International Law

Outline

• Introduction
• Sovereignty and Interference with Internal Affairs Problem
• Human Rights can be Accommodated within International Law
• Conclusion
• References

 

International Law

            Traditional international law stands for the type of international law be it conventional or customary that existed prior to the UN Charter of 1945 (Abrams & Ratner, 2001). The law instead of advocating for the interests of the individuals, it selfishly advocated for the interest of the nations. In this case, the existence of human beings acted as the main threat to the logics of the prejudistic law. Due to the ability of the human beings to transverse over the borders of different countries, the logic of the traditional international law branded human beings as the main reason behind the difficulties being experienced in the articulation of the international law. The individual rights of people were trodden over by the law due to its emphasis on the rights of entities or nations (Agarwal, 2006). With the signing of the UN Carter in 1945 many changes were effected on the law based on the interventions of human rights movements in which they forced the law to not only focus on nations but to also focus on individuals as they are the main components of the nations.

The influence of the Human Rights Issues has greatly affected the sovereignty and internal affairs of international law. Sovereignty began with the Westphalian regime of 1648, which was supported by the international law (Alston et al, 2007). In this case, it encompassed the supreme authority within the boundaries of a certain territory in which no outside force can interfere with the internal affairs of that supreme authority. With the signing of the UN Charter in 1945 and the Universal Declaration of Human Rights in 1948, the sovereignty and internal affairs of sovereign states was affected substantially (Anaya, 2004). The states were subjected into the respecting of 30 rights of individuals, which had not been recognized by the traditional international law. The interference with the sovereignty and internal affairs of states is a problem that cannot be solved unless if the influence of the human rights is scraped of the international law.

The first reason for this is the formation of warfare rules after the commissioning of the human rights issues, which are aimed at reducing the consequences of wartime conflicts on both citizens and soldiers (Bartelson, 1995). This was contributed to by the Geneva Convention of both 1929 and 1949, which stipulated that individuals as well as states could assume the neutral title in case of wartime conflicts. At the same time, the laws governed the way prisoners of war were treated as well as the civilians’ protection. Due to the changing nature of the rules formulated, mechanisms have been adopted such that they interfere with the military and sovereignty autonomy of different states (Council of Europe, 2007). The recent example is the Chemical weaponry convention of 1993 that advocated for disarmament. To effect its authority, an international inspectorate was created. This is a clear indication that interference with sovereignty will never be resolved.

Secondly, the autonomy of the traditional international law has been reduced by the recognition of the role of individuals in war crimes as asserted by the International Tribunal at Nuremberg. In this case, an individual can be held accountable for his war crimes against other individuals (Doebbler, 2004). An individual should therefore understand that he or she has a moral obligation that traverses over his or her state obligation. The individual can make the decision of not serving in the military. In case of war individuals involved in crimes against humanity cannot extradite themselves from responsibility on the pretext of obeying superior orders. War crime tribunals have been established as an extension to this law. Examples of these include those established in established in Yugoslavia in 1993 and Rwanda in 1994. The ex-president Slobodan Milosevic of Yugoslavia was brought before the Hague war crimes Tribunal for the crimes he had committed against the people of Yugoslavia.

Though these tribunals have not succeeded in bringing into book all the perpetrators of the said atrocities, they have managed to assert the seriousness of the laws in question. The powers of sovereignty are being undermined extensively by the decision of establishing an international criminal court that will try war perpetrator be they individuals or not (Guzmán, 2008). Thirdly, such conventions as the European Convention of the Protection of Human Rights and the Fundamental Freedoms of 1950, the American Convention on Human Rights of 1978 as well as the African Charter of Human and People’s Rights of 1981 bestowed individuals with the power  of challenging government policies that violated their individual rights (Kapoor, 2000). This has in actuality, revolutionalised the international law due to the recognition of the interests of the individual regardless of the interests of the nation.

Fourthly, international law has been revolutionalised by globalization due to the changes that have been effected to remove the emphasis on border alienation. Initially under sovereignty whatever took place within the borders of a certain country were not interfered with by any law. With the coming of globalization, the shift has been made towards the integration oh human rights in international law thus reducing the autonomy of states (Hathaway, 2005). Globalization is characterized by the trade liberalization, privatization and economic deregulation across borders, which has contributed greatly to the interference of the human rights on the internal affairs of sovereign states (Krasner, 1999). The problem of interference cannot be solved with the continued emphasis on globalization or the revolution of the world into a global village.

Fifthly, the conferring on the head of states the power to enter into treaties with the heads of other nations regardless of the existence of the national power to represent the nation has been negated by the current international law. Human right specify that if the treaty is going to undermine the right of the individual citizens then the head of state cannot agree with the signing of such a treaty, this is because the citizens have been bestowed with the power of taking legal action against the government in cases of the impediment of their rights. The ICC was established for such cases such that the plaintiff might obtain justice, as the legal framework of his country may not bestow him with this in the case of proceedings against the government. In the same case, the minority in the society have been neglected by sovereignty due to its reliance on the interests of the state (Kuokkanen & ebrary, 2002). The United Nations General Assembly in 1992 adopted the Declaration on the Right of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities, which stipulated that all states had the obligation of protecting the minorities living in them. In this case, the minorities were given the right of participating in all aspects of religious, cultural, public and social life. The states cannot maintain sovereignty under this rule in any case.

Lastly, traditional international law did not have recognition of the environmental laws that recognized not only the human kind rights but also the ecological rights. The end of the Second World War was the initiator of the environmental regulations that had to be adopted in the enhancement of the protection of the ecology (Merry, 2006). In 1972, the Stockholm Conference on International Environmental took place under the sponsorship of the UN Environmental Program to chart the way forward in terms of environmental protection. This conference saw the integration of diverse national government in the discussion of ways to alleviate the environmental problems being experienced in the different countries. In 1992, the Rio conference took place leading to the signing of the Rio Declaration that stipulated the cooperation of all state, individuals and key sectors of societies to ensure that environmental conservation was effected. With this cooperation, all sovereign states lost their sovereignty as the declaration could effectively interfere with the internal affair as long as environmental protection was concerned.

Can human rights be accommodated within international law?

Human right can be accommodated into the international law because since the signing of the Universal Declaration of Human Rights in 1948, the traditional international law was revolutionalised on the bases of the precepts of the human rights. The modern international law integrates human right in is governance (Philpott, 2001). This is because it recognizes the right and interests of individuals, which was amiss in the traditional international law as it advocated for the interests of the nations regardless of the rights of individuals. The signing of the Universal Declaration of Human Rights in 1948 shifted the power of states into the recognition of the 30 rights of individuals. These rights were based on the commissioning of the human rights, which was integrated into the traditional international law that did not recognize the rights of individuals.

After the foundation of the United Nations in the aftermath of the Second World War, the United Nations Charter was signed in 1945. Article1 (3) of the charter stipulated that the main role of the UN was to enhance international cooperation when solving economic, cultural humanitarian character or social international problems as well as enhancing the rights and freedoms of individuals (Posner & Goldsmith, 2005). Those rights contained in the UN Charter made up the foundation of the International Bill of Human Rights that encompasses International Covenant on Economic, Social and Cultural Rights, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Traditional international law only dealt with matters concerning nations but the Universal Declaration of Human Rights became the initial international legal effort behind the forcing of the nations to recognize the duties that they had to their citizens.           With the recognition of these duties then the international law began to accommodate human rights into its functioning. The rights of minorities were not recognized by the traditional international law but after human rights started to advocate for the rights of the minority, the international law integrated this stipulation leading to the imposition of legal justice on those states that did not recognize the minorities, by the same international law that used to protect states from such duties. Traditional international law supported the sovereignty of different states in which case it did not interfere with the internal affairs of the states. With the integratetion of human rights in the traditional international law, the internal affairs of different states could be interfered with by the law. A good example of this is the involvement of the UN in peacekeeping mission in warring countries (Provost, 2002). The international law protects this function of the UN in protecting it from any legal proceeding brought against the UN by the governments of the countries in which the peacekeeping mission is being carried out.

This is a clear indication that human rights can be accommodated by the international law as the modern international law is based on the stipulations of the human rights issues (Rajagopal, 2003). Under the traditional international laws, the head of states had the jurisdiction of carrying out war crimes against the citizens of their countries without any legal implications from the international law. International law came in when the war crimes were against a certain state or nation. With the rise of human rights issues international law has been applied in the prosecutions of national leaders who were involved in war crimes against the citizens of their countries. Those involved in genocides have been tried in the ICC in which international law is practiced. Such former national leaders as Slobodan Milosevic have been tried and sentenced for the war crimes they committed against the citizens of their countries, which indicates that human rights can be accommodated by the international law if it recognizes the rights of individuals.

Human right have advocated for the recognition of the importance of sustainable development in the international law (Schulze et al, 2007). In this case according to the Rio Declaration, Agenda 21 and the Brundtland Report the role of international law in sustainable development was sufficient even to try countries, which were involved in the breaking of this law. This means that though international law might stand on its own currently it has substantially accommodated the human rights issues. Globalization has embraced human rights into its functioning especially in terms of trade liberalizations.

International law on the other hand has limited the powers of globalization in such aspects as the development of all nations towards globalization. In this case, international organizations have been bestowed with power by the international law in terms of ensuring that the economic development of some countries does not impact negatively on the economies of other countries (Spruyt, 1994). Human rights have been utilized in the stipulations of the rights that the refugees have under the international law. For this reason, international law has been aimed at ensuring that the rights of refugees are upholded by the nations in question. In the same case, the same international law under the jurisdiction of human rights stipulates the laws used to protect the third world countries from exploitation by the developed countries.

Traditional international law was such that it uphoolded the interests of the nations regardless of the interests of the individuals that made up the bulk of the nations in question. With the signing of the UN Charter in 1945 this however changed due to the changes that human rights effected on the law. The changes that occurred in international laws were utilized in reducing the sovereignty that different states had acquired during the Westphalian regime. The states lost their autonomy in such a way that the law impeded on their internal affairs, a feat that was non-existence in the traditional international law (Vega & Weissbrodt, 2007). This means that the problem of the influencing of the sovereignty of the states cannot be solved as long as human rights still exist and they are accommodated in the international law. In conclusion, the many changes that have been effected in international law especially concerning the recognition of the rights of individuals are a clear indication that human rights have been accommodated in the international law

References:

Abrams, J. S., & Ratner, S. R. (2001). Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. Oxford, UK: Oxford University Press.

Agarwal, H. O. (2006). International Law and Human Rights. Allahabad, AL: Central Law Pub.

Alston, P., Goodman, R., & Steiner, H. J. (2007). International Human Rights in Context: Law, Politics, Morals: Text and Materials. Oxford, UK: Oxford University Press.

Anaya, S. J. (2004). Indigenous Peoples in International Law. Oxford, UK: Oxford university press.

Bartelson, J. (1995). A Genealogy of Sovereignty. Cambridge, UK: Cambridge University Press.

Council of Europe. (2007). Human Rights in International Law: Basic Texts. Strasbourg, SA: Council of Europe Pub

Doebbler, C. F. (2004). International Human Rights Law: Cases and Materials. Washington, DC: CD Pub.

Guzmán, A. T. (2008). How International Law Works: A Rational Choice Theory. Oxford, UK: Oxford University Press.

Hathaway, J. C. (2005). The Rights of Refugees under International Law. Cambridge, UK: New York.

Kapoor, S. K. (2000). International Law and Human Rights. Allahabad, AL: Central Law Agency.

Krasner, S., D. (1999). Sovereignty: Organized Hypocrisy. Princeton, NJ: Princeton University Press.

Kuokkanen, T., & ebrary, Inc. (2002). International Law and the Environment: Variations on a Theme. The Hague: Kluwer Law International.

Merry, S. E. (2006). Human Rights and Gender Violence: Translating International Law into Local Justice. Chicago, CA: University of Chicago Press.

Philpott, D. (2001). Revolutions in Sovereignty: How Ideas Shaped Modern International Relations. Princeton, NJ: Princeton University Press.

Posner, E. A., & Goldsmith, J. L. (2005). The Limits of International Law. Oxford, UK: Oxford Univ. Press.

Provost, R. (2002). International Human Rights and Humanitarian Law. Cambridge, CA: Cambridge Univ. Press.

Rajagopal, B. (2003). International Law From Below: Development, Social Movements, and Third World Resistance. New York, NY: Cambridge University Press.

Schulze, C., Strydom, H., & Church, J. (2007). Human Rights from a Comparative and International Law Perspective. Pretoria, SA: Unisa Press.

Spruyt, H. (1994). The Sovereign State and Its Competitors. Princeton, NJ: Princeton University Press.

Vega, C., & Weissbrodt, D. S. (2007). International Human Rights Law: An Introduction.. Philadelphia, PA: Univ. of Pennsylvania Press.