Nation-states define Human Rights norms

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by Dr. Manoj Kumar Mishra 22 June 2019

Human rights and human security have become buzzwords in international politics. The doctrine of humanitarian intervention which focused its attention on the willingness and capacity of the intervening power has been replaced by a more democratic approach focusing on the needs and aspirations of the needy people affected by civil wars known by the catchphrase – ‘Responsibility to Protect’. Deference to absolute sovereignty is gradually becoming less acceptable due to rising cases of authoritarian regimes perpetrating unmitigated violence against their own people. However, it is powerful nation-states and powerful elites within nations who define the human rights norms primarily because international laws as regards human rights leave enough room for various interpretations and states remain the primary actors in world politics as authors of these laws. 

There is a lack of agreement among the developed countries on the ground situations which would permit intervention, although in many cases post-facto humanitarian explanations have been provided to justify actions and many contrasts are also observed in the manner the cases of civil wars in developing and underdeveloped countries have been handled by the countries of the west on account of their short-term and militaristic view of conflicts. Moreover, in some cases, use of force has been contemplated without exhausting other peaceful and less coercive measures.

By evoking morality – to save oppressed masses from human rights abuses – as an excuse for intervention, the powerful states have sought to occupy a moral high ground to shape international politics in a desired way. The doctrine, at same time, intends to deflect attention from the apathy that the powerful states have shown, over the years, towards the long-term socio-economic needs of the developing and underdeveloped countries, which have largely resulted from their continued but subtle exploitation of these countries towards the fulfillment of their hegemonic aspirations.

The poor countries lacking geostrategic luster for the developed countries and the countries where authoritarian regimes act as their geostrategic partners — do not figure in the developed states’ agenda of humanitarian intervention and strike a discordant note with their morality to intervene.

On the other side, human rights norms encourage the international community to work positively toward defending rights of women and children and providing stateless people shelter and assistance. There has been a steep rise in the development of some important principles derived from and reflected in the practice of states, and set out in instruments such as the 1961 convention on the reduction of statelessness and, the 1997 European Convention on Nationality. These principles profoundly resonate in a number of other human rights instruments of broader application, such as the UN Convention on the Elimination of All Forms of Discrimination Against Women and Convention on the Rights of the Child. Moreover, these norms have been reiterated continually in the declarations by the UN, regional and other bodies. Among the most concrete of these principles are those relating to the avoidance of statelessness and the right not to be arbitrarily deprived of nationality (B. Saul, “Cultural Nationalism, Human Rights and the Right of Self-Determination in Bhutan”, International Journal of Refugee Law, 2000, Vol.  12, p. 339).         

Despite existence of numerous international norms and laws on human rights, they have not been able to transcend the real world order defined by powerful state actors. The human rights revolution that started in the post-World War period has not fundamentally altered the prevailing nation-state system. Although human rights have been incorporated into international declarations and conventions turning individuals into subjects of international law like states, individuals and states enjoy unequal status within international law as individuals are considered merely bearers of rights and not authors of law like states. Human rights norms are negotiated and adopted by the governments of sovereign states and more tellingly the adjudication of human rights in the UN system does not allow individuals to appeal directly to an international court against their governments. It is further worth mentioning that groups or associations at intermediate levels between individuals and states have no firm place in international law. Even the cultural minority rights of Article 27 of the International Covenant for Civil and Political Rights (ICCPR) from 1966 are not formulated as group rights, but as rights of individual persons to enjoy “in community with the other members of their group…their own culture, to profess and practice their own religion, or to use their own language.” (J.J. Preece, ‘Minority Rights in Europe: From Westphalia to Helsinki’, International Studies, Vol. 23, (1997), p. 75).

State versus weak Minority Rights

Neither the United Nations Charter nor Universal Declaration on Human Rights includes reference to minorities, even though there were suggestions to insert a provision on minorities in the latter. The UN General Assembly declared that “the United Nations cannot remain indifferent to the fate of minorities” and explained that agreement could not be reached because of the difficulty of adopting “a uniform solution to this complex and delicate question, which has special aspects in each State in which it arises.” The General Assembly, therefore, requested the UN Economic and Social Council to bring more clarity on the conceptualization of minority. The only legally binding text of a universal nature which refers specifically to minorities although without precisely defining them is Article 27 of the 1966 International Covenant on Civil and Political Rights (ICCPR). The discussion on the draft of Article 27 in the Third Committee of the General Assembly indicated that states were willing to provide for a specific reference to the right of persons belonging to minorities, but that their inclination did not extend beyond a general recognition of limited minority rights.

However, by employing the words “in those States in which…minorities exist,” Article 27 leaves states the option of declaring that they have no minorities. It is the state actor which will have the final say over the question of the status of persons within its territory and subject to its jurisdiction. Second, the rights provided for in Article 27 are conferred on persons belonging to ethnic, religious or linguistic minorities. It is left to the interpretation of the state actor to decide whether citizenship is a precondition for invoking Article 27 or whether indigenous groups are entitled to the rights for which it provides. Third, Article 27 is the only provision in the Covenant which is negatively phrased. Instead of stating that persons belonging to minorities “shall have” the rights specified, it declares that they “shall not be denied” those rights. The text remains ambiguous and leaves ample room for the state actor to interpret as regards the subjects – individuals or groups – to which it applies (J.J. Preece, ‘Ethnic Cleansing as an Instrument of Nation-state Creation: Changing State Practices and Evolving Legal Norms’, Human Rights Quarterly, Vol. 20, (1998), p. 827).

Ambiguity of the Right to Self-determination

The most controversial and contested right has been the right to self-determination and international law remains much ambiguous lending itself to various interpretations. The right to self-determination has not found a reference in the Universal Declaration of Human Rights. Nevertheless, two major human rights Covenants, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights mention about the right in their first article (B. Saul, ‘Cultural Nationalism, Human Rights and the Right of Self-Determination in Bhutan’, International Journal of Refugee Law, Vol.  12, (2000), pp. 321-353). Both stipulate in their Article 1 (1): All peoples have right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 1(2) of both Covenants gives ‘all peoples’ the right to ‘freely dispose of their natural wealth and resources’ while Article 1(3) obliges State parties ‘to promote the realization of the right of self-determination’ and to ‘respect that right’. However, the UN General Assembly’s 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples stipulates at paragraph 6 that any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations – adopted by the General Assembly goes on to affirm the fundamental limitation to the right to self-determination set out and expressed in the 1960 Declaration. Therefore, nationalist elites have the wiggle room to homogenize languages and transform traditional ways of life of minorities even to the extent of muzzling their voices as a way to justify their claim that there is unity in the nation without any dissident groups claiming political autonomy.

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