Accommodating Human Rights Within International Law

On 10 December 1948, the United Nations ratified The Universal Declaration of Human Rights, making it known to the world that atrocities such as those witnessed during World War II would never again be tolerated. It called for this declaration to "be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories."[1] Nearly sixty years hence, this declaration remains a guiding light in international law towards the protection and promotion of human rights; however, in the post-war era, concerns have arisen as to whether international law can adequately accommodate human rights protections while at the same time maintaining the integrity of state sovereignty. This paper seeks to analyze how and why state sovereignty has not been impinged by human rights laws.

The promotion and protection of human rights is the responsibility of every state. Article 19 of the draft Articles on State Responsibility asserts as much: A serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid' is an 'international crime.' [2] States are thusly obliged to take whatever steps necessary to insure and protect the human rights of every person within their sovereign domain; however, should a state's efforts to curb internal human rights abuses prove insufficient, "humanitarian intervention" by other states or transnational organizations may be warranted.[3] Therein lies the greatest perceived challenge to state sovereignty: external interference in state internal affairs under the guise of "human rights protection." This sentiment is rather unwarranted, though, given a closer analysis of state sovereignty as a concept.

State sovereignty is not such an unencumbered absolute as to be above all external pressures, especially as it impacts human rights concerns. The concept of "fundamental human rights" is featured prominently in the Charter of the United Nations; consequently, every member state of the UN is obligated to recognize and protect these rights.[4] Likewise, there have been numerous regional and global conventions adopted to protect against human rights abuses such as slavery, apartheid, piracy, and genocide. "Many of these rules protecting human rights have consolidated into customary rules of international law, binding States whether they have ratified those Conventions or not."[5] State sovereignty is thus hemmed in by UN directive and international convention where human rights are concerned; however, these limitations do not impede state sovereign authority so much as reshape it with a more globally-conscious outlook.

In the post-war era, state sovereignty no longer bears the mantle of absolutism as a cover for crimes against humanity; modern states (and their actors) are held accountable for any government-sanctioned actions which violate human rights within their sovereign domains. This was witnessed for the first time at the Nuremburg Trials from 1945 to 1949 where Nazi war criminals and their participants were tried and convicted for crimes against humanity during the Holocaust. Indeed, Nuremberg was the first time the international community took a united stand against state-sanctioned human rights violations.[6] The Nuremberg Trials should not, however, be characterized as the death knell of state sovereignty just because they curtailed states' absolutism; rather, these trials merely set the precedent for holding states to a higher legal standard of accountability.

International human rights conventions and post-war tribunals aside, the UN Security Council - whose resolutions hold the weight of international law - has also played its part in increasing state accountability in the realm of human rights. Many situations involving systematic human rights violations - in the former Yugoslavia, Somalia, Liberia, Haiti, Rwanda, Timor-Leste, Sierra Leone and recently Sudan - have been qualified by the Security Council as threats to peace, thus opening legal prospects for intervention.[7] While, on the surface, such outside intervention would seem to undermine state sovereign authority, the aforementioned examples offer an exception to the rule. In instances where human rights have been abused (or breached outright) by the state, the state - having violated international law, i.e. the source of its sovereignty - forfeits its right to sovereign territorial integrity and becomes subject to legal prosecution (as well as possible military intervention) by the international community. States that do not violate international laws and conventions protecting human rights have nothing to fear by way of outside interference.

The UN Security Council is, however, not the only international body looking to safeguard human rights. There exist numerous other transnational IGOs and NGOs seeking to protect humanity from the abuses of state power. Such organizations are empowered under varying human rights conventions to take action against states that violate human rights. State sovereignty advocates may put their minds at ease, though, given the infrequency with which such organizations have invoked this right. The only two contemporary examples of note are the NATO led invasion of Kosovo in 1999 and the US coalition led invasion of Afghanistan in 2001. Each of these represented a unique circumstance.

In the case of Kosovo, the Serbian government had been systematically targeting ethnic Albanians in the province, resulting in the forced relocation of millions and the deaths of around 12,000. These activities, while not clearly a genocide, were most definitely a form of apartheid on the part of the Serbia government. NATO forces thusly invaded, leading an air campaign against Serbian military and infrastructural targets, in order to protect the rights of ethnic Albanian Kosovars and to restore order.[8] Their actions led to the overthrow of Slobodan Milosevic and his trial at The Hague for war crimes.

Meanwhile, in the case of Afghanistan, prompted by the September 11^th terrorist attacks on Washington DC and New York City, a US-led coalition invaded that country to remove the Taliban regime from power. During its seven-year reign, the Taliban systematically repressed civil, religious, and cultural rights, often with extreme prejudice. One striking example of this was their open massacre of members of the Hazara, a largely Shia religious group, in Mazar-i-Sharif and Bamayin in 1998. Worst of all was the Taliban's treatment of women. Reduced to the status of chattel, Afghani women were routinely silenced, forced out of employment and into arranged marriages, beaten for speaking out, gang raped for the crimes of male family members, and murdered publicly without investigation or prosecution of their (often known) killers. The Taliban's removal from power in 2001 - and the maintained US presence in Afghanistan since then - came in response to these gross human rights violations.[9]

The occasional outside intervention notwithstanding, by and large, state sovereignty remains secure. Even in the wake of the many human rights initiatives of the late 20^th century, states still exert a tremendous amount of sovereign authority and self-determination. "Human rights advocates typically see the state as the problem - which it often is. But the state is also the principal protector of human rights."[10] Given this position, though, states must recognize the necessity of the guidelines placed upon them by the international community. There is nothing unusual in the idea that sovereigns have international obligations over which they have little or no direct control. Today, in addition to international human rights norms, states, largely irrespective of their will, are bound by the norms of customary international law, obligations erga omnes, and jus cogens. So long as international obligations do not subordinate states to a higher authority - and they clearly do not in the case of the global human rights regime - they are completely compatible with full sovereignty.[11] Human rights protections do not exist to rein state sovereignty in; rather they serve to insure that the state's obligation as "protector" is met.

[1] "Universal Declaration of Human Rights," United Nations, http://www.un.org/Overview/rights.html (accessed 5 May 2007).

[2] Peter Malanczuk, Akehurst's Modern Introduction to International Law. 7^th Edition. (London, New York: Routledge, 1997), 220-221.

[3] Ibid.

[4] "Charter of the United Nations," United Nations, http://www.un.org/aboutun/charter/ (accessed 5 May 2007).

[5] Alain Pellet, "State sovereignty and the protection of fundamental human rights: an international law perspective," Pugwash Online: Conferences on Science and World Affairs, http://www.pugwash.org/reports/rc/pellet.htm (accessed 5 May 2007).

[6] Douglas O. Linder, "Famous World Trials: Nuremburg Trials, 1945-1949," University of Missouri - Kansas City, http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/nuremberg.htm (accessed 5 May 2007).

[7] Vesselin Popovski, "Sovereignty as [the] Duty to Protect Human Rights," UN Chronicle, http://www.un.org/Pubs/chronicle/2004/issue4/0404p16.html (accessed 5 May 2007).

[8] Barry Ryland-Holmes, "Waging Peace in Kosovo," University of North Carolina at Chapel Hill, http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_13/ryland_kosovo.html (accessed 5 May 2007).

[9] "The battle for human rights: In the shadow of the Taliban," The Independent, http://news.independent.co.uk/world/asia/article349914.ece (accessed 5 May 2007).

[10] Jack Donnelly, "State Sovereignty and Human Rights," University of Denver, http://www.du.edu/~jdonnell/papers/hrsov%20v4a.htm (accessed 5 May 2007).

[11] Ibid.