantially elevate international attention to and pressure on rights violators. The UNSC deliberates on countries' abuses when they threaten international peace and security—but only when UNSC politics permit it. The five permanent UNSC members can all veto resolutions. France, the United Kingdom, and the United States tend to be the most vocal advocates for promoting human rights, though they routinely subordinate such concerns to strategic interests. China and Russia, however, often veto human rights interventions. Recently, major powers elected to the UNSC have been ambivalent on human rights, and none of the three seeking permanent membership (Germany, Brazil, and India) voted to authorize the mission in Libya.

Increasingly, the locus of activity on human rights is moving to the regional level, but at markedly different paces from place to place. Regional organizations and powers contribute to advancing human rights protections in their neighborhoods by bolstering norms, providing mechanisms for peer review, and helping countries codify human rights stipulations within domestic institutions. Regional organizations are often considered the first lines of defense, and better able to address rights issues unique to a given area. This principle is explicitly mentioned in the UN Charter, which calls on member states to "make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies" before approaching the UNSC.

Major regional organizations in the Western Hemisphere, Europe, and Africa—such as the Organization of American States (OAS), the European Union (EU), and the African Union (AU)—have integrated human rights into their mandate and established courts to which citizens can appeal if a nation violates their rights. This has led to important rulings on slavery in Niger and spousal abuse in Brazil, for example, but corruption continues to hamper implementation throughout Latin America and Africa, and a dearth of leadership in African nations has slowed institutionalization.

Meanwhile, organizations in the Middle East and Asia, such as the Association of Southeast Asian Nations (ASEAN) and the South Asian Association for Regional Cooperation, focus primarily on economic cooperation and have historically made scant progress on human rights. The Arab League, however, broke with its precedent of disengagement by backing UN action against Libya and sanctioning Syria, and may prove more committed to protecting human rights in the wake of the Arab Spring.

Civil society efforts have achieved the most striking success in human rights, though they often interact with international institutions and many national governments. Nongovernmental (NGOs) provide valuable data and supervision, which can assist both states and international organizations. NGOs also largely rely on international organizations for funding, administrative support, and expert assistance. Indeed, more than 3,000 NGOs have been named as official consultants to the UN Economic and Social Council alone, and many more contribute in more abstract ways. Domestic NGOs understand needs on the ground far better than their international counterparts. That international NGOs are beginning to recognize this is clear in two recent developments. The first is financier-philanthropist George Soros's $100 million donation to Human Rights Watch to develop field offices staffed by locals, which enabled the organization to increase its annual operating budget to $80 million. Second, the number of capacity-building partnerships between Western-based NGOs and NGOs indigenous to a country is increasing. That said, NGOs have to date been more successful in advocacy—from achieving passage of the Anti-Personnel Mine Ban Convention to calling attention to governments' atrocities against their own citizens. Yet NGOs devoted to implementing human rights compliance have been catching up—on issues from democratic transitions to gender empowerment to protecting migrants.

Norm and treaty creation: prodigious but overemphasized

The greatest strength of the global governance architecture has been creating norms. Myriad treaties, agreements, and statements have enshrined human rights on the international community's agenda, and some regional organizations have followed suit. These agreements lack binding clauses to ensure that action matches rhetoric, however, and many important violators have not signed on. In addition, states often attach qualifiers to their signatures that dilute their commitments.

The array of treaties establishing standards for human rights commitments is broad—from political and civil liberties to economic, social, and cultural rights to racial discrimination to the rights of women, children, migrant workers, and more recently the disabled. Other global efforts have focused on areas such as labor rights and human trafficking. Regional organizations, most notably the Council of Europe and the Organization of American States, have also promulgated related instruments, although less uniformly. In addition, member states have articulated declarations and resolutions establishing human rights standards, and increasingly so in economic affairs. The United Nations Human Rights Council, in a departure from the premise that states are to be held accountable for human rights conduct, in 2011 even passed formal guidelines for related business responsibilities [PDF].

On the other hand, states are under are no binding obligation to observe or implement rights resolutions unless passed—without a veto—through the UN Security Council or one of the few regional bodies with binding authority over member states. Similarly, although the proliferation of treaties, conventions, and protocols over the past fifty years implies significant advances in human rights norms, the true impact of these measures is questionable.

First, many of the conventions, such as the Rome Statute or the Convention on the Rights of Migrant Workers and Their Families, have not been ratified by central players, such as the United States. Second, although calls for enhanced human rights norms have increased, consensus over implementation and compliance has not kept pace. In particular, whereas the global North has largely focused on advancing civil and political rights, the global South has tended to defend economic, social, and cultural rights. Third, even if a rights document is ratified, states often use reservations, understandings, and declarations (RUDs) to evade obligations, especially those of legally binding documents. They do so to avoid negative press or the potential for imbroglios from even moderately intrusive monitoring mechanisms.

Saudi Arabia is an apt example. The country has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), but one RUD states that the convention is not applicable when it conflicts with sharia law, which allows Riyadh to continue denying basic rights to women. Similarly, many have argued that the United States has undermined its already limited commitments on human rights by invoking complex RUDs. For example, Washington ratified the Convention on the Elimination of All Forms of Racial Discrimination, but with the qualifier that it would not trump U.S. constitutional protection for freedom of speech, and therefore not require banning hate groups such as the Ku Klux Klan.

The international community thus remains at serious risk of overemphasizing the creation of international norms. For these to be effectively implemented, the language in international treaties must be transplanted directly into domestic legal structures, but this process is often quite slow. Furthermore, rather than pursuing broader protections, the international community should at times focus on securing transparency guarantees from governments and assurance that nongovernmental organizations and UN rapporteurs can freely monitor human rights within national borders. Implementation of existing rights treaties and agreements might have more concrete effect than expanded protection on paper.

Rights monitoring: proliferating experts, increasing peer-based scrutiny

Monitoring is imperative to matching rhetoric with action. Over the years, human rights monitoring has matured and developed considerably, though serious challenges remain, such as ensuring freedom from torture for suspected terrorists, and uniformly protecting and promoting human rights despite the biases of rights organizations or officials entrusted with doing so.

The original United Nations Commission on Human Rights and its successor Human Rights Council (UNHRC) both authorized a wide array of special procedures to monitor human rights protection in functional areas and particular countries. Since the UNHRC was established in 2006, country-specific mandates have decreased, and functional monitors addressing economic and social rather than political and civil liberties have increased.

In addition, each UN human rights treaty has an elected body of experts to which state parties must report at regular intervals on implementation. For instance, the Human Rights Committee (not to be confused with the Council) is charged with receiving reports about the implementation of the International Covenant on Civil and Political Rights(ICCPR) and making nonbinding "concluding observations" about states' overall compliance. The UN Convention Against Torture monitoring mechanism, the Committee Against Torture, is similar but can also send representatives to inspect areas where evidence of "systematic torture" exists. Very few parties to the convention (e.g., China, Syria, and Israel) have exercised the "opt-out" provision to avoid being subject to these inspections. (The United States has not opted out). The committee has exercised the mechanism eight times since 1990. In its first five years, a Subcommittee on Prevention of Torture has exercised the power to make on-the-ground inquiries sixteen times under the convention's First Optional Protocol, applicable only to its sixty-one parties.

Some observers [PDF] believe that this array of special procedures and treaty bodies, bolstered by the Universal Periodic Review (UPR) of all member states, indicates a robust capacity to monitor human rights globally. This could, in turn, empower nongovernmental organizations to raise information and engage governments in countries where they operate. Others question the strength of the system, noting that the quality and personal biases of experts vary dramatically and that as much time is spent in the UPR on liberal states as on systematic rights abusers, and that non-Western states "pull their punches" in questioning peers.

Various regional bodies also monitor implementation of human rights. The Organization for Security and Cooperation in Europe and Council of Europe mechanisms are robust. The inter-American system is highly institutionalized but disinclined to address suspension of constitutional provisions by democratically elected leaders. The African Union has a promising foundation in its peer review mechanism, but it is largely unrealized in the human rights area. Other regional organizations, such as the Association of Southeast Asian Nations and the Gulf Cooperation Council, have no monitoring to speak of, despite dramatic cases of abuses and public demand for better protections in their regions.

Capacity building: vital but underemphasized

Capacity building—especially for human rights—is often expensive and daunting, viewed with suspicion, and the success of assistance is notoriously hard to measure. In many cases, national governments have signed international commitments to promote and protect human rights, and earnestly wish to implement them, but are incapable of doing so. For example, many experts have noted that Libya may require an entirely new judicial system, following the collapse of Muammar al-Qaddafi's regime. On the other hand, some states refuse assistance from nongovernmental organizations (NGOS) and international organizations (IGOs), suspecting that it might interfere with domestic affairs. On balance, it also remains far easier, and less costly, for the international community to condemn, expose, or shame human rights abusers rather than provide material aid for human rights capacity building.

The international community has developed various ways to offer technical assistance. Most notable is the Office of the High Commissioner for Human Rights (OHCHR), established in 1993. In addition to providing an institutionalized moral voice, OHCHR offers technical assistance to states through an array of field offices—for example, by providing training to civilian law enforcement and judicial officials through its country office in Uganda, strengthening the Cambodian legal and institutional framework for human rights, and assisting Mexico with development of a National Program on Human Rights. Such work is undercut, however, by member states' propensity to prefer unilateral support for capacity building, to favor naming and shaming over capacity building, or to oppose human rights capacity building as either a threat to sovereignty or tantamount to neocolonialism.

Regional organizations such as the Organization for Security Cooperation in Europe(OSCE), Council of Europe, Organization of American States (OAS), European Union, and to some extent the African Union, may be more effective than the United Nations in sharing best practices and providing capacity-building advice to states. Often capacity building entails training human rights protectors and defenders, but it may also include legal framework building or addressing countries' specific capacity deficits. The OSCE, for instance, collaborates with member states on election monitoring and offers training and education [PDF] to human rights defenders through its Office for Democratic Institutions and Human Rights.

Human rights capacity building also occurs on a bilateral basis. Indeed, some developed states prefer providing bilateral assistance to working with IGOs and multilateral institutions because resources can be better monitored and projects more carefully tailored to support donor state interests. For instance, the U.S. Foreign Assistance Act of 1961, which laid the basis for the creation of the U.S. Agency for International Development (USAID), calls for the use of development assistance to promote economic and civil rights. Since its inception, USAID has provided billions of dollars to support good governance, transparency building, and civil society projects worldwide. It recently gave hundreds of millions of dollars to Liberia to train judges, promote the rule of the law, and increase government transparency.

Meanwhile, other multilateral institutions like the World Bank, International Monetary Fund, and World Trade Organization also support human rights promotion, but tend to do so more indirectly, through poverty alleviation and community enhancement schemes. Together, though, these institutions face new constraints as the international community continues to grapple with the global financial crisis and unprecedented budget deficits.

NGOs, while indispensable actors in terms of implementing ground-level capacity building, mostly operate at the pleasure of national governments, and have little recourse if asked to cease operations or even leave a state entirely. Suspicious of NGO activity, some governments have attempted to pass laws limiting the activity of NGOs or requiring them to receive prior approval before engaging in capacity-building efforts. Ongoing controversy in Cambodia over proposed government regulation of NGOs epitomizes this problem. Furthermore, the March 2009 decision of Sudan's president, Omar al-Bashir, to order thirteen international NGOS to leave Sudan—in the aftermath of his indictment by the International Criminal Court—demonstrates that NGOs may be perceived as easy targets by governments seeking to gain political or diplomatic leverage when pressed on their human rights records.

As a whole, successful capacity building forms the core of long-term efforts to improve human rights in countries. Regardless, human rights capacity building is often underemphasized both in states with the poorest of human rights as well as among countries or intergovernmental organizations that are most in a position to help. While NGOs are crucial contributors to capacity-building efforts, they cannot—and should not—shoulder the entire burden. Broad, crosscutting partnerships are essential for such efforts to enjoy success and produce sustainable human rights reform.

Response to atrocities: significant institutionalization, selective action

Atrocities of all sorts—whether war crimes, genocide, crimes against humanity, or ethnic cleansing—have been a major focus in the international community over the last two decades. A number of regional and country-specific courts, as well as the International Criminal Court (ICC), provide potential models for ending impunity. However, these courts have unevenly prosecuted violators of human rights, and have been criticized for focusing on some abuses or regions while ignoring others.

In the aftermath of the Balkans and Rwanda in the 1990s, where UN peacekeepers on the ground failed to prevent mass killing and sexual violence, efforts to establish preventive and responsive norms to atrocities accelerated. To hold perpetrators accountable, the Rome Statute established the ICC as the standing tribunal for atrocities. The ICC was largely considered an alternative to ad hoc tribunals like those for the former Yugoslavia and Rwanda, which were criticized for proceeding too slowly and for requiring redundant and complex institution building. The ICC is the result of UN efforts to evaluate the prospects for an international court to address crimes like genocide as early as 1948.

The United States was at best ambivalent about the ICC, given concerns that its own military actions would be subject to accusations. President Clinton signed the Rome Statute but recommended against ratification. The George W. Bush administration informed the UN secretary-general that the United States no longer considered itself a signatory, and set about negotiating (after a congressional mandate threatening to cut aid to states that refused to sign such agreements) to avoid having its troops handed over to the court. Ultimately, however, that administration tacitly cooperated on an ICC case against Sudan for atrocities in Darfur. The Obama administration reengaged as an active observer at the Conference of the Rome Statute Parties, despite its wariness over ICC attempts to define the crime of aggression. The ICC's first prosecutor, Luis Moreno-Ocampo, vigorously pursued the first indictment of a sitting head of state, Sudan's Omar al-Bashir, but others have suggested that ICC proceedings have occurred no more quickly than those of ad hoc tribunals and remain too focused on pursuing cases in Africa.

As for preventive action, former UN secretary-general Kofi Annan championed stronger norms for intervention against ongoing atrocities. In the wake of the Kosovo crisis, Annan cited the need for clarifying when international intervention should legally be used to prevent atrocities in states. In response, the Canadian-sponsored International Commission on Intervention and State Sovereignty promoted the concept of the "responsibility to protect" (R2P) in 2000 and 2001. This principle sought to reframe the debate over humanitarian intervention in terms of state sovereignty. Specifically, it placed the primary responsibility on states to protect their own citizens. When states failed, responsibility would fall to the international community. Annan's In Larger Freedomreport picked up on this concept, and R2P informed two paragraphs in the Outcome Document of 2005 UN World Summit. The latter also included an emphasis on the importance of capacity-building assistance to help states meet their R2P obligations. In the UN Security Council (UNSC), the R2P doctrine has been invoked repeatedly—first generically affirmed, then raised in semi-germane cases in 2008 (in Myanmar after a cyclone and in Kenya during post-election violence), and then conclusively in 2011 (UNSC Resolution 1973 on Libya).

Sudan has also served as a bellwether for international for the international community's capacity to respond to instances of atrocities. In 2004, in response to the depredations of government-backed janjaweed forces against the inhabitants of Darfur, the United States issued a legal determination that genocide had been committed. Rape of women venturing outside camps for the internally displaced, however, continued long after the UN became involved. A combined UN and African Union peacekeeping force was also established to help mitigate the violence. In 2009, the ICC indicted Bashir, but had neither the means to apprehend him nor the leverage to facilitate his capture.

In short, the international community has taken its greatest step by redefining sovereignty as answerable to legal international intervention should a state fail to shield its citizens from atrocities, or worse yet, sponsor them. However, state practice has not matched these norms, and it remains to be seen whether consensus about Libya was sui generis. The escalating conflict in Syria, in which over sixty thousand have been killed since March 2011, underscores the fact that, in reality, political concerns of the P5 often trump the doctrine of R2P.

Political and civil rights: disproportionately institutionalized, backlash on free expression and association

Treaties that define political and civil liberties are widely ratified, but many countries have not signed on to enforcement protocols, and many continue to violate the rights of their citizens regardless of treaties. In addition, the right of people to choose their leaders and freedom of the press, religion, and association has backslid in recent years. At the same time, however, people are increasingly demanding rights and attempting to bypass repression of illiberal regimes. New technology (such as cell phones, social media, and satellite television) is also providing unprecedented opportunities to publicize abuse and organize protests, though repressive regimes are closely following with practices to censor new technology.

States resisting the spread of political and civil liberties have been challenged more by civil society than by other states or by intergovernmental organizations (IGOs). Using information and communications technology, and with the support of global nongovernmental organizations (NGOs) and occasionally the private sector, civil society has taken their demands to a new level. China's effort to control dissent, for example, has been greatly challenged by Uighur dissenters in Xinjiang, Falun Gong groups, and the decision by Google to refuse to implement comprehensive censorship in China. However, international pressure remains relevant. For example, the Obama administration's recent statement that censorship practices in China may violate World Trade Organization rules has increased pressure on China to reform.

In the United Nations, the number of member states, organs, and generic mandates related to freedom of expression and association have increased. For instance, the UN General Assembly adopted a resolution in 2007 calling for the end of capital punishment. In September 2010, the UN Human Rights Council (UNHRC) adopted another resolution, creating a special rapporteur on rights to freedom of peaceful assembly and of association. This occurred in the wake of a multiyear backlash [PDF] against domestic NGOs and their international philanthropic and civil society backers in a series of autocracies.

Nonetheless, analysis has documented a five-year backslide in levels of democratic governance and other civil political liberties worldwide. Moreover, ratifications of the First and Second Protocols of the International Covenant on Civil and Political Rights remain low. The latter, which attempts to ban the death penalty, has only seventy-three parties. Another more recent accord, the International Convention for the Protection of All Persons from Enforced Disappearances, came into force in 2010, but has not been ratified by states most commonly charged with executing such disappearances, including Russia and China.

Attacks on journalists have also increased, especially as the Arab Spring swept through the Middle East and North Africa. And even as individuals and civic organizations have used social media and other online tools to exchange ideas and press their cause, authoritarian governments have taken advantage of the same technology to halt or reverse gains in freedom of expression.

In recent years, national debates about the relationship between terrorism and Islam have also increased the number of measures in IGO bodies like the United Nations andUNHRC on religious expression. Muslim-majority states have proposed resolutions to stem the "defamation" of religion. Such measures, though, were in many instances perceived by Western powers and rights groups as licenses to permit states to punish cases of so-called religious blasphemy, and had the potential to dramatically limit freedom of speech. During the spring of 2011, the UNHRC shifted from the annual tradition of passing the controversial defamation of religion resolutions to adopt a more authentically robust freedom of religion formula. The new balance, focusing on religious tolerance, was largely due to a compromise the United States struck with the Organization of the Islamic Conference, since renamed the Organization of Islamic Cooperation.

As a whole, although a large number of states continue to disregard or even retard the protection of political and civil liberties, expanding efforts on the ground and in multilateral bodies may prove most significant in the long term.

Economic rights and business responsibilities: increased corporate focus and engagement

A long-standing debate between the global North and global South has been over whether to prioritize negative obligations of states to avoid restricting political and civil liberties or positive obligations to deliver economic and social benefits. Indicators, however, show a subtle yet important shift in the last ten of the forty-year debate.

Until the end of the twentieth century, international law frameworks placed human rights obligations on the shoulders of states. Not least through former UN secretary-general Kofi Annan's role as an ideas entrepreneur, notions of the obligation of businesses on human rights have blossomed. First, in 2000, Annan and his Harvard-based scholar-adviser John Ruggie crafted the UN Global Compact, which enumerates voluntary principles for business related to human rights and environmental stewardship. The UN then created a mandate for a special representative of the secretary-general to assess state, business, and civil-society stakeholders on business conduct and human rights. In July 2011, the UN Human Rights Council (UNHRC) adopted guidelines [PDF] that delineate state obligations to protect human rights, business obligations to respect them, and a joint role to provide remedies to people robbed of them. These successes do not come without challenges, however. Ruggie, who has been at the forefront [PDF] of business and human rights, completed his term as special representative in mid-2011, raising the prospect that UN efforts may stall in his absence. Further, although the UN Security Council's adoption of the Global Compact guidelines is significant, implementation will be a difficult next step. Additionally, the International Labor Organization (ILO) and its counterpart, the International Organization of Employers, have jointly engaged businesses on best practices on human rights.

Nevertheless, businesses' decisions to uphold human rights standards remain largely voluntary and thus subject to market—rather than moral—forces. Even when businesses make commitments to corporate responsibility programs, no actor exists to enforce such commitments. Civil society can play a critical role in mitigating these challenges, however, by publicizing corporate human rights abuses and working directly [PDF] with businesses on corporate responsibility. NGOs such as Human Rights Watch, the Institute for Human Rights and Business, the International Federation for Human Rights, Global Witness, and the International League for Human Rights exemplify these efforts. Additionally, even where businesses act in violation of domestic laws or international conventions protecting human rights, limited domestic law enforcement capabilities undermine the force of accountability standards.

The international community's efforts to address economic and social rights have advanced. Some measures evidence a redefinition of human rights, such as the mandate from the UNHRC on toxic waste. Some entail setting ambitious norms, such as the UN Convention on the Rights of Persons with Disabilities, negotiated during the George W. Bush administration and signed by the Obama administration (although Congress failed to ratify the convention in December 2012). Most important have been efforts to address economic and social rights with tangible programming. The Global Fund to Fight AIDS, Tuberculosis, and Malaria is a landmark achievement for bridging health, economic, and discriminatory ills; for mobilizing significant resources beyond regular assessed budgets of the UN; and for involving an array of UN, private sector, philanthropic, and civil society actors in a concerted partnership. It is worth noting that the global North (and its greatest skeptic on economic and social rights, the United States) have championed this effort, supplementing it heavily through the U.S. President's Emergency Plan for AIDS Relief(PEPFAR).

Child labor, forced labor, human trafficking, and contemporary slavery have also become a focus of global governance efforts since the beginning of the twenty-first century. Such abridgments of freedom and autonomy signal a tragic combination of economic desperation, weak rule of law, and discrimination. The ILO's work to address forced labor and the most acute forms of child labor through conventions and preventive programs has now been supplemented by other efforts. New energy has been directed to mitigating the most coercive of labor practices as a result of the near simultaneous enactment of the Palermo Protocol to the UN Crime Convention on Trafficking in Persons (TIP) and the U.S. Victims of Trafficking and Violence Protection Act in 2000.

The UNHRC has also authorized special rapporteurs on both human trafficking and contemporary slavery. States, intergovernmental organizations, and NGOs have developed partnerships to address child labor, forced labor, and human trafficking. Businesses are also joining global governance efforts, moving from sector-specific partnerships (such as the travel and hospitality sector on child sex trafficking and chocolate companies on child labor in West Africa) to cross-sectoral ones (such as theAthens Ethical Principles [PDF] and emerging thought-leader coalitions).

Women's and children's rights: institutional progress but holdouts on implementation

The rights of women have advanced incrementally. The United Nations (UN) system has moved beyond creating norms, such as the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child to more assertive leadership and calls for implementation efforts among national governments. However, despite marked success on various fronts, the UN estimates that women continue to make up less than 10 percent of world leaders and less than one-fifth of parliamentarians. Moreover, it remains to be seen whether the Arab Spring will help or hinder the cause of gender equality. Efforts to enhance the economic and social wellbeing of women and children have also improved, but remain at risk as a result of tightened national and international aid budgets.

Arguably, the decision of the UN Development Program to commission reports [PDF] by Arab experts to link gender inequality and reduced development in the Arab world, published in 2005, was an important step forward. The formation of the UN Entity for Gender Equality and the Empowerment of Women (UN Women), amalgamating four existing agencies, received an additional boost when Chile's Michelle Bachelet was appointed its first leader. The remaining question is whether the consolidation of women's rights functions will mainstream or silo them. Around the world, more women have become involved in political participation—from the first woman elected head of state in Africa to the franchise in Gulf States.

The essential role of women in peace and consensus building has moved from statements like UN Security Council Resolution (UNSCR) 1325, which recognized that women are not adequately consulted and integrated into peace processes, to reality. In December 2011, for example, the United States joined thirty-two other countries in publishing a National Action Plan (NAP) on Women, Peace and Security [PDF] designed to integrate governmental efforts to implement UNSCR 1325. Ellen Johnson Sirleaf's leadership in postconflict Liberia and the July 2010 establishment of UN Women provide further evidence of the international community's improving recognition of the indispensable role of women in postconflict situations.

Moreover, attention to the acute problem of violence against women has advanced, even if it has been significantly curtailed in practice. In 1998, The International Criminal Tribunal for the former Yugoslavia (ICTY), along with the Rome Statute, established the precedent that targeted rape is a crime against humanity, though the practice has continued largely unabated in Darfur, the Democratic Republic of the Congo, Burma, and Zimbabwe.

The degree to which prostitution of girls and sex trafficking of women is an act of violence is beginning to be better understood around the world. Despite several conventions addressing the issue of human trafficking, and anti-trafficking laws in many countries, it remains a nearly $32 billion industry. While exact statistics are difficult to obtain, the UN estimates that between seven hundred thousand and two million women are trafficked annually. Over the past decade, the United States and the United Nations have devoted greater resources to monitoring and prosecuting trafficking, as with the UN Office of Drugs and Crime's human trafficking case law database and the U.S. Department of State's annual Trafficking in Persons Report. Additionally, in 2010, the UN established a trust fund to assist victims of human trafficking and the UN General Assembly adopted a global plan of action to combat trafficking.

Girls are substantially less likely to receive basic education, especially in South Asia and Sub-Saharan Africa. Moreover, the World Bank reports that this situation is unlikely to change through economic development alone. While girl's education has received more attention in recent years, much work remains. Gender parity in primary and secondary education was among the Millennium Development Goals originally targeted for achievement by 2005. In support of this goal and its original 2005 deadline, the UN Children's Fund (UNICEF) launched the 25 by 2005 initiative, which brought greater awareness to girls' educational needs. However, the international community failed to reach the 2005 target—60 percent of countries still lack gender parity in education—and it remains on the list of Millennium Development Goals targeted for 2015. Nevertheless, NGOs like the public-private Education for All-Fast Track Initiative [PDF] have successfully implemented country-specific approaches.

Awareness and official standards for the rights of children have also expanded, but implementation has lagged. The Convention on the Rights of the Child and its two optional protocols, on child soldiers and on the sale and sexual exploitation of children, have set crucial norms. Partnerships of states, intergovernmental organizations, nongovernmental organizations, and the private sector have begun to address the subjects of these two protocols in particular. International organizations have heightened focus on postconflict rehabilitation and reintegration of child soldiers in various regions, from the Democratic Republic of Congo to Sri Lanka. NGOs, media, and authors have raised international public awareness, and increasingly using child soldiers is seen as human trafficking. As for child prostitution, diverse groups such as the United Nations Children's Fund (UNICEF), the International Labor Organization, the UN Interagency Program on Human Trafficking , the International Center for Missing and Exploited Children, the secular End Child Prostitution and Trafficking, the faith-based World Vision, and the Body Shop Corporation have forged partnerships to identify and assist victims. However, the problem of prostituted children being treated by local authorities as disposable or criminal, rather than as victims, persists globally, even in major democracies like the United States, Japan, and India.

In large segments of the developing world, children are seen as breadwinning assets, sometimes abandoned to degrading exploitation [PDF] when they are too much of a burden to families. Among those capable of responding to this problem, UNICEF is arguably the best run, most respected, and most able to secure donations. It addresses acute protection needs of children in humanitarian crisis zones, as well as more general health, education, and other basic needs. In a related effort, the World Health Organization has encouraged linking immunizations to human rights as a part of its Decade of Vaccines [PDF] program, which spans 2011 to 2020, though financial support will likely be constrained as the word continues in an economic downturn.

Other group rights: heightened focus, selective bias

Dedicated efforts to address the rights of particular groups have advanced for some, but stalled for others. Racism and other forms of xenophobia have been a major focus. Organization of American States (OAS) members have been negotiating over an antiracism convention proposed by Brazil since 2005, to follow in the footsteps of the United Nations Convention on the Elimination of All Forms of Racism and monitoring regime. The UN process, despite the 1991 repeal of UN General Assembly Resolution 3379 (classifying Zionism as a form of racism), has been sidetracked by the issue of Israel and its occupation of Palestinian territories. The 2001 UN World Conference against Racism in Durban came close to declaring Israel to be racist, and follow-on efforts, such as at the 2009 Review Conference, had a similarly skewed focus. In practice, however, certain great exemplars of antiracism have transcended, from South Africa's reconciliation under Nelson Mandela to Barack Obama's election in a nation in which segregation was widely institutionalized a half century earlier. Sadly, many varied instances of racism and xenophobia remain, from anti-Semitic violence in Europe to anti-white land seizure policies in Zimbabwe.

Indigenous peoples have been the subject of elaborate, extended dialogue and expert monitoring in the UN and inter-American system of intergovernmental organizations (IGOs), but remain subject to discrimination. After establishing the Convention on the Rights of Indigenous and Tribal Peoples in 1989, the UN General Assembly voted to adopt the Declaration on the Rights of Indigenous Peoples in 2007. Although Australia, New Zealand, the United Kingdom, and the United States initially opposed the declaration, they ultimately voted in favor. Other ethnic minorities are the targets of discrimination (such as Dalits, who make up the vast majority of the estimated [PDF] forty million bonded laborers in India despite a 1976 law against the practice) or state-led political and cultural repression (such as Tibetan Buddhists and Uighur Muslims in ostensibly autonomous territories of China). Ethnic rights abuses remain one of the major sources or pretexts for armed conflict.

Sexual minorities have begun to gather increased attention in IGO forums, in resolutions, and in national practice. Focus has ranged from being subject to violence to freedom from discrimination. Brazil has spearheaded confronting rights abridgments in the UN and OAS, as it did on homophobia. African and Middle Eastern states and the Vatican have led opposition to sexual minority rights in the United Nations. Western and Latin American states have increasingly swung toward supporting these rights, which culminated in the UN Human Rights Council passing the first UN resolution on the protection of sexual minorities in June 2011.

In short, an increasing number of groups have been recognized by multilateral bodies, states, and publics as deserving equal access to justice. Implementation efforts are spottier. Second, cultural legacies of prejudice may persist as more and more groups lobby for rights.

U.S. and International Human Rights Policy Questions

Introduction:

The United States and the international community face numerous and increasingly serious questions on evaluating, reforming, and strengthening the global human rights regime. While the U.S. government views human rights promotion as an important foreign policy goal, enactment is rarely clear cut; rather, it is fraught with ethical quandaries and competing strategic priorities. In shaping a human rights policy for the twenty-first century, the United States must carefully select tactics and partners that are consistent with U.S. interests and values, protect human rights abuse victims, and maximize available resources.

Should the United States use coercive approaches, such as military force and economic sanctions, to address human rights issues?

Yes: Proponents argue that coercive approaches to promoting and protecting human rights, such as economic sanctions and military force, yield the most tangible results during human rights crises. For example, the imposition of a no-fly zone in Iraq from 1991 to 2001 and the use of North Atlantic Treaty Organization (NATO) airpower in 1999 deterred government ethnic cleansing. More recently, in 2011, military force prevented Libyan leader Muammar al-Qaddafi from massacring civilians. Advocates also note that military force is sometimes the only option to prevent mass atrocities, and argue that the Rwandan genocide could have been avoided had nations used military force. Merely naming and shaming is often criticized as a paper tiger, and rights violators can simply ignore UN Human Rights Council resolutions—which are not legally binding—or UN Security Council (UNSC) resolutions that do not threaten military force. Moreover, during UNSC negotiations, resolutions are often severely watered down.

Advocates add that costs are drastically reduced when alliances cooperate in humanitarian interventions. For example, the multilateral Kuwaiti mission to repel Saddam Hussein's forces in 1990 ultimately cost the United States relatively little. Similarly, targeted sanctions can pressure high-level government violators of human rights to cease egregious acts and deter others from engaging in them. The multilateral sanctions regime against the South African government under apartheid succeeded in toppling the racist Rhodesian regime, for example.

No: Opponents of using force to counter human rights abuses cite three problems. First, coercive measures are rarely effective. Military strikes can be neutralized if leaders go into hiding. Sanctioned regimes often cultivate alternate trading partners, conduct business on the black market, and rally public support against the sanctioning nation or nations. Some contend that sanctions impoverish civilians but do not harm the elite leadership, and therefore do not inspire changes in behavior. Second, the United States does not have the resources to prevent human rights abuses around the world. Although international institutions such as NATO and the UNSC increase the legitimacy of humanitarian interventions, the United States usually provides the majority of funds and military assets. For example, while relatively cheap for the United States, the 2011 multilateral air campaign in Libya cost the U.S. government between $60 and $80 million per month. Third, coercive measures often kill civilians or damage critical government infrastructure. For instance, although the U.S.-led NATO intervention in Kosovo achieved its central objective of halting ethnic cleansing of minority Albanians, an estimated five hundred Yugoslav civilians were killed during allied bombing runs. Similarly, although figures vary, blanket economic sanctions on Iraq in the 1990s took an extremely heavy toll on Iraqi society. Some figures, for example, estimate the total number of Iraqi civilian deaths as a result of sanctions to be in the hundreds of thousands.

Should the United States prioritize reform of international human rights bodies?

Yes: Advocates of devoting more U.S. capital to institutional change in the United Nations (UN) and regional intergovernmental organizations believe that both can advance human rights interests even if imperfect. Since the Obama administration decided to join the UN Human Rights Council (UNHRC) rather than shun it, for example, the UNHRC has passed a groundbreaking resolution concerning sexual orientation, voted in favor of suspending a rights abuser—Libya—from its halls, and even dissuaded known human rights violators—such as Syria—from running for a seat on the UNHRC. On a regional basis, the United States and its allies also benefited from the Arab League's decision to condemn Muammar al-Qaddafi's regime, call for a no-fly zone over Libya in April 2011 as well as the body's decision to condemn Syria's human rights violations in November 2011. Pursuing additional reform also permits the United States to gain multilateral support and to mitigate the costs of acting alone or sitting on the sidelines during rights crises. Acting on a more unilateral basis not only risks polarizing potential partners, but also raises costs considerably.

No: Although restructuring UN and regional institutions may seem excellent in theory, in practice it is more complex and may actually be counterproductive in terms of human rights. Achieving major reforms within the UNHRC may be particularly difficult given that the body itself is not even a decade old. Some argue that the United States risks losing gains made in creating the UNHRC by reopening the debate within the UN General Assembly and UN Security Council. Reform on human rights—such as eliminating or qualifying the UN Security Council veto in cases of mass atrocities—is even less probable given the interests of veto-wielding states such as Russia and China. Others argue that rather than demanding reform of international bodies, the United States should forego cooperation with them. Instead the United States should optimize the use of scarce resources by promoting fewer but more targeted reforms most suited to its foreign policy interests.

Should the United States use global rather than regional institutions institutions to advance human rights?

Yes: Many believe the United States should prioritize global intergovernmental organizations (IGOs) and institutions like the United Nations (UN) and the Group of Twenty rather than regional organizations such as the Organization of American States,Organization for Security and Cooperation in Europe (OSCE), or African Union (AU) for human rights advocacy for three reasons. First, global organizations have inherently greater authority to set norms than their regional counterparts. Global IGOs better represent the international community and likely carry more legitimacy and normative influence. Second, the United States has a higher chance of accomplishing its objectives in global IGO forums, such as the UN Human Rights Council (UNHRC), of which it is a member and source of funding. The Obama administration has championed this approach by reversing the Bush administration policy of shunning the UNHRC and instead trying to improve the body from within. A final problem may be the lack of developed regional organizations focusing on human right issues.

Both the UN and other regional institutions also include member states whose leaders are not elected, and with which the United States either does not have normal diplomatic relations or fundamentally disagrees on human rights policy. Other regional organizations—such as the Organization for Islamic Cooperation's Independent Permanent Commission on Human Rights, African Commission on Human and Peoples' Rights, and the Association of Southeast Asian Nations Human Rights Commission—are still very young and have yet to develop legitimacy and capacity. Simply throwing aid or expertise at such bodies is unlikely to yield positive, sustainable reform, and the United States must therefore engage with these nations in global bodies, without stalling action by demanding reform.

No: Others say the United States should focus more on nascent regional human rights organizations. Although global IGOs and institutions can certainly be valuable partners, regional organizations are the closest on the ground and the most capable of handling situations based on the consensus of neighboring states. Institutions like the European Union, Council of Europe, and OSCE have advanced human rights in transitional states seeking to be members of the institutions in good standing. The inter-American system of IGOs has highly developed human rights mechanisms. The AU has also developed good governance and a promising peer review mechanism. Emerging regional organizations, especially those that focus on human rights, such as the African Human Rights Commission, take better advantage of the resources the United States and other like-minded partners provide. Such prioritizing of aid recipients is increasingly critical as the budgets of the United States and major European partners contract. For example, opportunities for the United States and other European countries to work to bolster the peacekeeping capacity of the AU, which could in turn alleviate the ongoing crisis in Somalia, are numerous. Human rights action in global IGOs and institutions commonly falls prey to regional and North-South bloc politics, procedural logjams, and the need to compromise among far too many competing interests—in effect rendering a final outcome document toothless. In contrast, working through regional organizations involves fewer actors and may work best in terms of ensuring legitimacy and building consensus.

Should the international community prioritize accountability over negotiations to stop abuses?

Yes: For many rights advocates, when autocrats participate in human rights violations or mass atrocities, they should not be given carrots to stop the abuses. The International Criminal Court (ICC) has the authority to indict and prosecute rights abusers even if they never signed the Rome Statute or entered the territorial jurisdiction of a state that ratified the treaty. Offering incentives to rulers to halt abuses not only weakens human rights norms, it also may lead rulers to believe they can always strike a deal to avoid prosecution or imprisonment. During World War II, the United States was explicit that the surrender of Nazi Germany must be unconditional. It is hard to imagine giving Hitler or other high-level Nazi figures legal immunity in exchange for a surrender. As is clear from the tribunals for Rwanda and the former Yugoslavia, holding leaders or high-level administrators who participated in atrocities accountable can also be vital to a country's reconciliation process. Adopting an accountability-based framework could also be a deterrent to those either carrying out or condoning rights violations, because they fear humiliation, sentencing, and imprisonment.

No: Harm-reducing or early retirement plans for rights-abusing autocrats are often preferable to letting crises drag out or deteriorate. Valuing accountability rather than bringing a halt to violations may be principled, but it may not be practical. For example, after the ICC indictment of Sudan's sitting president, several nongovernmental organizations were ordered to leave the country, placing numerous Sudanese civilians at risk for starvation and violence. Moreover, that rulers can survive or even continue to rule their countries despite an ICC indictment weakens not only rights norms, but also the authority of rights institutions. In other cases, focusing on accountability may be too politically difficult, because the question "Accountable to whom?" must be asked. The veto power of the five permanent UN Security Council (UNSC) members, for example, makes human rights action an uphill battle. Moreover, even if the UNSC or ICC decides to hold a leader accountable, a regional organization may still offer a comfortable exit strategy, creating an imbroglio. When confronted with a popular uprising in 2011, Tunisia's former president Ben Ali fled to Saudi Arabia, shortening the period of chaos in the country and the transition of power to Tunisians favoring democratic reform. Ali may have escaped prosecution, but many would argue that Tunisia is more stable for it.

Should the global governance system for human rights focus on institutionalizing democracy?

Yes: Advocates tend to believe that rights are best ensured by a functioning democracy. Without regular free and fair elections and core democratic institutions, it is too easy for even benevolent autocrats to violate the rights of their populations. Democracy proponents also believe that arguments suggesting that certain cultures or regions are ill-suited to democracy rely more on stereotypes than reality. The onset of the Arab Spring, for example, is serious evidence that democracy can be considered a universal concept and value. Many believe that building democracy is the best way to ensure peace, because many studies have suggested that democracies tend not to fight one another. Both the nearly globally accepted UN Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights emphasize liberal institutions and democratic governance.

No: Others believe that the international community should focus instead on human rights. First, as experience in Afghanistan and Iraq shows, democratization usually demands an extended commitment of time, political capital, and monetary resources. On the other hand, even stable liberal democracies have proven capable of human rights infringement, especially in protecting minority rights against the will of the majority. France, for example, banned Muslim women from wearing the burqa in 2011. In November 2009, Switzerland banned the construction of minarets on mosques, eliciting outrage from various human rights nongovernmental organizations and Muslim groups. By privileging political and civil liberties as higher order rights, democracy promotion can also engender trade-offs with issues related to individuals' economic, social, and cultural livelihood—something many developing world governments oppose. Other countries fear that too much focus on democracy might evolve into a pretext for interventions justified by human rights concerns, engendering instability and chaos in countries facing a rapid regime transition. Despite the toppling of Egypt's former authoritarian leader, Hosni Mubarak, stability has not returned to the country. Moreover, even for the most powerful democratic states, cooperating and working with their nondemocratic counterparts is often little short of strategic and economic necessity.

Recent Developments

January 2014: Nigeria outlaws same-sex marriage

On January 7, 2014, President Goodluck Jonathan of Nigeria signed into law the Same-Sex Marriage Prohibition Bill. This legislation outlaws public displays of affection between homosexual couples in Nigeria and imposes a fourteen-year prison sentence on people involved in a same-sex marriage or civil union, but it leaves the definition of what constitutes such relationships broadly defined and open to extremes of interpretation. The law also strictly limits gay rights activist groups, outlawing assistance to anyone perceived to be homosexual, which, in effect, could dangerously effect AIDS reduction programs by cutting off access to groups and clinics that provide HIV-prevention to homosexual men. International concern and condemnation about the human rights infringements of the legislation has been expressed as well as fears that it will fuel bigotry and violence against those who have or are perceived to have a homosexual orientation.

December 2013: China closes reeducation camps

On December 28, 2014, China voted to abolish "laojiao", the country's reeducation through labor policy which has seen hundreds of thousands detained for minor offences since it was first instated in 1957. The system has long been criticized by human rights activists who point to the forced labor, political indoctrination, and harsh, often inhumane treatment of detainees as an outright violation of human rights. The system, which purportedly held nearly 200,000 people in over 300 camps across China, is now in the process of releasing detainees and repurposing the camps, though human rights activists fear for the prisoners that have been simply moved to another form of incarceration, like prison or long-term drug rehabilitation centers.

May 2013: Guatemalan war crimes conviction overturned

On May 20, 2013, Guatemala's high court overturned the May 10 conviction of Efra'n R'os Montt, the dictator of Guatemala from 1982 to 1983, who had been found guilty of genocide and crimes against humanity, including the massacres of 1,771 indigenous people and sentenced to eighty years in prison. The war crimes trial began in Guatemala City on March 19, 2013, but was pushed back to April 19 due to a dispute over who should hear the case. No date was set for the trial to restart. Both the trial and the conviction had been hailed as landmarks for human rights as they were the first instance of a former head of state both being put on trial and convicted in Central America, a region where past atrocities have historically been met with impunity.

April 2013: Alien Tort Statute struck down

On Wednesday April 17, the U.S. Supreme Court made a ruling that effectively put an end to the use of a 1789 law called the Alien Tort Statute as an instrument for non-citizens in U.S. courts seeking reparations for human rights violations and atrocities committed by U.S. businesses on foreign soil. The decision stemmed from the case of Kiobel v. Royal Dutch Petroleum Co., in which the statute was used by a group of Nigerian citizens to sue Shell Oil for allegedly aiding the Nigerian government in the torture and execution of activists protesting environmental damages caused by the oil operations in the Ogoni region, between 1992 and 1995. The court's decision implied that the Alien Tort Statue did not generally apply beyond the borders of the United States, unless Congress decides otherwise.

March 2013: Historic UN code on violence against women

On March 16, 2013, the United Nations passed a historic code of conduct to combat the use of violence against women and girls. Countries that originally opposed the declaration, including certain Muslim nations that viewed the code as a threat to traditional cultural values, agreed to language stipulating that violence against women is not justified by "any custom, tradition or religious consideration." The final negotiations excluded references to gay rights and sexual health rights.

Options for Strengthening the Global Human Rights Regime

Introduction:

U.S. and international action are needed to extend the impact on people's lives of the global human rights regime. These recommendations reflect the views of Stewart M. Patrick, director of the International Institutions and Global Governance program, and Mark P. Lagon, CFR adjunct senior fellow for human rights.

In the near term, the United States and its international partners should consider the following steps:

  • Empower regional organizations and NGOs to act

Global intergovernmental organizations (IGOs) are important but not enough to alone advance the fullest realization of human rights. Regional organizations and nongovernmental organizations (NGOs) have also become important actors. The United States, in concert with other leading powers and global IGOs, should actively cultivate a more robust role for regional institutions and NGOs. Rather than host conferences to share best practices, the United States should seek to deepen the already strong efforts of regional organizations, such as that of the Organization for Security and Cooperation in Europe for technical assistance and monitoring, and to bolster their capacities, such as that of the African Union (AU) to support UN-authorized military operations. Promising but slowly developing efforts, such as AU and the New Partnership for Africa's Development's peer review mechanisms, should be encouraged, especially by other regional organizations and leading African powers. Stalled efforts, such as the 2001 Inter-American Democratic Charter, should be resuscitated. Regional organizations that have largely ignored human rights, such as the Association of Southeast Asian Nations, should be encouraged to integrate them into their charters.

Nongovernmental and civil society organizations committed to liberal values must be further empowered as agents to implement human rights. Many leading liberal powers—Mexico, Japan, and India—do not fully embrace and trust NGOs as partners to governments. The United States should encourage other leading liberal powers to fund and rely on NGOs as partners where applicable, both within their own territory and internationally. The United States should also help IGOs find inventive ways to sidestep member state politics to empower NGOs. A model to scale up and replicate is the UN Democracy Fund, which funds responsible and reliable civil society organizations to advance a wide array of political, civil, economic, and women's rights.

  • Encourage intergovernmental organizations' technical assistance to states

The United States should make a concerted effort to urge intergovernmental organizations to devote more time and resources to help developing countries expand their capacity to protect human rights on the ground. Although they must not abandon roles of speaking truth to power, condemning rank abuses of human dignity, and authorizing experts to monitor human rights, intergovernmental organizations' (IGOs) finite resources would be best spent on technical assistance. The United States should also push other IGOs to prioritize technical assistance rather than relying solely on explicitly rights-oriented institutions. For instance, the UN Office and Drugs and Crime's resources should provide more technical assistance to help countries enforce the Palermo Protocol on Trafficking in Persons, rather than only help them draft suitable laws.

In the longer term, the United States and its international partners should consider the following steps:

  • Further renovate the Human Rights Council and global architecture

In the long run, the global human rights architecture needs to be reformed. Some argue that advances from the UN Commission on Human Rights to the UN Human Rights Council (UNHRC) should not be risked by reopening dialogue on structures. Two reforms, which should not be objectionable to the developing world, are critical. First, UNHRC membership should become universal, so as to not privilege illiberal governments that win elections and to permit governments to spend more time on tangible human rights programs than on elections. Second, the UNHRC should move to New York, where all member states already field delegations, to better inform the work of the UN Security Council, UN Development Program, UN Women, and UN Children's Fund, and shield the Geneva-based Office of the High Commissioner for Human Rights from micromanagement by a proximate political body. The United States could also call for further changes in the global architecture by boosting the direct role of regional organizations to shape the work of the global ones without the latter dictating or limiting the former.

  • Rethink economic and social rights

In the long run, the United States can advance the efficacy of the human rights regime by encouraging the global North and South to rethink economic, social, and cultural rights (ESCR). The United States has been even less inclined than more social democratic states in the North to embrace the justifiability of ESCR. However, recent U.S. policy priorities—such as combating human trafficking and HIV/AIDS through the President's Emergency Plan for AIDS Relief (PEPFAR) initiative—demonstrate the inseparability of weak rule of law, discrimination, poverty-induced desperation, and poor public health. Aspects of human dignity cannot be compartmentalized. The United States should work with the global North to mobilize more support for political and civil liberties in the South—notably among rising liberal powers by demonstrating more openness to ESCR. So too, the United States should engage the global South to accept limits on ESCR—focusing on equal opportunity and access to food, education, health care, housing, and decent work conditions, rather than equality of outcomes or unrealistic mandates. Finally, the United States should encourage the global South, and particularly rising liberal global powers, to delink their calls for ESCR from efforts to sidetrack multilateral focus on political and civil liberties, which are enablers of ESCR.

  • Make democracy a touchstone of multilateral human rights policy

Human rights and democracy are not one and the same. Human rights can be incrementally improved in contexts lacking elements of democratic governance. Yet, in the long run, the global human rights regime should be premised on the idea that democratic governance is the best foundation for durable human rights protection. Multilateral institutions should premise their declaratory, diplomatic, and aid policies on democracy as the foundation, as the UN Development Program did between 1999 and 2005. Human rights benefits not only from good governance but also from democratic governance—advancing horizontally among states and vertically by planting deeper institutionalized roots within states and societies.

  • Use economic institutions to promote and protect human rights

Global economic institutions, given adequate political will, can also help promote and protect human rights. In particular, these institutions should promote the notions of equal access to justice and real-time freedom of information as catalysts for economic development. For instance, the World Bank, International Monetary Fund, and regional development banks should extend their anticorruption and good governance work to promote equal access to legal rights for all groups with the objective of expanding developing nations' productivity and prosperity. This effort should include streamlining and expanding projects related to rule of law, bolstering emerging judicial institutions, and promoting the functioning of civil society within countries.

The World Trade Organization (WTO) and its member states should encourage and enforce the elimination of some states' barriers to freedom of information so as to facilitate market growth. The Obama administration has already accused China of violating WTO rules through its widespread Internet censorship. Although a 2009 ruling by the WTO concerning intellectual property in China came close to addressing the problem, it largely sidestepped censorship. Should China or other states, such as Venezuela, that engage in censorship be found in violation of global trade rules, they may be forced to relax government controls on information to avoid measures including, but not limited to, costly punitive tariffs.

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