Towards an International Court of Human Rights?
Since the adoption of the UDHR1 six decades ago, a remarkable global human rights infrastructure has been put in place. What started as a ‘common standard of achievement for all peoples and all nations’2 is now transformed into a complex web of institutions tasked with promoting and protecting human rights and preventing human rights violations. The remit and mode of operation of these institutions differ, as do their legal basis, composition and impact. Their sustained growth and development, indeed their sheer existence in the absence of any overarching master plan, remains an intriguing feature of an international legal order which rests firmly on state sovereignty, yet keeps creating and entrusting such institutions with the very mandate to intrude into that sovereignty.
The one institution which is, however, conspicuously absent in this assemblage of human rights bodies is a World Court with the mandate to adjudicate human rights on a global scale. While human rights courts have been created in Europe, the Americas and Africa,3 no such court exists as part of the United Nations (UN) human rights system. Unlike in the area of genocide, war crimes and crimes against humanity, no coalition in support of such a court has ever formed and no like-minded group of states has stepped forward to push for the creation of such an institution. In a way, this seems easily explicable, self-evident even: what more of a utopian idea could one float than setting up an independent world court to adjudicate on the whole range of human rights and with respect to all states, given their insistence on sovereignty, their reluctance to accept even less demanding supervisory procedures, the multitude of cases such a court would have to hear, and the deep divisions in the international community over many fundamental principles of human rights in spite of the rhetoric of their universality? This may well explain the near complete silence on even the idea of such a court for the past six decades, not only in governmental circles and human rights non-governmental organizations (NGOs), but also in academia.
On the other hand, such a court is like the proverbial elephant in the room: while we hush up its mere possibility, we carry in us a steadfast conception that, where injustice is done and all else fails, it is in the authoritative words of a judge that we hope to find justice, be it on the national or international level. While we dismiss the idea of an international human rights court as utopian, we praise, at the same time, regional human rights courts as the crown jewels of human rights protection, and we consider the way in which the international legal order has relied ever since on dispute settlement through judicial procedures (from arbitration panels to the International Court of Justice (ICJ)) in many fields of the law as perfectly normal.
This chapter seeks to break this silence of the past decades and question the assumption that such a world court for human rights would be utopian at best and detrimental at worst. It explores the potential of and pitfalls in creating such an institution, asks whether its establishment would be a desirable goal, and sketches the contours of such a court. The time to begin a debate on an international court of human rights seems to have come: with some important steps in the UN reform process taken (such as the replacement of the Commission on Human Rights by the Human Rights Council) and the International Criminal Court (ICC) having commenced its work since the Rome Statute came into force in July 2002,4 there seems a space to reflect on the future global human rights infrastructure in a more visionary and long-term manner. In December 2008, a Panel of Eminent Persons, convened by Switzerland, used the 60th anniversary of the UDHR to do precisely that, and the proposal for an international human rights court is part of the ‘Agenda for Human Rights’ which came out of their deliberations.5
2. 1945: Proposals for a Comprehensive Infrastructure
In the years after 1945, the visions for a new world included, quite boldly, a fairly holistic, universal and robust human rights infrastructure with interlinking institutions, but the respective ideas evaporated all too soon. The human rights mandate of the UN, as contained in the UN Charter (‘promoting and encouraging respect for human rights and for fundamental freedoms for all’6) was to be realized through the adoption of standards and by setting up a number of specific institutions. The only such body which eventually found its way into the Charter was the Commission on Human Rights,7 set up by the Economic and Social Council (ECOSOC) in 1946.8 The mandate, functions and composition of the commission were decided after lengthy debates,9 but the idea put forward by Eleanor Roosevelt (who was so influential in setting up this body) to allow the commission to assist the UN Security Council in deciding when a human rights violation amounted to a breach of or threat to the peace was not acceptable to the UN member states then, so that early attempt at an institutional link between security and human rights in the UN was thwarted.10
Likewise, the creation of a High Commissioner for Human Rights, as proposed by Uruguay and Costa Rica in 1950,11 did not find support and could only be realized later at the Vienna World Conference on Human Rights in 1993. An international criminal tribunal to prosecute international crimes was set up in a more specific form when the drafters of the 1948 UN Genocide Convention12 inserted Article VI on such a tribunal for the crime of genocide.13 Such a body, however, remained a legal fiction for half a century until the ICC was established in 1998.
Finally, an International Court of Human Rights was proposed by Australia in 1947 to complement the Commission on Human Rights, the Criminal Tribunal, and the High Commissioner for Human Rights.14 Had all these proposals been realized, a comprehensive and mutually reinforcing structure would have been set up, with the commission setting standards as well as alerting the UN Security Council on human rights violations, the High Commissioner promoting human rights and coordinating UN initiatives, a Criminal Tribunal punishing individual perpetrators of not only genocide but also other crimes against humanity, and an International Court of Human Rights specifically for adjudication of human rights violations. With the exception of the commission’s standard-setting activities, which eventually resulted in the adoption of the UDHR in 1948 and subsequent treaties, none of this could be realized for many decades to come.
3. The International Court of Justice (ICJ)
The ICJ was established in 1945 as the UN’s principal judicial organ and as such was never meant to hear human rights cases. While, in principle, the court’s mandate covers human rights law, its role in human rights litigation is restricted in many ways, as only states have access to the court, while individuals, judicial persons and non-governmental organizations cannot address it. The ICJ has no special mandate to adjudicate claims on human rights violations, and it deals with individual rights only to the extent that they are implicated in an inter-state dispute brought before it by states or in a requested advisory opinion, a function which pertains only to the other principal organs of the UN, most importantly the General Assembly and the Security Council.
The ICJ has nevertheless taken some decisions on human rights in both its adjudicatory and advisory capacities.15 Out of the 144 cases the court has been confronted with,16 human rights concerns figured in a rather limited range of these cases. While the court’s predecessor, the Permanent Court of International Justice (1921–45) had to deal with the rights of minorities (very much in line with the predominant interwar concern with national minorities rather than individual rights),17 the ICJ could draw on a greater range of human rights provisions, but did so cautiously. In some areas, it referred directly to fundamental rights, as in the South West Africa case18 of 1971, where it found the introduction of apartheid in what today is Namibia a denial of fundamental human rights,19 and in the case of Bosnia and Herzegovina v Yugoslavia20 (Serbia and Montenegro) of 2007, where it found the latter responsible for breaches of the Genocide Convention, but not liable for committing genocide.21 In its advisory opinion of 2004 on the legal consequences of the construction of a wall in the Occupied Palestinian Territory, the court invoked specific provisions of human rights treaties and found that the wall erected by Israel violates, inter alia, the liberty of movement as guaranteed under the International Covenant on Civil and Political Rights (ICCPR)22 and the right to work, health, education and an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights (ICESCR)23 and in the Convention on the Rights of the Child (CRC).24
Other than that, human rights have never taken centre-stage before the ICJ but were seen as being folded into issues such as diplomatic protection, armed conflict, interpretation of treaty law, and immunity25 Only in adopting interim measures (in a string of death penalty cases in the USA, where the court asked the government to stay executions until the court could take a final decision) has the ICJ ever attempted directly to protect human rights.26 The utmost the court did was to ‘fix the coordinates for any discussion on the relevance of human rights’27 in some of its decisions. It may have successfully used human rights law to develop international law but has not used international law to promote human rights. It cannot, and (given its importance as the UN’s principal judicial organ) should not, stand in for an international human rights court.
4. Regional Human Rights Courts
In three regions of the world, human rights courts have been set up.28 The European Court of Human Rights (ECtHR) was set up in 1959 pursuant to the European Convention on Human Rights (ECHR)29 and delivers binding judgements on the ECHR. In 1979, the Inter-American Court of Human Rights (IACtHR) was created under the Inter-American Convention on Human Rights so as to issue binding judgements and advisory opinions for the inter-American human rights system. While, in the African region, earlier attempts (in 1961) to set up a court as part of an envisaged African human rights convention had failed,30 a protocol to the African Charter on Human and People’s Rights on the establishment of a court was adopted in 1998.31 The protocol entered into force in 2004. However, the court – 15 years after the process was initiated to establish such a tribunal – has not yet delivered any judgement, and is still to finalize its operational documents such as the rules of procedure. A new treaty – Protocol on the Statute of the African Court of Justice and Human Rights – is creating a new court (the African Court of Justice and Human Rights) because of a decision of the African Union Summit in 2008 to merge the court with the newly established African Court of Justice.32 As soon as this treaty enters into force, the current court will be transformed, and will have to find its feet again. Until such a merger takes place, the African Court of Human and Peoples’ Rights (ACtHPR) will continue to function at its seat in Arusha, Tanzania.33 As one commentator has noted, the creation of an integrated regional African court has several advantages in the African context:
First, it will avoid the splitting of resources towards maintaining two courts. Secondly, an integrated court will result in simplicity and is an antidote to the ongoing proliferation of regional institutions. Thirdly, it will assist in concentrating efforts, energy and focus on one institution rather than two. Finally, an integrated regional court will offer the opportunity to develop unified and cohesive human rights jurisprudence for Africa.34
The rationale for establishing regional courts was to move forward with the effective enforcement of human rights in line with regional needs, experiences and legal traditions. These courts forcefully demonstrate that international human rights jurisdiction is not a utopian concept. Altogether, 94 European, American and African states (as of October 2009) have submitted themselves to the jurisdiction of their respective regional human rights court.35 While the existence of these courts and (as for the European and Inter-American system) their successful handling of a great number of cases make questionable the added value of yet another international human rights court, these same facts, together with decades of legal and practical lessons learned on adjudicating human rights, can also be used as arguments in favour of replicating this exercise on the universal level.
5. 1993 and Beyond
In the years after the Vienna World Conference on Human Rights in 1993, all the proposals made in the years after 1945 to create a comprehensive human rights infrastructure could finally be realized, with the exception of an international human rights court. The UN High Commissioner for Human Rights now acts as the focal point for the UN’s human rights activities; the ICC can deliver judgements on genocide, war crimes and crimes against humanity; and the UN Security Council (although not formally linked to the human rights system as suggested in 1945) has become more sensitive to human rights matters than the drafters of the charter would perhaps have imagined. The idea to establish an international court of human rights was once more floated around the time of the World Conference,36 but whatever (little) enthusiasm there may have been vanished in the years after, not least because of the anticipation which the imminent establishment of the ICC generated.
The international human rights court remains the missing piece of the 1945 blueprint, and the potential duties of the court to monitor states’ compliance with human rights obligations continue to be carried out by the UN treaty bodies and the UN Human Rights Council. Yet, neither the state reporting, inter-state and individual complaints procedure of the treaty bodies nor the complaints procedures, special procedures, and the newly created Universal Periodic Review of the Council can deliver results as a judicial procedure before an international court would.
The ICC (with its statute having attracted 110 ratifications as of July 2009) does not remedy this situation, either. Yes, there is strong emphasis on human rights violations as part of international crimes in the ICC statute, just as there was in the statutes of its precursors, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. Indeed, commentators have pointed out that the focus of these two institutions is on ‘human rights crimes’.37