[afro-nets] Feedback on Human Rights Reader 89 on soft laws

[Claudio Schuftan <claudio@hcmc.netnam.vn>]

Feedback on Human Rights Reader 89 on soft laws
-----------------------------------------------
From: George Kent (gk) <kent@hawaii.edu>

Claudio, a few quick thoughts, just to provoke....

Claudio wrote>:

Human Rights Reader 89

UNFORTUNATELY, HUMAN (PEOPLE'S) RIGHTS VIOLATIONS DO NOT CALL
FOR CONCRETE INTERNATIONAL SANCTIONS.

 > many HR violations do not actually call for public / worldwide
 > action.

(gk) There are many possible forms of action against violations
other than court trials. The UN treaty bodies use constructive
dialogue, NGOs such as Human Rights Watch use naming and sham-
ing, and there are various forms of public action.

 > This vagueness in the language of international law is problematic,
 > because it allows for the manipulation of this
 > inexactly-defined-body-of-laws. There is an urgent need for further
 > codification of this body of international law related to HR. But, 
in
 > today's world, the codification of international law is a reality we
 > can only dream about.

(gk) This dreaming results in slow but steady progress in the
elaboration of international human rights law. It is too slow,
but it is progress.

 > The US, for example, is consistently disrespecting international law
 > by not ratifying treaties it has signed.

(gk) One might say that countries that ratify international hu-
man rights agreement and then don't take them seriously are the
ones that are disrespecting international law. There is a cer-
tain integrity in the US not ratifying, say, the Convention on
the Rights of the Child, rather than ratifying it and then ig-
noring it, as many countries have done.

 > The US will certainly veto any codification of international law 
that
 > may hold it responsible for its actions, both domestically (e.g., 
CO2
 > emissions)
 >
(gk) Veto codification? The US did not veto the Kyoto protocol.
It simply refused to participate.

 > This begs the question: If there is no codification and no means of
 > enforcing it, what is the point of this international law?

(gk) I strongly disagree. Soft rights have their uses. They ar-
ticulate clear norms, and they set out clear goals. We can work
on hardening what is presently soft law--a very worthwhile pro-
ject.

 > Many such international agreements may prove useful and may serve as
 > a basis for future legally binding agreements.

(gk) Most international human rights agreements (e.g., the cove-
nants, CRC) are now binding--in principle. However, we must ac-
knowledge that they are not in fact binding in practice.

 > However, the name given to these laws ('soft laws') is inherently
 > problematic, because soft law is not law at all. Essentially, soft 
law
 > is comprised of declarations of principles, codes of practice or
 > conduct, recommendations, guidelines, standards, charters and
 > resolutions. These instruments have no legal authority, but there is
 > an expectation they will be respected and followed by those 
countries
 > and governments who have signed them.

(gk) I disagree. The covenants, CRC, CEDAW, etc. DO have legal
authority, and in many countries' courts they are treated as
binding under national law. These treaties have a great deal of
legal authority. Justiciability is not everything. There are
other means of accountability.

 > One problem with non-legal instruments is that countries can sign
 > on to them without the fear of having to be held accountable
 > --legally. Pressure comes (or is supposed to come) from the
 > international community. But it is only an assumption that, if a
 > treaty is signed, a country will do everything in its power to
 > maintain the integrity of the contract.

(gk) They are held accountable, legally, by the UN human rights
treaty bodies. They are not as muscular as one might like, but
they do exercise legal oversight.

(gk) I set out my views on these things more fully at
http://www2.hawaii.edu/~kent/GUP2005/1008 Chapter Eight.doc