Academic journal article Houston Journal of International Law

International Law and the Protection of Human Rights in the Inter-American System

Academic journal article Houston Journal of International Law

International Law and the Protection of Human Rights in the Inter-American System

Article excerpt

I. Introduction

The effectiveness of an intergovernmental human rights mechanism can be analyzed from a number of different angles. First, using a practical approach, one could ask how many lives have been saved, how many prisoners and detainees have been released from detention, and how many individuals have been saved from torture due to the timely intervention of the mechanism in question. A more theoretical approach might examine how the mechanism has contributed to the evolving global culture of human rights by asking: What new rights have been added to the growing number of rights protected by the international community? What new international instruments have been adopted with the assistance of this mechanism? How has this mechanism served to increase an awareness of human rights among individuals and groups by means of educational and promotional activities? Finally, one might ask what kind of law this international human rights mechanism has created?

This last approach, which is the subject of this article, views human rights instruments as systems which generate legal obligations on the part of states. The issues which must be addressed in determining the success of these instruments is how effectively the member states enforce their obligations under the agreement.

II. Sovereignty Versus International Jurisdiction

The United Nations was organized in 1945 on the principle set forth in the U.N. Charter of the "sovereign equality" of all member states.(1) Only states could aspire to membership in regional or international organizations and only states were the subjects of international law. The international order institutionalized the principle of sovereignty by affording membership exclusively to states.(2) Sovereignty is the freedom of a state from control by foreign powers.(3)

It was considered revolutionary in the 1950s to give the individual rights vis a vis the state under international human rights law, which allowed for the first time the right of the individual to petition against the state. Human rights activists today seek to give the individual autonomous standing before international law. Currently most international human rights instruments provide that an individual's rights can be enforced only through the intermediary of states and between states on the individual's behalf.(4) The state, by taking up the individual's case, is in reality asserting its own rights, ensuring respect for the rules of international law in the person of its subjects.(5)

The U.N. Charter provides, in relevant part, that "[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state."(6) Historically, sovereignty meant the power to command, and the sovereign was one "who, after God, acknowledge[s] no one greater than himself."(7) Today, sovereignty generally means there is no authority higher than the state.(8) Similarly, the decisions of a state's highest than are generally final and not subject to appeal. Consequently, any attempt by a regional or international organization to exercise jurisdiction over the state's action will meet with resistance.

Infringements on a state's sovereignty may be brought about by contractual obligations entered into bilaterally or multilaterally.(9) Thus, when a state becomes a party to an international human rights treaty, many consider this tantamount to ceding sovereignty to an international jurisdiction body.

The United States ratified the U.N.'s International Covenant on Civil and Political Rights(10) on June 8, 1992.(11) It was unwilling, however, to undertake any new obligations, and limited itself to guaranteeing the protections afforded under the U.S. Constitution.(12) In presenting its first report to the U.N. Committee on Human Rights, the organization which supervises compliance with this international instrument, the United States declared that:

as a matter of domestic law, treaties as well as statutes must conform to the requirements of the Constitution . …

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