Pacta sunt servanda. This is the fundamental principle governing states’ consent to be bound by international treaties. It communicates that treaties must be performed in good faith. In practice however, states often fail to perform their treaty obligations and in so doing, challenge some theories of compliance. On the matter of human rights, non-compliance is not merely a breach of treaty obligations; it tells us what type of society the state values for its people and it signals to us what incentivizes compliance. The challenge for policymakers making these human rights commitments under international law is how to ensure that at the domestic level there is the political will and the institutional capacity to give effect to these commitments.
Take for example, the 1979 Convention on the Elimination of all Forms of Discrimination against Women and the 1989 Convention on the Rights of the Child. These treaties place certain positive obligations on states parties regarding the rights of women and children and have been ratified or acceded to by 189 and 196 states respectively. Yet, the 2016 statistics from the United Nations (UN) show that only 119 countries have laws on domestic violence, only 52 criminalize marital rape, 1 in 3 women still experience domestic or sexual violence, 70% of trafficked victims are women and girls, and there are more than 700 million women married as child brides. On issues such as these it is civil society groups which often lead the charge to hold states to account for commitments made, and often relying on domestic and UN-facilitated mechanisms.
During his time as UN-Secretary General, Kofi Annan introduced a wide range of reforms centred on strengthening the relationship between the UN and civil society. On his recent visit to the Blavatnik School of Government, it was therefore prudent that I ask him how civil society should respond to what the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association calls the closing space for civil society engagement at the UN, evidenced by the arbitrary deferrals of applications for consultative status of NGOs working on human rights. Mr. Kofi Annan was uncertain as to whether the space is closing, but shared that there was always a tension. The question, according to Mr. Annan is not whether civil society is allowed to engage with the UN or whether the relationship between the two is being weakened or strengthened. The imperative is on civil society to assert its relevance and its influence. He expressed confidence that if civil society is dynamic and engage, then the doors cannot close. In light of Mr. Annan’s intimate knowledge of the workings of the UN, such confidence in the power of civil society may bring some comfort.
Taking a step back from the plight of civil society, I also questioned whether, in light of the weak enforcement mechanisms under international law, there is a moral imperative on states to refrain from ratifying treaties where they are unwilling or unable to progressively work towards compliance. To this, Mr. Annan acknowledged that states ratify human rights treaties, even when they do not intend to comply because they do not want to be singled out as bad leaders, quickly capturing my underlying concern of states being lauded at the international level for the act of ratification, while failing miserably to give effect domestically. He maintained that states should be allowed to ratify even if they do not intend to comply because such treaties provide a yardstick by which governments can be shamed into treating its people well. Highlighting its significance, Mr. Annan shared that he often wondered if the Universal Declaration of Human Rights had existed at the time of the Second World War, what leverage would it have given those who were against what was going on.
Mr. Annan’s responses signal the dilemma with which civil society groups working on human rights issues are faced. With limited resources, not only must they convince their governments to ratify international human rights treaties; in the absence of effective implementation of the treaties they must also work at the domestic level to encourage implementation while navigating the political sphere of the UN. Probably it is time for a new era of what I call responsible ratification, requiring prior to the act of ratification, sufficient evidence that a state has laid the groundwork that will support its efforts to progressively fulfill its treaty obligations.
Tenesha Myrie is currently studying for an MPP and is an Attorney-at-law from Jamaica. She works on issues concerned with human rights and access to justice.