Human Rights and International Law (25): Rights Inflation

There has been a steady increase in the number of different human rights recognized in international treaties.A similar, though less outspoken growth took place on the national level. The founding document of modern human rights law, the Universal Declaration, only contained 30 rights. I’ve complained several times before about this “inflation” of rights. On the one hand, human rights serve the realization of certain universal human values, and if some of these values face new obstacles then new human rights may be necessary. For example, if the internet has now become indispensable for human communication and expression then a right to internet access should be recognized. Let’s not forget that human rights have always evolved.

On the other hand, a right should be something important. It’s exceptional by definition. Not all rules or aspirations ought to be labelled as human rights. A right is a particularly strong moral claim, giving rise to equally strong duties. A proliferation of duties makes it hard to fulfill duties, and a blurring of the lines between important and less important duties results in a loss of sense of urgency. And finally, rights cost money. The more rights we have, the less money we can spend on each.

More posts on this series are here.

Human Rights and International Law (23): The Dilemma of Treaty Ratification Rates

In the case of human rights treaties, we face a tough choice: should we aim at universal/near-universal acceptance and ratification, or should we instead limit ourselves to the goal of “real” or meaningful acceptance and ratification? The problem with human rights treaties is that ratification is almost costless. A country can ratify them even if it has no intention of respecting their provisions, because it knows that lack of respect will not result in any serious harm. The same is not true for other types of treaties: a country ratifying a military collaboration treaty, a fishery treaty etc. knows that non-respect of the treaty provisions can lead to harmful retaliation by other treaty signatories or fines imposed by some international institution.

The relative costlessness of human rights treaties means that most if not all countries will readily accept them. They can only gain: signaling support for human rights by way of treaty ratification can even reduce outside pressure for better rights protection. After all, a country that signals willingness to respect human rights should have more leeway than a country that openly and willingly violates those rights.

Hence, near-universal ratification rates are a natural outcome in the case of human rights treaties. Some argue that instead of pursuing the commonly accepted goal of near-universal ratification of human rights treaties, we should instead aim for “real” and meaningful acceptance; in other words, acceptance only by states that do intend to implement the treaties’ provisions. States that would sign the treaties simply to signal a positive attitude towards human rights and to relieve outside pressure should therefore be excluded from ratification.

Exclusion means raising the cost of ratification – for example by way of preconditions for acceptance incorporated into the treaties or by way of effective sanctions in case of non-respect. This in turn means that treaty ratification rates will be brought down.

All of this sounds reasonable at first sight, but it does create a dilemma. Treaty ratification, even if it is at first mere signaling by an authoritarian state that doesn’t have any intention of respecting the treaty, can have beneficial effects over time. By making “fake” or “shallow” ratification more difficult we would also destroy those beneficial effects. What kind of effects am I talking about? Well, for instance, a treaty can promote a human rights culture. When a state accepts a treaty, even if only for the purpose of international signaling, it also signals, inadvertently, to its own population: it signals that human rights are becoming universal moral norms. The state therefore can’t help but increasing the legitimacy and salience of human rights, and its oppressed population can use this fact: it can wield the language of human rights in a more effective way than before, both against the state and in order to rally support.

Hence, we may see an effect of treaty ratification going in two opposite directions: shallow ratification my reduce outside pressure against the ratifying state, but may also increase inside pressure.

So it’s not obvious what we should do. Should we aim at near-universal ratification, or at meaningful ratification? Both strategies have pros and cons. Near-universal ratification may reduce the meaning of human rights – if even the worst dictator can ratify a human rights treaty without any significant cost, then human rights will lose their appeal. We may even increase the number and severity of human rights violations because states that signal adherence to human rights will see a reduction of international pressure. On the other hand, making ratification more costly will reduce the number of ratifications, which in turn will reduce the moral stature of human rights and will make it more difficult to argue that human rights are universal.

I’m not ashamed to say that I can’t see an easy way out.

More posts on this series are here.

Human Rights and International Law (22): The Usefulness of Retroactive Laws

George Steiner, in his magnificent novel about the fate of an escaped Adolf Hitler in post-war South America, describes rights as an ontological totality, or, in other words, a reality that encompasses the whole world and all phenomena in it. Rights are not just a set of local commands, only valid in some corner of the world or at some moment in history, or only applicable to a certain class of people. It would be unacceptable to have one part of reality – either a part of the world or a part of time – that is free from the moral power of rights.

The Israeli secret agents who, in Steiner’s book, captured the old Hitler in the forests of South America rightly believed that he could be tried by their makeshift jungle court and that their present-day norms dealing with genocide and persecution could be used to judge him, even though these norms did not exist at the time when Hitler committed his crimes or in the places where he committed them.

Human rights are therefore an exception to the otherwise very sensible rule that laws should not be applied retroactively or “ex post facto”. Certain actions that take place in a certain country at a certain moment in time, and that are not illegal in the context of the law as it is valid in the country and at the time, may afterwards – after the facts – be judged as violations of human rights, even if human rights were not part of positive law at the time. Otherwise, a tyrannical legislator such as Hitler may make it forever impossible to judge his deeds of oppression and to punish him, even after he and his regime are defeated. We shouldn’t be willing to accept an absolute definition of the prohibition on retroactive laws that leads to impunity. If violations of human rights can only be punished according to the laws that are in force in the country in which the violations occur, and that are in force at the moment that they occur, then a bit of creative legislation will lead to total freedom of action for the most brutal dictators. And no change of regime or military defeat will ever harm them. They will have a life-long insurance against justice.

However, the prohibition on retroactive laws is an important achievement, and is even part of the internationally accepted corpus of human rights. See for example article 15 of the International Covenant on Civil and Political Rights:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.

The fact that human rights laws are an exception to the general rule is justifiable on two grounds:

  • First, it would be unreasonable to require that the system of human rights contain the seeds of its own destruction. Requiring the system to incorporate an absolute prohibition on retroactive laws, one that also makes retroactive human rights laws impossible, would mean introducing one rule in the system that can undo all other human rights rules. The absolute rule on retroactive laws would allow malevolent legislators to neutralize all other human rights rules in the system.
  • Second, the main rationale for the rule on retroactive laws is the fact that we must be able to know in advance whether our actions are or are not permitted by the law. Otherwise we are unable to plan our actions in a manner that is appropriate for law-abiding citizens and we run the risk of inadvertently violating the law. A law that is unknown to citizens is plainly absurd, and retroactive laws are by definition unknown before they are introduced. If laws are enacted that punish actions after they have occurred, then we risk being harmed by the unknown penal consequences of our actions, actions that we believe are legal. However, this rationale is absent in the case of human rights. Even if human rights are not part of existing law, most people will not inadvertently violate human rights. Human rights, even if they are not part of the law, are known to most citizens, and those who violate them know that even if their law allows them to do so, they can one day be held to account. Punishing someone on the basis of human rights that were not part of the law when the punishable act was committed, is clearly not the same thing as punishing someone for driving in a pedestrian zone when this zone was accessible for cars at the moment of the “infraction”.

Rights violations must always be punishable, even if the law that makes them punishable only comes into force after the violations have occurred, for example after the overthrow of a dictatorship or after the military defeat of the violators. All other acts that do not imply a violation of human rights, can only be punishable if they are a crime according to the law at the moment that these acts are committed. Generally, one cannot punish someone for an act that is not a crime and only becomes a crime afterwards, because otherwise this person is unable to know whether his act is legal or illegal and is unable to plan his actions in a way that fits a law-abiding citizen.

The exception to the general rule – this general rule being itself a particular case of the even more general rule of “nullum crimen sine lege“, no crime without a law – was introduced by the Nuremberg Tribunal.

[C]rimes against humanity were made punishable even if perpetrated in accordance with domestic laws … In so doing, it [the tribunal] indubitably applied ex post facto law; in other words it applied international law retroactively”. A. Cassese, International Law in a Divided World, p. 291-292.

[C]rimes against humanity … were defined in the Tribunal’s Charter as follows: “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”. In some respects, crimes against humanity are wider than war crimes; they can be committed before a war as well as during a war, and they can be directed against “any civilian population”, including the wrongdoing state’s own population. The prohibition of “crimes against humanity” thus constituted an exception to the old rule that a state was entitled to treat its nationals as it pleased; and it is fairly clear that this prohibition was not accepted as part of international law before 1945″. M. Akehurst, A Modern Introduction to International Law, p. 278-279.

Why do I discuss all this? The obvious temporal aspect of retroactive laws can have spatial consequences. If we are not bound by the rule on retroactive laws where human rights are concerned – which is, I admit, a somewhat stretched interpretation of the Nuremberg exception that only mentions some types of rights violation – then we can do as if human rights are law and we can always punish rights violations, even if these violations were not illegal at the moment that they were committed. We can apply this principle in a spatial dimension rather than a temporal dimension. If we can act as if human rights were law in a previous period of history in which they evidently were not law, then we can also act as if they are law in another place in the world, a place in which they are not yet part of the local law.

This way we can elude the perpetual discussions about the application of international law, about the force of human rights treaties in domestic law, about the role of reservations, about the priority or superiority of international law, about the extent to which some or all human rights are part of international customary law, about whether human rights are part of ius cogens etc. For me, this is no fundamental modification of the Nuremberg-principle, but it has far-reaching consequences. And it is not as farfetched as it may seem at first glance. Most people will agree that it would be wrong to judge someone solely by the laws of his country. Laws, after all, can be incomplete or even immoral.

Human Rights and International Law (20): Ratifying the Convention Against Torture With the Express Purpose of Torturing Anyway

There’s an interesting paper here arguing

that torturing regimes may deliberately sign the Convention Against Torture intending to violate it, in order to signal to domestic opponents that they are so determined to hold on to power they will torture them in spite of the cost they incur for treaty violations. … “Messrs Hollyer and Rosendorff believe the intent [of signing the treaty] is to show how dedicated the regime is to maintaining power, how much it will sacrifice. But there is another possible signal: the regime shows its opponents that it knows international pressure cannot disturb its grip on power in the slightest”. (source)

[A] regime that tortures its opponents and refuses to sign the Convention Against Torture shows that it fears international opprobrium. A regime that tortures its opponents and blithely signs the Convention Against Torture anyway shows that it fears nothing. (source)

This is the proper occasion to link back to an older post of mine on the difference between normative universality and real universality.

What Are Human Rights? (20): Universal Rights

Legally and morally, human rights are universal norms and rules. Almost all countries in the world have accepted international treaties that translate human rights into law, or have accepted membership of international institutions which proclaim to respect human rights or work towards the realization of human rights (such as the UN). Moreover, most if not all national constitutions proclaim human rights to be part of the country’s highest law. Even North-Korea recently changed its constitution in this sense.

The example of North-Korea makes it obvious that legal universality isn’t the same thing as universality tout court. There are in fact three types of universality – legal, moral and factual universality: universal acceptance of legal rules, universal acceptance of moral rules, and universal respect for legal/moral rules. Ultimately, it’s the last one that counts, of course. These three types don’t require each other, but the last one obviously benefits from the presence of the first two:

  • Legal universality. Legal consensus doesn’t require moral or factual universality. Countries can adopt legal rules for other reasons than moral conviction, and legal rules are – by definition I would say, otherwise we wouldn’t need any legal rules – regularly violated.
  • Moral universality: there’s moral universality when human rights are part of the “morality of the world” (or Weltethos), or – in other words – are accepted as peremptory moral rules by all of the world’s cultures, nations, subcultures, religions etc. This doesn’t require legal universality. You can have moral consensus and still have a rogue dictator somewhere who has refused to sign a treaty. Nor does it require factual universality, again because you don’t need a rule – legal or moral – for something that is a fact.
  • Factual universality: human rights are not just norms but facts; there are no human rights violations. Again, this doesn’t require legal or moral universality, since actual respect for human rights may have other causes than legal or moral pressure. However, it’s fair to say that without legal and  – especially – moral universality, factual universality is highly unlikely (although many would say that it’s utopian in any case).

Notwithstanding the prominence of human rights talk in almost all domains of life and all corners of the world, there is no moral universality. There are certain ideologies and schools of thought (yes, there’s a difference) that argue against the universal value of human rights. Either they argue against human rights in general, or – more commonly – they argue against certain elements of the system of human rights: for instance, they may reject certain types of human rights (e.g. economic rights), or they may reject the “absoluteness” of human rights and accept that certain human rights can be bracketed in certain circumstances when higher values are in danger (e.g. the use of torture in emergencies). Examples of arguments against the universality of the entire system of human rights can be found in the theory called “cultural relativism“, or in the view that economic development has priority over human rights.

Human Rights and International Law (16): In Defense of Universal Jurisdiction

Universal jurisdiction, according to Wikipedia, is:

a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. (source)

Universal jurisdiction departs from the standard principle that there should be some kind of connection between an act and the state asserting jurisdiction over it. In other words, the normal rule is that states exercise justice in relation to crimes committed on their territory or crimes committed by their nationals abroad. Indeed, this departure is the main criticism of universal jurisdiction: by allowing a state to prosecute individuals who are not its citizens, and who have committed crimes in other states, against people who are citizens of other states, we in fact allow this state to violate the right to self-determination of other states.

However, universal jurisdiction is nothing new, and most countries accept some kinds of universal jurisdiction. For example, few now oppose the right of Israel to judge Adolph Eichmann. The discussion, therefore, centers on the proper extent of universal jurisdiction. Human rights activists claim that states should be able to exercise universal jurisdiction in cases of genocide, crimes against humanity, torture, war crimes and slavery.

The reason behind this list is also the main justification of universal jurisdiction. These crimes affect all of us, the whole of humanity, and not just the immediate victims. Those who commit these offenses are hostis humani generis, enemies of humanity. And this has to be taken literally: these crimes are attacks on humanity, not just on individual human beings. The torturer dehumanizes his victim, but also himself. And he infects the society in which he operates. A society that allows torturers in its midst, can no longer be called a society. The same can be said of genocide and the other crimes in the list.

Universal jurisdiction is the act of reclaiming humanity. It is a statement by different parts of the world community, claiming that humanity does not accept such crimes. It is, therefore, an expression of humanity against those who attack humanity. And it’s a powerful expression of humanity precisely because it emerges from different parts of humanity, different countries and nations which all have an interest in the preservation of humanity.

I can imagine that some would object to all of this and would insist that crimes are committed against individuals, and not against an abstract entity such as “humanity”. But then I would invite those people to explain how they differentiate between a single anti-semitic murder and the holocaust. Or between a single case of an individual torturing another individual, and a case of state organized torture. I do believe that the concept of “crimes against humanity” makes sense, and that universal jurisdiction is a good way to respond to those crimes, maybe not from a purely legal point of view (universal jurisdiction isn’t the most effective jurisdiction) but from a human point of view.

Human Rights and International Law (15): Human Rights and Business, and the Problem of Legally Enforceable “Corporate Social Responsibility”

Something more on the impact of businesses or companies on human rights.

What is “Corporate Social Responsibility”?

Companies, like any other human entity with the power to act and influence people’s lives, should respect human rights and should do all that is possible in order to avoid that its activities somehow violate human rights. This is part of “corporate social responsibility” (CSR). The concept of CSR describes the responsibilities of corporations or companies to the wider social environment in which they operate. These responsibilities go beyond the interests or needs of shareholders, workers, employees and customers, and include care for the natural environment and for the human rights of people who are affected in some way by the activities of companies.

Potentially, CSR is of a global nature, because a company can affect the environment of places far away, and the human rights of people in distant countries. Transnational companies (TNCs) especially may have such a global impact, but other kinds of companies as well. For example, an arms producer doesn’t have to be a TNC in order to be complicit in rights violations in different parts of the world.

How can companies violate human rights?

So, human rights are part of corporate social responsibility. The activities of companies can violate human rights in various ways. Just a few quick examples:

  • Workers and employees can be forced to accept labor conditions which violate the rights described in articles 23 and 24 of the Universal Declaration. These labor conditions can even amount to slavery (violating article 4) or child labor (violating article 26) and should include the labor conditions in the supply chain and in companies that work as subcontractors (including outsourcing).
  • A company’s products and services can be harmful to the health of its customers, violating articles 3 and 25.
  • Apart from directly violating human rights, a company can also be complicit in violations committed by others. It can, for example, sell arms and other commodities to authoritarian and dictatorial governments, or governments engaged in an unjust war.
  • Its economic activity in a country can be beneficial to a dictatorial government and can prop up this government (e.g. buying diamonds from a government exploiting its people).
  • Etc.

Making companies responsible for human rights violations?

Many companies have already adopted a code of conduct, voluntarily or forced by public opinion or consumer action (see here for an example). But others haven’t. And there are still numerous companies actively engaging in activities which they know contribute to rights violations. So the question has been raised if companies should be forced to respect human rights. Or, in other words, if corporate social responsibility in general and corporate responsibility for human rights in particular, should be made legally enforceable. And, if so, how this should be done.

Of course, many laws, including human rights laws, already apply to companies and can be used to force companies to respect human rights (for example laws on labor standards, safety, non-discrimination etc.). However, perhaps it would be better to say that many such laws apply to individuals within companies rather than to companies themselves. And that’s ok, because most of the time, human rights are violated by individuals. Someone, somewhere in a companies always decides to sell arms to a warlord, to invest in a dicatorship, to impose grossly inadequate labor conditions etc. So it’s possible to find someone who’s legally responsible. (The ICC, for example, can prosecute individuals acting in their capacities as directors, employees or agents of corporations).

Some problems and solutions

However, there are two problems with this kind of reasoning. One problem is that enforcement of laws is difficult in the case of TNCs or other companies with activities abroad. A company may have its headquarters in one country, which, as it happens, is a country with good laws and good enforcement mechanism. But it’s activities generate rights violations elsewhere in the world, in countries that cannot do much about it, either because they are afraid to scare away the TNCs, or because the governments there are complicit in the human rights violations. So there’s a problem of enforcement.

And the second problem: it may not be so easy to determine exactly which individual(s) within a company are responsible for the harmful activities of the company.

A few solutions to these two problems have been proposed.

  • The first is to use international law and international enforcement mechanisms (in the style of the ICC). I have no problem with that.
  • A second potentially useful solution is to include extra-territoriality in national legislation. Companies can then be prosecuted by the country in which they have their headquarters, and under the law of this country, even if the violations have occured elsewhere. (One can even imagine some kind of universal jurisdiction).
  • A third possible solution is more troublesome: make companies separate entities punishable by (international) law, like individuals and states already are. I see some problems with this one. It would allow individual perpetrators to hide behind their companies and escape responsibility. And it would mean, in some case, that people are punished for the misbehavior of their company. For example, if a company is held liable for rights violations, and forced to pay damages which lead to bankrupcy, the company’s employees would suffer, even though they carry no responsibility for the actions of the company (or for the actions of those in the company making the decisions). That would be collective punishment, which is a morally odious concept.

The Causes of Human Rights Violations (13): Rights Suffering Under the Law, The Problem of Legal Human Rights Violations

This post is about the law violating human rights. I understand that this is only one of many ways in which rights can be violated, and certainly not the most important one. Genocide, poverty, torture, war etc. are all major human rights violations, but only rarely if ever do they occur because a law instructs people to kill, maim or impoverish their fellow human beings. On the contrary, many human rights violations result from breaking the law, and the law has often been the last refuge for human rights.

So we have two different types of rights violations, illegal and legal violations.

1. Illegal violations

Illegal violations are acts that violate human rights and at the same time break laws that make these violations illegal. This type of rights violation always implies some kind of inefficiency in the national justice systems. These justice systems are supposed to prosecute illegal rights violations, but often fail to do so, for two possible reasons: inability or unwillingness. They may be grossly inefficient, or they may be corrupt and complicit with the rights violators. So illegal violations may be divided into two subtypes:

1.1. Illegal violations caused by government incompetence

These violations occur because of the government’s inability to stop them. An example would be robbery or murder.

1.2. Illegal violations caused by government complicity

These occur because of the governments unwillingness to stop them. The judicial and police systems are covering for the rights violators. An example could be torture in Guantanamo.

2. Legal violations

Legal violations, on the other hand, are rights violations that are condoned or imposed by the law and by the justice system. This type as well can be further divided into two subtypes:

2.1. Violations that are imposed by the law

Some examples: capital punishment, jim crow, some aspects of Islamic law, blasphemy laws, lèse majesté laws, homosexuality laws…

2.2. Violations that are not punished by the law

These are acts which are not illegal because the law remains silent on them, but which violate human rights. This type can be further divided. Violations are not punished by the law

  • either because it is believed that these violations should not be considered a crime (the contrary act is then often believed to be a crime) (case 2.2.1.)
  • or because it is difficult to determine the party responsible for the violations (case 2.2.2.).

Some examples of case 2.2.1.: in some countries there is no legal concept known as marital rape; other countries do not outlaw abortion (for those who agree that abortion is a human rights violation). Some examples of case 2.2.2.: poverty, famine…

One caveat, however. “Legal” in this setting means “legal according to national law”. One could justifiably claim that there is no such thing as legal human rights violations since international law makes all violations illegal and renders national laws condoning or imposing violations, null and void. However, this is theory. In practice, national legal systems continue to impose and enforce, sometimes quite effectively, laws which either condone or impose violations.

Human Rights and International Law (11): International Law Between Protecting and Obstructing Human Rights; The Rules on Immunity and Intervention

When human rights are violated by people who represent a state – such as a head of state who orders rights violations or carries them out himself – it often happens that the national rights protection mechanisms, such as the courts and the police, do not assume their responsibility to protect. The individuals who have committed rights violations are not prosecuted by their own states, because they represent the state. They have control over the agencies that normally (should) prosecute rights violations.

This is de facto immunity. And this can extend even to the period after they have left power. Maybe they managed to make some kind of amnesty deal with the new democracy, or they just use their influence and their friends in order to pervert the justice system and the division of powers and to escape punishment.

But often these people – even when they have left power, such as former heads of state – enjoy not only de facto but also de juri immunity in national or even international law. Whatever the merits of the rules on immunity in international law, this can never be justified in cases involving rights violations. The theory of immunity says that heads of state or leading functionaries are not responsible for their actions. They represent their states and all their actions are “acts of state,” and therefore the state is responsible for these acts. Lower ranking officials are not responsible either because they can always hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible.

Only by transcending the principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment). This has been the main achievement of the Nuremberg Tribunal. The Charter of the Tribunal clearly states that individuals have international obligations that go beyond their national obligations or commands. Since Nuremberg, it is no longer possible to claim that international law only deals with “acts of state” and that individuals cannot be punished for the acts they commit as representatives of their state or as executives carrying out orders. Nuremberg has given individuals criminal responsibility in international law.

Citizens are no longer at the mercy of powerful individuals within their states. It has become more difficult for individuals to shed their responsibility and to hide behind their functions, immunities, privileges, or hierarchy. Individuals can be made internationally accountable for their actions if these actions are crimes under international law. The fact that national law is not applied, is silent in the matter, or even explicitly approves or imposes the actions does not guarantee an escape from justice.

One of the characteristics of international law is its priority over national law. Human rights especially, as far as they have become part of international law, have priority over national law. Violations of rights that are not punished by national law or that are explicitly ordered by national law can be crimes under international law, in which case international law has priority. Individuals or states can be sentenced and condemned by organs representative of the international community.

But this immediately raises the legal problem of international intervention, as does the right of international institutions to hear complaints by individuals whose rights are violated and who can’t find redress in their national courts, and the right of international institutions to monitor the human rights situation inside individual states. Intervention is forbidden under international law, and this prohibition is a part of international law which, like the rule on immunity, obstructs human rights. The Charter of the UN, although it mentions human rights as one of its aims, specifically prohibits intervention in so-called internal affairs of member states, in the intra-national relationships between states and their citizens (this is the infamous article 2, paragraph 7:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.

This article is often used against attempts to intervene for the sake of human rights. Even merely verbal criticism of rights violations is often supposed to be the type of “intervention” prohibited by article 2, paragraph 7. The “matters” referred to in the article are never precisely defined, so that every state is free to define them. Hence, intervention becomes practically impossible.

However, some acts clearly do not belong to these “matters”: violations of international law; attacks on international peace; and, according to some, systematic and extreme violations of human rights if these violations threaten international peace. Chapter VII of the Charter allows intervention in these cases following a decision by the Security Council, and article 2 explicitly provides an exception for this kind of intervention.

This is important for human rights, and today’s consensus on the definition of “matters” may even include grave violations that do not result in threats to peace. Some “internal matters,” which at first sight can benefit from article 2, paragraph 7, are clearly violations of other provisions of the Charter, e.g., structural violations of human rights such as apartheid (in particular article 55). In that case, some believe that the UN may take measures under Chapter VII (sanctions or even military intervention). Chapter VII can override article 2, paragraph 7, and is perhaps an instrument to enforce certain human rights in certain cases.

Self-determination and sovereignty are very important, but it is obvious that these concepts can easily be used to counter criticism of rights violations. The protection of states requires the doctrine of non-intervention and of the equality of sovereign states. Unfortunately, what is necessary for the protection of states is often harmful to human rights.

Although the views today are perhaps a bit more shaded, it is tradition to assume that the only legitimate enforcement actions of the UN agencies (so-called “collective measures” and “preventive or enforcement action” under Chapter VII) are actions directed at the protection or enforcement of international peace. This is important enough also for human rights, but it only includes actions necessary to enforce respect for human rights when those human rights are directly violated as a consequence of the absence of peace or when their violation may lead to breaches of peace.

Human Rights and International Law (10): Why Do Human Rights Need International Law?

Human rights law has globalized during the last decades. And it has done so in two ways:

  • human rights have become part of most national constitutions
  • and have been enshrined in widely accepted international treaties.

In this post, I will look at the relative usefulness of these two movements. The conclusion will be that ideally human rights protection should be a national matter, but in an imperfect world, with failing national protection, international human rights protection is a necessary alternative for human rights protection.

Originally an invention of the French and American revolutions in the eighteenth century, human rights have now become part of a global legal consensus. Although there are many violations of human rights and some philosophical, ideological, cultural, or religious objections to some human rights, the fact is that these rights are part of internationally recognized legal documents (mostly treaties) accepted by the overwhelming majorities of countries. At the same time, they are included in nearly all municipal legal systems (mostly in constitutions). Human rights are the law of mankind, even though they are widely violated. They have been enshrined in the law because they need the law to be adequately protected.

Why do human rights need international law? Isn’t national law enough? These questions may seem strange and perhaps even somewhat useless. Is not the immense effort that has been invested in international human rights law during the last fifty or sixty years proof enough of its utility? I’m not convinced because there is a strong argument in favor of the assertion that the protection of human rights should be first and foremost a matter of national law and national judiciaries.

International law is far removed from ordinary citizens, and if they want to complain about human rights violations they will most likely want to use their national law and their national judiciary. Their own judiciary is closer and hence more accessible and more able to understand and punish. The first responsibility of the international community, therefore, is not regulation or the administration of justice, but assisting countries to reform their national laws and judiciaries in order to make them more compatible with human rights.

However, what if this fails? National law and national judiciaries do not always effectively protect human rights, either because of the absence of adequate national laws or because of the ineffective protection and enforcement of national laws by judiciaries and/or executive powers. And outside assistance and pressure do not always succeed in solving this kind of problem. So, if there is international law protecting human rights, this law can step in when national law fails. Local judges can invoke international law at the expense of inadequate national law. And if not the national law but the national judges are inadequate, international human rights law also provides global mechanisms and institutions allowing citizens to complain about their state’s conduct.

Imagine that such institutions would not exist. That would mean that citizens could only complain to a national organ, an organ of their own state, an organ which may be ineffective, corrupt, incompetent, or perhaps even implicated in the rights violation. And even if these national organs are effective, they are quite useless if there are no international rules for them to apply in place of inadequate national ones. So there is a strong case in favor of international human rights law combined with international monitoring of national human rights situations, and with international complaints institutions to which citizens of a country can turn in order to denounce rights violations by their country.

Ideally, international human rights law and monitoring are unnecessary, and even undesirable, because human rights protection is best carried out on a national level by a state that can correct itself. But this implies the existence of an ideal state with a well-functioning national division of powers, a national “trias politica” in which one power can control and correct the mistakes (e.g., rights violations) of another. As long as not all states are ideal states some national judiciaries need the assistance of international law when their national human rights laws are insufficient or nonexistent, and some citizens need the assistance of international monitoring and enforcement institutions when their national division of powers is insufficient or nonexistent.

As long as we are some distance from Utopia, international law and international monitoring and enforcement institutions are necessary for the universal protection of human rights and should complement national rules and institutions. Countries should be encouraged or, if necessary, pressured to accept international human rights treaties so that citizens can invoke international laws in the absence of national ones. International human rights law traditionally includes the right to monitor and to complain about human rights violations internationally, and this means, in theory at least, that individuals or groups do not have to trust their own state to correct itself and to punish its own crimes. They can involve international monitoring and complaints institutions to further their cause when their national judges are incompetent, unwilling, or unable to implement national rules. Countries should therefore also be encouraged to accept the authority of such treaty institutions wherever this acceptance is voluntary.

Furthermore, the existence of international law makes it easier to reform national law. An international system of law makes it impossible for states to take the law into their own hands and to decide autonomously what is and what is not part of their law. International law is traditionally superior to national law and it can force national law to be compatible with it. It is therefore an additional means to ensure that human rights are part of the law everywhere. By improving national law, international law makes national protection mechanisms more effective. And when it is not the national law but the national protection mechanism and institutions which are defective, international law replaces these mechanisms with global ones, or at least tries to do so (the best global complaints and enforcement procedures are still less effective than the best national judiciaries).

The individual right to denounce violations before an international judicial or quasi-judicial institution gradually took root after World War II. Today, the treatment of citizens by their state is no longer the exclusive competence of the state in question. The days are gone when states could treat their citizens as they liked. Individuals now have a right to speak in the international community and they are no longer confined to national law. They have international law to help them and international stages to voice their protest. International organizations in turn have a right to poke their nose into national affairs and in some cases even to enforce respect for human rights.

This means that citizens are no longer at the mercy of their states and that they can look for outside help if their state does not respect their rights, does not control and correct itself, does not provide mechanisms to enforce their rights (such as laws and the division of powers), or does not make sure that these mechanisms function adequately in all cases.

Most violations of human rights are the consequence of state actions or of actions by representatives of the state. Unless there is a highly effective division of powers, it is unlikely that a state will prosecute itself or its representatives, and it is necessary to have international protection. But national protection within a highly effective system of division of powers must be the first choice. Ideally, national protection is close to the people, easily accessible, legitimate, acceptable, and knowledgeable of local circumstances. It is also close to the perpetrators, which is why effective punishment is more likely than in the case of protection by another country or by an international institution, which may even fail to see the perpetrators, let alone punish them.

National protection is the best option, but also the most difficult one. The perpetrator is often the state or its representatives, which is why national protection can only function within a highly effective system of division of powers. Unfortunately, but not accidentally, most of the more serious violations of rights take place in those states that do not have such a system. National protection can only protect us against relatively minor violations because it can only function in a country with a tradition of separated powers, rule of law, etc.; in a country, in other words, that is unlikely to suffer serious violations of human rights. But still, it is a model that should be used as a universal ideal, even or especially in those countries where it is as yet far from reality. In the meantime, international jurisdiction takes the place of the ineffective national jurisdiction.

Human Rights and International Law (6): International Human Rights Law and Its National Effects

In the theory of international law one can find the terms monism and dualism. These are used to describe two different theories of the relationship between international law and national law.

1. Monism

Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal.[1] In states with a monist tradition, international law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules. Monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution. From a human rights point of view, for example, this has some advantages. Suppose a country has accepted a human rights treaty – the International Covenant on Civil and Political Rights for instance – but some of its national laws limit the freedom of the press. A citizen of that country, who is being prosecuted by his state for violating this national law, can invoke the human rights treaty in a national courtroom and can ask the judge to apply this treaty and to decide that the national law is invalid. He or she does not have to wait for national law that translates international law. His or her government can, after all, be negligent or even unwilling to translate. The treaty was perhaps only accepted for political reasons, in order to please donor-countries for example.

“So when someone in Holland feels his human rights are being violated he can go to a Dutch judge and the judge must apply the law of the Convention. He must apply international law even if it is not in conformity with Dutch law”.[2]

The American constitution of 1787 provides a similar rule:

“the treaties which shall be made under the authority of the United States shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”.[3]

2. Dualism

Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.

“International law as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations”.[4]

The supremacy of international law is a rule in dualist systems as it is in monist systems. If international law is not directly applicable, as is the case in dualist systems, then it must be translated into national law, and existing national law that contradicts international law must be “translated away”. It must be modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.[5]

3. Examples

In some countries, such as the U.K. for instance, the dualist view is predominant. International law is only part of British national law once it is accepted in national law. A treaty

“has no effect in municipal law until an Act of Parliament is passed to give effect to it. In other countries this distinction tends to be blurred. In the vast majority of democratic countries outside the Commonwealth, the legislature, or part of the legislature, participates in the process of ratification, so that ratification becomes a legislative act, and the treaty becomes effective in international law and in municipal law simultaneously. For instance, the Constitution of the United States provides that the President ‘shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur’. Treaties ratified in accordance with the Constitution automatically become part of the municipal law of the U.S.”[6]

4. A matter of national legal tradition

International law does not determine which point of view is to be preferred, monism or dualism. Every state decides for itself, according to its legal traditions. International law only requires that its rules are respected, and states are free to decide on the manner in which they want to respect these rules and make them binding on its citizens and agencies.

“[T]he transformation of international norms into domestic law is not necessary from the point of view of international law – the necessity of transformation is a question of national, not of international law”.[7]

Both a monist state and a dualist state can comply with international law. All one can say is that a monist state is less at risk of violating international rules, because its judges can apply international law directly.[8] Negligence or unwillingness to translate international law, or delays of translation, or misinterpretation of international law in national law can only pose a problem in dualist states. States are free to choose the way in which they want to respect international law, but they are always accountable if they fail to adapt their national legal system in a way that they can respect international law. Either they adopt a constitution that implements a monist system so that international law can be applied directly and without transformation, or they do not. But then they have to translate all international law in national law. In a monist state, one relies only on the judges and not on the legislators, but judges can also be negligent and they can also make mistakes. If a judge in a monist states makes mistakes when applying international law, then the country violates international law just as much as a dualist country that, for one reason or another, does not allow its judges to apply international law directly and fails to translate or fails to translate correctly and effectively.[9] One reason for preferring dualism is precisely the fear that national judges are not familiar with international law – a highly complex field of law – and hence are liable to make mistakes.

5. The problem of “lex posterior”

In dualist systems, international law must be translated into national law, and existing national law that contradicts international law must be “translated away”. It must be modified or eliminated in order to conform to international law. However, the need for translation in dualist system causes a problem with regard to national laws voted after the act of translation. In a monist system, a national law that is voted after an international law has been accepted and that contradicts the international law, becomes automatically null and void at the moment it is voted. The international rule continues to prevail. In a dualist system, however, the original international law has been translated into national law – if all went well – but this national law can then be overridden by another national law on the principle of “lex posterior derogat legi priori”, the later law replaces the earlier one. This means that the country – willingly or unwillingly – violates international law.[10] A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.

References

1. Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994, p. 82.
2. G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.
3. in A. Cassese, op. cit., p. 19.
4. James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins, London, p. 45.
5. A. Cassese, op. cit., p. 15.
6. M. Akehurst, op. cit., p. 45.
7. A. Cassese, op. cit., p. 21-22.
8. P. Kooijmans, op. cit., p. 83.
9. ibidem, p. 83.
10. ibidem, p. 84.