In the aftermath of the Second World War, the United Nations Organization was established. Its founding document – the UN Charter – promised a new world “based on respect for the principle of equal rights and self-determination of peoples”. Today, 75 years later, it is a good occasion to analyze whether this grand promise has been delivered.
This article argues that the United Nations (UN) has built a solid normative and institutional framework for the advancement of human rights worldwide, but has so far failed to make human rights the defining framework for mainstream development, policy and law-making. At this turning point, the UN has to rethink itself in the light of the Human Rights-Based Approach (HRBA).
Over the course of the past 75 years, the UN has made impressive and unprecedented work towards establishing an elaborate normative and institutional human rights framework.
First, in 1948, the UN General Assembly adopted perhaps the most important document of our time – the Universal Declaration of Human Rights (UDHR). This document enshrined a vision of humankind based on universally agreed values and principles of human rights, human dignity, and equality.
Next, the UN facilitated the development of a comprehensive body of human rights treaties – “hard” international human rights law. Nine of these treaties are known as “core” human rights treaties. Seven of these treaties have achieved nearly universal recognition and acceptance, being ratified by over 85% of the world’s states. Together with the UDHR, these core treaties have established arguably the most widely shared set of universal principles and standards. No other body of substantive values and norms – religious or philosophical – has ever achieved a comparable level of recognition and acceptance in human history.
The UN has further managed to develop and facilitate adoption of several important “soft-law” human rights instruments, including two key Declarations of growing significance: the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and the 2007 United Nations Declaration on the Rights of Indigenous Peoples.
Further, a complex and multi-faceted institutional framework has been established within the UN system to contribute to the effective realization of human rights norms and to strengthen them through their practical application. This system includes human rights treaty bodies (“committees”) to monitor implementation of, and provide authoritative interpretation to, the respective nine core human rights treaties.
In 2006, a UN Human Rights Council was established, which has been equipped with a range of instruments to carry out its broad mandate to “promote and protect” human rights, including the Universal Periodic Review – the first-ever global mechanism to regularly review the state of human rights in all UN member-states.
Another important instrument of the UN Human Rights Council includes specially designated international experts referred to as “Special Procedures”. These experts are tasked with mandates to visit countries, monitor and document human rights-related situations, issue recommendations, and develop broad guidance and advice on standards and best practices. Over 50 such mandates are currently in place.
In 1993, a new position and entity was established within the UN – the UN High Commissioner for Human Rights and the Office of the UN High Commissioner for Human Rights (OHCHR or UN Human Rights Office). Part of the UN Secretariat, the UN Human Rights Office has become the centerpiece of human rights activities within the UN system, as well as in the field.
Lastly, the UN system encompasses a good number of specialized operational agencies and entities advancing UN standards and aspirations in the field – UN Development Programme, UN Women, UNICEF, World Health Organization, UN Population Fund, UN Refugee Agency, Joint UN program on AIDS/HIV, etc.
Despite the lack of supra-national control and accountability mechanisms under the UN human rights system, this institutional framework has played a significant role in establishing and promoting progressive human rights regimes across the world.
A review of the UN human rights framework national adherence rates in correlation with the actual human rights situations demonstrates that, on average, the stronger a country’s adherence to the UN framework, the better its human rights situation is. In other words, the more a country ratifies UN human rights treaties and accepts the authority of the international human rights mechanisms and bodies, that country’s standing in global human rights rankings is generally higher (e.g. Freedom in the World and Democracy Index). Thus, the formal adherence to the UN framework plays a clear role in stabilizing national human rights regimes and deterring them from backsliding.
Despite these undeniable achievements, the UN has not yet managed to make human rights the foundational framework upon which social development, governance, international relations operate, nor ensure stability and non-retractability of the international human rights system itself.
Aside from important provisions in national constitutions, human rights can hardly be found among the stated priorities of national development strategies, “mainstream” public policies, or governmental action plans. One can find many references to economic growth or infrastructural development, but little about human rights or about the link between human rights and the proposed economic growth or infrastructural development priorities. Too often, human rights are no more than slogans, or statements at the international conferences, or in lawyerly debates and rituals.
Moreover, past decades have showed that the universal human rights regime is still fragile and easily retractable.
The last 15 years witnessed serious human rights recession and deterioration. Russia under Putin, Hungary under Orban, Turkey under Erdogan, Brazil under Bolsonaro, India under Modi and the USA under Trump are all examples of such a recession and of existential attacks on human rights, freedom, and democracy both nationally and internationally. In its latest Freedom in the World report, Freedom House marked the 14th consecutive year of human rights decline (with 2020 almost certainly to become the 15th such year). Top UN officials, including the UN Secretary General and the UN High Commissioner for Human Rights, repeatedly noted an alarming retreat and sidelining of human rights.
The main reason for these failures can be found in the prevailing practice of treating human rights as just an “area” of human activity or a “branch” of law alongside other fields and branches of regulation, such as the economy, industrial development, or criminal justice. This narrow conceptualization misunderstands the essence of human rights; namely: to determine the foundational characteristics and parameters of human society, human interactions, social fabric, individual-collective relations, state architecture and structure. Human rights are not about establishing a new substantive field of human activity or legal practice; rather, human rights are about how the existing substantive fields of human activity and legal practice have to be (re)organized in line with the fundamental human rights values and principles.
This is the core idea of the Human Rights-Based Approach (HRBA), an approach to operationalize and give “full life” to human rights by making human rights principles and standards the foundational basis and defining framework for mainstream human activities, as well as for “mainstream” fields of public policy and law. Developed in the late 1990s and early 2000s, and sharing much common ground with Amartya Sen’s human development approach, the HRBA postulates that:
- all activities, programs and policies should explicitly advance the realization of human rights as per the international human rights standards as a matter of their direct scope and objectives-setting;
- they should focus on and directly target the most vulnerable groups to “Leave no one behind” (effective non-discrimination); and
- be designed and carried out through direct engagement and participation of the vulnerable groups they target, with genuine transparency and accountability mechanisms in place.
Through these elements, HRBA is directly conducive to building and developing a truly inclusive and deliberative democracy.
However, the shortage of HRBA continues to hinder the advancement of human rights globally and nationally, plagues efforts to promote sustainable development, creates space and impunity for armed conflicts, large-scale violence and environmental wrongdoings, dehumanizes migration and refugees, etc.
The Human Rights-Based Approach (HRBA) carries significant transformational potential for reframing social relations and the State’s activities, and for radically rebalancing power relations and resources. It is consistent with, and may pave the way to, solutions sought by the “Black Lives Matter”, “Me Too”, and other social justice movements. With these characteristics, the HRBA may come as a response to valid wide-spread concerns about the “top-down” and “neo-colonial” nature of international human rights and calls for global socio-legal pluralism. The HRBA foundationally focuses on the empowerment of marginalized groups to place them as primary agents in the decision-making process and creates guaranteed opportunities for their development and self-fulfillment (i.e. “human rights”). Thus, the HRBA is the approach for reclaiming universal human rights in a plural and questioned global order.
Broad and deep engagement with, and internalization of, a genuine Human Rights Based Approach is the way to “re-inventing” universal human rights, and a way forward for “re-thinking” the UN. Despite the strong normative basis for HRBA developed by and within the UN, HRBA has been applied by the organization unevenly and in a fragmented way. Various quarters of the UN have produced many valuable HRBA-related documents, yet the practice of their application remains limited and inconsistent.
The flagship UN endeavor of the current decade is the 2030 Sustainable Development Agenda with its headline promise of “Leaving no one behind”. The ongoing COVID-19 crisis exposed the fragility of this grand project, and the governmental responses to the pandemic around the globe result in exacerbation of the situation of the most vulnerable. Thus, the “Leave no one behind” promise has come under scrutiny and existential questioning.
A potential reason for these failures is the absence of HRBA in both the prevailing governmental practices and the make-up of the Sustainable Development Goals. Despite the numerous 2030 Agenda references to, and rhetoric about, international human rights standards, fundamentally the 2030 Agenda is not an HRBA-compliant document. Many of its goals are not phrased in human-centered or human rights terms, targets do not target the most vulnerable, indicators are poorly disaggregated along important vulnerability grounds (disability, age, Indigenous or minority status), and vulnerable groups have little say over the 2030 Agenda’s process, practices or outcomes. Thus, without a strong HRBA at its core, the defining UN project of the modern era – the Sustainable Development Agenda – risks to fail spectacularly and lamentably.
The Human Rights-Based Approach is the approach that will ultimately allow the UN to deliver its 75-year-old promise propagated by the UN Charter to build a new world based on the “the principle of equal rights and self-determination of peoples”. At this turning point, a decision to apply HRBA genuinely and broadly could change the future of the United Nations and bring the organization more meaningfully into everyone’s life and heart. This decision must be taken without any further delay.
The author would like to express his deep gratitude and appreciation to Prof. John Packer, Director of the University of Ottawa Human Rights Research and Education Center, and Neuberger-Jesin Professor of International Conflict Resolution, for providing important and valuable insights and comments to this paper.
About the writer
Slava (Veaceslav) Balan, LLM’15, is a human rights researcher and practitioner, originally from Moldova, now established in Canada.
He holds a Master’s degree in Comparative Law from McGill University in Canada (2015), a Master’s degree in Comparative Constitutional Law from the Central European University (2002), and a Law degree from the Moldova State University (2000).
Slava’s professional experience includes work with the United Nations in Moldova and Ukraine, Amnesty International Moldova, Freedom House, Moldovan Academy of Public Administration, OSCE / ODIHR election observation missions in Moldova and USA.
At present, he is pursuing a PhD in Law at the University of Ottawa. Slava’s PhD project focuses on human rights-based approach (HRBA) to international, national and local development, policy and law-making.
Slava’s current areas of professional and academic interest include human rights and gender-based approaches to (sustainable) development, policy-making and law, United Nations human rights system, protection of minorities, representation and elections.