is today's international human rights system a global

Is Today's International Human Rights System a Global Governance Regime?Author(s): James W. NickelReviewed work(s):Source: The Journal of Ethics, Vol. 6, No. 4 (2002), pp. 353-371Published by: SpringerStable URL: http://www.jstor.org/stable/25115738 .

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JAMES W NICKEL

IS TODAY'S INTERNATIONAL HUMAN RIGHTS SYSTEM A GLOBAL GOVERNANCE REGIME?

(Received 15 June 2002; accepted in revised form 30 July 2002)

ABSTRACT. Enthusiasts of the idea of globalization often view international human

rights institutions as part of an emerging global governance regime. They claim that these

institutions illustrate how state sovereignty is being diminished. This paper looks at the

international system for the promotion and protection of human rights as part of normative

globalization. It argues that this system does not constitute a system of global governance,

although in some areas it comes close.

KEY WORDS: global governance, human rights, human rights treaties, human rights

enforcement, international law

Enthusiasts of the idea of globalization1 often view international human

rights institutions as part of an emerging global governance regime.

They claim that these institutions illustrate how state sovereignty is

being diminished and how "a new more complex form of multilayered

global governance" is emerging.2 Parts of this global governance regime include the European Union (EU), the United Nations (UN) system, free

trade organizations such as the World Trade Organization (WTO), the

North American Free Trade Agreement (NAFTA), Mercosul, international

environmental accords,3 and the international human rights system. In this

paper I look at human rights as part of globalization. I examine institutions

for the international promotion and protection of human rights in order to

determine whether they are already sufficiently powerful, autonomous, and

integrated to constitute a significant part of an emerging system of global

governance. My answer, ultimately, is "almost, but not quite." I am not concerned in this essay with globalization in the economic,

technological, communications, or cultural areas.4 Nor do I consider

whether human rights can somehow constrain the worst aspects of

1 For a definition of "globalization" see David Held, Anthony G. McGrew, David Gold

blatt and Jonathan Perraton, Global Transformations: Politics, Economics and Culture

(Stanford: Stanford University Press, 1999), pp. 14-20. 2 See David Held et al., Global Transformations, p. 85. 3

See David Held et al., Global Transformations, pp. 76-413, especially, p. 386. 4

The introduction to the 1999 U.S. State Department Human Rights report referred

to the globalization of human rights as an "overlooked 'third globalization' - the rise of

t4 The Journal of Ethics 6: 353-371,2002. ^T ? 2002 Kluwer Academic Publishers. Printed in the Netherlands.



354 JAMES W. NICKEL

economic globalization. My present concern is analytical and descriptive, not normative.

The period since 1948 - when the Universal Declaration of Human

Rights was proclaimed by the UN - has seen steady growth of interna

tional human rights treaties and organizations. Not only has the number

of agencies increased, but so have their levels of activity. Further, the

end of the cold war lowered some significant barriers to the develop ment of an effective international human rights system. International

efforts to promote and protect human rights have expanded greatly in the

last decade, particularly within the UN. In what follows I describe and

analyze the international human rights regime that now exists, focusing on the European human rights system, UN human rights treaties, the UN

Commission on Human Rights, the UN Security Council, the international

criminal tribunals for Rwanda and Yugoslavia, international human rights

nongovernmental organizations (NGOs), and independent efforts by states

to promote human rights.

I. The Idea of a Global Human Rights Regime

To determine whether current international human rights institutions

constitute one part of a global governance regime we need to have a fairly clear idea of what that would mean. In this section I suggest six criteria.

If many of the main international human rights institutions satisfy these

criteria, and if together they constitute a coherent regime, then we would

have good reasons to say that the international human rights system really has become a global governance regime in the area of human rights.

A. Is It Global?

The first criterion concerns whether the institution is sufficiently global in

scope. Does the agency attempt to protect human rights in almost all of

the countries of the world? Are some states immune or invulnerable to its

efforts? And is the agency global in the sense that it involves or represents almost all of the countries of the world?

B. Is It a Governance Agency?

Is it the sort of institution that governs? Does it have ways of creating,

interpreting, applying, and enforcing norms? Although we cannot expect

transnational human rights networks ..." 1999 Country Reports on Human Rights Prac

tices, http://www.state.gov/www/global/human_rights/1999_hrp_report/99rirp_toc.html.



HUMAN RIGHTS AS GLOBAL GOVERNANCE 355

that global governance institutions will look just like the ones that exist at the state level, they should serve the same functions. To be a regime it

must be a coherent system. A governance regime will need to have some

of the agencies that governments usually have. It will need to have ways of

creating, interpreting, impartially applying, and enforcing norms, as well as methods of interacting with its constituents. To be a governance regime, it must govern, not merely preach. It must have some ability to impose norms and policies through harms that it can impose for noncompliance.

C. Is It Incipiently Federal?

Is this institution plausibly seen as part of a new "federal" level of power

existing at the global level? Does this governance regime regulate a

significant range of activities at subordinate levels?

D. Power?

Does this institution have substantial power over most states? Does it have

institutions, methods, and means to bring about compliance, even when

the state does not want to comply? To assess power we will need to ask the

following questions:

Quantity? How much power does the institution have?

Width? Is it narrow or broad? Does it deal with some human rights, all human rights, or human rights plus other matters as well?

Gaps? Can some states escape this power? Do some have a kind of

immunity to it?

Penetration? Can the agency influence the central decision-making organs or officials of a state or does it merely harass minor officials?

Modality? Is the power mainly influence, where that relies on persua sion and willingness to comply? Does it include governing power,

where noncompliance is not normally an option and obedience gener

ally occurs? And does it include real enforcement power? That is, are

sanctions or military measures available to support the decisions of

this agency?

E. Is It Authorized or Legitimate Power?

The ways in which power at the international level can be authorized or

legitimated are obviously complex. But for our purposes it will be suffi

cient to ask whether the agency's power is unauthorized and informal, authorized by custom, authorized by actions of superior agencies such as

the General Assembly or the Security Council, or authorized by treaty.



356 JAMES W. NICKEL

F Is It Independent or Autonomous Power?

Is the agency's power independent of the states involved in or connected

with the agency? Independent power is often exercised by jurists or experts rather than by state representatives. Dependent power might be seen as

a vector sum of the powers of the participating or member states. Is

independence preserved when enforcement is required? As an analogy consider a business partnership in which the members make and imple

ment all major decisions unanimously and jointly. Here the firm's actions are nothing but the joint actions of the partners. In contrast, consider a

partnership in which an executive has been hired to run the business, and the partners are not active in day-to-day decision-making and imple

mentation but rather meet periodically to review the firm's progress and

to make major policy decisions. Here the firm's actions go beyond the

joint actions of the partners; it has a substantially autonomous capacity for

decision-making and implementation.5

II. International Human Rights institutions

and their Powers

In this section I survey the international human rights system and apply the six criteria proposed above to some of its key parts. In the concluding section I apply the criteria to the system as a whole.

A. A Brief History

The effort to build a system to promote and protect human rights began

during World War II. Early conceptions of the UN called for its charter

to include a binding treaty committing members to an international bill

of rights. But plans for such a treaty faltered, and a weaker commitment was incorporated in the 1945 UN Charter. Countries ratifying the Charter

5 In the following passage Henry Schermers suggests that some international organiza tions have independence or autonomy. "Most international organizations are no more than

fora where States cooperate ... [But] factually many international organizations have some

governmental power of their own .... Though [such organizations'] autonomous tasks are

still limited in number, they have led to a general recognition that international organi zations have their own legal personality under international law. Together with the States

they form the subjects which create the international legal order" [H.G. Schermers, "The

International Organizations," in Mohammed Bedjaoui (ed.), International Law: Achieve

ments and Prospects (Oxford: Oxford University Press, 1991), p. 67, quoted in Henry J.

Steiner and Philip Alston (eds.), International Human Rights in Context (Oxford: Oxford

University Press, 2000), p. 561].




agreed to "take joint and separate action in cooperation with the Organi zation" ... to promote "universal respect for, and observance of, human

rights ... ." This made promoting human rights a purpose of the UN.

Plans for an international bill of rights were not abandoned, however, and

the Universal Declaration of Human Rights emerged in 1948. This docu

ment was inspirational and hortatory rather than legally binding.6 It did,

however, succeed in establishing the content of "human rights." The list

that it provided is still in use with only minor changes. That list includes

security rights that protect people against murder and torture; due process

rights that protect people against arbitrary and excessively harsh punish

ments, and require fair and public trials for those accused of crimes; liberty

rights that protect people's freedoms in areas such as belief, expression,

association, and movement; political rights that protect people's liberty to participate in politics by assembling, protesting, voting, and serving in public office; equality rights that guarantee equal citizenship, equality

before the law, and freedom from discrimination; and welfare rights that

require that people be provided with education and protected against

starvation, poverty, and social marginalization. The cold war broke out shortly after 1948, and prospects for interna

tional human rights treaties seemed dim. The countries of Western Europe,

however, went ahead with plans to create an international system for the

protection of human rights. The European Convention on Human Rights was signed in 1950 within the Council of Europe, and went into force in

1953. It covers standard civil and political rights.

B. The European System

The European Convention has developed into the most effective current

system for the international promotion and protection of human rights. It now covers 41 countries and 800 million people.7 Its signatories were

originally the countries of Western Europe, but in the 1990s it expanded to

include countries from Lithuania to Russia to Malta. This system provides

adjudication of individual complaints about human rights violations.

A European Court of Human Rights operates in Strasbourg, France.

The members of the Court are appointed on a national basis (there is one

judge for each signatory state), but are appointed as independent experts or

6 On the Universal Declaration, see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania

Press, 1999). 7

Richard Bilder, "Overview of International Human Rights Law," in Hurst Hannum

(ed.), Guide to International Human Rights Practice (Philadelphia: University of

Pennsylvania Press, 1992), p. 5.



358 JAMES W. NICKEL

jurists. They have considerable autonomy, and have developed a large body of jurisprudence applying and interpreting the European Convention?

The system works as follows. After the exhaustion of domestic

remedies, individuals in states adhering to this convention may complain of violations of the Convention to the Human Rights Court. States may also

complain to the Court about rights violations in member states, although this rarely occurs. If the Court deems the complaint plausible, it investi

gates it and makes a judgment. If questions of legal interpretation arise,

they can be addressed by the Court. Prior to issuing a judgment, efforts are

made at settling the case. But if conciliation fails, a judgment can be issued

ordering the government to remedy the case in a certain way. This has been

done in hundreds of cases, and governments almost always comply. They have agreed to be bound the Convention and its procedures, and they are

under pressure from their citizens and from other European governments to live up to their commitments.

Under the European Convention, one's own country remains the

primary addressee of one's human rights, and one's national political and

legal system remains the primary forum for dealing with alleged violations

of one's rights. But one's national system is guided by the norms of the

European Convention, and one has available in Strasbourg an additional

set of remedies for alleged violations of one's rights. As we will see,

this pattern is found throughout the international human rights system. One's state has primary responsibility for respecting, interpreting, and

protecting one's human rights. International human rights norms, and

agencies, attempt to provide guidance and encouragement to states in

meeting the many challenges this responsibility entails. When one's state

fails to do this, either in one's individual case or more generally, interna

tional human rights agencies are sometimes available to pressure or force

one's government to change course.9

The European Convention provides a paradigm of what it means to

implement human rights internationally. Its agencies are active, effective, and enjoy both the confidence of the member states and considerable

autonomy. But the European human rights system is a regional organi zation, not a global one (see Table 1). Its reach only extends to member

states; it does not deal with human rights cases or problems in the rest

8 For a sample of this jurisprudence, organized by topics, see Sarah Joseph, Jenny Schultz and Melissa Castan (eds.), The International Covenant on Civil and Political

Rights: Cases, Materials, and Commentary (New York: Oxford University Press, 2000). 9

See James W Nickel, "How Human Rights Generate Duties to Protect and Provide,"

Human Rights Quarterly 14 (1993), pp. 77-86. Reprinted in abridged form in Steiner and Alston (eds.), International Human Rights in Context, pp. 185-186.




of the world. And, with the exception of the Inter-American human rights

system,10 similar regional systems do not exist in other parts of the world.

The African system11 is very weak, and regional systems do not exist in

Asia and the Middle East. Because of its regional nature the European

system cannot serve as an illustration of actual globalization (see Table

1). It shows that international institutions of this kind are possible under

certain circumstances, but whether equally strong institutions are possible worldwide remains an open question.

John Locke suggested three main reasons why people need government, and these considerations also apply to human rights regimes at the inter

national level.12 One is that without law and government people lack a

known and settled law. They may know roughly what they should do, but

clear lines and known exceptions and excuses are missing. Another is that

without law and government people lack impartial judges. If they have to

try to resolve injustices themselves they may be biased in their own favor, lack knowledge of the law, or not know how to apply the law to the facts of

the situation. The third reason is that without law and government people lack means of executing just decisions. Confronting injustice on one's own

will often be dangerous, with the result that injustices go unaddressed.

The European system addresses the first two of these problems very well. It provides well-defined human rights norms that are known and

settled in the countries participating in the system. Case law resulting from

the adjudication of cases has developed. Secondly, the European system

provides impartial judges to investigate and resolve cases when individuals

believe that they suffered violation of their human rights at the national

level.

The European system has very limited enforcement capabilities. There

is a Committee of Ministers charged with overseeing the execution of the

Court's judgments, but there is nothing to force compliance other than

the threat of expulsion from the system and the pressure applied by other

European governments. Governments comply because they are committed to human rights and the rule of law, to the European human rights system,

10 On the American system, see Dinah L. Shelton, "The Inter-American Human

Rights System," in Hurst Hannum (ed.), Guide to International Human Rights Practice

(Philadelphia: University of Philadelphia Press, 1992), pp. 119-132. 11 On the African system, see Cees Flinterman and Evelyn Ankumah, "The African

Charter on Human and Peoples' Rights," in Hurst Hannum (ed.), Guide to International

Human Rights Practice, pp. 159-169. 12

John Locke, Second Treatise of Civil Government (Indianapolis: Hackett Publishing

Company, 1980), Chapter IX.



TABLE 1 ?

o

Powers of international human rights agencies.

Human rights agency European human rights UN Human UN Human UN Security UN criminal Big inter- Independent

system including rights treaty Rights Council tribunals for national efforts by

European Court of system Commission Rwanda and human rights states to Human Rights with its Sub- Yugoslavia NGOs promote

Commission human rights

Global in reach? No Yes, since every Yes Yes No Yes Yes country has signed at least one human h

rights treaty ?!

Global as a gov- No Yes Yes Yes Yes No No

ernance agency? '

Are some states No (for the parti- No, although No 5 states with Yes, all except No Important O immune? cipating states) many have not veto powers Rwanda and allies or fi

ratified all of (China, France, Yugoslavia trading

the treaties Russia, UK, US) partners

Incipiently federal? Yes Yes Yes Yes Yes Unclear No

How much power? Medium Low Low without High High within Low Depends on

use of Security narrow scope the power of

Council the state

Wide or narrow Restricted to civil Wide, if all Restricted to Wide: deals Narrow: limited Often wide, Wide power? and political rights, human rights gross violations with all threats to individual but depends

although the treaties are of human rights to peace responsibility for on NGO's

European Social considered. genocide and charter

Charter deals with crimes against

welfare rights humanity



TABLE 1

Continued. Human rights agency European human rights UN Human UN Human UN Security UN criminal Big inter- Independent

system including rights treaty Rights Council tribunals for national efforts by

European Court of system

Commission

Rwanda and human rights states to g Human Rights with its Sub- Yugoslavia NGOs promote ?

Commission human rights 2

- ?

Enforcement power No No No Yes No No Yes g*

of its own? c?

Authorized power? Yes; Yes; Based on Yes; Yes; No, with Yes (as long oo

authorized by authorized by custom and authorized by authorized by some as they are P

the treaty the treaty General UN Charter the Security qualifications not military CO

Assembly Council or in violation r

resolutions of trade ?

agreements) f?

Independent power? Yes Yes Yes, but it is Yes. Can defy Yes Yes N/A _;

a political a majority of 25 body with states. But a to state rep- political body

resentatives with state

representatives

U) Os



362 JAMES W. NICKEL

and to membership in good standing in the Council of Europe.13 Whether

compliance will continue to be near-universal now that a far more diverse

and troubled group of countries has joined the system is an interesting

question. The European system is incipiently federal, or perhaps even actually

federal. The European Community, of which it is a part, clearly forms a

level of genuine governance at the transnational level. The powers of the

Court are authorized by treaty (the European Convention on Human Rights and its subsequent protocols). And the Court operates with considerable

independence from the member states.

C. The UN Human Rights System

UN human rights agencies have the global character we seek. UN agencies are often divided into "Charter-based" agencies, such as the Human Rights Commission and the Security Council, and "treaty-based" agencies that

help institutionalize UN human rights treaties such as the International

Covenant on Civil and Political Rights and the International Covenant on

Economic, Social, and Cultural Rights.

1. The UN Human Rights Treaties

The cold war did not kill the effort to create human rights treaties within

the UN, but it did slow it down. Two treaties giving legal status to the rights of the Universal Declaration were submitted to the General Assembly in

1953, but were not approved by that body until 1966, and did not receive

the 35 state ratifications required for coming into force among the signa tories until 1976. These treaties are the International Covenant on Civil

and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.14 They represent, roughly, the first and second halves

of the Universal Declaration. Other treaties implemented in similar ways include the International Convention on the Elimination of All Forms of

Racial Discrimination, The Convention on the Elimination of All Forms

of Discrimination Against Women, The Convention on the Rights of the

Child, and The Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment.

13 For an account of why the European human rights system has succeeded, see Laurence

R. Heifer and Anne-Marie Slaughter, "Toward a Theory of Effective Supranational

Adjudication," Yale Law Journal 107 (1997), p. 290. 14

http://www.unhchr.cri/html/menu3/b/a_ccpr.htm, and http://www.unhchr.ch/html/

menu3/b/a_cescr.htm.




The International Covenant on Civil and Political Rights, which has

been ratified by nearly 150 countries, can serve as an example of the

system for implementing these treaties. Broadly, the system for imple

menting the Covenant on Civil and Political Rights is a weaker version

of the system developed under the European Convention. The Covenant

created an agency, the Human Rights Committee (hereinafter the CCPR

Committee), to give life to its norms. The CCPR Committee's main job is to receive, study, and comment upon reports that signatory states are

required by the treaty to prepare and present.15 These reports address

compliance with the human rights norms of the treaty by the signatory state.

The 18 members of the CCPR Committee serve in their "personal

capacity" as "experts" rather than as representatives of the states of which

they are citizens. Unlike the European Convention, the Covenant on Civil

and Political Rights did not create a Human Rights Court to resolve

disputes about interpretations of the human rights listed in the docu

ment. Under an optional protocol requiring separate ratification, the CCPR

Committee is authorized to receive, investigate, and mediate complaints from individuals alleging that their rights under the Convention have been

violated by signatory states.

Signatory states subject themselves to the judgment of the CCPR

Committee in two ways. First, states are required to submit to the

Committee periodic reports on their progress in respecting and protecting civil and political rights. The Committee studies these reports and

discusses them in public proceedings attended by representatives of the

state being discussed and by interested NGOs. Eventually the CCPR

Committee publishes "Concluding Observations" that comment both

favorably and unfavorably on human rights matters in the reporting coun

tries. Through this process, states enter into a dialogue with the Committee

and have their human rights shortcomings exposed to international public

opinion. The reporting procedure is well suited to dealing with systemic human

rights problems. It encourages states to identify major ongoing human

rights problems and to plan methods of addressing them over time. It need

not be confrontational, and allows issues to be revisited in subsequent

reports and discussions. But this system has serious weaknesses. Some

states fail to report; reports are often superficial; and the Committee's

15 Ineke Boerefijn, The Reporting Procedure under the Covenant on Civil and Polit

ical Rights: Practice and Procedures of the Human Rights Committee (Oxford: Hart

Publishing, 1999).



364 JAMES W. NICKEL

judgments frequently receive little attention, particularly from top political leaders.16

The second way that (some) states subject themselves to the

Committee's judgment depends on an optional protocol to the Covenant

that allows complaints by individuals. If a state has ratified this protocol, individuals from that state may complain to the CCPR Committee of

human rights violations they believe that they have suffered. As of 2000, 95 of the 144 states adhering to the Covenant had ratified this optional

protocol. If an individual complaint is deemed admissible, the CCPR

Committee investigates it and tries to reach a conclusion about whether

a violation actually occurred. Technically, the CCPR Committee only

expresses its "views" as to whether there has been a human rights violation; it does not have the power to issue legally binding judgments, as do the

European and Inter-American human rights courts.17

The CCPR Committee is part of a global organization, the UN, and

it is nearly global in its reach since the Covenant on Civil and Political

Rights has been ratified by most countries. The system for implementing the Covenant is a (weak) sort of governance system. It has norms, and the

Commission interprets them and promotes compliance with them. Further, it is incipiently federal since it operates with treaty authorization at the

trans-national level.

The power of the CCPR Committee is modest. It does not have the

power to order states to remedy a complaint or change their practices; it must rely on persuasion and mediation to achieve justice for those

whose complaints it deems valid. It can usually succeed in requiring repre sentatives of signatory states to endure its inquisitions and criticisms, but

it has little power to make them do anything about its criticisms and

recommendations. Its main tools are persuasion, mediation, and exposure of violators to world opinion. This may make us doubt that it is really a governance system. The Committee's power is wide enough, since it

covers the standard civil and political rights, but the Committee's pene

trating ability is severely limited since it is easy for states to send minor

officials from the diplomatic corps to present and discuss the reports they are required to submit, or to discuss human rights problems the CCPR

Committee has identified. And the CCPR has no real enforcement power of

16 See Steiner and Alston (eds.), International Human Rights in Context, pp. 774-775.

For recommendations for reforms in the UN treaty system, see Anne Bayefsky, The UN

Human Rights Treaty System: Universality at the Crossroads (Ardsley: Transnational,

2001). 17

Heifer and Slaughter, "Toward a Theory of Effective Supranational Adjudication,"

pp. 337, 351.




its own. Imposing sanctions or using force would have to be done through the Security Council or by member states. But neither the Security Council

nor member states have any standing commitment to play this enforcement

role for the CCPR Committee.

As mentioned earlier, the system used by the International Covenant

on Civil and Political Rights to institutionalize its norms is used, with

variations, by most of the other UN human rights treaties. Our conclusions

about the CCPR Committee would apply to their mechanisms as well.

2. The UN Human Rights Commission and its Sub-Commission1*

The Commission is a standing UN body that deals with gross violations

of human rights in all countries. Its 53 members are state representatives rather than independent experts or jurists, and hence the Commission is

more of a "political" body than the CCPR Committee. The Commis

sion was established in 1946, and authored the Universal Declaration

and the International Covenants. It also played a large role in the UN

campaign against apartheid in Southern Africa. The Commission has a

Sub-Commission on the Promotion and Protection of Human Rights,

consisting of experts and jurists rather than state representatives, that

assists it in its work.

Under its 1503 procedure, the Commission receives, and treats

confidentially, complaints pertaining to situations which "reveal a

consistent pattern of gross ... violations of human rights." Many dozens

of states have been investigated and discussed under this procedure. NGOs

are frequently in contact with the Commission concerning situations being

investigated. Under its 1235 procedure the Commission holds an annual public

session in which governments and NGOs are permitted to identify and

discuss situations thought to be worthy of the Commission's attention. If

the Commission decides to consider a situation, it can ask the government to respond to the allegations, appoint investigators, or refer the matter to the

Security Council. The Commission also has "thematic" working groups and individual rapporteurs that deal with particular kinds of human rights

problems in countries around the world.

The Commission is global both in the scope of its concerns and as a

wing of a organization, the UN, that represents almost all of the countries

of the world. The Commission was created by the UN Charter, although its role and prerogatives have grown over the years. No states are immune

18 See Nigel Rodley, "United Nations Non-Treaty Procedures for Dealing with Human

Rights Violations," in Hurst Hannum (ed.) Guide to International Human Rights Practice,

pp. 60-85. See also http://www.unhchr.en/html/menu2/2/chr.htm.



366 JAMES W. NICKEL

to its inquiries. Since its members are state representatives it may be less

independent than treaty-authorized committees of experts, but members

the Sub-Commission do serve in their personal capacities. Like the CCPR

Committee, the Commission's main power is to expose human rights viola

tions to the pressure of world public opinion and to encourage member

states to use their power to bring about improvement in these situations.

The Commission can also bring large scale violations of human rights before the Security Council.

It is fair to say, I think, that the powers of the Human Rights Commis

sion, like those of the CCPR Committee, are modest. It has norms that

it interprets and promotes, but its powers to require compliance are so

modest that we may be doubtful that it really is a governance regime. Were

the Security Council to back up regularly the Commission's conclusions

such doubts would be removed. But, as we shall see, the Security Council

has a limited mandate; it only deals with human rights situations which

constitute threats to international peace and security.

3. The UN High-Commissioner for Human Rights Since 1993 the UN human rights system has had a High-Commissioner, an official authorized to oversee all of the UN's human rights activities.

This person receives complaints from individuals and NGOs, allocates

tasks among UN agencies (agenda setting), assists in the development of

new norms, supports the work of UN human rights agencies, responds to serious violations of human rights, provides education, information,

advisory services and technical assistance, and generally promotes human

rights within the UN and elsewhere.19

4. The UN Security Council20

The Security Council was created by the UN Charter. Article 24 of the

Charter gives the Security Council "primary responsibility for the mainte nance of international peace and security." It may take action by "air, sea, or land forces" (Article 42). Members of the UN agree to "accept and

carry out the decisions of the Security Council" (Article 25) and to make

available to the Security Council "armed forces, assistance, and facilities"

(Article 43). In addition to authorizing military interventions, the Security Council may impose diplomatic and economic sanctions.

The Security Council has fifteen members. Ten of these are elected by the General Assembly for two-year terms. Five members are permanent:

19 See http://www.urihchr.ch/html/hchr.htm.

20 See Sydney Dawson Bailey, The UN Security Council and Human Rights (New York: St. Martin's Press, 1994). See also http://www.un.org/Overview/Organs/sc.html.




China, France, Russia, the UK, and the USA. Substantive decisions require nine votes, including votes by all five of the permanent members. Thus

each of these five countries has a veto.

Historically the Security Council was reluctant to involve itself in

human rights disputes, although it was heavily involved in UN efforts

during the 60s and 70s to overturn the apartheid system in South Africa.

Since the end of the cold war the Security Council has dealt with many more issues involving human rights and war crimes. It has authorized the

use of military force in Iraq, Somalia, the former Yugoslavia, Rwanda, and Haiti, and has sponsored a number of peacekeeping missions. It has

established international criminal tribunals for Rwanda and Yugoslavia. And it has imposed sanctions on a number of countries.

Like the Commission on Human Rights, the Security Council is global in the scope of its concerns and in its role as a representative of the coun

tries of the world. These countries agreed, under the UN Charter, to accept the decisions of the Security Council, and hence the power of the Security

Council is both clearly authorized and incipiently federal. There is no

doubt that the Security Council is an international governance regime. The Security Council has enormous power, although that power is

limited to matters of international security. In the last decade it has

been willing to use that power to prevent massive violations of human

rights. Ernst Haas' observation that "The great lines of foreign policy are only marginally and gradually influenced by what goes on in inter

national organizations" now seems less true.21 Its enforcement efforts

require actions by member states to impose sanctions or provide troops and facilities to the UN.

It is more difficult, however, to describe the autonomy of the Security Council. In one sense it has great autonomy because a vote by nine of

its members can go against the wishes of the majority of the world's

states. But it has little autonomy as against its five permanent members

since each of them has the right to veto measures to which it is opposed. And its members are clearly representatives of their governments, not

quasi-independent experts or jurists. If the Security Council and its enforcement powers stood - in a general

way - behind the human rights agencies of the UN, their capacity to govern

human rights practices in member states would be greatly enhanced. But

the Security Council has no such standing relationship to the human rights

agencies. It is now active in the human rights field, but not in a way that

21 Ernst Haas, When Knowledge Is Power (Berkeley: University of California Press,

1990), p. 57, quoted in Steiner and Alston, International Human Rights in Context, p. 566.



368 JAMES W. NICKEL

provides general and standing support for the decisions of other UN human

rights agencies.

5. UN Criminal Tribunals for Rwanda (1994) and Yugoslavia (1993)22 These are criminal courts, modeled on the Nuremburg Tribunals, estab

lished by the Security Council to prosecute war crimes and genocide in

Rwanda and Yugoslavia. Their work is still underway, and how successful

they will ultimately be remains to be seen. Currently their scope is narrow

(violations in Rwanda and Yugoslavia), but the Rome Statute creating an

International Criminal Court of general jurisdiction entered into force on

July 1, 2002.

The tribunals for Rwanda and Yugoslavia were created and authorized

by the Security Council, and hence they are sub-agencies of the UN.

As such, they have ample power within a very narrow range. They are

incipiently federal in the way that federal courts are federal. The Security Council can, on behalf of the Tribunals, call upon states for enforce

ment. The tribunals are staffed by independent jurists, and hence have

considerable autonomy. Do these tribunals constitute a governance regime? Yes, in the way that

national-level courts are governance regimes. The US Supreme Court has

no troops of its own; it relies on other branches of the federal govern ment to enforce its decisions. Analogously, the Tribunals rely on the UN

Security Council to ensure compliance. The approval of the International Criminal Court is a big step forward

for the international human rights system because it will provide a way to hold criminally liable at the international level those who engage in

war crimes and genocide. But this Court will not be a general UN human

rights court. Most human rights issues will not fall within its jurisdiction. Hence the norm-interpreting function will still be underserved within the

UN system.

D. International Human Rights NGOys23

Many nongovernmental organizations are active at the international level

in the areas of human rights, war crimes, and humanitarian aid. Examples include Amnesty International, Human Rights Watch, the International

Commission of Jurists, Medicins sans Frontieres, Oxfam, and CARE.

Representatives of such NGOs are seen everywhere in the international

human rights system. They attend and often participate in the meetings of

22 See http://www.ictr.org/, and http://www.un.org/icty/index.html.

23 See http://www.derechos.0rg/human-rights/world.html#ngo. See also http://www.

etown.edu/vl/humrts.html.




UN human rights bodies. They provide information about human rights situations through the reports they publish and the testimony they give.

They shape the agendas, policies, and treaties of the UN through their

participation and lobbying. And they provide links between the interna

tional human rights system and politics at the domestic level. Increasingly

professional, their workers energize the international human rights regime. Human rights NGOs are often global in reach, although some are

advocacy groups that work mainly in the capitals and others are relief agen cies that work mainly in the field. No states are immune to their criticisms.

They are not governing agencies themselves, but they are part of the inter

national human rights governance system. Their existence and roles are not

authorized by anything other than their own charters, although they may have consultative status with UN agencies. They are not representatives of

the people generally; they are rather political organizations that represent the perspectives of some of the people. They stand in the same relation to

international agencies like the UN that political parties, PACs, and labor

unions stand to national legislative bodies. They are "civil society" at the

international level.

Collectively, and in some cases individually, these organizations have a

lot of power, or at least a lot of influence. The loss of Amnesty International

would probably be a bigger blow to the international human rights move

ment than the repeal of the International Covenant on Civil and Political

Rights. The power of NGOs mainly comes from their roles in providing

information, lobbying, working with and energizing governmental and

international human rights agencies, and exposing human rights viola

tions to world public opinion. Like UN agencies, they use, or try to use, the military and sanctioning powers of states when real enforcement is

required. They play a large role in putting human rights problems on the

agenda of various UN human rights agencies. Some enthusiasts of globalization give enormous weight to the emer

gence of global civil society, as represented by thousands of human rights NGOs. They see human rights and other NGOs as a central part of the

emerging multi-layered system of global governance. I agree that human

rights NGOs make the international human rights system stronger and

more active. But the large role they play in energizing the system and

trying to augment its influence points to the system's weaknesses as well

as its strengths. If the system had more power of its own, perhaps through

standing mechanisms to increase the costs of noncompliance with human

rights norms, it would not be necessary for NGOs to do so much to back

up the system.



370 JAMES W. NICKEL

E. Independent Efforts by States to Promote or Protect Human Rights24

States sometimes act, individually or jointly with other states, to promote or protect human rights in other countries. For example, Portugal attempted to defuse the crisis in East Timor. European countries often use diplomacy to promote respect for human rights in Africa and Asia. And Australia

led the military effort to restore peace and respect for human rights in

East Timor. Methods include diplomacy, publishing reports and state

ments, conditioning access to trade or aid on human rights improvements, economic sanctions, and military intervention.

Functionally speaking, these efforts help to add some real power to

the international human rights system. The countries of Western Europe,

Canada, Australia, and the US, have been the pillars of the human rights establishment. They have lent their considerable support and clout to

the system, keeping it going during hard times and helping it expand and flourish in better times. Although they have not always risen to the

challenge of human rights emergencies, they have sometimes done so at

considerable cost to themselves in money and lives. In doing this, they have often worked closely with the Security Council.

They do not, however, have a standing legal commitment to do this,

except their commitment to support the actions of the Security Council.

Although they make the global human rights system far stronger that

it could be without their regular support, the large role they play in

supporting the system illustrates the system's weaknesses as well as its

strengths.

Although states are not global agencies, the independent human rights efforts of some states are global in scope. How much power these efforts

have depends on the state(s) behind them, and on the means those states

are willing to use. These efforts are not incipiently federal. They are part of

traditional diplomacy in which states try to impose constraints and norms

on each other. The only authorization they have is that they fall within the

diplomatic, political, and economic prerogatives of states.

III. Conclusion

Can the international human rights system that exists today properly be

described as a global governance regime? Almost, but not quite. The

system is almost such a regime because it has well-established norms,

institutions for creating and modifying norms, institutions for identifying human rights violations around the world, agencies that can investigate

24 See, for example, http://www.state.gOv/g/drl/hr/.




these violations and call governments to account for them, and means of

promoting respect for human rights norms. In performing these tasks the

system receives regular and useful assistance from NGOs and sympathetic

governments. International human rights agencies are authorized or legit imated in appropriate ways, and some of them are incipiently federal at

the global level. The power of these agencies is sufficiently independent in

most cases.

But the international human rights system falls short of being a global

governance regime. This is mainly because the system is still not very

powerful. Efforts to hold states accountable mainly threaten exposure and embarrassment, not serious economic or military pressure. Except for cases dealt with by the Security Council, there is no standing body to put political muscle behind the decisions of the human rights agen cies. Because the powers of international human rights agencies are very

limited, their ability to produce respect for human rights from countries

that seriously challenge those rights is often in doubt. Countries such as

China and Indonesia do not seem to be much influenced by the decisions

of UN human rights agencies. Insofar as these countries do worry about

human rights, it is because powerful countries and international institutions

support human rights and attach negative consequences to flouting them.

Another shortcoming of this system is that the judicial, norm

interpreting function is poorly provided for. Precedents are not created, case law does not grow, and hard cases cannot be adjudicated.

Enthusiasts of globalization can claim with justification that the inter

national human rights system is moving in the direction of becoming a

global governance system. But it is not there yet.

ACKNOWLEDGEMENTS

This paper was presented at a human rights conference in fall 2001 at Port

land State University. I am indebted to Hurst Hannum of Tufts University for helpful suggestions and criticisms.

Department of Philosophy

University of Colorado

Boulder, CO 80309-0232

USA E-mail: james. nickel @ Colorado, edu



is today's international human rights system a global

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