1. Towards a World Court of Human Rights?
Martin Scheinin, EUI
Academy of European Law
Florence, June 2009

2. Sessions Earlier proposals ICJ and ICC as world human rights courts
Elements of ‘world court’ in the evolving practice of human rights law (HRCttee)
Challenges confronting human rights law
The proposal in respect of states
The proposal in respect of other entities besides states

3. Context: The Swiss Initiative UDHR 60
HUMAN DIGNITY
PREVENTION
DETENTION
MIGRATION
STATELESSNESS
RIGHT TO HEALTH
CLIMATE CHANGE
A WORLD HUMAN RIGHTS COURT
The Agenda

4. 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 > 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
The Australian proposal 10 May 1948: Statute of an International Court of Human Rights. Parties to the Covenant ipso facto parties to the Statute (2) which would be a part of the Covenant on Human Rights (1, Art 1 of Statute). Parties in a case: states, individuals, groups of individuals and national or international asssociations (Art. 17). Initiating a case: (Art 18) the Court shall be open to cases by 1. states parties to the Statute, and nationals of the same states (not clear whether this covers associations), 2. other states and their nationals in accorance with rules adopted by ECOSOC. Jurisdiction (Art. 19.1): (i) disputes about interpretation or application of Covenant, referred to the Court by a party to the Covenant; (ii) or of any other human rights treaty, referred to the Court by a party to it; (iii) any matter of observance of Covenant or other human rights treaty, referred to the Court by the Commission. Binding decisions (3a). Recourse to GA if failure to implement (3b). Court could refer disputes to the Commission for investigation and report, and delegate its own powers, including to reach settlement (Art 20). Commission could ask for advisory opinions (4, Art. 29)). Applicable law (Art 21): follows ICJ Statute art 38, so not restricted to HR and includes custom, general principles of law, equity and justice
NOTE inconsistency between arts 18 and 19
Also art 21 inconsistent

5. 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)
Luis Kutner was the lawyer of William N. Oatis, and Associated Press reporter detained in Czechoslovakia. Submitted in 1952 a habeas petition to the Commission (309) - sleep deprivation and other forms of coerced interrogation to obtain false confessions, and later on wrote dozens of articles and papers about the topic raised the issue of GA requesting an advisory opinion fro the ICJ.

6. 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

7. 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
The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law
Jochen von Bernstorff*

8. Universality of Human Rights
The UN was far from universal in
Nevertheless, voluntary acceptance by states of human rights treaties has become universal
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

12. 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?

13. 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

14. ICJ basics (2) Sources of law (art. 38) Advisory Opinions
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 Charter art 96)
At the request by the Security Council, the General Assembly, or a specialized agency authorized by it

15. 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

16. 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 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 2007

17. 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)
GC No. 14 was in 1984.
E.W. et al. decided 1993 = before ICJ. See 6.2 – 6.3 – 6.4
Wall: paras 91 et seq. in particular

18. 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
Barcelona Traction: rules concerning basic human rights are the concern of all states – obligations erga omnes

19. 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
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Order of 14 April 1992, Request for the indication of Provisional Measures
42. Whereas both Libya and the United States, 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 con-
tained 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;
43. Whereas the Court, while thus not at this stage called upon to deter-
mine 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 Conven-
tion cannot now be regarded as appropriate for protection by the indica-
tion of provisional measures ;
44. Whereas, furthermore, an indication of the measures requested by
Libya would be likely to impair the rights which appear prima facie to be
enjoyed by the United States by virtue of Security Council resolution 748
(1992);

20. ICJ in Lockerbie Order 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 ;

21. 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!

22. Alternative (Second-Best) Model
(ICCPR+ICESCR)
New HRCttee
CAT
CERD
CEDAW
MWC
CRC
CED
CRPD
ICJ
HR Council
General Assembly
States

23. 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.

24. 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

25. Ireland v. UK, § 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.

26. 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)
Art 7.1: (a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

27. 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

28. 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)

29. 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...

30. From International Law to Transnational 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

31. 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…
Response to the challenge of new, including private, actors

32. 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
Show Kennedy 6.7, and dissent 11-12, Back to ICJ in reservations to the genocide convention case!

33. 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

34. 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

35. 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)

36. 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.

37. 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...

38. 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.

39. 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)
Show Laptsevich para. 10

40. 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

41. 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

42. 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

43. 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

44. 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

45. 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