Example Human Rights Essay
This essay will discuss three assertions: (i) that international law was not intended to deal with rights of individuals; (ii) that international law is not equipped to deal with rights of individuals; (iii) that individual rights should be the concern of domestic legal systems only.
We will deal with eachof these in turn, with reference to international legal instruments andbodies. We will observe first of all how the rights of individuals, althoughfalling outside the province of international law as it was conceived in the1600s, began to seep into the framework of international legal rules over thecenturies, eventually coming to prominence during the 'human rights era' thatfollowed the end of the Second World War. We will consider secondly the variousmechanisms that have been put in place by the international community in orderto deal with the enforcement and observance of individual rights enshrined ininternational legal instruments. Lastly, we will critically assess the claimthat questions about individual rights should be the sole concern of domesticlegal systems.
Thescholars who laid the intellectual foundations of international law in theWestern world, like Hugo Grotius (1625) and John Locke (1690), all stressed intheir writings that legal systems, be they domestic or international, werefounded in natural law and commonly accepted standards of (Christian)morality. It may seem surprising, therefore, that for centuries the rights ofindividuals played no significant role in the framework of international law.International law, as the name suggests, was the body of legal rules governingthe relations between states - 'the law of nations'. Nation states, and notindividuals, were the 'subjects' of international law. The behaviour of astate towards individuals within its own territorial boundaries was governed byits domestic legal system. Any interference by one state in the internalaffairs of another, for whatever reason, was viewed as a violation of statesovereignty, and as a threat to stability in international relations.
Itdid not take long for international law to begin to concern itself with thewelfare of individual human beings. However, when this did start to occur itwas not because human compassion and religious morality had risen to the forein international relations; it was motivated rather by the reciprocal politicaland economic interests of states. An early concern of nation states was themanner in which their diplomats and other nationals were treated when residingand conducting their business in the territory of another state, as noted byLouis Henkin (1989):
Ofcourse, every State was legitimately concerned with what happened to itsdiplomats, to its diplomatic mission and to its property in the territory ofanother State. States were concerned, and developed norms to assure, thattheir nationals (and the property of their nationals) in the territory ofanother State be treated reasonably, 'fairly', and the system and the law earlyidentified an international standard of justice by which a State must abide inits treatment of foreign nationals.
Once such norms were agreed between two states, it was nolonger possible for either of them to assert that the treatment of individualswithin its borders was a matter exclusively to be dealt with by its domesticlegal system, a point that was stressed in an Advisory Opinion on NationalityDecrees Issued in Tunis and Morocco (1923) of the Permanent Court ofInternational Justice (the forerunner to the International Court of Justice).However, although the rights of individuals were thus 'internationalised' to alimited extent, the international agreements in question did not permit statesto take action against any state that was deemed to be violating the rights ofits own nationals. The position under international law in this respect beganto change with the developing doctrine of humanitarian intervention.
First expounded by Hugo Grotius (1625), the doctrine ofhumanitarian intervention allowed for limited exceptions to the rule thatstates were prohibited from interfering with the internal affairs of otherstates for the benefit of individuals within those other states. This could bedone to stop the maltreatment by a state of its own nationals 'when thatconduct was so brutal and large-scale as to shock the conscience of thecommunity of nations' (Stowell 1921). The doctrine has been much abusedthroughout history, and is often invoked as a pretext for the invasion oroccupation of weaker countries. However, it shows that states were becomingconcerned with the welfare of individuals even when this was not directlylinked to political and economic interests to be derived at the state level.
As we moved into the nineteenth century, a new wave ofconcern for human welfare sparked changes within the international system.European and American states abolished slavery and the slave trade, andinternational agreements were put in place to govern the conduct of war betweenstates in such a way as to minimise cruelty and brutality in internationalconflicts. The Hague Regulations (1899) sought to codify principles ofcustomary international law that had developed over time in relation to landwarfare, making provisions to outlaw certain weapons that had provedparticularly destructive to individuals on the battlefield and civilians, andto protect the welfare of prisoners of war.
This could not stop the catastrophe that was to unfold inthe course of the First World War, which claimed more lives than any conflictin the history of humankind. In the aftermath of the War, the Covenant of theLeague of Nations (1920) came into force. This established the League andserved as its constitution. Although it contained no express provisionsdealing with human rights, it marked a substantial step forward in terms ofinternational law recognising the rights of individuals, in three importantrespects. Firstly it recognised the rights of individuals living in thecolonial territories of the states that were defeated in the War, transformingthese territories into League Mandates, and stating in article 22 that 'theprinciple that the well-being and development of [the native] peoples form asacred trust of civilization.' Secondly, article 23 of the Covenant stressedthe need for 'fair and human conditions of labour for men, women andchildren.' This was to pave the way for the creation of the InternationalLabour Organisation under the Treaty of Versailles (1919). Many scholars,including Leary (1981) have stressed the importance of the ILO in improving theworking conditions for millions around the globe, and in turn making asignificant contribution to the development of international human rights law.Finally, the League of Nations established a system for dealing with theprotection of minority groups within certain states. A series of specialtreaties were concluded for the protection of ethnic, linguistic and religiousminorities in several countries in central and eastern Europe (Hannum 1990).These treaties were supported by a relatively sophisticated (and successful)system of enforcement, whereby a committee accepted petitions concerningallegations that minority rights had been violated, with the possibility of thePermanent Court of International Justice rendering an Advisory Opinion on thelegal merits (Stone 1934). International law showed itself to be more thanequipped to deal with the rights of individuals belonging to minority groupsduring a short period between the two World Wars. This success was to proveshort-lived.
The events of the Second World War, and in particular thesystematic extermination of over six million European Jews by Hitler's NaziGermany, were to shock the world's conscience. The notion of human rights,never before made explicit under international law, was to find its way intothe Charter of the United Nations (1945), which was ratified after the War bymost members of the international community. Although the rights accorded toindividuals under the Charter were not as extensive as some had hoped (Robinson1946), it nevertheless began its Preamble with the words 'We the peoples' ofthe United Nations - human beings, as well as nation states, had now becomesubjects of international law. Article 1(3) of the UN Charter states that oneof the purposes of the UN is:
Toachieve international co-operation in solving problems of an economic, social,cultural, or humanitarian character, and in promoting and encouraging respectfor human rights and for fundamental freedoms for all without distinction as torace, sex, language, or religion.
Article 55(c) also stresses the need for the UN topromote 'universal respect for, and observance of, human rights and fundamentalfreedoms for all.' The UN Charter was followed in 1948 by the UniversalDeclaration of Human Rights, which draws on documents like the FrenchDeclaration of the Rights of Man and the American Declaration of Independence(Eide 1992). This instrument, which has proved a driving force in the humanrights movement, proclaims in article 1 that 'all human beings are born freeand equal in dignity and rights.' The Universal Declaration on Human Rightswas followed in 1966 by the International Covenant on Civil and PoliticalRights (ICCPR) and the International Covenant on Economic, Social and CulturalRights (ICESCR). These Covenants create binding legal obligations for thestates that have ratified them. Henkin (1977) emphasises that these states aretherefore no longer free to claim that the rights contained in the Covenantsfall exclusively within their domestic jurisdiction. International law hascome a long way since the days of Grotius; there can be no doubt thatindividual rights are firmly enshrined within its framework.
If individual rights are plainly part of today'sinternational system, the next question that falls to be considered is whetherinternational law is 'equipped' to deal with individual rights. We observedearlier how the League of Nations put in place a system of enforcement and observancefor the minorities regime that existed during the inter-war years, overseenultimately by the Permanent Court of International Justice. Various othermechanisms exist within the international system, and they have enjoyed varyingdegrees of success.
One of the most successful human rights enforcementmechanisms is the Human Rights Committee established under the ICCPR. TheCommittee exists to ensure that states that have ratified the ICCPR comply withthe obligations they have assumed under it. State parties are required underarticle 40(1) 'to submit reports on the measures they have adopted which giveeffect to the rights recognised [in the Covenant] and in the progress made inthe enjoyment of those rights.' Under the First Protocol to the ICCPR, theCommittee will also accept petitions from individuals alleging that theirrights under the Covenant have been violated by a state that has ratified theProtocol. The Committee has developed an extensive body of jurisprudence,which serves as a valuable tool in helping with the interpretation of therights under the Covenant (McGoldrick 1994).
Regional human rights systems have also shown that it ispossible to enforce the observance of individual rights in an arena other thanthe domestic legal system of a nation state. The European Court of HumanRights hears applications from individuals in member states of the Council ofEurope concerning alleged violations of the European Convention on Human Rights(1950), a document that draws heavily from the Universal Declaration of HumanRights. Since the passing of the Human Rights Act (1998) into UK law, theEnglish courts are obliged to follow rulings of the European Court of HumanRights, which presents us with an interesting example of the interplay betweendomestic and international law in relation to the rights of individuals. Otherregional bodies include the Inter-American Court of Human Rights and theAfrican Commission for Human Rights. Although less prolific and powerful thantheir European counterpart, these bodies have demonstrated that it is possibleto enforce individual rights under international law.
Many who argue that international law is not 'equipped'to deal with individual rights point to the so-called 'non-justiciability' ofeconomic, social and cultural rights, as well as third generation peoples'rights. They aim to show in other words that, by their very nature, suchrights are not capable of being determined judicially, unlike the sort of rightsthat arise ordinarily within domestic legal systems. In the context of civiland political rights, the argument goes, the individual holds a clearly definedright against the state, the violation of which can be tested in a court oflaw. However, it is said that 'economic and social rights are not suitable forjudicial consideration because of the wide range of issues that have to betaken into account and the uncertainty surrounding effective means of achievingthe ends in question.' While Article 2(1) of the ICCPR states: 'Each Party tothe present Covenant undertakes to respect and to ensure to all individualswithin its territory and subject to its jurisdiction the rights recognized inthe present Covenant, without distinction of any kind,' Article 2(1) of theICESCR states: 'Each State Party to the present Covenant undertakes to takesteps to the maximum of its available resources, with a view to achievingprogressively the full realization of the rights recognized in the presentCovenant by all appropriate means, including particularly the adoption oflegislative measures.'
However, the Committee that oversees the ICESCR hasrefuted the 'non-justiciability' argument. In its General Comment No. 3(1990), the Committee insists that Article 2 of the Covenant imposes concretelegal obligations, requiring states to realise minimum standards relating toeach of the rights, utilising available resources in an effective manner. Itfollows therefore that although economic and social rights under internationallaw may be different to the sort of rights that are normally found within adomestic legal system, that is not to say that they are not capable ofenforcement. Methods of enforcement do need to become more effective, butseveral international bodies have shown that they are equipped to perform thisrole, often with very positive results.
We finish by dealing with the assertion that questionsabout individual rights should be the concern of domestic legal systems only.We can safely dismiss this assertion as ill founded with the help of anunlikely source: Hermann Goering, during the Nuremberg trials that took placein the wake of the Second World War, exclaimed: 'But that was our right! Wewere a sovereign state and that was strictly our business.' Germany'ssovereignty, in Goering's view, shielded individuals involved in the atrocitiesof the Holocaust from accountability.
When domestic legal systems (like that in Nazi Germany)fail to prevent the murder and ill treatment of prisoners of war, murder andill-treatment of the civilian population and a policy of slave labour andpersecution and murder of Jews, it is right that the international communityshould step in to protect the rights of the individuals concerned. There canbe no doubt that the international system is often ill-equipped to deal withatrocities that occur within state borders; the genocide in Rwanda in 1994 is acase in point. However, that is not to say that we should not keep striving toperfect the systems that do exist under international law. It may not havebeen conceived to deal with such issues, but international law has evolved intoa corpus of rules with huge potential as a mechanism for the enforcement andprotection of individual rights. Nation states would be wise to build on thispotential rather than ignore it.