State Responsibility Under International Human Rights Law to Change Religious and Customary Laws
Abdullahi Ahmed An-Na'im
States are responsible for bringing their domestic law and practice into conformity with their obligations under international law to protect and promote human rights. This responsibility applies not only to laws enacted by formal legislative organs of the state but also to those attributed to religious and customary sources or sanction, regardless of the manner of their "enactment" or articulation and/or implementation.1 In other words, every state has the responsibility to remove any inconsistency between international human rights law binding on it, on the one hand, and religious and customary laws operating within the territory of that state, on the other. This responsibility is fully consistent with the principle of state sovereignty in international law, since it does not purport to force any state to assume legal obligations against its will. It simply seeks to ensure that states effectively fulfill legal obligations they have already assumed under international law.
These obligations could be based, in general terms, on customary international law, and on the Charter of the United Nations in relation to all its member states. But since neither international custom nor the UN Charter is adequate or specific enough,2 the existence of an international obligation to respect and protect particular human rights, and the consequent obligation to change domestic laws, can be problematic in the absence of specific treaty provisions. Moreover, there are questions about the circumstances and context of the implementation of that obligation. In view of space limitations, I will focus in this chapter