A Discussion On The Extent at Which International, Regional And National Human Rights Instruments Are Effective In Safeguarding And Enforcing Human Rights And How They Established Enforcement Mechanisms Achieve Their Mandate And What Are Their Shortcomings Are

 

                                                        

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There is a close relationship between peace and human rights. A world without human rights would be like the state of nature Thomas Hobbes described in The Leviathan where there is a war of “every man against every man” and the life of a human being in a state of nature as Hobbes puts it “is solitary, poor, nasty, brutish and short.”[1] The atrocities of World War 2 attest to Hobbes's assertions, as the lack of global promotion and protection of Human Rights led to horrific infringement of human rights, especially by Nazi Germany during World War 2. Thus, for peace and prosperity, there is a need for a global conscience to protect and promote Human Rights. Human Rights are essentially fundamental entitlements that each person has by virtue of being human. Globally, Regionally and at the national level the protection and promotion of human rights are embodied in agreements, treaties, conventions, protocols and other texts collectively referred to us as human rights instruments. These instruments function as authoritative legal sources for the protection and promotion of human rights generally. This piece of writing will critically discuss the extent to which international, regional and national human rights instruments are effective in safeguarding and enforcing human rights with the use of suitable authorities to examine the established enforcement mechanisms, how they achieve their mandate and their shortcomings together as they are fairly similar. 

     

    The extent of the effectiveness of international and regional human rights instruments in safeguarding and enforcing human rights depends on firstly, the willingness of states to comply with their obligations after ratification. States rarely ratify international and regional treaties unconditionally; they usually ratify them with reservations.[2] Worse off in tyrannical regimes with weak civil societies, scarce non-governmental organizations and weak citizen participation, ratification of human rights instruments has no effect and, in some cases, even after ratification, the gross violation of human rights continues.[3] For example, in China even after being party to several human rights instruments, there are still gross violations of the freedom of expression,[4] freedom of assembly,[5]

    and widespread discrimination of ethnic minorities.[6]

    Secondly, the extent of the effectiveness of international and regional human rights instruments in safeguarding and enforcing human rights depends on political will. Political will according to Derick Brinkerhoff, is “the commitment of actors to undertake actions to achieve a set of objectives…and to sustain the costs of those actions over time.”[7] In the case of human rights, certain states have prioritised their interests over the promotion and protection of human rights and have neglected to undertake actions to achieve the obligations to fulfil human rights standards set out in international and regional human rights instruments. For example, North Korea prioritises maintaining its massive military and “devotes significant resources to its illicit nuclear weapons and ballistic missile programs”.[8] Over the fulfilment of human rights standards set out in international and regional human rights instruments that it is a member state.

Thirdly, the extent of the effectiveness of international and regional human rights instruments in safeguarding and enforcing human rights depends on enforcement mechanisms employed under every international and regional human rights instrument. An enforcement mechanism of a human rights instrument is a technique utilized to monitor and enforce compliance with human rights responsibilities by states and other entities. [9] The nature of an enforcement mechanism has a direct link to the extent of the effectiveness of international and regional human rights instruments in safeguarding and enforcing human rights. The Universal Declaration of Human Rights,^[10] for instance under international instruments has no enforcement mechanism and binds no state party. which leaves the obligation under it to be followed at a state's accord without any measure that backfires on default. The Banjul Charter, commonly known as the African Charter on Human and Peoples' Rights,^[11] under the regional human rights instruments, also has no reliable enforcement mechanism.

Lastly, the extent of the effectiveness of international and regional human rights instruments in safeguarding and enforcing human rights depends on the cultural, political, and economic peculiarities. Every region has its own distinct human rights issues that are unique to that region. Thus, in comparison, the standards set by international human rights instruments are less likely effective as compared to the standards set by regional human rights instruments. The similarity in cultural, political, and economic peculiarities among states within a region makes it easier to agree on the text of a common convention, and these states are more likely to follow regional initiatives than international ones.[12]

Furthermore, the enforcement mechanisms under the international and regional human rights instruments include, firstly the Charter-Based Mechanisms.  The authority to create Charter-based mechanisms stems from the United Nations Charter.[13] These mechanisms gather data on alleged violations of human rights and communicate with governments to obtain clarification.[14] The shortcomings of Charter-Based Mechanisms are that they are over-politicized and have lost credibility as a result of their selective approaches to governments' human rights records.[15]  Charter-based mechanisms have achieved their mandate by requiring States to submit regular reports on their human rights efforts to the monitoring bodies and by conducting visits to investigate the state of human rights on a national level.[16]

The Second enforcement mechanism under the international and regional human rights instruments is the Treaty-Based mechanism. Treaty-based mechanisms are “supervisory mechanisms enshrined in legally binding human rights instruments or conventions.”[17] The shortcomings of Treaty-Based Mechanisms are that they have limited participation by states after they sign them. That is because some states sign treaties with reservations. The shortcomings of Treaty-Based Mechanisms in addressing human rights violations are due to flaws in the institutional hierarchy, working practises, inadequate financial backing, and limited coordination and influence of treaty bodies that implement the treaty-based mechanisms.[18] Treat-based mechanisms have achieved their mandate by setting human rights standards and by advocating for state parties to domesticate treaty obligations in their national laws. For instance, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[19] has been domesticated by Zambia in the enactment of the Gender Equity and Equality Act.^[20]

On the other hand, the extent of the effectiveness of national human rights instruments in safeguarding and enforcing human rights is dependent on the nature of the enactment of its provisions by a country. In Zambia for instance, the national human rights instrument is the Bill of Rights under part III of the Constitution of Zambia.[21] Any violation of the provision of part III entitles a person to redress by way of a petition to the High Court for Zambia under Article 28 of the Constitution of Zambia.[22] Thus enforcement mechanisms utilized to implement human rights in Zambia is the court. The shortcomings of courts in implementing human rights instruments are mainly driven by the lack of separation of powers of the arms of government in particular the judiciary and the executive. For instance, in Peru, three Peruvian judges were dismissed from their offices after finding against, a law that allowed the president to run for a second consecutive time.[23]
Courts achieve their mandate of protecting human rights through enforcement of legal remedies, interpretation of human rights instruments and adjudication of cases of human rights violation.

In conclusion, the extent to which international, regional and national human rights instruments are effective in safeguarding and enforcing human rights is dependent on the factors discussed above. From the above, I can see that the effectiveness of these instruments is directly connected to their proximity to the individual affected, with international instruments less effective than the others.

Reference

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[1] Hobbes, T. Leviathan, (Baltimore, Penguin Books, 1968).

[2] Neumayer, Eric. Do international human rights treaties improve respect for human rights?, 2005 Journal of Conflict Resolution, 49 (6). pp. 925-953. ISSN 1552-8766

[3] ibid

[4] Congressional-Executive Commission on China, 'Freedom of Expression in China: A Privilege, Not a Right', <https://www.cecc.gov/freedom-of-expression-in-china-a-privilege-not-a-right> accessed 09 September 2023

[5] Human Rights Watch, 'China: Respect Right to Peaceful Protest', 2022, <https://www.hrw.org/news/2022/11/28/china-respect-right-peaceful-protest> accessed 09 September 2023

[6] Lindsay Maizland, 'Hong Kong’s Freedoms: What China Promised and How It’s Cracking Down', 2022, Council on Foreign Relations https://www.cfr.org/backgrounder/hong-kong-freedoms-democracy-protests-china-crackdown accessed 09 September 2023

[7] Brinkerhoff, D.W. 2000. Assessing political will for anti-corruption efforts: an analytic framework. Public Administration and Development, Vol. 20, No. 3

[8] Department of Foreign Affairs and Trad, 'Democratic People's Republic of Korea (North Korea) country brief', (No date) <https://www.dfat.gov.au/geo/democratic-peoples-republic-of-korea/democratic-peoples-republic-of-korea-north-korea-country-brief#:~:text=The%20Democratic%20People's%20Republic%20of,weapons%20and%20ballistic%20missile%20programs.> accessed 09 September 2023

[9] Bogdanova, Iryna. " Unilateral Sanctions in International Law and the Enforcement of Human Rights," Papers 1373,2022 World Trade Institute Advanced Studies, Volume: 9 Pages: 161–222

[10] UN General Assembly. "Universal Declaration of Human Rights." 217 (III) A. Paris, 1948.  UN General Assembly resolution 217 A <http://www.un.org/en/universal-declaration-human-rights > accessed 04 April 2023

[11] African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art. 2.

[12] Kidanemariam, Fekadeselassie F., "Enforcement of Human Rights under Regional Mechanisms: a

Comparative Analysis" (2006). LLM Theses and Essays. 80.

[13] Global Detention Project, 'UN Charter-Based Mechanisms' 2016 <https://www.globaldetentionproject.org/international-law/un-charter-based-mechanisms> accessed 09 September 2023

[14] ibid

[15] De Schutter, O. . The United Nations Charter-based monitoring of human rights. In International Human Rights Law: Cases, Materials, Commentary (pp. 855-896).2010 Cambridge: Cambridge University Press.

[16] Global Detention Project, 'UN Charter-Based Mechanisms' 2016 <https://www.globaldetentionproject.org/international-law/un-charter-based-mechanisms> accessed 09 September 2023

[17] Icelandic Human Rights Centre, 'International Supervisory Mechanisms For Human Rights <https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/part-i-the-concept-of-human-rights/international-supervisory-mechanisms-for-human-rights> accessed 09 September 2023

[18] Oette, L. (2018). The UN Human Rights Treaty Bodies: Impact and Future. In: Oberleitner, G. (eds) International Human Rights Institutions, Tribunals, and Courts. International Human Rights. Springer, Singapore.

[19] The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Adopted by 1979) United Nations General Assembly < https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women > accessed 04 April 2023

[20] Gender Equity and Equality Act No. 22 of 2015

[21] The Constitution of Zambia 1996 (As amended in 2016) Cap 1
[22] ibid
[23] Christina M Cerna, The Inter-American System for the protection of Rights, 16 Fla. J. Int’l L 195,205 (2004)