Challenging State-centricity and legalism: promoting the role of social institutions in the domestic implementation of international human rights law

ABSTRACT

Despite the proliferation of human rights in the last 70 years, they continue to be poorly implemented and violated around the world, revealing the gap between law and practice. This article considers the implementation measures a State can take domestically to realise rights. While much scholarship focuses on legal measures of implementation, this article focuses on ‘other measures’ and the role of non-state actors and norms therein. Due to the legalism predominant in human rights, other, non-legislative measures of implementation have been under-explored in theory and under-exploited in practice. As a corollary, given the State-centricity of international law, the role of non-state actors and norms like social institutions in the domestic implementation of human rights has also been neglected. However, there are limitations to such a reliance upon formal State institutions to implement rights, and benefits to employing informal social institutions. These benefits include enhancing the local and cultural legitimacy and resonance of rights, as well as expanding the domestic constituents for rights. As such, this article advocates the need for the domestic implementation of human rights to go beyond State-centric legalism and to include social institutions.

KEYWORDS:

• Human rights implementation
• UN treaty bodies
• State-centricity
• legalism
• social institutions
• Indonesia

1. Introduction

While vitally important to have international human rights treaties and the minimum standards they espouse, it is the way that law is operationalised that makes an impact on people’s lives. Human rights treaties at the international level alone will not protect rights on the ground, as much more is required to realise them in practice. UN Secretary Generals, High Commissioners for Human Rights, and scholars have stressed the need to move beyond standard setting and to address the ‘challenge of implementation’.¹ While there is a role for international actors like the UN to play, the State is the primary duty-bearer responsible for the domestic implementation of international human rights treaties. States parties are obliged to take all the steps necessary to give effect to human rights by enacting legislation and taking other measures in political, economic, social, and cultural fields.² This can include a role for all branches of the State, such as legislators, domestic courts, administrative mechanisms, and independent bodies like National Human Rights Institutions (NHRIs). However, as documented by the UN, regional and domestic courts, as well as NGOs, implementation is wanting and rights violations are commonplace. This reveals a gap between law and practice, between international norms and their domestic implementation.

Clearly, the implementation of human rights across the legally, politically, economically, and culturally diverse States is far from straightforward, and is the subject of ongoing contention. As a premise, this article is critical of what it characterises as the current State-centric and legalistic approach to implementation. As a complement and/or alternative, the article advocates the possibilities and benefits of other, non-legislative measures of implementation involving non-State actors (NSAs) and norms like social institutions.³ Scholarship to date has thoroughly addressed the role of State institutions and mechanisms in human rights implementation (such as courts, Ombudspersons, and NHRIs)⁴ and, to a lesser extent, the role of non-State actors like civil society.⁵ However, the role of social institutions (such as religion, customary law, and cultural organisations) in domestic human rights implementation has not been similarly examined.⁶ Social institutions are central in the development of complex social organisation and interaction, and – particularly important for rights implementation – can efficiently guide behaviour and frame choice. Therefore, this article contributes academically by sharing critical insights from theory and practice regarding how social institutions (and not just formal State institutions) can help achieve the goal of human rights realisation.

The article begins by briefly establishing that international human rights treaties permit States parties to effect domestic implementation by measures not limited to legislation. It then elaborates upon implementation measures and the role therein that can be played by non-State actors and norms like social institutions. In this way, the article sets out and seeks to counter the observable preference in international law for State-centric and legalistic approaches to implementation. The focus then turns to look specifically at culturally sensitive approaches to human rights implementation via social institutions. Due to their cultural embeddedness, social institutions typically enjoy local legitimacy that foreign norms like human rights often lack. Thus, in context they can help to ensure that human rights are effectively communicated and implemented in culturally appropriate ways. A practical illustration is provided of the role of Islamic norms and actors in the implementation of women’s right to family planning in Indonesia.⁷ Based on this analysis, the article makes some recommendations to the UN treaty bodies in their supervisory role, and concludes by reflecting on the myriad tools and actors necessary for the effective enjoyment of international human rights.

2. Challenging State-centric legalism: promoting other measures and actors in domestic human rights implementation

While international human rights treaties articulate the standards to be achieved, they typically do not prescribe (or proscribe) the methods by which States are to do so.⁸ As such, the treaties create obligations of result and not conduct.⁹ Therefore, States parties enjoy discretion in how they implement a treaty – unless the treaty specifies certain modalities.¹⁰ For example, sometimes the treaties specify the conduct required and may oblige States parties to take legislative measures.¹¹ Therefore, while the treaty standards are to be enjoyed universally, the methods of domestic implementation employed by States parties do not need to be uniform.¹² Nor, in fact, should they be. The rich diversity across the world’s some 200 States rebuts any presumption of uniformity. As such, the international human rights system grants States discretion to tailor their methods of implementation to their social, cultural, political, and economic context. While States parties are obliged to give domestic effect to the treaty provisions, it is their prerogative to determine the manner of implementation.

In theory, the types of measures that States may employ are unlimited, but not unchecked. According to the treaties and the interpretation thereof by the treaty bodies, the controlling criteria for implementation measures is that the rights be effectively protected.¹³ It is the intention of the treaties, and therefore central to the work of the treaty bodies, that rights are meaningfully enjoyed in practice and not just protected in theory. Therefore, while States have discretion in implementation, they will be judged on the efficacy of those measures. The treaty bodies will also assess a States’ method of implementation according to its use in good faith and compatibility with the object and purpose of the treaty.¹⁴ For example, the Committee supervising the implementation of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) recognises that States may choose implementation measures so long as they are ‘effective and consistent with the object and purpose of the Convention’.¹⁵ Subject to these criteria and the supervision of the treaty bodies,¹⁶ States can employ in their discretion legislative or other measures to implement their human rights treaty obligations.

While States have broad discretion in the measures they can take to implement their international human rights treaty obligations, legislation is the primary measure emphasised by the UN treaty bodies and literature. This is even though the treaties do not generally oblige States parties to incorporate all the treaty provisions into national law.¹⁷ Notwithstanding this, it is clear from their General Comments and Concluding Observations that the treaty bodies prefer and encourage legal incorporation. For example, the UN Human Rights Committee (HRCee) favours incorporation, having argued that the ICCPR’s provisions may have enhanced protection in States where it is part of the national legal system.¹⁸ Similarly, the Economic, Social and Cultural Rights Committee noted that incorporation ‘can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases’.¹⁹ Other treaty bodies also favour domestic incorporation and legal implementation of the treaties.²⁰ This view is reiterated by numerous scholars,²¹ some of whom claim that the ‘crucial element to make rights realizable’ is domestic incorporation.²² In fact, often the only measures discussed in the literature regarding human rights implementation are legal measures, with no or little consideration given to others.

This reflects the legalisation of human rights and the predisposition to pursuing its objectives through legal mechanisms.²³ Undoubtedly, legal incorporation can be an important way to protect rights, formally enshrining them as State norms, making them binding nationally, and providing a framework for their domestic enforcement. However, it is argued that the efficacy of legal incorporation (especially in isolation) has been oversold. While legislation can be sufficient to guarantee a particular right in practice, it can also at times prove insufficient and/or incapable of protecting rights. This can be due to various reasons such as a lack of awareness of the law or its poor enforcement due to limited resources. While sometimes impotent in these ways, human rights legislation can also be counter-productive, particularly where it conflicts with local cultural norms.²⁴ Legalisation has therefore been rightly criticised for its myopic approach that fails to acknowledge the limits of the law and the utility and necessity of other methods of implementation.²⁵ The ‘closed system of thinking’²⁶ that only views human rights problems through a legal lens fails to consider solutions that lie outside the law.

Another aspect of legalism in human rights is that it necessarily focuses on the State as the legislator and enforcer. While the State and its formal institutions can be effective in implementing rights, a multiplicity of other actors and tools can also be effectively employed. As recognised in the Universal Declaration of Human Rights (UDHR) and by the UN treaty bodies, NSAs play a crucial role in human rights implementation and even bear international responsibilities.²⁷ However, the focus of international human rights law on the State as the primary addressee and State law as the primary tool has meant that the role of other NSAs and norms that may also be mobilised to effectively implement human rights have not been thoroughly explored. Scholars have identified the need to make space in international human rights law to better account for the role of NSAs, creating non-State counter-narratives and debunking myths of the State.²⁸ Notwithstanding the State’s centrality in international law, this legal construction was never fully aligned with practice and the real-life roles and activities of NSAs regarding human rights. Furthermore, casting State law as the law recognises only the modern State model and marginalises other plural legal systems beneath and beyond the State.²⁹

For example, while the State model (including the dominance of State law) is common in the West, it is less entrenched elsewhere, particularly in the Global South where other ordering systems exist.³⁰ In such situations, the State may not be the locus of authority and can lack capacity to implement rights where other more entrenched actors and norms have influence. Cultural traditions, social institutions, and customary law systems can be more potent than legislation – and have a long history of involvement in human rights issues, often well before the State. For example, social institutions like religious organisations and kinship groups have been fulfilling State-like functions in many places long before the State became involved. In fact, private sector providers in a majority of countries pre-date State involvement in functions such as health and education services.³¹ Involving culturally embedded local actors like religious groups and customary leaders can help ensure that rights are both communicated and implemented in culturally appropriate ways. This will not only facilitate their adoption in the community, but also demonstrate due respect for culture and counter some of the cultural relativist critiques of human rights.³² This is necessary particularly in the Global South where States ‘remain mistrustful of the universality norm’.³³

Not just in the South but also in the West, NSAs continue to play a role in human rights implementation. Their role has increased in contemporary times due to factors including globalisation, privatisation, technology, the expansion of multilateral institutions, and the growth of civil society.³⁴ There are numerous examples today of NSAs stepping up and fulfilling human rights in the West. For instance, social enterprises are for-profit businesses that use their profit for social purposes including human rights. Similarly, following the USA’s announcement that it would withdraw from the UN Framework Convention on Climate Change, numerous private actors declared that they would continue to implement the agreement.³⁵ Another example is Canada’s programme for private citizens to sponsor refugee resettlement.³⁶ This programme harnesses private citizens’ support for refugees, who implement international protection obligations as an alternative to the State.³⁷ As these few examples show, private actors come together in different ways to implement human rights, which are not the sole concern of States but a broad web of actors and norms.

As part of their discretion in international law, States may include NSAs in human rights implementation, or even outsource the tasks to them.³⁸ This is because international human rights law is agnostic as to how a State party meets its treaty obligations, and is therefore ‘neither for nor against’ the privatisation of service delivery.³⁹ States may not, however, outsource their international obligations and remain liable internationally.⁴⁰ Ultimately, whether or to what extent a State involves NSAs in implementing its human rights obligations is a normative or political question, and given the pros and cons, a smart mix of both may be preferable.⁴¹ Regardless of the legal obligations and logistical issues, mixes such as public-private partnerships can bring human rights closer to the public, engaging various actors in society in meaningful ways and promoting bottom-up support for rights. As such, even if States can implement rights independently based on their own tools and actors, they should also collaborate with NSAs like social institutions to reap the social benefits. Harnessing human rights to such domestic forces will help ensure their realisation⁴² and may build grassroots support for rights, which is much needed in States all around the world.

3. Other measures, norms, and actors: culturally sensitive approaches to implementing international human rights law via social institutions

More than seven decades after the UDHR, the language of international human rights law is unknown to many people around the world, with large numbers viewing rights as foreign, unfamiliar, or even irrelevant.⁴³ Where there is some knowledge, there can also be misunderstanding regarding the nature and content of human rights, generating suspicion, mistrust, and opposition to rights. In many places, human rights are perceived as foreign impositions separate from – or even at odds with – local cultural norms and values.⁴⁴ On this basis, rights are often rejected, sometimes explicitly in the name of culture. In fact, some of the strongest, most persistent, and persuasive criticism of the international human rights system is based on cultural arguments. Since the drafting of the UDHR, this issue of cultural relativity has plagued debates on the universality of human rights. Therefore, abstract international human rights norms need to be brought down-to-earth and made meaningful to the diverse communities in States around the world. For example, the work of Indonesian Muslim feminists and others pursuing gender equality through an Islamic framework illustrated that it is not so much the content of rights that is suspect, but its perceived Western packaging.⁴⁵ While the language of rights is relatively new, the concept of rights is not alien to Muslims, as many of the same values (justice and equality) can be found in the Qur’an.⁴⁶

Rights need to made meaningful to local communities not just in Southern societies that may perceive of them as Western, but also for Western societies who similarly view rights as foreign. All around the world, there is a lack of understanding about human rights and a related suspicion, including in Australia, the USA, the Netherlands, and the UK. Based on its ‘exceptionalism’, the USA remains reluctant to embrace international human rights law, and is an outlier for its failure to ratify ICESCR, CEDAW, and particularly the CRC.⁴⁷ Recent research in The Netherlands found that due to limited public knowledge of human rights, some working in human rights fields chose to avoid the term as it was ‘perceived as alien, foreign and not relevant to the locality’.⁴⁸ As such, they adjusted the terminology based on their audience, choosing instead terms like ‘equality for all’ or ‘every person counts’.⁴⁹ Similarly, there is a tendency in Australia and the UK to rely on concepts of ‘fairness’ to represent human rights issues of equality and justice. Domestically, Australia remains suspicious of human rights, with the Federal Government deciding in 2010 after a public consultation to not adopt national human rights legislation.⁵⁰ These negative perceptions ‘make human rights a less attractive and less strategic vocabulary to advance social justice’.⁵¹

On this basis, scholars have recommended that States, exercising their discretion, engage also non-State norms and actors like social institutions to undertake more culturally sensitive approaches to human rights implementation. This is because ‘[h]uman rights are most secure when they are embedded in culture’,⁵² and scholars have connected the poor cultural legitimacy of human rights with their violation.⁵³ When rights are not accepted as societal norms, they are more difficult to protect in practice. For instance, a culturally insensitive law is likely to be un- or under-implemented and therefore unsuccessful in protecting rights. Numerous examples can be drawn from legislative measures to criminalise female genital mutilation/cutting (FGM/C) that do not in fact reduce its practice.⁵⁴ As this demonstrates, embedded cultural norms and practices like FGM/C do not yield automatically to State legislative prohibitions.⁵⁵ Some contend that, as originally conceived of in the UDHR, human rights were in fact never intended to be so legalistic or State-centric.⁵⁶ As such, scholars have advocated home-grown and bottom-up contextual approaches to implementation that protect the right in question while remaining culturally compatible.

One such example is Zwart’s receptor approach, which advocates the State’s use of local social institutions, like religion in Indonesia, to implement human rights.⁵⁷ Culturally appropriate and embedded entities like social institutions are important in this process due to their established legitimacy in a community, ability to raise and dedicate resources, and to foster compliance. For instance, the established and trusted system of traditional healers in South Africa could be engaged, trained, and equipped to ensure that HIV/AIDS patients have access to the necessary antiretroviral drugs, contributing to the right to health.⁵⁸ By relying where possible on locally embedded protections and remedies, the receptor approach aims to respect culture while simultaneously enhancing human rights implementation. Other contextual or culturally sensitive approaches have been advocated by scholars including An-Na’im, Merry, and Nyamu.⁵⁹ These approaches involve vernacularising international human rights concepts based on the local context; reducing emphasis on the role of State law as an implementation measure; employing home-grown solutions for human rights problems; and relying on culture’s dynamism and contestation to promote rights compliance.⁶⁰ While staying within the framework of international law, these approaches eschew legalism and State-centricity in domestic human rights implementation and advocate a role for local non-State actors and norms like social institutions.

Culturally sensitive approaches rely on the legitimacy enjoyed by local norms and actors to promote human rights as consistent with their community’s values. Central to such approaches is the fact that culture is internally contested and not static but rather dynamic, continually evolving.⁶¹ Rather than being deterministic, people can be and are agents of cultural change.⁶² This is important because sometimes international human rights standards require changes in cultural norms or practices.⁶³ While the State and other outsiders can play a supportive or advocacy role,⁶⁴ to be effective, cultural change needs to be initiated and pursued by those within a cultural community, and not be imposed from above or abroad. In this way, the community will be responsible for and have ownership over any changes to those norms and practices, enhancing their legitimacy and likelihood of being upheld. This is also important to preclude or defend accusations of coercion, manipulation, or social engineering by outsiders advocating change. As a matter of pragmatism as well as principle, human rights should not be smuggled into a cultural community like a Trojan Horse, but rather embedded in that community’s norms and values. To facilitate this, scholars have advised that internal change agents take varying approaches.

For example, An-Na’im and Nyamu advocate internal reform based on culture’s inherent contestation and dynamism, and the agency of community members. They recommend that when advocating for human rights, internal change agents appeal to the general principles of justice and fairness within their community’s value system, and to recall the rationale behind those values.⁶⁵ Furthermore, they suggest using culture’s heterogenity and diversity in practice to tend towards human rights compliance. Nyamu argues that ‘[l]ocal practices are varied, and people’s day-to-day interactions are more revealing of the “living” cultural norms’.⁶⁶ Identifying and documenting the variety of pre-existing local practices stands in strong opposition to absolutist statements of a community’s culture.⁶⁷ These varied practices offer a starting point to internally challenge custom and advocate interpretations in line with international human rights law.⁶⁸ The focus is therefore not simply on modifying detrimental cultural norms or practices, but on promoting co-existing alternative positions in line with international human rights law. As co-existing practices already enjoy (an amount of) cultural legitimacy, they are more likely to be readily implemented by the community than new external norms.⁶⁹ Via such processes, human rights can be seen as in line with (or even required by) their normative system, rather than as foreign impositions.

While principled in their respect for culture, the common reason advanced for the necessity of culturally sensitive approaches to human rights implementation is their effectiveness in practice. This is due to the fact that people are more inclined to observe normative positions they believe to be endorsed by their own cultural traditions and not imposed by outsiders,⁷⁰ including at times the State. Especially regarding sensitive cultural issues, State legislative bans can go unenforced in practice, thus failing to change norms and behaviour, and may even elicit a backlash.⁷¹ However, culture can play a positive role in international human rights law and facilitate its domestic implementation – serving as an asset and not an obstacle, as typically portrayed.⁷² Involving entrenched cultural norms and actors can increase support for human rights, promoting their local legitimacy, sustained respect, and enhanced observance in diverse societies. This in turn reinforces the universal application of rights. By virtue of their ability to render or reveal rights as culturally compatible, social institutions can increase the efficacy of human rights implementation. Therefore, everyone dedicated to realising international human rights law around the world should be interested in employing culturally sensitive approaches to implementation. An example of this can be found regarding the role of Islamic law and institutions in protecting women’s right to family planning in Indonesia.

4. Implementing rights in Indonesia: state and social institutions in collaboration

In response to the high maternal mortality and fertility rates in the mid-twentieth century, Indonesia instigated an ambitious family planning programme in 1970.⁷³ The programme brought together political will from across various levels of Government with community and faith-based actors to decrease the fertility and maternal mortality rate, as well as to promote women’s health in general and economic participation.⁷⁴ Now almost 50 years old, the programme is considered an international success for having reduced the fertility rate by more than half.⁷⁵ While having numerous children was once viewed as a status symbol and as a resource to support the family, today Indonesians prefer a small(er) family.⁷⁶ Indonesia’s programme has been hailed as a model of family planning and recognised for its active and effective partnerships with religious institutions. In fact, field research performed in Indonesia lead to the conclusion that but for the involvement of Islamic law and institutions, the programme would have failed.

Due to Islam’s highly influential position in Indonesia,⁷⁷ the Government acknowledged that it was necessary to include Islam in its family planning programme.⁷⁸ This is because Islam (like other religions) contains ‘highly developed codes of behaviour related to sexuality and reproduction that are proscriptive in regulating marriage, sexuality, gender relations and roles, and procreation within the faith group’.⁷⁹ Given the impact of such religious norms on reproductive health, understanding and addressing a health problem’s socio-cultural determinants can be as important as addressing the medical aspects.⁸⁰ The Indonesian Government did this by engaging Muslim leaders, organisations, and communities from the outset of the family planning programme. For example, the Government spent time and money engaging Muslim leaders and scholars (ulama), including taking them abroad to learn best family planning practices from other Muslim countries.⁸¹ The Government also created the Indonesian Council of Ulama (Majelis Ulama Indonesia) to institutionalise its relationship with Islamic leaders.⁸² While initially opposed to family planning, these leaders and their organisations shifted positions and came to support the Government’s programme. This was done based on progressive interpretations of Islamic texts (particularly regarding welfare), as well as external and internal advocacy.

The Muslim organisations Nahdlatul Ulama (NU) and Muhammadiyah issued religious rulings (fatwas) in favour of family planning, undertook public advocacy promoting family planning as well as women’s health and equality, and provided reproductive health services. These actors were well placed to be effective in these roles given their established trust and legitimacy within the Muslim community. This position can be contrasted to that of international human rights law in Indonesia. Many former colonial States like Indonesia approach international law with scepticism given its historical role in justifying as well as facilitating colonialism.⁸³ During field work in Indonesia, many interview participants remarked upon the poor domestic resonance of human rights and the limited understanding of rights in general, which helped fuel suspicion towards them. An NGO representative noted that rights are seen as part of the ‘Western agenda’ and that those promoting them can be labelled as ‘Western agents’.⁸⁴ However, given the normative overlap, Islam can be engaged to further human rights goals. For example, according to Riffat Hassan, it is easier to assure Muslim women that the Qur’an supports their reproductive rights than it is to tell them that a UN document will set them free.⁸⁵ As such, it can be more effective to rely upon Islamic norms rather than international ones to increase a Muslim community’s acceptance and utilisation of family planning.

The Government’s top-down measures regarding Islamic leaders and organisations were complemented by the bottom-up work of Muslims who advocated internal reform from within. Reformist Muslim scholars played an indispensable role in this regard, undertaking contextual (re)interpretations and advocating Islamic norms in line with women’s rights and equality.⁸⁶ This was possible given the scope for a diversity of views within Islam, which is far from monolithic. While generally open to interpretation, Islam in Indonesia takes a highly interpretive approach, giving rise to multiple understandings of Islam.⁸⁷ This interpretive scope and intra-plurality provides space for dialogue, debate, and dissent within Muslim communities and dynamism of Islamic norms. Those seeking gender equality in Indonesia used this interpretative scope to spark discussion, gain supporters, and push reforms. For example, the women’s branch of NU, Muslimat, pressured the organisation’s central board to amend its position on family planning by contesting their interpretation of Islamic law and advocating their own reinterpretation.⁸⁸ In this way, both the Government as well as individual Muslims mobilised Islam to support women’s right to family planning. As the State does not have authority to determine or reform Islamic norms, it had to work with the Muslim community to do so. While the State can lack legitimacy as an actor in such situations, the members and leaders of Islamic organisations have much authority and agency.

This Indonesian study exemplified culturally sensitive approaches to human rights, highlighting not just their theoretical benefits but their instrumentality in practice. It demonstrated that in the Indonesian context and based on the example of family planning, Islam as a social institution can and should be engaged by the State to implement human rights. In fact, it was less an example of how the State should involve Islam, but rather that it must do so in order to be effective. The example illustrated that multiple actors and norms, and not just those of the State, have a distinct role to play within their sphere of influence. Given its lack of authority regarding Islamic law, the Government was dependent upon internal, bottom-up reform from within the Muslim community. This internal reform was in turn dependent upon the inherent dynamism and contestation of Islamic law, making the case study a prime example of how internal actors are agents in negotiating cultural norms. As the reforms were introduced by Muslims and according to Islamic interpretive processes, they were more likely to be viewed by the community as legitimate and applicable. While this process of negotiation and reform was internal, the Government encouraged and facilitated internal actors pursuing human rights compliant interpretations of Islam. This supportive (rather than direct) role of the State as an external actor is also advocated in the literature on culturally sensitive approaches.⁸⁹ This shows the need for human rights to have domestic constituents, and for States to find and support such actors within their communities.

There are, of course, no silver bullets and limitations to all approaches to human rights implementation, including the use of social institutions. Practical or ethical trade-offs may arise rendering human rights protection less than perfect. In the Indonesian example, this manifested in the fact that contraceptives are available only to married couples, and not to unmarried persons.⁹⁰ This has adverse consequences particularly for young people. However, despite the law and Islamic norms against it, secular NGOs provide contraceptive services to unmarried persons.⁹¹ While this is a practical solution that may fulfil some rights in the interim, denying all people access to contraceptives is a violation of their human rights. However, simply amending the legislation to permit unmarried persons access to contraceptives will not necessarily be effective if it remains proscribed by Islam. Therefore, the Indonesian Government will need to continue engaging with NGOs and Islamic norms and actors to bridge this gap. While such law reform processes can take time, be complex and uncertain, they can lead to meaningful change to a community’s norms in line with human rights.

Clearly, Islamic law and institutions are central in reproductive health matters in Indonesia and too empirically important to be disregarded. Despite this, they are virtually absent in the UN treaty bodies’ Concluding Observations to Indonesia. For example, the HRCee expressed its concern at the prevalence in Indonesia of polygamy and child marriage, which both have implications for women’s reproductive health. Polygamy and child marriage are publicly supported in Indonesia based on interpretations of Islamic law.⁹² Rather than recommending that Indonesia engage with Islamic law and actors on the topic, the HRCee instead focused on State law solutions.⁹³ In fact, the HRCee does not mention Islam at all in its Concluding Observations to Indonesia. The ESCR Committee also failed to mention Islam in its Observations to Indonesia. This is even though they address topics such as access to contraceptives for unmarried persons as well as married women without their husband’s consent,⁹⁴ which are both informed by Islam.⁹⁵ By failing to acknowledge Islamic law and actors, the HRCee and the ESCR Committee forego the opportunity to engage a vital social institution in the implementation of rights in Indonesia. This suggests a propensity to view culture (including religion) as an obstacle to rights rather than an asset. Furthermore, their insistence upon State law as the measure of implementation illustrates their legalistic and State-centric approach to rights.

In contrast, the CEDAW Committee recognises Islam and recommends Indonesia engage with its norms and actors. Regarding combatting FGM/C, polygamy, and child marriage, the Committee recommended that Indonesia engage with religious groups and leaders.⁹⁶ In relation to discriminatory laws against women, the Committee specifically refers to Islam, urging Indonesia inter alia to raise awareness among religious groups and leaders about the need for law reform, and to form partnerships and collaborate with Islamic organisations to increase support for law reform, including highlighting comparative ‘jurisprudence in which more progressive interpretations of Islamic law have been codified and applied’.⁹⁷ These recommendations demonstrate that the CEDAW Committee understands culture’s inherent relationship to human rights and the interplay of plural legal systems. Their approach can also be seen as consistent with the literature on culturally sensitive approaches to implementation discussed above. However, these recommendations are still only made by the CEDAW Committee in second place, with the primary focus remaining on State legislation and enforcement.⁹⁸ As this demonstrates, while the CEDAW Committee also takes a more progressive approach, its recommendations to Indonesia regarding matters inherently related to Islam remain State-centric and legalistic.⁹⁹

5. Conclusions: going beyond state institutions in domestic rights implementation

It is the way human rights are operationalised in practice that makes a difference in people’s lives. While the international human rights treaties oblige States parties to do this, human rights can also be operationalised by NSAs and based on non-State norms. As seen in the Indonesian example, change in line with international human rights law is not only possible but can also be profound when advocated by Muslims according to Islamic law. This reflects the special position of Islam within the Indonesian Muslim community, and the influential role that social institutions like religion play in communities all around the world. Given their embedded nature and legitimacy within communities, as well as their normative overlap with human rights, social institutions can be vital assets in human rights implementation. Involving social institutions can ensure that rights are communicated and implemented in culturally appropriate ways, which not only facilitates their adoption but also pays due respect to cultural diversity. Therefore, while formal State institutions should be used to domestically implement human rights, so too should informal social institutions.

While States parties retain discretion in selecting implementation measures, the treaty bodies’ mandate is to supervise that process and guide them on effective implementation. Despite the treaties not always prescribing legislative measures, the treaty bodies and scholarship focus on this approach in practice. However, if State legislative measures are not an effective implementation measure or if they create resistance, as seen in the present Indonesian example, then the treaty bodies are doing States a disservice by focusing predominately on such measures. Similarly, if engaging social institutions like Islam is an effective implementation measure for a State to take as seen in this example, then the treaty bodies not recommending this measure are also doing States a disservice. Given the complex and diverse environments in which international human rights have to be implemented around the world, the work of the treaty bodies would be enhanced by broadening and diversifying the implementation measures envisaged and advised to States. The treaty bodies should shift their central focus away from State law to include other effective measures and more holistic approaches to implementation. Specifically, the treaty bodies could stress the role of social institutions in human rights implementation, as well as the scope and necessity for States to collaborate with them domestically. This would also go some distance in addressing the critiques of State-centricity and legalism.

As recognised in the treaties themselves, State law is but one tool to implement human rights. Given that the treaties all recognise other measures of implementation and the involvement of other actors, the treaty bodies can adjust their approach without having to change their structure or mandate – just their practice. The treaty bodies themselves could choose to shift their focus to be more open to other implementation measures, including engaging social institutions. While reforming practice can be challenging, such a step would enhance the work and impact of the treaty bodies in monitoring State’s implementation. Such a change in focus would better reflect the complex process of domestic implementation in practice, involving not just States but every organ of society. This article therefore advocates further consideration by the treaty bodies of rights implementation beyond the possibilities offered by formal State institutions and to include also social institutions. As former UN High Commissioner for Human Rights Mary Robinson noted ‘We are all custodians of human rights’.¹⁰⁰ Inclusive participation in human rights implementation can improve simultaneously their legitimacy and efficacy. This presents an opportunity to re-engage with the promises of human rights, which remain fundamental yet elusive.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Julie Fraser is a Assistant Professor with the Netherlands Institute of Human Rights (SIM) and the Montaigne Centre for Rule of Law and Administration of Justice at Utrecht University. The author is grateful for the input and guidance of Prof Tom Zwart and Prof Yvonne Donders, and to the anonymous peer reviewers. All errors remain the authors.

Notes

1 Jean-Philippe Thérien and Philippe Joly, ‘“All Human Rights for All”: The United Nations and Human Rights in the Post-Cold War Era’, Human Rights Quarterly 36, no. 2 (2014): 380–81, citing UN Secretary-General, Report of the Secretary-General on the Work of the Organization, Delivered to the UN GA, A/62/1 (31 August 2007) para 80; Office of the High Commissioner for Human Rights, ‘Annual Report 2008: Activities and Results’ (30 April 2009) 5, http://www.ohchr.org/Documents/Press/OHCHR_Report_2008.pdf (accessed 14 November 2017); Mary Robinson, ‘From Rhetoric to Reality: Making Human Rights Work’, European Human Rights Law Review 2 (2003): 1; Christof Heyns and Frans Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International, 2002), 1.

2 See, for example, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 2(2); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC) art 4; Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW), arts 2 and 3.

3 Social institutions are sets of patterned strategies, consisting of norms, values, and role expectations, which people develop and pass on to subsequent generations for dealing with pressing social needs. Giddens notes that social institutions ‘are the more enduring features of social life’ that guide human activity and reproduce themselves trans-generationally: Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Polity Press, 1984), 24.

4 See, for example, Emilia Powell and Jeffrey Staton, ‘Domestic Judicial Institutions and Human Rights Treaty Violation’, International Studies Quarterly 53, no. 1 (2009): 149–74; Jose Parra, ‘The Role of Domestic Courts in International Human Rights Law: The Constitutional Court of Colombia and Free, Prior and Informed Consent’, International Journal on Minority and Group Rights 23, no. 3: 355–81; Linda Reif, ‘The Transplantation and Adaptation: The Evolution of the Human Rights Ombudsman’, BC Third World Law Journal 31 (2011); Gauthier de Beco, ‘National Human Rights Institutions in Europe’, Human Rights Law Review 7, no. 2 (2007): 331–70; Ryan Welch, ‘National Human Rights Institutions: Domestic Implementation of International Human Rights Law’, Journal of Human Rights 16, no. 1 (2017): 96–116.

5 See, for example, Andrew Clapham, ‘The Use of International Human Rights Law by Civil Society Organisations’ in Routledge Handbook of International Human Rights Law, eds. Scott Sheeran and Sir Nigel Rodley (Routledge, 2013); Rachel Brett, ‘Non-Governmental Organizations and Human Rights’ in International Protection of Human Rights: A Textbook, eds. Catarina Krause and Martin Scheinin (Turku/Abo, 2009); Thomas Risse, Stephen Ropp, and Kathryn Sikkink, eds., The Persistent Power of Human Rights: From Commitment to Compliance (CUP, 2013).

6 See for example Tom Zwart, ‘Using Local Culture to Further the Implementation of International Human Rights: The Receptor Approach’, Human Rights Quarterly 34, no. 2 (2012): 546–69.

7 This section is based on field work completed by the author in Java, Indonesia in January and February 2017, which included qualitative research methods including semi-structured interviews.

8 For example, the ICCPR in Art 2(2) obliges States parties to ‘take steps’ necessary to ‘give effect’ to the treaty provisions by legislative or ‘other measures’. See also International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art 2(1); CRC art 4; CEDAW art 2; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) art 2(1).

9 Oscar Schachter, ‘The Obligation of the Parties to Give Effect to the Covenant on Civil and Political Rights’, The American Journal of International Law 73, no. 3 (1979): 462. See also Anja Seibert-Fohr, ‘Domestic Implementation of the International Covenant on Civil and Political Rights Pursuant to its Article 2 Para. 2’, in Max Planck Yearbook of United Nations Law, eds. J.A. Frowein and R. Wolfrum, Vol 5 (Kluwer, 2001): 401–403; Christian Tomuschat, Human Rights: Between Idealism and Realism, 2nd edn. (OUP, 2008), 111.

10 UN Human Rights Committee (HRCee), General Comment No. 31 The Nature of the General Legal Obligations Imposed on States Parties to the Covenant CCPR/C/21/Rev.1/Add.13 (29 March 2004) paras 4, 13.

11 See for example ICCPR art 6(1); CEDAW art 2(a); CAT art 4(1); Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (CERD) art 4(a).

12 Cees Flinterman, ‘The Universal Declaration of Human Rights at 60’, Netherlands Quarterly of Human Rights 26/4 (2008): 482; Eva Brems, ‘Reconciling Universality and Diversity in International Human Rights: A Theoretical and Methodological Framework and Its Application in the Context of Islam’, Human Rights Review 5, no. 3 (April–June 2004): 13.

13 See Tomuschat (n 9) 119; Seibert-Fohr (n 9) 425, fn 126.

14 See for example Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 31(1).

15 UN Committee Against Torture, ‘General Comment No. 2: Implementation of Article 2 by States Parties’ CAT/C/GC/2/CRP. 1/Rev.4 (2007) para 6.

16 In addition to this assessment by the UN treaty bodies, States also assess one another via the UN Human Rights Council and particularly the Universal Periodic Review.

17 Schachter claims that the preparatory work to the ICCPR ‘shows the mandatory incorporation into domestic law was not intended’. Schachter (n 9) 462, footnote 2. See also ESCR Committee, General Comment No. 9: The Domestic Application of the Covenant E/C.12/1998/24 (3 December 1998) paras 5 and 8.

18 HRCee, General Comment No. 31 (n 10) paras 13 and 15.

19 ESCR Committee, General Comment No. 12 the right to adequate food E/C.12/1999/5 (12 May 1999) para 33; ESCR Committee, General Comment No. 14 The Right to the Highest Attainable Standard of Health E/C.12/2000/4 (11 August 2000) para 60; ESCR Committee, General Comment No. 15 The right to water E/C.12/2002/11 (20 January 2003) para 57; ESCR Committee, General Comment No. 18 the right to work E/C.12/GC/18 (6 February 2006) para 49.

20 See for example Committee Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties CAT/C/GC/2/CRP. 1/Rev.4 (2007) para 11; CEDAW Committee, General Recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women CEDAW/C/GC/28 (16 December 2010) para 31; CRC Committee, General Comment No. 5 General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) CRC/GC/2003/5 (27 November 2003) para 20.

21 Oona Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’,Journal of Conflict Resolution 51, no. 4 (August 2007): 593; Tomuschat (n 9) 120; Christof Heyns and Frans Viljoen, ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’, Human Rights Quarterly 23, no. 3 (2001): 527; Denis Galligan and Deborah Sandler, ‘Implementing Human Rights’, in Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context, eds. Simon Halliday and Patrick Schmidt (Hart Publishing, 2004), 49; Rhona Smith, Textbook on International Human Rights (OUP, 2012), 177.

22 Joshua Castellino, ‘Application of International Standards of Human Rights Law at Domestic Level’, in An Introduction to International Human Rights Law, eds. Azizur Rahman Chowdhury and Jahid Hossain Bhuiyan (Nijhoff, 2012), 253.

23 The ‘legalisation’ of human rights refers to ‘the practice of formulating human rights claims as legal claims and pursuing human rights objectives through legal mechanisms’: Jack Donnelly, ‘The Virtues of Legalization’, in The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law, eds. Saladin Meckled-García and Bașak Çali (Routledge, 2006) 67.

24 For example, the Indonesian Government withdrew its legislative prohibition on medically performed female genital mutilation/cutting (FGM/C) due to backlash by Islamic leaders and fatwas against the prohibition. See UN Committee on the Elimination of Discrimination against Women (CEDAW Committee), Consideration of reports submitted by States parties under article 18, Combined sixth and seventh periodic reports of States parties: Indonesia CEDAW/C/IDN/6-7 (7 January 2011) paras 132, 152; CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination against Women: Indonesia CEDAW/C/IDN/CO/6-7 (7 August 2012) paras 21–22; HRCee, Concluding Observations on the initial report of Indonesia CCPR/C/IDN/CO/1 (21 August 2013) para 12.

25 Bașak Çali and Saladin Meckled-García, ‘Introduction: Human Rights Legalized – Defining, Interpreting, and Implementing an Ideal’, in The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law, eds. Saladin Meckled-García and Bașak Çali (Routledge, 2006), 1; David Forsythe, ‘Human Rights Studies: On the Dangers of Legalistic Assumptions’, in Methods of Human Rights Research, eds. Fons Coomans, Fred Grünfeld, and Menno Kamminga (Intersentia, 2009), 65–6.

26 Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’, Journal of Law and Society 34, no. 4 (December 2007): 417.

27 See for example Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR), preamble; ESCR Committee, General Comment No. 14 (n 19) para 42; ESCR Committee, General Comment No. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activity E/C.12/GC/24 (10 August 2017) para 5.

28 Manisuli Ssenyonjo, ‘Non-State Actors and Economic, Social, and Cultural Rights’, in Economic, Social, and Cultural Rights in Action, eds. Mashood Baderin and Robert McCorquodale (OUP, 2007), 109, 134; Cedric Ryngaert, ‘Non-State Actors: Carving out a Space in a State-Centred International Legal System’, Netherlands International Law Review 63 (2016): 185, citing Mariana Valverde, Chronotopes of the Law: Jurisdiction, Scale and Governance (Routledge, 2015).

29 William Twining, ‘Legal Pluralism 101’, in Legal Pluralism and Development: Scholars and Practitioners in Dialogue, eds. Brian Tamanaha, Caroline Sage, and Michael Woolcock (CUP, 2012), 114.

30 Patrick Schmidt and Simon Halliday, ‘Introduction: Socio-Legal Perspectives on Human Rights in the National Context’, in Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context, eds. Simon Halliday and Patrick Schmidt (Hart Publishing, 2004), 2; Abdullahi Ahmed An-Na’im, ‘The Spirit of Laws is not Universal: Alternatives to the Enforcement Paradigm for Human Rights’, Tilburg Law Review 257 (2016): 21.

31 UNICEF comments for the CRC Committee, ‘Day of Discussion on The Private Sector as Service Provider and its Role in Implementing Child Rights’ Geneva (20 September 2002) para 1; Manfred Nowak, Human Rights or Global Capitalism: The Limits of Privatization (University of Pennsylvania Press, 2017), 69; Audrey Chapman, ‘The Impact of Reliance on Private Sector Health Services on the Right to Health’, Health and Human Rights Journal 16, no. 1 (June 2014): 123.

32 Issues of cultural relativism were raised at the time of the drafting of the UDHR, and reached a pinnacle with the Asian values debates in the 1990s. See Executive Board, American Anthropological Association (AAA), ‘Statement on Human Rights’, American Anthropologist 539 (1947): 49; Karen Engle, ‘Culture and Human Rights: The Asian Values Debate in Context’, New York University Journal of International Law and Politics (1999–2000): 32.

33 Thérien and Joly (n 1) 395.

34 Philip Alston, ‘The “Not-a-Cat” Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?’, in Non-State Actors and Human Rights, ed. Philip Alston (OUP, 2005), 17–18; Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP, 2006), 3.

35 UN Framework Convention on Climate Change (Paris Agreement) (adopted on12 December 2015, entered into force 4 November 2016) No. 54113. ‘America’s Pledge’ brings together private and public actors to ensure that the USA reduces emissions and delivers the State’s climate goals in the Paris Agreement, see www.americaspledgeonclimate.com (accessed 30 November 2017). Additionally, over 2,500 leaders across the USA signed the ‘We Are Still In’ declaration committing to action on climate change, see ‘We Are Still In’ https://www.wearestillin.com (accessed 30 November 2017).

36 Canada’s programme from 1978 allows organisations or a group of citizens/permanent residents to sponsor a refugee by providing financial support and general assistance to help the person selected settle into the community. See Government of Canada, ‘Guide to the Private Sponsorship of Refugees Program’ www.cic.gc.ca/english/resources/publications/ref-sponsor/index.asp (accessed 30 November 2017).

37 See Ekaterina Yahyaoui Krivenko, ‘Hospitality and Sovereignty: What Can We Learn From the Canadian Private Sponsorship of Refugees Program?’, International Journal of Refugee Law 24, no. 3 (2012).

38 Challenging this position see Manfred Nowak, Human Rights or Global Capitalism: The Limits of Privatization (University of Pennsylvania Press, 2017), 79.

39 Audrey Chapman, ‘The Impact of Reliance on Private Sector Health Services on the Right to Health’, Health and Human Rights Journal 16, no. 1 (June 2014): 125; Brigit Toebes, ‘The Right to Health and the Privatization of National Health Systems: A Case Study of the Netherlands’, Health and Human Rights 9, no 1 (2006): 107; UN CRC Committee, ‘Report on the Thirty-First Session’ CRC/C/121 (11 December 2002) para 641.

40 CEDAW Committee, General Recommendation No 24, Article 12 of the Convention (Women and Health) (article 12) A/54/38/Rev.1, chap. I (1999) para 17; ESCR Committee, General Comment No. 5 Persons with Disabilities (1994) para 12; CRC Committee, General Comment No. 15 on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) CRC/C/GC/15 (17 April 2013) para 48; CRC Committee, General Comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights CRC/C/GC/16 (17 April 2013) para 28.

41 Ryngaert (n 28) 191, 193.

42 Heyns and Viljoen (n 21) 488.

43 Eva Brems, Human Rights: Universality and Diversity (Nijhoff, 2001), 311.

44 See for example ibid; Barbara Oomen and Esther van den Berg, ‘Human Rights Cities: Urban Actors as Pragmatic Idealistic Human Rights Users’, Human Rights and International Legal Discourse 160, 181 (2014): 8.

45 See for example Jeremy Menchik, ‘The Co-evolution of Sacred and Secular: Islamic Law and Family Planning in Indonesia’, South East Asia Research 22 (2014): 3.

46 Nina Nurmila, ‘The Influence of Global Muslim Feminism on Indonesian Muslim Feminist Discourse’, Al-Jāmi’ah 49, no. 1 (2011): 60.

47 Following the ratification of Somalia and South Sudan in 2015, the USA is now the only State that has not ratified the CRC. For scholarship regarding US public opinion on human rights see Sam McFarland and Melissa Mathews, ‘Do Americans Care About Human Rights?’, Journal of Human Rights 4, no. 3 (2006): 305–19; Mary Anderson and David Richards, ‘Beyond the Media’s Explanation: Examining the Determinants of Attitudes Towards Torture’, Journal of Human Rights 17, no. 3 (2018): 289–302.

48 Oomen and van den Berg (n 44) 181.

49 ibid 183.

50 See for example Australian Human Rights Commission, ‘Media Release: Important Steps to Better Protect Human Rights but Substantial Gaps Remain’, 21 April 2010, www.humanrights.gov.au/news/media-releases/2010-media-release-important-steps-better-protect-human-rights-substantial-gaps (accessed November 18, 2017).

51 Oomen and van den Berg (n 44) 181.

52 Michael Freeman, ‘Universalism of Human Rights and Cultural Relativism’, in Routledge Handbook of International Human Rights Law, eds. Scott Sheeran and Sir Nigel Rodley (Routledge, 2013), 61.

53 See for example Abdullahi Ahmed An-Na’im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, eds. Abdullahi Ahmed An-Na’im (University of Pennsylvania Press, 1992), 19.

54 FGM/C ‘remains quite prevalent in many new African nations despite extensive national and international legislation against the practice’: Bonny Ibhawoh, ‘Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State’, Human Rights Quarterly 22 (2000): 849. See also Camilla Yusuf and Yonatan Fessha, ‘Female Genital Mutilation as a Human Rights Issue: Examining the Effectiveness of the Law Against Female Genital Mutilation in Tanzania’, African Human Rights Law Journal 2 (2013): 324–55; Annemarie Middelburg, Empty Promises? Compliance with the Human Rights Framework in relation to Female Genital Mutilation/Cutting in Senegal (Middelburg, 2016).

55 Yvonne Donders, ‘Human Rights: Eye for Cultural Diversity’, Inaugural Lecture delivered upon the appointment to the chair of Professor of International Human Rights and Cultural Diversity at the University of Amsterdam (29 June 2012) 24; Bonny Ibhawoh, ‘Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State’, Human Rights Quarterly 22 (2000): 857.

56 Mary Ann Glendon, A World Made New (Random House, 2002) 161; Abdullahi Ahmed An-Na’im, ‘The Spirit of Laws is not Universal: Alternatives to the Enforcement Paradigm for Human Rights’, Tilburg Law Review 21 (2016): 274.

57 Zwart (n 6), 546–69.

58 ibid 564. See also Erika George, ‘Virginity Testing and South Africa’s HIV/AIDS Crisis: Beyond Rights Universalism and Cultural Relativism Toward Health Capabilities’, California Law Review (2008): 96.

59 See for example Abdullahi Ahmed An-Na’im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, eds. Abdullahi Ahmed An-Na’im (University of Pennsylvania Press, 1992); Sally Engel Merry, ‘Legal Transplants and Cultural Translation: Making Human Rights in the Vernacular’, in Human Rights: An Anthropological Reader, ed. Mark Goodale (Blackwell Publishing, 2009); Celestine Nyamu-Musembi, ‘Are Local Norms and Practices Fences or Pathways? The Example of Women’s Property Rights’, in Cultural Transformation and Human Rights in Africa, ed. Abdullahi Ahmed An-Na’im (Zed Books Ltd., 2002).

60 See Julie Fraser and Henrike Prudon, ‘Integrating Human Rights with Local Norms: Ebola, Burial Practices, and the Right to Health in West Africa’, Intercultural Human Rights Law Review 12 (2017): 84–94.

61 Federico Lenzerini, The Culturalization of Human Rights Law (OUP, 2014), 238–39.

62 Nyamu-Musembi (n 59) 134.

63 For example, CEDAW art 5(a) requires States Parties to ‘modify the social and cultural patterns of conduct of men and women’ to ensure equality between the sexes.

64 Brems (n 12) 229. Coomaraswamy notes that ‘[r]eformists who try to improve the situation of women always exist within each tradition’, and that ‘[o]nly where such groups do not exist and where there is a situation of terror, such as in Taliban-ruled Afghanistan, should one consider direct international action’. Radhika Coomaraswamy, ‘Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women’ The George Washington International Law Review 34, (2002): 499, 513. See also George (n 58) 1514.

65 Celestine Nyamu, ‘How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries? Harvard International Law Journal 41, no. 2 (2000): 413; Abdullahi Ahmed An-Na’im, ‘Introduction’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi Ahmed An-Na’im (University of Pennsylvania Press, 1992), 4.

66 Nyamu-Musembi (n 59) 132.

67 Nyamu (n 65) 413, 417–418; Celestine Nyamu-Musembi, ‘An Actor- oriented Approach to Rights in Development’, IDS Bulletin 36, no. 1 (2005), 46.

68 Nyamu-Musembi (n 59) 134; Abdullahi Ahmed An-Na’im, ‘Conclusion’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi Ahmed An-Na’im (University of Pennsylvania Press, 1992), 432.

69 Fraser and Prudon (n 60) 107.

70 An-Na’im (n 68) 431.

71 Sezgin notes that government interference can invoke ‘fierce resistance’: Yüksel Sezgin, ‘How to Integrate Universal Human Rights into Customary and Religious Legal Systems’, Journal of Legal Pluralism and Unofficial Law no. 60 (2010): 5, 11–12. Fraser and Prudon discuss the resistance to culturally inappropriate laws passed in order to address the Ebola crisis in West Africa in 2014–2015 (n 60) 105.

72 Culture continues to be portrayed at times in international human rights discourse as something static, homogenous, and ancient – as an obstacle to rights in the modern State. See Twining (n 29) 118; Ann-Belinda Preis, ‘Human Rights as Cultural Practice: An Anthropological Critique’, Human Rights Quarterly 1996: 18, 289, 294; Sally Engle Merry, ‘Human Rights Law and the Demonization of Culture (And Anthropology Along the Way)’, PoLAR 26, no. 1 (May 2003), 58, 60.

73 National Population and Family Planning Board (Badan Kependudukan dan Keluarga Berencana Nasional) (BKKBN) and UNFPA, ‘Discussion Paper on Family Planning, Human Rights and Development in Indonesia, Complement to the State of the World Population Report 2012’ (14 November 2012, Jakarta, Indonesia) 1.

74 ibid.

75 BKKBN, UNFPA, USAID, FP2020 Indonesia Country Committee, A rights-based strategy for accelerating access to family planning services to achieve Indonesia’s development goals (2015), 8.

76 Iwu Dwisetyani Utomo, Syahmida Arsyad, and Eddy Nurul Hasmi, ‘Village Family Planning Volunteers in Indonesia: The Role in the Family Planning Programme’, Reproductive Health Matters (2006), 14:27, 74; Interview with Professor Emeritus Sri Moertiningsih Adioetomo PhD, Faculty of Economics and Business Universitas Indonesia (10 February 2017, Depok, Indonesia).

77 Almost 87 per cent of Indonesia’s population – over 200 million people – are Muslim, making it the country with the largest Muslim population in the world. Pew Research Centre, Drew Desilver and David Masci, ‘World’s Muslim Population more Widespread than you Might Think’, 31 January 2017, www.pewresearch.org/fact-tank/2017/01/31/worlds-muslim-population-more-widespread-than-you-might-think/ (accessed 1 November 2017).

78 Katherine Marshall, Religious Engagement in Family Planning Policies: Experience in Six Muslim-Majority Countries (World Faiths Development Dialogue, 2015), 14.

79 Frances Kissling, ‘Examining Religion and Reproductive Health: Constructive Engagement for the Future’, in Reproductive Health and Human Rights: The Way Forward, eds. Mindy Jane Roseman and Laura Reichenbach (University of Pennsylvania Press, 2009), 212.

80 Dominic Azuh, Oluyemi Fayomi, and Lady Ajayi, ‘Socio-Cultural Factors of Gender Roles in Women’s Healthcare Utilization in Southwest Nigeria’, Open Journal of Social Sciences 3 (2015): 106.

81 Interview with former staff member of BKKBN and the Ministry of Populations (31 January 2017, Jakarta, Indonesia); Interview with Ninuk Widyantoro, Women’s Health Foundation (YKP) (1 February 2017, Jakarta, Indonesia); Interview with Lies Marcoes-Natsir, Rumah Kita Bersama Foundation (4 February 2017, Bogor, Indonesia).

82 Mark Cammack and Michael Feener, ‘The Islamic Legal System in Indonesia’, Pacific Rim Law & Policy Journal 21 (2012): 42, 33–35.

83 Antony Anghie, ‘International Human Rights Law and a Developing World Perspective’, in Routledge Handbook of International Human Rights Law, eds. Scott Sheeran and Sir Nigel Rodley (Routledge, 2013), 112.

84 Interview with the Director of Rahima (30 January 2017, Jakarta, Indonesia).

85 Riffat Hassan, ‘Challenging Stereotypes of Fundamentalism: An Islamic Feminist Perspective’, The Muslim World 91 (Spring 2001): 66.

86 See for example the work of Siti Musdah Mulia, ‘Muslim Family Law Reform in Indonesia: A Progressive Interpretation of The Qur’an’, Al-Mawarid Journal of Islamic Law XV, no. 1 (August 2015); Nina Nurmila, ‘Feminist Reinterpretations of the Qur’ān’, Journal of Qur’ān and Hadith Studies 2, no. 2 (2013); and analysis by Pieternella van Doorn-Harder, Women Shaping Islam: Reading the Qur’an in Indonesia (University of Illinois Press, 2006).

87 Rachel Rinaldo, ‘Envisioning the Nation: Women Activists, Religion and the Public Sphere in Indonesia’, Social Forces 86, no. 4 (June 2008): 1790.

88 Marshall (n 78) 17; Menchik (n 45) 365, 368.

89 Eva Brems, ‘Reconciling Universality and Diversity in International Human Rights Law’, in Human Rights with Modesty: The Problem of Universalism, ed. András Sajó (Nijhoff, 2004), 229; Nyamu (n 65) 394; Abdullahi Ahmed An-Na’im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment’, in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi Ahmed An-Na’im (University of Pennsylvania Press, 1992) 37.

90 See Law No 36 of 2009 on Health; UN ESCR Committee, ‘Consideration of reports: reports submitted by states parties in accordance with articles 16 and 17 of the Covenant, List of issues in relation to the initial report of Indonesia, Addendum, Replies of Indonesia to the list of issues’ E/C.12/IDN/Q/1/Add.1 (17 April 2014) para 165.

91 Interview with representatives of Indonesian Planned Parenthood Association (26 January 2017, Jakarta, Indonesia).

92 In Indonesia, Islamic law regarding issues including marriage apply juridically via the State Kompilasi Hukum Islam di Indonesia. See Mohammad Daud Ali, Islamic Law: Introduction to Islamic Jurisprudence and the Legal System in Indonesia (PT RajaGrafindo Persada, 2016), 88–89, 195–201. Of note, the Indonesian Constitutional Court ruled in December 2018 that the minimum marriage age for women at 16 and men at 19 was discriminatory and ordered the Parliament to revise the legislation. See Agustinus Beo Da Costa, Court Ruling Brings Indonesia Closer to ending Child Marriage: Campaigners (Reuters) 13 December 2018.

93 HRCee, Concluding Observations on the initial report of Indonesia CCPR/C/IDN/CO/1 (21 August 2013) para 29.

94 ESCR Committee, Concluding Observations on the initial report of Indonesia E/C.12/IDN/CO/1 (19 June 2014) para 33.

95 Due to interpretations of Islamic law and opposition from Islamic parties in Government, current Indonesian law (Law No. 36 of 2009 on Health) does not provide for access to contraceptives outside of marriage. See Terence Hull, Eddy Hasmi, Ninuk Widyantoro, ‘“Peer” Educator Initiatives for Adolescent Reproductive Health Projects in Indonesia’, Reproductive Health Matters 2004: 12:23, 29.

96 CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination against Women: Indonesia CEDAW/C/IDN/CO/6-7 (7 August 2012) paras 23–24.

97 ibid para 18(c); CEDAW Committee, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Indonesia CEDAW/C/IDN/CO/5 (10 August 2007) para 13.

98 CEDAW Committee, Concluding Observations Indonesia (n 96) paras 18(a) and (b).

99 See also the analysis regarding the CEDAW Committee in Valeska David and Julie Fraser, ‘A Legal Pluralist Approach to the Use of Cultural Perspectives in the Implementation and Adjudication of Human Rights Norms’, Buffalo Human Rights Law Review 23 (2017): 92–94.

100 UN High Commissioner for Human Rights, Mary Robinson cited in UN Commission on Human Settlements, Activities of the United Nations Centre for Human Settlements (Habitat): Progress Report of the Executive Director, HS/C/17/INF/6 (30 March 1999).