Human Rights And International Order

Human Rights And International Order – A Dilemma. Written by Major Abdul Latif Mohamed RMAF for International Law and Organization Final Examination.

“One of the striking developments in International Law since the end of the Second World War has been a concern with the protection of human rights. This development is the reflection of a wider phenomenon: the increased concern of people all over the world with the treatment accorded to their fellow human beings in other countries, particularly when the treatment fails to come up to minimum standards of civilized behavior”.[1] The impact of this development on the international order can be very subjective on what paradigm one was in. Scholars in the liberal tradition will not connote this phenomena as an international disorder since in this camp the well-being of individual and human rights are prioritize over the state’s rights. On the other hand, bearers of realism or ‘power politics’ school of thought will criticize this development as an attack to the international order. Thus Hedley Bull, a distinguished scholar in Realism paradigm, while explaining the subject of international law in his book The Anarchical Society, illuminating the issue of human rights by his remark “It is simply to observe that in our times, the international discussion on human rights and duties in international law is more a symptom of disorder than order”.[2] His thought can be elaborated if one refer to his same writing on the subtitle, The Nature of Order in World Politics: “the idea of duties of the individual human being raises in the international politics, the question of the duties he has that conflict with his duties to the state – the question that the Nuremberg War Crimes Tribunal raised in relation to the German soldiers and political leaders, and which is also raised in relation to the American soldiers and leaders responsible for the prosecution of the Vietnam War. And the idea of rights of the individual human being raises in international politics the question of the right and duty of persons and groups other than the state to which he owes 1

allegiance to come to his aid in the event that his rights are being disregarded – the rights of Western powers to protect the political rights of the citizens of Eastern European countries, of Africans to protect the rights of black South Africans, or of China to protect the right of Chinese minorities in South-east Asia. These are questions which, answered in a certain way, lead to disorder in international relations, or even to the breakdown of international society itself”.[3] Hence in discussing his thought about international disorder with respect to the propagation of human rights and duties, one must understand what constitute order in world politics. According to Bull, order can be achieved when there is a “general acceptance of the principle that men and its territory are divided into states, each with its own proper sphere of authority, but link together by a common set of rule”.[4] This common set of rules, which are called International Law, has three set of function, which can be utilized to maintain order. First, it shall identify and endorse the principle of political organization that can be agreed universally. Secondly it shall state the basic rules of coexistence among states and other actors in international society. These basic rules are restriction of violence among states and other actors, represented by such rules as those associated with jus war tradition or jus ad bellum, upholding promises among them, represented by the principle of pacta sunt servanda, and stability of possession by recognition of each other’s independence or sovereignty.[5] Thirdly the international law should function by mobilizing states compliance with the rules of society. [6] By advancing the human right and duties issues internationally, rules relating to sovereignty will be challenged since they intervene with the states rights, in some circumstances even elevated an individual to a position where they can be considered subjects of public international law, on par with status of states.[7] Human rights issue also create disorder in the sense that it reduces the compliance of states towards the rules of international society since what constitute human rights or on what aspects

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on human rights which should be stressed upon, differ culturally or religiously from one state to another. This paper will discuss briefly the developments of human rights, how disorder emerges due to human rights intervention on state sovereignty, why does this issue reduces states compliance to international law and consequently render international disorder. The subjects of human rights “did not enter into the IR [International Relation] vocabulary until World War II. A good indication for this is that the Covenant of the League of Nations was silent on the question of human rights. Only article 23 perfunctorily acknowledges a responsibility of member states to enhance the social welfare of their citizens in certain areas.”[8] “At the end of World War II, when the utter magnitude of the Nazi slaughter of Jews and others in the concentration camps was unambiguously known, the conscience of the world was mobilized, and the human rights became an issue of legitimate, international debate. Other acts of sheer barbarism perpetrated by totalitarian regimes, from Europe to the Far East, only perpetuated the desire for the United Nations that would prevent the atrocities and international anarchy that had plagued the planet since 1918.”[9] This development led to the establishment of United Nations Commission on Human Rights in 1946. Subsequently the United Nations began formulating “a set of definable principles and standards, something approximating an international bill of human rights. This was created by way of the following documents: Universal Declaration of Human Rights (1948) Genocide Convention (1948) International Covenant on civil and Political Rights (1966) International Covenant on Social, economic and Cultural Rights (1966) 3

The Universal Declaration was the first to postulate for all nations such percepts as “life, liberty, and the security of person,” and the “freedom of thought, conscience, and religion” (UN Doc. A/810, December 10, 1948, 71).”[10] The Genocide Convention “was passed by the General Assembly of the United Nations Organization in December 1948 and came into force in January 1951. Genocide is defined in the Second Article as an act of destroying, in whole or in part, a national, ethnical, racial, or religious group. Such acts are held to include: killing, seriously injuring or causing mental harm to members of such groups, inflicting upon such groups adverse living conditions so that the physical destruction of the group is threatened, deliberate attempts to prevent members of the group from having children, and forcibly transferring children from one group to another.”[11] The United Nations Commission also worked on the “two covenants designed to give substance to the general declaration: the first on economic, social and cultural rights and the second on civil and political rights. The first was passed by the General Assembly in 1966 (although it did not become operative until ten years later) but the second covenant has had a much more difficult ride and the investigatory Committee established has constantly run up against recalcitrant governments insisting on the overriding principle of states rights”[12] which is sovereignty. Sovereignty has always been in conflict with human rights issue. “The lack of central authority in the international system”[13] leads to the condition where every state has a supreme enforcement authority on its population within its territory. In international society state is defined by Bull as independent political communities each of which possesses a government and asserts sovereignty within its territory to the human population.[14] There are what he called internal sovereignty, which means “supremacy over all other authorities within that territory and population” and external sovereignty which means “independence of outside authorities.” The Penguin Dictionary of International Relation give a clearer understanding of sovereignty: “sovereign states are judges in their

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own cause have an absolute right to go to war to pursue their conceived interest and can treat those who fall within their domestic jurisdiction in their own way.”[15] Hence states want to protect as much as possible their freedom of action and any intervention will cause a disorder within the international society. “International law writers since Grotius have claimed that the consent of states is the foundation of international law.”[16] This had been pointed out starkly by Chinese Deputy Foreign Minister Liu Huaqui when he stated: “Nobody should put his rights above those of the state”.[17] International human rights discussion has give rise to a conflict between the requirement of interstate order and individual justice. Human rights advocate subscribe to the political theory that assumes the state provides for the security and welfare of its citizen. Unfortunately in too many parts of the world, states are the principal threats to their citizens’ security.[18] Chinese government harsh crackdown on democracy movement at Tiananmen Square illustrates clearly one of the examples of human rights abuses by state. Eventually “doctrine of state sovereignty (a legal license to “do your own thing”) and its corollary of nonintervention (an injunction to “mind your own business”) rest in uneasy balance with human right concern (which seems to tell us that “you are your brother’s and sister’s keeper”)”.[19] “These tension between the claims of those who criticize human rights violations and the states who protest such interference”[20] eventually lead to disorder within international society. The problem of human rights towards disorder is not only on the aspect of interference with state sovereignty. Perception or understanding of human rights concept also creates tension between states. “In the West the rights of individuals to be free from the interference of others is paramount, whereas in the East economic and social rights took precedence over civil and political rights. Liberty in socialist states was expressed primarily in social and economic terms: in liberal states it is largely a civil and political affair. Therein perhaps lies an important dimension of the tension between the two

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systems, and because of its emphasis on economic development rather than the legal protection of civil liberties the Third World tends to prefer the socialist view. After all, subsistence and basic needs are often a more immediate and pressing concern than constitutional niceties and protective legal procedures”.[21]This tension within the international arena can be clearly seen by the non-Western world’s objection to being judge according to the West’s interpretation of human rights.[22] Led by Malaysia, a coalition of Third World states in the General Assembly reacted violently in The Human Development Report issued by the United Nations Development Program (UNDP) in 1991.[23] In their view, the index was culturally biased, inaccurate and outdated. “The index, they said, had little to do with how a country meets its people’s basic needs, which the annual Human Development Report purports to measure.”[24] The Third World states view that all human rights are “indivisible” and places its claims to the right of development on a par with the west concern about individual right, such as the right to liberty and to the security of person.[25] In presenting the conflicting views, James C.Hsiung contends: “the South singled out each nation’s right to choose freely its own socio-economic and political system, and to exercise full sovereignty over its wealth and natural resources…..Obviously this expressed a central grievance of the developing nations that the West often tries to dictate to them on their domestic system….The West, for its part, rejects the notion of collective rights for states or peoples. Typically, countries like the United States define human rights in terms of the rights of individuals and oppose even the possibility that civil or political liberties of individual can be delayed to accommodate the social or economic development of the state…..In contrast, the former Soviet Union and other left leaning states staunchly supported the “right to development.” They backed the notion that compensation should be sought by the developing countries for past colonization, which to them represented “acts of aggression” (Commission on Human Rights Res. 1985/43).”[26] The division of

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opinion is a precedent of potential conflicts between the Third World and the West which will constitute disorder. Definition of human rights not only differs culturally, the interpretation of it through the religious spectacles also varies. States that follow Islamic Law did not prescribe to the notion of human rights as propagated by the West. Saudia Arabia had been abstaining from voting on the Universal Declaration of Human Rights in 1948.[27] In fighting back the United Nation Human Rights Commission adverse report against Sudan, Abdelaziz Shiddo, Sudan Minister of Justice at that time asked: “Who am I to follow: God….or….the UN…..?”[28] Unlike the Western idea, Islam prioritizes protection of human being according to several levels. The first thing that should be protected is the “Deen” or the religion itself since it determines success or failure in this world and in the hereafter. This is realized through the injunction from the Qur’an: “O you who believe! Enter perfectly into Islam (by obeying all the rules and regulations of the Islamic religion) and follow not the footsteps of Shaitan (Satan). Verily! He is to you a plain enemy.”[29] The second level of human being that shall be protected is the life: “Because of that We ordained for the Children of Israel that if anyone killed a person not in retaliation of murder, or (and) to spread mischief in the land, it would be as if he killed all mankind, and if anyone saved a life, it would be as if he save the life of all mankind.”[30] Also in another verse, “O you who believe! Al-Qisas (the Law of Equality in Punishment) is prescribed for you in case of murder…”[31] The next level that shall be protected is the mind, which is realized through the prohibition of alcohol: “They ask you concerning alcoholic drink and gambling. Say: In them is a great sin, and benefits for men, but the sin of them is greater than their benefit.”[32] The fourth level is the protection of property: “O you who believe! Do not eat up your property among yourselves unjustly except it be a trade amongst you and by mutual consent. And do not kill yourselves (nor kill one another). Surely, Allah is the Most Merciful to you.”[33] Finally, the protection of dignity: “Men are

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the protectors and maintainers of women because Allah has made one of them more (strength) than the other, and because they spend (to support them) from their means. Therefore the righteous women are devoutly obedient (to Allah and their husband), and guard in their husband’s absence what Allah orders them to guard (e.g. their chastity, their husband’s property).”[34] “Like the Judeo-Christian tradition, there is much in Islam that would seem to augur well for the protection of individual dignity. The concept of dhimmis promises Christians, Jews, and the other groups that an Islamic country is committed Christians, Jews, and other groups that an Islamic country is committed to protecting, the possibility of existing within an Islamic states. Moreover the Koran encourages moderate life, without inordinate emphasis on wealth-building: “And thus we have made you a people with moderate virtues in order that you may be a witness to men” (2:143). Islam also fears poverty, for it can lead the poor away from God. Thus, a Muslim expects his or her state to help meet the basic needs of housing, food and clothing for all.”[35] Understandably “the role of government, the state, religion and the rights of the individual are fundamentally different under Islam from what exists in the West.”[36] Muslim believe that since human being is created by God, then God knows what are considered good or bad, beneficial or harmful for the human being and for the rest of the world. In “Islam the rights of the community come before the rights of the individual; for Muslims duty to God, from whom all human beings emanate, is logically prior to obligations to individuals.”[37] Hence “Islamic government exists to ensure that the Shariah (laws stemming from the Koran, the Sunnah,[38] the Ijma’[39], and the Ijtihad[40]) is enforced.”[41] Hence an encroachment of Western human rights advocates towards Islamic states will surely create conflicts of values and eventually reduce Islamic states compliance to this part of international law. Bangkok Declaration in April 1993 which were attended by China, Vietnam, Indonesia, Iran,

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Syria, Burma and Singapore bring together the disputed issues on human rights by proclaiming that human rights must be addressed in the context of national and regional peculiarities and various historical, cultural and religious background.[42] Consequently, it is clear that the conflict over whether there can be uniform common standards in human right adherence will be hard to resolve since the perception of human rights within the community of states varies, there is no single definition of what human rights are that can be agreed by all states, advancing the issue of human rights will create more disorder than order. As much as human rights issue disturbs international order so is the issue of human duties. As what Bull contended: “the question of the duties he [human being] has that [sometimes] conflict with his duties to the state.”[43] Even though the “trials of war criminals at Nuremberg and Tokyo imposed direct responsibility on individuals and dismissed the defense of superior orders”,[44] the selectivity of the trials display absent of common standard which apply to all. Human rights issue in these cases did not apply to the victor but to those that lost the war. As much as the Germans and the Japanese committed the crimes against civilian population, so were the Allies in the fire bombing of Dresden. Nagasaki was bombed before reaction from Japanese on the Hiroshima can be assessed. Hence the ‘victor’s justice’ will only create a double standard within the international law since those who disagree will easily “point out that there had been terrible deeds on both sides in the war, and that in some areas, such as submarine warfare and city bombing, the Allies, just as much as the Axis powers, had ignored existing treaties and legal principles.”[45] In conclusion, international discussion on human rights and duties in international law is more a symptom of disorder than order since sovereignty of states will be at stake. The absence of universal standards on human rights and duties will create conflicting views and hence reducing states compliance towards international law. This in essence is more a notion of disorder within the 9

international society. Total word count: 3049 words. Written by Major Abdul Latif Mohamed RMAF for International Law and Organization Final Examination.

[1]

A.H. Robertson, Human Rights In The World, Manchester University Press, 1992, p.1

[2]

Hedley Bull, The Anarchical Society, Macmillan London, 1977, p.147

[3]

Ibid, p.80

[4]

Ibid, pp. 134-135

Rick Fawn and Jeremy Larkins, International Society After the Cold War, “Theoretical Interpretations and Practical Implications”, St. Martins Press Inc., 1996, p.5 [5] [6]

Hedley Bull, The Anarchical Society, Macmillan London, 1977, p. 135

[7]

James C. Hsiung, Anarchy And Order, Lynne Rienner Publisher, 1977, p.109

[8]

Ibid, p.107

Carol Rae Hansen and Hilary Poole, Human Rights: The Essential Reference, “Totalitarianism, World War II, and the Holocaust”, Oryx Press, 1999, p.52 [9]

[10]

James C. Hsiung, Anarchy And Order, Lynne Rienner Publisher, 1977, p.110

Graham Evans and Jeffery Newnhem, The Penguin Dictionary of international Relations, Penguin Books 1998, p.197 [11] [12]

Ibid, p.229

[13]

James C. Hsiung, Anarchy And Order, Lynne Rienner Publisher, 1977, p.87

H. Bull, The Anarchical Society, “The Concept of Order in World Politics, Macmillan London, 1977, p.8 [14]

Graham Evans and Jeffery Newnhem, The Penguin Dictionary of International Relation, Penguin Books 1998, p.504 [15]

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[16]

Fernando R. Teson, A Philosophy of International Law, Westernview Press 1998, P73

Paul Marshall and Luis E. Lugo, Sovereignty At the Crossroad?, “Universal Human Rights and the Role of the State”, Rowan and Littlefield Publisher 1992, p.153 [17]

Nicholas J.Wheeler and Justin Morris, International Society After the Cold War, “Humanitarian Intervention and State Practice at the End of the Cold War”, St. Martin’s Press Inc. 1992,p.153 [18]

Richard Pierre Claude and Burns H.Weston, Human Rights in the World Community 2nd Edition, University of Pennsylvania Press 1993, p.3 [19] [20]

Ibid, p.3

Graham Evans and Jeffery Newnhem, The Penguin Dictionary of International Relation, Penguin Book 1998, pp. 230-231 [21] [22]

James C.Hsiung, Anarchy and Order, Lynne Rienner Publisher London, 1997, p. 113.

[23]

Ibid, p.113

[24]

Ibid, p.113

[25]

Ibid, p.120

[26]

Ibid, p.121

Graham Evans and Jeffery Newnhem, The Penguin Dictionary of International Relation, Penguin Book 1998, p.229 [27]

Paul Marshall and Luis E.Lugo, Sovereignty ant the Crossroad, “Universal Human Rights and the Role of State”, Rowan & Littlefield Publisher Inc. 1992, p.154 [28] [29]

Abdullah Yusuf Ali, The Translation of the Qur’an, Asir Media Istanbul 2002, 2:208

[30]

Ibid, 5:32

[31]

Ibid, 2:178

[32]

Ibid, 2:219

[33]

Ibid, 4:29

[34]

Ibid, 4:34

Carol Rene Hanson and Hilary Poole, Human Rights: The Essential Reference, Oryx Press 1999, pp 130-131. [35] [36]

Ibid, p.130

Graham Evans and Jeffery Newnhem, The Penguin Dictionary of International Relation, Penguin Book 1998, p.230 [37] [38]

These are the Hadith and the decision of Muhammad.

[39]

These are the consensus of opinion of the ulama (judges).

[40]

These are the counsel of judges on a specific case.

Carol Rene Hanson and Hilory Poole, Human Rights: The Essential Reference, Oryx Press 1999, p.130 [41]

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Paul Marshall and Luis E.Lugo, Sovereignty At the Crossroad?,”Universal Human Rights and the Role of the State”, Rowan and littlefield Publisher, 1992, p.153 [42] [43]

Hedley Bull, The Anarchical Society, Macmillan London, 1977, p.80

Lung Chu Chen, An Introduction To Contemporary International Law: A Policy Oriented Perspective, “Protection Of People: From Alien Rights To Human Rights”, 2000, p. 198 [44]

Adam Roberts, Micheal Howard, George J. Andreopoulos and Mark R.Shulman, The Laws of War, “Land Warfare: From Hague to Nuremberg”, Yale University, 1994, p.135. [45]

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