Leiden Safety and Security Blog

Do International Treaties Matter?

Do International Treaties Matter? 'No Matter' Project, Flickr

We live in a world of treaties. Every day we engage in countless activities which have been shaped by a treaty of some kind or other. My Twinings green jasmine tea has had to go through multiple layers of international trade agreements to reach my mug. The electricity which powers our homes, schools, and workplaces is governed by a wide variety of treaties, and the manufacturers of my refrigerator had to ensure they were in compliance with the Montreal Protocol. When we board a train to go down to Brussels, our journey is dictated by a string of different agreements, both local and international.

In this way, we can see ourselves as existing within a dense network comprising multitudinous treaties and international agreements. We take them for granted, often not quite realizing they exist or having a conscious appreciation for how they influence our lives.

Unfortunately they can often go unnoticed by policymakers, as well. Take, for instance, the European Convention on Human Rights (ECHR), the human rights treaty binding the 47  member states of the Council of Europe. The legal obligations set out in the ECHR are from time to time clarified by resolutions from the Council of Europe’s Parliamentary Assembly, in relation to current debates. While non-binding, these resolutions play an important role in advising member states of their likelihood to be found in violation of the ECHR. One such resolution was published on January 25thof this year; Resolution 2263 addresses the removal of citizenship from returning foreign fighters, an issue which is currently dominating the counterterrorism discourse. While acknowledging that states “possess a legitimate sovereign right to guarantee security on their own territory”, the Resolution also warns that “our democratic societies can only be protected effectively by ensuring that such anti-terrorism measures abide by the rule of law.” It then lays out the numerous ways in which such measures would contravene the ECHR. These cover both the illegality of imposing statelessness on a person, in accordance with the 1961 UN Convention on the Reduction of  Statelessness, as well as the potential discriminatory effects of such measures. These of course are already well-known, but the Resolution also points out that the process by which citizenship is being removed from returning foreign fighters is in direct violation of the rule of law, as subjects have the right to due process in a criminal court.

Yet this resolution has been met with little to no reaction or coverage within the media. It has not been mentioned in various articles on the effectiveness and legality of citizenship removal. The first part of the resolution, affirming states’ sovereignty, seems to overshadow the crucial second part about rule of law, to its detriment. So one has to wonder: do these resolutions, but more importantly the treaty which they clarify, even matter?

Perhaps not as much as we would think. The European Convention on Human Rights (ECHR) is the oldest regional human rights treaty. It has been in existence for over 70 years, and for the majority of those years it has enjoyed high rates of compliance across its member states, measured primarily by the implementation of judgments from its judicial organ (hereinafter the Court). In recent years, however, this trend has reversed. In the absence of enforcement mechanisms to compel states to comply with the Court’s judgments, the rates of compliance have dropped, in conjunction with a backlog of cases being brought to the Court, and an increasing pattern of states paying lip service to the values of the ECHR without fully upholding them in the eyes of the Court.

The UK is a prime example of these sorts of delaying tactics. It also has removed citizenship from at least 373 individuals since 2006 and is now embroiled in debates over the case of Shamima Begum. Begum, a poster child for foreign fighters returning from Syria, has been stripped of her citizenship even though that leaves her stateless, which is in itself in contravention of international law. But that has not slowed the UK (and other states) down from asserting their sovereignty despite the existence of binding international treaties instructing them otherwise. More commonly, when states find their liberties restricted by treaties, they choose to pursue their own interests – logical, considering there are few if any enforcement mechanisms in place, particularly on the topic of human rights. For instance, several years ago when the Court instructed the UK to protect voting rights for persons in prison, there was domestic outcry and backlash against the Court’s authority, and many discussed the possibility of withdrawing from the ECHR altogether. In the midst of Brexit and widespread skepticism about international institutions altogether, perhaps it is no wonder that Resolution 2263 has been treated as a paper tiger to the extent that it is barely acknowledged, despite the fact that UK representatives to the Council of Europe were amongst its signatories.

Yet this is a worrying trend. What happens when our network of international treaties goes ignored? Do treaties matter? What is the utility of having international institutions which provide guidance on issues such as human rights, if no one pays any attention to them? A dense network of treaties may be valuable for providing peace and security, but only to the extent to which such treaties are observed. In the absence of textbook compliance, perhaps it is time to re-examine the balance we strike between supranational institutionalization and state sovereignty.

1 Comment

Hakimi Abdul Jabar
Posted on April 9, 2019 at 14:30 by Hakimi Abdul Jabar

MY HUMBLE LEGAL OPINION ON THE UNENFORCEABLE & ILLEGAL USE OF ANY UNSC P5 VETO TO CIRCUMVENT THE PREVENTION OF WAR CRIMES

194 nation-states have accepted and recognized, without any reservation Common Article 1 to the Geneva Conventions.  Not a single state has contested the International Committee of the Red Cross, ICRC’s interpretation of Common Article 1 which gives imperative, legal force to the duty to prevent war crimes.  The duty to prevent war crimes is absolute & unconditional in character and no two states, or a collection of states, may enter into reciprocal agreements that allow them to circumvent this duty.  Hence, having factors under Article 53 of the Vienna Convention on the Law of Treaties duly satisfied, the duty to prevent war crimes is a peremptory norm of international law, a jus cogens norm.  By the authorities adumbrated above, these factors make any use of any UNSC P5 veto to circumvent the prevention of war crimes unenforceable and illegal as such will be contrary to a well-established jus cogens norm.

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