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 2 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 3 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 4 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. 5 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. 6 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. 7 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: - 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 8 this and has to strive for something else. HR governs relations between State and citizens, partly in opposition to the machiavelian tradition. - 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. 9 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. 10 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 - - - - - 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 11 - - - - 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 12 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 - 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: 15 - - 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. 16 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, 17 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 18 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). 19 - - 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, 20 but there should be some according to Mégret. Also outright activism may reduce the chances of States joining HR protection schemes. Sept. 25th, 2007 - - - 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 21 - 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 22 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. 23 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. 25 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 26 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. 30 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: 34 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... 35 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. 36 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. 40 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. 44 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). 56 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 57 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. 58 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 59 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 63 - 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. 65 “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 66 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. 67 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 68 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... 69 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