Human Rights in International Law - Essay Example

?Human Rights in International Law Introduction International human rights laws are the set of laws within the domain of international law that are aimed at protecting and supporting human rights at the domestic, regional and international levels. Human rights based laws like other forms of international law are composed of a number of treaties and customary international laws. Treaties between states provide international law that has a binding legal effect between the parties that have agreed to the respective treaties. On the other hand, customary international law develops from the consistent conduct of states based on the belief that such behaviour resulted from legal requirements. Other than these methods, other international human rights instruments also exist that are not legally binding but have an effect on the implementation, understanding and development of international human rights laws. These sources of law have been recognised to have a political obligation1. International human rights laws are enforceable on the domestic, regional and international levels. Any states that are involved in human rights treaties undertake a voluntary obligation to respect the rights recognised in the respective treaties. Furthermore, it is the duty of the state to ensure compliance of domestic laws with the conditions laid down in treaties so that domestic and international law is compatible. Although the primary mechanism of human rights protection and the ensuing legal framework are mostly domestic in nature but the bereaved party may resort to regional or international legal mechanisms to redress concerns. Alternatively, regional or international legal mechanisms may enforce themselves on domestic situations in order to deal with human rights abuses. Human rights are protected internationally through the use of two parallel legal mechanisms namely the international human rights laws and the international humanitarian laws. These parallel legal systems are analogous as their substantive norms are either similar or related. One such example is that both legal systems provide protection from torture. However, these systems are different as well on a few levels. A major difference is that legally distinct frameworks regulate these systems. In addition, these legal systems tend to operate in differing contexts and tend to regulate different relationships. For general cases, human rights are taken to regulate the relationship existing between individuals and the state within the context of an ordinary life. In contrast, humanitarian laws are taken to regulate the relationship between a belligerent state and any parties it comes into contact with. These parties could be hostile or neutral when seen in the context of an armed conflict2. This paper will concern itself with the implementation of human rights laws alone on the domestic, regional and international levels. 2. International Law on Human Rights In the post World War Two scenario, the Universal Declaration of Human Rights is the watershed of international human rights law. The United Nations General Assembly adopted this declaration in 1948 and can be seen as a reaction to the experiences of the Second World War. In itself, this declaration is the first global expression of rights that all human beings are entitled to3. The importance of this declaration stems from the fact that its articles have been used subsequently in international treaties, national constitutions, domestic laws and regional human rights instruments. The declaration is not a treaty in itself but has been adopted explicitly in order to define the words “human rights” and “fundamental freedoms” that are listed in the United Nations Charter. In turn, the United Nations Charter is binding on all member states and so the Universal Declaration on Human Rights is a fundamental constitutive document for the United Nations. A large body of international lawyers holds that the Declaration is part of customary international law. This position implies that the Declaration is an influential tool to apply moral and political pressure to any governments that violate any articles of the Declaration. A number of notable people have praised the Universal Declaration on Human Rights calling it “an international document of the first order of importance”4. Others have affirmed that the Declaration “may well become the international Magna Carta of all men everywhere”5. The declaration’s use to draft subsequent legal principles on human rights affirms the declaration’s importance in the international legal community. On the other hand, certain nation states did not sign the Universal Declaration of Human Rights along with other human rights agreements. For example, Saudi Arabia did not sign the Declaration in 1948 citing it as being opposed to Islamic law6 yet Pakistan signed the Declaration even though it is an Islamic country too7. Similarly in 1982 the Iranian representative to the United Nations, Said Rajaie-Khorassani declared the Declaration to be “a secular understanding of the Judeo-Christian tradition”8 that could not be implemented in Islamic states without encroaching on Islamic law. Consequently, Islamic nations that were members of the Organisation of Islamic Conference (OIC) alternatively adopted the Cairo Declaration on Human Rights in Islam in June 20009. This document serves as an alternative to the Universal Declaration of Human Rights and declares that people have “freedom and right to a dignified life in accordance with the Islamic Shari’ah” without having to face any discrimination on the grounds of “race, colour, language, sex, religious belief, political affiliation, social status or other considerations”. The tug of war between regional blocs and the United Nations in the implementation of human rights is indicative of a few things. Firstly, the implementation of human rights as per the Universal Declaration of Human Rights failed to account for the sentiments of certain religious groups. Secondly, the implementation of human rights has been assuming focus in recent decades. This is evidenced by the fact that regional blocs are attempting to implement their own brand of human rights so that the enforcement of legal principles favours the nation state. Thirdly, the disagreement with the Universal Declaration of Human Rights has moved from a few nations to an entire regional bloc. Fourthly, the power of the nation state in manipulating international legislation on human rights doctrines and legislation is undeniable. The adoption of alternatives to the Universal Declaration of Human Rights clearly signifies that the nation state can and will enforce its own brand of legislation to obtain advantage. Moreover, the adoption of alternative principles after agreement to a common framework indicates that the dissenting parties may have been dissatisfied with the implementation of the Declaration. A number of reasons may be attributed to the dissatisfaction but perhaps the biggest cause were the differences in principles between Islamic law (applied on the domestic and regional levels) and customary international law. Furthermore, the dissent on the Declaration is not limited to Islamic nations alone. Asian government reaffirmed their commitment to the principles enshrined in the United Nations Charter and the Universal Declaration of Human Rights through the Bangkok Declaration. The Ministers of Asian states present at the meeting stated that they viewed human rights as indivisible and interdependent. At the same time, they laid stress on the need for “objectivity, universality and non-selectivity of human rights”10. Moreover, stress was placed on the principles of sovereignty and non-interference so that there is greater emphasis on economic, cultural and social rights when compared to civil and political rights. The Bangkok Declaration can be seen as the Asian Values perspective on human rights that offers an extended critique of the universalism of human rights. Though the Asian concept on human rights is not confronting head on with the Universal Declaration of Human Rights but it does present an alternative point of view on the issue. This again is proof that nation states have the ability to dissent from international legislation on human rights as they see fit. The Asian Values ideology of the nineties imposed myriad governments across Asia that were signatories of the Universal Declaration of Human Rights but did not observe it with full effect. Similarly, these governments had also ratified other regional human rights instruments such as those enacted by SAARC11 but failed to uphold them just the same. Historically governments and leaders with chequered records of human rights abuses have been given free bills of health in a majority of cases. For example, General Idi Amin was responsible for political repression, extra judicial killings, large-scale corruption, political repression and human rights abuses in Uganda12. It must be kept in mind that Uganda had ratified a number of human rights agreements but Idi Amin managed to circumvent these and international law regarding human rights by fleeing to Saudi Arabia13. Using arguments from before it should have been possible to build up moral and political pressure on Saudi Arabia for extradition or a trial based on the principle of universal jurisdiction but none of this ever came through. Alternatively, Augusto Pinochet was arrested in Great Britain under the principle of universal jurisdiction and put on trial for human rights abuses during his rule in Chile14. However, the list of convicted governments and leaders pales in comparisons to absconders of human rights abuses. Another major case in point is the armed struggle of the Tamil Tigers in Srilanka. Although Srilanka is a signatory of regional and international agreements on upholding human rights but the armed struggle between the Tamil Tigers and the Srilankan military has other tales to tell. The armed struggle in Srilanka has been cited for myriad human rights violations15 16 including attacks on civilians and civilian targets, recruitment of children soldiers, ethnic cleansing, unfair execution of prisoners of war (POWs) and other criminal activities such as extortion, sea piracy, human trafficking, drug trafficking and gunrunning17. Although the international community could hold Sri Lanka and the Tamil Tigers responsible under international law but there has not been significant action except mere labelling of human rights abuses. The ability of nation states to control their domestic legal structure in respect to human rights can be seen as overruling regional and international agreements on human rights. 3. Conclusion A large body of international law exists in the form of legislation by the United Nations, treaties and agreements on human rights abuses but its actual implementation depends largely on the will of the nation state. The will of the nation state has to give way to better human rights laws implementation under the domain of international law18. 4. 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