The Challenges and Trade-Offs of Expanding the Reach of International Law - Essay Example

? The Challenges, Benefits and Trade-offs of Expanding the Reach of International Law Although international law is still principally a body of regulations and practices to regulate state behaviour in the conduct of relationships among states, a number of international laws now regulates the functioning of the government and the behaviour of individuals within states, and can also address issues that need ongoing transnational cooperation. By following the historical evolution from a state-centric positivist international legal system to the one where individual’s rights are above those of the state, the essay will explore the benefits, challenges and trade-offs of expanding the reach of international law to include many more individual rights at the expense of the sovereignty of the state. The essay will discuss what is done normatively, touching upon individual rights and responsibilities at the institutional level. Benefits A number of things have evolved normatively and also at the institutional level to incorporate individual responsibilities and rights in international law. This has led to the significant advancements and benefits for individuals. Firstly, the individual rights are recognized in a more formal and appropriate capacity, as it is evident within the context of the Universal Declaration of The Human Rights. It identifies the people’s dignity and also the equal and inseparable rights of individuals, such as freedom of belief and speech. These rights should be protected by the rule of law. It became adopted in 1948 by the General Assembly of the United Nations. It indicated that member-countries had to publicize the Declaration text, disseminate, display, and have it revised principally in all educational institutions, without distinctions based on the status of the political mood of nations or territories. This has enabled the education of individuals about their rights on a global scale (Diehl, 2009). The fact that there is the documentation of the rights and they have become codified provided people with confidence to step forward and seek protection when their rights are violated. For example, the Geneva Convention and its two added protocols regulate the behaviour in an armed conflict. It is now common for soldiers globally to treat each and every person injured in combat with the same respect and dignity even if he or she is an enemy. The more people become aware of their fundamental human rights, the easier it is to take steps in cases of abuse. Citizens who have their rights violated with no action taken by their government will become aware that justice is possible within the framework of the International Law (Sharon, 2010). Not only is the International Law efficient or effective but it also is a departure point, and it contains extensive potentials. In different instances, individuals seek compensation for injuries and are able to help other sufferers in the future. There are other instances where individuals do not have their government on their behalf. For example, when the 16 year old Michael Dominiques sentenced to death for committing murder in the state of Nevada lost his appeal in 2000 at the Supreme Court, he took it forward to the Inter-American Commission on Human Rights. His state had failed to protect the third article of the United Nations Charter, the right to life. He had the opportunity of taking the law into his own hands and claiming that the application of the death penalty would violate the United States treaty and the customary international law refusing the execution of juveniles. Based on the fact that the execution of criminal offenders under the age of 18 was considered an issue of jus cogens in international customary law, the sitting judge concluded that executing a minor would be a grave and irreparable violation. Dominique’s life was spared due to the international law. Also, with the help of Roper versus Simmons case, by 2005 America changed its stance and proclaimed that the death penalty for minors would be considered unconstitutional (Dunoff, 2006). Before the law, individuals have not only rights but also responsibilities. The added advantage of expanding international law to include individuals is if such responsibilities are neglected, individuals can be made liable and accountable for any crime they have committed. For example, the Nuremberg trials helped create a precedent whereby all individuals implicated in war crimes, genocide, crimes against humanity, and other human right abuses will be brought to justice before the international community. After the Bosnian and Rwandan genocides that occurred in the 1990’s, ad hoc tribunals were established by the Security Council of the United Nations. Courts like the Rwanda’s International Criminal Tribunal and the former Yugoslavia try those responsible for these crimes. In Rwanda, the tribunal arranged so intricate proceedings that over eight years only 10 officials were brought to justice. According to Jeremy Rabkin, whether or not all this was going well for Rwanda was not the issue. The United Nations tribunal was developing universal law (Rabkin, 2007). The ad hoc tribunals were significant as precursors to the Rome Statute and the establishment of more permanent tribunals, namely the International Criminal Court (ICC) in The Hague. This court has since found a number of people guilty and handed them sentences. Other nations have attempted, together with the international organizations, to advance some of the goals of individual accountability through other means, mainly the truth commission, in addition to criminal trials. These courts have reenergized a number of regionalized institutions that have been effective: the African, European and Inter-American Commissions on Human Rights (United Nations, 2000). Expanding of international law to include individuals, as opposed to basing it just on state rights and responsibilities, has in a way reduced the ‘us vs. them’ mentality globally, where individuals feel more dependent and see similarities rather than differences. The idea that we are equal before the law promotes peace and cooperation among individuals and states. Individuals do not hold allegiance to their state boundaries; they hold allegiance to the causes. Nongovernmental organizations have increased in their power and influence in global relationships and international law. This continues to strengthen the position of individual rights and responsibilities in the world (Dunoff, 2006). Trade-offs and Challenges There also are a number of tradeoffs in terms of reduction of state sovereignty and responsibility, which has resulted in a number of challenges. Governments insist that a proper balance should exist so that too much power is not given to individuals, who can end up harming the protection of the state. Nations like America, which promote ideals of freedom, democracy and human rights, have played significant part in the establishment of international institutions protecting individual rights and freedoms, but at the same time these nations are cautious to protect their own sovereign principles as laid out by their constitution. The conflict is that international law is not rigid and concrete in the execution of its laws; it is constantly evolving. Rules are, therefore, left in the hands of nations for interpretation and their views. Because of this, the states have been having problems in accepting a common global definition of individual rights and freedoms, and, also, the way the laws should be applied and followed (United Nations, 2002). States also have difficulty subjecting their domestic regulations and rights to international rules and norms. The United States authorities, for example, believe that article 55 and 56 are not self-executing and do not confer any rights on individuals. They justify this by using article 2(7) of the United Nations Charter. According to Article 2(7), nothing present in the Charter shall authorize the UN to intervene in matters essential to the domestic jurisdiction of any state. America has problems in signing or ratifying certain treaties regarding human rights mainly because the country is trying to satisfy its constitutional requirements and is also trying to be precautious. The United States has been reluctant to sign the Rome Statute that relates to the establishment of the International Criminal Court. The Court’s universal jurisdiction would make America’s military personnel in such operations highly vulnerable to prosecution, given the open ended definition of crimes over which the court may assume jurisdiction (United Nations, 2000). Conclusion It is evident that states can be held responsible not only for the violation of human rights directly perpetrated by the state authorities but also for failing to prevent or punish the violations of human rights that are committed by private actors. Individuals now have the legal rights to sue and seek compensation from the state in an international context. Mechanisms have become set to prosecute individuals indicted of gross violations of human rights. The human rights law continues to evolve to benefit the people and strengthen the UN institutions to protect the civil society. References Diehl, P. F. (2009). International law, classic and contemporary readings (3d Ed.). Boulder, Colorado: Lynne Reinner Publishers. Dunoff, L. J. (2006). International law norms, actors, process. A problem oriented approach. 2nd ed.. New York: Aspen Publishers USA. Rabkin, A. J. (2007). Law without nations. New Jersey: Princeton University Press. Sharon, J. (2010). Lecture 6 notes: International law and human rights. Norwich University, Diplomacy Program. United Nations. (2000). Chapter of the United Nations, chapter IX, international economic and social corperation. Retrieved from http://www.un.org/en/documents/charter/chapter9.shtml United Nations. (2002). The universal declaration of human rights. Retrieved from http://www.un.org/en/documents/udhr/index.shtml Read More