Human Rights Violations and the Legal System, Essay Example

The Universal Declaration of Human Rights (hereinafter: UDHR), advanced by the United Nations General Assembly in 1947, was a watershed moment, insofar as with this document the international community recognized the necessity to establish a consistent framework with which to guarantee human rights on a global level, regardless of particularly ethnic, religious, and cultural particularities of individuals. Arising from the atrocities of the Second World War, the desire to avoid the repetition of the latter’s catastrophe – from which phenomena such as “genocide” first came to be recognized – finds a lucid political formulation in the UDHR. In this regard, the document can be understood from a philosophical perspective as the commitment to the notion of a universal human subject, to whom belong irrevocable basic rights. From a legal perspective, the UDHR assumes its full significance with its ratification by numerous sovereign nations in 1976. This granted the UDHR legitimacy within international law, and thus alongside its theoretico-philosophical significance, the UDHR came to acquire a practical significance. The latter, however, does not mean that violations of human rights are no longer extant. On both the national and the international levels, human rights violations, since 1976, such as in the former Yugoslavia, have been identified by the legal community and tried within the international framework of the Hague tribunal. The following essay shall examine some of the tenets and the limits of human rights, with an attempt to understand how they have been transgressed and what can prevent further transgressions. In these cases, it appears that violations particularly occur when sovereign states and political interests contrast with the universal dimension of human rights. The problematic is thus from a legal perspective how to reconcile national political autonomy and international law.

It is first of all necessary to provide a brief summary of what the concept of human rights entails. The novelty of this notion immediately needs to be distinguished. As Brian Orend writes, “This notion – that as human beings we all share a basic level of equal moral worth in some significant respect – is a thoroughly modern concept.” (16) Accordingly, the notion of human rights is inseparable from a certain anthropological conception of what it means to be human. Human rights is immediately distinguished by its interjection of a “moral” dimension to this question – the human being is defined according to a moral obligation from other human beings to be recognized as part of a community. What defines this community in terms of its rights is expressed in the UDHR with its thirty articles. Whereas a detailed summary of these articles is obviously beyond the scope of this paper, one can nevertheless identify Article 1 as a clear recapitulation of the UDHR’s basic intention: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (Orend, 245) One can immediately detect the preventative dimension of this article, one that is consistent with the document’s composition as response to the Second World War: there is an ethical imperative for human beings to be responsible towards each other. What precisely constitutes this responsibility is detailed in the remaining articles, in which individual freedoms, such as free speech and the right to religious belief are viewed as consistent with maintaining such a brotherhood. Accordingly, the modernity of human rights can be understood as the legal attempt to create a framework from which humans are entitled to freedom, a freedom that is to be respected and maintained by law.

Certainly, the transgression of human rights on both international and national levels occurs precisely through the failure to adhere to such guarantees of freedom. The persecution of particular groups, such as religious, is in clear violation with the articles. As a case of both the international and national violations of human rights, the case of Yugoslavia is especially pertinent. The dissolution of Yugoslavia, from the Serbian perspective, represented a national conflict, insofar as Serbia attempted to keep the Yugoslavian federation intact, whereas breakaway republics such as Bosnia claimed autonomy. Thus, from the Serbian perspective any human rights issues were national human rights issues, while from a non-Serbian perspective, they remained international human rights issues. This distinction, in this case, however, is largely insignificant, insofar as it is the universal aspect of human rights which is crucial: this universality ideally is to transcend any particular sovereign policies and should be effective regardless of the latter. Accordingly, to explain human rights violation in the former Yugoslavian crisis, Wieruszewski’s synopsis is particularly insightful: “The Yugoslav crisis once again proved the direct link between politics and human rights.” (287) In other words, national politics either becomes the means to uphold or transgress human rights. What should be added to Wieruszewski’s remark is that such violations largely occur from a sovereign state acting against the international community and international law. In this regard, the difficult theoretical question becomes that of the relationship between national and international law. From one perspective the arguments in favour of human rights can be viewed as the undermining of individual state autonomy in favor of a global form of law. In this sense, universal rights intimates the archaicness of law based on national frameworks.

In this regard, the elimination of such violations can be arranged around the goal of the maintenance of a peaceful coexistence between national and international law. Whereas international law may stipulate that human rights are irrevocable, national law should be allowed to exist only insofar as it does not violate this universality. When the latter is transgressed, this would mean that the national law of the state becomes suspended from an international perspective and is now viewed as illegal. This compromise would thus allow the coexistence of national law and international law.

The general acceptance of universal human rights in the modern period is a good indicator of its soundness to common sense. The principle of universal equality among humans no longer seems like a debatable concept, but rather something self-evident. In this regard, this newly won self-evidence should be used as an advantage: viewing violations of human rights as clear examples of criminality should be understood by everyone. Accordingly, the human rights paradigm provides a means with which to maintain ideal human relations from a legal perspective, whereas still allowing for national autonomy, insofar as the latter does not violate the fundamental tenet of universal human rights.

Works Cited

Orend, Brian. Human Rights: Concept and Context. New York: Broadview Press, 2002.

Wieruszewski, Roman. “Case Study on the Former Yugoslavia: The International Mechanisms, Their Efficiency and Failures.” eds. A. Bloed et al. Monitoring Human Rights in Europe: Comparing International Procedures and Mechanisms. Dordrecht, Netherlands: Martinus Njihoff, 1993. pp. 285-306.