10.1.Manasian.hr Law

8/14/2019 10.1.Manasian.hr Law

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Title: The conscience of mankind.By: Manasian, David, Economist , 12/05/98, Vol. 349, Issue 8097Database: Academic Search Premier Section: Human-Rights Law

Can international law establish universal human rights? After 50 years of treaty-making, writesDavid Manasian, it is at last beginning to get somewhere

THIS has been a year of speeches, declarations, resolutions, conferences, concerts, meetings andcampaigns marking an event of which the general public remains largely oblivious. Celebrations

of the 50th anniversary of the Universal Declaration of Human Rights-a sweeping list of

fundamental civil, political, social and economic rights-will reach a climax with a special session

of the United Nations General Assembly on December 10th, the day the declaration was adopted by the same assembly in 1948. Bill Clinton, along with scores of other world leaders, will make

yet more speeches. And nearly 10m people have already signed Amnesty International's pledge

to do what they can to implement the declaration.

But the posters and petitions may have been preaching mainly to the converted. Most people

remain unaware of the declaration, and many of those who know about it are unimpressed byrighteous resolutions by politicians and do-gooders. Besides, what is there to celebrate? Human-

rights abuses around the world are reported by newspapers and television every day of the week.

Massacres in Kosovo. Slaughter in Algeria. Torture in Turkey. Chronic violence in Colombia.

The jailing of dissidents in China, Myanmar and a dozen other countries. There seems no end tothe terrible things people do to other people.

And yet, paradoxically, this constant stream of reports about human-rights abuses is itself atribute to the Universal Declaration, and to the international human-rights movement it helped to

spawn. Repeated misbehaviour by any government is now almost always picked up by someinternational group. Professions of concern about human rights, whether sincere or not,accompany almost any debate about world politics. For any western politician visiting China,

raising the question of human rights with Chinese leaders has become a necessary ritual, rather

like the obligatory state banquet or visit to the Beijing opera. Such concerns have also proddedreluctant governments into risky armed interventions in Somalia, Rwanda, Bosnia and Kosovo,

mostly with mixed results.

A stealthy revolution

Over the past few decades, a small army of non-governmental organisations (NGOs) advocating,

monitoring and lobbying for human rights, led by bodies such as Amnesty International and

Human Rights Watch, have become serious participants in international affairs. Linked withthese larger international groups, and often sponsored or encouraged by them, are thousands of

indigenous NGOs in poorer countries, gathering information on particular issues and pressing

their governments to live up to international standards. Human rights has become a mainstreamsubject at law schools, and the number of lawyers specialising in it has soared. Harried by NGOs

and consumer groups in rich countries, many multinational companies too have felt compelled to

formulate human-rights policies, and to answer publicly for the effects of their commercial

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activities. But the NGOs' main targets remain governments, the key guarantors-and usually the

key abusers-of human rights.

With talk about human rights so pervasive, it is easy to forget that the adoption of the Universal

Declaration launched a revolution in international law. It may not be as famous as America's

constitution, the French revolution's Declaration of the Rights of Man, or Britain's Magna Carta; but together with the United Nations Charter (the UN's founding document), the Genocide

Convention and the four Geneva Conventions updating the laws of war, all roughly

contemporaneous, it marked a decisive change with the past.

Until the end of the second world war, international relations were based on the idea of a society

of sovereign states, as they had been ever since the rise of the European nation-state centuries

earlier. There was little to challenge state sovereignty, either in international law or in the waythat most governments behaved. True, philosophical appeals for what today might be described

as universal human rights have been heard since the time of the ancient Greek Stoics; but such

ideas played almost no part in international politics.

The United States and the European powers had sometimes intervened in the civil strife of other

countries to protect their own nationals, as they did in the Chinese and Ottoman empires; butthere was general agreement that whatever states did to their own nationals was their business.

So long as they were able to maintain physical control over their territory, they remained

sovereign. They answered to no higher political or moral authority. Nineteenth-century attempts

to abolish the slave trade through international agreements achieved little. Instead, slavery waned because it became uneconomic. Efforts to codify the laws of war paid careful heed to state

sovereignty, restricting only what a state could do to enemy soldiers or foreign nationals, not to

its own. For the most part, individuals had no standing in international law: their fate lay in thehands of their governments.

The devastation of the second world war, the Jewish Holocaust and the violence inflicted onoccupied populations by the Germans and the Japanese prompted a profound reconsideration of

the relationship between human rights and international peace. The United Nations, like the

League of Nations which had failed so abysmally before it, was meant to be a collective securityarrangement, with the five permanent members of the Security Council, the world's major

powers at the time, pledged to act together to punish breaches of the peace. But there was also a

new element. For the first time, a state's treatment of its own citizens officially became a subject

of international concern. Regimes which treated their citizens abominably would, it wasrecognised, eventually pose a threat to other countries too.

The UN Charter, signed in June 1945, is unequivocal about this. Its preamble pledges theorganisation ``to reaffirm faith in fundamental human rights'', and article 1 cites ``promoting and

encouraging respect for human rights and for fundamental freedoms for all without distinction as

to race, sex, language or religion'' as one of the UN's principal purposes, along with peacekeeping. But the Universal Declaration goes further, explicitly linking respect for human

rights as necessary to the maintenance of international peace.The limits of sovereignty

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In retrospect, it seems amazing that Stalin's Soviet Union, which egregiously abused human

rights, should have agreed to any reference to them in the UN Charter. But even in the long and

bitter debates that accompanied the drafting of the Universal Declaration, the Soviets never repudiated the concept of universal rights as such. They argued only about the relative

importance of different rights, and about the weight that should be given to individual rights and

the conflicting doctrine of national sovereignty. The UN Charter embodies this contradiction, proclaiming that the UN is based on the ``sovereign equality of all its members'', even while

championing universal rights.

When the declaration was drafted, the cold war had already begun to blight post-war hopes that

international co-operation would prevail over great-power rivalry. The declaration was passed

unopposed, but the entire Soviet block abstained, along with Saudi Arabia. And yet, remarkably,

even in the depths of the cold war a stream of human-rights treaties was still being signed. Someof the main ones are listed in table 1.

This large body of international human-rights and humanitarian law (the modern term for the

laws of war) is historically unprecedented. It has developed alongside a similar body of international law governing trade, finance, and the exploitation of natural resources such as the

sea. But in these other areas, international law is more akin to contractual agreements, in which benefits are reciprocal and national sovereignty remains largely unaffected. Human-rights law is

different. It touches governments at their most sensitive point: how they exercise power over

their own citizens. Never before have states agreed to accept so many restrictions on their

domestic behaviour, or to submit to international scrutiny.

But has it done any good? Abuses of human rights have remained widespread in the past 50

years. Governments have evaded or ignored their obligations under these treaties with depressingregularity. Even as humanitarian law has been refined, many armed conflicts have been waged as

indiscriminately as ever. The overwhelming majority of casualties are now civilians, not soldiers.

International human-rights law did nothing for the post-war victims of the Soviet gulag, China'sCultural Revolution, Argentina's ``dirty war'' and Cambodia's killing fields. The end of the cold

war in 1989 raised hopes that human rights would be more widely respected, and the 1990s

became the decade of democracy-yet it also brought horrors such as the Rwandan genocide andthe ethnic cleansing of the Balkans.

Sceptics (and there are many) could be forgiven for concluding that the frenzy of treaty-making

which followed the Universal Declaration has mocked such continued and widespread suffering.Indeed, they might ask, does it make sense to call these treaties ``law'' at all, if there is no direct

way of enforcing them? For all the human-rights legislation now in place, they would claim, the

only genuine guides to international behaviour are still national interest and military power.

Such arguments should be treated with respect. Human rights have undeniably been widely

abused, and are still being flouted in many parts of the world. Nevertheless, this survey willargue that human-rights law, for all its failures, has marked a genuine turning point in world

affairs. It has had an influence on countries' behaviour in the past and could play a bigger role in

the future. To make that admittedly difficult case, the best place to start is to see how human-

rights law works in practice.

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Building Blocks

A selected list of human-rights agreements

DATE

Jun 1945 Charter of the United NationsJun 1946 UN Commission on Human Rights

Dec 1948 Genocide Convention/Universal Declaration of Human Rights

Aug 1949 Four Geneva Conventions governing treatment in war of the wounded, prisonersof war and civilians

Nov 1950 European Convention on Human Rights

Jul 1951 Convention Relating to the Status of Refugees

Dec 1952 Convention on the Political Rights of WomenSep 1956 Convention Abolishing Slavery

Jun 1957 ILO's Convention on the Abolition of Forced Labour

Nov 1962 Convention on Consent to Marriage

Dec 1965 Convention on the Elimination of Racial DiscriminationDec 1966 International Convenants on Economics, Social and Cultural Rights/Civil and

Political Rights Nov 1973 Convention on the Suppression of Apartheid

Jun 1977 Two additional protocols to the Geneva Conventions

Dec 1979 Convention on the Elimination of all Forms of Discrimination against Women

Dec 1984 Convention Against Torture Nov 1989 Convention on the Rights of the Child

May 1993 International Criminal Tribunal for Ex-Yugoslavia

Nov 1994 International Criminal Tribunal for RwandaJul 1998 UN conference agrees treaty for a permanent International Criminal CourtSource: UN

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