SECTION VIII: ACCOUNTABILITY MECHANISMS
VIII-a. Varieties of Accountability
If the law says that people have a particular right, the law should assign responsibility for assuring the realization of that right to some specific agency. It should also provide for some sort of accountability to assure that the responsible agency does what it is supposed to do. Action intended to realize rights can go wrong in many different ways. For example, in programs intended to help alleviate malnutrition, income transfers to families intended to be used for food may be diverted to other uses. People who are entitled to particular benefits may not know about them, or they may have difficulty accessing them. A child who is fed at a centralized feeding program may for just that reason get less to eat at home. An effective system would notice these problems, and make constant course corrections to navigate the system toward the goal. The system as a whole would be refined over time until it worked well.
Social service programs usually reach only some of the needy some of the time. Governments may boast about the number of individuals served, but they tend to be silent about the number of people who are needy but not served. Accountability means paying attention to that shortfall. The obligation is not simply to provide some service, but to end malnutrition. Any government that really wants to achieve that goal should be willing to make itself accountable for meeting that challenge.
As indicated in Subsection V-a, a rights system can be viewed as a goal-seeking arrangement. The ultimate goal, overall, is the realization of all rights for all individuals. The rights represent the goals, and the obligation holder's implementation mechanisms provide the means for reaching the goals. Thus, the accountability mechanism is the rights system's means for making corrections in case there are deviations from the path toward the goal. It is the means for making sure that the government and other responsible parties meet their obligations. The accountability mechanisms watches the implementation agency to make sure it does its job well.
Accountability is important not only with regard to rights, but with regard to all aspects of governance. Thus, governments have their legislative auditors and inspectors general to make sure government agencies stay on track. They may have ombudsmen to provide a link between citizens and government agencies and help handle complaints against the government. All of these different types of mechanisms can be used to help assure that governments fulfill their responsibilities with regard to rights. In the United States, for example, there is a detailed compliance monitoring procedure to assure that the states provide disabled children with the services to which they are entitled under the law. In Hawai'i the Children's Rights Coalition launched a suit against the state government in 1993 and obtained a consent decree ordering the state to provide the mandated services. If there were a right to adequate nutrition on the law books, such a coalition also could bring action against the government for failing to prevent or remedy malnutrition.
There should be explicit standards against which the accountability agency evaluates the performance of the implementing agency. If people's entitlements are not clear and widely recognized and accepted, it will be difficult to hold anyone to account for failures to fulfill them.
Accountability mechanisms are institutional arrangements for providing feedback to the implementation mechanisms—the agencies designated with primary responsibility for assuring the realization of rights—and also to other parties that may have some role in assuring the realization of rights. An accountability mechanism functions by assessing the performance of the agencies responsible for the implementation of human rights, much as a police officer might monitor the speed of passing cars. It informs the responsible parties of those assessments in order to guide them toward improving that performance. In some cases the accountability mechanism may also have the power to impose sanctions of different types, but in many cases they function on the basis of "constructive dialogue"—persuasion rather than punishment.
Accountability mechanisms may take several forms. In regard to national human rights performance, accountability from "above" comes from international organizations, particularly the United Nations treaty bodies. There is a kind of "horizontal" international accountability when one nation state offers guidance to another, guidance that is between peers. That is, states are peers in principle, on the the basis of their "sovereign equality". Guidance from "below" comes from within the nation, from the civil society through concerned organizations and the population as a whole, and most importantly, from the rights holders themselves.
When nations critically assess one another's human rights performance, that can be viewed as a kind of "external horizontal" accountability. There is also a kind of "internal horizontal" accountability when some government agencies monitor the performance of other government agencies. While this has always been carried out in some measure, it is now becoming systematic. Several national governments (e.g., Norway, South Africa) now ask government departments to submit regular reports on their performance in relation to human rights. In Norway, all ministries are required to submit periodic reports to the Minister for International Development and Human Rights on their human rights performance. These internal reporting procedures are comparable to the reporting by states to the global treaty bodies. In some, cases these reports by government agencies are directed to the national human rights commissions (NHRCs). The NHRCs use this information in preparing their reports for the global treaty bodies. However, the most important function of these internal reports is their use by the NHRCs to provide feedback to the government agencies on the quality of their performance.
In South Africa the reporting process has been systematized through the creation of "protocols" or questionnaires that guide the government agencies in the formulation of their responses. The information gathering system was mandated by paragraph 184(3) of the constitution of 1996:
In accordance with this paragraph, monitoring is undertaken in relation to housing, health care, food, water, social security, education, and environment. In parallel with the inquiries to government agencies, South Africa’s Human Rights Commission is also conducting a systematic survey of the public’s perceptions on the realization of socio-economic rights. The government is preparing a detailed report on economic, social and cultural rights in South Africa. It will be of great interest not only for the performance assessment that it offers but also for the methodological guidance it will provide.
When employees of government agencies are asked about their agency's human rights performance, some might answer with zealous confidence that everything they do is in the name of human rights, and some might react with puzzlement. Some staff members may have little knowledge or understanding of their agency’s roles in relation to human rights, either with regard to international law or even with regard to the relevant national law. They may have some sort of understanding of their agency’s objectives, but often it will be assumed that the agency is there to deliver a specific service, and not to reach any particular goal. If they do recognize that the agency has goals, few agency employees are likely to understand those goals in terms of the human rights framework. Certainly, few will view their agency’s clients or beneficiaries as having any particular entitlement to their services.
Some people think of accountability in relation to human rights exclusively in terms of justiciability, the question of whether and how rights holders can make claims regarding their rights in the courts in their national legal systems. However, accountability can be based on a much broader range of possible measures. As we have indicated, governments can be held accountable by many different parties, both inside and outside the nation. The means may be juridical (based on the use of judges and courts), or they may be administrative. For the United Nations treaty bodies, for example, there are well-established procedures through which they obtain information from national governments and from other sources, analyze that information, and then respond to the governments. They do not use juridical procedures. Details regarding the procedures used by the UN treaty bodies are available elsewhere (cf. Alston 1992; Rosas and Scheinin 1995).Within countries, mechanisms vary. In many cases there is heavy reliance on the existing judicial system, and no special institutional arrangements are made for dealing with human rights issues. The national human rights commissions that have been established vary a great deal in their methods of operation, and many are still formulating their procedures.
A well-developed rights system has distinct institutional arrangements created by government and dedicated to the function of making sure that rights are realized. Nevertheless, it must be recognized that more informal means for holding governments to account also are of great importance. Many nongovernmental organizations—especially those that identify themselves as human rights organizations, such as Amnesty International and Human Rights Watch—use publicity to highlight government wrongdoing with regard to human rights. News media often do similar expos�s, but they do not do it as systematically as the NGOs. In some cases there may be popular demonstrations and social movements. Action may even be taken to overthrow the government.
In some cases these challenges to government are explicitly based on references to international human rights law, or to the corresponding national law. Often, however, there is no reference to the law, and the claim is simply that the government is obviously doing bad things. To illustrate, when evidence is found that a government has allowed its agents to torture private citizens, hardly anyone troubles to cite the particular law that is violated. When the suspension of food subsidies leads to food riots, little attention is given to the relevant law.
It may be difficult to judge whether popular social movements should be regarded as human rights actions, and thus as means for holding governments to account with regard to the human rights performance. Ultimately, the test is simply whether or not a basis for the claims of that movement can be found in the International Bill of Human Rights.
Continue to VIII-b. Remedies for Rights Holders
Subsection VIII-a last updated on April 27, 1999