International Law, the Human Significance
When we think of International Law, we get a collective image of the UN, treaties, international disputes, and everything in the middle. The truth is that human beings tie all these things together, and no discussion of International Law can be completed without an inclusive dialogue of human rights and humanitarian law. The fact that we even talk about “rights” takes on a different meaning for each human being. This is due to the fact that there are particular and unique human significance, relating to international law, depending on the region, culture, and history, of not only those affected, but also who are instrumental in influencing these laws. Hence, the need to consider an array of elements by discussing the subjective maters, such as ethics, doctrines, and guiding principles, as well as more objective matters like treaties, conventions, and specific cases.
Ethics and Morality
The practical view of ethics and morality in international law is that if the laws reflect the values of morality and ethics of the local population, then the laws and its consequent obedience will be sustainable, as well as the implementation will be efficient and effective. Ethics and morality can be traced back to the times of Socrates, and given the robustness and complexities of our international law today, it still resonates. However, new trends and necessities toward globalization has made the study of it more imperative. The sensitivities toward minority rights indigenous rights, and women’s rights, and in general, fine-tuning the basic needs of all human beings, in different settings has made us look closely at important theories like Positivism and Natural Law, as appearing below.
Natural Law
To discuss human rights within the context of international law, one must pay close attention to Natural Law. A law, which is closely tied to the practical views of ethics and morality of human beings; to take in account the essential rights and core of human nature. Basically, free of the laws designed and deployed by society.
Locke
To understand it more closely, we can look at John Locke, the English 17th century political philosopher, whose brilliant considerations can be found through-out our world’s political history, even the declaration of independence of the United States of America. His particular idea is that humans have some natural rights, such as the right to life, liberty, and property. And for laws to be bearable by the opinions of it’s people, these rights must be incorporated in any laws established by society; in our discussion we could infer this to be the laws of a particular state.
Divine Law
Of course, Natural Law, by definition then would imply that it has existed long before the articulation by Locke. There is a suggestion that it is more toward the divine law. But logic would suggest that Natural Law is a naturally occurring phenomena of all people, which really lends itself as a serious deliberation with the discussion of international law, encompassing all states, and all people, and the complex interaction with multiple states. Hence the particular, and sometimes opposing ideas, of different religions, would mean that Natural Law is indeed not divine law.
But the idea of Natural Law is more complicated than that. If the law is to be the implemented base on human nature, who is to define the exact nature of human nature? Whenever a declaration of human rights is announced, or a particular convention is established by the UN, it is usually after an international conflict. Which would suggest that every culture, every indigenous philosophy, and indeed every human might consider themselves as unique. For that reason, we look at Positivism.
Positivism
Positivism takes a different view in international law. While an argument can be made that Natural Law is derived from natural rights, hence the impact on human rights, no such correlation exists in Positivism. Positivism is socially constructed. A body of lawmakers come together and arrive at a consensus to what is needed in that particular state to keep law and order. Depending on the state, it does not seek ethical justification. It does not debate the natural rights first, but rather that the laws are created under the legal rule.
This does not mean that Positivism is necessary bad from a human perspective. All modern states surely consider that the features of the law are such that it not only safeguards human rights, but that it moves the society forward. It must be noted that most modern movements note eight interdependent values to stress human dignity in laws, such as respect, power, enlightenment, well-being, health, skill, affection, and rectitude, within the context of international law.
International Human Rights
Most western countries and other modern states are now quite well versed in international human rights, recognizing it as basic human rights, where the governmental powers are somewhat limited to stress the value of the governed over the government. Personal and political rights, such as the freedom of assembly, the rights of free speech, of due process, and religion have become self-evident. Some countries, while respecting the basics of these international values, have different emphasis and have allocated different weights to the human rights. For example, some states give more importance to the duties of the state over that of the individual human being.
This is true of the developing countries, where enough pressure exists from an international law setting that these states combine the elements of both, and try and achieve a balance. Within these countries, when international law is applied, it is interesting to note that some tension is created between the cultural traditions and the international expectations. One school of thoughts persists that all human rights considerations should be approached purely from a local cultural perspective. However, this causes a big issue when the states could violate human rights, relative to customary international law, even after being part of international treaties, and then justify the human rights violations under the local cultural ethos.
International Rights
For centuries, human rights have struggled to bridge that gap between human rights and the governing laws. For ages, no international human rights law really existed. Even the existing international law did not exactly protect the human dignity. The Atlantic slave trade and colonialism flourished under the watchful eye of international law. For example, it was very recently in our global history that the international community even made effective attempts to abolish slavery. The first operational effort which is recognized is the International Labour Organization (ILO), which was the part of the 1919 Peace Treaty of Versailles, protected the rights of all international workers. A major success in international human rights came, after the First World War, with the League of Nations.
The League View
Both, the League of Nations and the UN have done some important work toward moving the international human rights forward. First, the League of Nations. This organization was of course an international diplomatic agency, founded in 1920, after the Paris Peace Conference, and originally designed to mediate disputes between nations. The Treaty of Versailles launched the League of Nations to international stardom. The league even took steps to improve on the Geneva Convention of 1864, to get more relief for the sick and wounded soldiers.
An original attempt was made to embed the concept of human rights directly in the covenant of the League of Nations, although, later it was considered to more practical to have it in forms of treaties and conventions, and as a requisite for states to enter the league. The League of Nations, did some significant work on slavery, for that time. In 1926, a special convention was put together by the league. It even stipulated special requirements for entry in the league. Any new state wishing for entry, would have to start a process to abolish slavery.
The Sacred Trust of Civilization, which was Article 23 of the Covenant, ensured the unprejudiced treatment of the indigenous populations. It went even further in 1919, and included the just treatment and protection of the minorities. While the League of Nations did not live much past the Second World War, it’s effect on the human rights was immense.
United Nations
After the League of Nations, the United Nations was the second true international organization, which was intergovernmental, and the main objective was to seek international peace, security, and form friendly relations amongst the nations. But it’s much more than that. The UN also looks after the human rights, attempts to resolve humanitarian issues, and serves as a central entity, where foreign states and come together and undertake issue resolutions. This quest for world peace and human rights has been marred with difficulties and complications, as it is to be expected, where 193 member nations are involved, each with its unique needs, values, and sensibilities.
Three years after the creation of the UN, the Universal Declaration of Human Rights (UDHR) document was drafted, a standard to be achieved for all people and all nations. This milestone achievement was drafted by a combination of leaders of all different background, ethnicity, and countries, and translated in over 500 different languages. This document’s shows the UN’s understanding and commitment for human rights.
Basic Components of Human Rights Under International Law
Since the UN is an international forum, and the mechanisms of the human rights and humanitarian laws are debated by all the 193 members of the organization, there is sure to be different views from different perspectives. It is useful then to have an idea of the different aspects of human rights organized and coordinated under the watchful eyes of the United Nations and all its components.
Several UN Conventions have been established to curb torture, disappearances, and arms trade. For example, The Convention Against Torture, in 1985, provides that each state must classify torture and other human abuses under the domestic criminal law. The state is responsible for any form of torture, not only on the state soil, but any territory governed by the state, even in ships and aircrafts. The convention goes even further to assert that the state must cooperate in extraditing the offender for trial, if appropriate. In 1988, it was debated in the House of Lord, in the UK, where it was determined that the crimes committed outside UK was still punishable under UK law, since UK law recognizes international law.
The constrains around death penalty has also been debated in the international forum under the international law. Once again, the different political and cultural views had to be duly accounted for in the crafting of the articles. Some basic requirements were that the death penalty could not be imposed on children under the age of eighteen and on pregnant women.
Another important, but more difficult to ascertain objectively was the General Comments on Minorities & Reservations, adopted in 1994. This brought in focus the states treatment of persons belonging to minorities, with respect to the language, religion, culture, and other elements which would differentiate human beings. The main reason for this comment was to ensure that those states which were part of the UN do not withdraw from denounce these equal rights, which was part of international law.
The powers of the Human Rights Committee become powerful, so much so that the it was recognized that the committee would be able to hear inter-state complaints. The committee was granted Protocol 1, as an option, where It allowed an individual to bring complaints, as long as all domestics remedies were exhausted. As predicted, the workload of these complaints was too much for the committee to handle, which resulted in further more additions to the committee’s power with the appointment of the Special Rapporteur to process new communications, as they flowed in.
Humanitarian Law and UN
We know that the United Nations has been tasked by keeping peace and security; and the Security Council, which we will discuss later, has the powers to take action to potentially guarantee this. But this does not ensure the actual humanitarian law, the rules and principals which limit the detrimental effects on humans in times of conflict. One could point to Article 1 of the United Nations about protecting and respecting human rights, but it does not do much for actual humanitarian law.
The opposing view of this skeptical position toward the United Nations is that the UN does do a lot for humanitarian law. There have been many international conferences, directly attributed to the United Nations, which have resulted in resolutions in the protection of human rights during conflict. For example, there have been additions to the Geneva Convention, which extends the effectiveness of humanitarian law by war victims. In recent years, the Secretary General has emphasized the need for laws for the integrated approach to human security.
In addition to this even if the United Nations does not directly make humanitarian laws, it could ask other states to do so. For example, even going back to the 1949 Geneva Conventions, the UN did not take the task of creating humanitarian law, but asked the Swiss government to do so. The practical effect of this is useful, for example, some of the suggestions by the United Nations are adopted by organizations like the Red Cross and the Red Crescent. The United Nations ensures all this by setting standards in humanitarian law, by taking corrective actions against the offending parties, and by providing useful content with ongoing conventions and the resulting possible resolutions.
It is interesting to note that as Positivism reached its peak after WWII, League of Nations, and then the United Nations began to incorporate more and more naturalist philosophies, giving way to more human rights and humanitarian considerations in the world order. This paved the path to such international law organizations like United Nations Security Council the International Court of Justice.
Regional Protection of Human Rights
One particular topic of significance is the regional effect of international law. Since certain regions of the world typically share common heritage, it stands to reason to explore a bit of international law pertaining to human rights and even humanitarian law with that in mind.
Europe
The Council of Europe, founded in 1949, lends itself to the functions of the European Conventions on Human Rights, founded with the promising goal to develop and maintain interparliamentary cooperation, thus protecting and promoting the socio economic and even the common heritage of Europe. The principals of the Council of Europe particular includes the importance for democracy and a reverence for human rights. Since 1950, and getting all up to force buy 1953, the council has enacted many protocols, resulting in many important human rights principals, such as the right to liberty, the prohibition to torture, freedom of expression, the prohibition of discrimination, and rights of property. Of course, when it comes to inter-state applications, complications occur when a state exercises control outside its borders.
Case Study: Loizidou v. Turkey
This case involved the control exercised outside its borders to the occupied territory in Cypress, which Turkey invaded in 1974. Titina Loizidou, along with thousands more, was forced out of her home, and was a refugee. She wanted to return back to her home in Cypress, which was under Turkey control. Turkey refused her entry, but the European Convention of Human Rights ruled that refugees who wished to return to their homes should be allowed to do so. The ECHR held Turkey to be under violation of human rights. Loizidou was allowed to return to her property and was awarded, some thirty years later, a monetary compensation by the Turkish government.
Case Study Al-Jedda v. UK
An interesting thing happens when not only does sates try to comply with international law but when in spite of complying, happens to actually run afoul of the agreements of its obligations, with international law. In Al-Jedda v. UK, Mr. Al-Jedda claimed that he was detained by the British troops in Iraq, acting under the UN. Al-Jedda was an Iraqi, who had left the county during the conflict, and had lived in other countries, with his family, ultimately finding asylum in the UK. When he traveled back to Iraq, he was detained. Thus the complications arose, when it was determined that while the UK might be in breach of the convention. The reason being that it was determined that it was necessary to detain Mr. Al-Jedda for the safety of the country, on the behalf of the Iraqi government, since the UK had assumed the responsibility for the security of the South East Iraq. In my opinion, in a purely humanistic terms, the applicant’s rights were violated. It was determined that Mr. Jedda’s rights were violated.
Security Council’s Humanity
No discussion can be complete, in international law and human rights, without a through look at the United Nations Security Council. With all the treaties, conventions, obligations, of the 193 nation states of the planet, there seems to be a need to administer the bindings of these obligations. For this purpose, the fifteen members of the Security Council assemble on a regular basis to evaluate the potential actions and plan. It is a testament to the sturdiness of the body that is has remain largely unchanged since its inception in 1946. It must be noted that the Security Council has five permanent members; Unites States, UK, Russia, France, and China, and hold veto powers. The body also has ten elected members, with two-year terms, and do not have the veto.
Peacekeeping and Observer Missions
The maintenance of peace and security is the main objective, and as one can imagine, anytime there is a lapse in human rights, peace and security is also compromised. The Security Council’s deployment of peacekeeping and observer operations is proof of the efforts undertaken by the organization. Although there is no clear objective for peacekeeping missions in the UN charter, these missions and deployments have evolved out of the need to maintain human rights, by diffusing and maintaining conflicts. The Security Council resolves to maintain conflicts by deploying armed forces, under UN control, and have used all aspects of the military, such as navy, air force, and army. Originally it was thought that the Security Council would be used for inter-state conflicts, but more and more we have seen that as human rights awareness evolves, the Council has gotten more involved in intra-state conflicts, such as civil wars.
Sanctions and Human Rights
Sometimes the Security Council determines that the best way to curtail conflicts is to target individuals or particular organizations and impose sanctions. The challenge is to perform these tasks without causing significant damage to the local economy and having the human population suffer. When adverse effects on humans are observed, recently the Council has attempted to delist these former sanctioned entities. Significant efforts are made, including the creation of the Office of the Ombudsperson. This was first used to delist entities from the Al-Qaida sanctions list.
Humanitarian Intervention
A lot has been made of the individual state rights and the sanctity of sovereignty of the independent state. So, when the need for international intervention is required in apparent and often deplorable violations of human rights, within a nation state, and the use of force is authorized and deployed by the Security Council, a certain situation of incongruity is created. On the one hand, a state has to be respected to have the volition to be responsible and protect its own population against horrific misconducts, such as ethnic cleansing and other war crimes; but on the other hand, the Security Council also has the obligation to use force, under Chapter VII, should the state cannot ensure the retention of human rights. In 2006, the Security Council adopted resolution 1674, where the Council reaffirmed that it would take forceful action, wherever and whenever abuses of human rights may occur in the absence of Security Council action.
International Court of Justice
As the name suggests, the court makes decisions on disputes between nation states. It the state participates in the process, then it is obligated to abide by the decision of the court. This court has fifteen judges from all different countries, meaning that no two judges from the same country. Even though there are only fifteen judges, appointed by the United Nations General Assembly and the Security Council, the International Court of Justice must find a way to represent the whole world. And in this we see the spark that caters to human rights and humanitarian laws. However, the court only hears cases from the states, and there is no direct access from individuals. Having said this, the states have been able to find creative ways to get individuals directly in front for the court.
The mandate of the International Court of Justice makes it sort of a constitutional court for the United Nations, thus mainly dealing with states. But it is important to note the significance the ICJ has played in human rights. Within the context of this aggerate level view that the court takes, a lot of these treaties that the court is exposed to contains human right issues, which must be decided. And more importantly some treaties, which are especially constructed for human rights, such as the International Convention on the Elimination of All Forms of Racial Discrimination (1965), contains provisions which would have the treaty refer to the ICJ for reference. Even though the International Court of Justice was never intended to be a human rights body, the jurisprudence of the ICJ brings a powerful insight to the issues of human rights.
Protection of Humans
It was really in 1966, when the International Covenant of Civil and Political Rights was implemented, and then brought up to speed in the mid-seventies. This made all the states responsible for all the human beings, who reside within their area and under their dominion and control of territory, to be treated within the confines of the covenant. This binding covenant covered a slew of components of human rights, such as torture, freedom, religion, and respect indigenous civilization.
Covenant & the Committee
To further the solidification of this covenant, a special human rights committee was established, under the International Covenant on Civil and Political Rights. One interesting part of this committee was that the sates were allowed to elect eighteen members, who worked as experts on human rights, with their terms ending every four years. Even though the states were all voting to get these members elected, a lot of thought went behind to provide for evenhanded representation for geographical distribution, as well as the incredibly diverse communities around the world.
The committee works by providing periodic reports, which are then discussed by the members of the committee. The information is credible, since it is received from a variety of sources, the most important being from non-governmental organizations. When specific incidents occur, the committee even solicitates information from that particular government. For example, when the threat of ethnic cleansing surfaced in the former Yugoslavia, the committee requested detailed reports from Serbia, Montenegro, Crotia, and Bosnia-Herzegovina. After considerations, the committee releases general comments, helpful for the benefit of the sates and human rights.
Women
International law, under the guidance has made some strides by the Commission of the Status of Women. This was established early in the days of the UN, in 1946. Following this, a few decades later, a committee was established, The Committee on the Elimination of All Forms of Discrimination against Women, this incidentally came under the convention of the same name of The Committee on the Elimination of All Forms of Discrimination against Women. Same as other similar committees, the body consisted of expert members, in this case 23 members, and relied on reports from states to discuss and implement.
This committee insists on detailed reports by the states, so that these reports could be examined properly and the committee can then provide for accurate concluding comments. This committee also makes suggestions and general recommendations. These recommendations have a large range, from implementation of a quota system for the benefit of potentially marginalized group of women, to some very specific ones, such as to eradicate the practice of female circumcision.
One important aspect of this committee is that instead of just relying on reports coming in, there is actually a mechanism for protocols to make inquiries, if situations are suspected where women’s rights are being violated. In 1993, in an action adopted in Vienna, the Vienna Declaration and Programme of Action, successfully brought women’s rights into the mainstream of UN, resulting in actions which more regular and systematic; and not only the General Assembly, but all the bodies and mechanisms of the United Nations.
Torture
We briefly discussed torture under the basic components of human rights under international law section of the UN. But the Committee against Torture has more to say. The extensive range of human rights and humanitarian law treaties, which comes under international law has increased, and a lot of discussion has been about the prohibition of torture. In fact, so much so that it has been established as jus cogens, under international law. The main impetus of torture under international law came in the seventies, with the declaration of the Protection of All Persons from being subjected to Torture & Other Cruel, Inhuman & Degrading Treatment or Punishment, actually implemented by the General Assembly. On the heels of it, in late 1984, came the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. It may sound the same, but the later (which was actually entered into force in 1987) truly built on the former convention. By defining and polishing up more, it is also advantages to the world community about what is considered torture.
In the Principals of Medical of 1982, torture is given a more defined form. It is interesting to note that the torture is not only defined as any physical pain intentionally inflicted, but also the mental pain. The definition particularly included torture as a way of getting confession, which would suggest that in an international law setting, the committee was thinking of conflict, either within the state or intra-state. The definition, interestingly enough, also commented on discrimination of any kind, signaling a more comprehensive view of torture, within the cosmos of human rights and humanitarian law. The definition also included and pointed out torture of public officials, or people acting in an official capacity, which in my opinion indicated that the committee was also looking out for a peaceful transfer of power, since in a lot of the third-world counties, once the leader steps down, the new administration is out for revenge.
The committee has in impressive array of capabilities. Within an earshot of possible torture reports, the committee makes confidential inquiries about that state. In some cases, the state is even invited to answer questions about the accusations. Under Article 20 of the Convention Against Torture of 1984, the committee may even seek to use confidential designees to make a visit to the territory in question. These actions ensure that the torture accusations are not just theory or suspicion, but is actually being committed. For court rulings, it also required that a complaint must be submitted by the victim, or a close representative. An effort is always made for domestic remedies, before the international court is involved. But in each case, the states must take the responsibility to have established a system for the prevention of torture.
Child
Staying true to the human rights spirit, The General Assembly moved toward the Convention on the Rights of the Child, in the late eighties. The idea was to keep in focus all the welfares of the child. And just like any other reasonable group, the rights which were emphasized were the freedom of speech, of thought, of religion, attainable health, etcetera. In general, all human beings would agree to keep the child away from harm. In this case the consensus was sought from the states. States had to agree to the protection of the child from any form of violence, both physical and mental.
Some extra vigilance has to be exercised, just by being the wellbeing of the children. The protection against child labor, or rather the exploitation of child labor was highlighted. And when it comes to being refugees, special care was taken for the child. Thus, the humanitarian laws is carefully analyzed, when it comes to the child. The need for a committee was then desirable.
Hence, article 43 of the Convention on the Rights of the Child established a committee, in the early nineties. This committee had eighteen members, who were considered experts enough to be familiar with the state’s reports on child welfare and be able to make proper recommendations to the General Assembly and even the Security Council. Upon noticing any serious violations, the committee was even authorized to send personal to the states for actual visits. A complicated process can then follow to make further recommendations with follow-through actions.
It is interesting to note that as far back as in the nineteen twenties, the Geneva Declaration of the Rights of the Child, by the assembly of the League of the Nations. The burden was not specifically for individual states, but for men and women of all nations; for the mental and spiritual development of the children. With the United Nations, even before the Convention on the Rights of the Child, and the subsequent committee, the rights of the children was stressed in the fifties, and some principles were developed to ensure these privileges; these included the inclusion to enjoy security, nutrition, housing, adequate medical services, and the exclusion of neglect and exploitation.
Even with all this impressive work within the international law, it was really till the nineteen seventies that the General Assembly made some serious efforts to consider the plights of the disabled and marginalized children. Those with physical or mental challenges are given special treatment, whether it is education or any other care. In some countries, special provision have to be made for illegitimate children and even further efforts for instances that involve abducted children. As late as 2011, the committee has offered comments and recommendations for the welfare of the children under international law.
Migrant Workers
Having a solid foundation in human rights, international law took its aim at the rights of the migrant worker, when the United Nations created the International Convention on the Protection of the Rights of All Migrant Workers, in the late nineties, although nothing significant was done till 2003. The migrant, by definition, is not a national of the state, so special care was taken to define and label this type of worker. Those workers, who actually worked as literal migrant workers, not those who were international employees, refugees, students, or even workers of different states.
The idea was to allow the migrant workers the equality of treatment, as those who would receive as nationals of that particular state. This international convention, along with the committee of the fourteen experts it created, is one of the most comprehensive protection and awareness of the migrant workers, both document and undocumented, ever formed, within international law sphere. Not only does it cover the migrant worker, but it also extends to the families. In fact, there is even a separate convention called, The International Convention on the Protection of the Rights of Migrant Workers and Members of their Families (ICRMW). This made it possible for the migrant worder to acquire the fairest of treatments in not only in courts, but also when receiving the particularities of daily life, such as medical treatment, education, respect as a human being, and some cases, even undue removal from that state.
Sime significant elements of the IRCMW were the insights into the fact that even though the convention made some leaps toward the rights of the migrant worker, these were some of the basic rights, reasonably affordable to all human workers; but the states could, and should, build on it, and foreseeably extend these basic rights. The convention also provided for some protection at the actual place of work, by stipulating some working environment rules, like safety and health, which made the working ecosystem more acceptable. Some other elements, often overlooked in the beginning days of the convention, which were ultimately addressed, were the rights to fight against discrimination, equality of pay, and even to be able to join a union.
It was recognized that some migrant workers might have a more difficult time then others. For example, those with no apparent documentation to live and work in a particular state. In the seventies, international law provided to ease these situations. One thing that was done was to rephrase the language. For instance, instead of calling these workers, “illegal”, they were referred to as “non-documented”, or sometimes, even as irregular workers”. Hence, according to the convention, the undocumented migrant worker would have the same rights as an ordinary migrant worker.
Disabilities
As the sensitivities of equity around international law entered the twenty-first century, the Convention of the Rights of Persons with Disabilities came into existence. As it can be easily guessed the convention made it easier for persons with disabilities to live a more evenhanded life, as that of their fellow human beings, by enjoying equitable rights such as the prohibition of discrimination. The convention was even more effective as it ensured that the persons with disabilities also were presented with the equality of opportunities, as well as accessibility. States were required to immediately fulfill the mandates of the convention. A committee of twelve people do the work to oversee the fulfillment of these commitments.
The work just does not stop at the attempt to enforce the state’s obligations toward the CRPD, but the committee also work hard to raise the awareness of the plight of the disabled, all over the world. As one can imagine, certain states might have cultural dispositions toward the disabled, so the committee has to be vigilant and hear individual complaints against violations of the convention. The committee is well aware of possible systematic and even systemic violations by particular state. The committee even has the resources of making confidential inquiries in possible violations. The state does have the right to push back a little and claim that the committee does not have the competence to make the inquires, thus making the whole thing more difficult to manage.
Different States, Different Strokes
States have different mindsets, when it comes to enforcing and complying the decree of the Convention of the Rights of Persons with Disabilities. I can say from personal experience, living in the United States of America, that people are used to certain standards of acceptance and compliance. For example, everywhere we go, without exception, there are expediencies for the disabled. One interesting elaboration of the practices provided by the convention is that the conveniences not only help the disabled, but also who might be in need of some extra help, such as parents with babies, or people with temporary illness or incapacities. Ramps, for example, are a good example. However, when we were visiting another country (to be remained nameless), we noticed that even the absence of such a minor thing like a ramp created great hardships for someone in a wheel chair, just to perform a simple task of entering a building.
Even though 187 countries have signed the CRPD, about 177 have actually ratified it. The principals of this convention are seen as promises toward the disabled by most states, but it should really be seen more as the enforceable rights of these people; and as mentioned earlier that enforcement by CRPD can be difficult. One way to combat the noncompliance of some states is to diligently compile and study reports and even give the committee powers of a judicial body to decide cases with alleged violations. Currently, the powers of this committee are limited towards the violating states, because the decisions of the committee are not enforceable. Some states just don’t live up to the convention’s requirements. Although there is still hope if we can gain a greater insight into the states’ local practices, and deploy reliable and practical solutions, to assist these states in compliance.
Enforced Disappearances
When I started on learning about international law, one of the more curious things I came across was how serious “disappearances” are taken. Living in developed western countries, we seldom even give the possibility of people disappearing any thought at all. And enforced disappearances is not just someone not being accounted for, but it is disappearance with the effort of the state, which could be arrest, abduction, or detention. This is exasperated by the state’s refusal to acknowledge this loss of liberty, making a true case of enforced disappearance.
To battle this atrocity, the Convention for the Protection for All Persons from Enforced Disappearance was established, with a full-scale deployment, as recent as ten years ago. This is a strong convention, making enforcement a criminal offense, in fact, a crime against humanity. Although crimes against humanity have not been codified in a particular treaty under international law, it has evolved under the jurisdictions of international courts. A ten-person committee is there to scrutinize the reports by the states on measures taken to curtail these enforced disappearances.
The committee’s role is to seek out credible reports on whether there is a systematic practice and occurrences of these disappearances. Once reliable reports are established, it swiftly escalates the matter to the General Assembly, to give it more weight and seek actionable solutions. The creation of this convention has, at the least, bought hyper awareness to the extreme nature of this practice of denying liberty and putting the state’s democracy at risk. Since these infractions are state supported, they are intrinsically difficult to ascertain, and makes even more crucial to throw a light on the seriousness of this crime, and the need to seek more information and freedom for these individuals.
The CPAPED Power
The convention maintains that enforced disappearance cannot have any exceptions, even if a state of war exists. Many offending states could use a state of emergency, or the possibility of political upheaval, as an excuse for committing this crime; hence, article 1 of the convention especially forbids any excuse by the state. The convention further elaborates on the exact definition of the crime, to close any loopholes by describing enforced disappearance as any kind of deprivation of liberty, while refusing to admit the said depravity. Additionally, the CPAPED makes the state responsible to investigate any manifestations of enforced disappearances; this is important because this takes away the state’s claim of plausible deniability, by accusing a third, non-state related, party.
What gives this convention hope of sustainability in the future as a prevention and solution to the crime of enforced disappearance is that it even holds accountable the individual persons, who may be responsible of soliciting, or even an accomplice to the disappearances. And goes as far as making it a crime if those individuals don’t take any action to remedy, while having the knowledge of the infraction. Hence, as any useful convention, the CAPED shows promise my taking a comprehensive approach to the prevention and enforcement of the crime of enforced disappearances.
Minorities
I briefly discussed minorities under the League of Nations and the Basic Components of Human Rights Under International Law sections. But obviously this topic, under international law, deserves additional attention. As long as people of certain racial or ethnic groups, who are less than half of the population have existed, there always have been some disenfranchisement of these minority groups. But with these subjugations, there has always been advocacy. However, under the international law spread, a systematic effort was made till around just after WWI; particularly after the collapse of Germany and other axis states.
Given the fact that many new countries were formed, after WW1, the minority groups were dispersed throughout these new states. These were, in most cases, smaller land masses, and with a tighter belief system, hence, those with certain racial, religious, or even linguistics differences, were easily identified, and susceptible to conceivable persecutions. Under international law, the League of Nations attempted to take actions to ensure that these groups did not suffer any transgressions of the provisions provided by the league. Unfortunately, these were not successful attempts, due to the fact that the newly formed states had very high sensitivities about their sovereignty, and just the mere difficulty of overseeing such a feat by a fairly new internationally law grounded organization, like the League of Nation.
The Breakthrough
The breakthrough, under the human rights conditions for international law, came after WWII. The international community refocused the efforts to the universal individual rights. This freed it from directing its efforts on individual states, and to the actual plight of the individual. The states still had to be dealt with, since the domestic sensitivities still applied, but this allowed for the formation of large commissions, like the Commission on the Prevention of Discrimination, to be formed, without too much international political difficulties. But true international impetus did not emerge till around the nineteen sixties, with the International Covenant on Civil and Political Rights.
This gave the minorities the entitlements to be not denied any basic rights, and be able to enjoy their culture and peruse their religion and language. The spotlight is on the individual, so the personal choices are underlined, there is a hint of putting the whole group of a certain minority in one bag. The international covenant emphasizes that these minorities are not just confined to a particular territory, but the whole state, as well as everyone is protected, not just those who are nationals of that state.
Self-Determination & Non-Discrimination
When the determination of the preserving of the rights of the minorities are concerned, sometimes we focus on the state’s attitude toward the minority group only. There is also the task of undertaking and understanding the right of the minority group’s rights to self-determine a way of life. For example, an indigenous community might have a way of life regarding to the way they hunt, which might contradict with the domestic state laws. Where I live, in South Florida, in the United States, gambling is illegal. However, the indigenous minority group that has lived here for almost 10,000 years (most of us arrived in the last 300 or so years), practice gambling establishment, the state has allowed this to happen. This actually serves multiple purposes. This demonstrates a bit of a complicated act of cooperation; the undertaking of self-determination is protected by the international covenant, but is assisted by the domestic state law.
In recent years, this has become more nuanced. More special attention has been provided to minority groups, especially indigenous peoples, and their relationship with the territory they reside in. More effort has been applied to determine and categorize the minorities with special need and their self-determined ways. For example, the convention on Indigenous and Tribal Peoples in Independent Countries, even the words have been changed to reflect this nuanced. For instance, the word “populations” is used less, and the word “peoples” have been introduced. The self-determination and the self-identification have been given paramount importance and has been defined as “fundamental criteria”.
Finally in 2007, a clearer picture was produced with the introduction of the Declaration on the Rights of Indigenous Peoples. This took the right for self-determination a bit further, by giving the right to autonomy. This is easier said than done, when practiced within a sovereign state. However, if we understand that the spirit of the declaration is mostly on the self-governing of mostly internal matters and local affairs, then it is easier to accept.
Regional Protection within International Law
Within the context of the minorities protection, I was drawn toward an interesting organization, described in the book, called the Inter-American Court of Human rights. The IACHR is really an autonomous organization under the Organization of American States; of course, not to be confused by the Unites Sates of America. The organization, although now located in Washington, D.C., oversees the whole American continent, and was originally conceived in Bogota, Colombia. An interesting case was that of the Mayagna Awas Tingni Community v. Niraragua, in 2001.
Case Study: Mayagna Awas Tingni Community v. Niraragua
As with any indigenous peoples of any state, the most valuable asset is land, especially ancestorial land; not only for its financial worth, but also for its cultural heritage and unique historic perspective. The Mayagna Awas (Sumo) Tingni Community is a small group of people, maybe around 150 families, who live in Nicaragua. These people have lived in the area for thousands of years. They are well established, with schools, churches, and other permanent community infrastructure, in a large area. The state decided to use a sizeable area of 62,000 hectares, to have commercially developed. The Inter-American Court of Human rights stepped in and protected the ancestorial land rights and imputed the Nicaraguan government to have violated the rights of the indigenous people. This actually resulted in the state creating more laws to protect it’s indigenous people. The combination of the existence of international law, the protection of the human rights, and the eventual establishment of a sustainable solution by the state, is a perfect unification of international community acting for human rights, and consequently implementing effective humanitarian laws.
Intervention
Whatever view we might have of international law, eventually to have any teeth at all, intervention in other states is necessary, to have an effect. The idea of a state intervening in another state, for humanitarian reasons, can be a reasonable one; but as one can imagine that justification of such actions has to paramount. One can see the problems here when a powerful state might use human rights violations as an excuse to violate the territorial integrity of a weaker state. We all know of cases when an intervention of a country, from a different country, has saved countless lives and diverted humanitarian disasters. This can be more problematic, if the United Nations does not authorize the operations. Over the years international law has evolved to sustain the idea that intervention is okay in cases of extreme humanitarian reasons.
To put this in context, everyone remembers when Western troops secured a part of Northern Iraq, when Iraq was being very aggressive in persecuting some of its minority populations, like the Kurds and the Shias. Even though the United Nations never authorized it, the United States, France, and the UK established a no-fly zone, in parts of Iraq, thus getting control of the country’s air space, and making it secure for Western operations to secure humanitarian welfare. These Western states correctly argued that this intervention was necessary and justified under international law for humanitarian purposes.
In the many instances that has occurred, besides the obvious human rights violations, making intervention necessary, the underlaying big picture has been the maintenance or the restoration of democracy. This creates a paradox, where some might argue that the definition of democracy includes the freedom and choice of the people of that state; hence, by intervening from another state, we are taking that freedom away. However, in recent years, an international psyche of the responsibility to protect the people of that state has given the idea of intervention more potency, even if it means that this act might dilute the strength of democracy on a temporary basis. A lot of thought has gone into how a humanitarian intervention might occur, while limiting damage to the democracy of the state. As a matter of fact, the responsibility now falls on the international community to partner with the state to help build that state’s democracy, post-intervention.
State’s Immunity and Enforcement
International law has contributed greatly toward acquiring equity by coming together in forms of organizations, conventions, committees, and evolving with time to accommodate and hold entities accountable for violations. But this dance between the international law, human rights, and the local state systems still resides with the state and its ability to accept the outside influences. In general, the states do not like the actions taken by the international society, when violations are detected. The state, as a natural reaction, would always vie for immunity from action. Many attempts have been made to hold the states accountable, and even be designated as terrorist states if certain kinds of violations are repeated; such terrorist related acts like hostage-taking. United States did just that by implementing the Antiterrorism and Effective Death Penalty Act, where the state’s immunity is negated if an act of terrorism is committed, resulting in death of human beings.
The difficulties in actions like these to hold states accountable is that there is a strong need from an international law perspective to show that laws favor the premise of promoting accommodations for the mutual benefit of all nations, and the respect of another state’s sovereignty. In fact, international court has even hinted, in cases, that the state’s immunity would not only extend to the state, but even it’s agents, as in the case study below.
Case Study: Jones v. UK
A number of people bought a case against Saudi Arabia that they were arrested and tortured by that country. They filed a case in England against the county of Saudi Arabia and the people who facilitated the aggressions. Saudi Arabia claimed that under international law England had no jurisdiction. Although the applicants claimed that international law made exceptions for torture and no immunity for the state and its agents, working for it, is granted. The House of Lords favored Saudi Arabia and declared that the state indeed did not come under the jurisdiction of the English courts. It is important to note that international law does prevent torture, but in this case it was determined that this was more of a civil case. So, this really demonstrate not only the complications of one state trying to ascertain international law over another state, but also the complex nature of implementing a system for the offending state to assume the right responsibility. The answer here is perhaps to peruse these cases in international courts, in this case it should have been European Court of Human Rights, and not civil litigations.
Sanctions
The most common thing an average person sees for international enforcement are sanctions. On the one hand, it can be a powerful deterrent, adjustable in many nuances, but on the other hand, the general effectiveness of sanctions are debatable. Especially in third world countries, where the government cannot be fully trusted, the operations and enforcement can be problematic, and cause great harm to the often-vulnerable state’s economy and its people. More often, targeted sanctions are being practiced by the international community to make it fairer and more effective.
Responsibility
Any way we look at it and consider any of the techniques reflected in this paper, there is a responsibility of the international organizations to protect human rights. When everything is considered, it is decidedly established that it is really the combination of actions taken under the international law and the responsibility of the individual state, which will eventually provide international peace and security. Each action that is taken, and each result that it precipitates, has an impact of all the future decisions, and as confounding as it may sound, redefines the responsibility that all parties have in ensuring human rights, under international law.
Conclusion & Evolution
Throughout this paper, I made a point to analyze and craft a proper conclusion, for every section. But given the intricacy of the subject, I thought it fitting to have an aggregate conclusion, as well; not just a concluding analysis, but a personal summation. About 20 years ago, while driving on a deserted highway, in East Texas, my car broke down. A tow truck was summoned, and driving that truck was a big good-natured dark-haired man, who I later found out was from the ethnic Kurd, from Northern Iraq. On our drive back to town, we talked at length, and it was at that time that I realized that international law has a very long arm indeed. He expressed his gratitude toward the international community, who deeply affected his people’s futures. The complex entanglement of international organizations, conventions, committees, and states, in the end, are truly worth it. And as it continues to evolve, it seems to fine-tune itself to serve the greater good of humanity.
The fact that this evolution has taken all the right turns is not just fate, but the fact that we have kept the need for human rights and humanitarian laws at the forefront. Certainly, navigating through the subjective elements of ethics and principals are challenging, but having this true course lands us on more objective oriented goals by the forming of conventions, and then committee, to focus on particular areas. International law’s lean toward drawing from historical philosophies, like that of John Locke, and learning lessons from history itself, giving it the depth it needs to constantly change with the times. It is this leap from individual philosophies, to an international view of things, and then applying these back to the individual needs, is what makes international law unique and useful.
It is fascinating to see that these personal philosophies took us from understanding the natural tendencies of human beings to follow a certain way of things, and forthwith following these laws, to actually having these same humans constructing a set of rules, artificially, to even further uphold human rights. But individual states still became the main point of view, as each state had its own peculiarities about how to approach and implement these laws. International law provided that gap, and international organizations such as the League of Nations, followed by the United Nations paved this path. Not only to promote goodwill amidst the nations, but to have a momentous measure of pacts, backed by actions, to direct and administer these programs.
During this evolution of international law, we noticed that not only the states, but also the regions of the world have their own particular needs. Hence, ever more efforts were made toward a regional effort, resulting in many different regions of focus like in Europe, Asia, Africa, and the other Western countries, with treaties which are even more concentrated toward a particular region or subject. For example, the European Convention of Human Rights ruled on many human rights violations, as well as the lessons learned to use in other regions and cases. It is really the intervention and the use of the all the organs at international law’s disposal which allows for an effective practice of the organizations.
As we evolve even further, we focus on more particularities, deserving our attention, such as the plight of women, of episodes and practice of torture, of children, of migrant workers, of people of disabilities, of minorities, of political victims, and of all the marginalized people of the world, whose cries might not have otherwise been heeded. And while we can appreciate the powers of intervention and using international law to build a permanent change in the domain of human rights, we have to continually respect the independence and the local cultures of the state. International law prevails; it lends itself to human rights, and it will continue to evolve for the rest of the human history.
End
Author Shaun Hasan Ajani has over a decade of consulting experience with fortune 50 companies. He has written many books and articles on business theories & global change, and has appeared in all the major television networks, including CBS, NBC, FOX, and ABC. Shaun has many professional certifications from institutions like Gartner Institute, Harvard University, and Sloan School of Business, and holds a business degree from University of Houston. He has years of experience in creating courses, curriculum, Technical Writing, Project Management, and Business Analysis. Currently, Shaun Ajani lives in Miami with his family.
