Pubic International Law
PUBLIC INTERNATIONAL LAW 10
“……..International law has no life of its own, has no special normativeauthority it is just the working out of relations among states, asthey deal with relatively discrete problems of internationalcooperation.”
Thisstatement is true considering the current events in internationalrelations.Human rights are universal. As defined by the Universal Declaration oHuman Rights by the United Nations in 1948, they are universalinterdependent, and indivisible. They entail equality andnon-discrimination. All human beings have the obligation and theright over the human rights. All members of the United States aresignatories to at least one of the nine treaties on internationalhuman rights. They were adopted by countries in the world as part ofthe world’s commitment to avoid war that had caused massive abuseof human rights.
Everycountry has the solemn responsibility of honoring the human rightscharter as part of international law and uphold it throughintegrating it in domestic law. The international community thereforelooks upon individual countries to respect and enforce human rightsas a gesture of the commitment to establish an international orderthat binds all countries. Some countries have honored theircommitment to human rights while others have negated theirresponsibility by perpetrating human rights abuses. It is againstthis backdrop that it becomes vital to incisively analyze some of thechallenges that human rights as part of international law that needsto be respected by all nation states. The challenges emanate fromthe conflict between universality and cultural diversity in theworld. The following challenges have affected the enforcement ofhuman rights.
UniversalHuman rights and cultural Relativism
Theworld is a multicultural place where different cultures perceive theidea of human right differently. At the same time, people areincreasingly being integrated by the growth in technology that haseased communication and interactions. There is a huge dilemma inbalancing the aspects of cultural diversity and integrity with theuniversal view of human rights as brought forward by theinternational community. Another challenge that is emerging in humanrights issues is whether or not the world can contend with a globalculture established within the paradigm of universal human rights. Itis difficult to have a universal perspective of human rights createdfrom the ideal of cultural relativism. Even though the world is beingintegrated by technology and universality, cultural diversity poses agreat challenge in uniting societies on a common definition of humanrights. Cultural relativism is where every society is allowed and atliberty to approach universal values of human rights according totheir own cultural perspective (Cannizzaro& Palchetti, 2012). This perspective subtly negates theprinciples of universalism because it establishes a differentreference point for human rights. Relativism implies that culturalperspective must be considered when promoting, protecting,interpreting, and applying human rights. The question is whether thesame relativism is legitimate if it interprets and applies humanrights in a manner that conflicts with universalism. Ethnic,religious, and cultural relativism on human rights have their placein international law. They define issues of sovereignty where eachnation state will want protect its cultures in the name ofsovereignty even the same practices grossly violate the universalinterpretation of human rights. For instance, there are places in theworld where cultures such as female circumcision still take place.The tradition is entrenched in those cultures because it is passed onfrom one generation to the next. On the other hand, human rightsgroups through universal interpretations views the tradition asinhumane and violating the human rights of the females who undergoit. This poses a dilemma for human rights enforcers especially whenthe government of those countries with the tradition seems to upholdthe practice.
Relativismcan be extreme. This would make it impossible to enforce human rightsbecause states will insist that their cultures determine theiradherence to universalism. It somewhat implies that states considertheir cultural perspectives over universal perspectives of humanrights. This dilemma can leave people vulnerable to human rightsabuses. The effectiveness of international law and the universalhuman rights system is therefore under threat. Proponents of humanrights have constantly ignored the fact that relativism is prone toabuse and manipulation than universalism. After all countries do notunderstand each other’s cultures abuses could be justified by therelativism argument.
Universalhuman rights and international law
Humanrights are recognized and safeguarded by international law. Asproclaimed in the charter, they are “for all without distinction”(Shaw,2003). This commits all nations to the international Bill of Rightswhich spells out the fundamental human rights that all human beingsare entitled to as long as they allow other human beings to enjoy thesame rights. International rights like all other laws should beenforced to the letter. Most governments agree and swear to protect,promote, and uphold human rights. They make promises that are legallybinding through international conventions and treaties. However, theybreak the same promises when and if they deem it convenient. Tosubstantiate this challenge, an example is appropriate. Iran is asignatory to the United Nations Covent on Civil and Political Rights.This is an international a treaty that forbids its members againsttorture and inhumane punishment of civilians (Shaw,2003). The treaty that fair public hearing by competent, independent,and impartial tribunals establishing should be the conflictresolution mechanism in case of a dispute. The treaty also providesthe right of peaceful assembly by everyone. Iran disregarded theprovisions of this treaty in the 2009 presidential elections. Thewinner, President Ahmadinejad was predetermined and the authoritiesdeclared him so. Protests ensued and the government responded bycracking them down through killings and indiscriminate arrests. Someprotestors have so far been executed without fair trial. This is oneo the many examples of countries that have constantly broken theircommitment to international treaties on human rights. As long as theinternational community depends on the integrity of state parties toenforce human rights, it is a great challenge because they cannot becompelled to do so. This makes international law simply an agreementand not enforceable statutes that states can commit themselves.People obey laws only when they know the punitive consequences ofbreaking them. It is therefore important that international lawestablishes authority and the value of persuasion among nation state.International law does not have a direct consensus on this issue. Itslack of immediate impact on state parties fails to protect civiliansagainst persons that abuse human rights for power or selfish gains.The incentives for protection of human rights are weak and some andthey have incapacitated the international community from enforcingright through arresting perpetrators of human rights abuses.
Humanrights, cultural integrity and diversity
Itis difficult to establish a universal measure of cultural integrity.Communities with archaic cultures may not accept being described asarchaic or falling short of international integrity (Malone, 2008).The international community does not rank human rights on the pretextthat they are indivisible. However, political and civil rights havebeen overemphasized than other rights. The use of the human rightslanguage to refer to economic, cultural and social is contested.Cultural right have been used to justify atrocities such as torture,genocide, murder, discrimination etc on the basis of race, religion,language, ethnicity, sex, and social class (Lawrence,2003). Terrorists abuse human rights though religious justification.There have been efforts to see human rights as divisible. This viewranks human rights as more or less important, and possibly to look atcultural rights at best as secondary rights such as security andpolitical freedom. Extremists have been reluctant to acknowledge theinternational minimum in the tension between conflicting rights. Forinstance, the international community has found it difficult toestablish a universal minimum that binds Islamic culture on therights of women. Some countries who are parties to different humanrights treaties still flog women in streets just because they werefound putting on western attire.
Thedilemma of neutrality and interventionism
Statesare torn between maintaining a neutral stance in human rights issuesor to intervene and promote the needed conditions for liberty andequality so that individuals and group can realize their benefits ofsuch conditions. Even though countries have agreed to respect humanrights, they have not initiated polices that guarantee the equalityof opportunities for all.
Derivinga cultural context of human rights that can bind different culturesis a huge challenge of the international community (Bedjaoui, 2001).Nation states and societies that support relativism argue thattraditional culture can protect human rights. They say so on thepremise that culture promotes human dignity hence enhancing humanrights. They perceive universal human rights as an intrusion ontraditional culture and disruptive to the traditional view of life,freedom and human security. Every society has cultural values thatsomewhat conform to provisions of universality on human rights. Theproblem is that other societies emphasize cultural aspects that areoverly negative to reinforce their skepticismabout universality.They feel that that universality is an imposition from othercultures. For example some countries in the Middle East portray humanrights as western culture. These biased perspectives have been animpediment to the realization of a universal consensus that wouldensure all people are free to realize the inalienable human rights.
Challengeof determining which international agreements should be enforced astreaties
Themost controversial part of international agreements and treaties isthe threshold of being governed by international law. Meeting thisthreshold will determine whether or not an international agreementwould be classified as a treaty. A treaty is an internationalagreement that is governed by international law. There are specificaspects that an agreement must meet to qualify to be a treaty. Theseare: (i) an agreement (ii) concluded among nation states (iii)governed by international law (iv) Must be in writing(Evans,2006). These requirements make treaties to be customary internationallaw. Human rights treaties falling in this category. The only bindingaspect in these requirements is the fact that it is governed byinternational law. International law does not supersedeconstitutional law of a specific country. Governments can violate theprovisions of a treaty on human rights such as Iran in the pretextthat the treaty violates the values of constitutionalism in theircountry. Conforming international human rights treaties to theprovisions of different countries is a difficult task. For instanceIran argued that international interventions on human rights abuseswould amount to a disregard of its territorial integrity.
Statemechanisms adopted to respond to Challenges of human rights
Thechallenge of reaching an agreement between relativism anduniversalism of human rights has led various challenges such asterrorism. Terrorist groups and states that fund them justify theiractions in religious grounds. Other states which believe in theuniversality of human rights respond by preparing and defending theircitizens against national security threats posed by extremistterrorist groups. States respond by adopting a foreign policy thatalienates countries inclined to relativism. Foreign policies rangefrom imposition of economic sanction to withdrawal of diplomaticrelations. For instance the government o Zimbabwe has constantly beenunder economic sanctions from countries from the west because ofviolating human rights. The response is aimed at compelling leadersof those countries to adopt universalism of human rights as opposedto their relativist views.
Responsescan are also done through the formation of tribunals to look intohuman rights violations, seeking action from the United Nationssecurity Council, sending special envoys, elected expert committees,and working groups to intervene in through negotiations that can helpend human rights violations (Chazournes& Sands, 2009). Hybrid courts are formed such as in Sierra Leoneand Cambodia to look into human rights violation and prosecute theperpetrators through local judicial mechanisms. Some interventionsare aimed at getting the political will of different countries whichare party to international human rights treaties. They also seek toraise the involvement and consciousness of the public about the needto abide by international law through domestic jurisprudence. Responses do not take the form of a single country response butcountries come together to intervene through measures that aregoverned by international law. However, this provision has beenabused by some world powers in the past. An example is the UnitedStates that launched attacks on Iraq in response to terrorism andhuman rights abuses. The international community did not agree aboutthe second Gulf war in 2003 but the United States proceeded to invadeIraq. Some responses from nations have been aggressive to the extentof abusing international law.
Internationallegal systems have not been consistent in guiding response mechanismsform states. Most responses only publicize human rights abuses andengage in other responses such as economic sanctions withoutproviding the needed technical advice to those countries. Technicaladvice would be a permanent solution. If abuses continue theresponses sometimes worsen the situation. Sanctions make life harderfor citizens than government official hence worsening the conditionthan mitigating it.
TheUN Human Rights Commission has a great challenge of getting apractical consensus on universal human rights. Another challenge isto find an internationally acceptable mechanism of enforcinginternational law. Challenges of international law in relation tohuman rights as discussed above have resulted in differentinterpretation, promotion and protection of human rights. Some statespreferring universalism to relativism while other preferringrelativism to relativism. This has lead to human rights abuses thathave triggered violent reprisals and responses from aggrieved andconcerned nations to levels that have violated international law.
Bedjaoui,M. (2001). Internationallaw: Achievements and prospects.Paris: Unesco [u.a..
Cannizzaro,E., & Palchetti, P. (2012). Internationallaw as law of the European Union.Leiden: Martinus Nijhoff Publishers.
Chazournes,L., & Sands, P. (2009). Internationallaw, the International Court of Justice, and nuclear weapons.Cambridge: Cambridge University Press.
Evans,M. D. (2006). Internationallaw(2nd ed.). Oxford: Oxford University Press.
Lawrence,T. J. (2003). Theprinciples of international law(4th ed.). London: Macmillan.
Malone,L. A. (2008). Internationallaw.New York: Aspen Publishers.
Shaw,M. N. (2003). Internationallaw(5th ed.). Cambridge, U.K.: Cambridge University Press.