Reservations and enforcement of international human rights treaties

Heba Moses

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The international law and its importance started to grow, especially, with the coming of the 19th century. Although kingdoms and empires were absolute actors in the international arena and wars were regarded as a common way to resolve disputes, catastrophic events made international corporation and rule-making more crucial in that century. The Vienna Congress could be highlighted in this essence as it aimed to stabilize the war-torn Europe and regulate the relations among nations. That progressive event aiming to highlight the necessity of the strong international norms and principles were followed with the creation of international humanitarian rules and other successful provisions in that century. But the adherents of the realistic school and supporters of the state hegemony were quite strong at that period and the imperialistic rivalry resulted in the two major wars in the world history in the 20th century. The League of Nations, created between these wars and promoting the international law-making and collaboration, failed to achieve its aims and did not prevent the catastrophic consequences of the armament. But the II World War was a major blow to the states and reconfirmed the importance of the universal rules to control actions of sovereign states and achieve peace.

The creation of the UN and other major institutions in the second half of the 20th century resulted in the increase in the international norms and many conventions and other regulatory documents were adopted in the international arena. That was also possible due to the fact that states voluntarily gave up some of their powers in favor of international norms and institutions. The EU is the fruit of such historical evolution which became a key institution and decision-maker, taking powers from sovereign member states.

However, it would be naive to state that the international law completely dominates over states and their law-making processes. States are still powerful enough to resist the prevalence of the international norms and they can refrain from the full implementation of them by adopting reservations or not being a party to them.

In this research paper I will identify the problems that hinder the application of International human rights treaties, mainly the problem of reservation and the problem of the application of the international treaties on domestic level.

Reservations 

Before dealing with the problem of reservation we shall first discuss the problem of universality and individualistic character of human rights because it can impede the application of international human rights treaties through the domestic laws of some States. International human rights law is not the result of the efforts of certain countries or a small group of countries, but a large group of States have contributed to its creation. Its intellectual and cultural originality is due to the cultures that emerging from those countries. Hence, this means that its application at the domestic level of a particular country include the application of foreign ideas to the national culture. Here lies the problem for countries that claim to have a particular and special view of human rights that differ from the general or “universal” character of international human rights law as a law that addresses all States irrespective of their cultural affiliations. As these countries may refrain from applying certain provisions of international human rights law or reserving them at the time of the conclusion of the international convention on the grounds that such provisions are contrary to their culture and traditions. But the question that arises here is that since the human being is the same, is there really a specificity of these rights that characterize one society from the other, or human rights are the same regardless of race, color, culture or religion? We cannot deny that the different ways of development, historical path and culture should be taken into consideration while creating human rights documents and policies, and even though human rights are considered universal “the rights one has simply because one is a human being” without distinction of any kind such as origin, nationality, race, sex, political or religious affiliation and should be equally protected, ignoring the differences between societies and intending to achieve rapid improvements on those issues are not always possible and it demands long time and patience. However, adhering to the issue of privacy is nothing but a means of evasion and refraining from applying the provisions of international human rights law.

 Whereas, the most essential characteristics of human rights is universality. Hence, it’s subject to international law and practice. Most multilateral treaties create corresponding reciprocal obligations among the states parties. “These treaties mirror traditional contractual obligations, and so the rights of the parties under such treaties have historically been understood in terms of two principles of contract law: negotiation and consent.”[1]  “The principle of consent requires that a state be bound only to treaty obligations to which it has consented.”[2]  According to Vienna Convention on the Law of Treaties (VCLT) Article 2 (d) “Reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;”[3]

Based on the above, if the reservation is permissible under international norms in general, including human rights law, this permissibility has greater implications for human rights. It contradicts with the character of universality, and as a result the reservation means giving the right to one of the State parties, which is obliged to ensure the enforcement and protection of these rights, to use the weapon of reservation to evade the implementation of the convention’s provisions. The question of reservation is therefore a serious matter which could impede the application of international human rights law. For instance, some countries applying Sharia law at domestic level, are not fully bounded by these conventions, especially, the ones which aim to protect children and women’s rights, and make reservations to them. The main justification for them is the incompatibility of some provisions to the Sharia law and hence they refrain from them. More precisely, “one might show the Convention on the Elimination of All Forms of Discrimination against Women as a bright example. The dismaying paradox is that this is one of the most widely ratified conventions in the world, yet at the same time it is the one having the most reservations adopted by states parties.”[4]  “It is worth noting that all Arab States have signed and ratified the Convention on the Elimination of All Forms of Discrimination against Women but under so many reservations that the purpose of the convention is defeated.”[5] For example, when Morocco expressed the willingness to implement the provisions of Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women provided that they do not violate Sharia law, this reservation was opposed by the Kingdom of the Netherlands because it considered such reservation contrary to the object and purpose of the Convention (Article 28, paragraph 2).

According to UN Human Rights Committee (HRC), CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant. While Article 19 (3) of the Vienna Convention on the Law of Treaties 1969 permits reservations without sacrificing the object and purpose of the Convention. And although the treaties which constitute mere exchanges of obligations between States allow reservation on the application of the rules of public international law, this is not the case in human rights treaties because Human rights treaties do not regulate the relations between states, but guarantee the rights of individuals against the state. Henceforth, State should not be allowed to rule on the validity of reservations, but the treaty bodies. [6]

Application of the international treaties on domestic level

During the application of International treaty, we face the problem of the hierarchy between international human rights law and domestic law after being incorporated. The issue of the relationship between international and domestic law has been the subject of theoretical disagreement. Although these disagreements were resolved theoretically in favor of the principle of the supremacy of international law over domestic law, the practical aspect of this issue is not settled by the same outcome, especially at the national level as the issue of resolving the relationship between two laws remained practically in accordance with the national laws of the States.

States can work in principle to integrate international law into their domestic law, but may take inappropriate action for instance by taking legislative measures that violate the obligations contained in international law whether by issuing contrary legislation or by amending existing rules or repealing them. According to Article 27 of Vienna Convention on the Law of Treaties “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” This means that the state’s commitment to the provisions of the treaty is legal and not just a moral obligation and it is not entitled to disassociate from this obligation under the pretext of the difficulties faced by its domestic law. Also in Article 26 of the same convention “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” And in Article 2 (2) of the UN Charter “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.”[7]  The principle of good faith states that States Parties shall endeavor to implement their obligations as appropriate and in accordance with the objective of the obligations, which may include, for that purpose, States shall undertake all domestic and legislative measures to implement these obligations and shall not in any way act to avoid it. For instance, there is a wide variation between the concept of the crime of torture in the provisions of international conventions and Egyptian legislation. Despite Egypt’s accession to the International Convention against Torture, which states in Article (1) the definition of torture covering all forms of physical and moral torture,[8] this commitment and accession was not matched by legislative amendments commensurate with the country’s commitment to the provisions of this Convention. Therefore, it is not sufficient for Egypt to accede to the International Convention against Torture or the International Covenant on Civil and Political Rights if it is not accompanied by legislation that establishes effective controls, guarantees and procedures to ensure the application of the constitutional provision and international obligations. And the need for a legislation establishing effective measures that protect individuals with clear and explicit provisions against all forms of torture and other cruel or inhuman treatment.

In conclusion, it can be stated that human rights are the core stone of the mankind’s modern development. We would not have had a current civilized world if none of the international law subjects did protect and enforce those basic rights and freedoms. Besides, universality of human rights should not be forgotten and to call these rights as “the outcomes of the Western way of thinking” is totally absurd. Humans are the same and have the similar concerns, demands, fears, and feelings. And the rights being evolved through different periods, long struggle and fights are perfectly applicable in every society. To refrain from their enforcement is mostly an excuse by the regressive forces trying to keep their power and rule in their respective countries. Therefore, enlightenment of people all over the world about human rights and breaking prejudices injected to brains should continue together with the promotion of international rules on this area.

International rules concerning human rights include a set of legal provisions aimed at protection of human rights and the realization of these rights through the domestic legislation of the states. The provisions of international human rights law can find their way to the implementation through interaction with domestic law on the basis of achieving harmony between those two laws by taking the necessary domestic legislative measures. And this can be achieved through the State’s adoption of positive measures that would put into effect the provisions of international human rights law, either through the promulgation of new legislative rules consistent with the international norm or by taking positive legislative measures, including amendments to certain provisions, if they do not conform to the provisions of the international human rights law. And it should not be forgotten that developed States which have a high human rights scores should also be encouraged to join international law-making process and implement the Conventions regarding human rights. More precisely, countries such as the US should respect international human rights norms and try to implement them in order not to be a bad example for other countries. To achieve a better world, all the actors of international actors, mainly, States, should combine their resources and power and fight for the common goal.

Work cited 

[1] Dinah L. Shelton. The United Nations System for Protecting Human Rights, Volume 4, 2014.

[2] Dinah L. Shelton. The United Nations System for Protecting Human Rights, Volume 4, 2014.

[3] https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf

[4] Emmanuelle Tourme Jouannet. A Short Introduction to International Law. Page 108.

[5] http://www.socialwatch.org/node/11599

[6] http://hrlibrary.umn.edu/gencomm/hrcom24.htm

[7] http://www.un.org/en/sections/un-charter/un-charter-full-text/

[8] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

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