Philip Alston’s research while affiliated with New York Law School and other places

Too much of the debate about how respect for human rights can be advanced on a global basis currently revolves around crisis situations involving so-called mass atrocity crimes and the possibility of addressing abuse through the use of military force. This preoccupation, as understandable as it is, serves to mask much harder questions of how to deal with what might be termed silent and continuous atrocities, such as gross forms of gender or ethnic discrimination or systemic police violence, in ways that are achievable, effective, and sustainable. This more prosaic but ultimately more important quest is often left to, or perhaps expropriated by, international lawyers. Where the politician often finds solace in the deployment of military force, the international lawyer turns instinctively to the creation of a new mechanism of some sort. Those of modest inclination might opt for a committee or perhaps an inquiry procedure. The more ambitious, however, might advocate the establishment of a whole new court. And surely the most visionary of such proposals is one calling for the creation of a World Court of Human Rights. A version of this idea was put forward in the 1940s, but garnered no support. The idea has now been revived, in great detail, and with untrammeled ambition, under the auspices of an eminent group of international human rights law specialists.

Antonio Cassese’s vision for the future of the international human rights and criminal justice regimes relied critically upon the availability of reliable and systematic sources of information about alleged violations, to be provided primarily by the major international human rights NGOs. But the reality is that the existing system is problematically fragmented, hierarchical, non-collaborative, and excessively shaped by organizational self-interest. The politics of information suggests that, in the absence of significant pressure for change, the major INGOs will continue to adopt a proprietorial rather than a communal approach to reported data. We argue that while new information and communications technologies have already demonstrated their potential to transform the existing human rights regime, there is a compelling case to be made for establishing a comprehensive reporting website, open to local actors as well as the international community, and equipped with a collaborative online editing tool that would begin to resemble a human rights version of the Wikipedia. The article explores the many advantages of a human rights wiki, and notes the range of choices that would need to be made in order to shape the structure, and modes of organization and management of such an initiative.

The past decade has seeen a transformation of the international labour rights regime based primarily on the adoption of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, and the widespread use of the concept of ‘core labour standards’. Notwithstanding the enthusiasm which has greeted these innovations, it is argued that the resulting regime has major potential flaws, including: an excesssive reliance on principles rather than rights, a system which invokes principles that are delinked from the corresponding standards and are thus effectively undefined, an ethos of voluntarism in relation to implementation and enforcement, an unstructured and unaccountable decentralization of responsibility, and a willingness to accept soft ‘promotionalism’ as the bottom line. The regime needs urgent reforms, such as anchoring the principles firmly in the relevant ILO standards, giving greater substance to the Follow-up mechanism, extending monitoring under the Declaration to include an empirical overview of practice under the bilateral and regional mechanisms which have invoked ILO principles and the Declaration itself, and adequately funding the commitment to workers’ rights.

The critical issue examined in this Article is whether a group of monitors explicitly created to hold governments to account, can themselves be subjected to a strong accountability regime controlled by those same governments, without thereby destroying the independence that is considered to be the system’s hallmark. In 2007, a group of powerful governments pushed through a Code of Conduct to regulate the activities of Special Rapporteurs - the UN’s main system of human rights monitoring by independent experts. The same group has now proposed the establishment of a Legal Committee to enforce compliance with the Code through sanctions. Other governments, the SRs, and civil society groups are highly critical of the way in which the Code has been used so far to stifle the work of the monitors and strongly oppose the creation of any compliance mechanism. The Article notes the powerful pressures which have succeeded in insisting that almost all international actors should be accountable to their principals, and explores the strongest case that can be made for exempting SRs from this general trend. It concludes that existing forms of accountability are weak, and probably inadequate, but that serious concerns about the undermining of the SRs independence are also warranted. It calls for a new approach which recognizes the multifaceted nature of the notions of independence and accountability and ends with a specific proposal for a legal committee designed to strengthen both values and enhance the legitimacy of the system as a whole.

In our continuing series of reflections by human rights practitioners on their work, Philip Alston reflects here on his six-year term as UN Special Rapporteur on extrajudicial, summary or arbitrary executions, completed in July 2010. In the interview, Professor Alston addresses some of the methodological challenges faced by UN Special Procedures in their work – and in particular, highlights the need for greater context-specific analysis in reporting. He also speaks about some of the key themes that feature prominently in many of his country visit reports – including impunity, corruption, witness protection, police accountability, targeted killings, and election-related violence and killings.

For almost three decades the United States has played a central role in discouraging and sometimes blocking the development of the concept of economic, social and cultural rights, particularly in the context of the international human right regime. US opposition has not, however, followed a single unchanging course and this article traces the historical evolution of the relevant policy from 1945 through 2008. It concludes by advocating a policy of constructive engagement in relation to these rights on the part of the new administration.

Since 2003, as part of its ‘war on terror’, the United States has taken the position that the UN Commission on Human Rights and its successor, the UN Human Rights Council, as well as the system of ‘special procedures’ reporting to both bodies, all lack the competence to examine abuses committed in the context of armed conflicts. The article examines the arguments put forward by the US in the specific context of the work of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. The authors conclude that the consistent practice of the human rights organs for almost 25 years, often supported and until 2003 never opposed by the US, runs counter to the current US position. Acceptance of the US position would not only undermine efforts to hold the US accountable but would also have a major impact on the international system of accountability as a whole.

In 2006, the UN Commission on Human Rights, established 60 years earlier, was replaced by a new Human Rights Council. This article examines the widely differing reasons given for the Commission's loss of credibility and seeks to draw lessons relevant to the new institutional regime which the Council must build. It argues that the preoccupation with the Council's composition, and the exclusion of violators, fails to address the more important factors in the Commission's downfall. Detailed consideration is given to the potential strengths and pitfalls involved in establishing a system of universal periodic review of the human rights performance of every state, and of the need to learn from the dismal failure of a very similar exercise undertaken by the Commission between 1956 and 1981. The article then considers some of the key reforms that need to be undertaken in order to transform the system of 'special procedures' - currently involving some 41 country and thematic mechanisms - into a more coherent, professional and effective system for defending human rights and one which should be at the core of the work of the new Council.

Based on a case study of India the authors consider the evidence of the qualitative impact that human rights discourse, and the constitutional entrenchment of economic and social rights, can have on the attainment of social goods such as education. The paper reviews the history of the amendment to the Indian Constitution in 2002 which made elevated education to the status of a "fundamental right." The paper asks whether the inclusion of a justiciable right to education for children 6 to 14 made a concrete difference. The evidence is mixed. Public debate and public interest litigation have compelled the government authorities to address some critical problems. More importantly rights discourse around education has become a focus for local political action and agitation among under-resourced and oppressed communities.