Where Human Rights Fails
The intent of human rights justice has been and continues to be protecting the most vulnerable and marginalized groups of society, but expectations and reality do not always align. The efficacy of human rights law and policy, therefore, is questionable as human rights violations continue to occur worldwide. Although the instruments, law, policy, and activism of human rights have proven successful in protecting the vulnerable, occasions of violations still exist due to weak laws and policies. By focusing on specific case studies in which human rights law fails to protect the victimized individual or group, I will evaluate the impact of human rights law on an international level to understand why those particular rights were violated.
Essentially, human rights is largely about securing the rights of every human being. To be human, as Professor Darren Zook poses, is to have rights (Lecture, 9/1). It is also to make the assumption that being human generates rights, but why do human rights exist? There are endless reasons for why we are guaranteed our rights, one being the importance of upholding our values and understanding that violations to human rights is fundamentally wrong. Securing human rights more then anything gives us all hope in the world which we live in. Many ideals are found in the United Nations Universal Declaration of Human Rights as it serves as a foundational document of human rights. The UN's central mission is to protect the “inherent dignity” of human beings, but the document is neither legally binding nor is it clear in defining any legal terms. Preceding the UDHR is the International Covenant on Civil and Political Rights (ICCPR) guaranteeing various freedoms and rights. Although this is one of the first and most foundational documents that can be enforced, there are often complications standing in the way of human rights justice.
Although a major goal of human rights justice is to protect the human security of all people, it is often limited due to cultural distinctions. The intent of women's rights in eliminating vulnerability and discrimination and addressing systematic marginalization are ambitious goals, but they are difficult to achieve due to weaknesses of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). To begin, the principles of CEDAW are good, but parts such as the preamble weaken the document when they are irrelevant to women's rights in general. While Article 1 attempts defining “discrimination against women,” not only is the wording poor but no women were involved in the drafting of the treaty. In terms of structure, the text is also very repetitive as it borrows from the ICCPR and ICESCR, with the only difference being that it specifically calls for the equal access of women. In 1998, the Malaysian government withdrew a number of CEDAW reservations, claiming that Islamic law neither denies or justifies the unequal treatment of women (Lecture, 9/10). Sharia law can be limiting to a woman's life because of the societal advantages men have over them. However, the government does not find that Islamic Sharia law discriminates between men and women and thus notified the Secretary General of its withdrawal on Articles 2 (f), 5 (a), 7 (b), 9, and 16 of the Convention (CEDAW). Overall, this creates great difficulty in protecting Malaysian women's rights, since the convention's entirety cannot be enforced in the country. Therefore, this shows that legal treaties like the CEDAW at times face obstacles of cultural differences.
Furthermore, in determining the human rights of children the Convention on the Rights of the Child (CRC) aims to provide legal protection to those who cannot hold rights. The language and structure of treaties, however, is another reason this convention is in some circumstances ineffective in protecting the rights of the child. Thomas Humphrey's article examines “the ultimate arbiter of the child's best interests in medical cases,” whether it be the state, parents, or the children themselves (Humphrey, 141). In Auckland Healthcare Services Ltd v. Liu, a 12-year-old boy's urgent need for surgery conflicted with his family's religious beliefs (Humphrey, 149). As devoted Baptists, he and his parents refused his surgical needs because they believed only God could cure him. The court, however, found that the boy's eye condition was more pressing and that interfering with the family's religious views was necessary to ensure his well-being. This case thus presents the issue with vague definitions and poorly written laws. The law states that “when a child's right to live and his parent's religious beliefs collide, the former is paramount,” but there is no clarification as to what extent New Zealand can override religion in a non-life-threatening case (Humphrey, 149). Although the boy's condition was not life-threatening, his eyesight was at risk and called for the state's intervention. When caught between the freedom of religion and the right to life, it is difficult to determine which is more important. Therefore, the lack of an explicit definition makes it challenging to provide legal protection for such a vulnerable age group.
Lastly, the lack of structure of human rights law and the regional differences that affect it are evident in cases of indigenous and minority rights as well. The protection of minorities is grounded in rights of inclusion and guaranteeing the equality of all, but when the very idea of a “minority” is not clarified the law is confined in the ways it can be inclusive of all people. Article 27 of the ICCPR states, “...minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language” (ICCPR). The freedom to practice their culture and traditions is guaranteed, but a universally accepted definition of who “they” are remains undefined. In addition, the types of minorities listed only include: national, ethnic, religious, linguistic, and cultural (Lecture, 9/15). Racial and sexual minorities are very much excluded from being listed in declarations, treaties, and other legal instruments of minority rights. Singapore, for instance, dismisses the concept of sexual minority rights as “Western” and finds it inapplicable in their country. Interests of the community in Asian societies have greater value than individual rights of Western societies, and the family is perceived as the basic unit of society (Lecture, 10/6). Sexual minorities, then, are not only seen as anti-family but receive no recognition from the state. The Singapore High Court decision in Ng Huat v. Public Prosecutor ultimately represented the Chief Justice's logic: “any person with any homosexual tendencies would be denied the attribute of innocence and ascribed the attribute of guilt in a transaction of gross indecency under section 377A” (Chan, 287). Section 377 of the Penal Code of Singapore specifically prohibits consensual intercourse with 377A prohibiting acts of “gross indecency” between males (Chan, 286). In this case, the male victim was prosecuted for those acts on the basis that he refused physical examination, which if anything meant to the court that he was guilty. Thus, when left up to the state the decision to uphold Singaporean Confucian beliefs or defend sexual minority rights the result is social injustice. In the end, states like Singapore hold entirely different ideals, and it is another contributing factor to the inefficacy of human rights law.
Moreover, indigenous rights illustrates the ways in which constitutional differences inhibit the ability of human rights law to assist a vulnerable population. In 1986, the Supreme Court established in Talton v. Mayes that the Bill of Rights applies only to federal and state governments, not to Native American tribes. Since tribes were not a part of those governments, individuals claiming that Indian tribes violated their rights received no federal attention. As a non-Indian, Talton was convicted of murdering a Cherokee and challenged the court that he was not guaranteed his Fifth Amendment due process rights. The Supreme Court denied his argument with the reasoning that “the powers of self-government 'enjoyed by the Cherokee Nation existed prior to the constitution'” (Cowen, 11). This raised the question of whether Native American tribal human rights violations are legally the responsibility of other states like the U.S. Further, the human rights justice of indigenous groups faces obstacles of a variety of standards amongst all the tribes.
All in all, in evaluating the effectiveness and ability of human rights law to protect and assist the most vulnerable individuals or groups, the receptivity of those victims must be considered as well. Although there are cases where the poor wording and lack of structure of the law is the root cause of human rights violations, cultural and constitutional differences also create challenges in enforcing the written law. The reality is that human rights law may not succeed every time around, but the fact that it exists and continues to evolve with every individual, state, and issue on all the different levels is what gives us hope in humanity.