The Effectiveness of the UN Human Rights System: Reform and the Judicialisation of Human Rights

304 Pages·2017·1.157 MB·English

by  Surya P. Subedi

‘Surya P. Subedi offers a scholar’s diagnosis of what is wrong with the
international human rights system and a practitioner’s suggestions to fix it.
Drawing on his experiences as an activist, an academic, and as a UN Special
Rapporteur, he shows the possibilities and the limitations of this vital body
of norms and how they might translate from words to deeds.’
Professor Simon Chesterman, National University of Singapore and
Secretary-General, Asian Society of International Law
‘An effective UN addresses and remedies human rights violations. At present
the organization does not deliver. In this accessible book Professor Subedi
provides a competent and comprehensive assessment of the UN human
rights system which culminates in a compelling plea for reform including
concrete and feasible suggestions for change.’
Karin Arts, Professor of International Law and Development, ISS,
The Hague, The Netherlands

The Effectiveness of the
UN Human Rights System
The UN human rights agenda has reached the mature age of 70 years and many
UN mechanisms created to implement this agenda are themselves in their
middle age, yet human rights violations are still a daily occurrence around the
globe. The scorecard of the UN human rights mechanisms appears impressive
in terms of the promotion, spreading of education and engaging States in a
dialogue to promote human rights, but when it comes to holding governments
to account for violations of human rights, the picture is much more dismal.
This book examines the effectiveness of UN mechanisms and suggests
measures to reform them in order to create a system that is robust and fit to
serve the twenty-first century. This book casts a critical eye over the rationale
and effectiveness of each of the major UN human rights mechanisms, including
the Human Rights Council, the human rights treaty bodies, the UN High
Commissioner for Human Rights, the UN Special Rapporteurs and other
Charter-based bodies. Surya P. Subedi argues that most of the UN human rights
mechanisms have remained toothless entities and proposes measures to reform
and strengthen them by depoliticising the workings of UN human rights
mechanisms and judicialising human rights at the international level.
Surya P. Subedi, OBE, QC (Hon), is Professor of International Law at the
University of Leeds, member of the Institut de Droit International, former UN
Special Rapporteur for human rights in Cambodia and barrister at Three Stone
Chambers, Lincoln’s Inn, London.
Human Rights and International Law
Series Editor: Professor Surya P. Subedi, OBE, QC (Hon)
This series will explore human rights law’s place within the international legal order,
offering much-needed interdisciplinary and global perspectives on human rights’
increasingly central role in the development and implementation of international law
and policy.
Human Rights and International Law is committed to providing critical and contextual
accounts of human rights’ relationship with international law theory and practice. To
achieve this, volumes in the series will take a thematic approach that focuses on major
debates in the field, looking at how human rights impacts on areas as diverse and divisive
as security, terrorism, climate change, refugee law, migration, bioethics, natural resources
and international trade.
Exploring the interaction, interrelationship and potential conflicts between human
rights and other branches of international law, books in the series will address both
historical development and contemporary contexts, before outlining the most urgent
questions facing scholars and policy makers today.
Available titles
Human Rights and Charity Law
International Perspectives
Kerry O’Halloran
Human Rights and Development in International Law
Tahmina Karimova
The Emerging Law of Forced Displacement in Africa
Development and Implementation of the Kampala Convention on Internal Displacement
Allehone M. Abebe
Business and Human Rights
History, Law and Policy – Bridging the Accountability Gap
Nadia Bernaz
Extracting Accountability from Non-State Actors in International Law
Assessing the Scope for Direct Regulation
Lee McConnell
Socio-Economic Human Rights in Essential Public Services Provision
Marlies Hesselman, Antenor Hallo de Wolf and Brigit Toebes
About the Series Editor
Professor Surya P. Subedi, OBE, QC (Hon), is Professor of International Law, University
of Leeds, member of the Institut de Droit International and former UN Special
Rapporteur for human rights in Cambodia.
The Effectiveness of the
UN Human Rights System
Reform and the Judicialisation
of Human Rights
Surya P. Subedi,
OBE, QC (Hon)
DPhil (Oxon.); Barrister (Middle Temple)
Professor of International Law, University of Leeds,
United Kingdom
Member, Institut de Droit International
Former UN Special Rapporteur for Human Rights in Cambodia
First published 2017
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2017 Surya P. Subedi
The right of Surya P. Subedi to be identified as author of this work
has been asserted by him in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Names: Subedi, Surya P., 1958–author.
Title: The effectiveness of the UN human rights system : reform and
the judicialisation of human rights / Surya P. Subedi.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2017. |
Series: Human rights and international law | Includes bibliographical
references and index.
Identifiers: LCCN 2016052913 | ISBN 9781138711532 (hardback)
Subjects: LCSH: Human rights. | United Nations—Evaluation. |
United Nations. Human Rights Council—Evaluation. | United
Nations. Office of the High Commissioner for Human Rights—
Evaluation. | International agencies—Evaluation.
Classification: LCC K3241 .S83 2017 | DDC 341.4/8—dc23
LC record available at https://lccn.loc.gov/2016052913
ISBN: 978-1-138-71153-2 (hbk)
ISBN: 978-1-315-20040-8 (ebk)
Typeset in Galliard
by Florence Production Ltd, Stoodleigh, Devon, UK
Contents
Preface xiv
Introduction 1
Questions that arise 3
Scope of this study 3
Reform of the UN system and judicialisation of human rights 4
Limitations of the International Criminal Court 6
Limitations of the powers of reason and persuasion 7
De-politicising the workings of the UN system of human
rights mechanisms 7
Organisation of this study 8
Inspiration for this study 8
1 The place of human rights in the contemporary and
globalised world 10
1.1 Introduction 10
1.2 Human rights as embracing modernity and redefining
democracy 10
1.3 Human rights as a means of preventing revolutions 12
1.4 Human rights as part of social engineering 13
1.5 Human rights as the mantra of the modern world 13
1.6 Human rights as a check on the excesses of capitalism 13
1.7 Human rights as underpinning democracy 14
1.8 Supremacy of human rights 15
1.9 Human rights representing a silent revolution led by
the UN 15
1.10 The UN human rights agenda as an agent of change 16
1.11 Promoting a rules-based international society through
human rights 18
1.12 The corpus of international human rights law 20
viii Contents
1.13 The challenge of implementation and enforcement 22
1.14 Human rights as the third pillar of the UN 25
1.15 UN human rights mechanisms and their effectiveness 26
1.16 The impact on the UN human rights agenda by the rise
of multi-polarism 28
1.17 Pitfalls of the middle path based on dialogue and
cooperation 30
1.18 The legal status of human rights and the need for their
judicialisation 31
1.19 Conclusions 33
2 The conceptual and international development of human
rights 35
2.1 Introduction 35
2.2 The concept of human rights in antiquity 35
2.3 Philosophical foundations of human rights 36
2.4 The nature and category of human rights 38
2.5 Evolution of the modern concept of human rights 39
2.5.1 The contribution of Magna Carta to the evolution
of human rights 39
2.5.2 The common law notions of fairness and justice
and the evolution of human rights 41
2.5.3 The Glorious Revolution and the English Bill of
Rights 42
2.5.4 The American Revolution 43
2.5.5 The French Declaration of the Rights of Man 44
2.5.6 Contribution of the inter-war period to the evolution
of human rights 46
2.6 Foundations for international human rights law 49
2.7 Work of the UN Commission on Human Rights 51
2.8 The Universal Declaration of Human Rights 52
2.8.1 The Universal Declaration as a standard-setting
instrument 53
2.8.2 Significance of the Universal Declaration of
Human Rights 54
2.9 Implementation of the Universal Declaration of Human
Rights 57
2.10 The first UN human rights treaty with a mechanism for
implementation 58
2.11 The International Bill of Rights 59
2.12 Other human rights treaties and declarations 60
Contents ix
2.13 Momentum towards the universality of human rights 61
2.14 Measures for implementation of rights 65
2.15 Conclusions 69
3 Effectiveness of the UN human rights treaty bodies 71
3.1 Introduction 71
3.2 The rationale for treaty bodies 72
3.3 The origins of treaty bodies 75
3.4 The working method of treaty bodies 78
3.4.1 Consideration of the periodic reports by states parties
to the Convention 79
3.4.2 Consideration of individual complaints or
communications 80
3.4.3 Inter-state complaints 81
3.4.4 General comments or general recommendations 82
3.5 Difference in the nature and mandate of individual
treaty bodies 82
3.5.1 The Human Rights Committee 82
3.5.2 Committee on Economic, Social and Cultural Rights 84
3.5.3 Committee on the Elimination of Racial
Discrimination 85
3.5.4 Committee on the Elimination of Discrimination
against Women 86
3.5.5 Committee against Torture 87
3.5.6 The Committee on the Rights of the Child 87
3.5.7 Committee on Migrant Workers 87
3.5.8 Committee on the Rights of Persons with Disabilities 88
3.5.9 Committee on Enforced Disappearances 88
3.6 An assessment of the effectiveness of the human rights
treaty bodies 88
3.7 Problems and prospects for reform of the human rights
treaty body system 94
3.8 Conclusions 97
4 Effectiveness of the UN Human Rights Council and its
challenges 100
4.1 Introduction 100
4.2 Background to the creation of the Human Rights Council 101
4.3 The powers and functions of the Council 105
4.4 New features of the Council 107
4.5 From standard setting to implementation 109