Ethical Concerns

“THE DEEPEST DISAGREEMENT ABOUT INTERNATIONAL JUSTICE IS BETWEEN THOSE WHO THINK THAT THERE IS AT LEAST SOMETHING TO BE SAID ABOUT DUTIES BEYOND BORDERS, AND THOSE WHO THINK THAT ETHICAL CONCERN CANNOT CROSS BOUNDARIES” (O.O’NEILL).

(London, 1994)

Disagreement about international justice and whether ethical concerns should cross state boundaries revolves around the issue of human rights together with the principle of international solidarity in the face of humanitarian crises, and the sovereignty of states. Whether rights in the international system are inherent in individuals or states, and whether there is a set of fundamental human rights of universal applicability, independent of cultural or political differences, of such importance that the violation of these rights by any one state within its borders, not only justifies intervention by other states, but in fact places an obligation on them to do so, in order to safeguard those individuals or groups whose rights have been violated, or who are in desperate need of humanitarian assistance.

The international state system has been based on the theoretical principle of the sovereign equality of all states, underpinned by a legal system consisting of rules such as the inviolability of borders and non-interference in internal affairs. It is a system that does not recognise any higher authority. In addition, the subjects of international law have been states and not individuals, thus, a national of one state that has suffered injury at the hands of another, can only bring a claim through the intermediation of his or her own state. Individuals that have suffered injury through the actions of their own state do not have redress to international law. Nevertheless, since at least World War I we can begin to discern a fundamental shift in the international system whereby human right become a legitimate international concern, but it is not until the end of World War II with the prosecution of Nazi leaders for “crimes against humanity” , and the creation of the United Nations (UN) that the issue of human rights becomes embedded in the international agenda and attempts are made to develop international legal instruments that define such rights and that try to place binding obligations on states to protect them.

Thus, in the Charter of the UN, the preamble declares: “We the peoples of the United Nations determined…to reaffirm faith in fundamental human rights” . References to human rights continue in Article 1(3) where one of the stated purposes of the organisation is “promoting and encouraging respect for human rights and fundamental freedoms for all..” , in Article 13(1b) which provides for the General Assembly (GA) to initiate studies and make recommendations for the purpose of “assisting in the realization of human rights and fundamental freedoms…” , in Article 55(c) which, in the context of international economic and social co-operation introduces the principle of equal rights and self-determination for all peoples, states that the UN shall promote: “universal respect for, and observance of, human rights and fundamental freedoms for all…” , an aim which is reinforced by the provisions of Article 56, under which, “All Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55.” Finally, there are also references to human rights in Articles 62 regarding the functions of the Economic and Social Council (ECOSOC) and in Article 68 which provides for ECOSOC to set up commissions for the promotion of human rights. However, all the reaffirmations, purposes, aims, objectives and pledges are significantly diminished when faced with the provisions of Article 2(7) which states that: “Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter…” .

This rule of non-intervention could obviously be ignored if the Security Council determined, in accordance with its powers under Chapter VII, that there existed a threat to international peace and security, but the onset of the Cold War and the ensuing confrontation between the superpowers made sure that the issue of human rights was relegated to the bottom of their agendas. Not only did both, the United States and the Soviet Union, give priority to the advancement of their respective spheres of influence, by courting allies and client states, irrespective of their human rights records, they both had human rights skeletons in their cupboards, and furthermore had a different conception of human rights, a divergence in which they were joined by other states, particularly the new independent African and Asian states that emerged during the 1960’s.

The different conceptions of human rights can be examined by referring to the three generations of rights. First generation rights have emphasised the basic civil and political rights of the individual, they represent a Western conception of human rights that can be traced back to the natural rights doctrine of the Enlightenment and take the form of limiting the power of government over the governed. Such rights are inherent in the individual and include the right to life, the right to freedom from torture and ill-treatment, freedom of expression, assembly and religion, due process, and political participation in the process of government. Second generation rights emphasise economic, social and cultural rights and take the form of imposing positive duties on states to provide such rights as the right to work, to social security and to education. These were the rights which were emphasised by the Soviet Union; rights are inherent in the state, not the individual. Finally, third generation rights introduce the concept of collective rights, that are concerned, on the one hand, with cultural and identity claims and the right to self-determination, and, on the other, with the right to development.

It is a conception of rights espoused by the newly independent developing states seeking to promote their sovereign equality within the international system, whilst at the same time trying to impose a moral obligation on the developed countries to assist with their economic development on the basis of “rights” rather than charity. In addition to divergences as to the philosophical and/or political conception of rights, there are also claims to differences based on cultural and/or religious conceptions, for example, Buddhist belief that society is patterned on the family and that there is a duty of obedience to the head of society; the acceptance of social status represented by the caste system of Hinduism; the belief in Confucianism that the fundamental nucleus of society is the family; the position of women in Islam; and the African emphasis on the self-realisation of the individual through the community. The conflict between states stemming from the different approaches to the concept of human rights has been apparent since the initial attempts by the United Nations to draft an international bill of rights. The Universal Declaration of Human Rights was adopted by the General Assembly on 10 December 1948 with only 8 abstentions (the Soviet Union and the Eastern Block, South Africa and Saudi Arabia) – the decolonisation process had not yet began. Although its 30 articles cover both civil and political rights, as well as social and economic rights, the Declaration was not intended as a binding legal document but as the preamble states: “a common standard of achievement for all peoples and nations” .

Differences in conception became even more apparent when the UN began discussions for the drafting of binding legal instruments, which resulted in the production of two bills of rights (although they are jointly referred to as The International Bill of Human Rights), namely, the International Convenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Both Covenants were adopted in 1966 and came into force in 1976, and as at August 1992, 112 states had ratified or acceded to the former and 115 to the latter. It should be noted that the Covenant on Civil and Political Rights contains an optional protocol whereby states recognise the right of the Covenant Human Rights Committee to hear complaints from individuals. Although the obligations upon states under this arrangement are very weak -it appears it is just a reporting obligation- and that there are no enforcement measures, only 66 states have ratified or acceded to the protocol. As regards to the Covenant on Economic, Social and Cultural Rights, the developed countries have never accepted the implicit right of developing countries to financial assistance for their development. In summary, despite the obstacles described, the UN has managed to produce a whole series of legal instruments for the protection or promotion of a wide range of human rights (genocide; racial discrimination; torture and other cruel, inhuman or degrading treatment or punishment; rights of children; and rights of women) aimed at universal applicability, has developed a machinery to try and protect these rights (particularly Resolutions 1235 and 1503 of the ECOSOC), and has had some limited success in some instances. However, the peculiarities of the international state system and the constraints posed by Article 2(7) on non-interference, coupled with the inactivity of the Security Council during the Cold War, have prevented the development of an effective enforcement machinery, not only for the various treaties, but for the Charter itself.

The end of the Cold War with the demise of the Soviet Union, the expansion of democratic values, growing interdependence, and the continuing presence of non-governmental organisations (NGOs) in the international scene, are all factors that were thought of as potential catalysts in bringing about a reversal of the situation described above. However, the optimism of a “new world order” has given way to pessimism when confronted with “new” ethnic conflicts that spill across borders and the associated human suffering. The television images of the suffering of innocent people caught amid violent conflicts and the difficulties faced by international relief organisations to provide assistance in such situations has catapulted onto the international agenda a renewed concern with international justice and solidarity vis-Ã -vis the principle of national sovereignty. Whereas in the past, the UN has developed mechanisms to mediate in international conflicts (peace-keeping and observer missions) not envisaged under the Charter, and has organised relief operations, it was always done with the consent of the parties involved in the conflict and in situations were a cease-fire had been agreed and where the belligerents, generally, adhered to the various international conventions, particularly the Four Geneva Conventions of 1949 and the Protocol of 1977, that, amongst other matters, deal with the protection of civilians in time of war. The conflicts that the world has witnessed since the end of the Cold War, however, have tended to be within national borders, leading to situations where not only has it been difficult to identify a stable government that would grant consent for relief operations, as was the case in Somalia, but also were these have been thwarted by the combatants in order to continue inflicting damage on the members of each others ethnic groups, as is the case in the former Yugoslavia. It has also meant that the lives of members of UN and NGOs relief operations have been increasingly at risk as combatants either perceive them to be partial to one group or resent foreign intervention, even in cases where consent has been obtained for such intervention.

The enormity of the problem in terms of the massive displacement of people and the problems that this poses to neighbouring states (250,000 Rwandan refugees in Tanzania) and the extent of the violence (estimates of 500,000 dead in Rwanda), has, in a way, overtaken the arguments as regard to the universality or not of human rights, and has concentrated the minds of the international community, and especially the UN, in finding ways to deal with these situations, and it is ironic that one of the contributory factors that has unleashed these conflicts -the end of the Cold War- has, on the other hand, allowed a consensus in the Security Council, the only organ of the UN that can arrive at decisions which are legally binding on Member States. Up to date the only case of UN intervention, without the consent of the national government of the country concerned, has been in Somalia (where admittedly there was no government) and this was done under Chapter VII of the Charter (i.e. on the basis of a threat to international peace and security).

The intervention in northern Iraq to provide a “safe-haven” for the Kurdish population was effected by coalition forces under existing Chapter VII resolutions; the sending of a peace-keeping force to the former Yugoslavia was effected with the consent of the parties involved in the fighting; and the latest mission appears to have the consent of the present government in Rwanda. The Security Council is, thus, treading very carefully and still very much concerned with the provisions of Article 2(7), whilst from various quarters there are calls for more decisive action and for providing the UN with the necessary mechanisms to respond effectively to these situations and, thus, avoid debacles similar to that in Somalia. This would require, not only more resources, but the will on the part of the stronger members to commit troops that may need to enter into armed conflict in particular situations, and preventive diplomacy on the part of the UN and regional organisations.

International justice will be defined differently by different people, and indeed by different states, is it the administration of law? , but, what law? international law? for which there is no executive and no judiciary. Is it the maintenance of what is just? , but, what is just? is it the same as ethical in the sense of conforming to accepted standards of conduct or morality? , and, if it is, are there internationally accepted standards of conduct or morality?

The answer to the last question must be in the affirmative, it is not a matter of different conceptions of human rights or claims to religious, political or cultural differences -reasons which more often than not are put forward by governments in order to justify their “maquievellian” hold on power- it is a matter of not killing people indiscriminately and of not denying people the right to receive assistance in the situations described above. In such circumstances the rights of states are immaterial, because the justification for the existence of the state, if indeed today there is one, must be to protect the rights of all its citizens, otherwise it has no purpose and no rights.

Ethical Concerns

Ethical Concerns

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