WE DO NOT NEED MORE HUMAN RIGHTS INSTRUMENTS AND MECHANISMS; RATHER ALL WE NEED IS A CONSOLIDATION O

UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan

WE DO NOT NEED MORE HUMAN RIGHTS INSTRUMENTS AND MECHANISMS; RATHER ALL WE NEED IS A CONSOLIDATION OF THE EXISTING CACOPHONY I INTRODUCTION While the vast majority of countries have ratified nearly all of the major human rights treaties, globally rights violations remain common. The question of whether we need more human rights instruments and mechanisms to strengthen international human rights law, or whether we need a consolidation of ‘the existing cacophony’, does not in itself address the issue of continued human rights violations. A broader discussion on the effectiveness of management frameworks for human rights treaties and their application and enforcement at the domestic level is required.

Although the argument that there are too many international human rights treaties is compelling, a better argument may be that human rights will continue to evolve in direct response to human problems and as such must be reflected in new international treaties as well as in domestic regulations, policies and educational approaches.

In addressing the essay topic three key points are considered: the need for consolidation of existing treaty bodies; the continued evolution and development of treaties and the requirement for increased activism and greater political willingness to implement and enforce existing human rights treaties.

II THE NEED FOR CONSOLIDATION The Universal Declaration of Human Rights1 (UDHR) was momentous in its time and continues to challenge global inequities and oppression.2 Since the adoption of the UDHR, numerous formal treaties have been negotiated that recognise hundreds of human rights,

1 2

United Nations Universal Declaration of Human Rights (“UDHR”), GA Res 217A (III) (10 December 1948).

Amartya Sen, ‘The Power of a Declaration’ (2009) The New Republic, included in Course Notes (2019).

1

UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan

including political rights, civil rights, cultural rights, the rights to work and have access to health care and education.

With five charter-based bodies, nine human rights treaty bodies, 39 thematic mandates, 14 country mandates and numerous rapporteurs, independent experts and working groups, it is unsurprising that there is overlap and confusion regarding the management, enforcement, reporting and monitoring of human rights.

In addition to these ‘universal’ treaty bodies, regional bodies in the Americas, Europe and Africa also deal with human rights issues. These systems have developed and operate differently and are founded on different aspirations and principles.3 There continues to be substantial overlap in a state’s duty to protect, given that most states are parties to several human rights instruments. For example, rights protected under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), are also protected under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights.4 However, the problem is not in the overlap of the treaties themselves, but in the governing framework associated with the management, implementation and enforcement of the treaties. Resource constraints have resulted in significant backlogs of reports and communication resulting in inaction on behalf of states and continued human rights violations.5 The effectiveness of the diverse treaty bodies in ensuring compliance by States remains questionable. According to Broecker:

3

Note on Universal and Regional System for Human Rights Protection, included in Course Notes (2019).

Ibid 5 Christian Broecker, ‘The Reform of the United Nations’ Human Rights Treaty Bodies (2014), 18 ASIL Insights, included in Course Notes (2019).

4

2

UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan

Many States parties that ratify the treaties fail to report on time; a few fail to report at all; only some engage all relevant domestic actors to create high quality reports; and the degree of effort with which States pursue implementation of treaty body recommendations varies widely.6 Thus, the principle objective of the human rights treaty body system to ensure protection at the national level through the implementation of obligations contained in the treaties,7 is not being met. A more unified approach is required to ensure better coordination of reporting schedules, formats and agendas, clearer reporting guidelines and enhanced collaboration, dialogue and engagement with individual member states. The UN Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body highlights a number of benefits of a unified treaty body.8 These include having permanent full-time professionals available to ‘produce consistent and authoritative jurisprudence’, streamlining working methods and providing clear modalities for participation, ensuring a single reporting obligation on member states, facilitating the integration of international expectations and recommendations into country programming, providing a consistent approach to the interpretation of overlapping treaty provisions and enhancing the visibility and transparency of the UN treaty body system.

A well-resourced unified treaty body would build on the successes of the current system, while providing a ‘stronger framework for implementation and monitoring of existing treaty obligations, and those which may be elaborated by future human rights treaties.9

6

Christian Broecker, above n 5.

United Nations, Concept paper on the High Commissioner’s Proposal for a Unified Standing treaty Body – Report by the Secretariat, UN Doc. HRI/MC/2006/2, 22 March 2006, included in course notes 2019.

8 Ibid 9 Ibid 7

3

UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan

III THE CONTINUED EVOLUTION OF HUMAN RIGHTS While some human rights treaties apply generically to all persons, others are devoted to the application of human rights to specific groups. These treaties enhance the visibility of marginalised groups and afford them greater protection. Although human rights treaties that focus on single issues have come under scrutiny for failing to accommodate intersectionality, ‘the specificities of each treaty must be preserved and their focus on specific rights, such as freedom from torture or racial discrimination, and the rights of particular rights holders, such as children, women and migrant workers, should not be diminished.’10 The continued discrimination of LGBT people provides a strong case for the expansion of human rights treaties. According to Sanders, international human rights instruments do not reference ‘sexual orientation’ and ‘gender identity’.11 Although a general recommendation to Article 2 of CEDAW was made to expand the concept of equality to all women who experience discrimination based not only on sex but on sexual orientation and gender identity12 this does little to recognise the rights of gay men, or others in the GBTQ community.

While 96 member states of the UN have sponsored a declaration in support of LGBT rights in the General Assembly, 54 countries remain opposed. More than 70 countries continue to criminalise consensual same-sex relationships and transgender people. These laws subject LGBT people to long prison sentences and implicitly encourage prejudice, hatred and violence.13 An international convention for the protection of LGBT community will not only highlight the importance of this issue to the international community, but also put pressure on states to bring their laws and practices in line with fundamental equality of all people.

10

United Nations, above n 7 Douglas Sanders, ‘Human Rights and Sexual orientation in International Law’ (2005), included in course notes 2019.

12 International Gay and Lesbian Human Rights Commission GLHR and ILGA-Europe, Recommendation to the CEDAW from IGLHR and ILGA on the scope of art. 2 of CEDAW on Equality (July 2016) in course note (2019) 13 Michelle Bachelet, UN LGBTI Core Group Meeting (2018), online at <https://news.un.org/en/story/2018/09/1020592> 11

4

UNSW | Master of Human Rights Law and Policy 2019 | Essay submitted by Sonja Duncan

IV ACTIVISM, POLITICAL WILL AND ENFORCEMENT International human rights treaties and the national laws that reflect them ‘are only as strong as their enforcement capacity’.14 As such there is an urgent need for enhanced political willingness and ability to enforce human rights laws globally. This can only be achieved when the voice of the governed is strong and governing bodies are held to account. Greater human rights activism that is centred on a political discourse of comprehensive justice is needed.15 Moral progress will only be made when the ‘intuition’ that each individual is entitled to equal moral consideration gains ‘influence’ over the conduct of individuals and states.16 V CONCLUSION While acknowledging the need to unify international human rights treaty bodies to ensure better overview, implementation, reporting and monitoring of human rights treaties globally, this essay argues that new treaties will continue to be required to reflect new societal norms and protect vulnerable people and communities from human rights violations. Rather than debating whether we have enough (or even too many) human rights instruments and mechanisms, we should welcome the continual evolution of human rights laws, provided the process is managed in a more strategic, integrated and well-resourced way and that international treaties are ratified and enforced through local legislative frameworks.

Sonja Duncan, April 2019

Justine Nolan, Mapping The Movement: Business and Human Rights Regulatory Framework’ (2016), in Baumann-Pauly & Nolan (eds), Business and Human Rights; From Principles to practice, 35 – 50, included in course notes 2019.

15 Wendy Brown, ‘The Most We Can Hope For: Human Rights and the Politics of Fatalism’ (2004), 103 South Atlantic Quarterly, 451 – 463, included in course notes 2019.

16 Ibid 14

5