Subjects of International Law
Historically, states were the main party in the process of developing and applying International law. States contributed to its content and subjected itself to its rule. However, in the recent years, individuals are becoming more and more involved in the process. Individuals are bringing cases against their own state, against foreign governments, organizations, individuals, or corporation. For example, under the 1974 Scandinavian Convention on the Protection of the Environment, individuals could take their states to court for environmental practices. Similarly, an individual may petition the United Nations on Human Rights with regard to violations by his home state. These new trends forced new understanding of some key concepts like nationality and citizenship.
Determining the nationality of individuals was initially the prerogative of the state. France for instance, per 1921 decree, nationalized persons in Morocco. This practice was problematic as there were other nationals within Morocco at that time. The practice thereafter of determining nationality was of two categories: by jus sanquinis (by blood), or by jus soli (by territory). Although these definitions simplify the matter, there remain some problems with it. For instance, what nationality is that of a child born in the United States for parents who are diplomats. According to the US law, this child is excluded for the determination by jus soli just like children of conquerors are also excluded from citizenship if born inside the US. Similarly, a child born on a ship while in some other country’s waters was another case that needed to be defined separately. In 1959, the convention on the Elimination of Statelessness required governments to recognize flag vessels as territory for the purpose of acquiring nationality. The status of women after marriage was also a problem in determining citizenship: at first, it was an automatic change to that of the husband; a 1957 convention made that a matter of choice.
The words nationality and citizenship have been used interchangeably; however, some countries (Britain and the US) have defined nationality and citizenship variably. Some nationals in these countries may have full protections under the terms of international law, but lack the full privileges of a citizen (such as voting).
Within the framework of international law, individuals, organizations, and states became the centerpieces of an elaborate system to universalize certain values beyond the national borders of countries. This trend was further strengthened by the strong push that began immediately after the atrocities committed by a number of colonizing forces during World War II.
In addition to the declarations and bilateral and multilateral treaties, human rights were also addressed in the United Nations Charter. Although the Charter does not provide a clear definition of “human rights”, it nonetheless contains clear reference to the need to “respect” and observe “human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” However, there are ample documents that define and codify human rights laws like: Convention of the Elimination of all forms of Racial Discrimination (CERD) of 1965, the international covenant of Civil and Political Rights (CCPR) of 1966, and the international Convention on Economic, Social, and Cultural Rights (CESCR), The 1979 Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the 1984 Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment, the 1989 Convention on the Rights of the Child. These instruments created under the mandate of the United Nations were supported by organs that would monitor and report compliance by the states that adopt and ratify the individual treaties. In short, there are close to 100 human rights treaties that were adopted world-wide or regionally. For example, CCPR falls under the management of the 18-member Human Right Committee. This committee however does not perform a judicial role. That matter and the question of remedy and redress are more or less the responsibility of the state wherein the violation or abuse takes place. The International organs play a major role to the extent permitted by the protocols of any given treaty. In some instances, the role of some committees amount to shaming some regimes into compliance rather than forcing them to do so. Only in severe cases when a state stands charged of gross violations of human rights would that task of adjudicating a case falls on the shoulders of temporary international tribunals. The notion of sovereignty has made international instruments secondary in that regard. Even the most promising International Criminal Court that represented the hope of millions of victims has been limited to taking up only the cases where the subject state fails or refuses to bring justice.
That said, even with the system as is, human rights lawyers have brought charges against abusers and have managed to extract all forms of remedies allowed under the law for the victims they represented. However, it seems that the great efforts of many good people can be undone by politicians as we have seen in the case of the Belgium law that was undone because of government pressure. The assertion that the existence of national mechanism ought to render an international court moot can be abused; and only time will tell how effective the ICC will be in overcoming the political challenges.
The above information should bring the process of enunciating and empowering human rights law into some clarity. The plethora of treaties and declarations should give one the impression that violations of human rights norms ought to be brought to an end. Without sounding so pessimistic, the incoming reports published by the NGOs and the various committees are always full of documented violations of people’s and individual human rights in every single nation around the world. The problem is of two fold: firstly, the nations that signed and ratified and even adopted human rights treaties are not always willing to comply. It seems that the human rights question has been used by some governments in order to gain political favors rather than genuinely improve the quality and value of life for the people under their care. Secondly, many communities seem disinterested in promoting, let alone, adopting human rights norms. The Muslim world stands charged of the lack of enthusiasm for the protection of human rights to say the least. In order to understand the reasons and the prospects, we will consider some of the documents that record the on-going debate. After the presentation of the various opinions by Muslim scholars and activists, I will have a final thought and some concluding remarks in order to open the subject for further discussion.