Monthly Archives: May 2014

Thoughts on the continuing relevance of the State

In the international legal system, the state is the primary domestic institution charged with the task of ensuring the promotion and protection of human rights.

This is so for the following reasons:

* States are the principal parties to human rights instruments as well as to international humanitarian law conventions, and are therefore the principal instituthe_state_largetions charged with implementing them in their respective jurisdictions.

* As early as 1928 in the Las Palmas case where the Philippines lost title over the island of Las Palmas (or Miangas) to Indonesia, international law has always recognized that states, in the grant by the international legal system of sovereign and territorial rights to them, have concomitant obligations to the protection of human rights. As held by the lone arbitrator Max Huber: “Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has a corollary, a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.”

* It is true that there are now various international mechanisms to hold perpetrators of international crimes responsible for their actions; for the most part, however it is the institution of the state as a public legal community that plays a lead role in ensuring that the demands of public justice and the common good are best served within its  jurisdiction.

* The state’s law enforcement and prosecutorial arm for protecting and promoting public justice and the common good in the domestic legal order sets it apart from other societal institutions; only the state is the immediate institution in the domestic sphere entrusted with the legal duty – backed up with the force of arms – to protect and promote the Rule of Law.

* For example, the International Criminal Court (ICC) – the first permanent international tribunal with jurisdiction to hear individual crimes involving cases of gross violations of human rights and humanitarian law – generally works under the principle of “complementarity,” where the state is given the primary jurisdiction to try these cases, and the ICC only steps in when the concerned state fails to prosecute an international crime.

— taken from Romel Regalado Bagares,  Contemporary  Models of Civil Society Human Rights Engagements, in The Katarungan Manual for Human Rights Victims’ Advocacy 164-213 (2014)

Further discussions on this point from a philosophical perspective are found here and here.

 

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