Making Rights Real: The Challenge of Implementing Human Rights Decisions

What good is international law if states don’t follow it? Should we care about international courts if governments don’t do what they say? One often hears such questions when it comes to human rights, notoriously the most difficult body of law to enforce. As courts from the Inter-American Commission on Human Rights, to UN treaty bodies, to the ICC struggle to ensure that states comply with a key rule of law principle—that their decisions be respected and followed—these questions are more urgent now than ever. 

In 2010, the Open Society Justice Initiative published the report From Judgment to Justice, which concluded that an implementation crisis afflicts the regional human systems and treaty bodies. While the decisions of these systems undoubtedly have important effects—from building better jurisprudence to triggering vital policy discussions—too often they fail to vindicate the rights of the people or communities who sought their protection in the first place. 

One woman, A.S., knows this struggle well. Hungarian of Romani origin, A.S. needed an emergency caesarean section after suffering a miscarriage in 2001 but, instead, the public hospital sterilized her without her informed consent. A.S. sought relief from the Hungarian courts, but they found she had failed to prove a “lasting handicap” and denied her claims. As a last resort, A.S. took her case to the UN Committee on the Elimination of Discrimination Against Women (CEDAW), which, in 2006, ordered that Hungary reform provisions of its Public Health Act and compensate her for the violations she suffered.

Fortunately, A.S.’s story ended better than most. Not only did the government pay damages, the country’s laws on informed consent have been changed for the better. But it took more than three years, a concerted international civil society campaign, and navigating a maze of different ministries to make the CEDAW judgment stick.

A.S.’s story is not unique. From a long-running battle to end segregated education in the Czech Republic to the slow repatriation of thousands of black Mauritanians who were forcibly expelled from their country over 30 years ago, translating victories on paper to meaningful change on the ground is a long and complicated affair.   

Now, in a new book, the Open Society Justice Initiative explores these challenges by examining how international human rights decisions and recommendations are implemented at the national level. From Rights to Remedies analyzes the crucial role of domestic structures in promoting (or thwarting) implementation. By combining analysis with case studies that span the experiences of countries in the European, Inter-American, and African systems, as well as the UN treaty bodies, the report is the first to look comprehensively at national-level implementation across the three primary institutions of government—the executive, the legislature, and in domestic courts. The report also examines the special role that national human rights institutions can play in the execution process.

Why does this matter? For one, a state’s human rights obligations extend to all branches and level of governments, but implementation itself depends on specific institutions. While one decision might call upon legislators to pass new laws and a ministry to pay damages, another might require domestic judiciaries to reopen criminal proceedings or investigate suspected human rights violations. One challenge for states, then, is to build the capacity of these multiple actors and strengthen the coordination among them.

Of course, mechanisms are not the same as political will, which remains the most important factor for enforcing human rights. This means that while some efforts at implementation reflect a serious commitment to the rule of law, others remain—by design or neglect—poorly resourced, badly staffed, and politically feeble.

For this reason, strategies are as important as structures. Where one branch of government might prove intransigent or unwilling to comply with an international decision, other avenues of state can help bring pressure to bear. Such strategies have proved successful even in the most difficult of political environments, including Russia, where international litigation has led to major reforms of the country’s guardianship laws, or Zimbabwe, where, in the face of state inaction, South African courts have ordered the country’s national prosecutor to investigate allegations of torture by Zimbabwean security officials.

In addition to highlighting these stories and providing recommendations at the end of each chapter, the report also includes an appendix of model implementation laws, some of which have previously been unavailable in English. These include executive orders, national implementation legislation, and parliamentary human rights committees with a mandate to monitor state compliance. 

It is our hope that From Rights to Remedies helps open a new chapter in this important discussion. If you have any questions or feedback, or would like to receive a hard copy of the report, please be in touch. We are eager to hear from you.