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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I agree with the initial comments above. Having a range of binding international treaties (the focus of the article) specific treaties allow for additional revenues of oversight, complaint and redress for minority or groups with additional vulnerability, allowing their issues to be heard in a context-specific forum, by experts in the field rather than by general human rights experts who may not be aware of the nuances of issues felt by certain vulnerable groups (eg migrant workers, people with disabilities). In this way, these Committees provide a much needed role that Committees for more over-arching human rights treaties may not be able to fill. Furthermore, many of the international treaties (and additional guidelines, standards etc) are not merely a repetition of rights, but are addressing a gap which exists in indicating exactly what must be met in order for non-discrimination to exist. For example, in relation to international standards (slightly different to treaties, of course, but presenting a similar point), the Standard Minimum Rules for Prisoners includes non-discrimination clauses, however, the new Bangkok Rules (Minimum Rules for Women Offenders) clarifies additional measures and standards that must be put in place in order for non-discrimination to be met.
The comments are very interesting and I very much appreciate the time and effort that people have put into engaging with my piece. I agree that where a vulnerable group needs additional protection, of course obligations must be set out at the international level. There is, however, a crucial difference between treaty provisions setting out additional obligations and those simply replicating rights. It seems that the international community would do better to focus its efforts (and the finite resources available for human rights) on ensuring that all states become party to the two codifying covenants. The issue of national implementation is a separate matter (and not one that I could address within this piece, not least owing to constraints on the length of a blog post). The starting point at the international level must be to ensure that all states are obligated to ensure civil and political rights and economic, social and cultural rights for all individuals without discrimination. Efforts could then be directed to ensuring and assisting compliance with those obligations. Of course, additional protections for vulnerable groups is also fundamentally important. However, the increasing numbers of replicated (rather than additional) rights muddies the waters for those states that seek to comply with the full range of international human rights obligations, whilst simultaneously using up finite resources that would better be used to ensure universal compliance with existing human rights obligations.
Perhaps these comments are missing the point. The author clearly states that human rights are for ALL. Her criticism is explicitly not aimed at ‘additional rights’ being created for vulnerable groups, rather the criticism is aimed solely at the replication of these rights that should be enjoyed by ALL without discrimination.
The situation at the UN Human Rights Council is a good example of the effect of replicating rights. The author highlights how precious the time and resources of the Council are. Whilst accepting that one of the important functions of the inter-governmental body is to act as a forum for discussion with a view to protecting and promoting rights, state representatives often manipulate these proceedings to pursue their own political agendas. Replicating rights and then discussing these will draw attention away from other gross and systemic violations. This is not to say that additional rights or particular situations should not be discussed within the Council, it is the superfluous replication of rights which should be for ALL that is problematic. As the author notes, states are able to avoid scrutiny of their protection of human rights for all by concentrating on particular groups.
Simply put, this raises the question on the correct method to assess the effectiveness of these international human rights bodies. Rather naively, perhaps, I assumed that the greater the number of resolutions and decisions taken by these bodies the more likely it would be that such a body would be considered effective at promoting human rights. Certainly such a body can point to its output as evidence that it is responding to violations. The author reminds us that rather than simply tallying up the number of resolutions and decisions on issues, we should be thinking about the political motivations behind such resolutions. It is the quality of such resolutions and decisions, not the quantity that matters when it comes to protecting human rights for ALL.
I agree that the conceptual framework used by the author is complicating things for her unnecessarily. The regional human rights treaties — European, inter-American and African — are extrapolations of the over-arching universal texts, adapted to more local circumstances. They are not “creating new rights” but interpreting universal rights in local conditions, which itself is a creative and ever-expanding process. Yet they remain subsumed under the provisions of the international covenants that apply to everyone. The author also appears to confuse such provision with the practical enjoyment of rights as laid down (or not) by national laws. Such laws do not “create” rights, but do afford recognition of and access to inherent rights. A lot of misunderstanding derives, I fear, from use of the word “application”, which implies something handed down by the powers that be. Rights are not applied, but acceded to.
Dear Rosa, I would reject your frame of ‘rights replication’. A treaty such as UNCRPD is about rights affirmation and contextualisation and exists to address the implementation gap faced by persons with disabilities who, as you note already enjoy these human rights in theory but who in practice experience profound human rights violations across the world including in the UK. You appear to adopt a very formal definition of ‘discrimination’ which ignores the social development component of some of the treaties you refer to, and towards which the Treaties provide direction and guidance. For example, Article 12 of the UNCRPD seeks a decisive shift away from plenary guardianship laws to models of supported decision-making; Article 19 UNCRPD seeks a decisive shift from institutionalisation to community-based living for disabled people. These may ultimately be matters of non-discrimination, but the changes in law, policy, culture and attitudes required to get there involves great complexity, justifying dedicated attention and processes..
As for your claim that the ‘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’ I should like to see the evidence for that claim, and don’t look forward to Chris Grayling using it anytime soon! In any case, according to the FCO’s bid for election to the Human Rights Council we couldn’t be more positive: http://ukmissiongeneva.fco.gov.uk/resources/en/pdf/738798782/hrceng
Best wishes, Neil
Just to affirm what Neil is saying, I am extremely dubious about the ability for existing human rights instruments to address the specific concerns of people with disabilities. Their failure to do so was the basis for the Beijing Declaration (2000) which sparked the process leading to the UNCRPD:
“We recognize, with appreciation, that the last two decades of the twentieth century witnessed an increased awareness of issues faced by over 600 million people with disabilities, assisted in part by various United Nations instruments. We express deep concern that such instruments and mandates have yet to create a significant impact on improving the lives of people with disabilities, especially women and girls with disabilities, who remain the most invisible and marginalized of all disadvantaged social groups.”
There are numerous reasons why existing instruments have not been responsive to the needs and concerns of persons with disabilities. Partly the rights they contain do not quite capture the needs and concerns of this group (e.g. there is no equivalent to Article 19 – the right to independent living – in other HR instruments). Partly their emphasis doesn’t recognise that economic and social rights are intertwined with civil and political rights in the ways the CRPD does. But the biggest problem is that the other treaties carry a lot of baggage – both in their drafting and in their interpretation – that people with disabilities are trying to get away from with the CRPD. The ECHR, for example, may be a living instrument, but it ain’t moving fast enough to respond to the needs of people with disabilities. Certain provisions of the ECHR (e.g. Article 5(1)(e)) are just downright offensive to people with disabilities, and hard to move away from without redrafting the treaty. The case law of the ECHR conflicts with the CRPD (e.g. Fennell, P. & Khaliq, U. 2011. Conflicting or complementary obligations? The UN Disability Rights Convention on Human Rights and English law. European Human Rights Law Review, 662-674; Bartlett, P. 2012. Re-Thinking Herczegfalvy: The ECHR and the Control of Psychiatric Treatment In: BREMS, E. (ed.) Diversity and Human Rights: Rewriting Judgments of the ECHR. Cambridge: Cambridge University Press). Treaty monitoring bodies like the CRPD Committee have specialist expertise in the area of disability and ensure that the voices of people with disabilities are heard at all stages of legal drafting and interpretation.
The CRPD has provoked a great deal of important debate about the ways in which particular rights – some recognisably traditional rights like legal capacity and the right to vote, others sui generis like the right to independent living – should be interpreted and implemented. The new framing of these rights in the CRPD has released people’s imaginations to think beyond the old ways of interpreting these rights. Is it really so dreadful that states are asked to devote some time to reflecting on and monitoring how well rights are implemented for these particular groups?
The above two comments make good points, but they are not arguing against the piece’s central premise. A decent case can be made for the existence of the CRPD (although I happen not to agree with it personally), but I think it is more difficult to argue that excessive rights replication/proliferation does not go on within the context of *other* treaty regimes (CEDAW, CERD, CRC, etc.). Does there really need to be an entire treaty for the protection of women from discrimination, for example, when the ICCPR and all regional human rights treaties make it abundantly clear that such discrimination is prohibited, and have the jurisprudential tools to expand on and elaborate how such discrimination is to be reduced?