Which is the greater challenge to international human rights protection in the modern age: deficiencies in the treaty and charter based monitoring systems, or the ability and willingness of states to fulfil their human rights obligations

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“The rights of every man are diminished when the rights of one man are threatened.”

Introduction

The protection of international human rights has faced an excessive amount of challenges. One could argue that the main challenge to international human rights protection is the deficiencies in the treaty and charter based monitoring system. However, it appears that states inability and unwillingness to fulfil their human rights obligations is the greater challenge. This statement could be seen from the nature of international affairs itself, where states consent play the most important role when it comes to enforcing treaties. States unwillingness will undermine the work of treaty and charter-based monitoring system, for instance by reluctant to submit state reports, and often, to ratify treaties with reservation. Moreover, states compliance is a major issue, the reality sometimes does not appear to be consistent with their statement in a treaty. In addition, most developing and least-developed states are unable to fulfil their human rights obligations due to lack of resources and funding. From all the issues, the crux of the matter is, states often reluctant to fulfil its human rights obligations because it is contradicted with their cultural and religious beliefs. The example of it could be seen from the Convention on the Elimination of all Forms of Discrimination against Women. The solution to such a complex issue in the realm of international human rights protection relies on states because no treaty bodies neither or charter-based monitoring system could enforce states without their ability and willingness to fulfil their human rights obligations.

In between Unwillingness and Inability

I.   Unwillingness

Naturally, international law is a law created between states and for states. The principle of consent applies when it comes to gathering an agreement or treaty. Writing in the Vienna Convention on the Law of Treaties[1]creating a treaty requires consent.[2]When it comes to treaty enforcement, states willingness to give consent to a treaty play an important role to determine the work of the treaty. Even in nature itself, it appears that states willingness and ability to fulfil its human rights obligations is the greater challenge to the protection of human rights. Indeed, when states give its consent, it does not merely mean that the protection of human rights is guaranteed. There are still other challenges, for instance, the issues with states reports, reservations of treaties, compliances, and their inability to fulfil human rights obligations.

In order to make sure the implementation of human rights in each state work accordingly, human rights treaties bodies requested states to submit report once a year.[3]This report also produced to help treaty bodies to understand any problems made in implementing treaty obligations. This could be seen as a good effort from the treaty bodies to manage the enforcement of human rights. However, the problem with this is that states often do not comply with the rules and have been reluctant to submit a report. This statement is supported by the fact that many states have not submitted their report on time, and some overdue up to two decades.[4]From the OHCHR state’s reports data, it is shown that there are 598 overdue reports and 170 of the overdue reports have exceeds for more than ten years.[5]Even worse, some states have not submitted the report and some have submitted without evidence. Although lack of capacity to deal with states reports could be seen both from the deficiency of treaty and charter-based monitoring system and states unwillingness to produce reports on time[6], the main issue relies on states. Seeing from a realistic perspective, any government from any states would not produce a report showing evidence that shows they have violated international human rights law. Hence, to deal with the issue, the government has to be willing to contribute and sustain the implementation of international human rights itself, otherwise, the work of treaty and charter-based monitoring system would be limited. As it has been said, without political support, the implementation of state reports by the treaty-monitoring bodies are limited.[7]

Moreover, it has been argued that perhaps treaties bodies might have worked effectively if states are not allowed to have reservations. Written in Article 2 paragraph 1 (d) of the VCLT[8], reservations give permission for states to be able to restrict their obligations in treaties they are going to ratify.[9]Not surprisingly, in practice, states often do applies reservations to treaties they ratify.[10]The issue with reservation is that the application of it to certain treaties might not actually be consistent with the purpose of the treaties itself in the first place.[11]Some of it has been seen as incompatible with the purpose of the treaty.[12]In other words, it could be argued that it is aimless for states to sign a treaty if they decided to give reservations on every treaty they ratify.

On the other hand, if in order for the treaty to work effectively reservation should not take place, this could be argued as an almost impossible task. Such a thing would be difficult to implement because there is a high possibility that states might not be willing to participate in the treaty. The dilemma is in between not allowing states to make reservations and risks of having fewer states participate in the treaty or placing no limits on reservations and facing a high possibility for these to defeat the purpose of the treaty itself.[13]Those who agreed with reservations approach believe that widespread participation in the treaty is a worth paying for letting states to have the rights for reservations.[14]Additionally, it has been argued that reservation is important in order to make human rights agreements effective, the reason is that the acceptance of human rights principles implicate certain levels of uncertainty and reservations could be seen as an assurance that states interest will still be guaranteed.[15]As it always appears to be, states interest is what needs to be considered in every decision made in the international affairs. Nevertheless, a treaty will not work effectively if states are not willing to compromise its national interests for the benefits and purpose of human rights protections. Ideally, states should realise that it is crucial for to protect human rights, without considering its national interests. However, such a thing is almost impossible to happen.

Furthermore, the creation of treaty often is associated with the assumption that states will comply with their obligations, this compliance is related to a complex process on states ability and willingness to meet their obligations.[16]Compliance is a major issue, even when states have declared that they will protect the rights of its citizens accordingly with one of the ten human rights treaty bodies, the implementation of it is another thing. Despite what is written in the treaty bodies (by signing the treaties they comply to respect those rights written in the treaty), it does not merely mean that they will fulfil its obligations. The number of treaty parties does not solely mean that it provides better protection to human rights, as often there is a difference in between motives to be a part of the treaty and the reality of the implementation of the treaty itself.[17]One interesting argument raise is that states often comply with certain human right treaties because they do not want to seem not being supportive of the movement of human rights protection. Most states do not want to be seen as states that appear to practice badly in international affairs.[18]For instance, four and a half years after the 1898 Convention on the Rights of the Child entered into force, it was ratified by 170 states[19]However, despite this remarkable participation, it could be argued that any government would not want to appear as those who do not support the protection of the child, regardless whether the reality may be in their states.[20]Therefore, even if states appears to comply with human rights treaties, what happens in reality inside the states itself might be different with what is expected.

II.   Inability

Another issue needs to be considered is states inability to apply the international human rights standards provided in the relevant treaties. When states reveal its willingness to protect human rights, it does not unfold its ability to fulfil it.[21]From the government point of view, it might be better to ‘committing themselves to something which they are not in a position to deliver’[22]rather than to be seen as states that are not willing to comply with international human rights treaties. This cases often happens in developing states or least-developing states that considerably economically impoverished. These states are not able to provide food, water, health care, education, and other basic necessity to its citizens due to the lack of resources and finance. Within this, for instance, it is highly likely that these states are incapable to attend meetings held by the treaty and charter-based monitoring system in the United States or Switzerland. It could be argued that had treaty and charter-based monitoring system would hold meetings outside Geneva or New York[23]it could help those states who are not able to attend the meetings in both cities due to limited resources or funding. This could be seen as a deficiency of treaty and charter-based monitoring system that is not able to cover states inability. Nevertheless, even if treaty and charter-based monitoring system would hold meetings somewhere else that are more convenient to states parties, it does not guarantee that states would be able to provide necessary reports or follow legal procedures required, due to lack of education and sources. For instance, some states might be lacking the capacity to draft appropriate implementing legislating.[24]Their inability to process law and legal documents at the level of international standards will be another obstacle. 

Does this mean these states have failed to fulfil their human rights obligations? The answer to such a question could be argued as a ‘yes’. However, whether it would be right to blame the government or not remain uncertain. Regardless, no matter how sufficient treaty and charter-based monitoring system is, unless the treaty and charter-based monitoring would be willing and able to provide finance to the developing and least developed states, when states are unable to provide basic human rights protections due to lack of finance, the protection of human rights will fail. Besides, even occasionally human rights are violated on the basis of economic reasons, mostly the reasons are political.[25]Therefore, even states inability consists of economic factors, the strongest argument lay on the government and political situation within the states. States often lack political will to bring its laws accordingly with international standards.[26]This statement will be discussed further in the next section.

The Challenge of Women’s Rights Protection under the Convention on the Elimination of All Forms of Discrimination against Women

CEDAW entered into force in 1981 less than two years after its adoption by the General Assembly.[27]Interestingly, while the speed of commitment shows by states to this treaty was considerably a lot compared to other treaty bodies, it has been interfered by reservations.[28]Until recently, CEDAW has been ratified by 186 states, consequently with many reservations.[29]One could argue that it is better for states to participate and having reservations other than not participate. However, continuing from a discussion in the previous section, states reservations could be seen as the same meaning of not ratifying the treaty, if, in the end, those reservations constitute the main value and purpose of the treaty. In the case of CEDAW, the fact that by January 1995 there were 42 states made reservations on the treaty[30]shows how challenging the protection of women’s right is, despite what it appears to be widely supported. Most of these reservations came from states that apply Islamic Sharia law on their legal system.[31]This is a problematic situation because even these states ratified CEDAW, the principle of Islamic law is contradict with supporting equality between women and men.[32]

For instance, Qatar put reservations on Article 15 paragraph 1, Article 16 paragraph 1 (a) and (c) and Article 16 paragraph 1 (f) – all for the same reasons, as it is not consistent with the provisions of Islamic law.[33]Article 15 (1) providing women equality with men before the law[34]is in contrary with Islamic sharia law that also requires to be applied before the law. Same goes to Article 16 related to marriage, women’s do not have equal provision with men when it comes to marriage in the Quran.[35]Similarly, with Qatar, United Arab Emirates also made certain reservations based on its contrary principles with Sharia law. For instance, reservations to Article 2 (f), which according to the United Arab Emirates, ‘violates the rules of inheritance established in accordance with the precepts of the Sharia’.[36]The term ‘inheritance’ is associated with a perception of a solid foundation of the state identity. When it comes to states identity, it is the core of the state, including the political situation, the state ideology, as well as the legal system. Changing the legal system of this states to apply norms and values from CEDAW, is made more difficult with the fact that their laws – Islamic and Sharia law – is something that has to inherit with them for centuries. This is a conflict that the solution to it is improbable and not something that could be changed by enforcement. Therefore, it does not matter how effective treaty and charter-based bodies would be if, in the end, their responsibility is to change a whole identity of a state.

To go into depth of the matter, states reservations could end up making states participation to a treaty incompatible with the object and purpose of the treaty itself. As an example, Qatar and the United Arab Emirates are objected to Article 2 of CEDAW, while objections and reservations to Article 2 are ‘manifestly incompatible’ with the purpose of the Convention itself in the first place.[37]It could be argued that had treaty and charter-based bodies have better enforcement, reservations might not necessarily need to take place. The crux of the matter is, it is very difficult for treaty and charter-based bodies to convince states that it is crucial to ratify the treaty without reservations. Women’s rights are important, many have acknowledged this, but some still have not, or even if some have, their acknowledgment of Women’s rights is limited with their beliefs. Most cases in CEDAW, the barrier came from the Islamic law that in itself stands in the way of providing basic equality for women and men in different aspects of life.[38]

Furthermore, the OHCHR provides help to the individuals that their rights have been violated by establishing the individual complaint procedures under the UN human rights treaties.[39]The procedure under the optional protocol stated that by becoming a party to the optional protocol of CEDAW, states recognised the existence of the committee – panel consist of 23 independent experts – to receive complaints from individuals that their rights have been violated.[40]Although around half of states parties of CEDAW have signed and recognised the optional protocol[41]many states have not signed the optional protocol. In other words, even the attempt of the treaty bodies to enforce the treaty more effectively is undermined by states willingness to participate to it. It indicates how substantial the power of ‘states willingness’ play in the protection of international human rights.

Eventually, it goes back to the basic principle of whether international human rights are universal or based on cultural relativism. At glance the term of ‘universalism’ and ‘cultural relativism’ might seem irrelevant to analyse the greater challenge of international human rights protection. However, if every state believe that the international human rights are a universal term, all states would be willing to fulfil their human rights obligations, regardless what their religious and cultural belief is. Thus, any reservations based on a cultural and religious basis, like the major issue on the protection of women’s rights under CEDAW, would not take place. Nevertheless, it does not matter how effective the treaty and charter based monitoring bodies work, eventually, the kind of problem that involves culture, religion and beliefs is not something that could be defeat by enforcement, it has to come from inside the states itself, realisation, willingness, and understanding that the protection of international human rights is more important than their own beliefs, in which the statement itself is very controversial.

Conclusion

The greater challenge to international human rights protection is states ability and willingness to fulfil their human rights obligations. From the nature of international law, states consent play an important role to determine states participation in relevant treaties. Besides, even when states have given its consent to human rights treaties, there are still lots of challenge that the treaty bodies and charter-based monitoring system have to face to protect human rights. For instance, states reluctance to submit the report on time or provide necessary evidence, reservations placed on treaties that were ratified by states, and states compliance after ratifying the treaties. Moreover, states inability to act accordingly with the human rights principle is an issue that needs to be solved from a different angle. Although, states inability play an important role in certain areas, in a place where states are able to meet the human rights standards, there are other obstacles that to overcome is almost improbable. The strongest one came from religious beliefs that are contradicted with the basic values of human rights. Example of this could be seen from the protection of women’s rights in CEDAW. The number of states reservations on CEDAW is very high and mostly came from states that implement Islamic and Sariah law, that some of the principles are not in line with the basic values of human rights. Providing solutions to this issue is an almost impossible task. Regardless, as it has been argued, the effective protection of human rights has to come from within the state itself.[42]Whether this is classified as ‘unwillingness’ or ‘inability’ eventually, it goes back to states, to what extent they would be able to fulfil their human rights obligations.


[1]Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UNTS I-18232 (VCLT).

[2]Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (2ndedn, Cambridge University Press).

[3]Office of the United Nations High Commissioner for Human Rights, ‘Annual Reports to the Human Rights Council’ <https://www.ohchr.org/EN/HRBodies/SP/Pages/AnnualreportsHRC.aspx> accessed 2 January 2019.

[4]Sir Nigel Rodley, ‘International Human Rights Law’, in Malcolm Evans (ed), International Law (Oxford University Press 2018).

[5]Office of the United Nations High Commissioner for Human Rights, ‘List of States Parties without Overdue Reports’ <https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/LateReporting.aspx> accessed 12 January 2019.

[6]Karl Hanson, ‘Strengthening legitimacy, effectiveness and efficiency of the UN Human Rights Treaty Body System’ (2011) United Nations Human Rights Office of the High Commissioner <https://www.ohchr.org/Documents/HRBodies/TB/HRTD/KarlHanson.pdf> accessed 7 January 2019.

[7]Rhona Smith, International Human Rights Law (8thedn, Oxford University Press 2018).

[8]Vienna Convention on the Law of Treaties 1969, art 2 (1) (d).

[9]Bantekas and Oette (n 2).

[10]Bantekas and Oette (n 2).

[11]Catherine Redgwell, ‘The Law of Reservations in respect of Multilateral Conventions’ in J.P. Gardner (ed), Human Rights as General Norms and A State’s Right to Opt Out (The British Institute of International and Comparative Law 1997).

[12]Ibid.

[13]Bantekas and Oette (n 2).

[14]Redgwell (n. 11).

[15]Markus Schmidt, ‘Reservations to United Nations Human Rights Treaties – the Case of the Two Covenants’ in J.P. Gardner (ed), Human Rights as General Norms and A State’s Right to Opt Out (The British Institute of International and Comparative Law 1997).

[16]Bantekas and Oette (n 2).

[17]Bantekas and Oette (n 2).

[18]Smith (n 7).

[19]Jenny Kuper, ‘Reservations, Declarations and Objections to the 1989 Convention on the Rights of the Child’ in J.P. Gardner (ed), Human Rights as General Norms and A State’s Right to Opt Out (The British Institute of International and Comparative Law 1997).

[20]Ibid.

[21]Jeremy McBride, ‘Reservations and the Capacity of States to Implement Human Rights Treaties’ in J.P. Gardner (ed), Human Rights as General Norms and A State’s Right to Opt Out (The British Institute of International and Comparative Law 1997).

[22]Ibid 123.

[23]Hanson (n 6).

[24]Bantekas and Oette (n 2).

[25]Smith (n 7).

[26]Bantekas and Oette (n 2).

[27]Jane Connors, ‘The Women’s Convention in the Muslim World’ in J.P. Gardner (ed), Human Rights as General Norms and A State’s Right to Opt Out (The British Institute of International and Comparative Law 1997).

[28]Ibid.

[29]Marsha A Freeman, ‘Reservations to CEDAW: An Analysis for UNICEF’ (2009) UNICEF Discussion Paper <https://www.unicef.org/gender/files/Reservations_to_CEDAW-an_Analysis_for_UNICEF.pdf> accessed 12 January 2019.

[30]Connors (n 27).

[31]Ibid.

[32]Ibid.

[33]Office of the United Nations High Commissioner for Human Rights, ‘Country Profile for Qatar: Status Ratifications and Declarations: CEDAW – Convention on the Elimination of All Forms of Discrimination against Women’ <file:///H:/Downloads/OHCHR_countryProfile_Qatar%20(2).pdf> accessed on 12 January 2019.

[34]Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) UNTS I-20378 (CEDAW) art 15 (1).

[35]Connors (n 27).

[36]Office of the United Nations High Commissioner for Human Rights, ‘Country Profile for United Arab Emirates: Status Ratifications and Declarations: CEDAW – Convention on the Elimination of All Forms of Discrimination against Women’ <file:///H:/Downloads/OHCHR_countryProfile_United%20Arab%20Emirates%20(1).pdf> accessed on 12 January 2019.

[37]Philip Alston and Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context (Oxford University Press 2013) 1082.

[38]Connors (n 27).

[39]Office of the United Nations High Commissioner for Human Rights, ‘Human Rights Treaty Bodies – Individual Communications’ <https://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx> accessed 5 January 2019.

[40]Office of the United Nations High Commissioner for Human Rights ‘Individual Complaint Procedures on the United Nations Human Rights Treaties’ (2013) UN Fact Sheet No.7/Rev.2.

[41]United Nations Treaty Collection, ‘Status: Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women’ <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-8-b&chapter=4&lang=en> accessed 8 January 2019.

[42]Alston and Goodman (n 37).

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“Knowledge makes a man unfit to be a slave.”

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