The State and Human
Rights
V. Kamalasiri
Department of Political Science
The State and Human Rights
• Concerning human rights, States have an obligation to respect and protect the
human rights of all persons on their territory or under their jurisdiction, without
discrimination. This includes all migrants, regardless of their status. States parties
to human rights treaties undertake to:
• Respect human rights, refraining from interfering with the enjoyment of human
rights;
• Protect individuals and groups against human rights abuses;
• Fulfil human rights by taking action to facilitate the enjoyment of basic human
rights.
• This includes situations of infringement by third parties such as businesses, the
private sector and non-State actors.
The State and Human Rights
• However, there may be limitations to a few rights, in particular related to
nationality or regular migration status.
• To be lawful, such limitations must be established by national law and must be
necessary for the protection of legitimate State interests (such as national
security, public safety and health).
• For the purposes of international human-rights law, the most critical element of
sovereignty is the right of a state to treat its citizens within its borders as it sees
fit, free of outside intervention.
The State and Human Rights
• State sovereignty, in one sense, is hopelessly at odds with international human-rights.
• International human rights law imposes externally defined norms and enforcement on
how a state treats citizens within its borders.
• Yet the contradiction between sovereignty and international human rights is more than
theoretical.
• It can be seen in the relative immunity enjoyed by powerful states-those which possess,
in fact, the greatest degree of sovereignty from international human rights enforcement.
• The United States, for example, formally accepts international human-rights norms but
systematically rejects effective external enforcement.
• China routinely rebuffs even the mildest efforts to examine its record before the UN
Commission on Human Rights.
• Regional powers such as Brazil, India, Nigeria, and Saudi Arabia are considered
"untouchable" by the Commission. And Russia's recent attack against Ukraine.
The State and Human Rights
• Even weaker states invoke sovereignty as a pretext against international claims of human
rights.
• Whenever their records are criticized by the likes of Amnesty International or a UN
Special Rapporteur, governments typically protest the outside interference in their
sovereign affairs.
• A claim of sovereignty is often an effective shield.
• In countless cases, claims of sovereignty in practice defeat claims of rights.
• Where crimes against humanity can be prosecuted only if committed after the war
began.
• Two things are crystal clear.
• First, when a State is not bound by a rule, its international responsibility is not "entailed"
when it does not comply with the requirement of said rule.
• Second, human rights rules are, in this respect, of a particular nature since they are not
"mutual"
The State and Human Rights
• In exceptional and few cases, States can also temporarily be exempted from
fulfilling their human rights obligations.
• This is called derogating from their obligations, and might occur, for example, in
times of war or public emergency.
• The derogation must be proportionate, limited in time, and consistent with the
other obligations of the State under international law.
• Furthermore, no derogation is permitted from some fundamental rights listed in
conventions such as the International Covenant on Civil and Political Rights
(ICCPR):
• the right to life, the prohibition of torture or cruel, inhuman or degrading
treatment or punishment, the prohibition of slavery, the right to recognition
everywhere as a person before the law and the right to freedom of thought,
conscience and religion.
