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Towards a World Court of Human Rights

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World Court of Human Rights ... act or omission is attributable to a State or Entity for the purposes of establishing whether it committed a human rights violation. – PowerPoint PPT presentation

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Title: Towards a World Court of Human Rights


1
Towards a World Court of Human Rights
  • Professor Martin Scheinin, EUI
  • Turku/Åbo, 17 August 2011

2
Context The Swiss Initiative UDHR 60
  • HUMAN DIGNITY
  • PREVENTION
  • DETENTION
  • MIGRATION
  • STATELESSNESS
  • RIGHT TO HEALTH
  • CLIMATE CHANGE
  • A WORLD HUMAN RIGHTS COURT
  • The Agenda http//www.udhr60.ch
  • Two versions of a Draft Statute as of June 2009

3
Earlier proposals
  • UN Charter 1945 notion of human rights
  • Plan for an International Bill of Rights
    Declaration Covenant Court. UDHR 1948 as the
    first step.
  • UDHR was split into ICCPR and ICESCR and the
    inclusion of a right of complaint into the ICCPR
    was narrowly defeated in 1952. -gt Separate
    ICCPR-OP
  • Australian proposal 10 May 1948 Statute of a
    Court
  • Art 18 Cases by 1. states parties to the
    Statute, and nationals of the same states, 2.
    other states and their nationals in accordance
    with rules to be adopted by ECOSOC
  • Binding decisions but also advisory opinions
  • Subsidiary role for the Commission on Human
    Rights (initiation, investigation, report,
    delegated powers of the Court, including to reach
    settlement
  • Art 21 on Applicable Law follows ICJ Statute art
    38

4
Earlier proposals (2)
  • Meanwhile, Uruguayan proposal of a High
    Commissioner for Human Rights
  • With an Attorney General function to initiate
    cases (before the Court or the Human Rights
    Committee)
  • Vienna World Conference of Human Rights in 1993
  • Hersch Lauterpacht 1950, International Human
    Rights
  • Proposed amending art. 34 of the Statute of the
    International Court of Justice to allow cases by
    individuals
  • Luis Kutner and the Oatis case in Czechoslovakia
    1952
  • Detention of US journalist William Oatis for
    spying
  • Submitted a writ of habeas corpus to the
    Commission on HR
  • United Nations Writ of Habeas Corpus and
    International Court of Human Rights (Tulane Law
    Review 1954)
  • The detaining state must deliver the person to
    the UN, irrespective of whether in the territory
    or not

5
Challenges facing human rights law
  • Ineffectiveness of the system
  • Lack of resources for the treaty bodies
  • Absence of legally binding powers
  • Weakness of political enforcement
  • Unilateral exceptions by states
  • State-centred nature of monitoring
  • Fragmentation (compartmentalization)
  • Reasons why a UN-level World Court of Human
    Rights is needed

6
Challenges facing human rights law
  • Ineffectiveness of the system
  • Unilateral exceptions by states
  • Derogations, reservations, withdrawal
  • Denial of applicability of HR, in time or space
  • State-centred nature of monitoring
  • Fragmentation (compartmentalization)
  • Reasons why a UN-level World Court of Human
    Rights is needed

7
Challenges facing human rights law
  • Ineffectiveness of the system
  • Unilateral exceptions by states
  • State-centred nature of monitoring
  • International organizations, including the UN
    itself, escape accountability
  • No mechanisms for private actors, such as
    corporations or religious communities
  • Fragmentation (compartmentalization)
  • Reasons why a UN-level World Court of Human
    Rights is needed

8
Challenges facing human rights law
  • Ineffectiveness of the system
  • Unilateral exceptions by states
  • State-centred nature of monitoring
  • Fragmentation (compartmentalization)
  • Internal consistency of human rights law
  • Legitimacy/authority of human rights bodies
  • Reasons why a UN-level World Court of Human
    Rights is needed

9
Challenges facing human rights law
  • Ineffectiveness of the system
  • Unilateral exceptions by states
  • State-centred nature of monitoring
  • Fragmentation (compartmentalization)
  • Reasons why a UN-level World Court of Human
    Rights is needed
  • A panacea!

10
Universality of Human Rights
  • The UN was far from universal in 1945-48
  • Nevertheless, voluntary acceptance by states of
    human rights treaties has become universal
  • http//www.rwi.lu.se/tm/ThemeMaps.html
  • Every state is a party to at least two of the
    major UN human rights treaties (usually CRC as
    one of them)
  • Also with the 1996 Covenants, ratification
    numbers are at 85 of all states
  • Implementation gap remains
  • Regional HR courts Europe, Americas, Africa

11
RWI Theme Maps
12
Statute of the World Court Article 1
  • Kozma Nowak Scheinin, May 2010
  • A World Court of Human Rights (the Court) is
    hereby established. It shall be a permanent
    institution and shall have the power to decide in
    a final and binding manner on all complaints
    about alleged human rights violations brought
    before it in accordance with this Statute.

13
Article 5 applicable law jurisdiction
  • Pursuant to the provisions of this Statute, the
    Court shall have jurisdiction in respect of
    violations committed by any State Party or Entity
    of any human right enshrined in any of the
    following United Nations treaties in the field of
    human rights
  • (a) International Covenant on Civil and
    Political Rights 1966
  • (u) International Convention for the Protection
    of All Persons from Enforced Disappearance 2006
  • Arts 50-51 opt-in and opt-out clauses

14
Jurisdiction over Entities
  • Article 4.1 any inter-governmental organization
    or non-State actor, including any business
    corporation, which has recognized the
    jurisdiction of the Court in accordance with
    Article 51.
  • Same list of treaties as for states, plus
  • When making such a declaration, the Entity may
    also specify which human rights treaties and
    which provisions thereof shall be subject to the
    jurisdiction of the Court

15
The World Court other actors
  • List of Entities (art. 6 in MS draft)
  • International organizations
  • Transnational corporations
  • International non-governmental organizations
  • Organized opposition movements
  • Autonomous communities
  • Qualified by consent by the state

16
Article 6 General Principles
  • In exercising its jurisdiction, the Court shall
    determ-ine whether an act or omission is
    attributable to a State or Entity for the
    purposes of establishing whether it committed a
    human rights violation. In so doing, the Court
    shall be guided by the principles of the
    international law of State responsibility which
    it shall apply also in respect of Entities
    subject to its jurisdiction, as if the act or
    omission attributed to an Entity was attributable
    to a State. The Court shall determine the
    wrongfulness of an act or omission by a State or
    Entity through the interpretation of
    international human rights law.

17
Article 6.2
  • In exercising its jurisdiction, the Court shall
    be guided by the principles of universality,
    interdependence and indivisibility of all human
    rights, by general international law, general
    principles of law and by the jurisprudence of
    other international and regional courts.

18
Applicable law
  • Problem of variable geometry (Art. 5)
  • each state assessed on the basis of its treaty
    ratifications voluntary extensions explicit
    exclusions
  • incl. Refugee Convention, excl. IHL
  • Cure to fragmentation
  • Art. 6.1 law of state responsibility
  • Art. 6.2 interdependence and indivisibility
  • Art. 6.2 links with general international law
    shall seek inspiration from customary
    international law and general principles of law

19
Other key provisions
  • Art 7. Individual complaints
  • by individual, group of individuals, non-gov.org
  • claiming to be victim of a violation
  • Art 8. Advisory opinions
  • Art 9. Exhaustion of domestic remedies
  • strong preference and guidance for effective
    domestic remedies
  • Art 10. Other admissibility criteria

20
Legally binding powers to determine
  • Art 11. permissibility and effect of any
    reservation
  • Art 17.1 whether there is a violation
  • Art 17.2 what is the remedy ordered
  • Art 19.1 what interim measures are required

21
Institutional status
  • Entities are not parties to the Statute
  • May participate as observers in the Assembly of
    States Parties (art. 43.1 and 43.5)
  • Financial contributions (arts. 44 b and 45)
  • But they are full parties in a case
  • rights and obligations as those of states
  • The Human Rights Council will supervise the
    implementation of Judgments (art. 18)
  • May appoint one or more separate subsidiary
    bodies in respect of Entities or categories of
    them
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