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Tuesday, January 14, 2014

National Implementation of International Human Rights Obligations: Legislation and “Other” Effective Measures

Julie Fraser PhD Candidate Receptor Approach
Campaigns to combat HIV/AIDS and to remove the stigma that patients often face have not always been effective. The assumption upon which this Seminar is based is that the effectiveness of human rights protections may be enhanced by relying on local culture. While not dealing directly with the topic of combatting HIV/AIDS, this paper discusses the legal issues surrounding the use of culture to protect international human rights. The central question addressed is whether it is permissible under public international law for States to utilize culture - or other social institutions - to protect domestic human rights and uphold their international obligations?

The Receptor Approach seeks to accommodate “non-Western” methods of human rights protection within public international law. The Approach identifies pre-existing social institutions – such as culture or traditional medicine - that can be relied upon by the State to meet its international human rights obligations. The Receptor Approach works from the premise that human rights may be implemented – and even more effectively implemented - through non-legal means like social institutions.

This paper contends that States are not always obliged to legally incorporate international human rights treaties, and that they have discretion in implementation. When considering such measures of implementation, the focus is not on the method adopted but on their efficacy. Therefore, it is submitted that, subject to certain conditions, there is scope within the UN system for the Receptor Approach to implementation of human rights obligations.

UN human rights treaties

There is no doubt that international human rights treaties are binding on States Parties. However, these treaties at the international level alone will not be successful in protecting human rights domestically. The UN High Commissioner for Human Rights has held that it is through action at the national level that international human rights obligations can be translated into reality. This action can and must take various forms.

States Parties to the international human rights treaties are obliged to ensure that individuals within their jurisdiction benefit from the guarantees in those treaties. But the treaties do not give concrete instructions as to how the rights are to be guaranteed. Rather, emphasis is placed on “giving effect” to the treaties. The focus here can already be seen to be on the outcome and not the methodology.

Not required to be legally incorporated

According to a general rule of international law, States are free to determine how they implement their international obligations. What is most commonly thought of for implementation is legal incorporation. Sometimes treaties specifically stipulate that the relevant obligations therein must be implemented through legal measures. For example, the Convention Against Torture provides that “states shall ensure that all acts of torture are offences under its criminal law.” As this illustrates, States are sometimes required to incorporate human rights obligations national through legislation. However, there is no general obligation to do so.

Preference for legal incorporation

It has been often been noted that while there may be no formal obligation to incorporate the treaties domestically, this approach is desirable. In fact, the Human Rights Committee can be seen to favour incorporation.[9] The Committee has stated that guarantees in the ICCPR may receive enhanced protection in States where the Covenant is directly incorporated. Equally, it has been held that incorporation of the International Covenant on Economic Cultural and Social Rights is desirable, as direct incorporation avoids problems that may arise in the translation of the treaty into national law, and provides a basis for the direct reliance on the Covenant by individuals before national courts.

In general, it has been said that effectiveness of protection is best ensured if a human rights treaty is made part of national law. However, this is not necessarily the experience of some States and it has been argued that in some circumstances it may be more effective to use non-legal means.

Interpretation of treaties

While not dictating the methods, States Parties are required to give effect to their international law obligations in good faith. Equally, the method selected for implementation must not affect the basic principle of pacta sunt servanda - States must abide by their duties. States Parties are not permitted to restrict the substance or scope of their obligations by choosing implementation measures that may be less onerous than others.  The Committee for CAT recognises that States Parties may choose the measures for implementation, so long as they are “effective and consistent with the object and purpose of the Convention”.

The Vienna Convention on the Law of Treaties provides that a “treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to terms of the treaty in their context and in the light of its object and purpose”. The European Court of Human Rights has held that “the object and purpose of the convention as an instrument for the protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.”

Once again, it is evident that the focus is on the effectiveness of the method chosen by the State, and not the method itself, so long as it is performed in good faith and in line with the object and purpose of the treaty.

Role of treaty bodies in monitoring and interpreting

Ratification of the main human rights treaties includes an obligation to participate in the international monitoring procedures. These treaty bodies are the most authoritative interpretor of the human rights treaty in question. As part of their work pursuant to the reporting and complaints procedures, the monitoring bodies assess whether the measures taken by a State are adequate – they evaluate whether the protection offered domestically meets the treaty standards. Therefore, States do not have free reign to implement the treaties as they see fit. These monitoring bodies play a safeguarding role and, ultimately, States will have to report to them regarding their chosen method of implementation. 

Tomuschat argues that the Human Rights Committee has employed the substantive criterion of effectiveness as the guiding principle for its assessment of the different methods of implementation, rather than the formal criterion of incorporation. He concludes that for the Committee, the decisive issue is that of effectiveness – and that “effectiveness is the only acceptable yardstick.”

Other feasible measures for implementation

It is widely accepted that the domestic incorporation of international human rights obligations alone will not necessarily advance the human rights situation in a given State. As with the premise of this seminar, legislative measures in isolation are often ineffective in securing full realisation of human rights. Therefore, legislative measures must be supplemented by judicial, administrative, educational and other appropriate measures. 

As part of the research, the major international human rights treaties were reviewed to determine the extent to which their obligations can be implemented nationally through “other measures”. For example, the International Covenant on Economic Cultural and Social Rights provides that each State undertakes to take steps…by all appropriate means. General Comment No 3 provides that the means employed to satisfy this obligation include administrative, financial, educational and social measures. In addition, the Convention on the Elimination of All Forms of Discrimination Against Women provides that Statesshall take in all fields, in particular the political, social, economic and cultural fields, all appropriate measures”.

As can be seen from these examples, “other measures” of implementation can include social and cultural methods for protecting and promoting international human rights.

Conclusion

States parties are obliged to give effect to provisions in international human rights treaties. However, international law does not prescribe a specific method of implementation - what matters is the result. Acknowledging that while there may be a preference for domestic legal incorporation, it is apparent from these treaties that States maintain discretion in the method of implementing their human rights obligations. This research demonstrates that, subject to certain conditions, there is scope within this system for the types of implementation foreseen by the Receptor Approach. The Receptor Approach proposes that where a legislative requirement is not explicitly stated, treaty rights can be implemented in other ways, including through social institutions and by way of culture.

The focus of this Approach is on the result – the effective protection of human rights. Like the Receptor Approach, it can be seen that the international human rights treaties are also concerned with the effectiveness of the human rights protection, rather than the method of implementation selected.

As human rights are principally a matter for the State, each State must build their own internal capacity to translate human rights norms into practice. It is submitted that human rights implementation will be even more effective if States adopt “other measures” that reflect and respect their particular social and cultural institutions. This could include the example of using traditional medicine to help address HIV/Aids. As a result, the focus on effectiveness within the UN treaty system may even in some cases favour the methods of implementation as advocated by the Receptor Approach.

Guest Post by Julie Fraser (Julie is a PhD Researcher on the Receptor Approach at the School of Human Rights Research, Utrecht) (Speaking notes for the Seminar on “Relying on Culture to Protect Human Rights: The Combat Against HIV/AIDS and the Stigma Associated With It”)

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