Supervised by: Tuscany Parkin BA LLB (Rhodes) BCL (Oxon). Tuscany graduated with the BCL Masters of Law from the University of Oxford earlier this year, specialising in Jurisprudence, Competition Law and Comparative Contract Law. She is currently reading for the MPhil in Legal Philosophy (particularly the philosophy of contract law). Previously, she obtained her BA in English Literature and LLB Law with honours from Rhodes University.
The paradigm of human rights has inevitably been twinned with the rise of globalisation—the development of closer economic, cultural, and political relations among all the countries in the world, as a result of travel and communication becoming easy—and international human rights law has both suffered and benefited from this phenomenon. Protection of human rights is a concept that has been defended throughout history, by key philosophers such as Thomas Hobbes, John Locke and Thomas Aquinas, and has recently been embodied as a principle in the Universal Declaration of Human Rights (UDHR) (1, 2, 3). International covenants have sought to codify these symbolic principles into legally binding frameworks with a moderate degree of success. This article will discuss the strength of the International Covenant for Civil and Political Rights (ICCPR) and international law, the impact of globalisation on the protections of freedom of expression as well as establishing the future of the international community’s response to human rights violations.
Traditional motives for starting war are no longer relative as they are applicable only to an outdated society and not to the modern world as it stands. Alexander the Great and Julius Caesar were two of history’s most renowned military leaders and conquerors, both having had success in gaining the most desired prize of war: power. The Geneva Conventions, UDHR, or State Sovereignty did not exist at the time. Therefore, the ways to go about conquering and enforcing authority were a fair game. To a Commandant, the greatest achievement was to be on the same side as the most successful conquering force. It wasn’t until World War 2 and the proceeding years that the global community truly began to see the detrimental repercussions of an unjust war, and how the lack of legal provisions allowed states immunity from consequences (4). This realisation inspired the internationalisation of human rights, as instigated by the rise of globalisation and a global awareness of the necessity to protect rights better. For example, it is obvious that the United Nations (UN) itself, as the ‘only tangible expression of an international community’ and the driving force behind this legal movement, is a product of globalisation (5). It is a worldwide organisation that ‘transcends national borders’, symbolising growing interdependence and cooperation (6). It has been left in charge of enforcing international peace and law for decades. The organisation works to meet its demands in this regard by implementing sanctions, declaring standards for respecting human rights, creating groups dedicated to preserving international peace, and making politically binding treaties between nations.
The actual documents, the Geneva Conventions and the UDHR, were both established internationally: the former addressing humanitarian law and the latter forming the basis for human rights law. It was necessary to abide by these documents that protected individuals and their rights. However, these rules have been violated many times since their establishment. Invasions are still a constant occurrence around the world, despite state sovereignty. Fascist leaders and governments have not ceased to exist or operate, but have instead become an inescapable force in the daily life of citizens in several regions around the world. Although regulations do exist, states still fail on many occasions to abide by them. This constant disregard for humanity has consistently demonstrated that large parts of the world are not equipped to fight for humane and ethical wars. The instinct to kill and survive are often confused, but they are not synonymous. Natural human instinct is not to kill: killing is rather a tactic specifically ingrained in soldiers. In response to an inquiry Einstein made regarding the supposed human tendency for violence, Freud’s claim that humans are, in actuality, not hostile by nature, is antithetical to the mentality that has been instilled in societies since the earliest ages of civilization: that the right to and efficacy of authority are proven by sufficiency in war and conquering.
Covenants and the UDHR
The UDHR is at the heart of the discussion around international law and human rights as central to the threat of modern warfare. The UDHR represents the first global collaboration from the UN to provide a framework for consensus on human rights principles, showing increased moral interconnectedness: a factor of globalisation. Despite not being legally binding, it is described by the UN as a ‘common standard of achievements for all people and all nations’ and has inspired the adoption of over seventy human rights covenants since its inauguration (7). However, some would argue that the UDHR outlines human rights in ways that are either inapplicable to every nation or are too vague to cite or be used to enforce international justice in the violation of these rights.
The key here is that beyond the philosophical debate regarding human rights, attempts at meaningful protections of human rights have been made through various legally binding covenants (8). For example, the International Covenant on Economic, Social and Cultural Rights (ICESCR) which enforces the treaty obligations of 87 states to 31 Articles. Whilst the strength of these treaties/covenants is dubious—due to weak monitoring mechanisms and the necessary maintenance of state sovereignty—it is clear that these treaties, covenants and the UDHR combined suggest ‘substantial progress towards universal recognition of human rights norms’ (9). They have also encouraged the implementation of human rights protections on a national level, with some sources suggesting that the UDHR has served as inspiration for at least 90 national constitutions (10). This can be seen with the European Convention on Human Rights (ECHR) which directly draws from articles in the document (Article 10 derives from Article 19 of the UDHR), although this escapes mere symbolism through binding implementations (with members delegating the articles into local law, i.e. the Human Rights Act of 1998 in the UK). However, arguably, these treaties are more guidelines and weak agreements that are unable to withstand political conflict despite their legally binding nature (11).
Specifically, we will now go on to look at Article 19 of the International Covenant for Civil and Political Rights (ICCPR), which includes 167 state parties, establishing that there is indeed a product of globalisation, addressing its impact and its weaknesses with additional contextualisation through a case study of China and US relations, followed by arguing a clear way forward in terms of actually enforcing international law and strengthening the covenant (12).
What is the ICCPR and Article 19?
The ICCPR, adopted in 1966, is an example of one of the above mentioned treaties which protects and ensures that human rights are enforced on a baseline level across all nations for whom it pertains. This international human rights treaty protects civil and political rights, meaning ‘a class of rights that protect individuals’ freedom from infringement by governments, social organizations and private individuals, and which ensure one’s ability to participate in the civil and political life of the society and state without discrimination or repression’(13) . Some examples of this include: providing people with the right to a fair trial, freedom from cruel and unusual punishment, freedom of speech and religion, protection of a citizen’s privacy, as well as freedoms from experiencing bias and discrimination.
Each individual, regardless of their nationality, citizenship, or any other political or legal status, is entitled to a series of universal and inalienable human rights, as declared in the UDHR and further specified in Article 19 of the ICCPR. Article 19 allocates its focus towards freedom of expression. It essentially states that all individuals possess the right to hold and express their opinions freely, and states that one has the right to communicate these beliefs with individuals residing in other countries. This article is vital to the global insurance of human rights to all people due to how it specifically outlines the conditions in which they are enforced and guaranteed.
Globalisation and Article 19 of ICCPR
First, it needs to be established that the ICCPR is a work of globalisation itself: as aforementioned, the UN was born out of an increasingly globalised world, and any documents created by this international organisation are by extension products of this internationalisation. This highlights the positive impacts of globalisation on human rights in aiding the establishment of clear principles and regulations for protection of rights (with the ICCPR specifically looking at civil and political rights).
In more general terms, as a product of globalisation, a theme of increased regard for human rights has emerged within the international community, with efforts to increase pressure exerted on repressive regimes to curb violations of international law. As an example, the Israel-Palestine conflict can be briefly analysed: in 1967, the international response to the conflict was exemplified through Resolution 242, which ‘referred to Palestinians only in the context of refugees, rather than reaffirming their national rights’, showing a lack of focus on human rights issues (14). On the contrary, in the 2016 resolution 2334 which explicitly condemned the actions of Israel and defended the rights of Palestinians, it is clear that there has been an increased emphasis on human rights in international law (15). The emergence of ‘all human rights for all’ at the centre of overarching UN ideology supports this claim to growing legal consideration for human rights: increases in human rights activity are shown through the peer review mechanism established with the Human Rights Council in 2006, which has allowed for effective assessments of the protections of human rights in all 193 member states and has led to 456 resolutions thus far (16, 17). With regard to the ICCPR, this increased activity within the Human Rights Council has lubricated more comprehensive protections for the covenant, with the Rabat Plan of Action (2013) prohibiting the ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’ (18).
The overall impact of globalisation on this covenant and its articles will now be analysed with the comparative method of law. It is central to legal analysis, looking at influences in and between legal systems as well as actually comparing law through different jurisdictions (19). It is also a method that has permeated through centuries and different cultures, and finds itself at the core of legal progress: some sources date its origin to the 4th Century where the ‘Laws of the Twelve Tables’ had within it integrated local law of over 158 city states (20). In terms of the explicit value of comparative law, analysing foreign legal systems to ascertain similarities and differences provides insight into both law in general, and someone’s own legal system. For instance, comparing the American legal system with that of France or Germany can be useful in ‘illuminating American legal problems, because they present social problems which appear in countries at broadly comparable stages of social and economic development’(21). In this way, it is clear that comparison is endlessly useful when it comes to the practice and criticism of both domestic and international law.
Firstly, it can be argued that as a product of globalisation, there’s been a paralleled development in freedom of expression legislation domestically – the principles of which are enshrined in Article 19 of the ICCPR as previously mentioned. To summarise this legislation, it is seen in Article 10 of ECHR from the Council of Europe (came into force 1973), section 2 of the Canadian Charter for Human Rights and section 16 of the Constitution of the Republic of South Africa (1996) to name a few (22, 23, 24). The ICCPR has also arguably encouraged the reinforcement of freedom of expression laws created even before the creation of the covenant: this is illustrated in the case of the Norwegian Constitution, where Article 100 has been amended/strengthened in 1999, 2004 and 2018. The impact of these amendments can be evaluated by looking at a case and comparing. In 1957, the Danish translation of Henry Miller’s ‘Sexus’ was seized by Norwegian authorities due to its overtly erotic content. This case faced great backlash and media coverage, with Miller defending freedom of expression in court – ‘I am only too well aware of the diversity of opinion which these ‘excursi’ elicit in the minds of my readers. But how am I to answer such accusations, touching as they do the very marrow of my literary being?” (Henry Miller Reader (1959)) – and this would later be printed in the ‘Defence of the Freedom to Read’ (a series of pamphlets) (25). Following the case, the Norwegian Supreme Court maintained the ban on Sexus, but this has since been overturned and the book has recently been re-published, due to these increasing protections of freedom of expression. There have been no successful/legal attempts post-2000 to ban books in Norway. Moreover, the Norwegian Academy of Literature and Freedom of Expression was set up in 2003, representative of not only the judiciary, but the public’s increasing regard for these rights. Thus, by comparing the protection of freedom of literary expression specifically in the past and now in the case of Norway, improvements can indeed be shown. In this light, it is evident that domestic law and national organisations have increasingly protected freedom of expression through codification, as inspired by the ICCPR and moral interconnectedness.
In regard to international law specifically, globalisation has allowed for increased state participation in the UN and its covenants; membership has increased from 51 to 193 member states, with only two permanent non-member observer states- Palestine and the Vatican City (26). For the ICCPR, it has 161 state parties and has been ratified by 90 of these, allowing for wider and more comprehensive legal protections of the principles laid out in the covenant (27).
Overall, it is clear that a culture has emerged within the global community for a more awareness of human rights violations, and this has bled into international and domestic legislation. Freedom of expression is thus progressively protected and codified and taking this into account, globalisation and growing moral interconnectedness have allowed for human rights to be considered more actively, specifically through the principle of Article 19.
This article will now go on to assess the degree to which this situation has been improved by the existence of the ICCPR, looking critically at its weaknesses and then going on to discuss proposed improvements.
Weaknesses of the ICCPR
First, it must be established that the ICCPR is legally binding and does have status on the international stage: ratification makes the principles within the ICCPR technically judicially enforceable. However, there are many weaknesses to the systems that uphold the covenant, in both monitoring and implementation-reservations, reporting, legal implementation etcetera, and these will now be discussed.
The maintenance of state sovereignty is central to the structural integrity of the UN, and this reveals itself through the existence of reservations. Reservations means “a unilateral statement, however phrased or named, made by a State or an international organisation when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty or by a State when making a notification of succession to a treaty whereby the State of organisation purports to exclude or to modify the legal effect of certain provisions of the treaty in their application which formulates the reservation” (28). It inhibits effective implementation of the ICCPR. Reservations allow states to remove the legally binding aspect of certain provisions within a treaty, diminishing the enforcement and effectiveness of international law. This issue is only exacerbated through ‘invalid reservations’ – either incompatible with the 1969 Vienna Convention on the Law of Treaties or for another fault – which act to further undermine the legality of the covenants (29). For example, the United States’ (US) relationship with the ICCPR has been particularly concerning, with ‘an unprecedented number’ of reservations, understandings and declarations, namely reserving the right to impose capital punishment which is condemned in Article 6 of the ICCPR (30, 31). Moreover, looking back to the Israel-Palestine conflict, the weakness of these covenants is further shown as, although Israel ratified the ICCPR in 1991, many violations of these articles can be seen: on a more explicit note, the actions of Israel from May 10th to May21st 2021 led to the deaths of 62 Palestinian civilians in what the Human Rights Watch report called ‘deliberate or indiscriminate attacks against civilians’ (32). Furthermore, in regard to freedom of expression, some commentators have noted ‘constitutional regression’ and have highlighted the increasing vulnerability of freedom of expression in Israel: Adam Shinar argues that a new wave of restrictions has emerged through a slew of recent legislation under the guise of ‘defensive democracy’ (33). He gives the example of the 2017 amendment of the Entry into Israel Law of 1952, which allows the Minister of Interior to deny entry to those directly and/or indirectly involved with a boycott against Israel (34). This led to the Human Rights Watch and Omar Shakir v Minister of Interior (2019) case, in which the Minister of Interior refused to renew the visa of Omar Shakir who is Israel and Palestine Director at Human Rights Watch (35). The appellants argued that Israel’s Supreme Court’s decision to deny entry ‘violates…freedom of political expression’ (36). The court ultimately rejected this claim, which makes this a prime example representing the weakness of international law (especially in the context of repressive regimes). In this way, reservations, both valid and invalid, inhibit the implementation and strength of the ICCPR, which has weak powers and enforcement even to states without any reservations.
Another key limitation to the ICCPR is weak enforcement and monitoring mechanisms; the Human Rights Committee (HRC) arguably regulates the enforcement of the ICCPR with inadequate strength and is only able to make recommendations and concluding observations, identifying areas of improvement in the implementation of the ICCPR. Not only that, the recommendations made are not legally binding and there are essentially no serious, beyond social repercussions for not abiding by them (although a state is technically obligated to ‘consider’ them). In addition, Alan Bruder highlights that the ‘remedial powers of the committee are limited to conciliation between the parties’ (in the case of a state or non-state actor filing a complaint about alleged violations of the treaty) (37). If conciliation is not reached, the resulting final report/conclusion from the committee is not legally binding, so the treaty can only be enforced with the consent and agreement of the violating state. However, the view that the covenant’s enforcement is weak is contested by some commentators: in the case of the US, the ICCPR is given the same status as federal law, which under Article IV of the US Constitution (the Supremacy Clause) takes precedence over state law (38). The importance and strength of this clause is conveyed through a quote from the Supreme Court: ‘under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause’ (39). In this way, the power of the covenant in some countries, and its actual comprehensive legal influence, is obvious.
In the case of monitoring mechanisms, the HRC possibly needs reform: for example, the committee is only able to review up to 20 state party reports annually, and in 1999, it had 138 overdue reports (40). Moreover, the system of self-reporting through the Universal Periodic Review (UPR) is extremely vulnerable to the whims of politics and can easily be externally influenced. However, the involvement of NGOs to submit external shadow reports to highlight human right’s violations and compliance to the treaty is meaningful in strengthening the monitoring mechanisms of the ICCPR. For example, the American Civil Liberties Union (ACLU) emphasises their involvement in reviewing the protection of civil rights in the US: in 2013, they submitted a shadow report with ‘areas of concern’ (i.e ‘the militarisation of the US-Mexico Border’ and the ‘Death Penalty’, which the US government did not address in their report) (41). Even so, it is clear that whilst the views of the HRC can be seen to resemble judicial decisions, the enforcement mechanisms are legally weak, and to have true impact, the committee’s legal powers need to be strengthened (42). In terms of the monitoring mechanisms through ‘shadow reports’, these can still be affected by political influence and reports by countries themselves are often unreliable. Moreover, the actual system and structure of the HRC inhibits smooth functioning as the committee cannot adequately withstand and investigate the volume of reports.
A large part of the ICCPR’s ineffectiveness is due to how its legal status and its implementation are antithetical to each other. International law is primarily enforced based on the principles of morals and the mutual agreement between nations to respect the ideas represented in treaties, and can be easily disregarded as soon as conflict arises. In that case, there is no solid force to hold either party accountable or provide either side with consequences.
Case Study: China
To further exemplify this, a brief case study of China’s treatment and relations with human rights law can be evaluated. Whilst China has not ratified the treaty so it is not legally bound, it did sign the treaty in 1998, expressing intent to respect and follow the principles enshrined within. However, China is currently struggling to adhere to the articles within the ICCPR and members of the United Nations are currently calling for immediate decisive measures in response to China failing to protect their citizens and their fundamental rights (43). The U.S, for example, has expressed concern for decades now, over the issue of human rights violations in China following the Tiananmen crackdown in 1989.
China is currently violating the ICCPR in the way they are treating their citizens, especifically the Uyghur muslims (44). The awareness of the breach of human rights arose after a footage was anonymously leaked from these Uyghur Muslim camps. This genocide on the Uyghur Muslims’ bodies is an infringement on their freedoms of religious expression as expressed in both articles 18 and 19. The word “concentration camp” is now being used to describe this violation of human rights, and liberal democracies are pressuring the Chinese Communist Party (the CCP) to take accountability for the mass genocides that are occurring in Xinjiang. Although China has signed the ICCPR, it has failed to ratify it. China has violated article 18, which entitles a person to freedom of belief, and has more specifically violated the section which “prohibits [the] coercion that impairs an individual’s freedom to freely hold or adopt a religion or belief” (45). Furthermore, China makes a direct violation of Article 19 of ICCPR by monitoring their citizens’ cyber activity and regulating their freedom of expression online. China curtailed their usage of weaponry and enhanced their military strategy with technological and cyber capabilities. By using surveillance, the Chinese government has violated their citizens’s right of expression, by surveying people for their own governmental benefit.
In this way, through the example of China’s violations of international human rights law, it is clear that the ICCPR needs to be enhanced, both in ensuring universal ratification and fortifying current implementation and monitoring mechanisms. This article will now discuss proposed solutions to this apparent dilemma and assess the viability of each.
How to Enforce International Law and Strengthen the ICCPR
One of the most prominent current responses to human rights violations is the implementation of sanctions. This article will briefly address the viability of this solution. Due to how the global economy has evolved through globalisation, the methods of working with sanctions have evolved as well. As the world becomes increasingly interconnected, more resources have become available that allow nations and parties to easily avoid regulations within sanctions (46). Increases in the use of technology and the lack of strong legal responses from the UN in enforcing proper sanctions have allowed several nations to deliberately violate them without facing repercussions, or inadvertently endorse third party groups, allowing them to get away with underground financing that undermines the goal of sanctions and international law, especially the UN (47). Moreover, sanctions have also widened the division between nations with different classified economic and national statuses (developing versus developed countries). The patronising idea that more economically developed nations must assist less developed nations is overt in sanctions. In many aspects, the world has moved beyond this way of thinking by, for the most part, abandoning imperialism. However, these sanctions counteract the efforts to become economically independent and oftentimes result in the silencing of those smaller nations. Obviously, sanctions still have positive aspects, and currently it stands as the most effective response to human right’s violations. Even so, one only needs to look at the ineffectiveness of this solution in the recent events of the Ukrainian War, with sanctions failing to curb Russia’s flagrant human rights violations. This article will now sideline this solution to address other, more pertinent response mechanisms.
One way to reinforce this implementation is to hold states accountable for failing to uphold their obligations to the covenants they have previously ratified – a huge weakness. The HRC needs to be strengthened in this regard and whilst a strengthening process is currently underway, this guide is mainly focused on improving the efficiency through using modern technology and improving annual workload/effectiveness. First, this process needs to be accelerated and efforts need to be urgently put into this reform, instead of slow implementation over the next decade. Not only that, this process fails to address the actual core of the issue, which is the weakness of the HRC’s recommendations: making their comments binding and of real legal consequence would – in theory indeed improve international protection of the ICCPR. Moreover, in reference to the aforementioned weaknesses of the ICCPR, the HRC needs to truly forbid states from submitting invalid resolutions and have a better system to protect them against this possibility.
Another possible solution is to strengthen domestic enforcement of the ICCPR. Domestic enforcement is either achieved through ‘general transformation’ – where ratified treaties are automatically incorporated into the domestic constitution and/or legal system – or through ‘special transformation’ – where separate legislation is created as derivative of the international law (48). An example of each of these – to further illustrate the difference – can be briefly analysed: in the case of special transformation, the Canadian Human Rights Act of 1977 serves as an example, protecting worker rights, and in the case of general transformation, France has just ratified the UDHR, ECHR and the Charter of Fundamental Rights of the European Union as the foundation for its domestic protection of human rights (49). Encouraging either of these methods for state parties – even if they have not ratified any international treaties (in the case of China) – is important to address the weakness of international law. For instance, Australia ‘remains the only democracy in the world not to have passed a law directly implementing the ICCPR’, and has been facing mounting criticisms for not doing so (50). If this pressure and criticism was codified and more actively supported by the international community, and international organisations like the UN, the efficacy of the domestic implementation of civil and political rights protections would be increased. The extent of this issue should not be exaggerated, however, as ratified countries are obligated to and do normatively implement the ICCPR into their domestic legal system through either of the aforementioned methods as is stated in the covenant. In this way, it would be more efficient to strengthen the abilities of the HRC in legal ramifications for human rights violations by giving their findings more weight, outside of political and social consequences. Even so, further encouragement can also be made for countries that have not ratified the treaty to domestically implement the principles of the ICCPR.
This implementation could also be improved through a UN-centred approach, which is especially pertinent in the case of repressive regimes. For example, for the Israel-Palestine conflict, US overreach has explicitly inhibited an effective response to human rights violations, showing consecutive support for Israel. This would be achieved through weakening the powers of Security Council Members, possibly in regard to veto powers: the Russian Federation, for example, has used this ability 120 times as of 2022 (51). This, however, would most likely obstruct state participation and lead to the disintegration of the international community of the UN, with countries like the US opting to retract membership without the privileges. In this way, it would be easier and more immediately attainable to encourage stronger domestic enforcement of these human rights principles, for states that have not ratified the covenant, or, more clearly, to strengthen the conclusions and/or actions of the HRC.
First, this research article has established that international covenants and treaties themselves are products of globalisation, showing that internationalisation has aided the fight for human rights by creating the conditions for international principles and protections of these rights to be formed. This transcends into law as well, with an international legal system being created due to this increasing interconnectedness which allows for more consciousness for human rights, and more repercussions for violations. In this way, merely due to the creation of these covenants and the creation of an international community, globalisation has through one lens aided human rights.
The impact of globalisation on Article 19 of the ICCPR has been assessed, as well as general domestic, national and international legal protections of freedom of expression. In this regard, there has been an increased awareness of this principle in law, and that once more, through the lens of growing freedom of expression legislation, globalisation can be seen to help human rights.
There were, however, limitations to this view in the weakness of these international covenants – through reservations, weak enforcement mechanisms and so on – and has shown that the current international legal framework for human rights protections suffers from many shortcomings. Possible solutions to some of these weaknesses have been proposed in the form of sanctions, the support of a UN-centered approach, reform to the HRC and encouragement of stronger domestic enforcement. Following assessment, the latter two provide the most potential for pathways for improvement to protections of human rights.
In summary, despite the weakness of the ICCPR and the need for reform – in terms of enforcement, monitoring and legal implementation – globalisation has increased the protections of freedom of expression and human rights overall, which has helped the fight for human rights.
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