Opinion Paper: Those affected must be placed at the centre of the debate in order to ensure the implementation of existing documents with existing resources, instead of constantly “bringing new documents onto the market”
Introduction
The problem is not that there are no legal frameworks, but the ones that do exist are not properly enforced. This is not an internal African problem. The same problem is also evident in Europe when it comes to the enforcement of ECtHR[1] judgements and thus the ECHR. Although more disputes are decided before the ECtHR than the African Court[2], any claims against the state still come to nothing[3]. The question that arises is: why is this the case? It cannot be put down to the argument that most African countries are developing countries[4] or to the classic “they are not yet ready”. How can the problem of implementation be solved? the answer is probably not so much to keep creating new documents that a state can proudly announce after signing and ratifying them in order to cover up the fact that it is yet another document that is secretly gathering dust without really benefiting those it is supposed to protect.
The Maputo Protocol came into force on 15 November 2005[5], the African Charter on the Rights and Welfare of the Child came into force on 29 November 1999[6] and yet over 200 million women and girls worldwide, especially in northern Africa, are affected by female genital mutilation (FGM)[7].
The problem is that those who are really affected are still pushed into the background, even though the documents are signed in their favour.
Those affected must therefore be placed at the centre of the debate in order to ensure the implementation of existing documents with existing resources, instead of constantly “bringing new documents onto the market”
Why has the implementation failed so far?
In the following I will argue why the implementation of existing documents has failed so far, followed by a possible solution for this issue in the next points.
One significant issue is the lack of enforcement mechanisms. Many international treaties lack robust enforcement provisions, relying instead on the goodwill of states to implement them.[8] This reliance on voluntary compliance often leads to a situation where states sign treaties but do not follow through with concrete actions to enforce them. Moreover, international bodies like the African Court on Human and Peoples’ Rights and the ECtHR can issue rulings, but they lack the power to enforce these rulings, leaving implementation up to the individual states.[9] The enforcement of the ECHR is too, the responsibility of the respective state.[10] If the judgment is not enforced even after repeated requests, there will only be attempts to incite and, in the worst case, the threat of exclusion from the European council. [11] There are no further consequences.
Additionally, coming back to the African continent, access to the African Court is restricted, and bringing a dispute before the court is already a challenge in itself.[12]
Importantly, the lack of inclusion of those directly affected—women and children—further exacerbates the problem. These individuals are often marginalized in the debate and decision-making processes. Ensuring their active participation is crucial because they can provide valuable insights into the practical challenges and potential solutions for implementing these frameworks effectively. In both cases, at least one problem is that the respective countries are not prepared to accept the consequences of non-compliance when they ratify the documents. This in turn means that even clearer consequences cannot be formulated because they discourage signing and ratification. By involving those who are most impacted by these issues, policymakers can design more responsive and effective strategies that address the real needs and circumstances of these communities. This would allow clearer consequences to be formulated for non-action or wrong action in order to offer greater protection. However, this is still linked to the willingness of the respective states to submit to them.
The failure to implement human rights frameworks such as the African Charter on the Rights and Welfare of the Child and the Maputo Protocol, even though these are groundbreaking documents, can be attributed to several factors. The choice of these two documents is made because they constitute an addition to the African Charter. They expand and specify, so to speak, the protection that is fundamentally guaranteed by the African Charter. Primarily, there is a significant gap between the ratification of international treaties and their domestic enforcement.[13] Many African countries sign these treaties to gain international approval and aid, but they often lack the political will or resources to enforce them effectively.[14] This issue is not unique to Africa, also in Europe for example, the enforcement ECHR and the judgments of the ECtHR face similar challenges.[15]
One of the major hurdles is the lack of adequate infrastructure and resources to implement these legal frameworks. Many developing countries struggle with limited financial resources, insufficiently trained personnel, and weak institutional frameworks.[16] This makes it difficult to enforce complex international treaties on a national level. Governments may lack the incentive to prioritize human rights issues when they are dealing with more immediate political or economic crises such as armed conflicts, corruption and natural disasters[17]. This is not a problem unique to Africa, but rather an international challenge to enforce international treaties.
Cultural and societal norms also play a significant role in the failure of implementation. Practices such as FGM are deeply entrenched in some societies, making it challenging to eradicate them despite legal prohibitions.[18] Even when laws are in place, social resistance and lack of awareness among the affected communities can impede their effectiveness. Despite the existence of international and national laws against it, over 200 million women and girls worldwide still suffer from FGM.[19]
Why is Comparative Law so important?
Comparative law plays a crucial role in understanding and addressing the implementation gap in human rights treaties.[20] By comparing the legal systems and enforcement mechanisms of different countries, we can identify best practices and common pitfalls.[21] This comparative analysis can provide valuable insights into how different jurisdictions handle similar legal issues and what strategies have been successful in enforcing human rights obligations.
Comparative law allows for the exchange of ideas and legal principles across borders, fostering a better understanding of how different legal traditions approach the enforcement of human rights. This cross-jurisdictional learning can help countries adopt more effective legal frameworks and enforcement mechanisms. For example, studying the enforcement practices of the ECtHR could provide useful lessons for the African Court on Human and Peoples’ Rights on how to ensure compliance with its rulings. The existing methods can also be improved and adapted to the needs of Africa. In turn, in the event of greater effectiveness, the ECtHR can take advantage of the results and repeat the same game. This could create an ever-renewing cycle (innovative circle) that is constantly evolving and offers far-reaching help. This can of course be applied to any activity and would also promote international cooperation and bring added cultural value.
Furthermore, comparative law can help identify the cultural, social, and economic factors that influence the implementation of legal frameworks. Understanding these contextual factors is essential for designing laws and policies that are not only legally sound but also culturally and socially acceptable.[22] This can lead to more effective and sustainable implementation of human rights treaties.
How can Comparative Law ensure Implementation?
Comparative law can ensure the implementation of human rights frameworks by providing a structured approach to learning from the experiences of other jurisdictions. By studying countries that have successfully implemented human rights treaties, policymakers can identify effective strategies and adapt them to their own contexts. For example, countries with robust legal frameworks and strong enforcement mechanisms for protecting women’s rights can serve as models for other countries struggling with similar issues.
Moreover, comparative law enables the customization of legal solutions to fit the specific needs and circumstances of different countries.[23] This involves not only adopting best practices but also modifying them to address local challenges and cultural nuances. For instance, legal strategies that have been effective in curbing FGM in one country might need to be adapted to address the unique cultural contexts of another.
Building the capacity of legal institutions and practitioners in developing countries is another crucial aspect. Comparative law can facilitate the training of judges, lawyers, and law enforcement officials on international human rights standards and effective enforcement techniques. By enhancing the skills and knowledge of those responsible for implementing human rights laws, countries can improve their enforcement outcomes.
Comparative law also promotes international cooperation and the sharing of information and resources.[24] By working together, countries can develop more effective enforcement mechanisms and support each other in implementing human rights treaties. International organizations and NGOs can play a crucial role in facilitating this cooperation and providing technical assistance to countries in need.
Additionally, comparative law can help strengthen accountability mechanisms by providing examples of how other countries hold their governments accountable for human rights violations. This can include judicial review, parliamentary oversight, and civil society monitoring. Strong accountability mechanisms are essential for ensuring that governments follow through on their commitments to implement human rights treaties.
Furthermore, involving affected communities in the comparative law process ensures that the solutions developed are practical and effective. Women and children, as two of the victims of many human rights abuses, can offer invaluable insights into the barriers they face and the support they need. Their involvement helps to tailor enforcement strategies that are responsive to their specific situations, thereby enhancing the overall effectiveness of human rights frameworks.
Through these various avenues, comparative law can significantly enhance the implementation and enforcement of human rights frameworks worldwide. By placing those affected by human rights violations at the center of the debate and focusing on practical enforcement strategies, we can move beyond the mere ratification of treaties to their actual implementation. This inclusive and practical approach is essential for protecting the rights of women, children, and other vulnerable groups.
Conclusion
The problem of ineffective implementation of human rights treaties is not confined to Africa, it is a global issue that affects even the most developed regions. The key to addressing this problem lies in ensuring the effective enforcement of existing ones before creating more ne legal frameworks that have the same issues. This requires a multifaceted approach that includes political will, adequate resources, strong institutional frameworks, and cultural change.
Comparative law offers a valuable tool for achieving these goals by providing insights into best practices, tailored solutions, capacity building, international cooperation, and accountability mechanisms. By placing those affected by human rights violations at the center of the debate and focusing on practical enforcement strategies, we can move beyond the mere ratification of treaties to their actual implementation. This shift in focus is essential for protecting the rights of women, children, and other vulnerable groups worldwide.
Effective implementation of human rights frameworks necessitates not only strong legal and institutional structures but also the active involvement of those whom these laws are meant to protect. Women and children, affected by human rights abuses, must be included in the conversation. Their experiences and insights are crucial in crafting laws and policies that are responsive to their needs and realities. By ensuring their participation, we can develop more effective and sustainable solutions that truly uphold human rights.
In conclusion, while the challenge of implementing human rights treaties is formidable, it is not insurmountable. With a commitment to comparative law, international cooperation, and the inclusion of affected communities, we can make significant strides toward ensuring that human rights are not just theoretical ideals but practical realities for everyone.
[1] Franziska Rinke and Pierre Szczepanik ‚A Judgement Is Important – Enforcement Even More So! – A Comparison of Regional Human Rights Courts’ (kas.de, published 23 January 2020) < www.kas.de/documents/259121/8116012/A+Judgement+Is+Important%C2%A0–+Enforcement+Even+More+So%21.pdf/e3c6e4b6-7bbb-71f2-e9c4-d4e5329d9e92?version=1.0&t=1581332458331 > accessed 8 July 2024.
[2] Ibid.
[3] Ibid.
[4] Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung ‚DAC-Liste der Entwicklungsländer und -gebiete (gültig für die Berichtsjahre 2022 und 2023)‘ (www.bmz.de) < www.bmz.de/resource/blob/146702/dac-laenderliste-berichtsjahr-2022-2023.pdf > accessed 8 July 2024.
[5] African Union ‚Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’ (au.int) < https://au.int/en/treaties/protocol-african-charter-human-and-peoples-rights-rights-women-africa > accessed 8 July 2024.
[6] African Union ‘African Charter on the Rights and Welfare of the Child’ (au.int) < https://au.int/sites/default/files/treaties/36804-treaty-african_charter_on_rights_welfare_of_the_child.pdf > accessed 8 July 2024.
[7] Bundesministerium für Familie, Senioren, Frauen und Jugend ‚Weibliche Genitalverstümmelung‘ (bmfsfj.de, published 29 June 2020) < www.bmfsfj.de/bmfsfj/themen/gleichstellung/frauen-vor-gewalt-schuetzen/weibliche-genitalverstuemmelung-80720 > accessed 8 July 2024.
[8] Ibid p. 80.
[9] Franziska Rinke and Pierre Szczepanik ‚A Judgement Is Important – Enforcement Even More So! – A Comparison of Regional Human Rights Courts’ (kas.de, published 23 January 2020) < www.kas.de/documents/259121/8116012/A+Judgement+Is+Important%C2%A0–+Enforcement+Even+More+So%21.pdf/e3c6e4b6-7bbb-71f2-e9c4-d4e5329d9e92?version=1.0&t=1581332458331 > accessed 8 July 2024.
[10] Humanrights.ch ‘Wie überprüft der Europarat die Umsetzung der Urteile des Europäischen Gerichtshofs für Menschenrechte‘ (published 13.6.2022, humanrights.ch) < www.humanrights.ch/de/ipf/grundlagen/durchsetzungsmechanismen/europarat/egmr/umsetzung/ > accessed 30 August 2024.
[11] Ibid.
[12] Karin Dolleschall ‚Die Entwicklung der Frauenrechte in Afrika unter Einbezug der Charta von Banjul‘ (uni-graz.at) p. 55 ff < https://unipub.uni-graz.at/obvugrhs/download/pdf/206744?originalFilename=true > accessed 8 July 2024.
[13] Franziska Rinke and Pierre Szczepanik ‚A Judgement Is Important – Enforcement Even More So! – A Comparison of Regional Human Rights Courts’ (kas.de, published 23 January 2020) < www.kas.de/documents/259121/8116012/A+Judgement+Is+Important%C2%A0–+Enforcement+Even+More+So%21.pdf/e3c6e4b6-7bbb-71f2-e9c4-d4e5329d9e92?version=1.0&t=1581332458331 > accessed 8 July 2024.
[14] Amnesty International ‘Africa: Regional human rights bodies struggle to uphold rights amid political headwinds’ (amnesty.org, published 21 October 2020) < www.amnesty.org/en/latest/press-release/2020/10/africa-regional-human-rights-bodies-struggle-to-uphold-rights-amid-political-headwinds/ > accessed 8 July 2024.
[15] Franziska Rinke and Pierre Szczepanik ‚A Judgement Is Important – Enforcement Even More So! – A Comparison of Regional Human Rights Courts’ (kas.de, published 23 January 2020) < www.kas.de/documents/259121/8116012/A+Judgement+Is+Important%C2%A0–+Enforcement+Even+More+So%21.pdf/e3c6e4b6-7bbb-71f2-e9c4-d4e5329d9e92?version=1.0&t=1581332458331 > accessed 8 July 2024.
[16] Andreas Zimmermann and Jelena Bäumler ‚Der Afrikanische Gerichtshof für Menschen- und Völkerrechte‘ (kas.de, puplisched July 2010) p. 57 < www.kas.de/c/document_library/get_file?uuid=ab2c3cb2-61e8-6238-77bd-123d314cc12c&groupId=252038 > accessed 8 July 2024.
[17] African Union ‚The realities of 40 years of implementing the African Charter on Human and Peoples’ Rights’ (au.int, published 16 June 2021) < https://au.int/en/articles/realities-40-years-implementing-african-charter-human-and-peoples-rights > accessed 8 July 2024.
[18] Karin Dolleschall ‚Die Entwicklung der Frauenrechte in Afrika unter Einbezug der Charta von Banjul‘ (uni-graz.at) p.48 < https://unipub.uni-graz.at/obvugrhs/download/pdf/206744?originalFilename=true > accessed 8 July 2024.
[19] Bundesministerium für Familie, Senioren, Frauen und Jugend ‚Weibliche Genitalverstümmelung‘ (bmfsfj.de, published 29 June 2020) < www.bmfsfj.de/bmfsfj/themen/gleichstellung/frauen-vor-gewalt-schuetzen/weibliche-genitalverstuemmelung-80720 > accessed 8 July 2024.
[20] Edward J. Eberle ‚The Method and Role of Comparative Law‘ (wustl.edu, published January 2009) p. 455ff < https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1088&context=law_globalstudies > accessed 8 July 2024.
[21] Ibid.
[22] Edward J. Eberle ‚The Method and Role of Comparative Law‘ (wustl.edu, published January 2009) p. 457 < https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1088&context=law_globalstudies > accessed 8 July 2024.
[23] Ibid p. 471.
[24] Edward J. Eberle ‚The Method and Role of Comparative Law‘ (wustl.edu, published January 2009) p. 486 < https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1088&context=law_globalstudies > accessed 8 July 2024.
