Thursday, December 13, 2007

'Positive law' vs. 'natural law'

When we talk about human rights, we think of post-World War II and Nuremberg trials because these were the major impetus behind the current human rights law. But human rights as a concept had been in existence long before. The problem was only that they were not expressed yet in an authoritative and obligatory way until 1948. Judge Tanaka elaborated this excellently in his dissenting opinion in 1966 I.C.J. 6, 250, 297-298 (July 18), in the case of South West Africa:

Human rights have always existed with the human being. They existed independently of, and before, the State. Alien and even stateless persons must not be deprived of them. Belonging to diverse kinds of communities and societies-- ranging from family, club, corporation, to State and international community, the human rights of man [woman] must be protected everywhere in this social hierarchy, just as copyright is protected domestically and internationally. There must be no legal vacuum in the protection of human rights. Who can believe, as a reasonable man, that the existence of human rights depends upon the internal or international legislative measures, etc., of the State and that accordingly they can be validly abolished or modified by the will of the State?
If a law exists independently of the will of the State and, accordingly, cannot be abolished or modified even by its constitution, becasue it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called 'natural law' in contrast to 'positive law.'
Provisions of the constitutions of some countries characterize fundamental human rights and freedoms as 'inalienable', 'sacred', 'eternal', 'inviolate', etc. Therefore, the guarantee of fundamental human rights and freedoms possesses a super-constitutional significance.
If we can introduce in the international field a category of law, namely, jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to the jus dispositivum, capable of being changed by way of agreement between States, surely the law concerning the protection of human rights may be considered to belong to the jus cogens.

Enough said. The problem is that while human rights law exists independently of the will of a given state, its enforcement still is very much dependent on the will of that state. Of course, with growing international tribunals, the states have many more pressures. Globalization and interdependence have resulted in even more pressures. But international law making/application is highly political, highly toxic, highly dependent on the will of state actors. With growing non-state actors, the panorama has become even more complicated. Even if states may comply with international law, there are numerous non-state actors who commit various atrocities that remain unpunished or half-way punished.

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