In order to gauge the future of human rights, we need to look at both the past and the present. In comparison to the early days of the 21st century, we are far more equipped in addressing human rights violations across the globe. However, the road ahead is full of challenges as the human rights operate in a society which is ever evolving. As we advance to the future, we will see new challenges in addressing the human rights violations, both existing and emerging.
When considering the future of human rights, we need to pay special attention to the ‘trouble areas’, which, if ignored, can render the existing framework inefficient in addressing human rights violations. In this regard, there are three key challenges for human rights regime to focus on:
1) Less Laws But Hard Laws
There is a growing fear amongst the human rights advocates that there may be too many human right laws with too little content. Though some of the norms contained in human rights instruments have become part of customary international law or have attained the status of jus cogens norms, others require both hard element (to be of binding value) and an effective institutional mechanism to be of value.
2) Need For Effective Institutions
There is a need to integrate the fragmented body of institutions and consequent overlaps in their functions. The lack of a world court for human rights leaves us with the national and regional courts for the justiciability of human rights provisions. However, there is still a need for forums in some regions, such as an Asian Court for Human Rights, as well as to promote access to justice through strengthening the national court systems. At the international level, the individual complaint system of treaty bodies is the only effective mechanism for dispute resolution for individuals or non-state actors.
3) Mainstreaming Human Rights
The task of mainstreaming human rights has two vital aspects, with the second being oft too ignored. First, as the literal meaning of mainstreaming suggests, there is a need to ensure that human rights is seen as a distinct and primary agenda at international and national levels. The existence and work of UN High Commissioner for Human Rights (OHCHR), through its global presence, has come a long way in the last twenty years to mainstream human rights in this manner. However, a second and more vital aspect of mainstreaming implies that we need to ensure that human rights discourse seeps into the other predominant agendas such as protection of environment, promotion of free trade, economic development etc. such that human rights become a fundamental factor in decision making at all levels and on all issues. It is then that the laudable goal of OHCHR, ‘promote and protect all human rights for all’, will seem achievable in the practical sense.
In addition to the above three challenges, the future of human rights will be based on two additional contextual factors. First, there is a need for addressing the existing asymmetry of laws. By asymmetry, one must consider the difference in nature, status and enforceability of different legal regimes at international and national levels. For instance, the international trade law regime is considered to be much more advanced in comparison to the international human rights regime. This is largely attributable to the historical developments in the two regimes and there is no magical formula to equalize different regimes. However, addressing human rights effectively can take place only if its laws and institutions are equally placed with other competing legal regimes. In the absence of these, even the most stringent and effective laws and institutions will fail to deliver in the wake of more dominant legal regimes.
A second contextual concern is that even though UN organizations are not concerned with the equality among states, with regards to their human rights record, the human rights violations in a transnational context is more often than not affected by the failure of global distribution of power, wealth and resources and the subsequent failure by national governments to redistribute through remedial policies. The division of the world into nations is a hard reality but being conscious of the differences in the power of different states can help in understanding the systemic and structural nature of most human rights violations.
There is much that can be said towards each of the points made above but the idea behind this piece is to (as its title suggests) bring to debate certain simple but oft-ignored points.