Politicisation of Human Rights - Essay Example

Question Critically examine the view that the politicisation of human rights is both inevitable in a world-system premised on interest, and a hindrance to the realization of the timeless values of the Universal Declaration of Human Rights (1948). 1.1 Introduction In this discourse, I shall start by conceptualizing the thematic concepts captured by the question including human rights, their codification under the Universal Declaration of Human Rights. The second part shall discuss how politics and state interest affects the realization of the timeless values of the Universal Declaration of Human Rights (1948). I shall then conclude by proffering an argument on how these premises can be limited so as to offer a reasonable and justifiable balance between the two competing interest. 1.2 The Concept of Human Rights The Office of the High Commissioner for Human Rights states that Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. Persons are all equally entitled to human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Accordingly, the normative totality of Human Rights revolves around: the Universality, indivisibility, interdependence, equality and obligations of parties and the State. 1.3 The value of UDHR UDHR though not a legally binding document, it values are immense. First, it set the pace for the States’ recognition and protection of Human Rights based on the Rule of Law. At the time of its promulgation, the UN General Assembly then proclaimed the Declaration to be; “a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of member states themselves and among the peoples of territories under their jurisdiction.” The 1993 Vienna World Conference on Human Rights1, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems. It provides in its preamble that; “Emphasizing the responsibilities of all States, in conformity with the Charter of the United Nations, to develop and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.” Secondly, UDHR has contributed to the development of an international legal regime on Human Rights. Since the adoption of the Declaration in 1948, a considerable number of rules of international law, both customary and treaty have been developed at the international and regional levels with the aim of protecting, promoting, further defining and expanding the content of human rights.2 The International Covenant on Civil and Political Rights (ICCPR)3and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which were adopted in 1966 and both entered into force in 1976 got inspiration from UDHR. The above development is attributed to the principle of universality of human rights which is the cornerstone of international human rights law. This principle was first emphasized in the Universal Declaration of the Human Rights of 1948. 1.4 The concept of State’s interest The state interest is a subset of national interest. There is a two-dimensional approach to the national interest. One, state interest in the context of international politics refers to the interest of a nation state in a global arena which is contrasted with group interest, international interest or global interest. The second one is the state interest which is the subject of the instant discourse. State interest, in this case, refers to the interests of the government of the people, for the people and by the people. State in international politics represents a political entity that consists of four major elements such as population, territory, government and international recognition. Charles Beard defines State interest as the common material and spiritual need of all the people of a nation state. In material terms, a nation needs security and development. In spiritual terms, a nation needs respect and recognition from international community.4 1.5 The relationship between States’ interest and realization of the values of UDHR Though UDHR captures the universality of human rights, which is binding for very person, the implementation mechanisms depend on the individual States hence the potential for political interference citing sovereignty. It is in this context that it is recognized that: “While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”5 It is my thesis that the realization of the values of UDHR has been tampered by politics revolving around the following; 1.5.1 The Politicization of Universality Principle captured under UDHR A core principle of UDHR is on the universality of the application and respect and promotion of human rights. The preamble to the UDHR provides; “Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms” This universality principle has been politicized in a number of respects as demonstrated by the following case studies. 1.5.1.1 The idea of western culture Some states are reluctant to be bound fully to the treaty translations of the Universal Declarations provisions. Some states claim that the Universal Declaration and the United Nations (U.N.) system of human rights protection is a reflection of Western values and, therefore, is a vehicle of cultural imperialism.6 Indeed, former Malaysian Premier Mahatir Mohammad called for a review of the UDHR in 1998, in setting communitarian Asian values against the perceived individualism engendered by rights discourse. 1.5.1.2 The debate on LGBT The arguments against the respect and promotion or even recognition of LGBT has been that West needs to fully recognize and show respect to the cultural, religious, and sociological demagogy of countries (especially in Africa) opposed to the practice. This is especially true when promoting the acceptance of homosexuality as a human right. Same Sex Marriage Prohibition Act has been passed by the National Assembly in Abuja and then signed by the President of Nigeria, Goodluck. Jonathan. Following this, the parliament of Uganda passed similar legislation. Both laws decreed that homosexuality is illegal, and its practitioners and promoters risk state-sponsored sanctions in the jurisdictions involved. In Nigeria, the new law not only forbids marriage of same-sex couples, but also carries up to 14 years in prison for individuals convicted of promoting a homosexual lifestyle, soliciting and/or participating in homosexual relationships.7 In passing the law, the arguments has been that LGBT is not a matter of human rights as it goes against their cultural, religious, and social beliefs. It is also ahistorical to their anthropological sense of self-worth and exemplifies the influence of Western cultural practices and beliefs on Nigerians. In the evolution of indigenous communities, it is hard for Africans to imagine homosexuality in society. The western world has responded by stating that the law is inconsistent with Africas international legal obligations and undermines the democratic reforms and human rights protections enshrined in its various countries’ constitutions. They cite that this is discrimination based on sexual orientation. 1.5.1.2 The ICC debate Since its inception in July 2002, the OTP has faced two primary critiques: first that it has been inefficient, and second that it has preoccupied itself with Africa and failed to investigate equally severe conflicts elsewhere.8 This is against the backdrop that more than two-thirds of the members of the African Union (AU) are parties to the treaty establishing the International Criminal Court (ICC Rome Statute). Much of this critique has come from African heads of state and regional leaders, who increasingly closed ranks during Moreno-Ocampo’s term as prosecutor, and rejected the ICC’s attempts to investigate and prosecute new cases on the continent. For instance, in the wake of the ICC’s indictment of Sudanese President Omar al-Bashir and Kenya’s President Uhuru Kenyatta. The African Union’s (AU) Peace and Security Commissioner Ramtane Lamamra expressed the legitimate concerns of African heads of state over a double standard towards the continent and that the “conduct of the prosecutor represented a glaring practice of selective justice.”9 In 2011 Jean Ping, the Chairman of the AU, went so far as to declare that the AU would not cooperate with the ICC after the indictment of Muammar Qaddafi due to the court’s “discriminatory” practices for only investigating situations in Africa, decrying its failure to intervene in Afghanistan, Iraq and other places where Western powers have been implicated.10 As Chairman Ping remarked; “What have we done to justify being an example to the world? Are there no worst [sic] countries, like Myanmar?” Courtney Griffiths, the lead defense attorney for former Liberian President Charles Taylor during summation before the Special Court for Sierra Leone, he argued that Taylor’s prosecution and by implication the prosecution of those at the ICC—was a 21st century form of neocolonialism.11 In a later opinion piece Griffiths attacked the perceived cynicism of the ICC, writing: “The requirement of international justice is not the raison d’être of the International Criminal Court at all. Instead, the court acts as a vehicle for its primarily European funders, of which the UK is one of the largest, to exert their power and influence, particularly in Africa.”12 Under customary international law, senior state officials have immunity from legal proceedings. There is a question of how the ICC is constrained by this prohibition. One interpretation of Article 27 of the Rome Statute, which provides that state immunity does not apply under the statute, is that it creates an exception to customary international law and allows heads of state and other senior state officials to be tried in this particular jurisdiction.13 1.5.2 The Politicization of Sanctity of life and freedom against cruel and degrading treatment Sanctity of life is at the core of the value of UDHR. However, many countries retain mandatory death sentence within their penal books regardless of the value of UDHR. Article 5 on the other hand provides; “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 1.5.2.2 The consideration of the Kenyan mandatory death sentence The constitutionality of the mandatory death sentence in Kenya is now the subject matter before the Supreme Court of Kenya.14 The death sentence in Kenya is limited to the offences of treason, murder and robbery with violence. However, the offences of robbery with violence and attempted robbery with violence did not carry the death sentence until 1973 when the Penal Code was amended to provide for it. Under the repealed constitution, a mandatory death sentence was expressly legal and constitutional. It provided that; “71 (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.” Section 7(1) of the Sixth schedule to the Constitution is a saving clause to existing laws. It provides that; “All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions to bring it into conformity with this constitution.” Article 26(1) which provides that every person has the right to life. Article 26(3) is an affirmation of the right as well as a permissible derogation of the right. It provides; “A person shall not be deprived of life intentionally, except to the extent authorized by this constitution or other written law.” Article 26 should be read together with Article 24 of the Constitution. Article 24 provides for the extent and manner of limitations of rights. 1.5.3 The politicization of Dignity as a value of UDHR Deng Xiaoping the Chinese former leader once said in meeting with Richard Nixon on October 31, 1989 that; “America is strong and China is weak, and China is victimized. It is impossible for China to beg. The Chinese people will not beg for the cancellation of sanctions, even if they last 100 years. If China does not respect itself, it will not be able to stand up and our dignity will disappear. This is a very important issue.”15 Further, America’s 26th president, Theodore Roosevelt, once noted that a people with a great sense of dignity and lofty spirit would rather face all disasters brought on by war than exchange basic prosperity with the nation’s honor as the price.16 Dignity is to the person and not state. Indeed, the preamble to UDHR enjoins every nation to participate singularly or jointly through the United Nations in the protection and promotion of Human Rights. It provides; “Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.” 1.6 Conclusion In conclusion, it is my considered opinion that though state interest is important is a globalized world, the promotion and protection of Human Rights is equally important. All these are at a common parlance as having attained customary international legal stature. Accordingly, there is the need for a fine balance between these concepts to ensure that none is prejudiced at the alteration of the other. Selected References 1. Alfred de Montesquieu, African leaders denounce international court, Associated Press, Jul. 3, 2009. 2. Bartram S. Brown, “US Objections to the Statute of the International Criminal Court: A Brief Response” 1999. 3. Bartram S. Brown, “The Evolving Doctrine of Universal Jurisdiction 383, 397” 2001 4. Bishop, Theodore Roosevelt and his Time, Vol. 1, p.22. 5. Cf, Detlev F. Vagts, “Hegemonic International Law” 2001 6. Charles A. Beard, “The Idea of National Interest-An analytical study in American Foreign Policy” (Chicago: Quadrangle Paperbacks, (1996), pp 17-18. 7. Courtenay Griffiths, The International Criminal Court is hurting Africa, The Telegraph, Jul. 3, 2012. 8. Deng Xiaoping. (vol.3), p.332. 9. Herbert Wechsler, “Toward Neutral Principles of Constitutional Law” 1959 10. Hilary Charlesworth, The Mid-Life Crisis of the Universal Declaration of Human Rights, 55 11. H. Steiner and Palston, International Human Rights in Context: Law, Politics, Morals–Text and Materials, 3rd. edn (Oxford: Oxford University Press, 2008). 12. M. Cherif Bassiouni and Ved P. Nanda, eds. “International  Criminal Law, Vol. 1” 1973 13. Max et all (2013), “Africa and the International Criminal Court.” International Law 2013/01. 14. Oke Epia (2014), “Imposing Wetsren Values in Africa; Public Diplomacy and Homosexuality Debate. 15. Scott Stearns, African Union Says ICC Prosecutions Are Discriminatory, Voice of America,  Jul. 4, 2011. 16. Strauss, Danie F. M. "A History of Attempts to Delimit (state) Law." Journal for Juridical Science. 37.2 2013. 35-64. Print. 17. Van Boven TC, Flinter C. & Westendorp, “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights Utrecht: Netherlands Institute of Human Rights, 1998. 18. Van, der W. A. J. "Legal History, Legal Culture and Transformation in a Constitutional Democracy." Fundamina: a Journal of Legal History. 12.1 2006: 1-47. Print. 19. Wash. & LeeL. Rev. 781 (1998). Legal Instruments 1. Vienna Declaration and Programme of action, as adopted by the world Conference on human Rights on 25 June 1993, UN Doc. A/CONF.157/23 9 (12 July 1993), para 5. 2. Universal Declaration of Human Rights Cases Cited 1. Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-T, Transcript Mar. 9, 2011, at 49388. 2. Supreme Case No. 8 of 2013 as Consolidated with Petition No. 1 of 2014. 3. Kenyan Leaders Case ICC on Post- Election Violence Websites 1. http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx. 2. http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx on 18th March, 2015. 3. http://scholarlycommons.law.wlu.edu/wlulr/vol55/iss3/9. 4. http://uscpublicdiplomacy.org/blog/imposing-western-values-africa-public-diplomacy-and-homosexuality-debate. 5. http://www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Law/0713pp_iccafrica.pd. 6. http://ccnmtl.columbia.edu/projects/mmt/udhr/ 7. http://www.libertarian.co.uk/lapubs/forep/forep018.pdf Read More