Towards a World Court of Human Rights

1

Towards a

World Court of Human Rights

Professor Martin Scheinin, EUI

Turku/Åbo, 17 August 2011

2

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

+ Two versions of a Draft Statute as of June 2009

3

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)• Vienna World Conference of Human Rights in 1993

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

Court of Justice to allow cases by individuals

• Luis Kutner and the Oatis case in Czechoslovakia 1952• Detention of US journalist William Oatis for spying• 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

t4

Challenges facing human rights law

• Ineffectiveness of the system• Lack of resources for the treaty bodies• Absence of legally binding powers• Weakness of political enforcement

• Unilateral exceptions by states• State-centred nature of monitoring• Fragmentation (compartmentalization)Reasons why a UN-level World Court of

Human Rights is needed5

Challenges facing human rights law

• Ineffectiveness of the system• Unilateral exceptions by states

• Derogations, reservations, withdrawal• Denial of applicability of HR, in time or space

• State-centred nature of monitoring• Fragmentation (compartmentalization)Reasons why a UN-level World Court of

Human Rights is needed

6

Challenges facing human rights law

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

• International organizations, including the UN itself, escape accountability

• No mechanisms for private actors, such as corporations or religious communities

• Fragmentation (compartmentalization)Reasons why a UN-level World Court of

Human Rights is needed

7

Challenges facing human rights law

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

• Internal consistency of human rights law• Legitimacy/authority of human rights bodies

Reasons why a UN-level World Court of Human Rights is needed

8

Challenges facing 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 neededA panacea!

9

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 % of all states• Implementation gap remains

• Regional HR courts: Europe, Americas, Africa

10

11

RWI Theme Maps

Statute of the World Court: Article 1

• Kozma – Nowak – Scheinin, May 2010• A World Court of Human Rights (“the

Court”) is hereby established. It shall be a permanent institution and shall have the power to decide in a final and binding manner on all complaints about alleged human rights violations brought before it in accordance with this Statute.

12

Article 5: applicable law = jurisdiction• Pursuant to the provisions of this Statute,

the Court shall have jurisdiction in respect of violations committed by any State Party or Entity of any human right enshrined in any of the following United Nations treaties in the field of human rights: (a) International Covenant on Civil and Political Rights 1966 …

(u) International Convention for the Protection of All Persons from Enforced Disappearance 2006

Arts 50-51: opt-in and opt-out clauses

13

Jurisdiction over ‘Entities’

• Article 4.1: any inter-governmental organization or non-State actor, including any business corporation, which has recognized the jurisdiction of the Court in accordance with Article 51.

• Same list of treaties as for states, plus:• When making such a declaration, the Entity

may also specify which human rights treaties and which provisions thereof shall be subject to the jurisdiction of the Court

14

The World Court: other actors

• List of Entities (art. 6 in MS draft)a) International organizationsb) Transnational corporationsc) International non-governmental

organizationsd) Organized opposition movementse) Autonomous communities

• Qualified by consent by the state15

Article 6: General Principles

• In exercising its jurisdiction, the Court shall determ-ine whether an act or omission is attributable to a State or Entity for the purposes of establishing whether it committed a human rights violation. In so doing, the Court shall be guided by the principles of the international law of State responsibility which it shall apply also in respect of Entities subject to its jurisdiction, as if the act or omission attributed to an Entity was attributable to a State. The Court shall determine the wrongfulness of an act or omission by a State or Entity through the interpretation of international human rights law.

16

Article 6.2

• In exercising its jurisdiction, the Court shall be guided by the principles of universality, interdependence and indivisibility of all human rights, by general international law, general principles of law and by the jurisprudence of other international and regional courts.

17

Applicable law

• Problem of variable geometry (Art. 5)• each state assessed on the basis of its treaty

ratifications + voluntary extensions – explicit exclusions• incl. Refugee Convention, excl. IHL

• Cure to fragmentation• Art. 6.1 law of state responsibility• Art. 6.2 interdependence and indivisibility • Art. 6.2 links with general international law:

“shall seek inspiration from customary international law and general principles of law”

18

Other key provisions

• Art 7. Individual complaints• by individual, group of individuals, non-gov.org• claiming to be victim of a violation

• Art 8. Advisory opinions• Art 9. Exhaustion of domestic remedies

• strong preference and guidance for effective domestic remedies

• Art 10. Other admissibility criteria

19

Legally binding powers to determine

• Art 11. permissibility and effect of any reservation

• Art 17.1 whether there is a violation• Art 17.2 what is the remedy ordered• Art 19.1 what interim measures are

required

20

Institutional status

• Entities are not parties to the Statute• May participate as observers in the Assembly of

States Parties (art. 43.1 and 43.5)• Financial contributions (arts. 44 b and 45)

• But they are full parties in a case • rights and obligations as those of states

• The Human Rights Council will supervise the implementation of Judgments (art. 18)• May appoint one or more separate subsidiary

bodies in respect of Entities or categories of them

21