The existing legal framework of human rights is widely recognised as an offspring of the post-War innovation of modern international law. Hence, its supervision and enforcement varies from the safeguards provided by respective national laws. In fact, from day one of its journey forward with the adoption of the UN Charter to its 75th anniversary last year, the legal and philosophical paradigms of human rights suffered from its inherent deficiency of any effective enforcement mechanism.
This dilemma emanates from a complex set of structural and geo-political divides, and the centuries-old claims of sovereign jurisdictional prerogatives among the state members of the global community.
International norms and standards relating to human rights are derived from multilateral treaties and other instruments. To date, the international community remains dependent on the actions (and inactions) of the ratifying states for the enforcement of these rights and freedoms at national levels.
Since its inception, the UN has played a pioneering role in establishing a set of supervisory and monitoring mechanisms for implementation of human rights. Despite all the avant-garde initiatives and collective efforts over the past three-quarters of a century, effective enforcement of human rights and achievement of the promises uttered by the common consensus of nations still continue to be a faraway dream.
The UN Human Rights Council (UNHRC) is the principal specialised body responsible for the advancement and safeguarding of human rights functioning through various intervention modalities: the Universal Periodic Review, treaty-body reporting, complaint procedures, special rapporteurs, expert committee inquiries and so forth.
However, these procedures along with other global and regional enforcement frameworks for the protection of international human rights law collectively provide for a transnational regulatory mechanism. But it is yet to be demonstrated to be fit for the purpose.
The first obstacle is institutional: one that relates to the cooperative dialogue method as the basis of these systems. This means that the actual enforcement relies upon the almost unfettered discretion of the states concerned.
From a jurisdictional perspective, the authority of the UN's highest judicial organ – the International Court of Justice (ICJ) – is negligible. Only disputes between countries and not individuals can be heard, and states must agree to accept its jurisdiction.
The complaint mechanisms (diplomatically phrased as communication) remained largely unused, while individual complaints are constrained by acceptance of the provision by the states concerned. Moreover, the treaty-based or UNHRC individual complaint (known as '1503 Procedure') does not provide any direct remedy to the complainant.
Again, there is no global law enforcement agency or any other central compliance system to this end. The International Criminal Court – a recent innovation in international rule of law – is also constrained by similar drawbacks. It can only deal with cases of "genocide, crimes against humanity, war crimes and crime of aggression". It also lacks the power to hear cases on which a state is conducting a domestic investigation or prosecution.
In the absence of an effective enforcement framework, political commitments of the states remain the dominant actor in the enforcement of international human rights laws at the national level.
However, suffering from the increasingly complex geopolitical power-play between the nations, the UN is unable to take any firm stand. The UN is often outsmarted by polarised power-play and contradictions on the part of dominant states, particularly those in the Security Council blessed with the privilege of 'veto'.
The prolonged situations in Palestine, Kashmir, Afghanistan, Myanmar, the Balkans, or the countries in the Central-East and the Horn of Africa illustrate this 'political' feebleness of the UN's human rights system.
Notwithstanding its intrinsic shortcomings, the UN framework still remains the only global platform for pursuing the essential recognition, promotion and monitoring of fundamental human rights. More importantly, the collective existence of the UN in network with other global and regional systems (and some affiliated national agencies) create "political pressure" on authoritarian governments. It also mobilises public opinion and civil society advocacy.
The "Human Rights up Front" initiative (HRuF), introduced in 2013 by then Secretary-General Ban Ki-Moon, aims at improved and efficient UN mechanisms to prevent or appropriately respond to gross violations of human rights. The effort reaffirms a common obligation to work collectively in intercepting human rights abuses by bringing about meaningful institutional, cultural, operational and political reforms.
At this moment, we are all residing in a period of extreme global instability triggered by the devastating Covid-19 pandemic. The cumulative impact of the crisis has a direct causal link to the worsening human rights conditions in every corner of the planet. This is widely acknowledged that the ongoing pandemic is a powerful warning of the necessity for greater collaboration across territories and industries.
With imminent threats, the global problems have been intensified: from worsening environmental hazards, repeated outbreaks of diseases, inequalities and injustice, and aggravated violence. All these have resulted in countless human miseries. Consequently, public confidence in conventional international institutional mechanisms for protection of human rights is declining faster than ever.
Again, in recent periods, cooperation between nations has also become weaker in the context of international relations. As far as international politics is concerned, besides the complex phenomenon of 'power-politics', the future of mankind looks dimmer.
It is thus an urgent call of our time to strengthen human rights protection mechanisms at the national levels based on the international normative standards. We should acknowledge that there is no alternative. Likewise, we should invent, share and mobilise essential knowledge, efforts and consensus to materialise this process of national awakening to complement the prevailing international enforcement frameworks.
Dr MD Parvez Sattar, currently a faculty at the Department of Law, Independent University, Bangladesh, is an ex-UN officer serving as Manager of UNDP's Access to Justice & Human Rights Program.
Arafat Reza is an LLB graduate from BPP University, UK.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.