Authored by Akul Mishra, IV Year Student at Jindal Global Law School, Sonipat 

Introduction

The International Covenant on Civil and Political Rights (ICCPR) explicitly endorses several elements of what a prudent person can consider as human rights. Article 1’s strict language perfectly, in a relative context it makes a case to make international law more binding, which is quite commendable. However, asserting human rights in this case has been determined relatively, which makes the case of why do human rights never have zero restrictions as the ICCPR has given deference to states in areas of say emergency, to express reservations about the binding Articles of the convention. There has never been a convention that explicitly endorses unrestricted amplification of any right, no matter the threshold. The reason for this can be understood from a bottoms up approach, understanding the systematic power hierarchies that encompass Public International Law, especially in the niche of Human Rights Law.

Thus, this blog intends to analyse a proposal to make International Human Rights more explicit. The definition of explicit here is restricted to removing any or at the least the majority of restrictions and deference given to states. This is defended not by villainizing or questioning the intention behind why the deference was given, because there are elements of jus cogens norms that are involved here, but on the basis that the geopolitical status quo, where a neo-liberal system is focused on removing the state from intervening in the market, with an aim to establish a laissez faire state.

Connecting the Struggle of Unanimously Amplifying Human Rights in the International Order

The Universal Declaration of Human Rights is the most important piece of legislation in international law, which asserts human rights to a very high extent. It asserts what the international order now considers what human rights are, and why they are universal. This is what would appear to any prudent reader as an explicit provision, there is absolute no place to derogate away from these rights included. The rebuttal of the current status quo of how several rights are being violated in both the western and non-western nation states does not per se, invalidate the existence of a violation, the issue remains in the implementation. If say, Sudan has raised concerns about the allegations of genocide not being heeded to as a violation of The Universal Declaration of Human Rights (“UNDHR”), the existence of a violation is not contested, nor is the overwhelming presence of the UNDHR contested. The protest is alluded to the implementation, and paying respect to several critical legal scholars who have criticized the declaration on several grounds, the limitations are acknowledged.

The emphasis is on the explicit point of the UNDHR and it is not surprising that several neoliberals had expressed inhibitions against the declaration at the time of its drafting. The emphasis was on the denial of a democratic interpretation of human rights, with larger emphasis that material welfare cannot be used to determine and define socio-economic rights. Thus, it is not surprising that in the larger picture, this creates a power structure that states amplify, and is found in the area of what constitutes International Law. A Third World Analysis is of course, dedicated to breaking down power structures, but here the power structure is emphasized to be restricted to a definition of allowing for any inhibition to a human right, especially in the international legal order. This then brings to the next allusion that in a larger picture, there should have been no exception, derogation, reservation, restriction to any Human Right amplified in a treaty such as the ICCPR, but the neoliberal power structure ensures that the restrictions seem logical and necessary.

The Neoliberal Response

There must be a nexus on why derogation is barred only on a certain number of articles and not the entire treaty. This nexus is established on the struggle of ascertaining state intervention led human rights against the neoliberal idea of minimal market intervention. The power structure makes it seem that derogations are necessary, even if the most explicit human right which logically has no restriction, the power structure ensures that a restriction remains necessarily important, imparting its fake logic through our unconsciousness in a capillary like system that Foucault saw as a key method to impart societal control over our unconsciousness. Balancing a neoliberal and human rights initiative is not just restricted to the struggles of asserting human rights in the international order, regardless of the heavy emphasis on ‘Jus Cogens’ norms or Customary International Law amplifying human rights exceptions remain. Thus, the need to balance say state derogation to maintain sovereignty in terms of external aggression etc, as provided in the ICCPR, could be a necessary balance. However, the answer is less logical if the larger neoliberal system is not present, asserting the need for a balance to furnish its own economic needs. The answer for the necessity then becomes vaguer and the need for the balance is not convincing.

The balance also alludes to a veil asserting the right, but not as a whole. Several scholars have noted that the right to equality maybe colloquially used, there is no explicit right to equality available under International Law. Ignorance of economic and social rights and determining inequality through those very factors has been a consistent idea under neoliberal policies, hence why the ICCPR could never be fully ever as explicit as the UNDHR, as the division and recognition of rights clashes against the neoliberal idea of keeping states, and hereby state intervention in upholding substantive equality in the area of economy as a no show. As there is a discouragement towards substantive equality, the ICCPR which was aimed to develop the UNDHR further, has severe restrictions only hidden behind a claim that they are logical for the state to maintain its sovereignty. The larger point being that the neoliberalism policy and the concept of human rights may not clash explicitly but, if the very definition of first, a human right is being restricted by the same ideology which is ensuring that equality is still amiss in a substantive sense, then the clash is very much a collusion from where the ‘compromise’ is on the human right amplified by international law and not the other way around. The very preamble of the ICCPR includes economic and social rights, which immediately preludes to a nexus on why some restrictions are available. This may entail uncontrolled freedom on a person enjoying their rights under the ICCPR, but the neoliberal system ensures that no other mind-set is a good option. The only solution is that rights exist, but they must have restrictions. There is no basis of the need of the restrictions. The power structure ensures that the lack of basis does not heed to the option being the sole option. Thus restrictions albeit timed or ‘reasonable’ are the only route forward, even if the concern intrinsic human rights.

The Illusion of a Requirement of Balance

Another pointer is that economic and social rights are created, from policies that are generally neoliberal. Thus it is a humorous contradiction that substantive equality is barred from being enforced by the very ideology that is creating the need for substantive equality related state interventions in the first place. Thus it is pertinent to point out the outflow of power. The very nation states asserting and ratifying the convention are generally if assumed, at the least neoliberal to a point, matching the geopolitical status quo on a free market and a global supply chain. The United States and the Global North are free market connoisseurs. This very mindset forms the treaty, with nations expressing reservations and dominating discussions for some deference for the state, that are exceptional to human rights.

Hence, forms a way of controlling the very definition of what a human right is, restricting it to the equality before the law (formal equality with lower affirmative action). This also makes it confusing for a nation state like India which has explicit affirmative action, welfaresim and yet remains part of the free market mind-set, where it seems that the universality of international law pales in comparison to domestic law of a dualist nation state affecting a sizeable number of the world’s population. The concept of means to the end but not a satisfaction of the end itself, is a key mistake by which restrictions in the ICCPR are allowed, pushing forward a narrative where the formal equality concept is enough to establish good means to an end, and not a good end which is eliminating inequality in all senses.

Conclusion

Thus, we see a flowchart where the capillary power structure asserted by the Neoliberal system affects the international order in asserting human rights, regardless of how explicit or implicit the convention is. The restriction could be an allusion because the rights are never implemented fully in the international order if they allow for a large amount of state intervention. Thus, an explicit human rights endorsement must follow the TWAIL example, and identify the power structures ascertaining the definition of a human right, be it civil, economic or political which once understood in the true sense, actually restricts the right to maintain elements of policy and the illusion of a free market. This proposal brings in a question of developing not only equality in a more substantive sense, but also aims to emphasize that the definition of a human right, commonly asserted with synonyms of universality actually meets the common definition away from a mere colloquial sense, but to a more binding and a stalwart legal avenue.

Picture: Jurist.org