, , , , , , , , , , ,

February 24, 2016 – Enforcement is at the heart of the credibility of any system of governance.  If States enter into commercial treaties and other agreements that include mechanisms of enforcement, the same kind of enforcement must be provided for whenever human rights treaties are negotiated and adopted. After all, human rights treaties are binding legal obligations and not mere pledges.  Enforcement may cost getting used to in the short-term, but good practices can become customary and then the “inconvenience” of enforcement will appear much less.

The rule of international law pacta sunt servanda (treaties must be implemented) means that States parties must take effective measures to ensure that treaties are enforced.  Failure to enforce the provisions of the International Covenant on Civil and Political Rights entails a violation of the good faith rule enshrined in article 26 of the Vienna Convention of the Law of Treaties and must have legal consequences as any other breach of an international obligation (ref: Chorzow Factory Case).  A duty of enforcement is implicit in every treaty, and every State party to a multilateral treaty has a legitimate interest — and a right — to see the totality of the treaty enforced by all States parties.

Government lawyers should devote their juridical skills to devising user-friendly means of enforcing human rights treaties and the rulings of human rights bodies, e.g. by making international human rights treaties part of directly enforceable domestic law, by enacting “enabling laws” that would would give domestic legal status to international human rights rulings, or by accommodating a “half-way house”, whereby rulings of international bodies would be received by the Foreign Ministry and immediately referred to a standing committee of Ministers who would decide which Minister would be entrusted with implementation. To claim that international law is not “self-executing” is a poor cop-out. It is precisely the responsibility of government — and its lawyers — to set up the legal and social mechanisms so that human rights can be promoted, protected and fulfilled.

Some government lawyers seem to understand their role as looking for escape clauses, loopholes or inventing abstruse interpretations of treaties and rulings of international bodies so as to weasel out of their legal — and ethical — obligations.  Law schools would do well to teach prospective government lawyers that they have a sacred trust to work for justice, and that justice cannot be de-coupled from human rights and human dignity. The “name of the game” is not to find clever ways of “beating the system” but to devise simple ways of implementation in good faith.

Some governments treat the rulings of human rights bodies as mere recommendations with no consequences. Experience shows that violation with impunity is not the exception but the rule. But why do other countries acquiesce in the erosion of the human rights regime? Report after report of the Human Rights Council and its Special Procedures land in the recycling bin.  Decisions and recommendations are filed away and forgotten — because there is no enforcement mechanism.  Yet.