Let me begin by telling you why I am noding this in the first place- because I want to clear up my head. I have my Uni finals coming up in a month's time, and this seems to be a common IR question! And while I'm reasonably familiar with Human Rights, I haven't given International Law the attention that I should have. So in this node, I am going to develop my ideas as I write. Basically, I'm trying to answer one simple question: are human rights laws compatible with international laws?
So, the next and most obvious question is why shouldn't they be? This brings us to the nature of human rights laws. Now most human rights laws are in the form of treaties, some are in the form of customs and an increasing number are in the form of judicial decisions. But let's deal with the bulk of human rights laws- treaty laws. Treaty laws are the highest form of international law and must always take precedence over customary law. Now human rights laws have something unique to them- when you sign up to a human rights treaty, you are in effect abrogating a part of your sovereignty to a foreign body or institution which can then monitor your track record vis-a-vis human rights.
Then you may argue, this isn't all that different from say, normal treaties- like the Geneva Convention. But they are, and in a very fundamental way. Most international treaties are meant to deal with the conduct of a nation state in international society, human rights laws deal with the states actions within their own territory. This brings us to the classic clash between human rights and national sovereignty. If you believe that human rights must always take precedence, then you also believe that if a country violates human rights, it is perfectly legitimate for other nations to take whatever means necessary to protect the civilians within that country from human rights abuses. But this would also mean that you then support violation of national sovereignty for the purpose of upholding human rights. This is the classic dilemma facing many international lawyers. Humanitarian intervention has been a growing trend in the 1990s. Since international law is based on the sovereign equality of all nations, violation of that sovereignty to uphold international law would seem to challenge its very fundamental premise. This is why there has been such a huge debate in recent times about the legality of humanitarian intervention.
Now, having laid out where I believe the fundamental clash between human rights and international law lies, I am now going to make the following argument: I believe that if you uphold human rights, and consistently violate sovereignty, without a proper and fair mechanism by which you can do so, you then undermine the basis of international law, and thereby threaten human rights in the future. This means that I am also saying that there is a growing norm of humanitarian intervention, but it is hard to call it 'legal'. However, if we do accept that humanitarian intervention may be necessary, we must then find a proper mechanism for enforcing it, otherwise, in the hands of a select few nations, it could be a potent tool, that could then undermine human rights and international law in the future.
In this context, I am rejecting the argument that human rights can have many dimesions- e.g. Mahathir Mohammad's famous statement about their being 'Asian values'. I am going to argue that certain rights- such as freedom of expression, right to life and liberty and so on, are so fundamental that they are beyond dispute. And in many cases, where culture or tradition are used as excuses to account for persistent violations (e.g. the argument that Female Genital Mutilation is an 'African tradition') it is merely used to cover up, more often than not, blatantly patriarchal and discriminatory practices that no civilized religion or culture would sanction.
Let's deal with this argument step by step. First, I am arguing that there is no real mechanism for enforcing human rights. There is plenty of evidence for this- we see that the International Criminal Court hasn't taken off the ground, and that decisions of the International Court of Justice can be ignored (USA did so in the Nicaragua case, and Israel now refuses to recognize its jurisdiction over the Wall) or flouted. Yes, tribunals have been set up in Rwanda and the former Yugoslavia, but they are slow working, and will not really deter future perpetrators of genocide.
But despite this lack of mechanism, the norm of humanitarian intervention is indeed a popular one. In the post Cold War era, it has been somewhat easier to get Security Council authorisation, and with growing media coverage and the 'fall out' of the CNN effect, the pressure on countries to 'do something' is greater. Also, more countries than ever are willing to commit themselves to a human rights regime. The reasons for this could be manifold. Realists would argue that they are being compelled to do so by force and by Great Power hegemony. Liberals would argue that nations have ideational reasons for upholding human rights. I find Moracvsik's 'republican liberalism' theory most interesting- he argues that states agree to human rights treaties because they hope that by delegating a part of their sovereignty to a foreign body they hope to be able to preserve democratic institutions within the nation and to increase their own credibility. So he argues that new democracies would be the keenest to join a human rights regime, whereas established democracies would not see the point, as they would lose their ability to govern completely independently without gaining much stability in return.
I won't elaborate on this theory in depth, but it brings me back to my point about human rights and international law. So far we've established that there is indeed a pressing need for humanitarian intervention in many situations, such as Rwanda, and there is the growing importance of human rights worldwide. But how is this going to be enforced? We don't have any enforcing body, and with a Security Council veto, it is unlikely that action will ever be taken against the Big Five. This is where I think the danger of human rights laws come in. Most humanitarian action till date has required the assistance or at least the active participation of the Big Five to be successful. This means that it allows the Big Five to violate the sovereignty of smaller states, on the pretext of upholding human rights, if they wish to. And there is no mechanism in place to prevent it. Given that international law does not sanction violation of sovereignty, as per Article 2.7 of the UN Charter, this means that international law is quite helpless in the face of the onslaught of human rights.
While I was going through some of the other nodes, I looked at the node on International Law. That has a number of excellent WUs on debates that directly tie in to this question- questions about whether international law is really law at all, or how international law ought to be enforced?