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Getting human rights right

Professor Hilary Charlesworth.
04 February 2013
Professor Hilary Charlesworth is looking to put the meaning back into the ritual of human rights.

A five-year research project is helping to strengthen human rights regimes across the globe by examining the effects of ‘regulatory ritualism’, writes JAMES GIGGACHER.

Professor Hilary Charlesworth is concerned about why nations talk the talk but do not walk the walk when it comes to human rights. The international law expert from the Regulatory Institutions Network in the ANU College of Asia and the Pacific says that all too often human rights treaties are sidelined or ignored by countries once they have signed on the dotted line.

“At the international level we have a sophisticated system of international human rights standards, beginning with the adoption of the Universal Declaration of Human Rights in 1948 by the UN General Assembly. The UN has since adopted a great range of human rights treaties,” explains Charlesworth.

“These international human rights treaties have attracted widespread participation. For example, all of the UN’s 193 members are party to at least one human rights treaty and 80 per cent of states have ratified four or more. Compared to other treaty systems – such as environmental, arms control, or resource treaties – these are impressive figures.

“As we’ve got lots and lots of treaties relating to many different sorts of human rights – torture, rights of children, rights of persons with disabilities – it would seem that we have a lot of standards. However, the problem is how to implement and enforce them; countries are willing to sign on to human rights treaties but then often they just park the treaty somewhere. It is much, much harder to see effective and committed implementation of treaty obligations. That’s a problem that many people have noted in the international human rights system.” 

Charlesworth points to Afghanistan as a recent example. Even though the South Asian state signed up to the Convention on the Elimination of All Forms of Discrimination against Women in 2003, in 2009 it passed a law requiring Shi’ite women to obtain a male relative’s permission to leave the house, or to seek employment or education. Under the same law women were expected to consent to their husband’s sexual demands.

But now, Charlesworth is helping make sure that when it comes to nations’ human rights obligations, words translate into action. In 2010 she won a five-year Australian Laureate Fellowship worth A$2.19 million to examine why countries sign up to human rights systems only to then ignore them, and what can be done to prevent this. And while traditional legal research may not pay much attention to these types of questions, the ARC Laureate Fellow thinks she may already have part of the answer. It’s called ‘regulatory ritualism’.

“Regulatory ritualism, in the case of human rights, is the acceptance of human rights values, norms and rules, but the undermining of these through inaction,” explains Charlesworth.

“It was by working here at the ANU Regulatory Institutions Network among sociologists and criminologists that I first became aware of the idea of regulatory ritualism. After looking at my colleagues’ work on regulation it stuck me that this idea of ritualism in this sense has some resonance in the field of international human rights law.

“Similarly to the fields my colleagues were looking at – like nursing home regulation and tax systems – human rights is a highly regulated field; there are many treaties. But, the biggest issue is the way that countries are getting out of their obligations.

“Rights ritualism is a much more common response than an outright rejection of human rights standards and institutions. It is a technique of embracing the language of human rights precisely to deflect real human rights scrutiny and to avoid accountability for human rights abuses. Countries are willing to accept human rights treaty commitments to earn international approval, but they resist the changes that the treaty obligations require.” 

Through the laureate project Charlesworth and her research team are documenting techniques of ritualism employed in the international human rights system and their relationships to the weaknesses and failures of that area of law as well as ways of countering ritualism.    

The project is also studying a range of countries and human rights institutions to determine how and why ritualism comes about.  It is a research program which has the backing of the UN High Commissioner for Human Rights.

Charlesworth has already spent some time observing the UN Human Rights Council in Geneva. And while regulatory ritualism means human rights regimes are increasingly and easily overlooked by their signatories, Charlesworth says she still has hope for the international system.

“I think the system is imperfect. But, I don’t want to say that it is failing, because I think that parts of it are working quite well. In particular one thing that I was looking at when I was in Geneva is a new mechanism of the Human Rights Council called the Universal Periodic Review (UPR), which places the records of all UN members under human rights screening.

“Up until now the pattern has been that when we talk about human rights we are talking about the ‘bad guys’.  So we’d put well-known human rights abusers under scrutiny – Cuba, North Korea – and most Western countries were considered to be above the fray. The really interesting thing about the UPR is its philosophy that every country needs to undergo a human rights review.

“And one of the things that I am trying to look at is how successful that has been in countering the ritualism that the human rights regime suffers from; I think in some ways it has been quite successful. So I don’t think it is just all a very negative story. I think there are some pockets in the human rights system where things are actually working pretty well.

“The UPR mechanism has got flaws, but I like the fact that all countries are being scrutinised in the same way. The biggest thing in the international human rights system is getting the political will among countries to actually push for human rights.”




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