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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.
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We will deal with each of these in turn, with reference to international legal instruments and bodies. We will observe first of all how the rights of individuals, although falling outside the province of international law as it was conceived in the1600s, began to seep into the framework of international legal rules over the centuries, eventually coming to prominence during the ‘human rights era’ that followed the end of the Second World War. We will consider secondly the various mechanisms that have been put in place by the international community in order to deal with the enforcement and observance of individual rights enshrined in international legal instruments. Lastly, we will critically assess the claim that questions about individual rights should be the sole concern of domestic legal systems.
The scholars who laid the intellectual foundations of international law in the Western world, like Hugo Grotius (1625) and John Locke (1690), all stressed in their writings that legal systems, be they domestic or international, were founded in natural law and commonly accepted standards of (Christian)morality. It may seem surprising, therefore, that for centuries the rights of individuals played no significant role in the framework of international law. International law, as the name suggests, was the body of legal rules governing the relations between states – ‘the law of nations’. Nation states, and not individuals, were the ‘subjects’ of international law. The behaviour of a state towards individuals within its own territorial boundaries was governed by its domestic legal system. Any interference by one state in the internal affairs of another, for whatever reason, was viewed as a violation of state sovereignty, and as a threat to stability in international relations.
It did not take long for international law to begin to concern itself with the welfare of individual human beings. However, when this did start to occur it was not because human compassion and religious morality had risen to the foreign international relations; it was motivated rather by the reciprocal political and economic interests of states. An early concern of nation states was the manner in which their diplomats and other nationals were treated when residing and conducting their business in the territory of another state, as noted by Louis Henkin (1989):
Of course, every State was legitimately concerned with what happened to its diplomats, to its diplomatic mission and to its property in the territory of another State. States were concerned, and developed norms to assure, that their nationals (and the property of their nationals) in the territory of another State be treated reasonably, ‘fairly’, and the system and the law early identified an international standard of justice by which a State must abide in its treatment of foreign nationals.
Once such norms were agreed between two states, it was no longer possible for either of them to assert that the treatment of individuals within its borders was a matter exclusively to be dealt with by its domestic legal system, a point that was stressed in an Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco (1923) of the Permanent Court of International Justice (the forerunner to the International Court of Justice).However, although the rights of individuals were thus ‘internationalised’ to a limited extent, the international agreements in question did not permit states to take action against any state that was deemed to be violating the rights of its own nationals. The position under international law in this respect began to change with the developing doctrine of humanitarian intervention.
First expounded by Hugo Grotius (1625), the doctrine of humanitarian intervention allowed for limited exceptions to the rule that states were prohibited from interfering with the internal affairs of other states for the benefit of individuals within those other states. This could be done to stop the maltreatment by a state of its own nationals ‘when that conduct was so brutal and large-scale as to shock the conscience of the community of nations’ (Stowell 1921). The doctrine has been much abused throughout history, and is often invoked as a pretext for the invasion or occupation of weaker countries. However, it shows that states were becoming concerned with the welfare of individuals even when this was not directly linked to political and economic interests to be derived at the state level.
As we moved into the nineteenth century, a new wave of concern for human welfare sparked changes within the international system. European and American states abolished slavery and the slave trade, and international agreements were put in place to govern the conduct of war between states in such a way as to minimise cruelty and brutality in international conflicts. The Hague Regulations (1899) sought to codify principles of customary international law that had developed over time in relation to land warfare, making provisions to outlaw certain weapons that had proved particularly destructive to individuals on the battlefield and civilians, and to protect the welfare of prisoners of war.
This could not stop the catastrophe that was to unfold in the course of the First World War, which claimed more lives than any conflict in the history of humankind. In the aftermath of the War, the Covenant of the League of Nations (1920) came into force. This established the League and served as its constitution. Although it contained no express provisions dealing with human rights, it marked a substantial step forward in terms of international law recognising the rights of individuals, in three important respects. Firstly it recognised the rights of individuals living in the colonial territories of the states that were defeated in the War, transforming these territories into League Mandates, and stating in article 22 that ‘the principle that the well-being and development of [the native] peoples form a sacred trust of civilization.’ Secondly, article 23 of the Covenant stressed the need for ‘fair and human conditions of labour for men, women and children.’ This was to pave the way for the creation of the International Labour Organisation under the Treaty of Versailles (1919). Many scholars,including Leary (1981) have stressed the importance of the ILO in improving the working conditions for millions around the globe, and in turn making a significant contribution to the development of international human rights law. Finally, the League of Nations established a system for dealing with the protection of minority groups within certain states. A series of special treaties were concluded for the protection of ethnic, linguistic and religious minorities 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 concerning allegations that minority rights had been violated, with the possibility of the Permanent Court of International Justice rendering an Advisory Opinion on the legal merits (Stone 1934). International law showed itself to be more than equipped to deal with the rights of individuals belonging to minority groups during a short period between the two World Wars. This success was to prove short-lived.
The events of the Second World War, and in particular the systematic extermination of over six million European Jews by Hitler’s Nazi Germany, were to shock the world’s conscience. The notion of human rights,never before made explicit under international law, was to find its way into the Charter of the United Nations (1945), which was ratified after the War by most members of the international community. Although the rights accorded to individuals under the Charter were not as extensive as some had hoped (Robinson1946), it nevertheless began its Preamble with the words ‘We the peoples’ of the United Nations – human beings, as well as nation states, had now become subjects of international law. Article 1(3) of the UN Charter states that one of the purposes of the UN is:
To achieve international co-operation in solving problems of an economic, social,cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
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Article 55(c) also stresses the need for the UN to promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all.’ The UN Charter was followed in 1948 by the Universal Declaration of Human Rights, which draws on documents like the French Declaration of the Rights of Man and the American Declaration of Independence(Eide 1992). This instrument, which has proved a driving force in the human rights movement, proclaims in article 1 that ‘all human beings are born free and equal in dignity and rights.’ The Universal Declaration on Human Rights was followed in 1966 by the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These Covenants create binding legal obligations for the states that have ratified them. Henkin (1977) emphasises that these states are therefore no longer free to claim that the rights contained in the Covenants fall exclusively within their domestic jurisdiction. International law has come a long way since the days of Grotius; there can be no doubt that individual rights are firmly enshrined within its framework.
If individual rights are plainly part of today’s international system, the next question that falls to be considered is whether international law is ‘equipped’ to deal with individual rights. We observed earlier how the League of Nations put in place a system of enforcement and observance for the minorities regime that existed during the inter-war years, oversee ultimately by the Permanent Court of International Justice. Various other mechanisms exist within the international system, and they have enjoyed varying degrees of success.
One of the most successful human rights enforcement mechanisms is the Human Rights Committee established under the ICCPR. The Committee exists to ensure that states that have ratified the ICCPR comply with the obligations they have assumed under it. State parties are required under article 40(1) ‘to submit reports on the measures they have adopted which give effect to the rights recognised [in the Covenant] and in the progress made in the enjoyment of those rights.’ Under the First Protocol to the ICCPR, the Committee will also accept petitions from individuals alleging that their rights under the Covenant have been violated by a state that has ratified the Protocol. The Committee has developed an extensive body of jurisprudence,which serves as a valuable tool in helping with the interpretation of the rights under the Covenant (McGoldrick 1994).
Regional human rights systems have also shown that it is possible to enforce the observance of individual rights in an arena other than the domestic legal system of a nation state. The European Court of Human Rights hears applications from individuals in member states of the Council of Europe concerning alleged violations of the European Convention on Human Rights(1950), a document that draws heavily from the Universal Declaration of Human Rights. Since the passing of the Human Rights Act (1998) into UK law, the English courts are obliged to follow rulings of the European Court of Human Rights, which presents us with an interesting example of the interplay between domestic and international law in relation to the rights of individuals. Other regional bodies include the Inter-American Court of Human Rights and the African Commission for Human Rights. Although less prolific and powerful than their European counterpart, these bodies have demonstrated that it is possible to 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-justifiability’ of economic, social and cultural rights, as well as third generation peoples’ rights. They aim to show in other words that, by their very nature, such rights are not capable of being determined judicially, unlike the sort of rights that arise ordinarily within domestic legal systems. In the context of civil and political rights, the argument goes, the individual holds a clearly defined right against the state, the violation of which can be tested in a court of law. However, it is said that ‘economic and social rights are not suitable for judicial consideration because of the wide range of issues that have to betaken into account and the uncertainty surrounding effective means of achieving the ends in question.’ While Article 2(1) of the ICCPR states: ‘Each Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind,’ Article 2(1) of the ICESCR states: ‘Each State Party to the present Covenant undertakes to take steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’
However, the Committee that oversees the ICESCR has refuted the ‘non-justifiability’ argument. In its General Comment No. 3(1990), the Committee insists that Article 2 of the Covenant imposes concrete legal obligations, requiring states to realise minimum standards relating to each of the rights, utilising available resources in an effective manner. It follows therefore that although economic and social rights under international law may be different to the sort of rights that are normally found within a domestic legal system, that is not to say that they are not capable of enforcement. Methods of enforcement do need to become more effective, but several international bodies have shown that they are equipped to perform this role, often with very positive results.
We finish by dealing with the assertion that questions about individual rights should be the concern of domestic legal systems only. We can safely dismiss this assertion as ill founded with the help of an unlikely source: Hermann Goering, during the Nuremberg trials that took place in the wake of the Second World War, exclaimed: ‘But that was our right! We were a sovereign state and that was strictly our business.’ Germany’s sovereignty, in Goering’s view, shielded individuals involved in the atrocities of 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 and ill-treatment of the civilian population and a policy of slave labour and persecution and murder of Jews, it is right that the international community should step in to protect the rights of the individuals concerned. There can be no doubt that the international system is often ill-equipped to deal with atrocities that occur within state borders; the genocide in Rwanda in 1994 is a case in point. However, that is not to say that we should not keep striving to perfect the systems that do exist under international law. It may not have been conceived to deal with such issues, but international law has evolved into a corpus of rules with huge potential as a mechanism for the enforcement and protection of individual rights. Nation states would be wise to build on this potential rather than ignore it.
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