State’s Obligations Under International Human Rights
What happens when a state’s obligations under international human rights law conflict with its obligations under general international law?
On December 1948, the National General Assembly adopted the Universal Declaration of Human Rights and this strengthened the international human rights movement. The Universal Declaration of Human Rights spelled out the common standards which should be achieved by all people of all nations (Smith, 2014 p40). For the first time in human history, the Declaration spelled out the basic civil rights to be enjoyed by every single human being, political and economic rights, social, as well as cultural rights that all humans beings should enjoy, and which every member nation should ensure that they are realized by individuals to their fullest.
Apart from the Universal Declaration of Human Rights, there has been a series of international human rights treaties and other instruments which have been adopted, and they have too developed the body of international human rights through conferring legal form on inherent human rights. By becoming members to the international treaties, member states are, by the international human rights law, bound to respect as well as protect and fulfill the human rights as required by the international human law (Ahmed and de Jesus Butler, 2006).
This therefore means that member states must for always protect individuals from human rights abuses, ensure that all the individuals enjoy their human rights, and take positive action with an aim of facilitating the enjoyment of basic human rights as required by the international human rights. Governments therefore have the obligation to put in place domestic measures as well as registrations that ensure that the international human laws are observed. In observing the national laws, a state is obligated to the international human right law over and above its obligation to the general international law.
Given the sovereignty of states, a problem exists in defining the relationship which exists between the international law and the domestic legal system most especially in terms of determining which law has priority. Different legal disciplines therefore perceive the international law and domestic laws differently with some assigning priority to international law, and others to the national law. In recognizing the sovereignty of states, international law is considered as superior to all other laws in a nation state apart from the nation’s constitution.
The international law is not a product of logic more than it is a product of experience. Given that the experience in each different country state is different, difference in the interpretations as well as implementation of the international law is therefore likely to be witnessed and this raises a question of what ought to be done when there is a conflict between the two legal instruments. Whereas some may argue that international law takes precedence, or that domestic law takes precedence, it is indeed hard to confirm or determine the supremacy of either the international law, or the domestic juridical order.
In the domestic courts and tribunals, the international law is used as a tool of statutory interpretation, and as an influence of developing the common law. Though not universally agreed on, the international law is also used as a basis of judicial review in administrative law, and as a tool of constitutional interpretation. Given these uses, it could be as well as said that the international law determines what matters are governed by the domestic law as well as the extent to which they are so governed (Klabbers ; Piiparinen, 2013 p114).
This being the case, the sensitivity of international law to essential rules of domestic law remains paramount hence stamping the principal of supremacy in the international legal order. Regardless of this, Nollkaemper (2012 p2) suggests the dependence of international rule of law on the domestic legal orders. To him, it is difficult to build an international rule of law in a situation where the domestic legal orders on which the international rule of law would depend on lacks a proper rule of law.
With this, it can conclusively be said that there exists interdependence between international law, and the domestic law. In absence of domestic laws which creates a condition for easy assimilation of the international law in a given state, the rule of law in such a state on the areas which may require both national and international legal intervention may thereof be said to be in fact not ruled by any law in that given country and this is one of the defect of the international law.
The international human rights law and the general international law therefore greatly depend on the working of a nation state laws. Whereas a nation state is obligated to observe the international human rights law, they are the same obligated to observe the general international law, the later emphasizing on how nation states should relate with other nation states. While remaining obligated to this international laws, a nation state has its laws- which to some are subjects to international law as international law is considered as supreme to a nation state law.
In case of a conflict and war between and among nations, both members and non members of the United Nations, a conflict may ensue out of a state being unable to satisfy the international human rights law and at the same time the general international law. Murray (2000, p128) notes that the international human rights law are designed to operate primarily in normal peacetime conditions. Additionally, the law is designed to operate within the framework of legal relationship that a state has with its citizens. On the other hand, the international humanitarian law is concerned with abnormal conditions such as armed conflicts.
Human rights law therefore forms a different field same as the humanitarian law and given this, in the presence of conflict situations, one of these laws will apply or even both and this excludes a legal void. It is upon such situation that a state’s obligations under the international human rights law conflicts with its obligation under general international law.
Article 27 of the Vienna Convention on the Law of Treaties notes that states are not to invoke the provisions of their internal laws as justification for their failure to perform a treaty; nevertheless, states are free to decide on their own modalities necessary for effectively implementing their international legal obligation, as well as bringing the national law into conformity with their international legal obligations.
This therefore directly means that any given nation should act in a manner that recognizes the supremacy of the international legal instruments. On legal grounds, it is acknowledged that incase there is a situation where there are two laws addressing the same issue, the specific law takes precedence over the general law. This therefore follows that the international human rights law which is more specific on addressing human rights take precedence on general international laws where there are cases involving human rights (Ro?Mer, 2010 p34)
In clearing out the air between the implication of international human rights law and the general international laws, there have been various cases which have been instrumental in helping to shape out with more understanding the due processes that should be observed in the occasion of a crisscross between the general international law, and the international human law.
One such case is the Yasin al-Qadi, a Saudi Arabian business man who the United Nations placed sanctions on from 1999 to 2000 out of allegations of his association with the renowned global terrorist one Osama bin Laden and his Al-Qaeda terror network. Following this sanctions, the United States ordered the freezing of all of his assets in the United States. The European Union followed suit and it too applied sanctions on Yasin. Following this sanctions, Qadi’s lawyers initiated a lawsuit which came to be viewed as a landmark in the public international law.
In this specific case, the European courts aroused much discussions regarding where European Union law stands with regards to the international law and how the European Law relates with the international law. European court of justice gave a ruling that the fundamental rights should be protected and should not be derogated simply because the European Union measures implemented a Security Council resolution. In imposing the sanctions to Qadi, the European Union relied on the general law and therefore it was right to act in accordance with the law to and prevent what was assumed as Qadi’s assets playing a role in aiding Al-Qaeda operations (Lavranos ; Kok, 2013 p79).
Nevertheless, in doing so, they did not consider the individual rights which are enshrined and extensively defined in the international human rights law. As an individual, Qadi was fully entitled to equal protection of the international human right law which was supposed to have taken precedence over the European Union decision in respect of the principal that applies to specific and general laws.
The imposing of sanctions on Qadi by the European Union therefore respected not the fundamental rights as required by the international human rights law; nevertheless, the European Union was, under the general international law, right in carrying out a precautionary measure against what was suspected as threat to peace.
Ion delivering their verdict, the European Court of Justice favored the international human rights law above the United Nation Security Council obligations (Erika, 2013 p4). This well demonstrated that incase there arose a conflict over a state obligation to the international human rights law and the general international human right law, the international human rights law should take precedence over the general international law in determining the cause of action.
Another case that may help to understand what happens when a state obligation to international human right law conflicts with the general international law is the 2005 European Court of Human Rights (Grand Chamber) verdict on Bosphorus Hava Yollari Turizm v. Ireland case. This case involved a Turkish airline company which leased two of its aircraft in 1992 for four years to the Yugoslav national airline. Following community level sanctions on the republic of Yugoslavia, Serbia and Montenegro by the United Nations, one of the aircraft was impounded on May 1993 while present in Ireland by the Irish authorities on the basis of article 8 of the European Economic Community.
This article allowed the member states of the European Union to impound an aircraft which the majority interest was held by a person operating in the Federal Republic of Yugoslavia. Following Ireland action, Bosphorous contested the seizure arguing that it was contrary to Bosphorous fundamental right to property to impound the aircraft.
The Irish High court ruled out that the European Commission Regulation 990/93 was not applicable to the aircraft in question. This decision was appealed and the Irish Supreme Court referred the issue to the European Court of Justice for a preliminary ruling. On its ruling, the European Court of Justice ruled that the regulations adopted by the Security Council applied to the property of persons operating from the Federal Republic of Yugoslavia be it they have actual or limited control of the said property.
In answering the complaint lodged by Bosphorus on violation of their right to peaceful enjoyment of property and the freedom to pursue a commercial activity, the European Court of Justice reasoned that such rights were not absolute hence their exercise may be subject to restrictions which are justified by objectives of general interest pursued by the community (Frank, 2005 p1256-58).
Through this reasoning, the European Court of Justice denied the supremacy of the international human right laws while maintaining that one’s rights are by law limited by the rights of the other people, and in this case, Bosphorus right to peaceful enjoyment of property and pursuing commercial activity was limited by the general good pursued by the community. Owing to this reasoning, the European Court of Justice concluded that the substantial restriction on Bosphorus airways was justifiable simply because the aims that were pursued by the sanctions were in themselves of substantial importance.
Following the decision of the European Court of Justice, Bosphorus airways lodged a complaint with the European Commission of Human Rights on March 25 1997, and the case was transmitted to the European Court of Human Rights on 1st November 1998 ( Frank, 2005, p1259).
During the hearing, Bosphorus airways argued complained that with regard to article 1 of the European Convention of Human Rights, the manner in which Ireland implemented the sanction regime in the seizing its aircraft was a reviewable exercise of discretion within the meaning of article 1 of the European Convention of Human Rights, and it was a violation of article 1 of protocol No.1 to the European Commission of Human Rights.
To Bosphorus airways, the Irish Government had impounded their aircraft as a preventive measure, which was right in the first place, but without a clear United Nation or European Commission obligation to do so. This posed a big challenge for the case required a carefully consideration of which rights reigned over other rights and which laws were above other laws.
The European Court of Human Rights verdict was that that complaint was covered by the scope of the convention. Nevertheless, the court rejected the alleged violation of article 1 of Protocol No. 1. To the court, the complain about the act fulfilled the jurisdictional prerequisites under the European Commission of Human Rights hence the commission was implicated article 1 of the convention demands that the contracting parties to answer for any infringement of the rights and freedoms sheltered by the convention committed against individuals placed under their jurisdiction. Following this, the question of jurisdiction was by the court in favor of the applicant.
Additionally, the European Court of Human Rights noted that there was a substantive violation of article 1 Protocol No. 1. The European Commission regulation 990/93 was considered as generally applicable as well as biding in its entirety. Under article 249 0f the European commission, the court explained that the regulation applied to all the European Union member states and that no single member state could depart from the provisions. As a result therefore, the applicability of this articles in this case directly applicable and this could not be disputed. Given this , the regulations were part of the Irish domestic law and through this, it was expected that a national minister for transport would implement the impoundment powers contained in the article 8 of European Commission regulation 990/3 (Frank, 2005, p1261).
The Irish Supreme court, as the European Court of Human Rights argued had no real discretion to exercise before or after its preliminary reference to the European Court of Justice. In this case, the misunderstanding between what ought to be done in case of a conflict between a state obligation to the general international laws and its obligation to international human right law was addressed upon delivering the verdict of the case which favored the complainant.
The concurring opinion of the judges was that it was important for European Union to accede to the European Union of Human Rights so as to make the control mechanism of the convention complete (Hudoc.echr.coe.int, 2015). This implied when in a conflict between the obligations to the international human laws and the general international laws. States should always consider the international human rights law as the basis of their action.
A most recent case on the conflict between states obligation to the international human right law and the general international law concerned the internment of an Iraqi civilian by the name Al-Jedda for more than three years in a detention centre in Basrah which was run by British forces. In June 2000, Al-Jedda was granted British nationality where he had sought asylum after his refusal to join the Ba’th party, which was the ruling party in Iraq.
Four years later, he traveled back to Iraq where he was arrested by United States soldiers who acted on information that was provided by the British intelligence (Sim.law.uu.nl, 2015). The United States forces took him a detention facility in Basrah city, a facility that was run by the British forces. Upon his internment, the intelligence that supported his involvement with the allegations that were lodged against him was not made known to him. Additionally, there were no criminal charges that were lodged against him. On June 2005, Al-Jedda challenged the lawfulness of his continued detention as well as the refusal by the UK government to return him in UK.
The UK government admitted that Al-Jedda detention fell not on any of the permitted cases set in article 5 and article 1 of the convention. Nevertheless, Al-Jedda maintained that these articles did not apply simply because the detention was authorized by United Nation Security Council resolution. With regards to international law the effect of the resolution was therefore to dislodge article 5. On December 2007, the UK home secretary signed an order which deprived off Al-Jedda his British citizenship out of claims that he had connections with violent Islamic groups, and that he was responsible for recruiting terrorists outside Iraq as well as facilitating their travel and smuggling of bomb parts into Iraq.
In determining this case, it was hard to reconcile the argument that resolution 1546 of the United Nation Security Council had, which authorized the multinational force in Iraq to take all the necessary measures to contribute to the maintenance of security and stability in Iraq. Nevertheless, in issuing its verdict, the court noted that the United Nation was created with an aim of not only maintaining international peace and security but also with an aim of achieving international cooperation in promoting and encouraging respect for human rights and fundamental problems.
Upon this the, court noted that in interpreting the United Nation Security Council resolutions, there had to be a presumption that the council intended not to impose any obligation on member states in order to breach the fundamental principles of human rights. In case of any ambiguity that could have arose within the Security Council resolution, the court was obliged to choose an interpretation which was more in harmony with the requirement with the European Convention on Human Rights as well as the one that avoided any conflict of obligations. The court therefore considered the Security Council resolution 1546 which authorized the UK to contribute to the maintenance of security and stability in Iraq.
Nevertheless, the court noted that there was not any resolution that implicitly permitted UK to place an individual who was considered by the authorities as a risk to the stability of Iraq in an indefinite detention without any charge (Jared ; Bruno, 2014 p216). Following this, Al-Je detention was therefore termed as a violation of article 5 and 1. UK was therefore ordered to pay Al-Jedda 25,000 Euros as non-pecuniary damage, and 40, 000 Euros for the cost and expenses that Al-Jedda incurred during the whole process.
Given these cases, it be conclusively said that a state should not find itself tied up in a legal battle over the which action to take in matters of human rights where both the international human right law and the general international law are at play. As portrayed by the three cases, the international human rights law takes precedence over the general international law, and therefore, in their obligation to both international human right law and the general international law, states should always give the international human right law the first priority hence avoid legal tussles that follows after denying the supremacy of the international human right law.
Reference
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