Reservations

Pakistan and the human rights treaties

Amid the state’s efforts to curb another killing binge in our northwest, through talks with Taliban, the following might seem anachronistic and idiotic at best. Still, like most crucial things in our country that are swept under the carpet with a tag of not-for-now, the not-for-now at hand is Pakistan’s inhuman treatment of human rights treaties. What follows is an attempt to save the not-for-now from an expiry date – because things brought in for use post their expiry lose all utility for usage, as it is too late by then.

Domestic norms are laid bare in the posture of the state on international regimes. Treaties, conventions and declarations are all stepping stones to international regime formation. A state’s — in this case Pakistan’s — treatment of these established norms is a mirror to its internal conditions. As most international law pivots on the protection of human rights, the treaties dealing directly with human rights stand at the vanguard of all other treaty contracts amongst and between the states. Therefore, studying Pakistan’s treatment of human rights treaties is crucial — it is crucial because our position on them is merely a mirror to the present, or else, a prelude to the future. To understand Pakistan’s take on human rights treaties, what better to say than the one catchword: reserved!

Reservation on a treaty clause means that the state will not abide by any particular part of the treaty once the state has ratified the treaty. The case of human rights treaties, nonetheless, is a sensitive one because they uphold the basic rights such as the freedom of speech, religion, practice, expression and most importantly, life, freedom from torture and inhumane treatment. Hence, when the state proffers to go against any of these, the grounds for such a reservation must be sound and convincing. A slight comparison with other states is important before I talk about Pakistan in particular.

Other states: UK’s reservation to ICCPR’s (International Covenant for Civil and Political Rights) clause regarding employment rights is to curtail the inflow of unmanageable numbers of immigrants into the UK. Similarly, its reservation to CEDAW (Committee for the Elimination of Discrimination Against Women) on terms of pension rights equality for men and women is because men are generally more burdened with bearing the expenses of the house than women — specified, transparent and obvious causes for reservations. Similarly, as regards Germany, it had some reservations concerning the CRC (Convention on the Rights of Child) that entailed the exclusion of the non-German citizenry as well as the illegal residents. In 2011, Germany lifted its reservation. Hence, a positive renunciation of reservations also exists because states generally use the time during the reservation on the treaty to positively enhance the domestic law to suit the international regime concerning the particular issue. This is the ideal situation to be in. But as all idealism gets a rough beating in Pakistan, this one is no exception.

Furthermore, Islamic countries have reservations to certain clauses such as those contained in CEDAW, since they wish the rights granted to women to be in the light of Sharia law and not the infraction of them. This nevertheless has in the past, and continues to be, a major source of debate edging on confrontation between the Islamic and the non-Islamic blocks. On the other hand, exceptions like Morocco exist that withdrew all its reservations on CEDAW. Again, reasonable exceptions to a treaty which are explicated clearly do not invite any major objection from the international community. On the contrary, what is happening in Pakistan is diametric.

The case of Pakistan: In Pakistan, most institutions suffer from the epidemic of gross neglect. The reservations that are put are generally taken as excuses for not complying with the spirit of the treaty. Our reservations are unspecific, non-transparent and illogical to start with. According to Vienna Convention on the Law of Treaties (1969) the limitation for the reservations entails that the reservation must not violate the purpose and objective of the treaty; second, the reservation must not be unspecific or non-transparent; and third, the hierarchy of norms must institute the international law superior to the domestic law. Hence, it is as if the state is attempting to trick international legal framework by not abiding by its fundamental tenets and at the same time saving face from being an inevitable outcast from the international regime on the human rights’ protection, preservation and insurance by simply just ratifying the treaty without actually trying to fathom the relevance of it.

Ever heard of a state buying grounds for not ensuring its people’s basic human rights at an international echelon of authority? No? Well, Pakistan is one such maverick. A potent example of the violation of purpose and meaning of the treaty is Pakistan’s reservation to ICCPR’s article 25 — this one ensures the freedom of life and speech to the citizens — to which Pakistan has reserved implementation. This calls for an action in international law called “severability”. When a state violates the basic aim of the treaty by introducing such a reservation, then all the contents of the treaty become forcefully binding leaving no room for any reservations. This act brings the state obligation immediately to question in terms of its failure in providing the basic human rights.

The reservations that Pakistan has put forth suggest that it is unwilling to correct or condemn human rights encroachment within and without; be it the killings and violence in Bangladesh in 1970s; the Gojra killings; the Lal Masjid bloodbath; or even the most recent All Saints Church massacre or the Shia/Hazara carnage. The state might not be the culprit for some of the terrorist acts, but what is noteworthy is that it is the state’s obligation to ensure the citizens’ safety and security. Having added a reservation to human rights treaties, the state must be questioned for adding insult to injury to an already volatile human rights condition in the country. The state is poised to take its hands off of its basic duty. This is an issue of grave seriousness. And majority of Pakistanis are ignorant of what affects their lives directly.

It is important to know as to why states actually go for the reservation clause. If the particular clause of the treaty violates the state constitution, the social, political, cultural and even the religious mores and practices of the state, then states normally add their reservation to the treaty. While these practices may be justified, and do not infringe in any way the fundamental rights of the masses — also other signatory states do not oppose the reservation of the particular state in question — then the reservation is justified. Pakistan, has no such rationalisation to give when it seeks to limit the freedom to life.

Although the above stated conditions must be met to introduce a reservation but even this is not without trouble. UN Human Rights Committee in 1994 stated that human rights treaties do not regulate the relations between the states hence the chances for one state opposing the other’s stance like a reservation will remain slim. Also, the human rights treaties do not manifest themselves in disjointed sequence. Every right is linked to another and a reservation to one clause impacts the spirit of the entire treaty. Therefore, human rights treaties must not seek reservation by its members since it renders the entire point of it fruitless.

Is Islam culpable? Can we say, since Pakistan is a Muslim country, it contradicts human rights regimes? Is that an intelligible reason? Let us look at Saudi Arabia. Saudi Arabia does not abide by the obligations imposed by CEDAW that violate Islamic principles, and article 29 that calls for arbitration of parties within the state cannot decide upon the convention. Talking about CEDAW and Islamic clash, Elizabeth Mayer has a unique way of looking at it. While Islamic countries continually get bashed for not upholding the human rights treaties, the author states that the position of Islamic countries is understandable to a degree. These states, like Bangladesh, have explicitly stated that while they are willing to draft/amend/repeal domestic law to suit international regime on it, they become powerless when the two supranational laws — Islamic and international – clash. Then they have to bring in their reservations.

Nonetheless, this chasm too can be filled by an enhanced understanding that within Muslim states great disparity exists in dealing with the Islamic law. To elaborate, while Afghanistan would interpret with austerity the segregation of males and females in a society, Jordan or even Tunisia would not do it as vehemently. Hence this only calls for a greater bridging of gaps within the overall comprehension of Islamic law, eastern and western nostrums. This will also be of immense use to Pakistan.

Within Pakistan extremes exist with respect to outlook on religion, society, politics and human rights generally. A domestic bridging of these gaps holds the key to an intelligent and intelligible treatment of, and response to, the international treaties which hold the key to an insurance of respect for human rights across the board. Unless we do this, our state will continue to be berated for its behaviour on international human rights initiatives. And worse still, our blemished image in the world will keep plummeting.