Law Vision
Enforcement of human rights: International perspective
Al Asad Md Mahmudul Islam
Indeed, the ever increasing sphere of human rights is attracting main focus in the state and inter-state affairs of today's world. Given the belligerent move of one and only superpower of the world, the moribund initiative of United Nations and the rise of international terrorism, the issues of human rights are becoming yardstick to justify the activities of the states in national and international level. Today, violation of human rights is sharply responded and seriously addressed by anybody anywhere of the world. Because the issues of human rights are no one's cards to be played in convenience, these are a concern of whole human community. Any violation of human rights in any corner of the world is supposed to have done against the whole human community. Every member of the human community must understand the cry for human rights.
Why states are put in the frontline for the protection and promotion of human rights? This obligation of the state comes from three different purviews:
Firstly, state is the supreme, vibrant, powerful, legal and political organisation which determines the collective identity for an individual and a group of individuals. This concept of statehood has been developed over centuries and today it means an umbrella over heads of its citizens for protecting and securing their rights and building an economic, social, cultural and political safety net for them.
Secondly, state has commitment in respect of rights and freedoms of its citizens by virtue of the constitution, different statutes and customs.
Thirdly, state as representative of the citizens undertakes obligations of ensuring human rights of persons in the different international fora including UN bodies, by adopting, according, signing, ratifying, acceding many human rights declarations, conventions, treaties, covenants, protocols having different force and implications.
What happens if a state does not undertake any obligation to protect and promote human rights of any national and international legislation? Does that state have blank check to disregard and disrespect human rights within and outside its border? In fact, the responsibility of the state for the protection and promotion of human rights does not fall short of its undertaking. It is believed and accepted overwhelmingly and almost without any exception by absolute majority of the people of the world that the broader consensus among international community and reflection of present human civilisation are outlined in the present international human rights regime which is mostly guided by UN system.
The Charter of the United Nations-1945, The United Nations Declaration of Human Rights-1948, International Covenant on Civil and Political Rights (ICCPR)-1966 and International Covenant on Economic, Social and Cultural Rights (ICESCR)-1966 are together called International Bill of Human Rights. The rights incorporated in those documents are taken as basic or fundamental for human being and therefore are declared as fundamental human rights. The volume of international human rights law does not stop there, it addressed almost all vulnerabilities of human person and brought forth particular human rights regime in international law.
As a matter of fact, right to development which necessarily includes environmental aspect and which can be a broader interpretation of right to life, liberty, happiness and property generates a new set of rights which is popularly called third generation of human rights. Today international human rights law specifically focuses on children's rights, women's rights, rights of the labourers, rights of the migrants and refugees, rights of the minorities and the disadvantaged. It encompasses the whole gamut of human activities and applies to every place, region, religion, sect, caste, sex and group. In general, every state irrespective of its undertaking or refraining from undertaking any obligation arising out of those international human rights instruments is expected to observe and comply with their provisions.
If we go through the preamble of the Charter of United Nations we find that it lucidly expresses the commitment of the Members of the United Nations to carry out their obligations arising from the treaties and to restore their faith in fundamental human rights, in the dignity and worth of human person, in the equal rights of men and women. States which are still outside the United Nations shall also uphold those principles in their state and inter-state affairs. Article 2(6) of the Charter of the United Nations thus refers, “the organisation shall ensure that states which are not Members of the United Nations act in accordance with these principles....”
Question comes as to the safeguards of the human rights in international law. Of course, those international human rights instruments talk about the implementation mechanism: there are treaty based bodies which look after the implementation of the rights enshrined in the treaty, there are some international governmental organisations which spearhead the movement of particular human rights and are assigned to look after its implementation, ECOSOC and Human Rights Council of United Nations also have broader realm of authority and activity in observing the implementation of human rights. There are state reporting, shadow reporting, inter-state and individual complaint procedure for the protection and promotion of human rights.
Thus we find that states have legal responsibility to uphold and preserve human rights. This responsibility came to the surface by national, regional and international initiative and states are required to carry out this responsibility under that perspective and to the satisfaction of the international community. But if we look around the world, we get very miserable condition of human rights in many parts of it. War, aggression, undue interference in domestic affairs of the state, poverty, hunger, racial, religious and communal bias and non-compliance of the human rights provisions in governance are some of the root causes of violation of human rights.
State which is administered by elected or non-elected representatives of its people acts through different functionaries and agents. The violation of human rights caused by them in and outside the border of the state mainly in two ways: (1) through action and/or (2) through omission. Again this action and omission by the state can be of two types: (1) direct and/or (2) indirect. The persecution of minority and opposition group by the military government in Myanmar, the unjust intervention of USA and UK in Iraq and other parts of the world are perfect examples of states' direct and active participation in the violation of human rights. The US policies on Middle-East crisis, the dilly-dallying approach of Sudan government on Darfur crisis are the examples of states' omission of its duties and indirect participation in human rights violation.
Without answering the question whether the violation of human rights has taken place deliberately or unintentionally, states try to justify it showing reasons of state sovereignty, state security, internal matters, domestic jurisdiction, lack of economic and social strength, cultural differences, political instability etc. If a state does not observe and comply with the human rights provisions with excuse of those constraints and difficulties, what happens to that state? How it could be justified in international law? What are the alternatives in the international human rights law to take over that responsibility? Here is the main crisis where modern international law stands. In fact, it brings the concept of statehood under question. A state cannot be allowed disrespecting human rights under the veil of state sovereignty, domestic jurisdiction. That's why the concept of statehood has been redefined, changed and enhanced by the international human rights law.
Statehood which is once bestowed and endowed with the shield of absolute sovereignty has now been compromised with international participation in some domestic affairs, e.g. fighting against poverty, illiteracy, HIV/AIDS, combating with international terrorism and in other humanitarian grounds. Similarly, statehood has also been challenged by the thriving business sector which has given birth to many multinational enterprises, international corporate entities which are influencing the economy and also other policies of the state. These international corporate houses have been developing a sense of corporate responsibility for the protection and promotion of human rights. Often they use their investment as a tool of improving human rights situation of a particular state. As a result, the protection and promotion of human rights meaning the mainstreaming of human rights has now been considered as a fundamental requirement by the donor state for providing aid and assistance and for extending supportive hand in the diplomatic issues to the recipient state.
Similarly, the donor states are also under constant supervision by the international governmental and non-governmental organisations and any violation of human rights by them in and outside their border is always followed by strong criticism, embarrassment for them. Pursuant to above we can say, if a state from Africa, Asia and third world country does not show respect for human rights or violates human rights with impunity, at first, she becomes stigmatised as a pariah state by the international community and ultimately she ceases to be a contributor and participant in international affairs of the states. She loses his friends, development partners, membership from international organisations. Though it is not the same case for the developed countries, they are also under scrutiny by other states, international organisations and of course, by their own public.
What happens if a state is held liable for utter violation of human rights? Can a particular state, say for example USA, wage war against that state for unleashing freedom and liberty to the citizens of the latter? How the human rights situation of that state could be maintained? When and how that country shall be subject to international interference? What is the test of due, just and lawful international interference? These all are time bound questions under which international law is going through today. Every conscious human being is considering whether charging Afghanistan, Iraq, and Somalia in such a brutal fashion bypassing international community by USA could be justified anyway? Isn't it a violation of human rights?
In fact international intervention is always considered as a last resort for peace. It could only be justified when an imminent danger lurking over humanity forms the grounds of intervention. In such case international interference shall not be deemed to be the violation of right to self determination of the state. International interference can happen in two ways: (1) by using the pacific means of settlement, e.g. through negotiation, enquiry, mediation, conciliation, arbitration and use of good office; (2) by using of force, e.g. complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, severing of diplomatic relations and use of military power as a last resort.
One thing must be noted here that, the United Nations Security Council is the sole authority to decide on use of force in international law. United Nations Security Council must not apply it arbitrarily; its authority is qualified by the action to threat to peace, breach of peace, or act of aggression. Hence, it has been argued by many countries that human rights violations are not the purview of the Security Council unless they endangered regional and international peace and security. Again, without prior approval and arrangement of the Security Council, the use of military power against a state by any other state or states is a complete breach of international law, international norms and principles. Of course, it is tantamount to commit another offence of aggression, war and violation of human rights.
To conclude, we must say that the states are duty bound to protect and promote human rights. This duty of the state has not been imposed; state has chosen to be duty-bound to human rights as a semblance of its welfare aims and objectives. So every state is required to take legislative, judicial and administrative measures for the complete realisation of human rights. State must adopt human rights based approach in its every activity. We must keep it in our mind that realisation of human rights not only ensures better tomorrow but also guarantees brighter today. Effective realisation of human rights can only ensure harmonious development in national and international relations of state and mankind.
The writer is a legal researcher, currently working with a human rights NGO.
