The European and the Inter American System on Human Rights
Posted by Essays on July 21, 2011 in Uncategorized |
Table Of Content
Introduction
Transformations in society and the economy influence human rights
Monitoring human rights and their enforcement
Towards a new approach to monitoring human rights
Human rights indicators: A few examples
The challenges of measuring human rights
Conclusions
Tables
References
Introduction
The world is living in the middle of a transition in which the prevailing rationale of production (the industrial society) is losing its dominant position, ceding it to another type of rationale, where information and information technology play an essential role. The new context is having a profound influence on human rights and human rights policies. The policy approach to, and the notion itself of, human rights are evolving. In this paper we identify two contradictory trends that can be more or less directly connected to the new information age. On the one hand there is a creeping fatigue with business-as-usual in the international initiatives for enhancing human rights. People are increasingly expecting politicians and international organizations to deliver concrete results, effective actions, facts and evidence, rather than simply affirmations, vague commitments, speeches and rhetoric. On the other hand, the ambit of human rights and their policy implications is growing wider and deeper; broader economic and social rights, including the so-called right to development, have been added to the conventional set of civil and political rights and freedoms. This makes analyzing, pursuing and evaluating trends and policies much more complex and demanding. Moreover, it may generate a sense of frustration and discouragement at the sheer scope of what it takes to move into a fully-fledged and advanced human rights culture.
We believe that an evidence-based and science-driven approach to human rights could respond effectively to the above contradiction, and provide both a transparent account of progress made and outstanding issues, and at the same time a time-bound process leading to progressive realization and sustained efforts to meet ever increasing demands and shifting standards. Statistics, and good quality statistics, are central in such an approach. By measuring with facts and figures what is the state of human rights, what inputs policies make to their enhancement, what outcomes policies and private initiatives have, the credibility of national and international programmes in this field can be restored, and make all the relevant players accountable with respect to their constituencies, public opinion, and the communities themselves whose human rights are at stake. The paper starts by looking at how basic trends in the information society impact on human rights and human rights policies. We then analyze some of the contradictions, difficulties and ambivalence that the information society determines, particularly at the international level. We focus on statistics, the emerging need for new statistical tools and a wider use of good data, particularly for policy monitoring and benchmarking. Finally the main challenges involved in setting up effective statistical systems for human rights policies are discussed pointing to measurement and conceptual issues and to capacity building.
Transformations in society and the economy influence human rights
The "nature" of traditional rights has changed
The information society and global interdependence signal a new phase in human rights policies. Human rights are universal and timeless: they pertain to human nature, which does not change with historical conditions. However, there are many aspects of human rights policies which are dynamic in character and are subject to transformation with socio-economic changes, like the visibility of human rights or to some extent the hierarchy in the relative importance of rights. One aspect is particularly noticeable, and is linked to the fact that the relevant players have become more numerous and diversified. Obligations with respect to human rights extend well beyond governments. Moreover, the state's obligations reach beyond national borders. Not only the state has to be held accountable with respect to the rights of citizens. But also private individuals, trans-national companies, international financial institutions, third-party states, business organizations and local groups. Multinational corporations violate human rights when they pollute the environment, or do not comply with the right to decent work. The conventional approach to violations by no state actors assumes that in these cases there is only an indirect responsibility, since it is only through national legislation that rights can be enforced. However, the need has emerged for more direct application and control of compliance. Furthermore, international financial institutions like IMF and the World Bank have sometimes in the past overlooked the implications of austerity measures and macro-economic stabilization on the human rights situation of a country and the conditions of disadvantaged populations. It is now apparent that they should pay due attention and share responsibility. In this case, it is not fair to accuse only governments for violating the economic and social rights, but the responsibility would be shared more directly by International Institutions. Third-part states have also some responsibility, for example in relation to sanctions affecting civilians, or bilateral cooperation with authoritarian regimes.
New rights have emerged: from civil and political rights to economic, social and cultural rights
With the information society new inequalities and social divides between nations and within nations may emerge. To the traditional rights, like freedom from poverty, hunger, disease, lack of adequate shelter, adequate literacy, etc., new rights have been added like access to information or the "right to decent work". Some rights are specific to the new technological environment: we can speak of the right to Internet or web literacy, the right to basic telecommunication and public information. We will mention a few of these "new" rights. Protect the privacy of individuals: Technology makes possible to invade the privacy of individuals and follow them in every minute of their life. Not only governments, but also private businesses can take advantage of these enormous powers. The Orwellian syndrome of Big Brother watching and oppressing us has become daunting. The information society is gradually shifting the dividing line between what belongs to the public domain and what can remain private. Every credit card transaction, cellular phone call or click on a web site creates an electronic trail of comings and goings capable of destroying individual privacy and threatening therefore freedom of association, personal choice and freedom of movement unless these rights are secured and protected. The right to free speech can be violated when service providers record which web sites we visit, how long we spend there, archive our e-mail and use it as evidence against us. Therefore, protection of privacy, right to free speech and guaranteed access to the public forum are increasingly important. However, privacy is not an "absolute" right. There may be legitimate reasons where society needs to know; such as to prevent crime or fight pollution and discrimination. Therefore, further clarification of what does and does not constitute legitimate access to privacy is required.
Open access to information: Access to communication capabilities, ranging from basic mail and telephone services to electronic networks, is becoming a fundamental right that should be guaranteed by governments and international institutions. "Amidst the turmoil of globalization and technological change, we must avoid creating a society of haves and have-nots, or know and know-nots". Access has many dimensions. For those who live in remote and rural areas physical access to infrastructure creates the major problem. Another dimension of access is economic. Owning computer equipment and paying access fees is unlikely to be affordable to the poor. A final element of access is cognitive; people must not only have an affordable connection, but they must be able to understand and utilize it. Therefore, in order to guarantee access, an active educational policy is needed as well as effective regulatory frameworks. Ensure a universal service of public information: There are significant differences between developed and less developed countries and between social groups in their capacity to access public information. According to a study by the International Data Corporation, among the worldwide total of 91 million Internet users (November 1997), only around 1 million are in Africa and South America. This international division between rich and poor is mirrored within states and regions. In general, there is a tendency to extend the scope and reach of human rights in line with growing aspirations, greater opportunities, more communication and participation, more perceived threats. This trend has been remarkable in post-war history. From basic civil and political rights, the focus is now on broader social economic and cultural rights. This shift has implications for the policy approach. In fact what increasingly matters is not simply preventing and sanctioning abuses, but rather promoting the gradual and progressive improvement of standards and achievements, like the reduction of poverty and inequality, better working conditions, more access to quality public services, more education and training, etc. The policy stance has then shifted from the violation approach towards the progressive realization approach.
The link between human rights and development
In the past it was conventionally assumed that there is a mechanical relationship between human rights and development. If you have a well developed, advanced and smoothly functioning economic system, basic freedoms will automatically be established and good governance ensured. Indeed, one cannot have a functioning market economy without the rule of law, democratic governance and individual freedoms. Both neo-classical economic models and neo-Marxian approaches supported such a simple and uncontroversial framework. Current analyses propose a much more complex model of multiple and dynamic inter-relationships. First, if development is a necessary condition, it cannot be considered sufficient for human rights. Second, inter-temporal inconsistencies may arise, giving rise to historicism effects (persistent impediments), like for instance when countries cannot afford to pursue economic rights and at the same time have sustainable public deficits. Third, difficult, and politically sensitive trade-offs may occur in the short term, like for instance between fast economic growth and high social and environmental standards. Fourth, being underdevelopment and human rights violations mutually reinforcing, countries may end up trapped in dead-end situations, vicious circles of undemocratic regimes and poverty feeding each other. One of the most promising thread of policy analysis therefore focuses on how to set up, and implement, a human rights based approach to development, or vice versa a development-driven policy for human rights enhancement. In this context, it has been said, we can establish a "right to development", as integral part of basic human rights. Not so much, therefore, an independent separate and additional "right", but rather an essential condition for giving substance to a broad set of rights, are ranging from the political sphere to the economic and cultural one.
Monitoring human rights and their enforcement
The new emphasis on implementation and enforcement
The 1990's have seen a long and dramatic series of frustrations and setbacks in human rights. The humanitarian tragedies in Uganda and Bosnia, the resurgence of ethnic conflicts in many parts of the world, the threat of xenophobic intolerance and racism, have induced a marked change in the policy aptitude and in the public opinion. The public is getting tired of rhetoric statements and business-as-usual politics. They want to see concrete facts, realizations, evidence of actual progress, and signs of real resolve. The emphasis is therefore shifting from affirmation to action, from commitments to actual enforcement, from policy design to implementation and evaluation. Pressures deriving from this change in attitude, fed by the media, the web, and the mobilization of voluntary human rights associations and networks, have played a decisive role in pushing towards the establishment of the Rwanda Tribunal and the Bosnia trial, where people responsible for human rights violations have been brought to face accusations and sanctions. It is not sufficient to design a policy programme, enact legislation or international norms, and subscribe to conventions, if the effects are not seen in practice, in actual enforcement and implementation. The policy stance must be made more credible. Credibility requires rules based on recognized authority, not only legal but also political and moral authority. It needs an operational framework for monitoring compliance and follow up implementation. Legal frameworks have to be used with great care and caution, and limited to regulate and sanction the most basic rights. Effective institutions, a culture of advanced social behavior and shared values are essential for making normative structures stick and work. Ultimately, one has to change human behavior, which requires winning the hearts and minds of people.
At the international level, an important function of public organizations has been to help countries and other players to set up and operational monitoring systems, capable of measuring progress made towards agreed objectives, analyzing trends and gaps, evaluating policy outcomes. It is in this context that reference to indicators and statistical data has emerged as a powerful tool for making human rights policies more transparent and support the credibility of governments and international organizations.
Conventional monitoring approaches and methods
Monitoring lies at the heart of the international human rights system. It is of paramount importance for enforcement and implementation. Through effective monitoring mechanisms, national governments and other players evaluate their performances, and thus enable citizens and the public opinion to hold them accountable for their responsibilities and commitments. Basically, there are three main types of international human rights monitoring mechanisms: reports, joint investigations and intergovernmental complaints, and individual complaints:
A. Reports
Regular and periodic reports by national governments on degree of compliance or progress made in implementation are the most common ways of monitoring. Governments are required to submit country reports to designated bodies, which will then assess on the basis of such reports whether countries have behaved according to international obligations. Each of the major international human rights covenants requires the submission of periodical reports (see Table 1 for the summary chart on the tasks and authority of monitoring bodies in the UN system). Ad-hoc Committees, established by the treaties, review those periodic reports. The basic idea of national reports is to stimulate and support national reviews of the measures taken to implement the obligations in a specific treaty. Thus reporting as an implementation technique functions primarily through the good intentions of the national governments themselves.
B. Joint investigations and intergovernmental complaints
Under some of the Covenants, specific investigations and intergovernmental complaints procedures are also foreseen. This method is widely used by the European Commission, and by regional bodies like the Inter-American Commission on Human Rights and the Organization of African Unity. For instance under ECOSOC Resolution 1503, and the procedures it contains, thematic initiatives and country rapporteurs are envisaged for monitoring purposes. The procedure foresees that "communications" suggesting "a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms" may be subject to investigation and complaint on an intergovernmental basis. In addition, there are "thematic" procedures, whereby rather than examining a range of abuses in individual countries, violations of specific rights or set of rights, like disappearances, are addressed world-wide. The UN Human Rights Committee has increasingly made use of country rapporteurs to examine the situation in specific contexts where it has been able to act independently.
C. Individual complaints
This monitoring mechanism is widely used in regional Human Rights Bodies, like the European Commission for Human Rights. In the UN system, as it can be seen from Table 1, the Human Rights Commission, the Committee against Torture and the Committee on the Elimination of Racial Discrimination are capable of receiving individual complaints. Individuals, and in some cases, groups whose rights are directly affected, can file a complaint to those bodies. In some cases, the international community can impose economic and/or political sanctions on the states that are violating human rights.
Problems and limitations of conventional monitoring approaches
The record of monitoring under the conventional approaches described above is disappointing. The main limitation is in that all the procedures above are centered around national governments, based on the underlying assumption that national governments are the only or the primary agents responsible for human rights violations or implementation. Much less attention has been devoted to human rights performance and violations of non-governmental players. As we have seen, it is nowadays recognized that many other players at the national and international level, such as business or international organizations, share with national governments responsibilities and obligations. This calls for a more comprehensive approach to monitoring, based on a partnership mode involving national and international players both in reporting, collection and dissemination of information, provision of expertise, and-when needed-sanctioning.
The effectiveness of conventional reporting procedures is questionable. Reports are often generic, backward looking and apologetic. The information that is gathered is usually not sufficient from the quantity and quality point of view for clearly identifying progress. Data are generally lacking or are of poor quality. Disaggregation by gender area and specific groups is seldom provided. Likewise, the assessment of risks and vulnerabilities for prevention of possible violations is on the whole neglected. The procedures for submitting, discussing and evaluating the reports are formal, rather slow and bureaucratic. The analytical frameworks underlying the reports, and therefore the reporting requirements, are vague and weak. It does not surprise then that we do not find indicators and benchmarks that would make the comparisons among countries or across time more transparent. Usually, there is no agreement among the parties (i.e. monitoring institutions and Member States) on what information is required and for what purpose. When such an agreement exists, reports most often ignore the guidelines and do not provide what is required or at the required level of specificity or disaggregation. Under such circumstances governments get by making over-general, sometimes-rhetorical statements, which bear little relation or resemblance to reality. Furthermore, Member States, particularly the most vulnerable ones, often lack access to the methodologies and resources required by the complex tasks involved in monitoring human rights. Reviewing all these reports in detail is time consuming and costly in terms of human resources and skills. Monitoring institutions often do not have the time and personnel resources for carrying on these reviews. It has been estimated that, given the present level of staffing in UN monitoring bodies, it would take 32 years to review the backlog of reports, were they all to be turned in - as they should --by the appropriate deadline.
The impact on public opinion is rare and rather weak. It has to be noticed that often exposing the verified violations to public scrutiny is one of the strongest political sanctions. In other cases, the confidentiality principle must be respected. Enforcement under the procedure 1503 requires however to bring into the public domain all violations; but cases investigated under this procedure have rarely led to a public discussion. This procedure is also slow, weak and restricted to systematic violations. It does not address the problem of an individual whose rights are violated. Individual complaint procedures on the other hand are more effective, but generally limited to more basic rights, and exclude social and economic rights.
The latter feature reflects a more general problem with monitoring and implementation, focused predominantly on civil and political freedoms. Probably due to the persistence of a cold-war distortion, there is still an unbalance between efforts aimed at monitoring civil rights, and efforts aimed at broader socio-economic rights. This imbalance has also prevented a more careful consideration of the links between the two sets of rights, and the integrated policy strategies required for setting in motion virtuous circles of economic progress and political freedom. Finally, sanctions have been weak, ineffective and often insufficiently targeted. They have rarely produced their expected results in terms of economic and political outcomes. Sometimes it has been claimed that sanctions have damaged ordinary - and innocent - citizens, more than violators or perpetrators.
Monitoring civil and socio-economic rights: the complementarities between the violations and the progressive realization approaches
The extension of the human rights framework from the political and civil sphere to the economic, social and cultural ones has created several issues due to the different nature of the entitlements and obligations arising from the two different perspectives, and to the different implications of monitoring violations and progressive realization. Some people think that these differences simply reflect a different level of political commitment by Member States and the international organizations. According to Audrey Chapman, despite frequent affirmations that all human rights are universal and indivisible, the international community generally treats economic, social and cultural rights more as aspirations than as fully-fledged rights. The undeniable differences existing between civil and socio-economic rights have been exploited to underplay the importance of the latter rights.
In general it is acknowledged that the basic legislation and enforcement tools developed for civil rights cannot be sic et simplicities transferred to the so-called economic and cultural rights. International organizations generally avoid using the "legal rights" perspective in relation to economic, social and cultural rights. For example, UNDP in its Human Development Report differentiates between the legal rights and the human development approach. Human rights convey the idea that all people have claims to social arrangements capable of protecting them from the worst abuses and deprivations. Such claims do not necessarily have to be translated in legal terms and tools, but must be enforced and sanctioned in order to be credible. Human development, on the other hand, is a process of enhancing human capabilities, i.e. to expand choices and opportunities so that every person can lead a life of respect and value. The rights perspective emphasizes the most deprived and excluded. Human development directs attention to the socio-economic context in which rights can be realized - or threatened. Following UNDP, some researchers and practitioners suggest using the term "non-adherence", rather than "violation", in relation to socio-economic rights. Others have argued that without the proper establishment of civil and political rights, it is not possible to focus on socio-economic rights. Moreover, economic, social and cultural rights are by their very nature not subject to judicial review or other remedial measures. These arguments suggest that, in spite of the similarities, the two sets of rights are quite distinct, and require specific and different tools and frameworks.
This difference in approach is correspondingly reflected in a different set of monitoring tools for civil and political rights, as opposed to the economic social and cultural ones. The current standard used to assess state compliance with economic, social and cultural rights is generally referred to as the progressive realization approach. According to Chapman, "the progressive realization benchmark assumes that valid expectations and concomitant obligations of state parties under the Covenant are not uniform or universal, but instead relative to levels of development and available resources which necessitates the development of a multiplicity of performance standards for each enumerated right in relationship to the varied social, developmental, and resource context of specific country". It appears clearly that translating this approach into practice is extremely difficult, as it requires an enormous amount of good quality data and a robust and relatively uncontroversial theoretical framework. Few Member States can claim to have the required data and detailed information available. These data would have to be made comparable across countries and freely available to all interested parties. Furthermore, the members of the Human Rights Committee would most probably lack the time and staff to deal with such detailed and complicated reports and review burden. For this reason, Chapman proposes the utilization of the standard "violations approach" also for economic and social rights. According to Chapman, this would not diminish the importance of progressive realization, but rather would separate it from the monitoring process. Violations are in general more easily defined and identified; therefore there would be no need for extensive data, nor for major improvements in statistical systems or for the public release of large quantities of data. The possibility of establishing a case of "violation" by an international Committee would give economic and social rights greater political salience than they presently enjoy. In addition a "complaints" procedure would produce tangible results, permitting the mobilization of vulnerable groups and the involvement of human rights associations and civil society in the monitoring process.
Scott Leckie argues that there already exists the possibility of legal claims based on violations of economic, social and cultural rights. Referring to the Limburg principles on the implementation of the International Covenant on Economic, Social and Cultural Rights, Leckie states that there are available mechanisms within the current system to claim the violation of such rights (1998:89). However, he also acknowledges the possibility of preventing such claims by demonstrating that the progressive realization provisions have been duly put in place (ibid: 94). If governments fail to take steps towards progressive realization, a violation will have occurred. In this context, the use of indicators to monitor policies and their outcomes is important (ibid: 93-94) to establish compliance with the progressive realization obligations. We may also argue that progressive realization, and the corresponding highly data-intensive monitoring mechanisms, should also apply to civil and political rights. Contrasting in fact discrimination, segregation and intolerance requires a set of tools going well beyond the repression or prevention of the most serious abuses. Democracy, investment in social capital, good governance, empowerment, social cohesion, etc., call for a progressive realization approach to monitoring, including statistical capacity building, policy analysis and international dialogue.
Moreover, the most serious limitation of the violations approach is its difficult implementation at the international level. The humanitarian tragedies of the 1990's, the inability to prevent atrocities and horrible abuses, the terrible massacre in the "safe haven" of Srebrenica and other shameful events have tarnished the credibility of the legal framework and the institutional machinery, and sometimes also the reputation of the players involved, including the United Nations. The Secretary-General of the UN, Mr. Kofi Annan, has shown great courage and honesty in reviewing the performance of national and international organizations in the worst episodes of the last decade, and admitting shortfalls and responsibilities. Increasingly, redressing human rights abuses implies "humanitarian interference", and therefore breaching the fundamental principle of non-interference in the internal affairs of sovereign nations, a principle that far too often has served as a shield for authoritarian regimes and barrier to human rights implementation. In other instances, the discussion on human rights implementation has degenerated into a purely political exercise, mostly rhetoric, with governments battling over empty wording and merely formal statements.
The credibility of the existing framework is seriously at risk. Ensuring compliance with legal obligations and promoting actual progress in individual freedoms are urgent tasks for the national and international communities. Monitoring violations and progressive realization are not mutually incompatible alternatives. On the contrary, they can - and should - be seen as complementary tools. This does not mean denying the trade-offs existing between extending the rights framework and ensuring actual enforcement. The risks of diluting the concept of basic freedoms by their extension, or undermining the credibility of the international guarantee against violations by focusing on progressive realization, are real ones. But the most effective response should be to engage efforts and commitments on both fronts: i.e. on the one hand making enforcement more effective, including legal enforcement, and focus on the most serious abuses, and on the other stimulate progress over the broad spectrum of rights and link them to development through the progressive realization approach. In order to reconcile these aims, a comprehensive, consistent and long-term strategy should be put in place. Such a strategy requires the application of all the tools provided by the new economy and the information society. Monitoring progressive realization and building statistical capacity in the field of human rights is an essential condition and an integral part of such a strategy.
Towards a new approach to monitoring human rights
The discussion above shows how the information society provides formidable tools for addressing human rights policies in a new more credible way. In particular it places monitoring and statistical capacity building at the center of the policy focus. The features of this new approach can be summarized as follows: A Data Intensive Model: Without monitoring mechanisms based on good quality and comparable data, the commitment to social development and human rights by governments and international organizations cannot be credible. Effective monitoring necessitates an unbiased cross-national measurement of policy performance and human rights trends based on concrete facts, figures and standards. The policy use of measurement, data and indicators is central to this model. Strengthen the credibility of the violations approach: Preventing and repressing violations and major abuses remains of primary importance. However, this has to be restricted to the core of basic freedoms and rights. The legal enforcement of entitlements, including sanctions when necessary, is a condition for restoring trust in the human rights machinery. This implies updating adjusting and refocusing the legal and regulatory environment to take into account the new situations of abuses taking place within countries, and extreme cases of violations of socio-economic rights. These violations should be clearly defined in a narrow and precise way, so that monitoring and enforcement can be actually carried out. Redefining the "non-interference" principle, putting on a stronger legal basis the "humanitarian interference" intervention, regulating "international policing" and the use of force to prevent or stop humanitarian disasters and human rights abuses, redefining the scope of retaliation and self-defense actions are important tasks in the reform of the legal framework of international relations. On the whole, we still operate in the legal and international relations context of the XX - or sometimes even the XIX - century, while the challenges are those of the XXI century.
Shift emphasis from the pathology to the physiology of human rights enforcement: There is a limit to what we can do with legal provisions and legal enforcement at the international level. Individual and collective freedoms, right of self-determination, sovereign prerogatives of nations - small and big, the huge administrative costs of managing international tribunals and the implementation of conventions, represent a clear obstacle to a more active policy stance in human rights. To complement and supplement the legal approach, we can take advantage of the power of the information society. New information technologies have expanded and diversified the means available for sharing data within and among the main players, like governments, NGOs and international organizations. From the perspective of international organizations, this strategy offers tremendous advantages, as accurate and timely information is a precondition for increasing policy effectiveness, monitoring and empowering. Electronically interconnected international organizations can serve as watchdogs for policies and generate popular pressure for action. According to Metzl, ICT systems facilitate the submission and processing of country reports mandated by human rights and other international instruments. Chapman suggested setting up computerized information systems and compiling policy relevant indices of compliance. This would allow integrating country data from reports submitted to different bodies and generate time series for measuring progress and monitor treaty compliance over time. New technologies make possible to shift from a "culture of reaction" to a "culture of prevention" in human rights policies. Include non-governmental actors: It is important to include private players in monitoring. The objective is to induce a habit of transparency and democratic accountability in all organizations, national and international, public and private, business and civil society. Self-monitoring of human rights policies and practices is a necessary condition for compliance in modern cohesive and democratic societies. Furthermore, the state can no longer be the only source of human rights information and public statistics. The sources of public information should be more diversified and include NGOs and the third sector.
Mobilise Public Opinion: Metzl in a recent article draws attention to the manner in which the international community handled the crisis arising out of the break-up of Yugoslavia in 1991. The information came dramatically quickly. Journalists through electronic media beamed across the world by CNN and other satellite networks reported every moment. Discussion groups accompanied news reports on the Internet. Action alerts were sent across the Internet directly to international organizations and concerned NGOs. Developments in the proceeding of the International Tribunal for former Yugoslavia can be tracked daily from the Internet with full access to documents, resolutions, evidence and case files. The information society has remarkably changed the way in which the international community handles a crisis by providing more accurate and timely information, which is a precondition for effective response and action. Encourage Civil Society: It is the government's responsibility to create the institutional and political space for monitoring and promoting human rights. However, only an open civil society can ensure the success of such strategies through active participation and control. Community leaders, religious authorities, business organizations, social partners, academic and research institutions, parents and teachers all have a fundamental role in building and above all enforcing norms. Institutions, the culture of social norms and ethics are needed to reinforce the normative structures.
Identify best practice and benchmarks: Benchmarking can be a powerful tool of the "information society". Setting benchmarks enables civil society and government to reach an agreement about what rate of progress is to be considered adequate, and what has been actually achieved. Benchmarks should be specific, time bound and verifiable. They should be set with the participation of people whose rights are affected. Furthermore, reassessment of benchmarks should be done in an independent fashion, possibly by independent agencies, by a target date. Need for Action: Human rights require a global commitment from all partners and a comprehensive policy approach based on concrete and measurable results. There is a need to move from affirmation to implementation, from norms to behavior, from theory to practice. Human rights cannot be realized universally without stronger positive actions and a closer link with human development. The legal frameworks should be operationalised and made really credible. The international machinery should be strengthened. Procedures need to be simplified and speeded up. Recent innovations to strengthen legal enforcement - such as the International Tribunals for the former Yugoslavia (1993) and Rwanda (1994) and the Rome Treaty (1998) on the creation of an International Criminal Court - are promising developments in this context (UNDP, 2000:29). But above all more data and indicators are required to monitor and promote the progressive realization of rights.
Human rights indicators: A few examples
In recent years considerable effort has been put at the international level to define and use a set of policy relevant headline indicators that can be applied to monitor progress and assist policy makers in formulating policies and assessing their effectiveness. It is increasingly recognized that statistical indicators can improve policy performance and make governments and other players accountable for their actions and the corresponding outcomes. Indicators permit a quantitative assessment of human rights policies thereby empowering governments and organizations to understand their obligations and the actions needed to meet them. However, developing human rights indicators is a complex task that is inherently linked to statistical capacity building. Here are a few aspects requiring attention.
Setting up the indicators: Conceptual problems
The major problem involves the definition itself of human rights, and hence their violation or implementation, from a statistical point of view, i.e. in clear conceptual terms and precise conditions allowing quantitative measurement. How do we measure compliance in a way suitable for comparative analysis at the international level? How do we measure democracy, civil and political freedom, and participation to society, social exclusion or "the integrity of the person"? What are the indicators of "systemic" discrimination? Legal definitions of human rights usually do not provide an adequate base for such statistical work, since they are usually too general and linked to a specific legal system. Thus a shift is needed from legal to statistical definitions, based on a robust theoretical framework. Legal definitions usually suffer from the lack of a dynamic character, reflecting the lag between changing requirements and legislative adaptations. Statistical definitions also need to adjust and respond to analytical and policy requirements. An increasing difficulty is related to the need to have data broken down by the many dimensions of human rights, demographic and social components, territorial dimensions. Monitoring has to be detailed, precise and timely.
A related issue is determining in measurable terms what constitutes the government obligation and correspondingly what constitutes a violation of this obligation. Often human rights violations are the result of a policy choice, since governments face alternatives in how much and what type of human rights they wish to implement. Then disaggregating the information on the basis of the key components of human rights policies, and having a comprehensive outlook of the whole field is of great importance. An interesting distinction is usually made between active and passive violations. Passive violations can be defined in terms of unwillingness of a state to adopt or respect a norm when it is clearly capable of doing so. Active violations involve a conscious attempt to restrict, and therefore violate, the rights, or eroding in practice human rights conditions. In many cases, particularly in relation to economic, social and cultural rights, there is the need to define minimum acceptable conditions or decency thresholds that correspond to compliance with or realization of the right. These "statistical benchmarks" can also be developed independently of policy or legal "targets and goals". Given that the decency thresholds change in relation to changing perceptions and aspirations, indicators should be capable of adjustment and flexibility. Moreover, the benchmarks should be as much as possible "universal", rather than reflect the stage of development of specific countries or situations.
A few examples
It is beyond the scope of this paper to review the many efforts underway to develop indicators of human rights performance. Some examples are given however to show the variety and commitment of the initiatives undertaken. It is to be noted that there are not only official sources, but also private non-governmental ones. It is also noticeable that national statistical systems are not among the major providers of data in this field. Much remains to be done to stimulate more, and better data production, more partnership between official and private sources, more integration of different sources of data.
Country reports produced by governments
Nearly all-major industrialized countries engage in human rights reporting, in line with national policies or in response to requirements of international conventions. Among government reports, the US State Department's Country Reports on Human Rights are generally recognized to be among the most thorough, detailed and extensive public documents on the matter. These reports cover all countries, and are based on the information available to the US Government. Sources include American officials abroad, officials of foreign governments, private citizens, victims, press reports, international organizations, NGOs. Each narrative contains two general headings: 1) Respect for Human Rights; and 2) Economic, Social and Cultural Situation. Norwegian and Danish human rights institutes have collaborated in the production of quite comprehensive annual reports. Statistical yearbooks in Nordic countries have emphasised economic, social and cultural rights and defined minimal thresholds for indices such as nutrition, infant mortality, life expectancy, and income and employment levels. Authorities in these countries felt an obligation to assure compliance with the minimum thresholds through appropriate public policies.
Donnoly and Howard (1988) have proposed a pragmatic and imaginative framework for developing a list of headline indicators for monitoring and evaluating national human rights performance. Their list is divided into four categories of rights. The first one deals with the rights of survival, aimed at safeguarding the integrity of the person. The second is membership rights, like family rights, and freedom from discrimination. The third is protection rights, i.e. legal entitlements protecting individuals against illegitimate actions by the state, like, for instance, the existence of an independent judiciary. Fourth are empowerment rights, enabling individuals to realize their material and intellectual potential and lead autonomous lives; e.g. the freedom of the press, the freedom of association.
UNDP world human development report
One of the most prominent works in providing indicators and data on countries performance in development and social policies is the annual report produced by UNDP on "human development". In this report, UNDP ranks countries in relation to their development situation, considering not only economic factors but also social and institutional ones. The human development report evaluates also the status of basic freedoms and socio-economic rights. The 2000 issue focused on a human development based approach to human rights. It provided many information and analyses relevant for human rights monitoring. UNDP [ 52] uses five indexes in order to evaluate the country ranking in terms of economic, social and cultural rights. These indexes, and the indicators used in each index, are listed below:
1. Human Development Index: Life Expectancy at birth Adult Literacy Gross primary, secondary and tertiary education enrolment GDP per capita
2. Gender-Related Development Index The same indicators of HDI, but taking into account inequality between men and women Female and male life expectancy at birth Female and male adult literacy rates Female and male combined enrolment ratios Female and male per capita incomes based on female and male earned income shares
3. Gender Empowerment Measure Measures gender inequality in economic and political opportunities
4. Human Poverty Index (for developing countries) While HDI measures average achievements in the basic dimensions of human development, the HPI measures deprivation in those dimensions. Probability at birth of not surviving to age 40 Adult illiteracy rate Percentage of people without access to safe water Percentage of people without access to health services Percentages of children under five whom are under weight
5. Human Poverty Index Probability at birth of not surviving to age 60 Adult functional illiteracy rate Percentage of people living below the income poverty line (50% of median disposable household income) Long-term unemployment rate (12 months or more)
Amnesty international reports
Amnesty International Reports have collected data and information on a wide set of human rights violations, such as: extra-judicial executions (confirmed or presumed), disappearances (people who "disappeared" or remained in such a state), torture and ill-treatment (people reportedly tortured or ill-treated by security forces, police or other public authorities), conscientious objectors (confirmed or presumed), unfair trials (political prisoners receiving unfair trials), detention without charge or trial (people arbitrarily arrested and detained, or in detention without charge or trial), death penalty (executions actually carried out, and prisoners under sentence of death) and human rights abuses by armed opposition groups. Amnesty International prepares reports and provides data covering these issues annually approximately in 125 countries.
Freedom house
Since its inception in the 1970s, the "Freedom in the World Survey", prepared by Freedom House has provided an annual evaluation of political rights and civil liberties throughout the world. The Survey employs two series of checklists, one for questions regarding political rights and one for civil liberties, and assigns each country or territory a numerical rating for each category.( n5) The political rights and civil liberties ratings are then averaged and used to assign each country and territory an overall score on the basis of which the status of "Free country" is recognised. Those countries whose ratings average 1-2.5 are generally considered "Free"; 3-5.5 "Partly Free," and 5.5-7 "Not Free."
Charles humana's "World human rights guide"
Humana draws up a scale for evaluating human rights performance in individual countries. His ordering is based on the responses to forty questions derived from United Nations legal instruments, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights). Each of the countries is graded according to a four-point scale. Forty rights are divided into five general categories: six questions refer to "freedom to (do)"; twelve refer to "freedom from"; ten to "freedom for/or rights to do"; seven to "legal rights"; and five to "personal rights". Since clearly all those rights are not equal in importance (for instance extra-judicial killings and disappearances cannot have the same level of importance as the rights to use contraceptives), Humana has identified seven basic questions indicating the most serious violations. These seven most important rights are weighted for their inclusion in the scale. Percentage ratings for each country are obtained by dividing the number of points a country receives by the maximum number of points possible. Human's scale only includes civil and political rights and excludes economic, social and cultural rights.
The challenges of measuring human rights
Measuring human rights poses formidable challenges. However, the information society has given new tools, and generated more demands; meeting this challenge therefore has become possible necessary and urgent. Moreover, the end of the Cold War has eliminated one of the major political obstacles and created greater convergence in approaches to human rights [ 6]. In a world where we measure the shape of DNA, the hidden economy, the shades in business confidence, and the mood of the electorate, we can, and must, also measure the status of human rights, and the effectiveness of their implementation. The complexity of the task can best be seen in the perspective of statistical capacity building. We require a fully developed system of data, data analysis and dissemination, policy monitoring and follow-up at all relevant levels of government and policy making. The problems of statistical definitions, concepts and classification require much conceptual work, which must be the joint responsibility of academics, policy analysts, statistical institutions and international organisations. These concepts have to be translated into agreed national and international standards, which in turn are incorporated into measurement models and data collection exercises.
In most human rights statistics, the information is inadequate, lacks accuracy and often independence. It is easy to understand that governments may be reluctant to publicise their own violations, or the shortcomings of their policies. It could be said that the state of human rights statistics in a country is in itself a good indicator of democratic governance and compliance with human rights. Authoritarian governments not only do not publish accurate data or reports, but also tend to destroy, distort, and conceal the evidence. Under such circumstances, relying on administrative sources of information is not sufficient. ICT may give the possibility of diversifying the sources of information, including also data drawn from NGOs, collective players and individuals. Second, actual behavioural indicators of violations at a given point of time may not be reliable indicators of the status of human rights. For example, when there is an "efficient" repressive state apparatus, the threats to human rights may remain implicit [ 31], and relatively few violations may be detected.
Another difficulty is related to the subjective elements in the area of human rights, which need also to be measured and monitored. The Vienna Declaration on Human Rights has highlighted the necessity of taking into consideration "the significance of national and regional particularities and various historical, cultural, religious backgrounds". The Declaration of the Copenhagen Social Summit recognised that its recommendations have to be implemented "with full respect for the various religious and ethical values, cultural backgrounds and philosophical convictions of its people". Usually culture, traditions, and beliefs enter both in the procedures of definition and implementation of human rights. It is not only a question of agreeing on a clear definition, but it is also a problem of interpretation. This notion has relevant implications for data collection (how information is collected, nonsampling errors, use of CATI or CAPI, etc.). The argument of cultural diversity has been in some cases exploited for denying the universal nature of human rights. Some fundamentalist thinking has argued that human rights is a western concept embedded in the specific philosophy of liberal individualism of western civilisation, which is not applicable in nonwestern contexts. Moreover, religious fundamentalists claim that human rights cannot contradict the imperatives of religion. Is the Islamic injunction to cut off the hand of a thief "cruel, inhuman, or degrading punishment" by human rights standards? Should it be included in the measurement of human rights violations [ 12]? Cultural relativism has gone too far, and undermined the case for human rights implementation. It ignores the fact that cultures are not authentic and homogenous entities. Cultures have in the course of history interacted to produce a common basis of universal values that find their expression in human rights. These rights do not belong to any specific civilisation, western or eastern, nor religion or political ideology. They are the product of all human beings and of all walks of life. The legitimacy of universal rights is greater today than in any time in human history, thanks to global communication, cross-fertilisation of cultures and international relations.
Conclusions
"Data are among the most powerful tools for revealing the de facto discrimination, often where people did not realise or believe that it existed. It is here that statistics can explode myths, reveal unknown biases and expose the status quo as unacceptable [ 52]". The information society creates both opportunities and challenges to human rights and human development. This paper places special emphasis on measurement, statistical indicators and statistical capacity building. Statistics provide important feedback about present and future trends. It is also a fundamental tool for designing, monitoring and evaluating policies. A statistical approach to human rights can give the possibility of improving policy performance based both nationally and globally. Furthermore, it enables a more comprehensive approach to human rights based on human development, and on the integration of the violations and progressive realisation approaches. Data permit to analyse and test the relationship between different sets of rights, between human development and human rights, between prevention and repression, between security and social protection. Statisticians can provide an important contribution to human rights policies; therefore they should be involved as much as possible in the formulation monitoring and analysis of policies. On the other hand, statistics should adjust to the opportunities and realities of the information society, and exploit it to respond to the requirements of an evidence based human rights approach. This implied building statistical capacity in the field of human rights.
In the book "Le mètre du monde (the Meter of the World)", Denis Guedj tells the fascinating history of the establishment of a set of uniform weights and measures. The original "meter", which is at the basis of the metric system of measurement, is religiously kept in Paris, as a platinum iridium cane, at the St. Cloud Pavillion, as a symbol of the Enlightenment, of the end of the "ancien régime" and the beginning of constitutional democracy and the "rule of law". The history of the meter in Europe witnesses the struggle against the privileges and abuses of feudal lords, barons and generals, by the ordinary people, the traders, and the labourers. We know that this battle culminated in the French Revolution, the Declaration of the Rights of people and citizens in 1792, and - three years later-the establishment in the 1795 Constitution of a system of uniform weights and measures with the ambition of making it a "universal" system. In the XXI century we are facing a similar challenge. We have to establish a system of weights and measures for human rights policies, a global system, and an operational one. Without such a system, the pressing demands and aspirations for ensuring universal human rights will remain in the Middle Ages of non-accomplished promises, unaccountable governments and frustrated expectations.
Tables
Table 1 UN treaty monitoring bodies
Legend for Chart:
A - Committee
B - Receives Reports from States
C - Receives Complaints
D - Interstate Compliant Procedure
E - Other/formal mandates
A B C
D E
HRC(1) Yes (Ratification of optional
protocol is necessary)
Yes Comments, can request additional information
(in practice)
CT(2) Yes Yes
Yes Comments and suggestions
CERD(3) Yes Yes (from individuals or
groups)
Yes Suggestions and recommendations/can request
additional information
CEDAW(4) Yes No
No Suggestions and recommendations
CRC(5) Yes No
No Suggestions and recommendations/ can request
additional information
CESCR(6) Yes No
No
(1) Human Rights Committee: Established by International Covenant on Civil and Political Rights
(2) Committee against Torture: Established by the convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(3) Committee on the Elimination of Racial Discrimination: Established by the International Convention on the Elimination of All Forms of Racial Discrimination
(4) Committee on the Elimination of Discrimination against Women: Established by the International Convention on the Elimination of All Forms of Discrimination against Women
(5) Committee on Rights of the Child: Established by the Convention on the Rights of the Child
(6) Committee on Economic, Social and Cultural Rights: Established by the Covenant on Economic, Social and Cultural Rights
Notes:
(n1) It is important to differentiate between the violation of rights and protection and promotion of rights. Even state cannot be considered as the sole agent in violation of rights, it is still the main and most capable agent in protecting and promoting rights given the legal regulations within a given territory and broad public policies are still designed under the authority of governments.
(n2) The number of individuals who use the Internet is very difficult to measure, in part because the definition of users is somewhat fuzzy. Users might be subscribers to a consumer Internet service or other computer service that includes the Internet as a component, or they might be potential users with access to the Internet at their workplace.
(n3) McCormick and Mitchell [ 32], for example, argue that human rights violations differ in type, not just amount, in such a way that they cannot be presented on a single scale. According to them there is a substantive difference between the use of imprisonment on the one hand, and the use of torture and killing on the other. Regimes can choose different mixes of these methods of political control, a variation that would be concealed by a one-dimensional scale. Often the choice of one form of human rights violation in addition to, or over, another depends, in part, on calculation of costs and benefits. For example, the use of torture and killing carries a likelihood of higher external costs. This is implicitly recognised when violations consist in disappearing victims rather than killing [ 32]. In the construction and use of indicators therefore one has to fully take into account the different contexts forms and types of possible violations.
(n4) Donnoly and Howard refuse the idea of hierarchy among rights. On the contrary they argue that their list represents the indivisibility of rights. Gillies [ 22] argues that their argument on the indivisibility of rights, which is their major strength, is also their major weakness, since indivisibility should imply equal weighting for all four groups of rights. According to Gillies, policy makers rarely treat all rights as equal. When the attention is shifted from documentation to action, equal weighting of rights becomes nearly impossible [ 22].
(n5) See http://www.freedomhouse.org/research/freeworld/2000/methodology.htm for a discussion on methodology and a complete list of indicators that freedom house uses in evaluating the country performance.
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American opinions on human rights issues reveal that Americans have a poor understanding of human rights philosophy (evident in substantial support for tortures and killings). How can Americans gain an understanding of human rights? How can adults be enlightened on human rights issues after they are no longer in the school system?