The matter of human rights has today assumed a new salience. The COVID-19 pandemic has sharply brought out the social and economic divides in societies; it has disproportionately impacted poor and marginalized groups.Footnote ¹ Social movements like the Black Lives Matter movement in the United States have highlighted in particular the class and race dimensions. Beyond COVID-19, in his Nelson Mandela Foundation Annual Lecture in July 2020, the UN secretary-general (UNSG) underscored more generally the growing inequalities in the world.Footnote ² Besides, new threats to human rights are emerging from the rise of nationalism and populism, rapid technological developments, and climate change. In an earlier speech to the Human Rights Council (HRC) in February 2020, the UNSG noted that human rights were under assault the world over.Footnote ³ He spoke on that occasion of political leaders who “divide people to multiply votes” and “the rise of racism, white supremacy and other forms of extremism.”Footnote ⁴ At the same time it is becoming clear that the UN human rights system (UNHRS), put in place during the course of the Cold War, is not robust enough to deal with growing human rights violations. It can only be hoped that as the UN celebrates its seventy-fifth anniversary it will find ways of strengthening that system.

Bertrand G. Ramcharan's new book, Modernizing the UN Human Rights System, speaks to that very subject. Though written before the pandemic, its insights can greatly assist in reimagining and strengthening the UNHRS. That system comprises, in his view, of “norms and institutions such as the Security Council, the General Assembly, the Human Rights Council, the High Commissioner for Human Rights and the Human Rights Treaty Bodies” (p. 9). Ramcharan calls for the strategic modernization of the UNHRS with a focus on “the key threats and challenges facing mankind” (p. xv). The principal recommendations to strengthen the UNHRS are fleshed out with care in twelve separate chapters. Ramcharan is exceptionally qualified to offer these as he combines a “rare blend of academic excellence and the experience of working at the highest levels within the international system” (foreword, p. xi). He expects the UNSG to “lead the effort to uphold and modernize” the UNHRS (p. xiii) in ways that would complement and support “the broader human rights movement” (p. 1).

Ramcharan makes the following recommendations to reinforce the UNHRS: (1) the UN Security Council (UNSC) should have on its agenda “a standing item on ‘Human Rights and International Peace and Security’” (p. 160); (2) a world court should be established to “provide advisory opinions on whether particular policies or practices of a government are in conformity with international human rights law” (p. 233); (3) the International Court of Justice should be enabled by the UN General Assembly to provide “authoritative determinations” of international human rights law (IHRL); (4) the International Law Commission (ILC) should be required to undertake thematic codification of IHRL; (5) the Office of High Commissioner for Human Rights (OHCHR) should act “as the human rights component of a global watch over human security” (p. 99); (6) the HRC should convene each year three sessions with a thematic focus; (7) the Committee on Economic Social and Cultural Rights (CESCR) should stress on the human rights of the poorest; (8) an annual fact-finding report should be published containing concise summaries of the reports submitted by the various mandate holders to the HRC; (9) “the periodicity for the submission of reports under the [universal periodic review (UPR)] system” should be increased (p. 232); (10) UN human rights treaty bodies should “have one or more representatives present at various stages of the consideration of the Government's reports under the UPR process” (id.); (11) “periodic Youth Assemblies for Reaffirmation of the Universality of Human Rights” should be organized (p. 233); (12) a “World Report on National Protection systems” should be published every five years; and (13) “a high level annual lecture on ‘Human Rights and the World of the Future’” should be instituted (pp. 230–34). Over and beyond these suggestions, the role of UN specialized and development agencies should attend to promoting and realizing human rights (p. 3).

Many of the recommendations, such as instituting an annual lecture, organizing youth assemblies, the publication of an annual fact-finding report on national protection systems, or even organizing thematic sessions of the HRC, will not invite active debate. The proposal to turn the OHCHR into an agency that proactively promotes human security should also be welcomed, especially to research new threats and challenges and shape future preventive strategies. At a time when democratic norms and practices are being undermined the world over, calling out states on human rights violations can be an important step forward in their promotion and protection. The importance of the OHCHR's role was driven home to this reviewer when it filed an amicus curiae brief in the Supreme Court of India regarding the constitutional validity of a troubling Citizenship Amendment Act that negatively impacts certain groups of refugees.Footnote ⁵ It thereby brought to the notice of the international community the discriminatory nature of legislation in violation of India's international human rights obligations. There have also been recent communications by the OHCHR regarding human rights violations in Jammu and Kashmir.Footnote ⁶ A broadening of the OHCHR mandate would enable it to play an even more active role in drawing attention to situations of human rights violations the world over, so necessary in these critical times.

However, many of the other recommendations made by Ramcharan are more debatable and call for comment.

The proposal for a standing agenda item of the UNSC on human rights and international peace and security comes in the context of its increased engagement with the subject.Footnote ⁷ Indeed, in April 2017, the UNSC even held a thematic discussion on human rights. Ramcharan believes that having a standing agenda would facilitate consideration of written and oral submissions and above all signal to the world that it “is attentive to the interrelationship among peace, development and human rights” (p.160). However, it has to be borne in mind that the forum of the UNSC can lead to the politicization of human rights. Furthermore, in the past, the acts of the UNSC have caused human rights harm, as in the instance of sanctions against Iraq.Footnote ⁸ The cause of human rights has also been invoked, via the doctrine of the responsibility to protect (R2P), in a manner that resulted in regime change in Libya.Footnote ⁹ It can therefore be persuasively argued that the UNSC should not be assigned a larger role in the enforcement of IHRL, especially considering the backdrop of the fact that two of the veto-wielding members—China and Russia—are not democracies.

The suggestion to establish a world court on human rights to offer advisory opinions on gross violations of human rights is certainly worthy of consideration. The positive record of regional courts, such as Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights, and the European Court of Human Rights, lends weight to the idea of creating such a court, even if it was confined to giving only advisory opinions. Indeed, in the face of national judiciaries being undermined even in democracies (e.g., Hungary and India), a global human rights court can play an important role in identifying situations involving gross violations of human rights. However, as Phillip Alston has pointed out vis-à-vis a (different) proposal mooted earlier, it “vastly overstates the role that can and should be played by judicial mechanisms . . . and distracts attention from far more pressing and important issues.”Footnote ¹⁰ In other words, it may not be wise for the international community to expend much energy on creating such a court.

Ramcharan proposes that the ILC undertake “systematization or codification” of IHRL in order to “make it more accessible to the public, legal practitioners and judges” (pp. 192–93). The exercise would involve “assembling thematically the different provisions on a particular subject” by a standing rapporteur on the subject (pp. 220–21). It may, however, be argued that the different interpretations and ambiguities that arise from the existence of several human rights regimes is not such a bad thing as it can be creatively used in varying contexts by tribunals, courts, and civil society organizations to promote and protect human rights.Footnote ¹¹ Moreover, the problem of inaccessibility and fragmentation may not be overcome even after the ILC develops a single thematic text. For treaty bodies, international tribunals and national and regional courts, the HRC, the OHCHR, and special rapporteurs may continue to offer different interpretations of the proposed consolidated text. It may perhaps be more useful for the ILC to develop a set of principles to help different human rights bodies and courts to integrate the interpretation and application of human rights. It may be recalled that an ILC report on fragmentation of international law spoke, inter alia, of “the principle of systemic integration.”Footnote ¹² This principle may be elaborated into a subset of principles for application in the field of IHRL. If systematization and codification is required at all, it is in areas like minority rights where there is only the nonbinding 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Such an effort can play a critical role in promoting minority rights at a time when these are threatened the world over.

Ramcharan recommends that the CESCR should “spearhead the efforts of the United Nations system” to enhance global welfare through “a focus on the plight of the poorest and of people under the greatest threat” (pp. 88–89). It is a thoughtful idea, for in the post-pandemic era, the problem of poverty will be accentuated in the face of global recession. In fact, there is clear danger of the progress over the last few decades in the reduction of poverty being undone.Footnote ¹³ However, for the problem of poverty to be dealt with, the political economy of neoliberal globalization, and now deglobalization, has to be addressed. While the CESCR can certainly prod states to take measures to reduce poverty, only serious reform of the international economic order can help achieve that goal. A key issue for Global South nations has been the loss of policy and legal space through a network of international agreements presided over by international institutions that do not allow them to undertake many poverty reduction and welfare measures.Footnote ¹⁴ Deglobalization is only going to lead to these nations facing protectionism without regaining the loss of policy and legal space. Ramcharan also does not deal with the marginalization of the UN in developmental policies. Even leading nations of the Global South neglect it and look toward groupings like the G-20 to take suitable initiatives that essentially advance the vision of advanced nations of the Global North. It is only by reviving the central role of the UN Economic and Social Council that the UN system can effectively address the issue of poverty.

Another recommendation Ramcharan makes is “expanding the periodicity” for the submission of reports under the HRC's UPR system, for at present, “the gains being made are not readily apparent” (p. 173). He also calls for “the presence of one or more representatives of the human rights treaty bodies . . . when UPR reports are being considered,” which would “bring greater synergy between the two procedures” (p. 175). But in view of the ritualistic character of the UPR process, these moves are unlikely to make much difference. The UPR process is less about speaking truth to power and more about permitting power to process truth. The rituals of the UPR system also veil the proximate and deep structures that obstruct the realization of human rights.Footnote ¹⁵

The limits of the Ramcharan proposals for reform of the UNHRS can also be brought out by situating them within the larger debate regarding ways of realizing the goal of universal human dignity.

Ingrid Wuerth has recently articulated the view that attempts to enforce IHRL, especially through the UNSC, will undermine the instrument of international law in dealing with issues of international peace and security.Footnote ¹⁶ According to Wuerth, these efforts appear “to have expanded and changed international law in ways that have made it weaker, less likely to generate compliance, and more likely to produce interstate friction and conflict.”Footnote ¹⁷ It is also argued that bodies like the HRC are politicized and cannot seriously advance the cause of human rights. Therefore, Wuerth concludes that “the true cost of human rights enforcement would involve potentially great costs to the friendly relations of states and even interstate peace.”Footnote ¹⁸ In her view, “domestic enforcement mechanisms may be effective without ongoing enforcement through international law.”Footnote ¹⁹ In a thoughtful reply, Frédéric Mégret points out that the picture is more complex and that IHRL “like all law, is forever a work in progress.”Footnote ²⁰ And therefore to suggest that “one should do away with the entire UN human-rights machinery . . . in order to safeguard the legal character of international law seems an extraordinary price.”Footnote ²¹ It is perhaps a prudent combination of national and international methods for enforcing human rights that may be most effective. But that way forward would not support a more active role for the UNSC and HRC.

A second approach contends that the UNHRS cannot deliver on the goals of reducing poverty and inequality, preconditions for achieving the goal of universal human dignity.Footnote ²² In order to achieve these objectives, serious reforms must be undertaken regarding deep structures such as neoliberal capitalism, patriarchy, and systemic racism. This approach often frames its discourse in class, gender, and race terms. At the level of class, it is contended that there is collaboration between ruling elites of powerful nations of the Global North and Global South that disadvantages the poor.Footnote ²³ The category of gender is relied on to argue that unless structures of patriarchy are dismantled, the rights of women, including the right to equality, cannot advance.Footnote ²⁴ A similar argument is made with respect to systemic racism.Footnote ²⁵ In short, even if all of the measures Ramcharan proposes are implemented, it may not make a substantial difference in promoting human dignity, especially of the poor and marginalized. Indeed, the focus on improvements in the UNHRS only helps displace the discourse of justice. By seeming to promote and protect human rights, the UNHRS may only legitimize an unjust world order. This approach does not necessarily oppose strengthening of the UNHRS, but points to the limits of its effectiveness and for the need to be alert to it being used as a legitimation strategy.Footnote ²⁶

Be that as it may, the current global ecology does not look good for modernizing the UNHRS. The absence of effective global cooperation and solidarity to deal with the pandemic reveals the lack of willingness of states to look beyond national interests. At present, global leadership is also absent regarding the question of human rights. The United States, which can provide such leadership, withdrew from the HRC in June 2018, accusing it of being either biased or exceeding its jurisdiction. In justifying the move, U.S. Secretary of State Michael Pompeo observed that the forum “has become an exercise in shameless hypocrisy—with many of the world's worst human rights abuses going ignored, and some of the world's most serious offenders sitting on the council itself. . . .”Footnote ²⁷ He however did go on to state that United States “has no opposition in principle to multilateral bodies working to protect human rights” but “when organizations undermine our national interests and our allies, we will not be complicit. When they seek to infringe on our national sovereignty, we will not be silent.”Footnote ²⁸ But indicative of the United States’ current approach toward human rights is also the sanctions instituted against the staff of the International Criminal Court for attempting to investigate war crimes committed by any side during the conflict in Afghanistan.Footnote ²⁹ The support for modernization is also unlikely to be forthcoming from nations like China, Russia, and Saudi Arabia, or even Brazil and India. These nations routinely raise the flag of sovereignty when it comes to human rights violations.

In sum, in the absence of a coalition of powerful states that support modernization of the UNHRS, it is doubtful whether the UNSG can “rally a consensus” behind the proposed reforms (p. 1). What is more, in the face of marginalization of the UN, the office of the UNSG has lost the influence it enjoyed in the past.Footnote ³⁰ Yet in these difficult times, there is no wishing away the need to further the cause of human rights. Ramcharan has offered the international community a rich set of practicable ideas that could be usefully mined to that end.