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Student ID Number: 650042321
The enforcement and follow-up of the decisions of international human rights bodies is the weakest
link in the effort to achieve universal respect for human rights.- Critically discuss this statement
Word Count: 3727
Human rights enforcement bodies fall into two broad categories. Firstly, the judicial bodies that pass
judgements, such as the European Court of Human Rights, the Inter-American Court of Human
Rights and the African Court on Human and Peoples’ Rights and secondly, quasi-judicial bodies that
issue views or recommendations, such as the United Nations treaty bodies, the Inter American
Commission on Human Rights, the African Commission on Human and Peoples’ Rights and the
United Nations Universal Periodic Review mechanism. In both instances, the respondent states in a
given case are expected to comply with these judgements and decisions by virtue of being a party
that has accepted the obligations under a specific treaty.1 However, as Oette has asserted: “The
enforcement of judgements and decisions of regional and international courts and treaty bodies
constitutes a litmus test for the effectiveness of the human rights system. Delays and non-compliance
at the enforcement stage pose a continuous challenge that frustrates victims and threatens to
undermine the impact of the human rights bodies’ decisions.”2
Therefore, it is appropriate to considered to what extent the enforcement and follow-up
procedures, or lack thereof, can be considered the weakest link in the effort to achieve universal
respect for human rights. Generally, there appears to be a greater degree of compliance with
judgements of judicial bodies, namely the European Court and the Inter-American Court.3 Due in
large to the judicial and binding nature of their judgments decisions by courts are considered to
carry more weight and consequently instigate greater levels of compliance than their quasi-judicial
1 Lutz Oette, “Bridging the Enforcement Gap: Compliance if State Parties with Decisions of Human Rights Treaty Bodies.” (2010) 16(2) INTERIGHTS Bulletin, 51 column 12 ibid3 ibid
counterparts.4 Yet, within the last decade two notable reforms have occurred within the quasi-
judicial arena specifically within the UN human rights mechanisms. In 2014 the UN treaty body
system underwent modifications with the object of increasing its resources and effectiveness5 while
in 2006, the United Nations Commission on Human Rights was replaced by the Human Rights Council
and a Universal Periodic Review Mechanism (UPR) introduced.6 In light of these developments,
discussion will focus on whether or not the enforcement/follow-up procedures of these two bodies
are the weakest link in the effort to achieve universal respect of human rights.
As considered by Egan “An obvious starting point for proposals on intensifying implementation rates
is that of measures and procedures taken to follow up a […] recommendation.”7 Indeed, there have
been several proposals as to how best to improve this aspect of the system.8 However, the
enforcement of human rights is just one aspect of a longer process. As such, the shortcoming of the
other stages of the human rights mechanisms must also be discussed.
The UPR is a peer review mechanism9 mandated to “promote the universality, independence,
indivisibility and interrelatedness of all human rights.”10 Designed to review the human rights
situations in all UN Member States and the implementation of international norms and treaties on
the ground, 11 the UPR Working Group (consisting of the 47 Members of the Council), along with any
other UN Member State that wishes to take part in the dialogue, 12 reviews the human rights
4 Ibid column 25 Navanthem Pillay, Report of the UN High Commissioner for Human Rights on the strengthening of the Treaty Body System (June 2012)6 Weissbrodt, D. “United Nations Charter-Based procedures for addressing human rights violations” (2011) in Gilbert, G. Hampson, F and Sandoval, C. (eds) The Delivery of Human Rights: Essays in Honour of Professor Sir Nigel Rodley, (Routledge, 2011) 13-38;G.A. Res.60/251, Establishing the Human Rights Council and the Universal Periodic Review7 Egan, S. “Strengthening the United Nations Human Rights Treaty Body System” 13(2) (2013) 13(2) Human Right Law Review 209, 2348 Systematisation of better coordinated and inclusive follow-up procedures; the development of a specific intern-committee ‘treaty body follow-up mechanism’ for all treaty bodies, or the establishment of a dedicated unit of follow-up or senior level ‘Treaty Body Follow Up Coordinator’ post within the Office of the High Commissioner for Refugees. 9 Analytical Assessment of the UPR, 2008-2010, upr-Info.ord (2010) 810 Human Rights Council Res.5/1 Institution Building of the United Nations Human Rights Council, B1 (para 3) a.11 Analytical Assessment (n-9) 712 http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx
situation of the subject state and produces an outcome document detailing the Group’s decisions on
that state’s human rights status and its recommendations for improvement.13
Considered to be the “cornerstone” of the UPR, these recommendations constitute the state’s
roadmap for the next four years to improve human rights.14 In his assessment of the
recommendations of the UPR’s first seven sessions, Professor Edward R. McMahon found that, of
the 10262 recommendations made,15 the majority involved either a recommendation to take a
general action, such as improving the situation of minorities, or comprised a specific action, such as
amending a law or establishing a mechanism.16 However, as noted by Oberleitner, acceptance of a
recommendation depends on the subject matter rather than the wording or provisions of the
recommendation. For instance: “states opposed to discussing sexual orientation as a human rights
matter are likely to reject even the vaguest mention of the topic while they are prepared to accept
other, more specific, action-orientated and costly recommendation without hesitation.” 17
Alternatively, the “care for comparative advantage” i.e. the desire to be at least as ‘good’ but not
better than other comparable states nevertheless, may be a driving force for adherence to
recommendations.18 Promisingly, the UPR maintain a 100% participation rate and therefore “is a
significant innovation of the Human Rights Council which is based on equal treatment for all
countries.”19 As such, this aspect of the process appears unsullied. However, the real question arises
as to how effective the UPR is in following-up and enforcing its recommendations.
Promisingly, some states have already started the follow-up process to implement the report
recommendations.20 As noted by Brett, following its review Barbados opted for the abolition of the 13 ibid14 Analytical Assessment (n-9) 915 UPR Infor, “Data Base of UPR Recommendations” available at http://www.upr.info.org/database/ accessed 04/01/201616 McMahon, Edward R. “Herding cats and Sheep: Assessing State and Regional Behaviour in the Universal Periodic Review Mechanism of the United Nations Human Rights Council,” July 2010. 17 Oberleitner, G., “Countering Ritualism: What Does It Mean To Follow-Up Human Rights Recommendations?” Paper Delivered at ‘The Rituals of Human Rights Workshop Centre for International Governance and Justice, Regnet Australian National University Canberra, Australia, 25-27 June 2014. 18ibid19 Analytical Assessment (n-9) 1120 ibid 12
mandatory death penalty and a change in its domestic legislation.21 Furthermore, Barhrain’s National
Plans of Action included UPR recommendations and its government formed a steering committee
with NGO representatives to monitor the implementation of the Action Plan.22
One reason for the apparent success of the implementation of the recommendations is that states
are afforded the opportunity to respond to the recommendations and detail whether they ‘accept’
or ‘reject’23 the suggestion with only accepted recommendation going on to be implemented.24
However, this ‘freedom of decision making’ also permits states to reject recommendations.25 This is
a key weakness of the UPR system as the implementation of a state is based on the ‘good-will’ and
responsibility of the state. This can be compared to the treaty bodies system where the committee
of experts impose the recommendations for mandatory implementation. Nevertheless, reasons for
rejections should be valid. For instance, both Pakistan and Iran rejected recommendations asserting
that they “were neither universally recognised human rights nor conform to its existing laws, pledges
and commitments.”26 Assuming that a recommendation can be irrelevant to a state, it is useful to
have this rejection option. However:
“States giving irrelevant reasons for rejecting recommendations that could protect the human rights
of its people prevent the HRC from successfully implementing the UPR mandate. Such actions hinder
the objective of the UPR which is to improve the global human rights situation.”27
Treaty bodies and special rapporteurs are also able to offer recommendations during the UPR
process. However, their recommendations should be distinguished from those of states.28The legal
nature of the treaties makes it mandatory for states to comply with recommendations of treaty
21 Brett, Racel, A Curate’s Egg. UN Human Rights Council: Year 3. 19 June 2008 to 18 June 2009, Haman Rights and Refugee Publications, Quaker United Nations Office. August 2009, 1122 IPR Info, “Follow-Up” available at http://www.upr-info.org/Follow-up-html accessed 02/01/201523 Other responses include: not clear/ general response and pending/no response.24 Analytical Assessment (n-9) 1425 ibid1626 FIACAT, “Universal Periodic Review: An Ambivalent Exercise,” Report and Recommendations April 2008-December 2009 (December 2009) 1927 Analytical Assessment (n-9) 1628 ibid 19
bodies. As such, a state cannot reject such a recommendation under the guise of ‘freedom of
decision making.’29
Furthermore, whilst the subject state may be requested to submit a mid-report on how it is
complying with its human rights obligations, the lack of a mechanism to measure the
implementation of a recommendation by a state acts to further undermine the system in its
enforcement and follow-up. 30
Therefore, there are limits to the follow-up and enforcement aspect of the process. However, it is
not the only short-fall to the system. In terms of participation, during most sessions the Western
European and Others Group was the most active and in general, regional groups play an important
role in states’ contribution. The trend is that most active group in the review sessions the one to
which the state under review belongs. 31 However, there is the noted risk that states may act more
favourably towards states within their region or with whom they have other relations and therefore,
not provide an unbiased critique of their human rights status.32 Therefore, this poses a challenge to
the pursuit of universal respect of human rights in that not all human rights violations of states will
be ‘prosecuted’ with equal vigour.
The second four-year cycle of the UPR (2012-2016) is currently underway and is largely devoted to
following-up the recommendations made in the first cycle. As such, the effectiveness of the system
to promote universal respect for human rights can better be examined once completed. Promisingly,
the system has publicised its potential for the way it caters for the ‘triangulation’33 of reporting,
recommending and follow-up.34 Some innovations have been devised in the first cycle, such as the
29 ibid30 For recommendations on improving follow-up process including, establishing a concrete mechanism to evaluate the implimentation of recommendations by states see: Analytical Assessment (n-9) 22Analytical Assessment of the UPR, 2008-2010, upr-Info.ord (2010) 1731 Human Rights Council Res.5/1 Institutional building of the United Nations Human Rights Council E 3 Para 32 Analytical Assessment of the UPR, 2008-2010, upr-Info.ord (2010) 832 Analytical Assessment (n-9) 1633 Miloon Kathari, “From Commission to the Council: Evolution of UN Charter Bodies,” in The Oxford Handbook of International Human Rights Law, ed Dinah Shelton (Oxford University Press, 2013) 61834 Oberleitner (n-17) 9
submission of mid-term report on implementation by a number of states and the involvement of
civil society actors and other stakeholders has been high.35 However, the potential for failure is
equally great. The UPR has issued over 11,000 recommendations that need to be implemented by
states and reported back on, there are also uncertainties on how progress (on implementation) will
be measured, and maintaining the motivation generated in the first cycle will remain a challenge.36
Furthermore, uncertainty surrounds the follow-up and enforcement of the UPR, it may nevertheless,
transpire that the recommendations themselves are weak , potentially due to bias, and do not
promote human rights compliance to the best of their ability in the first instance. It is only upon
examination of the result of the second cycle that the effectiveness of the system can be truly
measured.
It is important to remember that the UPR does not work in isolation form other human rights bodies’
mechanisms and specifically seeks to compliment the work done by the human rights treaty
bodies.37 Accordingly, it is also relevant to examine the work of the treaty bodies in their ability to
monitor the implementation of the key human rights treaties and ensure universal respect for
human rights.
Professor Heynes and Professor Frans Vijoen both regard the treaty body system as “custodians of
the legal norms established by the human rights treaties”38 while UN Secretary-General Ban Ki-Moon
has chimed:
“The United Nations Treaty Body System, which combines noble ideals with practical measures to
realise them, is one of the greatest achievements in the history of the global struggle for human
35 ibid36 ibid37 Analytical Assessment (n-9) 1038 Heynes, C. and Vijoen, F. The Impact of the United Nations Human Rights Treaties on the Domestic Level, (Kluwer Law International, 2002)
rights. The Treaty Bodies stand at the international human rights protection system as engines
translating universal norms into social justice and individual well-being.”39
Despite this, in 2006 the High Commissioner for Human Rights, Louise Arbour, voiced concerns
about the “ad hoc manner in which the treaty body has grown [and] the often absence of effective,
comprehensive follow-up mechanisms for recommendations.” 40 This echoed the earlier statement
by the Secretary-General that:
“the existing treaty bodies and human rights mechanisms and procedures constitute a large and
intricate network. The growing complexity of the human rights machinery and the corresponding
burden of reporting obligations strain the resources of member states and the secretariat. As a result
the benefits of the current system are not always clear.”41
In June 2012, the UN High Commissioner for Human Rights, Navanethem Pillay, published her report
on treaty body reform.42 Drawing heavily from the earlier work of O’Flaherty43 and the Dublin
Outcome Document44 the report made several recommendations pertaining to improving the treaty
39 Forward to the United Nations High Commissioner for Human Rights on the strengthening of the human rights treaty bodies, UN Doc.A/66/860, 26 (June 2012) at 740 O Flaherty, M. “Reform to the UN Human Rights Treaty Body System: Locating the Dublin Statement” in Gilbert, G, Hampson, F, and Sandoval C (eds) The Delivery of the Human Rights: Essays in Honour of Professor Sir Nigel Rodley (Routledge, 2011) 68, 7041 ‘Strengthening the United Nations: an agenda for change,’ Report of the Secretary-General A/57/387, (9 September 2002) 11 para 5242 Pillay (n-2) 43 Sustained published research in the area of UN treaty body reform has positioned O’Flaherty as the principle international specialist in the area. He led the ‘Dublin Process on Strengthening the United Nations Treaty Body System’ a process that is acknowledged globally as the primary forum for the reform of the treaty body system. See: REF2914, Impact case study Ref3b available at http://www.ref.ac.uk/about/guidance/faq/impactcasestudiesref3b/ accessed 27/12/201644 The Dublin Process was initiated by the High Commissioner for Human Rights in September 2009. The aim was to encourage all relevant stakeholders—states, treaty body experts, NGOs, national human rights institutions (NHRIs), academics and UN entities—to develop proposals to strengthen the treaty body system. In November 2009, a group of current and former treaty body experts convened in Ireland and issued the “Dublin Statement” (January 2010) to establish principles to underpin the discussions on treaty body strengthening. Stakeholder discussions and consultations took place (2010-2012) and the OHCHR (2011) put together a non-exhaustive list of proposals based upon the consultations. In the same yea, stakeholders reconvened in Dublin and issued the Dublin II Outcome Document. It provides a summary of the proposals and
body system. In 2014 General Assembly Resolution 68/268 was adopted and gave life to some, but
not all, of report’s suggestions for reform; mainly at the administrative and procedural level.
However, Ploton45 has criticised that:
“Various proposals focused on improving treaty body impact, such as having systematic follow-up
mechanisms at national level for the implementation of their recommendations, were ignored. As a
result, the treaty bodies are likely to continue adopting thousands of recommendations in dozens of
countries every year, with unsatisfactory impact on the ground.”46
The resolution streamlines the treaty body process; saving on resources which are then re-invested
in the process.47 Fundamental criticisms of the system included: the late submission by state parties
of their state reports due, in part, to burdensome reporting requirements;48 the inability of the
committees to review states in a timely manner thus resulting in recommendations based on
outdated information;49 committee members accrediting more weight to NGO supporting
documents rather than state reports;50 duplication in the issues raised by the different committees51
recommendations that emerged from all stakeholder consultations- See more at: http://www.ishr.ch/news/treaty-body-reform-dublin-process#sthash.IqCcYR5T.dpuf accessed 03/01/201645 Vincent Ploton is the Head of External Relations of the Geneva-based Centre for Civil and Political Rights. He has worked for nearly seven years at the Association for the Prevention of Torture, and has more than 10 years of experience in the humanitarian and human rights field.https://www.opendemocracy.net/openglobalrights/vincent-ploton/more-ambition-required-to-reform-un-treaty-bodies accessed 03/01/201646 Vincent Ploton, “More ambition required to reform UN treaty bodies” Open Democracy, 10 July 2014 https://www.opendemocracy.net/openglobalrights/vincent-ploton/more-ambition-required-to-reform-un-treaty-bodies accessed 03/01/201647 Pillay (n-2)48 The United Nations High Commissioner for Human Right, OHCHR Plan of Action: Protection and Empowerment (May 2007) para 749 Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, Report the Secretariat, (22 March 2006) HRI/MC/2006/2 para 1850 “Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights”, Note by Secretariat (5 September 2003) A/58/350 para 4351 “Methods of work relating to the State reporting process: Background document prepared by the secretariat’, Second inter-committee meeting of the human rights treaty bodies, (18-20 June 2003) HRI/ICM/2003 para 28
and finally; concluding observations are ineffective, containing little guidance on how laws are to be
interpreted, implemented or upheld by states.52
The resolution promotes streamlining the process by introducing a ‘Simplified Reporting
Procedure’53, the option for states to submit a ‘Common Core Document’54 to each of the
committees alleviating the burdensome nature of the process. Fundamentally, Point 6 “[E]ncourages
the human rights treaty bodies to adopt short, focused and concrete concluding observations,…”
aimed at improving the efficiency of the system and also the ability for states the clearly understand
their obligations.55 Point 26 also increases the meeting time of the treaty bodies allowing for a more
thorough process.56 Finally, Point 38 promotes harmonisation of the system: “in relation to
procedural matters, including with respect to formulating conclusions on issues related to working
methods and procedural matters, promptly generalizing good practices and methodologies among
all treaty bodies, ensuring coherence across the treaty bodies and standardizing working methods.”57
These Points, as well as others, are aimed at alleviating the aforementioned shortcomings.
Optimistically, reduced waiting times, carefully considered reports and reduced duplication of issues
will mitigate state parties’ frustration with the system.58 The increased time of the Committee bodies
to consider a state will enable them to produce a more tailored response in their concluding
observations; providing greater guidance on how best to implement the recommendations.59 After
all, without effective recommendations, how can a State, in turn, be expected to implement them
effectively? In this instance, the question does not even progress to issues of enforcement but
rather, stagnates on the presentation of a recommendation that a state is expected to enforce.
52 The United Nations High Commissioner for Human Right (n-48) para 753 General Assembly Resolution 68/268 Point 154 ibid Point 355 Pillay (n-2)56 ibid57 General Assembly Resolution 68/268 Point 3858 Pillay (n-2)59 ibid
Ultimately, the reforms should result in states being reviewed more regularly and provided with
more proficient recommendations. Positively, this should increase the ‘integrated nature’ of the
system as part of regular state practice resulting in “greater acceptance of state parities” of the
committee recommendations.60
Nevertheless, the follow-up procedures of the treaty bodies are recommended for improvement.61
However, “while is seems that a combination of these various ideas would undoubtedly enhance the
rather bare-bones follow-up procedure currently operated by many of the treaty bodies, it is equally
clear that the current resourcing of the treaty body system makes it almost impossible to envisage
their adoption in practice involving as they would a significant injection of human and financial
capital.”62
In both instances, the UPR and treaty bodies can use rapporteurs to organise and manage follow-up
and to ensure the flow of information, assess implementation and persuade states to implement
recommendations.63 For example, the Rapporteur of the Human Rights Committee in 1990 was
tasked with, among other things, advising the committee on matters of implementation64 after which
the committee could issue the state another recommendation based on the information.65
However, given that no other means are available, the rapporteur system seems to have little effect
beyond simply obtaining information.66 Alternatively, human rights bodies mandated to conduct
60 Oette (n-1) column 261 For instance, the idea for the systematisation of better coordinated and more inclusive follow-up procedures, the development of a specific, inter-committee ‘treaty body follow up mechanism for all treaty bodies or the establishment of a dedicated unit on follow-up or senior level Treaty Body Follow-up Coordinator with in the Office of the High Commissioner for Human Rights.Egan (n-7) 234
62ibid63 Oberleitner, (n-17)64 See Report of the Human Rights Committee, UN Doc. A/45/40 (1990), Vol. I, 144-145 and Voll II, Appendix XI, 205-2-16. The functions have since been carried over to the Committee’s Rules of the Procedure.65 See: Open Society Justice Initiative, From Judgment to Justice, 123-124 available at https://www.opensocietyfoundations.org/sites/default/files/from-judgment-to-justice-20101122.pdf accessed 21/12/201566 ibid 141
country visits can resort to follow-up country visits to prompt states of their obligations, inviting
progress reports and usually targeting specific states by increasing the frequency of state visits.67
However, these visits, as all other aspects of the system, are constrained by their finances. Indeed
there is no specific budget allocated to these follow-up activities.68 Moreover, as Oberleitner
concludes: “such practices to manage follow-up generally replicate the activities of human rights
bodies in generating and processing information and is hampered by many of the same
constraints.”69 Therefore, increasing its finances unto itself may not yield any greater results or
enhance compliance beyond that which already exists. As such, the enforcement aspect to the
system is feeble.
Overall, ‘follow-up procedures’ remain the least developed70 and underfinanced aspect within the
UN human rights systems.71 The adherence to UN human rights bodies’ recommendations, remain at
the mercy of the state’s will to comply. Nevertheless, the need for follow-up procedures may be
mitigated by the improved quality of committee reports anticipated by the re-allocation of
resources. To invest in enforcement and follow-up without first addressing the earlier shortfalls of
the system would be much like putting the cart before the horse.
Overall, the critique that: “[T]he treaty body system remains process driven rather than rights and
results driven. All efforts are focussed on reviewing the reports states submit, but too little is being
done once recommendations are adopted to ensure compliance and implementation”72 is justified.
However, it is vital to remember that: “The implementation of treaty body recommendations remain
the primary responsibility of the state parties.”73 Therefore, effort to first improve the efficiency of
67 See: Piccione, T. “The Future of the United Nations Special Procedures” (2013) Brookings Institution 733 http://www.brookings.edu/research/papers/2014/01/future-united-nations-special-procedures-piccone accessed 12/12/201568 See: Open Society Justice Initiative (n-65) 124-13569 Oberleitner (n-17)70 Ibid 271 OHCHR, “Strengthening the United Nations Human Rights Treaty Body System- Dublin II, Meeting: Outcome Document” (November 2011) 2072 Ploton (n-46)
73 Pillay (n-2)
the reporting, the quality of the committees’ recommendations and consequently improve the
ability of state parties to implement the recommendations is warranted; to focus on enforcement
and follow-up prior to addressing these issues would be futile. Nevertheless, if the aims of the
reform are realised, yet states still fail to comply with treaty body recommendations, enforcement
can only then be considered the weakest link in the system.
So far, discussion has focussed on the assumption that all states ‘want’ to implement
recommendations but are unable to do so effectively as a result of shortcomings in the treaty body
system. However, this is a naive assumption. There are a myriad of reasons for lack of state
compliance with both the UN human rights bodies, as-well as other quasi-judicial and judicial
decisions. For instance, states may have limited resources to implement a measures or simply lack
the political will. Furthermore, even where a recommendation is implemented, such as domestic
legislation, it may nevertheless fail to translate into a meaningful practice on the ground. For
instance, despite having one of the “world’s oldest and most developed legal frameworks for
responding to internal displacement”74 Colombia, has a “a crisis of protection” 75 whereby
“improvements for IDPs remain limited and gaps exists in the implementation of public policy and
specific programmes at national and local level.”76 Consequently, one is poised to ask: Are human
rights treaties and consequently human rights enforcement mechanisms the answer?
Hathaway’s study into the relationship between human rights compliance and the ratification of
treaties concluded that, on average, violations of abuses are lower in states that have not ratified a
particular international human rights treaty. 77 Moreover, Thynne contributes the difficulties in
74 Norwegian Refugee Council and Internal Displacement Monitoring Centre. “Global Overview 2014. People Internally Displaced by Conflict and Violence,” (May 2014), 42.75 Anyadike, Obinna. ”Colombia’s internally displaced people caught in corridor of instability,” The Guardian, (Aug. 12, 2013) http://www.theguardian.com/global-development/2013/aug/12/colombia-internally-displaced-people-instability accessed 04/01/201676 UNHCR, “2015 UNHCR Country Operations Profiles- Colombia” http://www.unhcr.org/pages/49e492ad6.html accessed 14/12/201577 Hathaway, O. “Do Human Rights Treaties Make a Difference?” 111 (1935) (2002) Yale Law School, 1976-2025
enforcing human rights within the UN treaty bodies to the ‘fragmentation of international law.”78
While on the one hand, new treaties have been created to address new issues as they arise,79 on the
other, the expansion poses difficulties to the implementation of human rights law as a whole
creating “the danger of conflicting and incompatible rules, principles, rule-systems and institutional
practices.”80 Ultimately, conflicts in interpretation of rights could affect the way in which states
implement their obligations and their readiness to do so when they are faced with differing and
preferences from human rights bodies.81 However, Hathaway’s observations were retorted by
Goldman and Jinks in their critique that her methods of gathering empirical evidence failed to
consider critical factors of human rights compliance82and she acknowledged that, despite her
evidence, on the whole: “treaties remain an indispensable tool for the protection of human
rights.”83 Nevertheless, even judicial human rights bodies able to impose legal sanctions on violating
states have arguably limited effect within the sphere of actually enforcing human rights compliance.
As noted by Oette, “even here compliance is often confined to paying compensation and in some
instances making restitutions and/or adopting measures to prevent reassurance such as legislative
reforms, albeit often belatedly.”84 For instance, Russia in response to the decisions of the European
Court of Human Rights has been criticised for its apparent willingness to pay reparations for its
human rights abuses rather than undergo legislative reform.85 Huneeus has equally reported on the
78 Thynne, Kelisiana “Reform of United Nations Human Rights Institutions: Current Developments- Enhancing the rule of law in international rights treaty bodies.” 9 (2007) World Legal Information Institute.779 See “Fragmentation of International law: Difficulties arising from the Diversification and Expansion of International Law” Report to the Study Group of the International Law Commission, 18 July 2006 A./CN.4/L.702 para 980 Thynne, Kelisiana “Reform of United Nations Human Rights Institutions: Current Developments- Enhancing the rule of law in international rights treaty bodies.” 9 (2007) World Legal Information Institute. 781 Ibid;“Fragmentation of International law: Difficulties arising from the Diversification and Expansion of International Law” Report to the Study Group of the International Law Commission, (18 July 2006) A./CN.4/L.702For further reading see: Mechlem, K. “Treaty Bodies and the Interpretation of Human Rights” 42(905) (2009) Vanderbilt Journal of Transnational Law 905-947
82 Goodman, R. and Jinks, D. “Measuring the Effects of Human Rights Treaties 14 (2003) European Journal of International Law 171-18383 Hathaway, O. “Testing Conventional Wisdom” 14(1) (2003) European Journal of International Law 185-20084 Oette (n-1) column 285 Meleshevich, A. and Forstein, A. “Bringing Human Rights Home: The Challenges of Enforcing Judicial Rulings in Ukraine and Russia” 24(2) (2014) Indiana International and Comparative Law Review 269-311
struggles of the Inter-American Court to enforce its rulings.86 With this in mind, is sanction as a
means of enforcement appropriate?
According to Goodman et al, the socialisation of legal norms is the most effective method for
guaranteeing obedience to human rights.87 Identified as ‘acculturation’, it is the process by which
actors adopt the beliefs and behaviour of the surrounding culture.88 Due to this process, the human
rights values now held within a ‘liberal international society’ are now so internalised that any
disobedience is all “the more shocking” and triggers criticism of the enforcement mechanisms of the
international human rights law.89 However, as noted criticism and even sanction does not ensure
enforcement of human rights. Instead, a bottom-up approach may be more appropriate whereby
states comply with human rights because it is the practice of its subjects. The challenge has shifted
away from enforcement towards changing the attitude of a country’s people.
Cultural practices, for instance, are the source of much contention within the international
community; what is condoned by one state is condemned by another.90 One such example is that of
Female Genital Mutilation. Despite being prohibited under international law,91 the practice continues
globally.92As a ‘self-enforcing social norm’; 93 its prohibition is viewed as “nothing more than an
example of cultural imperialism…the current Western onslaught on Islam.”94 Ultimately,
86 Huneeus, A. “Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights.” 44 (2011) Cornell International Law Journal 493- 53387 Goodman, R. and Jinks, D. “How to Influence States: Socialisation and International Human Rights Law” 54(3) (2004) Duke Law Journal 621, 62288 ibid89 ibid90 Shelley, C. “Beating Children Is Wrong, Isn't It? Resolving Conflicts in the Encounter Between Religious Worldviews and Child Protection” 15 (2) (2013) Ecclesiastical Law Journal 130- 14391 The Convention for the Elimination of All Forms of Discrimination against Women 1979. Although not specifically listed in the Convention FGM is still captured by it; the UN Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment 1989; The UN Convention on Rights of the Child; The Council of Europe Convention on Preventing and combating violence against women and domestic violence, (the Istanbul Convention).
92 World Health Organisation, “Eliminating Female Genital Mutilation: An interagency statement” UNAIDS, UNDP, UNESCO, UNEPA, ENHCHR, UNIFEM, WHO (200) 893 WHO, Global Health Strategy to stop health care providers from performing female genital mutilation (2010) 294 Castledine, J. “Female Genital Mutilation: An Issue of Cultural Relativism or Human Rights (2008)
“international declarations for the benefit of women […] have no currency whatsoever if the words
do not translate into practice on the ground.”95 For instance, certain countries in Africa continue the
practice despite its prohibition under the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa. As noted by Baker: “Rarely do customary leaders follow full international
human rights instruments… there are still customary elders who are reluctant to denounce…FGM.”96
However, this reluctance has been overcome through grass-root initiatives; working with local elders
and communities to educate them on the harmful consequence of the practice: “Communities
themselves play a crucial role on providing the advocates for change, as they are more likely to be
listened to than the authorities.” 97 In such instances, while legal sanction is appropriate and can act
as deterrence, a holistic approach is more appropriate that combines sanction with education.98
Therefore, while enforcement of human rights law is a challenge it is not one necessarily solved by
legal sanction. Rather, a “more carrot and less stick” approach is appropriate.
Overall, the enforcement and follow-up of the decisions of the international human rights bodies is
challenging. On the one hand, the absence of effective enforcement and follow-up procedures of the
quasi-judicial bodies means that states have ‘flaked’ in their obligations to implement their decision.
On the other hand, despite being able to impose legal sanctions, judicial-bodies are nevertheless,
limited in that their judgments may only result in the imposition of fines rather that meaningful
change. Improving the system through dialogue, whether that be through grass roots initiatives on
the planes of Africa or from within the UN Buildings in Geneva, talking through human rights, the
reasons for a recommendation, may prove that the challenge facing the universal respect for human
rights is not lack of enforcement, but lack of knowledge.
95 Gerry, F. “Let’s talk about vaginas…FGM: The failure of international obligations and how to end an abusive cultural tradition” 2(2) (2014) Griffin Journal of Law and Human Dignity, 78, 8296 Cited in ibid 8697 FORWARD: http://forwarduk.org.uk/key-issues/fgm/ accessed 07/01/201698 Mujuzi, J. “Female Genital Mutilation in Uganda: a glimpse of the abolition process” (2012) Journal of African Law 139, 150
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