Available via license: CC BY 4.0
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Vol.9(3), pp. 31-35, July 2018
DOI: 10.5897/IJPDS2018.0324
Article Number: 2571CC058011
ISSN 2141–6621
Copyright © 2018
Author(s) retain the copyright of this article
http://www.academicjournals.org/IJPDS
International Journal of Peace and Development
Studies
Review
Remedying the retreat in the protection of citizens’
international human rights
Graham Nicholson
Hidden Words Bookshop, P. O. Box 1010 Kuranda Qld 4881, Australia.
Received 26 March, 2018; Accepted 8 June, 2018
The article argues that in the light of the many continuing gross abuses of international human rights
perpetrated in many parts of the world and the growing disillusionment with the international human
rights regime as a whole, the regime needs comprehensive reassessment. It is argued that the
underlying cause of this situation is the disunity of the present global system and its competing systems
of governance. The author suggests that incremental improvements over time are no longer sufficient
and that if real change is desired for the better , and then a significant global change towards a more
united and just world order is required. Otherwise, we can expect to see many more gross abuses of
international human rights of the worst kind, among other things. The author argues that such a
significant change is supportable on the grounds of reason and conscience, as well as of morality and
spirituality.
Key words: International human rights regime, effectiveness, globalisation, supranational, global governance,
unity, federation.
INTRODUCTION
Recently the author posted on the electronic media the
following:
“Is the era of international human rights over?
One of the great post War international developments
was the prescription of basic international human rights
and the beginning of mechanisms for their impartial
enforcement. But I wonder if this development is now in
retreat, desirable as it may be. It seems that even the
worst actions, crimes against humanity, war crimes,
torture, genocide, etc., can now be committed with little
risk of penal consequences.
One may now say that the power of arms and the use of
force are now gazumping international basic rights. It is
making a joke of the international rule of law.
Is there no hope for the future? Many may now ask.
I believe that there is, but only if humanity can come to its
senses and create a new, united and peaceful global
order in which there are enforceable basic international
human rights. I believe this is possible. It is common
sense as well as being prophesised by the great
religions.It requires a new perspective, a change of minds
and hearts from the old outdated ideas we are still being
fed with. Please give this a serious thought as every
person can contribute.”
The author was invited to submit a paper expressing his
views. This paper proceeds to describe in brief the
*Corresponding author. E-mail: nicholsonmandalay@msn.com.
Author(s) agree that this article remain permanently open access under the terms of the Creative Commons Attribution
License 4.0 International License
32 Int. J. Peace and Dev. Stud.
development of the international human rights regime, its
deficiencies and ongoing breaches, particularly with
respect to gross human rights abuses. It gives some
current examples. It then describes the main underlying
cause of the problem, based on the divided nature of the
global order with its emphasis on national sovereignty. It
suggests the need for significant global change of a
supranational nature, and incorporating effective and
enforceable basic human rights guarantees. It argues
that without such a change we can expect to see many
more gross abuses of international human rights of the
worst kind.
The Post World War II era was notable for the
international prescription, for the first time in human
history, of broad statements of basic human rights
purporting to have legal force for all humanity. This has
been an amazing development. It began with the
Universal Declaration of Human Rights (1948) in the UN
General Assembly, which included a number of
provisions dealing with the worst kinds of human rights
abuses, followed by a considerable number of
international human rights Covenants and Agreements to
which most countries have acceded.
The regime includes international agreements not only
on more traditional forms of human rights such as
freedom of religion and freedom of speech, but also on a
range of gross abuses of human rights in the form of
international crimes such as crimes against humanity,
war crimes, torture, genocide, ethnic cleansing, etc. The
author includes these international crimes within the term
“international law rights” even though they are sometimes
separately categorised as part of international
humanitarian or criminal law. In the author‟s own view
they can be properly seen as being of a human rights
nature and are really among the worst types of breaches
of human rights.
It was thought by many that with this development, a
new era had begun to protect the basic rights of
individual humans at international law. This was followed
by action in a number of countries to implement these
new provisions in their domestic law, as well as the
erection of a number of regional and international
mechanisms to try to monitor and enforce them. The
expectations were high that these developments would
progress further.
Following these events, we had the collapse of the
Cold War and the fall of the Berlin Wall, the collapse of
apartheid and other promising international events that
seemed to suggest a new era of cooperation in
international affairs and in human rights. The
commencement of the International Criminal Court was
thought to be a major advance. Its Statute defined the
most serious international crimes, as:
(1) The crime of genocide
(2) Crimes against humanity
(3) War crimes
(4) The crime of aggression (Rome Statute, 1998).
In addition, there were some promising national judicial
developments. Even some sceptics lauded these
developments. Thus, Geoffrey Robertson QC, a severe
critic of the international regime, still saw many promising
aspects in his text “Crimes against Humanity” (Robertson,
1999). For example, writing in the emergence of
international criminal law, he stated that this was why it
has been the great achievement of international law, at
the close of the twentieth century, to lift the veil of
sovereign statehood far enough to make individuals
responsible for the crimes against humanity committed by
the states they formerly commanded, while at the same
time developing a rule that those states have a continuing
duty to prosecute and punish them, failing which the
international community may bring them to justice.
But as time has gone on, the many loopholes in the
international regime have become more obvious, allowing
the abuses to continue. The incremental improvements
that have been made to the regime over time are no
longer sufficient to bring real change for the better. If
such change is desired then a significant global change
towards a more united and just world order is required.
Otherwise we can expect to see many more gross
abuses of international human rights of the worst kind,
among other things. It is possible to quote many current
examples of gross abuses in many places.
Take the war in Syria. It is fairly clear that there has
been a flouting of the rules as to not deliberately
attacking non-combatant individuals, resulting in much
death and injury, a war crime. Coupled with this, there
also appears to be significant evidence that chemical
weapons have been used in some of these attacks, and if
so, again a war crime in breach of international law.
The full extent of these alleged breaches has yet to be
made clear, but there is great cause for concern,
particularly among those who do not take sides. The fact
that it seems that these actions can largely be committed
with impunity, other than running the risk of national
punitive strikes through great power involvement, adds to
the concern. This is not the place to examine in detail the
veracity of the relevant claims, but it does give rise to
serious questions about the value of the international
human rights regime.
Take again the recent plight of the fleeing Rohingya
minority from Myanmar to Bangladesh. There is
evidence that actions amounting to genocide have been
committed, and the Burmese military has been accused
of wide-scale human rights violations, claims which the
Burmese government dismisses as "exaggerations". The
prospects of bringing those responsible to account seem
remote, at least for the foreseeable future.
Take the example of North Korea. A group of
independent experts on accountability, appointed by the
UN High Commissioner for Human Rights, and led by
Justice Kirby, at the request of the Human Rights Council
with a specific mandate to explore approaches to
accountability, asserted that “investigation and
prosecution of serious crimes is critical” (Human Rights
Council, 2017). It found that the North Korean security
chiefs and possibly even Supreme Leader Kim Jong Un
himself should face international justice for ordering
systematic torture, starvation and killings. But again the
prospects of bringing those responsible to account seem
remote, at least for the foreseeable future.
There are many other examples that could be given.
States may plead for action to be taken concerning the
alleged wrong actions of other states but observe great
reluctance to act and become very defensive when
accusations are directed at them. And the doctrines on
national sovereignty and the non-interference in the
domestic affairs of states provide plenty of defensive
potential. The fact is that the international human rights
regime is not a great deterrent when states and other
powerful entities are intent upon committing the most
egregious crimes. Increasingly, commentators on human
rights are reaching depressingly similar conclusions –
that human rights treaties and their resulting institutions
have little or no impact on the observance of human
rights (Meernik, 2015; Hafner-Burton and Tsutsui, 2007).
Adam Jones, in his book also entitled “Crimes Against
Humanity” (Jones, 2008), paints a bleak picture where he
states that the human landscape sometimes seems so
bleak as to hardly justify efforts to brighten it. We
confront crises, looming or pervasive, on a dizzying
number of fronts. These weaknesses may be rooted in
the fact that at present, the primary responsibility in
dealing with breaches lies with the states themselves.
Ensuring justice for serious violations is, in the first
instance, the responsibility of the states whose citizens
are implicated in the breaches.
States have an international obligation to investigate
such breaches that implicate members of their military,
police and other persons under their jurisdiction. The
state must ensure that military or domestic courts or other
institutions impartially investigate whether serious
breaches occurred, identifying and prosecuting the
individuals responsible for those violations in accordance
with international fair-trial standards, and imposing
punishments on individuals found guilty that are
commensurate with their deeds. But states are in many
ways the weak link in the regime. They may have
adopted many international human rights instruments, but
that does not mean in practice they will implement them.
Often they do not.
The literature is extensive on the weaknesses of the
international human rights regime, but is not so
convincing or extensive when it comes to proposing or
implementing real solutions. Most people and entities
engaged in the regime are defensive about their role and
activities. States are more concerned about justifying
their role and policies and are resistant to criticism. Non-
state actors may be more intent upon seeking their own
Nicholson 33
advantage and interests rather than working to respect
the human rights of others. Academics write many
articles and books on the regime, but are either more
involved in descriptive tomes or ascribe little optimism to
the prospects for significant global improvement. Many
assume that the dominance of national sovereignty, and
the divisive politics that goes with it, are a permanent
feature of the global scene and take a sceptic view, if at
all, of the prospects for a major change in the global
order that might facilitate dramatic improvements in that
human rights regime. This condition of near paralysis is
alarming, given that many of the contemporary breaches
of the regime are of the worst kind. Are we simply to
assume that this position will continue indefinitely, with a
continuance of band aid approaches around the fringes
and perhaps some incremental improvements over time?
There is something profoundly inhuman and immoral in
such a conclusion.
Jones does suggest that there may be a glimmer of
hope in the growing momentum of social movements and
international “principled-issue networks” challenging
uncontested national sovereignty and their alleged right
of states to do whatever they like. But he adds that when
this norm of the supremacy of state sovereignty was
challenged, it was usually by religious believers
protesting or otherwise opposing the violent repression of
coreligionists. This may be true as far as it goes, but
perhaps overlooks the works of many others who in the
course of quite some years have advocated
supranational solutions to many global issues.
The Universal House of Justice states that there are
some hopeful signs. With the increasing attention being
focused on some of the most deep-rooted problems of
the planet it considers that these bring the hopeful signs.
Despite the obvious shortcomings of the United Nations,
the more than two score declarations and conventions
adopted by that organization, even where governments
have not been enthusiastic in their commitment, have
given ordinary people a sense of a new lease on life.
The House refers to the Universal Declaration of Human
Rights, the Convention on the Prevention and
Punishment of the Crime of Genocide, and the similar
measures concerned with eliminating all forms of
discrimination based on race, sex or religious belief;
upholding the rights of the child; protecting all persons
against being subjected to torture; eradicating hunger
and malnutrition; using scientific and technological
progress in the interest of peace and the benefit of
mankind -- all such measures, the House states, if
courageously enforced and expanded, will advance the
day when the spectre of war will have lost its power to
dominate international relations (Universal House of
Justice, 1985).
So what is the nature of supranational solutions that
might bring improvements to the effectiveness of the
international human rights regime and are they feasible?
Well, there are already examples of supranational
34 Int. J. Peace and Dev. Stud.
mechanisms that are having some effect. Take for
example the European Court of Human Rights. But there
is no international human rights court and the International
Criminal Court is hedged about with many limitations, as
Robertson points out (Robertson, 1999). And of course
for any judicial system to be effective, it must have
supporting enforcement mechanisms. These are largely
absent or are not adequately utilised in the international
arena at present.
But it seems that it is not just a matter for new
international judicial mechanisms and penalties.
Domestic national jurisdictions have similar mechanisms
already in most cases, each operating within a single
jurisdiction, and it does not stop crime and abuse. In a
very divided, aggressively confrontational and competitive
world, a more holistic supranational solution is in my
opinion called for.
One can point to the increasing trend towards
globalisation, particularly in the economic field (Dahl,
2007). In the establishment of a new international
economic order, full respect for human rights can be seen
both as an end in itself and as an essential means. But
the NIEO has proved to be very controversial, and there
has been somewhat of a rejection of supra-
national arrangements and solutions except in cases
where this is perceived to promote the national interests
of the participants. And in any event, the elimination of
the worst human rights abuses on the planet seems a
much too important a task to be tied to economic
considerations. It seems we must look further again.
In the author‟s view, the existing international human
rights regime needs comprehensive reassessment to
ascertain whether the sad results presently being
experienced in many parts of the globe are as a result of
the disunity of the present global system and its
competing systems of governance. This inevitably leads
to the question of supranational solutions designed to
bring a unity of approach in terms of the securing the
observance of minimum standards across the planet.
The idea of some kind of supranational organisation of
the planet, or of parts thereof, has a long history. In this
respect it was written of Immanuel Kant that he was
concerned about apparent holes or gaps between
domestic and international law. In his 1795 essay
entitled “Towards Perpetual Peace”, Kant asserted that
relations within „the community of nations of the earth‟
are so close that „a violation of right on one place on the
earth is felt on all‟, with the result that „the idea of
cosmopolitan law is no fantastic and exaggerated idea of
representing right‟; on the contrary cosmopolitan law
must form a „supplement‟ to the „unwritten code‟ of both
state law and international law if the „public rights‟ of
human beings are to be secured (Walters, 2004).
Thus Kant envisaged a supranational form of binding
law transcending national law. Many other writers have
expressed views supporting a supranational approach
(Kant, 2007). It is submitted that in order to successfully
establish such a supranational form of governance, we
would have to work towards a supranational or planetary
community of all peoples transcending that communities
of the several states without replacing them, and based
on global order, the international rule of law and justice.
Given the great diversity of peoples on the planet, it has
been stated that such a community would need to be
established on the principle of unity in diversity as the
basis for a new age where war would be outlawed and
peace prevail; where the earth‟s total resources would be
equitably used for human welfare; and where basic
human rights and responsibilities would be shared by all
without discrimination (World Federalists, 2010).
We are in effect talking of some kind of global
federation, as advocated by a number of organisations.
For example, the World Federalist Movement (WFM),
a global citizens‟ movement, has advocated the
establishment of a global federal system of strengthened
and democratic global institutions subjected to the
principles of subsidiarity, solidarity and democracy. The
Movement was created in 1947 by those concerned that
the structure of the new United Nations was too similar to
the League of Nations which had failed to prevent World
War II, both being loosely structured associations of
sovereign nation-states, with few autonomous powers.
Famous advocates of world federalism have
included Albert Einstein, Mahatma Gandhi, Martin Luther
King Jr., Rosika Schwimmer, Albert Camus, Winston
Churchill, Garry Davis, Emery Reves, Wendell Willkie,
Jawaharlal Nehru, E. B. White and Lola Maverick Lloyd.
Arguably, an effective, universal and enforceable
international human rights regime would be an integral
part of such a federation, such as is proposed in the
Statute of the World Federalist Movement (World
Federalists, 2010).
In order to establish such a federation, it must receive
wide community support in order to secure its legitimacy
and permanency. To do this, arguably there must be a
consciousness and an acceptance of the principle of the
oneness of all humanity. No form of prejudice favouring
one section of the global community over another can be
workable or acceptable in such a federation. Thus it is
written:
“The most urgent requisite of mankind is the declaration
of the oneness of the world of humanity - this is the great
principle of Baha'u'llah” (Terry, 2008)
Arguably there is already a growing acceptance of such a
concept. Forms of education may be required to
accelerate its acceptance by the masses of peoples.
Such a transformation in human affairs would need to be
viewed as sacred and inviolable by all peoples and
countries otherwise it risks being subverted by one
section against others. It would carry, as a necessary
corollary, the incorporation of an equal standard of
human rights for all.
Abdu‟l-Baha (1918) writing with a vision for the future,
wrote that true civilization would raise its banner when
some noble kings of big ambitions, the bright suns of the
world of humanitarian enthusiasm, shall, for the good and
happiness of all the human race, step forth with firm
resolution and keen mind and hold a conference on the
question of universal peace; when keeping fast hold of
the means of enforcing their views they shall establish a
union of the states of the world, and conclude a definite
treaty and strict alliance between them upon conditions
not to be evaded. When the whole human race has
been consulted through their representatives and invited
to corroborate this treaty which verily will be accounted
sacred by all the peoples of the earth, he said it would be
the duty of the united powers of the world to see that this
great treaty endures. Many may feel that this is an
altruistic concept that has no chance of ever succeeding
in the face of the great powers and the sceptics. It is
however an idea that has a long lineage and is still
shared by many who are concerned about the future of
humanity (Thant, 1993).
There is a further view that humanity may eventually
have no choice but to adopt such a major change in the
face of the many developing serious problems affecting
this divided planet, human rights and otherwise. This
necessity may become more obvious with an exponential
increase in the seriousness of many of the present
threats to the planetary home now on the horizon.
The present world order has been described as being
“lamentably defective” for this reason.
Unless there is significant global change for a better
and more a united and just world order evolves, the
author is of the view that humanity must expect to see
many more gross abuses of international human rights of
the worst kind, among other undesirable and
unacceptable outcomes. The task is to balance that
prospect against the difficulties and turmoil of creating a
new global order that fairly meets the needs of all
humanity. It is clear to the author, given reason and good
conscience, as well as of morality and spirituality, on
which side of this balance the answer falls.
Nicholson 35
CONFLICT OF INTERESTS
The author has not declared any conflict of interests.
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