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  • Writer's pictureAntonia Boorman

Why are people all over the world still denied their human rights?

This piece was written as coursework for my LLM in Human Rights Law at Queen's University Belfast. Article 2 of the Universal Declaration of Human Rights 1948 (UDHR) states that all humans are entitled to human rights by being human beings, regardless of nationality, citizenship, race or ethnicity[1], so why are people all over the world still denied their human rights? In this essay, I argue that the scope of obligations (i.e., the extent to which they are followed) and degree of flexibility permitted (i.e., ability to veer from these obligations), undermines the inherent importance and authority of human rights law, which leads to the denial of human rights in practice for many.

 

International human rights law is comprised of a combination of binding treaty law, and customary international law[2], and is codified in the UDHR, which outlines civil and political rights, as well as economic, social and cultural rights, that should be guaranteed for all human beings[3]. The UDHR is seen as the foundation of international human rights law[4], upon which many other treaties, covenants and protocols have formed[5]. Together they form “a comprehensive legally binding system for the promotion and protection of human rights”[6], creating the foundations upon which states are held accountable to uphold the obligations outlined in the treaties by other states and by UN human rights institutions and mechanisms[7].


In order for the UDHR to be binding on a state, that state must subscribe to and ratify the treaties. Ratification is the process where states legally consent to be bound by a particular law or treaty[8], meaning that international bodies that enforce the law such as the United Nations Human Rights Council (UNHRC), International Criminal Court (ICC) and International Court of Justice (ICJ)[9], are granted authority to act as an agent that oversees and intervenes to ensure states are adhering to their obligations outlined in the treaties. Adhering to these obligations is the duty of states once they ratify the treaties.


Figure 1: International Human Rights Law and Treaties[10]


When signing up to international human rights treaties, states consent to the obligations to Respect, Protect and Fulfil[11]: to avoid limiting what a person can or cannot do (Respect), to keep people safe from abuse (Protect), and to provide basic conditions for people to live happy and healthy lives (Fulfil)[12]. These obligations reflect the underlying principles of human rights, that they are “universal and inalienable; indivisible; interdependent and interrelated”[13].


After ratification, states are obliged to put in place mechanisms domestically to fulfil their obligations as outlined in the treaties. Domestic law must be “compatible with international standards”[14]. Many do so through constitutions or by enacting human rights bills and legislation. This allows for domestic courts to interpret and adjudicate on national human rights cases, yet if necessary, international bodies and mechanisms can intervene to ensure that obligations are fulfilled and human rights are “respected, implemented, and enforced”[15] across all states.


How does human rights law permit states to limit or suspend the scope of their obligations?


In theory, when a government commits to providing human rights through ratification adhering to these obligations is what it commits to, yet in practice, there are a variety of reasons why states are allowed to limit or suspend the scope of their obligations such as protection of state sovereignty, maintaining hierarchy, and allowing for differing cultural needs.


To get states to become party to an international treaty, which is optional, treaties must allow for flexibility in order to convince states that their sovereignty is not at risk. Ratification to the treaties allows for international bodies to intervene when human rights abuses and atrocities occur, which is essential, yet does impact state sovereignty. Limiting state sovereignty and the right to self-determination of states would be too much of an ask and would lead many states to not ratify[16], therefore having flexibility in the implementation of their obligations is a way to overcome this and allow for states to maintain their positions of power and self-determination.


Having a universal human rights declaration can cause issues when many states have differing needs in terms of culture, religion, and liberalisation. Many see the UDHR as a form of enforcing Western ideals global and thus reject it as a premise[17]. Having flexibility in the scope of obligations allows for universality in theory (e.g., an obligation to ensure Article 3 of the UDHR: Protection of the right to life[18]) but also allows for the incorporation of cultural values in practice to be determined by the state (e.g., whether or not to implement the death penalty). This flexibility is also achieved by having regional human rights treaties that act to ensure cultural relativism aligns with universal human rights provisions. Additionally, the incorporation of human rights law into state constitutions or national law enables states to adjudicate human rights cases in their domestic courts, taking into account cultural relativism.


How can states veer from their obligations?

It is crucial to be able to allow states flexibility in the scope of their obligations to human rights in order to convince them to both ratify the international treaties and ensure that they don’t leave them. Legal measures enabling states to limit or suspend obligations include: outlining absolute versus limited rights; having limitations and derogations written into human rights treaties; allowing states flexibility in the interpretation of rights; limiting the power of international bodies; and having treaty provisions be written in a vague or broad manner allowing for various interpretations of the law.


Not ratifying or signing the treaties.


States don’t have to become cosignatories or to ratify treaties, it’s advised and expected in most states but is still optional[19]. Due to state sovereignty, no international body can force states to ratify, and the inability of international bodies to effectively curb state power can lead to many problematic issues that undermine the principles of human rights. The voluntary and optional aspect of becoming a signatory to human rights treaties is damaging and ineffective as it allows for some states not to ratify at all, such as North Korea[20] and China[21]. States are expected to give citizens human rights provisions, but without an authoritative source to ensure this, there is simply no guarantee that citizens’ rights will be respected, protected or fulfilled, resulting in mass atrocities occurring such as the concentration camps of Uighur people in China[22], or the ability of North Korea to disband all political rights to ensure the survival of an abusive dictatorship through prohibiting “all organized political opposition, independent media, civil society, and trade unions”[23].


There are other ways in which international states can attempt to stop human rights abuses, such as publicly condemning[24] or refusing to trade with the perpetrator state[25], but evidently as these human rights abuses are still happening, this isn't effective enough. Having the UDHR and other international human rights treaties enables states to follow their obligations, yet the fact that it cannot ensure that all states don’t commit human rights abuses points to a flaw in the system. Allowing states to opt-out of providing human rights by making a subscription to treaties optional undermines the universality and inalienable nature of rights, by enabling some states to not guarantee them.


Limitations & Derogations


When states do ratify treaties, they are then bound by international law to adhere to their obligations. Limitations set in the treaties, however, permit states to adhere strictly to some, but not all, rights within human rights treaties[26]. A way in which limitations are set in treaties is through the categorization of rights. The categorization of absolute rights, which are fundamental and cannot be restricted under any circumstance, versus limited rights, which can, by definition, be limited under certain circumstances, such as for national security reasons, intended to illustrate which rights are flexible in their provision, and which must be strictly adhered to.


The categorization of rights unintentionally creates a hierarchy of rights which undermines the inalienable and interdependent nature of rights. The obligation for states to strictly adhere to some but not all rights though limitations give way to a certain hierarchy of rights, which undermines the indivisible and interdependent nature of rights. If rights are truly indivisible and interdependent, then states shouldn’t be able to opt out of guaranteeing particular rights over others, in any circumstances.


Derogations are defined as “the act of officially stating that a law or rule no longer needs to be obeyed”[27]. They are another way of providing states flexibility in their obligations to human rights law, used in times of crisis or emergency. By allowing states to derogate from rights in emergencies, which allows them to act quickly and effectively to solve the crisis. A perfect example of this is in the COVID-19 pandemic, states were able to derogate from respecting the freedoms of not interfering with private and family life (Article 12 UDHR)[28] in order to mandate national lockdowns which were necessary to overcome the pandemic and for national safety reasons[29]. This is effective in the way that it allows for states to act in their nation’s best interest, however, can also be problematic as in cases where a state of emergency last years, like the pandemic, can lead to states taking advantage of their power and further human rights abuses[30]. Research shows that states that derogate once and highly likely to derogate multiple times in the future[31] which could cause issues for the sustainability of human rights obligations.


The predominant difference between derogations and limitations is that limitations can occur at any point, but derogations can only occur during state of emergencies where “exceptional circumstances which threaten the life of the nation”[32]. Both limitations and derogations require specific circumstances that allow for “general welfare of the state”[33] and cannot be implemented arbitrarily. The explicit detailing of circumstances reduces the ability for states to take advantage of limitations and derogations, yet due to the vagueness of human rights law and the flexibility in interpretation, this ability to avoid obligations is not eradicated.


Vagueness and Broadness


Human rights laws are vague and broadly applicable[34]. This is to allow for cultural relativism and account for states with differing resource levels. However, by allowing states to interpret human rights laws broadly, this then allows states to commit human rights abuses without technically breaking human rights law. An example of this is the United States’ ability to interpret the definition “torture”[35], outline in Article 5 of the UDHR[36], to not include “beatings, sleep deprivation, menacing and other brutal tactics”[37]. According to Section 2340A of Title 18 of the United States Code, torture is defined “to include acts specifically intended to inflict severe physical or mental pain or suffering”[38]. The vagueness of this law, combined with the flexibility permitted by the UN in states defining human rights laws, enables human rights violations to occur, despite Article 5 being an absolute right, exemplifying the issues with allowing states flexibility in the interpretation of their obligations to human rights law.


The wide flexibility on the interpretation of human rights laws means that obligations are fulfilled but often to a basic and inadequate standard. For example, when looking at the provision of Article 25, the right to an adequate standard of living, a state is obliged to fulfil this through provisions of healthcare, housing, and other “necessary social services”[39], yet as exemplified through the inadequate living standards of refugee camps in various countries, where overcrowding is spreading COVID-19[40] and increases the risk of rising sexual violence[41], basic provisions are rarely enough to provide an adequate standard of living. Basic provisions thus shouldn’t be seen as an adequate interpretation of fulfilling the obligations of human rights law.


Limiting the power of international bodies


Various international bodies act in conjunction with regional bodies and national human rights institutions to ensure states adhere to their obligations[42]. The combination of all three levels increases accountability which is crucial to ensure these obligations are met and offers a “drip-down effect”[43] where human rights can be ensured through all international, regional and national legal mechanisms.


Internationally, state sovereignty can impede the ability of international bodies to enforce human rights law. For example, the power of veto power within the UN Security Council severely impacts its ability to intervene impartially in those states’ affairs, which can be damaging when those states are committing human rights abuses. UN treaty bodies, committees of independent experts, work to monitor states implementation and provisions of their obligations[44]. Once a treaty is ratified, the UN treaty body correlating that said treaty can review and report on a state’s mechanisms to ensure obligations and provide recommendations for improvement which can be extremely helpful both for pointing out abuses and for identifying better measures to take[45].

Regional treaties and bodies act to ensure state compliance. Breaking down the responsibility to states accountable into various levels helps to ensure that obligations are adequately adhered to. National accountability is arguably the most effective form of accountability. Grassroot approaches such as demonstrations, strikes, protests, and voting can all help to press states to adhere to their obligations.


When states choose to incorporate human rights law into their constitution or national law, such as the UK through the Human Rights Act of 1998[46], this benefits citizen of that nation-states as they will now be guaranteed by law that their rights will be protected regardless of whether the UK remains part of the international human rights treaties or not. However, if such states were to opt-out of international or regional human rights treaties, as the UK is planning to do from the ECHR[47], then this would open a gap in the provision of rights of non-citizens in the nation-state. This again undermines the universality and inalienable characteristics of human rights. International bodies have a limited scope to enforce international law to protect non-citizens if states aren’t consignees to treaties and thus bound by international law. Their limited legal authority to override these states’ decisions meaning that stateless people and non-citizens are left with no protection despite the well-intentioned establishment of the international human rights law. Without enforcement, human rights law becomes mere guidelines rather than inherent protections.


Do the approaches afford states an appropriate degree of flexibility to adapt their obligations to the needs of their society?


As discussed throughout, the flexibility in interpretations and various mechanisms (i.e., limitations, derogations, regional bodies, etc.) allows for states to hold sovereignty and adapt their obligations to allow for cultural relativism, however, as examined, this leads to a variety of issues that undermine the core principles of human rights and allow for violations to occur. Having human rights law and the various mechanisms that come with it is essential to ensure that obligations are adhered to, however by allowing too much scope and flexibility in upholding their obligations, combined with the already limited powers of international bodies to scrutinize and intervene, this enables violations to occur and thus must be improved.


 

Footnotes

[1] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 2. [2] Diakonia, ‘International Human Rights Law’ (Diakonia International Humanitarian Law Centre) <https://www.diakonia.se/en/IHL/The-Law/International-Human-Rights-Law/> accessed 22 December 2020. [3] OHCHR, ‘International Human Rights Law’ (United Nations Human Rights Office of the High Commissioner) <https://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx> accessed 19 December 2020. [4] United Nations, ‘The Foundation of International Human Rights Law’ (United Nations, 7 October 2015) <https://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html> accessed 21 December 2020. [5] OHCHR, ‘What Are Human Rights’ (United Nations Human Rights Office of the High Commissioner) <https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx> accessed 20 December 2020. [6] United Nations, ‘The Foundation of International Human Rights Law’ (United Nations, 7 October 2015) <https://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html> accessed 21 December 2020. [7] David Rutherford, ‘States Obligations Under International Human Rights Conventions’ (New Zealand Human Rights Commission 2018) <https://thecommonwealth.org/sites/default/files/inline/States%20Obligations%20Under%20International%20Human%20Rights%20Conventions.pdf> accessed 21 December 2020. [8] Wikipedia, ‘Ratification’, Wikipedia (2020) <https://en.wikipedia.org/w/index.php?title=Ratification&oldid=991549263> accessed 21 December 2020. [9] Equality and Human Rights Commission, ‘International Human Rights’ (Equality and Human Rights Commission, 4 May 2016) <https://www.equalityhumanrights.com/en/what-are-human-rights/international-human-rights> accessed 21 December 2020. [10] David Rutherford, ‘States Obligations Under International Human Rights Conventions’ (New Zealand Human Rights Commission 2018) <https://thecommonwealth.org/sites/default/files/inline/States%20Obligations%20Under%20International%20Human%20Rights%20Conventions.pdf> accessed 21 December 2020. [11] UN Human Rights, What Is a Human Right? (YouTube 2011) <https://www.youtube.com/watch?v=JpY9s1Agbsw&ab_channel=UNHumanRights> accessed 19 December 2020. [12] UN Human Rights, What Is a Human Right? (YouTube 2011) <https://www.youtube.com/watch?v=JpY9s1Agbsw&ab_channel=UNHumanRights> accessed 19 December 2020. [13] UNFPA, ‘Human Rights Principles’ (United Nations Population Fund, 2005) </resources/human-rights-principles> accessed 20 December 2020. [14] Diakonia, ‘International Human Rights Law’ (Diakonia International Humanitarian Law Centre) <https://www.diakonia.se/en/IHL/The-Law/International-Human-Rights-Law/> accessed 22 December 2020. [15] OHCHR, ‘International Human Rights Law’ (United Nations Human Rights Office of the High Commissioner) <https://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx> accessed 19 December 2020. [16] Sneha Dawda, ‘To What Extent Does International Law Reflect the Sovereign Will of States?’ (E-International Relations, 1 April 2016) <https://www.e-ir.info/2016/04/01/to-what-extent-does-international-law-reflect-the-sovereign-will-of-states/> accessed 27 December 2020 [17] Shaheed A and Richter RP, ‘Is “Human Rights” a Western Concept?’ (IPI Global Observatory, 17 October 2018) <https://theglobalobservatory.org/2018/10/are-human-rights-a-western-concept/> accessed 27 December 2020. [18] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 3. [19] United Nations, ‘Chapter Four: Becoming a Party to the Convention and the Optional Protocol - Joining the Convention | United Nations Enable’ (United Nations) <https://www.un.org/development/desa/disabilities/resources/handbook-for-parliamentarians-on-the-convention-on-the-rights-of-persons-with-disabilities/chapter-four-becoming-a-party-to-the-convention-and-the-optional-protocol.html> accessed 22 December 2020. [20] Reuters in Geneva, ‘North Korea Says It Will “never, Ever” Be Bound by UN Human Rights Resolutions’ (the Guardian, 1 March 2016) <http://www.theguardian.com/world/2016/mar/01/north-korea-un-human-rights-never-ever> accessed 22 December 2020. [21] Greg Moore, ‘China’s Cautious Participation in the UN Human Rights Regime’ (2001) 1 A review of China, the United Nations, and Human Rights: The Limits of Compliance 7. [22] BBC News, ‘Xinjiang: Large Numbers of New Detention Camps Uncovered in Report’ (BBC News, 24 September 2020) <https://www.bbc.co.uk/news/world-asia-china-54277430> accessed 22 December 2020. [23] Human Rights Watch, ‘World Report 2019: Rights Trends in North Korea’ (Human Rights Watch, 20 December 2018) <https://www.hrw.org/world-report/2019/country-chapters/north-korea> accessed 20 December 2020. [24] Amy Lieberman, ‘COVID-19 Is Not an “excuse” for Human Rights Violations, UN Human Rights Chief Says’ (Devex, 2 October 2020) <https://www.devex.com/news/sponsored/covid-19-is-not-an-excuse-for-human-rights-violations-un-human-rights-chief-says-98192> accessed 27 December 2020. [25] Robert A. Sirico, ‘Free Trade and Human Rights: The Moral Case for Engagement’ (Cato Institute, 17 July 1998) <https://www.cato.org/publications/trade-briefing-paper/free-trade-human-rights-moral-case-engagement> accessed 27 December 2020. [26] UNODC, ‘Counter-Terrorism Module 7 Key Issues: Limitations Permitted by Human Rights Law’ (UNODC, July 2018) <//www.unodc.org> accessed 22 December 2020. [27] Cambridge English Dictionary, ‘DEROGATION | Meaning in the Cambridge English Dictionary’ (Cambridge English Dictionary) <https://dictionary.cambridge.org/dictionary/english/derogation> accessed 21 December 2020. [28] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 12. [29] Leo Davidson, ‘The Coronavirus Lockdown Does Not Breach Human Rights (Part One)’ (UK Human Rights Blog, 30 April 2020) <https://ukhumanrightsblog.com/2020/04/30/the-coronavirus-lockdown-does-not-breach-human-rights-part-one-leo-davidson/> accessed 27 December 2020. [30] Emilie M Hafner-Burton, Laurence R Helfer and Christopher J Fariss, ‘Emergency and Escape: Explaining Derogations from Human Rights Treaties’ (2011) 65 International Organization 673. [31] Emilie M Hafner-Burton, Laurence R Helfer and Christopher J Fariss, ‘Emergency and Escape: Explaining Derogations from Human Rights Treaties’ (2011) 65 International Organization 673. [32] A Muller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9 Human Rights Law Review 557. [33] A Muller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9 Human Rights Law Review 557. [34] UN News, ‘“Vague and over-Broad” Laws Stifling Independent Journalism in Myanmar – UN Rights Report’ (UN News, 11 September 2018) <https://news.un.org/en/story/2018/09/1019012> accessed 23 December 2020. [35] U.S. Department of Justice, Torture (18 U.S.C. 2340A) 2015 [Title 18]. [36] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 5. [37] Apuzzo M, Fink S and Risen J, ‘How U.S. Torture Left a Legacy of Damaged Minds (Published 2016)’ The New York Times (New York, 8 October 2016) <https://www.nytimes.com/2016/10/09/world/cia-torture-guantanamo-bay.html> accessed 23 December 2020. [38] U.S. Department of Justice, Torture (18 U.S.C. 2340A) 2015 [Title 18]. [39] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 25. [40] Melissa Godin, ‘How COVID-19 Has Hit Refugee Camps’ (Time, 9 October 2020) <https://time.com/5893135/covid-19-refugee-camps/> accessed 27 December 2020. [41] Monica Costa Riba, ‘Women Face Daily Dangers in Greek Refugee Camps’ (Amnesty International, 5 October 2018) <https://www.amnesty.org/en/latest/campaigns/2018/10/women-daily-dangers-refugee-camps-greece/> accessed 27 December 2020. [42] Equality and Human Rights Commission, ‘International Human Rights’ (Equality and Human Rights Commission, 4 May 2016) <https://www.equalityhumanrights.com/en/what-are-human-rights/international-human-rights> accessed 21 December 2020. [43] Hannah Moscrop, ‘Enforcing International Human Rights Law: Problems and Prospects’ (E-International Relations, 29 April 2014) <https://www.e-ir.info/2014/04/29/enforcing-international-human-rights-law-problems-and-prospects/> accessed 22 December 2020. [44] Universal Human Rights Group Geneva, ‘A Rough Guide to the Human Rights Treaty Bodies | Universal Rights Group’ (Universal Human Rights Group Geneva) <https://www.universal-rights.org/human-rights-rough-guides/a-rough-guide-to-the-human-rights-treaty-bodies/> accessed 27 December 2020. [45] Equality and Human Rights Commission, ‘International Human Rights’ (Equality and Human Rights Commission, 4 May 2016) <https://www.equalityhumanrights.com/en/what-are-human-rights/international-human-rights> accessed 21 December 2020. [46] Liberty, ‘The Human Rights Act’ (Liberty) <https://www.libertyhumanrights.org.uk/your-rights/the-human-rights-act/> accessed 27 December 2020. [47] Owen Bowcott, ‘UK Government Plans to Remove Key Human Rights Protections’ (the Guardian, 13 September 2020) <http://www.theguardian.com/law/2020/sep/13/uk-government-plans-to-remove-key-human-rights-protections> accessed 27 December 2020.


 

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