THE EFFECTIVENESS OF INTERNATIONAL HUMAN RIGHTS LAW: BRIDGING THE GAP BETWEEN DEVELOPED AND DEVELOPING NATIONS IN THE ATTAINMENT OF A UNIVERSAL HUMAN RIGHTS

January 16, 2017

CHAPTER 1 - INTRODUCTION

 

1.1 BACKGROUND 

International Human Rights Law are Laws that are made to protect the fundamental rights of individuals globally at all levels; international, regional and domestic (Smith 2010). They are formulated based on treaties, agreements which are reached at international conventions and other round-table decisions (Brisk 2002).

The United Nations (UN) defines Human Rights as rights inherent to all human beings whatever their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status; we are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible (Head 2013). To couch this definition another way, Nickel (2013) defines Human rights as international norms that help to protect all people everywhere from severe political, legal, and social abuses.

Viljoen 2012 puts forward that International Human Rights Law form the bedrock for domestic human rights in the world. These laws that constitute IHRL are adopted not only at domestic levels but also regional levels; European Convention for Human Rights for Europe, the African Charter for Human and People’s Rights for Africa and the Inter-American Convention on Human and People’s Rights for America-This is to show the scope of influence IHRL has over Human Rights Laws as we know them today (Kaminga et al 2009).

The Universal Declaration of Human Rights (UDHR) 1948 is the foremost document of IHRL, it is the document that can be said to have established what we have come to know as IHRL (Glendon 2001).This Declaration birthed as a result of the fact that, at the time, leaders from various countries of the world such as America, China, France regarded that the utter disregard for human rights lead to the inevitable abuse of living existence; this was reflected in the brutish and inhumane acts of human beings towards one another at the time, especially during WW2 (Glendon 2001, Hayden 2001). This prompted an awareness and subsequent protection of human rights to promote the concept of human dignity (The International Magna Carta 1948).

Considering that the UDHR, which makes up the IBHR, along with the ICCPR and ICESCR treaties, is the blueprint upon which Human Rights Laws at all levels is moulded after, it is essential to foreground this work upon it in order to determine the effectiveness or otherwise of IHRL. To do this, attention is drawn to the preamble of the UDHR 1948 which provides that the people of the United Nations have built and grounded their faith in fundamental human rights thereby creating a sense of dignity and worth in their humanity. It further canvasses for the provision of equal rights to all gender towards social progress and development of a sense of freedom. It is on this basis that the UDHR 1948 was created as the acceptable and established standard of actualization to which all nations must aspire (Preamble, Article 1, Universal Declaration of Human Rights (UDHR) (1948)). An understanding of this will serve as the parameter with which to adjudge how far IHRL have come from the intention of its creation.

The foregoing conveys that it is intended that all nations of the world will have a common stand on the understanding of human rights as it applies to all individuals insomuch as it is a living being referred to. What would be expected is that an individual, irrespective of nationality, age, gender and any other defining social parameter has some inalienable right that any nation is bound to protect and sustain the existence thereof (Smith 2010). The impression, on a larger scale, is one where all countries of the world or member countries within an international community such as the United Nations (UN) will have uniform laws on human rights that will foster an international global village such that confidence is inherent in any individual about his protected prospective rights wherever he steps his foot into, irrespective of the country (Brems (2001).

As much as the above is the ideal upon which IHRL is founded, human rights advocates agree that, sixty years after the issue, the UDHR 1948 is still more a dream than a reality (Brems 2001, Smith 2010).The reality of present day is that all countries are not equal even if we aim that all individuals should be in terms of their inherent human rights. We see this in the incessant report of human violation cases around the world (Amensty International Report 2012).

Albeit human rights’ violations occur everywhere, it is saddening to say the least that statistics have shown that despite having ratified international laws and treaties, developing countries seem to have a higher alarming rate of human rights violations than their developed counterparts (Amnesty International Report 2012).

Donnelly 2006 attributes this disparity to a concept of neo-colonialism; which is the concept that international law is seen as a tool by most developing countries used by developed countries or world powers such as US, Europe and Japan to control developing countries. This perception makes it less appealing for developing countries to accept and ratify international treaties. He is supported in this view by Shashi (2001) who states that the effectiveness of human rights law have been watered down due to some nations’ inability to fully adhere, comply with or promote some international norms perceived as contradicting to their values or their system, labeling most international laws as ‘westernised’. Serat et al 2005, following from the position of Shashi (2001) goes further to say this invariably reflects in the participation of these countries in the implementation of international law and their subsequent ratification of these laws into domestic laws.

On the other hand Beitz (2011) disagrees with the above authors on the issue of the inability to establish a universal human rights system worldwide as per the aim of IHRL via its instruments like the UDHR. He aligns himself with an earlier author Forsythe 2000, saying that the fact that a disparity exists between human rights in developing countries and human rights in developed countries lies with the instrument of enforcement, ratification and interpretation of these laws at regional and domestic levels. Where IHRL have been ratified by nations, it behooves on the nations to ensure that they are committed through legislation and enforcement to adhering to these laws (Beitz 2011).

It is upon the latter premise that this work has been done; as plausible as it seems to lay blame solely at the feet of the World powers (Donelly 2006), time and facts have shown that indeed developing countries have been given room to participate in the development of international law; this is very much reflective in the fact that the call for an ACHR was championed by African Leaders who went as far as drafting and supervising the Charter (Osiatynski 2008). Most African countries belonging to the African Union save South Sudan have signed and ratified the Charter thereby bringing to fore that there is an awareness of these laws without any imposition from the ‘western’ world (Osiatynski 2008). An analysis into the mechanisms of the Charter will prove that indeed the blame for the arising disparity which has led to a high report of human rights violations indeed lies in the bosom of the developing nations themselves. However this is not to say that they can achieve this all on their own as the participation of international bodies such as the UN and assistance from developed counterparts will do so well as to help bridge this gap in the area of human rights (Rehman 2010).

Following this, the research paper intends to determine the efficacy of IHRL at the regional and domestic level paying particular attention to the increase of human rights violations in developing countries. It seeks to draw out the reasons for the inconsistency in the concept of universalism in the area of IHRL in developed and developing nations.

This will be achieved through the study of IHRL at the international level with focus on the IBHR 1976; at the regional level with regard to Europe and Africa-the ECHR and the ACHPR.

 

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