|Preamble section 4:|
|Whereas it is essential to promote the development of friendly relations between nations,|
International Law and Human Rights
How, then, does the Universal Declaration of Human Rights fit into this debate between law and power in international relations?
The following discussion is a summary, and precis, of the answers suggested by Henkin in How Nations Behave and International Law: Politics, Values, Functions.
Traditionally, the law of the inter-state system has been law only between states, governing only relations between states on the state level. It has been committed to "state values" - state equality, autonomy, independence, impermeability, and national interest. Autonomy and impermeability imply immunity from having the state veil pierced by the system, or even permeated by international law that would have effect inside the state, inside its society. Even as the international system began to move to increased inter-state cooperation and to reflect some small commitment to welfare principles (in the law governing inter-state economic relations,) the law has dealt with states, co-operation between states; and the welfare and purposes of states.
Of course, the realization of state values and purposes often inures also to the benefit of the state's inhabitants: autonomy and impermeability help preserve a society's culture and protect the state's people from external oppression or influence (international peace surely serves the benefit of human beings); and cooperative and welfare programs have been designed to improve the lot of many people in many countries.
But even when a state's purpose is clearly for the benefit of all of its people (not only of its rulers or elites, or of some class or other limited group) the state still stands between its people and the outside world. The consequences for individual welfare are derivative and secondary. Human beings are not in focus but are only the distant and indirect beneficiaries of a law or program filtered through the state and its government. And sometimes individual human beings are victims rather than beneficiaries of the state program.
In general, then, the system and the law have not penetrated the state monolith. In traditional terms, the international legal system does not look at individual human beings directly and it does not secure them against governmental indifference, mistakes, misdeeds. The individual, it is still often said, is not the subject (or a subject) of international law. Indeed, he or she is not a person in international law. Even under international human rights law (whereby states assume obligations and responsibilities to respect the rights of all human beings subject to their jurisdiction,) individuals may perhaps be said to be objects of international law. That is, individuals are the beneficiaries of these obligations but remain incapable of asserting their rights in the international sphere.
While this has long between the traditional position, it should be noted that if states agree to confer direct rights or duties of international action on individuals (ie, making them the subject of international rights or duties) there is nothing in theory preventing them doing so. Indeed, the recent moves towards the creation of a permanent International Criminal Court which has the power to punish individual offenders for various offences under international law is just such an example. Thus, while individuals cannot acquire territory, make treaties, or have belligerent rights, they can commit war crimes, and piracy, and crimes against humanity, and they can own property that international law protects, and can have claims for compensation for certain international wrongful acts.
Peter Danchin, Columbia University