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Structure of international human rights law
Barrister Harun ur Rashid
If the position of individuals in the international legal system in the pre-1945 world (before the setting of the UN) is compared with their post-1945 position, there would be very few that would not admit that there had been a sea-change.
From a status of rightlessness within the system, the position of individual had been transformed into one of the system's focal point.
To what can this change be attributed?
First, there is no doubt that the horrors of the Hitler's holocaust of Jews made a decisive impact on world opinion that a nation's leader could do away certain basic human rights, right to life, to its citizens. That means sovereignty over individuals is not unlimited.
Second, individuals have become subjects of international law because the Nuremberg trial for war criminals demonstrated that individuals had responsibility not to obey order if it was repugnant to basic human rights and contrary to international law. War criminals could not hide under the defence of superior orders.
Third, no longer one can argue that violation of human rights within its borders is simply a matter of domestic jurisdiction. No longer can states legitimately claim that matters concerning human rights are entirely within their purview.
Fourth, the dramatic increase in the number of international human rights instruments has played a major role in protecting human rights of individuals. This has led to a weakening of the exclusivity of state sovereignty in the human rights field.
Importance of natural law
In all this, one should not forget the role played by theory. The resurgence of natural law to provide an objective measure against which the positive laws of states might be judged is evident in the writings of such jurists as Sir Hersch Lauterpacht and in international instruments such as the UN Charter, and the 1948 Universal Declaration of Human Rights.
Natural law dominated in ancient Greek and Roman times. The principle of order, harmony and reason were inherent in nature and jurists thought that they could derive specific rules of international law from natural laws.
Advocates of natural law do not consider positive law (state-made law) invested with a true legal force as is in the law of nature. Law of nature is universal based upon reason.
The UN Charter in particular recognised that stable world conditions might only be achieved by paying due attention to the central role of human rights in maintaining peace among states.
Development of jus cogens
Jus cogens is a peremptory norm of general international law, accepted and recognised by international community as a whole, from which no derogation is permitted. The development of peremptory norms of international law (jus cogens) and the acknowledgement of such norms in the field of human rights has an impact on traditional international law on human rights.
In terms of Article 53 of the Vienna Convention on the Law of Treaties of 1969 ( jus cogens), a strong argument is easily advanced that non-derogable norms of human rights law (such as torture) is deeply rooted in the substructure of the international legal order that they represent a kind of international public policy.
Characteristics of human rights treaties
The Inter-American Court of Human Rights and eminent commentators such as Lillich and Buergenthal have argued that human rights treaties are not of the conventional multilateral variety producing reciprocal rights and obligations, rather they are unilateral commitments made by states through the medium of multilateral devices.
The effect of this, once again, is to reinforce the view that just as in the past certain basic principles of international law, such as state sovereignty and non intervention, were modified to accommodate international society's concern with the protection of human rights.
Rights of individuals
Under the UN system and procedure, individuals may lodge complaints of abuse of human rights against their own states. They are investigated and explanations are called from states in the meeting of the Sub-Committee of Human Rights Commission, although secretly. Once they are heard, the Commission may publicly ask the state to rectify the abuses.
Conclusion
Human rights are political as well as legal phenomena. The liberal democratic state with its emphasis on the rule of law, the principle of democratic legitimacy and individual liberty possesses both the institutions ( National Human Right Commission and the judiciary) and the culture of respect that enable basic human rights protected.
The concept of human rights is universal and it possesses a validity which is good for all places and for all times. Given the democratisation of society, it appears that all states have currently committed to protection of human rights. Human rights will continue to be a central part of the international agenda in the 21st century, especially in gender discrimination.
The author is former Bangladesh Ambassador to the UN, Geneva.
