Session 1: TREATY LAW

Session 1: TREATY LAW A treaty is a legal agreement between two or more countries and is a source of international law. Treaties can be entered into on a number of issues such as trade, delineation of borders, human rights etc Traditionally international law used to be defined as the law governing relations between nation states. 1 Since under this definition, international law did not regulate the human rights of individuals vis a vis the state of their nationality, that entire subject matter was deemed to fall within the exclusive domestic jurisdiction of each state. 2 Over the years, the doctrine of humanitarian intervention recognized as lawful the responsibility of one state to stop the gross maltreatment by another state of its own citizens. As a result, today we have an established principle of international law that a state may voluntarily limit its sovereignty by treaty ratification and thus internationalize a subject that would otherwise not be regulated by international law. For example, if one state concludes a treaty with another state in which they agree to treat their nationals in a humane manner and to accord them certain human rights, they have to that extent internationalized that particular subject matter. 3 A major catalyst for this development was the shock that world felt at the horrors of the Holocaust during World War II. The need to have legal instruments to deal with war crimes spurred the birth of human rights treaties. These concerns were first reflected in the Nuremberg War Crimes Trials (1945-1946) and the Convention on the Prevention of and Punishment of the Crime of Genocide (1948). Subsequently the Charter of the United Nations, and the Universal Declaration of Human Rights provided authoritative statements of international human rights norms. Eventually, in 1965 and 1966, The International Convention on the Elimination of All Forms of Racial Discrimination, the two International Human Rights Covenants- The International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights were adopted by the United Nations respectively to give effect to the aspirations of the Universal Declaration of Human Rights. Human rights treaty law therefore imposes obligations that are legally binding on any state that is a party to it. In this regard states parties to the treaties are voluntarily surrendering their sovereignty and submitting to themselves to international scrutiny as well as committing themselves to reordering domestic law and policy, as it touches on matters, which is the subject of the treaty concerned, according to universal and international standards 1 Buergenthal T. International Human Rights in a Nutshell. West Publishing Company. 2 Ibid. (1988) 3 Henkin, Human Rights and Domestic Jurisdiction. In T. Buergenthal, Human Rights, Internationakl Law and the Helsinki Accord 21 (1977). Cited in Buergenthal T. International Human Rights in a Nutshell.. 1

INTERNATIONAL HUMAN RIGHTS MECHANISM AND PROCEDURES I TREATY BODY PROCEDURES AVAILABLE ONLY IF THE STATE HAS RATIFIED THE TREATY. FUNCTION: a) To process periodical reports b) To deal with - individual - inter-state c) Interpretative comments e.g. general recommendations of CEDAW. INFORMAL PRACTICE OF ASSISTING TREATY BODIES IN ASSESSING STATE REPORTS IS BY NGOs SUBMITTING SHADOW REPORTS. 2

II SPECIAL PROCEDURES SPECIAL RAPPORTEURS APPOINTED BY THE COMMISSION ON HUMAN RIGHTS THEMATIC WORKING GROUPS CREATED UNDER THE SUB- COMMISSION ON HUMAN RIGHTS PUBLIC PROCEDURES AVAILABLE TO NGOS REGARDLESS OF RATIFICATION BY THEIR STATE. 3

INTERNATIONAL HUMAN RIGHTS LAW U.N STANDARDS UNIVERSAL DECLARATION TREATY LAWS : i. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) ii. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) iii. THE CONVENTION ON TREATY ON RACIAL DISCRIMINATION (CERD) iv. THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW) v. THE CONVENTION AGAINST TORTURE (CAT) vi. CONVENTION ON THE RIGHTS OF THE CHILD (CRC) 4

DECLARATION : e.g.) ON DISSAPPEARANCES ON VIOLENCE AGAINST WOMEN PRINCIPLES - ALTHOUGH INTERNATIONAL HUMAN RIGHTS LAW IS BETWEEN STACK PARTIES STRICTLY, IT HAS AN IMPORTANT EFFECT AND IMPACT ON THE RIGHTS OF CITIZENS. 5

THE BIRTH OF A TREATY (Treaty same as a convention or a covenant) 1. DRAFTING A LEGAL DOCUMENT AND MOBILIZING SUPPORT OF MEMBER STATES IN THE UN GENERAL ASSEMBLY TO HAVE IT PASSED. 2. SIGNING 3. RATIFICATION BY A MINIMUM STIPULATED NUMBER OF STATES 4. COMING INTO FORCE " TREATY " 6

SOURCES OF INTERNATIONAL LAW TREATY LAW - BETWEEN TWO OR MORE STATES OR IGO - TYPES : CLOSED TREATY OPEN TREATIES CUSTOMARY LAW - WIDELY OBSERVED RULES AND PRACTICE. GENERAL PRINCIPLES - INCLUDES RESOLUTIONS AND DECLARATIONS PASSED BY THE GENERAL ASSEMBLY. JUDICIAL DECISIONS - e.g.) BY THE INTERNATIONAL COURT OF JUSTICE AT THE HAGUE. 7

THE ARTIFICIAL SEPARATION OF HUMAN RIGHTS CIVIL POLITICAL SOCIO ECONOMY CULTURAL Negative No state investment of resources Justiciable Individual Positive Resource investment required Non-justiciable Group 8

BARRIERS TO WOMEN S HUMAN RIGHTS Public State Agents Civil Political rights individual Private non-state agents socioeconomic & cultural rights collective WOMEN MEN 9

UNIVERSAL DECLARATION UNIVERSALITY INDIVISIBILITY AND INTERDEPENDENCE COMBINES THE TWO SETS OF RIGHTS - e.g.) RIGHTS TO LIFE AND FUNDAMENTAL FREEDOM WITH RIGHT TO WORK, - TO EQUAL WAGES, - TO EDUCATION AND EQUAL RIGHTS WITHIN MARRIAGE AND SOCIAL SECURITY. IMPORTANT FOR WOMEN 10

MONITORING THE IMPLEMENTATION OF THE TREATY The implementation of the treaties is monitored by an independent expert committee established by the United Nations. These committees are also referred to as treaty bodies. For example, the CEDAW Convention is monitored by the CEDAW (Committee on the Elimination of Discrimination against Women), a committee composed of 23 experts who represent the range of fields of competence covered by the Convention, as well as equitable geographical distribution and principle legal systems. State Parties must submit periodic reports to these committees (every four years) that indicate the measures they have adopted to give effect to the provisions of the Convention, to be considered by the expert committee.. ROLE AND FUNCTIONS OF THE COMMITTEE The primary function of the Committee is to monitor State implementation of the Convention. It does this through the consideration of reports submitted by States Parties. After the review of the country concerned, the committee prepares a set of recommendations called the Concluding Comments. The Committee also formulates General Recommendations, which are interpretative comments on specific articles of the Convention. These general recommendations are one means by which the Committee addresses contemporary issues which the Convention does not expressly mention. For example, under the CEDAW Convention, there are to date, 24 General Recommendations GR 19: is concerned with gender-based violence against women GR 21: concerns equality in marriage and family relations. (article 16) GR 23: concerns the participation of women in public life. (article 7) GR 24concerns women s health (article 12) General Recommendations should be read along with the Conventions as they provide guidance to the States Parties on the implementation of the Convention and on what kind of information should be included in State Party reports. 11

RESERVATIONS Reservations to the CEDAW Convention Article 2(1)(d) of the Vienna Convention on the Law of Treaties 1969 (entered into force 1980) states that: reservation means a unilateral statement however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State Therefore, any indication (whether labeled a reservation, declaration or otherwise) that in ratifying, accepting or approving a treaty, a State aims to restrict the application of that treaty or certain provisions of it, will come within the catchment of reservation. Reservations are meant to be temporary Article 28 of the CEDAW Convention permits ratification of the Convention by States Parties subject to reservation(s) i.e. a formal declaration that the State does not accept as binding upon it, a certain part or parts of the treaty. Reservations, however are intended to be a temporary measure to allow States to implement the Convention progressively and take steps to remove any obstacles to the full implementation of the article(s) it has reserved. By Article 19 of the Vienna Convention 4, a reservation, which is incompatible with the object and purpose of the treaty, is not permitted. This principle is preserved in Article 28(2) of the CEDAW Convention, which precludes any reservation, which is incompatible with the Convention s object and purpose This can be interpreted to mean that reservations are not intended to be permanent. Rights are inter-related and indivisible and therefore rights for women cannot be permitted in a selective manner. For example, if women are denied equal rights during marriage and at its dissolution, or denying women full guardianship rights of children, by extension they are denied other rights such as self determination and equal participation in decision making in the family. Women who feel their rights within marriage are precarious, who fear for example being divorced by their husbands and losing their children in the process, will be inhibited from exercising their rights to self-determination. Cases abound of women who remain in abusive relationships, suffering a denial of a very fundamental human right to be free of degrading and inhuman treatment, because they do not have the same right as their husband to end the marriage. Although reservations are allowed in the treaty regime, one criteria that is raised as prohibiting reservations in the international debates on reservations (besides the broad one which states that no reservation should be made which conflicts with the object and purpose of the treaty) is that the reservation should not reinforce or promote a norm that has serious implications for women's advancement. By denying women the right to transmit citizenship to their spouses for example, the norm is 4 The Vienna Convention on the Law of Treaties 1969 (entered into force 1980) 12

being promoted that a woman s place in life, her destiny and domicile should follow that of her spouse. This is extremely outmoded and denies women full citizenship within their own country. By denying them equal rights in marriage and over their children a country is promoting a norm that women are dependants of their husbands and should be subordinate to them. The effects of such dependence for women are obvious. Note the pecuniary situations women find themselves in when they are divorced or abandoned by their husbands. Note too the incidence of wife beating, prostitution and trafficking among women. In this day and age we cannot continue to contribute to the private and public divide The CEDAW Convention was crafted over a period of seven years and much thought went into it to ensure that its substance will truly enhance women's status. Each article was considered to be essential for the fulfilment of rights under other articles. You can't push for employment without giving women right to education. Nor can you advocate and accept women's right to employment and education without ensuring right to self determination or ensuring elimination of discrimination that takes the form stereotyping women and men. So the Convention has to be implemented as a whole. Hence the CEDAW Committee consistently asks governments to detail their plans are for removing reservations. Recommendations of the UN human rights bodies to withdraw reservations There are resolutions of ECOSOC, the Sub- commission on the Prevention of Discrimination and Protection of Minorities, the Third Committee of the General Assembly and recommendations of the CEDAW Committee urging governments to review all reservations with a view to withdrawing them. Economic and Social Council Resolution 1993/14 para 3 "Requests states parties to the Convention on the Elimination of All Forms of Discrimination against Women to review regularly their reservations and make efforts to withdraw them in order to enable the full implementation of the Convention." Sub Commission on Human Rights resolution 2000/26 para 1 Encourages States to ratify human rights treaties without reservations and those States that have ratified human rights treaties with reservations to remove them as soon as possible Resolution adopted by the General Assembly (on the report of the Third Committee) 55th session, Agenda item 107 8 th February 2001, A/RES/55/70 para 6 Notes that some States parties have modified their reservations, expresses satisfaction that some reservations have been withdrawn, and urges States parties to limit the extent of any reservation they lodge to the Convention [of Elimination of All Forms of Discrimination Against Women], to formulate any reservations as precisely and as narrowly as possible, to ensure that no reservations are incompatible with the object and purpose of the Convention or otherwise incompatible with international 13

treaty law, to review their reservations regularly with a view to withdrawing them and to withdraw reservations that are contrary to the object and purpose of the Convention or that are otherwise incompatible with international treaty law; World Conference on Human Rights. Preparatory Committee, Fourth Session, Geneva 19-30 April 1993. A/CONF.157/PC/62/Add.13 27 April 1993, para 4(b) Recommends that (b) States parties should continually review the need for and desirability of their reservations to the Convention with a view to withdrawing them; There is also suggestion by the Fourth Meeting of Chairpersons of Human Rights Treaty Bodies that all treaty bodies "should urge States parties that have made reservations to undertake a regular review of the continuing need for, and desirability of, all such reservations. The results of these reviews should be reflected in each report submitted by the State party to the treaty body concerned and should be addressed by each treaty body in its dialogue with the state" A/CONF.157/PC/60/Add.4. 8 April 1993 This suggestion was made out of a concern at the number, nature and scope of the reservations that have been made to principle human rights treaties. (Ibid.) Conclusion The CEDAW Convention has a large number of reservations indicating that women continue to be discriminated against in all regions. This is in clear contrast to the growing trend in the practice of human rights that espouses the indivisibility and interdependence of human rights. The goal is all human rights for all. Clearly this can be interpreted to mean that reservations are meant to be temporary from the perspective of international customary human rights norms. 14

DISTINCTION AND LINK BETWEEN TREATIES AND WORLD CONFERENCE PLATFORMS/ PLANS OF ACTION TREATIES INTERNATIONAL LAW HENCE LEGALLY BINDING. THE TREATY PROVIDES A LEGAL FRAMEWORK FOR THE ACHIEVEMENT OF WOMEN S RIGHTS IMPLEMENTER IS THE STATE WORLD CONFERENCES PROGRAMME OF ACTION AND HENCE NOT LEGALLY BINDING IMPLEMENTER IS THE STATE EACH STATE S FULFILMENT OF OBLIGATION IS MONITORED BY THE CEDAW COMMITTEE THE TREATY PROVIDES RIGHTS WHICH ARE BASED ON PRINCIPLES, NORMS AND STANDARDS. FOR EXAMPLE, THE NORMS AND PRINCIPLES OF THE CEDAW CONVENTION ARE EQUALITY& NON-DISCRIMINATION STATE OBLIGATION NO STATE BY STATE REVIEW BUT ONLY A GLOBAL REVIEW EVERY FIVE YEARS WITH NO BINDING EFFECT ON ANY STATE THE CONFERENCE DOCUMENT PROVIDES OBJECTIVES, STRATEGIES, ACTIONS AND ACTORS. WE COULD TAKE THE RIGHTS FRAMEWORK OF THE CONVENTION AND LOOK FOR SUGGESTIONS IN THE WORLD CONFERENCE DOCUMENT TO SEE HOW TO FULFILL THE RIGHTS GIVEN IN THE TREATIES. PRINCIPLES ARE INTERPRETED - SCOPE OF RIGHTS EVOLVES AND CAN BE BROADENED THE CEDAW COMMITTEE PROVIDES MEANINGS TO THE PROVISIONS OF THE CONVENTION AND JURISPRUDENCE CONSTANTLY EVOLVES. ACTIONS NEED TO BE FRAMED AND EVALUATED ON THE BASIS OF THE PRINCIPLES AND STANDARDS SET IN THE TREATY AND BY THE CEDAW COMMITTEE THROUGH DIALOGUE WITH THE STATES PARTY The review of the implementation of both sets of obligations can be combined using the same data and evaluating the actions based on the principles and standards of the treaties only the format of reporting needs to be altered. 15