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Against a World Court for Human Rights

  • Philip Alston
Extract

Too much of the debate about how respect for human rights can be advanced on a global basis currently revolves around crisis situations involving so-called mass atrocity crimes and the possibility of addressing abuse through the use of military force. This preoccupation, as understandable as it is, serves to mask much harder questions of how to deal with what might be termed silent and continuous atrocities, such as gross forms of gender or ethnic discrimination or systemic police violence, in ways that are achievable, effective, and sustainable. This more prosaic but ultimately more important quest is often left to, or perhaps expropriated by, international lawyers. Where the politician often finds solace in the deployment of military force, the international lawyer turns instinctively to the creation of a new mechanism of some sort. Those of modest inclination might opt for a committee or perhaps an inquiry procedure. The more ambitious, however, might advocate the establishment of a whole new court. And surely the most “visionary” of such proposals is one calling for the creation of a World Court of Human Rights. A version of this idea was put forward in the 1940s, but garnered no support. The idea has now been revived, in great detail, and with untrammeled ambition, under the auspices of an eminent group of international human rights law specialists.

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NOTES

1 Protecting Dignity: An Agenda for Human Rights, 2011 Report, (hereinafter Protecting Dignity), Conclusions and Recommendations, p. 40, paras. 110–111, www.udhr60.ch/docs/Panel-humanDignity_rapport2011.pdf.

2 The full Panel consists of Mary Robinson, Hina Jilani, Theodor Meron, Vitit Muntarbhorn, Paulo Sérgio Pinheiro, Pregs Govender, Saad Eddin Ibrahim, and Manfred Nowak. Former Deputy High Commissioner for Human Rights Bertrand Ramcharan also participated in the project and fully endorsed the proposed statute. The panel emerged from a Swiss Government-sponsored panel, supported by the Governments of Norway, Austria, and Brazil, to mark the sixtieth anniversary of the Universal Declaration of Human Rights in 2008. In its subsequent work, the Panel endorsed four major initiatives: (1) a World Court of Human Rights; (2) legal empowerment and access to justice; (3) new forms of protection for those in detention; and (4) the need for climate justice in response to the impacts of climate change on human rights.

3 Parliamentary Assembly of the Council of Europe, “Accountability of International Institutions for Human Rights Violations,” Doc. AS/Jur (2013) 17, May 10, 2013, para. 38.

4 See, generally, Julia Kozma, Manfred Nowak, and Martin Scheinin, A World Court of Human Rights: Consolidated Statute and Commentary (May 2010). Kirkpatrick, Jesse, “A Modest Proposal: A Global Court of Human Rights,” Journal of Human Rights (forthcoming 2014) examines recent proposals and puts forward a suggestion for a “Global Court of Human Rights.” For literature discussing precursor drafts to the 2011 proposal, see Nowak, Manfred, “It's Time for a World Court of Human Rights,” in Bassiouni, M. Cherif and Schabas, William, eds., New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? (Antwerp: Intersentia, 2011), p. 17; and Ulfstein, Geir, “Do We Need a World Court of Human Rights?” in Engdahl, Ola and Wrange, Pål, eds., Law at War: The Law as it Was and the Law as it Should Be (Leiden: Martinus Nijhoff, 2008), p. 261. See also Conclusion: Towards a World Court of Human Rights,” in Ssenyonjo, Manisuli, Economic, Social and Cultural Rights in International Law (Oxford: Hart, 2009), p. 401.

5 Protecting Dignity (see no. 1 above), p. 40, para. 112.

6 An earlier proposal for such a court acknowledged that the vision was a “somewhat Eurocentric” one and envisaged the gradual assimilation of other regional systems “on the European standard.” Trechsel, Stefan, “A World Court for Human Rights?” Northwestern Journal of International Human Rights 1, no. 1 (2004), scholarlycommons.law.northwestern.edu/njihr/vol1/iss1/3.

7 Ibid., para. 70.

8 As the first president of the International Criminal Tribunal for the former Yugoslavia, his Tadic judgment transformed the field, and as the first president of the Special Tribunal for Lebanon his approach was not exactly modest or constrained.

9 Cassese, Antonio, “A Plea for a Global Community Grounded in a Core of Human Rights,” in Cassese, ed., Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012), p. 136, at p. 141.

10 Nowak, “It's Time for a World Court of Human Rights,” in New Challenges for the UN Human Rights Machinery, p. 17, at p. 29.

11 Protecting Dignity, WCHR Statute, Art. 14(3), p. 50.

12 Ibid., Art. 40(2), p. 56.

13 Although the drafters of the statute actually indicate that they discarded a range of even more ambitious proposals in the interests of realism.

14 Protecting Dignity, Commentary on the Draft Statute, p. 66.

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Ethics & International Affairs
  • ISSN: 0892-6794
  • EISSN: 1747-7093
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