International law Essay Example

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Human Rights 14

STATUS OF HUMAN RIGHTS IN INTERNATIONAL LAW

INTRODUCTION

Human rights are universal and protect people from atrocities and other evils. These rights are available to everyone, irrespective of citizenship, nationality, gender, language, race, and competencies. Human rights are enforceable only when the constitution supports them and provides legal enforceability. Such rights protect individuals from maltreatment and other discriminatory actions by the state, and determine the standards of governmental conduct.1

Human rights that are to be permanently enjoyed by individuals, irrespective of the system or nation that they live in. The United Nations Universal Declaration of Human Rights constitutes the starting point for establishing what human rights denote. Its preamble states that freedom, justice and peace are based on the recognition of the inalienable and equal rights of all. Moreover, the fundamental dignity of every individual has to be conceded. This all important Declaration further states that the highest objective of humans is to usher in a world, wherein freedom from fear and want, and freedom of speech and belief are enjoyed by all.2

A International Treaties

The United Nations Charter was the first international agreement, subsequent to World War II that bestowed fundamental human rights upon all. The various nations decided to preserve these rights, which were best suited for promoting international concern. Thereafter, these nations came together and described and integrated these rights into what came to be termed the Universal Declaration of Human Rights. The latter constitutes the yardstick of achievement for every individual of every nation.3

Subsequently, several covenants were adopted, which were akin to the international treaties on cultural, civil and political, economic and social rights. These covenants obliged states to protect and promote these rights, while making them amenable to international scrutiny regarding compliance with such requirements. Thus, any nation that constitutes a member of the comity of nations has to implement these common standards.4 Intrinsically, these standards provide the means to evaluate a government’s performance.

The various international covenants, as well as the Declaration on the Right to Development have laid considerable stress on the notion of international co – operation. This principle has acknowledged the effect of the policies and practices adopted by the developed nations on the rest of the world and the effect of the developing nations on the developed world. These effects are indisputably mutual and the same extends to the obligations arising from international co – operation.5

B Universal Declaration Of Human Rights

In the year 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. This rendered international human rights much stronger. The objective behind this initiative was to achieve a universal standard of human rights for the humanity. This Declaration stipulated, for the first time, the civil, political, economic, social and cultural rights that would be enjoyed by all.6

Gradually these rights were recognised as the fundamental norm of human rights, which were to be respected and protected by all. The Universal Declaration of Human Rights, in alliance with the International Covenant on Civil and Political Rights and its two Optional Protocols, and the International Covenant on Economic, Social and Cultural Rights, effected the International Bill of Human Rights.7

The United Nations Universal Declaration of Human Rights provides several human rights.8 These include political, economic, and social rights. However, collective rights have been excluded in this provision. The UN Declaration had served as the basis for several international treaties in this area, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms.9

Subsequent to the Universal Declaration of Human Rights, several human rights treaties had been ratified. Many have stated that these measures have been largely ineffective. This has been contested by some scholars, who believe that such treaties had the capacity to promote and protect human rights. Such beneficial effects are expected in democratic nations. As such, the effect of such treaties varies from nation to nation. The maximum benefit is seen in countries with strong underpinnings of democratic principles. On the other hand, in nations with repressive and autocratic regimes, the ratification of human rights treaties has no effect on human rights promotion, and on occasion could even lead to greater violation of such rights.10

C International Covenants On Human Rights

Article 2 of the International Covenant on Economic, Social and Cultural Rights 1966 imposes an obligation on the states that are the members of this covenant. Hence, such states have to adopt measures at the national level to implement the rights provided in this covenant. These states are also required to resort to international technical and economic co – operation, in order to realise these rights. As such, these nations are required to enact laws that will promote and protect these rights. This obligation is not as strong as those required under the ICCPR.11

After taking into account the state of their national economy and human rights, a developing country can decide about the extent to which it could ensure the economic rights under this convention to people who are not its nationals. Reports regarding the performance of the different member states of this convention are reviewed and commented upon by the Committee on Economic, Social and Cultural Rights (CESCR), which was constituted in the year 1987. The CESCR is not empowered to receive communication from individuals or states. Nevertheless, NGOs with a consultative status and specialised agencies of the UN are entitled to submit written statements to it.12

As such, it has now become a distinct possibility for many nations to influence human rights in areas that are external to their territory. This development has enhanced the significance of the extra – territorial implementation of human rights. The importance of such interventions crops up during armed conflicts and more importantly, during armed conflict and occupation. The situation is exacerbated to a great extent, when there is foreign occupation.13 At such times, the laws in force have to be safeguarded.

The International Covenant on Economic, Social and Cultural Rights,14 as differentiated from the International Covenant on Civil and Political Rights15 and the European Convention on Human Rights,16 does not refer explicitly to jurisdiction or territory. All the same, at the very least, it could be presumed that the requirements under the International Covenant on Economic, Social and Cultural Rights, apply within the territory of a State party.17

Moreover, the International Court of Justice has deemed the rights specified in the International Covenant on Economic, Social and Cultural Rights as being fundamentally territorial. However, this Covenant maintains silence regarding scope, which in turn leads to some questions. An important doubt that arises is whether the obligations apply to jurisdiction and therefore extend beyond territory. Another question is whether the obligations extend beyond jurisdiction and territory.18

D Enforcement Of Human Rights

The UN does not enforce human rights; however, its agencies monitor the implementation and enforcement of human rights. The latter have reported violations of human rights in the member states. The implementation of human rights and their violation have also been closely monitored by some non – governmental entities, such as the Amnesty International, and the Human Rights Watch. These agencies expose the violations of human rights by the state to the international community.19

The United Nations has specified some of the norms that could prevent the abuse of human rights law. There are several human rights treaties that have adopted these norms. The latter have codified the content of human rights laws. Some of the regional and United Nations treaties related to human rights have established courts and institutions to deal with violations of human rights and to decide such cases.20

During the erstwhile apartheid regime in South Africa, the comity of nations had advocated the use of economic and military measures to enforce features of domestic entitlement. However, it had been accepted by all that such measures were to seek and obtain the authorisation of the United Nations.21

In the year 1994 military intervention, initiated by the US, was conducted in Haiti. This initiative had been ratified by the United Nations Security Council. Although, the provisions of the United Nations Charter forbid the intervention of the United Nations in matters pertaining to the domestic jurisdiction of a nation,22 all the same there is no bar on implementing enforcement measures, as stipulated in Chapter VII.23

The various disquieting events across the world have made it amply clear that the United Nations exerts force on governments that subjugate their citizens by resorting to flagrant racism, prohibiting self – determination, or by subduing the freedom of expression.

As such, the adoption of the Universal Declaration of Human Rights, rejuvenated human rights at the international level. This Declaration is a pioneer in the stipulation of the civil, economic, cultural, political and social rights that every human being should be provided with. The adoption of a number of human rights treaties and other related instruments, since the year 1945, have bestowed a legal form upon human rights and established these rights as a specific collection, at the international level. In addition, there have been several instruments that had been implemented at the regional level. These instruments, chiefly, address and portray the difficulties faced by these regions. Moreover, such regional instruments have been seen to stipulate instruments for the protection of human rights.24

In addition, the protection of basic human rights has also been achieved by the adoption of individual constitutions and enactment of suitable legislation by many countries. The mainstays of international human rights are the various international treaties and customary law. However, there are several other instruments, like guidelines, declarations and principles that had been adopted globally. These initiatives promote the development, understanding and implementation of human rights. Strictly speaking, human rights can be preserved, only if rule of law prevails at the national and global levels.25 As such, implementation of human rights protection will be achieved through the initiative of national entities and international organisations.

In this regard, several obligations are imposed on the nations, by the international human rights law. These have to be obeyed perforce. The act of ratifying international treaties obliges a nation to promote and protect human rights. In accordance with this obligation, the concerned nation should desist from curbing the enjoyment of or interfering with the enjoyment of human rights. This constitutes the obligation to respect human rights. On the other hand, the obligation to protect human rights makes it incumbent upon the state to ensure that individuals and groups are not subjected to the abuse of human rights. Finally, the obligation of a nation to fulfil human rights implies that it should make a positive effort to promote basic human rights.26

E Violations Of Human Rights

There are several disquieting violations of human rights. However, the worst of these is the crime of genocide. It is chiefly the minorities, who fall victim to this reprehensible crime. The timely implementation of minority rights in a comprehensive manner makes it possible to anticipate and prevent this ghastly crime.27

Realising the seriousness of this issue, the United Nations formed the office of Special Adviser on the Prevention of Genocide, in New York. The principal task of this entity is to address the crime of genocide in a comprehensive manner. The task allotted to this office of the United Nations is fraught with considerable difficulty, and it entails a number of political features.28

The highest level of marginalisation in the world is to be found among the minorities. It is distressing to note that the rights of the minorities are routinely marginalised in the UN, specifically in the Office of the High Commissioner for Human Rights. A major flaw detected in the Office of the High Commissioner for Human Rights is that there is considerable ignorance regarding this issue. A major drawback noticed with this office is that minorities are considered insignificant. Therefore, most of the initiatives of this office lack effectiveness.29 The state of justice in the world can be understood from this callous attitude towards the rights of the minorities. These rights are invariably marginalised, despite being some of the oldest and most established of the human rights.

In addition to the entitlements of human rights there are several responsibilities. Thus, nations accept certain duties, as specified in international law, in order to promote and protect human rights. In contrast to this, as individuals, every person has to respect the human rights of other people.30

The decisions of the courts have confirmed the emphatic nature of some of the human rights. Thus, the right to life has been deemed to be compelling law, by the Inter – American Commission. Moreover, the prohibition of torture is an unconditional requirement, and this was affirmed by the International Criminal Tribunal for the former Yugoslavia. This principle has been accorded the same status as the principal standards that protect the basic human rights.

The judiciary in Canada and the US have recognised that the prohibition of torture constitutes an unalterable norm of international law. Thus, in Xuncax v Gramajo, the court ruled that the preclusion of arbitrary detention, disappearance, torture and summary execution enjoyed a peremptory status.31 In addition, the Ninth Circuit Appellate Circuit had opined that slavery, murder, torture and forced labour were serious infringements of jus cogens.32

A person cannot obtain justice for the excesses of the state against him, if the state in question succeeds in contending that it is immune from such action. In effect, such development prevents the individual from establishing his case. However, it is essential to note that the European Convention on Human Rights at article 6 provides a person with the right to a fair trial.33

Thus, in Holland v Lampen – Wolfe, the Law Lords rejected the claimant’s plea. He further stated that the right to a fair trial under the Convention was applicable only if the necessary jurisdiction was possessed by the domestic court. As this condition did not hold good, due to immunity, Holland’s claim had to be rejected.34 This principle was confirmed in the ruling in Jones v Saudi Arabia. This case had involved the detention and torture of citizens of the UK by the Saudi authorities.35 With this ruling, English law has upheld state immunity with regard to torture. This is a disturbing development.

CONCLUSION

Attempts by the Australian Government to incorporate the provisions of the International Bill of Rights into its national laws have proved to be futile. This failure has been attributed to the absence of the required political support. Australia has consistently been claiming that its domestic legislation is fully capable of protecting human rights. These claims have been discounted by the Human Rights Commission, which has declared that Australia has failed to comply with the provisions of the Covenant.36

The developing world, in the words of some scholars, stands little to gain from the various international treaties. The latter have been formulated with the objective of protecting and promoting the interests of the developed world. Consequently, initiatives such as the human rights programme of the UN are meaningless for the developing countries. In these countries the basic human rights would be those related to food, clothing and shelter. When it comes to human rights, like the right to education and employment, it is apparent that these apply to the developed nations.37

In conclusion, it can be surmised that Human Rights are beneficial to the developed world and that International Human Rights have come in to existence and have been implemented, in accordance with the whims and fancies of the richer nations.

BIBLIOGRAPHY

Dixon, Martin, Textbook on International Law (Oxford University Press, 6th ed, 2007)

Franck, Thomas M, Fairness in international law and institutions (Oxford University Press, 1998)

Rothwell, Donald R, Afshin A – Khavari, Stuart Kaye and Ruth Davis, International Law: Cases and Materials with Australian Perspectives (Oxford University Press, 2010)

Slomanson, William R, Fundamental Perspectives on International Law (Cengage Learning, 2010)

Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2010)

Weissbrodt, David S, and Connie de la Vega, International human rights law: an introduction (University of Pennsylvania Press, 2007)

B Journal Articles

Baldwin, Clive, ‘The Office of the High Commissioner for Human Rights and Minority Rights’ (2007) 14(2/3) International Journal on Minority and Group Rights 357

Mottershaw, Elizabeth, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’ (2008) 12(3) International Journal of Human Rights 449

Neumayer, Eric, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ (2005) 49(6) Journal of Conflict Resolution 925

Sengupta, Arjun, ‘The Human Right to Development’ (2004) 32(2) Oxford Development Studies 179

Holland v Lampen Wolfe [2000] 1 WLR 1573

Jones v Saudi Arabia [2006] 1 AC 270

Xuncax v Gramajo [1995] 886 F Supp 162

D Treaties

Charter of the United Nations

Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 November 1976)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 2200A (XXI) (entered onto force 23 March 1976)

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948)

E Websites

Human Rights (1993)

< http://www.credoreference.com/entry.do?ta=bght&uh=human_rights>

Human Rights (2002)

< http://www.credoreference.com/entry/worldcrims/human_rights>

Fact Sheet No. 2 (Rev.1), The International Bill of Human Rights (1996) <>http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf

Office of the High Commissioner for Human Rights, International Human Rights Law (2011) <>http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx

Office of the High Commissioner for Human Rights, What are Human Rights? (2011) <>http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

Orakhelashvili, Alexander, The Interaction between Human Rights and Humanitarian Law: A Case of Fragmentation? (2007)

< http://www.iilj.org/courses/documents/Orakhelashvili.pdf >

1
Human Rights (1993) < http://www.credoreference.com/entry.do?ta=bght&uh=human_rights>.

2
Human Rights (2002) <http://www.credoreference.com/entry/worldcrims/human_rights>.

3
Arjun Sengupta, ‘The Human Right to Development’ (2004) 32(2) Oxford Development Studies 179, 186.

6
Fact Sheet No. 2 (Rev.1), The International Bill of Human Rights (1996) <http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf>.

8
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).

9
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

10 Eric Neumayer, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ (2005) 49(6) Journal of Conflict Resolution 925, 925.

11
Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2010) 989.

13
Elizabeth Mottershaw, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’ (2008) 12(3) International Journal of Human Rights 449, 452.

14
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 November 1976).

15
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 2200A (XXI) (entered onto force 23 March 1976).

16
Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

17
Elizabeth Mottershaw, ‘Economic, Social and Cultural Rights in Armed Conflict: International Human Rights Law and International Humanitarian Law’ (2008) 12(3) International Journal of Human Rights 449, 452.

19
Human Rights (1993) < http://www.credoreference.com/entry.do?ta=bght&uh=human_rights>.

20 David S Weissbrodt and Connie de la Vega, International human rights law: an introduction (University of Pennsylvania Press, 2007) 29.

21
Thomas M Franck, Fairness in international law and institutions (Oxford University Press, 1998)131.

22
Charter of the United Nations art 2(7).

24
Office of the High Commissioner for Human Rights, International Human Rights Law (2011) <http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx>.

27 Clive Baldwin, ‘The Office of the High Commissioner for Human Rights and Minority Rights’ (2007) 14(2/3) International Journal on Minority and Group Rights 357, 367.

29
Ibid, 369.

30
Office of the High Commissioner for Human Rights, What are Human Rights? (2011) <http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx>.

31 Xuncax v Gramajo, 886 F Supp 162.

32 Alexander Orakhelashvili, The Interaction between Human Rights and Humanitarian Law: A Case of Fragmentation? (2007) < http://www.iilj.org/courses/documents/Orakhelashvili.pdf >.

33
Martin Dixon, Textbook on International Law (Oxford University Press, 6th ed, 2007) 198.

34
Holland v Lampen Wolfe [2000] 1 WLR 1573.

35
Jones v Saudi Arabia [2006] 1 AC 270.

36
Donald R Rothwell et al, International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2010) 476.

37
William R Slomanson, Fundamental Perspectives on International Law (Cengage Learning, 2010) 627.

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