By Rie Niida
Are we seeking the global attorneys who are “supranational”? The question stunned the audience, and precipitated a great discussion on human rights promotion efforts at international level. The question was posed by none other than our long-awaited guest speaker, Professor Cecile Aptel, at the High Table lunch at Fletcher School on December 3, 2015. Flying in from Geneva, where Europe’s Migration Crisis was posing overwhelmingly pressing concerns for both states and international organizations, Professor Aptel shared with us her insights from the current challenges that the High Commission on Human Rights is facing.
Professor Aptel has been a beloved member of our Fletcher faculty since 2011, and is currently on leave to serve as the Senior Legal Policy Advisor in the Office of the UN High Commissioner for Human Rights. Her career has been deeply committed to the promotion of human rights, transitional justice, and the rights of children, and is evidenced by her 20 years of service at the UN: international tribunals for Rwanda and the former Yugoslavia, International Independent Investigation Commission, and the Office of Internal Oversight Services. As an outstandingly experienced expert, Professor Aptel’s words were very honest and explicit.
One enforcement mechanism discussed by Professor Aptel that the High Commission on Human Rights uses is “Naming and shaming”. The mechanism includes identifying a human rights violation, naming the violating state, and shaming it in the international community. Its efficacy is often questioned, but Professor Aptel’s insights went even further by highlighting the potential risks in using the mechanism.
Professor Aptel raised three possible risks for the High Commission on Human Rights in using the “Naming and shaming” technique: the risk of instrumentalization, usage for non-state actors, and non-compliance of states. First, naming the state in violation could easily be used to punish the leader of a state. This may be proof of the mechanism’s efficacy in altering the behavior of a state, but it risks exposing the Commission to being used as a tool for purposes other than promotion of human rights such as political manipulation. Second, the mechanism becomes troublesome when addressing non-state actors. On one hand, human rights abuses are questioned by states without having representation from non-state actors, which raises question of the extent to which it makes sense to discuss non-state actors in international organizations like the Commission. On the other hand, non-state actors may increase their legitimacy by being named and shamed in the name of the Commission, as if they were states. How can we ensure the human rights of people under the effective control of non-state actors while not legitimizing them as formal states? Such a question is crucial to consider when using the mechanism. Last but not the least, non-compliance of states is at risk, as is demonstrated in the Europe’s Migration Crisis. Professor Aptel observes the “gray areas in borders” in which no states claim responsibility. The crisis may be creating a challenge to human rights which cannot be captured by naming the responsible and shaming it.
All three aspects raised by Professor Aptel illustrated current challenges that the High Commission on Human Rights faces, and more broadly, what the UN faces in promoting human rights. The provocative talk was followed by questions, varying from the significance of non-state actors in norm of international law to the definition of ‘refugees’ in today’s world. Professor Aptel shared with us her words of wisdom and inspiration, which truly was the best way to conclude this semester’s High Table Symposium.
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