‘Every Organ of Society’: Exploring the Role of Social Institutions in the Effective Implementation of International Human Rights LawJulie Fraser
This year we celebrate the 70th anniversary of the Universal Declaration of Human Rights (UDHR). This document continues to represent a landmark achievement of the international community. Since 1948, much progress has been achieved, with numerous human rights treaties and instruments adopted nationally, regionally, and internationally. Despite this momentum, human rights continue to be violated in all states around the world, revealing the gap between law and practice. The challenge of implementation – of making legal norms a lived reality – is now most pressing. How to address this challenge was the focus of my PhD research completed earlier this year. This research focused on criticisms of state-centricity in international human rights law, as well as its tendency to take a legalistic approach to implementation. Identifying the shortcomings of state-centric legalism, my research proposed involving informal social institutions the domestic implementation of human rights due to their cultural embeddeness and ability to guide human behaviour.
Cultural embeddedness is important as a contributing factor to the poor implementation and violation of rights is their ongoing contestation. Scholars have long connected human rights’ lack of cultural legitimacy with their violation. This relates to the longstanding cultural and postcolonial critiques of human rights and their perceived Western bias, which are as old as the UDHR itself. Clearly, human rights cannot be taken for granted and these critiques remain pressing. Numerous scholars have addressed these critiques over time, with some mapping out ways to reconcile human rights with diverse cultures. Scholars have advocated culturally sensitive approaches to human rights that include local cultural norms and actors – social institutions – in programs for effective implementation. Such approaches promote reliance upon non-legal measures of implementation, and upon the dynamism of culture and the agency of those within cultural communities. The purpose of such approaches is not only to promote the effective implementation of human rights, but also to demonstrate due respect to the broad cultural diversity around the world. On this basis, culturally sensitive approaches to human rights are argued to be both pragmatic as well as principled. On this basis, my dissertation examined in detail the role of social institutions in the domestic implementation of international human rights law.
The first part of this task involved analysing the applicable international legal framework. As a principle of international law, the human rights treaties grant States parties broad discretion in implementation, creating obligations of result and typically not conduct. The human rights treaties permit States parties to employ “legislative and other measures” to domestically implement the treaty provisions. Despite this discretion and permissiveness, legislation is the primary implementation measure emphasised by the UN treaties, treaty bodies, and literature. In fact, little scholarship has been dedicated to exploring the scope and nature of “other measures” of implementation. This preoccupation with the law has given rise to a critique of legalism in human rights, emphasising the limitations of the law and that other disciplines provide important insights to human rights in context.
Another aspect of legalism is that it necessarily focuses on the State and diminishes the role of other non-State actors (NSAs) in implementation. However, NSAs like religious and kinship groups have long been performing “State functions” and fulfilling rights such as health and education. While States are the principal duty-bearers under international human rights law, the treaties permit other NSAs to also play a role in implementation, who are acknowledged as having international responsibilities. International human rights law applies indirectly to NSAs, via States parties’ due diligence obligations to domestically regulate, monitor, and enforce standards. While the State model is common in the West, it is less entrenched elsewhere, particularly in the global South, where other actors and normative systems exist that should be taken into account. These non-State norms and actors (social institutions) can be crucial in effective human rights implementation. Given the implementation gaps, violation of rights around the world, and the limitations of legislation and the State to fully protect rights, I assessed that further research was needed into the role of other measures and actors.
Therefore, my dissertation includes a multi-disciplinary case study examining the role of social institutions in implementing human rights in context. The study analyses the role of Islamic law and institutions in implementing women’s right to family planning in Indonesia. This is significant as often NSAs – and cultural/religious actors in particular – are portrayed as obstacles to human rights enjoyment, and not as assets in their protection. However, as seen in my Indonesian example, they can be essential to human rights’ domestic implementation. For instance, as international human rights law is inherently top-down, it is necessarily external/foreign to the local communities to which it applies. The perception of human rights as foreign (in substance and/or form) reduces their likelihood of being respected in practice, especially where rights conflict with local cultural norms. The Indonesian example demonstrated how locally embedded and legitimate social institutions can bridge this gap and present human rights as compatible with and supported by cultural norms. In this case, the work of Islamic actors complemented that of State authorities, with Muslim women using their agency to shape religious norms and practices in line with the right to family planning.
My research showed that Islamic law and institutions are central to reproductive health in Indonesia and are too empirically important to be disregarded. Despite this, they are virtually absent in the UN treaty bodies’ Concluding Observations to Indonesia, which continue to focus on the State and on legislation. Given that the treaties all recognise other measures of implementation and the involvement of other actors, the treaty bodies should adjust their approach without having to change their structure or mandate – just their practice. Therefore, I advocate further consideration by the UN treaty bodies of rights implementation beyond the possibilities offered by formal State institutions and to include also social institutions. This is done on a practical basis, to secure better effectiveness of implementation measures, and also a normative one, to better respect States’ cultural diversity. As such, I advocate culturally sensitive approaches to human rights implementation and to the involvement of social institutions therein. On this basis, my research relates to wider themes in human rights, such as the need for new/better narratives to connect rights meaningful to local communities all around the world, as well as the shift away from State-centricity toward actors and norms below and beyond the State.