INTERNATIONAL HUMAN RIGHTS LAW
Julien Morissette
Fall 2007
“About a lot more than a few causes célèbres like Guantánamo.”
“Human rights are a disenchanted, thin morality for a secular world.”
- Frédéric Mégret
I. Introduction........................................................................................................................... 4
1. Introduction ........................................................................................................................ 4
A. International… ............................................................................................................... 4
B. …Human Rights ............................................................................................................ 5
2. The History of International Human Rights ....................................................................... 7
A. Ancient origins .............................................................................................................. 7
B. Globalization of human rights ....................................................................................... 8
C. Many historical sources ................................................................................................. 9
D. Post-1945 changes ....................................................................................................... 11
3. The Philosophy of International Human Rights ............................................................... 13
4. International Human Rights and International Relations ................................................. 14
II. Structural Issues ................................................................................................................ 16
5. The Sources, Hierarchy and Interpretation of IHRL ........................................................ 16
A. Treaties ........................................................................................................................ 16
B. Custom ......................................................................................................................... 17
C. General principles ........................................................................................................ 17
D. Structure of IHRL ........................................................................................................ 17
E. Consequences of the special character of HR treaties ................................................. 19
6. The Subjects of Human Rights Obligations ..................................................................... 21
A. The State ...................................................................................................................... 22
B. The individual .............................................................................................................. 22
C. Corporations (?) ........................................................................................................... 22
D. International organizations .......................................................................................... 23
E. Obligations to whom? .................................................................................................. 25
7. The Territorial Scope of Human Rights Obligations ....................................................... 25
A. Agency......................................................................................................................... 26
B. Effects or impact theory .............................................................................................. 26
C. Effective control .......................................................................................................... 26
8. The Domestic Status of International Human Rights Norms ........................................... 27
A. Monism vs. dualism .................................................................................................... 27
B. Extent of direct applicability ....................................................................................... 28
C. Case study: Possible extra-territorial obligations of Canada in Afghanistan .............. 29
III. The Substantive dimension ............................................................................................. 30
9. The Universality of Rights ............................................................................................... 30
A. Universalism and relativism in human rights .............................................................. 30
B. Changing the formulation of human rights .................................................................. 31
C. The counter-critique to relativism ............................................................................... 32
10. The Intensity of Human Rights Obligations: Different Types of Rights ....................... 33
Categories of rights .......................................................................................................... 33
A. History ......................................................................................................................... 33
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B. Formulation ................................................................................................................. 34
C. Object........................................................................................................................... 35
D. Subject ......................................................................................................................... 35
E. Structure ....................................................................................................................... 35
F. Types of obligations ..................................................................................................... 36
G. Intensity of obligations ................................................................................................ 36
H. Different types of obligations ...................................................................................... 36
I. Exceptions to obligations .............................................................................................. 37
J. Limitations .................................................................................................................... 37
K. Margin of appreciation ................................................................................................ 38
L. Different standards of achievement ............................................................................. 38
M. Possibility of derogation ............................................................................................. 38
11. Economic and Social Rights .......................................................................................... 39
A. Economic and social rights: an oxymoron? ................................................................ 39
B. History of economic and social rights ......................................................................... 40
C. Conceptual differences ................................................................................................ 41
D. A “violations” approach .............................................................................................. 41
IV. The Enforcement Dimension .......................................................................................... 42
A. Actors .......................................................................................................................... 43
B. Means and methods ..................................................................................................... 44
12. International Political Implementation of Human Rights .............................................. 44
A. Human rights and foreign policy: introduction ........................................................... 44
B. Balancing human rights and other foreign policy imperatives .................................... 45
C. Threshold for inter-State pressure ............................................................................... 46
D. Conditionality .............................................................................................................. 46
E. Making changes on the world stage: international institutions.................................... 48
F. Commission / Council on Human Rights .................................................................... 50
G. High Commissioner for Human Rights ....................................................................... 51
H. Treaty bodies ............................................................................................................... 51
13. Regional mechanisms ..................................................................................................... 52
A. Historical backgrounds ................................................................................................ 53
B. Major institutional features .......................................................................................... 54
C. Applicable instruments ................................................................................................ 55
D. Procedure ..................................................................................................................... 55
14. International Human Rights Procedure .......................................................................... 56
A. Receivability ................................................................................................................ 56
B. Evidence ...................................................................................................................... 57
C. Interim measures, judgements and remedies ............................................................... 57
15. Torture ............................................................................................................................ 58
A. History ......................................................................................................................... 58
B. Philosophy ................................................................................................................... 59
C. Politics ......................................................................................................................... 59
D. Challenges ................................................................................................................... 59
16. The Problem of Grave and Systematic Human Rights Violations ................................. 61
A. Defining the problem ................................................................................................... 61
B. Tools ............................................................................................................................ 62
17. Terrorism and Human Rights ......................................................................................... 63
A. The effects of 9/11 ....................................................................................................... 64
B. Three problems of human rights and terrorism ........................................................... 64
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C. Restraints to State responses........................................................................................ 65
D. Rights-specific approach ............................................................................................. 65
18. Trade, HIV and Human Rights ...................................................................................... 66
A. The links between the three phenomena ..................................................................... 66
B. International instruments ............................................................................................. 67
C. Some sort of resolution? .............................................................................................. 67
19. Critiques of Human Rights ............................................................................................. 67
A. Critique vs. criticism ................................................................................................... 67
B. Common critiques of human rights ............................................................................. 68
C. Laundry list of critiques ............................................................................................... 68
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I. Introduction
1. Introduction
Sept. 4th, 2007
“International Human Rights” is a phrase very often used, with varying meanings:
international morality, moral claims, actual international law, etc. The language of rights is
very powerful today for non-State actors trying to escape political / moral questions.
A. International…
“International” is no longer really the term of the day, as it refers today refers to States /
nation-States and means “inter-States”. This aspect is still present, ex. when States ratify
treaties, create regional courts or bodies in the UN… But human rights are moving beyond the
State paradigm.
The better title for this class is “Globalization of Rights”. There is no escaping of the Gword, which means many things happening to human rights. This goes beyond the 18th C.
Enlightenment black-box model of rights between a people and its sovereign. Today, rights
travel to some extent with people.
This is the meeting of two ideas: international and human rights. This process has occurred
mostly within the last 50 years. What happens when human rights are extracted beyond the
domestic realm? The idea today is that human rights have broken free from State borders
and become a measure of State conduct. This is the transition between human rights as a
domestic construct to a part of international law binding States. It’s a very hegemonic
discourse, attempting to swallow politics, etc.
One founding document is the Universal Declaration of Human Rights, which claims to be
dissociated from the body that has proclaimed it: note that it’s not called the “UN
Declaration”. Does it have any relevance to Canada? We have the Charter… IHR has a
residual role in interpretation, but is it required?
There is no International Court of Human Rights. There is the European CHR in Strasbourg,
which is a court of last resort once an issue has been litigated domestically: there, one can sue
one’s own State. If a State is found in breach, it may have compensation obligations.
Enforcement can be a challenge, but in Europe most States do enforce rulings. There is a
suspicion that this is the projection unto the world of Western / Liberal / European (the US is
more self-reliant) idea. There are also Inter-American and African courts on HR. They have
the same blueprint as the ECHR, but with less bite…
Interestingly, the International Court of Justice is today active in the HR field, although no
one would have anticipated that a few decades ago. For a State to complaint about another
State’s treatment of its citizens is still politically taboo, but there is a backdoor: the institution
of diplomatic protection. States can complain about treatment of their citizens by other States.
One actual example is the case of German citizens condemned to the death penalty in the US.
The US had violated the right to consular advice of the German citizens upon their arrests
included in the Vienna Convention on Diplomatic Relations.
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The UN does a lot in terms of HR. One of its founding goals is to promote HR: stated in its
Charter. The UN’s self-perception has tremendously been affected by HR in the last few
decades. Within the UN, the main body is the Council on Human Rights, which replaced the
Commission on Human Rights 18 months ago (trying to shake off its bad reputation). These
are political bodies which can denounce abuses.
The ICCPR and ICESCR are known as the “international bill of rights” with the
Universal Declaration, which is only a General Assembly resolution. These two treaties are
monitored by treaty bodies, a more discrete part of the UN system. For the ICCPR, it’s the
HR Committee.
There are also the international tribunals and related concepts / bodies: ICC, ICTR, ICTY,
Sierra Leone, Cambodia, universal jurisdiction… These are key to international criminal
law, but situations leading to such set-ups are highly pathological (big – Rwanda – and small
– only a few trials): not every HR violation is a crime against humanity, which is more than a
massive HR violation… ICL does protect some of the same values, but it has a different
intellectual genealogy: HR were never an issue at Nuremberg. ICL originally had a lot more
to do with repressing war crimes, which are even further away from HR.
Is there IHRL beyond treaties? There is some customary international law, ex. the
prohibition of slavery. That is even arguably a norm of jus cogens, which can’t be set aside by
treaty. Custom involves a practice and opinio juris, the feeling of being bound. It’s tricky to
claim HR fit in these criteria – although it can be argued that many rights are respected
broadly. The last card is a moral argument: do we want a world where torture is legal?
B. …Human Rights
After dealing with the “international”, what is a “human right”? Is prohibiting smoking in the
workplace a violation of a HR? This shows the breadth and arguably inflation of ‘rights
talk’. Intuitively, there is no HR to smoke, but there are more potent arguments. One is that
rights have limits, including the rights of others (‘right to health’) or legitimate State policy
(legitimate aim of overall health).
Many rights are granted by law and contracts, but not all are HR. The idea is that HR are
attached to people as a result of being human beings. This is an odd construct: rights
arising out of sheer existence. The fact that they are included in law may help, but that is not
their origin: they are pre-legal, there is a claim to them because they have been granted.
A related implicit and yet radical claim is that these rights belong to each and every human
being. There are very few examples of this in the history of legal thought. At most, rights
were recognized to members of a polity after some form of private negotiation. “Human
beings” become an operational category. Whether HR are universal is an endless debate,
but the claim itself is universal in nature. Old white men who first made these claims in the
18th C. got trapped by their own language… be it in the Déclaration des droits de l’homme et
du citoyen or the US Declaration of Independence.
HR are generally considered not to be alienable. One can’t give them up even if one wishes to
do so. I can’t sell myself into slavery. This is a protective (and perhaps paternalistic)
mechanism.
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These ideas are revolutionary, brought about by remarkable changes in the political system
of several States. ‘Universal rights’ are counter-intuitive to most cultures throughout history.
Rights were attached to a cast, a clan, etc. The jury is out on what the main intellectual
ferments were. WWII gave renewed vigour to the project, but it goes back the Enlightenment,
a key moment in the emergence of HR. The Enlightenment was a reaction to the ancien
régime, unjust centuries-old feudalism / absolutism which were all about status, immutability,
duties, rigid hierarchies, etc. There was a questioning of religious / clerical authority which
had been the cement of European society for a millennia (HR had religious origins as well).
The Reformation and ensuing Wars of Religion were huge traumas and lead to a
disenchantment. There were other factors, such as the rise of the bourgeoisie: rewards should
be earned through merit and not birth. Trade, movement of ideas, etc. also had a role.
Intellectual sources go far back. The deep roots are philosophical theories of morality.
There are two competing models:
- Rights are recognized by the State (Hegel, Bentham, positivist).
- Universal moral truth which binds all, including sovereigns (stoics, Aristotle,
Christianity including Augustine and Aquinas). Natural law and divine law, of course,
are open to challenge.
“The claim of HR is that some things are absolutely true wherever one is. This is a
revolutionary and fragile idea.” - Mégret
Sept. 6th, 2007
The philosophy of human rights was initially an extra-legal idea. It was a way to challenge
monarchy and the sovereign. Locke had the largest influence and was arguably the most
liberal, pro-human rights thinker of the Enlightenment. He focussed on civil and political
rights, the idea of economic and social rights came much later. The only legitimacy of the
sovereign is protection of the citizen’s rights: idea of social contract, from the state of nature
to an organized polity.
Locke was steeped in some sort of theological horizon: God created humans as selfdetermining, it is thus the duty of the State to protect this opportunity. This idea was later
secularized through the idea of natural law: nature includes universal moral truths. The idea
is that observation of nature can yield ethics and morality. This path was probably
unavoidable, and natural law ideas were popular for centuries in Europe.
HR only emancipated themselves from natural law with Kant’s moral theory. He did not
write much on HR specifically, but his idea of categorical imperatives led to some sort of
universal moral law. Universal law can be deduced from persons and can be rationally
defended: what is virtuous is rational. This is important because HR have often been called
on to justify themselves, thus the search for a deeper philosophical truth about the nature of
human beings.
This debate never fully ends, although the adoption of positive law allows to pretend an
escape from this problem. But HR lawyers still defend the project beyond positive law and
treaties.
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A movement since the 1980’s attempts to move away from HR ‘foundationalism’, beyond
some sort of universal truth about mankind. See Rorty’s 1993 lecture on WebCT. His point is
that “who cares about the ontological, transcendental debate?”, none of this can be proven.
HR is the product of a culture and the best articulation of the ends of society according to
Western democracy is HR. Instead of Kant, one should look at intuitions about what is
right, rather than at some fleeting neo-Platonic “essence of Man” (which may have a
totalitarian character). The most important thing is to decide that HR are desirable because of
what they achieve: just society, better than the Holocaust or Stalin’s purges, etc.
2. The History of International Human Rights
Little by little, HR became HR law. Lawyers paid attention and started thinking about positive
legal colour to HR.
A. Ancient origins
This movement started a long time ago: some say this goes as far back as the Magna Carta
(1215) which limited the powers of the sovereign on certain nobles. This was not rights
language, but the limit was a revolutionary idea in itself – sort of accountability and
legitimacy. The sovereign was both bound by and guarantor of freedoms. In the Magna Carta,
there is some idea that rule comes from consent of the subject, i.e. democracy. Initial rights
claims were mostly a right to participate politically.
Then came the Bill of Rights and the Glorious Revolution with William of Orange crossing
the Channel. He overthrew James II, who was Catholic, and the Bill of Rights focused on
freedom of religion and conscience. William was actually offered the Crown in exchange for
accepting the Bill of Rights: ex. of social contract. As for many HR developments, there is a
dark, oppressive side: Protestants got rights, but Catholics were oppressed...
The US Declaration of Independence is a good ex. of the ‘turning’ of rights against their
creators. Rights and sought equality were a driving force of independence. Some years later
came the US Bill of Rights, within the creation of a nation.
Shortly after the taking of the Bastille in 1789, privileges were abolished and a few months
later the Déclaration des droits de l’homme et du citoyen was adopted by the Convention, at
the suggestion of Lafayette, and even ratified by Louis XVI.
These documents contain the idea of equality of dignity and freedom for all persons,
regardless of social group and actually race and religion. Included is the idea that the natural
state of humans is to be free and limits should be curtailed as little as possible. Various
rationales coexist. Natural rights became a stepping stone to positive law claims. The most
popular route at that time was constitutionalization.
How are HR related to:
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Morality? It might be more cultural, context based, but generally makes a claim to be
universal as well. Morality is a maximum, HR are a minimum: morality is allencompassing, rights are about bottom line and minimum standards. Morality is about
inter-subjective human relations, but post-Machiavel the sovereign is not bound by
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this and has to strive for something else. HR governs relations between State and
citizens, partly in opposition to the machiavelian tradition.
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Politics? Ideology? HR need politics and there are a lot of politics and ideology of
HR. This is the way HR were conquered and they still need politics, the Security
Council, power, etc. But HR, in their ontology, are against politics: there are limits to
politics, the sovereign can’t do just what’s expedient (Dworkin’s “rights as trump”).
B. Globalization of human rights
HR emerged only in a few select liberal countries starting in the 18 th C. The end-picture
is that, ex hypothesi at least, rights have become global. Globalization goes beyond
universal or international rights: cosmopolitan culture of rights. There is a constant exchange
between States, supra-national bodies, individuals, etc.
It took at least 150 years for the idea of universality to be taken seriously and proclaimed
by an international body. Why did it take so long? One reason was international disagreement:
some States don’t care about rights. In 1789, neighbouring countries of France (even the UK)
saw this as a dangerous idea and a threat to established power – and basically didn’t believe in
them. Napoleon didn’t help the idea by attempting to subjugate the rest of Europe… The
process of horizontal spreading was very slow.
Furthermore, sovereigns had international law on their side: acted to contain HR ideas to
the domestic context. HR came 200 years after the Treaty of Westphalia, the idea of
sovereignty was already well entrenched – and was seen as a positive stabilization tool at
the time after bloody overlapping medieval allegiances, wars of religion, etc. HR didn’t have
an outlet beyond domestic borders.
The rest of the world was either not in contact with the West, colonized or about to be
colonized. HR were initially an intra-European, ‘civilized world’ debate.
One other reason was the lack of forum: no UN. The few large conferences like Vienna had
more to do with territorial settlement… Sovereigns managed their relations but did not meet
to change their domestic laws.
For most of history, HR had to make due with what was already there: a world of sovereign
States. The idea of HR had its own weaknesses and reasons not to internationalize:
- Rights were not that strong domestically (Trotsky-Stalin debate: world revolution or
internal consolidation), for ex. there was a lot of back-pedalling in 19th C. France.
- “Universality” of rights had a very shifting meaning: conferred rights to nonaristocrats in Europe, but not to blacks… there was a lot of ambiguity and hypocrisy.
- HR see themselves as linked to the State, with ambiguity between rights of men /
humans and citizens (tension in the Déclaration). Some HR are even today those of
the citizen, ex. right to vote.
How can HR emancipate themselves from sovereignty and yet cling to state backing for
implementation? This is problematic: getting states to accept rights directed often against
them.
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Within the last 100 years, there was rising scepticism about the State, after episodes of
absolutism, genocide and war. New communication technologies also allow increased
exchange. Democracy generally spread in correlation with the spread of rights (but there is a
dialectical tension: for ex. Hitler’s rise to power). A critical mass of States domestically
committed to HR emerged: W. Europe, N. America. The ECHR is an ex. of pooling of such
a commitment, there has also been projection abroad. Europe has both abused rights abroad
and tremendously suffered itself from HR breaches: post-Holocaust world. Individuals
themselves also tremendously pushed the HR agenda on the world stage. Throughout the 19th
C., South American countries adopted liberal constitutions in achieving independence,
although there were many setbacks.
The idea that there should be international protection only emerged post-WWII. Prior to
that, there were aspirations, but this ran counter to the idea of sovereign co-existence with a
bit of cooperation at the margin. In the Inter-War, the biggest ambition was to avert war…
each era looks at the worst thing that just happened, which in the 1920’s was the trenches.
C. Many historical sources
The ground for the Universal Declaration was prepared before 1948. The many sources of
HR:
- Laws of war, Hague and Geneva conferences, Red Cross, what is today known as
international humanitarian law. The idea is that duties transcend borders (ex. can’t kill
POWs, care for all the wounded), but these are fairly limited. This was not framed as
rights, but there was a seed of international regulation of State action detrimental to
human beings. Humanitarian law has been getting closer to HR with time: protecting
civilians, internal conflicts, etc.
- Abolitionist movement. Slavery goes against almost all contemporary ideas of HR:
fundamental discrimination between human beings. Slavery was abolished by the
Assemblée nationale in France in 1791, but this lasted only 3 years because of the
cost. But the addition of domestic initiatives did little in the beginning. Various antislavery societies and books sprung up. The initial idea was to work on the trade. UK
domestic legislation, prohibiting the import of slaves, sent a message. The UK began
committed to abolishing the slave trade. But quickly multi-lateral efforts became
necessary. At the Congress of Vienna of 1815, mostly convened to carve out postNapoleonic peace, several diplomats suggested using the forum to abolish the slave
trade. A ‘soft’ declaration was adopted on reducing slavery’s impact, but it was a
revolutionary beginning. The phenomenon grew until at the Congress of Berlin the
slave trade was made illegal. This movement was full of contradictions: humanitarian
and moral (often a religious background), but also hypocritical: William Wilberforce,
a Member of Parliament and leading campaigner, was against the trade and some of its
most gruesome practices but not against slavery. Some past victims of slavery also
became prominent campaigners (ex. Ulauda Aquiano), some not without ambiguity
(ex. Toussaint L’Ouverture). This lead to huge convulsions: US Civil War, crumbling
of the Spanish Empire, etc. There is also the early 20th C. case of King Leopold of
Belgium, who owned the Congo basin in his own name (!) and Edmond Morel, an
Antwerp clerk, who realized that ships came with precious goods came to Antwerp but
only guns went the other way. It was clear that goods were produced for ‘free’ by
slaves and King Leopold was enforcing a cruel slavery regime even though he
portrayed himself in Europe as a great humanitarian. This was the beginning of NGOs.
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Slavery was based on a fundamental idea of inequality: cas d’école of a HR violation
and later a great HR conquest.
Sept. 11th, 2007
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Feminist critiques and women’s suffrage movements emerged after men-centered
liberal revolutions. Initially, HR were about the public sphere and protection from the
State, not from the husband’s oppression in private. The suffragette movement was a
claim for participation and esp. the right to vote. The Seneca Falls declaration of 1848
was a first effort by ‘civil society’ and caused outrage.
The workers’ movement socialist / communist claims often scorned rights as an
element of bourgeois society and class structure. But some relatively moderate
socialist-reformist quickly incorporated the language of workers’ rights. These claims
are less universal than HR, but there are today some universalized elements, ex. the
right to work. In the interwar, the ILO was created as a liberal-rights response to the
communist revolution. It adopted several conventions which are among the first
international rights treaties dealing with domestic affairs.
Protection of minorities emerged post-WWI. Wilson realized that oppressed
minorities are always at risk of unrest (ex. Balkans), with obvious international
ramifications. On of Wilson’s 14 points was self-determination: one nation, one state.
This was a difficult and simplistic idea, but it lead to dismantlement of AustriaHungary and the Ottoman Empire. The idea here is that rights are respected only with
lack of foreign domination. Once borders have been redrawn, minority protection
regimes are required. This was a new idea and a number of treaties were signed
between States in which they committed to ensuring minimum rights to minorities on
their territory. Interestingly, minorities may have had more rights than majorities.
Usually, these treaties emphasized non-discrimination, they did not necessarily
provide a full set of rights. The League of Nations was made the guarantor of these
schemes and individuals could petition the League of Nations directly to complain
about treaty violations. That was a totally new idea in international law (individuals
become subjects rather than objects in PIL). A few cases made it to the PCIJ: ex.
minority Albanian schools. There is also a forgotten case of a German Jew, Franz
Bernaheim, in Upper Silesia (covered by a minority treaty), complained to the League
of Nations after being dismissed from his job after the Nuremberg Laws. The League
actually made that conclusion and Joseph Goebbels was sent to the League to protest,
without success. The UN High Commissioner for HR is now headquartered in the
Palais des Nations (or Palais Wilson) in Geneva, the former League of Nations seat.
HR supervisory bodies still exist today.
The anti-imperialist movement emerged in the 19th C. in France, the UK, with
societies “for the protection of aboriginals”. This was ambiguous: quite racist as well.
But voices of dissent emerged in the colonies and turned rights discourse against
colonizing powers: became decolonization in the 20th C. Within the League of
Nations the mandate system was created: former German colonies were entrusted to
colonial powers but under international supervision and with an idea of benefit to the
colonized. This idea remains today: East Timor and Kosovo were under direct UN
administration during a transition period.
Domestic anti-racism was a slow struggle: US desegregation, abolition of Apartheid,
etc. Racism was long an official state policy. The first international efforts were by the
Japanese at the League of Nations: project of Covenant condemning racism, which
was rejected, mostly because of Australia’s “White Australia” policy. This became
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important in the 1960’s and 1970’s: the Convention Against Racism is today one of
the most ratified international HR instruments.
Inter-State movement of refugees can be seen as disruptive or a charity problem.
The 1951 (Geneva) Convention relating to the Status of Refugee is not really framed
in rights language, but State duties, which comes close. Esp. that the Preamble refers
to the Universal Declaration. It also speaks of persecution, in clear link with HR.
Religious freedom on which Puritans founded the US. Historically, religious
minorities were at the forefront of HR struggles, perhaps for having been heavily
discriminated against (think of Falun Gong today). Internationally, it was recognized
early on that oppression of religious minorities was a source of chaos. European
Powers purported to protect Christian minorities against the Ottomans in Southeastern
Europe and the Middle East. The 1878 Treaty of Berlin guaranteed “civil and political
rights” in the Ottoman Empire.
The institution of diplomatic protection (see the LaGrand ICJ case), i.e. possible
intervention by a State to protect a citizen in any other State. This was an effect of the
Monroe Doctrine in Latin America. The idea is somewhat archaic but some aspects of
it are important to IHRL today, for ex. the fact that all domestic remedies must be
exhausted before external protection can be relied on. Internationalization should only
be a last and subsidiary recourse.
Humanitarian intervention suggests something closer to charity than rightsvindication. But when there are massive HR violations and international bodies are
ineffective, some argue that some States must individually intervene. This started in
the 19th C. with Western European interventions in the Balkans to protect Christians.
This concept is very murky and challenged: Sudetenland vs. Darfur. This is the
paroxystic case of defining the edges of sovereignty, a constant debate in IHRL.
D. Post-1945 changes
Scholarly societies and other NGOs played with the IHR idea pre-WWII. But all the above
mentioned ‘sectoral’ regimes were already developed by the 1920’s. Yet HR had hit a glass
ceiling and were unable to break out of the domestic sphere.
HR are a radical and comprehensive agenda of domestic change, which touches every area of
public life. They corrode sovereignty and have a hegemonic ambition. Such a project is much
more onerous than, say, international humanitarian law. WWII changed this agenda from
inconceivable to urgent and necessary. The Holocaust was the defining event. It was both
an international crime and a series of massive HR violations. Furthermore, it was prepared by
more ordinary HR violations: gradual stripping of civil and political rights for Jews and other
categories of people in Germany. WWII and the Holocaust became integrated: hegemonic
Germany with an extermination agenda. Then the link of IHR and international security
became clear: no inside and outside. This was on top of the cosmopolitan idea that the
Holocaust affected all States and humans everywhere. The Universal Declaration made that
link explicit. So did the idea of crimes against humanity (possibly intra-state) at Nuremberg.
The UN Charter was mostly concerned with rebuilding the international order: war was seen
as the worst evil (see preamble), but safeguarding HR came just behind. See art. 1 of the
Charter: “promoting and encouraging respect for human rights”. But it also contained a
tension: art. 2 speaks of non-intervention in States’ internal affairs…
Sept. 13th, 2007
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The UN Charter says one thing and the contrary: promotion of HR and international scrutiny,
but based on state sovereignty.
The big bang comes with the adoption of the UN Universal Declaration of Human
Rights. This instrument was truly revolutionary, although it’s no longer much used today. It
was an initial attempt which was only a declaration (General Assembly resolution), the first
step for most international HR ventures. This was persuasive soft law at best. The UDHR
has been overtaken by other instruments which are actually treaties: ICCPR, ICESR.
Nonetheless, the UDHR was the only text for only about 20 years.
The international community had never gotten together to create a worldwide description of
HR. The HR Commission was created and became the central political HR body for the next
50 years. The HR Division of the UN Secretariat (administrative body) was also created, it
was headed by John Humphrey (McGill law professor) who wrote some of the drafts of the
UDHR.
A preparatory commission was created with 9 members, headed by Eleanor Roosevelt. This
created huge expectations around the world, for civil society everywhere: the Commission
drowned in drafts, suggestions and complaints. The 9 members were not acting as diplomats
representing countries. They were chosen for their personal qualities: René Cassin (French
jew involved in the resistance and postwar France), Charles Mannick (Lebanon), Penchung
Chang (China), Hansa Meta (India), plus one from the USSR and one from Yugoslavia. The
UN then had about 50 members, thus the anti-western critique. But this should be relativized
to some extent given the original members.
The 9 members had varying views. The Yugoslav believed that rights of humans should be
subordinated to those of States, peace only coming from inter-State harmony. The Assistant
SG of the UN suggested and expanded concept of refugee status. Other international
organizations make suggestions: UNESCO, ILO, WHO… Some states are embarrassed about
being short-circuited by complainants. One ex. was the NAACP, which argued HR were no
longer a purely national issue (embraced by the USSR, made the Republican Party and the
ABA sceptical of HR). Colonial powers were similarly worried.
This was the beginning of the Cold War, which would obviously become a problem. USAUSSR bickering became a feature of the HR Commission. There is no escape, even today,
from intense politicization for HR on the world stage. The UDHR went through 90 UN
committees: UN technocratization of HR, which is still a problem today.
It was adopted on December 10th, 1948. Consensus proved impossible so a vote was called.
There were no negative votes among about 55 States: shows the power of HR rhetoric in
international forums (shaming-image-cost effect – ample room for hyprocrisy, but no one is
officially “against” HR). There were 7-8 abstainees, presumably with strong opposition: six
States of the Soviet Bloc (especially opposed to individual rights vs. collective rights, HR
don’t match with Marxist-Engelian class struggle and are insufficiently economic and social);
South Africa (in the process of building the Apartheid in a segregated country); Saudi Arabia
(cultural-religious-customary defiance to HR, esp. equality rights).
13
HR were openly a revolutionary agenda… first worldwide instrument adopted by States for
the benefit of individuals. In some way, States are undermining their own sovereignty by
making the international community the guarantor of HR.
Other landmarks:
- 1960’s: Adoption of international covenants (ICCPR, ICESCR). This was a
qualitative move: treaties instead of General Assembly resolution. They were adopted
by the GA qua diplomatic conference, then ratified by states. These bind states more
strongly than the UDHR.
- Other treaties since the 1960’s-70’s:
o The consensual Convention on the Elimination of Racial Discrimination
(CERD) which was the first anti-discrimination treaty (no new rights, just
ensuring their application).
o The Convention of the Elimination of Discrimination Against Women
(CEDAW).
o Convention Against Torture (one right in particular), Convention on the Rights
of the Child, Convention on the Rights of Migrant Workers, Convention on the
Rights of Persons with Disabilities (most recent trend: rights to one group in
particular – one on indigenous peoples coming), Convention on Enforced
Disappearances (one violation and one right).
The Cold War got all forms of international cooperation to a halt, esp. in the HR area. It was a
slow process: one treaty every 8 years or so until the 1990’s. There were some
developments more rapid regionally (Europe, later Americas, recently Africa), and the UN
system slowly grew. The end of the Cold War brought new hope: there had been one
international conference in the 1970’s in Tehran, but the most important has been the Vienna
conference in 1993 which adopted a new agenda. It also created the office of High
Commissioner for HR.
3. The Philosophy of International Human Rights
HR are changing… This is far from the naturalist idea that rights should be the same at all
times in all places. Rights provide today a normative framework in which varying ends may
be defined by society. Rights became even more polymorphous when they became
international, given varying cultural understanding.
CEDAW or CERD are part of the phenomenon of decentralization of HR: beyond the
land-owning middle-aged European white man. The whole history of HR can be seen in this
way. Part of the project was expanding the circle, notably the definition of “human” (ex. for
the mentally disabled).
The globalization of HR is creating domestic opportunities but also a lot of domestic soulsearching. HR are relatively fragile even in countries which pride themselves on being
committed to HR. Some of the biggest HR violators internationally (through puppet regimes)
have been otherwise HR-friendly countries. The post-9/11 experience has shown that
regression is possible and the Enlightenment’s progress is not the only possible avenue.
HR are often intrinsically contentious: opposition to the whole project, to some parts of it, etc.
The challenges to HR are many:
14
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Marxist challenge highlighting economic and social rights vs. liberal understanding
of civil rights.
- Foundationalist / pragmatic challenge negating that HR actually exist (can be
answered by saying that they may be desirable even if they are not strongly rationally
grounded). “This is a big problem internationally, esp. beyond the West.”
- Cultural / relativist challenge claiming that HR don’t take culture into account or are
grounded in one specific culture. The ECHR has developed the idea of “margin of
national appreciation” for this reason.
Interestingly, HR have absorbed many challenges. Yet this is paradoxical: the official UN
position is that all rights are indivisible, but they are often opposed by various actors.
4. International Human Rights and International Relations
HR lawyers don’t necessarily have a political science background. They often have an idea
that HR are expanding worldwide by sheer persuasion. This obscures the deep forces and
structure of international relations. For a long time, IR theorists were not interested in HR:
lawyers deluding themselves.
US political science post-1950’s became very “realist” in reaction to wilsonian thought:
States were seen as power maximizers (Machiavellian idea of duties to one polity). IR were
seen at best a tool to ensure stability (billiard balls). HR are a huge challenge on the
structure of IR but also erode the founding distinction of sovereignty in IR – the division
between domestic and internal. International HR purport to change westphalian domestic
regimes. HR is a projection of domestic liberalism unto the international plane: breaks the
national-international identification between individuals and sovereigns as self-determining
agents.
HR lawyers have this “millenarian, heroic, cosmopolitan-chic” attitude that “we’re
already there”. With the end of history (read: Cold War), Hegelian opposition is dead, or so
they claim…
It’s a challenge for IR theory to explain the emergence and role of HR in IR. Three ideas
which are in today’s literature:
- Historically, in the 2nd half of the 20th C. and esp. on the last 15 years, a coalition of
powerful states has emerged which all subscribe domestically to HR. Since they can
back this idea with power, the idea will be promoted internationally. According to
Mégret, it certainly helped that the Allies and later the West won. Linked to this is
globalization of communications (“individual” revolution).
- Holy or unholy trinity between the idea of the market, democracy, rule of law and HR
within globalization. This is promoted through international organizations,
development aid, etc. Some version of the Washington consensus in which everything
is linked.
- IR theorists recognized that internal regimes affect international behaviour of States
(new idea). Democracies have public opinion and constraints which pushes their
international agendas in the same direction. Liberal States rarely go to war with each
other…
Two things need to be explained:
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To what extent will States bind themselves to domestic HR goals? This is
sometimes an absolute mystery, esp. for realist IR theorists. It’s difficult to explain
why a power-maximizing State would take this ‘risk’. Rationality-based theories don’t
fare very well, esp. with emphasis on material benefit. Moral advantages and ensuing
prestige and credibility can be tempting for middle powers. Other theories that this is
part of a process of socialization: there is already an international societies in which
countries want to play a part. For this, they must obey by the rules formally (which has
limited costs anyways).
To what extent will States commit to external HR goals? Many theories explaining
why States bind themselves to HR obligations internationally are based on interest
(see Donnelly’s article on regime analysis). Regime analysis works well for trade
analysis (obvious mutual quid pro quo), for HR what ‘States get in exchange’ is much
less clear. One has to look elsewhere. The easy answer for virtuous States is that the
added domestic cost is quite small. But why would States which violate HR regularly
join international efforts? One theory is that democracies actually take international
instruments seriously and are less likely to join (ex. US rule of law), whereas many
States will sign anything with no intention to implement their obligations.
Sept. 18th, 2007
The most reluctant HR-oriented historically States are the US, France and the UK to
some extent. This is partly because HR are seen as sufficiently entrenched domestically. But
think of Turkey which is routinely condemned by the ECHR, yet has been part to the
European Convention on HR since the 1970’s. Moravcsik points out that many
‘intermediary’ States (or groups within them), see joining international HR instruments
as a way to consolidate domestic reforms and compensate internal weaknesses and contrary
forces. Jon Elster wrote a famous essay on the problem of promises to self, like constitutions,
with no one to enforce them: one seeks external mechanisms. There are many other
arguments, including coercion by other States.
Apart from the emergence from a core of committed States, other IR forces in the 20th C. have
shaped the emergence of HR: NGOs, individuals, civil society. Initially, the HR regime was
focussed on the individual without seeing it as an actor. This has changed: citizens
increasingly claimed rights for themselves, ex. recent resolution on rights of indigenous
peoples. Individuals are today petitioners / claimants before HR bodies, which is strongly
resisted by States.
The other key player beyond States and civil society is international (interstates)
organizations. For ex., the UN created an important forum for the emergence of HR.
En guise de conclusion: what’s the effect of HR on IR? IHR are redefining sovereignty, as
being increasingly bounded. If the building blocks are changed, the relations of the blocks are
changed, and IR and PIL change.
Some argue that IHR is still a branch of IR or PIL, emerging in an inter-State context and
limited (not changing the system). Others say that IHR are now a cosmopolitan concept,
dominating or at least changing PIL and IR (ex.: attack of IHR on westphalian PIL sovereign
immunity). Mégret thinks that the defining paradigm today is arguably IHR, or at least that’s
the ambition – it makes no sense to talk about inter-State PIL.
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II. Structural Issues
The main theme: IHRL is different from PIL. IHRL emerged in Westphalian PIL, which
was invented to respond to very different problems: international order, stability, sovereignty
and maybe inter-State cooperation, but not more. IHR as a project are about the contrary:
universal values. There is a huge tension between these two areas of international law.
5. The Sources, Hierarchy and Interpretation of IHRL
A basic idea of PIL is that it has one sole body of sources: one size fits all. IHRL (also
international environmental law) have a competing theory of multiple sources. And in any
case, PIL is not clear about what its sources are and this generates much debate.
The international system is decentralized, the challenge is how can norms spring out of
interaction by equal subjects. How do norms emerge from fact? Criterias to find PIL, a
theory of sources:
- Credibility, i.e. do principle actors in the system recognize the validity source.
- Predictability and dynamism, bounds to what is and is not PIL, while allowing
sufficient evolution.
Art. 38 of the ICJ statute is the most accepted statement of general sources of PIL.
Such a theory of sources is problematic for IHRL. The idea that the treaty is paramount is
based on an inter-State paradigm. Similarly, custom is based on inter-State behaviour. The
theory of sources of PIL is a product of the actors which are considered relevant, i.e. States.
Art. 38 is a good fall-back position: IHRL is part of PIL. But IHR bodies have attempted to
define their own theory of sources. A relatively recent example is the African Charter on
Human and Peoples’ Rights, signed at Banjul in 1981. That instrument sees IHRL as a selfcontained regime, moving away from international legal positivism: extremely varied sources,
including purely domestic practices. We’re far from art. 38’s “the State, the State and only the
State”. Other bodies like the ECHR have moved away in practice from art. 38, id. for the ICC
statute and practice. This is a major debate of PIL today: fragmentation of IL – fields are
led by their object and reconfigure their sources. As the branches separate from the tree, they
conquer autonomy but differentiate and risk stepping on each other’s toes. One remaining
strength of PIL is that is provides a common base for all IL.
An interesting feature of art. 38 is that it suggests a hierarchy: treaties, customs and general
principles are primary, teachings of publicists are secondary.
A. Treaties
Late comers in PIL historically, custom came first. Their impacts are limited (art. 59 ICJ
statute), as a contract between two parties. Yet some treaties (esp. multilateral ones) are
legislative / constitutional, like the UN Charter. Treaties allow spelling out of rules more
clearly than custom: States know what they are getting into. When it comes to HR, States are
even keener to know what they are committing to, given the reduced sovereignty. Treaties
also allow creation of institutions (custom is only good for substance) and specific
enforcement mechanisms. Treaties are also more internalized in domestic law than custom,
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with States taking obligations more seriously. Treaties are also a way to reform custom or
simply to create new rules. Many IHR treaties are also based on written, modern domestic
rights declarations that were a reaction to older custom. The rules of conclusion of IHR
treaties are the same as for PIL: a certain number of ratifications is normally required, with a
relatively low threshold for substantive treaties (most UN treaties: 2-3 years), higher for
courts.
Main instruments:
- International Bill of Rights.
- Two protocols of the ICCPR.
- Protocol to the ICECSR.
- Regional treaties: Americas, Europe, Africa.
B. Custom
Customary IL largely predates IHRL. It requires practice and opinio juris, the belief of
being bound. It has pros and cons: more debate on its content than for treaty law (practice and
opinio juris are tricky: how many states are required, how long the practice is required,
difference between violation and evolution, how does one prove feeling of being bound –
these problems are intellectually intractable…), but it’s more adaptable and it binds States
which are not party to any treaties.
Custom today often comes out of treaties… Also, customary IL is integrated automatically to
domestic law in CL countries, whereas direct incorporation is required for treaties.
HR inherited this, with the problem that State practice should not be followed for HR
purposes: 90 States routinely practice torture. So for HR lawyers practice is not as
important and opinio juris is statements and commitments to international treaties. The
idea that HR follow state practice is alien to HR philosophy, which was created vs. the State
domestically. Many new ideas are floating today and remain contested such as the “instant
custom” (1960-70’s: decolonization, sovereignty over natural resources).
Custom has been useful for IHRL: binding more countries, developing new rights.
C. General principles
This was not a widely used source in PIL and the same is true for IHRL. There are a few
ex. of actual use (right to access a court in Europe), it also has a residual use (HR Committee
case on East German border guards: general principle that innocent escapees can’t be shot,
even if no specific HR norm).
Judicial precedents for IHR bodies: no strict rule of stare decisis, texts are however to be
adapted and previous decisions examined.
Sept. 20th, 2007
D. Structure of IHRL
In PIL, the idea is that obligations exist between one State and another State on a
synallagmatic basis. This is embedded in the deeper contractual structure of PIL. This idea
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does not work for HR treaties, at least not automatically or directly. International
organizations were the beginning of the exit of this: treaties started creating a legal order
greater than the sum of its parts. To suggest HR treaties are different, HR lawyers have
invented the multi-named notion of objective obligations (vs. subjective), non-reciprocal
obligations (can’t violate because someone else did), erga omnes obligations. States binding
each other is just an initial matrix, scaffolding: substantively, obligations are owed to
people within each States. The people may have a direct relationship with international
organizations. This is the “special character” of HR treaties.
The Vienna Convention on the Law of Treaties tends to treat all treaties alike, but there is
one exception: the existence of jus cogens is recognized, which suggests some sort of supralegality which is today mostly populated by HR.
From the 1950’s onward, international bodies reaffirmed the “special character” of HR
treaties many times. The first time it emerged was in the ICJ’s advisory opinion on
reservations to the Genocide Convention. It found that old PIL rules allowed reservations
liberally, not caring about content and mostly about sovereign consent (contractual freedom),
but HR treaties created some sort of international public order which could not be
contracted out of. Since then, the ECHR, IACHR, etc. have all said this.
The default position for HR treaties is nonetheless the Vienna Convention. There are
many reservations to HR treaties, some of which may be illegal but there is little centralized
legal control. The US is good at making reservations saying that interpretation is to be aligned
with the US Constitution. Muslim countries have made many reservations: ratification so long
as no incompatibility with sharia law. The most reserved HR treaty is CEDAW… Sometimes,
there are transitory reservations to have time to adapt domestic law. Arguably, it defeats the
point of HR to pick and choose. This is a chronic problem.
Some treaties anticipate the possibility of reservations. This isn’t a problem. But most are
silent, with the Vienna Convention being the default rule: a reservation can’t be incompatible
with the object and purpose of a treaty. Who’s to say what the “object and purpose” is?
Nonetheless, international HR bodies have been quite good about considering certain types of
reservations on that basis. It’s understood that most HR obligations are whole and can’t
be dismembered: see the HR Committee’s General Comment number 24, on reservations.
That closed the door to most reservations.
Can’t have a reservation on:
- Covered territory. Turkey famously tried to file a reservation to the right to petition
the ECHR which would exclude Northern Cyprus (Loizidou case). This would be
acceptable in a trade treaty if other parties agreed, but here the ECHR said that this
can’t be denied: HR treaties apply to all the territory controlled by a State. Turkey
argued that then it wasn’t bound at all: the ECHR said too bad, you should’ve known
because other States had protested and no one had ever made such a reservation.
Turkey eventually complied.
- Specific wording. Reservations can be at the margin or purport to interpret a text are
acceptable, but can’t be against the specific wording of a treaty (ex. 14 years old
instead of 18 years old).
- Jus cogens. Can’t have a reservation on slavery or non-derogable rights (ex. freedom
from torture).
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Right to remedy. The whole idea of HR treaties is to have redress in case of violation.
This may be a problem in practice, but it’s different to go on the record through a
formal reservation.
Vague, broad. A reservation has to be sufficiently precise for rights to be
ascertainable. There have been a few cases of this.
Who decides whether a reservation is valid? The HR Committee suggests in its General
Comment number 24 that there should be much more centralized decisions on which
reservation is valid.
What happens to invalid / unrecognized reservations? In the League of Nations years, all
States had to accept all reservations before entry into force of a treaty. But this can’t be the
system for HR treaties, which we want to enter into force as fast as possible… and the ICJ
said exactly that in its advisory opinion on the Genocide Convention.
E. Consequences of the special character of HR treaties
There are many such consequences:
- States ratifying an HR treaty are bound even if there reservations haven’t been
accepted or recognized (see explanation above).
- Withdrawal is made more difficult: sui generis rule. In traditional PIL, States can
pull of treaties (although there may be a cost). In the 1990’s, North Korea was
annoyed at being criticized by the HR Commission and it attempted to pull out of the
ICCPR and wrote a letter denouncing the treaty to the UNSG (not forbidden by the
instrument, withdrawals are permitted for inter-State complaints procedures). The
Vienna Convention prima facie allows this, but since the possibility of withdrawal is
explicit for some parts, it may not exist elsewhere. Beyond this positivist argument,
the SG said that the rights are vested in the citizens or ‘wedded to the territory’, so the
State can’t take the rights away by denunciation. This is a powerful idea with natural
law roots. Most States agreed, none protested. Peru tried to withdraw its recognition
of the jurisdiction IACHR (in the Sendero luminoso years), but the court said that this
was not possible: not allowed by the treaty, against the purpose and object of the
treaty.
- State succession lead to a clean slate in orthodox PIL, which is protective of
sovereignty (Nyerere doctrine of decolonization). This is problematic for HR treaties
(started with ILO treaties post-WWII) and it’s now accepted that successor States
accede to HR Treaties, partly because break-ups often come after violence, ethnic
strife... This came up at the ICJ in Bosnia v. Yugoslavia (Bosnia accused Yugoslavia
of violating the Genocide Convention): judge Viromanti gave 11 reasons in a separate
opinion for automatic accession. The HR Commission is encouraging some formal
recognition by the new State, but this is not necessary.
- Different modes of interpretation. The default Vienna Convention (art. 31) rule is
‘ordinary contextual meaning according to object and purpose, in good faith’.
Everyone agrees with ordinary meaning in context and good faith, but ‘object and
purpose’ may have a different meaning in an HR context – for ex. “freedom of
religion” has an evolving meaning. This introduces a potential for dynamic
interpretation, unlike trade obligations. But there is somewhat conflicting
jurisprudence: full effect / maximum interpretation of HR vs. balance between HR and
certainty, procedural equity, stability and reliability. There can’t be total predictability,
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but there should be some according to Mégret. Also outright activism may reduce the
chances of States joining HR protection schemes.
Sept. 25th, 2007
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-
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o IHR bodies have both substantive law to deal with and attached procedures to
apply. The Inter-American Court has found a way to grant substantive rights by
giving itself the power of monitoring state action – this was deduced from the idea
of “object and purpose” because the convention was silent (see Baena Ricardo et
al. v. Panama, 2003: dismissal of civil servants allegedly in violation). This was
arguably a teleological interpretation (based on an ultimate normative goal: result
backed out). In James et al. v. Trinidad and Tobago (1998, part of death penalty
series) the issue was whether the IACHR could grant a stay of execution pending
review of the case. Once again ambiguity was found in silence and a stay was
ordered as otherwise authority would be negated. According to Mégret, the ICJ
would not be as daring, partly because it is more global and states party to it are
arguably less committed.
o Another interpretative technique is looking at context and history of HR for
rules of interpretation (see Soering v. UK, ECHR). A state (possibly Uruguay)
asked the IACHR in an advisory opinion what “laws” meant as to the way it could
restrict certains rights (la loi or le droit / la ley or el derecho?). The Court used
historical analysis to say that this meant a “law adopted by Parliament”, whim of
the executive is insufficient. This would not occur in other areas of PIL, say a trade
treaty – HR have a source beyond positivist treaties into philosophical discourse.
o HR obligations evolve with time so interpretation must take these evolutions into
account (esp. in Europe), see Marckx v. Belgium, ECHR, 1979 (ex. no ‘plain and
ordinary meaning’ of “inhuman or degrading treatment” => these rights have
meaning only when applied). This technique does not exist elsewhere in PIL
where the bias is protecting sovereignty and not adding extra obligations. Two
historic ex. of evolutive interpretation are Tyrer v. UK (Isle of Man, student
birched for bringing beer on the school ground, ECHR, 1978). Ontology is not
enough (dignity, etc. doesn’t go further), looking at local social practice and
opinions is one technique, also looking in other party countries (the more countries
do it, the more it is accepted). Little by little, the window for legitimate corporal
punishment was closed without the treaty changing. From a judicial policy point of
view, this is about legitimacy. See also Dudgeon v. Ireland (ECHR, 1981) on
criminalization of homosexuality.
Reluctance towards the defence of necessity. Necessity is accepted to some extent in
PIL as a defence to treaty non-execution. This is normally not possible for IHR
treaties. This would give a window for HR violations, but this is no different than for
other treaties. Mégret’s take on this is that IHR treaties already incorporate their own
regime of necessity internally: national emergencies allow States to derogate from
some rights per the ICCPR, ECHR, etc. The International Law Commission Draft
Articles on State Responsibility recognizes this.
Specific remedies for HR treaty breaches. The VCLT gives the ordinary regime:
termination or suspension of treaty obligations. The special character of HR makes
this problematic: obligations are not primarily owed to other States. Art. 60, par. 2 of
the VCLT makes this explicit.
Specific nature of supervision of HR treaties. Individuals are generally complainants,
but there are also inter-State mechanisms: not much used, but there are a few famous
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cases (German brothers and Bosnia genocide cases at the ICJ arguably fall within this
category, but not quite). This has never been used at the UN level. The ECHR has
heard about a dozen cases: Turkey / Greece and Cyprus / Turkey and UK / Ireland
were major sources. International adjudication is generally limited to specific
recognition of jurisdiction, for HR the substantive obligations and the jurisdictional
mechanism for control are bound together and can’t be dissociated. This is completely
different from orthodox PIL: treaty obligations with no obligations to submit to ICJ
jurisdiction. There are limits to this idea: fully implemented in the European context,
more fragmentary at the UN (less automatic).
Possible erga omnes or jus cogens status of HR norms. Jus cogens is a peremptory
norm of PIL: over-arching obligation of IL, can’t be derogated out of by treaty. HR
lawyers argue that HR obligations are jus cogens are above other PIL obligations. This
is unlike equal PIL norms which could be conciliated by traditional tools: specific over
general, chronology, etc. – here the international community did not have a vested
interest in one norm being superior. Also, in traditional PIL only the aggrieved State
has standing to sue another State (no actio popularis). In the 1960’s, the ICJ denied
States the standing to sue over HR violations by other States (HR violations by South
Africa in Southwest Africa / Namibia – Ethiopia and Liberia attempted to sue at the
ICJ on the basis of (substantively, although the word wasn’t used) erga omnes
obligations, the ICJ said no). Interestingly, the PCIJ had recognized the separate
existence of erga omnes obligations in obiter in Barcelona Traction. This is now
fully recognized in regional systems, esp. in Europe. Scandinavian countries plus the
Netherlands sued Turkey at the ECHR at the time of the Colonels. Here there was no
impact (unlike UK / Ireland over Ulster), this was disconnected from an idea of direct
prejudice. Each regional system has a court and some sort of commission which
defends HR proactively. This points to the emergence of societal interest beyond
multi-party interest. Similarly, treaty bodies in the UN monitor States whether they
have requested it or not.
6. The Subjects of Human Rights Obligations
Ideal-types of the global legal order
Who?
What?
To Whom?
Public
international law
States
(principally)
Obligations based on
reciprocity
Other States
International
human rights law
States
(principally)
Obligations based on the
idea of a fundamental
guarantee
Individuals “within the
state’s jurisdiction”
International
criminal law
Individuals
Obligation to refrain
from committing certain
crimes
States, individuals,
humanity, groups
The question of “who?” can be understood as speaking about actors or as speaking about
subjects. “Actors” is a sociological concept, unlike “subjects” who are identified by IHRL as
being legally bound to obligations and having rights. Ideally, actors and subjects would
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overlap or merge perfectly. But the problem today is that the sense of who the actors are is
becoming separated from who the law says the subjects are. One ex. is NGOs, which have had
a major role on IHR, same for multinational corporations.
How does one bridge this gap? One temptation is maximalist discourse: “everyone has HR
obligations”. This risk is that this dilutes the project and destroys its specificity.
Maybe the question is “subject to what?” Duties can be to protect / guarantee (highest
duty), respect or promote (weakest). Legally, one is more likely to be liable for failure to
respect or protect. The more intense the obligation, the more it opens the way to international
responsibility.
A. The State
Only States could and did ratify the ICCPR. Art. 2 makes States liable for conducting or
allowing HR violations. Yet one central consideration is remedy against the State. Per PIL,
States are the central if not only actor.
Sept. 27th, 2007
B. The individual
States are generally responsible for the acts of their agents. The only exception to this is
international criminal law for major human rights abuses. The Nuremberg Trial was about
ICL more than about HR. But there is some overlap: torture is forbidden by the ICCPR and is
an international crime. To some extent, crimes against humanity are also in this overlapping
category.
IHRL also gives some other space to private actors. There are subjects as complainers to
supervisory bodies. Increasingly, there are also theories of the horizontal application of IHR.
This marks the rise of a (still contested) concept of duties of the individual (has an illiberal
aspect: see ASEAN declaration on duties of States and individuals backed by Myanmar,
Vietnam, etc.). See the 1998 Declaration of the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms. This is a light duty and mostly a right to participate, but the
language is gaining some ground. Art. 27 of the Banjul Charter (African instrument) has a
similar concept. The ECHR has however dodged this issue several times (see e.g. VGT Verein
Gegen Tierfrabriken v. Switzerland, 2001).
C. Corporations (?)
Here we are talking about multinational corporations or domestic ones with international
links. Here the risk for violations, esp. with weak States, is larger than that from violations by
the State itself. A corporation has never been held to be a full HR subject on par with
States. States resist this because they want to remain the sole actors. There have been
attempts at framing acts of corporations by the ILO, the OECD, and the UN Global Compact
initiative.
There have been efforts to make corporations accountable for their foreign HR violations in
the US, based on the Alien Tort Claims Act. 10-15% of ATCA cases involve corporations.
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This avoids the central question of whether corporations are HR subjects, but they are
condemned for the tortious impacts of HR violations.
In most cases, if IHRL works properly, the State will be liable anyhow, but States may
not be party to the relevant instruments. Ratner’s article says corporations may be liable if
there is otherwise a void: collapsed State, lack of control over territory, extraterritorial regime,
not party to instruments etc. Basically, if a corporation is acting as a quasi-sovereign, then
it should be liable.
“There has to be a strong connection with HR violations or the State for liability to be found.”
A company may also be found liable if it acts as an agent of the State, say a private
company managing a prison and torturing prisoners. Some people think the State should be
found liable and not the company, which may or may not be possible. Another interesting
suggestion would be acts on the high seas, beyond any State’s jurisdiction.
Another situation is corporations complicit with or at least profiting from HR violations. For
ex., Shell is benefiting from infrastructure built by slave labour in Myanmar and is neither
protesting nor trying to change the situation.
The most authoritative document is the UN Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with Regard to Human Rights (2003). It goes
quite far, giving corporations almost as many responsibilities as States “within their respective
spheres of activity and influence”. According to a 2003 commentary by a sub-commission,
companies have six central obligations (according to Mégret, most people agree on this):
1. To use due diligence in ensuring that their activities do not contribute directly or
indirectly to human rights abuses and
2. To ensure that they do not benefit directly or indirectly from those abuses;
3. To refrain from undermining efforts to promote and ensure respect for human rights;
4. To use their influence to promote respect for human rights;
5. To assess their human rights impacts;
6. To avoid complicity in human rights abuses.
The open question is to what extent this is soft law or does it create HR violations (there is a
leap from obligations to liability for their violation). IHRL doesn’t like vacuums, many
international lawyers are thinking about this, but there are very few actual cases…
D. International organizations
Traditionally, international organizations are subjects of PIL: the leading ICJ judgment
(Reparations Case about Count Bernadotte) says that the UN has whatever legal personality is
required to discharge its functions.
Interestingly, international organizations don’t generally see themselves as bound by
IHR – even if they are the source of many instruments. The technical reason is that only
States are parties to treaties. Lack of norms is a problem, but no different than for
corporations. The main substantive reasons is that international organizations lack coercive
power: the ITU or WIPO are technical offices. Also, international organizations are not
typically in contact directly with individuals.
24
But international organizations using force may have this problem. NATO is not a very
good example because it’s mostly governed by international humanitarian law (i.e. laws of
war). Peacekeeping is closer, esp. the sort that lasts a long time and discharges sovereign
functions: reconstruction, development... Peacemaking and peacebuilding, the UN as State
has been a rising phenomenon in the last 10 years: East Timor, Kosovo, etc. The UN has
resisted recognizing this and has associated these activities to peace and security. In Kosovo,
Kouchner granted himself the power to incarcerate administratively any person considered a
threat without a trial! There was an OSCE ombudsperson in Kosovo insisting that the UN was
bound, the UN initially resisted and then claimed immunity!
One argument is that the UN was created by the Charter and should be bound by it.
Another is succession to the previous sovereign’s obligations. Another argument is to prevent
States to do indirectly what they couldn’t do directly: can’t contract out of, say, the ICCPR
by creating a rights-violating international organization. A State occupying Kosovo which is a
party to the ICCPR would be bound, so the sum of the part should be as well.
“This is a victory that is being slowly won.” The waning of the State means that there is no
longer necessarily an intermediary layer between the UN and citizens. Every 4 years or so,
parties to the ICCPR have to report on their acts, and the UN sent a delegation for Kosovo
when Yugoslavia’s turn came. The Security Council had debates in the 1990’s over sanctions
on Iraq and over 100,000 children dying: the argument here is that the SC had a direct impact
on HR. This was not just a decline in the standard of living…
International financial institutions such as the WB and IMF have a huge impact on
economic, social and even civil and political rights by not using their leverage power against
violating States. They have argued it wasn’t it their mandate. There is also a logic of
functional separation: everyone should do what they do best in the UN system. They have
also said that they are creating opportunities for HR by working on development. This is
highly contestable: HR lawyers argue that development needs to be oriented, and in any case
it’s a lost opportunity (many States use economic leverage for HR pursuance). In the 1990’s,
it “became scandalous” that the WB and IMF did nothing. Increasingly, the WB does some
HR and environmental assessment of its loans. The WB also uses HR as a yardstick of
development (this is what HR lawyers call “mainstreaming” of HR obligations). There is no
ontological reason for this, it’s more a pragmatic argument… “They have moved forward
tremendously in the last 10 years.”
Another large organization which didn’t see itself as an HR actor is the European Union.
The ECHR is the emanation of the Council of Europe and is completely separate. The CE is
continent-wide and deals with HR, security, peace, minority protection, etc. The predecessors
of the EU had a loose link to peace and thus HR, but quickly became about coal and steel,
basically economics. Yet the European Commission became increasingly an actor: border
rules, competition rules, etc. Also, the so-called ‘third pillar’ (justice) is increasingly
overlapping with HR. The Council of Europe has said the EU could become a party to the
ECHR. Another possibility would be for the EU to develop its own charter of rights… but this
got stuck with the now defunct constitution. The EU could try to make stato-centric
arguments, but this is becoming increasingly difficult as European states have been
transferring responsibilities.
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E. Obligations to whom?
PIL is about obligations by States to other States. IHRL is about obligations by States to
human beings or even the international community as a whole. The question is “to which
human beings?” Historically there are two theories:
- Obligations owed to citizens / nationals. This is the oldest theory, recognition by the
sovereign as a member of a polity is crucial – this was usual in 18th C. constitutional
documents. HR has moved away from that drastically, with some exceptions (ex. right
to vote) …
- Obligations owed to persons under a State’s jurisdiction. This is sometimes the
only base today in international instruments: ICCPR, ECHR, IACHR, Torture
Convention, Convention on Racial Discrimination… These treaties sometime mention
territory, which may or may not overlap with jurisdiction.
7. The Territorial Scope of Human Rights Obligations
The idea of jurisdiction is richer than the idea of territory. But as a default rule, States have
obligations on their own territory and not within another State. This issue arose several
times. In Cruz Varas v. Sweden (1991) in which a Chilean refugee argued that if deported he
would be subject to torture. Sweden resisted this argument and argued that the ECHR was not
in a position to judge the actions of Chile. The Court decided that it was not to judge a nonparty State, see also Soering v. UK.
The ICCPR extends HR obligations of States in Non-Self Governing and Trust Territories,
not strictly part of a State’s territory. The ECHR had a “colonial clause” (art. 63) extending
HR obligations to States for which they declared to be responsible for international relations.
The UK made this declaration but did not include Hong Kong, its most populated
dependency. So it’s possible to go beyond a territory formally, by treaty.
The exception to this “territorial rule” is in the case there is territory by PIL but not
under jurisdiction because it’s not controlled (ex. areas in Colombia controlled by the
FARC). This came to the ECHR in Ilascu v. Russia (2004): Ilascu was beaten up in
Transnistria, a breakaway part of the Republic of Moldova controlled by the Russian army.
The ECHR said Russia had control, thus jurisdiction, and was therefore liable.
But the lack of jurisdiction on part of a State’s territory doesn’t completely nullify
obligations: States have to take whatever actions are available to them, for ex. diplomatic
protest.
When can a State be liable for actions committed outside of its territory and
jurisdiction?
- Agency: spies, army, perhaps even consular officials.
- Effective control: Russia in Transnistria, Turkey in Northern Cyprus.
- Impact theory: Domestic actions leading to an HR violation abroad (mostly expulsion
or extradition cases).
Oct. 2nd, 2007
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A. Agency
Agency is an exception to not owing HR obligations to individuals outside one’s
territory, i.e. exercising of jurisdiction through the army, civil service, etc. It can sometimes
be difficult to determine what ‘jurisdiction’ means. Samuel Lichtensztejn v. Uruguay (1990) is
an ex. of a Uruguyan opponent domiciled in Mexico who needed a passport to travel. Issuance
was refused by the Uruguay embassy in Mexico City and he submitted a complaint to the HR
Committee. It decided that Uruguay clearly had jurisdiction over delivery of the passport.
There are several cases of kidnapping outside of a State’s territory by the State’s agents. One
ex. is Lilian Celiberti de Casariego v. Uruguay (1981), a student opponent kidnapped in
southern Brazil by Uruguyan and Brazilian operatives and brought back to Uruguay. Many of
these cases come from Uruguay: combination of ratified right of individual petition and many
HR abuses. The HR Committee found that it could consider the acts of Uruguay insofar as its
agents were involved: the State-individual relationship is the proper consideration, not
where physically the violation occurred. This was a wide reading of art. 2(1) of the ICCPR.
There are several cases in the European context: Stocke v. Germany where a German citizen
was lured by agents out of Luxemburg, Abdullah Öcalan v. Turkey where Öcalan was arrested
in Kenya by Turkish agents after being handed over by Kenyan authorities. There are a few
cases of Turkish military incursions in northern Iraq against the Kurds.
B. Effects or impact theory
Acts committed on a State’s territory may have effects in another State. This was mostly in
the extradition context, the landmark case is Soering v. UK: German citizen in the 1980’s
about to be extradited to the US (Virginia) on a murder charge (there was an extradition
treaty), Soering claimed that the death penalty he incurred was a violation from his right to
life. The UK sought assurances against the death penalty and argued the whole process was
cruel. There is a tension between adherence to HR and international obligations. The ECHR
said that if there was a strong risk of violation (“not too remote”) of an important right (high
probability x grave violation) leads to HR obligations and here refusing extradition. This was
extended to the immigration-deportation case: Cruz Varas et al. v. Sweden (1991) (Chilean
national), Vilvarajah et al. v. UK (1991) (Sri Lankan tamil: higher risk for a large group is
insufficient). These cases often arose after the fact, as demands for compensation, the
criterion is the information the State had or should have had at the time of the alleged
violation. There was a case of a terminal AIDS patient expelled by the UK to St. Kitts &
Nevis who got compensation because of inhuman conditions (intersection of civil and
political and social and economic rights). But being sent to general poverty would not be
enough. This externalizes the HR standards abroad to some extent.
C. Effective control
This involves situations of occupation or military involvement in another State. States
usually deny having any HR obligations in this situation. The Loizidou v. Turkey (ECHR,
1995) case is the leading international case. Turkey claimed that Northern Cyprus (not a
recognized State) was not part of its territory, but de facto (rather than de jure), direct or
indirect (here the Northern Cyprus ‘government’) effective control was found to be the
criteria. The Turkish judge at the ECHR was the sole dissenter… Sometimes the ECHR and
the HRC, for ex., will have different opinions about the same treaty rights. The same thing
happened for extraterritoriality: the ECHR said it had jurisdiction over occupation forces, the
HRC was much more reluctant (ICCPR art. 2 says “jurisdiction and territory”). In its Advisory
27
opinion on the Israel-Palestine wall (2004, requested by the UNGA), the ICJ had to decide
whether Israel was bound by the ICCPR in the Occupied Territories. The ICJ recognized the
ambiguity of the ICCPR… Originally, the HRC had said no. There are policy and normative
arguments for (want broadest application, obligations follow power) and against (solidifying a
claim to sovereignty on occupied territory, only laws of war apply). Two branches of PIL are
competing to some extent. The latest report of the HRC on Israel (2003) says in its
Concluding Observations that “in the current circumstances” (long standing presence,
ambiguity about future, effective jurisdiction – reminiscent of the Northern Cyprus case, long
standing occupation without annexation) the ICCPR applies. This was refined in Cyprus v.
Turkey (ECHR, 2001), where Turkey was found liable for all acts of the Northern Cyprus
puppet government. There are limits to how much this can be pushed: in Bankovic et al.
(2001), an ECHR case on bombing of Yugoslavia during the Kosovo campaign, Serbs
(Belgrade TV bombing) claimed that being bombed by planes of State parties put them under
their jurisdiction. The ECHR went back to a mostly territorial vision and said other cases were
“exceptional” and spoke of the exercise of normal public powers (which does not include
bombing). Mégret says NATO soldiers governing Kosovo may have some obligations. There
are also interesting ramifications to Iraq: the US is party to the ICCPR.
8. The Domestic Status of International Human Rights Norms
This is a technical subject… PIL is about States bound on the international scene. But it
says little about incorporation in domestic law, which is both desirable and resisted. In
“Domestic Implementation of the CCPR”, 32 Neth. Int’l L. R. 461 (1985), Farrokh Jhabvala
writes: “… if one had to choose between the two, domestic implementation without
international monitoring would be far more desirable than vice versa”. Argument for this is
impractical / difficult to access and not respectful of State sovereignty. The whole point of
IHRL is domestic accountability first, international mechanisms are a last resort. Also, it
remedies are more effective domestically: criminal and civil sanctions, etc. International
bodies only have State responsibility – they can’t annul judgements (they’re not a supremesupreme court), only order reparations. Also, it’s argued that domestic courts are more
grounded in local reality, they can adapt / translate international norms instead of importing
them wholesale (ex. “fair trial” may legitimately have a different meaning in a CVL and a
COL country).
A. Monism vs. dualism
There are many theories on the relationship between domestic and international law:
- Monism: Integration, only one global legal order. PIL is in the same sphere,
paramount to and integrated in domestic law. IHLR is part of law of the land or at
least on the same spectrum.
- Dualism: Radically different legal orders which never intersect. Treaties are
commitments between States with no links to domestic acts. A State may chose partial
or domestic implementation, but this is not required, and in any case individuals only
have a remedy under domestic law.
Even assuming dualism, IHR has its own idea of “who rules”. IHR makes the claim that it
has primacy over domestic law, including constitutional norms. And saying this is far
from guaranteeing effectiveness in a domestic court. But IHR couldn’t survive as a system
of norms if it recognized the primacy of domestic law. The whole point of IHR is to bind
28
States and they shouldn’t be able to claim their domestic law as an excuse. This has been said
again and again by international bodies. In Unified Communist Party of Turkey v. Turkey
(1998, ECHR), the party was banned an alleged violation of freedom of association. Turkey
claimed that the ECHR did not go as far as constitutional review. The ECHR summarily
rejected this argument. Mégret says domestic law is treated as fact, it’s not a normative
pool: a violation due to application of a law or a constitution is a violation…
IHR go further than the rest of PIL, which is more neutral on domestic incorporation.
They have a huge stake in incorporation and domestic application. IHRL is interested in
results – the protection of HR – not mechanisms. There is no obligation of incorporation as
such, if rights are substantively respected. But the means chosen can also be subject to review
(see General Comment no. 9 of ESCR Committee). Also, changing domestic law may be
insufficient: maybe the police training manual needs to be changed. Implementation is a rich
concept.
Dualist
Rigid
distinction
between
domestic and international law
Automatic
By legislation
Type of incorporation
Executive
Authority for ratification Legislative
CVL States, US, Islamic COL / Commonwealth States,
Examples of States
States
Scandinavian States, Soviet
legal system
General concept
Monist
Unitary world legal system
Oct. 4th, 2007
B. Extent of direct applicability
It’s even more important to implement IHR in the States without any sort of endogenous
rights protection: using the international to change the domestic is a classic HR strategy.
When there is already a strong HR culture, problems are different (ex. dissonance) and the
pressure to implement will be less great, but still present (IHR may provide greater
protection). Mégret points out that IHR are generally not ahead of domestic regimes in some
States – which is why advanced States sometimes have issues with IHR treaties.
On a first level, PIL and IHRL don’t care about mechanism, but look at result. IHRL has
a slight bias on implementation: likely that every State will have to do something. States have
their own views on implementation, in two families: monist States (direct applicability of
IHRL in domestic law) and dualist States. Monist states accept this because treaties ratify
treaties. It’s more complicated for dualist countries: the executive ratifies treaties (Canada has
the added problem of provinces). Mégret says that parliamentary implementation can be a
good thing in every country: ‘deep ratification’ is politically desirable. By the last count,
about 80 States have somehow implemented the ICCPR.
The US is a monist State, but created a distinction between self-executing treaties (direct
application) and non-self-executing treaties (implementation required). See the definition of
‘non-self-executing’ in the US Third Restatement: “An international agreement of the United
States is ‘non-self-executing’ (a) if the agreement manifests an intention that it shall not
become effective as domestic law without the enactment of implementing legislation.” In Fuji
v. State (1952), a Japanese-American sought to argue his case on the basis of the UN Charter.
29
There the courts found that the framers of the treaty needed to have the intention that the
treaty be directly applicable, which was lacking.
But the dominant view today is that IHR treaties are self-executing. This is the opinion of
the ECHR, see UK v. Ireland (1978). Mégret says that this makes sense: there’s not much
required in terms of domestic legislation to enforce the right to life. Interestingly, the ECHR
contains some rights which are non-self-executing. One ex. is the right to an effective remedy:
more of a need for implementation.
The extent to which treaties are non-self-executing is not always clear: ICCPR, IACHR,
ICESCR, Convention on the rights of the child… Also, IHR treaties have to be precise
enough to be self-executing. This is a great point of resistance, although a somewhat
hypocritical argument: many domestic instruments are equally vague.
In dualist countries, without implementation, IHR treaties have no direct applicability. This
was the point made by the OCA on the ICCPR in Ahani v. Canada (2002). The ICCPR will
be useless in a Canadian court, it may be useful at the HR Committee. In the last decade, this
theory has been softened in dualist countries, on the opinion that an international
obligation has some sort of domestic effect. The Canadian government argues that the
Charter implicitly implements the half dozen IHR treaties to which Canada is a party. This
works 90% of the time, but sometimes there is dissonance. The Bangalore Principles of 1998,
adopted by leading Commonwealth judges (mostly from Africa and Asia), say that
international obligations can be used for interstitial interpretation: in case of doubt,
domestic law should conform to international obligations. The UK Human Rights Act says
this explicitly and even explicitly imports ECHR ‘common law’ and Commission reports.
Mégret says this is important for Canada, but not for most countries with no domestic
rights-protection system. Canada is fairly serious about treaty ratification, preliminary
consultations and reservations if necessary. There is a lot of legal writing on this in Canada,
some studies show that judges use international law fairly extensively, without much regard
for dualism. This is both for interpretation of ordinary legislation and the constitution /
Charter. See Dickson CJ’s dissent in the Public Service Relations Act Reference (1987). In
monist States, domestic courts are part of a decentralized system of IHRL application.
Increasingly, courts in dualist States are assuming that role: Baker (Mégret says the vague
criterion is not necessarily a bad thing for advocates, although somewhat unhelpful for lower
courts), Suresh. But the message remains fudged…
C. Case study: Possible extra-territorial obligations of Canada in Afghanistan
Amnesty International and the BCCLU sought an injunction in Federal Court to prevent
rendering of prisoners by Canadian troops to Afghan authorities (with alleged ensuing torture
by the Afghans). There were two problems: applicability of Charter obligations outside
Canada and applicability of IHRL. Here, there’s a mixture of agency, occupation / control of
territory, impact.
The ECHR has a rich theory of extra-territorial application of HR obligations. It would be
useful for Canadian courts according to Mégret, although Canada is not a party. At a broader
level, HR Committee precedents on ICCPR applicability would be useful => idea of
international best practice. This could be resolved by a former Afghan detainee going to the
HR Committee. Beyond courts, many prior decisions were made: administrative bodies, etc.
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III. The Substantive dimension
9. The Universality of Rights
Perhaps the biggest debate ten years ago was on the universality of HR and its critique,
relativism. HR themselves make many universal claims. It’s not always clear what these
claims mean: universal existence of HR or universal and identical application of HR? The
agreement on the universality of HR breaks down quickly on its details.
Universality is a long-standing and yet strange claim. Historically, people have defined
themselves as member of a group, class, etc. Cosmopolitanism is a recent claim. HR
challenge custom, culture, religion, social structures, power arrangements, etc. This debate
was hidden for a long time because HR pronouncements were domestic. It came out when HR
purported to become universal in practice.
During the Cold War, the debate was between two ideological camps and two concepts of
HR. The Soviet-Marxist camp had a very different idea of rights (assuming they were sincere)
than Western Liberals. Post-Cold War, IHR started having a lot of pull: period of quasimessianism. When universality became an argument for imposition an awakening occurred.
One very famous writer in the 1990’s on this was Lee Kuan Yew, with his theory on “Asian
values”. He claimed that Asia had a different view of HR. This got a bad reputation because
Lee is an autocrat. However, there may be more sophisticated arguments, for ex. that the
ICCPR and other instruments are very Western-Liberal. Translation is a problem and crossculture exchange may be beneficial.
Another challenge was Islam for CEDAW. Some Islamic scholars have developed arguments
against the secularism of HR. Other religious thinkers have waded in. For ex., HR claims
freedom of religion, whereas apostasy is a mortal sin in many faiths.
A third and more general challenge was ancestral custom. One ex. is female genital
mutilation practiced in some parts of Africa. It is seen as highly discriminatory by some
feminist HR lawyers, yet defended by many people (including women) in Africa.
Oct. 11th, 2007
A. Universalism and relativism in human rights
There is a universalist claim in HR. This is also a claim made by IHR positive law. But there
have been various critiques, some culturally-based, many claiming that HR are Westerncentered and carry the western philosophical and governmental project. Mégret points out that
‘universality’ doesn’t necessarily mean ‘sameness’. For rights to exist worldwide doesn’t
mean they have to be exactly the same everywhere.
There are many ways in which this challenge has manifested itself:
- Ill will for HR in many parts of the world with lack of incorporation, undemocratic
ratification and bad faith in implementation.
- Reservations which have been the preferred tool for many States (“States attempt to
sign in and sign out.”); CEDAW being the prime example (67 States have added
31
reservations – probably because it is about reforming the private sphere and
transforming society, i.e. social engineering).
Some critiques of HR:
- Outright rejection, claim of the lack of universality of any HR – all concepts of right
and wrong are rooted in culture, there are no universal truths.
- Weak relativist critique, rights are situated in culture, history and ideology and HR
must adapt (American Anthropological Association).
- Minimal claim that the content of rights varies but rights are always present in
some form (Pannikar).
This is a very rich debate. There is a tendency today in framing the relativism debate as a
“West vs. the rest” issue. The irony is that HR had to fight within the West itself to become
the accepted framework: wars were fought over this, HR prevailed perhaps against all odds.
The language of HR has been used very effectively against the West itself – ex. colonized
people; it escaped those who created the idea. HR may be both imperialistic and antiimperialist. For ex., HR were used both to justify (‘white man’s burden’, civilizing mission)
and fight against (national liberation movements) colonization. The idea turned against its
creators.
Starting in the 1990’s, there has been an effort to root HR elsewhere than in Western thought
and history. Basically, the idea was to look at ‘indigenous’ rights elsewhere, even though they
may have a different name. One ex. is the notions of right and wrong, duties of the rulers
towards the ruled… However, HR are more deeply rooted in the West than that: natural law,
social contract, sovereign State, legal entitlement and remedies… so this discourse has its
limits.
Historically speaking, HR were both revolutionary and atypical. The idea that human beings
were defined by there sheer existence was foreign to the West until the Enlightenment. They
are the result of a very specific historical process which may not be reproducible.
B. Changing the formulation of human rights
One suggestion has been to change HR to adapt them to other societies. In particular, it has
been suggested in Asia and Africa to cut back on the individualistic, almost atomistic
vision of HR. Some people have worked on replacing ‘individual’ with ‘person’ and
contextualizing the existence of individuals within society. Another avenue has been to focus
on the idea of human dignity with HR as means. Rights shouldn’t be reified and seen as
important as such. Of course, defining dignity is tricky.
The Tehran (1970’s) and Vienna (1990’s) conferences launched efforts of cultural (and
diplomatic) dialogue, at least between States. This cross-cultural dialogue is a difficult
exercise. In some ways, this is a form of religion for those who are committed to rights; and
those who use cultural critiques don’t necessarily believe in them, they may just oppose
rights.
A cause célèbre is female genital mutilation. This is both customary and to some extent
religiously sanctioned by Islam. But given the suffering etc., HR see this as abominable. But
HR proponents tend to be paternalistic and patronizing: “we know better”. Basically, HR-
32
based criticism should not be a statement about cultural superiority. Such debates don’t occur
in a vacuum. Simple feminist arguments don’t work: many African women actually support
this practice (how much this is alienation and how much this is free will is difficult to
ascertain). HR certainly have a modernizing and socially-dislocating aspect: often achieved
by bloody revolutions…
Unless HR are rejected outright, critiques are generally aimed at reformulating HR for
them to be more consonant with local values. One effort was “people’s rights” in the
1960’s and 1970’s by the non-aligned movement. The idea was that self-determination was a
precondition to individual rights (this right is actually in art. 1 of the ICCPR and is in the
ICESCR). Another attempt has been to focus on duties as the shift was away from
individualism (beyond the idea of “rights for free”). Many constitutions include such duties,
for ex. China, Poland and Uganda. This has been taken up on the international stage, ex. arts.
27-29 Banjul Charter. Sometimes, the distance from original HR ideas is so great that the
original ideas are impossible to recognize. This may involve a shift from liberal freedoms to
overwhelming State power.
Economic and social rights are another ex. of HR reformulation. This has been resisted by
some in the West, most notoriously the US, as overbroad and destructive of civil and political
freedoms and the road to serfdom and communism. This was an idea of the Soviet Bloc which
was recuperated by third world countries.
C. The counter-critique to relativism
A lot of arguments based on the relativist critique are based on a rather reified view of culture.
Lee Kuan Yew’s “Asian Culture” is a good ex. But there is a high risk of
instrumentalization by opponents of HR. Some Asian scholars have deconstructed Lee’s
idea of culture and attacked it as that of the powerful. If culture is more dynamic and involves
power struggles, this opens up the debate as to whether culture is a valid basis for opposition.
Also, saying that something is cultural doesn’t mean it’s valuable: Western skinheads are
not really valuable…
In 1968, the highest court of Tanzania had to decide the validity of a custom preventing any
woman from inheriting. In this case, the judges did not buy the argument that culture made
this practice right (without reference to HR instruments). Reifying culture may just be
backing the dominant class.
Lee’s writing makes culture look very static and unchanging. Yet, even in the West HR ran
against many long-established ancien régime practices. It also makes very generalizing
claims: is there actually such a thing as Asian values? Lee’s arguments were heavily selfserving – he was a UK-educated, cosmopolitan, rich and powerful man!
Also, all of these critiques have been heard by HR to some extent. HR have absorbed
many challenges: Marxist challenge (ICESCR), some cultural challenges (protection of
culture initiatives), some challenges to individualism (work on duties of persons).
Also, HR is in many ways about the flourishing of various beliefs and freedom of thought.
HR has no issue with most ‘culture’, save things such as eye-gouging as punishment for
minor crimes. So HR can themselves be part of the cross-cultural dialogue (see Nickel).
33
Dialogue best occurs at the time of adoption of IHR instruments. But the tension between
relativism and universalism may come back in various forms:
- Reservations (see above).
- Regionalization in Europe, the Americas and Africa and to a lesser extent in the
Muslim world and Asia. Some of this is about enforcement, but it’s also about
translation / adaptation and pushing some rights further or restricting them (ex. the
IACHR has a “right to life from conception”, i.e. no abortion; the African Charter
creates many new rights and duties). This translation process hasn’t been challenged in
courts, creating a major question mark in IHR (regional agreements delinquent?),
generally because one can’t go both to the HRC and a regional body. Even
regionalization asks the question of relativism amongst regrouped States: ‘national
margin of appreciation’ idea developed by the ECHR (esp. when there is no European
consensus on an issue – once criminalization of homosexuality or corporal
punishment), which exists at least for some rights (probably not for torture, but
possibly for freedom of expression not including hate speech or indecency). See for
ex. Sunday Times v. UK (ECHR, 1986) and Handyside v. UK (ECHR, 1976).
Oct. 15th, 2007
10. The Intensity of Human Rights Obligations: Different Types of
Rights
Different instruments protect different rights, but Mégret argues that there is a core of rights
protected in regional and international instruments. There is a large mass of rights, and early
on topologies were created. Categories can be useful, but can also be pushed too far and
become artificial…
This is mostly a doctrinal exercise, as HR instruments and HR lawyers are not fond of
hierarchies: rights are not only universal, but indivisible (can’t pick and choose) and
interdependent (rights further other rights).
Categories of rights
Mégret’s topology:
1. History: not very useful analytically, but different origin may mean different right.
2. Formulation: difference between positive and negative rights.
3. Object: what are the rights about, voting or benefiting from certain goods?
4. Subject: who can benefit from the rights?
5. Structure: difference between absolute and relative rights.
6. Types of obligations: Mégret’s take on looking at rights as obligations for the State.
7. Intensity of obligations: existence of exceptions, time for implementation (more for
economic and social rights than for civil and political rights), etc.
8. Status: jus cogens or not, primary or secondary, derogible or not, etc.
A. History
Karol Vasac wrote famous articles on the 3 generations of rights:
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1. Civil and political rights (from the Enlightenment) protecting the individual from the
State.
2. Economic, social and cultural rights (answer to the Marxist challenge) with
individual entitlement to goods as described in the UN Declaration and ICESCR.
3. ‘Solidarity rights’, collective rights and some other types of rights (“very 70’s80’s”) pushed by Third World and non-aligned States (ex. right to development, to a
safe environment, to self determination), often going beyond State-individual
relations.
There’s always a debate when another generation of rights appears in whether a new treaty is
needed. Another question is whether the language of rights is being pushed too far,
describing lofty aspirations more than enforceable rights. Some people argue more norms
and more instruments mean more technocratic superstructure, more reporting obligations but
not necessarily more results.
This evolution has pushed functional specialization: the ICCPR guaranteed freedom vs.
torture, but in the 1970’s the Convention Against Torture was adopted with more specific
norms (beyond rights, imposing certain obligations on States such as criminalizing torture).
The latest ‘functionally specialized’ instrument is the Convention Against Forced
Disappearances. Some conservatives argued that this was already covered by various
instruments. But proponents said this was a specific problem which needed specific attention.
Already for second generation rights, there was much debate as to whether this fitted in a
rights agenda (much resistance in the US). This is even truer for third generation rights.
Mégret recognizes that this is tempting language – rights can be created for everything – with
a risk of overflow and of the project of collapsing under its own weight.
Philip Austin wrote of the need for ‘quality control’ for the creation of the new rights, with
the following threshold:
1. Specific problem.
2. Possibility of translating some needs into specific legal norms.
3. Identification of means by which to promote a legal norm.
Number 3 is a major problem of third generation rights.
B. Formulation
This is both useful and a bit of trap, as it’s not necessarily clear-cut. See Isaiah Berlin’s article
on two concepts of liberty (claiming that true liberty is only being free from the acts of others,
following Locke and Tocqueville).
There are negative rights: “right to be free from”. This keeps the State away. A typical one is
freedom of thought (this is perhaps the most absolute one, unlike say freedom of expression),
conscience and religion – which means the State can’t enforce any sole religion. See UDHR
art. 18.
There are positive rights: “right to be provided with”. This is the right to require something
from the State. See UDHR art. 25: right to health care, shelter, food...
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C. Object
What social sphere being regulated?
Civil: freedom of speech, freedom of circulation / movement (within a State or exiting a
State), life / security (freedom from torture, arbitrary arrest), residual freedom (to do whatever
is not prohibited), fair trial (many at ECHR), legal personality (vs. Nuremberg laws), privacy
(very important to civil libertarians), marry freely, family life, owning property (unlike slaves,
many post-communist cases in Europe).
Political: freedom of speech (also), participation, peaceful assembly, association (including
not to associate), vote (connection between HR and democracy), be eligible.
Economic: work, social security.
Social: form and join trade unions (conducive to substantive rights), education, rest and
leisure (including periodic holidays with pay!).
Cultural: practicing one’s group culture (members of minorities, perhaps not the strong point
of IHR; vs. residential schools or Albanian banned in Kosovo), IP rights (actually in UDHR).
Solidarity: international order conducive to rights (ex. art. 28 UDHR; “stretches the limits of
rights but does capture something”).
All these rights can be limited on a number of grounds, although the general rule is normally a
right and limitations are exceptions.
D. Subject
Individual humans within the jurisdiction of States are the main subjects of HR. Rights do not
extend only to citizens, except for political participation (art. 25 UDHR “every citizen”
instead of “everyone”). Rights can be vested in two different ways…
Individual: ex. right to life.
Collective: ex. self-determination.
E. Structure
Dworkin developed the idea of rights as trumps, i.e. absolute. Most rights in the
international context are actually relative.
Absolute: ex. right against torture (and few others).
Relative: ex. freedom of expression (art. 29 UDHR has a general limitation). There may be
an HR logic for limiting some rights (ex. limiting expression of some protects the expression
of others), which goes to the idea of balancing.
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F. Types of obligations
Mégret has been working on an article moving beyond ‘generation’ thought which doesn’t
provide much beyond historical context. His idea is to look at what obligations States are
committing themselves to with HR: means before ends, the opposite of what most HR lawyers
do.
There are four types of obligations:
- Protection, classic idea of protection of individuals from the government (close to
negative rights).
- Participation, say in government (political rights, democracy).
- Distribution, allocation of resources and distributive outcome (economic and social).
- Inclusion, decentering HR away from the atomistic individual and towards groups
with specific needs / experiences and thus rights, for ex. women, children, disabled,
indigenous (novel idea as a concept, some ‘separatist’ aspect).
G. Intensity of obligations
Immediate realization: ex. freedom from torture, ICCPR.
Progressive realization: ICESCR.
Oct. 18th, 2007
There are different ways of thinking about the intensity of the obligations:
- Different types of obligations
- Exceptions to obligations
- Possibility of limitations
- Margin of appreciation doctrine
- Different standards of achievement
- Possibility of derogation
H. Different types of obligations
The first paragraphs of instruments contain variable and subtle hints about the
commitment of the States: to... ensure, secure, guarantee, respect, protect, take steps to,
promote, etc. These verbs impose a varying degree of obligations, from weak (“take steps to”
in the ICESCR, almost procedural) to stronger (“guarantee” is a strong legal commitment,
implementation in domestic law and providing mechanisms for redress) to strongest
(“secure”, “ensure” which encompass all the others; “secure” is in ECHR, “ensure” in
ICCPR). “Respect” suggests a more negative obligation (not violate rights) whereas “protect”
involves a more positive obligation (create conditions to ensure their effectiveness). To
“promote” is a soft duty generally taken on by the UN. “Secure” an “ensure” are the chapeau
clauses, the others appear less frequently or are doctrinal creations. There are official
interpretations of most of these terms, either from the ECHR or various UN bodies.
In the State-individual relationship, it’s fairly easy to understand some concepts, such as
to “respect”, but other duties have broader effect such as to “secure” (ex. protection from
private actors). In Young, James & Webster v. UK (ECHR, 1981), three employees of British
Rail (‘closed shop’ agreement with three trade unions) didn’t want to become a member of a
37
union an were dismissed. They alleged a violation to their right of free association. The UK
government argued it wasn’t responsible for the acts of a private corporation. The ECHR
found the UK government liable: this was made possible by British law (the ‘missing link’).
Here the word used was to “secure”.
Indirect responsibility may exist for failing to adopt a law or other failures. In X & Y v.
Netherlands (ECHR, 1985) a disabled child was sexually abused. Under Dutch law she
couldn’t complain (handicapped), her father tried to bring a claim but was dismissed as not
having suffered the violation. They claimed lack of remedy for a rights violation. The ECHR
found the Netherlands liable for the lack of remedy provided for rights violation. Other
significant cases: Plattform “Artz für das Leben” v. Austria (ECHR, 1988), pro-abortion
doctors attacked by counter-demonstrators; Osman v. UK (ECHR, 1998), police had a duty to
protect the right to life and stop a murder; Delgado v. Colombia (HRC, 1990) police had a
duty to protect the right to life and stop death threats.
Possibly the most famous IACHR case was Velasquez Rodriguez v. Honduras (1988).
Velasquez Rodriguez was a politically-involved student. One day he disappeared. His family
went to the IAHCR and sued Honduras for all kinds of violation. The government argued that
it wasn’t even known who the kidnappers were. The IACHR did not buy this argument and
found the lack of prevention, investigation and punishment of HR violations made the State
incur full liability (Honduras hadn’t done anything in this case). Allowing private persons or
groups to act freely and with impunity (ex. death squads) leads to State liability.
I. Exceptions to obligations
For ex., art. 11 ECHR limits the right of peaceful assembly of members of police forces and
the military. Here it’s for a specific category of the population. Also, protocol 6 of ECHR
recognizes the death penalty in “times of war or imminent war”. This is more a temporal
exception.
J. Limitations
Rights are often seen as trumps, but in fact they can be limited by the State for certain
purposes. Some treaties have general limitation clauses (ex. art. 29.2 UDHR), whereas
others are attached to specific clauses (ex. art. 21 ICCPR, art. 8 ECHR, art. 22 African
CHR). Mégret supposes the ‘separate’ drafting may have to do with slightly different
limitations.
Based mostly on ECHR precedents, “necessary in a democratic society” means (looks
like Oakes, but subtly different):
- Legitimate aim (“pressing social need”), including: due recognition and respect for
the rights and freedoms of others (common for freedom of expression); health;
morality; national security / public safety / public order; general welfare (only in
UDHR, requires specific proof); democracy (yardstick for other limitations, but
protecting it is a legitimate aim in itself).
- Nature of activity or right allows for derogation; for ex. Norris and Dudgeon v.
Ireland (ECHR, 1989, homosexual activity between consenting adults. Generally, the
more private the activity, the most difficult imposing limitations will be.
- Proportionality between aim pursued and restriction of right (often the crucial point
on which cases are decided); one must evaluate the importance of the social aim, the
38
importance of the right guaranteed and their relation (basic question “overbroad?” or
“disproportional?”). A finding of lack of proportionality was made in Norris; see also
Lustig Prean and Beckett v. UK, ECHR, 1999, where the court found a violation in
dismissing homosexuals from the army (the UK had gone too far in seeking to uphold
morale) and Turkish Communist Party v. Turkey, ECHR, 1998 where it was found that
dissolving a party before it started its activity was not proportional (court didn’t buy
the State’s argument of ‘danger’).
This requires a lot of ex post reading of limitations. National instruments don’t necessarily
explain their goals or no one may have envisaged that a violation would occur or be claimed.
In a 2000 J. Leg. S. article, Pildes argues that rights are more filters than blocking tools:
establishes rights as constraints on reason vs. Dworkin’s rights as trumps. Dworkin wrote a
response saying he had been misinterpreted and that Pildes was right. This is a somewhat
more nuanced vision of the effect of rights on policies: not just a shield, but a filter, feedback
mechanism, etc.
K. Margin of appreciation
This has arisen mostly in the European context. The idea is that rights need to be translated
and perhaps modified at the margin in local implementation. Mégret thinks this operates most
in the context of limitations. The idea is to balance some deference to local governments with
global baselines: in this way, the system should be more flexible.
See Sunday Times v. UK (ECHR, 1986), a case about publication of State secrets in which the
ECHR made a famous statement about this notion (see PPT). Similarly, see the statement
Handyside v. UK (ECHR, 1976), a case about a Danish sexual education book found
offensive by the British authorities. The general idea is that, within certain bounds, ‘States
know better’.
How does one determine whether the margin of appreciation is properly used? Pushed
too far, it would make the whole system collapse. And it’s a relative concept which doesn’t
have an ontological grounding. Thus one must look for arguments limiting this margin.
Proportionality only goes so far. The best idea according to Mégret is to look what’s done
in other countries. Being ‘alone’ generally doesn’t bode well for a country trying to make
this argument. Basically, the ECHR is not being a pioneer, but not the most conservative actor
either.
L. Different standards of achievement
Various rights have higher or lower standards of achievement. Generally speaking, civil and
political rights have high (or even absolute) standards, while they tend to be lower or looser
for economic and social rights.
Oct. 23rd, 2007
M. Possibility of derogation
There is a possibility to derogate from certain rights in case of national emergency. This
possibility is in most instruments (strangely not in the African instrument). Generally, the
word used is “derogation” – the idea is that in some cases all HR may not be guaranteed and
39
this may even be necessary for their reinstatement. “There can be no HR without law and
order or at least a modicum of stability. IHR can’t be totally insensitive to this.” Most States
never use these. For ex., the US post-9/11 did not use the derogation in the ICCPR (however,
the UK actually did). There is a lot of politics involved: most States are not willing to say they
are derogating from some rights, which attracts heightened scrutiny. It’s sometimes
convenient to forget this possibility...
The situations where this is applicable are narrowly defined: ICCPR speaks of the nation
being threatened, IADHR (different from IACHR) speaks of war or public danger, or threat to
independence or security... this does not apply to, say, demonstrations. IHR bodies tolerate
this exception but try to limit its scope as much as possible. The treaties help them with
temporal limitations (IADHR) (not the permanent one in Egypt or in Belgium at one time)
and substantive requirements (strictly limited to what’s required) (the IACHR found that a
political-party ban did not qualify) and procedural requirements (depository body must be
notified).
Some rights are non-derogeable. Those are identified by instruments: they identify a core of
rights (ex. right to life). [Note that non-derogeable is not the same thing as absolute: lack of
torture / slavery and freedom of thought are absolute rights, the others, such as freedom of
expression, are relative. Absolute rights are non-derogeable, but it doesn’t go the other
way and these are two different analytical categories.] The list varies somewhat but typically
includes the most important rights.
11. Economic and Social Rights
There are other problems in the world than lack of civil and political rights: 900M
malnourished persons on Earth, over 1B without access to clean water, 35-40M under the
poverty line in the US... A major part of IHR in the last 10 years is that HR are not complete
without taking this into consideration. Denial of basic economic welfare is just as bad in
many cases the denial of civil and political rights. Living in poverty is a larger part of
existence for more people. Some people may even have guaranteed rights but unable to
vindicate them due to extreme poverty.
A. Economic and social rights: an oxymoron?
Economic development and a rights approach are not necessarily born to be married. Some
people argue such rights are not helpful. Some arguments:
- ESR are non-justiciable.
- Standards of achievement are vague.
- Difficulty of enforcement.
- High cost (does low GDP mean rights will never be achieved?).
- Dilution of other rights / collateral consequences / unwanted tradeoffs (China!).
- Socialist or communist agenda, open door to Statist economy.
- Doubt about the right policy to achieve the goal.
A major problem is we don’t know the ideal method to achieve ESR. It’s much easier to
agree on the ends than on the means: everything from communism (huge economic cost!)
to neo-liberalism claims to increase public welfare. There is also the fear that with this, the
international community is endorsing a social-democratic, Northern European order.
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Arguably, this is much simpler for civil and political rights (Mégret agrees this is partly
rhetoric).
This is contentious. The real question is whether this is sufficiently contentious for rights-talk
being unhelpful... is this all politics? Arguably, this is a debate for parliaments rather than for
judges who are ill-equipped to second-guess such complex policy decisions.
Since the 1960’s, the US has been a leading critic of ESR. They claim to be for development
but against the approach of development-as-right. Many arguments have been used by them
for this purpose, one of which is claiming this is paternalistic.
However, according to Mégret, there is some value to this approach.
B. History of economic and social rights
18th C. revolutions dealt mostly with civil and political rights. But very soon the idea of ESR
emerged: liberté, égalité... fraternité. Most religions have ideas of redistribution and charity –
this is an old source, but framed as a horizontal moral obligation rather than a legal
entitlement vis-à-vis the State. A closer source is the 19th C. ideas of Marx and Engels: rights
are useless to the proletariat. Class struggle is the solution, not rights granted by the State.
ESR, starting with the ILO in the inter-war years, are a response to the Marxist
critique. In the 1960’s, ESR were promoted by the USSR and non-aligned States as a
response to the ICCPR.
During the negotiations of the UN Charter, Australia suggested that member States should
secure some ESR (high standard, so-called “Australian pledge”). What ended up in the UN
Charter is an obligation of promotion of ESR (much weaker obligation). The UDHR was a
bigger breakthrough. This was only a UNGA resolution, but it included a now standard list:
health, education...
The ICESCR was signed in 1966 and entered into force in 1976. There are currently 149
parties (vs. 152 for the ICCPR); Canada is a party since 1976. Creating a second instrument
allowed States to latch on to one without the other and arguably prevents dilution. It also
allows different enforcement mechanisms: strong for the ICCPR – protocol with right to
individual petition, weak for the ICESCR – no right of individual petition (this reflects the
critiques mentioned in part A, also floodgates and the convert problem of individual solutions
to collective problems).
There are also variations on ESR in regional instruments: nothing in the ECHR (but there is
the less ratified European Social Charter), much in the African Charter, some in IADHR, a bit
in IACHR.
41
C. Conceptual differences
It’s recognized that ESR are different from civil and political rights.
Nature
Goal
Type of
obligations
Timing
Relation to State
action
Underlying ethos
Evaluation of
compliance
Civil and political rights
Right to be free from state action;
“negative”
rights;
“freedoms
from” (rights to freedoms, but
fundamentally freedoms)
Liberty
Obligation or result
Economic and social rights
Right to have certain state action;
“positive”
rights; “right to
something”
Immediate
Limits State action
Progressive
Legitimizes State action
Individualist
All states treated alike
Communitarian
States’ performance evaluated
according to their means
Equality
Obligation of means
Note that, just like civil and political rights, ESR initially create a minimum standard for
human life with dignity. They don’t create a maximum.
The argument is that ESR are not impossible demands on States:
- Progressive realization: States must take actual steps towards ESR. If they don’t (ex.
kleptocracies à la Mobutu), then they are breaching ESR. This sounds more like
classical HR. This must be to the maximum of resources available: States must do as
much as they can (Somalia and Switzerland don’t have the same obligations). The
most authoritative statement on this is General Comment no 3 of the ESR Committee
(1991): takes time, different from classical HR.
- All appropriate means: Resources must be used to their maximum extent to further
ESR (again, trying is more important than achieving). The priority is ensuring
minimum rights to all (SAPs were attacked for denying this or at least not caring, the
IMF gradually incorporated minimum ESR requirements in its programs), there is no
judgement on additional policies.
- Political? This critique is overdone: ESR are not just about a communist agenda. The
ESR Committee said it took no position of specific policies, only required a good faith
effort by States.
- Judicial overreaching? Some suggested that governments and parliaments should
have priority over courts. The ESR Committee’s answer is that courts already make
decisions with resource implications.
- Justiciable? See above.
Oct. 25th, 2007
D. A “violations” approach
The challenge for supporters of ESR is to be able to use the idea of rights to establish
violations. Without the idea of violation, the idea of right is not very useful. The first area
in which this approach was explored was for detained persons, prisoners (which are generally
42
totally dependent and have been deprived of almost all rights). In situations when the State is
all powerful, it has more onerous duties and it is thus easier to find violations.
States can be found in violation when they deliberately obstruct enjoyment of ESR. One
ex. is denying a work permit on unreasonable ground (disallows obtaining economic goods
through individual action: close to civil and political right). There is also failure to protect
ESR, ex. allowing a corporation to deprive a population of ESR (one famous case in Nigeria
of the government allowing Shell to pollute a river (and not caring) with detrimental effect in
Ogoniland: got to the African Commission). This is when HR are most useful according to
Mégret: not an option to tackle this as a priority.
The big question mark is how can States be found liable for “failure to fulfill” ESR.
Some States are in good faith and do their best while others are not. ESR have to internalize
the fact that economic development is a work in progress. But there are ways to find that
States are not doing enough:
- Discrimination in attainment of ESR (ex. apartheid, related to civil and political
rights).
- Retrogression (doing less than what was done before, esp. when linked to core rights).
- Neglect of ‘core’ rights (the Committee on ESR gives a list in General Comment no 3).
- Failure to ‘get started’ (one case before the South Africa SC: failure by the
government to even consider distribution of medication vs. medicine-to-child
transmission of HIV).
- Failure to take reasonable measures (trickiest one, nonetheless some cases before the
Indian SC of credits voted for a social program but money never spent).
There are few cases in IHR bodies, mostly because they don’t have jurisdiction over
ESR. The Ogoniland case was more political than judicial (the African Commission on HR
adopts reports which are authoritative but not judgements). The Commission found a violation
of the “right to a (...) satisfactory environment” and also the right to health and to be protected
by the State. The frontline of ESR cases today are the SCs of a few countries which have
constitutionalized ESRs, esp. South Africa and India. Good essay topic: what are criteria to
determine a State’s violation of ESR?
IV. The Enforcement Dimension
International treaties don’t matter if they have no effect on the ground. There is a great
deal of scepticism. Implementation is definitely a challenge, but this scepticism is often
simplistic in that it concentrates on enforcement instead of the entire norm-forming apparatus.
Positivists claim that this system without a sovereign can’t have implementation. International
lawyers find this to be a caricature. Even domestically, this idea of an all-powerful sovereign
is a caricature: most domestic norms are not followed because of courts and prisons. So the
dichotomy is somewhat artificial: norms can be respected to a certain extent for other reasons.
Some international lawyers argued for a world government and global repressive enforcement
– no law without a big stick, only morality. But there are other avenues: for some States, it’s a
question of national interest (States abide by these norms because they identify with them
[internal cultural reasons] or because they are being ‘socialized’ by the global system
[conditions to receive foreign aid]). All of this is not a total substitute for enforcement, but
enforcement doesn’t end the debate on compliance.
43
Compliance is a complex notion – it can be obtained from States through threat, but also
by implementation or socialization.
The conventional wisdom is that more law and more treaties mean more HR. Mégret says
many other factors apply HR (“don’t think like lawyers”), and the alliance between HR and
law is somewhat historically contingent. Yet, the ‘more law’ phenomenon has been
potent. Domestically, HR are enforced through specific instruments, constitutional review,
complaints mechanisms, etc. Internationally, this idea is replicated: ever more refinement of
instruments. But, without being accompanied by institutions, machinery, cross-cultural
understanding, etc. they are fairly ineffective.
It’s both obvious and difficult to assert: law and courts are only part of HR
implementation. Cross argues in his article that constitutional protection against
unreasonable searches in the US has had very little direct effects. There are many other
‘determinants of HR’ (and an entire body of scholarship on this, esp. from US political
scientists – not HR lawyers). Peace, democracy and the lack of ethnic conflict are in some
cases much more important than HR instruments.
Lawyers’ problem with determinants of HR is that they aren’t good at the fundamentals
and better and processes, gadgets and devices. Maybe this is a good argument, but it is a
reminder that HR can’t be enforced in the abstract and are part of more complex value
clusters. The pressing need is to understand the various means through which HR can be
better enforced.
IHR lawyers typically emphasize the international over the domestic, the formal over the
informal... These temptations limit the richness and multi-layered character of thinking over
compliance.
Imagine the States being black boxes in the international system in which individuals are
trapped and potentially subject to HR violations.
A. Actors
Who does enforcement work in international space:
- International organizations with reports and right to petition.
- Inter-State interaction (“Good old diplomacy still works more than international
organizations in rarified air!”). Some textbooks forget to mention this altogether (huge
impact of development aid of HR conditionality, much more than that of IHR bodies!),
yet this is part of international law (treaties...).
- States, which may be the ‘enemy’ but also an important part of the solution. Thus the
procedural rule of domestic remedy exhaustion for international jurisdiction to kick in.
- NGOs and civil society. Traditionally neglected by IHR lawyers which focus on
States or at most on a few global organizations (Amnesty International and HR Watch
vs. thousands of domestic NGOs). These can interact with States, international
organizations and other NGOs.
- Individuals themselves have both a stake and a role to play, both collectively
(overthrowing a tyrant is part of HR enforcement) and individually (petitioners in IHR
bodies). This is very much neglected.
Look beyond traditional textbooks, which look mostly at international organizations.
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B. Means and methods
How are HR (to be) respected?
- Treaty implementation / incorporation. This is mostly done on a domestic basis.
- Pressure / threat of a sanction which may be legal, political, etc. This can be done by
States, international organizations, NGOs and individuals. It’s difficult to define (not
strict law) but it can have tremendous effect (think of the effect of international
pressure which led to the fall of the apartheid regime).
- Sanctions, boycotts, embargos. These can be performed by various actors: State to
State (Helms-Burton), through international organizations (including the UNSC),
NGOs (boycott of some Chinese goods)...
- Development aid. The WB, UNDP and IMF use conditionality in some cases. Id. for
States (CIDA) and NGOs (MSF).
- Informations and reports. Documenting violations is crucial to the overall system.
Again, all actors play a role. A large part of the current machinery (ex. UN
rapporteurs) is about information and documentation.
- State reports on their action. This often involves interactions between governments,
civil society, international organizations, etc. Feedback (and sometimes international
shaming) has an effect for States which are at least minimally committed.
- On-site visits by various rapporteurs and officials (for HR as for the rest of PIL).
Some mechanisms are quite soft (rapporteur visits), others are more instrusive
(European Convention against torture with possible ‘surprise inspections’).
- Diplomacy and political pressure. Informal contacts and various communications,
which can be State-to-State, State-to-IO, all the way to cultural exchanges and
campaigns (PR aspect of HR).
- Technical cooperation. It can be from international organizations (High Commission
on HR gives help for legislative reform), States, civil society (ex. Soros Foundation).
- Courts and the judiciary. This is often held up as the Holy Grail of IHR, that court =
serious law. It is true that this is a strong accountability mechanism; either national
courts or international criminal tribunals. There is a distant dream of a world HR
court...
Treaties and other normative instruments are the substance on which all of this relies – they
are a backbone for the whole system. Mégret’s argument is that amongst all these
mechanisms, hierarchies are not very helpful. Take this description of informal
mechanisms as a major warning. Economics, power differentials between States, military
power to back threats are major factors according to Mégret. IHR bodies have a role, but are
much more potent when they interact with many other factors conducive to their action. HR
violations don’t only occur because of law – don’t put la charrue avant les boeufs!
Oct. 30th, 2007
12. International Political Implementation of Human Rights
A. Human rights and foreign policy: introduction
What if a State decides to do something about the HR record of another State? This is a
Westphalian, residual mechanism of enforcement, but it remains important. This can be a very
powerful technique. One aspect is that States can offer a quid pro quo for respect of HR:
Amnesty International can’t offer more development aid.
45
A State has a lot of resources which give it some leverage:
- Economic (trade, development aid).
- Military (threat of the use of military force, conditional military assistance).
- Political / diplomatic (diplomatic support and ties, membership in certain ‘clubs’ or
organizations, recognition in some cases).
Here ‘receiving’ States can maximize their national interest by subscribing to HR goals. There
is no comparison between the power of large States and that of international organizations and
NGOs. Of course, inter-State implementation is political, selective and often half-hearted. But
if we can harness the immense resources of States for agenda, it would truly advance
HR.
Why would a State involve itself in changing the HR policy of another State? Or not?
Traditionally, States did not intervene in the affairs of others to avoid interference in their
affairs (“boomerang effect”). States are weary of how pressure can be turned against them.
Mégret points out that once the barriers of sovereignty have been lowered – a difficult
exercize – it’s even more difficult to go the other way.
China has been very good at asserting sovereignty when criticized for its HR record: it argues
that this is a strictly domestic concern. There are several counter-arguments to this: erga
omnes obligations (“Correct, but formalist. The lesser latin, the better.” - Mégret); IHR is
about internationalizing the issues, China has ratified many HR instruments – enforcement
should follow substance; participation of States in IHR has reshaped sovereignty on a
global level.
There may be a possibility of retaliation: works well when it’s a powerful States against a
weak one, but not the other way around (little cost to the pressure). This is true for
development aid, much less for interdependent and mutual trade arrangements (“shooting
yourself of the foot”). Within the potentially ‘pressuring’ State, various constituencies will go
various ways (ex. HR NGOs vs. corporations). There will always be some who will say that
economic cost is not worth pressuring for HR – part of the debate on the government’s duties.
This is a fundamental point of ethics in foreign policy: is the State to maximize the good of
its people only, or is it an agent of the international community working for a better HR
future? This is not only about governments being cynical, but about an ethical split.
B. Balancing human rights and other foreign policy imperatives
Foreign policy is not just about HR, and HR are only one issue competing with many
others: peace and security, trade, culture, environment... The more other issues are at stake,
the more difficult it is to argue that HR should take precedence. It’s arguable that, for ex.,
peace and security is more important than HR. This is why historically foreign policy has
been difficult to use to advance HR. There is also a problem of collective action: pushing an
agenda works better if States coalesce, coordinate their policy and act together – if States go
at it alone they risk incurring high costs (China has been very good at playing the EU vs. US).
Why is it that States will sometimes incur those costs? Why will Harper meet the Dalai
Lama and displease the Chinese? Possible reasons:
- Domestic constituency.
46
-
-
Pressure from other States (IR point: abolition of the slave trade worked because the
Superpower, the UK at the time, threw its weight behind it; Bush and Merkel received
the Dalai Lama)
Ideology. States and governments are not totally agnostic (Carter was elected in part
on an HR foreign policy platform, a lot of weight historically).
Ideally, the role of HR in foreign policy should have some legal backing and there should be
an official policy. Canada has a statement which mixes international law, Canadian identity
(we do democracy) and values (we want democracy), national interest (HR means less
peacekeeping, etc.). This statement obviates the question of costs of acting virtuously. There
is some stronger legal authority: 1986 statement of the Special Joint Committee on Canada’s
International Relations. Similarly, HR are central in the Common Foreign and Security Policy
of the EU and the US Foreign Assistance Act of 1961.
C. Threshold for inter-State pressure
Another question is when pressure should be applied, i.e. what the threshold is. The US has
a few acts of Congress which speak of “gross violations” (Foreign Assistance Act, 1961) or
“particularly severe violations” (International Religious Freedom Act, 1998). Inter-State
pressure is some sort of last resort, the supra-national bodies take care of less grave violations
(ex. ECHR).
Some States keep a close record of HR compliance by other States. The US State Department
issues fairly detailed HR reports on all States every year (“except on itself”), somewhat like
Amnesty International. China compiles its own, to some extent as retaliation against the US.
Some foreign affairs ministries have monitoring bodies or parliaments can create committees
which can pressure governments to be sensitive to HR concern (it’s important that this be a
specifically assigned responsibility).
D. Conditionality
Between reports and conditionality, there is a lot of political action which can be taken. A
classical ex. is to invoke it in a head of State meeting or more or less limiting diplomatic
relations (the UK and Canada were quite good at ‘invite dissidents at garden parties’
diplomacy in Cuba).
At some level of HR infringement, a State may start to retaliate. Different types of
conditionality exist: security assistance, development cooperation, financial assistance,
trade, humanitarian aid, entry into a regional / international organization.
Security assistance is the ‘easiest’ because it has little effect on the local population: ex. not
selling riot control gear to the Myanmar police (which would be close to complicity). The US
is a leading provider of military equipment and assistance and, at least in some cases, does not
want to arm HR violating governments (legislated in the Foreign Assistance Act, 1961,
although there are oft-used exceptions).
In the 1960’s and 1970’s, HR and (economic) development agendas tended to be dissociated.
There was a lot of reluctance to link the two. Arguments were that development was good and
HR violations were too difficult to evaluate. Sweden and the Netherlands were the first ones
to introduce development aid on conditionality. This was first for apartheid South Africa
47
and 1970’s Uganda. Canada endorsed this idea in the mid-1980’s (after an initiative failed in
1978). The EU went through the similar process. Initially, HR was only in the preamble of
development cooperation agreements (ex. Lomé agreements between EU and ACP states),
with no legal traction. At some point, HR became an operative clause which is now standard
(included in the 4th Lomé Convention of 1989). HR are now called an “essential element” of
these treaties, backed by the Vienna Convention on the Law of Treaties which allows
suspending a treaty if an “essential element” has been breached. This makes clear and
explicits that HR are an essential element. The EU has created its own suspension regime
which may involve discussions with the offending party or not (Baltic Clause). This has been
used against Albania and Kirghizstan. “This is strong, acts follow intention. Remember that
50% of the budget of some underdeveloped States is development aid. Also, effectiveness
should not be linked to strict invoking – the norms are internalized.”
Trade is a more difficult area. This is both because of costs and because the GATT /
WTO regime does not make HR an exception allowing trade restrictions – it’s seen as a
bad excuse for self-serving restrictions. Art. XX of the GATT has several exceptions (public
morals, health, etc.), the only HR-oriented one being about prison labour. Grave HR
violations don’t justify any restrictions (except Chapter VII authorization by the UNSC)...
International trade law is seen as a separate and hermetic sub-system relative to IHR and
general PIL. There is limited thinking on their relationship, but there is a theory that all of this
is part of broader PIL and should be inter-related. Of course, this does not apply to non-WTO
members. Historically, an interesting case is granting (or not) of MFN status to China by the
US (also happened for other communist countries). This debate went on for about two
decades. For a long time, MFN status was denied, and later it was made conditional to HR
improvements (Clinton-era US-China Act, 1992: the President had to report every year that
improvements occurred for MFN status be maintained). This has been successful in creating
an HR dialogue: good to show that it’s not granted once and for all.
Conditional entry in an international or regional organization has been a big carrot,
although generally more of a one-time process. The EC was initially about free trade and
economic liberalization and didn’t care much about HR. But this changed over decades: huge
carrot, opportunity missed not to use this as leverage. The EC increasingly defined itself in
this way. Post-Berlin Wall Eastern Europe countries wanting to enter the club made this
prominent. In 1993, the European Council adopted the so-called Copenghagen criteria
which include HR. This was entrenched as a legal requirement in the Amsterdam Treaty
which created the EU: adopting the European acquis is important (mostly economic matters),
but HR is now a co-equal requirement. The big case is the dialogue between the EU and
Turkey. In 2002, Turkish Parliament enacted a large package of HR laws, from abolishing
the death penalty to easing restrictions on the press. This was the result of domestic and EU
pressure. The flip-side of conditionality is being excluded and the EU has an entire procedure
for this (case of Haider in Austria). The Council of Europe has a similar procedure, which was
used to exclude Greece and Turkey at one time. Russia had its voting rights suspended over
Chechnya, although it was not fully excluded (Peter Leuprecht resigned from the Council of
Europe over this not happening). The Inter-American system also has a similar procedure
called the Washington Protocol (1992).
Nov. 1st, 2007
All of these tools attempt to avoid ‘all or nothing’ practices which, in the case of exclusion
of a member in an international organization, prevent dialogue.
48
There are several problems with inter-State actions. A major one is selectivity. States tend to
act when in their interest or ‘if they can get away with it’. Allies will tend to be spared. State
reports tend to be biased, and the US never sees itself as an actor, which it often is (military
assistance, guerrilla financing, ex. Nicaragua). The same applies for trade treatment (ex.
China). Generally it’s said the solution is multi-lateralization which would pacify State
interest and give added legitimacy.
E. Making changes on the world stage: international institutions
There are many arguments for regional initiatives. But this also involves a danger of whole
areas of the world being outside the scrutiny of IHR. The UDHR was a major first step, but
it’s a long way from saying the UN should be active in the field. And it was only a UNGA
resolution. The 8-9 following treaties were adopted by the UNGA qua diplomatic conference,
States then ratifying them. There is a lot of pressure for and resistance to UN involvement in
compliance with HR. This is seen throughout UN history: series of struggles...
There is a major distinction within the UN HR framework:
Type
Members
Examples
Tools
Strength
Charter based bodies
Treaty based bodies
Contemplated in the Charter or subsidiary Separate body created by treaty but
bodies, mostly political bodies
resting with the UN, expert bodies
All UN members are members
UN members must become
members separately by ratifying
6 principle bodies: Security Council, HR Commitee (most important,
General Assembly, ECOSOC (UN’s gate monitors
ICCPR),
Committee
to NGOs, this leads to tensions), HR Against Torture, CEDAW, CERD,
Council (“the main UN HR body”, the CESCR, CRD, CRC, CRMW, soon
HR Commission used to be a subsidiary the Committee on Enforced
body of ECOSOC), International Court Disappearances, all based on the
of
Justice,
Trusteeship
Council same model.
(moribund, but interesting historical
role), plus Secretariat General (strange
status, includes High Commissioner on
HR with technical assistance and a
making HR mainstream within the UN)
Various
Mostly reporting
Fractious, but strong when united
Generally weak
General Assembly: Hasn’t had a huge role in terms of HR. It’s ‘too general’ in a way. The
only cause célèbre which was much discussed was apartheid (with the GA creating its own
committee against it).
HR Council / Committee: Generally overshadowed the GA with more action.
Security Council: Long and problematic history with HR. The change came partly with
South Africa. This started with India bringing a complaint in 1946 (Indians being
discriminated against in SA). And South Africa made an HR issue into an international
security issue by exporting its model to Southwest Africa and other effects – destabilizing
impact on the region. This caused a revolution in SC thought: at a certain level, massive
49
HR violations a breach of international peace and security (took root post Cold War). It
was no longer a question of simply war and peace (both cosmopolitan arguments – duties to
all and realpolitik ones – actually destabilizing). The SC has major powers: denunciation,
trade embargos, peacekeeping... But the limit of this is that the SC is highly political: issue of
permanent members. The SC has done quite a lot nonetheless: created ICTR and ICTY
(technically subsidiary bodies – there is a debate on whether the SC was ever meant to create
judicial bodies). The flip-side is that the SC can do a lot of harm: for ex. some embargos have
created much human suffering (clear political and possibly legal responsibility), blacklist of
terrorist organizations created by an opaque committee (no due process) – this is linked to the
wrong idea that the UN can do no harm.
International Court of Justice: It’s heard a few cases on IHRL, which after all is part of PIL.
But there have been few, because cases generally arise in the inter-State context. Those cases
are very hard to bring, given its limited jurisdiction. See the Breyar (Mexico), LaGrand
(Germany) and Avena (Panama) cases brought against the US, which mostly had to do with
the Vienna Convention on Consular Relations, but were part of a larger HR strategy against
the death penalty. There are a few cases on universal jurisdiction (brought by Congo against
Belgium and France to prevent courts there from trying their officials) and also Bosnia v.
Yugoslavia on the basis of the Genocide Convention. Beyond inter-State disputes, there
have also been many advisory opinions, typically requested by the UNGA. Some ex.:
- Legality of use of nuclear weapons (considered international humanitarian law and
IHRL).
- Legality of the Israel-Palestine wall (interesting development because it did not
relate to an institutional or global problem, IHR was one of the issues).
- Immunity of UN HR rapporteurs (Mazilu case: Romania denied a passport in the
1980’s to someone who had been appointed an HR rapporteur, the ICJ found that a
passport should have been issued and thus protected UN processes; another case on a
rapporteur on indepence of lawyers and judges tried for defamation in Malaysia).
Unfortunately, the ICJ is very slow (Bosnia v. Yugoslavia took 12 years!). Judges are also not
really ‘human rights types’ (with a few exceptions like Higgins J.), they generally have a
diplomatic background. This is a problem throughout the UN, its bodies and its
administration...
ECOSOC: This is the entrance point for NGOs in the UN system. NGOs have had a very
important role in IHR historically, starting with the UDHR and instruments, but also in
pressing for enforcement (the UN was very embarrassed by this initially). In one famous case,
the Madres de la Plaza de Mayo stormed in to a HR Commission meeting in Geneva in the
late 1970’s and made a huge fuss in what was a forum of politically minded diplomats. The
UN set up criteria to decide which NGOs to admit (to filter out undesirables like the KKK or
so-called GONGOs in Geneva which are government disguised NGOs, which say they are are
great – Tunisia is notorious!). Various exclusions have occurred, on the basis of irrelevance,
government funding, contrary ideas or links to terrorism. There is a problem of space and
time, so NGOs have various statuses depending on their mandate: about 125 generalist ones
(general consultative status, ex. Socialist International) and many more which have special
consultative status (ex. HR Watch), which are allowed to make 500 word official statements
in relevant meetings. ECOSOC is composed of 19 States on a rotating basis, not all of
which are civil society-friendly (fox guarding the henhouse), thus several legitimate NGOs
have been denied any status (ex. Freedom House) through coalition-building and unholy
alliances. NGOs have sometimes abused their privileges. Two famous ex. are a Christian
NGO allowing John Garang (South Sudan rebel leader) testify and the Transnational Radical
50
Party bringing in a Chechen leader. In both these cases, Sudan and Russia successfully
lobbied for status suspension.
Secretariat General: Each has a different background and different ideas (Kurt Waldheim!).
They have to contend with many pressures and the UN administration. For a long time, SGs
were not really allies of HR. Boutros Boutros-Ghali had a very classical interpretation of
international relations, was against the creation of the HCHR. Koffi Annan is generally
credited for making HR more central.
Then there is the center piece...
F. Commission / Council on Human Rights
The Commission was disbanded two years ago because of its ineffectiveness. The
Council is a very new body, but it’s not that different so far, so looking at past history is
still useful. It’s a cautionary tale in entrusting too much hope for HR enforcement in interState political bodies. HR get lost in fractious international politics...
This is not a permanent body, it sits twice a year in Geneva. It’s probably the biggest regular
event in HR. In addition to diplomats, there are typically thousands of participants. There 47
members (vs. 53 for the Commission), which are elected on the basis of regional groups.
Membership is the first issue. It rotates, there are no permanent members. There have been a
few scandals in terms of membership. Some argue that HR record should have an impact on
eligibility, others not. The tragedy of the Commission was that it was often dominated by
a majority of States (including Lybia, Iran, Syria, Cuba, North Korea, etc.) wanting it to
have no impact. The Commission has been very single minded. In some years, the only
condemned HR violation was by Israel in the Occupied Territories! This was the only issue
permanently on the agenda... Belarus and Cuba managed to have rapporteurs on them
abolished. The Council only expressed concern over Darfur...
A few improvements of the Council:
- Secret vote (limits coalition building).
- States have to make a renewed pledge to HR and must (in theory) meet minimum
standards.
- Periodic and automatic review of the record of all member States (unclear how this
will work for now).
What does the Commission / Council do? It was not very active in its first years. What should
be done about serious HR violations, initially South Africa, was a question (Resolution 1235
allows the creation special rapporteurs).
Nov. 6th, 2007
The Council on HR has “special procedures”:
- Resolution 1215 (voted in the 1970’s), which allows it to put on its agenda systematic
HR violations and adopt resolution condemning them. This is very contentious: very
far from norm-setting role. Yet States voted in favour of this, mostly with South
Africa in mind, but the mechanism came back to haunt them...
51
-
Special procedure 1503 (resolution of ECOSOC) to deal with individual petitions.
Initially there was nothing in the UN system to deal with those. By the 1970’s, there
were so many (about 200,000 a year now!) that something had to be done. Many
States wanted some action, but within limits... They are now reviewed en masse to
detect patterns. There are a few rules on admissibility (no anonymous petitions, but
can be written on behalf of victims, for ex.), then the petitions go to a committee. If
there is a sufficient number, States receive an anonymized report and are asked to
respond. If there is no response or an unsatisfactory one, the committee may forward
the file to the Council, which can lead to a resolution of condemnation adopted by a
majority – shaming is the only ‘remedy’. One advantage of this is that the Council
may receive petitions from people who couldn’t submit them to treaty bodies;
however, the procedure is much less individualized.
The Council can create thematic (ex. torture or religious intolerance) or country-specific
working groups (3 people) and rapporteurs (one person). Most of them submit yearly reports
outlining violations. Unfortunately, the Commission and now Council has a bad record of
acting on those.
Two philosophies of what the Commission was to do vis-à-vis States clash: Cooperation
vs. Pressure. A document presented by a coalition of States (including Iran, Myanmar,
Cuba...) emphasized behind-the-doors cooperation. Another side has it that possibility of
ultimate coercion is the only effective mechanism.
The YouTube video of the Council shows that not much has changed since the Commission
days. If anything, the situation may have gotten worse…
G. High Commissioner for Human Rights
This is a relatively new office which grew out of the UNSG. After proposals by France in the
1940’s (“Attorney General for Human Rights”), it was created at the 1993 Vienna
Conference. This office has been held mostly by people with an HR background.
It supports all other UN HR activity. Initially, this body focused on non-threatening
cooperation, with the HCHR being responsive to the UNSG (Vierra de Meilo). Louise Arbour
is credited with shifting gears – she criticized, antagonized but also made the office more
impartial.
This is still a very small office – about 200 staff, limited funding (compared to over 1,000
staff for the High Commissioner for Refugees). It has attempted nonetheless to have a field
presence, for ex. in Rwanda immediately after the genocide, with mixed results. It still does a
lot of technical cooperation, for ex. helping States in adapting legislation.
H. Treaty bodies
There are seven main treaty bodies: CEDAW, HRC, CERD, CESCR, CAT, CRC, CRMW.
Membership is variable depending on the treaty, generally with some idea of equitable
geographical representation. Members are chosen among parties, but are in principle
independent experts serving in their personal capacity. There can’t be more than one member
per party.
52
The HR Committee had initially major goals, almost a court. These plans were shelved in the
1960’s in favour of a more conciliatory formula: supervisory bodies. It meets once or twice a
year in Geneva; this is a low-key affair compared to the HR Council and fairly confidential,
with little media attention.
Five tools of treaty bodies:
- Country reports provided by States, outlining implementation actions. These must
include things beyond legislative measures such as statistics and material evidence.
This is a cooperative mechanism: it only works when States are reasonably
interested, “veulent jouer le jeu” and are willing to take some outside advice (ex. best
practices). In some States (including Canada), civil society is quite active in helping
production of these reports. This may also have the unintended result of countries
creating regular reports of their HR record, which can also be used for internal
consumption. One issue is divulgation of reports, it was quickly decided that they
would be made public (useful for local civil society – sometimes NGOs produce
alternative reports). This is a ‘soft’ mechanism, with limited enforcement, but which
nonetheless leads somewhere. There are two main problems with State reporting:
relying on State good faith and cooperation (can express scepticism, but no on-site
investigations); huge delays and backlog (from States and committees). One
criticism is that there is too much reporting, esp. for small developing States. There are
suggestions of reform, which would involve a uniform procedure, merging
committees... this is contentious, not only administratively, but because there is a
tension between the universal and the particular.
- Inter-State petitions, which are possible in every major treaty, but have absolutely
never been used. The reason is clear: no State wants to take the risk of denouncing
another State, which would be seen as intrusive. “These tools are there for the future,
perhaps this would happen in a more cohesive world system. This may explain the 8
examples in the European context. Most States prefer to use conditionality and other
political means. UN cut-and-paste is a factor in their inclusion as well.” There are
procedures in which the treaty body can ultimately render an opinion /
recommendation (not judgement – committees are not courts).
- Individual petitions allowed by some treaties. In some cases, the recognition of this
right is optional. Canada has recognized this right for all treaties in which this is
possible. We’ll see the mechanics of this later. The key problem is follow-up:
recommendations not strictly binding, although States are often asked to report what
they have done to remedy a violation. There are a few cases of individuals claiming
that nothing was done after a finding by the HR Committee found an HR violation! As
for reports, this system relies considerably on States’ good faith. Remember that
numbers are not huge: most petitions don’t reach the merits because they are found
inadmissible (often for lack of exhaustion of domestic remedies, although there are
exceptions). This is a measure of protection of State sovereignty, based on the
questionable assumption that the State is the best forum to obtain a remedy.
- Urgent action.
- Onsite visits.
13. Regional mechanisms
They are very popular: Europe, Americas, Africa... which are the three we will discuss.
There is little going on in Asia, barely embryonic substantive instruments (no supervision or
53
enforcement). Their popularity may have to do with a shared regional understanding, which
doesn’t mean that there aren’t tensions. Setting up these mechanisms has been easier
historically.
Typically, these mechanisms are much stronger than the UN ones. Regionalization allows
forging ahead with stronger mechanisms. Early on, the Europeans decided they wanted better
mechanisms. This has to do with the historical context of Europe: endogenous HR culture in
several States, Holocaust and WWII, locus of supranational experimentation during the
interwar, simultaneous to a push for regional integration (EU, EC, OSCE... even truer in the
Inter-American [OAS is the main HR body] and African contexts [id. for African Union]).
There is also a sense that regional mechanisms are closer to HR violation victims: geography,
language, etc.
Two types of systems:
- Mixed / Dual system: HR court and HR commission. This is the African, InterAmerican and old European system. Petitions go through the commission first, only if
States don’t resolve the matter does the commission bring the matter to court. This is
relatively protective of State sovereignty.
- Unified system: HR court only. Individual petitioners can go directly to court once
local remedies are exhausted. There is no filtering or representation by a commission.
Nov. 13th, 2007
In a sense, everyone has imitated the European system. But it has evolved considerably
over 50 years. In some ways, the Inter-American and African systems resemble what the
European system was 20 years ago.
These regional mechanisms attempt to go further than the UN, given that regional consensus
is easier to achieve. At the regional level, there is some sort of equivalent of Charter bodies
(political) and treaty bodies (court / commission system). Every regional HR system has such
bodies.
A. Historical backgrounds
European System
This system is composed of the 48 members of the Council of Europe, not the EU or OSCE.
It has grown to being a large permanent structure. The convention was signed in 1950 and
entered into force in 1953, the court issued its first judgement in 1961 (Lawless v. Ireland).
Originally, petitions had to be sent to the European Commission on HR with attempts to find
a friendly settlement. Adjudication was the exception. In 1990, Protocol I allowed individual
petitions to the court. The institution was reformed by Protocol 11 of 1994, which fused the
commission and the court (entered into force in 1998). The court issued its first judgement on
a Central / Eastern Europe country in 1997 (Loukanov v. Bulgaria). Russia ratified the ECHR
in 1998.
Inter-American System
The OAS (founded in 1948) is the ‘parent organization’ of the Inter-American system. As in
the African context (African Union) and unlike in Europe (the more political the EU becomes,
54
the bigger the pressure for some sort of rapprochement between the EU with its ECJ and the
CE), HR protection is linked to the major regional integration organization. The Commission
was created in 1959. There is no single document (like the ECHR and Banjul Charter), but
rather the American Declaration on the Rights and Duties of Man (all States, 1948) and the
IACHR (some States, 1969, entered into force in 1978). There are a number of protocols and
side-agreements, adopted from 1985 to 1999.
African System
This is an extremely young system, the Banjul Charter was adopted in the early 1990’s. It
initially had a Commission more like the UN’s, a largely political body. Initially, there was no
court at all. There hasn’t been a single case before its court yet.
B. Major institutional features
The Inter-American and old European system have a commission which has two roles:
HR monitoring / representation to States (could be done without a court), receiving and
channelling individual petitions (first step to bringing a case to the court). The commission
will try to amicably the resolve the State-individual dispute and follow up on implementation.
It’s only in exceptional cases that the commission will decide that a case will go to court: no
amicable settlement, sensitive or difficult questions.
Beyond filtering cases, the commission will represent the individual petitioner(s), although it
has a complex role (not only advocacy for individuals: investigating magistrate, represents
regional public order...). It’s not clear what the role of the commission is and there have been
many criticisms. Some argue that States did not want to be confronted in court to individuals
alleging HR violations: idea of equality that’s powerful symbolically and goes against
traditional PIL. Also, there’s an idea that the commission will be a bit ‘nicer’ towards States.
The alternative system is without a commission: everyone has the right to bring a
petition and obtain a remedy. This has been the system for a decade in Europe. “This is
probably the way of the future.” Here there is an idea of direct access to justice.
Governing
organization
Commission
Court
Europe
Americas
Council of Europe, Organization of
Strasbourg
American states,
Washington
Abolished
7 members,
Washington
44 judges, Strasbourg 7 judges, San
José
Africa
African
Union,
Addis Ababa
11 members, Banjul
11 judges, Arusha
The European system is on a completely different scale. The ECHR receives over 10,000
cases a year. The Inter-American Commission has about 100 cases a year, the Court about 4-6
cases a year. The African Commission has an average of 10 cases a year! The ECHR has 400
staff (budget: 30M Euros), the Inter-American system (budget: $3.5M) about 40 the African
Commission a dozen (budget: $760,000).
The European system involves 800M people, 1/7th of humanity (only Belarus is missing,
Russia, Turkey and Caucasus States are members). There has been one non-CE national
55
elected to be a judge in Strasbourg (Ronald St. J. Macdonald from Canada, nominated by
Luxembourg).
C. Applicable instruments
The European Court on HR only applies the ECHR. The African system applies the Banjul
Charter but also many other instruments (UN Charter, UDHR, other UN-based treaties...)
although it’s unclear whether this added substantial protection will yield more results. The
American system is more complicated in this respect:
Commission
Court
Declaration Monitors all State members of Considered to be part of the corpus of
the OAS (State reports)
applicable law for Convention parties only
Applies (State and individual complaints)
Convention Monitors State parties
This has happened in the Inter-American system perhaps because there is no strong distinction
between the OAS and the HR supervisory structure. A number of States wanted to go further
than the minimum baseline of the Declaration and wanted a court which could issue binding
judgements, be more thorough and less political. But a commission is also good in some
ways: birds’ eye view, some States may not accept a court. This system is pragmatic: offers
different solutions for different levels of international HR scrutiny.
D. Procedure
Commissions can do several things:
- Receive State reports.
- Write reports about States or specific themes or situations (terrorism and HR (2002),
Challapalca Prison in Peru (2003), situation of women in Ciudad Juárez (2003),
demobilization process in Colombia (2004)...).
- Special rapporteurs (rights of women, migrant workers, freedom of expression,
children, HR defenders...).
- In loco visits (now common in the Americas).
That’s the role of the commission which exists independently from a court. When a court is
present, commissions also deal with:
- Inter-State petitions (only a few precedents in Europe).
- Individual petitions (“best guarantor of HR”).
Individual petitions have a long history. They began with minority protection in Inter-War
Europe, dealt with confidentially by the League of Nations. The petitions committee of the
UN HR Council has taken up that role to some extent, but that’s more of an ad hoc system.
“The big difference between the UN and the regional systems is that treaty bodies operate
completely independently from the rest of the UN, whereas in regional systems commissions
are the first step to another system, the courts.”
Who can make petitions? In all regional systems, it can be individuals (includes minors,
mentally ill, prisoners, etc. which may not have the right to access domestic courts) or groups
(ex. NGOs). There is no need to be a national of the State party, what’s required is State
party jurisdiction. The States have no right to control the validity or reasonableness of
petitions. In the Inter-American and African systems, unlike in Europe, one need not be a
victim to bring a case (NGOs like Amnesty International may bring a case).
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What happens to petitions? In dual systems, there is an attempt at friendly settlement. If it
does not happen, the dispute can be referred to a higher political body (old European system:
Committee of Ministers; Inter-American system: OAS) or to the court.
14. International Human Rights Procedure
All systems rely on the same procedure to some extent. First, there is a distinction between
admissibility and merits.
A. Receivability
The alleged violation must respect certain rules:
- Fall within the (territorial, temporal and rationae materie) jurisdiction of the court.
There is “manifest” inadmissibility (ex. alleging violation of a right not protected by
the instrument) and “simple” inadmissibility (no prima facie case).
- No anonymous petitions.
- No disparaging or insulting language.
- Not based exclusively on news disseminated in the mass media.
- Submitted within a reasonable time after local remedies are exhausted (most systems
have a 6 month limit).
- Not already dealt with by another international HR procedure (ex. by a UN treaty body
like the UN HR Committee).
- Does not constitute an abuse of the right to submit a communication. [ex.: German
claimant at the ECHR who claimed traffic lights violated his freedom.]
- Exhaustion of local remedies.
Nov. 15th, 2007
The system has been drowning in petitions, particularly in Europe. Backlog is a serious
problem, in part because there is a right to be heard within a reasonable time.
Most of the above rules are taken from domestic systems. But the “exhaustion of local
remedies” rule is originally a PIL rule, in force at the ICJ and elsewhere. It’s in place for
several reasons: to avoid too many petitions (division of labour), allow more amicable and
quieter resolution, to make States internationally responsible (idea of subsidiarity), accessible
forum for plaintiffs, easier for domestic bodies to collect evidence, favours national ‘margin
of appreciation’. Proof of exhaustion has to be made by the applicant – there is no
obligation to exhaust unavailable remedies (ex. one which can’t be claimed personally). Also,
there has to be a match between the domestic and international case (although this hasn’t
been interpreted very strictly), broadly one needs to ask for the same remedy.
The big question is what can be done when the State (often responsible for the HR violation,
esp. in the case of grave and deliberate violations) is preventing one from exhausting local
remedies by foreclosing access to them. Many cases came from Turkey in the 1990’s:
complaints were filed with prosecutors, which did nothing for several years. This is when the
exception comes in: considered to have exhausted local remedies when one has exhausted
all the reasonable available ones (good faith is probably the criterion). This includes
“unwarranted delay” (see art. 46 ECHR) which has generated much caselaw: substantive and
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procedural remedies overlap here. This is a question of fact depending on the complexity of
the case – does it respect international or domestic law? Mégret says that the exception to
exhaustion is intentionally manifest directed or systemic delay. Unfortunately, many States
are permanent offenders. This is the most litigated issue at the ECHR in terms of volume
(80% of volume!).
B. Evidence
Witnesses may appear, be examined and cross-examined at the ECHR or other regional
bodies. The UN bodies don’t have any hearings, they render written opinions based on
written evidence. In Europe, most people have specialized legal representation, which is very
good at framing cases in HR language. The ECHR can also investigated in loco, although
it’s not used very often.
The evidentiary burden resembles that of a civil case: preponderance of evidence. That’s
the standard for international responsibility in all of PIL. Admissibility of evidence is very
broad, with few fixed rules (see Timishev v. Russia, ECHR, 2005). This is partly because in
the inter-State context, procedure is sensitive, so there is a tendency to go to the least
restrictive rules. An HR violation must be proved, there is no presumption against the State.
However, in some cases the ECHR has shifted the burden once a prima facie case was made,
esp. when individuals don’t have access to (usually State) records. The goal is not to shield
States which have improper record-keeping. This is also due to limited (Europe) or absent
(treaty bodies) investigative powers. Mégret doesn’t know how much judicial notice is used,
if at all.
C. Interim measures, judgements and remedies
This is a contentious subject. They are often brought up for particularly grave violations, one
famous ex. being the death penalty. They have often been ordered in Europe. More on that
later...
Typically, court judgements are longer (reminiscent of COL) than the opinions of treaty
bodies (closer to CVL). Judgements tend to include much procedure, the facts, the pleadings
of parties and finally discussion on the merits, typically article-by-article. Both the treaty
bodies and regional courts for dissenting opinions (closer to COL): judges vote to identify the
majority opinion.
The goal of all this is to obtain a remedy. The general idea is to obtain “equitable
satisfaction” (ECHR, IACHR). The remedies (including monetary sums) are quite
discretionary, with the sense that all PIL remedies are available. It goes much beyond
money: the most important reparation is usually an order for cessation of the HR violation.
Courts can actually order this, even if it involves changes in administration, regulation or even
legislation (which is left up to the States). In some cases, a mere declaration of violation may
be considered as a sufficient remedy (symbolic satisfaction). Generally, a plaintiff has a right
to restitutio ad integrum. In some cases, it’s impossible or insufficient, thus ordered
compensation takes harm into account.
The prejudice has to be personal (includes close relatives and ayants droits), direct and
certain. Both the ECHR and IACHR are sensitive to intangible damage, such as
psychological effects in torture cases.
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The IACHR has been very inventive in terms of tangible remedies: repealing a law,
training of police force in HR, creation of a compensation scheme, national day of
commemoration of victims, building of a monument. In the Inter-American system, the
Commission and victims negotiate remedies, but they have to be sanctioned by the court.
A few monetary awards by the ECHR:
- Gongadze v. Ukraine, 2004: 100,000 Euros (widow of a murdered journalist claimed
his right to life and against inhuman treatment).
- Dep v. Turkey: 31,000 Euros (violation of freedom of expression).
- Shamayev v. Russia: up to 11,000 Euros each (violation of the right to a fair trial).
- Selmouni: 80,000 Euros (rare torture case from France, prison beating).
It’s hard to come up with a proper quantum. They aren’t fines, although there is some link
to gravity. “C’est la cuisine de Strasbourg. Très peu a été écrit sur ce sujet. Il est possible que
le niveau de vie soit pris en compte. Ce n’est pas la même culture qu’aux États-Unis.” This is
a very contentious issue domestically. Paradoxically, violation of property rights may attract
higher damages because they are easier to evaluate. Also, remember that money is only part
of the equation, with other remedies and structural effects (guarantee of non-repetition,
actio popularis aspect with ripple effects even beyond borders).
Courts have given themselves the power to monitor of enforcement, which is a major issue. In
the European context, enforcement of judgements is remarkably good (even in Turkey
and Russia). The solution is to refer judgements to the overall supervisory body (CE, OAS,
AU) which must monitor their application – this is a limit to implementation, esp. in Africa (2
or 3 recommendations out of 20 have been implemented fully, at least 25% have been
completely unheard, the State not even submitting a plan to give redress). States must have
collective political resolve for implementation.
15. Torture
Here we’ll redo the entire course looking at only one right...
A. History
Unlike other HR violations, torture was condoned by legal systems for a very long time – in
fact in some cases it was a central part. In Rome, evidence from slaves was only admissible if
obtained under torture. It was very common in the Middle Ages and used to obtain
confessions (investigative process or ‘trial by ordeal’), religious purification, punishment...
This involves a presumption of being guilty, is alien to modern criminal law and HR.
In more recent times, torture is still used in the criminal process (although few States admit
it openly). But it’s also used in security information gathering. Also dictatorial /
authoritarian / totalitarian regimes use it as an end in itself: subjugation, instrument of terror,
deterrent to political activity, etc. It was used as an intimidation tool in the USSR, Nazi
Germany, by the South American juntas, etc.
The English abolished torture in most cases in 1640. The French did it in 1789. Then nothing
happened beyond endogenous developments until the second half of the 20th C. It emerged as
an international issue post-WWII. It’s prohibited in the UDHR and ICCPR. Later more
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specialized instruments were adopted, out of a sense that it was so grave that specialized tools
were needed: UN Declaration Against Torture (1975), UN Convention Against Torture
(1984).
Nov. 20th, 2007
B. Philosophy
Torture affects physical integrity, at the core of many rights. It’s also deliberately or de facto
an attack on dignity (an therefore humanity, HR are grounded partly in dignity). It often has
permanent effects on victims.
It’s an archetypal example of using human beings as means (often information or
confession) rather than ends – interesting application of the Kantian idea.
C. Politics
There is a strong link between torture and authoritarianism, dictatorship and
totalitarianism. Such regimes use torture as a means to discipline the population. It’s a tool
of oppression and which carries with it many other HR violations. Generally, States
committing torture systematically are not complying with HR otherwise.
Situations of war and conflict and situations of discrimination (ethnic, religious minorities, the
disabled, political dissidents, etc.) are conducive to torture. An added factor which has
emerged in the last few years is the “international organization” of torture. Since Operation
Condor (Chile, Argentina, Paraguay and Uruguay joining in the 1970’s to fight leftist
activists), it is known that States have occasionally collaborated to commit torture. This has
recurred in the “war against terror”.
D. Challenges
Structural
Sources: There is a great number of international instruments (universal general instruments
like the ICCPR and Geneva Conventions, universal specialized instruments like the CAT,
regional general instruments like the ECHR, regional specialized instruments like the InterAmerican Convention to Prevent and Punish Torture and the European one) not only saying
that it is an HR violation but also mentioning remedies, etc. There is also much ‘soft law’
(resolutions...). Perhaps this is normative inflation, but it also shows some international will.
Also, the prohibition of torture is generally considered jus cogens and part of customary
international law (which binds all States at least to the substantive obligations and also leads
to universal jurisdiction). Reservations on these instruments are disallowed: Chile tried to do
it by making obeying superior orders a defence – many States protested (incompatible with
object and purpose of treaty) and the Committee Against Torture, when Chile submitted its
first report, said that this was invalid and a violation. Chile withdrew the reservation under
international pressure.
Subjects: Who are they? The usual answer is States. The international CAT (art. 1.1) suggests
this: “consent or acquiescence of a public official or other person acting in an official
capacity”. This has been criticized in the last decade because non-State actors may commit
60
torture (the IACAT has dropped this idea because of its history of guerrillas, etc.). There are
very few cases on this, because the right of individual petition has mostly been recognized by
non-torturing States (with a few middle-of-the-road exceptions: in the 1980’s, 70% of the
petitions came from Uruguay!). 80% of cases have to do with deportation / extradition to
potential torture: G.R.B. v. Sweden (1997, possible maltreatment by Sendero Luminoso in
Peru did not fall under the definition of torture) and Elmi v. Australia (1999, militias
exercising some prerogatives of governments in Somalia fall under the definition).
Territorial reach: Most cases have to do with the obligation not to deport or extradite persons
to a reasonably likelihood torture. This is a manifestation of the “effects theory” which
expands the reach of the CAT. “This is a quintessential transnational problem which involves
more than one State.” But there are competing objectives (the right to deport and extradite) so
the risk of torture must go “beyond mere theory or suspicion” but does not have to be “highly
probable” (Committee Against Torture, General Comment 3).
Relevant factors: In Mutombo v. Switzerland (1994, involved member of the Zaire military
who had been involved in an opposition party who won), it was found that the person had to
be at risk personally; the general record of the State is not conclusive. In Khan v. Canada
(1994, student opponent in Pakistan and professional cricket player) it was found that the fact
torture was brought up late in proceedings did not invalidate the claim.
Domestic reception of IHRL: Specific problem for Canada which sees itself as a dualist
country. There is a sense that this is outdated however. Canadian courts have used IHR
treaties such as the CAT to interpret the Charter and some statutes (see for ex. Suresh).
Substance
Universalism vs. relativism: Arises in a variety of contexts. Some forms of punishment are
prohibited (whipping, cutting of hands which are based on religion – even if validly imposed
by a court with a fair trial), others are not (ex. prison or handcuffing). This gives some
backing to local activists, if nothing else.
Locating torture: Negative rights > Civil rights > Protection of integrity > Freedom against
torture. It’s at the core of IHRL. Especially that it’s an inter-sectional right, at the
confluence of equality, right to life, fair trial and freedom from arbitrary detention.
Definition: There is a strong suggestion that it must be committed by the State and is severe
pain or suffering (physical or mental) potentially for certain purposes. What “severe pain and
suffering” is, i.e. line drawing, has been an issue (generally agreed that graver than inhuman,
cruel or unusual treatment) and international bodies have not been very helpful (fairly
relativist, although this has the benefit of flexibility – there has been evolution in Europe after
the infamous UK v. Ireland (ECHR, 1978, involved IRA members) case, see also Selmouni v.
France (ECHR, 1999, treatment in a Paris police station)). Some things have been
considered torture: beatings, electric shocks, threat with syringe, rape or its threat, standing
for 20 hours, mock amputation, etc.
Detention: Torture generally involves custody, but it goes beyond that. There is a
presumption that any injury incurred in detention has been inflicted by the State. Can prison
conditions themselves constitute torture? See Ribitsch v. Austria (ECHR, 1995) and
Dougoz v. Greece (ECHR, 2001): improper facilities are at least inhuman treatment. The
61
HRC (case vs. Peru) has found that prolonged solitary confinement can constitute torture. The
ECHR has found forced disappearance to be a form of torture (and inhuman treatment for
relatives), destruction of houses are inhuman treatment, deporting of a terminal AIDS patient
to St. Christopher & Nevis (lack of any treatment) from the UK is inhuman treatment.
Intensity: There is an obligation to respect, but is there an obligation to protect? There is
probably an internal obligation to protect (from, for ex., a domestic paramilitary group
committing torture; some feminist scholars have argued lack of protection from domestic
violence is at least inhuman treatment). It’s possible that this extends to protection from other
States on their territory according to Mégret, but mostly targets non-State actors on domestic
territories. Torture is possibly unique in that there can be no exceptions, this right is nonderogeable and has no limitations (see for ex. CAT, art. 2.2). The ECHR has ruled
consistently (Aydin v. Turkey, 1997; Ribitsch v. Austria, 1995; Selmouni v. France, 1999) that
there is no “ticking time bomb” exception.
Enforcement
Domestic implementation: The ultimate goal of IHRL is to get States to comply or provide an
effective remedy. The Committee Against Torture has said the following things are
necessary: prohibiting torture, prohibiting use of unnecessary force, limiting incommunicado
detention, making evidence obtained against torture inadmissible, right against selfincrimination, adopting laws that criminalize torture, administrative monitoring (with
possibility of improvised visits), granting remedies including compensation, education.
Nov. 22nd, 2007
International enforcement: Domestic mechanisms sometimes fail, thus international
supervision, including international political enforcement, international litigation (ex. use of
the US Alien Tort Claims Act, Holocaust litigation...), using bodies with a general HR
mandate (ECHR, IACHR), use of more specialized bodies (UN Rapporteur on torture
(mandate created by the HR Council, they travel and attempt diagnosis, report and dialogue),
Committee against torture (treaty monitoring), which are more general bodies plus two
specific ones: European Committee on the Prevention of Torture (power of unannounced
visits if “serious and consistent allegations”, focused on prevention – States can ask for
reports not to be published (only one case: Turkey in 1992), but this has significant cost), UN
Sub-Committee on Torture (created by the Optional Protocol to the CAT, in which States
commit to creating an internal visiting body and allow unannounced international visits –
latest creation which recently entered into force)). Much of this relies on publicity, although
there are some confidential aspects. Torture has a laboratory quality for IHR enforcement.
There is a relatively unknown UN reparations fund for victims of torture, to which States
donate money (Canada, Scandinavian countries, etc.). Reparation is not based on the
attribution of responsibility. It’s not very successful, but not a bad step either.
16. The Problem of Grave and Systematic Human Rights Violations
A. Defining the problem
Many HR complaints are complex and obscure and often derive from the administrative
State; they may even involve tax law. All in all, relatively minute violations. Inquiries on such
62
matters resemble what would happen in domestic courts. But not all States are committed to
even basic rights.
Refining HR is important, but it’s also important to prevent the “Darfurs of this
world”... It’s easier to do the first thing than the second, but credibility of the system is based
on the ability to avoid large violations. They are related: day to day respect is the best
guarantee against horrendous violations. Historically, the European system was built on the
ruins of the Holocaust.
The Banjul Declaration (art. 58) speaks of “serious or massive violations”, CEDAW and CAT
speak of “systematically practiced”, resolution 1235 of “gross violations” and resolution 1503
of a “consistent pattern”. This language refers to a systematicity vs. gravity debate. More
rigorously, Mégret identifies two axes: serious – ordinary and occasional – systematic.
Authoritarian State
Occasional
States committed to HR
Serious / Gross
(ex. torture)
Ordinary violations
(ex. privacy)
Totalitarian / Genocidal State
Generalized / Systematic
Ex.: Italy and violations of
art. 6 of ECHR (systemic
problem of a 5 year plus
backlog in civil courts)
The perfect storm or unholy trinity for grave HR violations is lack of democracy / rule of
law (difficult to obtain redress), discrimination (apartheid, women under the Taliban) and
war (national emergency used to derogate).
B. Tools
“There is no point in sending the SCC or ECHR to Darfur. They are institutions which work
well in conditions of relative normality.” There are more realistic options:
- Humanitarian intervention, i.e. war. There are pros – may save many people – and
cons – admission of failure, doesn’t remove source and may not be sustainable: ethnic
cleansing was averted in some respect in Bosnia and Kosovo, but there is no end in
sight to international tutelage. This encounters problems of lack of resources, lack of
political will. Convergence of geopolitics and HR may happen... or not (China and
Russia threats of UNSC veto on Darfur or Burma – they argued that the “threat to
international peace and security” could not be entirely domestic).
- Boycotts and other economic sanctions. This is a favourite of the international
community for massive HR violations. This is part of a peaceful build-up (chap. VI of
UN Charter). But there is a functional problem (may not work, very difficult to
enforce, many incentives to cheat) and a targeting problem (may work, but affect
innocent population – very Statist analysis). There has been progress: sanctions
targeted on individuals (freezing of assets, travel bans) or on repression technology
(done for Burma, ex. weapons embargo or preventing training like the infamous
“School of the Americas”).
- The HR Council is supposed to be on the frontline because it is the main UN HR body
and has an overall view. Special procedures (resolutions 1235 and 1503) are based on
the idea of systematic and grave violations. The best it can do is adopt a forcefully
worded resolution (find violation, attribute responsibility). But it’s a political process,
this has rarely happened beyond the union sacrée against the apartheid regime. In the
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-
case of Darfur, a strong 2006 EU resolution didn’t even get to a vote because of lack
of support. The opponents tabled an alternative resolution expressing “concern” and
not attributing responsibility (“Tsunami concept of HR violations, de-subjectified and
with no one in charge.”) which doesn’t pressure the Sudanese government much...
There is some inertia and after a mission on the ground (Sudan refused access, mission
went to Chad and Central Africa – this backfired against Sudan who’s bluff was
called, destroyed the myth of Sudan respecting international obligations), a somewhat
stronger resolution was adopted.
UN Peacekeeping missions. This has some role insofar as war can be a factor in
major HR violations.
Nov. 27th, 2007
-
Criminal prosecutions. This is a rediscovery of the role of criminal law in IHR
enforcement. Historically, HR lawyers saw themselves as anti-repressive and anticriminal law... But in the second half of the 20th C. is was rediscovered that impunity
was encouragement. There is certainly overlap between ICL and IHRL. This is
more recognized today than 15 years ago, when IHR textbooks did not discuss
Nuremberg or Tokyo, which were seen as a product of war. An interesting
phenomenon is the idea of “crimes of State”, which keeps coming back. This is an
idea promoted by the ILC of the UN, that the accused in ICL shouldn’t be only
individuals (see article 19.2 ILC, not adopted in the end). As there is a substantive
movement towards jus cogens and erga omnes norms, the normal regime of
international responsibility should be moved away from for grave violations. These
ideas are now getting their day in court. In Bosnia and Herzegovina v. Serbia and
Montenegro, Bosnia alleged violation by Yugoslavia of the erga omnes obligations of
the Genocide Convention. Was this an ordinary violation of PIL or a crime? The ICJ
decided earlier this year that they were “not of a criminal nature”. Simultaneously, the
IACHR has been reviving the idea: Plan de Sanchez Massacre v. Guatemala (2004),
Moiwana Community v. Suriname. Its leading Brazilian judge (Trinidad) has argued
over and over again for more than ‘civil’ liability. The judges are far from unanimous,
but there are 8 or 9 cases typically involving massacres. “Moving beyond State
responsibility to an upper tier for HR violations, crimes of State, makes intuitive
sense. But what would be the penalty? That’s the question... So far, punishment has
been disguised as compensation.” IHRL has also legitimized criminal repression of
HR violations (Velasquez Rodriguez v. Honduras, IACHR). It has also been used to
nullify amnesty laws, adopted notably in Latin America (UN HRC Comments on
Argentina of 1995, 2001 case against Peru at the IACHR) and Sierra Leone. There is
a deep affinity between international crimes and IHR, ex.: murder – right to life;
enslavement – right to freedom; institutionalized discrimination – right to
freedom from discrimination. All components of crimes against humanity violate a
corresponding right in IHR. Note however that it is rare that HR violations are
sufficiently grave to lead to individual criminal responsibility. “There is no
international crime of HR violation.”
17. Terrorism and Human Rights
Terrorism is an old problem: the League of Nations worried about it! The international
community traditionally favoured criminal repression, i.e. “fighting terrorism”. IHRL is not a
64
priori against this, to the contrary the State has a basic responsibility of protecting public
order. But the problem is that in trying to do this, States often end up violating IHR.
A. The effects of 9/11
It’s only post 9/11 that it’s been realized that terrorism was a major threat to HR. Until
the end of the Cold War, States disagreed on what constituted terrorism. 9/11 brought a
qualitative change: States became more united in their resolve to fight terrorism. Some States
which were usually backers of civil and political rights turned their backs to these principals
to some extent. Others have been further encouraged to violate HR in the name of the fight
against terrorism.
In the last 5 years, there has been a swell of normative activity both domestically and
internationally. It’s taken time for the international community to grasp the issue, given how
great the challenge was. The UN Special Rapporteur on HR and Terrorism has written that
both terrorist acts and State methods are HR violations...
B. Three problems of human rights and terrorism
The first problem is defining terrorism. This is not directly an IHR problem, but has
repercussions. A 1972 UNGA resolution uses very ambivalent language... Should one focus
on acts, result, intention, actors? Yet, there is no comprehensive general definition. Causing
fear is one aspect. But there also has to be some act of violence. Typically, innocent civilians
are targeted. It also has an ideological/political agenda. Some elements are debated: Can
States or only non-State actors commit terrorism? Are attacks on State agents terrorism?
The second problem is the impact of terrorism on HR: can non-State actors commit HR
violations? Do terrorists violate HR? A Human Rights Watch report of late 2001 makes this
connection: “The September 11 attacks were a crime against humanity that flouted the
fundamental values of international human rights and humanitarian law.” This is a strange
mix of ideas and shows are more general rush to over-characterize in the field. Typically, nonState actors are not seen as subjects of IHRL, even if they affect HR. This type of analysis
quickly receded. More pragmatically, there is a desire to make some actors more responsible,
such as MNCs. But does this shift attention and responsibility from the States which have
primary obligations?
Third, the biggest problem is whether the fight against terrorism is respecting HR.
States’ response to terrorism has been very broad:
- Legislative reform.
- Targeting of populations and discrimination.
- Breaches of due process (within trials or carrément administrative detention with no
trial on the basis of suspicion rather than guilt à la Bastille).
- Arbitrary deportation and refoulement (pressure to deport people to potential torture,
see for ex. Suresh).
- Opportunistic repression of dissent (Amnesty International has shown that terrorism
often provides a brilliant excuse for HR violations, see for ex. Charkaoui).
- Restrictions to immigration.
- Support of repressive regimes.
- Circumvention of international legal standards.
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“Beware of the false dichotomy between IHR and measures against terrorism.
Conventions allow derogation for emergencies and many rights have limitations which
include national security and public order. IHR is not just about trumps, but a system of
tradeoffs between rights and State priorities.”
C. Restraints to State responses
IHR has to bow to reality to some extent, but also fires back with another normative arsenal.
The fight against terrorism can’t be used as a trump to make the exception into the
norm and nullifying all HR guarantees. The theory is that all HR continue to apply in cases
of terrorism (see IAC Against Terrorism, UNSC resolution 1456 (2003), Godinez Cruz case
(IACHR, 1989). IHR already allows the States to do so much that States can hardly argue that
they are a straightjacket. “IHR has already taken into account the exceptional. It’s not merely
a system for ‘normal’ times.”
Various IHR instruments detail what is a national emergency and which rights may be
derogated from. In Lawless v. Ireland, the ECHR found that Ireland had validly declared a
national emergency over IRA activity. The court took several things into account: extent of
terrorist activity, attempt to use other means... The key finding there was that a national
emergency had to “threaten the life of the nation”. Post 9/11, States have tried to adopt
measures without declaring a state of national emergency. Only one State decided to play by
the book, the UK and attempted to justify its Anti-Terrorism Act on that basis.
Nov. 29th, 2007
Terrorism is a temptation for States to derogate from the norm. HR doesn’t present itself
simply as an impediment, it has inbuilt flexibility. States may declare a national
emergency, but this is framed by IHRL. When the ICCPR was adopted, an inter-State war
was envisaged, but a major terrorist threat could fall under the definition. After Lawless, this
question came back in A(FC) and others (FC) v. Secretary of State for the Home Department
(2004). The UK proclaimed a national emergency, individuals claimed that they had been
detained in violation of the Human Rights Act (implementing the ECHR). They claimed not
only lack of proportionality (etc.) but also attacked the validity of the proclamation of national
emergency. This is problematic for judges: political decision in a situation of uncertainty, lack
of information, separation of powers. But there is a danger in relinquishing all jurisdictional
control: would make this into the biggest loophole ever (“You want to restrain States at times
when in matters most.”). The HL was not intimidated by the government in A(FC) and feared
that the threat was amorphous and could last for a very long time (state of permanent
exception). It recognized that the declaration itself was political but that the measures were
disproportionate. This forced the UK to amend the anti-terrorism legislation, as is currently
being done in Canada post-Charkaoui.
D. Rights-specific approach
The other route for States, instead of national emergency, is to take “little bites” at
various rights: life, personal liberty and security, humane treatment, due process, freedom of
expression, non-discrimination...
One ex. is the right to life is non-derogeable, but not absolute, assuming it’s taken away by
use of force which is necessary and proportional (ex. legitimate police action). States have
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attempted to stretch such definitions (case of the Brazilian man shot in the London
Underground) – idea of pre-emptive self-defence also debated in PIL. The ECHR has said
that deprivation of life must be “absolutely necessary”. There is a string of cases out of
Turkey at the ECHR: Ogur v. Turkey, Gülec v. Turkey (1998: using machine guns to disperse
a crowd is disproportionate), Gül v. Turkey. There is also one case at the ACHR against
Malawi. The most famous case is perhaps McCann, Farrell and Savage v. UK (1995) when
three IRA militants were shot by the SAS when it was feared they would detonate a bomb
seconds before being arrested in Gibraltar. The ECHR found that there is a precautionary
planning obligation and the risk of loss of life must be minimized: good faith belief by the
immediate actors is not really enough (even though no one claimed it was a disguised
execution here), there can be liability for bungled intelligence gathering.
18. Trade, HIV and Human Rights
This is the emergence of new HR issues. The paradigm of IHR is control of domestic HR
implementation by States. This picture may have worked well 50 years ago, but it’s quite
limited. It doesn’t take into account inter-State circulation (ex. migrant workers) or
inter-State interaction. Also, the global has an effect of local HR enjoyment. One ex. is the
environment, which is not fully controlled by anyone (but may affect HR), world economic
architecture (WB, IMF, global markets and of course the GATT/WTO). HR lawyers don’t
like this claim that “no one is responsible”.
The idea of free trade is a pillar of the post-WWII world. Many arguments are made in favour
of free trade, from increased wealth to lower occurrence of war. But the operation of free
trade creates externalities and has impacts on IHR State obligations. One temptation is to
think in terms of independent policy channels.
A. The links between the three phenomena
How does one relate trade, HR and HIV? It wasn’t immediately obvious how these things
were related. Trade affects HIV to the extent that IP protection has been added to international
trade law. IP may facilitate trade by stimulating creativity.
What’s the relationship between HR and HIV or tuberculosis or cancer? Otherwise said, what
does it add to adopt a HR discourse? HIV is partly a medical issue, but it’s also a social
issue of power and thus very quickly an HR issue. This is the problem of access to drugs,
which may be curtailed discriminatorily. Three more general linkages:
- HR violations make individuals more vulnerable to HIV.
- HR violations worsen the prospects of those infected by HIV.
- HR violations reduce the impact of efforts at fighting HIV.
Once trade and HR are linked to HIV, then there is some link between HR and trade. “This is
a big discovery of IHRL in the last 15 years.” A major peg is the right to health (see art. 12
ICESR), but it’s not the only one. This is not simply a health problem and about charity, but
about dignity and entitlement. This creates a symbolically strong way to move out of politics
and ‘standard’ policy debates.
HR bodies have done some work to characterize the HIV pandemic as an HR issue. For a long
time, States did nothing because it was seen as a disease of homosexuals and drug addicts.
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B. International instruments
The main agreement in the area is the TRIPS agreement, which was added to the GATT
framework. It is couched in ambiguous terms, because Third World countries realized that
there would be large costs attached to these high standards, both because of enforcement costs
and the costs of access to IP.
Prima facie, this does not affect HR. But when the IP in question is life-saving drugs, their
price is hugely increased (production costs practically nothing, most of the price is IP and
research costs) with HR effects. Ironically, increasing prices would kill the market...
Arts. 7 and 8 of TRIPS suggest some measure of ambiguity and thus flexibility:
protection “in a manner conducive to social and economic welfare”, etc. Many questions
arise, one of which is hierarchy of norms: ICESR or TRIPS? Can IHR be a counter-weight?
TRIPS allows for a possibility of compulsory licensing in cases of national emergency or
major national concerns such as public health. Basically, States may licence an internal
producer of a generic version of the drugs. Few States, such as Zambia, have done this, but
they are the exception. When major States like Brazil and South Africa attempted to do this,
they came under massive pressure by western pharmaceutical companies.
C. Some sort of resolution?
Bullying got so bad that Third World States lobbied very hard as part of the Doha Round to
get Western States to agree to an interpretative declaration on TRIPS saying that public
health protection was a legitimate goal within TRIPS. Yet, compulsory licensing hasn’t
really progressed...
Dec. 4th, 2007
19. Critiques of Human Rights
There are many critiques of HR. To some extent, they are marginal. The international HR
has never been stronger historically than since the end of the Cold War. This
phenomenon of vent en poupe for HR has lead to reformulation and creation of new critiques.
Some critiques of IHRL are variants of long standing of ‘domestic critiques’:
- HR are overly individualistic.
- Democratic deficit – too much technocratic power.
Other critiques specific to the international arena. First and foremost, it is often said that HR
are western-centered, potentially imperialistic and colonial (“Perhaps the core critique.”).
A. Critique vs. criticism
Critique and criticism should be distinguished. This linguistic distinction does not exist in
French... Sometimes, critique will refer to a more intellectual version of criticism. But mainly,
to criticize is to suggest a problem that can be righted whereas to critique is to attack the core
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idea of HR (something intrinsically wrong rather than contingently wrong). Criticism is from
within a tradition (ex. “too much emphasis on civil and political right relative to economic
and social rights”, “lack of enforcement”), critique is from without (“we should be opting for
something completely different, like a Westphalian system”).
A lot of critique ends up morphing into criticism. Ambiguity is common. Kennedy’s article is
perhaps the most brilliant critique in a decade, yet Kennedy is also sympathetic and acting as
a benevolent advisor, which is closer to criticism. The critique is more of a threat.
B. Common critiques of human rights
One critique is the power of HR. Historically, HR were the underdog. Little by little, HR have
become very successful for a variety of reasons, to the point of becoming powerful and even
dominant. It was harder to critique struggles against totalitarianism. Power and HR mix in
interesting ways and accountability becomes an issue.
HR also excludes other types of discourses, they are invasive and hegemonic (very strong
and perhaps unique ontological claim and very broad thematic reach). Perhaps this is a bad
thing: crowding out effect. If one listens to some HR lawyers, every single issue may be
framed in terms of HR. This is linked to a critique as to the universality of HR. Are they about
universalizing a specific (say, Western) experience and view of the world. Internationalization
is about reformulation and challenge of internally settled issue.
There is a tension between permanence and universality of HR and the fact they are
extremely plastic. The content of IHR in their very short history has already changed
drastically: from civil and political to economic and social rights, from individuals to groups.
The Enlightenment proclaimed equality of all (white male property owning) individuals. HR
has emancipated itself somewhat from that vision, but maybe the problem is deeper: some
argue the concept of rights is tied up in very specific ideas of what being an individual entails.
HR are forever-changing and rejuvenating, with no end in sight: while CEDAW was still
mostly about equal rights with men, more recent instruments have a focus on additional
rights (or different ones) for children, the disabled or indigenous people... Mégret says
this is a very interesting and progressive phenomenon, but there is a risk of ‘rights separatism’
and losing sight of the common trunk of HR, possibly the best guarantee in the long run.
IHR have historically been very good at absorbing and incorporating criticism and critique.
It’s to HR’s credit, but this tendency of “we can do that too” does not allow transcending
some biases. This is infuriating to radical critiques, which have to operate at a very high level
to retain some traction. “HR don’t make it easy to build a sustainable critique.”
C. Laundry list of critiques
Realist, conservative: The Burkes of the world are still the main opponents of HR. This is
not a very strong discourse in the West today, but still comes up when HR fundamentally
challenges hierarchies of power and status-based entitlements. The conservative criticism is
often framed in the language of cultural and identitaire specificity. The realist critique is very
common internationally: doesn’t work in a world of States, makes things worse, selfrighteous, States should mind their own business...
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Nationalist, communitarian, cultural relativist: Overlaps with the above to some extent.
But it goes further. Some extremists or fascists believe that volk or blood are more important
to the ‘good life’ – there are many sophisticated versions of this (ex. forms of neo-apartheid).
The more moderate version of this is that individual experiences are emphasized relative to
common ones which are characteristic of humans’ lives. Cultural relativism says that HR
epistemology is wrong in a world were all truths are culturally produced (Mégret says
Ignatieff has countered this with an effective pragmatic argument – existence need not be
proved, only the wish to avoid human catastrophes). A more moderate version brings up the
problem of translation in local language (“good side of this argument, more helpful than selfvalidation of Lee Kuan Yew”).
Feminist: Huge in terms of scholarship, there are feminist critiques of both HR and PIL. It
has come in various guises. The first generation had to do with the fact that certain rights (ex.
freedom of religion, of expression) were used to discriminate against women. A second
critique is the formalism of HR, esp. in the area of equality, which may reproduce economic
and social biases and substantial inequality. A deeper critique is the idea that Western HR are
andro-centric, adversarial and excluding the private sphere (see Carol Gilligan’s work: State
torture for males, domestic violence for females – see Ms. A.T. v. Hungary, CEDAW, 2005
which was the first individual petition heard by the CEDAW and had to do with the duty to
protect her from domestic violence and in which the public and private sphere were collapsed
and liability found).
Anti-colonial, post-colonial, anti-imperialistic: HR enthusiasts until WWII were often also
enthusiastic colonizers (white man’s burden, civilizing mission). This colonial past is still
resurfacing occasionally, although HR have also used by the colonized to attain selfdetermination.
Anti-formalist, anti-liberal, anti-individualistic: Idea that HR focus too much on the
individual and don’t focus sufficiently on structural concerns.
Marxist, leftist, Foucauldian: Not as prevalent as it once was, although Foucauldian
critiques have revived this tradition somewhat (see Kennedy’s article). HR is a technocratic
language of disciplining and of channelling of emancipatory desires. This is politics under a
different name, promoting a certain ‘good world’ under the guise of neutrality.
Post-modern, foundational, pragmatic: No time...
“Whether we like it or not, HR are there. The challenge is that HR enthusiasm does not
relieve from political responsibility and accountability. It’s possible to be a sceptical believer
and understand trade-offs.” - Mégret