Failure to Protect

The Colonial Nature of International Human Rights Law and International Humanitarian Law

Abstract

Implementation mechanisms within International Law and their failure to act upon situations they were created for are much debated topics in the academic community. There are multiple examples of International Humanitarian Law and International Human Rights Law failing, across the world, in its objective of (a) creating an international obligation to prevent its violations and (b) implementing its principles via compliance mechanisms that do not exist. What is extremely worrying about this is that, although certain western nations support creating these norms, they do not have the political will to uphold them. Even though International Law has multiple implementation mechanisms, they have failed to enforce the de jure principles they have established. Nations across the world are well-aware of the lack of realistic implementation mechanisms within the International Law system but have kept this as a subject of only debates in the United Nations Human Rights Council and international conferences held under the ambit of the International Committee of the Red Cross. The failure of International Law in protecting Human Rights is due to the latent nuances of its colonial nature, which are stitched into the fabric of Public International Law. Countries that have created these norms, have created them with the aim that these norms should fail to apply to them. The paper argues that Public International Law has an intrinsic colonial nature, created for the twin purpose of loot and then acting as a justification for the same.  The paper further argues that International Human and Humanitarian Rights regimes form a smokescreen for International Economic Law and allows it to operate in its shadows without much notice. To reinforce this argument, the paper uses Marxist theory of ideology critique, which states that law works as a disguise for the real processes at work, within the International legal system. The real forces at work remain unknown, while contemporary debate focuses on Public International Law and its failings (Danilenko 1999). It is essential to understand the fundamental issue this structure boils down to, i.e., the Great Powers can direct any action they desire with no fear of consequences, while other countries have no recourse due to the difference in economic and military might. This intrinsic colonial nature of International Law exists in an apparatus that tries to maintain the status quo with the Great Powers at the top.