Politicus Journal To What Extent is International Human Rights , Really Law? An Analysis of Principles of Law in Relation to International Treaties Ashley Persuad [email protected]

Introduction freedoms for all without distinction as to race, The establishment of the United Nations sex, language, or religion”.3 The UN did not (UN) and international human rights law de- enforce detailed obligations amongst its mem- rives from various historical antecedents. The bers, however, by establishing an internation- contemporary system in existence today can be ally recognized mandate, it became challeng- traced back to the establishment of the League ing for states to avoid acknowledging human of Nations following the end of World War rights violations. I. The operation of its bureau of institutions Today, the international legal system worked to protect minority rights by designing operates through the application of relative treaties, mandating territories, and founding normativity by states, which can also be de- committees such as the Committees of Three, fined as customary international law.4 States which revised petitions motioned forward by function and interact through non-binding minorities facing the infringement of their normative standards that reflect the universal human rights.1 International assemblies have understanding of international obligations. contributed extensive jurisprudence towards This paper will assess the enforceability of the development of human rights law.2 After International Human Rights Law as a system the dissolution of the League of Nations, the of norms by measuring its standards and func- UN Charter continued to pave the direction of tions against the criteria of the . human rights law following the consequences This paper argues that ultimately International of World War II and the Holocaust, by docu- Human Rights Law cannot be legitimately menting the aim of achieving “international defined as law when analyzed within the lens co-operation in…promoting and encouraging of the Rule of Law. More specifically, human respect for human rights and for fundamental rights are essentially adhered to out of common customs. Conversely, the rule of law

1 Thomas Buergenthal, “The Evolving International Human Rights System Author,” Source: The American 3 “Chapter I | United Nations,” pararaph 3, accessed Journal of International Law, vol. 100, 2006, https:// May 30, 2020, https://www.un.org/en/sections/ www.jstor.org/stable/4126317?seq=1&cid=pdf-refer- un-charter/chapter-i/index.html. ence#references_tab_contents. 4 Ulrich Fastenrath, “Relative Normativity in Interna- 2 Buergenthal. tional Law,” n.d., 307-308.

47 is an allegiant system of laws, institutions, and cordance with universally accepted norms community commitment that communicate and guidelines to gauge how the rule of law is 6 four universal principles. This will be demon- interpreted by the general public worldwide. strated by first, discussing normativity in the The combined principles establish a strong context of international law with a focus on the working definition of the rule of law. European Union. Secondly, the relationship between the UN and other international bodies Normativity & Customary International in regard to accountability will be discussed. Law Then, the Universal Declaration of Human The normativity of rules defines the Rights and the concept of just laws will be ad- quality of legal obligation. Since international dressed. This will be followed by a discussion law advances values such as the regulation of of the United States’ violation of human rights the use of force and protection of individual for the African American community, as well rights, the creation of a normative consen- as open government. Accessible and impartial sus is promoted in international conduct. The dispute resolution and the enforcement mech- normative system functions to identify global anisms of international customary law will pursuits of certain values and goals, thus guid- 7 be analyzed and followed by a discussion of ing the direction of international relations. criticisms of the customary justice system. The Normative change is reflected in the traditional first principle is accountability, which sug- source of international law by the evolution gests that both the state and private actors are of customary processes. International law is held accountable by legal rules. These legal understood as “law” due to the acceptance 8 rules must be coherent, publicized, and laws of relative normativity by state actors. The protect fundamental rights, with inclusion of universal interpretation, the historic develop- the security of persons and contract, property, ment, and current operations of international and human rights. The subsequent principle is law, build the general understanding of law by just laws. To satisfactorily meet this standard, states that acknowledge it, which most do in 9 rules must be coherent, publicized, consistent, order to satisfy their own best interests. States and applied evenly. Open government is the are essentially in control of the resolution of criterion specifying that the processes of legal disputes that take place within their sovereign- enactment are administered transparently and ty. Therefore, isolated state actors are unable are just and efficient. The final standard neces- to secure a monopoly in international rela- 10 sitates accessible and impartial dispute res- tions. The process of customary law insulates olution. Justice must be delivered timely by 6 “Measuring the Rule of Law | World Justice Proj- competent, ethical, and independent represen- ect.” tatives and neutrals who are accessible, have 7 Fastenrath, “Relative Normativity in International adequate resources, and reflect the makeup of Law.” the communities they serve.5 8 Fastenrath. These principles are developed in ac- 9 M. Ayoob, “Humanitarian Intervention and State Sovereignty,” The International Journal of Human Rights 6, no. 1 (March 2002): 81–102, https://doi. 5 “Measuring the Rule of Law | World Justice Proj- org/10.1080/714003751, 81. ect,” accessed May 30, 2020, https://worldjusticeproj- 10 Charlotte Ku and Paul F Diehl, “EXCERPTED ect.org/our-work/publications/working-papers/measur- FROM International Law: Classic and Contemporary ing-rule-law. Readings SECOND EDITION,” 2003, 4-6. 48 Politicus Journal the pursuits of national or private interests failed to exist.13 The balance of state power from threats of anarchy, allowing political and influence also determines levels of com- units to interact and coexist as sovereign actors pliance. The Ottawa Treaty banning landmines and possessors of coercive power in global was ratified by 161 states. However, the three relations.11 leading arms manufacturers – China, Russia, To further expand on the internation- and the US, never ratified the treaty. The Ot- al state system and states acknowledgement tawa Treaty has detrimental effects to these of the international legal system, this paper states in comparison to other states that may will examine a case study surrounding the not manufacture arms and therefore, the treaty degrees of state compliance within the Euro- has heavier impacts upon states such as China, pean Union (EU). Differences in compliance Russia, and the US. The design of treaties can varies amongst all states, with no limitations motivate state behavior and so, the level of surrounding weak and powerful states as well impact of treaties against states is a massive as comparable homologous states. All member factor in compliance or noncompliance.14 states of the EU are subject to the same legal There are multiple interpretations of requirements, but their data conveys that mem- what defines rule of law. In order to be consid- ber state non-compliance with European laws ered a legal proposition, texts must be derived vary from state to state. The UK and Italy are from a legal constitution or in extreme cases, a both powerful EU member states, however, primary norm according to The Pure Theory of Italy has a threefold record of non-compliance Law.15 It is also argued that legal rule is char- in comparison to the UK. 12 This variation can acterized by its constitutional validity, there- be explained by several factors, one of which fore laws must be drafted through a law-cre- is the theory of realism. Realism assumes ating process or be incorporated in legal order that states operate out of self-interest, and by some other form of constitutional matter.16 realist scholars tend to be skeptical of formal H.L.A. Hart approaches normativity by argu- agreements or treaties having influence on ing that the individual recognition of norms as state behaviour. For example, Mearsheimer attributes self-interest as a legitimate factor of 13 Mearsheimer, John J. 1994. “The False Promise of state compliance with standards of formal in- International Institutions.” International Security 19 ternational agreements. States behave in such (3): 5–49. https://doi.org/10.2307/2539078. 14 Seeking Higher Ground. 2008. Seeking High- a manner because it is in their best interest er Ground. Palgrave Macmillan US. https://doi. and states would act this way even if treaties org/10.1057/9780230610095. 15 Hans Kelsen, “The Pure Theory of Law and Ana- 11 Ku and Diehl. lytical Jurisprudence,” Harvard Law Review 55, no. 1 12 Börzel, Tanja A, Tobias Hofmann, Diana Panke, (1941): 44-70, doi:10.2307/1334739, 55-56. and Carina Sprungk. 2010. “Obstinate and Inefficient: 16 Marc G. Pufong, “State Obligation, Sovereignty, Why Member States Do Not Comply With European and Theories of International Law,” Politics & Policy Law.” Comparative Political Studies 43 (11): 1363– 29, no. 3 (September 1, 2001): 478–519, https://doi. 90. https://doi.org/10.1177/0010414010376910 org/10.1111/j.1747-1346.2001.tb00600.x, 490-492

49 legal norms is satisfactory enough in his legal none of these mechanisms offer legitimate le- philosophies.17 This is based on the premise of gal measures as will be explored below. In the understanding that the existence of a constitu- context of the WJP’s definition of legal rule, tion is a luxury. Scholars such as Friedrich V. the current normative system of customary Kratochwil argue that state actors feel bound law pertaining to International Human Rights through the admission of legal norms and are Law as an enforceable system of norms, lacks reason enough to coerce and bind international functionality and the level of standard outlined actors without them questioning or needing to in the WJP index criteria in order to be defined prove validity.18 as a legitimate form of legal rule. There is, however, a significant differ- Accountability ence between the assumption of being bound Accountability is verified in states under the principle of good faith versus being where the government as well as private actors formally bound to a strong piece of legislation are held liable under the law.21 International that legitimately administers global norms via human rights law is predominantly guided by mechanisms of enforcement. While customary the United Nations. UN organizations are lim- law may influence decisions of the courts, it ited to providing recommendations to member still cannot be legitimately defined or appli- states, whereas the UN Security Council holds cable as rule of law by the definition of WJP. power to make judgements that member states Instead, it is an element of existing laws or are subsequently obligated to implement un- a suggestion in the direction of interpreting der the UN Charter.22 However, many states rules.19 continue to defy council deliberations and Today, international human rights laws very rarely is this acknowledged by the UN, are strongly promoted and enshrined by var- much less prosecuted under a system guided ious UN organizations: the Charter-Based by customary law.23 For example, Sudan is system; the Treaty-Based System; the Gen- a state with a horrendous human rights track eral Assembly and the Security Council; and record. More than 200,000 people were mur- Overall Achievement of the UN.20 However, dered by the Janjaweed militias, which was backed by the Sudanese government.24 The UN initially refused to categorize the “killing 17 William Starr, “Law and Morality in H.L.A. Hart’s Legal Philosophy,” Marquette Law Review 67, no. 4 (January 1, 1984), https://scholarship.law.marquette. 21 “What Is the Rule of Law? | World Justice Project,” edu/mulr/vol67/iss4/8, 375-378. accessed May 30, 2020, https://worldjusticeproject. 18 Kratochwil, Friedrich V. 1983. “Is International org/about-us/overview/what-rule-law. Law ‘Proper’ Law? The Concept of Law in the Light 22 “Chapter I | United Nations.” of an Assessment of the ‘Legal’ Nature of Prescrip- 23 “Customary Justice: From Program Design to Im- tions in the Internatonal Arena.” ARSP: Archiv Für pact Evaluation | IDLO - International Development Rechts- Und Sozialphilosophie / Archives for Philos- Law Organization,” accessed May 30, 2020, https:// ophy of Law and Social Philosophy 69 (1): 13–46. www.idlo.int/publications/customary-justice-pro- http://www.jstor.org/stable/23679687. gram-design-impact-evaluation, 19-21. 19 Douglas C Hodgson, “The Tuniso-Libyan Con- 24 Gardiner, Nile. 2007. “The Decline and Fall of tinental Shelf Case, 16 Case W. Res,” Case Western the United Nations: Why the U.N. Has Failed and Reserve Journal of International Law, vol. 16, 1984, How It Needs to Be Reformed.” Macalester Inter- 7-10. national 19: 41. https://digitalcommons.macalester. 20 Buergenthal, “The Evolving International Human edu/cgi/viewcontent.cgi?referer=https://www.google. Rights System Author,” 783. com/&httpsredir=1&article=1363&context=macintl. 50 Politicus Journal fields” of Darfur in the Sudan, as genocide.25 Furthermore, the expectation that the Furthermore, Sudan was an active member of state and private actors both share responsibil- the UN Commission on Human Rights (now ity and accountability within a customary legal defunct) from 2002 to 2005. Sudan utilized its system can be disputed on the grounds of cer- membership to block formal disapproval from tain non-state actors fundamentally differing the United Nations.26 In order for both state from states.30 Private and non-state actors are and private actors (both firms and individuals) subject to the standard of obligation within le- to be held accountable, they must be bound by gitimate normative expectations in the custom- a strong model of international enforcement. ary legal system. International law lacks spe- The delivery of state compliance in interna- cific legal frameworks to direct process(es) of tional customary law is compelled by social accountability regarding unlawful conduct of coercion, which implies that the insurance of non-state actors and, as a consequence, obliga- normative commitment to customary law is tions are ambiguous. The lack of legal identity perpetuated by the stigma towards the rejec- results in cases where human rights violations tion of decisions or jeopardization of group occur but are not technically established as congruity.27 The balance of varying economic violations under international customary law.31 and political status within the arena of inter- Violations can also occur in union of national actors indicates that powerful states both state and non-state actors, for example, have leverage (in context of the distribution of private military and security companies con- material capabilities) in their choice to uphold tracted by states have committed human rights obligations of international customary law.28 violations but are not bound by the primary This also applies to the social resources of norms of international law to begin with.32 state and how they are perceived by others. Since state actors and non-state actors are not The variation in the application of pressure adequately and equally held liable or responsi- in relation to the status of state power results ble under the international legal system, inter- in scenarios where states may ignore customs national human rights law does not pass the and/or be unresponsive to duties of compli- WJP criteria of accountability and thus cannot ance.29 be regarded as an enforceable norm.

25 Ibid. 30 Jean D’aspremont et al., “Sharing Responsibility 26 Ibid. Between Non-State Actors and States in International 27 “Customary Justice: From Program Design to Im- Law: Introduction,” International Law pact Evaluation | IDLO - International Development Review 62 (2015), https://doi.org/10.1007/s40802- Law Organization.” 015-0015-0, 50-53. 28 “Customary Justice: From Program Design to Im- 31 D’aspremont et al. pact Evaluation | IDLO - International Development 32 Del Prado, José L. Gómez, “Impact on Human Law Organization.” Rights of a New Non-State Actor: Private Military and 29 “Customary Justice: From Program Design to Im- Security Companies,” The Brown Journal of World pact Evaluation | IDLO - International Development Affairs 18, no. 1 (2011): 151-69, www.jstor.org/sta- Law Organization.” ble/24590786, 151-153

51 Just Laws lar manner.38 These standards are not applied WJP defines “Just laws” as laws which evenly as international law passes down the are clear, publicized, and stable. Laws must be responsibility of adopting measures of leg- applied evenly and protect fundamental rights, islation, in harmony with a state’s particular particularly the security of persons and con- constitutional process,39 which is problematic tract, property, and human rights.33 considering discrimination is enshrined in The Universal Declaration of Human many state laws. Customary systems are flexi- Rights (UDHR) is the strongest proclama- ble since norms evolve to address the changing tion of international human rights standards. social conditions, economic standings, and in- Human rights are deemed enforceable when tra-community politics of the state.40 However, codified in conventions, covenants, treaties, the flexibility offered to allow leaders to pro- or are recognized as customary international pose locally specified solutions, has counter- law.34 The contents of UDHR have adapted acting effects as coherency and predictability and influenced a variety of systems of gov- can become absent in the application of rules ernance in the form of legislation such as the that are applied differently to varying groups Canadian Human Rights Act.35 The UDHR has in the same position.41 As of 2019, 77 states inspired deep bodies of legality pertaining to criminally prosecute individuals on the basis human rights and is regarded to be clear, pub- of their sexuality or gender identity.42 Women licized, and stable in the context of the opera- continue to be subject to inequality and dis- tional frameworks of customary international criminatory reflections of this can be found in law.36 However, in some cases, the UN and legal systems worldwide. The Irish Protection the UDHR do not hold power to truly protect of Life During Pregnancy Act outlines legal fundamental rights. As previously highlighted limitations on abortions and women’s repro- in the analysis of accountability in state and ductive health.43 In the United States, codified non-state actor conduct, the clarity of these laws regulate and limit women’s rights to life laws is subject to interpretation. In addition to this, acts of misconduct are not defined as 38 “Customary Justice: From Program Design to Im- civil or criminal and are generally perceived in pact Evaluation | IDLO - International Development terms of their interference to social cohesion Law Organization.” instead.37 This is a troublesome aspect of the 39 “UN Enable - Overview of International Legal Frameworks,” accessed May 30, 2020, https://www. customary legal system because customary un.org/esa/socdev/enable/disovlf.htm. leaders handle both types of cases in a simi- 40 “Customary Justice: From Program Design to Im- pact Evaluation | IDLO - International Development 33 “What Is the Rule of Law? | World Justice Project.” Law Organization.” 34 Buergenthal, “The Evolving International Human 41 “Customary Justice: From Program Design to Im Rights System Author.” pact Evaluation | IDLO - International Development 35 “Human Rights in | Canadian Human Law Organization.” Rights Commission,” accessed May 30, 2020, 42 “Maps of Anti-LGBT Laws Country by Country https://www.chrc-ccdp.gc.ca/eng/content/hu- | Human Rights Watch,” accessed May 30, 2020, man-rights-in-canada. https://features.hrw.org/features/features/lgbt_laws/. 36 Buergenthal, “The Evolving International Human 43 “Protection of Life During Pregnancy Rights System Author.” Act 2013,” in Women’s Legal Landmarks : Cele- 37 “Customary Justice: From Program Design to Im- brating the History of Women and Law in the UK pact Evaluation | IDLO - International Development and Ireland (Hart Publishing, 2018), https://doi. Law Organization.” org/10.5040/9781782259800.ch-085. 52 Politicus Journal and health through barriers such as physician the world’s top experts and diverse representa- and hospital requirements, gestational limits, tives from a variety of legal and cultural back- private insurance coverage, waiting periods, grounds.47 The UDHR satisfies WJP’s Rule of and parental involvement.44 Various Islamic law criteria by developing legal rules through states have continuously repressed women’s processes with high standards of accessibility, rights and some autocratic governments may fairness, and efficiency.48 This is sustained by permit and require doing so.45 the reputation and historic accomplishments of The UN contributes strong mandates the United Nations as a standing international states should apply in responding to human institution. rights violations. However, international laws Despite this, customary international are primarily suggestions, directions, and law grants states veto power to conform to guidelines. This does not mean that interna- obligatory standards, thus rendering interna- tional laws are not binding as rules are coun- tional human rights law at a shortfall of WJP’s terfactually valid. However, violations are “open government” remaining requisites: more noticeable in contrast to compliance in administration and enforcement. spite of them. The international legal system’s The United States has adopted reflec- failure to provide enforceability and account- tions of customary human rights measures in ability stems from the precedence of state sov- correspondence with their constitutional pro- ereignty, deeming international human rights cesses. One example of this is the protection law as a suggestion rather than a defined rule of individual rights as outlined in the Fourth of law under the “Just law” criterion of WJP. Amendment of the Bill of Rights in the United States Constitution: citizens have the right to Open Government be secure in their persons, houses, papers, and The absence of accountability influences effects, against unreasonable searches and sei- WJP’s interpretation of rule of law in regard zures and this right shall not be violated, nor to the “open government” standard, which warrants be issued other than upon probable outlines the requirements of the enactment, cause describing the place to be searched, and administration, and enforcement of legal rules the persons, or things to be seized.49 Howev- in an accessible, fair, and efficient manner.46 er, the US police force, which is an extension The UDHR was drafted in consultation with of the state, has consistently and historically violated these rights whether it be through 44 “An Overview of Abortion Laws | Guttmach- unlawful searches, or the seizure of a person’s er Institute,” accessed May 30, 2020, https://www. guttmacher.org/state-policy/explore/overview-abor- tion-laws. 47 “Universal Declaration of Human Rights | United 45 Daniela Donno and Bruce Russett, “Islam, Author- Nations,” accessed May 30, 2020, https://www.un.org/ itarianism, and Female Empowerment: What Are the en/universal-declaration-human-rights/index.html. Linkages?,” Source: World Politics, vol. 56, 2004, 48 “What Is the Rule of Law? | World Justice Project.” https://about.jstor.org/terms, 583-584. 49 “Fourth Amendment Search And Seizure Con- 46 “What Is the Rule of Law? | World Justice Project.” tents,” n.d.

53 life. There has been a disturbing historical equity are broad terms that can be swayed by scenario of discriminatory policing tactics and power, status, and wealth between parties in racial disparities in the US criminal justice dispute, discriminatory social standards, and system, resulting in unequal access to justice the perspectives of group cohesion.53 The US and overrepresentation of black citizens in legal system has arguably failed in providing the prison system.50 The US is in violation of protection to the African American community its international commitment surrounding the and at times, turned the system into a weapon human rights of the black community. Move- of perpetuating further injustice and discrim- ments such as the Black Panther Party and ination.54 On a global scale, the customary Black Lives Matter have cropped up as a result system can be interpreted as a set of functions of the pattern of structural discrimination in controlled by a selection of significant individ- attempt to hold the state accountable for its uals, which contradicts equity standards within violations, including the US justice system. the customary system since social norms and Under international human rights law, all lev- level of power tend to lay the foundations for els of government are obligated to intervene to resolution in regional levels.55 protect and guarantee human rights. This duty The current enforcement mechanisms of extends to the US police force, but violations international customary law assist certain gov- and legal rules are not enforced within the US ernments in manipulating and obstructing in- state system or the international customary law stitutions created to uphold rights.56 For exam- system. ple, the Chinese government detained citizens intending to engage with the UN on its human Accessible and Impartial Dispute Resolu- rights abuses.57 Russia restricted attempts by tion the UN Security Council in addressing Syria’s Accessible and impartial dispute reso- war crimes by casting 11 vetoes and leveraged lution requires that justice be delivered timely it’s position of power by promising withdraw- by independent, skilled, and ethical/neutral al from a significant European body on hu- representatives who have adequate resources and reflect the composition of the communities to whom they are obligated.51 The Internation- Law Organization.” al Criminal Court and the International Court 53 “Customary Justice: From Program Design to Im- pact Evaluation | IDLO - International Development of Justice are the highest courts of resolution Law Organization.” at the international level, and operate with no 54 Rebecca C. Hetey and Jennifer L. Eberhardt, “The legitimate extension of authority outside of Numbers Don’t Speak for Themselves: Racial Dispar- customary law. As argued, customary law is ities and the Persistence of Inequality in the Criminal challenging to enforce in the absence of sound Justice System,” Current Directions in Psychological enforcement mechanisms, and places substan- Science 27, no. 3 (June 3, 2018): 183–87, https://doi. org/10.1177/0963721418763931, 183-184. tial pressure on states to understand and agree 55 “Customary Justice: From Program Design to Im- 52 on what is fair and equitable. Fairness and pact Evaluation | IDLO - International Development Law Organization.” 50 “Human Rights in Canada | Canadian Human 56 “World Report 2017 | Human Rights Watch,” ac- Rights Commission.” cessed May 30, 2020, https://www.hrw.org/world-re- 51 “What Is the Rule of Law? | World Justice Project.” port/2017. 52 “Customary Justice: From Program Design to Im- pact Evaluation | IDLO - International Development 57 “World Report 2017 | Human Rights Watch.” 54 Politicus Journal man rights in order to block the continuity of rates ranked 48%.62 Religious organizations sanctions pertaining to Russian occupation in in low-income countries play a prevalent Crimea.58 Other countries are adopting simi- role in offering legal guidance, for instance, lar tactics, as exemplified by Turkey’s threats some countries resolve personal state conflicts of suspending budgetary support.59In another through religious courts and institutions.63 For- case, 7 million Yemeni civilians suffered air mal complaint systems are almost never used strike attacks on homes, markets, and hospi- in low-income states which contrasts with tals, restriction of critical humanitarian aid, high-income states, who almost never use reli- and starvation resulting in 1 million suspect- gious organization systems.64 Some states are ed cases of cholera after being targeted by subject to corruption by government officials the Saudi led coalition of Arab states. Houthi and other agents of other public institutions, oppositional forces followed in similar fashion further complicating processes of accessible by setting up landmines, mobilizing child sol- and impartial dispute systems. diers, and blocking essential aid.60 However, proposed investigations of the attack were met Discussion with low level advocacy from the major sup- One common criticism of the custom- pliers of Saudi Arabian weaponry: the United ary justice system is that it often results in States, the , and .61 discriminatory conduct towards vulnerable States continue to operate in guidance of their groups such as women, minorities, children own best interests, which includes conduct and the impoverished.65 Accessible and impar- resulting in human rights violations. tial dispute resolution systems are dependent International human rights law primarily on independent state functions, which already functions by the legal implementation by an challenges the enforcement of international independent state. Some states may not have human rights violations. adequate resources, equitable institutions, or Saudi Arabia lifted the longstanding ban independent, ethical, and skilled representa- on women driving in early 2018 but authorized tives to deliver accessible and impartial dis- a wave of arrests of distinguished women’s pute resolution. In a qualitative analysis of rights activists during the weeks leading up to WJP’s Global Insights on Access to Justice the dissolution of the ban. Government influ- 2019, it was found that the average response 62 “Justice Policy Series, Part I: Access to Justice | rates to public citizens by government offic- Open Government Partnership,” accessed May 30, es ranked 43%, the formal complaint or ap- 2020, https://www.opengovpartnership.org/documents/ peal process ranked 40%, and court/tribunal justice-policy-series-part-i-access-to-justice/. 63 Ibid. 64 “Justice Policy Series, Part I: Access to Justice | 58 Ibid. Open Government Partnership.” 59 Ibid. 65 “Customary Justice: From Program Design 60 Ibid. to Impact Evaluation | IDLO - International Develop- 61 Ibid. ment Law Organization.”

55 enced media outlets initiated targeted cam- missing human rights obligations out of sov- paigns against those arrested and detained for ereign interest, and states without intention of serious crimes, including acts of publishing adopting customary norms whatsoever, inter- their photographs stamped with the word “trai- national human rights law lacks validity as an tor”.66 Saudi women still face various formal enforceable function of Rule of Law as speci- and informal barriers in making decisions fied by WJP. or actions without the enablement of a male relative, and are bound to these guardianship Conclusion policies from birth until death.67 Gender barri- The customary justice system is ex- ers restrict dispute resolution in this case. Such pected to be adapted by states universally but practices violate the United Nations Conven- is not necessarily enforceable in the context tion on the Elimination of all Forms of Dis- of international relations and the rule of law. crimination against Women (CEDAW), which It lacks validity as an enforceable system of Saudi Arabia did ratify in 2000 in addition norms due to the dissonance of its elements to other human rights conventions.68 The UN in regard to the criteria of the Rule of Law: Committee on Discrimination Against Wom- a) Accountability b) Just Laws c) Open gov- en declared that Saudi Arabia take immediate ernment d) Accessible and Impartial Dispute action to end male guardianship of women in Resolution.70 However, there are cases where 2008, guidelines which Saudi Arabia agreed the protection of human rights were enforced to in 2009 and once more in 2013. However, by international intervention mandated by the Saudi Arabia has failed to end discriminatory UN, the issue does not solely lie in the defi- state practices and take adequate measures in nition of the rule of law by WJP. Enforceable combating offences as promised.69 This issue intervention has not occurred because the prin- stems from lack of implementation rather than ciple itself is not enforceable. States operate the inadequacy of principles written into law. within a deeply political realm and state be- States are granted flexibility in how and when haviour cannot simply be reduced to the crite- international commitments are implemented. ria by WJP. The elements of what Rule of Law Therefore, Saudi Arabia is in violation of its constitutes is an ideal, in contrast to an institu- commitments in addition to the states failure to tional structure that can be accomplished. implement its commitments in a timely man- The broad and incoherent system has ner. the potential for corruption given the un- When coupled with certain states dis- steady dynamic between states in regard to the imbalance of power and influence in the 66 “World Report 2019: Saudi Arabia | Human Rights international system. Additionally, justice is Watch,” accessed May 30, 2020, https://www.hrw.org/ not always delivered in a timely fashion and world-report/2019/country-chapters/saudi-arabia. in cases where it is, conclusions may not be 67 “World Report 2019: Saudi Arabia | Human Rights 71 Watch.” just. International law within the custom- 68 “OHCHR | Convention on the Elimination of All ary system, and various state justice systems, Forms of Discrimination against Women,” accessed May 30, 2020, https://www.ohchr.org/en/profession- alinterest/pages/cedaw.aspx; “World Report 2019: 70 “What Is the Rule of Law? | World Justice Project.” Saudi Arabia | Human Rights Watch.” 71 “Customary Justice: From Program Design to Im- 69 “World Report 2019: Saudi Arabia | Human Rights pact Evaluation | IDLO - International Development Watch.” Law Organization.” 56 Politicus Journal differ fundamentally. They differ in function, conception of justice, equity, and rights. In a complex and evolving global system, the endorsement of customary norms is not a sustainable process of enforcing and applying international norms, especially international human rights law. The system design requires the nuanced examination of factors that are reflective of reality. The reality is, treaties and formal international agreements vary in the level of impact towards participating states. If impacts are detrimental, then states will lean towards decisions in its best interest rather than comply. International Human Rights Law will continue to function in an impaired manner until these factors are accounted for. Ultimately, International Human Rights Law cannot be legitimately enforced as law when analyzed within the lens of the Rule of Law.72

72 “What Is the Rule of Law? | World Justice Proj- ect.”

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