The Human Rights Encyclopedia. Vol. 3.pdf

HUMAN

RIGHTS

E N C Y C L O P E D I A

T H E

HUMAN

RIGHTS

E N C Y C L O P E D I A

Volume Three

Foreword by Aung San Suu Kyi

Winner of the 1991 Nobel Peace Prize

JAMES R.LEWIS

U n i v e r s i t y o f W i s c o n s i n a t S t e v e n s Po i n t

CARL SKUTSCH

S c h o o l o f V i s u a l A r t s , N e w Yo r k , N Y

SHARPE REFERENCE

an imprint of M .E.Sharpe,Inc.

International Law

International law is the system of legal

agreements, treaties, and traditions that is

supposed to regulate the conduct of nations

toward each other and toward their citi-

zens. It is in the latter sense that interna-

tional law has the most relevance for

human rights.

quired signatories to respect the human

rights of enemy soldiers and civilians. More

than 150 nations have signed the Geneva

Conventions, and if few of them have

obeyed them at all times, it seems clear that

the agreements have helped to reduce some

of the evils caused by war.

After 1945, the United Nations, in an at-

tempt to make sure that the horrors of

World War II would never be repeated, over-

saw passage of a series of international

agreements designed to make the defense of

human rights a part of international law.

The central document in these interna-

tional agreements was the United Nations

Universal Declaration of Human Rights.

Passed in 1948, the Declaration outlines

the rights that all governments are obliged

to grant their citizens. Most of the world’s

nations have signed the United Nations

Universal Declaration of Human Rights (al-

though many of them do not scrupulously

follow its articles). Supporting and ex-

panding on the Universal Declaration of

Human Rights are other documents, in-

cluding the International Covenant on Eco-

nomic, Social and Cultural Rights and the

International Covenant of Civil and Political

Rights, both of which were adopted by the

United Nations in 1966.

There are also numerous other agree-

ments that have been ratified by the Unit-

ed Nations, each of which covers some

specific aspect of human rights and inter-

national law. Perhaps the most important of

these is the Convention on the Prevention

and Punishment of the Crime of Genocide,

which was passed by the United Nations in

INTERNATIONAL LAW AND HUMAN

RIGHTS

The history of international law began with

agreements between nations and groups of

nations, and these agreements focused en-

tirely on interstate relations (issues of war,

trade, and fishing rights, for example). It

was only in the nineteenth century that in-

ternational law began to regulate the be-

havior of states toward individuals and

thus create a body of internationally agreed

upon human rights.

Before the expansion of international law

into the human rights arena, human rights

were defended by a long tradition of moral,

religious, and philosophical guidelines that

centered on a belief in the dignity and sanc-

tity of human life. Such traditions, howev-

er high-minded, had no binding force and

were often ignored. The first substantive in-

ternational agreements on human rights is-

sues were the Geneva Conventions, the first

of which was signed in 1864. These inter-

national agreements regulated the conduct

of wars, limiting, by common agreement,

what countries could do to each other’s cit-

izens and soldiers in time of war. In 1949,

the nations of the world agreed to a re-

vamped set of Geneva Conventions that re-

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770

The Human Rights Encyclopedia

1948. This Convention requires all signa-

tories to agree that “genocide, whether com-

mitted in time of peace or in time of war, is

a crime under international law which they

[the contracting parties] undertake to pre-

vent and to punish.” Other United Nations

human rights declarations include the

United Nations Declaration on the Elimi-

nation of All Forms of Racial Discrimina-

tion, signed in 1963, and the Declaration

on the Elimination of Discrimination

Against Women, signed in 1967.

mony, two disputing countries agree to be

bound by the ICJ’s opinions, a legal dis-

pute can be resolved; if they do not, there

is nothing the ICJ can do to stop them.

In 1993 and 1994, the United Nations cre-

ated war crimes tribunals to prosecute the

human rights violations that were then oc-

curring in the states of the former Yugoslavia

and in Rwanda. These tribunals prosecuted

and convicted some of the criminals re-

sponsible for genocide in those countries,

but were ad hoc courts, with no jurisdiction

outside their assigned area of operations. To

the extent that they were successful—and

their success is debatable, as the most se-

nior war criminals in both areas have man-

aged to escape trial and incarceration—it

was because they were backed by the mili-

tary might of the industrialized countries,

particularly the United States.

In order to prosecute future human

rights crimes on a less ad hoc basis, the

United Nations, in 1996, voted to create an

International Criminal Court (ICC). The ICC

was authorized to try crimes against hu-

manity, including genocide, war crimes,

slavery, mass rape, torture, and racism.

Unlike the ICJ, the ICC was authorized to

render legal opinions without the consent of

all parties; in that sense, it functioned

much more like a traditional law court.

While the ICC was a step in the direction of

a permanent world court, it was hampered

by the reluctance of some nations, includ-

ing the United States, to submit their sov-

ereign power to an international body.

Moreover, in practice, there is still the ques-

tion of compliance. The ICC may convict a

North Korean leader of crimes against hu-

manity, but without its own police force, it

cannot enforce its own ruling, and instead

must rely on the military might of United

Nations member states to ensure obedience

to its legal decisions.

INTERNATIONAL COURTS

One of the difficulties preventing the effec-

tive protection of human rights by interna-

tional law is that there is no universally

agreed upon supervisory body to regulate

international law. The rights outlined in the

United Nations–sponsored international

treaties are noble ones, but the United Na-

tions is often unable to enforce them.

One of the six principal organs of the

United Nations is the International Court

of Justice (ICJ)—also known as the World

Court—but the ICJ hears only cases

brought before it by states that have agreed

to accept its jurisdiction. In 1947, the Unit-

ed Nations created the International Law

Commission (ILC), but this body only has

the authority to suggest changes in inter-

national law. It remains up to the United

Nations General Assembly to act on the

ILC’s recommendations and pass treaties

which lay out new codes of international

law. Even then, these laws are not binding

on a country until that country ratifies

them. In essence, the whole process de-

pends on the cooperation of the states in-

volved. International law, as supervised by

the ICJ and the ILC, is more like non-bind-

ing arbitration than a conventional court

system. If, for the sake of international har-

International Law

771

CONCLUSION

ly be done. Yugoslavia’s government can be

pressured by American bombs into obeying

international law, but no American presi-

dent would try the same kind of pressure on

nuclear powers like Russia or China. Inter-

national law has done much to defend

human rights, but its impact is necessarily

limited by the realities of power politics.

Paradoxically, international law remains

both a vital and a weak defender of human

rights. Internationally accepted codes of

conduct, such as the United Nations Uni-

versal Declaration of Human Rights, pro-

vide a clear definition of the rights of all

individuals, wherever they may live. But

while these documents provide important

moral and intellectual support for human

rights defenders, they have only a limited

effect against countries that choose to ig-

nore their existence. Enforcement of inter-

national law requires the political, and

sometimes military, cooperation of the na-

tions of the world, and sometimes such co-

operation is impossible to obtain. In cases

like the attempted genocides in Bosnia and

Kosovo, or the Iraqi invasion of Kuwait, it

was possible to create an international coali-

tion (in all three cases, supported by the

United States, the world’s biggest military

power) to enforce international law. But

when human rights violations are committed

by powerful states—like Russia in Chech-

nya or China in Tibet—little can realistical-

Carl Skutsch

See also: Human Rights, Ethics, and Morality; Trials;

United Nations; Universal Declaration of Human

Rights.

Bibliography

Ball, Howard. Prosecuting War Crimes and Geno-

cide: The Twentieth-Century Experience.

Lawrence: University Press of Kansas, 1999.

Neier, Aryeh. War Crimes: Brutality, Genocide,

Terror, and the Struggle for Justice. New York:

Random House, 1998.

Shaw, Malcolm N. International Law. Cam-

bridge: Cambridge University Press, 1997.

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