The protection of human rights under international law: will the U.N. human rights council and the emerging new norm "responsibility to protect" make a difference?

• Author: Nanda, Ved P.

I.

I will begin with a tribute to Professor Myres S. McDougal, who was the reason I went to Yale Law School. After receiving an LLM. at Northwestern with Professor Brunson McChesney as my advisor, my years at Yale (1962-65) were the most enjoyable of my student life. An inspiring teacher, a creative scholar, and a lifelong friend, Professor McDougal will always be my role model, and I am deeply honored to give this lecture, established at the University of Denver Sturm College of Law in my mentor's name.

Professor McDougal had attracted brilliant and creative minds to Yale--Harold Lasswell, Egon Schwelb, and Oscar Schachter, among others. Each one of these teachers left a lasting impact on me. Dr. Schwelb taught what I understand was the first ever course on international human rights law in any law school, when the only course materials available were UN documents related to draft international treaties on which Dr. Schwelb was working at the UN Headquarters. While taking that seminar I decided that when I started teaching I was going to introduce human rights as a separate course and my colleagues graciously permitted me to do so here at DU in the 1960s. My passion for human rights goes back to that period.

It is inherent in our being human that no matter who we are and where we live, we are entitled to the enjoyment of basic human rights and fundamental freedoms. And there is universal acceptance of the international law norm that human rights of all, irrespective of their sex, race, ethnicity, religion, language, social status, or political preferences and affiliations, must be protected and secured. However, notwithstanding the endorsement of human rights protections so eloquently expressed in the UN Charter, the Universal Declaration of Human Rights, the International Bill of Rights, and numerous treaties, the rhetoric does not match the stark reality. As gross and systematic violations of human rights, including genocide, war crimes, and crimes against humanity, are an everyday occurrence in so many parts of the world, our pious utterances and outcries of "never again" sound like empty slogans.

The killing fields of Cambodia, the genocides in Rwanda and Darfur, and severe violations of human rights in several other countries including Somalia, Haiti, Bosnia, Kosovo, Ivory Coast, Sierra Leone, Liberia, and the Congo, constantly remind us that the world community has yet to institute effective mechanisms to prevent and deter these shameful blots on humanity. Nor are there adequate means available to stop these tragedies once they unfold.

How do we explain this anomaly--numerous norms prescribing specific conduct, states consenting to such prescriptions, and still the ongoing, persistent, and systematic atrocities and violations blatantly in disregard of these norms all over the world? The problem no doubt lies with inadequate implementation, coupled with the lack of political will, for theoretical or perceptual differences today on how universal or culturally relative these rights are, or on their content, are rather muted. And the underlying cause remains the current state-centered international system, under which each state jealously guards its sovereignty and often invokes the doctrine of non-intervention in its internal affairs.

The twin challenges, therefore, for human rights scholars and practitioners, and for politicians and statesmen alike, are: (1) to ensure that the existing norms on human rights protection are further strengthened, that the existing institutional framework is made effective, and that there are adequate processes in place to provide suitable remedies to the victims and to bring the perpetrators to justice; and (2) to redouble our efforts to create a keen awareness of the enormity of the challenge and to establish a culture in which decision makers are motivated, and indeed compelled, to make sufficient resources available and to take the necessary action--multilateral, regional, bilateral, and even unilateral--to prevent atrocities and violations, to take effective action to stop and deter them, and to provide redress to the victims when such violations occur.

The preference is, of course, to prevent and deter violations of human rights and to respond effectively to stop them by non-forceful means, but, if it becomes necessary and only as a last resort, even by the use of force and in accordance with international law norms. Problems with unilateral use of force are well known. Abuses in the past remind us that they are likely in the future, as well, unless adequate safeguards exist. It is, however, regrettable that the world community failed to take effective action to address humanitarian disasters such as Rwanda and Darfur. Several countries have even shied away from calling them genocides because under the Genocide Convention states are obligated to prevent genocide and to punish the perpetrators.

These preliminary remarks set the stage for my discussion of a few recent developments the world community has undertaken to strengthen the existing international machinery for the protection of human rights. These are the establishment of the Human Rights Council to replace the U.N. Commission on Human Rights and the adoption of a new international law norm by the U.N., the Responsibility to Protect. I will, however, not comment on international humanitarian law, a very important subject indeed, especially in light of the abuses in Abu Ghraib and Guantanamo.

II.

The international human rights movement is of relatively recent origin. However, in a short time it has blossomed into a developed body of international human rights law, with the establishment of necessary institutions for its implementation and enforcement. As the movement is rooted in the world community's response to the excesses inflicted upon humanity by the Nazi and Fascist regimes during the Second World War, the founders of the United Nations ensured that the Charter would reflect the close relationship between international peace and security and international human rights. Thus, the first two goals embodied in the Preamble of the U.N. Charter are: "to save succeeding generations from the scourge of war" and "to reaffirm faith in fundamental human rights, the dignity and worth of the human person, [and] in the equal rights of men and women and of nations large and small...." Article 1 of the Charter lists among the purposes of the U.N. "[t]o achieve international co-operation in ... promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." (2)

Article 55 mandates that the United Nations promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." (3) This is followed by a pledge by all U.N. Member States "to take joint and separate action in co-operation with the Organization for the achievement of" the purpose stated above. (4)

Although there was no provision in the U.N. Charter on protection of human rights, in 1946, soon after it was formed, the United Nations created the U.N. Commission on Human Rights. (5) Also, the U.N. began work on drafting an instrument enumerating basic human rights, whose culmination was the Universal Declaration of Human Rights. (6) The Declaration, adopted by the General Assembly as a resolution in 1948, specifies civil and political, as well as economic, social, and cultural rights. The next step was to codify these rights in a treaty form because as a resolution of the General Assembly the Universal Declaration was not binding on states. The framers understood this, as Eleanor Roosevelt, the U.S. Representative on the U.N. Commission and its Chair, called the Declaration "a statement of principles ... setting up a common standard of achievement for all peoples and all nations." (7) She further stated that the Declaration was "not a treaty or international agreement ... impos[ing] legal obligations." (8) The process was protracted because of the ensuing Cold War and the resulting ideological conflict between the then-super powers the U.S. and the Soviet Union. Eventually, however, in 1966 negotiators agreed on two separate conventions, the International Covenant on Civil and Political Rights (9) and the International Covenant on Economic, Social and Cultural Rights, (10) both of which came into force in 1976. The Universal Declaration, together with the two covenants, is popularly known as the International Bill of Rights. (11)

The period since 1976 has witnessed great strides in the development of international human rights law as an impressive body of norms, institutions, and procedures has transformed the subject. Regional human rights machinery exists in Europe, the Americas, and Africa, and is in the formative stage in Southeast Asia, complementing the U.N. machinery created to promote and protect human rights and to provide effective remedies. Customary international law has also played a significant role in this process.

It would have been inconceivable sixty years ago to envisage the development and progress of international human rights law we see today. To illustrate, numerous international agreements have created a wide range of international human rights norms, treaty bodies have been established to monitor implementation by member states of their treaty obligations, and an ever-growing body of soft law--emerging international human rights guidelines, principles, and norms--has developed. All these developments are of great significance for every student of international human rights law.

In the U.N. system, the Office of the High Commissioner for Human Rights, a part of the United Nations Secretariat, acts as the principal focal point of human rights research, education, public information, and human rights advocacy activities. (12) It offers leadership in educating...