Is rights replication undermining the international human rights system?
20 March 2013
Rapid expansion of human rights obligations at the European and international levels arguably undermines the system of International Human Rights Law. Countries like the UK, which place strong emphasis on the need to protect individuals from abuses, are faced with ever more obligations stemming from rights inflation. One crucial way in which this occurs is through rights replication.
No-one can legitimately argue that women, children, persons with disabilities, migrant workers, human rights defenders and other vulnerable groups do not need protecting from human rights abuses. Where those groups require additional rights then of course it makes sense for them to be enshrined within treaties. Yet the many treaties, resolutions and declarations about those groups almost always focus on rights that already exist for all individuals. Often these are civil and political rights, which can be found within international and regional treaties. Replicating these rights, rather than creating new additional ones, weakens and undermines the human rights system.
Human rights treaties contain non-discrimination clauses. If a state has human rights obligations under a treaty, then it must uphold them without discrimination. This, of course, includes discrimination based on gender, race, religion, nationality and disabilities. Countries that discriminate against those vulnerable groups are already in breach of treaty obligations. Replicating rights within treaties aimed at those groups does not afford any additional protection to individuals. Clearly, it would be better to focus on implementing existing rights for all people without discrimination rather than focusing on those same rights in relation to one group of people.
Countries may choose not to ratify human rights treaties such as the International Covenant on Civil and Political Rights. If so, they ought not to be given the get-out clause of only accepting obligations only in relation to particular groups. Why should China be allowed to be bound only to uphold civil and political rights of women and children but not those of migrant workers, refugees or indeed the general population? Treaties on vulnerable groups shift the focus away from the need to ensure that all states ratify the two Covenants that codify the Universal Declaration of Human Rights. Rights replication masks a tacit acceptance that many countries do not accept fundamental rights for all people. Instead, rights replication provides a smokescreen for states to claim that they are adhering to rights obligations for vulnerable groups whilst simultaneously continuing to commit violations of those same rights in relation to the general population.
Rights replication results in countries with the strongest human rights records being bound by too many, often repetitive or replicated, human rights obligations. The UK has ratified over 50 treaties pertaining to human rights at the international and regional levels. The United Arab Emirates is only bound by 10 such treaties, all relating either to the Laws of Armed Conflict or Employment and Forced Labour. The UK is bound by replicated rights through its ratification of general treaties and those focused on vulnerable groups. The UAE is not bound by any such rights, let alone replicated ones. Countries like the UK are given greater scrutiny; they fall under the jurisdiction of many more institutions owing to having ratified many more treaties. That time and effort would better be spent focusing on countries with poor human rights records and regimes that are known abusers.
There is not infinite time and resources to devote to protecting and promoting human rights. At human rights bodies, precious time and resources are allocated to replicating rights and discussing their protection and promotion. The UN has treaty-based bodies focusing solely on the rights of vulnerable groups such as women and children. Those bodies produce jurisprudence that replicates comments and decisions from the UN Human Rights Committee, which deals with Civil and Political Rights for all people. The UN Human Rights Council devotes precious time and resources to discussing replicated rights and vulnerable groups. At its current session, the Council has focused on children, people with disabilities and human rights defenders, all in relation to rights that exist for all people. Time and resources should be devoted to protecting and promoting those rights across the board.
It is little wonder, then, that the additional burdens placed on the UK and other countries with strong human rights records may be feel aggrieved. Replicated rights provide opportunities to abusers to escape scrutiny whilst simultaneously overburdening those countries that take seriously their obligations. This results in weakening the system from all angles. The sheer volume of international and regional obligations is overwhelming and may well be contributing to the UK government’s current stance on international and regional obligations. In order to protect individuals from human rights violations we need to take stock of the rights that exist and focus efforts on ensuring that those rights are upheld for all individuals within all countries.
Dr. Rosa Freedman is a Lecturer at Birmingham Law School. Her book on the United Nations Human Rights Council has recently been published by Routledge.
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