International law does not offer any effective remedy where the government of a State chooses to commit mass human rights violations within its own borders. Do you agree? Explain your answer fully, referring to real world examples.

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LA TROBE UNIVERSITY

FACULTY OF LAW & MANAGEMENT

SCHOOL OF LAW

PUBLIC INTERNATIONAL LAW (LAW2/3PIL)

ESSAY

Question 2

International law does not offer any effective remedy where the government of a State chooses to commit mass human rights violations within its own borders. Do you agree?  Explain your answer fully, referring to real world examples.

Executive Summary

The report gives an overview about international law regarding effective remedies against human rights violations. This paper integrates a comprehensive understanding of human rights in particular human rights violations and operational criteria. Firstly, human rights in an international context will be presented. Secondly, remedies in international law will be analysed. Furthermore, the paper discusses the historical development about powers, politics and remedies in international law in context with human rights.

This report identifies the key human right issues in an international context:

  • Human rights protection by peaceful, political-diplomatic remedies and   International Courts
  • Human rights protection by violent remedies

The report followed up with a discussion and conclusion.

Table of Content

I. Introduction

II. Human Rights

1. Basic Facts

2. Human Rights in International Law

III. Remedies in international law

1. Human rights protection by peaceful, political-diplomatic remedies and   International Courts

2. Human rights protection by violent remedies

2.1. Humanitarian Intervention

2.2. Operational Criteria

III. Critical Discussion about Powers, Politics and Remedies in International Law in Context with Human Rights

IV. Conclusion

I. Introduction

The protection of human rights is a fundamental concern of modern international law and the international law community. Although there are a variety of mechanisms for protecting or safeguarding human rights, they nonetheless are still massively violated in various parts of the world. It has been suggested that if compliance with a legal order is left to the discretion of the parties concerned, law degenerates to a farce. For this reason the question of how effectively the mechanisms and instruments implemented to protect human rights gains fundamental importance.

The incapacity of the United Nations is often cited to explain the lack of enforcement of human rights. Even UN Ex-Secretary-General Kofi Annan expressed criticism of the Organization. Primarily it applies to the inaction of the Security Council. The veto power shows that the UN, like all international organizations, is mainly dependent upon the willingness of support and the interests of its member states. The reform of the UN will decide whether it becomes more or less important in resolving issues of global significance. States may opt to act independently, diminishing the role of the UN; alternatively states may opt to address global issues collectively, resulting in the UN gaining legitimacy in the world order and can meaningfully contribute solving such issues. Certainly using violent measures to make governments to comply with human rights protection is an option, but could only be considered within the scope of the United Nations. However, using diplomatic pressure on countries by various stakeholders is perhaps a more effective remedying the abandonment of human rights violations. This success method has been demonstrated in many cases.

For example, in 2001 the Russian government faced massive amounts of international pressure for its decision to extradite the Tajik journalist Dododjon Atovulloev to Tajikistan as it would be certainly send him to his death. The Russian government succumbed to pressure from abroad, and reneged on its decision. The success of this case could be founded in the fact that such a concession from the government had relatively little “cost” for Russia. However, the variety of criticisms and international scrutiny Russia has received on the war in Chechnya has so far remained unsuccessful.

II. Human Rights

1. Basic Facts

Since the end of World War II human rights have found universal acceptance and play an increasing role in international law. However, their history dates back much further. The roots of human rights can be found in natural law theories of Grotius, Vattel, and Locke in the 17th and 18 centuries. To encounter the atrocities of the war, instruments of international humanitarian law were developed, such as the Hague Convention on Laws and customs of Land Warfare of 1907. At the time of the League of Nations there existed a specific mandate system for the protection of minority social groups. Above all, the Second World War led to a heightened awareness of general human rights. Today human rights are component parts in a variety of international legal agreements. Moreover human rights are within international customary law.

2. Human Rights in International Law

Through the Vienna Convention on the Law of Treaties (VCLT) of 1969 imperative norms of international law were recognized (Art. 53 VCLT). The principle of jus cogens must be universally accepted by the international community. Human rights are also considered as candidates for jus cogens norms in international law. The common interest of all countries to human rights has become very clear through many conventions and the states-practice and opinio juris. Moreover, the formulation of the International Court of Justice (ICJ) in the Barcelona Traction-Case (“basic rights of the human person”) is particularly important. This naming of erga omnes obligations could be understood as a reference to imperative norms in international law. The viewed examples are accepted as jus cogens.

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III. Remedies in international law

International law does offer remedies to protect human rights. Basically a legal remedy is provided through judicial relief. A legal remedy provides a means with which a  can enforce a , any breach of a right can be imposed through a  or through some other . In the context of international law ‘remedy’ means more the possibility to enforce and protect human rights. In other words a remedy is any legal recognized option against an adverse legal status with the aim of repeal or amendment. Human rights violations can also be enforced through other ...

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