Wednesday, March 10, 2021

For Hope for Human Rights, Look to Implementation

By Christian De Vos

The last decade has seen the rise of illiberal democracies and multiple withdrawals from international human rights treaties, leading some to declare the “endtimes” of human rights. Skeptics claim that the failures of states to comply with international legal obligations or to prosecute serious crimes are evidence of a movement—and an idea—in decline.

There is good reason to worry. Just over ten years ago, the Open Society Justice Initiative published the first report to comprehensively examine the degree to which states actually comply with the decisions of international and regional human rights courts. As a co-author of that report, I found the results sobering. The study concluded that an “implementation crisis” afflicted human rights systems—and consequently, too often left people that those courts were intended to protect without sufficient safeguards.

To that point, the limited power of human rights institutions to ensure compliance with their decisions is often raised as an area of particular weakness for the system at large. Given the world’s sobering realities, how effectively can courts and committees police governments who violate international and regional human rights law? But there is good reason to disagree with those who have sounded the death knell for human rights. Ten years on, a closer look reveals that there are many examples of systems—and states—working as they should to implement human rights decisions.

For instance, let’s look to the European Court of Human Rights (ECtHR), where remedies for human rights violations can take the form of financial compensation, retrials, orders to investigate, or other structural reforms. Today, there are fewer decisions imposed by the ECtHR that states have not complied with than there were ten years ago, despite an equally robust docket of cases. An improved rate of compliance from governments has likewise resulted in a significant decrease in the number of decisions needing closer follow-up—what the Committee of Ministers (CoM), the Council of Europe’s political body, calls “enhanced” review.

Council of Europe member states are also implementing ECtHR judgments more swiftly. While the number of ECtHR cases closed in under two years or less has doubled since 2011, the number of judgments that states have not complied with after five years (or more) has declined. There has also been an increase in the number of action plans and reports submitted by states in response to judgments and greater, more frequent monitoring thanks to robust engagement rom NGOs. Over the last decade, for instance, the CoM has reviewed nearly twice the number of cases that it used to.

Elsewhere, in the Americas, approximately half (68) of the 135 judgments that have been monitored by the Inter-American Court of Human Rights since 2010 have been “declared fulfilled.” This is a vast improvement from 2009, when the rate of implemented judgements stood at only 10 percent. Meanwhile, in Africa, the African Court on Human and Peoples’ Rights has taken encouraging steps to develop a new compliance monitoring framework for both the court and the African Union. The African Commission (ACHPR) has also instituted procedural rules that strengthen the role of national human rights commissions in compliance monitoring, something they did not previously do. It can also now refer instances of non-compliance to the Court and other relevant African Union organs, giving the ACHPR new enforcement teeth.

There have been strides made at the national level as well, as states have increasingly focused on developing domestic structures and/or better coordination to facilitate their human rights reporting and implementation obligations. Many have created or strengthened National Mechanisms for Reporting and Follow-up to coordinate their responses to—and dialogues with—the UN and other regional bodies.

This progress in the implementation of human rights decisions owes much to the substantial growth of civil society engagement in this field over the past decade. As findings from a recently completed multi-year research project called the Human Rights Law Implementation Project (HRLIP) suggest, litigators and advocates are increasingly incorporating implementation into their planning and litigation processes. The HRLIP also concluded, based on hundreds of interviews with state officials, judges, court personnel, lawyers, and advocates, that “implementation is most certainly occurring” and that “for a number of cases there has been more implementation than may be visible or at first appeared.” State authorities, victims, and the broad range of stakeholders at the national and international level who were interviewed by the project indicated that they still consider international justice to be a worthwhile endeavor, and one in which they are prepared to invest. This momentum has been further evidenced by the creation of new organizations like the European Implementation Network, which work to build a broader, more robust network for implementation advocacy.

This good news is highlighted in a new capstone series with contributions from scholars and practitioners, “Implementing Human Rights Decisions: Reflections, Successes and New Directions.” Launching today, the series showcases findings from HRLIP’s research as well as examples drawn from the Justice Initiative’s work with partners to implement human rights decisions in countries like Cote d’Ivoire, Kazakhstan, and Hungary. While there are no easy victories to be found, together, these stories demonstrate the value of tenacious, sustained advocacy on behalf of human rights decisions. They also remind us that implementation is not a linear process, but dynamic and iterative.

To be sure, an implementation crisis still endures; enormous challenges remain. But as we look ahead, it’s critical to recognize the progress that has been made.

Editor's note: This post first appeared on Open Society Foundation's Voices on February 17, 2021, and is cross-posted here with permission from the author.

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