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International human rights obligations and how they

International human rights law is part of public international
law. However, in order for us to understand and interpret human rights
obligations and how they are implemented it is crucial that we comprehend how
human rights obligations have a special status within international law1.

 

This essay
will begin with a short introduction explaining the special status of
international human rights. Then I will attempt to present an argument on the
reasons to why international human rights treaties should have local
interpretation. For the latter, instead of attempting to address it through the
traditional philosophical debate of universalism versus relativism, I will
explore the concepts of universalism grounded in cultural pluralism and subsidiarity.
Finally, this essay will also examine the latitude states have in regards to
their obligations within the current legal doctrines and procedures.

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What makes
human rights obligation “special”?

Even though public international law can compel states to align
domestic legislations it is subjected to the agreement of the state2.
States are only obliged as far as the other state agrees to be bounded by
similar obligations3.
By respecting state sovereignty and state voluntarism it allows for a level of flexibility
and negotiations between the states4. On
the other hand, international human rights law is founded on a set of declared
minimum standards instead of states reciprocal obligation to each other5. Human
rights instruments are mainly concern with domestic matters that lays out the
responsibility of the state to individuals within its jurisdiction6. Furthermore,
by signing on to these human rights instruments a state is essentially allowing
other states and international bodies to evaluate their progress or the lack
thereof7.
Essentially human rights instruments function more like” legislative or
constitutional norms” than an agreement between different states8. Owing
to the special character of international human rights norms, states can at
times be obligated to abide by some standards independent of their consent.
This is especially so for obligations with an erga onmes character.

 

 

Human rights treaties should allow for local interpretation

The universality of human rights has long been contested and
questioned and the assertions that human rights law must consider different
cultures continue to dominate the discourse. This is largely attributed to
arguments that suggest human rights were developed with limited participation
from nonwestern counterparts, are rooted in western liberal ideologies and a
product of western historical and culture traditions9. As
declared by Singapore’s Ex-Deputy Prime Minister at the 60th session
of the United Nations General Assembly in 2005, “a handful of what are asserted
to be rights are still essentially contested concepts”10. However,
the need for regional and cultural particularity is often seen as being at odds
with universality11.

 

Since the Universal Declaration of Human Rights in 1948 we have
seen the establishments of regional human rights frameworks. These regional
frameworks include the American Convention on Human Rights (1969), the African
Charter on Human and Peoples’ Rights (1981), and the European Convention on
Human Rights (1950)12. These
regional frameworks were developed independent of the United Nations systems13.
In my opinion the successful adoption of these instruments by states suggest
the value and importance of contextualization14.  Some academics even suggest that states are
more likely to observe these regional initiatives and these instruments are
more accessible for individuals of the particular region15. Like
Smith and Donnelly, I would content that these frameworks compliment the international
human rights treaties rather than compromise the intended purpose.

 

Universalism grounded in cultural pluralism

According to Relis, cultural relativism oversimplifies the issue16. Instead
of seeing culture as being at odds with universalism we should instead see
culture as enhancing, advising, and/or making human rights relevant17. One of the main purposes of
international human rights movement is to “give voice and power to those
oppressed”18.
Human rights is only meaningful when built on the grassroots level. Therefore a
top down approach does not include the actual realities of the most vulnerable
individuals19.
In order to effectively implement these human rights ideals we have to
integrate the opinions of those from the ground20.
Relis emphasized that only with inputs of different grassroots actors can human
rights ideals be more relevant to the “local social contexts, structures and
interactions “21.
This is because attitudes and practices are inevitably shaped by social norms.
By deepening our understanding and through discussions will we be able to bring
about changes on the individual level22.
We could further argue that most states do
not have a homogeneous community. Therefore, without considering the
pluralistic environment we will not be able to best serve the needs of the
individual23.

 

The case for subsidiarity

On the same thread of using
culture to inform human rights, Carozza proposes the concept of subsidiarity. Subsidiarity
is the idea that protection and respect of human rights lies first and foremost with the state24. This
localization of human rights responsibilities supports the integration of “local
and supranational interpretation and implementation” while maintaining the
common good for all25. In
circumstances where the local bodies are not capable to fully take on this obligation
it is then the responsibility of the international society to intervene26. Carozza
suggests that the concept of subsidiarity reinforces local control while
providing a level of protection27. The purpose is to allow for
independence and self-sufficiency of the more specific group at the same time
placing the responsibility on the higher one to intervene
without interference28.
This idea is particularly appealing to me because it gives weight to culture
and state autonomy at the same time providing a level of protection to
individuals within a community. However, in my opinion for subsidiarity to be
functional and benefiting the individuals and not the state, individuals must
know their rights. As suggested by Merry, by employing translators to introduce
these international standards as a framework for understanding local
infringements we are providing an opportunity for dialogue29.
To reframe these international standards in a context acceptable to the local
audience without losing their full essence30.

 

Obligations and
leeway within the legal doctrines and procedures

When it comes to human rights, it is most importantly the states
duty to respect, protect and fulfill them31. Currently,
the legal
doctrines and procedures do have a number of means that allow for local
contextualization.

 

First, states through
reservations can abstain from some obligations as long as the reservation does
not violate the purpose and objective of the treaty32.
This is one of the most common ways in which states attempts to make it
relevant for their local context. However, it is worth mentioning that this may
problematic considering that some states may try to pick only obligations they
wish to be bound by rather than the entire instrument33. Beyond reservations, states
may also be exempted from some
obligations in a time of national emergencies34.
This is known as derogations. For states to derogate from their obligations
states must notify international authorities in advance and it can only be raised
for as long as necessarily for normalcy to be restored35. Sometimes, the balance is
struck within the particular international treaty36.
A treaty may explicitly indicate that the enjoyment of some rights may be
limited37.
For instance, CEDAW does not claim all forms of discrimination against women as
harmful or intolerable38.

 

It is also possible that within the obligation to allow for a
margin of appreciation39. General
margin of appreciation suggests that states do not need to implement
expectations in “absolute uniform” as long as minimum standards are achieved40. General margin of
appreciation which is mainly employed in the European context41
is an attempt to be more politically acceptable and not as interfering.42. Despite the margin of appreciation
afforded to the states it is certainly not unlimited43.
Also the margin of appreciation can evolve over time, for instance the
criminalizing of homosexuality44.

 

The international human
rights supervisory bodies through the periodic review process are another way
in which states and the UN bodies can try to reconcile the differences45.
This process allows for challenging and pushing the boundaries towards minimum
standards while still respecting diversity and recognizing the states efforts46.
This process, however, will not accept states using cultural differences as the
only justification for noncompliance. Addo concludes that this legal focused
approach, “practical universality”, allows for universality to continue to
evolve and not be limited to one culture tradition47.
It is important to note that none of the latitude provided to states above
extends to the peremptory norms and erga omnes48.

 

Conclusion

Currently leeway is given
through different legal doctrines and process. Therefore, as long as states comply
with the substance of human rights it should allow for some diversity or
contextualization. Instead of eliminating all diversity like the French, which
is impossible, we should instead provide an opportunity for pluralism within
the system. By doing so we are essentially attempting to reconcile relativity
and universality from two angles. The top down legal process suggested by Addo,
and the bottom up approach recommended by Merry and Relis. I would go as far as
to argue that without the bottom up approach the current legal leeway still
leans in favor of the state and the majority and not the individual. Only through
the bottom up process of negotiating and re-contextualizing culture can we
gradually reshaped and challenged old standards with new expectations. Only
when the individuals in the field understand and embraces these ideals can
institutionalize discrimination finally shift and states be held accountable.

 

1 Daniel Moeckli and others, International
Human Rights Law (Oxford University Press 2014).

2 ibid
97

3 Moeckli and others (n1), 98

4 ibid

5 Moeckli and others (n1), 97-101

6 ibid

7 Moeckli and others (n1), 98

8 Moeckli and others (n1), 101

9 Michael K. Addo,
‘Practice Of United Nations Human Rights Treaty Bodies In The Reconciliation Of
Cultural Diversity With Universal Respect For Human Rights’ (2010) 32 Human
Rights Quarterly

10 Permanent Mission of Singapore to the United
Nations, U.N. G.A. 60th Sess. High-level Plen. Mtg. (Sep. 16, 2005)

11 Karen Engle and Richard A. Wilson, ‘Human Rights,
Culture And Context: Anthropological Perspectives.’ (1999) 93 The American Journal
of International Law

12 ‘The Major Human Rights Instruments And The
Mechanisms For Implementation’ (Ohchr.org, 2018)

accessed 16 January 2018.

13 Rhona K. M Smith, Textbook On International
Human Rights (Oxford University Press 2005).

14 Jack Donnelly, ‘The Relative Universality Of Human
Rights’ (2007) 29 Human Rights Quarterly.

15 Smith (n13), 85

16 Tamara Relis, ‘Human Rights And Southern Realities’
(2011) 33 Human Rights Quarterly.

17 Relis (n16), 519-520

18 Relis (n16),  511

19 ibid

20 ibid

21 ibid

22 Relis (n16), 512

23 Relis (n16), 518

24 Paolo G. Carozza, ‘Subsidiarity As A Structural
Principle Of International Human Rights Law’ (2003) 97 The American Journal of
International Law

25 Carozza (n24), 57

26 ibid

27 Carozza (n24), 57-58

28 Carozza (n24), 66

29 Sally Engle Merry, ‘Transnational Human Rights And
Local Activism: Mapping The Middle’ (2006) 108 American Anthropologist

30 Merry (n29), 49

31 Moeckli and others (n1),  102-103

32 Moeckli and others (n1), 105-106

33 Moeckli and others (n1), 106

34 Moeckli and others (n1), 110-114

35 Moeckli and others (n1),  113

36 Addo (n9), 629

37 Moeckli and others (n1), 110

38 Addo (n9), 629 and Moeckli and others
(n1),  100-111

39 Moeckli and others (n1), 104

40 ibid

41 Eyal Benvenisti, ‘
Margin of Appreciation, Consensus, and Universal Standards,’ (1999) 31 N.Y.U.
J. Int’l L. & Pol.

42 Yuval Shany, ‘Toward A General Margin Of
Appreciation Doctrine In International Law?’ (2005) 16 European Journal of
International Law

43 Shany (n42), 910

44 Moeckli and others (n1),  104

45 Addo (n9) 634

46 Addo (n9) 634

47 Addo (n9) 661

48 Moeckli and others (n1),  97-101

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