International law – once the preserve of a narrow elite – has come to inhabit the lives of so many. For what started with limited European recognition now singularly occupies the field of international justice across the world.
Yet despite its grand moral overtures, its history has not unfolded in any linear or principled way. Instead, a duality has been created between international law’s image and reality, its surface and its base – the recognition of which represents one of today’s most important challenges.
Three characteristics commonly ascribed to international law help frame it in the role of a saviour:
The modern period of international law is often traced to the end of World War II. Against a backdrop of atrocities, it laid out an ambitious and resplendent vision. The Universal Declaration of Human Rights (UDHR) in 1948 features the clearest exposition of these values.
The document signals a departure from past policy, which simply promoted peaceful relations in a society of states. The UDHR's 30 articles outline basic rights – from freedom of conscience, thought and religion, to freedom from torture and slavery – based on the equality and “inherent dignity of all human beings”.
But it is more than a straightforward statement of rights. Individuals may displace states as the focal point, but other dimensions are at play. With masterful ventriloquism, the UDHR speaks for “the conscience of mankind” and the “highest aspirations of the common people”.
This inflexion in the voice of international law signalled the pursuit of a new common agenda, and central to its legitimacy is its ability to be perceived as apolitical.
In this respect, it benefits from broader associations of law with impartiality, something entrenched in liberal thought through the formal separation of law and politics. It claims to navigate a point of intersection between all cultures, and Article 2 of the UDHR, a standard non-discrimination clause, stresses that:
“no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”
A third popular characteristic moves international law from the realm of the abstract to the concrete: the rate of its professional implementation.
In scale and scope, the development of human rights activities has been remarkable. Far from being just a lofty ideal, its institutional architecture is comprehensive. The work at international level by UN bodies is complemented by regional and domestic initiatives. Benchmarks, indicators and goals have been created. And international law and its infrastructure have shown themselves to be very able to accommodate new issues, with more and more grievances being articulated using the vocabularies of human rights. Treaties are monitored by committees, sub-committees and non-governmental organisations. An entire human rights economy has been created.
Yet this only captures a small part of what makes international law so important today. If these perceptions reflect some truth, they do not reflect the whole truth. What has been the effect, not of the absence of international law, but the very process of relying on it in the first place?
The three identifiable traits each embed assumptions and ways of thinking which obscure the total surface area of international law.
Human rights are often said to be “enshrined” rather than passed, and some commentators have drawn attention to the linguistic effects of human rights law. Treaties often employ the subjunctive mood, proposed rights are regularly accompanied by phrases such as “shall be” and “may be”. It is said that this helps to promote these rights as a luxury rather than an immediate demand, as wish fulfilment, and makes their compliance easier to overlook.
But it has a deeper influence on the way we view international law, its very posture. Even if opinions diverge on its effectiveness, there is a general sense that international law interjects in a fixed world, that its life can only be measured out in degrees of making the world better.
This emphasis on progressive ideals and future direction helps to gloss over one of the main criticisms of law. It seeks to remedy violations and harms that have already happened. And in this way it is reactionary, it precludes larger, structural investigations of the reasons that problems are being produced. Any meaningful attempt to provide solutions must also take patterns in the production of harms into account. Both vertically and horizontally, the aspirational language acts as an analytical filter. Accordingly, it is hardly surprising that a lack of domestic political will (especially in Africa) is most commonly seen as the last remaining barrier to the universal enjoyment of human rights.
It is an oft-repeated mantra that all human rights are “indivisible, interdependent and interrelated”. However, external realities do not always live up to this internal logic.
Drawing conceptual boundaries of human rights is important not just for what is included, but for the content that is omitted. These examples play out in every area of international law and human rights, and help to highlight a hierarchy of rights. A few are outlined below:
a) Socio-economic rights vs. civil and political rights
At the start of the 1990s and especially at the World Conference of Human Rights held in Vienna in 1993, the phrase “Asian Values” began to gain currency in human rights circles. It refers, generally, to prioritising economic growth before civil and political rights can be pursued – putting the interests of the community before individual freedoms.
It has been branded as an excuse for corrupt rulers to overlook human rights, but it shows that however universal and necessary human rights are, they do not exist independently of national conditions – for developed countries, raising basic socio-economic standards has far less urgency than in other countries.
In some ways, the rejection of the concept points to the fact that all types of rights are equal. In other ways, it helps to vindicate the self-identity of Western states and to reinforce a catching-up rationale for other countries. But further still, the centrality of individualism reveals some of the ways in which the lessons of the European Enlightenment era are afforded absolute priority within human rights agendas.
The International Bill of Rights refers to three separate documents: the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). This international bill of rights was originally intended to be one document. However, at the drafting stage, very political considerations took precedence. Regional bloc voting between Western states and Communist states led it to be split into three separate parts.
This split, and the favouring of civil and political rights over socio-economic ones, remains visible throughout human rights topics. Civil and political rights were commonly branded “first generation rights” to be afforded the highest priority. The ICESCR’s rights were coined as “second generation” rights, which allow for “progressive implementation”. This has made it easier to leave economic rights unattended and made their enactment (or lack thereof) harder to criticise. Economic claims in refugee law, in the right to development, for indigenous peoples and many other subsets are enforced with much less vigour than civil and political rights.
b) International Criminal Court
In its ten year history, all of the cases investigated by the International Criminal Court (ICC) have involved Africa. Articles 5-8 of its statute, the Rome Statute, enable it to prosecute the gravest crimes: crimes against humanity, genocide and war crimes. But there is an implicit preference for certain forms of these crimes.
Many have taken the focus on Africa as an obvious operational bias in the ICC. On one hand, few would disagree with the fact potential war criminals in Africa deserve to be brought to justice. However, at a more definitional level there is a blindness to the very different types of aggression practised in the developed and developing worlds.
Harm may be a base concept but it is given expression very differently across international boundaries. In the West, decades of technical innovation in warfare have rendered hand-to-hand combat and rebel insurgencies outdated. By contrast, trade in small arms and weaponry, neglected by international law, is rife in Africa.
However, advancement has not come without side effects – its environmental costs. Many of the West’s large corporations are active in environmental forms of aggression, in contributing to climate change and desertification – with ramifications that hit the developing world the hardest. The potential is there to alter and destroy the lives of millions, but this does not fall within current definitions.
c) Public vs. private
A further divide in liberal thought is reinforced and amplified by international law: the separation of the public domain of the state and the private sphere. Claims stemming from the actions of the state are privileged over claims in the private sector. This has had disproportionate effects on minority groups such as women, children and informal economy workers.
It is precisely in the blind spots perpetuated by these commonly-seen traits where international law exercises a great influence. The pervasive spread of international law’s institutions has led to “the constitution of the modern human rights discourse as the sole approved discourse of resistance”.
However, there are crucial gaps in the constitution of international law. First, the formal sources of international law have so far been slow to react to new powers exerted by non-state actors. Second, there has been little engagement with the ordinary people it aims to protect. At both of these points international law facilitates accumulation by dispossession – those responsible for harm and those affected by harm have been systematically divorced from the means of recognising harm.
a) Sources of law
Advances in science and technology have revolutionised many discrete areas of modern life and have brought possibilities that were unforeseeable just half a century ago. Levels of international awareness and communication have risen, endless creativity has been brought to industries and processes such as food production and agriculture. But vast inequalities between global elites and the global poor have remained unaltered.
The erosion of traditional power structures has not necessarily resulted in fairer conditions and the status of science and technology as neutral, untainted forms of knowledge has not been challenged. These trends, loosely captured by the term ‘globalisation’, are often portrayed as the product of unbounded development, as random patterns of growth and recession. However, they are part of a very deliberate chain of human decisions.
World trade law, compartmentalised from human rights considerations but no less part of international law, has globally circulated and sanctioned capitalism as its underlying logic. In all major economic zones, changes in trade, finance, production and distribution have been made. The rules of the World Trade Organisation (and other international economic institutions) compel governments towards trade liberalisation, towards cuts in public expenditure and privatisation in state sectors. While this may not determine specific government policies, it severely affects a state’s capacity to protect human rights.
As a result of these measures, of a treatment of economic issues as ‘private affairs’, governmental elites have simply become corporate elites. Companies have grown able to intensify their distribution and gain a foothold in previously closed markets. They have been able to move their workforces to countries with low running costs – and poorer states will curtail their own labour laws to attract investment. At the side, businesses in poorer countries have been left without protectionism and subsidies and are unable to compete with bigger global companies. The upshot, mirrored throughout a range of industries (especially textile and agriculture), is that companies in wealthier states are left with an overwhelming market monopoly.
These changing realities are not adequately reflected in the set-up of international law. The formal sources of international law – such as treaties and conventions – exclusively cater to states. It is primarily concerned with the conduct of state officials.
Although “positive obligations” have been introduced to hold non-state actors to account, efforts at redress have proven counter-productive. Corporations are rarely sanctioned in their home countries, and poorer states are often in an awkward double-bind. They are caught between the hard place of protecting their populations at the potential expense of investment, and the rock of driving down working conditions to attract foreign capital.
b) Limited input
At the other end, those affected by these trends find themselves dissociated. This distance helps to cast the victim of human rights as a generalised, suffering, passive figure without agency.
For the majority of the world, international law is an instantly recognisable but deeply inaccessible terrain. The main stumbling block here is education. Very few are able to gain the qualifications necessary for UN jobs. As Professor Susan Marks comments, this shows:
“the human rights movement as a privileged domain with limited participation by, and even less accountability to, the constituencies it is supposed to protect. Insofar as human rights organisations act on behalf of groups to whom they do not answer, there creeps in a potential for arrogance or, at least, loss of solidarity; the focus is instead on the donor agencies and ‘partner’ organisations to which ties are stronger.”
Although mechanisms such as ‘individual complaints procedures’ are in place, many are unaware of their presence or unable to rely on them. People are frequently unable to prioritise costly education over more pressing basic needs. Knowledge of human rights is often too expensive to obtain or hidden away in esoteric academic journals.
What differences does this specialised knowledge have on cognitive processes? These characteristics have so far been looked at individually, but how do they work together?
Opinions of international law differ radically between Section II and Section III – from international law as a hero to its recognition as contested terrain.
Built upon popularly-constructed axes, international law is a purely descriptive term. Its surrounding imagery emanates from a series of simplified binaries: a choice between inclusion/exclusion, violence/security, developed/underdeveloped, remedy/violation and ultimately good/evil. It suggests a fixed view of the world, where international law intercedes in events that have already been set in motion. Attention is directed in specific ways and presupposes questions such as, “Will human rights make a difference?” or “Will it be implemented?” There is a lack of social engagement, and these cognitive processes leave the ordinary citizen as a passive observer waiting to see the changes human rights can bring about.
However, once international law’s full role becomes apparent – as a stimulus for economic, social and political changes all around the world – our roles shift. Worldviews becomes more fluid when international law is seen as the producer of so many life conditions, a driver of culture and knowledge, and a determinant that shapes the autonomy of governments. Questions then turn to “how can international law be reoriented?” and “how can it be improved?”
International law is not a finished process but part of an ongoing narrative. It is time not to abandon it but to build upon the successes of international cooperation, to increase popular involvement and to take ownership of it. It defines the parameters of so many lives but is rarely comprehensible.
This knowledge deserves to be free. Think Africa Press has accordingly drafted leading academics and practitioners from all over the world to publish a syllabus on international law topics.
Using its location on the Think Africa Press site, it brings several unique benefits. Each author covers topics by teaching techniques through which to view and contextualise changes. At the end of each article, there are questions to which readers can respond. They are also encouraged to request new content and pose new questions. And this initial syllabus will be dynamic and be expanded to cover new developments – this is just the start.
For more information about the course please read our introductory blog post.
Think Africa Press welcomes inquiries regarding the republication of its articles. If you would like to republish this article, provide feedback, ask or answer questions or request new content please contact email@example.com or get in touch via Twitter at @romromromTAP.
 For more on this see the detailed overview in article 4 of this course.
 African Charter on Human and Peoples’ Rights 1981 (ACHPR), American Convention on Human Rights 1969, Arab Charter on Human Rights 2004, European Convention on Human Rights 1950
 P165, International Law From Below, Balakrishnan Rajagopal, Cambridge University Press 2003
 See the works of Thomas Pogge for in-depth analysis.