Student ID Number: 650042321

The enforcement and follow-up of the decisions of international human rights bodies is the weakest

link in the effort to achieve universal respect for human rights.- Critically discuss this statement

Word Count: 3727

Human rights enforcement bodies fall into two broad categories. Firstly, the judicial bodies that pass

judgements, such as the European Court of Human Rights, the Inter-American Court of Human

Rights and the African Court on Human and Peoples’ Rights and secondly, quasi-judicial bodies that

issue views or recommendations, such as the United Nations treaty bodies, the Inter American

Commission on Human Rights, the African Commission on Human and Peoples’ Rights and the

United Nations Universal Periodic Review mechanism. In both instances, the respondent states in a

given case are expected to comply with these judgements and decisions by virtue of being a party

that has accepted the obligations under a specific treaty.1 However, as Oette has asserted: “The

enforcement of judgements and decisions of regional and international courts and treaty bodies

constitutes a litmus test for the effectiveness of the human rights system. Delays and non-compliance

at the enforcement stage pose a continuous challenge that frustrates victims and threatens to

undermine the impact of the human rights bodies’ decisions.”2

Therefore, it is appropriate to considered to what extent the enforcement and follow-up

procedures, or lack thereof, can be considered the weakest link in the effort to achieve universal

respect for human rights. Generally, there appears to be a greater degree of compliance with

judgements of judicial bodies, namely the European Court and the Inter-American Court.3 Due in

large to the judicial and binding nature of their judgments decisions by courts are considered to

carry more weight and consequently instigate greater levels of compliance than their quasi-judicial

1 Lutz Oette, “Bridging the Enforcement Gap: Compliance if State Parties with Decisions of Human Rights Treaty Bodies.” (2010) 16(2) INTERIGHTS Bulletin, 51 column 12 ibid3 ibid

counterparts.4 Yet, within the last decade two notable reforms have occurred within the quasi-

judicial arena specifically within the UN human rights mechanisms. In 2014 the UN treaty body

system underwent modifications with the object of increasing its resources and effectiveness5 while

in 2006, the United Nations Commission on Human Rights was replaced by the Human Rights Council

and a Universal Periodic Review Mechanism (UPR) introduced.6 In light of these developments,

discussion will focus on whether or not the enforcement/follow-up procedures of these two bodies

are the weakest link in the effort to achieve universal respect of human rights.

As considered by Egan “An obvious starting point for proposals on intensifying implementation rates

is that of measures and procedures taken to follow up a […] recommendation.”7 Indeed, there have

been several proposals as to how best to improve this aspect of the system.8 However, the

enforcement of human rights is just one aspect of a longer process. As such, the shortcoming of the

other stages of the human rights mechanisms must also be discussed.

The UPR is a peer review mechanism9 mandated to “promote the universality, independence,

indivisibility and interrelatedness of all human rights.”10 Designed to review the human rights

situations in all UN Member States and the implementation of international norms and treaties on

the ground, 11 the UPR Working Group (consisting of the 47 Members of the Council), along with any

other UN Member State that wishes to take part in the dialogue, 12 reviews the human rights

4 Ibid column 25 Navanthem Pillay, Report of the UN High Commissioner for Human Rights on the strengthening of the Treaty Body System (June 2012)6 Weissbrodt, D. “United Nations Charter-Based procedures for addressing human rights violations” (2011) in Gilbert, G. Hampson, F and Sandoval, C. (eds) The Delivery of Human Rights: Essays in Honour of Professor Sir Nigel Rodley, (Routledge, 2011) 13-38;G.A. Res.60/251, Establishing the Human Rights Council and the Universal Periodic Review7 Egan, S. “Strengthening the United Nations Human Rights Treaty Body System” 13(2) (2013) 13(2) Human Right Law Review 209, 2348 Systematisation of better coordinated and inclusive follow-up procedures; the development of a specific intern-committee ‘treaty body follow-up mechanism’ for all treaty bodies, or the establishment of a dedicated unit of follow-up or senior level ‘Treaty Body Follow Up Coordinator’ post within the Office of the High Commissioner for Refugees. 9 Analytical Assessment of the UPR, 2008-2010, upr-Info.ord (2010) 810 Human Rights Council Res.5/1 Institution Building of the United Nations Human Rights Council, B1 (para 3) a.11 Analytical Assessment (n-9) 712 http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx

situation of the subject state and produces an outcome document detailing the Group’s decisions on

that state’s human rights status and its recommendations for improvement.13

Considered to be the “cornerstone” of the UPR, these recommendations constitute the state’s

roadmap for the next four years to improve human rights.14 In his assessment of the

recommendations of the UPR’s first seven sessions, Professor Edward R. McMahon found that, of

the 10262 recommendations made,15 the majority involved either a recommendation to take a

general action, such as improving the situation of minorities, or comprised a specific action, such as

amending a law or establishing a mechanism.16 However, as noted by Oberleitner, acceptance of a

recommendation depends on the subject matter rather than the wording or provisions of the

recommendation. For instance: “states opposed to discussing sexual orientation as a human rights

matter are likely to reject even the vaguest mention of the topic while they are prepared to accept

other, more specific, action-orientated and costly recommendation without hesitation.” 17

Alternatively, the “care for comparative advantage” i.e. the desire to be at least as ‘good’ but not

better than other comparable states nevertheless, may be a driving force for adherence to

recommendations.18 Promisingly, the UPR maintain a 100% participation rate and therefore “is a

significant innovation of the Human Rights Council which is based on equal treatment for all

countries.”19 As such, this aspect of the process appears unsullied. However, the real question arises

as to how effective the UPR is in following-up and enforcing its recommendations.

Promisingly, some states have already started the follow-up process to implement the report

recommendations.20 As noted by Brett, following its review Barbados opted for the abolition of the 13 ibid14 Analytical Assessment (n-9) 915 UPR Infor, “Data Base of UPR Recommendations” available at http://www.upr.info.org/database/ accessed 04/01/201616 McMahon, Edward R. “Herding cats and Sheep: Assessing State and Regional Behaviour in the Universal Periodic Review Mechanism of the United Nations Human Rights Council,” July 2010. 17 Oberleitner, G., “Countering Ritualism: What Does It Mean To Follow-Up Human Rights Recommendations?” Paper Delivered at ‘The Rituals of Human Rights Workshop Centre for International Governance and Justice, Regnet Australian National University Canberra, Australia, 25-27 June 2014. 18ibid19 Analytical Assessment (n-9) 1120 ibid 12

mandatory death penalty and a change in its domestic legislation.21 Furthermore, Barhrain’s National

Plans of Action included UPR recommendations and its government formed a steering committee

with NGO representatives to monitor the implementation of the Action Plan.22

One reason for the apparent success of the implementation of the recommendations is that states

are afforded the opportunity to respond to the recommendations and detail whether they ‘accept’

or ‘reject’23 the suggestion with only accepted recommendation going on to be implemented.24

However, this ‘freedom of decision making’ also permits states to reject recommendations.25 This is

a key weakness of the UPR system as the implementation of a state is based on the ‘good-will’ and

responsibility of the state. This can be compared to the treaty bodies system where the committee

of experts impose the recommendations for mandatory implementation. Nevertheless, reasons for

rejections should be valid. For instance, both Pakistan and Iran rejected recommendations asserting

that they “were neither universally recognised human rights nor conform to its existing laws, pledges

and commitments.”26 Assuming that a recommendation can be irrelevant to a state, it is useful to

have this rejection option. However:

“States giving irrelevant reasons for rejecting recommendations that could protect the human rights

of its people prevent the HRC from successfully implementing the UPR mandate. Such actions hinder

the objective of the UPR which is to improve the global human rights situation.”27

Treaty bodies and special rapporteurs are also able to offer recommendations during the UPR

process. However, their recommendations should be distinguished from those of states.28The legal

nature of the treaties makes it mandatory for states to comply with recommendations of treaty

21 Brett, Racel, A Curate’s Egg. UN Human Rights Council: Year 3. 19 June 2008 to 18 June 2009, Haman Rights and Refugee Publications, Quaker United Nations Office. August 2009, 1122 IPR Info, “Follow-Up” available at http://www.upr-info.org/Follow-up-html accessed 02/01/201523 Other responses include: not clear/ general response and pending/no response.24 Analytical Assessment (n-9) 1425 ibid1626 FIACAT, “Universal Periodic Review: An Ambivalent Exercise,” Report and Recommendations April 2008-December 2009 (December 2009) 1927 Analytical Assessment (n-9) 1628 ibid 19

bodies. As such, a state cannot reject such a recommendation under the guise of ‘freedom of

decision making.’29

Furthermore, whilst the subject state may be requested to submit a mid-report on how it is

complying with its human rights obligations, the lack of a mechanism to measure the

implementation of a recommendation by a state acts to further undermine the system in its

enforcement and follow-up. 30

Therefore, there are limits to the follow-up and enforcement aspect of the process. However, it is

not the only short-fall to the system. In terms of participation, during most sessions the Western

European and Others Group was the most active and in general, regional groups play an important

role in states’ contribution. The trend is that most active group in the review sessions the one to

which the state under review belongs. 31 However, there is the noted risk that states may act more

favourably towards states within their region or with whom they have other relations and therefore,

not provide an unbiased critique of their human rights status.32 Therefore, this poses a challenge to

the pursuit of universal respect of human rights in that not all human rights violations of states will

be ‘prosecuted’ with equal vigour.

The second four-year cycle of the UPR (2012-2016) is currently underway and is largely devoted to

following-up the recommendations made in the first cycle. As such, the effectiveness of the system

to promote universal respect for human rights can better be examined once completed. Promisingly,

the system has publicised its potential for the way it caters for the ‘triangulation’33 of reporting,

recommending and follow-up.34 Some innovations have been devised in the first cycle, such as the

29 ibid30 For recommendations on improving follow-up process including, establishing a concrete mechanism to evaluate the implimentation of recommendations by states see: Analytical Assessment (n-9) 22Analytical Assessment of the UPR, 2008-2010, upr-Info.ord (2010) 1731 Human Rights Council Res.5/1 Institutional building of the United Nations Human Rights Council E 3 Para 32 Analytical Assessment of the UPR, 2008-2010, upr-Info.ord (2010) 832 Analytical Assessment (n-9) 1633 Miloon Kathari, “From Commission to the Council: Evolution of UN Charter Bodies,” in The Oxford Handbook of International Human Rights Law, ed Dinah Shelton (Oxford University Press, 2013) 61834 Oberleitner (n-17) 9

submission of mid-term report on implementation by a number of states and the involvement of

civil society actors and other stakeholders has been high.35 However, the potential for failure is

equally great. The UPR has issued over 11,000 recommendations that need to be implemented by

states and reported back on, there are also uncertainties on how progress (on implementation) will

be measured, and maintaining the motivation generated in the first cycle will remain a challenge.36

Furthermore, uncertainty surrounds the follow-up and enforcement of the UPR, it may nevertheless,

transpire that the recommendations themselves are weak , potentially due to bias, and do not

promote human rights compliance to the best of their ability in the first instance. It is only upon

examination of the result of the second cycle that the effectiveness of the system can be truly

measured.

It is important to remember that the UPR does not work in isolation form other human rights bodies’

mechanisms and specifically seeks to compliment the work done by the human rights treaty

bodies.37 Accordingly, it is also relevant to examine the work of the treaty bodies in their ability to

monitor the implementation of the key human rights treaties and ensure universal respect for

human rights.

Professor Heynes and Professor Frans Vijoen both regard the treaty body system as “custodians of

the legal norms established by the human rights treaties”38 while UN Secretary-General Ban Ki-Moon

has chimed:

“The United Nations Treaty Body System, which combines noble ideals with practical measures to

realise them, is one of the greatest achievements in the history of the global struggle for human

35 ibid36 ibid37 Analytical Assessment (n-9) 1038 Heynes, C. and Vijoen, F. The Impact of the United Nations Human Rights Treaties on the Domestic Level, (Kluwer Law International, 2002)

rights. The Treaty Bodies stand at the international human rights protection system as engines

translating universal norms into social justice and individual well-being.”39

Despite this, in 2006 the High Commissioner for Human Rights, Louise Arbour, voiced concerns

about the “ad hoc manner in which the treaty body has grown [and] the often absence of effective,

comprehensive follow-up mechanisms for recommendations.” 40 This echoed the earlier statement

by the Secretary-General that:

“the existing treaty bodies and human rights mechanisms and procedures constitute a large and

intricate network. The growing complexity of the human rights machinery and the corresponding

burden of reporting obligations strain the resources of member states and the secretariat. As a result

the benefits of the current system are not always clear.”41

In June 2012, the UN High Commissioner for Human Rights, Navanethem Pillay, published her report

on treaty body reform.42 Drawing heavily from the earlier work of O’Flaherty43 and the Dublin

Outcome Document44 the report made several recommendations pertaining to improving the treaty

39 Forward to the United Nations High Commissioner for Human Rights on the strengthening of the human rights treaty bodies, UN Doc.A/66/860, 26 (June 2012) at 740 O Flaherty, M. “Reform to the UN Human Rights Treaty Body System: Locating the Dublin Statement” in Gilbert, G, Hampson, F, and Sandoval C (eds) The Delivery of the Human Rights: Essays in Honour of Professor Sir Nigel Rodley (Routledge, 2011) 68, 7041 ‘Strengthening the United Nations: an agenda for change,’ Report of the Secretary-General A/57/387, (9 September 2002) 11 para 5242 Pillay (n-2) 43 Sustained published research in the area of UN treaty body reform has positioned O’Flaherty as the principle international specialist in the area. He led the ‘Dublin Process on Strengthening the United Nations Treaty Body System’ a process that is acknowledged globally as the primary forum for the reform of the treaty body system. See: REF2914, Impact case study Ref3b available at http://www.ref.ac.uk/about/guidance/faq/impactcasestudiesref3b/ accessed 27/12/201644 The Dublin Process was initiated by the High Commissioner for Human Rights in September 2009. The aim was to encourage all relevant stakeholders—states, treaty body experts, NGOs, national human rights institutions (NHRIs), academics and UN entities—to develop proposals to strengthen the treaty body system. In November 2009, a group of current and former treaty body experts convened in Ireland and issued the “Dublin Statement” (January 2010) to establish principles to underpin the discussions on treaty body strengthening. Stakeholder discussions and consultations took place (2010-2012) and the OHCHR (2011) put together a non-exhaustive list of proposals based upon the consultations. In the same yea, stakeholders reconvened in Dublin and issued the Dublin II Outcome Document. It provides a summary of the proposals and

body system. In 2014 General Assembly Resolution 68/268 was adopted and gave life to some, but

not all, of report’s suggestions for reform; mainly at the administrative and procedural level.

However, Ploton45 has criticised that:

“Various proposals focused on improving treaty body impact, such as having systematic follow-up

mechanisms at national level for the implementation of their recommendations, were ignored. As a

result, the treaty bodies are likely to continue adopting thousands of recommendations in dozens of

countries every year, with unsatisfactory impact on the ground.”46

The resolution streamlines the treaty body process; saving on resources which are then re-invested

in the process.47 Fundamental criticisms of the system included: the late submission by state parties

of their state reports due, in part, to burdensome reporting requirements;48 the inability of the

committees to review states in a timely manner thus resulting in recommendations based on

outdated information;49 committee members accrediting more weight to NGO supporting

documents rather than state reports;50 duplication in the issues raised by the different committees51

recommendations that emerged from all stakeholder consultations- See more at: http://www.ishr.ch/news/treaty-body-reform-dublin-process#sthash.IqCcYR5T.dpuf accessed 03/01/201645 Vincent Ploton is the Head of External Relations of the Geneva-based Centre for Civil and Political Rights. He has worked for nearly seven years at the Association for the Prevention of Torture, and has more than 10 years of experience in the humanitarian and human rights field.https://www.opendemocracy.net/openglobalrights/vincent-ploton/more-ambition-required-to-reform-un-treaty-bodies accessed 03/01/201646 Vincent Ploton, “More ambition required to reform UN treaty bodies” Open Democracy, 10 July 2014 https://www.opendemocracy.net/openglobalrights/vincent-ploton/more-ambition-required-to-reform-un-treaty-bodies accessed 03/01/201647 Pillay (n-2)48 The United Nations High Commissioner for Human Right, OHCHR Plan of Action: Protection and Empowerment (May 2007) para 749 Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, Report the Secretariat, (22 March 2006) HRI/MC/2006/2 para 1850 “Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights”, Note by Secretariat (5 September 2003) A/58/350 para 4351 “Methods of work relating to the State reporting process: Background document prepared by the secretariat’, Second inter-committee meeting of the human rights treaty bodies, (18-20 June 2003) HRI/ICM/2003 para 28

and finally; concluding observations are ineffective, containing little guidance on how laws are to be

interpreted, implemented or upheld by states.52

The resolution promotes streamlining the process by introducing a ‘Simplified Reporting

Procedure’53, the option for states to submit a ‘Common Core Document’54 to each of the

committees alleviating the burdensome nature of the process. Fundamentally, Point 6 “[E]ncourages

the human rights treaty bodies to adopt short, focused and concrete concluding observations,…”

aimed at improving the efficiency of the system and also the ability for states the clearly understand

their obligations.55 Point 26 also increases the meeting time of the treaty bodies allowing for a more

thorough process.56 Finally, Point 38 promotes harmonisation of the system: “in relation to

procedural matters, including with respect to formulating conclusions on issues related to working

methods and procedural matters, promptly generalizing good practices and methodologies among

all treaty bodies, ensuring coherence across the treaty bodies and standardizing working methods.”57

These Points, as well as others, are aimed at alleviating the aforementioned shortcomings.

Optimistically, reduced waiting times, carefully considered reports and reduced duplication of issues

will mitigate state parties’ frustration with the system.58 The increased time of the Committee bodies

to consider a state will enable them to produce a more tailored response in their concluding

observations; providing greater guidance on how best to implement the recommendations.59 After

all, without effective recommendations, how can a State, in turn, be expected to implement them

effectively? In this instance, the question does not even progress to issues of enforcement but

rather, stagnates on the presentation of a recommendation that a state is expected to enforce.

52 The United Nations High Commissioner for Human Right (n-48) para 753 General Assembly Resolution 68/268 Point 154 ibid Point 355 Pillay (n-2)56 ibid57 General Assembly Resolution 68/268 Point 3858 Pillay (n-2)59 ibid

Ultimately, the reforms should result in states being reviewed more regularly and provided with

more proficient recommendations. Positively, this should increase the ‘integrated nature’ of the

system as part of regular state practice resulting in “greater acceptance of state parities” of the

committee recommendations.60

Nevertheless, the follow-up procedures of the treaty bodies are recommended for improvement.61

However, “while is seems that a combination of these various ideas would undoubtedly enhance the

rather bare-bones follow-up procedure currently operated by many of the treaty bodies, it is equally

clear that the current resourcing of the treaty body system makes it almost impossible to envisage

their adoption in practice involving as they would a significant injection of human and financial

capital.”62

In both instances, the UPR and treaty bodies can use rapporteurs to organise and manage follow-up

and to ensure the flow of information, assess implementation and persuade states to implement

recommendations.63 For example, the Rapporteur of the Human Rights Committee in 1990 was

tasked with, among other things, advising the committee on matters of implementation64 after which

the committee could issue the state another recommendation based on the information.65

However, given that no other means are available, the rapporteur system seems to have little effect

beyond simply obtaining information.66 Alternatively, human rights bodies mandated to conduct

60 Oette (n-1) column 261 For instance, the idea for the systematisation of better coordinated and more inclusive follow-up procedures, the development of a specific, inter-committee ‘treaty body follow up mechanism for all treaty bodies or the establishment of a dedicated unit on follow-up or senior level Treaty Body Follow-up Coordinator with in the Office of the High Commissioner for Human Rights.Egan (n-7) 234

62ibid63 Oberleitner, (n-17)64 See Report of the Human Rights Committee, UN Doc. A/45/40 (1990), Vol. I, 144-145 and Voll II, Appendix XI, 205-2-16. The functions have since been carried over to the Committee’s Rules of the Procedure.65 See: Open Society Justice Initiative, From Judgment to Justice, 123-124 available at https://www.opensocietyfoundations.org/sites/default/files/from-judgment-to-justice-20101122.pdf accessed 21/12/201566 ibid 141

country visits can resort to follow-up country visits to prompt states of their obligations, inviting

progress reports and usually targeting specific states by increasing the frequency of state visits.67

However, these visits, as all other aspects of the system, are constrained by their finances. Indeed

there is no specific budget allocated to these follow-up activities.68 Moreover, as Oberleitner

concludes: “such practices to manage follow-up generally replicate the activities of human rights

bodies in generating and processing information and is hampered by many of the same

constraints.”69 Therefore, increasing its finances unto itself may not yield any greater results or

enhance compliance beyond that which already exists. As such, the enforcement aspect to the

system is feeble.

Overall, ‘follow-up procedures’ remain the least developed70 and underfinanced aspect within the

UN human rights systems.71 The adherence to UN human rights bodies’ recommendations, remain at

the mercy of the state’s will to comply. Nevertheless, the need for follow-up procedures may be

mitigated by the improved quality of committee reports anticipated by the re-allocation of

resources. To invest in enforcement and follow-up without first addressing the earlier shortfalls of

the system would be much like putting the cart before the horse.

Overall, the critique that: “[T]he treaty body system remains process driven rather than rights and

results driven. All efforts are focussed on reviewing the reports states submit, but too little is being

done once recommendations are adopted to ensure compliance and implementation”72 is justified.

However, it is vital to remember that: “The implementation of treaty body recommendations remain

the primary responsibility of the state parties.”73 Therefore, effort to first improve the efficiency of

67 See: Piccione, T. “The Future of the United Nations Special Procedures” (2013) Brookings Institution 733 http://www.brookings.edu/research/papers/2014/01/future-united-nations-special-procedures-piccone accessed 12/12/201568 See: Open Society Justice Initiative (n-65) 124-13569 Oberleitner (n-17)70 Ibid 271 OHCHR, “Strengthening the United Nations Human Rights Treaty Body System- Dublin II, Meeting: Outcome Document” (November 2011) 2072 Ploton (n-46)

73 Pillay (n-2)

the reporting, the quality of the committees’ recommendations and consequently improve the

ability of state parties to implement the recommendations is warranted; to focus on enforcement

and follow-up prior to addressing these issues would be futile. Nevertheless, if the aims of the

reform are realised, yet states still fail to comply with treaty body recommendations, enforcement

can only then be considered the weakest link in the system.

So far, discussion has focussed on the assumption that all states ‘want’ to implement

recommendations but are unable to do so effectively as a result of shortcomings in the treaty body

system. However, this is a naive assumption. There are a myriad of reasons for lack of state

compliance with both the UN human rights bodies, as-well as other quasi-judicial and judicial

decisions. For instance, states may have limited resources to implement a measures or simply lack

the political will. Furthermore, even where a recommendation is implemented, such as domestic

legislation, it may nevertheless fail to translate into a meaningful practice on the ground. For

instance, despite having one of the “world’s oldest and most developed legal frameworks for

responding to internal displacement”74 Colombia, has a “a crisis of protection” 75 whereby

“improvements for IDPs remain limited and gaps exists in the implementation of public policy and

specific programmes at national and local level.”76 Consequently, one is poised to ask: Are human

rights treaties and consequently human rights enforcement mechanisms the answer?

Hathaway’s study into the relationship between human rights compliance and the ratification of

treaties concluded that, on average, violations of abuses are lower in states that have not ratified a

particular international human rights treaty. 77 Moreover, Thynne contributes the difficulties in

74 Norwegian Refugee Council and Internal Displacement Monitoring Centre. “Global Overview 2014. People Internally Displaced by Conflict and Violence,” (May 2014), 42.75 Anyadike, Obinna. ”Colombia’s internally displaced people caught in corridor of instability,” The Guardian, (Aug. 12, 2013) http://www.theguardian.com/global-development/2013/aug/12/colombia-internally-displaced-people-instability accessed 04/01/201676 UNHCR, “2015 UNHCR Country Operations Profiles- Colombia” http://www.unhcr.org/pages/49e492ad6.html accessed 14/12/201577 Hathaway, O. “Do Human Rights Treaties Make a Difference?” 111 (1935) (2002) Yale Law School, 1976-2025

enforcing human rights within the UN treaty bodies to the ‘fragmentation of international law.”78

While on the one hand, new treaties have been created to address new issues as they arise,79 on the

other, the expansion poses difficulties to the implementation of human rights law as a whole

creating “the danger of conflicting and incompatible rules, principles, rule-systems and institutional

practices.”80 Ultimately, conflicts in interpretation of rights could affect the way in which states

implement their obligations and their readiness to do so when they are faced with differing and

preferences from human rights bodies.81 However, Hathaway’s observations were retorted by

Goldman and Jinks in their critique that her methods of gathering empirical evidence failed to

consider critical factors of human rights compliance82and she acknowledged that, despite her

evidence, on the whole: “treaties remain an indispensable tool for the protection of human

rights.”83 Nevertheless, even judicial human rights bodies able to impose legal sanctions on violating

states have arguably limited effect within the sphere of actually enforcing human rights compliance.

As noted by Oette, “even here compliance is often confined to paying compensation and in some

instances making restitutions and/or adopting measures to prevent reassurance such as legislative

reforms, albeit often belatedly.”84 For instance, Russia in response to the decisions of the European

Court of Human Rights has been criticised for its apparent willingness to pay reparations for its

human rights abuses rather than undergo legislative reform.85 Huneeus has equally reported on the

78 Thynne, Kelisiana “Reform of United Nations Human Rights Institutions: Current Developments- Enhancing the rule of law in international rights treaty bodies.” 9 (2007) World Legal Information Institute.779 See “Fragmentation of International law: Difficulties arising from the Diversification and Expansion of International Law” Report to the Study Group of the International Law Commission, 18 July 2006 A./CN.4/L.702 para 980 Thynne, Kelisiana “Reform of United Nations Human Rights Institutions: Current Developments- Enhancing the rule of law in international rights treaty bodies.” 9 (2007) World Legal Information Institute. 781 Ibid;“Fragmentation of International law: Difficulties arising from the Diversification and Expansion of International Law” Report to the Study Group of the International Law Commission, (18 July 2006) A./CN.4/L.702For further reading see: Mechlem, K. “Treaty Bodies and the Interpretation of Human Rights” 42(905) (2009) Vanderbilt Journal of Transnational Law 905-947

82 Goodman, R. and Jinks, D. “Measuring the Effects of Human Rights Treaties 14 (2003) European Journal of International Law 171-18383 Hathaway, O. “Testing Conventional Wisdom” 14(1) (2003) European Journal of International Law 185-20084 Oette (n-1) column 285 Meleshevich, A. and Forstein, A. “Bringing Human Rights Home: The Challenges of Enforcing Judicial Rulings in Ukraine and Russia” 24(2) (2014) Indiana International and Comparative Law Review 269-311

struggles of the Inter-American Court to enforce its rulings.86 With this in mind, is sanction as a

means of enforcement appropriate?

According to Goodman et al, the socialisation of legal norms is the most effective method for

guaranteeing obedience to human rights.87 Identified as ‘acculturation’, it is the process by which

actors adopt the beliefs and behaviour of the surrounding culture.88 Due to this process, the human

rights values now held within a ‘liberal international society’ are now so internalised that any

disobedience is all “the more shocking” and triggers criticism of the enforcement mechanisms of the

international human rights law.89 However, as noted criticism and even sanction does not ensure

enforcement of human rights. Instead, a bottom-up approach may be more appropriate whereby

states comply with human rights because it is the practice of its subjects. The challenge has shifted

away from enforcement towards changing the attitude of a country’s people.

Cultural practices, for instance, are the source of much contention within the international

community; what is condoned by one state is condemned by another.90 One such example is that of

Female Genital Mutilation. Despite being prohibited under international law,91 the practice continues

globally.92As a ‘self-enforcing social norm’; 93 its prohibition is viewed as “nothing more than an

example of cultural imperialism…the current Western onslaught on Islam.”94 Ultimately,

86 Huneeus, A. “Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights.” 44 (2011) Cornell International Law Journal 493- 53387 Goodman, R. and Jinks, D. “How to Influence States: Socialisation and International Human Rights Law” 54(3) (2004) Duke Law Journal 621, 62288 ibid89 ibid90 Shelley, C. “Beating Children Is Wrong, Isn't It? Resolving Conflicts in the Encounter Between Religious Worldviews and Child Protection” 15 (2) (2013) Ecclesiastical Law Journal 130- 14391 The Convention for the Elimination of All Forms of Discrimination against Women 1979. Although not specifically listed in the Convention FGM is still captured by it; the UN Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment 1989; The UN Convention on Rights of the Child; The Council of Europe Convention on Preventing and combating violence against women and domestic violence, (the Istanbul Convention).

92 World Health Organisation, “Eliminating Female Genital Mutilation: An interagency statement” UNAIDS, UNDP, UNESCO, UNEPA, ENHCHR, UNIFEM, WHO (200) 893 WHO, Global Health Strategy to stop health care providers from performing female genital mutilation (2010) 294 Castledine, J. “Female Genital Mutilation: An Issue of Cultural Relativism or Human Rights (2008)

“international declarations for the benefit of women […] have no currency whatsoever if the words

do not translate into practice on the ground.”95 For instance, certain countries in Africa continue the

practice despite its prohibition under the African Charter on Human and Peoples’ Rights on the

Rights of Women in Africa. As noted by Baker: “Rarely do customary leaders follow full international

human rights instruments… there are still customary elders who are reluctant to denounce…FGM.”96

However, this reluctance has been overcome through grass-root initiatives; working with local elders

and communities to educate them on the harmful consequence of the practice: “Communities

themselves play a crucial role on providing the advocates for change, as they are more likely to be

listened to than the authorities.” 97 In such instances, while legal sanction is appropriate and can act

as deterrence, a holistic approach is more appropriate that combines sanction with education.98

Therefore, while enforcement of human rights law is a challenge it is not one necessarily solved by

legal sanction. Rather, a “more carrot and less stick” approach is appropriate.

Overall, the enforcement and follow-up of the decisions of the international human rights bodies is

challenging. On the one hand, the absence of effective enforcement and follow-up procedures of the

quasi-judicial bodies means that states have ‘flaked’ in their obligations to implement their decision.

On the other hand, despite being able to impose legal sanctions, judicial-bodies are nevertheless,

limited in that their judgments may only result in the imposition of fines rather that meaningful

change. Improving the system through dialogue, whether that be through grass roots initiatives on

the planes of Africa or from within the UN Buildings in Geneva, talking through human rights, the

reasons for a recommendation, may prove that the challenge facing the universal respect for human

rights is not lack of enforcement, but lack of knowledge.

95 Gerry, F. “Let’s talk about vaginas…FGM: The failure of international obligations and how to end an abusive cultural tradition” 2(2) (2014) Griffin Journal of Law and Human Dignity, 78, 8296 Cited in ibid 8697 FORWARD: http://forwarduk.org.uk/key-issues/fgm/ accessed 07/01/201698 Mujuzi, J. “Female Genital Mutilation in Uganda: a glimpse of the abolition process” (2012) Journal of African Law 139, 150

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