Tugba Sarikaya Guler^* ‘Covenants, being but words and breath, have no
force to oblige, contain, constrain, or protect any man’¹

— Thomas Hobbes,Leviathan,1651

In order to consolidate the ‘universalist’ foundations of the human rights regime, the United Nations (UN) has been encouraging the global ratification of core treaties over the years.² Yet, since this universality principle presupposes the acceptance of the human rights adversaries into the system, it is still quite dubious whether these ratifications contribute to the purpose of human rights promotion, or they are counter-productive.³

To clarify this issue, three major questions should be answered:(1) despite the peculiarities of the States and cultural relativity of human rights, is it possible to establish a highly-inclusive human rights regime;(2) how might the universal ratifications influence the general human rights regime; and (3) what are the main shortcomings of the UN human rights (UNHR) regime in this regard? Within this framework, this article attempts to assess the fundamental weaknesses and the strengths of the UN Human Rights system (UNHR) regarding the ‘universality’ principle and proposes several amendments in light of its findings.

The Limitations of Universality: Diversity beneath the Surface

The premise of Universalism is that the fundamental ethical and moral principles which are claimed to be the most applicable means to be utilised whenever and wherever needed.⁴Concurrently, the persuasive power of basic values has been the backbone of the human rights regime and made the ‘universality’ a convincing target to reach. Thereinafter, once ‘all societies cross-culturally and historically manifest conceptions of human rights’, it is largely believed that the universal character of all basic rights and freedoms is beyond question.⁵ Therefore, a widespread consensus on the highest moral values and ideal standards resulted in a moral and normative universality of human rights.⁶

Furthermore, the belief regarding the attainability of a universal human rights regime has been strengthened by the global institutionalisation of these rights.⁷ In this regard, four main phases became salient. The first stage (1945-1966) was the ‘norm emergence’ phase in which general human rights and standards of protection were codified through some basic documents such as the UN Charter and the Universal Declaration of Human Rights (UDHR).⁸

The second stage(1966-1988) was the ‘norm cascade’ phase which was marked by the enactment of ‘primary binding conventions’⁹ , the establishment of individual complaint procedures, monitoring bodies (e.g., Human Rights Committee(HRC)) and consultation mechanisms (e.g. non-governmental organisations(NGOs)).¹⁰ All of these efforts clearly illustrated that there was strong willingness to create a well-grounded human rights system. Even if the procedures of implementation were not ripe enough to ensure compliance of all States, these phases were highly ‘promotional’.¹¹

The third stage (1989-2001) was characterised by the ‘escalating concerns’ regarding the inadequacy of implementation procedures.¹² Accordingly, after the collapse of the Soviet Union more assertive and concrete initiatives were taken under the entrepreneurship of certain international institutions and the United States of America (U.S.) as a leading actor. For example, the High Commissioner for Human Rights (UNHCHR) was created by the General Assembly (UNGA) resolution in 1993 right after the World Conference on Human Rights in Vienna. Also, the International Criminal Court (ICC) was established and the issue of humanitarian intervention came to the fore.¹³ However, at this stage cultural relativity of human rights became more salient and more of a challenging issue. On the one hand, non-Western countries such as China, Syria, Iran, Yemen, Cuba, Vietnam and others in Southeast Asia wanted to interpret human rights according to their own cultures. On the other hand, the U.S. was emphasising the importance of setting a single standard of acceptable codes of conduct.¹⁴ At any rate, despite this contentious process, the amount of rights and the obligations incumbent on the States have proliferated as a result of the decisive initiatives of some actors.

Perhaps the main characteristic of the last stage (2002-2014) has been ‘integration with the system’ through treaty ratifications. At this stage, the rate of treaty ratifications was continuously increasing and the contribution made by the onset of Universal Periodic Review¹⁵ (UPR) (2006) was undeniable. As indicated in the report of the UN Office of the High Commissioner for Human Rights (OHCHR), while six-core international human rights treaties had attracted 927 ratifications in 2002, the number of ratifications reached at 1586 for nine-core treaties and three-optional protocols in 2012.¹⁶ For instance, countries such as Afghanistan, Bahrain, Democratic People’s Republic of Korea, Montenegro, Oman, Qatar and Syrian Arab Republic have ratified the Convention on the Elimination of All Forms of Discrimination against Women, whereas the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) has been ratified by states such as Congo, Ireland, Iraq and United Arab Emirates in this time period. On the other hand, the progress in ratifications was not accompanied by a proportional upturn in the number of submitted reports—(102 in 2000, 117 in 2008 and 136 in 2011).¹⁷ Accordingly, the reformation process commenced to prevent poor practices.

One of the compelling drives of reformation was an ‘unprecedented growth ‘in the human rights system.¹⁸ When more States became willing to comply with treaties, systematic deficiencies of the UN became more notable.¹⁹ On one hand, the workload of treaty bodies and the volume of reports were unprecedentedly increasing; on the other, despite the escalating time-lag between report submission and consideration, treaty bodies remained incapable of monitoring or putting pressure on the violators.²⁰ Despite the increasing demand for both financial and human resources, the General Assembly often rejected the provision of needed funds.²¹ Briefly, the growth in ratifications was not, unfortunately, an indicator of flourishing universality. Thereby, the initial hope regarding the attainability of a universal human rights regime was replaced by ever-growing anxieties.

As anxieties rise, some jurists have started to think that the crisis regarding implementation largely stems from the ‘de-centralised enforcement’ and ‘cultural relativity’ of human rights.²² Indeed, the enforcement of a human rights treaty merely depends on the sovereign States.²³ When a treaty enters into force, international monitoring bodies can only (1)request States to report on their practices, (2) put pressure on governments by investigating and questioning violations and (3) denounce such human rights violations.²⁴ Since no enforcement body outside the offending sovereign jurisdiction exists, the deviant States are growing in number. Consequently, despite the ‘universal possession’ of human rights, the ‘universal enforceability’ remains largely restricted²⁵ owing to national differences in terms of administrative capacity and political will.²⁶

Besides, cultural relativity is another intimidating challenge. Moral rules and social institutions have been sculptured around cultural, historical, and civilisational diversity and any criticism of domestic practices coming from outside national jurisdiction are discredited.²⁷ This strict stance is mitigated to some extent for the sake of ‘fundamental’ universality. For example, even China makes references to human rights in order to obtain political legitimacy in international arena.²⁸ However, putting Western and Non-Western (e.g., Islamic, African and Asian) notions of human rights into a melting pot was not always that easy.

For instance, the right to freedom of thought, conscience and religion is enshrined under Article 18 of both the UDHR and the International Covenant on Civil and Political Rights (ICCPR). Also, Article 18(2) of the ICCPR clearly indicates that: ‘No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.’ Moreover, the General comment No.22 recapitulates that the right to ‘have or to adopt’ encompasses the freedom to adopt one’s religion or belief, to hold an atheistic view and to retain the right to replace his/her religion with another.²⁹ Therefore, any kind of coercion that might infringe upon the right to freedom of religion or belief was strictly barred. Nonetheless, according to judgments of some Sharia courts, the right to change religion denied through the criminalisation of ‘apostasy’.³⁰ Although Iran ratified the ICCPR, a good number of people have been tried for apostasy and some of them have been convicted and sentenced to death.³¹ Thus, despite its normative desirability, the universality turned out to be ‘theoretically indefensible’ and ‘politically pernicious’ in some respects.³² Taking note of these expressions, can we still claim that there is a possibility of establishing a universal human rights regime?

As indicated by Donnelly, even for the most sensitive issues, challenges were directed to the ‘limits’ of the relevant right, not to the right itself.³³ There are clear differences between states based on Western liberalism and Islamic³⁴ States, such as the Islamic Republic of Iran, the Islamic Republic of Pakistan and the Islamic Republic of Mauritania. However, since these differences are limited, universality still seems to be an attainable goal.³⁵ Besides, most of the Muslim-majority States do not show that kind of radical approach. Thus, if facilitating the diffusion of global norms is the target, Westerners should avoid arrogant/exclusivist universalism and adopt more sensitive, tolerant and respectful approaches towards others.³⁶

Necessity and Method of Overcoming the Challenges of Diversity

Owing to their moral and normative universality, human rights conceptions have penetrated into the legal and political systems of almost all countries around the world. However, since human rights have been ‘organised around the competing claims of universality, particularity and relativity’³⁷ , implementation has always been very contentious by their nature.

Nevertheless, the UN, as a backbone organisation, strongly believes in the virtues of universality. Considering its policies, the UN assumptions regarding the boons of universality seem to be twofold. The first premise might be that a large scale decrease in human rights violations could be possible, only if a great number of States show their willingness to participate in the system. Concurrently, the universal compliance could raise the level of ‘normative pressure’ on human rights infringers.³⁸ Meanwhile, as a part of a larger human rights system, the States would be more encouraged (or pressured) to adopt globally accepted rules.

The second prospect might be that once the violators become an integral part of the human rights system, they would be ‘ensnared in ever-expanding network of international supervision and accountability’ and ultimately comply with the obligations incumbent on them.³⁹ Thereby, the claim of universality could facilitate the UN restrictions over the worst human rights violators. Yet, we have to find answers to the questions such as, ‘what kind of mechanisms could make it happen?’ or ‘Is the rhetoric of universality enough?’

In their path-breaking study, Goodman and Jinks identified three mechanisms by which the State practices are shaped, namely coercion, persuasion and acculturation.⁴⁰ If we decide which mechanism works better, it could be proposed to the UN as a way forward.

According to the Realist view, since hegemonic States are prone to disseminate their ideologies in the international society, coercion has always been the main mechanism of international relations.⁴¹ If this was the case, more powerful countries would be more likely to ratify those treaties to use them as vehicles for their hegemonic purposes.⁴² But, in contrast, the republican liberal view insists that unstable democracies are more likely to be the advocates of rigid human rights regimes.⁴³ When non-democratic groups (e.g., fascists, military officers or religious fundamentalists)threaten the future of newly-established and unstable democracies, these States are willing to pay sovereignty costs more than the others and give concrete support to stringent human rights regimes in order to ensure domestic political certainty. Therefore, without any apparent coercion, many non-hegemonic States easily engage in the UN human rights system. Since global human rights do not seem to be a product of hegemonic contestations, coe

rcion might not be an appropriate mean to overcome the limits of diversity.

Persuasion, on the other hand, requires a critical evaluation of the virtues of any belief and ‘acceptance’ of its legitimacy by the States.⁴⁴ Accordingly, the forms of influence are defined as ‘framing, cuing to think harder, convincing and teaching’.⁴⁵ However, the States could be apprehensive to adopt the dictated norms, if they perceive international impositions as a threat to their sovereignty. Thus, persuasion might be an extremely difficult mechanism to employ.

Finally, acculturation refers to a process in which certain behavioural patterns could be assimilated either by outsiders or by the self ⁴⁶ and requires only a tacit awareness of how the other actors behave.⁴⁷ Also, the forms of influence are numerous, such as social rewards and punishments (e.g., back-patting, shaming); the cultural identities of States; cognitive pressures (e.g., dissonance); and cognitive benefits (e.g., legitimacy, the comfort of being ‘in-group’).⁴⁸ Accordingly, the States can socialise even in the absence of persuasion because there is a variety of ways in which norms can diffuse.⁴⁹ Consequently, the universality depends on the ‘conformity’.⁵⁰

Considering their differences, acculturation appears to be a better option, because instead of imitating already articulated norms (without internalising), the States should go through a socialisation process and confirm that it would be a better option for them to behave in compliance with these norms. Undoubtedly, the socialisation requires a longer period of time. Nevertheless, it can be shortened through the initiatives of human rights ‘facilitators’⁵¹ (e.g., international organisations, civil society groups, NGOs, national human rights institutions (NHRI) and human rights advocates). Examples of facilitating initiatives are the regulation of meetings with public for information purposes (regarding what kind of rights are under protection of international law and what kind of procedures should be followed to protect those rights from infringements) and dialogue between different cultures.

The Ratifications: A means to an end or an end in itself?

As compared to the treaties in other fields (e.g., trade, security, investment), human rights treaties do not provide any reciprocal incentives for compliance to the parties.⁵² Additionally, they cause ‘sovereignty costs’ which means ratifying States consent to international delimitations on how to behave in entirely domestic matters.⁵³ Nevertheless, States have not been completely reluctant to ratify such treaties. This puzzling situation brings up the question of why the States ratify human rights treaties despite the fact that such treaties limit their sovereign authority.

According to Wotipka and Tsutsui, the underlying rationale involves ‘social and ideational factors’ rather than ‘power and interest’.⁵⁴ More explicitly, the normative weight of the human rights regime is claimed to be the motivation to pose as legitimate actors in international society.⁵⁵ Yet, it is not obvious whether the aspiration to be seen as legitimate is based on a desire to cover up human rights abuses or to change their practises.

In Hathaway’s view, the commitment of States depends on ‘likely effects’ of the treaties.⁵⁶ And, likely effects are premised upon two factors - whether they expect to abide by the treaty once they participated, and the costs and benefits of compliance.⁵⁷ As clarifying the first factor, Hathaway proposed that when the prospect for change is higher, a State with more democratic institutions and poor human rights records will not be willing to commit, whereas States with fewer internal constraints (less democratic institutions) will be more likely to join—because they are not really required to adhere to the treaty provisions.⁵⁸ Despite not being intended to change patterns, they ratify the human right treaties just to signal their commitment to globally articulated norms.⁵⁹

On the latter factor, Hathaway claimed that while the States are measuring possible costs and benefits of commitment, they examine the power of legal enforcement mechanisms and direct and indirect/collateral consequences of ratification.⁶⁰ Thereby, if the enforcement mechanisms are strong, the States are less likely to commit.⁶¹ Moreover, collateral consequences arise from the responses of transnational and domestic actors to the States’ ratifications.⁶² For example, by the means of ratification, a State could have a good reputation and retrieve many benefits like political support, investment, trade and aid.⁶³ However, the factors mentioned by her draw an unrealistically dark picture. If the States were hesitant to commit to a treaty, when a treaty is more likely to be effective, then how could it be possible to increase the salience of new rights?

Recognition of homosexual relationship can be a good illustration of such situations. The law, in most States, appears to follow a line which begins with the punishment of homo-sexual relationships, then goes through ‘(1) the de-criminalisation of sex between (the same-sex) adults…, (2) the equalisation of ages of consent, (3) the introduction of anti-discrimination legislation, and (4) the introduction of legal partnership’.⁶⁴ Today, more than a dozen states legalised the same-sex marriage judicially or legislatively.⁶⁵ Considering this situation, Hathaway’s analysis seems to underestimate the value of dramatic changes over years.

It is also needed to clarify to what extent the ratifications work. Many experts have noted that highly contentious legal undertakings of the States, especially non-democratic ones, diverged from the purposes of the UN system and human rights violations and unfortunately did not decrease under international scrutiny.⁶⁶ For instance, Bayefsky contended that legal responses have not been able to either prevent or alleviate human suffering due to the flawed enforcement regime of treaty bodies which is incapable of punishing violators.⁶⁷ Furthermore, since the cost of being a member was reduced to entice more States to participate, human rights adversaries easily become a party to the treaties but continue to act contrary to their spirit.⁶⁸ Therefore, she claimed that universal ratification was initially a means to an end; however, it has become an end in itself after the ratifications of abuser States.⁶⁹

In this regard, she mostly adduced Islamic States and stated that they commit to treaties only with the broad reservation that ‘any obligation sustained must first be compatible with the Islamic Law’.⁷⁰ Although this situation dramatically delimits the obligations on the ratifying States, the legitimacy of this kind of limitations is not open to challenge.⁷¹ Concurrently, since cultural relativity is a barrier on the way of universality, their memberships come at a price - that is, ‘diminished obligations, lax supervision and few adverse consequences from non-compliance’.⁷²

Bayefsky’s critique, regarding the impacts of putting broad reservations to the treaties, seems to be fair and realistic; however, it is not only Islamic States that are the culprits in this regard. For example, the United States (US) justified its use of torture for non-compliance to a jus cogens⁷³ norm, even though all forms of torture are banned by the UNDH and this prohibition is enshrined in the Convention against Torture (CAT) and the ICCPR (Article 7).A Special Rapporteur observed that interrogation techniques and treatments in Guantanamo Bay (e.g., force-feeding, hooding, force-grooming, solitary confinement and chaining) amount to torture and cruel, inhuman and degrading treatment.⁷⁴ However, the US referred to its reservations on the ICCPR (Article7) and the CAT (Article 16) and indicated that it is bound by the prohibitions to the extent that Fifth, Eighth and Fourteenth amendments to the US Constitution regulates.⁷⁵ Thus, the US was able to derogate from its obligations through reservations; even though the reports of the supervisory system pointed out this situation, the current system was not able to punish.

Additionally, the seminal study of Hathaway analysed the impact of treaty ratifications on the human rights violations of 166 States in five areas (torture, genocide, a fair trial, civic liberties and women rights) and affirmed Bayefsky’s arguments through finding that:(1) States with poor human rights practices are inclined to ratify treaties more⁷⁶ and (2) treaty ratifications are associated with worse human rights patterns (if the ratifying States are not democratic).⁷⁷

However, according to Goodman and Jink, Hathaway’s study was counter-intuitive and falsifiable.⁷⁸ Firstly, they believe that variables cause measurement errors.⁷⁹ Since the ratification is not a ‘magic’ point in the incorporation process, measuring compliance after the ratification is not logical. Additionally, Hathaway analysed the data regarding violations, but she missed two points: (1) States might strategically behave and substitute them with other, more difficult to categorise but equally poor practices (e.g. disappearances)⁸⁰ ; (2) recorded violations might not represent the truth because liberalisation facilitates access to statistics.⁸¹ Therefore, a growth in the number of recorded violations might be an indicator of improvement.

Secondly, they claim that Hathaway failed to understand the true virtues of the ratifications in terms of limiting State behaviour. According to Hathaway, even if they commit to treaties, they could breach them with ‘relative impunity’.⁸² Contrarily, Goodman and Jinks believe that ratifications demonstrate the State’s willingness:(1) to have dialogue about national practices;(2) to cope with individual legal claims; and (3) to accept a special array of links between the State and the UN system.⁸³

Lastly, Hathaway suggested that when treaties are more costly (in case of non-compliance) the chance of success is higher, so the cost of ratification should be increased.⁸⁴ However, as indicated by Goodman and Jinks, since shallow ratifications might have constitutive effects (e.g., increasing the salience and legitimacy of human rights norms), the costs should not be raised even if Hathaway claims the opposite.⁸⁵ In light of this critique, I contend that even if the ratifications do not work in the short term, the boons of them are numerous.

For example, in Womah Mukong v. Cameroon⁸⁶ , the plaintiff was a journalist, and objector of one-party ruling. He had criticised the lack of democracy and human rights protection in Cameroon before getting arrested. Under custody he was subjected to ill-treatment. He filed a lawsuit and claimed that Cameroon had violated Articles 7, 9(paras.1-5), 12(4), 14 (paras.1-3) and 19 of the ICCPR.⁸⁷ Finally, the Human Rights Committee held the view that Cameroon was in violation of Article 7, Article 9(1) and Article 19.⁸⁸

If Cameroon was not a party to the ICCPR, this case might not be publicised, many Cameroonians might not know that some citizens are subjected to cruel treatment by their governments, and what is even worse, they would not be aware of the fact that their governments do have many ‘positive and negative obligations’⁸⁹ to meet for their citizens. However, the incorporation of global norms to national political and legal system was accelerated by this kind of cases.

Moreover, Hathaway’s claim that the higher cost of ratification resulted in less commitment appears to be unreasonably pessimistic when the developments regarding the Rights of the Child are considered. As indicated by Alston, despite the Committee on the Rights of the Child being one of the most onerous treaty bodies, the number of ratifications has been extraordinarily increased.⁹⁰ Today, the nearly universal ratification of it illustrates that the parties can compromise on critical issues, although the costs are high.

Nevertheless, Hathaway was right on one point. Treaty ratifications generally do not result in straightforward and concrete effects on national policy patterns in the short term. More explicitly, the acts of international organisations could be either adjudicatory (e.g. judgments of international courts; general comments; views of committees; the reports of commissions and courts) or norm-creating (e.g., General Assembly resolutions, regulations).⁹¹ Since almost all of these acts are non-binding, international standards’ effects on domestic practices were not directly observable.⁹²

Moreover, in a dualist country, in which international law does not supersede over domestic law, compliance with global norms could take longer.⁹³ Therefore, to measure the true effectiveness of ratification, it might be better to conduct an analysis in ratifying States. To this end, it is essential to analyse the effect of global standards on the domestic practices regarding ‘children born out of wedlock’ in Japan overtime.

According to the Japanese Civil Code Article 900, the inheritance share of an illegitimate child (child born out of wedlock) is one half of that of a legitimate child. However, Article 24(1) of the ICCPR prohibits discrimination of a child on any ground (e.g., social origin, birth, sex, race, and language). Besides, it is indicated that the prohibition of discrimination on grounds of ‘birth’ covers discrimination between the illegitimate and legitimate child and requires amendments in the domestic law about ‘inheritance’ when needed.⁹⁴ Also, General Comment No.17 puts forward that the reports of States should depict how the measures of protection, both in practical and legal terms, are intended to prevent discrimination in any field concerning inheritance.⁹⁵

Afterwards, although Article 98(2) of the Japanese Constitution declares national law as the supreme law of the nation, the need for an amendment in the Constitution has gained salience in time.⁹⁶ The impact of the UN acts was explicit in two ways: (1) they provided legal bases for many individuals to invoke current laws and (2) they helped the Japanese government in the interpretation of its domestic law.⁹⁷ Nonetheless, the impact was gradual. In 1990, a plaintiff filed a suit against the constitutionality of Article 900, invoking relevant articles of the UDHR, the CEDAW, the ICCPR, the CRC, and ECOSOC Resolution. But, the claim was declined in 1991 without reason.⁹⁸ Also, in the Third Periodic Report⁹⁹ , Japan continued to discriminate against illegitimate children in the following respects: 1) they do not have a legal father by birth, 2) they assume the surnames of their mother and 3) their inheritance share is half as much of that of legal children.¹⁰⁰

Once the HRC revised the Third Report, the Japanese attitude was strongly criticised.¹⁰¹ Yet, despite its ratification of the CRC in 1993, Japan did not change Article 900.¹⁰² However, afterwards, the Tokyo High Court took the first path-breaking step towards the change and concluded that the Constitution was inconsistent with Article 900 on the basis of its discriminatory character.¹⁰³ Though the Court did not directly mention Article 24(1) of the ICCPR or the General Comment No. 17, their impact was notably evident.¹⁰⁴

In the following years, positive attempts (e.g., the withdrawal of some reservations, the ratification of new instruments, timely periodic reports, the promotion of economic, social and cultural rights) of Japan kept coming despite some interruptions.¹⁰⁵ Furthermore, Japan began to undertake the Civil Code revisions and showed its intention to guarantee compliance.¹⁰⁶ Therefore, we can conclude from the Japanese example that International Organisations’ decisions have noticeable weight on State policies.

The Shortcomings of UNHR System & Some Recommendations for the Future

By its very nature, the UNHR regime has many shortcomings and once the system incorporated more States into the regime, this situation became even more complicated. In this regard, the main shortcomings can be identified as:(1) the lack of independent monitoring, (2) insufficient funding and staff, (3) non-compliance with reporting obligations¹⁰⁷ and overdue reports, (4) large backlogs of reports and individual complaints awaiting consideration, (5) the stipulation of reservations to assure domestic marginality of treaty implementations, (6) the lack of expertise and alignment in the Secretariat structure,(7) inefficient working methods of the agencies, (8) ineffectual measures to follow-up concluding observations and final views on individual complaints, (9) inadequate visibility and accessibility of treaty bodies,(10)inadequate publicity, (11) the lack of connectedness and coherence between treaty bodies and diverse set of actors, (11) unwillingness of most States to increase the procedural efficiency, (12) insufficient capacity or political will of the States to implement the treaties, and (13) the inadequate quasi-judicial role of the Security Council(UNSC) and UNGA.¹⁰⁸

However, in the ‘Larger Freedom’ Report (2005), reform initiatives have taken to revitalise the UNGA, to strengthen the Councils (e.g., the UNSC, the Trusteeship Council and the Economic and Social Council) and the Secretariat.¹⁰⁹ Also, the urgent need for reform in the UNGA and the UNSC was reiterated. In fact, they were entitled to the quasi-judicial power to make a binding judgment in the light of the facts.¹¹⁰ However, despite the charges of violations and complaints, these bodies are prone to adopt decisions or recommendations rather than judgments due to their cautious approach.¹¹¹ Thus, they have not been successful to provide competent legal responses.

In order to clarify other shortcomings, Bayefsky’s critique is also worth mentioning. Firstly, since the members of treaty bodies are nominated by governments ‘to ensure state representation in the guise of independent experts’, they were not acting autonomously.¹¹² Secondly, despite their responsibility to follow-up, the UNGA and Commission on HR do not discharge their responsibility due to being political institutions.¹¹³ Thirdly, treaty bodies have usually been unduly guided by narrow NGO inputs and do not engage in fact-finding missions.¹¹⁴ Lastly, since there is not enough comprehensive information retrieved from stakeholders; the dialogue between committees and governments is hardly constructive.¹¹⁵

Yet, above all, Bayefsky blames the non-democratic States for the failure of the UNHR. Her critique was based on the following claims: (1) they are unresponsive to the questions posed by treaty members; (2) they often condition many illegitimate reservations; (3) they do have weak individual complaint systems¹¹⁶ ; (4) they do not follow recommendations and (5) they resist to radical reformations in the treaty system.¹¹⁷ Accordingly, she thought that as long as these ‘unrepentant social deviants’ are in the Organisation as onerous burden, a democratic reform dream might not come true.¹¹⁸

In contrast to her arguments, Alston contended that Bayefsky’s diagnosis of the treaty system included over-simplified comparison between ‘us’ (liberal democracies) and ‘them’ (undemocratic extreme delinquents).¹¹⁹ On the other hand, history illustrates that even those countries that are very proud of their democracy, such as the United States in relation to the Iraq war, can infringe the most fundamental human rights principles when the self-interest of their countries becomes a matter of concern.¹²⁰ For this reason, Alston accepted that instead of categorising the States into groups in an attempt to stigmatise some of them, the input from NGOs (shadow reports), the constructive dialogue between committee and States, press releases of meetings, and concluding observations by each committee, should be appreciated.¹²¹

Taking note of these drawbacks and different approaches, many strategies have been offered to ensure a ‘complete overhaul’ of the treaty system.¹²² Bayefsky’s strategy was a radical one. She proposed that the States which do: (1) reject withdrawing inappropriate reservations;(2) not comply with universal minimum requirements and (3) disallow individual communications or media events, should be denied access to or expelled from the treaty regime.¹²³ Obviously, her prescription for reformation appears to be an exclusivist one, ignoring the merits of acculturation or socialisation. However, despite the slow progress of universal human rights, the UN did not adopt such an exclusivist approach, but instead aims at strengthening its effectiveness through consultations with primary stakeholders.

For instance, the UNHCHR prepared a report proposing recommendations such as:(1) creating a comprehensive and detailed reporting calendar for treaties,(2) building the States capacity both to report and to implement treaties,(3) enhancing impartiality, equality and independence of members,(4) establishing more focused and aligned reporting procedures through dialogue between the States, NGOs and NHRIs,(5) strengthening the publicity and accessibility of treaty bodies through modern technologies,(6) increasing the interconnectedness of treaty bodies, and(7)improving the coherency of treaty bodies’ jurisprudence in individual communications.¹²⁴ In fact, many of these proposals are convenient, undemanding and specific enough to encourage States to better domestic patterns.¹²⁵ For this reason, if the UN pursues its systematic reform initiatives with diligence, the deviant States might widely abandon their contentious practices on their own motion.

Conclusion

This article is designed to discuss whether or not universal ratifications turn human rights treaties into dead letters. In this regard, it first analysed whether it is possible or not to establish a highly-inclusive human rights system. If not, we could argue that the UNHR regime was a vain hope and even after it reeled more States in, it would fail. However, we found that if the main actors devote themselves to promote universalistic values and to establish dialogue over idiosyncratic characteristics of the States, a universal system might be possible. Yet, this paper also admitted the limitations arising from cultural relativity through adducing the dubious implementation of right to religion in Iran. Lastly, it appreciated the value of the acculturation mechanism as a right mean to reconcile differences.

The second part of the article examined why the States commit to international treaties and then went on to discuss whether these ratifications account for any improvements. Consequently, it revealed that even if the treaties have ‘soft law characteristics’ due to being ‘unenforceable through traditional means’, both adjudicatory and norm-creating acts of the UN bodies had many constitutive impacts(e.g., being a legal basis of claims, influencing constitutions, and creating minimum standards of rights).¹²⁶ Put differently, although the system is not able to afford ‘tit-for-tat sanctions’ for violators, domestic patterns can undergo certain changes over time.¹²⁷

The last section investigated the major shortcomings of the UNHR regime and suggested that radical prescriptions (e.g., get the adversaries out of the Organisation) might not be a prudent option to follow considering the normative foundations of the system. Instead of hunting for the culprits, the UN should outline strategies and urge systematic operation of them. Briefly, the universal ratifications might not be an omnipotent remedy for the time-being; however, when the UNHR reform is achieved, the gap between rhetoric and practice might be bridged and the international community could move beyond the ideas aforementioned in the Leviathan.

BIBLIOGRAPHY

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Legislation

1. Convention against Torture and Other Cruel and Degrading Treatment (CAT) 1984
2. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979
3. Convention on the Rights of Persons with Disabilities (CRPD) 2006
4. Convention on the Rights of the Child (CRC)1989
5. International Convention for the Protection of All Persons from Enforced Disappearance (ICEPD) 2006
6. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) 1990
8. International Covenant on Civil and Political Rights (ICCPR) 1966
9. International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
10. United Nations Charter 1945
11. Universal Declaration of Human Rights (UDHR) 1948
12. Vienna Declaration and Programme of Action 1993