New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Forthcoming, Berkeley Journal of International Law

Abstract

Debates over the best way to identify human rights violations, assess compliance with treaty obligations, and measure human rights progress over time have preoccupied scholars and practitioners for many years. These debates have been especially pressing in the field of economic, social, and cultural rights, where the need for new methodologies has been felt most urgently. Quantitative data has been forwarded as a central tool in the drive for better methods of assessment, monitoring, and advocacy. Among quantitative tools, human rights indicators have been identified as especially powerful. Rights indicators are understood to have a variety of advantages: they render complex data simple and easy to understand; they can be designed to demonstrate compliance with obligations, fulfillment of rights, and government efforts toward these goals; and they are capable of capturing progress over time and across countries.

This Article closely examines the use of indicators by U.N. bodies charged with monitoring State compliance with human rights treaties. The Article places these efforts to create human rights indicators in conversation with scholarship on audit and standardization from the social sciences. We conclude that while there are very real drawbacks involved in the indicators project, debates about indicators may provide advocates with new opportunities to use the language of science and objectivity as a powerful tool to hold governments to account. However, because human rights compliance indicators threaten to close space for democratic accountability and purport to turn an exercise of judgment into one of technical measurement, advocates of human rights would do well to remain vigilant to effects of the elisions at work in the indicators project. The conundrum of democratic accountability and the failure to clearly locate responsibility for judgment in international human rights assessment exercises are not products of the tools chosen to carry out those exercises, but are instead structural problems, foundational to international human rights law as it exists today. Thus, some of the core problems we argue are inherent in the indicators project would still be present even if quantitative indicators were banished from human rights assessment projects. Nonetheless, the use of quantitative indicators tends to disguise those problems as technical ones of measurement and data availability.

The Article unfolds as follows: in Section I, we explore some of the conditions leading to the increasing reliance on indicators for monitoring the fulfillment and/or enjoyment of international human rights, especially economic and social rights. Using the example of the International Covenant on Economic, Social and Cultural Rights, we consider the way in which that treaty's monitoring committee has shifted from attempting to create and directly apply indicators in the measurement of compliance with treaty obligations to calling on States to identify and implement their own indicators. In Section II, we discuss several of the problems integral to the use of indicators in human rights contexts and what those difficulties have in common with the wider turn to auditing practices in management and control contexts. In Section III, we examine the ongoing efforts of the human rights treaty bodies and the U.N. Office of the High Commissioner for Human Rights to create international indicators applicable to all States, and we assess that effort in light of the problems discussed in Section II, as well as considering issues of authority and judgment in human rights law. Section IV considers human rights indicators as a technology of global governance, warning that-if not carefully designed to do otherwise-human rights compliance indicators have a tendency to close off spaces for participation and democratic contestation.

Date of Authorship for this Version

November 2008

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