University of Kent

Should Reporting-based Human Rights Treaties Be

Considered “Binding International Law”?

By

Joe McNamee

A Dissertation Submitted to the

Brussels School of International Studies
of the Department of Politics and International Relations

in the Faculty of Social Science

In Partial Fulfillment of the Requirements
for the Award of the Degree of
Master of Laws in International Law with International Relations

Brussels,

Friday 1 September, 2006

(18,000 words)
 Table of Contents

ABBREVIATIONS .................................................................................................... ii
ACKNOWLEDGEMENTS ....................................................................................... iii
ABSTRACT............................................................................................................. iv
INTRODUCTION......................................................................................................1
SECTION 1 – THE LEGAL NATURE OF CONVENTIONS.......................................8
SECTION 2 - STATE PRACTICE...........................................................................24
SECTION 3 - CASE STUDIES – CRC AND CEDAW .............................................35
SECTION 4 – EMPIRICAL ANALYSIS...................................................................49
CONCLUSION .......................................................................................................57
BIBLIOGRAPHY ....................................................................................................60

i
ABBREVIATIONS

CAT - Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
CEDAW - Convention on Elimination of All forms of Discrimination Against Women
CERD - Convention on the Elimination of Racial Discrimination
CRC - Convention on the Rights of the Child
DSU - Dispute Settlement Understanding
ECHR - European Convention on Human Rights or European Court of Human Rights
ECPAT - End Child Prostitution, Child Pornography and Trafficking of Children for
Sexual Purposes (NGO Network)
CoE - Council of Europe
GATT - General Agreement on Tariffs and Trade
GSP - Generalised System of Preferences
ICCPR - International Covenant on Civil and Political Rights
ICESCR - International Covenant on Economic, Social and Cultural Rights
ICJ - International Court of Justice
ILC – International Law Commission
ILO - International Labour Organisation
IWF - Internet Watch Foundation
NGO - Non-Governmental Organisation
OAS - Organisation of American States
OP - Optional Protocol
TI - Transparency International
UN - United Nations
UNICEF - United Nations International Children's Emergency Fund
WHO - World Health Organisation
WTO - World Trade Organisation

ii
ACKNOWLEDGEMENTS

Thank you to Dr Harm Schepel and Mr Wade Mansell for their invaluable advice.

Thank you also to my diligent proofreading team.

I am grateful also to Mr Paolo David, former Secretary of the Child Rights Committee for
providing useful insights the Child Rights Convention. I would also like to express my
gratitude to Linda Camp Keith for making her database available to me.

All errors are my own.

iii
ABSTRACT

Reporting-based human rights conventions are among the most widely ratified
international law instruments. They aim to create a normative framework to allow states
to develop their own practices and laws to respect the rights that they seek to protect.
United Nations committees assess reports from states parties and this feedback is
intended to support national efforts at implementation.

The lack of reciprocity between parties to these conventions means that they are quite
dissimilar from most other legal instruments. Furthermore, from a practical perspective,
the compromises made in trying to achieve widespread ratification, the credibility lost by
poor implementation and empirical evidence showing weak effects on state practice all
raise serious doubts as to whether these instruments should be referred to as “binding
law”.

While countries with good human rights records show little improvement as a result of
these conventions, states with weak records can deflect criticism by ratifying these
instruments resulting in either no improvement or human rights practices even getting
worse. This tactic is given its value in part by the credibility accorded to the conventions
by their designation as binding international law.

Consequently, for countries with good human rights records, there is little or no added
value in these conventions being designated as “binding international law”, while there is
a demonstrable disadvantage with regard to countries with poor records.

As a result, downgrading the legal nature of current or future international instruments on

human rights could upgrade their effectiveness.

iv
INTRODUCTION
The United Nations has been directly responsible for the development of over eighty
human rights instruments1 of various descriptions (conventions, covenants, optional
protocols (OP), etc) since its foundation. The impetus for these initiatives comes from
Articles 55 and 56 of the UN Charter, which call for joint and separate action of parties
for the development of human rights. The first major result of the Charter was the
Universal Declaration of Human Rights in 1948, which is not legally binding but does
have obvious moral force. Subsequently, the two major UN Covenants, the International
Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR) were adopted in 1966. These, in turn,
led to a range of more specific conventions, on narrower areas of human rights such as
racial discrimination (Convention on the Elimination of All Forms of Racial Discrimination
- CERD), torture (Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment - CAT), women’s rights (Convention on the Elimination of All
Forms of Discrimination Against Women - CEDAW) and children’s rights (Convention on
the Rights of the Child - CRC). All of the human rights conventions subsequent to the
Universal Declaration have been given the status of “binding international law.”
Specialised agencies of the UN, such as the International Labour Organisation (ILO)
have also produced binding international law instruments, such as the 1999 Convention
on the Worst Forms of Child Labour. In addition, the UN has also developed binding law
on specific issues of human rights, such as the Genocide Convention.

While the procedures vary a little, most of these instruments have no default
enforcement procedure and often rely instead on periodic reporting of states parties to
specialised United Nations committees. Under the reporting procedure, a state party is
required to submit a periodic report to the relevant committee detailing the measures
that it has taken since its previous report to ensure respect for the instrument. The
committee can receive information from other sources, such as NGOs, to get a broader
view of the situation in the country in question and then give its feedback. The process is
meant to be cooperative, with the committee seeking to support and encourage the
states parties to understand and respect their obligations, rather than confrontational.

1
See http://www.unhchr.ch/html/intlinst.htm (last visited 21 July 2006).

1
 2

Some conventions, such as the ICCPR and CEDAW have evolved and now have OPs to
allow for the responsible committees to make judgments (which are referred to as the
Committee’s “view”) on individual complaints (also referred to as “individual petitions”).
This can only happen if the state that is the subject of the complaint has ratified the OP.
The fact that some countries decide to sign such an OP and others do not suggests that
the convention represents something quite different for the two types of country. Those
who have signed up to OP permitting individual petitions to the relevant committee are
using the conventions together with the OPs as an instrumental device to effectively bind
the country. On the other hand, countries that do not are using the core convention as
an expressive device to voice support and commitment.

Countries that have no particular intention of respecting a convention are faced with
international pressure to conform to the accepted “norms” in the conventions have a
choice between not ratifying (thereby incurring at least a reputational cost) or ratifying
with possibly no intention of complying, benefiting from the credibility of being a party to
a “binding” UN instrument by doing so (at no obvious cost). The following example
shows the risks of relying on cost-free actions rather than deeds in the human rights
sphere.

Pakistan signed ILO2 Convention 138 on the minimum age for employment in 2001, with
ratification following in 2006. This allowed the EU to grant the country trade advantages
(in the context of the Generalised System of Preferences (GSP) under the World Trade
Organisation (WTO)) previously withheld due to the country’s child labour policies.
However, Pakistan’s lack of commitment to the convention can be shown by the fact
that, three years after ratification, there were 5.33 million children working there, an
increase of two million4 (or almost 40%) in the preceding eight years. A signature with no

2
Under Article 22 of the ILO Constitution, all ILO conventions require annual reporting of states
parties. Consequently, all ILO conventions are, by default, reporting-based
3
Reuters Foundation Netalert, “Pakistan: 8 million child labourers – rights body”, 27 May 2005.
4
1996 was the most recent year before the signing of the Convention for which data were
collected. Pakistani Federal Bureau of Statistics, Child Labour Survey 1996. Available from the
following URL (last visited 13 August)
http://www.ilo.org/public/english/region/asro/newdelhi/ipec/download/resources/pakistan/pakpubl9
6eng7.pdf.
 3

obvious intent behind it led to significant benefits for the country, and the elimination of a
key bargaining chip to effect real change by the EU. Furthermore, the reduction in
pressure for reform from the EU as a result of ratification of the convention is a plausible
explanation for the worsening situation in that country. It is interesting to note that
ratification of ILO conventions is no longer required by the EU in such circumstances.
Instead, countries are required to show that “the substance of the standards concerned
is incorporated into domestic legislation.”5

“The disinclination of international lawyers to confront the efficacy of international law is

nowhere more evident – or more problematic – than in the field of human rights law.”6
This paper questions the value, efficacy and accuracy of referring to reporting-based
human rights instruments as “binding international law.” As key international instruments
for the protection of human rights, it is obviously important that they be given the most
appropriate status, in order to maximise their credibility and ensure the highest possible
degree of respect for their provisions.

For treaties to have any value or credibility as “law”, this paper argues that they must
fulfil at the very least one or more of the following key characteristics:

1. They need to share core characteristics with other binding law. In particular, they
must balance the rights and responsibilities of their subjects.
2. State practice must reflect recognition of the instruments as being binding on all
parties.
3. Domestic state practice must reflect a positive normative influence of the
instruments.

These criteria reflect the bare minimum of what one could expect from a “law.” It seems
clear that a “law” which does share key characteristics of other laws, which widespread
state practice does not treat as international law and which has little discernable impact

5
European Commission DG Trade, “Users Guide to the European Union’s Scheme of
Generalised Tariff Preferences”, February 2003. Online publication available from:
http://ec.europa.eu/comm/trade/issues/global/gsp/gspguide.htm
6
Hathaway, O, “Do Human Rights Treaties Make a Difference?”, The Yale Law Journal, Vol 111,
2002, pp 1935-2041, p 1938.
 4

on those who are meant to be bound by it has little basis on which to stake a claim to be
law.

This distinction is not merely a question of semantics. If countries are given recognition
by the UN and by the international community for ratifying a “binding law” on human
rights, then any failure of these instruments is not a “paradox of empty promises”7, it is
the only logical outcome. By over-selling the legal significance of the instruments,
recalcitrant countries are offered the opportunity of obtaining the reputational benefit of
adhering to binding international law without any law in the ordinary meaning of the word
actually existing. Ratification followed by non-compliance, or worse, seems to be the
only logical outcome. There is no reason to assume that countries with better human
rights records gain any benefit from the conventions being referred to as binding
international law.

The CRC and CEDAW (as very widely ratified instruments: 99% and over 90% of UN
members respectively) as well as the ICCPR (as the first UN convention on civil and
political rights, ratified by over 80% of UN members) have been chosen as the focus of
this paper, although references to other instruments are made, as appropriate.

The paper is divided into four sections:

Section 1 - The legal nature of the conventions

The purpose of this section is to examine the practical and legal context for the
instruments, establishing the extent to which they comply with the first criterion listed
above – whether they share core characteristics with other binding law. It explains the
logic behind the conventions and what was hoped and expected they would achieve in
their current form. It will then look at the extent to which these instruments, which are
binding on states but only8 with regard to their own citizens (and not with regard to inter-
state interaction, as would normally be the case for international law), compare with the
rights and responsibilities provided for in other instruments. The first section finishes by

7
Hafner-Burton, E, and Tsutsui, K, “Human Rights in a Globalizing World: The Paradox of Empty
Promises”, American Journal of Sociology, Vol 110, 2005, pp 1373-1411.
8
There is a theoretical obligation for states to take bilateral and/or multilateral action in the CRC.
 5

considering a variety of schools of thought on compliance with international law, in order

to ascertain the extent to which the theoretical impetus for compliance with other
international law instruments are valid for reporting-based human rights conventions.

Section 2 - State practice

This section examines the second criterion listed above, the extent to which state
practice shows respect for these instruments as law. International law relies heavily on
state practice as a basis for what is considered “law” and what is not. Indeed, the whole
basis of customary international law is the way in which states consider some actions
legal and others illegal. The human rights treaties that are the focus of this research
have certain characteristics, such as a very high rate of reservations by states parties,
which put a question mark over the credibility accorded to them in widespread state
practice. This concerns not just the reservations themselves and the degree to which
they may contradict the “object and purpose”9 of the laws in question, but also how other
states act towards them. A high rate of serious reservations coupled with a high level of
acceptance thereof by states parties would generally indicate a lack of credibility for the
instrument as a whole.

A second aspect of section two is the way in which these conventions compare with
other binding international law, in particular the General Agreement on Tariffs and Trade
(GATT) and the World Trade Organisation (WTO) Dispute Resolution Understanding
(DSU). Trade law and human rights law regulate fundamentally different issues and the
fact that they operate differently is not necessarily an indication of a problem. However,
a comparison of the approaches of states to respect for trade law as opposed to human
rights law does serve to assess if one is treated with more respect as law than the other.

Section 3 – Case studies

Looking at specific examples of drafting and application of the instruments, this section
continues to assess the degree to which state practice treats these conventions as law.
For these conventions to be credible, the quality of their drafting needs to be

9
Article 19C of the Vienna Convention on the Law of Treaties prohibits reservations which are
“incompatible with the object and purpose of the treaty.”
 6

commensurate with a text that is expected to become, or expected to have a credible

claim of becoming, universal binding law. Contradictions or weaknesses in the texts, as
well as foreseeable organisational difficulties (such as with the administration of the sole
implementation mechanism, the reporting procedure) would indicate a lack of belief in
the instruments as binding law from the very earliest stages.

This section looks particularly at the way in which online child abuse images (child
pornography) have been dealt with under the CRC and other instruments. This is a
particularly useful example because, possibly uniquely in this type of convention, there is
a clear international aspect. If country A fails to put measures in place to stop material
being put on line and/or to take it off line once it is published, this will mean that the
material remains available, contrary to its domestic laws and policy, in country B.
Furthermore, child abusers in country B are given a “safe haven”, because there is
nothing stopping them in the online environment if they wish to produce and sell material
from servers in country A.

If a state party to the CRC is unwilling to undertake its obligations to act domestically,
bilaterally and multilaterally to deal with a problem which crosses its borders and which
has direct consequences for its own citizens and children globally, then it is difficult to
see how that state could be seen as accepting other aspects of the text, with no
reciprocal benefit for itself, as being binding international law.

Section 4 – Empirical evidence

This section looks at two sets of research carried out in order to assess empirically the
impact of human rights treaties, and will serve to analyse the conventions with regard to
the third criterion listed above, their practical impact. The two pieces of research
presented are the ground-breaking study by Linda Camp Keith into the impact of the
ICCPR and Oonagh Hathaway’s research which, building on Camp Keith’s initial work,
looks at a range of international instruments, both regional and global to assess their
impact on state practice.

Clearly, if there is no significant impact on state behaviour, this would be a very strong
argument that the status of binding international law is not appropriate for these
 7

instruments. This argument would be reinforced if the research indicated that the overall
impact was negative. A negative impact could be the result of countries using cost-free
ratification to deflect criticism and avoid making improvements that would otherwise
have been deemed necessary (as described in relation to Pakistan, above).
Alternatively, a negative impact could happen if the international community uses the
promulgation of instruments to appear to be addressing issues of public concern, instead
of taking action that public opinion would demand.
SECTION 1 – THE LEGAL NATURE OF CONVENTIONS
The purpose of this section is to assess the extent to which reporting-based human
rights conventions share key characteristics of other law. It firstly looks at how human
rights instruments are intended to achieve their goals, in particular how, in the absence
of coercive enforcement procedures, their normative influence is supposed to function.
This leads on to an analysis of whether non-reciprocal agreements fit with the normal
concept of what one understands by law in the international and municipal spheres. The
final section of the chapter looks at major schools of academic thought on the conditions
under which countries normally comply with international legal instruments, assessing
the degree to which reporting-based human rights instruments fit with these models.

Normative Influence

The ratification of human rights conventions is seen as crucial by the UN for the
application of international law. This is shown, for example, by the fact that the first
“suggested action” in the UN’s year 2000 Action Plan for the creation of an “Era of
Application of International Law”10 was to “encourage participation in multilateral
treaties.” It is noteworthy, bearing in mind the problems with existing multilateral treaties
described below, that further participation was the first priority listed in an action plan to
promote application of international law. If states, as some argue, comply with norms in
order “to demonstrate that they have adapted to the social environment,”11 prioritising
participation risks producing counter-productive results. In particular, it risks allowing
adaptation to the legal norm of ratification to replace (or at least reduce pressure for)
adaptation to the behavioural norm of respect for the content of the treaties. This would
result in human rights treaties making the situation worse in some situations, with
ratification being substituted for practical measures to improve human rights.

10
United Nations, “Strategy for an Era of Application of International Law Action Plan”, June
2000. Published online at http://untreaty.un.org/ola-internet/action_plan_final.pdf (last visited 5
August, 2006).
11
Finnemore, M, and Sikkink, K, “International Norm Dynamics and Political Change”,
International Organisation, Vol 52, 1998, pp 887-917, p 903.

8
 9

One of the main reasons behind supporting such instruments, despite the obvious
drawbacks such as problems with enforcement, is their normative influence. Binding
international legal instruments, which are signed and ratified by national governments
and overseen by the United Nations, are intended to create a normative legal framework
for the achievement of the goals contained therein. A legal framework, with the credibility
of being a UN instrument and with a great deal of international support is intended to
create a socialisation factor and provide norm promoters with an “organizational platform
from and through which to promote their norms.”12

Widely agreed and ratified conventions are therefore intended to create an extensive
edifice of human rights support, covering not just the international legal framework, but
also giving municipal judges the tools to interpret rights differently, giving governments
guidance on legislating differently and giving NGOs a tool which can be used effectively
to campaign for those rights. In short, these instruments are intended to result in the
creation of a culture of respect for human rights – adapting and manipulating the
Zeitgeist. “In the absence of agreed upon egalitarian standards, all sorts of inequalities
are less likely to be experienced as inequities”,13 so establishing norms ostensibly
establishes a new culture where citizens can engage with their governments in a new
legal environment. Major international conferences are frequently organised to build on
this momentum. They focus on the development and implementation of such
instruments, sharing experience and best practice and regenerating enthusiasm for the
protection of the rights in question among governments and NGOs.

From a political perspective, the reasons for creating international conventions on

human rights are because these rights are universal and secondly (at least for certain
conventions), for the less altruistic reason, that infringements of human rights can have
cross-border consequences, requiring international action when they are seriously
infringed. For example, severe breaches of conventions which deal with issues related to

12 ibid, p 899.
13
Wotipka, C.M. and Ramirez, F.O, “World Society and Human Rights: An Event History Analysis
of the Convention on the Elimination of All Forms of Discrimination Against Women”, Paper
Presented at the 98th Annual Meeting of the American Sociological Association”, Atlanta, 2003.,
p 16.
 10

the rights of minorities,14 or the Convention on the Prevention and Punishment of the
Crime of Genocide (the Genocide Convention) can have major implications for other
countries, in the form of regional political destabilisation, flows of refugees, and so on.

What is less clear, however, is why reporting-based instruments need to be in the form
of “law.” After all, the Universal Declaration on Human Rights, which has unrivalled
moral force and recognition, is the only major UN human rights instrument that is not
law. Scholarly writing on this issue consistently glosses over this point as if it did not
exist, possibly because the scholars themselves unconsciously demote normative legal
instruments to a lower level and therefore do not consider as significant the question of
whether or not they should be considered to be “law” nor the extent to which their being
law serves a useful purpose. For example, Andrew Moravcsik15 cites various academic
sources that claim that transnational support for (and acceptance of) international human
rights regimes are worthwhile for countries because “states willing to accept to submit to
the rule of law and civil society are more likely to submit to their analogues
internationally”. However, he fails to make any effort to establish a causal link between
the acceptance being based on “the rule of law” rather than on the fact that the states
were showing themselves, in practice, to be analogues. He also quotes Thomas
Franck16 saying the same thing with different words, with the same lack of explanation
as to why it is the compliance aspect of the behaviour rather than the behaviour itself
that makes states recognise their common values.

Implementation and International Effects

In very broad terms, international legal instruments can be placed on a continuum from
those with the strongest available implementation measures to those with the weakest,
as in the diagram below (which is not meant to be to any scale). If we consider which
have the most significant cross-border impact and which have the least, we can see an
obvious correlation with the degree of enforcement. International practice therefore, from

14
The Council of Europe Framework Convention for the Protection of National Minorities (CETS
157) for example.
15
Moravcsik, A, “The Origin of Human Rights Regimes: Democratic Delegation in Postwar
Europe,” International Organisation, Vol 52, No 2, pp217-252, p 223, quoting Kupchan and
Kupchan.
16
ibid, p 224.
 11

the very moment that these instruments entered into force, has placed a greater degree
of significance on ensuring enforcement of international law which has more cross
border significance. The question then arises as to whether, as one moves to the left of
the graph, a point comes when state practice with regard to enforcement becomes so
weak as to raise doubts as to the extent to which the instruments can still be called
“law.”

Key elements of law

Generally, the purpose of law is to establish rights and responsibilities in interaction

between legal and/or natural persons. The greater the impact that the actions of one
entity or human being has on another, the greater the need for laws to protect the rights,
and define the duties, of all concerned. Conversely, if an activity has little impact on
others, there is obviously little need to regulate. Indeed, Article 2.7 of Chapter 1 of the
UN Charter, which codifies the principles of the UN, underlines this point, stating that
nothing therein “shall authorize the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state.”

It is logical, then, that international law has focussed on activities in and between
countries that have a significant degree of mutual significance for states. International
law has concentrated on issues of major shared importance such as the laws of war, the
law of the sea and the right to use force. Binding law on issues related to non-essential
issues, or issues lacking in international significance which would result in sovereignty
being needlessly given up, clearly does not fit within this logic.
 12

International law therefore generally deals with the rights and responsibilities of the
subjects of the particular piece of legislation. In simple terms, a law exists to prevent
country A from undertaking action X because of the harm that would be inflicted on
country B if it did so. In international law, enforcement mechanisms (and the degree of
rigour used by wronged states to demand enforcement) vary in strength as we move
from the most salient international issues (such as resort to the use of force, diplomatic
relations, etc) to the least salient internationally (such as domestic equality legislation).

As a result, the decision to comply, or demand compliance, with international legal

obligations has generally been based on the importance of the law compared to the
interaction with the other country or countries involved in the legal relationship.
Therefore, if a state can get away with breaking a law which is not strongly enforced and
it sees sufficient benefit (taking other factors such as reputational effects into account)
for doing so, then the logical action is to break the law. Conversely, if country A is aware
that country B is breaking a law, but the cost of the breach is lower than that of
undermining good relations between the states, it makes clear sense for State A not to
demand compliance.

This balance between rights and responsibilities is the reason why the International Law
Commission’s (ILC) Draft Articles on State Responsibility17 focus so heavily on “the
injured state” ( Part Three, Chapter 1, articles 42-48). Indeed, only Article 48 makes
specific reference to non-injured states being theoretically able to invoke state
responsibility and only then, according to the reports of the ILC, when the state has a
“specific right to do so”.18

This analysis leads to a clear conclusion that, in international law, it would be logically
and practically peculiar for a treaty to be agreed where neither of the parties would be
injured in the event of non-compliance by the other. Or, to put it another way, reciprocity

17
International Law Commission, “International Law Commission’s Draft Articles on State
rd
Responsibility”, adopted at the 53 Session of the International Law Commission, 2001.
18
Sassoli, M, “State responsibility for violations of international humanitarian law”, International
Review of the Red Cross, June 2002, Vol 84, No 846, pp 401-434, p 423.
 13

“is a condition theoretically attached to every legal norm of international law.”19 In fact,
even when international agreements are ostensibly non-reciprocal, as in the case of
GSP agreements20 under the GATT, the generally have a strong reciprocal element.21 It
is, of course, possible for agreements to include obligations to third parties – such as
human rights clauses in international treaties. However, the EU has explained that such
a clause “does not transform the basic nature of agreements which are concerned with
matters not directly related to the promotion of human rights.”22

Similarly, it is almost inconceivable for a municipal law for a law to exist which does not
govern the relationship between two or more parties, where one party is not injured by
non-respect of the law, and where no punishment exists as coercion to require respect
for the law.

However, this balance of rights and responsibilities is conspicuously missing in

reporting-based human rights conventions. International conventions such as the CRC
and CEDAW have one crucial component in common: the almost complete absence of
international consequences in case of breaches. Other instruments, such as the
Genocide Convention and the CAT cover issues which may, if breached very seriously,
have international repercussions. It therefore seems clear that conventions which lack
significant international character, such as the CRC and CEDAW are missing a crucial
element of other binding international law.

Furthermore, a contract where there is neither an enforcement mechanism nor harm to

either of the parties in the event of a breach is entirely inconceivable in municipal law,
but this is essentially what conventions such as CEDAW (minus the optional protocol)
and the CRC are in practice. The drive from the relevant UN agencies and NGOs for
universal ratification of such treaties, which is so strong as to result in major

19
Zoller, E, “Peacetime Unilateral Remedies, Transnational Publications, Dobbs Ferry, NY, 1984,
p 15, quoted in Keohane, R.O., “Reciprocity in international relations”, International Organization,
Vol 40, No 1, Winter 1986, pp 1-27, p 1.
20
Non-reciprocal trade concessions intended to support developing economies.
21
See, for example, United Nations Conference on Trade and Development, “Handbook on the
Scheme of the United States of America”, UNCTAD/ITCD/TSB/Misc.58, June 2002. Available
online at http://www.unctad.org/en/docs/itcdtsbmisc58_en.pdf, (last visited 23 August, 2006).
22
EU Annual Report on Human Rights 1999, quoted in Bartels, L, “Human Rights Conditionality
in the EU’s International Agreements”, Oxford University Press, Oxford, 2005, p 170.
 14

compromises being made on their content, further reduces their credibility as binding
law. Even the International Court of Justice (ICJ) has recognised, to a point, the peculiar
legal situation of human rights conventions. In its judgment on reservations to the
Genocide Convention, it argued that the desire for universal ratification altered the legal
situation and that “in a convention of this type one cannot speak […] of the maintenance
of a perfect contractual balance between rights and duties.”23

Why Ratify?

As described above, there is a long list (normative value, socialisation, providing a

platform for norm promoters, and so on) of good reasons why countries should wish to
sign and ratify human rights treaties. Although, in a lot of cases, such as the Genocide
Convention, the subject matter is entirely superfluous to the states parties (as it is so
unlikely that most countries would commit genocide as to make it redundant to sign up to
a binding obligation), ratification is nonetheless seen as having an important
communicative function for the global community of states. That said, duplicating laws,
whatever the intention may be, can be counterproductive – for example by allowing
semantic disputes about the term “genocide” to distract from the fact that mass murder is
being, or was, committed, for example in Sudan where “needless semantic disputes
hamper[ed] effective punishment and deterrence.”24

A particularly valid reason, which can often be seen in international economic regulation,
is that ratification of human rights treaties is a way of “tying the king’s hands” – in other
words, restricting the choices of a current or future regime to continue, or revert back to,
breaches of the human rights of their citizens. The possibly crucial support from newly
established democracies for the European Convention on Human Rights (ECHR, which
now includes an obligation on states parties to accept the jurisdiction of the European
Court of Human Rights to judge complaints from individual citizens) is an interesting
human rights-based example of this. Problems arise, however, when the “king’s hands”
are not bound by mechanisms such as those found in the WTO and the ECHR, but

23
International Court of Justice, “Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion 28 May 1951”, Reports 1951, p. 15.
24
Kiernan, B, “Letting Sudan Get Away with Murder”, Yaleglobal, 4 February 2005. Online edition
available from http://yaleglobal.yale.edu/display.article?id=5227 (last visited 12 July 2006).
 15

where he has merely undertaken to consider them to be bound, as in the case of

reporting-based conventions. Indeed, even when there are enforcement mechanisms,
governments can be quick to untie their hands, at least partially, as shown by the United
Kingdom’s repeated derogations from the ECHR, according to which that country has
been in a state of “public emergency threatening the life of the nation,” (Article 15) for
most of the lifetime of the convention.

It is worth noting, however, that countries do not need international legal instruments to
bind current and future governments. For example, states are increasingly creating
independent regulatory authorities to manage regulation of sections of the economy.
Examples include independent central banks, competition authorities and regulatory
authorities for specific areas of industry. Many of these bodies work in cooperation with
analogues in other countries producing efficient transnational regulation (the European
Regulators Group for telecommunications,25 for example).

What can be expected from ratification?

Looking at some of the output from the relevant United Nations agencies (“[t]he
Convention on the Rights of the Child is the first legally binding international instrument
to incorporate the full range of human rights”26), it would be easy to think that there is
little question about the positive impact of such conventions. This view appears to have
been supported by legal scholars who took it “as a given that the rules would have
impact.”27 However, while the almost universal (all UN members except the USA and
Somalia28) ratification of the CRC is acclaimed, the fact that, for example, ten years after
the entry into force of the convention, there were 300,00029 children involved in wars and
almost all are from countries that had ratified the convention, questions need to be

25
See http://erg.eu.int
26
From the UNICEF website - http://www.unicef.org/crc/ (last visited 2 July, 2006).
27
Hathaway, O, op cit, p. 1942.
28
The USA has a range of legal (such as the desire to maintain the right to capital punishment for
children and the dualist nature of the US constitution) and political (there is considerable right-
wing opposition to alleged foreign “meddling” in family life through the Convention) reasons not to
sign and ratify. Somalia’s instability means that it is unable to enter such conventions.
29 th
Human Rights Watch, “Promises Broken – An Assessment of Children’s Rights on the 10
Anniversary of the Convention on the Rights of the Child”, Online Publication, December 1999.
Available at http://www.hrw.org/campaigns/crp/promises/ (last visited 03 July 2006).
 16

asked about whether the convention serves any useful purpose in the countries where it
is most needed and, secondly, whether it could actually be counterproductive.

Oonagh Hathaway30 neatly summarises the academic approaches to compliance into

three “rational actor” and three “normative” models.

Rational Actor - Realism

According to a realist perspective of international law, any international treaty will be

respected only if there is a benefit for the state to do so. Consequently, any compliance
with international law is more related to the coincidence of self-interest with the
requirements of the law, rather than deliberate compliance. This view of the world is
taken to its extreme by Goldsmith and Posner31 who attempt to argue that every piece of
international law that has ever been written had no significant compliance effect. They
argue that ratification of human rights treaties has little cost and therefore is “cheap.”
They point out that a “cascade of ratification would empty the act of meaning”32, although
they singularly fail to explain why some countries (such as the United States in relation
to the CRC) decide that they cannot or should not ratify a treaty, even if the cascade of
ratifications appears to have voided it of all meaning.

Taking this approach, in the absence of an enforcement mechanism, the fact of human
rights treaties being “binding international law” rather than a declaration or code of
practice would appear to have little or no effect on their implementation.

Rational Actor – Institutionalism

Under this approach, a degree of compliance can be expected due to the value provided
by institutions, insofar as they provide a wider context where long-term strategies can be
followed for self-interested ends. In essence, as with the pure realist approach, “[l]aw
carries no weight divorced from the quantifiable sanctions and costs imposed in the case

30
Hathaway, O, op cit.
31
Goldsmith, J, and Posner, E, “The Limits of International Law”, Oxford University Press, New
York, 2005.
32
ibid p.131.
 17

of its violation.33 The problem for human rights treaties for institutionalism, as for realism,
is that there is little self-interest, and there is also no wider institution which can impose
cost. Indeed, with the UN and NGOs campaigning for ratification, the cost of ratifying
and not complying would normally be lower than not ratifying because ratification allows
the country to blend into the mass of other countries that have signed.

Although somewhat unscientific, it is interesting to note that an Internet search34 (in

French to neutralise the effect of the large number of sites in English) for United States
and Convention on the Rights of the Child yields more than twice as many hits as Russia
and Convention on the Rights of the Child. This indicates that Russia attracts less
attention for having signed and ratified than the US, which has not, even though
Russia’s compliance has been heavily and repeatedly criticised by the UN Committee on
the Rights of the Child. Therefore, under this model there is also no value in having
human rights treaties given the status of “binding international law”, while there are clear
risks in giving undue credibility and camouflage to countries who do not respect the
norms in question.

Rational Actor – Liberalism

This theory argues that liberal states tend to act in a more civilised manner and have a
greater respect for the law. However, this argument only tells half the story. As Posner
and Goldsmith pointed out, developed “liberal” states have consistently required
significantly more reservations to human rights treaties than others.35 So, it is the law of
the status quo that they are adept at ratifying, which is hardly an impressive or
particularly worthwhile feat. More recent infringements of human rights (mass monitoring

33
Hathaway, O, op cit, p. 1951.
34
153,000 for Russia (http://www.google.com/search?hl=en&lr=&rls=SUNA%2CSUNA%3A2005-
44%2CSUNA%3Aen&q=convention+sur+les+droits+de+l%27enfant%22+%22russie%22) and
360,000 for the USA http://www.google.com/search?hl=en&lr=&rls=SUNA%2CSUNA%3A2005-
44%2CSUNA%3Aen&q=convention+sur+les+droits+de+l%27enfant%22+%22etats+unis%22).
Searches undertaken in July, 2006. The results were duplicated when the search was done in
German
35
Goldsmith, J, and Posner, E, op cit, p 129.
 18

of electronic communications,36 prohibitions of peaceful demonstrations,37 imprisonment

of children,38 recruitment of child soldiers,39 mass monitoring of banking services,40 etc)
by liberal states also undermine this theory. However, liberal states do appear to have a
tendency to avoid obligations rather than fail to comply with them (the UK’s states of
emergency under the ECHR, its derogations on the CRC, the US preferring not to
ratifying various conventions, such as the CRC and CEDAW, etc).

The argument that ratification gives domestic pressure groups a tool to push for
compliance is, however, more credible, although it is unclear both how effective this is in
practice and also whether calling the international instrument a “law” is beneficial to
having the norms adopted, particularly when state practice (as shown below) does not
treat the instrument as being on a par with other laws.

Rational Actor – Critique

The extent to which compliance with other pieces of international law can be explained
by rational choices by states highlights the absence of certain key criteria in reporting-
based human rights treaties. There is no significant pull towards compliance created by
fear of sanctions (such as in the case of a serious breach of international law, the
manufacture of illegal weapons, for example), countermeasures (under the WTO

36
Directive 2006/24/EC of the European Parliament and of the Council on retention of data stored
or processed in connection with the provision of publicly available communications services,
potentially in breach of Article 8 of the ECHR.
37
The Serious and Organised Crime Act of 2005 prohibits demonstrations within one kilometre of
the British Parliament, potentially in breach of Articles 9 and 10 of the ECHR.
38
The UK attracted to different sets of criticism in the Committee on the Rights of the Child
consideration of that party’s second report – one for the use of physical restraint and solitary
confinement in the punishment of children and a second for the imprisonment of children of
individuals seeking asylum in the country. Paragraphs 33 and 47 of United Nations document
CRC/C/15/Add.188).
39
Coalition to Stop Child Soldiers, “Global Report 2004 – Europe and Eurasia Regional
Overview”. Published online at http://www.child-soldiers.org/document_get.php?id=884 (last
visited 23 August, 2006).
40
The United States authorities monitor financial transactions carried out by the SWIFT system.
See Lichtblau, E and Risen, J, “Bank Data is Sifted by US to Block Terror”, New York Times, 23
June, 2006. This is a potential breach of Article 8 of the ECHR by the European countries that
facilitated this action in their countries.
 19

regime) or of being found guilty of infringements by an international body (such as under

the European Convention on Human Rights).

Furthermore, it is unlikely that anything other than a grave breach of the rights in the
CRC or CEDAW would attract enough attention as to have a reputational impact on the
infringing state. In any event, breaches of the CRC or CEDAW that had cross-border
implications would obviously be of a scale that would make it irrelevant whether or not
they happened to be in contravention of a convention. The practical effects would be
more significant than the academic question of whether or not an unenforced treaty had
been breached.

Similarly, it is true that NGOs can use conventions as lobbying tools but, when dealing
with key aspects of human rights, the conventions can seem academic. For example,
the argument that “country x should take international action to prevent the sexual
exploitation of children,” hardly becomes more compelling if the moral argument is
relegated by a legal argument along the lines that, “because it is obliged to do so by the
CRC, country x should take international action.”

Generally, therefore, there appear to be few, if any grounds, to grant reporting-based

human rights conventions the status of international law, if one follows the logic of
rational actor models of state behaviour.

Normative Models – Managerial Model

The managerial model argues that the negotiation and ratification of treaties generate
legal norms – creating a sense of obligation for states once they have signed and ratified
a treaty, with compliance as the default behaviour and non-compliance only if the state
in question is unable to comply. Compliance can therefore be brought about by
persuasion rather than coercion. “The process is effective not because of the threat of
direct penal sanctions but rather because of the threat of alienation from ‘the complex
web of international arrangements’ that have become central to most nations’ security
 20

and economic well-being’”.41 This may well be true for international agreements, such
as those that underpin the WTO (described below), which fall within the “complex web”
of international issues where non-compliance will have direct economic consequences.
However, the extent to which compliance with human rights treaties fall within any such
web is questionable. For example, “Saudi Arabia’s failure to comply with the women’s
rights treaties it has ratified does not appear to have lead the US to conclude that is
unlikely to comply with the international trade and finance obligations it has assumed.”42

Normative Models – Fairness Model

The “fairness model” argues that rules that are not perceived as fair exert little pull
towards compliance. Fair and coherent legal obligations will be complied with more than
laws which are not deemed to be so. Insofar as human rights treaties are deemed to be
fair (and the conventions that are the focus of this paper have been voluntarily signed up
to by most countries, so this appears to be a reasonable assumption), compliance
should be the default. The problem is that, in any given situation, a state that wants to
breach human rights treaties will feel that current circumstances make complying with
the letter of the law unfair to it. The UK Government’s views of its own incorporation of
the ECHR into domestic law are a perfect example of this. Having supported the 1998
Human Rights Act as long as it was convenient to do so, Prime Minister Blair defended
his attacks on the judiciary’s implementation of his own Government’s laws by saying
“[l]et no one be in any doubt, the rules of the games [sic] are changing.43 In other words,
compliance was based on convenience and, once compliance became difficult, the law
was no longer politically considered appropriate. The fairness model could be
considered, therefore, as something of a truism.

Normative Models – Transnational Legal Process Model

41
Hathaway, O, op cit, p. 1957, quoting Chayes, A, and Chayes, A, “The New Sovereignty:
Compliance with International Regulatory Agreements”, Harvard University Press, Cambridge,
1995.
42
Van Stein, J, “"Making Promises, Keeping Promises: Ratification and Compliance in
International Human Rights Law" Ms., UCLA International Institute Presented at the 2004 Annual
Meeting of the American Political Science Association, Chicago, IL, September 2-5, 2004, p 4.
43
Jones, G, “Blair to curb human rights in war on terror”, Daily Telegraph, London, August 2005.
 21

Under this theory, norms are “internalised” as a result of the interaction which gives rise
to them. This approach certainly offers a great deal of coherence and applicability when
looking at treaties involving a high degree of interaction between national authorities and
a degree of (particularly third party) enforcement. For example, if a state loses a case
before a WTO panel because the panel felt that less trade-restrictive alternatives were
available but not availed of,44 it appears logical that it will tend to pre-empt a future case
by itself voluntarily assessing the availability of alternatives likely to be considered
adequate by WTO panels. Similarly, human rights abuses condemned by the European
Court of Human Rights in one country are likely to be avoided both in that country and in
other countries. For example, in Ireland vs. the UK,45, the UK immediately agreed at the
start of the case to discontinue the practices that were the subject of the case, in an
effort to use the internalisation of the feared judgment to avoid being condemned for
having used torture.

However, internalisation of norms in relation to treaties such as CEDAW and CRC is

made less likely because the government agencies involved in negotiating them are
unlikely to be the primary agencies responsible for the relevant policy area domestically,
even if some degree of consultation occurs. For example, while trade ministries will be
heavily involved in trade negotiations and foreign ministries will be heavily involved in
negotiations regarding borders and diplomatic relations, the ministry responsible for
children’s rights, if a country has one, will usually not be responsible for, education,
social welfare, multilateral agreements on custody of children, freedom of religion,
parental rights and many of the other rights in the convention. The interaction which
produces the norms is therefore fundamentally different and cannot produce the same
norm-generating effect.

Indeed, regardless of what ministry is responsible for negotiating such a treaty,

conventions such as the CRC and CEDAW are so wide in scope that no ministry would
appear to have automatic “ownership” of it in the same way as a trade or environmental
treaty. For example, Poland gave responsibility for negotiations for the CRC to Adam
Lopatka, its Minister for Religious Affairs. The interaction between other Polish ministries

44
The Thailand-Cigarettes case is just one example of such a decision. Thailand – Restrictions
on the Import and Internal Taxes on Cigarettes (DS10/R – 37S/200).
45
Ireland vs United Kingdom, 5310/71.
 22

and their counterparts in other countries would therefore have been indirect during
negotiations of the convention and, as a result, the normative effect of the drafting
process is likely to have been minimal.

When we consider, for example, that the Working Group on the Question of a
Convention on the Rights of the Child (which drafted the CRC) had a total of only 43
members, and “active participation of most individual governments generally left much to
be desired,”46 with the presence of intergovernmental organisations “scandalously
weak,”47 it is hard to see how the drafting process could have had a significant degree of
influence in norm generation for the majority of ratifying states, who were not involved.

Normative Models Critique

The problems for these approaches, with regard to reporting-based human rights
conventions, is that officials do not need to “look over their shoulder” to assess if a
particular policy is going to result in a judgment against the state, as this is highly
unlikely, because the relevant UN body can only offer an opinion on the issue as part of
a wide-ranging response to the country’s periodic report. Furthermore, as mentioned
above, there may be little or no link between the government body responsible for
negotiating the treaty and those government bodies that would be expected to
“internalise” the norms in question. The norm creation can only possibly come from
widespread state practice and, as will be shown below, state practice is not fulfilling this
role.

Generally, therefore, there is little hope to be gleaned from the normative models
approach to suggest that there is particular value from considering reporting-based
human rights instruments as “binding international law.” Insofar as these instruments
have a normative impact, this does not appear to come from their legal nature and the
consequences of breaches are not significant enough on their own to create an impetus
to internalise the legal norms they contain.

46
Detrick, S, “The United Nations Convention on the Rights of the Child. A Guide to the Travaux
Préparatoires”, Martinus Nijhoff Publishers, Dordrecht, 1992, p 23
47
idem
 23

Summary

In this section, we have seen that reporting-based human rights conventions do not
share many of the key characteristics of other international instruments, particularly with
regard to reciprocity. Furthermore, we have seen that their subject-matter and
organisation are such that they fall outside many of the key theoretical frameworks for
the respect of international law. Consequently, it seems clear that these instruments do
not comply with the first criterion listed above for consideration as binding international
law – they do not share core characteristics with other binding law.
SECTION 2 - STATE PRACTICE

Having seen above in Section 1 that reporting-based conventions have a weak

foundation as binding law due to their lack of reciprocity and the fact that they do not
readily fit with common theories of compliance with international law, this section seeks
to analyse the “real world” impact of these instruments. It does so firstly by considering
what we can learn about state practice regarding fundamental reservations that put the
essence of the instruments at risk and secondly by assessing state practice concerning
these instruments compared with other international law instruments. Clearly, if state
practice regard these instruments as binding international law, states would have limited
flexibility with regard to fundamental reservations and would treat them as being equally
important as other treaties.

Reservations – Why are they significant?

It has been argued that the problem of reservations to international legal instruments
“arose with the emergence of treaties that are not mutually and reciprocally
advantageous for States.”48 This expansive use of reservations and declarations
developed from – although clearly not intended by – the ICJ Advisory Opinion on
Reservations to the Genocide Convention, 49 which ruled that universality was part of the
object and purpose of the convention and, therefore, “minor reservations” should not
prevent widespread ratification. As will be shown below, it has not been what the ICJ
decided (namely the permissibility of minor reservations in order to maximise ratification)
but what the dissenting opinion of Judges Guerrero, McNair, Read and Hsu Mo50 feared
(namely, universality at any price) that has become tacitly accepted state practice.

The freedom which countries have accorded themselves with regard to reservations
means that state practice provides useful insight into the extent to which nations regard

48
Lijnzaad, L, “Reservations to UN-Human Rights Treaties Ratify and Ruin”, Martinus Nijhoff
Publishers, Dordrecht, 1995, p 16.
49
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion 28 May 1951.
50
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
I.C.J. Reports 1951, joint dissenting opinion of Judges Guerrero, McNair, Read and Hsu Mo p.
46,

24
 25

the instruments as binding law, rather than flexible codes of practice that can be adapted
to match current behaviour.

For example, one of the most curious aspects of reservations to the ICCPR is the
surprising inverse relationship between corruption, as classified by the Transparency
International51 (TI) scale (low numbers indicate increased levels of corruption), and the
likelihood of tabling reservations to the Covenant. This relationship is clear despite the
low sample sizes for the countries with very high numbers of reservations.

Corruption index vs Number of Reservations

10
Corruption rating

6
4

2
0
16 (1) 12 (1) 9 (1) 8 (4) 7 (2) 6 (3) 5 (3) 4 (9) 3 (7) 2 (5) 1(18)
Number of reservations (number of countries)

As Goldsmith and Posner52 point out, the large number of reservations from developed
countries (generally the least corrupt according to the TI research) can be explained by
the fact that their practices are generally in line with human rights treaties such as the
ICCPR and reservations can bridge the gap to allow full compliance without any
additional legislative effort on the part of the state in question. This approach is not
restricted to western countries as the “effect of the Shari’ a-based reservations to Article
2 of CEDAW was understood by the objecting states to be that the reserving states

51
Based on the Transparency International Corruption Perception Index, 2005. Available online
from http://ww1.transparency.org/surveys/index.html#cpi (last visited 18 July 2006).
52
Goldsmith, J, and Posner, E, op cit, pp 127-128.
 26

would only observe the CEDAW norms that they would have observed anyway, in the
absence of the Convention.53

If this analysis is accurate, the countries in question are treating what is meant to be a
“binding law” as a recommendation whose measures can simply be disregarded if
inconvenient. This creates a peculiar and unwelcome divergence between the legal
norms contained in the treaties and the state practice norms emerging from them.

There are few possible optimistic explanations as to why countries deemed to be more
corrupt should wish to make fewer reservations to the ICCPR. It seems unlikely that they
recognise their own failings and wish to force themselves to try harder by signing and
ratifying the instrument. It appears much more credible that the cost of ratification was
minimal for the countries involved and the benefit of being able to claim to have ratified a
major UN human rights convention is perceived as more significant.

CEDAW and CRC Reservations

Article 28 of the CEDAW echoes Article 19 of the Vienna Convention on the Law of
Treaties in stating that a reservation that is “incompatible with the object and purpose of
the Convention” cannot be permitted. This is the most liberal approach to reservations
that is theoretically possible while respecting the convention as law. However, as early
as 1986, only seven years after the convention was opened for signature, the Committee
on the Elimination of Discrimination Against Women expressed concern at the number
of reservations entered which seemed to be contrary to the object and purpose of the
convention.54

The reservations and declarations to the convention are far-reaching, fundamental and
frequently open-ended. Some examples are:

53
Clark, B, The Vienna Convention Reservations Regime and the Convention on Discrimination
Against Women”, The American Journal of International Law, Vol. 85, 1991, pp 281-321, p 317.
54
CEDAW Committee, “General Recommendation No. 4 (6th session, 1987)
 27

• Pakistan’s declaration that the entire convention was subject to the country’s
Constitution (without any more specific clarification as to what this would mean in
practice).
• Bangladesh’s declaration which states that it does not consider itself bound by
provisions of Article 2 and Article 9(2) of the convention insofar as they conflict with
Shari‘ a law. These two Articles, which define the rights of women under the
convention, are the very essence of the text.
• Egypt’s reservation with regard to all of the provisions of Article 16 on marriage and
related rights.

Faced with an obviously serious situation that, by the UN’s own analysis, the object and
purpose of the convention was being undermined by reservations and declarations, the
Secretary General asked for the views of states parties. Only 17 of the then 93 states
parties replied and only eight (less than one in ten states parties) argued, in line with the
text of the convention, that incompatible reservations were unacceptable.

The reason behind the lack of input from 80% of the states parties of the time could
possibly be explained by the view defended by Turkey that “the Convention is seen to
represent a dynamic process in attaining a common ideal.”55 While this approach may
well be perfectly laudable and defensible, it raises the question of whether a text whose
spirit is more important that its letter should be described as a “law” or something else? It
hardly seems credible to have a binding law on prevention of discrimination which
permits reservations that, “if put into practice, would inevitably result in discrimination
against women.”56

If, as seems to be the case, the silence of the majority of states parties is in line with the
position taken by Turkey, the norm that is being created here is one which does not treat
the convention as a “law” in the ordinary meaning of the word. This is backed up by
comments by Austria, which raised concerns about the normative effect of such

55
Clarke, B, op cit, p 285.
56
United Nations Treaty Collection, Declarations and Reservations to the Convention on the
Elimination of All Forms of Discrimination Against Women, United Nations, Treaty Series, vol.
1249, p. 13 – Comments by Sweden on the reservations by Thailand, Tunisia, Bangladesh and
Brazil.
 28

reservations in its objections to those of Pakistan, commenting that “a general

reservation of this kind […] contributes to the undermining the basis of international
treaty law.”57 Sweden58 similarly referred to reservations made by Indonesia with regard
to the CRC using exactly the same language and complained of identical problems with
the reservations of Qatar, Iran, Malaysia and Saudi Arabia.

The abovementioned negative comments made by Austria and Sweden regarding the
nature of the reservations were followed by declarations by each country that they were
not obstacles to the entry into force of the convention between them and the reserving
states. Similarly, “in their comments to the Secretary-General, Spain and Portugal both
identified certain reservations that they found incompatible with the object and purpose
of the Convention. But neither state formally objected to any of these reservations.”59 It
appears inconceivable that, in any other legal environment, countries would enter into a
binding agreement where they overtly recognised that other parties to the instrument in
question had significantly undermined the object and purpose of that agreement. Or, to
put it more cynically, “[i]t seems unlikely that parties would be this phlegmatic about
either the fragmentation of contractual treaties, or the entering of major reservations of
such treaties, since in both cases their obligations would be directly affected.”60 This
analysis strongly suggests that the very nature of the “law” that is created by the
convention is fundamentally different from law both in the domestic realm and other
aspects of the international realm.

The reason why Austria, Portugal, Spain and Sweden accepted what they described as
illegal and damaging reservations can only logically be explained by lack of injury
caused to them by the reservations. They must have considered that refusing to enter
into the agreement with the reserving countries and possibly undermining the entire
convention as being greater than the zero cost of countries on the other side of the
planet possibly not giving their own citizens the full range of rights as envisaged by the

57
United Nations Treaty Collection, Declarations and Reservations to the Convention on the
Elimination of All Forms of Discrimination Against Women, United Nations, Treaty Series, vol.
1249, p. 13.
58
Multilateral Treaties deposited with the Secretary-General, Status as at 31 December 1991,
United Nations, New York, 1992, p.204.
59
Clark, B, op cit, p 287.
60
Clark, B, op cit, p 317.
 29

convention. The willingness, on the part of states that were clearly committed to the
convention, to give up on core elements of the instrument and accept reservations that
they believed would almost certainly lead to discrimination, underlines again the risks
that the norms of behaviour towards to content of such conventions may outweigh and
undermine the legal normative value of their text. With even the strongest supporters of
CEDAW prepared to accept the undermining of its object and purpose, we have
universal practice among ratifying states (90% of the membership of the UN) treating the
convention as a declaratory code of practice rather than binding law. Such disregard for
the principles of the convention can only serve to minimise reputational cost of non-
compliance – one of the few concrete incentives to comply. This issue would not arise if
the text did not have the status of binding international law.

The fact that, with regard to both the CRC and CEDAW, no formal objection61 has ever
been made by a country in relation to a reservation or declaration of neighbouring or
nearby country is also worthy of note. Mexico did not object to reservations made by
Brazil, which were objected to by European states, and the European states which
vociferously objected to reservations by Arab countries, did not mention reservations
aimed at maintaining discrimination in the succession procedures in the royal families of
the United Kingdom and Belgium.

Bearing in mind:
• the fact that the vast majority of countries did not respond to the Secretary General’s
request for comments on the number and seriousness of reservations in CEDAW;
• the open-ended and unspecific nature of some of the reservations (Egypt’s
reservation on Article 2, for example) that were accepted implicitly or explicitly by all
states parties;
• that the countries that did respond, and who complained directly about the
reservations in question, made convincing cases that there were reservations that
were incompatible with the object and purpose of the convention (and therefore
illegal under the Vienna Convention on the Law of Treaties as well as under the
convention itself) but then went on to accept them;

61
Having examined all of the official comments by states regarding reservations on the CRC and
CEDAW, I was unable to find a single instance of an objection being raised by a neighbouring or
nearby country.
 30

the norms of state practice that are being created are some considerable distance from
the stated goal of the putatively binding international treaty, namely to “condemn
discrimination against women in all its forms.”62 It seems reasonable to suggest that
giving the convention the credibility of being referred to as “binding international law”, but
failing to treat it as such, does not serve a useful practical function. If the same text was
referred to as a “declaration” (or something similar), these problems could be avoided,
allowing a more coherent implementation of the rights contained therein.

Similar problems have also occurred with regard to the Convention on the Rights of the
Child. Some objections were more forthright (although not more clear). For example,
Denmark declared the reservations of Brunei and Saudi Arabia to be inadmissible under
international law but nonetheless stated that the convention “remains in force in its
entirety”63 between itself and both countries. However, as Denmark must surely realise,
countries cannot be bound by rules to which they did not agree, and therefore this
statement is no more legally valid than the original reservations that they objected to.
No efforts appear to have been made to resolve this issue, again raising questions as to
how seriously states treat this convention as law.

Varying approaches – trade and human rights

The objective here is not to draw inferences from the fact that human rights treaties are
different from trade treaties. Rather, the issue is the approach taken in both instances.
The difference between the way in which human rights treaties are dealt with compared
with how the GATT has been implemented clearly demonstrate a two-tier system, which
places the norms of trade law on a higher level than human rights treaties. This appears
to demonstrate, yet again, state practice with regard to human rights treaties in general,
and reporting-based treaties in particular, that is at variance with their status as “binding
international law” and their efficacy as normative influences. The following are some of
the key differences between WTO dispute resolution and human rights treaties.

1. Ease of bringing disputes

62
Article 2 – one of the articles subject of open-ended reservations.
63
United Nations Treaty Collection As of 9 October 2001, Declarations and Reservations
 31

Conventions such as the ICCPR, CEDAW and CRC have a reporting mechanism and no
formal and coercive means of insisting on application of the rules contained in them.
Even where individual petitions are possible, there tend to be significant backlogs. As of
1 July 2005, the backlog of cases under the Optional Protocol of the ICCPR was 348,
which appears to be a cause for celebration as, according to Eric Tistounet,
Representative of the High Commissioner for Human Rights, this indicates “the success
of the individual complaint procedure.”64 These backlogs contrast starkly with the
principle established in Article 9 of the ICCPR for trials to take place “within a reasonable
time.”

Similarly, under the ECHR, some cases have taken up to several years to decide. For
example, the case of Ireland versus United Kingdom was referred to the European Court
of Human Rights on 16 December 1971 and the judgment was made on 18 January,
1978.

These backlogs and delays stand in stark contrast to the WTO dispute resolution
process, which has a deadline of one year, or one year and three months in the event of
an appeal.65

2. Margin of appreciation

In cases where an international court can make a ruling on a complaint on a breach of a

human rights treaty, state sovereignty is given a greater weight than in the WTO,
indicating a difference of approach to human rights generally, when compared with trade
law. The European Court of Human Rights has developed a doctrine known as the
“margin of appreciation”, where it assumes that, in difficult circumstances, sovereign
governments “are in principle in a better position than the international judge to

64
Tistounet, E, Opening address by Mr. Eric Tistounet, Representative of the High Commissioner
th
for Human Rights to the 84th session of the Human Rights Committee, 84 Session of the
Human Rights Committee, 11 July, 2005.
65
World Trade Organisation, “Dispute Settlement System Training Module”, 2003. Chapter 6.
Available online at
http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/intro1_e.htm (last visited 25
August, 2006).
 32

assess”,66 the best policies to employ, even if this means breaching the letter of human
rights law. While states are free (within limits) to infringe on the letter of human rights law
in this way, they do not have the same rights under the WTO. In the WTO dispute
resolution procedure, as shown in a variety of cases, “if an alternative [less trade
restrictive] measure which it could reasonably be expected to employ” 67 is available to
the state involved, it will lose its case.

3. Number of state vs. state complaints in human rights treaties compared with in
the WTO

Approximately 20 cases (out of 40,000)68 have been brought on an interstate basis

through the ECHR, and are even rarer under the ICCPR. In its first nine years of its
existence, the WTO handled about 300 cases, or twice as many interstate complaints
per year as the ECHR in its entire existence of over half a century. This strongly
suggests a greater priority for governments for trade law above human rights treaties.

4. Reservations

There is a quite significant difference in the way the WTO treats reservations. Article XVI
of the Agreement Establishing the World Trade Organisation is very clear: “No
reservations can be made in respect of any of the provisions of this Agreement.” The
contrast with, for example, CEDAW, as described above, could not possibly be starker.

5. Enforcement

The right to individual petition in the CEDAW is one of the more sophisticated options
available in the enforcement of international human rights obligations. However, even

66
See Handyside vs. United Kingdom (A-24, 12 December 1976), Paragraph 48 and Open Door
Counselling and Dublin Well Woman Centre (A-246, 29 October 1992).
67
United States - Section 337 of the Tariff Act of 1930, 7 November 1989, BISD 36S/345 and
Thailand – Restrictions on importation of and internal taxes on cigarettes, DS10/R – 37S/200. 7
November 1990.
68
United Nations High Commission for Refugees, “Pamphlet No. 7 Minority Rights under the
European Convention on Human Rights”, 2001. Published online at:
http://www.unhchr.ch/html/racism/minorpam7.doc (last visited 28 July 2006).
 33

this is considered by some parties as being of limited legal value. As the British
Parliament Committee on Human Rights reported, because “[t]he UN monitoring
committees which […] receive individual petitions from citizens are not courts, and
cannot award damages, or produce a legal ruling on the meaning of the law, the
practical value to the individual UK citizen is unclear.”69

There was a certain similarity between enforcement (or lack thereof) of the GATT (pre
WTO) and of human rights conventions. For example, it was possible to block the
formation of panels (similar to not signing up to an optional protocol on individual
petitions) and fail to implement the panel recommendation, similar to the way states can
ignore unfavourable reactions of UN committees to periodic reports.

The normative and reputational damage of non-compliance with adverse rulings were
insufficient to make states consistently comply to a satisfactory level with the GATT
dispute resolution system. As a result, the judicialised WTO approach was adopted,
where countermeasures could be imposed. The result was that, whereas pre-WTO, 21
out of 53 EU/US disputes (39.6%) ended with full concessions, in the WTO era 21 out of
32 disputes (65%) between the same parties ended with full concessions.70 This
represents a significant increase in implementation. Failures by states to live up to
human rights obligations have not resulted equally forthright measures being taken for
human rights treaties – although the adoption (by at least some states) of OPs creating
individual complaints procedures could be considered somewhat analogous.

6. Hierarchy of law

The WTO agreements are simply another piece of international law and, “Article 23 of
the DSU71 does not and cannot prohibit states (who are WTO members [sic]) seizing
other jurisdictions, such as Human Rights fora, and requesting an assessment of the

69
House of Lords House of Commons, “Joint Committee on Human Rights – Eighth Report”,
Session 2005-2006, Appendix 3.
70
Helmedach, A and Zangl, B, “Dispute Settlement under GATT and WTO: An Empirical Enquiry
into Regime Change”, Paper prepared for the Fifth Pan-European International Relations
Conference Constructing World Orders, The Hague, September 9-11, 2004, p 11.
71
Dispute Settlement Understanding.
 34

compatibility of a trade measure with human rights obligations.”72 While this is true, it is
obvious that such an assessment would not normally have the force of law and, if
options other than the one chosen could reasonably (based on the WTO panel’s
assessment) have been taken, the country would still lose its case. For example, in
Thailand-Cigarettes, Thailand’s request for input from the World Health Organisation
(WHO) resulted in unequivocal evidence from a UN body that opening the tobacco
market in Thailand would result in significant negative health impacts, and that these
would fall disproportionately on women and children.73 As measures were in place in
other countries which, in the WTO panel’s opinion, could reasonably have been taken by
Thailand, and which were less trade restrictive, the ruling went against Thailand, which
was forced to open its market.

In the current framework, for a human rights treaty to be allowed (by a WTO panel) to
trump the WTO agreement, there would first need to be a body that could make a
judgment, secondly it would need to be able to make a judgment quickly enough to fit
the WTO’s timescales and thirdly, a less trade-restrictive alternative (a designation to be
made by the WTO and not the human rights body) could not be available.

Summary

It seems clear from the examples above that the approach taken to reservations in
reporting-based human rights treaties would be almost impossible to imagine in any
other sphere of international law. Similarly, looking at the approaches taken to
implementation of trade law compared with human rights law, it is difficult to come to a
conclusion other than that human rights law is not given the same degree of
significance. Overall, therefore, the general approach that can be seen in state practice
is one that does not accord a great deal of credibility to reporting-based conventions as
binding international law.

72
Marceau, G, “WTO Settlement and Human Rights”, European Journal of International Law, Vol
13, No 4, pp 753-814, p 768.
73
Thailand – Restrictions on importation of and internal taxes on cigarettes, DS10/R – 37S/200. 7
November 1990, Pparagraph 52.
SECTION 3 - CASE STUDIES – CRC AND CEDAW

Having seen above that the conventions that are the subject of this paper suffer from
weak foundations as law and have been had their credibility undermined by the
approach taken by states parties in their attitude to reservations and also the status
accorded to them in comparison with other instruments, this section looks at practical
implementation of aspects of the CRC and CEDAW. In particular, this section looks at
contradictions and weaknesses in drafting and how the preference for “cheap talk” rather
than concrete action appears to have resulted in a focus on creation of numerous,
sometimes duplicate, instruments, rather than effective implementation. The section
finishes with a brief look at the value of the conventions for NGO actions.

Convention on the Rights of the Child

The CRC was opened for signature, ratification and accession on 20 November, 1989
and entered into force on 2 September of the following year. As mentioned above, it has
now been signed and ratified by every UN member state except the USA and Somalia.
The text is very comprehensive, dealing with a wide range of rights (civil, political,
economic and social), some of which have been addressed elsewhere (such as in Article
40.a, which states that “no child shall be alleged as, be accused of, or recognized as
having infringed the penal law by reason of acts or omissions that were not prohibited by
national or international law at the time they were committed” which duplicates Article 15
of the ICCPR). It covers the whole range of rights, ranging from protection of the
physical integrity of the child, to freedom of thought, freedom of expression, freedom
from exploitation, the right to social security and so on.

There is no right of individual petition under the convention – states parties are obliged
to submit a report on their adherence to the convention two years after ratification and
every five years thereafter. Unlike major international conventions such as the Genocide
Convention and the various regional human rights conventions, it is difficult to imagine
infringements of the CRC of a magnitude which would have a negative impact on other
countries, with the exception, described below, of online child abuse images.

35
 36

Much of what is written regarding the CRC seems to focus on what supporters want it to
be rather than what it actually is. A former executive director of UNICEF is quoted as
saying that it is a “Magna Charta for children,”74 while others proclaim that it “elevated
the child to the status of an independent rights-holder.”75 Such claims are clearly and
demonstrably not accurate because the CRC does not confer rights, it is an undertaking
by states parties that rights will be conferred. Furthermore, it does not directly confer any
rights to a child (or its guardian) which it can exercise independently, so it hardly gives
the child the status of an independent rights-holder. Goodman and Jinks criticise the
view that, “the signalled states [and other important actors such as international NGOs]
apparently do not understand that ratification is meaningless and, as a consequence,
reward ratifying states for the very act of ratification.”76 However, the extravagant and
inaccurate claims as to the content and power of the convention do indeed suggest that
there is a surprising level of ignorance about its meaning.

Internal breaches

Article 3 lays down a fundamental and unequivocal principle of the convention – that, “in
all actions concerning children, whether undertaken by public or private social welfare
organisations, courts of law, administrative authorities or legislative bodies, the best
interests of the child will be the primary consideration.”

Article 1 of the convention defines a “child” as “every human being below the age of 18
years” (unless the relevant domestic law sets the age below this). Article 32.1 obliges
states parties to protect children from work which is physically, mentally, spiritually,
morally or socially harmful. These two provisions are fundamentally contradicted by
Article 38, which permits children to be recruited to the armed forces from the age of 15.
It is difficult to imagine how allowing children to be recruited to the army as being in line
with the provisions of Article 3, above. In other words, the convention is in clear
contravention of its own quite unambiguous standards. Such a serious lack of

74
Fottrell, D, “One step forward or two steps sideways? Assessing the first decade of the United Nations
Convention on the Rights of the Child” pp 1-14 in Fottrell, D, (eds), “Revisiting Children’s Rights 10 years of
the UN Convention on the Rights of the Child”, Kluwer Law International, The Hague, 2000, p 1.
75
Idem.
76
Goodman, R. and Jinks, D, “Measuring the Effects of Human Rights Treaties,” European
Journal of International Law, 14(1), 2003, pp 171-283., p 179.
 37

consistency undermines the credibility of the convention as a binding legal instrument

and suggests a lack of conviction on behalf of the drafters that they were creating
anything other than a statement of principles.

A further apparent breach of Article 3 by the drafters of the convention is described by

Deirdre Fottrell,77 who points out that not only are the rights of girl children greatly
overlooked by the convention but also that the fact that the contemporaneous Vienna
Declaration78 addressed the points that it neglected, which means that there was no
political barrier to their inclusion in the convention.

The management of the convention by the UN also appears to be governed by priorities

other than “the best interests of the child.” Clearly, with the country reports being the
sole implementation instrument available, it seems reasonable to expect that they would
be monitored diligently. In 2003, 245 initial, second and third reports had been received
and 206 were overdue including, extraordinarily, from 13 states who had ratified the
convention and yet not submitted even their initial report.79 In 2004, the backlog of
reports not processed by the committee was “around 50.”80 The level of under-
resourcing of the monitoring procedures of the convention is therefore quite obvious. In
2003, at a time when the committee had been scheduled to have received 451 state
reports, it had managed to process a little under 200. An “exceptional and temporary
measure”81 to have two committees (rather than one) reviewing state reports has now
been initiated. However, even if this results in the doubling of output, the work of the two
committees will still not be sufficient if all states parties comply with their reporting
obligations. In other words, while proclaiming the success of the convention in terms of
the number of countries ratifying it (“by 2000, over ten years after its adoption, almost
every country in the world has signed and agreed to be bound by the provisions of the

77
Fottrell, D, op cit, pp 10-11.
78
United Nations General Assembly, Vienna Declaration and Programme of Action, Document
A/Conf 157/23, 12 July 1993.
79 nd
United Nations Press Release, “CRC 32 Session: Committee members and government
representatives review procedures”, 30 January 2003.
80
United Nations Press release, Committee on the Rights of the Child holds discussion with
states parties to Convention on the Rights of the Child”, 23 January 2004.
81
Homepage of the Committee on the Rights of the Child –
http://www.ohchr.org/english/bodies/crc/index.htm, last visited 8 July 2006.
 38

Convention”82), the UN itself clearly does not expect compliance, even on the procedural
point of submitting reports.

The only other possible explanation for its current monitoring of country reports is that
the UN is happy to continue with its inadequate level of monitoring. The fact that (see
below) the committee monitoring CEDAW had already experienced similar problems
before the Child Rights Committee had even been created (meaning that the UN
authorities and national negotiators must have been aware that this problem was going
to develop) appears to confirm the suspicion that the UN and states parties are content
to accept this deviation from the stated (and “legally binding”) aims of the convention.

Again, it is difficult to see how this level of failure of the very core of a very limited
monitoring mechanism could be in line with Article 3 of the convention, raising the
serious suspicion that the repeated references by the UN and others to the CRC as
“binding international law” are more based in public relations than fact.

Case Study - Cheap and prolific talk – Online Child Abuse Images

Detractors of such instruments argue that they are “cheap talk” – it is easier join a
cacophony of voices claiming to be doing something positive than silently sit in isolation
enduring the suspicion of inaction. This case study suggests that “cheap talk” can serve
very effectively to hide inaction and even breaches of existing international legal
instruments.

One of the most striking aspects of the CRC is the way in which it deals with sexual
abuse of children. The text is simple and comprehensive in that it obliges (in Article 34)
states parties to take “all appropriate national, bilateral and multilateral actions to prevent
the inducement or coercion of minors to take part in any unlawful sexual activity,
exploitative use of children for pornography or other unlawful sexual practices and the
exploitative use of children in pornographic performances and materials.” Despite being
one of the few child welfare issues which have a cross border impact (as described in

82
Office of the United Nations High Commissioner for Human Rights, “Special Rapporteur on the
sale of children, child prostitution and child pornography - Background to the mandate”, available
at http://www.ohchr.org/english/issues/children/rapporteur/index.htm (last visited 8 July 2006).
 39

the introduction, above) and despite being an industry worth up to three billion US
dollars per year,83 the Committee for the Rights of the Child informed the author that the
issue of online child abuse images has never been raised in the context of the CRC, by
either an NGO highlighting an ongoing domestic problem nor a national government
complaining about an international problem.84

In 1996 (six years after the entry into force of the CRC), one hundred and twenty-two
states parties to the CRC bound themselves (again) through the Stockholm Declaration
and the Agenda for Action (at the First World Congress against the Sexual Exploitation
of Children) to undertake national action plans up to the end of the year 2000 to deal
with sexual exploitation of children. Insofar as the creation of national action plans can
be considered an “appropriate national action”, they were already bound to do this by the
CRC. However, the NGO ECPAT reports that “the majority of State Parties have ignored
the commitments made at the World Congress.” 85 In fact, only 29 complied. In keeping
with this failure to take all appropriate bilateral and multilateral actions to deal with this
problem, the international community managed to organise only one further World
Congress on this topic.

Faced with the increasing profile of online child abuse in the media, the reaction in the
UN was not to demand or help coordinate the obligatory bilateral and multilateral actions
needed to prevent this abuse, but rather to promulgate even more “binding international
law.” Here again, we see what can only be perceived as disinterest in seeing Article 3 of
the convention implemented effectively. Instead of promoting positive and concrete
action, despite a vast amount of best practice experience being available regarding
effective measures that could be taken (a simple hotline procedure introduced in the UK
resulted in the proportion of UK-hosted child abuse images reported in that country

83
Saytarly, T, “Fighting Child Pornography” published at http://www.crime-
research.org/library/Saytarly_nov.html - undated.
84
However, Canada did report on its efforts to solve a problem that arose between periodic
reports. See Canada, Second periodic report of States Parties due in 1999, 3 May, 2001.
85
ECPAT International, “Looking Back, Thinking Forward”, Heinemann International, Bangkok,
2000, quoted in Varghese, S, “Towards the Elimination of the Commercial Sexual Exploitation of
Children”, The Human Rights Databank, Vol. 7, No, 4, 2000.
 40

dropping from 17% of the overall total to 0.4% of reported incidents.86 The rest of the EU
has now implemented similar procedures and with broadly similar results), it produced
the Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography (opened for signature on 25 May
2000) which added absolutely nothing that a diligent interpretation of the main
convention would not already have already covered.

The United States has signed and ratified the OP, while the Russian Federation has
signed and ratified the main convention. Japan has signed and ratified both. In the first
half of 2006, United Kingdom hotline (the Internet Watch Foundation – IWF), stated that
72% of online child abuse images (on pay per view sites) reported to them were based
in either the USA or Russia, while 85% of free sites were based in either the USA,
Russia or Japan.87 The prominence of the USA and Russia in IWF statistics has
remained constant, regardless of ratification of the UN conventions, while Japan
ironically came to prominence in the period between signature in 2002 and ratification in
2005. Indeed, the proportion of free child abuse sites based in Japan that were reported
to the UK hotline increased exponentially in the three years leading up to ratification by
Japan of the Optional Protocol.

14
60

12 50

10 40
8 30
6
20
4
10
2
0
0
Year Year Year 6 Months
2003 2004 2005 2006
2003 2004 2005 2006

Proportion of child abuse images Proportion of child abuse images

reported to UK hotline traced to Japan. reported to UK hotline traced to the
Japan signed OP on child pornography USA. The USA signed & ratified the OP
in 2002 and Ratified in 2005. on child pornography in 2002.

86
Internet Watch Foundation Press release, “Pipex joins IWF to promote a safer online
experience”, 19 October, 2004.
87
Internet Watch Foundation, “Record breaking 6 months for Internet Watch Foundation, 25 July
2005.
 41

At approximately the same time as the OP was being negotiated, the Council of Europe
Cybercrime Convention88 was also being drafted. Article 9 of that convention, opened for
signature in 2001, places obligations on states parties to ensure that production,
distribution, procurement and possession of child abuse images be criminalised. Bearing
in mind that there was no country in the world that, through the CRC or its OP was not
obliged to do this already, the inclusion of this article seems somewhat superfluous.
What is even more curious is that the Cybercrime Convention expressly permits
derogations, allowing states parties to permit the procurement of child abuse images
(“child pornography”) “for oneself or another and possessing child abuse images on a
computer or computer-data storage system.” Expressly allowing this derogation could
hardly be considered in line with Article 34 of the CRC requiring that “all national,
bilateral and multilateral actions” to prevent the exploitative use of children for sexual
activity nor Article 3 which requires that “in all actions concerning children […] the best
interests of the child be taken into account.”

Similarly, it appears to be in direct contravention of Article 9 of the OP which requires

states parties to “adopt or strengthen, implement and disseminate laws, administrative
measures, social policies and programmes to prevent the offences referred to in the
present Protocol.” Allowing individuals to acquire child abuse images is clearly likely to
encourage, rather than prevent, the offences listed in the OP.

Due to the slow take-up of this convention, almost all signatures and ratifications will
happen or have happened after signature/ratification of the Optional Protocol and the
main CRC. As the Cybercrime Convention is therefore both more specific and later in
time, it would normally be assumed in international law89 to have legal precedence over
the CRC and its OP. This confusion has a real world impact. For example Armenia
amended its criminal code (with UN assistance) in 2006 to comply with the Cybercrime

88
Council of Europe Convention on Cybercrime (CETS 185) opened for signature on 23
November 2001, entry into force 1 July 2004
89
Under Article 30 of the Vienna Convention on the Law of Treaties.
 42

Convention and CRC Optional Protocol and availed of derogation established by the
Cybercrime Convention not to criminalise possession of child abuse images.90

Parliamentary questions asked in the British and Belgian parliaments regarding the
international actions taken when police forces become aware of child abuse websites in
other countries demonstrate the way in which even developed countries treat their
obligations to take all bilateral and multilateral actions in this field. The British Minister
openly admitted that, as regards requests to other countries to take appropriate actions
to have this material taken offline, that “no such requests have been made by the
Foreign and Commonwealth office”91 while the Belgian minister explained that reports
are passed on but that the authorities “rarely, if ever,”92 find out if the reports are acted
on. Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful
Acts explains in Article 2(b) “there is an internationally wrongful act of a state when
conduct consisting of an act or omission constitutes a breach of an international
obligation of a state.” It seems more likely that the ministers are simply unaware of their
international legal obligations than they are openly and unashamedly admitting to
breaching international law.

If these examples are indicative of the level of awareness of the CRC and its OP among
European ministries, it would suggest both a very low level of respect for the instrument
as “binding law.” It is also interesting to note that the question was answered by two very
different ministries (the Belgian question being answered by the interior minister and the
British question being answered by the foreign ministry), lending weight to the argument
above that range of ministries responsible for children’s issue is so wide as to make
normative impact is much weaker than would be the case in a more focussed
instrument.

90
Article 265(2) of the Armenian Criminal Code establishes production and distribution of such
images as a crime but not possession.
91
United Kingdom Parliament, Hansard (Verbatim Report) 14 December 2004. Available at
http://www.publications.parliament.uk/pa/cm200405/cmhansrd/vo041214/text/41214w21.htm.
92
Question no 636 by M. Roel Deseyn of 31 May 2005 to the Deputy Prime Minister and Minister
of the Interior. The response was “Nos services de police ne reçoivent que rarement voire jamais
de feedback par rapport à leurs denunciations.”
 43

Yet another replication can be found in ILO Convention 182 on Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour of 1999. This
convention includes a requirement for the prohibition on the use, procurement or offering
of a child for prostitution or child pornography. Of the four headings listed in Article 3 of
the ILO Convention, two are covered fully and explicitly by the CRC, two are covered
partly and explicitly by the CRC and the remainder would be understood by a diligent
reading of the CRC to be covered implicitly. Duplicating, as it does, the most widely
ratified UN human rights instrument, it is worrying to note the apparent lack of irony
intended by Human Rights Watch when it applauded ILO Convention 182 as achieving
“the fastest pace of ratification in ILO history” representing a “global consensus.”93

In short, there are four international legally binding instruments prohibiting the same
activity in different ways, in addition to the Stockholm Declaration, which requires
specific domestic action plans. All of these instruments involved a great deal of
diplomatic time and effort, and attracted a great deal of publicity, lauding the massive
steps forward in protecting children. For example, the Cybercrime Convention was
praised by the UK Guardian newspaper for outlawing computer-assisted crimes such as
online fraud and child pornography.94 Considering all of the “binding instruments”
adopted in the meantime, the quotation attributed to one delegate at the
abovementioned World Conference in 1996 that there should be “fewer words and more
action,” 95 appears to sum up the failures of implementation of the CRC with regard to
child abuse.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

This instrument was adopted by the United Nations General Assembly (Resolution
34/180) in 1979 and was opened for signature in the following year. It now has 183

93
Human Rights Watch Report, 2001, http://www.hrw.org/wr2k1/print/html/children.htm (no page
numbers in online edition).
94
Left, S, “Thirty Countries Sign Cybercrime Treaty”, The Guardian, 23 November, 2001.
Available at http://www.guardian.co.uk/internetnews/story/0,,604964,00.html (last visited 9 July,
2006.
95
Harvey, R, “Fewer words and more action: Evaluating the progress made in ending the
commercial sexual exploitation of children”, ChildRIGHT, issue 184, March 2002.
 44

states parties, over 90% of the membership of the UN, of which the majority ratified the
convention within the first ten years of it being opened.

As with the CRC, there is no procedure whereby countries or individuals can petition the
committee. However, there is an OP, adopted by the UN General Assembly in 1999,
which entered into force in December 2000 which allows for individual petitions. There
are 79 states parties to the OP (as of July 2006), but have only been three decisions on
individual complaints, two of which ruled that the complaint in question was inadmissible.
Provided that all local judicial procedures have been exhausted (a standard requirement
in such instruments), individuals or groups of individuals can submit complaints to the
Committee. In addition, the OP permits the committee to carry out investigations into
“grave or systematic” breaches of CEDAW rights. While it is commendable that 79
countries have signed and ratified the OP, this number represents only 43% of the total
number of CEDAW states parties. Bearing in mind the obligation under Article 2 of the
main convention to take all appropriate measures to combat discrimination, this 43%
appears to represent countries for which ratification represented a real commitment
(reservations notwithstanding). The remaining 53% appear to find the prospect of
external investigation of alleged and locally unresolved serious breaches of the
convention unacceptable. Despite understandable sovereignty concerns, this would
suggest that over half of the countries that ratified CEDAW did so out of expressive,
rather than instrumental, motives.

Internal breaches

Extensive delays (described in more detail below) in dealing with the states parties’
reports can be construed as contrary to the spirit of the convention. The longest the
committee can meet is over a two-week period, during which time it can process
approximately ten reports. If all of the countries currently party to the convention
diligently submitted their reports on time, this would mean that the Committee (working
40-hour weeks) would have one hour and 46 minutes per report. For shorter reports, this
would work out at approximately two minutes per page, but for longer reports, like the
fifth Canadian report which had 252 pages, this would mean 25 seconds per page.96 As
one commentator pointed out, “noncompliance [sic] with the reporting requirements

96
UN Document CEDAW/C/CAN/5.
 45

ironically is the only thing saving the overworked CEDAW from a complete
breakdown.”97

The limit on the amount of time available to the committee is set by Article 20 of the
convention, which expressly states that it may not meet for more than two weeks per
year. Whether this was an attempt to scupper the treaty (which seems unlikely) or an
attempt to save money for the UN, the fact remains that the national negotiators inserted
this text which appears to have little in common with the spirit of an instrument which is
supposed to legally oblige states parties to take “all appropriate measures” to fight
discrimination. If the states involved in drafting the convention considered state reporting
to be an appropriate measure to fight discrimination, limiting the committee’s ability to
undertake report evaluation most certainly is not appropriate.

There has been extensive criticism of the preamble to the convention as “being
considerably closer to that of a political declaration than that of an international treaty”,98
with the United Kingdom reportedly describing the text as “inappropriate and
unprecedented.”99 The preamble touches on apartheid, colonialism and even nuclear
disarmament, so this criticism does seem justified. Failure to provide a focussed
preamble arguably makes the object and purpose of the convention less clear and
therefore less achievable, making it less able to fulfil the practical demands of Article 2.

This lack of clarity is obvious when one compares the text of CEDAW with that of the
Convention on the Elimination of Racial Discrimination (CERD). Whereas Article 7 of
the CERD requires parties to take “immediate and effective measures, particularly in the
fields of teaching, education, culture and information”, CEDAW requires parties in Article
5(a) “to modify the social and cultural patterns of conduct of men and women, with a
view to achieving the elimination of prejudice.” The vagueness and immeasurability of

97
Donner, L.A., “Gender Bias in Drafting International Discrimination Conventions: the 1979
Women’s Convention Compared with the 1965 Racial Convention”, California Western
International Law Journal, No 24, pp 241-254, p 249 quoting Andrew C. Byrnes, The "Other"
Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination
Against Women, 14 YALE J. INT'L L. 1, 36-37 (1989).
98
Reanda, L, "The Commission on the Status of Women" in Alston P (ed) The United Nations
and Human Rights: A Critical Appraisal, (Clarendon, Oxford, 1995) 265-303, p 287.
99
Donner, L.A., op cit, p 246.
 46

compliance with this “obligation” mean that the drafters, by failing to follow the same text
already adopted in CERD, were quite clearly themselves falling short of the obligations
in Article 2 of their own convention – namely to take “all appropriate measures.”

Use of both conventions by NGOs

A common argument in favour of human rights treaties100 is that they provide valuable
tools for NGOs when lobbying for the rights that they enshrine. However, the link
between a need for NGOs to have something with which to lobby and these conventions
being considered binding international law instrument is rarely, if ever, made. When the
link is made, it is rarely enlightening. For example, one submission to a conference on
child protection argued that “[t]he reason for having a binding agreement on the
protection of children is first and foremost because children are particularly
vulnerable.”101

The framework and methodology for the protection of rights would still be intact even if
the instruments were not officially considered to be binding law. Where infringements of
human rights are egregious, it would almost take away from the strength of an NGO’s
argument to suggest that the infringing country should stop because it happened to have
signed up to a document that it obviously does not consider itself bound by. Similarly, for
less serious breaches, the legal nature of the document would hardly add a great deal,
particularly bearing in mind the state practice described above.

What is significant for NGOs is the fact that an internationally recognised framework for
the protection of human rights has been developed, creating an international vocabulary
within which lobbying can be undertaken and improvements to current practices can be
forcefully advocated. Having called these instruments “binding law” before state practice
then empties this designation of credibility appears to reduce rather than enhance its

100
See, for example, Jones, H and Wachala, K, “Watching over the rights of women”, Society and
Policy, Vol. 5, No. 1, pp 127-136.
101
Geißler, N, “Asserting the Rights of the Child Creating a Procedure for submitting individual
complaints pursuant to the Convention on the Rights of the Child”, Documentation of the
conference held in Berlin on 5th April 2001 - Kindernothilfe, Joint Conference Church and
Development (GKKE), pp 6-16, p 7.
 47

efficacy for NGOs, which are forced to try to cut through an added layer of “cheap talk”
by recalcitrant states before they can achieve their goals.

When organisations such as UNICEF proclaim that the CRC is the “first legally binding
instrument to incorporate a full range of human rights”, there is an obvious value for
regimes, particularly those who have attracted attention for human rights abuses, to
ratify, even if they do not intend to comply. This expressive value of ratification is
frequently reinforced by unwise lobbying by NGOs in favour of ratification, under the
apparent misapprehension that ratification is implementation. For example, the Working
Group on Ratification of the UN Convention on the Elimination of All Forms of
Discrimination Against Women (a coalition of over 100 US NGOs) promised in one
brochure,102 without any equivocation, that that “CEDAW will improve US women’s
access to decision making, will improve US women’s economic rights and will enhance
US laws on violence against women.” Such extravagant promises could only serve to
create or enhance the imbalance, whereby the lack of an enforcement mechanism
results in a situation where the expressive element of human rights treaties far
outweighs the instrumental element. In other words, it can only serve to increase rather
than reduce meaningless ratification.

Furthermore, it can also be the case that NGOs are simply incompetent and/or corrupt.
In its 1999 Country Report to the CRC Committee, not alone did the official Russian
report make no reference to the already significant problem of online child abuse images
in that country, but neither did the NGO shadow report.103. Even more bizarrely, the
Russian NGO coalition, in response to the subsequent 2004 report described Russia’s
online child abuse problem in the past tense, explaining that the adoption of a law in
2003 “put an end to the unacceptable liberalism of the Russian legislation concerning
the crime of use of children in the porno-business.” The fact that there was no

102
Rassekh Milani, L, “Human Rights for all”, Working Group on the Ratification of the UN
Convention on the Elimination of All Forms of Discrimination against Women”, Washington, 2001
103
Russian NGOs’ Alternative Report, “Comments to Russia’s Federal ‘Third Periodic Report on
Realization in Russian Federation of the Convention on the Rights of the Child in 1998-2002’”, 10
February 2003. Available online at:
http://www.crin.org/docs/resources/treaties/crc.40/Russia_ngo_report.pdf (last visited 2 August,
2006).
 48

discernable difference in levels of abuse reported104 between adoption of the law in

question (December 2003) and submission of the NGO report in February 2005 appears
to have escaped the NGO coalition’s attention.105

Summary

It has been shown in this section that some of the drafting of both the CRC and CEDAW
is not of a quality which one would generally associate with a normal legal instrument,
nor a text intended to be a universally legally binding instrument to protect fundamental
human rights. Furthermore, the implementation of the instruments appears to be
somewhat distant from what one would normally expect from laws ratified by many
states; it seems as though governments prefer to produce an apparently endless stream
of similar “binding” instruments rather than undertake the obligations contained therein.
Finally, it is evident that NGOs, often considered as crucial for the implementation of
these instruments do not necessarily need them to be “binding law” to achieve their ends
and sometimes do not use the conventions wisely. Overall, therefore, it appears clear
that these instruments are generally not treated as binding international law.

104
Internet Watch Foundation Press Release, “IWF reveals latest figures on child abuse content
online”, 20 July, 2006.
105
Russian NGOs’ Alternative Report, op cit.
SECTION 4 – EMPIRICAL ANALYSIS

Having looked at the theoretical basis for these instruments as binding international law
and state practice regarding their administration and implementation, this final section
reviews two key pieces of academic research to assess the “real world” effect of these
instruments. This will assess the extent to which domestic state practice reflects a
positive normative influence of the instruments. This section analyses research by Linda
Camp Keith106 and Oonagh Hathaway107 into the practical effects of ratification of human
rights treaties. These two scholars were chosen as their studies are very different. Camp
Keith’s research is narrowly focussed on the ICCPR and Hathaway’s research is very
broad. Similar research, such as that published by Hafner-Burton,108 is not analysed, as
it produced similar results. In order to provide balance, the section finishes by looking at
some of the criticisms that have been made to some of this research, in order to assess
its validity.

The fact that over three quarters of UN Member States are parties to the ICCPR, over
ninety percent are parties to CEDAW and ninety-nine percent have ratified the CRC is
cause for some satisfaction for the United Nations. The UN websites repeatedly stress
that the instruments are binding commitments to respect the rights contained therein.
CEDAW, for example, is described on the UN’s website as an “international bill of rights
for women.”109 However, as has been described above, while considerable efforts have
been undertaken to ensure the most widespread possible membership of such treaties is
attained, this approach has led to compromises with regard to the drafting of the
measures and the acceptance of reservations. These efforts at widespread ratification
have been undertaken on the assumption that ratification will lead to improved practices
in the widest number of states possible. However, detailed empirical research tells a
different story. This calls into question the value of making such compromises and raises

106
Camp Keith, Linda, “The United Nations International Covenant on Civil and Political Rights:
Does It Make A Difference in Human Rights Behavior?”, The Journal of Peace Research, Vol 36,
No 1, 1999, pp 95-118.
107
Hathaway, O, “Do Human Rights Treaties Make a Difference?”, The Yale Law Journal, Vol
111, 2002, pp 1935-2041.
108
Hafner-Burton, op cit.
109
See http://www.un.org/womenwatch/daw/cedaw/, for example.

49
 50

the question whether “laws” suffering from such attenuation, questionable state practice
and lack of enforcement are the most appropriate tools to spread respect for human
rights.

In her research on the ICCPR, Linda Camp Keith argues that a positive view of human
rights treaties would assume that parties to the covenant would be more respectful of
human rights than if they had not become parties, and that ongoing improvements could
be expected after ratification.110 Her research, which examines 178 countries over an 18-
year period, using four different measures of human rights behaviour, indicates small
differences in behaviour between parties and non-parties to the ICCPR but not, crucially,
in the practice of the states parties in the years after ratification. This leads her to
enquire whether extra-legal factors that have been identified as statistically significant for
state protection of human rights (scarcity of economic resources or civil war, for
example) should be targeted as a means of improving human rights practices instead of
overly-optimistic promotion of legal instruments.

Her findings were that there was a 0.83 positive difference (on a 7-point scale) with
regard to civil rights for all signatories of the ICCPR as compared with non-signatories in
relation to the Freedom House111 measure of civil rights and a 0.99 difference for the
Freedom House measure of political rights. Less significant differences were found when
using data from US State Department Country Reports (no statistically significant
difference) and Amnesty International Reports (minor differences)

However, the difference is vastly more significant (1.74 and 1.82 respectively112) for the
approximately one third of ICCPR signatories that have ratified the OP which permits
individual petitions. This more significant difference is duplicated for State Department
and Amnesty International Reports. Oddly, she did not investigate what the difference
between countries that had only ratified the main convention and those who had not.
However, extrapolating the figures based on the information she provides shows that the

110
Camp Keith, Linda, op cit, p 100.
111
Freedom House is an NGO that supports the development of democracy. Its research is
based on a checklist of ten political rights and fifteen civil liberties – using evidence of the
situation on the ground rather than on the existence or otherwise of legislation.
112
Camp Keith, L, op cit, p 103
 51

difference between non-OP states parties to the ICCPR and countries that have ratified
neither the ICCPR nor the OP is only 0.39 and 0.47 respectively.

To put it another way, there is a

6 significantly bigger difference in
5
behaviour between those states
4
Civil Rights that have ratified both the
3
Political Rights ICCPR and the OP than there is
2
1 between states that have
0 ratified the ICCPR only and
e

those who have not (0.39

es

P
P

ag

O
-O
rti

er

+
pa

av
R

compared with 1.74 for civil

n-

CP

CP
R
No

CP
IC

IC

rights and 0.47 compared with

IC

1.82 for political rights113). This

would strongly indicate that states parties which signed up only to the main ICCPR did
so out of expressive reasons, the additional commitment to implementing the measures
in the covenant made by those countries that ratified the optional protocol is clearly
reflected in these findings.

In the same vein, the statistics114 related to personal integrity rights show that, based on
State Department Country Reports and Amnesty International Reports, the better
practice displayed by ICCPR parties is negligible (0.04 and 0.06 respectively on a 5-
point scale). Furthermore, ICCPR parties that are not party to the optional protocol
actually display worse figures than non-parties once the OP parties are excluded.115
However, derogations were shown to have a negative impact on all of the rights
guaranteed under the covenant, and not just those that were subject of the derogations.
If derogating states are removed from the figures, the overall impact of the ICCPR for
non-OP parties becomes insignificant rather than negative.

113
ibid, pp 103-104 plus my calculations based on Camp Keith’s figures
114
ibid, pp 103-104
115
This is based on extrapolations of figures in Linda Camp Keith’s research and is not
highlighted in her paper.
 52

45 states parties were analysed in the ten years after ratification in order to ascertain
whether any improvements could be identified. Here again, differences were insignificant
between ICCPR ratifying states and non-ratifying states, with scores ranging from 0.02
to 0.31 on the 7-point Freedom House scale and 0.02 to 0.09 on the 5-point Personal
Integrity scale.116 This means that there was no discernable change in behaviour by
ratifying states. The only argument available that would give the ICCPR any credit – that
changes in behaviour pre-date ratification – raises the question whether it makes sense
to have an instrument which binds only after the subject no longer needs to be bound.
This logic obviously does not apply to states parties that have ratified the OP as this
reflects an ongoing commitment to be bound by the covenant.

These findings cast doubt on the value of the ICCPR (minus the optional protocol) as a
binding legal instrument. The reporting procedure is intended, according to Article 40 of
the covenant, to allow states parties to provide feedback on “measures they have
adopted which give effect to the rights” contained in the instrument. Yet, no significant
improvement in the ten years post ratification is recorded. If the value of the ICCPR is in
the years leading up to ratification, then the efforts of the committee should be focussed
on assisting states prior to ratification.

The overall outcome of this detailed, long-term research was that there is little or no
observable impact of the ICCPR, particularly for countries that did not ratify the optional
protocol. As an instrument for change, therefore, the ICCPR on its own has less
credibility when it is called “binding international law,” as state practice clearly shows that
parties do not consider themselves to be bound by it. Insofar as it is a stepping stone
towards more effective human rights implementation, for countries that also sign the first
optional protocol, it seems logical that more effective lobbying could be brought to bear if
recalcitrant countries were not given the “significant public relations tool [of] being a
party to the covenant,”117 unless they have ratified the OP.

Oonagh Hathaway finds (in line with Camp Keith’s analysis) that, “for the most part,
countries that have ratified human rights treaties have better human rights ratings than

116
Camp Keith, L, op cit, p 106
117
Camp Keith, L, op cit, p 112.
 53

those who have not.”118 However, cross checking her data using several different data
sources she fails to find any treaties that consistently lead to better practices.

She also finds that, in addition to general non-compliance problems, countries with poor
human rights ratings are sometimes more likely to have ratified certain treaties than
those with better ratings. This finding could be explained by the danger, mentioned in the
introduction to this section, that ratification without enforcement allows countries to
deflect criticism of their practices, even if they have little or no intention of adhering to
the obligations in the treaty. With regard to the ICCPR, she also finds that there is a
greater difference in respect for rights between states parties to the covenant who have
ratified the first OP and those who have not, than between states parties overall and
non-ratifying states.119

Overall, Hathaway’s figures produce consistent results which show that:

• There is little correlation between ratification of various international law instruments

and respect for the rights contained therein. Particularly in relation to the American
Convention, American Torture Convention and the African Charter, a negative
relationship can be clearly seen.120
• Those states with worse human rights ratings sometimes have higher rates of
ratification than those who have better ratings.121
• There is a clear correlation between ratification of treaty elements agreeing to
oversight of a country’s adherence to the rules of a convention and actual
adherence. This would strongly suggest that internalisation of norms is only
significant if the country has shown its commitment to the binding nature of the
instrument by signing up to external oversight.122

Counter-arguments - Empirical

118
Hathaway, O., op cit, p. 1935.
119
ibid, pp 1976-1979
120
ibid, pp 2016-2017
121
ibid, p 1977
122
ibid, p 1980
 54

Apart from the simple possibility that the figures are somehow inaccurate, Hathaway
provides three possible counter-arguments or explanations for her results. She argues
that perhaps some bodies, such as the Council of Europe and the Organisation of
American States (OAS), place obligations on parties that mean that their provisions are
either mandatory (and therefore resolved in advance) or superfluous – resulting in the
effects post-ratification effects being minimal. This may be true of the CoE (and, indeed,
her figures on the CoE tend to be less complete, due to a more narrow range of human
rights abuses carried out by signatories) but is not borne out by her own evidence of the
OAS.123

A further suggestion is that administrations have such a high degree of inertia that the
timescales used may not have been long enough. This argument appears very weak,
however, as it suggests that a government which is currently motivated to sign up to a
human rights treaty is less able or willing to implement it at that time than another
government several years in the future.

In their paper critiquing Hathaway’s work, Goodman and Jinks raise a variety of
problems with her methodology. They argue, inter alia, that “incorporation of human
rights norms is a process; treaty law plays an important role in this process,” 124 and that
there is nothing in Hathaway’s work to contradict this. In addition to their failure to
suggest when they think this process actually happens, they assume that “treaty law” is
the only way of supporting this process, rather than any other form of interaction. For
example, the Universal Declaration on Human Rights is not law, but has played exactly
the role that Goodman and Jinks appear to insist treaty law is essential for. Their
argument appears to be that the period during which the impact of treaty law has a
positive effect is longer than the several years post ratification that Hathaway examines.
However, it seems reasonable to suggest that the second decade post ratification will be
less influenced than the first – and Hathaway’s paper, like Camp Keith’s, strongly
suggests that the effect in the first years after ratification is not significant. If the influence
is pre-ratification then, as mentioned above, the efforts of the UN committees in
collecting and analysing post-ratification country reports appears misplaced.

123
ibid, p 1995.
124
Goodman, R, and Jinks, D, op cit, p 173.
 55

Goodman and Jinks rather speciously argue that choosing the moment of treaty
ratification as the moment from which to measure effects may not give accurate results
in a lot of cases. However, the same arguments could be used for choosing any time
during the negotiation, signature, ratification or implementation of legislation and do not,
in fact, play a significant role in the most important of Hathaway’s conclusions.

Similarly, it is indeed the case that using the measurement of “reported” human rights
abuses will not be accurate if there is limited correlation between the number of reports
and the reality of abuses.125 However, if this measurement was flawed in a significant
way for some countries, it would result in anomalous figures from one country to the
next, which does not appear to be the case. In a fascinating stretch of logic, they quote
one report126 which says that states do not ratify treaties that they do not agree with and
therefore, ratification must mean that there is better reporting of abuse after ratification,
resulting in the level of reported abuses increasing. Even more difficult find any basis for
is their argument that “lawyers and their clients” 127 refer to human rights abuses more
when codified in international law – increasing the level of reported instances of human
rights abuses. They do not explain why lawyers and their clients would wish to make
such common reference to instruments of no domestic legal bearing in most countries.
The fact that Ursula Kilkelly identified no examples of the Convention on the Rights of
the Child being used by lawyers in the European Court of Human Rights – even in cases
involving child abuse – seems to definitively disprove that argument.128

The weakest argument of Goodman and Jinks is most certainly that the UN
Commissioner for Human Rights has funds available to help with the reporting process
for periodic reports. However, the extent to which the UN can organise its own internal
management of reporting processes, let alone act as a catalyst for parties to particular
conventions to produce accurate reports, is debatable. How exactly could the UN, which

125
ibid, pp 173-175
126
ibid, p 176 quoting Heyns and Viljoen, “The Impact of the United Nations Treaties on the
Domestic Level”, HRQ (2001) 483, pp 487-488
127
ibid, p 176
128
Kilkelly, U, “The impact of the Convention on the case law of the European Court of Human
Rights”s in Fottrell, D, (eds), “Revisiting Children’s Rights 10 years of the UN Convention on the
Rights of the Child”, Kluwer Law International, The Hague, 2000. The only examples found were
in judgments and even those did not require the instrument to be law, but simply indicative of
widespread practice.
 56

has struggled and failed to devote enough resources to analysis of states’ periodic
reports, nonetheless be able to make such a perceptible impact on the reporting process
in each of the states parties?

Counter-Arguments Theoretical

They also argue that Hathaway’s analysis fails to explain all forms of non-participation. If
talk is so cheap, they ask why some countries do not ratify, or why do some ratify with
exceptions and reservations. However, this assumes that;

• all countries will act in the same way under the same circumstances, regardless of
political culture, processes or regime; and,
• there is no difference in political context from one country to the next.

It is easy to imagine that country A, where there is weak church influence and country B,
a country with a strong church influence, would sign up to the same convention with
relevance to, for example, gay marriage. Even if neither of them intends to change their
existing practices, there would be a strong political imperative domestically for country B
to insist on a derogation with regard to gay marriage to avoid costly and, in reality, utterly
pointless domestic objections. This phenomenon can be seen quite clearly in the Shari
‘a-based reservations to CEDAW. Furthermore, more developed countries can find it
easier to derogate from the few elements of a convention which they are not in
compliance with, in order to ratify without changing their internal rules at all. This would
also explain why more developed countries have more reservations with regard to the
ICCPR than the less developed ones.

Summary

With researchers such as Camp Keith, Hathaway and Hefner-Burton producing results
which strongly indicate both a lack of significant impact from human rights treaties and
also examples where the treaties have been used by recalcitrant states to deflect
criticism, it is difficult to argue that the third of the three criteria above (that domestic
state practice reflects the positive normative influence of the instruments) is met by the
reporting-based human rights instruments in question.
CONCLUSION

As global efforts to spread norms of respect for human rights, the treaties of the United
Nations are of very great significance. Consequently, it is crucial that they have the legal
form that is most likely to be effective in ensuring their implementation. None of the
analysis above places any doubt on the value of the norms that these instruments
contain. Instead, it questions the validity of the enthusiasm with which the UN, NGOs
and governments automatically give the instruments the status of binding law, with an
apparent belief that referring to them in this way automatically makes them more
effective.

It has been shown above that the very nature of reporting-based human rights
instruments raises doubts as to their suitability to be referred to as binding international
law. Far from inspiring more diligence on the part of UN member states and the UN itself
in drafting and monitoring the instruments, we have seen that the instruments display
weak, inappropriate and contradictory language, further undermining their credibility.
Even worse, all three conventions suffer from reservations to fundamental rights at the
very core of the instruments, such as the open-ended reservations of Bangladesh and
Saudi Arabia to Article 3 of CEDAW (the exercise and enjoyment of human rights and
fundamental freedoms on a basis of equality). The global acceptance of such
reservations (even if some countries used harsh words to condemn them before meekly
accepting them) is probably even more damning than the reservations themselves to
their status as “binding international law.”

The administration of the reporting process for the three instruments has also been
difficult and, in the case of CEDAW, has not been helped by a restriction included in the
text of the treaty itself on how much time can be spent on reviewing states parties’
reports. State practice, as shown by the child abuse case study suggests that these
instruments are treated as “cheap talk”, with the international community preferring to
prohibit the same behaviour four times with four different instruments rather than
producing one coherent international effort to deal with the problem bilaterally and
multilaterally (as required by the first of the four instruments, the CRC). Taking all of
these factors into account, the results of the empirical studies from Hathaway and Camp

57
 58

Keith, which indicate that human rights treaties generally (except where countries agree
to individual petition mechanisms) produce little measurable effect, hardly seem
surprising.

Several major conventions, such as the ECHR, the ICCPR and, more recently, CEDAW,
have evolved from being reporting-based instruments to giving individuals, via optional
protocols, the right to individual petition, producing effects and processes much more in
line with what one would normally understand as “law”. Indeed, again showing a gap
between respect for the main ICCPR treaty as law, as opposed to the ICCPR plus the
first optional protocol, “in contrast to its reluctance to criticize states parties during the
reporting process, the Committee has not hesitated in expressing its displeasure with
states that do not respond to an individual’s allegations or otherwise decline to take an
active role in resolving a case.”129

While the reporting-based treaties have certainly served as crucial stepping stones to
more rigorous respect of the rights in these conventions (according to the empirical
research) and condemnation of abuses, it seems clear that being treated as a
destination in their own right (being referred to as fully-fledged binding law) rather than
intermediate steps to more rigorously respected binding instruments is more likely to
slow down the process of countries moving towards acceptance of individual petitions
than speeding up this process. Categorising these instruments as “declarations” rather
than “binding international law” would be unlikely to undermine their normative influence,
nor would it do anything to decrease implementation by well-meaning states. What it
would do, however, is reduce the value as a refuge for countries under pressure to take
positive action on human rights, removing an opportunity to use empty words to replace
valuable deeds.

In summary, in the interests of minimising “cheap talk” and maximising respect for
human rights, the UN and NGOs should resist the temptation to claim that these
instruments are binding international law: something that their nature, their drafting and
state practice indicates that they are not. A reassessment and new appreciation of these
instruments as valuable guidelines for the creation of domestic legal norms and as an
important intermediate step to enforceable and enforced international law would serve to

129
Helfer, L and Slaughter, A-M, op cit, p 342.
 59

improve their impact and better achieve their undoubtedly laudable goals. On the basis
of the above analysis, there are strong grounds for believing that downgrading the legal
status of such instruments in the future will upgrade their effectiveness.

“International law cannot gather strength by isolating itself from the political realities with
which international relations everywhere are impregnated. It can only do so by taking full
account of the place that these realities occupy and measuring the obstacle that they
present.”130

130
De Visscher, C, quoted in Coplin, W, op cit, p 632.
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