No! America is not coming to save you!
No! The United Nations is not coming to save you!
It is because of these blasé international law principles: “Territorial Sovereignty” and “Non-Interference.”
These two principles are the reasons tensions escalate while the world is in full glare. But let’s face it, think about Papa Funmi, who lives a few blocks away, coming into Papa Uwa’s house to provide Uwa with aid (a humanitarian intervention), as Papa Uwa gives Uwa the beating of his life. Papa Funmi has crossed the line. He has stepped in uninvited to a house he has no control over (breached territorial sovereignty) to rescue Uwa (thereby interfering in a matter that has no direct effect on him or his). Well, we all know how that would end!
In this very mundane hypothetical scenario lie the foundation of the principles of territorial sovereignty and non-interference. You see, international law functions under the maxim that states are independent and equal. As such, there is a legal obligation that the United Nations and sovereign states desist from intervening in other sovereign states’ internal affairs. These principles are based on respect for sovereignty and the territorial integration of sovereign states. In this way, by deferring to governmental institutions within sovereign states, the state’s internal and external supremacy as a legal person is acknowledged.
Within contemporary international law, one of the hallmarks of the legal order is its commitment to upholding human rights. Particularly, the United Nations Charter enshrines the obligation to ensure the universal respect for and the protection of human rights and fundamental freedoms for all through international cooperation. Owing to this bedrock principle, in the face of gross human rights violations, the expectation is that the idea of a common humanity would take precedence over legality – the legality enshrined in the doctrines of “Territorial Sovereignty” and “Non-Interference.” But in reality, notwithstanding the commitment to upholding human rights the world over, whether there would be any humanitarian intervention in cases of gross human rights violations would depend mainly on questions within domestic jurisdictions vis a vis the applicable international laws. To this end, humanitarian intervention, military and non-military as relates to the principles of “territorial sovereignty” and “non-interference” is highly controversial in international law practice. But in the words of Kofi Annan, “…if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”
History has taught the world that external intervention has met the same fate when applied as in; Somalia, Bosnia and Kosovo, and when not applied as in; Rwanda – controversiality. As such Kofi Annan’s question poses a dilemma; perhaps one question that the world truly has no answer to, and one, I do not presume to know the absolute answer. I can, however, point out the facts and the law and let you draw a syllogism.
On the Facts
Over the last few weeks, the #EndSARS movement in Nigeria marked with the #5for5 gained momentum. Many Nigerian youths came out in peaceful protest, calling out and asking for the end of an era of a litany of police brutality that has led to the extrajudicial killings and forced disappearance of many young Nigerians. Within the circle of protesters were whispers that if they held out for 30 days in peaceful protests, just 30 days, the United Nations and the United States would sweep in to save the day.
As the protests continued, a most shocking report emerged – the Lekki Tollgate Massacre. On October 20th, 2020, members of the Nigerian military reportedly opened fire on a group of peaceful protesters at the Lekki Tollgate in Lagos state, Nigeria, killing some protesters and wounding many.
Following these events, the whisperers now convinced that the protection of fundamental human rights once considered the purview of sovereign states alone has transcended governments and borders, giving birth to a regime of universality, a universality amplified by globalization. These whisperers hoped against hope that the world they see in shades of the United Nations and the United States would lean in to ensure that our common humanity triumphs.
On the Law
Human rights are universal and inalienable, indivisible, interdependent and interrelated. Though human rights are inherent to all individuals, by our sheer humanity, the International human rights regime embodies legal doctrines and practices that recognize that states have a tripartite obligation; the obligations to respect, protect and fulfil the human rights of its national and those to whom it is tasked to protect within its borders.
Despite the existence of fora charged with the responsibility of addressing gross human rights violations on the international plane, the reality is blurred by layers of complexity. Regarding the United Nations, the International legal order’s very bedrock: The United Nations Charter enshrines in Art. 2(7) that:
“Nothing contained in the present charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.”
While the United Nations would be barred from a unilateral intervention in a member nation’s affairs, except under its Chapter VII powers, it possesses a functional system for addressing human rights violations committed within its member states’ territory. These include;
The Human Rights Council
Through its universal complaint procedure, the Human Rights Council (HRC) addresses complaints submitted by individuals, groups of individuals, and non-governmental bodies showing consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms. By its very nature, the HRC can receive and address ongoing violations within the territory of all member states of the United Nations.
However, as a precursor to filing a complaint with the HRC, the complainant must have:
Taken steps by or on behalf of the alleged victim(s) to exhaust domestic remedies, such as recourse to the domestic courts and other domestic public authorities, or
Show that domestic remedies have not been exhausted, on the grounds that such recourse of domestic remedies would be ineffective or unreasonably prolonged.
Human Rights Treaty Bodies
There are currently ten human rights treaty bodies under the United Nations human rights system, which monitor and protect the nine-core international human rights international instruments and the Optional Protocol to the Convention Against Torture.
Violations of provisions of various human rights instruments can be brought to the attention of treaty bodies via three main procedures – individual communication, state-to-state complaint procedure and Inquiries
The individual communication/complaint procedure is a potent way to have individuals communicate consistent and gross violations of human rights instruments, occurring within the territories of parties to human rights instruments. However, its potency is limited to the fact that individual communications can only be received from individuals whose countries have made the declaration for treaty bodies to receive such individual communications for alleged violations within its jurisdiction.
Of the eight individual complaints procedures in force within the human rights treaty bodies framework, Nigeria has only conceded to having individual communication brought before only two treaty bodies. This leaves recourse to individual communication only in cases of alleged violations of provisions of Convention on the Elimination of Discrimination Against Women and Convention on the Rights of People with Disabilities, to which Nigeria is a party to the optional protocol.
Special Procedure
The special procedures consist of a system of independent human rights experts mandated to report and advise on various thematic and country-specific human rights issues. Special Procedures act both on individual human rights violation cases and broader and structural human rights issues. The mandate of the Special Procedures includes performing country visits, convening expert consultation, engaging in advocacy and raising public awareness on human rights issues within the mandate of the Special Procedure. Presently, there are 11 country mandates and 44 thematic mandates.
On the regional level, the African Commission on Human and People’s Rights receive (Art. 55) individual communication, similar to the HRC’s complaint procedure, for violation of the African Charter.
No! America is not coming to save you if you hold out for 30 days!
No! The United Nations is not coming to save you if you hold out for 30 days!
In the #EndSARS movement, can there be accountability beyond borders?
Notice only that the syllogism is only marginally contingent on the aforementioned premise.
