Review of Human Rights in Global Politics

The fiftieth anniversary of the Universal Declaration of Human Rights in 1998, coming in the decade after the resurgence of Western-style liberal democracies, has generated much writing and activity over the current status and future development of international human rights law, practice, and discourse. International lawyers tend to take for granted the canon of rights that, in the wake of the Universal Declaration, have been enshrined within the body of international instruments that have been adopted within regional and global arenas. In the 1990s, these lawyers largely turned their attention away from standard setting and to issues of effectiveness. Considerable energy has been directed toward achieving universal ratification of the major human rights treaties, toward removal of crippling reservations, and toward development of innovative methods of enhancing treaty p·erformance. Thus, a number of recent studies have examined ways of improving the institutional enforcement mechanisms1 and, more generally, have grappled with issues of compliance with international law.2 Meanwhile, human rights activists and their organizations have invested significant resources in a strategy of legalitythat is, a belief that claims are strengthened when encapsulated in law. State support has been successfully mobilized to establish new institutional mechanisms (for example, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and an individual complaints and inquiry procedure3 for the Convention on the Elimination of All Forms of Discrimination Against Women), as well as to forge agreements on such matters as an international criminal court and an African court of human rights. Attention has also been turned to ensuring international accountability for denial and abuse of rights-including by nonstate actors. This same belief in the efficacy of law has motivated campaigns, led primarily by nongovernmental organizations (NGOs), to recognize the applicability ofinternational human rights to groups (notably women, children, gays, and indigenous, migrant, and displaced persons) that have been perceived as excluded from the accepted understandings of the legal instruments-thereby giving real meaning to the concept of universality

Human Rights

The legalisation and judicialisation of international human rights have founded arguments that human rights constitutes a sub-discipline of international law, a ‘distinct jurisprudential phenomenon’, indeed a ‘special law’, central to the anxieties about the fragmentation of international law. The human rights world is a very different one from that envisaged by the VCLT: the latter is an empty, amoral world where States have reciprocal dealings only with other States, where there are no people hurt by States’ actions and demanding reparations, no international institutions creating special mechanisms peopled by experts for monitoring and reporting and no non-governmental organizations (NGOs) demanding accountability. It is not surprising that human rights advocates are uncomfortable with the narrow perspective of the VCLT. They make claims for the supremacy of the ‘special law’ of human rights as the basis of an embryonic global or regional constitutional order that challenges accepted principles of general international law such as State consent and State responsibility. Further, NGOs feel a sense of ownership towards a human rights treaty for which they have campaigned. Somewhat inconsistently, they may lobby for the hard legal form but seek to ignore (and persuade others to ignore) what they perceive as legal formalities once a treaty has come into force. This chapter explores some of these claims and the extent to which the ‘special character of a human rights treaty’ impacts upon the applicability of the VCLT or has been influential in the evolution of the modern law of treaties. It examines the threshold question of what constitutes a human rights treaty and looks at a number of significant areas where the applicability of the VCLT has been explored or contested, in particular with respect to its impact on State obligations. It concludes that apparent deviation from the VCLT often in fact falls within its residual scope and that this flexibility has allowed for an expansive application of human rights treaties in order to enhance their scope of protection. Differences in approach may depend upon the identity of the decision-maker, for example specialist human rights bodies may be less ready to accept the constraints of treaty law than government officials or ‘mainstream’ bodies of international law such as the International Law Commission (ILC) or ICJ

Peoples\u27 Tribunals: Legitimate or Rough Justice

The article examines the use of Peoples\u27 Tribunals in seeking access to justice where none has been possible through more formal methods. It uses as illustration the Women\u27s International War Crimes Tribunal that sought justice for the so-called comfort women, the primarily Asian women who were subjected to sexual slavery by the Japanese military before and during World War Two. The article briefly recounts the fate of the comfort women and then considers the legal and practical obstacles they faced in accessing justice at the end of the War. It outlines how towards the end of the 20th century the survivors broke their silence about these events and unsuccessfully sought justice through national and international mechanisms. The Women\u27s Tribunal was created out of the failure to receive appropriate redress. From this particular example the article discusses more generally the concept of Peoples\u27 Tribunals in delivering justice (especially gender justice) and assesses whether such institutions of civil society have any legitimate and effective role in providing justice where none has been given by the state

Adoption of 1325 Resolution

UN Security Council Resolution 1325 was not adopted in a vacuum, but rather can be read with a number of other programs within the Security Council (SC) and UN architecture. These include other thematic resolutions, as well as broader policy initiatives. Taken together, these diverse strands sought to shift the understanding of the SC’s role in the maintenance of international peace and security, away from a classic state-oriented approach to one that places people at its center. The adoption of Resolution 1325, along with these other developments, had implications for the making of international law (the place of civil society and experts within the international legal and institutional framework), for rethinking participation, and the meaning of security/protection. This chapter suggests that 2000 was a pivotal moment when a more human-oriented international law seemed a real possibility and before the turn back toward militarism and national security in the wake of the terrorist attacks of September 11, 2001

Alternatives to Economic Sanctions

Considering the merits of non-coercive alternatives to economic sanctions inevitably risks the charges of idealism and naIvete. However a number of speakers in this conference have raised considerable doubts about the efficacy of sanctions: even on their own terms sanctions rarely work and the material costs to non-targeted states and the implications for human rights make their justification problematic, even when they can in some sense be said to have worked. It therefore makes sense at least to give consideration to some non- coercive alternatives, either in conjunction with sanctioning policies or separate from them. The other alternative is the use of force, which raises a host of other legal and moral considerations that are beyond the subject of this paper

A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations Between States

The article discusses the two decisions (thus far) of the International Court of Justice in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, especially its consideration of when an internationally binding agreement has come into existence. The Court\u27s willingness to infer a legally binding agreement, regardless of the intentions of at least one of the parties, appears to displace the primacy of consent it has emphasized in its earlier jurisprudence. The decision seems to hold states bound by informal commitments, an approach that might inhibit open negotiations between states and undermine genuine attempts to pre-empt disputes or to comply with the obligation of peaceful settlement of disputes

From the Spectacular to the Everyday: International Law, Violence and the Agenda for Women, Peace and Security

This article looks at the conceptions of violence within WPS and thus within these diverse international legal regimes as they relate to women and girls. It first examines the regulation of inter-state violence, both legal recourse to the use of force and constraints upon the means and methods of warfare. It then outlines how state obligations to prevent and punish violence against women were brought into human rights law in the early 1990s, primarily by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee). The WPS resolutions are then summarised, focusing on provisions for the prevention of and protection from conflict-affected sexual violence against women and girls. The article explores some of the tensions created by different understandings of and approaches to addressing violence within international law. One such tension is that between the objectives of women’s peace and human rights activists and the formulation of the WPS agenda by the Security Council, a hierarchical and patriarchal institution that reduces women’s experiences of conflict to sexual violence that disrupts international peace and security. Another is the disparity between the Security Council’s militaristic approach and that of the CEDAW Committee in its recommendations on violence against women. The latter – a human rights treaty body – understands violence against women as encompassing much more than sexual violence and as rooted in everyday inequalities and the social subordination of women. For the Committee, the spectacular – armed conflict and the sexual violence within it – and the everyday – for instance domestic violence, ‘normal’ rape – are not distinct phenomena but are linked in a continuum of violence. Consequently efforts to combat all violence against women should address societal inequalities and structural violence, which in turn would enhance the prospects for peaceful societies. Such a holistic understanding is impeded by the international institutional divide between responsibility for security (Security Council) and for social justice, including human rights (General Assembly, Human Rights Council). The article concludes with some reflections on how these tensions are exacerbated by the current push-back against human rights and the misuse of a gender ideology that feeds further violence

The Gender of Jus Cogens

Defenders of the notion of jus cogens often explain its basis as the collective international, rather than the individual national, good. On this analysis, principles of jus cogens play a similar role in the international legal system to that played by constitutional guarantees of rights in domestic legal systems. Thus states, as national political majorities, accept the limitation of their freedom of choice in order to reap the rewards of acting in ways that would elude them under pressures of the moment. Among those jurists who accept the category of jus cogens, however, continuing controversy remains over what norms qualify as principles of jus cogens. Our concern in this article is neither with the debates over the validity of the doctrine of jus cogens in international law nor with particular candidates for jus cogens status. Rather, we are interested in the structure of the concept detailed by international law scholars. We aregue that the concept of the jus cogens is not a properly universal one as its development has privileged the experiences of men over those of women, and it has provided a protection to men that is not accorded to women

Regulatory Frameworks in International Law

Regulatory theory is concerned with how various forms of regulation, including law, govern social interaction. Much of the theoretical work on legal regulation has been developed in the context of domestic law. This chapter examines international law in the particular setting of regulation of outsider entities, such as failed and nascent states, that is where international regulation fills the vacuum caused by the collapse of domestic institutions and the rule of law. Through a brief examination of international regulation in Bosnia–Hercegovina and East Timor, this chapter asks what light a regulatory lens sheds on international law. Drawing on Hugh Collins\u27s starting questions in Regulating Contracts, it investigates whether the international law in this area conceives of relations in ways that are different from the frameworks in which they operate

Between the Margins and the Mainstream: The Case of Women\u27s Rights

This chapter investigates the conceptual limits of the field of women’s rights. It identifies two main currents of activity in the field: the elaboration of human rights standards, particularly through the UN Convention on the Elimination of All Forms of Discrimination against Women of 1979; and the development of the ‘Women, Peace and Security’ agenda by the UN Security Council since 2000. Both areas are limited in their understandings of the diverse lives of women. The chapter argues that campaigns for the recognition of women’s rights shuttle between the mainstream and the margins of international law and that the structural bases of women’s disadvantage remain obscured in both locations