The human rights treaty trap

Oona Hathaway, Professor of Law, Yale University, Project Syndicate

As the U.S. prepares to take the war on terrorism to Saddam Hussein's doorstep, the Bush administration has repeatedly called attention to human rights violations in Iraq.

The Iraqi regime, President Bush tells us, has engaged in torture and extrajudicial killing and keeps the Iraqi people from enjoying basic civil and political freedoms. Not once, however, has the President suggested that these problems might be addressed through the UN human rights treaty system -- a system through which Iraq has committed to abide by the very principles it is accused of violating.

Perhaps this is because the Bush administration, which has just opted out of the treaty creating the International Criminal Court, would rather not focus attention on UN treaties just now. Or perhaps it is because Iraq is far from alone in its disregard of its human rights treaty commitments.

The apparent irrelevance of the human rights treaty system in current debates is a worrisome sign.

In the half century since the creation of the Universal Declaration of Human Rights, the world community has created nearly 100 universal and regional human rights agreements governing issues as diverse as discrimination against women, state-sponsored torture, and the right of collective bargaining.

Although these developments provide clear symbols of the world's ongoing commitment to protecting human rights, strikingly little is known about the true effectiveness of such treaties in achieving their goals.

My own recent research suggests that treaties are often not as effective as we might hope. Although countries that ratify treaties usually have better human rights records than countries that do not, countries with the worst human rights records actually ratify many treaties as often as nations with the best practices.

Indeed, half of the countries responsible for the most recent widespread cases of genocide, including Rwanda in 1994 and Yugoslavia in the early 1990s, had ratified the Convention on the Prevention and Punishment of the Crime of Genocide.

This was essentially the same rate of ratification found among countries that had committed no genocide. Moreover, violations of human rights treaties abound. Iraq, which just held an election in which Saddam Hussein was re-elected in an uncontested election with 100 percent of the vote, long ago ratified the International Covenant on Civil and Political Rights.

And Afghanistan, which under the Taliban prohibited women's participation in political or civic life, was and is a member of the Convention on the Political Rights of Women.

Of course, that some rogue states ratify human rights treaties should not call the treaty system as a whole into doubt. Human rights treaties serve to foster gradual improvements in human rights practices in both nonratifying and ratifying countries through changes in shared understandings of what behavior is acceptable.

Torture was once considered acceptable state practice. It no longer is, thanks in part to the creation of several treaties that prohibit its use. Human rights treaties may also have positive effects on ratifying countries over the long term, creating public commitments to which human rights activists can point as they push nations to make gradual, if grudging, improvements down the road.

Nonetheless, after examining the practices of 166 countries over a 40-year period, there is no clear evidence that the UN's human rights treaties have a direct measurable positive impact on the human rights practices of individual countries that ratify them. Perhaps this should not be so surprising.

For the most part, human rights treaties are poorly monitored and enforced, and those countries that join face little or no penalty for failing to match their rhetoric with action.

It is perhaps to be expected that some countries might be tempted to use ratification to try to placate those pressing for improvements in human rights, thereby turning ratification into a substitute for real improvements in their practices.

What, then, should be done to make the human rights treaty system more effective? A first step toward strengthening the system would be to augment today's reliance on self-policing with a stronger system of independent expert monitoring.

The more information we have about countries' human rights practices, the harder it will be for them to get away with abuses. Above all, guardians of human rights must remain vigilant, viewing ratification of treaties not as the end of the struggle for human dignity, but as the beginning in an evolving campaign.