The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 as an expression of universally binding human rights, applicable to “all members of the human family”. Whilst the UN is made up of states, the declaration’s universality pertains to the individual. The UN Charter similarly begins “We the peoples of the United Nations”. In the UN system, whilst rights are held by the individual, the de jure state (a member of the United Nations) is required to guarantee rights against any violation for citizens within its territory or under its jurisdiction.
However, the state-based manner in which human rights are protected in the UN system is found wanting in the modern world. Whilst focusing on the state allows one to show which actor is responsible at the UN level for any violation of human rights, it often fails to directly hold the actor committing the human rights violation to account, when the applicable state cannot itself do so. This is particularly problematic when the non-state actor meets a standard of ‘effective control’ over citizens or territory, making it the de facto guarantor of human rights. The absence of domestic or international human rights mechanisms to hold de facto human rights guarantors to account presents an enforcement gap in the UN human rights system that requires addressing.
Two types of non-state actors – namely armed groups and transnational corporations – have generated the most debate. In the first case, the UN in its official reports has suggested that armed groups have direct human rights obligations. It also repeatedly cites the direct commission of grave human rights abuses by armed groups such as ISIS. Elsewhere, the vast majority of indictments by the International Criminal Court for grave human rights violations are due to actions taken by non-state armed groups. Other extra-legal mechanisms covering international humanitarian law have been pursued, such as the Secretary General’s Action Plans with armed groups.
In the second case, transnational corporations with ascendant economic power may damage states’ ability to hold them accountable for their human rights obligations (for more on this, listen to a recent episode of RightsUp on Business and Human Rights). For example, Wal-mart, had revenues of 485 billion last year; making it around the 25th largest world economy if it were a state – giving it huge economic, and thus political, influence. Whilst the UN has noted the human rights obligations of transnational corporations, these obligations have only been enforced through extra-legal mechanisms such as the UN Global Compact. NGOs are subject to similar mechanisms, as has been mentioned elsewhere on this blog. The fact remains that none of these actors have been fully incorporated into the UN Human Rights system.
However, this may be changing for other non-state actors. In 2004, the UN Human Rights Committee requested UNMIK (the UN Mission in Kosovo), to submit reports showing the human rights situation in Kosovo. The UN itself, an international organisation, was thus directly held accountable for human rights protections – although it did not sign up to the individual human rights conventions. Furthermore, the UN Convention on the Rights of Persons with Disabilities openly permits international organizations to become parties, which the European Union has done. Sub-state actors can also be treated as directly responsible for human rights protections in the UN system. In the case of Elmi vs. Australia, the Committee Against Torture treated members of the Hawiye clan in central Somalia as holding ‘effective control’, allowing them to meet the criteria for state responsibility laid out by UN legal guidelines. For international organizations and sub-state actors exercising effective control, inclusion into the UN human rights mechanisms may therefore be feasible.
The biggest remaining issue for the inclusion of other non-state actors is that of legitimacy. States have suggested that officially acknowledging non-state actors who commit grievous human rights abuses confers some form of legitimacy. Two responses are instructive here. Firstly, as Andrew Clapham notes, what is relevant is the protection of the individual, rather than the legitimacy of the responsible actor. Secondly, one may suggest that perpetually holding non-state actors accountable for human rights is superior to means of accountability presently available, including criminalization of violations at the International Criminal Court.
Two things are thus clear. Firstly, the UN system as it currently exists does not realise the universal ambitions of the UDHR in the modern world, as it does not effectively hold non-state actors who exercise ‘effective control’ accountable for human rights violations. Secondly, the UN can and should deal with this issue. The election of a new Secretary-General next year may bring this issue to the fore. It is certainly key to changing the UN from being an organization created by states for states, into one that looks to uphold the fundamental human rights of ‘we the peoples’.