October 21 2015

Closing the implementation gap in human rights

Middlesex University Senior Lecturer Dr Alice Donald, an expert on human rights, outlines a new research project that seeks to tackle the ‘Achilles heel’ of the human rights justice system.

An ‘implementation crisis’ is widely acknowledged to be afflicting regional and international human rights mechanisms, posing a threat to their integrity and legitimacy. The perceived crisis stems from the gap between the standards and obligations enshrined in regional international human rights treaties and the action – or inaction – of states to uphold them in practice.

Achilles heel

As one snapshot of this problem, around 11,000 judgments of the European Court of Human Rights are currently awaiting implementation – almost three times the number a decade ago. The worst offenders in Europe are Italy, Turkey, Russia, Ukraine, Romania, Greece, Poland, Hungary and Bulgaria. The Committee of Ministers (the inter-governmental arm of the Council of Europe that formally supervises the implementation of the Court’s judgments) laments the fact that certain cases reveal significant ‘pockets of resistance’, linked variously to entrenched social prejudice – for example, concerning Roma or other minority groups – or political considerations. In other cases, there are also technical or economic obstacles to the implementation of human rights decisions.

Another Council of Europe body, the Parliamentary Assembly, recently deplored the lack of political will of certain states to fulfil their obligations under the European Convention on Human Rights, and described the scale of non-compliance as “alarming”. The Parliamentary Assembly also called on the Committee of Ministers to do more to sanction recalcitrant states. My Middlesex University colleague Professor Philip Leach and I have echoed this call and identified weak domestic implementation as the ‘Achilles heel’ of the European human rights system.

Behind these statistics lie many cases concerning egregious abuses of human rights; take, for example, Russia’s failure to implement judgments concerning violations resulting from, or relating to, the authorities’ actions in the Northern Caucasus, mainly Chechnya, including the unjustified use of force, enforced disappearances, unacknowledged detentions, torture and ill-treatment, unlawful search and seizure and destruction of property, and failure to investigate human rights abuses or provide effective domestic remedies.

Problems of slow, partial or non-implementation of human rights decisions also affect the other long-standing regional human rights regime in the Americas, and its more recently developed counterpart in Africa, as well as the United Nations human rights system.

Unresolved debate

Against this backdrop, regional and international human rights bodies are pursuing efforts to strengthen their mechanisms for ensuring redress for victims of human rights violations and to ensure the swift and effective implementation of their decisions. This situation adds urgency to a debate which is long-established but remains unresolved: what does it mean to comply with international and regional human rights norms and decisions, and what factors influence whether states comply fully, partially or not at all?

To address these questions, Middlesex University (Professor Philip Leach and Dr Alice Donald, with research assistant Anne-Katrin Speck) has joined forces with colleagues at three other universities – Bristol, Essex and Pretoria – and the Open Society Justice Initiative to conduct a three-year research project funded by the Economic and Social Research Council.

It is hoped that the project will help narrow the implementation gap that… delays or precludes justice for the victims of human rights violations worldwide.

The project will track selected decisions and judgments of United Nations treaty monitoring bodies and regional human rights bodies against nine countries (the Czech Republic, Georgia and Turkey in Europe; Burkina Faso, Cameroon and Zambia in Africa; Canada, Colombia and Guatemala in the Americas) to determine the extent to which states have complied with them, and why.

Researchers will address a range of questions; for example, how does the nature of the body issuing the decision or judgment and its perceived reputation and legitimacy affect compliance? How do the international or regional mechanisms that monitor implementation interact with national authorities, formally and informally? And how do international human rights norms become internalised at the domestic level? In addition to desk-based research, the project will involve a series of semi-structured interviews, participant observation and workshops in each of the three regions.

Narrowing the implementation gap

Our starting point is a theoretical approach that views human rights compliance as being largely a function of domestic political bargaining and collaboration and consequently places emphasis on intra-state, rather than inter-state, relationships. Accordingly, the project will engage with a range of actors within each state: governments, parliaments, courts, civil society organisations, and, in certain cases, individual victims of human rights violations and their legal representatives.

It is anticipated that the findings of the project will contribute to a better understanding of the factors that influence compliance with decisions from UN and regional human rights bodies. This will, in turn, inform and strengthen the strategies and working practices of these bodies, as well as actors engaging with them such as litigators and complainants, state representatives and civil society organisations.

It is hoped that the project will thereby help to narrow the implementation gap that damages the reputations of human rights bodies and delays or precludes justice for the victims of human rights violations worldwide.

For further information, please contact Alice Donald.

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Tags: EU, Europe, European Commission, European Convention on Human Rights, european court of human rights, human rights, law, legal, strasbourg, UN