Regional and Global Human Rights Policy

Abstract

There is no doubt whatsoever that from a human rights perspective, the Lisbon Treaty, which entered into force on 1 December 2009, starts promisingly: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” (Article 2, first sentence TEU). At the same time, the protection and promotion of human rights are an integral part of the catalogue of objectives of the European Union (Art. 3 TEU). The question therefore arises as to what extent the European Union is doing to protect and promote human rights both within the EU and in the EU’s external action.

5.1 Fundamental Rights Protection and EU Human Rights Policy

There is no doubt whatsoever that from a human rights perspective, the Lisbon Treaty, which entered into force on 1 December 2009, starts promisingly: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.” (Article 2, first sentence TEU). At the same time, the protection and promotion of human rights are an integral part of the catalogue of objectives of the European Union (Art. 3 TEU). The question therefore arises as to what extent the European Union is doing to protect and promote human rights both within the EU and in the EU’s external action.

5.1.1 Protection of Fundamental Rights within the EU

When addressing human rights issues within the EU, EU parlance usually refers to fundamental rights, which are enshrined in the EU’s primary and secondary law. Significantly, the European Union also gave itself a “Charter of Fundamental Rights”, which is part of the Union’s primary law. The Charter applies to all measures taken by EU institutions and is authoritative for Member States when implementing Union law. Since 2010—with the exception of 2019—the EU Commission, as the “guardian of the treaties”, has submitted an annual Report on the application of the Charter of Fundamental Rights in the EU.¹ On the one hand, the reports deal with the question of how the Charter can be become better known and used more comprehensively; in 2020, the European Commission presented a new “strategy to strengthen the application of the Charter of Fundamental Rights in the EU” specifically for this purpose. On the other hand, problems are also addressed, such as disinformation and hate speech, racism and discrimination, or violations of rule of law principles and EU asylum regulations in the Member States. The 2021 report focused on the protection of fundamental freedoms in the digital age, the 2022 report on the crucial role of civil society organisations and rights defenders.

Furthermore, the Rule of Law Reports, which the European Commission has been producing annually since 2020, illustrate in 27 country chapters not only positive but also negative developments in the EU Member States with regard to the justice system, the anti-corruption framework, media pluralism and freedom as well as institutional issues related to checks and balances.² Indeed, within the EU, the “rule of law has come under pressure” (Kovács and Scheppele 2021). The situation in Hungary is particularly worrying. There, the elected Fidesz government of Victor Orbán controls not only the political institutions, but now also the judiciary and the media³ and restricts civil society’s room for manoeuvre by means of its NGO legislation. “Hungary’s autocratisation is becoming more and more entrenched,” the country report of the Bertelsmann Transformation Index of 2022 accurately states.⁴ At the same time, the state of Polish democracy has deteriorated (at least until the elections of 2013). “Serious concerns persist related to the independence of the Polish judiciary”,⁵ and further restrictions on the media and civil society have been introduced.⁶

Within the EU, the European Commission, as “guardian of the treaties”, relies primarily on dialogue with governments, but it also has legal levers at its disposal to react to violations of the EU’s fundamental values. Legal action has just been taken against Hungary and Poland. The European Commission has initiated various infringement proceedings against both states (under Article 258 of the Treaty on the Functioning of the European Union) concerning, among other things, restrictions on the independence of the judiciary, violations of the fundamental rights of LGBTIQ+ persons and the criminalisation of refugee aid workers. In some cases, the proceedings resulted in rulings by the European Court of Justice (ECJ).⁷

Only in exceptional cases is the procedure under Art. 7 of the Treaty on European Union (TEU) for the protection of the values of the EU envisaged, which provides for a suspension of the voting rights of the member state as the most severe sanction. The European Commission first initiated such a procedure against Poland in December 2017,⁸ which the European Parliament approved in March 2018.⁹ Against Hungary, the initiative came from the Parliament itself in September 2018.¹⁰ While the motion itself has great symbolic significance, a suspension of voting rights can only be decided by the Council by qualified majority if it—on the proposal of one third of the Member States or the European Commission and after approval by the European Parliament—has previously unanimously determined that there is a serious and persistent breach (and not only a corresponding threat) (Art. 7 para. 2, para. 3). The veto power of Poland and Hungary alone makes this unlikely (at least until 2023), as both states have pledged mutual support.

However, with the new rule of law mechanism (conditionality regulation),¹¹ which came into force in 2021, the EU now has the possibility to cut funds from the EU budget to Member States if they deviate from the principles of the rule of law when using them. After the ECJ rejected complaints by Poland and Hungary against the mechanism in February 2022, the European Commission activated the new rule of law mechanism against Hungary for the first time in April 2022. But even in the face of the threat of withholding or cutting EU budget funds, only superficial corrections have been made there so far. The will to undertake comprehensive reforms is clearly not present in the Hungarian government of Víctor Orban.

With regard to the surveying of discrimination, racism and hate crime within the European Union, the annual reports and other publications of the European Union Agency for Fundamental Rights (FRA) are particularly informative. The independent Fundamental Rights Agency, founded in 2007 and based in Vienna, aims to provide expert advice to the Union and its Member States on the implementation of Union law on fundamental rights issues and to raise awareness among policymakers and the public of the above-mentioned problems in particular. The Fundamental Rights Report 2023 of the Fundamental Rights Agency also deals with fundamental rights implications for the EU of the war in Ukraine.¹² The Fundamental Rights Agency formulates recommendations on all of these problems in the form of FRA Opinions.

5.1.2 Human Rights in the EU’s External Action

5.1.2.1 The Legal and Programmatic Framework

The “actual” human rights policy, designated as such in EU parlance, concerns the EU’s policy towards “third countries” and international organisations such as the United Nations. The EU’s human rights commitment in its external action is an integral part of the Treaty of the European Union:

The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. (Article 21(1), first sentence, TEU).

With the first adoption of an explicit EU Human Rights Strategy (2012) and the subsequent Human Rights and Democracy Action Plans (2012–2014, 2015–2019, and 2020–2024) adopted by the Council,¹³ human rights in EU external relations were given a strategic operational framework. They also acquired an institutional face with the establishment of the office of a “European Union Special Representative for Human Rights” (2012), attached to the European External Action Service (EEAS).

In the Strategic Framework for Human Rights and Democracy of 2012, the EU commits itself to the protection and promotion of civil, political, economic, social and cultural human rights and identifies the promotion of human rights as an overarching cross-cutting policy that affects all of the EU’s external action: “The EU will promote human rights in all areas of its external action without exception”, it states. Thus, the promotion of human rights is also to be integrated into the areas of trade, investment, technology, telecommunications, internet, energy, environment, corporate responsibility and development policy. The same applies to the Common Defence and Security Policy, to external dimensions of both employment and social policy, and to the area of “freedom, security and justice”, including the fight against terrorism. In development cooperation, the EU is explicitly committed to a human rights-based approach. The first Action Plan on Human Rights and Democracy (2012–2014), building on the Strategic Framework, included a large number of specific actions by the Council of the European Union and its EEAS, the European Commission and EU Member States.

The second Action Plan (2015–2019), which was also ambitious, included 34 actions and related measures. These included support for local institutions (e.g. national human rights institutes, electoral authorities, parliaments, judicial bodies and anti-corruption authorities) and the strengthening and protection of civil society organisations and human rights defenders. It was also planned to promote individual human rights norms and principles (such as freedom of expression, protection of privacy, freedom from discrimination, etc.) as well as the human rights integration of the business sector. A comprehensive human rights approach was also to be applied in conflict and crisis situations. In addition, measures were mentioned to promote human rights policy coherence and consistency in the areas of migration, human trafficking and asylum policy, trade and investment policy, counterterrorism, development cooperation and in impact assessments of the European Commission on proposals in external relations. Measures were also mentioned to strengthen effectiveness and results orientation, for example in human rights dialogues, country-specific human rights strategies, the implementation of EU human rights guidelines, election observation and with regard to the interlinking of EU strategies, instruments and funding.

The third Action Plan, which is systematically structured in a slightly different way, contains overarching priorities and objectives of EU human rights policy for the years 2020 to 2024 to be adopted at the national, regional and multilateral level, and identifies five work priorities to be implemented in operational terms locally in partner countries: (1) protecting and empowering individuals; (2) building resilient, inclusive and democratic societies; (3) promoting a global system of human rights and democracy; (4) harnessing the opportunities and addressing the challenges of new technologies; (5) delivering by working together. The focal points were underpinned by numerous sub-objectives and in turn comprise a broad bundle of measures that form the basis for a programmatically ambitious EU foreign policy on human rights. Among other things, the promotion of measures to combat the effects of climate change and the loss of biodiversity as well as a separate focus on the human rights approach to new technologies, one of the “most important areas of action of the new Action Plan” (Council of the European Union 2021, p. 4), were re-addressed.

5.1.2.2 The EU Human Rights Policy Instrument Tool

The EU has a wide range of policies, instruments and measures at its disposal to protect and promote human rights in line with its noble objectives (Table 5.1).

Table 5.1 EU instruments in foreign human rights policy

The Human Rights Guidelines, which have been successively adopted since the 2000s (and have since been partly revised), set out the priorities of the EU and EU Member States in promoting and protecting human rights in third countries. They serve as guidelines for the implementation of human rights foreign policy on the ground. To date, there are 13 guidelines on the following topics: children and armed conflict; human rights defenders; violence against women and girls and combating all forms of discrimination against them; promoting compliance with international humanitarian law; EU policy towards third countries on torture and other cruel, inhuman and degrading treatment or punishment; the promotion and protection of freedom of religion or belief; to promote and protect the enjoyment of all human rights by LGBTI persons; the death penalty; freedom of expression online and offline; the promotion and the protection of the rights of the child; non-discrimination in external action; safe drinking water and sanitation; on human rights dialogues with partner/third countries.

In addition, there are country strategies on human rights and democracy, which the EU delegations and (in part) the embassies of the EU Member States prepare on the ground, if necessary. The country strategies set out the strategic priorities for the EU’s approach to human rights and democracy, define short- and medium-term policy objectives vis-à-vis the respective third countries and specify concrete measures to implement them. A total of 128 country strategies existed for the period 2016 to 2020. They were intended to ensure coherent, strategic action on the part of the EU and EU Member States and served to prepare for high-level state visits and political dialogues in particular.

Human rights dialogues are a frequently used and central instrument of the EU’s external human rights policy. Apart from the fact that EU delegations (can) raise human rights in the general political dialogues with third countries and regional groups (e.g. ASEAN, African Union), the EU again holds dedicated human rights dialogues and consultations with about 40 states. These serve to exchange information and opinions on human rights issues and aim to promote and improve the protection of human rights in the respective countries and regions. Sometimes they are also used to coordinate behaviour in UN human rights bodies. Ideally, consultations with civil society groups in Brussels or in the respective country are also held before and after the human rights dialogues. In addition, regular exchanges with civil society organisations and human rights defenders are an important aspect of European human rights policy.

The Global Europe Human Rights and Democracy Programme, launched in December 2021, is a comprehensive funding instrument with a budget of €1.5 billion for the period 2021 to 2027. This programme is “the EU’s flagship tool for action to advance human rights and democracy”.¹⁴ It steps up EU support in promoting and protecting human rights and fundamental freedoms, democracy, the rule of law as well as the work of civil society organisations and human rights defenders around the world. The programme thus follows on seamlessly from its predecessor, the European Instrument for Democracy and Human Rights, which had a budget of 1.3 billion euros from 2014 to 2020. Accordingly, it continues to place a specific focus on civil society support.

The EU Human Rights Defenders Mechanism is a key priority of the programme. The Mechanism is managed by ProtectDefenders.eu, a consortium of 12 human rights NGOs and can finance a wide range of measures, including legal representation, medical costs and protection measures. According to official information, between 2015 and 2022, the EU Human Rights Defenders Mechanism has supported over 55,000 human rights defenders and their family members at risk in over 120 countries thanks to EU funding of €35 million during its first two phases. In the new phase, the Mechanism also includes the EU Emergency Fund for Human Rights Defenders at Risk, which, managed by the Commission in close cooperation with the European External Action Service, has supported around 1600 human rights defenders and their families in 100 countries with emergency grants since 2014.¹⁵

With regard to participation in UN human rights bodies, the Council is responsible for defining the EU’s priorities for action. To this end, it adopts annual conclusions setting priorities for work in UN bodies. They are intended to enable the EU and the EU Member States to advance common concerns there or to become active collaboratively.

The EU’s strongest instrument is sanctions. The EU may adopt “restrictive measures”, as they are called in EU jargon, either as its own measures (autonomous sanctions) and/or as a way of implementing UN Security Council resolutions, in cases where non-EU countries, natural or legal persons, groups or non-state entities do not respect international law or human rights or pursue policies or actions that do not abide by the rule of law or democratic principles. The EU may impose a range of gradual sanctions on third countries, including diplomatic sanctions (expulsion of diplomats, suspension of official visits, suspension of bilateral or multilateral cooperation with the EU, and boycotts of sporting or cultural events), and economic and financial sanctions (arms embargoes on military goods included in the EU Common Military List; restrictions on imports and exports of goods with both civilian and military uses). Restrictive measures also include the freezing of funds and economic resources owned or controlled by targeted individuals or entities, visa or travel bans preventing individuals from entering the EU, sectoral measures prohibiting, for example, the import or export of certain goods or technologies.¹⁶

5.1.2.3 Implementation of EU Human Rights Policy

The extent to which the strategic framework has been adhered to and the Action Plans have been and are being effectively implemented must be examined in each case. The self-perception is very positive: according to official statements, the first Action Plan (2012–2014) strengthened the mainstreaming of human rights issues in all EU external relations policies and implementation measures.¹⁷ The Action Plan also facilitated the development of tools and resources for the formulation and implementation of more coherent policies, namely: the establishment of a Council Working Group on Human Rights (COHOM); the adoption of detailed EU guidelines on key human rights issues; the creation of a toolkit for a rights-based approach to development policy; the adoption of local human rights strategies in cooperation with EU delegations and EU member state embassies on the ground; the establishment of human rights focal points in EU delegations; and a streamlined training programme for EU diplomats from EU Member States. The annual planning of EU strategies in UN human rights bodies, first and foremost in the UN Human Rights Council, as well as increased cooperation with civil society are also important in the sense of effective multilateralism. Consultation with civil society organisations, for example in the run-up to human rights dialogues, has become common practice as a result of the Action Plan. In short, there is now

a solid basis for the EU’s continued efforts to give greater emphasis to respect for human rights and support for democratic transition processes worldwide, bilaterally, in cooperation with other regional organisations and multilaterally, in particular within the framework of the United Nations.¹⁸

While the Mid-Term Review published in 2017 already gave a positive overall assessment of the implementation of the second Action Plan,¹⁹ the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy also emphasised at the presentation of the Action Plan 2020–2024 that much had been achieved in the meantime. The strategic framework, the Action Plans, the appointment of a Special Representative for Human Rights, among others, had enabled the EU to better coordinate its engagement in and with third countries, to make it more active, visible and effective, and to strengthen its engagement at the multilateral level. In a changing geopolitical landscape, the EU remained steadfastly at the forefront of the defence of human rights and democracy.²⁰ The Annual Reports on Human Rights and Democracy in the World, prepared by the High Representative of the Union for Foreign Affairs and Security Policy and approved by the Council, also report on progress made in implementing the Action Plans.²¹ As impressive as the conglomerate of measures taken is in these reports, nothing critical is mentioned. This is more likely to be found in the annual reports of the European Parliament (EP).²²

In the corresponding report for 2022,²³ for example, the European Parliament strongly encourages the Union “to strive for a continued ambitious commitment to make the protection of human rights a central part of all EU policies in a streamlined manner and to enhance the consistency between the EU’s internal and external policies in this field” (para. 2). The 2020–2024 EU Action Plan on Human Rights and Democracy should be “in the centre of all EU external policies” and Member States should make it their own and report on actions taken. In a number of areas, Parliament calls on the EU and its Member States to step up their efforts and set a good example, for example when opposing the global democratic decline (para. 8) or in the protection of human rights defenders through EU delegations and their human rights “focal points” (para 27). The criticism is particularly clear when the European Parliament

recalls the obligations states have to protect refugees and respect their rights in accordance with the relevant international law; deplores the number of migrant deaths occurring along migration routes and illegal pushbacks in violation of international law; recalls that the EU and its Member States, in their external and extraterritorial acions, agreements and cooperation in the areas of migration, borders and asylum, should respect and protect human rights (para 92).

This points to the problem of coherence.

Ultimately, a particularly great challenge lies in the establishment of a coherent EU human rights policy. The problem of coherence encompasses several dimensions. Firstly, there is the question of how the active demand for and promotion of human rights in the EU’s external action relates to human rights violations at the EU’s borders and within the EU (internal-external consistency) (Bendel 2018; Bendel 2022). The continuing human rights tragedy of thousands and thousands of drowned refugees in the Mediterranean, the obstruction of sea rescue, pushbacks at the EU’s external borders and the sometimes inhumane reception conditions for asylum seekers in EU Member States counteract(ed) the EU’s human rights aspirations in its external action and are at the expense of the credibility of the EU’s human rights policy. Whether the latest reform of the Common European Asylum System, which is to be adopted before the European elections in 2024, will benefit the EU’s credibility in terms of human rights is doubtful. Credibility problems also arise as a result of discrimination against minorities in Europe, racist and xenophobic violence or insufficient protection of ESC rights in times of economic crisis, to name but a few examples. Likewise, the aforementioned authoritarian tendencies and deficits in the rule of law, as can be seen above all in Hungary, tarnish the image of a democratic community of values committed to human rights.

Secondly, the problem of coherence concerns the question of the extent to which human rights policy is presented as coherent in external action (external-external consistency). Various sub-questions can be formulated here: (a) Does the EU treat human rights violations equally? Or are human rights problems assessed and criticised differently depending on the state, whether allied or not? (b) Do the EU’s various policy areas form a coherent unit with regard to human rights? Or do the human rights implications of EU policies in other policy areas, for example in agricultural, fisheries and trade policy, counteract human rights policy in the narrow sense. European foreign (economic) policy offers a broad field for critical analyses from a human rights perspective. Finally, the third question is whether the various EU institutions and the individual EU Member States contradict each other or “pull together” when they speak out about human rights and human rights violations in a state (internal-internal consistency).

5.2 The Council of Europe—Guardian of Human Rights?

The Council of Europe (CoE), with its seat in Strasbourg, was founded in 1949 as the first European organisation of states after the Second World War by originally ten states. Following the exclusion of Russia in March 2022, the Council of Europe currently has 46 Member States, which—with the exception of Belarus and now Russia—comprise all the states of Europe, including the Caucasus. The primary objectives of the Council of Europe include the protection of human rights, pluralist democracy and the rule of law. Countries joining the Council of Europe undertake to recognise the principles of the rule of law and the primacy of human rights and fundamental freedoms.

On its website, the Council of Europe describes itself as “Europe’s leading human rights organisation”. This self-image is expressed in a number of international agreements on the protection of human rights. First and foremost is the European Convention on Human Rights (ECHR, 1950, in force since 1953), which has been ratified by all Council of Europe Member States and which has been supplemented by 16 protocols that have entered into force to date. However, a number of other agreements are also committed to the protection and promotion of human rights, with a more or less large number of signatory states: The European Social Charter in its original (1961/1965) and revised (1996/1999) versions, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987/1989), the Convention on Action against Trafficking in Human Beings (2005/2008), the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007/2010) and the Convention on Preventing and Combating Violence against Women and Domestic Violence (2011/2014). The latter has become known as the “Istanbul Convention” and gained particular media attention in 2021 when Turkey withdrew from the Convention. In addition, there are agreements on the national protection of minorities.

5.2.1 Judicial Human Rights Protection

The ECHR is at the heart of European human rights protection, and the European Court of Human Rights (ECtHR) is the central body for the protection of the rights enshrined therein. States Parties can turn to the Court in the form of inter-state applications for any alleged violation of the ECHR, although this rarely happens.²⁴ Far more important is the judicial protection of individual rights: any person subject to the jurisdiction of a State Party who is (or believes to be) affected by a violation of the rights enshrined in the ECHR may, if national legal recourse is exhausted (or obstructed), lodge a complaint against the state concerned with the ECtHR. The ECtHR examines whether the conduct of the respondent state was compatible with the ECHR, finds a violation of the rights guaranteed therein, if any, and may award damages to the complainant(s).

The ECtHR’s judgments are binding and must be implemented by the states concerned. However, the ECtHR cannot overturn or amend any judgements or laws passed in the Member States. It is up to the respective state—beyond the payment of any compensation—to take measures to end the violation of the Convention and to avoid similar violations in the future. The Committee of Ministers of the Council of Europe (see below) monitors the implementation of the judgement and decides (at the level of representatives) at regular human rights meetings whether the measures taken are sufficient to implement the judgement or whether improvements are necessary.

The number of complaints is very large. At its peak in 2011, 151,600 complaints were pending before the ECtHR. After the entry into force—long blocked by Russia—of Protocol No. 14 to the ECHR, which allows for a more efficient handling of cases, the number of unresolved complaints decreased, but still stood at 74,647 on 31st December 2022, with an upward trend again since 2017; most of them concerned Turkey, the (now exited) Russian Federation, Ukraine and Romania. In 2022 alone, around 45,500 new applications allocated to a judicial formation were accepted, while “only” 39,570 complaints were ended in the same period. Of these, 35,402 were dismissed as inadmissible or struck out²⁵ and 4181 complaints were decided (sometimes jointly) by judgments of the Court.²⁶ The rights most frequently addressed in the judgments of 2022 were the right to liberty and security, the prohibition of inhuman or degrading treatment, the right to an effective remedy and the right to fair trial. Most of the judgments in 2022 concerned Russia, Ukraine and Turkey.²⁷

Despite being chronically overburdened, the ECtHR is of great importance for judicial human rights protection at the regional level. The ECtHR has contributed significantly to the “consolidation” of the understanding of at least civil and political human rights within the countries of the Council of Europe. With the help of the doctrine of the “margin of appreciation”, it has found a way to harmonise human rights standards while at the same time taking into account the specificities of national legal systems by granting states a certain, but also not unlimited, margin of appreciation in interpreting the law (Sicilianos 2021). Beyond the individual cases dealt with, the ECtHR rulings have in part also led to far-reaching changes in laws, regulations and procedures in the Member States. The annual “major advances” can be found in the corresponding annual reports of the Committee of Ministers.²⁸

The ECtHR also adapted its interpretation of the ECHR, which is now over 70 years old, to changing social conditions. In doing so, the Court not only continually re-evaluated the limits of state interference in human rights, but also repeatedly redefined the active measures that states must take to protect the rights enshrined in the ECHR. With the help of a dynamic interpretation of the Convention, current problems are also addressed, for example with regard to new information and communication technologies or environmental issues.²⁹ This became clear in 2020 when the ECtHR allowed a climate complaint by Portuguese children and young people against 33 countries.³⁰ The ECtHR also dealt with the Covid 19 pandemic.³¹ However, as the ECHR and its protocols do not contain economic and social human rights, with the exception of the rights to property and education, these rights cannot usually be brought directly before the ECtHR, but usually only indirectly,³² for example, through the rights to life and the protection of private and family life (such as in relation to health),³³ or through the right to a fair trial and the prohibition of discrimination.

Despite a high level of implementation of ECtHR rulings, the judicial protection of individual rights has also reached its political limits. As important as it is that the ECtHR is also called upon by people from countries in which they do not enjoy adequate human rights protection, judicial protection of individual rights—which is particularly lengthy—can only improve the human rights situation in countries in which human rights are systematically violated to a limited extent. This is all the more true since it is not certain that even rulings on “leading cases” will be implemented quickly and effectively, although they are subject to increased monitoring. Corresponding structural and complex problems concern, for example, the functioning of the judicial and criminal justice systems (excessive length of judicial proceedings, delayed enforcement or non-enforcement of domestic judicial decisions etc.), the independence and impartiality of the judicial system, the excessive use of force and ill-treatment by security forces and ineffective investigations, poor conditions of detention as well as restrictions on political rights, such as the right to free elections, freedom of expression, freedom of assembly and freedom of association.³⁴ Above all, a large number of interim injunctions and judgements of the ECtHR, which unsuccessfully demanded the release of opposition members or media workers in Azerbaijan, Turkey and Russia, show that the ECtHR is only able to counter authoritarian practices in its Member States to a limited extent.

5.2.2 Extrajudicial Human Rights Protection

While violations of the ECHR can be brought before the ECtHR, this does not apply to the other human rights conventions of the Council of Europe mentioned above. Although these conventions are also binding under international law for the respective signatory states, their implementation is “merely” monitored by expert committees, for example within the framework of state reporting procedures (or in the case of the Revised European Social Charter, insofar as accepted by the states, also within the framework of collective complaints). While the resulting reports or recommendations indicate in many respects a need for human rights policy action in the States Parties, it depends on the political will of governments to initiate appropriate measures. The same applies to other human rights-specific institutions such as the European Commission against Racism and Intolerance (ECRI), established in 1993 to counter racism, xenophobia and anti-Semitism, and the Office of the Commissioner for Human Rights of the Council of Europe, created in 1999, which is primarily active in raising awareness, educating and advising.

However, the political protection of human rights is primarily carried out by the general organs of the Council of Europe, first and foremost by the Committee of Ministers, which is made up of the foreign ministers of the Member States and their permanent representatives in Strasbourg, who carry out the Committee’s day-to-day work. The Committee of Ministers is assisted in an advisory capacity by various steering committees, including one on human rights. The Committee of Ministers takes final decisions on all treaty texts, adopts non-binding recommendations and monitors the implementation of ECtHR judgments. Outside the monitoring mechanisms of the human rights treaties, it also monitors compliance with Council of Europe norms and standards, especially in the areas of democracy, human rights and the rule of law, through country-specific or thematic monitoring procedures. The monitoring activities serve to uncover shortcomings in the implementation and enforcement of the norms and standards of the Council of Europe and to support the elimination of these shortcomings in political dialogue. However, states do not have to fear serious consequences in the event of violations, even if sanctions can be imposed as a last resort; these range from the temporary suspension of a state’s right of representation to its expulsion from the Council of Europe, as happened for the first time on 16th March 2022 in the case of Russia as a result of the war of aggression against Ukraine.

Together with the Committee of Ministers, the Parliamentary Assembly, consisting of members of the national parliaments of the Member States, is supposed to act as the “democratic conscience of Europe” and strive to protect the fundamental values of the Council of Europe and monitor compliance with the obligations entered into by the Member States. The Parliamentary Assembly, which meets several times a year, adopts resolutions and makes recommendations to the Committee of Ministers and the governments of the Member States on a wide range of issues, especially in the field of human rights.³⁵ The self-assessment on its website is self-confident: “In its 60-plus years of existence, PACE’s role as a ‘human rights watchdog’, a motor of ideas and a forum for debate has triggered positive change, defused conflict, and helped to steer the continent towards an ever-evolving set of shared values.³⁶

Among its successes are the contribution of the Parliamentary Assembly to the abolition of the death penalty in Europe, initiatives for the adoption of Council of Europe treaties and its importance as a discussion forum on controversial political and social issues, as well as Europe-wide campaigns (against the imprisonment of underage migrants, domestic violence, sexual child abuse) and some “hard hitting reports” (CIA secret prisons, trafficking in human rights bodies, etc.).

However, human rights criticism can also be undermined politically. To cite just one drastic example, in January 2013, the majority of the Parliamentary Assembly rejected a resolution calling for the release of political prisoners in Azerbaijan. The draft resolution was based on a report on political prisoners there, prepared by the German rapporteur Christoph Strässer, who was appointed specifically for this purpose. Here, as on other occasions, the efforts of the autocrat Ilham Aliyev to prevent criticism of human rights and to polish up the image of the regime by means of generous donations were effective. The “caviar diplomacy” also caught on with several (also German) MPs in the years to follow.³⁷

Russia’s war of aggression against Ukraine posed a major challenge to the Council of Europe but did not shake it to its foundations. At the Summit of Heads of State and Government in May 2023 (only the fourth in the Council of Europe’s history), they came together “to stand united against Russia’s war of aggression against Ukraine and to give further priority and direction to the Council of Europe’s work”.³⁸ Combined with a clear commitment to the sovereignty, independence and territorial integrity of the CoE Member States, Russia was called upon to withdraw its troops not only from Ukraine, but also from Georgia and Moldova. In addition, an “Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine” was established by resolution CM/Res(2023)3.

5.3 The “Human Dimension” of the OSCE

The Organisation for Security and Co-operation in Europe (OSCE) comprises 57 Member States, including all the states of Europe and the former Soviet Union as well as the USA and Canada. Mongolia was the latest member to join the OSCE in 2012. The OSCE emerged on 1st January 1995 from the Conference on Security and Co-operation in Europe (CSCE), which had already been established in 1975 on the basis of the Helsinki Final Act. The Final Act created a multilateral forum between the then military blocs in East and West in the midst of the Cold War. In it, originally 35 states committed themselves to political principles for dealing with each other and with their citizens and professed a comprehensive understanding of security which, in addition to political-military aspects, also included economic and ecological cooperation and—in return for the recognition of existing borders and the principle of non-interference in internal affairs—the rule of law and human rights. Civil rights movements then arose in the communist countries that invoked the Helsinki Act.

The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion. They will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development.³⁹

Against the background of the upheavals in Central and Eastern Europe from the end of the 1980s, the promotion of democracy and human rights gained considerable importance. Significant for human rights was the outcome document (1989) of the Third Helsinki Follow-up Conference in Vienna, as it introduced the concept of the “human dimension”. It includes political commitments concerning human rights, rights of national minorities, democracy and the rule of law, and humanitarian issues. The Charter of Paris for a New Europe (1990) then ushered in a “new era of democracy, peace and unity”, identifying the protection and promotion of human rights as the primary duty of governments and making a clear commitment to democracy and elections as an expression of the will of the people. The Final Document of the Moscow Conference (1991) explicitly recognised the human dimension as an international concern and abandoned the principle of non-interference in this regard:

The participating States categorically and irrevocably declare that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating States and do not belong exclusively to the internal affairs of the State concerned.⁴⁰ (Moscow 1991).

In the course of the institutionalisation of the CSCE/OSCE, which progressed in the 1990s, the Human Dimensions Commitments were updated (OSCE and ODIHR 2023a, 2023b) and the thematic fields and areas of work of the Human Dimension expanded. The growing importance of the Human Dimension, however, also sparked criticism, especially from the Russian government. Its support for the OSCE diminished noticeably in the course of the 1990s when it became clear that the OSCE could not be developed into a counterweight to NATO and at the same time Russia’s supremacy and interests in Eastern Europe and the states of the former Soviet Union were threatened by the political change supported by the OSCE. Together with other successor states of the Soviet Union, Russia criticised the focus of the field missions in the Balkans and on the territory of the former Soviet Union and the strong emphasis on the “human dimension”. Serious differences of opinion were manifested not least in the observation of human rights and electoral standards, which—contrary to the spirit of the 1991 Moscow Declaration—were again seen as interference in internal affairs.

At the last summit of heads of state and government in Astana (2010)—despite the reaffirmation of OSCE principles in the final document—the different views on the content and strategic orientation of the OSCE between East and West became clear. After the annexation of Crimea (2014), the Russian war of aggression against Ukraine (2022) ushered in the much-cited security policy turning point, to which the OSCE must also react. The OSCE is and remains primarily an intergovernmental forum for political dialogue between the participating states—in the Ministerial Council, the Permanent Council and the OSCE Parliamentary Assembly.

With regard to human rights, the activities of the Office for Democratic Institutions and Human Rights (ODIHR), which was established in 1991 as the lead institution for the implementation of the OSCE’s Human Dimension, are particularly noteworthy. The ODIHR is is mandated to assist OSCE participating States to

ensure full respect for human rights and fundamental freedoms, to abide by the rule of law, to promote principles of democracy and, in this regard, to build, strengthen and protect democratic institutions, as well as promote tolerance throughout society.⁴¹

To this end, ODIHR—often together with the OSCE Parliamentary Assembly—monitors elections on a large scale; promotes democratic governance and the rule of law, especially in an advisory capacity; conducts training programmes in the area of human rights; supports human rights defenders; assists in the fight against hate crimes; promotes freedom of religion and belief; and maintains its own contact point for Sinti and Roma.

Other specific human rights institutions are the Office of a High Commissioner on National Minorities (since 1992) and the Representative on Freedom of the Media (since 1997). In addition, there are the field missions as a core element of the OSCE’s crisis and conflict management, which ideally make a practical contribution to human rights protection in the conflict societies of the region undergoing transformation. Although the specific mandates and tasks vary, the missions ultimately aim to promote human and minority rights as well as the establishment of democratic structures and the rule of law. Of particular importance are the expert missions that were deployed to investigate the human rights and humanitarian impacts of the Russian war of aggression in Ukraine. The reports documented serious human rights violations and war crimes.⁴²

5.4 Regional Human Rights Protection in Other Regions of the World

This introduction is largely limited to European and global human rights protection, which does not mean that regional human rights protection in other regions of the world is of secondary importance. It is of great importance for the concretisation of human rights in the respective regional contexts (which, however, are themselves quite heterogeneous).

The Inter-American human rights system⁴³ is particularly well developed within the framework of the Organisation of American States (OAS), to which 35 states of North, Central and South America and the Caribbean belong.⁴⁴ In addition to the American Declaration of the Rights and Duties of Man (1948), by which all OAS states are bound, there are various human rights conventions that are binding on the—almost without exception Latin American⁴⁵—signatory states.⁴⁶ Central to these is the American Convention on Human Rights (AMRC, from 1965/in force since 1969) with its additional protocols on ESC rights (1988/1999) and on the abolition of the death penalty (1990/1991). In addition, there are Inter-American Human Rights Conventions on the Prevention and Punishment of Torture (1985/1999), Combating Violence against Women (1994/1995), against the “Disappearance” of People (1994/1996), against Discrimination against People with Disabilities (1999/2001) and on the Promotion and Protection of the Human Rights of Older Persons (2015/2016).

Institutionally significant are above all the Inter-American Commission on Human Rights, which has complaint, reporting and investigation procedures at its disposal, as well as the Inter-American Court of Human Rights with dispute resolution and advisory powers, to which, however, not all States Parties to the AMRC have submitted. Both have promoted a progressive interpretation of human rights, for example in relation to forced disappearances, indigenous rights, sexual self-determination, a comprehensive understanding of the right to life (viva digna) and, related to this, social human rights and the protection of the right to a healthy environment and the rights of nature.⁴⁷ While the norms, institutions and procedures of the Inter-American Human Rights System cannot really curb everyday human rights violations in the region (see Krennerich 2019), they are of great value as reference points for the work of national and transnational human rights organisations resisting oppression and hardship. Thus, civil society groups use the now well-developed institutions and procedures of national, regional and global human rights protection to demand the respect, protection and guarantee of human rights.

In Africa, the idea of human rights is closely linked to the struggle against colonialism and apartheid, but only received its own basis in international law within the framework of the (Organisation of the) African Union with the African Charter on Human and Peoples’ Rights (Banjul Charter of 1981/1986). The Banjul Charter and its additional protocols—on the recognition of the African Court on Human and Peoples' Rights (1998/2004) and on women’s rights (Maputo Protocol, 2003/2005)—as well as the African Charter on the Rights of the Child are the central regional human rights agreements. The African Commission on Human and Peoples' Rights, the African Court on Human and Peoples' Rights and the African Committee of Experts on the Rights and Welfare of the Child in turn form the institutional framework of regional human rights protection.⁴⁸

The most important procedure here is individual complaints; these are dealt with by the Commission and—in cases of systematic and serious human rights violations or non-implementation of provisional measures or recommendations of the Commission—can be referred to the Court, provided that the states have submitted to its jurisdiction. (Only a few states allow individuals and NGOs to appeal directly to the Court). However, African human rights institutions, some of which have progressive adjudication practices, receive little support from African governments. This is clearly visible in the low implementation of the Commission’s recommendations and the insufficient recognition of the Court. Civil society organisations, however, are interested in regional human rights protection. Examples of this are women’s organisations, which campaigned for the Maputo Protocol, or the many NGOs that have observer status with the Commission. An African Court Coalition is also active in support of the Court.

The normative-institutional development of regional human rights protection in Asia is rudimentary. In the Arab region, the Arab Charter on Human Rights, the revised version of which entered into force in 2008, is of little practical significance. In South (East) Asia, there are isolated sub-regional initiatives and activities, especially on the part of the Association of Southeast Asian Nations (ASEAN).⁴⁹ Most significant are the ASEAN Intergovernmental Commission on Human Rights, established in 2009—which admittedly consists mostly of government representatives, remains committed to the principle of non-interference and has remained silent on the most serious human rights crimes (Bui 2016; Hanung and Judhistari 2019)—and the ASEAN Declaration on Human Rights of 2012 (Clarke 2012; Renshaw 2013). While the Inter-American and African human rights declarations and treaties are consistent with or complementary to the international UN human rights treaties, despite some cultural specificities, the Asian human rights documents have some problematic provisions.⁵⁰ At the same time, governments try to control the human rights discourse.

However, “rights talk cannot be put in a box” (Langlois 2021, p. 153). In interaction with national human rights institutions (Goméz and Ramcharan 2020), civil society organisations in the region sometimes function “as watchdog and critical observer, sometimes norm socializer, and also creator of alternative human rights discursive positions” (Manea 2015, p. 73), especially as global human rights protection also comes into play in Asia (Sundrijo 2021). The Universal Declaration of Human Rights is also developing its customary international law influence there, and Asian states are bound by those global UN human rights treaties that they have ratified. However, there is an urgent need for greater civil society engagement on the part of a number of Asian states in the context of the UN Human Rights Council’s Universal Review process (Goméz and Ramcharan 2017).

5.5 Human Rights Protection within the Framework of the United Nations

International human rights protection within the framework of the United Nations is based on the UN Charter of 1945. In addition to the reference to human rights in the preamble, the UN Charter states that one of the objectives of the United Nations is to promote and consolidate respect for human rights without discrimination through international cooperation (Art. 1 para. 3). To achieve this goal, the UN Charter obliges all Member States to cooperate with the United Nations (Art. 55 and 56). However, one looks in vain for concrete provisions—or even a catalogue of human rights—in the UN Charter. Such a catalogue is only to be found in the Universal Declaration of Human Rights of 1948 and the international human rights conventions based on it, which were elaborated, adopted and ratified by a more or less large number of states within the framework of the United Nations (Table 5.2).

Table 5.2 Core UN human rights conventions

5.5.1 Range of Institutions

Anyone dealing with human rights in the United Nations today can easily lose track of the many UN institutions that now directly or indirectly protect and promote human rights.⁵¹ However, not all of them belong to the UN human rights system in the narrower sense, which is based on two pillars:

The first pillar comprises the UN charter-based human rights bodies, first and foremost the UN Human Rights Council, which functions as a subsidiary body of the UN General Assembly and is accountable to it. In 2006, the Human Rights Council replaced the Commission on Human Rights, which had previously existed for 60 years and was still subordinate to the Economic and Social Council. Together with the UN General Assembly, the UN Human Rights Council is the authoritative political body for human rights protection in the United Nations. It is also where the Universal Periodic Review (UPR), which was introduced in 2006 and to which all states have so far submitted, takes place. In addition, the Human Rights Council utilises commissions of inquiry and, as “special procedures”, independent thematic and country-specific special rapporteurs and working groups on human rights. The office of the UN High Commissioner for Human Rights (since 1993) is also of great importance. The High Commissioner’s Office is part of the United Nations Secretariat.

The second pillar consists of the treaty-based human rights treaty bodies. These include all those independent committees of experts that monitor the implementation of individual human rights treaties. They are easy to recognise: With the exception of the Human Rights Committee (CCPR), which monitors the International Covenant on Civil and Political Rights (ICCPR), the committees have the same names as the treaties: The Committee on the Elimination of Racial Discrimination (CERD) monitors the Convention on the Elimation of All Forms of Racial Discrimination (CERD), the Committee on the Rights of the Child (CRC) monitors the Convention on the Rights of the Child (CRC), and so on. The relevant committees are generally part of the treaty text and are created by the treaties themselves. The only exception is the UN Committee on Economic, Social and Cultural Rights, which was only established at a later date.

The UN human rights system in the narrower sense does not include all those main bodies (such as the Security Council), subsidiary bodies (such as the ad hoc criminal tribunals on the former Yugoslavia and Rwanda), special organisations (ILO, FAO, UNESCO, WHO, etc.) and programmes (e.g. UNDP, Habitat, UN Women) which deal with human rights on a case-by-case basis within the scope of their competences. For example, the International Labour Organization (ILO) deals in particular with the rights to work and social security, and (in substance or explicitly) the Food and Agriculture Organization (FAO) works on the right to food, the United Nations Educational, Scientific and Cultural Organization (UNESCO), among others, on the right to education and the World Health Organization (WHO) on the right to health. The UN Security Council is also of particular importance, as it is the only UN institution that can ultimately decide on coercive measures. While the two (now dissolved) ad hoc criminal tribunals in and on Rwanda and the former Yugoslavia were established by the UN Security Council, the International Criminal Court (ICC), established in 2002, is itself an autonomous institution based on the Rome Statute of 1998. It is not an organ of the United Nations, although cooperation with the UN in the prosecution of human rights criminals is regulated by treaty.

This introduction is not intended to and cannot cover the institutional diversity of the UN human rights system in detail; this has already been done in other publications (one of many: Mégret and Alston 2020). The website of the Office of the High Commissioner (www.ohchr.org) also provides a comprehensive and detailed documentation of all activities of the charter- and treaty-based UN human rights bodies. But let us take a closer look at at least a few selected institutions.

5.5.2 The Human Rights Council

The Human Rights Council (HRC) replaced the former Commission on Human Rights in 2006.⁵² On the basis of an institutional upgrading and various procedural reforms, the HRC was intended to give human rights protection within the United Nations greater significance and a new dynamic and to overcome the weaknesses of the former Commision. It is true that the Commision on Human Rights had great historical merits, especially in the area of standard-setting. The introduction of special procedures and the opportunities for dialogue between representatives of governments and civil society were strengths that could be built upon. However, the credibility and professionalism of the Commission were ultimately low due to its politicisation, selectivity and low level of effectiveness. According to then UN Secretary-General Kofi Annan, the Human Rights Council should now usher in a “new era”. According to the predefined goals,⁵³ the new HRC should, among other things, promote the implementation of state human rights obligations; prevent human rights violations through dialogue and cooperation; respond promptly to human rights crises; make recommendations for the protection and promotion of human rights. What was new, however, was above all that all UN Member States were now subject to regular review within the framework of the Universal Periodic Review (UPR) procedure. In order to be able to describe, examine and evaluate the HRC and its work, the above-mentioned website of the High Commissioner’s Office is an extremely helpful source of information, in addition to numerous publications.⁵⁴ Its subpage on the HRC⁵⁵ documents its regular and special sessions. It also lists the commissions of enquiry and fact-finding commissions set up by the HRC, as well as the thematic and country-specific special reports of the HRC, which are to be distinguished from these. Comprehensive information on the UPR procedure and the work of the Advisory Committee can also be found. HRC meetings are also broadcast live and archived on UN WebTV.

Reports from thinktanks as well as NGOs and NGO networks that monitor, track and comment on the work of the HRC are also informative. One example is the thinktank Universal Rights Group, which operates a “UN Human Rights Resolution Portal” and an “HRC Voting Portal”. The NGO International Service for Human Rights runs, among others, a Human Rights Council Monitor. In Germany, the monitoring of the HRC by the NGO network Forum Menschenrechte is exemplary. Its reports on the sessions of the HRC, which are openly accessible on the forum’s website⁵⁶ and have up to now been prepared by Theodor Rathgeber (from 2006 to 2018) and Silke Voß-Kyeck (since 2019), provide a subjective but extremely knowledgeable insight into the work of the HRC. In addition to the many routine meetings, they report on confrontational debates and contentious resolutions, on tactical manoeuvres, questionable compromises and blockades, but also on unexpected successes and substantial statements, reports, resolutions and discussions. In the process, they also always identify states that are trying to promote human rights protection or to thwart it.

In the following, four aspects are singled out that repeatedly give rise to discussion and are of importance for the evaluation of the HRC. They concern (a) the composition and, related to this, (b) the politicisation of the HRC, (c) the addressing of urgent human rights problems, and (d) the participation of civil society actors.

5.5.2.1 Composition of the Human Rights Council: A Place for “Bad Guys”?

From the beginning, the composition of the HRC has been a point of criticism and has repeatedly given rise to reform proposals. At first glance, there seems to be nothing wrong with the election of members: the 47 Member States of the HRC are each elected for 3 years by secret ballot with an absolute majority of the UN General Assembly, with one third of the members being renewed each year. Immediate re-election is possible, after which the country must pause for at least 1 year for rotation reasons before it can be re-elected. To ensure appropriate geographical distribution, similar to the former Commission on Human Rights, regional groups each provide a fixed number of members (Africa 13, Asia/Pacific 13, Latin America/Caribbean 8, Eastern Europe 6, Western and other countries 7). As of January 2024, a total of 124 of the 193 UN Member States had been members of the HRC at least once.⁵⁷ Among the most frequently elected members of the Human Rights Council are e.g. Argentina, Brazil, China, Cuba, Germany, India, Indonesia, Japan, Mexico, Pakistan, Qatar, Saudi Arabia, South Korea and the United Kingdom.⁵⁸ Member States should actually meet the highest human rights standards and cooperate fully with the UNHRC, and the election should take into account their past contributions to human rights protection and the voluntary pledges and commitments they made in their candidature.⁵⁹

The first problem is that there is no real election. The respective regional groups usually only nominate as many candidates as there are seats to be allocated (“clean slates”).⁶⁰ The main problem, however, is that states with a poor or even disastrous human rights record are also nominated as candidates and—with a few exceptions⁶¹—have so far also been “elected” by the UN General Assembly. Although highly repressive regimes are in the minority there, overall, those states that are classified as “not free” or “partly free” in terms of civil and political rights by Freedom House, for example, usually made up the (slim) majority in the HRC.⁶² So far, their share was highest in 2023 with 70%.

In 2022, China, Cuba, Russia (until 7th April) and Venezuela were also members of the Human Rights Council, along with several other autocracies (including Eritrea for the second time). Their open obstructionism towards multilateral human rights protection weakens the argument for an inclusive HRC, which is supposed to serve as a forum to exchange views on human rights across political and cultural boundaries, and diminishes the credibility of the HRC. While it is important that the HRC not only consists of like-minded states, but also provides the opportunity for active engagement with those governments that are indifferent to, or sceptical and hostile towards human rights—especially if their conduct meets with resistance in the HRC—the fundamental dilemma remains: The election of notorious human rights violators is, to use an idiomatic expression, “to put the fox in charge of the henhouse”.

An important difference to the former Commision on Human Rights is that the UN General Assembly can, with a two-thirds majority, suspend the membership rights of a member state of the Human Rights Council if it is guilty of serious and systematic human rights violations. The first time such a temporary suspension was imposed was on Libya during the final phase of Gaddafi’s rule on 1st March 2011 (until 18th November 2011). A second time, the UN General Assembly suspended Russia’s membership of the HRC on 7th April 2022 (with 93 votes in favour, 24 abstentions and 58 against).

5.5.2.2 Politicisation: Unavoidable?

A body consisting of political representatives of states is inevitably political. The question is, however, whether the political debates primarily relate to human rights or are overlaid by other political interests. As is to be expected given the composition of the HRC, the global conflict between democracies and autocracies, which has become more heated again, is currently also reflected in the HRC. The accusation of politicisation and partisanship is not only put forward by democratically governed states. It is also part of the standard rhetorical repertoire of declared autocrats who like to accuse “the West” of double standards. Despite all routine, consensus-seeking and dialogue-orientation, some debates in the HRC are therefore politically charged and take place in a tense, heated atmosphere.

Political perennial issue is also the fixed agenda item 7 of the regular sessions of the HRC. It deals with the “human rights situation in Palestine and other occupied Arab territories”. This means that Israel, unlike all other countries, comes up in every HRC session and is regularly criticised there, especially by Islamic states, for human rights violations. The disproportionately frequent preoccupation with and massive criticism of Israel provided the US administration under President Donald Trump with the occasion and justification to withdraw from the HRC in 2018—the first country to do so voluntarily. The then UN Ambassador Nikki Haley and the then US Secretary of State Mike Pompeo justified the move at the time with the anti-Israeli orientation of the HRC, with its resistance to reform and with the HRC membership of states whose governments were responsible for the most serious human rights violations. It was only under US President Joe Biden that the USA returned to the HRC, initially as an observer, before being elected as a member for another term in 2022.

Controversial human rights issues in the interregional discourse continue to include, to name but a few examples, racism and Islamophobia, gender issues and sexual orientation, as well as traditional values and the protection of the family. The impact of colonialism, international economic and financial policy or sanctions on human rights are also contentious issues, as is the treatment of a critical civil society and human rights defenders. Here, too, criticism and countercriticism often follow foreign policy interests, political alliances and common enemy images of governments from very different regions of the world. At the same time, the approval and rejection of resolutions in the HRC are more or less strongly influenced by the affiliation to the regional groups. In order to reduce politicisation, it is therefore also important to overcome block mentality and to cooperate with other states on human rights issues beyond the regional groups. This is possible on a wide range of issues.

5.5.2.3 Addressing Pressing Human Rights Issues

Despite all the diplomatic manoeuvres and routines, sessions of the HRC do offer opportunities to put pressing human rights issues on the agenda and to explore them in greater depth. This can be done in special sessions or in regular sessions of the HRC, for example in urgent debates or as a result of reports by the UN High Commissioner for Human Rights and Special Rapporteurs. The possibility of openly naming human rights violations and problems in individual states, adopting critical country resolutions and mandating investigations into individual countries is also offered by the fixed agenda item 4 of the regular sessions, which was only placed there after tough negotiations; it deals with the human rights situation in all parts of the world that require attention by the HRC.

Since the first session of the HRC in July 2006, a total of 36 special sessions have been held up to and including May 2023, which can be convened with the votes of one third of the HRC members. They concerned the human rights situation, for example, in Iran, Ukraine (as a result of the Russian aggression), Ethiopia, Afghanistan, several times in Sudan, the Occupied Palestinian Territory (includig East Jerusalem), Myanmar and Syria, as well as in South Sudan, Burundi, Iraq, the Central African Republic, Libya and Sri Lanka, and in Côte d'Ivoire, Haiti and Lebanon (as a result of Israeli military operations). Very occasionally, there were also issue-centred special sessions.⁶³

In addition, seven emergency debates were held during the regular sessions until the 53rd session of the UN Human Rights Council in July 2023, which require a simple majority in the HRC for votes to be held.⁶⁴ In part, they addressed the same country situations as the special sessions. For example, an emergency debate on the human rights situation in Ukraine as a result of the Russian aggression was held during the 49th session of the UNHRC in March 2022, with China, Cuba, Eritrea, Russia and Venezuela voting against. In other cases, other country-specific situations came up that gave rise to contentious political debates. One example: the emergency session on Belarus in September 2020, which had been requested as a result of serious human rights violations and ongoing mass protests following the presidential elections there, offered everything that makes the work of the HRC necessary and unpleasant in equal measure, according to Voß-Kyeck:

After the statements by the UN Deputy High Commissioner for Human Rights, Nada Al-Nashif, and the Special Rapporteur on Belarus, Anäis Marin, the Belarusian opposition politician Svetlana Tikhanovskaya and the activist Ekatarina Novikana, who took part online, were allowed to speak. Not only were the speeches interrupted and subject to unsuccessful attempts to cut them short by numerous amendment applications, first and foremost by Belarus and Russia, but also by China and Venezuela. In the ensuing debate, substantial references to serious human rights violations were also dismissed by the government of Belarus as unproven and unjustified, and accusations against security forces were countered with accusations against allegedly violent demonstrators. Demands for an independent investigations into events were contrasted with insistence on state sovereignty and non-interference and offers of cooperation and dialogue contrasted with criticism directed against the EU, for example by Russia, of the alleged politicisation of the HRC by a group of “aggressive states”.⁶⁵

The standard for addressing urgent human rights problems continues to be the 36 fact-finding commissions on individual countries that the Human Rights Council has set up to date with corresponding resolutions, either in regular or special sessions.⁶⁶ The commissions of inquiry, which have been established or extended until September 2023 and have not yet been concluded, concern violations of human rights and, where applicable, of international humanitarian law in Iran, Nicaragua, Ukraine (as a result of the Russian aggression), Ethiopia, the Occupied Palestinian territory, including East Jerusalem, and Israel, Libya, Venezuela, Myanmar, the Democratic Republic of the Congo and South Sudan. The country mandate on Yemen, on the other hand, was not renewed in 2021—despite the ongoing humanitarian and human rights emergency. Saudi Arabia, supported by Bahrain and Egypt, lobbied hard to prevent an extension of the mandate. At the same time, the establishment of a commission of inquiry does not guarantee that the states concerned will cooperate. The Ortega regime in Nicaragua, for example, completely refuses to cooperate.

With regard to the many of the 1372 other resolutions that the Human Rights Council had adopted by its 50th session by June 2022,⁶⁷ it is interesting to see which topics and countries they deal with, how openly human rights problems are enumerated and what the voting behaviour of the states is like.⁶⁸ There have never been critical resolutions on several countries, such as China and the USA, despite obvious, albeit different, human rights problems. In the 51st session in October 2022, for example, China succeeded in ensuring that a resolution calling for the situation in Xinjiang to be addressed at the next Human Rights Council session was rejected by a narrow majority. However, there were critical resolutions on a number of other countries. Some resolutions clearly state human rights problems, others are visibly “watered down” in the search for consensus. Many resolutions are adopted by consensus, others only by simple majority. Some country resolutions are highly contentious,⁶⁹ others, such as those on technical cooperation with individual countries, are politically less controversial.

No less revealing are the debates and amendments that precede resolutions, as well as the compromises that are made in the run-up to resolutions (see also Voss 2019). In the search for consensus or majorities, many a progressive or problematic draft resolution is watered down. Even if no resolutions are passed, state representatives may issue joint statements on the human rights situation in individual countries, which in turn often elicit opposing opinions.⁷⁰ It is then revealing who is criticised in the statements, why and in what way, and how many and which states support the statements.

Thematic resolutions can also be controversial. To take just one of many problem areas as an example: resolutions on women’s rights, gender, sexual and reproductive rights regularly trigger criticism from conservative governments (Jordaan 2016; Voss 2018). Or as Joel Voss (2018) describes it:

To say that resolutions related to sexual orientation and gender identity are highly contested would be an understatement. The 2011 resolution, which first introduced SOGI to the Council, featured an orchestrated walkout by members of the Organization for Islamic Cooperation, while the 2014 resolution faced seven ‘hostile’ amendments; the purpose of which was to make the resolutions devoid of any meaning.

It is also interesting to see to what extent resolutions address newly emerging issues (e.g. Covid 19, digitalisation, climate justice) (which does happen) and how states position themselves on them. Resolutions that recognise human rights that have not yet been codified, or that have hardly been codified, are significant for the further development of human rights protection. For the recognition of the human right to water and sanitation, for example, the resolutions regularly introduced and adopted by Germany and Spain in the HRC were important. They reaffirm a UN General Assembly resolution of 28 July 2010, which called on the international community to intensify its efforts to provide all people with access to clean water and sanitation. A current example is the resolution on the “right to a safe, clean, healthy and sustainable environment”, which was adopted without dissenting votes on 2nd October 2021 in the 48th session of the HRC. At the same time, it is important to prevent resolution initiatives that seek to weaken or reverse established human rights standards, such as those repeatedly pushed by the Chinese government.⁷¹

Overall, it can be said that the HRC does address current and urgent human rights issues in its sessions. Nevertheless, there are a number of “gaps”. The selection of topics and the way they are discussed and dealt with is determined both by procedural routines and by diplomatic manoeuvres of the individual states and regional groups in their search for consensus or allies. Efforts to strengthen human rights protection are always countered by efforts to fend off criticism and formulate countercriticism. Different ideas of human rights and state human rights obligations are also put forward.

5.5.2.4 Participation of NGOs

A key feature of the HRC (as of the Commission on Human Rights before it) is the participation of NGOs.⁷² “There is no other body within the UN system or in other organisations where the space granted to civil society is as important” (Tistounet 2020, p. 140). Although only NGOs with consultative status in the UN Economic and Social Council⁷³ can be accredited as “observers” of HRC meetings,⁷⁴ their number doubled from 407 to 874 between 2006 and 2018 (Tistounet 2020, p. 140). At the same time, they are allowed to do far more than only observe proceedings (with the exception of the confidential complaints mechanism). Accredited NGOs may make written and oral submissions before and during HRC sessions, participate in debates, interactive dialogues, panel discussions and informal meetings, and organise side events. The number of such side events alone increased from 87 to 590 between 2006 and 2018 (Tistounet 2020, p. 140). During the virtual or hybrid sessions held because of the Corona pandemic in 2020 and 2021, the usual formal and informal exchanges in Geneva were impaired, but the online statements opened up new opportunities for NGOs and stakeholders to bring their experiences and concerns to the HRC.

However, the participation of civil society organisations that criticise human rights is a thorn in the side of some governments. Not only are critical statements by NGOs and affected persons repeatedly interrupted, disrupted or prevented by points of order (as in the above-mentioned emergency session on Belarus). There is also repression of civil society actors (and their families). These include bans on leaving the country or detention to prevent travel to Geneva; photographing and filming people in Geneva; defamation and hate messages; intimidation and threats; or reprisals after returning from Geneva (Tistounet 2020, pp. 145–146).

The previous Commission on Human Rights had already urged governments to refrain from any obstruction, intimidation and reprisals against private individuals (and their families) who cooperate with UN human rights institutions. Rather, they should effectively protect them.⁷⁵ The Human Rights Council followed up on this. In 2009, it adopted Resolution 12/2, on the basis of which the Secretary General has submitted annual reports on relevant incidents since 2010.⁷⁶ In the report for the period from 1st May 2021 to 30th April 2022 alone, corresponding cases of repression were named in almost 40 states.⁷⁷ In resolutions on “Cooperation with the United Nations, its representatives and mechanisms in the field of human rights”, the Human Rights Council regularly condemns such practices.

Despite all the reprisals, one of the strengths of the HRC, including the UPR and the special procedures (which we will discuss later), is that a lively human rights scene has emerged around the HRC in which those affected by human rights violations and their supporters can voice their concerns. At the same time, civil society organisations ideally help to ensure that the recommendations adopted in Geneva find their way into the (human rights) political discourse in the respective countries and, where possible, use them for their human rights work on the ground.

5.5.2.5 Universal Periodic Review

The most important innovation that accompanied the establishment of the HRC is the Universal Periodic Review (UPR).⁷⁸ With the UPR, a procedure of mutual universal review was established: From this time on, all 193 UN Member States were to have themselves reviewed periodically⁷⁹ on the basis of objective and reliable information to determine the extent to which they fulfil their human rights obligations. The procedure is explicitly based on cooperation and dialogue, with the full participation of the state under review and taking into account its capacity needs.⁸⁰ The UPR is therefore not conducted against the state under review, but in cooperation with it and in reliance on its participation. In doing so, states are encouraged to cooperate and interact. The overarching goal is to contribute to a tangible improvement of the human rights situation in the respective state for the people there. To this end, human rights problems are identified, and the states make recommendations on how to overcome them. In brief, the UPR procedure is as follows:

(a) In preparation for the review, the state concerned prepares a state report of no more than 20 pages—ideally as part of a national consultation process. The UN High Commissioner submits two further documents: a compilation of the recommendations and opinions of special rapporteurs, human rights treaty bodies or other UN institutions on the state under review of up to ten pages (UN compilation); a summary of information, opinions and parallel reports submitted by stakeholders, including national human rights institutes and NGOs, of up to ten pages (stakeholder summary).

(b) The actual review initially takes place outside the regular session in a UPR working group of the HRC, in which the 47 HRC members are represented, but in which all other UN Member States can also participate as “observer states” and have the right to speak. In an “interactive dialogue” lasting up to three and a half hours, the state representatives comment on the human rights situation in the state under review with the help of the above-mentioned documents, ask questions and make recommendations. A “troika”, consisting of three HRC Member States from different regional groups, acts as facilitator and rapporteur.⁸¹ Their preliminary report on the interactive dialogue and the recommendations made there, together with the statement of the state under review (on the recommendations), is then dealt with in the next regular plenary session of the HRC. By this time at the latest, the state under review must have declared which recommendations it supports, i.e. accepts, and which it only takes note of, i.e. in fact rejects. During the final deliberations in the regular session, the reviewed state and the member and observer states have their say again. However, their respective speaking time is very short. In addition, NGOs can now also make short oral statements, which, however, are not included in the final report.

(c) After the review in Geneva, the state concerned should implement the recommendations it has accepted. However, there are hardly any provisions on to how the implementation and its follow-up are to be carried out. The manner in which the follow-up is organised is thus left to the respective states. Ideally, the states conduct national consultations on the implementation of the recommendations and prepare an interim report on a voluntary basis. Often, however, the follow-up is completely inadequate. The next regular review then refers to the implementation of the recommendations and the development of the human rights situation in the state concerned.

One strength of the UPR procedure is that all UN Member States, including political heavyweights such as the USA and China, undergo a human rights review before the eyes of the international community of states. In particular, this counteracts the much-criticised selectivity in the treatment of country situations.⁸² In fact, no state has so far fundamentally withdrawn from the UPR, even if, for example, Israel’s non-participation was only just prevented during the second review cycle (Charlesworth and Larking 2014, p. 15) and later, in the 38th regular session of the HRC (June/July 2018)—coinciding with the withdrawal of the USA from the HRC—the Israeli state representation boycotted the adoption of the UPR report on its own state.

In any case, there are major differences in the extent to which states cooperate in their own review and are willing to be self-critical. They also differ in the extent to which they engage in the review of other states within and outside their regional groups and also address substantive problems. Despite serious human rights violations, it sometimes remains a case of friendly states “patting each other on the back” and harmless recommendations, especially (but not only) among autocracies. While some contributions in Charlesworth and Larking (2014) point to rituals and ritualism in the UPR, Milewicz and Goodin (2018) see evidence that the UPR initiates a deliberative process on the promotion of human rights worldwide and even consider the procedure as a model for international organisations to strengthen the deliberative capacity of the international system. However, this assessment is overly favourable.

The final reports of the UPR show which recommendations the governments of the states under review accept from which states or only take note of. Terman and Voeten (2018) highlighted that while governments are more lenient towards their strategic partners in the UPR process, the criticism is more likely to be accepted by them. They call this “relational politics of shame” between states. Etone (2020) also found in the case of African states that recommendations from their “own” regional group were most likely to be accepted. The question as to the reasons why certain recommendations are made and accepted by governments offers researchers a broad quantitative and qualitative field of investigation that also offers links to theoretical concepts.

To give just one example: Andrea Cofelice (2017) showed for the study period 2008 to 2014 that the Italian government presented itself as human rights-friendly in Geneva, for instance by making recommendations on which Italy itself performed well at the multilateral and national level. Cofelice attributed these efforts to gain international legitimacy in a constructivist sense to social pressure to conform in the multilateral forum, and in a liberal-institutionalist sense also to the implementation of other liberal goals in foreign policy.⁸³ At home, however, where this pressure to conform would have been felt far less, the main concern had been to keep the political and material costs of the recommendations as low as possible. Here, the author uses Putnam’s metaphor of the Two-Level Game (without, however, bothering with its deeper mechanism of action).

As far as the quality of the recommendations is concerned, it should be noted that many of the recommendations made and adopted are general in nature. However, the recommendations are potentially most effective if they are formulated precisely, contain concrete, verifiable measures and can be used within the countries to actively lobby governments. It is therefore essential that national human rights institutions and, above all, NGOs and NGO networks embrace the UPR process and, as far as possible, become involved in all phases of the UPR, i.e. in the preparation, implementation and follow-up:

(a) In the preparation of the UPR, they can participate in government consultations and point out critical points and gaps in the preparation of the State Report. Or they can send their own statements and reports to the UN High Commissioner, which are then included in the stakeholder summary.⁸⁴ This is also possible for NGOs without consultative status with ECOSOC and without accreditation for the meetings of the HRC.

(b) Before the review in Geneva, NGOs can provide the state representatives there with targeted information on the states under review. Side events and pre-sessions also serve this purpose. The NGO “UPR-Info”, for example, has been conducting pre-sessions since 2012, at which national human rights institutes and civil society organisations report on the human rights situation in the states under review and the representatives of other states can obtain first-hand information.⁸⁵ Furthermore, their own governments can be lobbied and pressured to adopt recommendations. Finally, oral statements can be made by accredited NGOs when the final report is adopted by the HRC.

(c) In the national implementation of the recommendations, national human rights institutes and civil society organisations are ideally also involved in national consultations, accompany and/or monitor the implementation of the recommendations and provide information on problems and progress.

The fundamental question is therefore to what extent the UPR is used by civil society organisations (and also national human rights institutes) to raise human rights concerns with the help of human rights-friendly states (cf. Parra 2017) and to improve the human rights situation in their own countries in the sense of a “boomerang effect”. The extent to which the voices of the ground are actually heard in Geneva and the UPR recommendations can later be used for local human rights work depends not least on the nature, strength and networking of civil society organisations as well as the willingness of the respective governments to involve them in the process. It is particularly problematic when—as mentioned above—NGO representatives are prevented from feeding information into the UPR process and participating in it. It is also problematic when governments—such as those of China, Cuba and Venezuela—mobilise “servile” NGOs or GONGOs that are sympathetic to them in order to introduce favourable reports into the process (McGaughey 2021, p. 48) or to fill the lists of speakers at the final deliberations of the UPR reports.

5.5.2.6 The UN Special Rapporteurs

Once described by Kofi Annan as the “crown jewels” of the UN human rights system,⁸⁶ the special procedures established by the Human Rights Council are an important instrument of charter-based human rights protection that has developed organically.⁸⁷ These are country-specific or thematic mandates held by independent experts. Based on a multi-stage selection process,⁸⁸ they are appointed by the HRC for 3 years (with the possibility of a further term); they are expected to bring with them expertise, experience in the field of the mandate, independence, impartiality, personal integrity and objectivity.⁸⁹ The gender ratio of mandate holders in 2022 was 55% female and 45% male.

As of November 2023, in addition to 14 country-specific mandates,⁹⁰ there were a further 46 thematic mandates covering a broad spectrum of content.⁹¹ The sharp increase in the number of thematic special procedures over time reflects the thematic expansion of the human rights discourse in the United Nations. If one sorts the mandates chronologically, it is noticeable that initially “classic” civil and political rights were in the foreground, then from 1998 onwards economic, social and cultural rights gained in importance, and finally the rights of individual population groups and cross-cutting issues were increasingly taken into account, some of which extend far into economic and now also ecological areas. Significantly, the 48th session of the Human Rights Council (2021) decided to establish a special procedure on “human rights and climate change”. Despite all the differences in the respective resolution texts on which the mandates are based, the special procedures have one thing in common: on the one hand, they are intended to contribute to the protection and promotion of human rights by monitoring and fact-finding, compiling examples of best practice and making recommendations. On the other hand, they can contribute to the normative development of human rights. The instruments available to them are individual case reports, country reports and thematic reports.

(a) Communications in individual cases: Within the framework of their respective mandates, the Special Rapporteurs can accept complaints (“communications”) from individuals or groups of individuals and investigate them by requesting statements or measures from the states in the form of letters of allgegation or urgent appeals. In contrast to the complaints procedures under the UN human rights treaties (see below), the national legal recourse procedure does not have to be exhausted. Due to its simplicity, the procedure is now frequently used. To illustrate the dimensions: According to a list of the UN High Commissioner’s Office, the Special Rapporteurs addressed a total of 1002 communications (concerning 2256 persons) to 149 states and 257 non-state actors (companies, organisations, etc.) in 2021—individually or mostly together with other mandate holders.⁹² They received a total of 527 responses to these (by 10th January 2022).⁹³ The number of “substantial” responses was 459.⁹⁴ A lower number is given for the following year⁹⁵: In 2022 the mandate holders sent 654 communications (concerning 934 persons) individually or jointly with other mandate holders to 138 states and 109 non-state actors. 318 responses were received to the communications sent in 2022,⁹⁶ of which 285 were classified as “substantial”.⁹⁷ Individual communications are an important part of the work of Special Rapporteurs. Heiner Bielefeldt, for example, sent a total of 254 individual communications during his term as Special Rapporteur on freedom of religion or belief between 1st August 2010 and 31st October 2016, i.e. a letter to a government or de facto authority every 9 days on average (Wiener 2023).

(b) Country reports: Not only the country-related mandate holders but also the thematic mandate holders regularly produce country reports, which are usually based on country visits.⁹⁸ These visits are—in the words of Ted Piccone (2012, p. 23)—“the most important tool in the special procedures’ toolbox”. They are particularly important for fact-finding and fact-checking. The country visits enable the Special Rapporteurs to gain a personal impression of the situation on the ground and to obtain first-hand information. However, they require an invitation from the respective governments, which can be ad hoc or on the basis of standing invitations (which must, however, also be implemented).⁹⁹ As of 31st December 2022, 128 of the 193 UN Member States have such “standing invitations” for Special Rapporteurs, and as of 31st December 2022, 172 of the 193 UN Member States have been visited at least once by Special Rapporteurs.¹⁰⁰ Of course, not all visits are the same.

Optimal conditions exist if the United Nations enjoys a good reputation in the countries; if the visits are well prepared in terms of content and organisation and are well coordinated with any UN missions locally; if the Special Rapporteurs can move freely in the country and obtain information—as provided for in the (revised) terms of reference for country visits;¹⁰¹ if the state authorities cooperate with them at various levels; if confidential discussions take place with those affected, representatives of civil society organisations and other stakeholders; if the media report appropriately on the country visit; if there is an honest dialogue with the government; if substantial and feasible recommendations are made after the visit and these are also implemented in the context of a follow-up.

It is particularly problematic, however, when governments are unwilling to cooperate despite invitations and try to manipulate and instrumentalise the Special Rapporteurs¹⁰² or do not take their recommendations seriously or reject them outright. Or even worse: when the Special Rapporteurs are obstructed or personally defamed and their dialogue partners are subjected to threats and repression. Reference is made to the annual reports of the UN Secretary General on the repression of persons who cooperate with UN bodies. There are also repeated attempts by states, such as China and Pakistan in the 42nd session of the Human Rights Council (2019), to restrict the independence and powers of Special Rapporteurs. NGOs,¹⁰³ national human rights institutions and human rights-friendly states are fighting against this.

(c) Thematic reports: In addition to their country reports, thematic Special Rapporteurs and Working Groups also produce thematic reports. Although they write them in their personal capacity as independent experts, they can make an important contribution to the understanding of the rights and issues being investigated. For example, the first Special Rapporteurs on the rights to education, housing, health and water and sanitation¹⁰⁴ have contributed a great deal to clarifying the normative content of these rights and the related state obligations through their thematic reports. Even in the case of established rights such as the right to freedom of religion or belief—as a “human right of the first hour”—many substantial clarifications and normative developments have been made.¹⁰⁵ The impact can be empirically verified if the reports are taken up by international, regional and/or national human rights institutions as well as by governments and stakeholders.¹⁰⁶

5.5.2.7 A Plea for the Human Rights Council.

Public criticism of the Human Rights Council is sometimes scathing: The UN Human Rights Council is useless and an imposition on the peoples of the world, wrote a conservative German politician in the Frankfurter Allgemeine Zeitung on 21st October 2021. She criticised the reciprocal “clean bill of health” of human rights violating states, the Israel fixation of the Human Rights Council and above all the behaviour of China and Russia, which not only regularly get away without admonishment, but with the help of their allies also accuse democratic states of obscure human rights violations. The politician recommended the consistent exposure of human rights violators. Politicised in this way, the HRC would be “broken to some extent”, but it had to be “smashed up” so that something new could be created from the broken pieces.

Whilst frustration about the HRC’s work is certainly justified, such fundamental criticism goes much to far. Here are a few key reasons why the HRC is necessary, even if it only has “non-binding powers” (Freedman 2020, p. 217) and can only act to counter human rights violations to a limited extent: (1) The HRC offers human rights-friendly states a forum to uphold human rights standards and to demand them from those states that are indifferent to human rights or violate them. In view of global human rights violations and new human rights challenges, this is of great importance. (2) Instead of just moving among like-minded states, the HRC offers the possibility of active engagement with governments that otherwise refuse to accept human rights criticism and/or try to reinterpret human rights. The questioning, reinterpretation and undermining of human rights standards can, if necessary, be countered in the HRC, provided that human rights-friendly states take a committed stance. (3) Highly repressive regimes, at least, are in the minority in the HRC and find it difficult—despite some successful efforts—to completely prevent human rights criticism. (4) In the form of commissions of inquiry and special rapporteurs, the HRC has procedures for recording and documenting the extent and severity of human rights violations. At the same time, in the UPR, all states are subject to an—albeit strongly cooperative—examination of the extent to which they fulfil their human rights obligations. (5) The procedures of the HRC open up the possibility for civil society groups to draw attention to human rights violations worldwide and to urge states to implement their human rights obligations. At the same time, they can use the resolutions and recommendations of the HRC for their human rights work at the transnational, national and local levels. (6) The HRC also offers human rights-friendly states the opportunity to critically reflect on the implementation of human rights in their own countries and to initiate improvements. (7) The HRC is at the heart of international human rights policy. Its abolition or condemnation would be like taking an axe to multilateral human rights protection. Democratic governments should therefore actively use the HRC instead of withdrawing from it. However, more courage would often be appropriate.

5.5.3 The UN Human Rights Treaty Bodies

The international human rights treaties adopted within the framework of the United Nations are the central legal source of UN human rights protection and are binding under international law on the parties that have ratified them. In their entirety, the above-mentioned nine (core) human rights treaties and their additional protocols essentially cover the hitherto established spectrum of global human rights standards.

All treaties (now) have their own monitoring bodies: the treaty bodies. These are committees of experts whose members¹⁰⁷ are usually elected by the contracting states for 4 years (staggered);¹⁰⁸ they are supposed to be persons of high moral standing and proven expertise. Although nominated and elected by the States Parties,¹⁰⁹ the experts are not intended to perform their duties as state representatives, but in their personal capacity and independently.¹¹⁰ The transparency of the elections as well as the expertise and independence of the members are thus important assessment criteria for the composition of the treaty committees. Accordingly, a non-transparent selection of candidates without adequate examination of their professional suitability is criticised,¹¹¹ as is the nomination of some diplomats and government functionaries.¹¹² Also, not all committee members are equally committed. Other official evaluation criteria are geographical distribution and gender representation. The geographical distribution of all committee members in 2023 was more or less balanced in relation to ratifications. The same was true for the gender ratio (91 women, 81 man), but only thanks to the high proportion of women in the Committee on the Elimination of Discrimination against Women (CEDAW). Women were still clearly underrepresented in the Committee on Migrant Workers (CMC), Committee against Torture (CAT), and the Committee on Economic, Social and Cultural Rights (CESCR) in 2023.¹¹³

The central task of the treaty committees is to monitor the implementation of the individual human rights conventions by the respective States Parties and to enter into dialogue with the governments about this. Several procedures are available for this purpose:

(1) The mandatory state reporting procedure is one of the main areas of the committees’ work. For each core UN human rights treaty, the parties must first submit an initial report and then periodic reports at intervals of several years on the extent to which they are fulfilling their obligations under the human rights treaties. In order to simplify the procedure, the committees now sometimes allow simplified reporting on the basis of a list of issues prior to reporting (LoIPR), which specifies topics so that a comprehensive report is not necessary.¹¹⁴ Although this practice, which is time-consuming for the committees, has not yet become fully established as a standard procedure, it could be adopted in the foreseeable future—after agreement by the committee chairs and if the appropriate resources are made available—and possibly applied for all States Parties from 2024, then in an eight-year cycle (with follow-ups on selected important issues after 4 years).

Reports received are examined by the respective committees. They also take into account additional information from UN institutions, national human rights institutes and NGOs, which may submit “parallel reports” (“shadow reports”). After a “constructive dialogue” with the delegations of the states under review, which is pre-structured by country rapporteurs and lists of issues (before or after the submission of the report), the committees then publish “concluding observations”. In these, they point out positive developments before subsequently identifying human rights problems and making recommendations. In the meantime, all committees have expanded their follow-up mechanisms for monitoring the implementation of recommendations, for example by appointing rapporteurs and calling for follow-up reports.

For the evaluation of the state reporting process, the following questions can be formulated by modifying the criteria of Kälin (2012, p. 41): (a) How punctually do the states fulfil their reporting obligations and how quickly are the reports reviewed (efficiency)? (b) How participatory and transparent is the process (participation, transparency)? (c) What is the quality of the reports, reviews and recommendations (quality)? (d) To what extent are the recommendations acknowledged and effectively implemented—and further, what is the impact on human rights protection (effectiveness)? (e) How much political and public attention is paid to the state reporting process and its results (attention)? All these questions can be examined empirically, both quantitatively and qualitatively. Here is just a brief impression:

(a) Efficiency: A basic problem of all committees is that state reports are sometimes submitted incompletely, years late or sometimes not at all. For example, in the case of CERD with its 182 States Parties, as of 8 August 2023, the reports of 47 States had been overdue for more than 10 years and those of 14 other States for more than 5 years.¹¹⁵ Such overdue reports are partly due to a lack of political commitment, but also to the lack of capacity of the states examined; in the case of many defaulting states, these are poorer countries. In order to reduce the number of overdue reports, the committees send out reminders, publish lists of defaulting states, provide technical assistance through the High Commissioner’s Office and/or sometimes allow the states concerned to submit collective or simplified reports. In exceptional cases, the examination can also take place without a state report.¹¹⁶ However, delays and backlogs also occur in the handling of the reports received by the committees - despite all the overdue reports.

(b) Participation/transparency: Civil society organisations are sometimes already in contact with the lead ministries in the run-up to the review. At the same time, depending on the procedure, they can submit written submissions on the list of issues before the report is submitted or before the country review session in Geneva. Many NGOs or NGO networks also submit parallel reports. Furthermore, NGO representatives, if they travel to Geneva, seek an exchange with committee members in preliminary talks and thus try to influence the dialogue between the committees and the state delegations. After the adoption of the Committee’s recommendations, they can use the concluding observations for their public relations and lobbying work. They also play an important role in the follow-up. It is helpful that the entire process is well documented and archived on the website, including, among other things, the state reports, the lists of issues, the information from NGOs, the composition of the state delegations, the concluding observations and any follow-up reports.

(c) Quality: The quality of state reports varies considerably depending on existing reporting capacities and political commitment. While the quality of the dialogue and recommendations is generally higher than that of the UPR process, here too there are large differences depending on countries and issues. The ideal situation is when substantive state reports are submitted in a timely manner so that they do not become outdated; when the rapporteurs and committee members have the necessary expertise and country knowledge and alternative information is available to them; when a critical review of the reports takes place that is oriented towards the rights in the treaty text and identifies implementation deficits and necessary action; when an honest discussion takes place between the committee and substantively qualified state delegations; when the review results in concrete, substantive and useful recommendations and particularly urgent points are highlighted, the implementation of which is then scrupulously reviewed in the follow-up. In order to determine the extent to which this or other procedures are followed, an analysis of the processes and the committee recommendations on individual countries (or in a country comparison) is required. There is sufficient need for research in this area.

(d) Effectiveness: This also applies to the question of the extent to which the States Parties implement the recommendations (which are non-binding under international law) in order to (better) fulfil their obligations under the human rights conventions (which are binding under international law)—and further, what effects these have. A first insight into the implementation is provided by the follow-up reports accessible on the website as well as any evaluations by the committees. In an evaluation of the reporting period from 2011 to 2016, for example, CEDAW came to the conclusion that 18% of the recommendations were implemented, 37% were partially implemented, 20% were not implemented and in the rest of the cases there was insufficient information for an evaluation (Byrnes 2020, p. 413). Ideally, indications for the implementation of recommendations already result from the state reports, which should in particular also address the implementation of recommendations from the respective previous reporting procedure.

More methodologically sophisticated is a study by Jasper Krommendijk (2015) on the recommendations of six treaty bodies concerning the Netherlands, New Zealand and Finland. He examined the effectiveness of the concluding observations (COs). He measured effectiveness by whether the COs led to changes in the respective countries (which otherwise would not have taken place). Specifically, he examined whether the COs led to new policy initiatives or to the provision of extra resources for (existing) policy measures, or: to the adoption of legislative reforms; to new topics on the political agenda; to the initiation of studies and evaluations; to the establishment of new or the strengthening of existing institutions or to the abandonment of planned policy measures. This was measured by an obvious link between COs and legislative measures, policy documents and reports; the initiation of corresponding measures shortly after the adoption of COs; the use of COs for successful lobbying of national actors. Finally, he counted the number of times the government officials interviewed who were involved in the reporting process referred to the importance of COs for actions taken. He saw COs as ineffective if they were explicitly rejected by governments or if they were consistent with policies and legislation already in place (Krommendijk 2015, p. 201).

The author concluded that most COs did not have a major impact in the three countries studied. Only in some cases did COs, together with other determinants, lead to or accelerate policy and legislative action. Nevertheless, he pointed to COs as helpful instruments that strengthened the arguments and demands of national actors advocating for policy and legislative reforms. While Krommendija suggested that the results might be transferable to other liberal Western democracies in industrialised countries, he called for research on different cases, arguing that monitoring procedures might be greatest in transition states (from autocracies to democracies) (Krommendijk 2015, p. 222).

In addition to the Krommendijk study, other possible effects should be pointed out: By participating in the state reporting procedure, the respective governments can reaffirm their commitment to the respective human rights treaty. The procedure also has a potentially important function of self-regulation. In preparing the report, the respective governments and government departments must ascertain to what extent human rights are important in their fields of work and to what extent they are respected, protected and guaranteed there. Ideally, this can trigger intra- and inter-ministerial learning effects, strengthen self-evaluation capacities and add value to progress in human rights protection. Self-monitoring is followed by external monitoring by the UN committees that review the reports. Self- and external monitoring can also be strengthened, as has already been shown, by an active civil society, which can influence the selection of human rights topics and their critical examination. At the same time, the state reporting procedures offer civil society organisations an additional opportunity for networking. This can be easily monitored through participatory observation or interviews with participants.

(e) Attention: The effectiveness of the process ultimately also depends on the political and public attention it receives, both internationally and nationally. To what extent do other UN institutions and procedures refer to it? How much attention do governments and other state institutions pay to the procedure? To what extent do national human rights institutes and civil society organisations use the recommendations in their work? To what extent do the recommendations find their way into national human rights policy discourse, and to what extent does the media pick up on the issue? Here, too, there is a great need for research. Even at first glance, however, it is apparent that the more specialised state reporting procedures (still) receive less political and media attention than the UPR. It is therefore up to governments and, in addition, national human rights institutions and civil society organisations to draw attention to the procedure, to disseminate the recommendations and to conduct a serious follow-up or critically accompany it.

(2) While the obligatory state reporting procedure focuses on the overall development in the respective states, optional individual complaints procedures are primarily designed for individual legal protection. They give individual persons and/or groups of persons¹¹⁷ the opportunity to submit a “communication”, in effect a complaint, to the respective UN committee after exhausting the domestic legal process (or if this is not available to them), if they feel that their rights under the respective convention have been violated. The matter must not have already been brought before another international complaints body. On the basis of the complaint and the written statement of the state concerned, the competent committee of experts evaluates the facts in so-called views on the communications, whereby views usually also contain recommendations. For the evaluation of the procedure, it is important (a) to what extent it can be used and is used, (b) what quality the quasi-judicial views have and (c) what their effects are.

(a) Use: It should first be pointed out that not all parties to human rights conventions have adopted the optional complaints procedures. This applies both to those conventions in which the optional adoption of complaints procedure is already regulated in the treaty text,¹¹⁸ and (and even more clearly visibly) in the case of optional additional protocols to the respective conventions. The level of ratification of the respective additional protocols is far below that of the respective human rights treaties. For example, as of October 2023, only 117 of the total 173 parties to the International Covenant on Civil and Political Rights have ratified the additional protocol that provides for a individual complaints procedure. The ratio in the case of the Convention on the Elimination of All Forms of Discrimination against Women is 115 to 189 and for the Convention on the Rights of Persons with Disabilities 104 to 186. In the case of the Convention of the Rights of the Child (50 to 196) and the International Covenenant on Economic, Social and Culture Rights (27 to 171), the ratification level of the—albeit also quite recent—additional protocols is particularly low.

Where accepted, complaints procedures are used to varying degrees depending on the convention. The ICCPR has received the most complaints to date, with a total of 4408 complaints received since the entry into force of the Optional Protocol (1976) until March 2022, of which 831 complaints were not admitted, 625 proceedings were discontinued, and violations were found in 1434 out of 1969 cases dealt with, while 983 proceedings were still not yet concluded.¹¹⁹ For the ICESR’s complaints procedure, which came into force in 2013, the jurisprudence database of the UN High Commissioner’s Office¹²⁰ shows 27 decisions on the inadmissibility of complaints and 70 decisions to discontinue complaints procedures, as well as 14 decisions on merits. At the same time, 196 complaints from 2018 to 2022 were already pending.¹²¹ It is particularly striking that the overwhelming majority of complaints come from Spain (and recently also from Italy) and concern the right to housing, especially forced evictions.¹²² The number of complaints concerning the Convention against Torture is also comparatively high, in contrast to the Convention on the Elimination of All Forms of Racial Discrimination. Overall, it can be said that the individual complaints procedure, insofar as it has been accepted by states, is definitely being used. A more or less large number of complaints are deemed inadmissible, discontinued or are still pending. Insofar as there are views, violations of the Covenant rights are repeatedly determined.

(b) Quality: With regard to the quality of the decisions, it must first be considered that they are not made by permanent panels of judges, but “only” by expert committees that meet a few times a year. Also, the appeals are not heard orally. Thus, the legal opinions are only drawn up on the basis of written documents. However, since the decisions and views are given quasi-judicial significance, they must nevertheless also stand up to legal evaluation. This is where legal scholars are needed. In the case of the young complaints procedure in respect of the IESCR, for example, Christian Tomuschat (2018) criticised the first decision-making practice and called on the CESCR to develop precise criteria in order to narrow down the circle of potential complainants in an appropriate manner. At the time, the German Institute for Human Rights came to the opposite conclusion on the basis of the 17 complaints received to date: The procedures made clear that the Committee proceeds carefully in its case assessment and applies strict review criteria (Bettzieche 2018: 8). The extent to which the complaints then also lead to legally appropriate results that are also desirable in human rights policy terms can then be examined again separately.

(c) Effect: In terms of international law, the recommendations of the UN human rights treaty bodies are not binding. However, the state concerned must take note of the Committee’s legal opinion and recommendations, should deal with them and give reasons if it does not follow them. Similar to the state report procedure, differences in the interpretation of treaty rights between the respective governments and the UN committees can come to light in the context of a complaints procedure; legal opinions are also sometimes disputed within the committees. Nevertheless, the complaints offer the possibility of reaching an agreement on questions of legal interpretation, especially since they must also discipline the respective treaty bodies to justify their “quasi-judicial” decisions in a justiciable manner. Politically, the question arises again whether the individual complaints identify systematic problems beyond the individual cases and whether the committees' legal opinions are (can be) also used to address and tackle such problems politically.

(3) For the sake of completeness, it should be mentioned that a number of human rights treaties, whether in the Optional Protocol or in the text of the treaty, either optionally or even obligatorily, provide for a state complaints procedure. Such a procedure allows States Parties to file a complaint (“communication”) against another State Party if they believe that the latter is not fulfilling its treaty obligations. In practice, the procedure did not play any role until recently. Two interstate communications were then filed with the CERD for the first time in March 2018 - by Qatar: one against Saudi Arabia, the other against the United Arab Emirates, both on the grounds of border closures and expulsions of its nationals under unilateral sanctions. In April 2018, another state complaint was filed, this time by State of Palestine v. Israel, concerning protection against racial discrimination.¹²³

(4) Six of the nine core UN human rights treaties also provide for inquiries. Adoption of these is not mandatory. Here, too, many states have not ratified the corresponding optional protocols or have taken advantage of an opt-out option in the treaty text or in the optional protocol. Where states have submitted to the procedure, the respective UN committees can conduct investigations on their own initiative, provided they receive reliable information about serious and systematic human rights violations. CAT has so far (as of August 2022) conducted such investigations into nine countries,¹²⁴ CEDAW into seven,¹²⁵ CRPD into three countries¹²⁶ and CRC into one country (Chile).¹²⁷ CED paid Mexico a visit. The CESCR has not yet conducted an investigation.

(5) A comparatively new procedure established by the Optional Protocol to the Convention against Torture is preventive measures. By means of a visit system, torture and ill-treatment of persons deprived of their liberty should be prevented instead of being sanctioned afterwards. To this end, not only was a UN Subcommittee for the Prevention of Torture established to carry out visits, but states also undertake to establish independent domestic visiting mechanisms themselves. In Germany, for example, the National Agency for the Prevention of Torture was established specifically for this purpose. Its purpose is to draw attention to any abuses identified and, if necessary, to make suggestions for improvement to the authorities concerned. In principle, such visits take place at all places where people are deprived of their liberty: from prisons, police stations, barracks and deportation detention centres to psychiatric institutions or even old people’s and nursing homes.¹²⁸ However, CAT has repeatedly criticised Germany for the inadequate staffing, financial, technical and logistical resources of the National Agency for the Prevention of Torture (Table 5.3).

Table 5.3 Monitoring procedures of the UN human rights conventions

¹²⁹

In addition to the monitoring procedures described above, the committees have also developed early warning and urgent action mechanisms with which they attempt to act preventively on human rights threats and reactively on pressing human rights problems.¹³⁰ These are used extensively in some cases.

Furthermore, the treaty bodies play an important role in the interpretation of the rights enshrined in the human rights conventions and the associated human rights obligations, primarily of the state. In addition to the concluding observations in the state report procedure and the rulings in possible complaints procedures, the general comments are of great importance. These are interpretative guidelines which, although not legally binding, lay claim to a high degree of authority. Accordingly, they are also taken up by regional human rights commissions and courts and play a major role in legal and political discourse on human rights.

5.5.4 The UN Security Council and the Human Rights

Within the United Nations, the Security Council bears the main responsibility for maintaining international peace and security. According to the UN Charter, it should, among other things, work towards the peaceful settlement of disputes that are likely to endanger international peace and security (settlement powers pursuant to Chapter VI of the UN Charter). In the event of a threat to or breach of the peace and in the event of acts of aggression (Art. 39), it can also authorise and implement non-military (Art. 41) or military (Art. 42) coercive measures (enforcement powers under Chapter VII). Finally, it should promote efforts to settle local disputes peacefully by making use of any regional agreements and institutions (regional arrangement powers under Chapter VIII). The Security Council is thus primarily an instrument of peace and security policy and not of human rights policy. Thus, it is not one of the institutions of the UN human rights protection system in the narrower sense.

Significantly, for a long time the Security Council dealt almost exclusively with interstate conflicts and, with few exceptions, not with violent conflicts and serious human rights violations within states. This only changed in the 1990s. In the following, it will explained when and how the Security Council, which is the only UN institution that can impose legally binding sanctions, has been active in the area of human rights—and how this has changed over time (see also Forsythe 2014; Stagno Ugarte and Genser 2014; Mégret 2020). But before that, a few basics should be recalled.

5.5.4.1 Structure of the Security Council

The composition and decision-making mode of the Security Council influence its work and have long been a source of criticism, especially due to its low representativeness and the disproportionately strong position of power of the five permanent members. These are China, France, the United Kingdom, Russia and the USA. In addition, there are ten non-permanent members, half of which are elected annually, with immediate re-election not possible. The current elected 10 in 2023 are Albania, Brazil, Ecuador, Gabon, Ghana, Japan, Malta, Mozambique, Switzerland and the United Arab Emirates.¹³¹ Security Council resolutions that UN Member States have committed to adopt and implement require a majority of at least nine votes, with all five permanent members voting in favour or at least abstaining (with the exception of procedural issues). The permanent 5 thus have a veto position on substantive decisions. This makes the Security Council vulnerable to politically motivated blockades. In addition, non-permanent members of the Security Council can also pursue their own political interests. Thus, it is ultimately a political issue which country situations and topics the Security Council deals with and how, and which resolutions it adopts, if any.

In the meantime, the Security Council has a variety of formats at its disposal to prepare declarations and resolutions for the purpose of maintaining peace and security that are sensitive to human rights and to obtain the relevant expertise. This can be done in open and closed debates, in briefings or in informal meetings, such as interactive dialogues or Arria-formula meetings.¹³² In addition to country situations, the Security Council can also address systemic issues across countries, such as the issue of children in armed conflict, on which it has established a separate working group. Furthermore, the Security Council can also establish commissions of inquiry by resolution. Such temporary commissions with strong human rights components have been set up to investigate serious violations of international humanitarian law and international human rights law in the former Yugoslavia, Rwanda, Sudan, the Central African Republic and Syria (investigative powers). The Security Council has also contributed to the prosecution of those responsible for war crimes, crimes against humanity and genocide by establishing ad hoc criminal tribunals for the former Yugoslavia (1993–2017) and Rwanda (1994–2015). Under the Rome Statute of the International Criminal Court, it can also request the Prosecutor of the ICC to open an investigation by referring a situation to the Court.

5.5.4.2 The UN Security Council and Human Rights in the “Cold War” Era

For many decades, as already mentioned, the Security Council rarely made substantial reference to human rights. At the end of the 1940s, in the conflict over Jammu and Kashmir between India and Pakistan, it did refer to the situation of the population there and the validity of freedom and political participation rights in the demand for a free, democratic plebiscite. However, in the 1950s, references to human rights violations (such as in relation to Algeria and Hungary) were rejected, partly with the argument that human rights and the right of peoples to self-determination did not fall within the remit of the Security Council (Stagno Ugarte and Genser 2014, pp. 8–9). In the 1960s, the Security Council at least expressed its regret and concern about the human rights violations in Congo when it reacted to the assassination of the country’s first prime minister, Patrice Lumumba, and his followers Joseph Okito and Maurice Mpolo with Resolution 161 in 1961. At the time, it authorised an immediate, independent investigation into the assassination and called on the United Nations to use all appropriate means to prevent the outbreak of civil war.¹³³

However, the resolutions on the Republic of South Africa and on Southern Rhodesia were most clearly related to human rights. In the 1960s, the Security Council passed several resolutions,¹³⁴ in which it clearly condemned the racist apartheid policy and identified the situation in South Africa as a serious disturbance of international peace and security. The Security Council called on the South African government to abolish apartheid and, among other things, to release all imprisoned opponents of apartheid and suspend the death sentences imposed on them. Other states were called upon to refrain from trading arms and ammunition with South Africa or from supplying the corresponding means of production. With Resolution 418 of 1977, the Security Council finally went beyond the voluntary arms embargo and imposed—in the sense of a non-military coercive measure based on Chapter VII of the UN Charter—a binding arms embargo on the Republic of South Africa for the first time.

Previously, the Security Council had already adopted coercive measures against Southern Rhodesia. After calling on states from 1965 onwards not to recognise the unilateral declaration of independence by the racist minority regime and to stop supplying arms and oil to the regime,¹³⁵ in 1966—acting explicitly on the basis of Art. 39 and Art. 41 of Chapter VII of the UN Charter—it designated the situation in Southern Rhodesia as a threat to international peace and security and imposed an economic embargo,¹³⁶ which was reaffirmed in 1968. Resolution 253 of 1968 made very clear reference to human rights violations. In it, the Security Council condemned both the inhumane executions and all other forms of political repression that violated the fundamental rights of the population to freedom and self-determination.¹³⁷

However, military coercive measures that would have been authorised by the Security Council on the basis of human rights violations under Chapter VII of the UN Charter did not occur during the “Cold War”. This only changed in the 1990s. As a result of the end of the East-West conflict, not only did the number of peacekeeping missions with human rights implications increase in leaps and bounds, but the chances of imposing economic and military sanctions in the Security Council on humanitarian grounds also increased. At the same time, global conflict shifted more to internal conflicts, and civil wars, human rights crimes and humanitarian catastrophes received greater attention worldwide. In the 1990s, the discussion about “humanitarian interventions” gained momentum, further fuelled by television images and reports of human tragedies in various parts of the world.

5.5.4.3 “Humanitarian Interventions”

A humanitarian intervention is a military intervention in the territory of a state to protect people who are in a humanitarian emergency, provided that the affected state is not able or willing to offer these people protection. While the traditional understanding of the term focused primarily on interventions by individual or several states, there was greater awareness of military interventions authorised by the Security Council on humanitarian grounds. The legal basis for such humanitarian interventions (in the broad sense) is provided by the collective security measures of Chapter VII of the UN Charter. Two conditions must exist for this: (1) The human rights violations or the humanitarian emergency within a state must be assessed by the Security Council as a breach of or threat to international peace (determination of the threat to peace according to Art. 39 of the UN Charter). (2) The Security Council must decide on the use of military means on the basis of Art. 42 of the UN Charter because it considers peaceful sanctions to be inadequate and, taking into account the legal principle of proportionality, military sanctions to be appropriate to preserve or restore peace and international security.

Under changed global political conditions, several such humanitarian (military) interventions took place from the 1990s onwards. The first of these was the “Kurdish Resolution” 688 of 1991, which assessed the consequences of the oppression of the Iraqi civilian population in the form of a cross-border flow of refugees as a threat to peace and international security, combined with an appeal to Member States and aid organisations to provide emergency humanitarian aid. In an extensive interpretation of this resolution, which was not without problems under international law, the USA and its allies not only militarily secured the delivery of aid to the Kurds, but later also established no-fly zones in northern and southern Iraq.

The Somalia Resolution 794 of 1992 went a step further. At the time, there was famine in the failing state, which was exacerbated considerably due to the violent obstruction of urgently needed aid supplies by parties to the conflict there. In the resolution, the Security Council considered the resulting human tragedy to be a threat to peace, not because of its cross-border effects, but already because of its scale. Authorised by the Security Council, an international contingent of troops (UNITAF) landed in Somalia to militarily establish a safe environment for humanitarian aid. This was the first clear humanitarian intervention on behalf of the United Nations. It was framed by peacekeeping operations by UN blue helmets that preceded (UNOSOM 1) and followed it (UNOSOM 2) respectively.

After that, the Security Council authorised military coercive measures in humanitarian precarious conflict situations on several occasions. Resolutions to this effect authorised military interventions, for example, in Haiti in 1994 by a US-led multilateral force, in Rwanda in 1994 (after the genocide) by a French intervention group, and in East Timor in 1999 under Australian military leadership. The NATO air strikes against Bosnian Serb positions in 1995 also fall under this category. Furthermore, numerous “robust” mandates of UN peacekeeping forces were agreed on. Until the war in Kosovo (1999), the threat or use of force for humanitarian purposes was always based on a Security Council resolution, even if the concrete interpretation of such resolutions was often disputed among the members of the Security Council and a corresponding mandate was sometimes only issued afterwards, as in the case of the intervention of West African peacekeeping forces in Liberia (1990) and Sierra Leone (1997/98).

NATO’s air strikes against Serbia in the Kosovo war (1999) were for the first time completely devoid of any such resolution that could be interpreted as a mandate or authorisation for military intervention. The trigger was—despite media-effective reports on massacres and mass expulsions in Kosovo—the Security Council’s inability to act. Although the Security Council assessed the situation there as a threat to peace and security in the region,¹³⁸ it did not authorise any military coercive measures, mainly because of Russia’s resistance. Against this background, NATO decided to carry out military air strikes without a mandate. According to prevailing opinion, the deployment was illegal under international law (e.g. Simma 1999).

5.5.4.4 Responsibility to Protect

Even more than the Security Council’s blocking of action in the Kosovo war, the powerlessness of the UN blue helmets in the face of the genocide in Rwanda in 1994 and the massacre in Srebenica (Bosnia-Herzegovina) in 1995 was perceived as a failure of the United Nations.¹³⁹ The then UN Secretary General Kofi Annan raised the question of how such comprehensive and systematic human rights crimes could be prevented if, at the same time, humanitarian interventions were understood as an unacceptable encroachment on sovereignty.¹⁴⁰ The concept of the responsibility to protect (R2P), which was first put into concrete terms by the International Commission on Intervention and State Sovereignty (ICISS 2001) (appointed by the Canadian government), provided guidance for action. In addition to the responsibility to prevent, to non-militarily react, and to rebuild, this concept also provided for the responsibility to intervene militarily as a last resort in the case of “large-scale loss of life” or “large-scale ethnic cleansing”.

The High Panel on Threats, Challenges and Change set up by Annan—after the outbreak of the Dafur conflict in Sudan (2003) and after the invasion of Iraq (2003), which was not authorised by the UN Security Council—basically supported the concept of the responsibility to protect in its report “A more Secure World: Our Shared Responsibility” (2004). In contrast to the ICISS, however, it strictly adhered to the exclusive authorisation of military interventions by the Security Council anchored in the UN Charter and substantiated or limited the reasons for intervention to “genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law”.¹⁴¹ The report “Larger Freedom” (2005), which Kofi Annan published in preparation for the 2005 World Summit, took up the R2P in a similar way in some places (see Cater and Melone 2016, p. 122). The UN General Assembly finally adopted the responsibility to protect in the following form in the outcome document of the 2005 World Summit¹⁴²:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.¹⁴³

The Responsibility to Protect thus provides for intervention by the United Nations, explicitly linking it to the possibilities of peaceful dispute settlement and the imposition of coercive measures enshrined in the UN Charter. Although the R2P did not change the basis in international law for possible military interventions, it did give the debate a new “twist”: sometimes it no longer seemed necessary to justify intervention—even military intervention if necessary—but rather to refrain from it.

After a thematic resolution on the protection of civilians in armed conflicts¹⁴⁴ and a country resolution on the deployment of peacekeeping forces in Sudan¹⁴⁵ had already explicitly referred to the R2P adopted at the World Summit in 2005, non-military sanctions and ultimately also a military intervention to protect the civilian population (among other things from serious and systematic human rights violations) in Libya (2011) were justified with the R2P.¹⁴⁶ As a result, the dictator Muammar al-Gaddafi was overthrown, which fuelled criticism from the Russian government, for example, that the corresponding security resolution had been used by the West for the purpose of a violent regime change (Bellamy and Dunne 2016, p. 10). Apart from the military intervention in Côte d'Ivoire¹⁴⁷—which was only authorised by the Security Council shortly after the Libya resolution—such military interventions could no longer be implemented and were not carried out in Syria and Myanmar.

Although Security Council resolutions have on various occasions included a responsibility to protect the population¹⁴⁸ and the Secretary General has been issuing annual reports on the responsibility to protect since the fundamental report “Implementing the Responsibility to Protect” from 2009,¹⁴⁹ the R2P concept no longer represents a common basis for decision-making in the Security Council, at least not for military interventions. In view of the now renewed political confrontation between the permanent members of the Security Council, it is in any case unlikely at present that military coercive measures will be adopted there even in the case of the most serious human rights crimes or humanitarian emergencies.

Irrespective of this, general objections to humanitarian interventions and military operations on the basis of R2P should be noted. Apart from the danger of abuse and the attention- and interest-driven selectivity of such interventions, it is precisely a use of military force that always creates suffering itself. In extreme cases, there is a danger that more suffering will be created than remedied, for example through an escalation or a failure of the intervention. Military interventions, even to protect against the most serious human rights violations and to address humanitarian needs, have far-reaching consequences and entail high risks with an uncertain outcome. They are therefore not a standard solution for the protection of people threatened by civil wars, genocide or other serious human rights crimes, but at best a collective emergency instrument if non-violent measures of human rights protection and multilateral crisis management have been applied unsuccessfully (and not only announced).

5.5.4.5 The Current Sanctions Regimes

Based on Chapter VII, the Security Council can impose a wide range of non-military sanctions. As with coercive military measures, not all such sanctions are directed against human rights violations. There are currently 14 United Nations sanctions regimes in force, which are primarily aimed at the settlement of conflicts, the non-proliferation of nuclear weapons and the fight against international terrorism. Only in some cases is explicit reference made to violations of international human rights and international humanitarian law, as in the case of Somalia, Sudan and the Central African Republic.

While arms embargoes are usually not very controversial, since 2004 the Security Council has moved from imposing comprehensive economic and trade sanctions, which have had a negative impact on the situation of the affected population in the past, especially in Iraq (1990–2003),¹⁵⁰ to imposing targeted sanctions directed against specific individuals, entities and companies.¹⁵¹ In 2022, the list of such targeted sanctions, concerning, for example, travel restrictions and the freezing of accounts, included more than 1000 persons, entities and companies listed for threatening peace, security and stability, violating international human rights and humanitarian law and/or obstructing humanitarian aid. Of course, it is debatable whether such sanctions actually lead to changes in the behaviour of those responsible for human rights crimes or whether they at least have a deterrent effect. However, they undoubtedly have a symbolic effect, as they uphold international human rights standards and are a clear sign of solidarity with those affected by human rights violations.

It is not unproblematic, however, that the listing of individuals, which is carried out in close cooperation with UN Member States, is not based on an examination that meets rule-of-law criteria. Significantly, various national and regional courts have objected to national regulations implementing the corresponding UN sanctions (Genser and Barth 2014, pp. 198–199). In view of the growing criticism, the Security Council established a “Focal Point for De-listing” in 2006, where it is possible to apply to be taken off the list.¹⁵² In December 2009, the Security Council went a step further and temporarily established an independent and impartial Ombudsperson to the ISIL (Da'esh) and Al-Qaida Sanctions Committee, who is the contact person for the applicants and supports the Sanctions Committee.¹⁵³ Even though in the majority of cases that the ombudsperson has dealt with so far, the applications have been granted,¹⁵⁴ procedural deficiencies of listing and de-listing remain.

5.5.4.6 UN Peace Missions and Human Rights

Peacekeeping operations have become an important instrument of UN peacekeeping since the 1990s. Their primary goal is to contain violence, prevent conflict escalation and ensure the safety of people. While traditional peacekeeping is primarily concerned with monitoring ceasefires and protecting the civilian population, peace missions have been entrusted with more comprehensive tasks over time (multidimensional peacekeeping, peacebuilding). The range of tasks also (or even primarily) includes civilian components such as monitoring elections, building democratic structures and protecting human rights. In extreme cases, the missions have even assumed legislative and executive functions, as in the case of the United Nations Interim Administration in Kosovo (UNMIK) and the United Nations Transitional Administration in East Timor (UNTAET). Peacekeeping missions are always authorised in the form of security resolutions. Although peacekeeping operations are not explicitly mentioned in the UN Charter, they can be regarded as means of peaceful dispute settlement (in the sense of Chapter VI). However, since they are military operations in which armed force can be used in self-defence or, in addition, sometimes for the protection of the civilian population, they are also referred to as Chapter VI ½ measures when equipped with more robust mandates or already act on the basis of Chapter VII of the UN Charter.

For our topic, it is important that the mandates can have more or less strong human rights components. To give a clear example: In the case of the (now failed) United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSAMA), not only were human rights violations strongly condemned, the mandate also specifically included a section on the promotion and protection of human rights. Accordingly, MINUSAMA’s diverse tasks included:

(i) To monitor, help investigate and report to the Council on any abuses or violations of human rights or violations of international humanitarian law committed throughout Mali and to contribute to efforts to prevent such violations and abuses; (ii) To support, in particular, the full deployment of MINUSMA human rights observers throughout the country; (iii) To monitor, help investigate and report to the Council specifically on violations and abuses committed against children as well as violations committed against women including all forms of sexual violence in armed conflict; (iv) To assist the transitional authorities of Mali in their efforts to promote and protect human rights; …¹⁵⁵

In each case, it must be examined to what extent peace missions are authorised to investigate human rights violations or to protect and promote human rights—and to what extent this is successful. The corresponding experiences are mixed (see, for example, Katayanagi 2014). It is particularly problematic when members of peace missions themselves commit human rights violations. Since the 2000s, incidents of sexual exploitation and sexualised violence have repeatedly become public. Despite all counterstrategies and countermeasures by the United Nations, the problem persists to this day. Significantly, Christian Saunders, the current Special Coordinator on Improving United Nations Response to Sexual Exploitation and Abuse, highlighted the problem as recently as January 2023.¹⁵⁶

5.5.4.7 The Protection of Children in Armed Conflicts

From the end of the 1990s onwards, the Security Council took up the issue of the impact of armed conflicts on children on the basis of reports by the UN Special Rapporteur or the UN Secretary-General. Since then, children and armed conflicts have been a weighty and institutionalised thematic item on the agenda of the Security Council. The first thematic Security Council resolution on children and armed conflicts dates back to 1999 (Resolution 1261). In this resolution, the Security Council condemned the “targeting of children in situations of armed conflict”, including killing and maiming, sexual violence, abduction and forced displacement, recruitment and use of children in armed conflicts. It also urged all parties to armed conflicts to take measures to protect children, especially girls, from rape and sexual abuse in the context of armed conflict and to take their protection, welfare and rights into account in the peace process.

In subsequent resolutions, the Security Council urged states to ratify the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict (2000),¹⁵⁷ and required the UN Secretary General to include in his report to the Security Council a list of parties to the conflict that recruit child soldiers.¹⁵⁸ Remarkably, the request was not limited to those country situations that were on the agenda of the Security Council, but also included those situations that the UN Secretary-General (in accordance with Art. 99 of the UN Charter) considered to be a threat to peace and international security. Other resolutions provided e.g. for national action plans, threats of sanctions and the establishment of a permanent working group on the subject, or dealt with ensuring schooling during armed conflicts, as was recently the case with Resolution 2601 (2021).¹⁵⁹ The recruitment of child soldiers (or attacks on schools) has also been included in the criteria for imposing targeted sanctions, as is currently the case in the Democratic Republic of Congo,¹⁶⁰ Mali,¹⁶¹ the Central African Republic,¹⁶² Yemen¹⁶³ and South Sudan.¹⁶⁴

All in all, the reports and resolutions on children and armed conflicts show that the Security Council’s thematic work on children in armed conflicts has progressed comparatively far and that corresponding monitoring and reporting structures have been established. However, they also show that violence against children in armed conflicts and the recruitment of child soldiers continue despite the naming and shaming of the listed parties to the conflict and despite any threats of sanctions.

5.5.4.8 The Protection of Women and Girls in Armed Conflicts

With the establishment of the two ad hoc criminal tribunals on the former Yugoslavia (ICTY 1993) and on Rwanda (ICTR, 1994), the Security Council not only made an important contribution to the further development of international criminal law in general, but also to the criminal punishment of sexualised violence as a crime against international humanitarian law in particular. The statutes of the lCTY¹⁶⁵ and the ICTR¹⁶⁶ explicitly listed rape among the crimes against humanity, the statute of the ICTR additionally considered rape and coercion into prostitution as grave violations of the Geneva Conventions. The 1998 Rome Statute of the International Criminal Court¹⁶⁷ (which was admittedly not established by the Security Council) later designated rape, sexual slavery, coercion into prostitution, forced pregnancy, forced sterilisation or any other form of sexualised violence of comparable gravity as crimes against humanity and war crimes. The jurisprudence of the international criminal courts lent practical legal significance to the definition of different forms of sexualised violence.

With regard to the Security Council, the adoption of Resolution 1325 in 2000 was another milestone. This was preceded by the commitment of women’s rights activists who, especially since the World Conference on Women in Beijing in 1995, had campaigned for the situation of women and girls in armed conflicts to be addressed, including in the Security Council. Resolution 1325 aims both to protect women and girls from sexualised violence in armed conflict (which is the focus of the present chapter) and to increase women’s participation in political processes and institutions in the prevention and management of conflict. It has been reinforced and extended by several other Women and Peace and Security resolutions.¹⁶⁸

The follow-up resolution 1820 (2008), for example, once again clearly condemned sexual violence in armed conflicts and identified it as a tactic of war aimed at humiliating people, exerting power over them, instilling fear in them and displacing or forcibly relocating them. In the resolution, the Security Council demanded, among other things, that the parties to the conflict immediately and completely cease all acts of sexual violence against civilians with immediate effect and that appropriate measures be taken to protect civilians, especially women and girls, from all forms of sexual violence. At the same time, it declared that rape and other forms of sexualised violence are a war crime and a crime against humanity, or may also constitute genocide, and called for the perpetrators to be prosecuted.

The Security Council adopted the last resolution to date on the topic of sexualised violence in 2019 after protracted negotiations. Resolution 2467 was introduced by the German government, which had made the issue the focus of Germany’s sixth membership of the Security Council (2019/20). Since sexualised violence occurs before, during and after conflicts, it is first of all to be welcomed that the resolution no longer (like many other resolutions before it) only identifies it as a tactic of war and that, in the sense of a survivor-centred approach, it focuses on comprehensive protection against sexualised violence and comprehensive support for victims and survivors; in doing so, the resolution also takes into account previously neglected groups of victims, such as boys and men. It also aims to strengthen the accountability of the parties to the conflict. However, as with the previous resolutions, it is mainly a matter of calls and encouragement to take appropriate measures. In addition, some controversial points could not be pushed through in the face of resistance from the USA, China and Russia; these related to text passages on sexual and reproductive rights, the establishment of a formal working group on sexualised violence in conflicts or the explicit recognition of LGBTI as an affected group.¹⁶⁹ Nevertheless, the then German Foreign Minister Heiko Maas described Resolution 2467 as a milestone on the way to ending sexualised violence in conflicts.¹⁷⁰ This view was not universally shared, not even in Germany.¹⁷¹

As groundbreaking as the Women and Peace and Security resolutions are, there is still a lack of implementation. According to critics, the Security Council has so far done too little to enforce them resolutely,¹⁷² even though rape and other forms of sexualised violence are now listed as criteria for targeted sanctions—for example against the Democratic Republic of the Congo,¹⁷³ Mali,¹⁷⁴ the Central African Republic,¹⁷⁵ Yemen¹⁷⁶ and South Sudan.¹⁷⁷ The annual reports of the UN Secretary General on conflict-related sexual violence,¹⁷⁸ prepared at the request of the Security Council, demonstrate the continuing urgency of the problem and list in the annex numerous state and non-state parties to the conflict that are allegedly responsible for such crimes. However, the list is limited to those countries that are on the agenda of the Security Council. Among the report’s recommendations to the Security Council were to ensure that sexualised violence functions as an independent criterion for targeted sanctions; that relevant expertise is available in the Security Council’s Sanctions Committee; that women’s protection advisors are embedded in peace missions and that increased attention is paid to sexualised violence; and that signs of sexualised violence are recognised early on by the Security Council and taken seriously. The UN Secretary General also recommends referring such situations to the International Criminal Court.

5.5.4.9 A Very Brief Outlook

As was emphasised at the beginning, the Security Council is not a human rights institution in the strict sense. Nevertheless, it can deal with human rights from a security policy perspective. The Security Council was prepared to do so from the 1990s onwards in the context of various armed conflicts. Although the Security Council did not deal with all violent conflicts equally, human rights violations, especially against children and women in armed conflicts, were addressed and human rights were integrated into measures of conflict management and post-conflict rehabilitation. However, in order to prevent violent conflicts or to contain them at an early stage, it would be necessary to systematically collect relevant information on human rights violations and to cooperate to a much greater extent with the UN human rights institutions, above all the UN Human Rights Council. In view of great power rivalries and geopolitical calculations, however, the situation in the Security Council has become rather confused. The fact that the governments of the two permanent members, China and Russia, want to keep the issue of human rights out of the Security Council and that the USA has not always played a pioneering role there in recent years is a particular hindrance. In view of the veto power of the permanent members of the Security Council, it will be (even) more difficult to enforce coercive measures based on human rights violations in the future.

5.6 International Criminal Jurisdiction

The punishment of human rights criminals is first and foremost an issue of criminal law, not politics. Nevertheless, the establishment of ad hoc criminal courts and the permanent International Criminal Court (ICC) were inherently political processes. Also, as has been shown in respect of the ICC, international criminal prosecution presents itself as a “complex interplay of law and politics, State engagement and disengagement, and commitment and contestation” (Dittrich 2021, p. 7). In this respect, it is worthwhile in an introduction to human rights politics to at least briefly address international criminal justice,¹⁷⁹ which is embedded in the major topic of transitional justice.¹⁸⁰

It must be emphasised at the outset that every state is obliged to prosecute human rights crimes in its own country. The courts of the respective country are therefore primarily responsible for punishing the perpetrators. However, human rights criminals often manage to go unpunished, for example by enjoying political amnesties or by using political influence and money to escape the grip of a weak or corrupt judiciary. In Latin America, the use of the term “impunity” (impunidad) has become commonplace. However, the Inter-American Court of Human Rights has ruled that amnesties for serious human rights crimes are inadmissible,¹⁸¹ and many victims' and human rights organisations have called for the perpetrators of such crimes to be punished. In countries such as Argentina and Chile, many of those responsible for serious human rights crimes committed during military dictatorships have been convicted by national courts after the fact.

If the national legal system remains inactive or fails, international criminal law comes into play. At least the most serious human rights violations can be taken up by the International Criminal Court, which began its work on the basis of the Rome Statute, which was adopted in 1998 and entered into force in 2002¹⁸²—affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation. The ICC is the first permanent international judicial body that can try individuals for genocide, crimes against humanity, war crimes and now also crimes of aggression. Previously, there were “merely” ad hoc courts that punished the most serious human rights violations in relation to specific periods of time and specific states. Besides the military tribunals of Nuremberg¹⁸³ and Tokyo¹⁸⁴ after the Second World War, the International Criminal Tribunals on the former Yugoslavia and Rwanda are the best-known examples.¹⁸⁵ Less well known are the international or “hybrid” ad hoc special courts established in the 2000s, for example in and on Sierra Leone, Lebanon and Cambodia.¹⁸⁶

In the meantime, the ICC has become “a permanent feature of the international legal and judicial landscape” (Hofmański 2021, p. vi). However, it not only has to master juridictional and organisational challenges, but also political ones. For example, although (as of October 2023) a total of 123 states have submitted to the jurisdiction of the ICC,¹⁸⁷ China, India, Russia and the USA are not among them. The ICC has also faced criticism from the outset, most notably from the US, which has protected US personnel from access by the ICC and concluded bilateral immunity agreements with more than 100 states. The administration of George W. Bush was particularly hostile to the ICC, withdrawing the US signature to the ICC Statute, and later the administration of Donald Trump, who even imposed travel and economic sanctions on key personnel of the ICC, including the chief prosecutor Fatou Bensouda. But resistance to the ICC also grew within Africa, where the (occasionally politically instrumentalised) experience of colonialism is still very much present. The African Union and several African states, which had initially supported the ICC, later criticised its anti-African bias. Threats of withdrawal followed, and ultimately Burundi withdrew in 2017. Two years later, the Philippines withdrew from the Rome Statute, in this case due to preliminary investigations by the ICC against its then President Duterte.

The ICC is undoubtedly a major achievement in the fight against impunity for the most serious human rights crimes, especially as it has introduced a number of innovations, such as victim participation.¹⁸⁸ Hundreds of governments and non-governmental organisations have spent much time and energy accompanying the work of the ICC, and atrocity accountability is now a fixture of diplomatic and popular discussions on conflict resolution (Hale 2021, p. 160). However, the ICC today operates in a climate that is sometimes openly hostile to human rights, characterised by disrespect of multilateral institutions and attacks against the integrity of international criminal justice. Even after more than 20 years, there is no guarantee that the ICC—in the face of political headwinds—will prove to be an effective tool in the fight against impunity for atrocious crimes in the long run. Beyond the various institutional and procedural reforms and reform recommendations,¹⁸⁹ it undoubtedly needs sufficient resources and high-level support and cooperation from the states and must be defended against attacks. Conversely, a high-level state policy to undermine the Court can have a paralysing effect on proceedings, as the Kenyatta case in Kenya has shown (Nwadikwa-Jonathan and Ortiz 2021, p. 297). In the case of non-Member States of the ICC, vetoes by permanent members of the Security Council can also prevent referral of large-scale atrocity crimes to the ICC, as happened in the case of Syria.¹⁹⁰ It should also be remembered that under the Rome Statute, the ICC acts in a complementary manner and can only deal with a limited number of cases. This means that international human rights crimes must also be prosecuted at the national level.

Based on the principles of universal and extraterritorial jurisdiction, international crimes can be prosecuted not only by those states on whose territory or by whose nationals these acts were committed, but also by all others. According to the reports of Trial International, from 2015 up to and including 2022, a total of 78 nationals of foreign states were convicted before national criminal courts, based on universal or extraterritorial jurisdiction. In 2022 alone, national courts in 12 countries initiated criminal investigations into international crimes against 169 persons, namely genocide, crimes against humanity, war crimes, torture and enforced disappearances (Trial International 2023). At the same time, 2022 was marked by “an unprecedented mobilization of existing legal and judicial resources to respond to the international crimes committed in Ukraine” (Trial International 2023, p. 10), both at the international and national levels. It is now important that such efforts last beyond the temporary momentum and are continued in order to punish corresponding crimes.

5.7 References to Theories of International Relations

5.7.1 (Neo)Realism, Liberalism and Constructivism

In contrast to Foreign Policy analyses, as already mentioned, studies in the field of International Relations (IR) start with the states as the relevant actors and examine the behaviour of states¹⁹¹ among themselves against the background of the structures of the international system (e.g. Forsythe 2012). Studies that deal with human rights politics in the field of International Relations sometimes refer to corresponding grand theories: Dunne and Hanson (2016, pp. 45 ff.), for example, outline three basic views of human rights politics, which they assign to (neo-)realism, liberalism and constructivism. If one takes such a three-way division as a starting point, then the views are as follows:

From the perspective of (neo-)realist approaches, it is not primarily about human rights, but about power. From this point of view, a human rights foreign policy may be useful if it promotes the relative power of the respective states in the international environment or conceals power interests, but as soon as it is directed against such interests, it must be subordinated to them or it must be abandoned altogether. If human rights foreign policy is pursued at all, it is (or should be) guided by power and interests.¹⁹² If necessary, governments pay only lip service to human rights and do not shy away from “double standards”. From a (neo-)realistic point of view, the implementation of a human rights foreign policy also requires effective sanctions against states that violate the norms. The international human rights institutions are too weak for this due to a lack of appropriate means of coercion.

From the point of view of liberalism, human rights foreign policy, put simply, is about promoting the worldwide spread of liberal democracies and (civil-political) human rights and counteracting the spread of autocratic regimes and the disregard for these human rights. The expansion of the “liberal zone” is in the well-understood self-interest, as it is intended to create a peace-promoting international environment of liberal-democratic states.¹⁹³ At the same time, human rights foreign policy is based on the liberal idea that individual human rights are fundamental freedoms that are universally valid and that states have a responsibility to respect and protect them. From this point of view, human rights require an appropriate legal-institutional foundation and protection through democratic and constitutional principles and institutions. The focus here is admittedly on civil-political human rights, although in the meantime economic, social and cultural human rights have also found their way into the liberal human rights discourse.¹⁹⁴

Constructivist approaches assume neither predefined and stable national interests of states nor pre-existing liberal norms that guide action. Rather, they focus on the (human rights) norms that emerge within the framework of the international community and a spreading “world culture”. Human rights-compliant action in foreign and domestic policy then results from the fact that behavioural expectations—created within the framework of international human rights discourses and regimes—are met and/or governments have already internalised and habitualised human rights-compliant behaviour. Transnationally active NGOs, networks, coalitions and movements can reinforce these socialisation processes through “naming and shaming”, among other things. States that resist the internationally developed human rights consensus pay for this, so the logic goes, with loss of reputation and isolation.

5.7.2 International Human Rights Institutions: Instruments, Arenas, Actors

For a functional analysis of international human rights institutions, which also has links to theories of International Relations, a threefold division can be used, which has proven itself in studies on international organisations.¹⁹⁵ According to this, international human rights institutions also represent (a) instruments, (b) arenas and (c) actors (Oberleitner 2007, pp. 10–11.).

(a) As an instrument, international institutions are used by states to pursue their interests and goals. In the understanding of (neo-)realism, the founding, shaping, cooperation and maintenance of such institutions primarily serves the purpose of powerful states to pursue their own, primarily power-political interests. From a (neo-)realist perspective, international human rights institutions are largely ineffective and thus meaningless. However, it may seem necessary for reasons of national interest to have a say in the decision-making processes in such institutions, even if only to prevent decisions that run counter to one’s own interests. However, it is not only (neo-)realists, insofar as they deal with human rights institutions at all, who take an instrumental view, but also (left-wing) critics who see the global human rights system merely as an expression of the imperialist policies of powerful Western states, above all the USA.

The instrumental character of international institutions is different when they are used by states to pursue overriding interests and values which, in their view, can only or better be implemented multilaterally. Thus, in view of possible insufficient implementation capacities and problematic political, economic and ecological structures, international cooperation is certainly needed to better respect, protect and guarantee human rights. If the foreign policy goal of governments is also to promote human rights in other states, then state cooperation in human rights institutions can reduce the domestic costs of such action. Such costs may consist not only of expensive support measures, but also of harmful countermeasures by states that violate human rights. Above all, however, states are more likely to be able to make a difference together. This is one of the reasons why many governments, including the German government, rely on a multilateral human rights policy within the framework of international institutions in order to pursue their human rights policy goals, which they are only able or willing to implement bilaterally to a limited extent. However, a multilateral human rights policy presupposes that the promotion of human rights is indeed a common foreign policy goal of a sufficiently large number of states.

(b) International institutions serve as arenas when they provide space for intergovernmental exchange, discussion, negotiation and cooperation. In the sense of an “agora” function (Oberleitner 2007, p. 35), international human rights institutions open forums for Member States to engage in global dialogue on human rights. Even in the case that insurmountable differences exist, and the exchange remains inconsequential, the densely spun threads of conversation usually do not simply snap. On the contrary, the various international human rights forums provide institutionalised opportunities for the different stakeholders to engage in a sustained exchange on the meaning, understanding and implementation of human rights. This includes the opportunity to define human rights problems, put them on the public agenda and agree on how to solve them. Beyond the intergovernmental exchange, it is also possible for civil society organisations to raise human rights concerns in a formalised way (or informally).

The arena function of international human rights institutions fits into liberal perspectives in international relations insofar as liberal-democratic states use the institutions to multilaterally advocate for, demand and promote liberal values and norms. From a (neo-)institutionalist perspective, such institutions potentially provide an arena for institutionalised conflict resolution concerning human rights, even with states representing opposing interests. However, the arena function is also significant from a constructivist perspective because international human rights institutions represent important socialisation forums in which human rights behavioural expectations are formulated and communicated with the participation of representatives of states, institutions and civil society.

(c) International institutions are to be regarded as actors in their own right if they themselves appear as actors on the basis of the rules and statutes on which they are founded and through representatives of their institutions. In the sense of (neo-)institutionalist approaches, they thus take on actor qualtities. This raises the fundamental question of the extent to which international human rights institutions—after being mandated by the Member States—are in a position to pursue an independent, goal-oriented human rights policy, if necessary also against the interests of participating states. Even though assessments may vary, a certain independence cannot be denied, for example, either to the special procedures and commissions of inquiry of the UN Human Rights Council or to the human rights treaty bodies of the United Nations. The Office of the UN High Commissioner for Human Rights also sets its own accents in human rights policy, although it has to coordinate more closely with states. On the whole, however, the activities of the UN human rights institutions are designed primarily for cooperation and less for confrontation. Especially in the implementation of human rights, the UN human rights institutions are dependent on the political will of governments and on cooperation with them. The same applies to regional human rights institutions, even when they have human rights courts that pronounce legally binding judgements.

5.7.3 Transnational Human Rights Politics

Since the 1990s, the growing importance of transnationally active NGOs, networks, coalitions and movements has produced a multitude of studies in the field of International Relations.¹⁹⁶ Khagram et al. (2002, pp. 7 ff.) distinguish between: (a) transnational adovacy networks, which represent a loose form of coordination and whose network activities consist primarily in the exchange and use of information; (b) transnational coalitions, which are more strongly coordinated and coordinate their strategies, tactics and campaigns; and (c) transnational social movements, which have stronger collective identities and focus on mobilisation for collective action. Here there are points of contact with established social movement research, but now with a focus on transnational actions. However, transnational networks, coalitions and movements are difficult to distinguish from each other, especially as they can be intertwined.

According to a narrow understanding of the term, transnational networks, coalitions and movements only include civil society actors. In a broader, more common understanding, at least advocacy networks and advocacy coalitions have a greater diversity of actors; thus, in addition to civil society actors, such as national and international NGOs, representatives of governmental and intergovernmental institutions, epistemic communities, foundations, interest groups and companies can also be involved. Here, the similarity to advocacy coalitions, which we know from Policy Analysis, is striking. However, in the context of transnational politics, the concept of advocacy is narrower: it is about activists who stand up for ideas, values and norms across national borders.¹⁹⁷

In the words of Khagram et al. (2002, p. 4): “One of the primary goals of transnational advocacy is to create, strengthen, implement, and monitor international norms.” This includes human rights in particular. The examples are manifold. Whether civil and political or economic, social and cultural human rights, whether human rights of political dissidents and prisoners, of workers, the landless, campesinos, environmental and climate activists, of children, women and LGBTIQ+, of people with disabilities, of members of ethnic, religious or other national minorities—examples of transnational advocacy efforts that take place and have an impact far beyond national borders can be identified everywhere.¹⁹⁸ In doing so, successful transnational human rights politics links the local and the global level.¹⁹⁹

Their success is determined on the one hand by whether and to what extent local, domestic human rights concerns can be raised to the regional and global level and find their way into international human rights policy. There are numerous examples of publicly articulated experiences of injustice being taken up by local and transnationally active NGOs, networks, coalitions and movements on the grand stage of the United Nations and influencing the legal-institutional enshrining, interpretation and global protection of human rights. Successful transnational human rights politics “from below” thus enables global human rights politics to be linked back to human rights problems at the local level, i.e. not to “take off” and not to be pursued over people’s heads and needs.

On the other hand, the success of transnational human rights politics is determined by whether and to what extent local human rights activists can improve the situation of people locally with the help of transnational civil society actors, human rights-friendly governments and/or international institutions.²⁰⁰ Of crucial importance here is whether (additional) opportunities open up at the transnational level that enable local actors to build up or intensify external pressure on the domestic authorities “across borders”, so to speak. Furthermore, it is important whether external material, human, organisational, symbolic and moral resources can be used for human rights mobilisations within the country (and to generate further support outside the country).

It is interesting to note that political opportunities and possibilities exist for human rights activists at the transnational level even when these are blocked domestically. Here it makes sense to relate considerations on political opportunity structures to the transnational level as well. Missing domestic opportunities can be demanded “from outside” and existing domestic opportunities can be strengthened at the transnational level. In short, there are interconnected “multilayered opportunity structures” (Khagram et al. 2002, p. 18) that can be used by activists to denounce human rights violations and to push for the implementation of human rights.

At the same time, it must be examined what additional repertoire of action is available to human rights activists at the transnational level. In view of the global communication structures, for example, the possibilities to prepare and disseminate human rights information and to address it in a targeted manner have grown enormously (information politics). The same applies to the possibilities of mobilising support beyond national borders through symbolic actions (symbolic politics). Leverage effects can also be achieved at the transnational level if powerful actors, such as human rights-friendly governments and international human rights institutions, are persuaded to promote human rights change together with or independently of advocacy networks or coalitions (leverage politics). It is also a proven tactic of transnational human rights NGOs, networks, coalitions and movements to hold responsible state (or non-state) actors accountable to their proclaimed human rights policies, principles and (self-)commitments and to demand that they “walk the talk” (accountability politics).²⁰¹

Ultimately, transnational human rights politics presents itself as a complex interplay of non-governmental and governmental actors who have a broad spectrum of possibilities for action at their disposal to develop, strengthen and demand human rights norms: from information on human rights violations to coordinated human rights campaigns to international sanctions. Corresponding mechanisms of action are coercion, pressure and incentives, the formulation of expectations that are consciously or unconsciously adopted by those responsible (socialisation, habitualisation), argumentation, persuasion and learning processes, or human rights capacity-building.

5.7.4 The “Spiral Model of Human Rights Change”

Finally, the spiral model will be discussed in more detail because it has achieved considerable prominence in political science research in the field of International Relations. The model was developed at the end of the 1990s and is characterised by the human rights optimism of its time. Indeed, after the end of the East-West conflict and in view of the democratisation processes of the “third wave”, the window of opportunity for transnational human rights policy seemed larger than ever. At the time, human rights effectively advanced to become a lingua franca that even autocrats were initially unable to escape.

The spiral model makes generalised statements about how international human rights norms are enforced and implemented within states. In other words, it identifies conditions under which international human rights norms are enforced within the respective countries and lead to lasting changes in behaviour. The model is explicitly limited to human rights that refer to “freedom from state repression”, especially physical integrity rights.²⁰² These include freedom from extra-legal killings, torture and arbitrary arrest. It remains somewhat unclear to what extent political human rights such as freedom of assembly, association and expression are also included in the analysis.

The analytical approach is actor-based: The focus is on the interaction between the respective government, the domestic opposition and the actors of the global human rights regime. The spiral model is based on the boomerang model developed by Keck and Sikkink, according to which “domestic NGOs bypass their state and directly search out international allies to try to bring pressure on their states from outside” (Keck and Sikkink 1998, p. 12). Figuratively speaking, the spiral model consists of several boomerang throws and describes a multi-phase change that—from the perspective of those in power—leads from repression and denial via tactical concession to serious reform and norm-guided behaviour. The basic structure of the phases, as often presented in the literature, can be summarised as follows²⁰³:

Phase of repression: The starting point is the situation in an authoritarian state in which the opposition²⁰⁴ is repressed and cannot articulate its demands domestically, let alone bring them to bear. According to the model, repression can vary in intensity and last for different lengths of time. Only when opposition groups repressed in their own country succeed in establishing contact with transnational human rights networks and thus with “Western states”²⁰⁵ and with international human rights organisations would there be a transition to the “phase of denial”. Crucial for the transition, according to the model, is the dissemination of information and alerting the international public.²⁰⁶

Phase of denial: This phase is characterised by transnational networks—in cooperation with local human rights organisations—informing and mobilising the international public about the human rights situation in the authoritarian state. The contacts here are primarily international organisations (of the global human rights regime) and “Western” (better: human rights-friendly) states, but less the repressive regime. The regime’s first reaction is nevertheless “denial”, understood here not as the rejection of individual accusations, but as an attempt to ward off human rights criticism as an unjustified concern and illegitimate interference in internal affairs. The more the transnational network succeeds in building up international moral and material pressure against the regime violating human rights, and the more vulnerable the government is to this international pressure, the sooner the transition to the phase of tactical concessions takes place. The decisive factor here is therefore the vulnerability of the regime and international pressure.

Phase of tactical concessions: In this phase, the regimes violating human rights come under increasing pressure “from above” (better: “from outside”) and “from below”. The ability of repressive regimes to act is visibly limited by the extensive international and internal mobilisation. They would be forced to make “tactical concessions” (such as the release of political prisoners etc.), possibly even to initiate a controlled liberalisation. If domestic critics succeed in making human rights the “consensual basis” of domestic opposition to the government, and if at the same time social mobilisation is supported by transnational networks and the international public, then repressive regimes would be forced to initiate a profound policy change—or regime change would become likely. In both cases, there would be a transition to the next phase.

Phase of prescriptive status: In this phase, human rights achieved a “prescriptive status”, meaning that the relevant actors would regularly refer to human rights. The validity of human rights claims is no longer in question. The authors apply strict standards to this status. According to them, governments (and parliaments) not only have to ratify the international human rights conventions and the respective optional protocols. They must also make sustained efforts to institutionalise human rights protection. For example, human rights standards must be incorporated into the constitution and national law, human rights complaints must be made possible at the national level, and governments must publicly recognise the validity of human rights. Prescriptive status, however, is not yet identical with rule-consistent behaviour. Despite their recognition, human rights could still be violated by state actors, especially by armed and security forces that the government does not adequately control.

Phase of rule-consistent behaviour: This phase corresponds to the realisation of human rights in everyday political life. According to the authors of the spiral model, it is reached when the rule of law becomes institutionalised. The development of the rule of law, however, depends decisively on the ongoing local and international mobilisation through transnational human rights networks (whose mobilisation capacity is already threatening to decline during the prescriptive state due to the improved human rights situation). If human rights violations occur, they are punished legally and are no longer part of state policy.

With regard to the modes of action, the authors of the spiral model understand the domestic implementation of international human rights norms as a socialisation process. In the course of this process, the political and social elites of a country adopt human rights standards of appropriate behaviour, which the international community and the domestic opposition expect and demand of them. The spiral model uses a comprehensive concept of socialisation. It encompasses three modes of action: (1) strategic, purposeful rational action and instrumental adaptation to pressure, (2) rule-guided behaviour in the sense of a “logic of appropriateness” consisting in the adoption of norms of action (habitualisation); (3) argumentative action aimed at understanding and argumentative persuasion (argumentation). Especially in the early phases of the model, international and domestic pressure would prove to be a necessary condition for the implementation of human rights. However, immaterial, moral pressure and the public denunciation of human rights violations are at least as important as tangible, material sanctions, such as economic or even military sanctions. According to the model, the importance of argumentative action and the internalisation of human rights norms increases in later phases.

Appreciation and criticism: The spiral model makes it possible to conduct structured and comparable case studies, even if these are accompanied by the risk of over-schematisation of real processes. The model, developed in the 1990s, has been applied in numerous country studies and has proven its descriptive-systematic usefulness. It could be shown that in a number of cases from the 1980s and early 1990s went through individual (mostly not all) phases of the model.²⁰⁷ The model proved particularly helpful in describing the first three phases of human rights change. On several occasions, it was possible to demonstrate that international pressure led to success when it promoted civil society mobilisation within the respective countries and political space opened up there due to tactical concessions by the regime. However, only a few states in which human rights had previously been systematically violated also reached the last two phases of the model (Jetschke and Liese 2013, pp. 27 ff.).

In addition to much praise, however, the spiral model has also attracted criticism. Its authors have themselves identified a number of weaknesses: firstly, the model was based on functioning states, so that the implementation of human rights was treated primarily as a question of political will and not as a question of institutional possibilities. Despite political commitments, however, problems of statehood (limited statehood) can hinder the implementation of human rights. Another weakness, according to the authors, is the underspecification of the process of how and under what conditions state and non-state actors move from commitment to compliance.²⁰⁸ Thirdly, the original concept did not take into account powerful states such as the USA or China, which are more resistant to external human rights pressure than the less powerful states that were originally studied.

The follow-up volume (Risse et al. 2013) attempted to fill this gap—and contains chapters on each of the above-mentioned spaces. It is interesting to note that, partly overlapping, partly complementary to the modes of socialisation already mentioned, other compliance mechanisms from the literature were also taken up. These include (a) coercion in the sense of military force from outside (keyword: responsibility to protect) and the increasingly important enforcement of law by national, regional and international courts; (b) incentives and sanctions; (c) argumentation, persuasion and learning processes²⁰⁹; (d) capacity building, which is particularly important in the case of weak states. In addition, the original model also requires comment and supplementation in other respects:

(1) Although it is pointed out that stagnation and regression can occur, the model (in contrast to some, especially recent case studies) focuses primarily on those interactions that promote the socialisation process. This is important in order to understand the dynamics of efforts to promote human rights from “below” and “outside”. However, it would also be important to systematically supplement the model and, if necessary, the analyses with opposing strategies and actions. Socialisation processes are not only shaped by strategic, argumentative and rule-consistent behaviour in favour of human rights. As a rule, autocratic regimes also use state institutions, controlled media, social forces loyal to the regime and international alliances to (a) ward off human rights criticism, (b) build up counter-pressure and counter-discourses, and (c) change perceptions and standards of action, often in alliance with allied governments.

Particularly in view of the manifold, recently intensified efforts of autocrats, but unfortunately also of some democratic governments, (a) to restrict the scope of civil society in their own countries (keyword: shrinking or closed political space of civil society), (b) to cut the ties between human rights defenders in their own countries and the international human rights community, which are so important for the protection of human rights, and (c) to discredit the global and regional human rights institutions or even human rights, it would be necessary to systematically examine the socialisation processes that are conducive and detrimental to human rights change and to relate them to each other. This is all the more so since a number of autocracies, above all China, no longer use international forums only defensively to counter human rights criticism, but also offensively to propagate alternative models of order in respect of human rights.²¹⁰

In view of the successful—populist and popular—efforts of many governments to ban human rights interference from outside in the name of state sovereignty and to discredit domestic human rights defenders as “foreign agents” or “henchmen of foreign interests”, the spiral model also tends, from today’s perspective, to overestimate the human rights-promoting influence of transnational human rights policies within the respective country. This is all the more true when, in the context of actual or alleged threats to national security or territorial integrity, human rights activists and regime critics locally are successfully defamed and criminalised as (sympathisers of) terrorists and separatists. Turkey—especially after the failed coup attempt in 2017—is one of many examples of this.

(2) The spiral model shows only a very coarse-grained picture of the actor landscape. Essentially, the model is about the interaction between (a) government, (b) domestic opposition and (c) actors of the global community (transnational networks, international organisations, “Western states”). It would make sense to take greater account of the heterogeneity of these groups of actors.

Even the government is not a monolithic block. The complex and changing relationships within and between the political leadership and the economic, social, religious and military elites that may support it, are of great importance for explaining political change towards more democracy and human rights. Often there is no consensus among the elites on how to evaluate political dissent and human rights criticism and how to react to it. Both repression and concessions can lead to considerable friction in the “ruling bloc”. Thus, the collapse of authoritarian regimes, political openings, democratic transitions and human rights transformations are often the result of conflicts and power shifts within the ruling and rule-bearing elites. Even the simple distinction between hardliners and softliners, which was already used in early actor- or elite-oriented approaches to transition research (O’Donnell et al. 1986) in relation to Latin America, is not taken into account in the spiral model. Ultimately, in-depth, structurally enriched analyses of the behaviour and strategies of the respective heterogeneous elites are necessary (Nohlen and Thibaut 1994).

There are also social forces in the population that differ significantly in their attitude to the regime—whether they support it, oppose it or are apolitical and indifferent. An explanatory model that relies on the strength of the domestic opposition must take into account the heterogeneity of society, but also of the opposition. Sometimes autocracies have a broad social base and local human rights organisations, if they are allowed and known at all, enjoy little support among the population. Also, the opposition is often divided into moderate and radical parts. Parts of the opposition may, for example, rely on the violent overthrowing of the regime in order to get rid of a highly repressive dictator (an option that does not appear in the spiral model), others rely on reforms and are prepared to make concessions and agreements. Nor is everyone who opposes political repression a champion of democracy and human rights. Moreover, opposition groups can also behave tactically—paying lip service to the democratisation and human rights discourse while possibly pursuing diverging goals.

Finally, the international community is also very complex. Transnational networks, international organisations and “Western states” are not in themselves uniform actors, let alone always pulling in the same direction. The restriction to “Western states” is unacceptable anyway. Later, the authors of the spiral model write about a “human rights international community”, which is far more appropriate. However, as has already been shown, there are also states (representatives) in the regional and global human rights institutions that not only behave in a human rights-friendly manner, but also participate in these institutions in order to prevent human rights criticism or to criticise critics themselves, often with the—not entirely unjustified—reference to “double standards”. Moreover, there is no uniform picture between supporters and opponents of human rights. Some governments demand certain human rights while rejecting others, or they criticise the human rights violation of one state but block human rights criticism of another.

(3) Less explanation than description: The spiral model offers the possibility to capture different phases of human rights change in a systematic-comparative way. However, its analytical usefulness beyond this remains limited: Although the model makes the success of human rights change—in the sense of a socialisation process—largely dependent on the strength and networking of civil society,²¹¹ the model says little about how and under what conditions a strong civil society emerges. Nor does it say much about how and under what conditions civil society groups succeed in drawing the attention of transnational and international actors to their concerns—and in persuading them to take up their cause. Such processes, however, require a great deal of explanation. Answering such questions is ultimately left to qualitative individual case analyses, without the corresponding empirical results being inserted into the model in a systematic-comparative way. Theoretical considerations, for example from research on the success or failure of social protest movements, could be specifically taken into account here. In doing so, however, it should be avoided that a bottom-up bias already shapes the empirical analysis in advance. Ultimately, it is not a theoretical but an empirical question which actors in the interaction of non-state actors, human rights-friendly governments and international organisations were or are significant for human rights change in the respective case.

(4) The spiral model is, as mentioned, primarily actor-oriented—and claims to describe and explain human rights change across political, economic and cultural differences primarily on the basis of the interaction of the above-mentioned actors. For qualitative empirical analyses, however, it makes sense to think of actors and structures together. Neither the interaction of actors nor the question of the vulnerability or resilience of the respective political regimes to human rights pressure can be adequately explained without analysing the political-institutional, economic and socio-cultural structures. The actor strategies for “democratisers”, which some early transformation researchers on Latin America had formulated almost like a recipe book, find their counterpart, so to speak, in the spiral model designed for human rights change: it also reads like a recipe book, which students are only too happy to follow, often uncritically. In contrast, transition researchers working in a historical-qualitative and comparative manner try to capture the complexity of political changes through an overall view of structures, institutions and actions, even if this is at the expense of the generalisability of the results. It makes sense for the follow-up study to the spiral model later on to focus specifically on at least some fundamental “scope conditions for compliance”, namely the question of regime type (democratic vs. authoritarian), the degree of statehood (consolidated vs. limited), the structures of norm enforcement (centralised vs. decentralised) and the material and social vulnerability of the regime (substantial vs. limited) (Risse et al. 2013, pp. 16 ff.).

(5) For analytical reasons, the research group first looked at authoritarian-repressive regimes. The selection of cases was based on the assumption that the effect of international human rights norms on the behaviour of actors can only be proven if compliance with the norm is initially “inconvenient”, i.e. associated with material or social “costs”. In order to be able to meaningfully measure one’s own influence of international norms, a discrepancy between, on the one hand, international norms and, on the other hand, the national regulations, institutions and collectively shared convictions on which the behaviour of the actors within the country is oriented would be required (Risse et al. 2002, pp. 18–19).

Methodologically, such an approach is due to the attempt to clearly present the effect of the independent, explanatory variable (transnational mobilisation for international norms) on the dependent, explanatory variable (human rights change within states) in a causal way. In countries where actors already adhere (or are inclined to adhere) to human rights because of the national structures of law, politics and society, it is more difficult to establish the independent influence of international human rights norms in isolation. However, it is not impossible: for one thing, even in democracies where human rights have been implemented to a large extent, there are sometimes discernible discrepancies between international norms and political practice. In later works, torture practices on the part of the USA are also discussed in this sense. Second, international norms can demonstrably reinforce or complement existing national norms. One example would be the introduction and interplay of international and national mechanisms for the prevention of torture, including in Germany.

In this respect, it is important to also examine the influence of international human rights norms on politics in liberal democracies—as was also done in later case studies on the spiral model. In this context, it is plausible to assume that democratic states are particularly vulnerable to immaterial pressures and argumentative discourses that appeal to their human rights self-understanding and their self-obligations under international law. However, such moral vulnerability is often coupled with democratic ignorance or even arrogance, according to which human rights are implemented in one’s own country. One does not even have to look at the USA, whose relationship to human rights is characterised by a pronounced exceptionalism (Ignatieff 2005). In Germany, too, it is often difficult to problematise political or even economic and social grievances from a human rights perspective.