Reflection on article 2 of the ICCPR: The role of human rights activists in diagnosing the lack of effective remedies

A basic premise in human rights work is that a right without an effective remedy is not a right at all. Where there are violations of human rights, there must be remedies. Most of the human rights problems in less-developed countries—less developed from the point of view of the rule of law—stem from remedies for rights being inadequate or non-existent.

Basil Fernando, Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

A basic premise in human rights work is that a right without an effective remedy is not a right at all. Where there are violations of human rights, there must be remedies. Most of the human rights problems in less-developed countries—less developed from the point of view of the rule of law—stem from remedies for rights being inadequate or non-existent.

For example, a country may say that people have a right not to be extra-judicially executed. However, if a person is extra-judicially killed, the country’s legal system may not yet have developed a method to stop any attempt by the state to extra-judicially execute a person. That the state has not yet developed a system to stop state agencies’ extrajudicial executions means that the right not to be extra-judicially killed is a mere abstraction that in real life does not apply.

This example can be applied to every other civil and political right. These include rights against illegal arrest, illegal detention, punishment without fair trial and the use of torture; the right to express one’s opinions freely, to associate freely, and to elect a government freely. All these rights must be safeguarded by measures that guarantee them effectiveness. Where rights are violated, the legal process must provide a person with the means to obtain a remedy. Therefore, the idea of an effective remedy is integral to the protection of rights envisaged in the entire civil and political rights framework.

The essence of the work of a human rights activist too is about protection. It is about trying to build the capacity to protect rights whenever threats to them arise. Human rights education, particularly in countries where the legal systems have not yet been thoroughly developed in terms of the rule of law and democratic institutions, must therefore concentrate on helping activists to think through how their country systems for protection of rights can be improved.

Article 2 of the International Covenant on Civil and Political Rights (ICCPR) deals with the implementation of the rights agreed upon by states parties to the covenant. It postulates that the government is under an obligation to provide an effective remedy for the realisation of rights in the covenant. According to article 2, an effective remedy requires legislative, judicial and administrative measures.

Legislative measures

The domestic law should provide avenues for remedies. This means both laws that clearly articulate the rights that they are supposed to protect, and also that contain procedures by which a person can protect his or her rights. Without law, no effective means exist to protect rights. State officers will not act unless laws impose obligations to do certain things in response to complaints about violations of rights.

Therefore, in working for human rights, activists must examine whether domestic laws provide avenues so that rights can be realised. If domestic law does not provide the means to obtain remedies then those involved in human rights activism must work to bring about legislation by influencing legislators through electoral processes, or by any other means. In the process, they can educate the population about the need for law so that people will get involved. Human rights activists when developing strategies should think about various ways by which education can mobilize public opinion to achieve legislative change. How to motivate public opinion for legislative change is one of the most important functions of human rights activism.

Judicial measures

Once legislative changes are made, the possibility of effective judicial action is integral to the realisation of rights as envisaged in article 2. When people cannot get their rights enforced there is no way for them to get effective remedies for violations of rights, even if the legislative measures exist.

In human rights activism it is very important to understand the judicial process and the methods by which the it can be used to protect human rights in accordance with article 2. The judicial process is not just a matter for lawyers. It is a matter for all citizens concerned about their human rights.

The reason that the possibility of a judicial action is essential to the realization of rights is that the whole notion of achieving rights is associated with the idea that consequences follow when they are not respected. Government officers who are dealing with various issues need to have the sensation that if they do not respect human rights then they will be called to account.

Therefore, human rights activists should ask themselves, “If this right is not respected what will be the legal consequence? Is there a legal consequence already in the law which is enforceable?” If the answer is no, then if a law exists there is a big gap between the rights on paper and in reality, and it is the duty of the human rights activist to work to close the gap. This is not a small or trivial matter. It is a huge area of human rights work that needs in-depth understanding. If human rights activists do not understand this area or take it lightly, then they will not be able to work in a meaningful way. In all societies there are all kinds of obstacles for the development of judicial remedies, but human rights activists have to concern themselves with those issues if they are to honour their claim to be engaged in the work of human rights.

Administrative measures

The next aspect of the right to an effective remedy is the obligation of the state to provide administrative measures for the achievement of rights for its citizens. Legislation for a right and even the availability of a judicial remedy will be of little meaning unless the government provides the administrative measures necessary for the achievement of a right.

Administrative measures include the provision of finances necessary for the proper protection and implementation of a right. The government needs to provide money so that various activities to protect and implement a particular right can be done by state agencies as well as non-state actors. State agencies protecting and implementing a right should have the budgets they need to employ officers of necessary competence to do the tasks required at salaries commensurate to their skills and experience. They need facilities: offices and buildings, vehicles, communication equipment, money for overheads and so on. If these basic finances are not provided, then there will not be any or enough officers to carry out the duties necessary to see that a particular right is realised.

In countries where the rule of law and democracy are not established or are only minimally established, there are enormous deficiencies in administrative measures for protection of human rights. Without the necessary administrative institutions, it is almost impossible for a citizen to exercise his or her rights as envisaged by article 2. Rights may be recognized by the legislature, but when there are no officers to do the necessary work, or where there are too few, or officers that lack the requisite skills for the posts, then virtually nothing can take place.

What must human rights activists do to ensure that there are adequate budgetary allocations to achieve rights? Activists should study budgetary allocations and find out where they are adequate, where they are inadequate and where they have not been made at all. If human rights organizations do not have this kind of knowledge, it will not be possible for them to advocate effectively for improvements of allocations to achieve particular rights. They may speak about the need for more money, more staff and more administrative measures in general terms, but they will not be able to make a serious contribution to the debate and make a real difference unless they can go into this aspect of the work in detail.

Again, public engagement is essential if the state is to be pressed into providing sufficient funds for the implementation of a right. Human rights activists, once apprised of the facts for themselves, need to be able to communicate them to the general public and point out various needs that are not being met. They should be able to identify where funds are not being made available, the persons responsible for making them available, and should also be able to speak intelligently and cogently about the size and nature of allocations needed if a particular right is to be protected and effective remedies afforded.


Human rights organizations have in the past done very little of this sort of work. They have often spoken on the philosophical bases and justifications of rights, and the sufferings that people endure because of the absence of rights. These are all necessary aspects of human rights work. However, mere repetition of the philosophical principles on which rights are based, the legal and moral principles on which rights were founded; and, enumeration of the sufferings of people in the absence of rights, will not realize those rights. Realisation of rights means that effective remedies exist in accordance with the provisions of article 2, that is, the legislative, judicial and administrative measures sketched here.

The role of human rights activists in the advocacy and advancement of legislative, judicial and administrative measures is essential for the achievement of rights and for the continued relevancy of human rights organisations insisting that states respect, protect and fulfil these rights. Human rights advocacy in our time is essentially all about engagement with the public on the one side and the state on the other in a conversation with both, at once urging and educating for effective, meaningful change. Ultimately, our work in all fields of human rights boils down to our capacity to effect changes to legislation, judicial processes, and above all, the budgetary arrangements of the state with which to secure particular rights.