A World Court of Human Rights: A Solution to the Human Rights issues of the 21 st Century

Transcription

1 A World Court of Human Rights: A Solution to the Human Rights issues of the 21 st Century Sophie Zacharia All of us, the international community, i.e. intergovernmental and non-governmental organizations, civil society, business, the media, the donor community, and other organs of society, foreign governments as well as private individuals, have a shared responsibility to find effective ways to facilitate the implementation of human rights for all 1. As Nowak asserts human rights are pure rhetoric until they are actually enforced. However, as will be seen the current human rights protection framework has a major gap between its high aspirations and sobering realities on the ground 2. This is so despite the recent transformation of the international human rights supervisory mechanisms. The United Nations Human Rights Council (HRC) was established in 2006 which replaced the United Nations Human Rights Commission 3. However, because its recommendations are not legally binding, actors can, at present, evade accountability for their human rights obligations under international human rights law 4. Furthermore, international human rights treaties and conventions are by no means legally binding, so in the present system, there are no legal remedies for this implementation gap 5. I will evaluate a proposed solution to establish a World Court of Human Rights (WCHR) to resolve the current issues and enhance the protection framework by being more transparent 1 Manfred Nowak and Julia Kozma, Swiss Initiative to Commemorate the 60th Anniversary of the UDH., A World Court of Human Rights: Protecting Dignity an Agenda for Human Rights (2009) at p.4 2 Ibid 3 The Commission was under the Economic and Social Council, ECOSOC, whereas the newly created Council is a sub-organ of the General Assembly. General Assembly Resolution 60/251 (3 April 2006) 4 Fn1 at p.12 5 Ibid at p.13

2 and accessible to all. The paper will seek to extensively discuss whether this proposal would be a viable solution to the present weaknesses in the system of international human rights. It is equally instructive to assess whether a WCHR would be an effective solution to the problem, rather than a mere solution. Its effectiveness would ultimately depend on whether its judgements would actually be honoured rather than just be limited to the finding of a violation as is the case with the European Court of Human Rights (ECtHR). Two major issues in the human rights mechanisms include the lack of judicial and nonjudicial institutions tasked with the purpose to protect human rights. A number of international bodies that monitor human rights include the Human Rights Council, the Human Rights Committee and UN High Commissioner of Human Rights as non-judicial institutions which hold he function of examining in a spirit of cooperation reports prepared by state parties as to the measures taken to implement the right in question 6. As Nowak has argued, these institutions fail to fulfil the right of all persons to a fair and public hearing and impartial tribunal... as established by Article 10 of the Universal Declaration of Human Rights 7. The UDHR also entitles everyone, the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution by law 8. Although the UDHR is not a legally binding instrument, these rights are internationally recognised guarantees and are reiterated in Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR). Regardless of these guarantees, it can be strongly argued that under today s protection framework, the right to judicial reparation is severely limited. The UN has in fact expanded 6 Ibid at p.11 7 Universal Declaration of Human Rights, United Nations General Assembly, 1948, Resolution 217A. See: accessed on Ibid, Article 8

3 on the recognised right to remedy and reparation in the UN Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross violations of International Human Rights Law and Serious Violations of International Humanitarian Law, also known as the van Boven/Bassiouni Principles. Nevertheless, these principles apply only to those instances where there has been a gross violation of human rights, and thus fails to protect other violations which do not fall into this category 9. The only judicial bodies responsible for monitoring human rights are either regional or limited in scope. As observed in Zook 10 the European Court of Human Rights only hears those cases regarding States that are signatories of the European Convention on Human Rights and Fundamental Freedoms 11. It is submitted that while regional institutions have gone some way in demonstrating the achievements of regional judiciaries, they still leave a major gap for access to a human rights judiciary in Asia and the Pacific where no such regional arrangement exists 12. A WCHR would empower people living in Asia and the Pacific region to have access to a court to which they can seek redress. It is observed that the only global judiciaries that deal with violations of human rights include the International Criminal Court (ICC), the International Court of Justice (ICJ), ad hoc tribunals, and mixed courts- which arguably also leave major loopholes in human rights accountability. One need only consider the fact that the ICJ, although an international court, can only issue judgements on inter-state contentious cases or issue advisory opinions. In much the same way, the jurisdictional scope of the ICC is limited. In contrast to the ICJ, the ICC has jurisdiction to prosecute individuals that have committed one of the four crimes 9 Fn 1 at p Darren Zook, Human Rights Around the World Lecture (September 23) The European Convention of Human Rights and Fundamental Freedoms, Fn 1 at p.18

4 listed under Article 5(1) of the ICC Statute which lists genocide, crimes against humanity, war crimes and crimes of aggression 13. Furthermore, ad hoc tribunals and mixed courts such as the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) can only try those cases in relation to a specific event within a particular time frame. An additional weakness of the existing international human rights system is its failure to adequately hold non-state private actors accountable. The present system is exclusively focused on holding public and state actors accountable 14. In the advent of globalisation, we are gradually moving away from the idea that states are the only international actors or subjects of international law. Today, transnational companies have a social obligation to act in a corporately social manner- the idea of Corporate Social Responsibility. Although corporations are to observe the principle of due diligence and the do no harm principle, treaties and conventions are not legally binding on corporations and the concept of the Responsibility to Protect as applicable to states, does not extend to non-state actors 15. Nonstate and private actors have rights under international law; however, there are no monitoring mechanisms to ensure that such bodies are held accountable for the violation of human rights. A WCHR would create the ideal situation where non-state actors such as transnational corporations, freedom fighters and other non-state combatants would have the opportunity to voluntarily sign up to the Court s jurisdiction. But why would they do this? 13 It should be noted that the ICC may not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted. 14 Fn 1 at p Bertrand Ramacharan, A World Court for Human Rights: What Functions? 2009 at p.2 accessed on

5 The same question could be applied to state actors: why do States voluntarily accept human rights obligations if they restrict their sovereignty? They do so as human rights are today seen as the only universally recognised value system of our time- forced by citizens to elect governments with NGOs and civil society putting pressure on states to accept binding human rights obligations. In modern times where we have seen an up rise in terrorist activities, this weakness has become more prevalent and is now widely seen as being an international concern. Private non-state actors such as terrorist groups and mercenaries often do not suffer the consequences for violating human rights norms. Existing institutions have failed to adequately protect the right of all against violations by the various types of public and private actors that could impinge upon them. With these weaknesses in mind, we need to have a means of fixing human rights procedures and norms. One way to remediate this apparent implementation gap could potentially be through the establishment of a WCHR which would go some way in enhancing the efficiency of existing institutions by increasing the efficiency, visibility and quality of the international human rights protection framework. The paper will now proceed to examine how a WCHR would contribute to overcoming the present weaknesses of the supervisory system. Firstly, a WCHR would increase the efficiency of the international human rights framework by strengthening the division of labour between political and expert bodies; enhance the accountability of non-state actors, and improving the fulfilment of the right to reparation.

6 Nowak argues that one of the main reasons for the inefficiency and high level of politicalization of the UN human rights system is the lack of the division of labour between expert and political bodies. The role and duties of politics and expertise are currently both allocated to the HRC through its Universal Periodic Review Procedure (UPR). According to Nowak the work of the HRC, demands a stronger counterpart among the independent expert bodies 16 to supervise the implementation of treaty bodies decisions. In response to this, Ulfstein argues that a WCHR would enhance the efficiency of the international system of protecting rights by supplementing the work of the HRC s complaints procedures 17. This would thereby increase human rights protection resources and reduce the workload of regional human rights courts. However, in response to this, there are already far too many human rights treaty bodies in existence 18 and that a WCHR would further fragment the international supervisory system. It can be strongly argued that although there are at present many human rights bodies, the existing bodies such as the UN Commissions and Committees and the International Criminal Tribunals are not judicial bodies that are capable of issuing reparation, or deal exclusively with criminal or inter-state human rights issues. As Treschel further maintains, the human rights bodies play a different role than a WCHR which would prosecute for all types of human rights violations by different types of state actors 19. In relation to the argument about supervisory fragmentation of the international human rights supervisory framework, there are several potential solutions for this concern. As Nowak and 16 Fn 1 at p Geir Ulfstein, Chapter 18: Do we Need a World Court of Human Rights? Law at War- The Law as it was and the Law as it Should Be, eds.o.engdahl and P.Wrange. The Netherlands: Koninklijke Brill BV, pp (2008) at Stefan Trechsel, A World Court for Human Eights? Northwestern University Journal of International Human Rights 1 (2004) 3 p.4 accessed at Ibid

7 Scheinin propose, states accepting the WCHR could denounce the complaints procedures of human rights conventions 20. In addition, complimentarity- the idea that individuals would have to choose between the available mechanisms for airing their complaint- could alleviate this risk 21. Another concern relates to the difficulty associated with marketing the Court to states in the international community. States may view a World Court as a step towards creating a World Order and may feel reluctant to sign up to the treaty establishing the Court. However, against these concerns, Ulfstein 22 contends that protecting individuals against a democratic majority is equally important to, or perhaps more important than, protecting national interests. By being accessible to all world citizens, a WCHR would pave the way for the establishment of the restitution, rehabilitation and non-repetition that genuine human rights protection demands of which the current system leaves unfulfilled. However, as Ulfstein argues, a WCHR would pose the challenge of administrative overload and risks putting the entire system and functioning of the Court of receiving too many cases. On a positive note, by delegating the HRC s political responsibility to the Court and allowing the Council to retain the expertise function, a WCHR would allow the HRC to maintain the plurality of professional backgrounds to effectively examine state reports, while keeping this separate from the legal expertise needed to make judgements on individual cases. Another argument that can be levelled against the creation of a WCHR are the financial difficulties associated with its establishment and the implications of the implementation of its 20 Fn 17 at Ibid 22 Ibid

8 decisions. Arguably, in an international system composed of States at various stages of development and with widely different and unequally distributed finances and economic conditions, the financial burden of establishing and contributing to human rights judiciary would weigh much more heavily on some states than others. It would be potentially impossible and ironically unjust to expect states to establish, support and implement the decisions of a new institution without any financial assistance. This is core to international social justice. In conclusion, it can be argued that a WCHR would at the present time be a desirable, necessary, viable and contemporary solution to the threats against peace and security in the international system. As Murphy 23 argues the state centred nature of monitoring and supervision needs to adapt to modern challenges faced by the international community. As has been discussed, there is no effective mechanism to deal with private and non-state actors which require an effective and rapid response. As a global institution, it would be more visible, accessible and unified rather than the existing fragmented system of human rights jurisprudence. Its creation is justified by the fact that the protection of human rights is not only a matter of collective concern, but also affects in the highest degree individuals and minorities. The timing of such an establishment is also convenient with the newly established HRC and the debates on the improvements to the treaty body system. A WCHR would be technically easier to realise than the Higher Commissioner s single unified treaty standing body, since the establishment of a Court does not require amendments of existing human rights conventions to which the Court should be given jurisdiction mean that states may await the Court s function and jurisprudence in practice before they commit themselves. In this 23 Ray Murphy, Is It time to establish a World Court of Human Rights? The Sunday Business Post, 2 January 2011 at 1

9 way, a WCHR would certainly accord with a more general trend towards an increasing trend of international courts. This is not to say that a WCHR would face considerable difficulties that the current global political climate. The field of human rights is characterised by conflicts between political systems, regions, cultures and religions, especially in the HRC. However, it is important to take the opportunity to review the merits of the supervisory system which is hoped would widen the focus on the establishment of a WCHR.