Geo-Political Sovereignty
This essay is written in recognition of six categories of the Universal Declaration of Human Rights as espoused by the United-Nations. They are: Child rights, no Female discrimination, no Torture, no Racial discrimination and, the two covenants for Political and Economic rights. It also allows that a breach of Human Rights and their Treaties is a crime and offensive throughout the International Community.
It is a brief analytical
overview of the complex matter that is the establishment and policing of the concept
of human rights policy throughout the global community. Therefore, the essay is
a surface inspection of the current Geo-political activities that are the
components of human rights, and also, International law discourse that take
place for the establishment of the Human Rights Policy model. It is in reply to
the question: To what extent is the UN able to put this principle into
practice?
Rogue political regimes are
the key foci of the Human Rights doctrine; and Koffi Annan is quoted as having
said:
Our job is to intervene. To
prevent conflict where we can, to put a stop to it when it has broken out, or
-when neither of those are possible- at least to contain it and to prevent it
from spreading; in Petrovsky (2000).
This statement reflects the
expressed intention of most United Nations (UN) activity, and is the guiding
theme for this paper as it analyses International law, non-compliance,
alternatives and some statistics in a general discussion about human rights
implementation.
The main obstacle faced by
the UN in implementing human rights is State-rights and State-sovereignty in
the Geo-political environment. The reason for this obstacle being difficult to
negotiate is that the very nature of human rights gives political actors the
freedom to not negotiate on a pertinent issue or requirement related to human
rights policy. This inaction is then a blockage of polity and as a result no normative human rights powers are
operating. This then leaves a window of opportunity for alternative forces to
operate. These forces’ actions will be influenced by various factors according
to their belief’s and location. Socio-cultural, Territorial, and
Ethno-religious ontology’s are some of the main motivators for forces that
intend a different outcome for an individual or community. These outcomes would
be those that are not provided at a free birth, provided by a state or given
under some treaty. These outcomes are not what the United Nations model of
human rights intends as a precedent for an individual or state, no matter how
or to what extent the action is justified.
Whilst the United Nations
holds much intention of good will with the doctrine of peace, it is still
difficult to implement positive normative human rights powers whilst individual
Nation-states hold firm to their respective national doctrines of sovereignty.
As Falk says: ‘Often, the counter to internationalisation of human rights is
the doctrine of sovereignty’. Nonetheless, as globalisation continues, diverse
cultures may become less shocked by the formative progress that they currently
interpret as colonisation or hegemonic rule. Traditional cultures that today
treasure their sovereignty may in the future cherish a global community that is
characterised by unique sovereign states that are linked to a Geo-normative
human rights policy. However, at the present moment sovereignty is an obstacle
of international relations. For, even though each nation-state can sign
treaty’s and covenant’s voluntarily, so too is their compliance with the agenda
of them. In general, when a state signs a treaty it is possible that they will
alter or rule out some detail so that they are more comfortable with the
ensuing obligations. This means that even though the Universal Declaration of
Human Rights is the same declaration for everyone, it is in fact tailored to
suit a fussy regime. This tailoring upon signing a document can be a limiter of
the extent to which the model can be put into practice.
The fact that it is signed
and operates under a condition of relative choice is probably a good thing,
however the flexibility that is gained by a state or regime is another matter
for consideration. What they choose to do with this lawfully obtained sovereign
flexibility is up to them, for they are protected by the sovereignty of state.
Howard and Donnelly (in Art 2002) explains that fact like this: ‘Acceptance of
an obligation does not carry with it acceptance of any method of international
enforcement’. And: ‘In fact, a state that explicitly rejects a practice during
the process of custom formation is exempt even from customary international
legal obligations’. So, during a regime change there may be no obligatory
adherence to human rights policy.
Even though the Universal
Declaration is a normative document that pertains to the very essence of human
existence, it does not yet carry with it the force of law. Howard and Donnelly explain: ‘Resolutions of the General Assembly,
even solemn declarations…the General Assembly has no international legislative
powers’; a limiting factor for United Nations principles.
Nonetheless, with the
inception of the International Criminal Court (ICC) in 1998, the U.N can look
forward to further improvement in the field of human rights policy and its full
ratification. The ICC will have the power to try, and, to convict any breach of
human rights protocol in the future. Currently however it is possible for
offences to go unpunished or even unnoticed because the offending entity is
able (by sheer force) to block any disclosure of an event or an impending
event. Under these conditions (says Pellet 2002), and with the use of Article 2
Paragraph 7 of the UN Charter which states: ‘Nothing contained in the present
Charter shall authorise the United Nations to intervene in matters which are essentially
within domestic jurisdiction of any state’, the offender can act contrary to
international norms. But Pellet reassures
that: ‘Human rights are no longer
“internal affairs”. He is confident that the human rights principle is gaining
strength, even if it is by an incremental amount.
A new feature
of the human rights protocols is the creation of a new international draft law
by the International Law Commission that provides:
…”all other States” (not
only the state whose national directly endures a prejudice) are “injured” by
the internationally wrongful act thus committed, and it has called such a
violation a “crime” under international law’; in Pellet 2002.
Therefore; with this neo-law
as a tool, human rights will gain precedence over state sovereignty, despite
criminal anonymity that is currently able to circumvent the auspices of the
global community in a manner contrary to the human rights norms that have been
established to prevent rights abuse.
When all the normative
principles and laws are rejected by a rogue regime and a condition of human
rights abuse is either eminent or occurring, the international community does
have some legal options for the intervention on behalf of affected peoples.
Firstly, state sovereignty principles can be engaged by an intervening regime
to counter opposition to an act of intervention; it can be said that no other
state may intervene and thus prevent the original intervention. However, this
is using the same principle as the offending regime and therefore it is not a
desirable option to be taken by the normative powers. Intervention though of a
military type, also is not authourisable by International law; even though it
may be sanctioned by the geo-political community, as might be the case
following a United Nations resolution. Howard and Donnelly point out that;
‘Because sovereignty is the foundation of international law, any foreign policy
action that amounts to intervention is prohibited by international law’. The
second option is sanctions, a strong tool for the UN in putting principles into
action.
This is where the problem of
human rights and international law fester, at this very focal point. Because, a
sovereign state is protected by international law (covenants, treaties,
international customary law, etc), therefore so to is any ‘activity’ of that
state. No state is authorised to intervene in the activity of another. If the
‘activity’ is perhaps definable as internationally unlawful, the sovereignty
can engage international law to prevent external alteration of the ‘activity’.
If then, an outside state is not impressed with the ‘activity’, it then can
engage protection of its own sovereignty with the use of international law and
proceed to intervene. Now, neither of the states are abiding by international
law, they are now both in breach because of their individual uni-lateral
action. Despite this, international law cannot now intervene in geopolitical
state sovereignty provided to legitimate states by international law, despite
any unauthorised activity or breach of human rights norms.
The current problem is that
human rights ratification is voluntary, only states who have at least signed
for them are bound by the attached obligations, a state who further ratifies a
law into a nation’s political structure is further bound by normative human
rights laws and a state who further again makes public an acceptance of the
norms is thus even further bound by international law and norms. If a state
chooses none of these and instead remains sovereign without ratification and
publication of any document, it can be considered barely obligated. Mendel explains:
‘non-publication has frequently been used to prevent application of the
treaty’. The reason that intervention is not authorisable is because the
treaties are voluntary, therefore any breach of them is voluntary and thus then
is the condition of secession; which may be followed by rights abuse. This is
the extent to which the United Nations and its principles can currently operate
in the global community, after this -in the geopolitical environment- there may
only be anarchy as the defining characteristic.
Howard and Donnelly and
others, argue that: ‘moral considerations in at least some circumstances
justify humanitarian intervention on behalf of human rights’. The only
non-military option has been to place sanctions upon a state; however as Koffi
Annan points out: ‘Recent experience has shown that sanctions can have a
dramatic impact on civilian populations’, (in Petrovsky 2000); whom is
encouraged by a new system of sanctioning called “Smart Sanctions” that are
currently being developed by the UN. He states: ‘I am of the opinion that
increasingly targeted sanctions are better to deter and contain…and avoid
random infliction of their punitive effects on the innocent’. Smart sanctions
if managed properly could severely restrict the activity of a rogue entity,
thus enabling the United Nations or the geo-community to activate human rights
norms in an affected region.
However, immunity is the
qualifier of an Anti-rights regime. It: ‘is still the cloak of warlords and
killers everywhere’, as Shawcross describes
it. It is the culture of impunity that is said by commentators (in part at
least) to be responsible for the cycle of human rights violation. Nonetheless;
‘a new global legal architecture is being created’, says Shawcross. The
inception of the UNs’ Universal Declaration of Human Rights is taking place,
albeit slow. One critique of the United Nations human rights law effort
suggests that; ‘We may be witnessing the opening moves in the forging of a New
Global order that fundamentally impairs national sovereignty….’says Presser. Yet perhaps unwittingly he has stated
what may be the entire crux of the matter for Western diplomatic relations; he
worries that the United States and its western allies may be: “sailing into
uncharted waters, and nothing less than the Anglo-American tradition of the
rule of law is at stake”, (Presser in Duplantier).
If this is the case, and the
UN fails entirely in the effort of asserting human rights to any influential
extent, then in the future geo-community we may see some type of neo-anarchy. Petrovsky
agrees with this analogy, he realises: ‘Another distressing trend in society
today, is the flourishing of “international uncivil society”, in other words,
criminal or terrorist political and economic structures’; these being
counter-normative in structure and practice. The neo-anarchy being attributable
to a form of intended infractions of normative laws and conventions for the
purpose of capital accrual, both budgetary and social. This activity may have
increased since end of the cold war.
Nonetheless, since the end
of the cold war, the opportunity for pluralist human rights policy has
increased dramatically as the former communist bloc now no longer makes regular
use of the nullifying ‘veto’ at UN meeting’s. Something that it was doing on a
regular basis throughout the cold war. Now the United Nations is more able to
effectively recommend human rights based resolutions without having them
blocked to any great extent by uncooperative elements such as Russia.
After the cold-war era
things began to improve too a greater extent for the human rights policy, and
the implementation of the model. For example, the signage rate increased
dramatically, post-1990; the maximum was eighty-five signatures in 1990, (see
appendix B for a graphical representation). A tool for the model -the ICC- was
ratified into existence on April 11 2002 with the minimum requirement of sixty
signatures. The international court will be able to prosecute genocide, war
crimes, and crimes against humanity from July 2002 onwards. The need for the
court was finally accepted in 1998 with one hundred and twenty international
votes of acceptance.
The six components that make
up the Universal Declaration of Human Rights are all gaining acceptance, with
the Rights of the Child being signed by one hundred and ninety one nations as
of March 2001; see appendix C for a graph of the six components.
Also, war has occurred less
in the latter half of the twentieth century, there were approximately one
hundred and seven; whilst before 1950 there were one hundred and thirty nine.
Fifteen of these were ongoing in the periods’ 1945, 1963 and peaking with
sixteen in 1971; thereafter declining to nil in 1996-97; see appendix A for a
graph.
Clearly, despite the
nihilistic approaches of some states, the anti-rights approaches of others and
the hegemonic rhetoric of the powerful, the Universal Declaration has gained
substantial support. The reduction in the occurrence of war, the quantity of
states that are prepared to be signatories to treaties, and the combined
efforts of the United Nations all lead to a conclusion that not only must human
rights take precedence over sovereignty; but that it has, that the UN has been
able to put the principle into practice, and will continue to do so.
Whilst the conclusion of
some commentators of the human rights discourse see a danger of it being anti-sovereign,
the United Nations and the geo-political world is proceeding with the
acceptance of what seems to be a normative and worthwhile process of law making
on behalf of human rights. State sovereignty must still be considered
paramount, but not at the expense of human dignity and rights.
BIBLIOGRAPHY
ART, Robert., and Robert
Jervis.2002. INTERNATIONAL POLITICS.
United States:
Addison-Wesley Educational Publishers Inc.
DUPLANTIER, F, R. Human Rights vs. State Sovereignty? – Behind
the Headlines – Week of
August 26, 2001.
http://fxi.org.za/Medialaw/legal.htm
FALK, Richard. Issues of
Democracy. May 2000 – Towards A Community of Democracies.
http://usinfo.state.gov/journals/itdhr/0500/ijde/falk.htm
MENDEL, Toby. August 2002. Enforcing International Human Rights
Standards in Domestic Legal
Systems.
http://www.fxi.org.za/Medialaw/legal.htm
PETROVSKY, Vlamadir.2000. UNOG: Speeches by the Director-General.
http://www.unog.ch/speeches/chaplin.htm
PELLET, Alain. September
2002. State sovereignty and the
protection of fundamental human rights:
an international law
perspective.
http://www.pugwash.org/reports/rc/pellet.htm
SHAWCROSS, William.2000. DELIVER US FROM EVIL WARLORDS &
PEACEKEEPERS IN A WORLD OF
ENDLESS CONFLICT. London: Bloomsbury
Publishing Plc.
of: APPENDICES.
Graphs A, B, and C were
derived from data obtained off the Internet at:
·
For graph A:
Battle Games: History:
Chronology of Conflict. August 2002.
www.battlegames.co.uk/html/historyfiles/chrono_AD20th.htm
·
For graph B:
Human Rights. September 2002.
www.bbc.co.uk/worldservice/index.shtml
·
For graph C:
Human Rights. September 2002.
www.bbc.co.uk/worldservice/people/features/ihavearightto/four_b/treaties-chart.shtml