Dissertation

University of Kent Should Reporting-based Human Rights Treaties Be Considered “Binding International Law”?

By Joe McNamee

A Dissertation Submitted to the Brussels School of International Studies of the Department of Politics and International Relations in the Faculty of Social Science In Partial Fulfillment of the Requirements for the Award of the Degree of Master of Laws in International Law with International Relations

Brussels, Friday 1 September, 2006

(18,000 words)

Table of Contents

ABBREVIATIONS .................................................................................................... ii ACKNOWLEDGEMENTS ....................................................................................... iii ABSTRACT............................................................................................................. iv INTRODUCTION......................................................................................................1 SECTION 1 – THE LEGAL NATURE OF CONVENTIONS.......................................8 SECTION 2 - STATE PRACTICE...........................................................................24 SECTION 3 - CASE STUDIES – CRC AND CEDAW .............................................35 SECTION 4 – EMPIRICAL ANALYSIS...................................................................49 CONCLUSION .......................................................................................................57 BIBLIOGRAPHY ....................................................................................................60

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ABBREVIATIONS CAT - Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEDAW - Convention on Elimination of All forms of Discrimination Against Women CERD - Convention on the Elimination of Racial Discrimination CRC - Convention on the Rights of the Child DSU - Dispute Settlement Understanding ECHR - European Convention on Human Rights or European Court of Human Rights ECPAT - End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (NGO Network) CoE - Council of Europe GATT - General Agreement on Tariffs and Trade GSP - Generalised System of Preferences ICCPR - International Covenant on Civil and Political Rights ICESCR - International Covenant on Economic, Social and Cultural Rights ICJ - International Court of Justice ILC – International Law Commission ILO - International Labour Organisation IWF - Internet Watch Foundation NGO - Non-Governmental Organisation OAS - Organisation of American States OP - Optional Protocol TI - Transparency International UN - United Nations UNICEF - United Nations International Children's Emergency Fund WHO - World Health Organisation WTO - World Trade Organisation

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ACKNOWLEDGEMENTS Thank you to Dr Harm Schepel and Mr Wade Mansell for their invaluable advice. Thank you also to my diligent proofreading team. I am grateful also to Mr Paolo David, former Secretary of the Child Rights Committee for providing useful insights the Child Rights Convention. I would also like to express my gratitude to Linda Camp Keith for making her database available to me. All errors are my own.

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ABSTRACT Reporting-based human rights conventions are among the most widely ratified international law instruments. They aim to create a normative framework to allow states to develop their own practices and laws to respect the rights that they seek to protect. United Nations committees assess reports from states parties and this feedback is intended to support national efforts at implementation. The lack of reciprocity between parties to these conventions means that they are quite dissimilar from most other legal instruments. Furthermore, from a practical perspective, the compromises made in trying to achieve widespread ratification, the credibility lost by poor implementation and empirical evidence showing weak effects on state practice all raise serious doubts as to whether these instruments should be referred to as “binding law”. While countries with good human rights records show little improvement as a result of these conventions, states with weak records can deflect criticism by ratifying these instruments resulting in either no improvement or human rights practices even getting worse. This tactic is given its value in part by the credibility accorded to the conventions by their designation as binding international law. Consequently, for countries with good human rights records, there is little or no added value in these conventions being designated as “binding international law”, while there is a demonstrable disadvantage with regard to countries with poor records. As a result, downgrading the legal nature of current or future international instruments on human rights could upgrade their effectiveness.

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INTRODUCTION The United Nations has been directly responsible for the development of over eighty human rights instruments1 of various descriptions (conventions, covenants, optional protocols (OP), etc) since its foundation. The impetus for these initiatives comes from Articles 55 and 56 of the UN Charter, which call for joint and separate action of parties for the development of human rights. The first major result of the Charter was the Universal Declaration of Human Rights in 1948, which is not legally binding but does have obvious moral force. Subsequently, the two major UN Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1966. These, in turn, led to a range of more specific conventions, on narrower areas of human rights such as racial discrimination (Convention on the Elimination of All Forms of Racial Discrimination - CERD), torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - CAT), women’s rights (Convention on the Elimination of All Forms of Discrimination Against Women - CEDAW) and children’s rights (Convention on the Rights of the Child - CRC). All of the human rights conventions subsequent to the Universal Declaration have been given the status of “binding international law.” Specialised agencies of the UN, such as the International Labour Organisation (ILO) have also produced binding international law instruments, such as the 1999 Convention on the Worst Forms of Child Labour. In addition, the UN has also developed binding law on specific issues of human rights, such as the Genocide Convention. While the procedures vary a little, most of these instruments have no default enforcement procedure and often rely instead on periodic reporting of states parties to specialised United Nations committees. Under the reporting procedure, a state party is required to submit a periodic report to the relevant committee detailing the measures that it has taken since its previous report to ensure respect for the instrument. The committee can receive information from other sources, such as NGOs, to get a broader view of the situation in the country in question and then give its feedback. The process is meant to be cooperative, with the committee seeking to support and encourage the states parties to understand and respect their obligations, rather than confrontational.

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See http://www.unhchr.ch/html/intlinst.htm (last visited 21 July 2006).

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Some conventions, such as the ICCPR and CEDAW have evolved and now have OPs to allow for the responsible committees to make judgments (which are referred to as the Committee’s “view”) on individual complaints (also referred to as “individual petitions”). This can only happen if the state that is the subject of the complaint has ratified the OP. The fact that some countries decide to sign such an OP and others do not suggests that the convention represents something quite different for the two types of country. Those who have signed up to OP permitting individual petitions to the relevant committee are using the conventions together with the OPs as an instrumental device to effectively bind the country. On the other hand, countries that do not are using the core convention as an expressive device to voice support and commitment. Countries that have no particular intention of respecting a convention are faced with international pressure to conform to the accepted “norms” in the conventions have a choice between not ratifying (thereby incurring at least a reputational cost) or ratifying with possibly no intention of complying, benefiting from the credibility of being a party to a “binding” UN instrument by doing so (at no obvious cost). The following example shows the risks of relying on cost-free actions rather than deeds in the human rights sphere. Pakistan signed ILO2 Convention 138 on the minimum age for employment in 2001, with ratification following in 2006. This allowed the EU to grant the country trade advantages (in the context of the Generalised System of Preferences (GSP) under the World Trade Organisation (WTO)) previously withheld due to the country’s child labour policies. However, Pakistan’s lack of commitment to the convention can be shown by the fact that, three years after ratification, there were 5.33 million children working there, an increase of two million4 (or almost 40%) in the preceding eight years. A signature with no

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Under Article 22 of the ILO Constitution, all ILO conventions require annual reporting of states parties. Consequently, all ILO conventions are, by default, reporting-based 3 Reuters Foundation Netalert, “Pakistan: 8 million child labourers – rights body”, 27 May 2005. 4 1996 was the most recent year before the signing of the Convention for which data were collected. Pakistani Federal Bureau of Statistics, Child Labour Survey 1996. Available from the following URL (last visited 13 August) http://www.ilo.org/public/english/region/asro/newdelhi/ipec/download/resources/pakistan/pakpubl9 6eng7.pdf.

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obvious intent behind it led to significant benefits for the country, and the elimination of a key bargaining chip to effect real change by the EU. Furthermore, the reduction in pressure for reform from the EU as a result of ratification of the convention is a plausible explanation for the worsening situation in that country. It is interesting to note that ratification of ILO conventions is no longer required by the EU in such circumstances. Instead, countries are required to show that “the substance of the standards concerned is incorporated into domestic legislation.”5 “The disinclination of international lawyers to confront the efficacy of international law is nowhere more evident – or more problematic – than in the field of human rights law.”6 This paper questions the value, efficacy and accuracy of referring to reporting-based human rights instruments as “binding international law.” As key international instruments for the protection of human rights, it is obviously important that they be given the most appropriate status, in order to maximise their credibility and ensure the highest possible degree of respect for their provisions. For treaties to have any value or credibility as “law”, this paper argues that they must fulfil at the very least one or more of the following key characteristics: 1. They need to share core characteristics with other binding law. In particular, they must balance the rights and responsibilities of their subjects. 2. State practice must reflect recognition of the instruments as being binding on all parties. 3. Domestic state practice must reflect a positive normative influence of the instruments. These criteria reflect the bare minimum of what one could expect from a “law.” It seems clear that a “law” which does share key characteristics of other laws, which widespread state practice does not treat as international law and which has little discernable impact

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European Commission DG Trade, “Users Guide to the European Union’s Scheme of Generalised Tariff Preferences”, February 2003. Online publication available from: http://ec.europa.eu/comm/trade/issues/global/gsp/gspguide.htm 6 Hathaway, O, “Do Human Rights Treaties Make a Difference?”, The Yale Law Journal, Vol 111, 2002, pp 1935-2041, p 1938.

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on those who are meant to be bound by it has little basis on which to stake a claim to be law. This distinction is not merely a question of semantics. If countries are given recognition by the UN and by the international community for ratifying a “binding law” on human rights, then any failure of these instruments is not a “paradox of empty promises”7, it is the only logical outcome. By over-selling the legal significance of the instruments, recalcitrant countries are offered the opportunity of obtaining the reputational benefit of adhering to binding international law without any law in the ordinary meaning of the word actually existing. Ratification followed by non-compliance, or worse, seems to be the only logical outcome. There is no reason to assume that countries with better human rights records gain any benefit from the conventions being referred to as binding international law. The CRC and CEDAW (as very widely ratified instruments: 99% and over 90% of UN members respectively) as well as the ICCPR (as the first UN convention on civil and political rights, ratified by over 80% of UN members) have been chosen as the focus of this paper, although references to other instruments are made, as appropriate. The paper is divided into four sections: Section 1 - The legal nature of the conventions The purpose of this section is to examine the practical and legal context for the instruments, establishing the extent to which they comply with the first criterion listed above – whether they share core characteristics with other binding law. It explains the logic behind the conventions and what was hoped and expected they would achieve in their current form. It will then look at the extent to which these instruments, which are binding on states but only8 with regard to their own citizens (and not with regard to interstate interaction, as would normally be the case for international law), compare with the rights and responsibilities provided for in other instruments. The first section finishes by 7

Hafner-Burton, E, and Tsutsui, K, “Human Rights in a Globalizing World: The Paradox of Empty Promises”, American Journal of Sociology, Vol 110, 2005, pp 1373-1411. 8 There is a theoretical obligation for states to take bilateral and/or multilateral action in the CRC.

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considering a variety of schools of thought on compliance with international law, in order to ascertain the extent to which the theoretical impetus for compliance with other international law instruments are valid for reporting-based human rights conventions. Section 2 - State practice This section examines the second criterion listed above, the extent to which state practice shows respect for these instruments as law. International law relies heavily on state practice as a basis for what is considered “law” and what is not. Indeed, the whole basis of customary international law is the way in which states consider some actions legal and others illegal. The human rights treaties that are the focus of this research have certain characteristics, such as a very high rate of reservations by states parties, which put a question mark over the credibility accorded to them in widespread state practice. This concerns not just the reservations themselves and the degree to which they may contradict the “object and purpose”9 of the laws in question, but also how other states act towards them. A high rate of serious reservations coupled with a high level of acceptance thereof by states parties would generally indicate a lack of credibility for the instrument as a whole. A second aspect of section two is the way in which these conventions compare with other binding international law, in particular the General Agreement on Tariffs and Trade (GATT) and the World Trade Organisation (WTO) Dispute Resolution Understanding (DSU). Trade law and human rights law regulate fundamentally different issues and the fact that they operate differently is not necessarily an indication of a problem. However, a comparison of the approaches of states to respect for trade law as opposed to human rights law does serve to assess if one is treated with more respect as law than the other. Section 3 – Case studies Looking at specific examples of drafting and application of the instruments, this section continues to assess the degree to which state practice treats these conventions as law. For these conventions to be credible, the quality of their drafting needs to be 9

Article 19C of the Vienna Convention on the Law of Treaties prohibits reservations which are “incompatible with the object and purpose of the treaty.”

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commensurate with a text that is expected to become, or expected to have a credible claim of becoming, universal binding law. Contradictions or weaknesses in the texts, as well as foreseeable organisational difficulties (such as with the administration of the sole implementation mechanism, the reporting procedure) would indicate a lack of belief in the instruments as binding law from the very earliest stages. This section looks particularly at the way in which online child abuse images (child pornography) have been dealt with under the CRC and other instruments. This is a particularly useful example because, possibly uniquely in this type of convention, there is a clear international aspect. If country A fails to put measures in place to stop material being put on line and/or to take it off line once it is published, this will mean that the material remains available, contrary to its domestic laws and policy, in country B. Furthermore, child abusers in country B are given a “safe haven”, because there is nothing stopping them in the online environment if they wish to produce and sell material from servers in country A. If a state party to the CRC is unwilling to undertake its obligations to act domestically, bilaterally and multilaterally to deal with a problem which crosses its borders and which has direct consequences for its own citizens and children globally, then it is difficult to see how that state could be seen as accepting other aspects of the text, with no reciprocal benefit for itself, as being binding international law. Section 4 – Empirical evidence This section looks at two sets of research carried out in order to assess empirically the impact of human rights treaties, and will serve to analyse the conventions with regard to the third criterion listed above, their practical impact. The two pieces of research presented are the ground-breaking study by Linda Camp Keith into the impact of the ICCPR and Oonagh Hathaway’s research which, building on Camp Keith’s initial work, looks at a range of international instruments, both regional and global to assess their impact on state practice. Clearly, if there is no significant impact on state behaviour, this would be a very strong argument that the status of binding international law is not appropriate for these

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instruments. This argument would be reinforced if the research indicated that the overall impact was negative. A negative impact could be the result of countries using cost-free ratification to deflect criticism and avoid making improvements that would otherwise have been deemed necessary (as described in relation to Pakistan, above). Alternatively, a negative impact could happen if the international community uses the promulgation of instruments to appear to be addressing issues of public concern, instead of taking action that public opinion would demand.

SECTION 1 – THE LEGAL NATURE OF CONVENTIONS The purpose of this section is to assess the extent to which reporting-based human rights conventions share key characteristics of other law. It firstly looks at how human rights instruments are intended to achieve their goals, in particular how, in the absence of coercive enforcement procedures, their normative influence is supposed to function. This leads on to an analysis of whether non-reciprocal agreements fit with the normal concept of what one understands by law in the international and municipal spheres. The final section of the chapter looks at major schools of academic thought on the conditions under which countries normally comply with international legal instruments, assessing the degree to which reporting-based human rights instruments fit with these models. Normative Influence The ratification of human rights conventions is seen as crucial by the UN for the application of international law. This is shown, for example, by the fact that the first “suggested action” in the UN’s year 2000 Action Plan for the creation of an “Era of Application of International Law”10 was to “encourage participation in multilateral treaties.” It is noteworthy, bearing in mind the problems with existing multilateral treaties described below, that further participation was the first priority listed in an action plan to promote application of international law. If states, as some argue, comply with norms in order “to demonstrate that they have adapted to the social environment,”11 prioritising participation risks producing counter-productive results. In particular, it risks allowing adaptation to the legal norm of ratification to replace (or at least reduce pressure for) adaptation to the behavioural norm of respect for the content of the treaties. This would result in human rights treaties making the situation worse in some situations, with ratification being substituted for practical measures to improve human rights.

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United Nations, “Strategy for an Era of Application of International Law Action Plan”, June 2000. Published online at http://untreaty.un.org/ola-internet/action_plan_final.pdf (last visited 5 August, 2006). 11 Finnemore, M, and Sikkink, K, “International Norm Dynamics and Political Change”, International Organisation, Vol 52, 1998, pp 887-917, p 903.

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One of the main reasons behind supporting such instruments, despite the obvious drawbacks such as problems with enforcement, is their normative influence. Binding international legal instruments, which are signed and ratified by national governments and overseen by the United Nations, are intended to create a normative legal framework for the achievement of the goals contained therein. A legal framework, with the credibility of being a UN instrument and with a great deal of international support is intended to create a socialisation factor and provide norm promoters with an “organizational platform from and through which to promote their norms.”12 Widely agreed and ratified conventions are therefore intended to create an extensive edifice of human rights support, covering not just the international legal framework, but also giving municipal judges the tools to interpret rights differently, giving governments guidance on legislating differently and giving NGOs a tool which can be used effectively to campaign for those rights. In short, these instruments are intended to result in the creation of a culture of respect for human rights – adapting and manipulating the Zeitgeist. “In the absence of agreed upon egalitarian standards, all sorts of inequalities are less likely to be experienced as inequities”,13 so establishing norms ostensibly establishes a new culture where citizens can engage with their governments in a new legal environment. Major international conferences are frequently organised to build on this momentum. They focus on the development and implementation of such instruments, sharing experience and best practice and regenerating enthusiasm for the protection of the rights in question among governments and NGOs. From a political perspective, the reasons for creating international conventions on human rights are because these rights are universal and secondly (at least for certain conventions), for the less altruistic reason, that infringements of human rights can have cross-border consequences, requiring international action when they are seriously infringed. For example, severe breaches of conventions which deal with issues related to

12 ibid, p 899. 13

Wotipka, C.M. and Ramirez, F.O, “World Society and Human Rights: An Event History Analysis of the Convention on the Elimination of All Forms of Discrimination Against Women”, Paper Presented at the 98th Annual Meeting of the American Sociological Association”, Atlanta, 2003., p 16.

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the rights of minorities,14 or the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) can have major implications for other countries, in the form of regional political destabilisation, flows of refugees, and so on. What is less clear, however, is why reporting-based instruments need to be in the form of “law.” After all, the Universal Declaration on Human Rights, which has unrivalled moral force and recognition, is the only major UN human rights instrument that is not law. Scholarly writing on this issue consistently glosses over this point as if it did not exist, possibly because the scholars themselves unconsciously demote normative legal instruments to a lower level and therefore do not consider as significant the question of whether or not they should be considered to be “law” nor the extent to which their being law serves a useful purpose. For example, Andrew Moravcsik15 cites various academic sources that claim that transnational support for (and acceptance of) international human rights regimes are worthwhile for countries because “states willing to accept to submit to the rule of law and civil society are more likely to submit to their analogues internationally”. However, he fails to make any effort to establish a causal link between the acceptance being based on “the rule of law” rather than on the fact that the states were showing themselves, in practice, to be analogues. He also quotes Thomas Franck16 saying the same thing with different words, with the same lack of explanation as to why it is the compliance aspect of the behaviour rather than the behaviour itself that makes states recognise their common values. Implementation and International Effects In very broad terms, international legal instruments can be placed on a continuum from those with the strongest available implementation measures to those with the weakest, as in the diagram below (which is not meant to be to any scale). If we consider which have the most significant cross-border impact and which have the least, we can see an obvious correlation with the degree of enforcement. International practice therefore, from 14

The Council of Europe Framework Convention for the Protection of National Minorities (CETS 157) for example. 15 Moravcsik, A, “The Origin of Human Rights Regimes: Democratic Delegation in Postwar Europe,” International Organisation, Vol 52, No 2, pp217-252, p 223, quoting Kupchan and Kupchan. 16 ibid, p 224.

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the very moment that these instruments entered into force, has placed a greater degree of significance on ensuring enforcement of international law which has more cross border significance. The question then arises as to whether, as one moves to the left of the graph, a point comes when state practice with regard to enforcement becomes so weak as to raise doubts as to the extent to which the instruments can still be called “law.”

Key elements of law Generally, the purpose of law is to establish rights and responsibilities in interaction between legal and/or natural persons. The greater the impact that the actions of one entity or human being has on another, the greater the need for laws to protect the rights, and define the duties, of all concerned. Conversely, if an activity has little impact on others, there is obviously little need to regulate. Indeed, Article 2.7 of Chapter 1 of the UN Charter, which codifies the principles of the UN, underlines this point, stating that nothing therein “shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” It is logical, then, that international law has focussed on activities in and between countries that have a significant degree of mutual significance for states. International law has concentrated on issues of major shared importance such as the laws of war, the law of the sea and the right to use force. Binding law on issues related to non-essential issues, or issues lacking in international significance which would result in sovereignty being needlessly given up, clearly does not fit within this logic.

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International law therefore generally deals with the rights and responsibilities of the subjects of the particular piece of legislation. In simple terms, a law exists to prevent country A from undertaking action X because of the harm that would be inflicted on country B if it did so. In international law, enforcement mechanisms (and the degree of rigour used by wronged states to demand enforcement) vary in strength as we move from the most salient international issues (such as resort to the use of force, diplomatic relations, etc) to the least salient internationally (such as domestic equality legislation). As a result, the decision to comply, or demand compliance, with international legal obligations has generally been based on the importance of the law compared to the interaction with the other country or countries involved in the legal relationship. Therefore, if a state can get away with breaking a law which is not strongly enforced and it sees sufficient benefit (taking other factors such as reputational effects into account) for doing so, then the logical action is to break the law. Conversely, if country A is aware that country B is breaking a law, but the cost of the breach is lower than that of undermining good relations between the states, it makes clear sense for State A not to demand compliance. This balance between rights and responsibilities is the reason why the International Law Commission’s (ILC) Draft Articles on State Responsibility17 focus so heavily on “the injured state” ( Part Three, Chapter 1, articles 42-48). Indeed, only Article 48 makes specific reference to non-injured states being theoretically able to invoke state responsibility and only then, according to the reports of the ILC, when the state has a “specific right to do so”.18 This analysis leads to a clear conclusion that, in international law, it would be logically and practically peculiar for a treaty to be agreed where neither of the parties would be injured in the event of non-compliance by the other. Or, to put it another way, reciprocity

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International Law Commission, “International Law Commission’s Draft Articles on State rd Responsibility”, adopted at the 53 Session of the International Law Commission, 2001. 18 Sassoli, M, “State responsibility for violations of international humanitarian law”, International Review of the Red Cross, June 2002, Vol 84, No 846, pp 401-434, p 423.

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“is a condition theoretically attached to every legal norm of international law.”19 In fact, even when international agreements are ostensibly non-reciprocal, as in the case of GSP agreements20 under the GATT, the generally have a strong reciprocal element.21 It is, of course, possible for agreements to include obligations to third parties – such as human rights clauses in international treaties. However, the EU has explained that such a clause “does not transform the basic nature of agreements which are concerned with matters not directly related to the promotion of human rights.”22 Similarly, it is almost inconceivable for a municipal law for a law to exist which does not govern the relationship between two or more parties, where one party is not injured by non-respect of the law, and where no punishment exists as coercion to require respect for the law. However, this balance of rights and responsibilities is conspicuously missing in reporting-based human rights conventions. International conventions such as the CRC and CEDAW have one crucial component in common: the almost complete absence of international consequences in case of breaches. Other instruments, such as the Genocide Convention and the CAT cover issues which may, if breached very seriously, have international repercussions. It therefore seems clear that conventions which lack significant international character, such as the CRC and CEDAW are missing a crucial element of other binding international law. Furthermore, a contract where there is neither an enforcement mechanism nor harm to either of the parties in the event of a breach is entirely inconceivable in municipal law, but this is essentially what conventions such as CEDAW (minus the optional protocol) and the CRC are in practice. The drive from the relevant UN agencies and NGOs for universal ratification of such treaties, which is so strong as to result in major 19

Zoller, E, “Peacetime Unilateral Remedies, Transnational Publications, Dobbs Ferry, NY, 1984, p 15, quoted in Keohane, R.O., “Reciprocity in international relations”, International Organization, Vol 40, No 1, Winter 1986, pp 1-27, p 1. 20 Non-reciprocal trade concessions intended to support developing economies. 21 See, for example, United Nations Conference on Trade and Development, “Handbook on the Scheme of the United States of America”, UNCTAD/ITCD/TSB/Misc.58, June 2002. Available online at http://www.unctad.org/en/docs/itcdtsbmisc58_en.pdf, (last visited 23 August, 2006). 22 EU Annual Report on Human Rights 1999, quoted in Bartels, L, “Human Rights Conditionality in the EU’s International Agreements”, Oxford University Press, Oxford, 2005, p 170.

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compromises being made on their content, further reduces their credibility as binding law. Even the International Court of Justice (ICJ) has recognised, to a point, the peculiar legal situation of human rights conventions. In its judgment on reservations to the Genocide Convention, it argued that the desire for universal ratification altered the legal situation and that “in a convention of this type one cannot speak […] of the maintenance of a perfect contractual balance between rights and duties.”23 Why Ratify? As described above, there is a long list (normative value, socialisation, providing a platform for norm promoters, and so on) of good reasons why countries should wish to sign and ratify human rights treaties. Although, in a lot of cases, such as the Genocide Convention, the subject matter is entirely superfluous to the states parties (as it is so unlikely that most countries would commit genocide as to make it redundant to sign up to a binding obligation), ratification is nonetheless seen as having an important communicative function for the global community of states. That said, duplicating laws, whatever the intention may be, can be counterproductive – for example by allowing semantic disputes about the term “genocide” to distract from the fact that mass murder is being, or was, committed, for example in Sudan where “needless semantic disputes hamper[ed] effective punishment and deterrence.”24 A particularly valid reason, which can often be seen in international economic regulation, is that ratification of human rights treaties is a way of “tying the king’s hands” – in other words, restricting the choices of a current or future regime to continue, or revert back to, breaches of the human rights of their citizens. The possibly crucial support from newly established democracies for the European Convention on Human Rights (ECHR, which now includes an obligation on states parties to accept the jurisdiction of the European Court of Human Rights to judge complaints from individual citizens) is an interesting human rights-based example of this. Problems arise, however, when the “king’s hands” are not bound by mechanisms such as those found in the WTO and the ECHR, but

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International Court of Justice, “Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion 28 May 1951”, Reports 1951, p. 15. 24 Kiernan, B, “Letting Sudan Get Away with Murder”, Yaleglobal, 4 February 2005. Online edition available from http://yaleglobal.yale.edu/display.article?id=5227 (last visited 12 July 2006).

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where he has merely undertaken to consider them to be bound, as in the case of reporting-based conventions. Indeed, even when there are enforcement mechanisms, governments can be quick to untie their hands, at least partially, as shown by the United Kingdom’s repeated derogations from the ECHR, according to which that country has been in a state of “public emergency threatening the life of the nation,” (Article 15) for most of the lifetime of the convention. It is worth noting, however, that countries do not need international legal instruments to bind current and future governments. For example, states are increasingly creating independent regulatory authorities to manage regulation of sections of the economy. Examples include independent central banks, competition authorities and regulatory authorities for specific areas of industry. Many of these bodies work in cooperation with analogues in other countries producing efficient transnational regulation (the European Regulators Group for telecommunications,25 for example). What can be expected from ratification? Looking at some of the output from the relevant United Nations agencies (“[t]he Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights”26), it would be easy to think that there is little question about the positive impact of such conventions. This view appears to have been supported by legal scholars who took it “as a given that the rules would have impact.”27 However, while the almost universal (all UN members except the USA and Somalia28) ratification of the CRC is acclaimed, the fact that, for example, ten years after the entry into force of the convention, there were 300,00029 children involved in wars and almost all are from countries that had ratified the convention, questions need to be 25 26 27

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See http://erg.eu.int From the UNICEF website - http://www.unicef.org/crc/ (last visited 2 July, 2006). Hathaway, O, op cit, p. 1942.

The USA has a range of legal (such as the desire to maintain the right to capital punishment for children and the dualist nature of the US constitution) and political (there is considerable rightwing opposition to alleged foreign “meddling” in family life through the Convention) reasons not to sign and ratify. Somalia’s instability means that it is unable to enter such conventions. 29 th Human Rights Watch, “Promises Broken – An Assessment of Children’s Rights on the 10 Anniversary of the Convention on the Rights of the Child”, Online Publication, December 1999. Available at http://www.hrw.org/campaigns/crp/promises/ (last visited 03 July 2006).

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asked about whether the convention serves any useful purpose in the countries where it is most needed and, secondly, whether it could actually be counterproductive. Oonagh Hathaway30 neatly summarises the academic approaches to compliance into three “rational actor” and three “normative” models. Rational Actor - Realism According to a realist perspective of international law, any international treaty will be respected only if there is a benefit for the state to do so. Consequently, any compliance with international law is more related to the coincidence of self-interest with the requirements of the law, rather than deliberate compliance. This view of the world is taken to its extreme by Goldsmith and Posner31 who attempt to argue that every piece of international law that has ever been written had no significant compliance effect. They argue that ratification of human rights treaties has little cost and therefore is “cheap.” They point out that a “cascade of ratification would empty the act of meaning”32, although they singularly fail to explain why some countries (such as the United States in relation to the CRC) decide that they cannot or should not ratify a treaty, even if the cascade of ratifications appears to have voided it of all meaning. Taking this approach, in the absence of an enforcement mechanism, the fact of human rights treaties being “binding international law” rather than a declaration or code of practice would appear to have little or no effect on their implementation. Rational Actor – Institutionalism Under this approach, a degree of compliance can be expected due to the value provided by institutions, insofar as they provide a wider context where long-term strategies can be followed for self-interested ends. In essence, as with the pure realist approach, “[l]aw carries no weight divorced from the quantifiable sanctions and costs imposed in the case

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Hathaway, O, op cit. Goldsmith, J, and Posner, E, “The Limits of International Law”, Oxford University Press, New York, 2005. 32 ibid p.131. 31

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of its violation.33 The problem for human rights treaties for institutionalism, as for realism, is that there is little self-interest, and there is also no wider institution which can impose cost. Indeed, with the UN and NGOs campaigning for ratification, the cost of ratifying and not complying would normally be lower than not ratifying because ratification allows the country to blend into the mass of other countries that have signed. Although somewhat unscientific, it is interesting to note that an Internet search34 (in French to neutralise the effect of the large number of sites in English) for United States and Convention on the Rights of the Child yields more than twice as many hits as Russia and Convention on the Rights of the Child. This indicates that Russia attracts less attention for having signed and ratified than the US, which has not, even though Russia’s compliance has been heavily and repeatedly criticised by the UN Committee on the Rights of the Child. Therefore, under this model there is also no value in having human rights treaties given the status of “binding international law”, while there are clear risks in giving undue credibility and camouflage to countries who do not respect the norms in question. Rational Actor – Liberalism This theory argues that liberal states tend to act in a more civilised manner and have a greater respect for the law. However, this argument only tells half the story. As Posner and Goldsmith pointed out, developed “liberal” states have consistently required significantly more reservations to human rights treaties than others.35 So, it is the law of the status quo that they are adept at ratifying, which is hardly an impressive or particularly worthwhile feat. More recent infringements of human rights (mass monitoring

33

Hathaway, O, op cit, p. 1951. 153,000 for Russia (http://www.google.com/search?hl=en&lr=&rls=SUNA%2CSUNA%3A200544%2CSUNA%3Aen&q=convention+sur+les+droits+de+l%27enfant%22+%22russie%22) and 360,000 for the USA http://www.google.com/search?hl=en&lr=&rls=SUNA%2CSUNA%3A200544%2CSUNA%3Aen&q=convention+sur+les+droits+de+l%27enfant%22+%22etats+unis%22). Searches undertaken in July, 2006. The results were duplicated when the search was done in German 35 Goldsmith, J, and Posner, E, op cit, p 129. 34

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of electronic communications,36 prohibitions of peaceful demonstrations,37 imprisonment of children,38 recruitment of child soldiers,39 mass monitoring of banking services,40 etc) by liberal states also undermine this theory. However, liberal states do appear to have a tendency to avoid obligations rather than fail to comply with them (the UK’s states of emergency under the ECHR, its derogations on the CRC, the US preferring not to ratifying various conventions, such as the CRC and CEDAW, etc). The argument that ratification gives domestic pressure groups a tool to push for compliance is, however, more credible, although it is unclear both how effective this is in practice and also whether calling the international instrument a “law” is beneficial to having the norms adopted, particularly when state practice (as shown below) does not treat the instrument as being on a par with other laws. Rational Actor – Critique The extent to which compliance with other pieces of international law can be explained by rational choices by states highlights the absence of certain key criteria in reportingbased human rights treaties. There is no significant pull towards compliance created by fear of sanctions (such as in the case of a serious breach of international law, the manufacture of illegal weapons, for example), countermeasures (under the WTO

36

Directive 2006/24/EC of the European Parliament and of the Council on retention of data stored or processed in connection with the provision of publicly available communications services, potentially in breach of Article 8 of the ECHR. 37 The Serious and Organised Crime Act of 2005 prohibits demonstrations within one kilometre of the British Parliament, potentially in breach of Articles 9 and 10 of the ECHR. 38 The UK attracted to different sets of criticism in the Committee on the Rights of the Child consideration of that party’s second report – one for the use of physical restraint and solitary confinement in the punishment of children and a second for the imprisonment of children of individuals seeking asylum in the country. Paragraphs 33 and 47 of United Nations document CRC/C/15/Add.188). 39 Coalition to Stop Child Soldiers, “Global Report 2004 – Europe and Eurasia Regional Overview”. Published online at http://www.child-soldiers.org/document_get.php?id=884 (last visited 23 August, 2006). 40 The United States authorities monitor financial transactions carried out by the SWIFT system. See Lichtblau, E and Risen, J, “Bank Data is Sifted by US to Block Terror”, New York Times, 23 June, 2006. This is a potential breach of Article 8 of the ECHR by the European countries that facilitated this action in their countries.

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regime) or of being found guilty of infringements by an international body (such as under the European Convention on Human Rights). Furthermore, it is unlikely that anything other than a grave breach of the rights in the CRC or CEDAW would attract enough attention as to have a reputational impact on the infringing state. In any event, breaches of the CRC or CEDAW that had cross-border implications would obviously be of a scale that would make it irrelevant whether or not they happened to be in contravention of a convention. The practical effects would be more significant than the academic question of whether or not an unenforced treaty had been breached. Similarly, it is true that NGOs can use conventions as lobbying tools but, when dealing with key aspects of human rights, the conventions can seem academic. For example, the argument that “country x should take international action to prevent the sexual exploitation of children,” hardly becomes more compelling if the moral argument is relegated by a legal argument along the lines that, “because it is obliged to do so by the CRC, country x should take international action.” Generally, therefore, there appear to be few, if any grounds, to grant reporting-based human rights conventions the status of international law, if one follows the logic of rational actor models of state behaviour. Normative Models – Managerial Model The managerial model argues that the negotiation and ratification of treaties generate legal norms – creating a sense of obligation for states once they have signed and ratified a treaty, with compliance as the default behaviour and non-compliance only if the state in question is unable to comply. Compliance can therefore be brought about by persuasion rather than coercion. “The process is effective not because of the threat of direct penal sanctions but rather because of the threat of alienation from ‘the complex web of international arrangements’ that have become central to most nations’ security

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and economic well-being’”.41 This may well be true for international agreements, such as those that underpin the WTO (described below), which fall within the “complex web” of international issues where non-compliance will have direct economic consequences. However, the extent to which compliance with human rights treaties fall within any such web is questionable. For example, “Saudi Arabia’s failure to comply with the women’s rights treaties it has ratified does not appear to have lead the US to conclude that is unlikely to comply with the international trade and finance obligations it has assumed.”42 Normative Models – Fairness Model The “fairness model” argues that rules that are not perceived as fair exert little pull towards compliance. Fair and coherent legal obligations will be complied with more than laws which are not deemed to be so. Insofar as human rights treaties are deemed to be fair (and the conventions that are the focus of this paper have been voluntarily signed up to by most countries, so this appears to be a reasonable assumption), compliance should be the default. The problem is that, in any given situation, a state that wants to breach human rights treaties will feel that current circumstances make complying with the letter of the law unfair to it. The UK Government’s views of its own incorporation of the ECHR into domestic law are a perfect example of this. Having supported the 1998 Human Rights Act as long as it was convenient to do so, Prime Minister Blair defended his attacks on the judiciary’s implementation of his own Government’s laws by saying “[l]et no one be in any doubt, the rules of the games [sic] are changing.43 In other words, compliance was based on convenience and, once compliance became difficult, the law was no longer politically considered appropriate. The fairness model could be considered, therefore, as something of a truism. Normative Models – Transnational Legal Process Model

41

Hathaway, O, op cit, p. 1957, quoting Chayes, A, and Chayes, A, “The New Sovereignty: Compliance with International Regulatory Agreements”, Harvard University Press, Cambridge, 1995. 42 Van Stein, J, “"Making Promises, Keeping Promises: Ratification and Compliance in International Human Rights Law" Ms., UCLA International Institute Presented at the 2004 Annual Meeting of the American Political Science Association, Chicago, IL, September 2-5, 2004, p 4. 43 Jones, G, “Blair to curb human rights in war on terror”, Daily Telegraph, London, August 2005.

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Under this theory, norms are “internalised” as a result of the interaction which gives rise to them. This approach certainly offers a great deal of coherence and applicability when looking at treaties involving a high degree of interaction between national authorities and a degree of (particularly third party) enforcement. For example, if a state loses a case before a WTO panel because the panel felt that less trade-restrictive alternatives were available but not availed of,44 it appears logical that it will tend to pre-empt a future case by itself voluntarily assessing the availability of alternatives likely to be considered adequate by WTO panels. Similarly, human rights abuses condemned by the European Court of Human Rights in one country are likely to be avoided both in that country and in other countries. For example, in Ireland vs. the UK,45, the UK immediately agreed at the start of the case to discontinue the practices that were the subject of the case, in an effort to use the internalisation of the feared judgment to avoid being condemned for having used torture. However, internalisation of norms in relation to treaties such as CEDAW and CRC is made less likely because the government agencies involved in negotiating them are unlikely to be the primary agencies responsible for the relevant policy area domestically, even if some degree of consultation occurs. For example, while trade ministries will be heavily involved in trade negotiations and foreign ministries will be heavily involved in negotiations regarding borders and diplomatic relations, the ministry responsible for children’s rights, if a country has one, will usually not be responsible for, education, social welfare, multilateral agreements on custody of children, freedom of religion, parental rights and many of the other rights in the convention. The interaction which produces the norms is therefore fundamentally different and cannot produce the same norm-generating effect. Indeed, regardless of what ministry is responsible for negotiating such a treaty, conventions such as the CRC and CEDAW are so wide in scope that no ministry would appear to have automatic “ownership” of it in the same way as a trade or environmental treaty. For example, Poland gave responsibility for negotiations for the CRC to Adam Lopatka, its Minister for Religious Affairs. The interaction between other Polish ministries 44

The Thailand-Cigarettes case is just one example of such a decision. Thailand – Restrictions on the Import and Internal Taxes on Cigarettes (DS10/R – 37S/200). 45 Ireland vs United Kingdom, 5310/71.

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and their counterparts in other countries would therefore have been indirect during negotiations of the convention and, as a result, the normative effect of the drafting process is likely to have been minimal. When we consider, for example, that the Working Group on the Question of a Convention on the Rights of the Child (which drafted the CRC) had a total of only 43 members, and “active participation of most individual governments generally left much to be desired,”46 with the presence of intergovernmental organisations “scandalously weak,”47 it is hard to see how the drafting process could have had a significant degree of influence in norm generation for the majority of ratifying states, who were not involved. Normative Models Critique The problems for these approaches, with regard to reporting-based human rights conventions, is that officials do not need to “look over their shoulder” to assess if a particular policy is going to result in a judgment against the state, as this is highly unlikely, because the relevant UN body can only offer an opinion on the issue as part of a wide-ranging response to the country’s periodic report. Furthermore, as mentioned above, there may be little or no link between the government body responsible for negotiating the treaty and those government bodies that would be expected to “internalise” the norms in question. The norm creation can only possibly come from widespread state practice and, as will be shown below, state practice is not fulfilling this role. Generally, therefore, there is little hope to be gleaned from the normative models approach to suggest that there is particular value from considering reporting-based human rights instruments as “binding international law.” Insofar as these instruments have a normative impact, this does not appear to come from their legal nature and the consequences of breaches are not significant enough on their own to create an impetus to internalise the legal norms they contain.

46

Detrick, S, “The United Nations Convention on the Rights of the Child. A Guide to the Travaux Préparatoires”, Martinus Nijhoff Publishers, Dordrecht, 1992, p 23 47 idem

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Summary In this section, we have seen that reporting-based human rights conventions do not share many of the key characteristics of other international instruments, particularly with regard to reciprocity. Furthermore, we have seen that their subject-matter and organisation are such that they fall outside many of the key theoretical frameworks for the respect of international law. Consequently, it seems clear that these instruments do not comply with the first criterion listed above for consideration as binding international law – they do not share core characteristics with other binding law.

SECTION 2 - STATE PRACTICE Having seen above in Section 1 that reporting-based conventions have a weak foundation as binding law due to their lack of reciprocity and the fact that they do not readily fit with common theories of compliance with international law, this section seeks to analyse the “real world” impact of these instruments. It does so firstly by considering what we can learn about state practice regarding fundamental reservations that put the essence of the instruments at risk and secondly by assessing state practice concerning these instruments compared with other international law instruments. Clearly, if state practice regard these instruments as binding international law, states would have limited flexibility with regard to fundamental reservations and would treat them as being equally important as other treaties. Reservations – Why are they significant? It has been argued that the problem of reservations to international legal instruments “arose with the emergence of treaties that are not mutually and reciprocally advantageous for States.”48 This expansive use of reservations and declarations developed from – although clearly not intended by – the ICJ Advisory Opinion on Reservations to the Genocide Convention, 49 which ruled that universality was part of the object and purpose of the convention and, therefore, “minor reservations” should not prevent widespread ratification. As will be shown below, it has not been what the ICJ decided (namely the permissibility of minor reservations in order to maximise ratification) but what the dissenting opinion of Judges Guerrero, McNair, Read and Hsu Mo50 feared (namely, universality at any price) that has become tacitly accepted state practice. The freedom which countries have accorded themselves with regard to reservations means that state practice provides useful insight into the extent to which nations regard 48

Lijnzaad, L, “Reservations to UN-Human Rights Treaties Ratify and Ruin”, Martinus Nijhoff Publishers, Dordrecht, 1995, p 16. 49 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion 28 May 1951. 50 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, joint dissenting opinion of Judges Guerrero, McNair, Read and Hsu Mo p. 46,

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the instruments as binding law, rather than flexible codes of practice that can be adapted to match current behaviour. For example, one of the most curious aspects of reservations to the ICCPR is the surprising inverse relationship between corruption, as classified by the Transparency International51 (TI) scale (low numbers indicate increased levels of corruption), and the likelihood of tabling reservations to the Covenant. This relationship is clear despite the low sample sizes for the countries with very high numbers of reservations.

Corruption index vs Number of Reservations

Corruption rating

10 8 6 4 2 0 16 (1) 12 (1) 9 (1) 8 (4) 7 (2) 6 (3) 5 (3) 4 (9) 3 (7) 2 (5) 1(18) Number of reservations (number of countries)

As Goldsmith and Posner52 point out, the large number of reservations from developed countries (generally the least corrupt according to the TI research) can be explained by the fact that their practices are generally in line with human rights treaties such as the ICCPR and reservations can bridge the gap to allow full compliance without any additional legislative effort on the part of the state in question. This approach is not restricted to western countries as the “effect of the Shari’ a-based reservations to Article 2 of CEDAW was understood by the objecting states to be that the reserving states

51

Based on the Transparency International Corruption Perception Index, 2005. Available online from http://ww1.transparency.org/surveys/index.html#cpi (last visited 18 July 2006). 52 Goldsmith, J, and Posner, E, op cit, pp 127-128.

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would only observe the CEDAW norms that they would have observed anyway, in the absence of the Convention.53 If this analysis is accurate, the countries in question are treating what is meant to be a “binding law” as a recommendation whose measures can simply be disregarded if inconvenient. This creates a peculiar and unwelcome divergence between the legal norms contained in the treaties and the state practice norms emerging from them. There are few possible optimistic explanations as to why countries deemed to be more corrupt should wish to make fewer reservations to the ICCPR. It seems unlikely that they recognise their own failings and wish to force themselves to try harder by signing and ratifying the instrument. It appears much more credible that the cost of ratification was minimal for the countries involved and the benefit of being able to claim to have ratified a major UN human rights convention is perceived as more significant. CEDAW and CRC Reservations Article 28 of the CEDAW echoes Article 19 of the Vienna Convention on the Law of Treaties in stating that a reservation that is “incompatible with the object and purpose of the Convention” cannot be permitted. This is the most liberal approach to reservations that is theoretically possible while respecting the convention as law. However, as early as 1986, only seven years after the convention was opened for signature, the Committee on the Elimination of Discrimination Against Women expressed concern at the number of reservations entered which seemed to be contrary to the object and purpose of the convention.54 The reservations and declarations to the convention are far-reaching, fundamental and frequently open-ended. Some examples are:

53

Clark, B, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women”, The American Journal of International Law, Vol. 85, 1991, pp 281-321, p 317. 54 CEDAW Committee, “General Recommendation No. 4 (6th session, 1987)

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•

Pakistan’s declaration that the entire convention was subject to the country’s Constitution (without any more specific clarification as to what this would mean in practice).

•

Bangladesh’s declaration which states that it does not consider itself bound by provisions of Article 2 and Article 9(2) of the convention insofar as they conflict with Shari‘ a law. These two Articles, which define the rights of women under the convention, are the very essence of the text.

•

Egypt’s reservation with regard to all of the provisions of Article 16 on marriage and related rights.

Faced with an obviously serious situation that, by the UN’s own analysis, the object and purpose of the convention was being undermined by reservations and declarations, the Secretary General asked for the views of states parties. Only 17 of the then 93 states parties replied and only eight (less than one in ten states parties) argued, in line with the text of the convention, that incompatible reservations were unacceptable. The reason behind the lack of input from 80% of the states parties of the time could possibly be explained by the view defended by Turkey that “the Convention is seen to represent a dynamic process in attaining a common ideal.”55 While this approach may well be perfectly laudable and defensible, it raises the question of whether a text whose spirit is more important that its letter should be described as a “law” or something else? It hardly seems credible to have a binding law on prevention of discrimination which permits reservations that, “if put into practice, would inevitably result in discrimination against women.”56 If, as seems to be the case, the silence of the majority of states parties is in line with the position taken by Turkey, the norm that is being created here is one which does not treat the convention as a “law” in the ordinary meaning of the word. This is backed up by comments by Austria, which raised concerns about the normative effect of such

55

Clarke, B, op cit, p 285. United Nations Treaty Collection, Declarations and Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, United Nations, Treaty Series, vol. 1249, p. 13 – Comments by Sweden on the reservations by Thailand, Tunisia, Bangladesh and Brazil. 56

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reservations in its objections to those of Pakistan, commenting that “a general reservation of this kind […] contributes to the undermining the basis of international treaty law.”57 Sweden58 similarly referred to reservations made by Indonesia with regard to the CRC using exactly the same language and complained of identical problems with the reservations of Qatar, Iran, Malaysia and Saudi Arabia. The abovementioned negative comments made by Austria and Sweden regarding the nature of the reservations were followed by declarations by each country that they were not obstacles to the entry into force of the convention between them and the reserving states. Similarly, “in their comments to the Secretary-General, Spain and Portugal both identified certain reservations that they found incompatible with the object and purpose of the Convention. But neither state formally objected to any of these reservations.”59 It appears inconceivable that, in any other legal environment, countries would enter into a binding agreement where they overtly recognised that other parties to the instrument in question had significantly undermined the object and purpose of that agreement. Or, to put it more cynically, “[i]t seems unlikely that parties would be this phlegmatic about either the fragmentation of contractual treaties, or the entering of major reservations of such treaties, since in both cases their obligations would be directly affected.”60 This analysis strongly suggests that the very nature of the “law” that is created by the convention is fundamentally different from law both in the domestic realm and other aspects of the international realm. The reason why Austria, Portugal, Spain and Sweden accepted what they described as illegal and damaging reservations can only logically be explained by lack of injury caused to them by the reservations. They must have considered that refusing to enter into the agreement with the reserving countries and possibly undermining the entire convention as being greater than the zero cost of countries on the other side of the planet possibly not giving their own citizens the full range of rights as envisaged by the 57

United Nations Treaty Collection, Declarations and Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, United Nations, Treaty Series, vol. 1249, p. 13. 58 Multilateral Treaties deposited with the Secretary-General, Status as at 31 December 1991, United Nations, New York, 1992, p.204. 59 Clark, B, op cit, p 287. 60 Clark, B, op cit, p 317.

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convention. The willingness, on the part of states that were clearly committed to the convention, to give up on core elements of the instrument and accept reservations that they believed would almost certainly lead to discrimination, underlines again the risks that the norms of behaviour towards to content of such conventions may outweigh and undermine the legal normative value of their text. With even the strongest supporters of CEDAW prepared to accept the undermining of its object and purpose, we have universal practice among ratifying states (90% of the membership of the UN) treating the convention as a declaratory code of practice rather than binding law. Such disregard for the principles of the convention can only serve to minimise reputational cost of noncompliance – one of the few concrete incentives to comply. This issue would not arise if the text did not have the status of binding international law. The fact that, with regard to both the CRC and CEDAW, no formal objection61 has ever been made by a country in relation to a reservation or declaration of neighbouring or nearby country is also worthy of note. Mexico did not object to reservations made by Brazil, which were objected to by European states, and the European states which vociferously objected to reservations by Arab countries, did not mention reservations aimed at maintaining discrimination in the succession procedures in the royal families of the United Kingdom and Belgium. Bearing in mind: •

the fact that the vast majority of countries did not respond to the Secretary General’s request for comments on the number and seriousness of reservations in CEDAW;

•

the open-ended and unspecific nature of some of the reservations (Egypt’s reservation on Article 2, for example) that were accepted implicitly or explicitly by all states parties;

•

that the countries that did respond, and who complained directly about the reservations in question, made convincing cases that there were reservations that were incompatible with the object and purpose of the convention (and therefore illegal under the Vienna Convention on the Law of Treaties as well as under the convention itself) but then went on to accept them;

61

Having examined all of the official comments by states regarding reservations on the CRC and CEDAW, I was unable to find a single instance of an objection being raised by a neighbouring or nearby country.

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the norms of state practice that are being created are some considerable distance from the stated goal of the putatively binding international treaty, namely to “condemn discrimination against women in all its forms.”62 It seems reasonable to suggest that giving the convention the credibility of being referred to as “binding international law”, but failing to treat it as such, does not serve a useful practical function. If the same text was referred to as a “declaration” (or something similar), these problems could be avoided, allowing a more coherent implementation of the rights contained therein. Similar problems have also occurred with regard to the Convention on the Rights of the Child. Some objections were more forthright (although not more clear). For example, Denmark declared the reservations of Brunei and Saudi Arabia to be inadmissible under international law but nonetheless stated that the convention “remains in force in its entirety”63 between itself and both countries. However, as Denmark must surely realise, countries cannot be bound by rules to which they did not agree, and therefore this statement is no more legally valid than the original reservations that they objected to. No efforts appear to have been made to resolve this issue, again raising questions as to how seriously states treat this convention as law. Varying approaches – trade and human rights The objective here is not to draw inferences from the fact that human rights treaties are different from trade treaties. Rather, the issue is the approach taken in both instances. The difference between the way in which human rights treaties are dealt with compared with how the GATT has been implemented clearly demonstrate a two-tier system, which places the norms of trade law on a higher level than human rights treaties. This appears to demonstrate, yet again, state practice with regard to human rights treaties in general, and reporting-based treaties in particular, that is at variance with their status as “binding international law” and their efficacy as normative influences. The following are some of the key differences between WTO dispute resolution and human rights treaties. 1. Ease of bringing disputes

62 63

Article 2 – one of the articles subject of open-ended reservations. United Nations Treaty Collection As of 9 October 2001, Declarations and Reservations

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Conventions such as the ICCPR, CEDAW and CRC have a reporting mechanism and no formal and coercive means of insisting on application of the rules contained in them. Even where individual petitions are possible, there tend to be significant backlogs. As of 1 July 2005, the backlog of cases under the Optional Protocol of the ICCPR was 348, which appears to be a cause for celebration as, according to Eric Tistounet, Representative of the High Commissioner for Human Rights, this indicates “the success of the individual complaint procedure.”64 These backlogs contrast starkly with the principle established in Article 9 of the ICCPR for trials to take place “within a reasonable time.” Similarly, under the ECHR, some cases have taken up to several years to decide. For example, the case of Ireland versus United Kingdom was referred to the European Court of Human Rights on 16 December 1971 and the judgment was made on 18 January, 1978. These backlogs and delays stand in stark contrast to the WTO dispute resolution process, which has a deadline of one year, or one year and three months in the event of an appeal.65 2. Margin of appreciation In cases where an international court can make a ruling on a complaint on a breach of a human rights treaty, state sovereignty is given a greater weight than in the WTO, indicating a difference of approach to human rights generally, when compared with trade law. The European Court of Human Rights has developed a doctrine known as the “margin of appreciation”, where it assumes that, in difficult circumstances, sovereign governments “are in principle in a better position than the international judge to

64

Tistounet, E, Opening address by Mr. Eric Tistounet, Representative of the High Commissioner th for Human Rights to the 84th session of the Human Rights Committee, 84 Session of the Human Rights Committee, 11 July, 2005. 65 World Trade Organisation, “Dispute Settlement System Training Module”, 2003. Chapter 6. Available online at http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/intro1_e.htm (last visited 25 August, 2006).

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assess”,66 the best policies to employ, even if this means breaching the letter of human rights law. While states are free (within limits) to infringe on the letter of human rights law in this way, they do not have the same rights under the WTO. In the WTO dispute resolution procedure, as shown in a variety of cases, “if an alternative [less trade restrictive] measure which it could reasonably be expected to employ” 67 is available to the state involved, it will lose its case. 3. Number of state vs. state complaints in human rights treaties compared with in the WTO Approximately 20 cases (out of 40,000)68 have been brought on an interstate basis through the ECHR, and are even rarer under the ICCPR. In its first nine years of its existence, the WTO handled about 300 cases, or twice as many interstate complaints per year as the ECHR in its entire existence of over half a century. This strongly suggests a greater priority for governments for trade law above human rights treaties. 4. Reservations There is a quite significant difference in the way the WTO treats reservations. Article XVI of the Agreement Establishing the World Trade Organisation is very clear: “No reservations can be made in respect of any of the provisions of this Agreement.” The contrast with, for example, CEDAW, as described above, could not possibly be starker. 5. Enforcement The right to individual petition in the CEDAW is one of the more sophisticated options available in the enforcement of international human rights obligations. However, even

66

See Handyside vs. United Kingdom (A-24, 12 December 1976), Paragraph 48 and Open Door Counselling and Dublin Well Woman Centre (A-246, 29 October 1992). 67 United States - Section 337 of the Tariff Act of 1930, 7 November 1989, BISD 36S/345 and Thailand – Restrictions on importation of and internal taxes on cigarettes, DS10/R – 37S/200. 7 November 1990. 68 United Nations High Commission for Refugees, “Pamphlet No. 7 Minority Rights under the European Convention on Human Rights”, 2001. Published online at: http://www.unhchr.ch/html/racism/minorpam7.doc (last visited 28 July 2006).

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this is considered by some parties as being of limited legal value.

As the British

Parliament Committee on Human Rights reported, because “[t]he UN monitoring committees which […] receive individual petitions from citizens are not courts, and cannot award damages, or produce a legal ruling on the meaning of the law, the practical value to the individual UK citizen is unclear.”69 There was a certain similarity between enforcement (or lack thereof) of the GATT (pre WTO) and of human rights conventions. For example, it was possible to block the formation of panels (similar to not signing up to an optional protocol on individual petitions) and fail to implement the panel recommendation, similar to the way states can ignore unfavourable reactions of UN committees to periodic reports. The normative and reputational damage of non-compliance with adverse rulings were insufficient to make states consistently comply to a satisfactory level with the GATT dispute resolution system. As a result, the judicialised WTO approach was adopted, where countermeasures could be imposed. The result was that, whereas pre-WTO, 21 out of 53 EU/US disputes (39.6%) ended with full concessions, in the WTO era 21 out of 32 disputes (65%) between the same parties ended with full concessions.70 This represents a significant increase in implementation. Failures by states to live up to human rights obligations have not resulted equally forthright measures being taken for human rights treaties – although the adoption (by at least some states) of OPs creating individual complaints procedures could be considered somewhat analogous. 6. Hierarchy of law The WTO agreements are simply another piece of international law and, “Article 23 of the DSU71 does not and cannot prohibit states (who are WTO members [sic]) seizing other jurisdictions, such as Human Rights fora, and requesting an assessment of the

69

House of Lords House of Commons, “Joint Committee on Human Rights – Eighth Report”, Session 2005-2006, Appendix 3. 70 Helmedach, A and Zangl, B, “Dispute Settlement under GATT and WTO: An Empirical Enquiry into Regime Change”, Paper prepared for the Fifth Pan-European International Relations Conference Constructing World Orders, The Hague, September 9-11, 2004, p 11. 71 Dispute Settlement Understanding.

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compatibility of a trade measure with human rights obligations.”72 While this is true, it is obvious that such an assessment would not normally have the force of law and, if options other than the one chosen could reasonably (based on the WTO panel’s assessment) have been taken, the country would still lose its case. For example, in Thailand-Cigarettes, Thailand’s request for input from the World Health Organisation (WHO) resulted in unequivocal evidence from a UN body that opening the tobacco market in Thailand would result in significant negative health impacts, and that these would fall disproportionately on women and children.73 As measures were in place in other countries which, in the WTO panel’s opinion, could reasonably have been taken by Thailand, and which were less trade restrictive, the ruling went against Thailand, which was forced to open its market. In the current framework, for a human rights treaty to be allowed (by a WTO panel) to trump the WTO agreement, there would first need to be a body that could make a judgment, secondly it would need to be able to make a judgment quickly enough to fit the WTO’s timescales and thirdly, a less trade-restrictive alternative (a designation to be made by the WTO and not the human rights body) could not be available. Summary It seems clear from the examples above that the approach taken to reservations in reporting-based human rights treaties would be almost impossible to imagine in any other sphere of international law. Similarly, looking at the approaches taken to implementation of trade law compared with human rights law, it is difficult to come to a conclusion other than that human rights law is not given the same degree of significance. Overall, therefore, the general approach that can be seen in state practice is one that does not accord a great deal of credibility to reporting-based conventions as binding international law.

72

Marceau, G, “WTO Settlement and Human Rights”, European Journal of International Law, Vol 13, No 4, pp 753-814, p 768. 73 Thailand – Restrictions on importation of and internal taxes on cigarettes, DS10/R – 37S/200. 7 November 1990, Pparagraph 52.

SECTION 3 - CASE STUDIES – CRC AND CEDAW Having seen above that the conventions that are the subject of this paper suffer from weak foundations as law and have been had their credibility undermined by the approach taken by states parties in their attitude to reservations and also the status accorded to them in comparison with other instruments, this section looks at practical implementation of aspects of the CRC and CEDAW. In particular, this section looks at contradictions and weaknesses in drafting and how the preference for “cheap talk” rather than concrete action appears to have resulted in a focus on creation of numerous, sometimes duplicate, instruments, rather than effective implementation. The section finishes with a brief look at the value of the conventions for NGO actions. Convention on the Rights of the Child The CRC was opened for signature, ratification and accession on 20 November, 1989 and entered into force on 2 September of the following year. As mentioned above, it has now been signed and ratified by every UN member state except the USA and Somalia. The text is very comprehensive, dealing with a wide range of rights (civil, political, economic and social), some of which have been addressed elsewhere (such as in Article 40.a, which states that “no child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed” which duplicates Article 15 of the ICCPR). It covers the whole range of rights, ranging from protection of the physical integrity of the child, to freedom of thought, freedom of expression, freedom from exploitation, the right to social security and so on. There is no right of individual petition under the convention – states parties are obliged to submit a report on their adherence to the convention two years after ratification and every five years thereafter. Unlike major international conventions such as the Genocide Convention and the various regional human rights conventions, it is difficult to imagine infringements of the CRC of a magnitude which would have a negative impact on other countries, with the exception, described below, of online child abuse images.

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Much of what is written regarding the CRC seems to focus on what supporters want it to be rather than what it actually is. A former executive director of UNICEF is quoted as saying that it is a “Magna Charta for children,”74 while others proclaim that it “elevated the child to the status of an independent rights-holder.”75 Such claims are clearly and demonstrably not accurate because the CRC does not confer rights, it is an undertaking by states parties that rights will be conferred. Furthermore, it does not directly confer any rights to a child (or its guardian) which it can exercise independently, so it hardly gives the child the status of an independent rights-holder. Goodman and Jinks criticise the view that, “the signalled states [and other important actors such as international NGOs] apparently do not understand that ratification is meaningless and, as a consequence, reward ratifying states for the very act of ratification.”76 However, the extravagant and inaccurate claims as to the content and power of the convention do indeed suggest that there is a surprising level of ignorance about its meaning. Internal breaches Article 3 lays down a fundamental and unequivocal principle of the convention – that, “in all actions concerning children, whether undertaken by public or private social welfare organisations, courts of law, administrative authorities or legislative bodies, the best interests of the child will be the primary consideration.” Article 1 of the convention defines a “child” as “every human being below the age of 18 years” (unless the relevant domestic law sets the age below this). Article 32.1 obliges states parties to protect children from work which is physically, mentally, spiritually, morally or socially harmful. These two provisions are fundamentally contradicted by Article 38, which permits children to be recruited to the armed forces from the age of 15. It is difficult to imagine how allowing children to be recruited to the army as being in line with the provisions of Article 3, above. In other words, the convention is in clear contravention of its own quite unambiguous standards. Such a serious lack of 74

Fottrell, D, “One step forward or two steps sideways? Assessing the first decade of the United Nations

Convention on the Rights of the Child” pp 1-14 in Fottrell, D, (eds), “Revisiting Children’s Rights 10 years of the UN Convention on the Rights of the Child”, Kluwer Law International, The Hague, 2000, p 1. 75

Idem. Goodman, R. and Jinks, D, “Measuring the Effects of Human Rights Treaties,” European Journal of International Law, 14(1), 2003, pp 171-283., p 179.

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consistency undermines the credibility of the convention as a binding legal instrument and suggests a lack of conviction on behalf of the drafters that they were creating anything other than a statement of principles. A further apparent breach of Article 3 by the drafters of the convention is described by Deirdre Fottrell,77 who points out that not only are the rights of girl children greatly overlooked by the convention but also that the fact that the contemporaneous Vienna Declaration78 addressed the points that it neglected, which means that there was no political barrier to their inclusion in the convention. The management of the convention by the UN also appears to be governed by priorities other than “the best interests of the child.” Clearly, with the country reports being the sole implementation instrument available, it seems reasonable to expect that they would be monitored diligently. In 2003, 245 initial, second and third reports had been received and 206 were overdue including, extraordinarily, from 13 states who had ratified the convention and yet not submitted even their initial report.79 In 2004, the backlog of reports not processed by the committee was “around 50.”80 The level of underresourcing of the monitoring procedures of the convention is therefore quite obvious. In 2003, at a time when the committee had been scheduled to have received 451 state reports, it had managed to process a little under 200. An “exceptional and temporary measure”81 to have two committees (rather than one) reviewing state reports has now been initiated. However, even if this results in the doubling of output, the work of the two committees will still not be sufficient if all states parties comply with their reporting obligations. In other words, while proclaiming the success of the convention in terms of the number of countries ratifying it (“by 2000, over ten years after its adoption, almost every country in the world has signed and agreed to be bound by the provisions of the

77

Fottrell, D, op cit, pp 10-11. United Nations General Assembly, Vienna Declaration and Programme of Action, Document A/Conf 157/23, 12 July 1993. 79 nd United Nations Press Release, “CRC 32 Session: Committee members and government representatives review procedures”, 30 January 2003. 80 United Nations Press release, Committee on the Rights of the Child holds discussion with states parties to Convention on the Rights of the Child”, 23 January 2004. 81 Homepage of the Committee on the Rights of the Child – http://www.ohchr.org/english/bodies/crc/index.htm, last visited 8 July 2006. 78

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Convention”82), the UN itself clearly does not expect compliance, even on the procedural point of submitting reports. The only other possible explanation for its current monitoring of country reports is that the UN is happy to continue with its inadequate level of monitoring. The fact that (see below) the committee monitoring CEDAW had already experienced similar problems before the Child Rights Committee had even been created (meaning that the UN authorities and national negotiators must have been aware that this problem was going to develop) appears to confirm the suspicion that the UN and states parties are content to accept this deviation from the stated (and “legally binding”) aims of the convention. Again, it is difficult to see how this level of failure of the very core of a very limited monitoring mechanism could be in line with Article 3 of the convention, raising the serious suspicion that the repeated references by the UN and others to the CRC as “binding international law” are more based in public relations than fact. Case Study - Cheap and prolific talk – Online Child Abuse Images Detractors of such instruments argue that they are “cheap talk” – it is easier join a cacophony of voices claiming to be doing something positive than silently sit in isolation enduring the suspicion of inaction. This case study suggests that “cheap talk” can serve very effectively to hide inaction and even breaches of existing international legal instruments. One of the most striking aspects of the CRC is the way in which it deals with sexual abuse of children. The text is simple and comprehensive in that it obliges (in Article 34) states parties to take “all appropriate national, bilateral and multilateral actions to prevent the inducement or coercion of minors to take part in any unlawful sexual activity, exploitative use of children for pornography or other unlawful sexual practices and the exploitative use of children in pornographic performances and materials.” Despite being one of the few child welfare issues which have a cross border impact (as described in 82

Office of the United Nations High Commissioner for Human Rights, “Special Rapporteur on the sale of children, child prostitution and child pornography - Background to the mandate”, available at http://www.ohchr.org/english/issues/children/rapporteur/index.htm (last visited 8 July 2006).

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the introduction, above) and despite being an industry worth up to three billion US dollars per year,83 the Committee for the Rights of the Child informed the author that the issue of online child abuse images has never been raised in the context of the CRC, by either an NGO highlighting an ongoing domestic problem nor a national government complaining about an international problem.84 In 1996 (six years after the entry into force of the CRC), one hundred and twenty-two states parties to the CRC bound themselves (again) through the Stockholm Declaration and the Agenda for Action (at the First World Congress against the Sexual Exploitation of Children) to undertake national action plans up to the end of the year 2000 to deal with sexual exploitation of children. Insofar as the creation of national action plans can be considered an “appropriate national action”, they were already bound to do this by the CRC. However, the NGO ECPAT reports that “the majority of State Parties have ignored the commitments made at the World Congress.” 85 In fact, only 29 complied. In keeping with this failure to take all appropriate bilateral and multilateral actions to deal with this problem, the international community managed to organise only one further World Congress on this topic. Faced with the increasing profile of online child abuse in the media, the reaction in the UN was not to demand or help coordinate the obligatory bilateral and multilateral actions needed to prevent this abuse, but rather to promulgate even more “binding international law.” Here again, we see what can only be perceived as disinterest in seeing Article 3 of the convention implemented effectively. Instead of promoting positive and concrete action, despite a vast amount of best practice experience being available regarding effective measures that could be taken (a simple hotline procedure introduced in the UK resulted in the proportion of UK-hosted child abuse images reported in that country

83

Saytarly, T, “Fighting Child Pornography” published at http://www.crimeresearch.org/library/Saytarly_nov.html - undated. 84 However, Canada did report on its efforts to solve a problem that arose between periodic reports. See Canada, Second periodic report of States Parties due in 1999, 3 May, 2001. 85 ECPAT International, “Looking Back, Thinking Forward”, Heinemann International, Bangkok, 2000, quoted in Varghese, S, “Towards the Elimination of the Commercial Sexual Exploitation of Children”, The Human Rights Databank, Vol. 7, No, 4, 2000.

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dropping from 17% of the overall total to 0.4% of reported incidents.86 The rest of the EU has now implemented similar procedures and with broadly similar results), it produced the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (opened for signature on 25 May 2000) which added absolutely nothing that a diligent interpretation of the main convention would not already have already covered. The United States has signed and ratified the OP, while the Russian Federation has signed and ratified the main convention. Japan has signed and ratified both. In the first half of 2006, United Kingdom hotline (the Internet Watch Foundation – IWF), stated that 72% of online child abuse images (on pay per view sites) reported to them were based in either the USA or Russia, while 85% of free sites were based in either the USA, Russia or Japan.87 The prominence of the USA and Russia in IWF statistics has remained constant, regardless of ratification of the UN conventions, while Japan ironically came to prominence in the period between signature in 2002 and ratification in 2005. Indeed, the proportion of free child abuse sites based in Japan that were reported to the UK hotline increased exponentially in the three years leading up to ratification by Japan of the Optional Protocol.

60

14 12

50

10

40

8

30

6

20

4

10 2

0

0 2003

2004

2005

2006

Proportion of child abuse images reported to UK hotline traced to Japan. Japan signed OP on child pornography in 2002 and Ratified in 2005. 86

Year 2003

Year 2004

Year 2005

6 Months 2006

Proportion of child abuse images reported to UK hotline traced to the USA. The USA signed & ratified the OP on child pornography in 2002.

Internet Watch Foundation Press release, “Pipex joins IWF to promote a safer online experience”, 19 October, 2004. 87 Internet Watch Foundation, “Record breaking 6 months for Internet Watch Foundation, 25 July 2005.

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At approximately the same time as the OP was being negotiated, the Council of Europe Cybercrime Convention88 was also being drafted. Article 9 of that convention, opened for signature in 2001, places obligations on states parties to ensure that production, distribution, procurement and possession of child abuse images be criminalised. Bearing in mind that there was no country in the world that, through the CRC or its OP was not obliged to do this already, the inclusion of this article seems somewhat superfluous. What is even more curious is that the Cybercrime Convention expressly permits derogations, allowing states parties to permit the procurement of child abuse images (“child pornography”) “for oneself or another and possessing child abuse images on a computer or computer-data storage system.” Expressly allowing this derogation could hardly be considered in line with Article 34 of the CRC requiring that “all national, bilateral and multilateral actions” to prevent the exploitative use of children for sexual activity nor Article 3 which requires that “in all actions concerning children […] the best interests of the child be taken into account.” Similarly, it appears to be in direct contravention of Article 9 of the OP which requires states parties to “adopt or strengthen, implement and disseminate laws, administrative measures, social policies and programmes to prevent the offences referred to in the present Protocol.” Allowing individuals to acquire child abuse images is clearly likely to encourage, rather than prevent, the offences listed in the OP. Due to the slow take-up of this convention, almost all signatures and ratifications will happen or have happened after signature/ratification of the Optional Protocol and the main CRC. As the Cybercrime Convention is therefore both more specific and later in time, it would normally be assumed in international law89 to have legal precedence over the CRC and its OP. This confusion has a real world impact. For example Armenia amended its criminal code (with UN assistance) in 2006 to comply with the Cybercrime

88

Council of Europe Convention on Cybercrime (CETS 185) opened for signature on 23 November 2001, entry into force 1 July 2004 89 Under Article 30 of the Vienna Convention on the Law of Treaties.

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Convention and CRC Optional Protocol and availed of derogation established by the Cybercrime Convention not to criminalise possession of child abuse images.90 Parliamentary questions asked in the British and Belgian parliaments regarding the international actions taken when police forces become aware of child abuse websites in other countries demonstrate the way in which even developed countries treat their obligations to take all bilateral and multilateral actions in this field. The British Minister openly admitted that, as regards requests to other countries to take appropriate actions to have this material taken offline, that “no such requests have been made by the Foreign and Commonwealth office”91 while the Belgian minister explained that reports are passed on but that the authorities “rarely, if ever,”92 find out if the reports are acted on. Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts explains in Article 2(b) “there is an internationally wrongful act of a state when conduct consisting of an act or omission constitutes a breach of an international obligation of a state.” It seems more likely that the ministers are simply unaware of their international legal obligations than they are openly and unashamedly admitting to breaching international law. If these examples are indicative of the level of awareness of the CRC and its OP among European ministries, it would suggest both a very low level of respect for the instrument as “binding law.” It is also interesting to note that the question was answered by two very different ministries (the Belgian question being answered by the interior minister and the British question being answered by the foreign ministry), lending weight to the argument above that range of ministries responsible for children’s issue is so wide as to make normative impact is much weaker than would be the case in a more focussed instrument.

90

Article 265(2) of the Armenian Criminal Code establishes production and distribution of such images as a crime but not possession. 91 United Kingdom Parliament, Hansard (Verbatim Report) 14 December 2004. Available at http://www.publications.parliament.uk/pa/cm200405/cmhansrd/vo041214/text/41214w21.htm. 92 Question no 636 by M. Roel Deseyn of 31 May 2005 to the Deputy Prime Minister and Minister of the Interior. The response was “Nos services de police ne reçoivent que rarement voire jamais de feedback par rapport à leurs denunciations.”

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Yet another replication can be found in ILO Convention 182 on Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour of 1999. This convention includes a requirement for the prohibition on the use, procurement or offering of a child for prostitution or child pornography. Of the four headings listed in Article 3 of the ILO Convention, two are covered fully and explicitly by the CRC, two are covered partly and explicitly by the CRC and the remainder would be understood by a diligent reading of the CRC to be covered implicitly. Duplicating, as it does, the most widely ratified UN human rights instrument, it is worrying to note the apparent lack of irony intended by Human Rights Watch when it applauded ILO Convention 182 as achieving “the fastest pace of ratification in ILO history” representing a “global consensus.”93 In short, there are four international legally binding instruments prohibiting the same activity in different ways, in addition to the Stockholm Declaration, which requires specific domestic action plans. All of these instruments involved a great deal of diplomatic time and effort, and attracted a great deal of publicity, lauding the massive steps forward in protecting children.

For example, the Cybercrime Convention was

praised by the UK Guardian newspaper for outlawing computer-assisted crimes such as online fraud and child pornography.94 Considering all of the “binding instruments” adopted in the meantime, the quotation attributed to one delegate at the abovementioned World Conference in 1996 that there should be “fewer words and more action,” 95 appears to sum up the failures of implementation of the CRC with regard to child abuse. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) This instrument was adopted by the United Nations General Assembly (Resolution 34/180) in 1979 and was opened for signature in the following year. It now has 183

93

Human Rights Watch Report, 2001, http://www.hrw.org/wr2k1/print/html/children.htm (no page numbers in online edition). 94 Left, S, “Thirty Countries Sign Cybercrime Treaty”, The Guardian, 23 November, 2001. Available at http://www.guardian.co.uk/internetnews/story/0,,604964,00.html (last visited 9 July, 2006. 95 Harvey, R, “Fewer words and more action: Evaluating the progress made in ending the commercial sexual exploitation of children”, ChildRIGHT, issue 184, March 2002.

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states parties, over 90% of the membership of the UN, of which the majority ratified the convention within the first ten years of it being opened. As with the CRC, there is no procedure whereby countries or individuals can petition the committee. However, there is an OP, adopted by the UN General Assembly in 1999, which entered into force in December 2000 which allows for individual petitions. There are 79 states parties to the OP (as of July 2006), but have only been three decisions on individual complaints, two of which ruled that the complaint in question was inadmissible. Provided that all local judicial procedures have been exhausted (a standard requirement in such instruments), individuals or groups of individuals can submit complaints to the Committee. In addition, the OP permits the committee to carry out investigations into “grave or systematic” breaches of CEDAW rights. While it is commendable that 79 countries have signed and ratified the OP, this number represents only 43% of the total number of CEDAW states parties. Bearing in mind the obligation under Article 2 of the main convention to take all appropriate measures to combat discrimination, this 43% appears to represent countries for which ratification represented a real commitment (reservations notwithstanding). The remaining 53% appear to find the prospect of external investigation of alleged and locally unresolved serious breaches of the convention unacceptable. Despite understandable sovereignty concerns, this would suggest that over half of the countries that ratified CEDAW did so out of expressive, rather than instrumental, motives. Internal breaches Extensive delays (described in more detail below) in dealing with the states parties’ reports can be construed as contrary to the spirit of the convention. The longest the committee can meet is over a two-week period, during which time it can process approximately ten reports. If all of the countries currently party to the convention diligently submitted their reports on time, this would mean that the Committee (working 40-hour weeks) would have one hour and 46 minutes per report. For shorter reports, this would work out at approximately two minutes per page, but for longer reports, like the fifth Canadian report which had 252 pages, this would mean 25 seconds per page.96 As one commentator pointed out, “noncompliance [sic] with the reporting requirements 96

UN Document CEDAW/C/CAN/5.

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ironically is the only thing saving the overworked CEDAW from a complete breakdown.”97 The limit on the amount of time available to the committee is set by Article 20 of the convention, which expressly states that it may not meet for more than two weeks per year. Whether this was an attempt to scupper the treaty (which seems unlikely) or an attempt to save money for the UN, the fact remains that the national negotiators inserted this text which appears to have little in common with the spirit of an instrument which is supposed to legally oblige states parties to take “all appropriate measures” to fight discrimination. If the states involved in drafting the convention considered state reporting to be an appropriate measure to fight discrimination, limiting the committee’s ability to undertake report evaluation most certainly is not appropriate. There has been extensive criticism of the preamble to the convention as “being considerably closer to that of a political declaration than that of an international treaty”,98 with the United Kingdom reportedly describing the text as “inappropriate and unprecedented.”99 The preamble touches on apartheid, colonialism and even nuclear disarmament, so this criticism does seem justified. Failure to provide a focussed preamble arguably makes the object and purpose of the convention less clear and therefore less achievable, making it less able to fulfil the practical demands of Article 2. This lack of clarity is obvious when one compares the text of CEDAW with that of the Convention on the Elimination of Racial Discrimination (CERD). Whereas Article 7 of the CERD requires parties to take “immediate and effective measures, particularly in the fields of teaching, education, culture and information”, CEDAW requires parties in Article 5(a) “to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice.” The vagueness and immeasurability of

97

Donner, L.A., “Gender Bias in Drafting International Discrimination Conventions: the 1979 Women’s Convention Compared with the 1965 Racial Convention”, California Western International Law Journal, No 24, pp 241-254, p 249 quoting Andrew C. Byrnes, The "Other" Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women, 14 YALE J. INT'L L. 1, 36-37 (1989). 98 Reanda, L, "The Commission on the Status of Women" in Alston P (ed) The United Nations and Human Rights: A Critical Appraisal, (Clarendon, Oxford, 1995) 265-303, p 287. 99 Donner, L.A., op cit, p 246.

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compliance with this “obligation” mean that the drafters, by failing to follow the same text already adopted in CERD, were quite clearly themselves falling short of the obligations in Article 2 of their own convention – namely to take “all appropriate measures.” Use of both conventions by NGOs A common argument in favour of human rights treaties100 is that they provide valuable tools for NGOs when lobbying for the rights that they enshrine. However, the link between a need for NGOs to have something with which to lobby and these conventions being considered binding international law instrument is rarely, if ever, made. When the link is made, it is rarely enlightening. For example, one submission to a conference on child protection argued that “[t]he reason for having a binding agreement on the protection of children is first and foremost because children are particularly vulnerable.”101 The framework and methodology for the protection of rights would still be intact even if the instruments were not officially considered to be binding law. Where infringements of human rights are egregious, it would almost take away from the strength of an NGO’s argument to suggest that the infringing country should stop because it happened to have signed up to a document that it obviously does not consider itself bound by. Similarly, for less serious breaches, the legal nature of the document would hardly add a great deal, particularly bearing in mind the state practice described above. What is significant for NGOs is the fact that an internationally recognised framework for the protection of human rights has been developed, creating an international vocabulary within which lobbying can be undertaken and improvements to current practices can be forcefully advocated. Having called these instruments “binding law” before state practice then empties this designation of credibility appears to reduce rather than enhance its

100

See, for example, Jones, H and Wachala, K, “Watching over the rights of women”, Society and Policy, Vol. 5, No. 1, pp 127-136. 101 Geißler, N, “Asserting the Rights of the Child Creating a Procedure for submitting individual complaints pursuant to the Convention on the Rights of the Child”, Documentation of the conference held in Berlin on 5th April 2001 - Kindernothilfe, Joint Conference Church and Development (GKKE), pp 6-16, p 7.

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efficacy for NGOs, which are forced to try to cut through an added layer of “cheap talk” by recalcitrant states before they can achieve their goals. When organisations such as UNICEF proclaim that the CRC is the “first legally binding instrument to incorporate a full range of human rights”, there is an obvious value for regimes, particularly those who have attracted attention for human rights abuses, to ratify, even if they do not intend to comply. This expressive value of ratification is frequently reinforced by unwise lobbying by NGOs in favour of ratification, under the apparent misapprehension that ratification is implementation. For example, the Working Group on Ratification of the UN Convention on the Elimination of All Forms of Discrimination Against Women (a coalition of over 100 US NGOs) promised in one brochure,102 without any equivocation, that that “CEDAW will improve US women’s access to decision making, will improve US women’s economic rights and will enhance US laws on violence against women.” Such extravagant promises could only serve to create or enhance the imbalance, whereby the lack of an enforcement mechanism results in a situation where the expressive element of human rights treaties far outweighs the instrumental element. In other words, it can only serve to increase rather than reduce meaningless ratification. Furthermore, it can also be the case that NGOs are simply incompetent and/or corrupt. In its 1999 Country Report to the CRC Committee, not alone did the official Russian report make no reference to the already significant problem of online child abuse images in that country, but neither did the NGO shadow report.103. Even more bizarrely, the Russian NGO coalition, in response to the subsequent 2004 report described Russia’s online child abuse problem in the past tense, explaining that the adoption of a law in 2003 “put an end to the unacceptable liberalism of the Russian legislation concerning the crime of use of children in the porno-business.” The fact that there was no

102

Rassekh Milani, L, “Human Rights for all”, Working Group on the Ratification of the UN Convention on the Elimination of All Forms of Discrimination against Women”, Washington, 2001 103 Russian NGOs’ Alternative Report, “Comments to Russia’s Federal ‘Third Periodic Report on Realization in Russian Federation of the Convention on the Rights of the Child in 1998-2002’”, 10 February 2003. Available online at: http://www.crin.org/docs/resources/treaties/crc.40/Russia_ngo_report.pdf (last visited 2 August, 2006).

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discernable difference in levels of abuse reported104 between adoption of the law in question (December 2003) and submission of the NGO report in February 2005 appears to have escaped the NGO coalition’s attention.105 Summary It has been shown in this section that some of the drafting of both the CRC and CEDAW is not of a quality which one would generally associate with a normal legal instrument, nor a text intended to be a universally legally binding instrument to protect fundamental human rights. Furthermore, the implementation of the instruments appears to be somewhat distant from what one would normally expect from laws ratified by many states; it seems as though governments prefer to produce an apparently endless stream of similar “binding” instruments rather than undertake the obligations contained therein. Finally, it is evident that NGOs, often considered as crucial for the implementation of these instruments do not necessarily need them to be “binding law” to achieve their ends and sometimes do not use the conventions wisely. Overall, therefore, it appears clear that these instruments are generally not treated as binding international law.

104

Internet Watch Foundation Press Release, “IWF reveals latest figures on child abuse content online”, 20 July, 2006. 105 Russian NGOs’ Alternative Report, op cit.

SECTION 4 – EMPIRICAL ANALYSIS Having looked at the theoretical basis for these instruments as binding international law and state practice regarding their administration and implementation, this final section reviews two key pieces of academic research to assess the “real world” effect of these instruments. This will assess the extent to which domestic state practice reflects a positive normative influence of the instruments. This section analyses research by Linda Camp Keith106 and Oonagh Hathaway107 into the practical effects of ratification of human rights treaties. These two scholars were chosen as their studies are very different. Camp Keith’s research is narrowly focussed on the ICCPR and Hathaway’s research is very broad. Similar research, such as that published by Hafner-Burton,108 is not analysed, as it produced similar results. In order to provide balance, the section finishes by looking at some of the criticisms that have been made to some of this research, in order to assess its validity. The fact that over three quarters of UN Member States are parties to the ICCPR, over ninety percent are parties to CEDAW and ninety-nine percent have ratified the CRC is cause for some satisfaction for the United Nations. The UN websites repeatedly stress that the instruments are binding commitments to respect the rights contained therein. CEDAW, for example, is described on the UN’s website as an “international bill of rights for women.”109 However, as has been described above, while considerable efforts have been undertaken to ensure the most widespread possible membership of such treaties is attained, this approach has led to compromises with regard to the drafting of the measures and the acceptance of reservations. These efforts at widespread ratification have been undertaken on the assumption that ratification will lead to improved practices in the widest number of states possible. However, detailed empirical research tells a different story. This calls into question the value of making such compromises and raises

106

Camp Keith, Linda, “The United Nations International Covenant on Civil and Political Rights: Does It Make A Difference in Human Rights Behavior?”, The Journal of Peace Research, Vol 36, No 1, 1999, pp 95-118. 107 Hathaway, O, “Do Human Rights Treaties Make a Difference?”, The Yale Law Journal, Vol 111, 2002, pp 1935-2041. 108 Hafner-Burton, op cit. 109 See http://www.un.org/womenwatch/daw/cedaw/, for example.

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the question whether “laws” suffering from such attenuation, questionable state practice and lack of enforcement are the most appropriate tools to spread respect for human rights. In her research on the ICCPR, Linda Camp Keith argues that a positive view of human rights treaties would assume that parties to the covenant would be more respectful of human rights than if they had not become parties, and that ongoing improvements could be expected after ratification.110 Her research, which examines 178 countries over an 18year period, using four different measures of human rights behaviour, indicates small differences in behaviour between parties and non-parties to the ICCPR but not, crucially, in the practice of the states parties in the years after ratification. This leads her to enquire whether extra-legal factors that have been identified as statistically significant for state protection of human rights (scarcity of economic resources or civil war, for example) should be targeted as a means of improving human rights practices instead of overly-optimistic promotion of legal instruments. Her findings were that there was a 0.83 positive difference (on a 7-point scale) with regard to civil rights for all signatories of the ICCPR as compared with non-signatories in relation to the Freedom House111 measure of civil rights and a 0.99 difference for the Freedom House measure of political rights. Less significant differences were found when using data from US State Department Country Reports (no statistically significant difference) and Amnesty International Reports (minor differences) However, the difference is vastly more significant (1.74 and 1.82 respectively112) for the approximately one third of ICCPR signatories that have ratified the OP which permits individual petitions. This more significant difference is duplicated for State Department and Amnesty International Reports. Oddly, she did not investigate what the difference between countries that had only ratified the main convention and those who had not. However, extrapolating the figures based on the information she provides shows that the

110

Camp Keith, Linda, op cit, p 100. Freedom House is an NGO that supports the development of democracy. Its research is based on a checklist of ten political rights and fifteen civil liberties – using evidence of the situation on the ground rather than on the existence or otherwise of legislation. 112 Camp Keith, L, op cit, p 103 111

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difference between non-OP states parties to the ICCPR and countries that have ratified neither the ICCPR nor the OP is only 0.39 and 0.47 respectively. To put it another way, there is a 6

significantly bigger difference in

5

behaviour between those states

4 3 2

Civil Rights

that

Political Rights

have

ratified

ICCPR and the OP than there is

0

ratified the ICCPR only and

No npa rti es IC CP R IC -O CP P R av er ag IC e CP R + O P

between

who

have

that

the

1

those

states

both

not

have (0.39

compared with 1.74 for civil rights and 0.47 compared with 1.82 for political rights113). This

would strongly indicate that states parties which signed up only to the main ICCPR did so out of expressive reasons, the additional commitment to implementing the measures in the covenant made by those countries that ratified the optional protocol is clearly reflected in these findings. In the same vein, the statistics114 related to personal integrity rights show that, based on State Department Country Reports and Amnesty International Reports, the better practice displayed by ICCPR parties is negligible (0.04 and 0.06 respectively on a 5point scale). Furthermore, ICCPR parties that are not party to the optional protocol actually display worse figures than non-parties once the OP parties are excluded.115 However, derogations were shown to have a negative impact on all of the rights guaranteed under the covenant, and not just those that were subject of the derogations. If derogating states are removed from the figures, the overall impact of the ICCPR for non-OP parties becomes insignificant rather than negative.

113

ibid, pp 103-104 plus my calculations based on Camp Keith’s figures ibid, pp 103-104 115 This is based on extrapolations of figures in Linda Camp Keith’s research and is not highlighted in her paper. 114

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45 states parties were analysed in the ten years after ratification in order to ascertain whether any improvements could be identified. Here again, differences were insignificant between ICCPR ratifying states and non-ratifying states, with scores ranging from 0.02 to 0.31 on the 7-point Freedom House scale and 0.02 to 0.09 on the 5-point Personal Integrity scale.116 This means that there was no discernable change in behaviour by ratifying states. The only argument available that would give the ICCPR any credit – that changes in behaviour pre-date ratification – raises the question whether it makes sense to have an instrument which binds only after the subject no longer needs to be bound. This logic obviously does not apply to states parties that have ratified the OP as this reflects an ongoing commitment to be bound by the covenant. These findings cast doubt on the value of the ICCPR (minus the optional protocol) as a binding legal instrument. The reporting procedure is intended, according to Article 40 of the covenant, to allow states parties to provide feedback on “measures they have adopted which give effect to the rights” contained in the instrument. Yet, no significant improvement in the ten years post ratification is recorded. If the value of the ICCPR is in the years leading up to ratification, then the efforts of the committee should be focussed on assisting states prior to ratification. The overall outcome of this detailed, long-term research was that there is little or no observable impact of the ICCPR, particularly for countries that did not ratify the optional protocol. As an instrument for change, therefore, the ICCPR on its own has less credibility when it is called “binding international law,” as state practice clearly shows that parties do not consider themselves to be bound by it. Insofar as it is a stepping stone towards more effective human rights implementation, for countries that also sign the first optional protocol, it seems logical that more effective lobbying could be brought to bear if recalcitrant countries were not given the “significant public relations tool [of] being a party to the covenant,”117 unless they have ratified the OP. Oonagh Hathaway finds (in line with Camp Keith’s analysis) that, “for the most part, countries that have ratified human rights treaties have better human rights ratings than

116 117

Camp Keith, L, op cit, p 106 Camp Keith, L, op cit, p 112.

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those who have not.”118 However, cross checking her data using several different data sources she fails to find any treaties that consistently lead to better practices. She also finds that, in addition to general non-compliance problems, countries with poor human rights ratings are sometimes more likely to have ratified certain treaties than those with better ratings. This finding could be explained by the danger, mentioned in the introduction to this section, that ratification without enforcement allows countries to deflect criticism of their practices, even if they have little or no intention of adhering to the obligations in the treaty. With regard to the ICCPR, she also finds that there is a greater difference in respect for rights between states parties to the covenant who have ratified the first OP and those who have not, than between states parties overall and non-ratifying states.119 Overall, Hathaway’s figures produce consistent results which show that:

•

There is little correlation between ratification of various international law instruments and respect for the rights contained therein. Particularly in relation to the American Convention, American Torture Convention and the African Charter, a negative relationship can be clearly seen.120

•

Those states with worse human rights ratings sometimes have higher rates of ratification than those who have better ratings.121

•

There is a clear correlation between ratification of treaty elements agreeing to oversight of a country’s adherence to the rules of a convention and actual adherence. This would strongly suggest that internalisation of norms is only significant if the country has shown its commitment to the binding nature of the instrument by signing up to external oversight.122

Counter-arguments - Empirical

118

Hathaway, O., op cit, p. 1935. ibid, pp 1976-1979 120 ibid, pp 2016-2017 121 ibid, p 1977 122 ibid, p 1980 119

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Apart from the simple possibility that the figures are somehow inaccurate, Hathaway provides three possible counter-arguments or explanations for her results. She argues that perhaps some bodies, such as the Council of Europe and the Organisation of American States (OAS), place obligations on parties that mean that their provisions are either mandatory (and therefore resolved in advance) or superfluous – resulting in the effects post-ratification effects being minimal. This may be true of the CoE (and, indeed, her figures on the CoE tend to be less complete, due to a more narrow range of human rights abuses carried out by signatories) but is not borne out by her own evidence of the OAS.123 A further suggestion is that administrations have such a high degree of inertia that the timescales used may not have been long enough. This argument appears very weak, however, as it suggests that a government which is currently motivated to sign up to a human rights treaty is less able or willing to implement it at that time than another government several years in the future. In their paper critiquing Hathaway’s work, Goodman and Jinks raise a variety of problems with her methodology. They argue, inter alia, that “incorporation of human rights norms is a process; treaty law plays an important role in this process,” 124 and that there is nothing in Hathaway’s work to contradict this. In addition to their failure to suggest when they think this process actually happens, they assume that “treaty law” is the only way of supporting this process, rather than any other form of interaction. For example, the Universal Declaration on Human Rights is not law, but has played exactly the role that Goodman and Jinks appear to insist treaty law is essential for. Their argument appears to be that the period during which the impact of treaty law has a positive effect is longer than the several years post ratification that Hathaway examines. However, it seems reasonable to suggest that the second decade post ratification will be less influenced than the first – and Hathaway’s paper, like Camp Keith’s, strongly suggests that the effect in the first years after ratification is not significant. If the influence is pre-ratification then, as mentioned above, the efforts of the UN committees in collecting and analysing post-ratification country reports appears misplaced.

123 124

ibid, p 1995. Goodman, R, and Jinks, D, op cit, p 173.

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Goodman and Jinks rather speciously argue that choosing the moment of treaty ratification as the moment from which to measure effects may not give accurate results in a lot of cases. However, the same arguments could be used for choosing any time during the negotiation, signature, ratification or implementation of legislation and do not, in fact, play a significant role in the most important of Hathaway’s conclusions. Similarly, it is indeed the case that using the measurement of “reported” human rights abuses will not be accurate if there is limited correlation between the number of reports and the reality of abuses.125 However, if this measurement was flawed in a significant way for some countries, it would result in anomalous figures from one country to the next, which does not appear to be the case. In a fascinating stretch of logic, they quote one report126 which says that states do not ratify treaties that they do not agree with and therefore, ratification must mean that there is better reporting of abuse after ratification, resulting in the level of reported abuses increasing. Even more difficult find any basis for is their argument that “lawyers and their clients” 127 refer to human rights abuses more when codified in international law – increasing the level of reported instances of human rights abuses. They do not explain why lawyers and their clients would wish to make such common reference to instruments of no domestic legal bearing in most countries. The fact that Ursula Kilkelly identified no examples of the Convention on the Rights of the Child being used by lawyers in the European Court of Human Rights – even in cases involving child abuse – seems to definitively disprove that argument.128 The weakest argument of Goodman and Jinks is most certainly that the UN Commissioner for Human Rights has funds available to help with the reporting process for periodic reports. However, the extent to which the UN can organise its own internal management of reporting processes, let alone act as a catalyst for parties to particular conventions to produce accurate reports, is debatable. How exactly could the UN, which 125

ibid, pp 173-175 ibid, p 176 quoting Heyns and Viljoen, “The Impact of the United Nations Treaties on the Domestic Level”, HRQ (2001) 483, pp 487-488 127 ibid, p 176 128 Kilkelly, U, “The impact of the Convention on the case law of the European Court of Human Rights”s in Fottrell, D, (eds), “Revisiting Children’s Rights 10 years of the UN Convention on the Rights of the Child”, Kluwer Law International, The Hague, 2000. The only examples found were in judgments and even those did not require the instrument to be law, but simply indicative of widespread practice. 126

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has struggled and failed to devote enough resources to analysis of states’ periodic reports, nonetheless be able to make such a perceptible impact on the reporting process in each of the states parties? Counter-Arguments Theoretical They also argue that Hathaway’s analysis fails to explain all forms of non-participation. If talk is so cheap, they ask why some countries do not ratify, or why do some ratify with exceptions and reservations. However, this assumes that;

•

all countries will act in the same way under the same circumstances, regardless of political culture, processes or regime; and,

•

there is no difference in political context from one country to the next.

It is easy to imagine that country A, where there is weak church influence and country B, a country with a strong church influence, would sign up to the same convention with relevance to, for example, gay marriage. Even if neither of them intends to change their existing practices, there would be a strong political imperative domestically for country B to insist on a derogation with regard to gay marriage to avoid costly and, in reality, utterly pointless domestic objections. This phenomenon can be seen quite clearly in the Shari ‘a-based reservations to CEDAW. Furthermore, more developed countries can find it easier to derogate from the few elements of a convention which they are not in compliance with, in order to ratify without changing their internal rules at all. This would also explain why more developed countries have more reservations with regard to the ICCPR than the less developed ones. Summary With researchers such as Camp Keith, Hathaway and Hefner-Burton producing results which strongly indicate both a lack of significant impact from human rights treaties and also examples where the treaties have been used by recalcitrant states to deflect criticism, it is difficult to argue that the third of the three criteria above (that domestic state practice reflects the positive normative influence of the instruments) is met by the reporting-based human rights instruments in question.

CONCLUSION As global efforts to spread norms of respect for human rights, the treaties of the United Nations are of very great significance. Consequently, it is crucial that they have the legal form that is most likely to be effective in ensuring their implementation. None of the analysis above places any doubt on the value of the norms that these instruments contain. Instead, it questions the validity of the enthusiasm with which the UN, NGOs and governments automatically give the instruments the status of binding law, with an apparent belief that referring to them in this way automatically makes them more effective. It has been shown above that the very nature of reporting-based human rights instruments raises doubts as to their suitability to be referred to as binding international law. Far from inspiring more diligence on the part of UN member states and the UN itself in drafting and monitoring the instruments, we have seen that the instruments display weak, inappropriate and contradictory language, further undermining their credibility. Even worse, all three conventions suffer from reservations to fundamental rights at the very core of the instruments, such as the open-ended reservations of Bangladesh and Saudi Arabia to Article 3 of CEDAW (the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality). The global acceptance of such reservations (even if some countries used harsh words to condemn them before meekly accepting them) is probably even more damning than the reservations themselves to their status as “binding international law.” The administration of the reporting process for the three instruments has also been difficult and, in the case of CEDAW, has not been helped by a restriction included in the text of the treaty itself on how much time can be spent on reviewing states parties’ reports. State practice, as shown by the child abuse case study suggests that these instruments are treated as “cheap talk”, with the international community preferring to prohibit the same behaviour four times with four different instruments rather than producing one coherent international effort to deal with the problem bilaterally and multilaterally (as required by the first of the four instruments, the CRC). Taking all of these factors into account, the results of the empirical studies from Hathaway and Camp

57

58

Keith, which indicate that human rights treaties generally (except where countries agree to individual petition mechanisms) produce little measurable effect, hardly seem surprising. Several major conventions, such as the ECHR, the ICCPR and, more recently, CEDAW, have evolved from being reporting-based instruments to giving individuals, via optional protocols, the right to individual petition, producing effects and processes much more in line with what one would normally understand as “law”. Indeed, again showing a gap between respect for the main ICCPR treaty as law, as opposed to the ICCPR plus the first optional protocol, “in contrast to its reluctance to criticize states parties during the reporting process, the Committee has not hesitated in expressing its displeasure with states that do not respond to an individual’s allegations or otherwise decline to take an active role in resolving a case.”129 While the reporting-based treaties have certainly served as crucial stepping stones to more rigorous respect of the rights in these conventions (according to the empirical research) and condemnation of abuses, it seems clear that being treated as a destination in their own right (being referred to as fully-fledged binding law) rather than intermediate steps to more rigorously respected binding instruments is more likely to slow down the process of countries moving towards acceptance of individual petitions than speeding up this process. Categorising these instruments as “declarations” rather than “binding international law” would be unlikely to undermine their normative influence, nor would it do anything to decrease implementation by well-meaning states. What it would do, however, is reduce the value as a refuge for countries under pressure to take positive action on human rights, removing an opportunity to use empty words to replace valuable deeds. In summary, in the interests of minimising “cheap talk” and maximising respect for human rights, the UN and NGOs should resist the temptation to claim that these instruments are binding international law: something that their nature, their drafting and state practice indicates that they are not. A reassessment and new appreciation of these instruments as valuable guidelines for the creation of domestic legal norms and as an important intermediate step to enforceable and enforced international law would serve to 129

Helfer, L and Slaughter, A-M, op cit, p 342.

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improve their impact and better achieve their undoubtedly laudable goals. On the basis of the above analysis, there are strong grounds for believing that downgrading the legal status of such instruments in the future will upgrade their effectiveness. “International law cannot gather strength by isolating itself from the political realities with which international relations everywhere are impregnated. It can only do so by taking full account of the place that these realities occupy and measuring the obstacle that they present.”130

130

De Visscher, C, quoted in Coplin, W, op cit, p 632.

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