Thoughts on the Operationalization of Human Rights

When asked by the Essex Human Rights Centre to comment for the blog series on what the meaning of “operationalization” of human rights, I hesitated.  The term itself, nowhere to be heard when I was at Essex in the human rights Stone Age, seems ubiquitous now in these circles. I first really became aware of its emergence when participating in informal negotiations on the Human Rights Council resolution on Business and Human Rights in 2008.  Resolution 8/7 “recognize[d] the need to operationalize” the UN framework on business and human rights and mandated stake holder consultations on “ways and means to operationalize the framework.”   I distinctly remember during the course of discussions a number of State delegations expressing puzzlement at the use of the term, with one querying whether the word “operationalization” even existed in the English language. (In fact, certain etymological sources indicate no known usages of term until the 1950s.)

By Ian Seiderman.

It seemed to me then that “operationalization” was little more than a vogue recasting of another category quite familiar to many human rights advocates:  implementation.  Some of us, including the organization for which I work (International Commission of Jurists), have generally taken an expansive view of the concept of human rights implementation, which we see as extending to the areas of law, policy and practice.  Implementation in this sense involves any number of objectives:  the incorporation and full integration of human rights into national law, including in respect of constitutions and legislation, but also administrative rules; the adoption by executive officials of policies aimed at giving effect to human rights obligations; and practical action from all public officials, from administrators to the judiciary must act to discharge human rights obligations.  In addition, implementation has a dimension that goes beyond the domestic:  States should engage in international cooperation and assistance to realize rights, as prescribed in the UN Charter and a number of human rights instruments.

Even this model of implementation, however, may not be enough to guarantee “operationalization”, if that word is taken roughly to mean “given full practical effect”.  It very much centers on the legal aspects of human rights, and has often been mainly directed only at State agents.  The Universal Declaration of Human Rights in its preamble famously ascribes the task of realizing rights not only to States, but also to “every individual and organ of society.”   While it is difficult to take issue with this sweeping pronouncement at the level of general principle, for the task of “operationalization”, as opposed perhaps to realization (another nebulous term), some organs of society will be more critical than others.  Clearly, the engagement and responsibility of increasingly powerful non-state actors such as business enterprises and intergovernmental organizations, is paramount.  Similarly, there are other sectors of public life, such as the media, trade unions, the legal profession and of course civil society organizations whose functions and interests are closely connected with human rights “operationalization”.   This engagement goes beyond the promotional aspect of human rights work, such as human rights education and human rights capacity building, extending to public advocacy, facilitation of an enabling environment for human rights, and advancing access to justice for rights holders.

A refrain commonly heard in human rights circles is that the design and architecture of international human rights, as it pertains to standard setting and to a lesser degree international mechanisms, is largely completed and a success. Where the human rights project has fallen short, in this telling, is in the implementation of those standards.  This assessment is simplistic at both ends.  There do remain significant gaps in standards and the normative aspects of human rights will always continue to evolve to meet new needs and conditions. In addition, the international human rights mechanisms are creaky and inadequate.  As to implementation, there has in fact been substantial, if patchy, progress across world in many respects, especially in the area of incorporation of international human rights into national law, engineering the international design fit for domestic purpose.

Where implementation has fallen short, and where resistance has been greatest, is in the twin areas of accountability and remedy and reparation.  It is a commonplace that in respect of gross human rights violations, impunity is the practical norm and not the exception, in all parts of the world.  And although standards for remedy and reparation are well defined and developed, access to justice and effective remedies remains illusory for most victims of rights violations.

Whether these imperatives fall within the necessarily wide parameters of implementation, or whether instead they should be conceived as part of the pursuit of “operationalization,” is ultimately a semantic, not a conceptual, distinction.  The objective, in any event, remains what it has always been:  making rights “real”.

Disclaimer: The views expressed herein are the author(s) alone.

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