Problems in the International Human Rights Regime - Essay Example

? Why did an international human rights regime develop? What problems exist with regard to the international human rights regime Introduction Theprotection of human rights is considered as one of the most critical missions of governments worldwide. Still, the policies developed by governments in regard to human rights are often proved ineffective. In the context of the international community a similar challenge has appeared. The establishment of an international human rights regime aimed to increase the effectiveness of laws focusing on the protection of human rights. However, the specific regime has to face a series of problems, most of which are too complicated. These problems are critically presented below. The reasons for the creation of an international human rights regime are also explained using examples, as appropriate. It is proved that the introduction of such regime has been unavoidable for controlling critical issues related to human rights internationally. The lack of effective mechanisms for monitoring the performance of the relevant laws and for identifying risks early seems to be the key problem that the international human rights regime has to resolve. In the long term, the survival of the international human rights regime would be depended on its ability to convince governments for the necessity of the alignment of national human rights laws with the international regulations on human rights. 2. International human rights regime 2.1 Human rights as addressed through the international human rights regime – most critical Conventions Human rights can be characterized as ‘inherent rights of human beings’ (Charvet and Kaczynska-Nay 2008, p.4), meaning that ‘all individuals should enjoy these rights by virtue of their nature and dignity as human beings’ (Charvet and Kaczynska-Nay 2008, p.4). The specific characteristic of human rights can be identified in the ‘United Nations Universal Declaration of Human Rights of 1948’ (Charvet and Kaczynska-Nay 2008, p.4); the above document has highlighted the value of human rights as the fundamental rights of every human being. In addition, it is because of the above document that the need for the introduction of international laws for protecting human rights has been made clear. Human rights can vary depending on the part of human life to which they refer. For example, the right of ‘equal liberty in regard to religion and belief’ (Charvet and Kaczynska-Nay 2008, p.11) denotes the right of each individual to develop his own beliefs, no matter the beliefs of other people in his environment (Charvet and Kaczynska-Nay 2008). Economic liberty is another, widely known, human right. The specific human right secures the right of each individual to acquire property and to develop his economic status as he wishes (Charvet and Kaczynska-Nay 2008). Both the liberties presented above, i.e. the equal liberty and the economic liberty, can be regarded as derived from the right of individuality (Charvet and Kaczynska-Nay 2008); the above right emphasizes on the freedom of individuals ‘to govern their life as they like’ (Charvet and Kaczynska-Nay 2008, p.13). Individuality, as a human characteristic, denotes the uniqueness of each person, in terms of physical and behavioural characteristics (Charvet and Kaczynska-Nay 2008). In the context of international law human rights are primarily protected through the Conventions; only when there is no Convention applicable in a particular case, i.e. a dispute related to human rights, then regulators can seek for assistance ‘in the rules of the customary international law’ (Fitzmaurice and Merkouris 2012, p.19). Apart from the UN Universal Declaration on Human Rights, the protection of international human rights can be also secured using the European Convention of Human Rights, which was signed in 1950 by the founding members of European Union (Mowbray 2007). The above Convention referred to a series of rights that were considered as vital for all individuals; for example: ‘the right to life, the prohibition of torture, the right to security, the right to private life, the right for a fair trial, the right to education and so on’ (Mowbray 2007, p.7). The European Convention of human rights has an important limitation, in regard to its applicability: it can be used for the protection of human rights only in regard to its member states; for violations of human rights that are related to states outside the European Union, other international law texts can be used for protecting human rights. 2.2 Why an international human rights regime was developed? The involvement of human rights with law and politics took place, for the first time, in the 17th century. It was then that the appearance of modernity alternated the mode of social life; instead of being just members of a community individuals could become independent, in terms of their economics and of their social environment (Brown 1999). Under these terms, human rights were necessary for helping individuals to secure their rights and interests which were threatened by the state and the capitalism (Brown 1999). Through the decades the promotion of human rights has become quite difficult; indeed, it has been proved that human rights, as a concept, can threaten the economic interests of specific groups of persons (Brown 1999). For example, the right of employees to a fair and equal compensation could result to the limitation of their employer’s profits, a perspective which often destroys the efforts of employees for securing their income (Brown 1999). On the other hand, individuals could not be left fully unprotected in regard to their rights. A legal framework based on positive law has been developed for the protection of these rights, a plan that could also help to secure piece and stability in society (Brown 1999). However, positive law has a series of limitations; for example, jurisdiction is a barrier for seeking for protection in courts that are not eligible to deal with a specific dispute (Brown 1999). Still, positive law has an important role in protecting human rights: through positive law it is ensured that human rights are fully secured up to a specific level (Brown 1999). Based on the above it could be supported that the international human rights regime was developed for setting the basic rules on which the protection of human rights worldwide should be based; states can adopt the particular rules or they can choose a different methodology for protecting the rights of individuals (Devetak et al. 2011). In any case, human rights are not out of the control of state (Charvet and Kaczynska-Nay 2008). In fact, human rights need to be developed only according to the rules and the values set by the national laws (Charvet and Kaczynska-Nay 2008). In this way, the balance between the personal interests, as promoted through human rights, and the interests of the public, as incorporated in the rule of public good, is secured (Charvet and Kaczynska-Nay 2008). However, in practice the following trend has been developed: many individuals have exceeded the borders set by the law in regard to the development of human rights (Charvet and Kaczynska-Nay 2008). By exceeding these borders these individuals have violated the rights of other people around them (Charvet and Kaczynska-Nay 2008). The holist approach for explaining the human rights has tried to resolve this problem: the specific approach is based on the idea that human rights can be exercised only if they are aligned to the mission of each individual, as a member of a broader group, as for example of a community (Charvet and Kaczynska-Nay 2008). The holist approach has been used for justifying the right of judges to impose punishments to those who have violated the national laws (Charvet and Kaczynska-Nay 2008). The international human rights regime is closely related to the holist approach; in fact, the specific regime has been also based on the need for protecting the interests of people internationally from violations that occur when certain individuals fail to respond to their obligations as members of a social group (Charvet and Kaczynska-Nay 2008). In other words, the international human rights regime has been established in order to ensure that human rights globally are respected, a target that can be achieved only if people focus on their mission, as members of a particular social group. 2.3 Most important problems that the international human rights regime has to face The different characteristics and requirements of civil and common law systems have resulted to the limitation of the effectiveness of international human rights regime. Indeed, ‘the civil law accepts a broad interpretation of human rights’ (Mowbray 2007, p.8). The British courts, representing the common law’s legal system, have refused to accept such approach (Mowbray 2007). Moreover, during the negotiations held for introducing changes in European Convention of human rights, Britain has made clear its opposition against ‘a broad definition of human rights’ (Mowbray 2007, p.8). This view was also supported by certain countries of the civil law, including Denmark and Norway (Mowbray 2007). The specific view was taken into consideration by those working on the alteration of the Convention (Mowbray 2007). Through the years, the other member states accepted the terms set by Britain in regard to the Convention (Mowbray 2007). Oppositions still exist in regard to the potential of each individual to seek for the protection of his rights through the European courts and in regard to the establishment of the European Court of Human rights (Mowbray 2007). Today, the above Court has become a valuable tool for securing the protection of human rights (Mowbray 2007). When used in regard to disputes related to the protection of human rights the international human rights regime should be characterized by independency from existing political and economic powers; in this way, any difference resulted because of the proximity of a national law towards the common law or the civil law would be eliminated (Mowbray 2007). The problems that the international human rights regime has to face can be understood by referring to the Genocide Convention. The above Convention, which was first introduced in 1948 by United Nations aims to prevent crimes against populations, i.e. activities that threaten the life of whole populations and not of groups of people with specific social characteristics (Quigley 2006). Since the introduction of the Convention its founders had to face two critical problems: states internationally have significantly delayed in aligning their national laws with the Convention’s rules (Quigley 2006). For example, today there are still countries that have not incorporated genocide in the list of crimes punished by law (Quigley 2006). In addition, strong oppositions have been developed in regard to the rules that should be used for interpreting the provisions of the Genocide Convention (Schabas 2000). Most important, genocide, as a crime, can be punished using two different paths: either through customary law or through the Genocide Convention. The latter seems to be more reluctant in providing amnesty to those who have been accused for having committed genocide (Quigley 2006). On the contrary, the customary international law offers to the perpetrators of such crimes to escape punishment if they prove that they have acted for the public safety (Quigley 2006). The case of Cosovo is an indicative example of the above case. In Cosovo, certain soldiers were given the order to use extensive violence for defeating the enemy; the loss of citizens was considered as possible but the relevant missions were not cancelled (Quigley 2006). In Cosovo genocide has been committed with no punishment of the actual perpetrators (Quigley 2006). Shawki and Cox (2013) support that the major problem of international law is the lack of effective mechanisms of ‘enforcement and compliance’ (p.92). This problem is also related to the international human rights regime. The lack of such mechanisms makes international laws inactive. Moreover, the lack of these mechanisms allows to countries worldwide to take initiatives for the increase of the effectiveness of international laws (Shawki and Cox 2013). Each country can choose different systems of enforcement and compliance, a fact that would threaten the integrity of international law. The problems described above are more common in international law regimes that are not autonomous. In fact, according to Proukaki (2009) an international law regime can be characterized as autonomous under the following terms: a) if it depends only on its own rules and not on the rules of other law regimes, b) the norms of the regime should not be used by other regimes, meaning that these norms should have the mission to cover the needs of the regime in which they are incorporated (Proukaki 2009, p.220). International human rights regime seems unable to fully meet both the criteria mentioned above. In other words, the specific regime is not autonomous, a fact that increases its exposure to risks and threats, such as those described above. 3. Conclusion The establishment of an international human rights regime has contributed in the increase of people’s awareness of the value of human rights. Still, the violations of human rights at international level are at high levels. The Conventions that have been introduced up today for securing the protection of human rights cover almost all aspects of these rights. However, there is an issue that has not given adequate attention: not all governments are strong supporters of the international human rights regime. There are still political systems the rules of which are not based on human rights but they seem to be related rather to interests of specific social groups. This means that international human rights regime could not secure its effectiveness, or even its survival, unless it is highly supported by governments worldwide. Only in this way, the protection of human rights could become part of the political agenda, i.e. of the international relations agenda also. From this point of view, it could be stated that the problems that the international human rights regime currently face, and which are many as explained above, cannot be resolved unless specific initiatives are taken by the key political powers within each country. References Brown, C., 1999. ‘Universal human rights: a critique’ in T.Dunne and N. Wheeler Human Rights in Global Politics. Cambridge: CUP Charvet, J. and Kaczynska-Nay, E., 2008. The Liberal Project and Human Rights: The Theory and Practice of a New World Order. Cambridge: Cambridge University Press. Devetak, R., Burke, A. and George, J., 2011. An Introduction to International Relations. Cambridge: Cambridge University Press. Fitzmaurice, M. and Merkouris, P., 2012. The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications. Leiden: Martinus Nijhoff Publishers Mowbray, A., 2007. Cases and Materials on the European Convention on Human Rights. Oxford: Oxford University Press Proukaki, E., 2009. The Problem of Enforcement in International Law: Countermeasures, the Non-Injured State and the Idea of International Community. London: Routledge. Quigley, J., 2006. The Genocide Convention: An International Law Analysis. London: Ashgate Publishing, Ltd. Schabas, W., 2000. Genocide in International Law: The Crimes of Crimes. Cambridge: Cambridge University Press. Shawki, N. and Cox, M., 2013. Negotiating Sovereignty and Human Rights: Actors and Issues in Contemporary Human Rights Politics. London: Ashgate Publishing, Ltd. Read More