Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach

Human rights treaties embed rights in national legal systems, empowering individuals to claim their rights domestically and internationally. Yet it is exceptionally easy for states to withdraw from most of these treaties, as well as from multilateral agreements that establish standards of accountability in closely analogous areas, such as international criminal law.  This includes treaties that codify jus cogens norms—such as the prohibitions of genocide, torture, forced labor, crimes against humanity, and racial discrimination.

Once a rare occurrence, withdrawals and threats to withdraw from these treaties are on the rise globally. Venezuela denounced the American Convention on Human Rights in 2013, claiming that the Inter-American Court of Human Rights had exceeded its authority. The Philippines withdrew from the Rome Statute in 2018 after the ICC prosecutor began investigating crimes against humanity in that country. Nicaragua left the Organization of American States (OAS) in 2021 following criticism of its national elections. Türkiye denounced the Council of Europe’s Istanbul Convention in the same year, claiming that the treaty was a trojan horse for promoting LGBTQ rights. Belarus exited from the First Optional Protocol to the International Covenant on Civil and Political Rights in 2022. Just in the last few months, Tunisia withdrew its declaration granting individuals and NGOs direct access to the African Court on Human and Peoples’ Rights, and the military regimes of Burkina Faso, Mali and Niger announced a joint withdrawal from the Rome Statute, accusing the ICC of being “an instrument of neo-colonialist repression”. And far right opposition parties frequently call for denunciations of the European Convention on Human Rights.

In each of these instances, actual or threatened withdrawals aim to insulate the government from domestic and international scrutiny, to restrict citizens’ access to justice, and/or to undermine international institutions.

In a recently published article, ‘Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach’, published open access in the Melbourne Journal of International Law, we argue that there are compelling reasons to reconsider the permissive approach to withdrawals from human rights instruments. Our article identifies a rich repertoire of doctrines in international and domestic law that individuals, NGOs, legislatures, courts, and quasi-judicial bodies can deploy in support of a process-based approach that scrutinizes and restricts (but does not eliminate) unilateral withdrawal under existing rules of international law, and that informs future treaty design and domestic lawmaking.

The Permissive Approach to Treaty Withdrawals and its Shortcomings

The rules governing treaty withdrawals have traditionally been understood as codifying a sovereignty-centered, consent-based view of public international law. It is taken for granted that all that is required is a brief letter from the President or Prime Minister informing the depository that the state party intends to quit the treaty after the required notice period has elapsed. This permissive approach also assumes a clear division of authority between international and domestic legal orders. Whether there are ongoing domestic legal challenges to executive treaty withdrawals, for example, does not matter. These permissive rules contrast with the process-based approach that applies to entering into treaties, in which ratification usually requires parliamentary review and approval of the executive’s decision to join a treaty, and reservations are subject to scrutiny by other states parties as well as international monitoring bodies.

The permissive approach to exit creates a range of significant normative problems. It legitimizes the unfettered withdrawal power of the executive at the expense of national legislatures and courts, even when the domestic legality of such an action is in doubt. It provides no opportunity for other treaty parties or international monitoring bodies or courts to scrutinize the decision to exit. And it permits states to leave, even when they are committing widespread rights violations, openly defying international courts, or attacking the individuals whose rights the treaties protect.

A Process-Based Approach to Human Rights Treaty Withdrawals

International and domestic courts have not been blind to these difficulties. They have responded by interpreting treaties and constitutions to bolster processes that limit unilateral executive withdrawal power, both above and within the state. We identify a 2020 advisory opinion of the IACtHR and a 2017 decision of the South African High Court as exemplifying these nascent trends in the international and domestic legal orders, respectively. The process-based approach we propose builds upon these two decisions as well as process-based practices that have long informed the flipside of treaty withdrawals—ratifications and reservations—that also exist at the intersection of international and domestic law.

The foundation of the process-based approach is a requirement that the executive publicly explain the reasons for its proposal to exit and provide an opportunity for domestic and international actors to evaluate the proposal. Denunciation and withdrawal clauses in human rights treaties do not explicitly require such explanations. But they do not preclude them either, and many of the exits listed above were accompanied by public justifications. Requiring the executive to give reasons for a proposed exit serves two salutary functions: it provides an opportunity to clarify the legal, political and/or institutional concerns that, in its view, justify not continuing as a treaty party; and it enables domestic and international actors to evaluate these concerns, assess the validity of the withdrawal under domestic and international law, and if appropriate challenge the executive’s decision. 

Consistent with the principles of subsidiarity and exhaustion of domestic remedies, we envision a sequencing of actions in which challenges to the executive’s exit rationales before domestic legislatures, courts or national human rights institutions (NHRIs) in the withdrawing country precede challenges by other states parties or individual litigants before international courts, monitoring bodies, or conferences of the parties at the international level. Where, however, domestic avenues are absent, unduly delayed or ignored by the executive, international scrutiny can—consistently with these principles—proceed prior to or in parallel with challenges at the national level.

Domestically, the process-based approach provides opportunities for individuals and NGOs to challenge exists that diminish rights protections. This occurred, for example, in 2023 when a Brazilian trade union challenged the constitutionality of the denunciation of the ILO Convention No 158 before the Supreme Tribunal of Brazil on the ground that it diminished labor rights. Even if domestic litigation is ultimately unsuccessful, it can raise the public profile of efforts to contest the decision to exit and provide time for domestic coalitions to mobilize to pressure the executive to reconsider its decision.

Domestic lawsuits can be filed before the executive files a formal notice of withdrawal, during the notice period, or after a denunciation takes effect. The process-based approach favors a judicial resolution before the executive acts, as occurred when the UK Prime Minister refrained from filing a notice of withdrawal from the Treaty on European Union until the UK Supreme Court ruled that parliamentary approval was constitutionally required, in part because the treaty was “a source of domestic legal rights”. However, judicial review during the notice period can also be impactful, as illustrated by the South African High Court decision invalidating the President’s unilateral denunciation of the Rome Statute. The President revoked the notice rather than appeal the High Court ruling.

At the international level, a range of actors—other states parties, international courts and monitoring bodies and treaty depositories—have the ability to review, and in appropriate circumstances to challenge, withdrawals from human rights instruments. For example, states could question the legality of a withdrawal, treaty bodies could highlight its consequences for other human rights instruments, and international courts could review the legality of exit. The Inter-American Court of Human Rights did precisely this in its 2020 advisory opinion that OAS member states have a collective duty to contest withdrawals that weaken the protection of individual rights.

International scrutiny may be especially effective in highlighting the limited practical benefits of quitting a single treaty in the nested international human rights system. A withdrawing state remains bound by jus cogens, by other global and regional human rights treaties it has ratified, and by customary law, which often protect the same rights as are enshrined in the denounced convention. International actors can underscore the risks of violating these obligations if the state restricts these rights after its withdrawal. Such arguments—and the political pressure accompanying them—could be raised, for example, during the periodic meetings of states parties that many human rights conventions require.

Taken together, the domestic and international dimensions of the process-based approach do not seek to prohibit exit when it is legally permissible, but rather to ensure that the decision to leave is transparent, deliberative, and subject to meaningful scrutiny. The approach also promotes symmetry of rules for entering and exiting treaties, since, as previously explained, a process-based approach already exists for ratification of and reservations to human rights conventions. Our proposal also calls for future human rights treaties to include stronger and explicit safeguards on exit from the outset; such as longer notice periods, requirements for parliamentary approval, mandatory explanations, or even restrictions on leaving treaties that enshrine non-derogable rights.

Addressing the Skeptics and Critics

Our article also identifies and responds to three potential objections to our proposal. Some may argue that international law and domestic law are two separate legal systems and international law cannot have a say in the diverse rules that different countries provide for treaty exit. Yet the reality is that international law and domestic law already work in tandem for ratifications and reservations, and many treaties include references to domestic law in delineating states’ international obligations, such as the “prescribed by domestic law” requirement contained in many human rights conventions.

Others may worry that making withdrawal more difficult will discourage states from joining treaties in the first place. Yet some of the most widely ratified human rights agreements—including the ICCPR, CEDAW, ICESCR and African Charter on Human and Peoples Rights—lack withdrawal or denunciation clauses and are widely understood as precluding exit. Modest procedural safeguards are thus unlikely to deter ratifications, but they may discourage opportunistic exits that have the potential to destabilize rights protections domestically and internationally.

A final objection is that authoritarian and populist governments, which are at the vanguard of human rights treaty denunciations, will ignore the processes that we propose. Even if this is true in the short term, process-based requirements still matter. They empower domestic legislatures, courts, civil society, and international institutions to challenge exits, delay their effects, and keep the spotlight on government rights violations. Conversely, if a government is already repressive domestically or resistant to international oversight, our process-based proposal is unlikely to make its behavior much worse.

Conclusion

The permissive approach to human rights treaty withdrawals is outdated. Allowing executives to unilaterally exit from these treaties erodes domestic rights protections, undermines international commitments, and narrows avenues of accountability. The process-based approach offers a principled and pragmatic alternative: requiring reasons, fostering domestic and international scrutiny, and redesigning future human rights instruments. While not a cure-all, the approach strengthens dialogue, transparency, and collective responsibility, reinforcing the legitimacy and resilience of international institutions and constitutional rights protections.

The process-based approach may also be relevant to multilateral treaties regulating humanitarian protection, refugee and asylum claims, labor standards, global health, and environmental law. Similar to human rights agreements, treaties in these fields are not merely (or even primarily) transactional interstate bargains and they are embedded within a dense network of international and domestic laws and institutions. Opening the black box of executive withdrawal power for human rights instruments thus provides a potential model for developing lex generalis in other areas of the international legal system.