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Towards a World Court of Human Rights?

Martin Scheinin, EUI

Academy of European Law

Florence, June 2009

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Sessions

1. Earlier proposals2. ICJ and ICC as world human rights courts3. Elements of ‘world court’ in the evolving

practice of human rights law (HRCttee)4. Challenges confronting human rights law5. The proposal in respect of states6. The proposal in respect of other entities

besides states

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Context: The Swiss Initiative UDHR 60

1 HUMAN DIGNITY2 PREVENTION3 DETENTION4 MIGRATION5 STATELESSNESS6 RIGHT TO HEALTH7 CLIMATE CHANGE8 A WORLD HUMAN RIGHTS COURT+ The Agenda http://www.udhr60.ch

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1. Earlier proposals• UN Charter 1945: notion of ‘human rights’• Plan for an International Bill of Rights: Declaration –

Covenant – Court. UDHR 1948 as the first step.• UDHR was split into ICCPR and ICESCR and the

inclusion of a right of complaint into the ICCPR was narrowly defeated in 1952. -> Separate ICCPR-OP

• Australian proposal 10 May 1948: Statute of a Court• Art 18: Cases by 1. states parties to the Statute, and

nationals of the same states, 2. other states and their nationals in accordance with rules to be adopted by ECOSOC

• Binding decisions but also advisory opinions • Subsidiary role for the Commission on Human Rights

(initiation, investigation, report, delegated powers of the Court, including to reach settlement

• Art 21 on Applicable Law follows ICJ Statute art 38

Earlier proposals (2)• Meanwhile, Uruguayan proposal of a High Commissioner

for Human Rights• With an Attorney General function to initiate cases (before the

Court or the Human Rights Committee)• Was finally established by the Vienna World Conference of

Human Rights in 1993

• Hersch Lauterpacht 1950, International Human Rights• Proposed amending art. 34 of the ICJ Statute

• Luis Kutner and the Oatis case in Czechoslovakia 1952• Submitted a writ of habeas corpus to the Commission on HR• United Nations Writ of Habeas Corpus and International Court of

Human Rights (Tulane Law Review 1954)• The detaining state must deliver the person to the UN,

irrespective of whether in the territory or not• Vicki Jackson (Cornell Law Review 2006)

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The Oatis case

• William N. Oatis, US reporter of Associated Press, was detained by Czechoslovakia in 1952 and accused of spying

• False confessions were obtained by enhanced interrogation techniques, including incommunicado detention and sleep deprivation

• Luis Kutner submitted in May 1952 a writ of habeas corpus to the UN Commission on HR; Oatis was released one year later• General Assemby to ask for ICJ advisory opinion• The UN to establish a Court for habeas corpus

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Subsequent discussion

• Jochen von Bernstorff, EJIL 2008• Historical account of the decades of the UDHR

• Stefan Trechsel (Keio Law Review 1993, Northwestern Law Review 2004)• Skeptical in respect of the idea of a Court• But sketches out three ‘models’

• Pyramid model (appeal court above regional ones)

• ICC model (separate conference to adopt statute)• Sibling model (UN Charter institution, as ICJ)

• Current discussion: Nowak, Ulfstein, Scheinin

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Universality of Human Rights

• The UN was far from universal in 1945-48• Nevertheless, voluntary acceptance by states

of human rights treaties has become universal • http://www.rwi.lu.se/tm/ThemeMaps.html Every state is a party to at least two of the major UN

human rights treaties (usually CRC as one of them)• Also with the 1996 Covenants, ratification numbers

are at 85 %• Implementation gap remains

• Regional HR courts: Europe, Americas, Africa

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http://www.rwi.lu.se/tm/ThemeMaps.html

http://www.rwi.lu.se/tm/ThemeMaps.html

http://www.rwi.lu.se/tm/ThemeMaps.html

2. The ICJ and the ICC: Human Rights Courts?

• Why do we need a World Court of Human Rights?

• As the International Court of Justice can address any matter of international law, why could it not serve the function of the WCHR?

• And wasn’t the gap in respect of private actors resolved by the adoption of the Statute of the International Criminal Court, making individuals accountable for grave human rights violations?

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Basics about the ICJ• Statute annexed to the UN Charter, of which it

forms an integral part• All UN member states are parties to the Statute

• but this is not enough to establish jurisdiction

• Contentious jurisdiction• General acceptance by a state by way of declaration• Ad hoc acceptance by a state for a case• Dispute resolution clause in a treaty

• appr. 300, including many human rights treaties• The judgments are legally binding for the parties• Only states may be parties in cases before the Court

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ICJ basics (2)

• Sources of law (art. 38)• a. international conventions, whether general or particular,

establishing rules expressly recognized by the contesting states;• b. international custom, as evidence of a general practice

accepted as law;• c. the general principles of law recognized by civilized nations;• d. … judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

• Advisory Opinions• ‘On any legal question’ (art. 65.1 + Charter art 96)• At the request by the Security Council, the General Assembly, or

a specialized agency authorized by it

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Potentials of ICJ as World HR Court

• Human rights disputes between states (contentious jurisdiction)

• Advisory opinions at the request of the GA could raise abstract legal issues, or even relate to real events

• ‘Appeal body’ for UN human rights treaty bodies, e.g. when the GA considers their annual reports

• Function as UN constitutional court in human rights matters

• The law of state responsibility can operate in establishing human rights violations 15

Emerging ICJ human rights jurisprudence

• Contentious cases• The death penalty/consular relations trilogy

• Paraguay (Breard) v. US, 9 April 1998 • Germany (LaGrand) v. US, 27 June 2001• Mexico (Avena et al.) v. US, 31 March 2004.

Note that the individuals were indirectly heard.

• Congo v. Belgium (Arrest Warrant case), 11 April 2000

• DRC v. Uganda, 19 December 2005• Bosnia and Herzegovina v. Serbia (Genocide

case), 26 February 200716

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Advisory Opinions by ICJ

• Legality of the Threat or Use of Nuclear Weapons, 8 July 1996 • The ICCPR remains applicable in times of war, “except by

operation of Article 4” (derogation as allowed by ICCPR itself).• “The test of what is an arbitrary deprivation of life … falls to be

determined by the applicable lex specialis… (= humanitarian law)

• ‘Appeal court’ function in respect of HRCttee: General Comment No. 14 was reversed or at least modified (p. 266)

• But in line with HRCttee inadmissibility decision in E.W. et al. v. The Netherlands (429/1990), decided in 1993

• Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004• Application of human rights treaties (ICCPR, ICESCR, CRC) and

establishment of breaches of them through adv.op. procedure• ‘Appeal court’ function in respect of the HRCttee, this time

affirming the Committee’s positions (extraterritoriality, applicability during armed conflict, General Comment No. 27 on limitations test)

Longer historical perspective

• PCIJ had many cases related to minorities• German Settlers in Poland (1923): forced eviction

of ethnic group violates international law• Treatment of Polish Nationals (and others) in

Danzig (1932): develops non-discrimination• Minority Schools in Albania (1935)

• Human rights issues in ICJ before 1998• Reservations to the Genocide Convention (1951)• Namibia and Western Sahara advisory opinions

(1970, 1975)• Barcelona Traction, 5 February 1970 18

Limitations of the ICJ

• Contentious cases can only be adjudicated between two or more states

• State-centred procedure and mindset• States have not proven keen to use the ICJ

for settling human rights issues• E.g., appear to prefer ignoring the HRCttee

Views, rather than ‘appealing’ to the ICJ• A. v. Australia, HRCtttee 3 April 1997

• The Security Council may not be subject to effective judicial review by the ICJ• See, Lockerbie case, order of 14 April 1992

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ICJ in LockerbieOrder of 14 April 1992

• 39. Whereas both Libya and the United Kingdom, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter; whereas the Court, which is at the stage of proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992); and whereas, in accordance with Article 103 of the Charter, the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention;

• 40. Whereas the Court, while thus not at this stage called upon to determine definitively the legal effect of Security Council resolution 748 (1992), considers that, whatever the situation previous to the adoption of that resolution, the rights claimed by Libya under the Montreal Convention cannot now be regarded as appropriate for protection by the indication of provisional measures ;

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Alternative World Court model

• International Court of Justice as ‘appeal instance’ above UN human rights treaty bodies (through advisory opinions requested by the General Assembly)

• Merger of the two Covenant committees into a new Human Rights Committee, to secure interdependence and indivisibility

• Overlapping membership with the other specialized committees which to become de facto satellite/subsidiary bodies of the new Human Rights Committee

• Human Rights Council to oversee the effective implementation of decisions and findings by treaty bodies

• No treaty amendments or new treaty needed!

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Alternative (Second-Best) Model

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ICJ

General Assembl

y

HR Counc

il

States

Back to Bosnia v. Serbia (2007)• 208. …The Applicant, emphasizing that the matter is not one of

criminal law, says that the standard is the balance of evidence or the balance of probabilities, ... According to the Respondent, the proceedings “concern the most serious issues of State responsibility and . . . a charge of such exceptional gravity against a State requires a proper degree of certainty. The proofs should be such as to leave no room for reasonable doubt.”

• 209. The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive… The same standard applies to the proof of attribution for such acts.

• 210. In respect of the Applicant’s claim that the Respondent has breached its undertakings to prevent genocide and to punish and extradite persons charged with genocide, the Court requires proof at a high level of certainty appropriate to the seriousness of the allegation.

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The ICC as a human rights court?

• Requirement of legality in criminal law, including a high standard of proof, does not adequately reflect the inequality inherent in vertical relationships of power• But ‘proof beyond reasonable doubt’ is not unheard

of for the ECtHR, starting from Ireland v. UK• So far, international criminal liability is only individual

in nature – states and other entities cannot be convicted

• International crimes are a fairly restricted subset of human rights violations

• But: the trial and the stigma are important in providing an effective remedy to victims, even if only in a small proportion of all human rights violations

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Ireland v. UK, § 16118 January 1978

• The Court agrees with the Commission’s approach regarding the evidence on which to base the decision whether there has been violation of Article 3. To assess this evidence, the Court adopts the standard of proof "beyond reasonable doubt" but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account.

• Related to the modus operandi of the ECtHR. Interplay between legality and legitimacy.

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Human rights violations as international crimes

• Genocide (art. 6 of the ICC Statute)• Crimes against humanity (art. 7)

• Disappearances, torture, enslavement, arbitrary detention, deportation of population, apartheid (human rights violations per se)

• Murder, rape (ordinary crimes)

• War crimes (art. 8)• Torture or inhuman treatment, denial of fair trial • Ordinary crimes• Breaches of humanitarian law (methods of warfare)

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Other contributions by criminal tribunals

• Rights of the defence and the right to a fair trial• E.g. when can the right of the accused to

defend himself in person be restricted?

• Rights of victims and witnesses as international human rights

• Clarification of conceptual issues• ‘torture’, ‘rape’, etc. • subject to strict requirement of legality

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3. Elements of World Court in human rights practice

• “From consent to constitution”• Consent: state-centred view on international law

where consent is the ultimate limit of any obligations and the liberal analogy of Lotus prevails

• Constitution: recognition of the individual as the subject with freedom; as in any liberal society, the State is subordinated to the rule of law and there is an objective normative framework above its will (the Constitution)

• Focus on the Human Rights Committee• Corollary: the ECtHR as regional constitutional

court, e.g. Open Door v. Ireland (1992)

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PCIJ in Lotus (1927)• International law governs relations between independent

States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

• Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State...

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From International Law to Transnational Law

• “International Law”• Reciprocal contractual binary relationships of duty/

obligation between “primary subjects of international law” = sovereign States (with a territory)

• Consent as the ultimate limit for any obligation• ”Liberal analogy”: what is not prohibited, is permitted for

states under their sovereignty (Lotus)

• “Transnational Law”• The objective process of globalization• Recognition of the role of other actors: IGOs, IFIs, NGOs,

MNCs and individuals• Emergence of a constitution-type normative order which is

above states, even in the absence of consent• ”Rule of law analogy”: states must act within the law

HRCttee General Comment No. 31• 8. The article 2, paragraph 1, obligations are binding on States and

do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities…

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HRCttee and reservations

• The Vienna Convention Regime• See, also, article 20 (3)• Consequences of impermissible reservations?

• Art. 57 of the European Convention of HR • Does not address the consequences of impermissible

reservations• Practice of the European Court of Human Rights: Belilos

, Loizidou: bound without the benefit of…• HRC General Comment No. 24 (1994)

• Competence of the HRC to determine + severability of impermissible reservations as the general rule

• Kennedy v. Trinidad and Tobago (845/1999)• see, also, the dissenting opinion and Hopu

Continuity of obligations

• State Succession: Former Soviet Union and Former Yugoslavia• Kazakhstan as the “happy end” of the long story• Hong Kong and Macau: non-state or non-party

subject to reporting obligation?

• Potentials of Reporting by Non-States• Kosovo and a report by the UN itself,

signalling IGOs being bound by the ICCPR• Issue of Withdrawal: the Case of

North Korea and General Comment No. 26• compare to Vienna Convention Regime• Submission and consideration of the report 2001

Issues of Interdependence• A matter of policy or a principle of law?• J.B. et al. v. Canada (118/1982)

• distinction approach (right to strike)• General Comment No. 23

• distinction approach to minority rights• Hopu and Bessert v. France (549/1993)

• interdependence approach to minority rights• dissenting opinion: distinction approach

• General Comment No. 28• interdependence within the CCPR

• General Comment No. 29• interdependence beyond the CCPR

Extraterritorial effect of human rights treaties

• HRC: Lopez Burgos v. Uruguay (1981)• Abduction of citizens on foreign soil by State agents

• HRC: Ibrahima Gueye et al. v. France (1989)• The authors were non-citizens and non-resident, subject to French

jurisdiction only in that they rely on French legislation in relation to their pension rights.

• HRC: Concluding Observations on Iran (1993)• Fatwa on Salman Rushdie and threat to execute it outside the

territory• HRC: Concluding Observations on Israel (1998 and 2003)

• the Covenant must be held applicable to the occupied territories and those areas of Southern Lebanon and West Bekaa where Israel exercises effective control (CCPR/C/79/Add.93)

• the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by [Israel’s] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of state responsibility of Israel under the principles of public international law (CCPR/CO/78/ISR)

General Comment No. 31 (2004)

• 10. States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party. This principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.

Human rights and internat-ional humanitarian law

• ICCPR Article 4 taken at its face value• narrow list of nonderogable rights in para. 2• derogation taken as suspension of rights

• General Comment No. 29 • limiting the power of States to derogate, through

the interdependence approach and with reference to other areas of international law

• continued validity of ICCPR during emergency, including armed conflict

• Derogation taken as specific form of restriction• nonderogable dimensions of arts. 2, 9, 10, 12, 14,

20, 26, 27...

General Comment No. 31

• 11. As implied in General Comment 29, the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.

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Legal Nature of the Findings by the HRCttee

• Law or “soft law”? “Recommendations”? • Rather, institutionalized practices of interpretation in

relation to legally binding treaty obligations; legitimacy as the real challenge and the test

• ICCPR art. 2, para. 3: a right to an effective remedy, legal basis for addressing the remedy in the Final Views as state obligation

• Subsequent (state) practice under VCLT art 31(3)(b)?• Piandiong et al. v. Philippines (869/1999)

• Rule 86/"grave breach" of Opt. Protocol art. 1• The HRCttee approach was subsequently followed by the

ECtHR in Mamatkulov and Abdurasulovic v. Turkey • Laptsevich v. Belarus (780/1997)• Concluding Observations from the reporting

procedure• language (incompatible/concern) and legal nature (legal

finding + recommendation)

Sayadi and Vinck v. Belgium (1472/2006)• HRCttee had jurisdiction in respect of

• states parties to the ICCPR Optional Protocol, and • acts or omissions attributable to them

• Did not review the lawfulness of Security Council measures but Belgium’s action before or after the listing by the 1267 Committee of the Security Council• chain of causality between Belgium’s initiative and the listing• Belgium’s effort (but inability) to delist taken as proof that the

consequences went beyond necessity/proportionality

• The line between UN imposition of sanctions and member state implementation of them is thin but as ‘real’ as any legal fiction• UN law problem is in listing of individuals by the Security

Council (ultra vires?), not in the review by national or regional courts 40

4. Challenges facing UN human rights law

• Ineffectiveness of the system• Unilateral exceptions by states• State-centred nature of monitoring• Fragmentation

(compartmentalization)Reasons why a UN-level World Court

of Human Rights is needed

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4. Challenges facing human rights law (2)

• Ineffectiveness• Lack of ratifications (improving…)• Lack of acceptance of the right of

complaint• Failure to cooperate (reports, complaints)• Lack of binding force of findings

• Non-compliance frequent

• Lack of implementation/enforcement• Lack of effective remedies to victims• Resource constraints

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4. Challenges facing human rights law (3)

• Unilateral exceptions• Reservations• Derogations• Denial of extraterritorial effect• Denial of state responsibility

• Delegation “up” to intergovernmental organizations

• Delegation “down” to private actors

• Permissible limitations

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4. Challenges facing human rights law (4)

• State-centred nature of monitoring• Globalization

• emergence of ‘new’ actors with capacity to affect enjoyment of human rights

• partly because of deregulation

• Inability of mechanisms to address other actors• Reduces the understanding of the substance of

human rights• What is a human right, and what is a violation?

• Results in unholy alliances• ‘The state is a woman’s best friend’• Refusal to delegate powers to communities

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4. Challenges facing human rights law (5)

• Fragmentation• Reduction of human rights law into a semi-

autonomous discipline has a marginalizing effect• Human rights law is not taken seriously

• State-centred nature of human rights monitoring mechanisms results in disconnection from criminal law & tort litigation• Human rights law fails to provide guidance

• Focus of each HR court or treaty body on one treaty misses the interdependence and indivisibility of human rights and links with general international law• Distinction approach, e contrario, turf wars

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