BY: Sarah Murray, Guest Contributor
Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his International Business Litigation and Arbitration seminar the opportunity to have their research papers published with the CLO. The following article is one of many guest contributions from Campbell Law students to be published over the next two weeks.
A quick search of “human rights” on any major news source will reveal numerous news stories concerning human rights abuses currently occurring across the globe, in locations such as China, Syria, Sri Lanka, Burma, and the list goes on and on. The response of the international community to these human rights violations is of critical importance.
Human rights are those rights that are inherent to all individuals, regardless of race, sex, nationality, religion, language, or any other status. The concept of human rights is broad and includes many parts that are interconnected, interdependent, and inseparable. The basic principle of universality is the foundation of international human rights law. Universality was first expressed in the Universal Declaration on Human Rights in 1948, but has since been the subject of numerous international conventions, declarations, treaties, and resolutions.
International law, by definition is a set of rules regulating the relationships between states, not individuals. This creates a disconnect in the sense that many human rights violations are committed either by a state against individuals within the state or by individual actors within the state against other individuals. Conflict also exists among the concepts of sovereignty and human rights. Sovereignty means the assertion of complete authority by a government, while human rights implies that all human beings enjoy certain rights upon which even one’s government may not infringe.
These distinctions and conflicts raise the questions of what laws should apply, what governmental bodies should be involved in the international context to human rights violation, and how does and should the international community respond to human rights abuses. Furthermore, many states place greater care in their treatment of foreigners than treatment of their own citizens due to the fact that states worry they will more likely provoke international outrage over the treatment of foreigners than over the treatment of the state’s own citizen’s. Yet, this makes the aforementioned definition of human rights and the universality principle of human rights virtually meaningless.
World War II “marked the ultimate transition of international law from a system dedicated to State sovereignty to one also devoted to the protection of human dignity.”
World War II marked a pivotal historical moment in many regards but especially in regard to human rights. It marked the beginning of efforts to give “human rights protection under international law to all individuals on the globe.” As stated by David Bederman, “‘the Second World War marked the ultimate transition of international law from a system dedicated to State sovereignty to one also devoted to the protection of human dignity.’” This was important because in many contexts in international law, the ultimate foundation is the idea of state sovereignty, while this time period laid the foundation for the placing of human rights above the idea of state sovereignty in some respects.
The first significant human rights treaty post-World War II was the Genocide Convention (1948), which bans killing and other acts that are intended to “‘destroy a national, ethnic, racial or religious group.’” The day following the Genocide Convention, the Universal Declaration of Human Rights was approved by the United Nations General Assembly, which, for the first time in history, set forth the fundamental human rights that were to be universally protected. This Declaration contains basic civil, political, economic, social, and cultural rights that all human beings have the right to enjoy. The major downfall to the Declaration is that it is not binding on states; it simply proclaims ideals to which countries should aspire. Throughout the 1960s, 1970s, and 1980s, many international conventions and covenants were signed that dealt with human rights in the forms of racial, civil, political, gender, and age discrimination (among other forms of human rights violations).
The creation of the International Bill on Human Rights signaled both the legal and the moral obligations of signing states to encourage and protect human rights, as well as fundamental freedoms.
The more comprehensive International Bill on Human Rights, which entered into force in 1976, is made up of the Universal Declaration on Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In the twenty-five years prior to the International Bill on Human Rights, the aforementioned Universal Declaration on Human Rights stood alone as the historic document giving a universal definition for human dignity and values.
The Universal Declaration, however, served as only a “yardstick by which to measure the degree of respect for, and compliance with, international human rights standards” across the globe because it carried no actual force. The creation of the International Bill on Human Rights signaled both the legal and moral obligations of signing states to encourage and protect human rights, as well as fundamental freedoms.
Furthermore, the Universal Declaration truly is universal in scope: it recognizes the validity of human rights for every member of the human family, regardless of whether states formally accepted or ratified the principles in the Declaration. Although the recognition of such fundamental principles is integrally important for the international community, without the legal and binding effect on states, the principles contained in the Declaration do not seem to mean much. The legally binding nature of documents that make up the International Bill on Human Rights has its own fault in that the documents are only legally binding on those states that ratify them. Regardless of the disadvantages of each, the Universal Declaration on Human Rights and the International Bill on Human Rights are both cited as bases for actions in the human rights context.
Among the international bodies involved in human rights, the most important likely is the UN.
Among the international bodies involved in human rights, the most important likely is the United Nations (UN). The United Nations’ bodies involved in human rights include the General Assembly Third Committee (Social, Humanitarian, and Cultural), the UN Human Rights Council, and various charter and treaty-based bodies.
The General Assembly Third Committee focuses on the examination of human rights questions, including discussions of women’s advancement, protecting children, issues of indigenous groups, refugee treatment, and much more. At one of its most recent sessions, the General Assembly Third Committee considered over thirty draft resolutions concerning human rights. These draft resolutions included three country-specific resolutions focused on human rights situations.
The UN Human Rights Council is an inter-governmental body made up of forty-seven states. It exists to promote and protect all human rights across the globe. The forty-seven Member Nations are elected by the UN General Assembly. The Council is able to discuss all thematic human rights situations and issues that require its attention anytime during the year.
Finally, the charter and treaty-based bodies include various councils and committees of experts that study and monitor human rights across the world and implement international human rights treaties. The charter-based bodies include the aforementioned Human Rights Council, as well as Special Procedures. Special Procedures is the name given to the mechanisms established to address country-specific concerns or thematic issues around the world. There are nine international human rights treaties that are considered to be at the forefront of human rights. Since the Universal Declaration’s adoption in 1948, every UN Member State has ratified at least one core international human rights treaty. At present, there are ten human rights treaty bodies.
Several state actors also have made positive efforts in the realm of the promotion and protection of human rights globally.
Several state actors also have made positive efforts in the realm of the promotion and protection of human rights globally. For example, the Bureau of Democracy, Human Rights, and Labor leads the United States’ efforts in supporting democracy, defending human rights and international religious freedom, and developing labor rights across the globe. The Bureau produces annual Country Reports that cover such broad topics as “individual, civil, political, and worker rights.” The United States Department of State conducts reports on all countries that receive assistance and all United Nations member states and submits these reports to Congress. These reports are also available online at the United States Department of State website.
The international community’s response to human rights violations is particularly important. Michael Ignatieff argues that perhaps the post-September 11th “era of human rights has come and gone.” Ignatieff is referring to the strong response of the United States and the international community after September 11th to fight terrorism and protect human rights around the world. He argues that the need for the United States and other international players to fight the war on terrorism and human rights abuses across the globe is just as great – or maybe greater – presently.
The creation of the International Criminal Court in 1998, as an independent international organization, was a milestone in the human rights field.
After many wars, genocides, or other periods of human rights abuses within a State, many governments established their own courts to try the perpetrators of crimes against humanity. In many cases, however, these courts were inadequate to address the sheer volume and magnitude of human rights crimes and abuses that had taken place. Thus, the creation of the International Criminal Court (ICC) in 1998 as an independent international organization, was a milestone in the human rights field. The court tries persons accused of the most serious crimes of international concern. The ICC is based on a treaty that has been joined by 122 countries.
The Rome Statute, which created the ICC, authorizes the prosecution of individuals who have been accused of war crimes (in a civil or interstate conflict), genocide, or crimes against humanity. The state whose national is charged with such a crime first has the opportunity to try the national, but if the state is unwilling or unable to take action, the state must defer to the ICC. Furthermore, the ICC is a court of last resort in that it does not act unless a national judicial system refuses to act or the national judicial system’s proceedings are not genuine. The ICC, therefore, is of the utmost importance in the human rights context where the state may be the organ that is abusing human rights and/or refusing to take genuine action to cure human rights abuses. The ICC may also act to deter future atrocities, and even where deterrence is not possible, it may punish perpetrators of abuses.
One of the primary downsides to the ICC is that the United States has not joined the treaty that created it. While the United States has offered minimal support to the ICC, it still has no intention of actually joining the ICC in its efforts. Under United States law, the U.S. cannot pay any money directly to the Court. The U.S. can assist the Court, however, in more discreet ways, such as by protecting integral witnesses, sharing data, and providing forensic assistance. As a major international power, it remains to be seen how a body such as the ICC can function while such a major actor as the United States remains outside its purview.
Violations of human rights remain widespread in the present day global context. As has been discussed, many international laws and treaties apply to the human rights violations taking place across the globe. From the Genocide Convention in 1948 to the International Bill of Human Rights in 1976, these laws and treaties have changed the landscape of how human rights abuses are handled in an increasingly interconnected world. Furthermore, the governments and international bodies involved in the human rights field play significant roles in resolving varying human rights abuses and provide important ways to deter future actors from committing such abuses. While neither the treaties nor the international bodies are without flaw, each does meaningful work in progressing towards a world with fewer human rights violations.
Sarah Murray is a 3L student and will graduate from Campbell Law School in the Spring of 2014. She may be reached by email at firstname.lastname@example.org