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 different approaches which I will examine.
1. Human rights protection by peaceful, political-diplomatic remedies and International Courts
Even in times of peace fundamental human rights are violated. Peace and the protection of human rights are indivisible. The goal of the global community must be to establish a ‘culture of peace’ that provides peaceful remedies of dispute settlement. This requires that the democratic process be strengthened in deficit democracies, e.g. through education, information and communication, involving the local democratic and human rights movements.
Currently the idea of human rights is well established in the international community; so much so that every government who wants to be respected within the international community must recognise basic human rights.
Political and diplomatic instruments are important for the international human rights protection. The activity of international organizations and the work of non-governmental human rights organizations gain importance. It is a combination of international and inner society pressures that can potentially make repressive regimes curtail human rights violations within their countries.
The international community can use coercion and incentives to provoke a change of behaviour. The coupling of development benefits to the human rights practice is often used as an incentive instrument. However, this does not match to the inner political complexity of the states. From domestic point of view human rights violations are often referred as ‘normatively justified’. For breaking the patterns of this legitimacy the civil society actors must be supported, to achieve a combination of international and national pressure.
The influence and role of non-governmental organizations often represents the last hope for victims of Human rights violations. A wide variety of institutions make a significant contribution to the implementation of human rights standards. Maxwell argues that they always come back to the limits of their possibilities. Consequently, an increased attention in the media is desirable about the UN institutions.
The UN has established other non-treaty procedures to respond to human rights violations. The UN Commission on Human Rights (HRC) with its 53 members has the competence to examine human rights violations through two procedures:
Firstly, the ECOSOC Resolution 1235 is a commission authorised to examine information relevant to ‘gross violation of human rights’ and to study situations where there has been a consistent pattern of violence.
The ECOSOC Resolution 1503 provides a confidential procedure for considering alleged violations. It has authorisation to consider communications from individuals and NGOs.
On the one hand the work of the HRC for human rights has become more efficient through a steady series of reforms such as easier access to UN human rights system for NGOs or increasing the powers of relevant UN bodies to monitor human rights situations. On the other hand it also requires the allocation of additional competences to fulfil the task of the HRC and to constitute the claim of universality and neutrality.
Another individual complaint possibility exists through the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Woman (CEDAW). This offers women an effective instrument of human rights against discrimination on the basis of gender. It remains to be seen whether the opportunities offered through this protocol are actually used. Perhaps its success depends upon the intense publicity and dissemination of information.
Contemporary international dispute resolution has undergone a radical transformation over the last decade during which specialist international and regional Courts and Tribunals.
The Inter-American Court of Human Rights (IACHR) and the European Court of Human Rights (ECHR) examples of fully developed regional courts. The existence and functioning of these judicial institutions nourishes the hope to protect human rights even further. However these Human Rights Courts did not provide a solution to all human rights abuses.
Such courts are not empowered to address abuse that occur as a consequence of military action. There is a danger that the system of individual protection will be overwhelmed by the number of incoming complaints by persons on the basis of an armed conflict. Particularly in armed conflicts where mass human rights violations occur through war crimes or crimes against humanity. The establishment of the International Criminal Court (ICC) could provide a better solution in such cases.
2. Human rights protection by violent remedies
The situation in Somalia, Rwanda and the former Yugoslavia illustrates that even a combination of peaceful and non-violent remedies of human rights protection may not be adequate to prevent or terminate all types of human rights abuses from occurring. Only the United Nations has the authority to protect human rights through intervention with external military resources. The Security Council is entitled to take action if threat or breach of peace and acts of assault are obvious.
In connection with the Somalia crisis the Security Council became involved in humanitarian affairs within a state and consequentially revised its definition of a “Threat of peace”. Following the humanitarian crisis in Somalia, it was recognised that large scale human rights violations within a country could constitute a “Threat to peace”. The immense human suffering, which was broadcast on the television screens around the world, promoted this new understanding of a “threat to peace” which placed a greater emphasis on human rights. This new definition recognised that mass human rights abuses within one country could have far-reaching effects beyond its own borders. For example, the crisis in Somalia resulted in an exodus of refugees fleeing to neighbouring countries, placing pressures upon the resources of neighbouring countries, and having somewhat of a destabilizing affect.
2.1. Humanitarian Intervention
The Security Council may authorize states or groups of states to embark upon a military intervention even without the consent of the concerned State. This is not a violation of the international law of the principle of non-intervention or the prohibition of the use of force. The term “humanitarian intervention” is mainly used to justify military intervention of this kind in the territory of a state against its will. Humanitarian intervention aims to protect individuals from further mass fundamental human rights violations from occurring under an oppressive government.
The debate about humanitarian Interventions has been rekindled with the NATO mission in Kosovo. The discussion focuses mainly on the legitimacy of the NATO mission and the conformity with the prohibition of violence and intervention as well as the definition of operational criteria for future humanitarian interventions.
2.2. Operational Criteria
The United Nations have to develop generally accepted criteria for the effective exercise of armed forces. Basically humanitarian interventions should only take place under the following conditions:
For human right protection should peaceful remedies exhausted. The commensurability of remedies regarding appropriateness, necessity and adequacy must always be respected. Moreover there must exist realistic chances for a successful conflict termination .
Bruno Simma considers that the threat and use of force by an international organisation such as the UN would only be justified in extreme situations of human rights abuses such as genocide. He argues that in this case more of an obligation is placed upon external forces to intervene. However, such an approach raises problems. Could an obligation be codified into international law authorising a state to intervene in situations of genocide? It is doubtful this type of remedy will ever eventuate as powerful sovereign states are unlikely to ever agree to such a precise binding obligation. The reasons one country will embark upon humanitarian intervention into another country are highly political. Sceptics may argue that such a country will only intervene in the domestic affairs of another country when it will benefit their own self interest in some way.
The United Nations reflects the different attitudes of the states. While developed countries are not like to talk about disarmament and humanitarian intervention as an obligation, states of the third world avoid human rights issues. As in a tacit agreement both parties do not stir to the sensitive issues. Criteria for humanitarian intervention are highly political and controversial. Therefore the states themselves are not particularly interested on the fixation of ‘objective’ criteria - otherwise they would have to explain, for example, why intervention occurred in Europe rather than in Africa. According to this the political scope of decision would be restricted. If there were agreed criteria, would the options to refuse a commitment be reduced. The consequence is that the international community is more active in the area of abatement of violence rather than in the prevention of the escalation of violence.
III. Critical Discussion about Powers, Politics and Remedies in International Law in Context with Human Rights
The sovereignty of a state could only be violated if this is decided by a majority vote of the UN Security Council. By the end of the Cold War and the beginning of the new Millennium it seems that international law in its old form may ‘run out’.
International law only regulates the use of violence between sovereign states. When dealing with violence within a state, there exists the “principle of non-interference” (Art. 2 (4) UN-Charta) in “internal affairs”. Questions on the legality of the state power itself and the use of violence inside the state can not arise: international law prevails over the legitimacy of states. It sets the rules for international relations and brings it into a legal form. Legal relations between states require the mutual respect, as for their competence, solely responsible legal entity.
At the time of the Cold War international law served for a communication between the superpowers (United States and the Soviet Union) to prevent conflicts. The USSR as a “counter-deterrent-power” exists no more. On the one hand, the legal successor Russia is still in an economic and military orientation process and does not represent an equal hostile superpower to the United States. However, it still can, under international law, stop any use of military force in the UN Security Council by his inherited veto power. Therefore international law lacks legitimacy according to the actions by the United States and NATO. This was revealed during the ‘Gulf War’. Instead of a consensus acting with veto-powers, the United States acted unilaterally. In addition, NATO acted against the expressed wishes of Russia and without a mandate headed the ‘Kosovo War’ against the rest of Yugoslavia. NATO could no longer sit back and watch the “systematic human rights violations” of the Serbs. NATO justified its attack because human rights are more important than the veto and the “principle of non-interference”. This was a change in international law. Thus new geopolitics were founded: ‘human rights breaking international law’. Human rights could play a ‘key role’ in international affairs in the future. The UN Declaration of Human Rights (UDHR), in which states explained their intention to respect certain rules by dealing with humans, is now no longer a mere declaration of intent. It should be seen as binding rules. It should be decided at the handling of a state with its citizens whether a state power is legitimate, or whether it is a regime. Human rights should form the basis for a new foreign policy.
Each state knows the necessity to ensure its orders within its territory, even by force, to enforce its own sovereignty. For ‘special’ emergency security situations, there exists a plan of action even in Western democracies. It gives countries the authority to use political power more forcefully than normal. If the inner conflict of a state is large, the violence of state authorities in exercising control is even greater. The legal question is whether to accuse the State of acting as an authoritarian regime or whether it is acting in the best interests of the population against their enemies or “terrorists” who want to destroy the state. This can only be decided through a previous partisanship. The violence itself does not indicate whether they were legitimate or not.
With an accusation of the violation of human rights, a state can express its hostile attitude towards other government authority. By the official mourning of “human rights” the government may not be concerned about the plight of people. This is often used as an opposition title against the sovereignty of accused states, if it is in their own interest. This indictment, however, needs only to be taken seriously, even if superior potential exists and if it is expected that this could be used. Thus, a state represents its violence against the violence of another. Therefore the human rights issue becomes a completely different content as human rights organizations, idealists, or those concerned take care of it. They want more restraint on the use of the state violence.
Sovereignty, as guaranteed in the Charter of the United Nations and as a natural starting point for the public relations does not exist anymore in the original form. The future will show how the international community will be developed especially in the context of integrating human rights.
IV. Conclusion
International law does offer effective remedies for human rights violations within its own borders of a state. These remedies should be used. Each member of the international community is empowered to take sanctions against violations of erga omnes-phrases and norms of jus cogens-quality. The symbolic power of an indictment in a foreigner country offers the international community a new possibility. For example this was demonstrated in the Pinochet-Case, that even former heads of states may be threatened by individual criminal prosecution to their human rights violations. With regard to certain offences, there may be even an obligation to punish under international law. It remains to be seen; practice will be developed in the future. In all an active human rights protection is the precondition for peace.
Resources
I. Articles
1. Arne Johan Vetlesen, Genocide: A Case for the Responsibility of the Bystander (2000) 4 Journal of Peace Research 519.
2. Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects (1999) 10 European Journal of International Law 1.
3. Peter van Tuijil, NGOs and Human Rights: Sources of Justice and Democracy (1999) 52 Journal of International Affairs 493.
4. Marina Ottaway, ‘Corporatism Goes Global: International Organizations, Nongovernmental Organization Networks, and Transnational Business’ (2001) 7 Global Governance 265.
5. Martha L. Schweitz, NGO Participation in International Governance: The Question of Legitimacy (1995) 89 American Society of International Law Proceedings 415.
6. Kate Eastman, Human rights remedies : a guide (1992) 4 Alternative Law Journal 169.
7. Thomas M. Antkowiak, Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond (2008) 46 Columbia Journal of Transnational Law 351.
8. Michael P. Maxwell, NGOs in Russia: Is the Recent Russian NGO Legislation the End of Civil Society in Russia (2006-2007) 15 Tulane Journal of International and Comparative Law 235.
9. Robert C. Power, Pinochet and the Uncertain Globalization of Criminal Law (2007) 89 George Washington International Law Review 39.
II. Books
1. Henry Steiner, Philip Alston, Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd ed, 2008).
2. Gillian Triggs, International Law: Contemporary Principles and Practices (2006).
3. Leon Gordenker, Thomas G. Weiss, NGOs, the UN, and Global Governance (1996).
4. Dinah Shelton, Remedies in international human rights law (2nd ed, 2005).
5. Goerg Meggle, Ethics of Humanitarian Intervention (2004).
6. Peter Malanczuk, Akehurst's Modern Introduction to International law (7th ed, 1997).
7. Malcolm N. Shaw, International Law (4th ed, 1997).
8. Trevor C. Hartley, European Union law in a global context : text, cases and materials (2004).
9. Svetlana Sidorenko-Stephenson, Legal Reform and Human Rights in Russia: Key Developments and Actors (1998).
10. Peter Butt, Concise Australian Legal Dictionary (3rd ed, 2004).
11. Henning Boekle, The United Nations and the International Protection of Human Rights. An Appraisal, in: International Peacekeeping, 5-6/1999, S. 182ff
III. Internet
1. http://www.globaolpolicy.org.
2. .
3. .
4. .amnesty.org.
5. .
6. http://www.ifex.org.
Globalpolicy, Kofi Annan, The Effectiveness of the International Rule of Law in Maintaining International Peace and Security (1999) Global Policy Forum, <http://www.globalpolicy.org/component/content/article/150/32601.html > at 1 June 2009.
The five permanent member states (USA, Russia, China, UK, France) of the UN Security Council have veto power.
International Freedom for Expression, Fears for arrested Journalists safety if extradited to Tajikistan (2001) ifex Homepage, < http://www.ifex.org/russia/2001/07/09/fears_for_arrested_journalist_s/> at 1 June 2009.
Svetlana Sidorenko-Stephenson, Legal Reform and Human Rights in Russia: Key Developments and Actors (1998) 12.
Thomas M. Antkowiak, Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond (2008) 46 Columbia Journal of Transnational Law 351.
Henry Steiner, Philip Alston, Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd ed, 2008) 747.
Art. 2 UN-Charter is written that the peoples of the United Nations should have “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women [..] affirm”.
All Texts for Human Rights, for example: ICCPR, UDHR, CAT, CEDAW.
Gillian Triggs, International Law: Contemporary Principles and Practices (2006) [2.33].
Malcolm N. Shaw, International Law(4th ed, 1997) 97.
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Reports 1970, p. 3, 32.
Peter Butt, Concise Australian Legal Dictionary (3rd ed, 2004) 373.
Dinah Shelton, Remedies in international human rights law (2nd ed, 2005) 58.
Steiner, Alston, Goodman, above n 6, 59.
Gillian Triggs, above n 9 [14.1].
Peter van Tuijil, NGOs and Human Rights: Sources of Justice and Democracy (1999) 52 Journal of International Affairs 493.
Martha L. Schweitz, NGO Participation in International Governance: The Question of Legitimacy (1995) 89 American Society of International Law Proceedings 415.
Peter van Tuijil, above 17, 493.
Michael P. Maxwell, NGOs in Russia: Is the Recent Russian NGO Legislation the End of Civil Society in Russia (2006-2007) 15 Tulane Journal of International and Comparative Law 235.
Gillian Triggs, above n 9 [14.113].
Such a Optional Protocol exists in the ICCPR as well; Kate Eastman, Human rights remedies : a guide (1992) 4 Alternative Law Journal 169.
Steiner, Alston, Goodman, above n 6, 175.
Gillian Triggs, above n 9 [11.3].
Thomas M. Antkowiak, above n 4, 351.
Arne Johan Vetlesen, Genocide: A Case for the Responsibility of the Bystander (2000) 4 Journal of Peace Research 519.
Resolution 751 in 1992 (“Deeply disturbed by the magnitude of the human suffering caused by the conflict and concerned that the continuation of the situation in Somalia constitutes a threat to international peace and security ... .“).
Arne Johan Vetlesen, above n 28, 522.
Goerg Meggle, Ethics of Humanitarian Intervention (2004) - Rudolf Schuessler - 233.
Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects (1999) 10 European Journal of International Law 4.
Goerg Meggle, above n 31, 236.
Resolution 807 in 1993; Resolution 827 in 1993.
The NATO-member Turkey, whose stability the NATO is interested in, were allowed the war against the Kurds (Resolution 688 in 1991).
Gillian Triggs, above n 9 [14.99] “no state ever complained to a human rights committee alleging violations by other states”.
Robert C. Power, Pinochet and the Uncertain Globalization of Criminal Law (2007) 89 George Washington International Law Review 39.