It, perhaps shall not form an overstatement that of all the grand-narratives that tend to empower the common people (of the world), the human rights vernacular appears to be the most dominant. The expansion of democratic norms in the last decades of the 20th century essentially intensified the international legitimacy of human rights language. Many of the jurisdictions of both the hemispheres adopted more liberal and rights-oriented constitutions. This legacy is much more excelled by multidimensional effects of globalization on peoples and polities of the world.
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In this century we are observing a shift in human consciousness. The popular movements in the conservative Mid-west fueled and accelerated by electronic media and internet, foreshadows a significant shift in the history of human rights. This implies a message, perhaps a clear statement with which many of us would certainly agree that, the means of oppressing human dignity, the mantras for justifying absolutism and the machines for employing the Minotaur against the mass people, have been ended. This rise of the popular consciousness for sack of liberty, rights and human dignity is a great achievement in the international human rights movement. Thanks to the contribution of IT-based social networks that they not only connect the people but also unite and empower them to challenge the hegemones and their ideas. This picture tends to release a sense of optimism on the effects of human rights language that is least, they inspire people to struggle for legitimate demands.
However, international political theatre is a very complex area of multilateral powerful actors. It is empirical that political power interplays in diverse ways in different contexts, hence this may be consistent to submit that such an interaction shall not be able to reproduce the same result with mathematical exactitude. To put in simple words, it means any political initiative may produce many different results in different contexts varying both in degree and in kind. The truth of this statement is admissible, but ethically this may not make us happy when it tends to justify actions that many of us would rather believe to be unjust.
More to the point, after 9/11 the US campaign for war against terrorism, rise of religious fanaticism in different jurisdictions and impacts of climate change inject some completely new but strategically very important elements as points for policy reflections. The war against terrorism poses itself as a significantly different warfare since it involves no regular armed conflict from objective level of perceptions. If state enterprises can be considered as one side of the conflict, the other side the “terrorists” usually remains less than tangible. There is, I may imagine, a no man’s land in between the two frontiers and here stays the common people, open to be the subjects of attack from both sides. It is evident that unlike the conventional warfare, the conflict of both sides occurs sporadically. Hence, none of us possibly can say for sure whether we at present are at peace or, at war of some kind. No one knows exactly when and how one may become the subject of terrorism. But perhaps every one may assume that at present many of the important human rights (like, right to life, speech, religion, movement, and fair trial) have been significantly curtailed.
Understandably a reason for that is very often collective security is given more priority than individual. Even if we accept that it is necessary to protect the security of the society at large at the cost of some rights of a few, we have to admit that there is no explicit threshold or margin of appreciation for it. It appears that right to collective security trumps many fundamental human rights. Therefore, it seems important for us to ensure a minimum threshold or, margin of appreciation to protect the rights of those human beings who are at risk of deprivation.
Many of my students even raise questions regarding the legitimacy of Drone attacks on suspected targets. We would plausibly accept that the rules of humanitarian law and human rights law frequently differ; but I imagine debates may be offered by different parties as to the question of priority if there is a conflict between the two. This may be submitted that there is an absence of norm or, significantly uniformed state practice to guide us on a legitimate border line between the two laws. This is not a well defined area in the sense that we do not know when to apply one or, cease the other, or, even when one may suspend the other. So, applying humanitarian law on probable suspects means opening the door to targeted killings and stripping of them of “due process of law” or any human rights whatsoever.
Think of the state-sponsored extra-ordinary renditions that took place in many counties of the EU especially after the 9/11 incidents. Or, even the killing of suspect terrorists abroad. I assume many in the law community do not understand, what exactly makes these people (i.e. the ‘terrorists’) competent for deprivation of a “due process of law”? What doctrinal basis in international law exactly supports such intervention made against the sovereignty of a foreign state? Moreover, do we have an exceptional rule that justifies punishing someone without offering her the opportunity of defending herself in the court? All these questions become more significant when human rights language provides the sole premise of legitimacy and response to such actions.
All these statements reveal another pertinent dimension that is the question state sovereignty or, supremacy of state. The hegemony and counter hegemonic struggle between and among different actors pose a serious question before us: i.e. do we still live in a world of sovereign states? Does the sovereignty of powerful states vary (both in degree and in kind) to that of the weak states? If variation among sovereigns is a fact then, what legal doctrine provides its legitimacy?
We know that most of the human rights instruments make the state responsible to protect the rights of its people. It is consistent to think that such a burden was supported conceptually by the principle of state sovereignty. As states possess the ultimate authority over both imperium and dominium, it is logical that the onus to protect human rights should be on the state. State-practices often make this paradoxical as empirically states themselves violate human rights. However, it is more threatening to imagine that many states become helpless to protect its citizens’ rights from foreign surveillance and (aerial) attack.
It is sufficient at this point for me to offer you to think of a question, which I would, emphasis a significant one is that: What role do human rights play in this incessant wrestle of power politics? Or, I imagine those in the world of realpolitik might choose a more precise but sharp question: Does human rights at all play any significant role in the world? The answer, for me, I will never say ‘no’. But, if you ask me about the locus of human rights in the political decision making, central or, peripheral, possibly I will say ‘I do not know’. I think that’s the tragedy of it.
One, perhaps the strongest (and many might say the weakest) point of international law is that it changes rapidly: Uniformed practices of the states and their consent to a particular action may produce a stronger law than positive laws. Even, state practices may by-pass any statement of an international legal instrument. Notably, the statement on non-intervention by the UN “in matters which are essentially within the domestic jurisdiction of any state” in Article 2 (7) of the UN charter is a good example. The Article appears to respect the question of state sovereignty by the UN in matters of domestic jurisdiction of a state. Understandably, in the mid 1940s when the charter was drafted states were concerned about their sovereignty and wanted to protect it from outside intervention. But, the recent state practises show a change in this approach that is in case of Human Rights violations intervention of/ through the UN is a strong possibility.
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The basic apologia behind this new practice is comprehensible. Serious human rights violation may create sufficient reason for an exception. But, this exception if occurs persistently and with substantive number of states consenting, it releases a possibility to create a new norm of international law. Such a norm may provide legitimacy to, which many of us would agree, neo-colonial enterprises. The dominance and oppression of the Western metropolitan states over their Eastern counterparts. For centuries, it has been the West that manifests itself as the ethical master of the East. Do we accept human rights to add more legitimacy to that mastery? I can imagine many of us might suggest that empowering or, campaigning for human rights must not empower the dominant states, it must not provide legitimacy to their interest-oriented (or, purposefully discriminated) military interventions.
At this level, I would suggest to consider the domestic dimension of human rights. For this, it is helpful if we accept the reality that after fifty years of decolonization, the oriental states are more or less successful in developing their domestic capital. In some jurisdictions, the native business enterprises or, the MNCs are becoming so powerful that at any point they tend to become equivalent to that of the state or, least they can challenge or alter any state initiative if by any chance they disagree. Even if we disregard the overall economic situation of a former colony which is now independent, I am sure that, this would not be exaggeration to state that some states make significant advancement in developing their private capital, alongside foreign capital. This indicates that in those states, states are not the sole players in political fields. Capital is often a co-ruler or, least manipulator of politico-economical decisions along with the state.
This is acceptable to the extent that it signals the development or, strength of domestic capital vis-à-vis the state. But, the same paradigm may offer different shocking results if we add a human rights element to it. Let’s imagine that on a human rights question an MNC is involved as one party against an individual. This may entail several results of which let me choose a few; the first probability is that since the MNC is structurally and financially more able and comprehensive than the individual, it will have the superior capacity to convince or, manage the state’s regulatory oversight. The MNC shall win, irrespective of the fact that it denies the individual a legitimate right.
Secondly, if the individual goes to the court, it is more likely that she may find her self in a difficult situation as the legal knowledge and expertise may be unwilling to make capital its enemy. Then, how does human rights empower? Or, do they empower at all? If you stand before a superior power, you may find adding human rights to you shoulder does not significantly change your status. This is somewhat a statement that says that human rights themselves require empowerment before they may empower us. But, how to empower the rights?
Lenin, the prominent Marxist prophet maintained that the state, law and the pre-eminent capitalists always retain a symmetrical relation, in which the former two work as tool of oppression and legitimacy of the latter. Many of us may not support this contention. But even if we disregard Lenin, we would possibly find that it is in fact difficult a task to disintegrate the state from this chain of connection. I suggest that the state should be more pro-poor in its socio-political actions or, least we must neutralize the state. We already have these thoughts, but what is lacking is a comprehensive design and practical initiative for the purpose.
From the perspective of environmental rights, things are getting more complex. We the conscious, literate people, are already aware of the international campaigns on global warming and climate change. But the point of consideration is how much practical connection do we have with the environment? We consider the nature as space, in which we live, breathe, we love to see natural beauty, the hills, the stars, the night sky, the ocean; we cherish a moonlight night, we love to see the pea-cocks, whales, sharks, tigers, elephants; we are happy to visit the forests, lakesides and that’s all. All we do is living and entertaining. We, possibly never interacted with the nature the way a farmer or, a fisherman does or, feels. We live on the nature and they make it living. Now, think for a minute how much these people are aware of environmental rights, or protection? The answer, I think we all know; they know almost nothing. Then, if these people are not aware of their rights, who and how to protect the environment?
I understand that many would suggest that environmental damage is caused more by the educated people than the farmers and fisherman. This is true, and therefore, besides the literate and conscious people we must have to think to add and aware the maximum number of earthlings who live on earth. It is basically, their art and heritage to make the earth living. The international instruments on environmental rights, like human rights instruments, impose the key responsibility on the shoulder of the state. If, for this purpose we deconstruct the term state, we would find, most possibly no farmer, no fisherman or, suchlike, but, the pre-eminent members of the society. If we consider the positive relation between the commercial enterprises and the state for this purpose, we may see that the present type of environmental protection supports this joint venture. That is, the emphasis is given more on development than environment protection. I must make it clear that I support the right to development, but, it must be environmentally sustainable. What I am trying to say is that when you emphasize on development it appears that you (intentionally/ unintentionally) support the key contention of the industrialists and not of the poor farmers. In this language, development has a specific meaning; it never meant for the poor. Development always principally has a commercial connotation. So, there is always a question, as no one knows, to what extent we have to sacrifice our environment for the sake of development.
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