A Modest Proposal: A Global Court of Human Rights

Abstract

AbstractDespite significant gains, the majority of the global population still lacks the right to effective judicial remedy for rights violations. Scholars have recently considered the possibility that creating a Global Court of Human Rights could remedy this problem. This article proceeds in three sections. It begins with a discussion of the most prominent historical proposal for an International Court of Human Rights, underscoring the early recognition that a Global Court of Human Rights was needed. The next section assesses the need for the Court by reviewing the current human rights enforcement and monitoring mechanisms. It then turns to concerns with the creation of a Global Court of Human Rights. After considering these arguments, the article identifies three key benefits of creating the Court and proposes a sketch of a Global Court of Human Rights. Notes1These are the following: the Convention on the Elimination of all forms of Racial Discrimination (CERD); the International Covenant on Civil and Political Rights (CCPR); the International Covenant on Economic, Social and Cultural Rights (CESCR); the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW); the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW); the Convention on the Rights of Persons with Disabilities (CRPD); the International Convention for the Protection of all Persons from Enforced Disappearance (CED).2These were the Working Party on an International Convention on Human Rights, the Working Group on the Declaration on Human Rights, and the Working Group on Implementation.3For a discussion of the role of the Working Groups, see the Commission on Human Rights’ (1947) report to the Economic and Social Council.4These include the Genocide Convention of 1948 and the Uruguayan proposal for the establishment of a High Commissioner for Human Rights. For a discussion of these developments, see the report from the Commission on Human Rights (1947).5For an excellent summary of the Australia Proposal. in general, and the diplomatic processes surrounding the proposal. specifically, see Devereux (2005).6See Note 1 for a list of these treaties.7This is with the exception of the Committee on Economic, Social and Cultural Rights that, unlike the other treaty bodies, is not responsible to the treaty parties but to the Economic and Social Council and, therefore, to the UNGA.8In 2008, the United Nations General Assembly added an optional protocol to the International Covenant on Economic, Social and Cultural Rights. The protocol established competency for the Committee on Economic, Social and Cultural Rights to receive and consider individual communications. This brings the total number of treaty bodies that can receive and consider individual communications to six, not five. Thanks to Shareen Hertel for this point. See United Nations General Assembly (2008). 9The Human Rights Monitor offers a summary of the problems identified in the High Commissioner's Concept Paper that include late state reporting, problems with treaty bodies that include increased workload and the resultant backlogs, duplicative work, variations in expert competency, independence and geographic and gender representation, limited collaboration between the bodies resulting in a lack of uniformity, and problems with victims’ access and ability to utilize the system (Human Rights Monitor 2006: 64).10For example, Cassel asks if the ICJ functions as a new world court. Cassel's discussion of this question is answered through an analysis of the post-Cold War changing docket of the ICJ and how the Court is ostensibly increasingly taking up human rights issues (mostly in relation to the use of force in interstate conflicts) (Cassel 2003). But as John Crook (2003) notes in his critique of Cassel's analysis, the numbers are actually lower than they appear. This is because, in most instances, several cases have been filed for single issues, resulting in only a handful of actual human-rights-related matters but rather many cases relating to them, a point Cassel concedes (Cassel 2003: 6; Crook 2003: passim). I believe that Crook's analysis is accurate, but even if the ICJ's docket is evolving towards contentious cases in human rights, it by design remains an insufficient institution for reasons discussed in this article. 11In recent years, the Court has taken a more active role in asserting its jurisdictional authority. For instance, based on Article 36(6), in cases where there are disputes concerning the jurisdiction of the Court, the Court decides its own competency. See Military and Paramilitary Activities in and against Nicaragua (International Court of Justice 1986), where, despite the United States withdrawing its voluntary compulsory jurisdiction, the Court ruled that it had jurisdictional competency to hear the case. Such an assertion to determine jurisdictional disputes could play an obvious role in hearing human rights cases, particularly when one state may attempt to block the Court from hearing the case on jurisdictional grounds.12See “Nicaragua Military Activities Case” (International Court of Justice 1986). Also see, the ICJ's advisory opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Request for Advisory Opinion (International Court of Justice 2003).13For a thorough and insightful discussion of the ICC's jurisdiction, see Wagner (2003).14I should note that Aksar's comments are in reference to a permanent International Criminal Court, now established under the Rome Statute, but his points also ring true with respect to a permanent Global Court of Human Rights (Aksar 2004).15Thanks to an anonymous reviewer for reminding me of the absence of the right for individual petition in ad hoc tribunals.16In addition, as Aksar argues, during the lengthy period of establishment, evidence can be destroyed, witnesses might be intimidated (I would add killed), and perpetrators may flee (Aksar 2004: 59).17For example, see the International Committee of the Red Cross's excellent summary of the Abilio Sores case where Sores, the former governor of Timor-Leste charged with crimes against humanity, invoked the principle of legality before the Ad Hoc Human Rights Tribunal for East Timor (International Committee of the Red Cross 2013).18Also see United Nations General Assembly (2006).19It should also be noted that the UPR also does not grant individuals the right to bring complaints against their governments. Thanks to an anonymous reviewer for this point.20Thanks to an anonymous reviewer for suggesting this approach to organizing an overview of the literature.21Here I follow Nowak (2007: 255).22On this point see Kozma et al. (2010: Art. 49).23I say “parties” or “entities” because, as I go on to discuss, a GCHR's parties would not be limited to only states but could include corporations, NGOs, and international organizations.24KNS mistakenly refer to this proposal as resulting in a “world” court. It is possible that the court may gain global jurisdiction, but, as their proposal presently limits it, this is not the case.25Lisa Schlein of the Voice of America reported that a panel of eminent persons, including Nowak, “acknowledge(d) it may take 10 years for the court to become reality” (Schlein 2009: para. 12). 26I am sympathetic to this view; however, it leaves unresolved the issue of what to do with state reservations to treaties they are party to. Should the full force of the treaties be subject to a GCHR's jurisdiction or would reservations be respected?27If these paths were taken, temporal jurisdiction would have to be limited to violations committed after the entry into force of the GCHR, even for state parties which became party to the human rights treaties prior to the entry into force of the Court.28This would also be an advantage over creating a Standing Treaty Body because many treaties do not permit individual petitions. It is also an improvement on Trechsel who does not view individual petitions as “practically reasonable” (Trechsel 2003: 9).29For similar uses of the principle of complementarity, also see theRome Statute of the International Criminal Court (1998: Articles 1, 17) and the European Convention on Human Rights: Article 35(2)(b) as found in Steiner and Alston (2000).30One particularly interesting innovation in Kozma and Nowak's draft statute, but omitted from both Scheinin's and the consolidated draft, is the establishment of a trust fund. Funded by voluntary contributions and donations, the fund would have a twofold purpose: to finance reparations for victims in cases where respondents are unwilling or unable to provide such remedy and, second, to help establish domestic judicial mechanisms (national human rights courts) suitable for effective implementation of existing human rights treaty obligations. See Kozma et al. (2010: 58–59).31Similarly, Trechsel examines desirability, need, and likelihood of success (Trechsel, 2003: passim).Additional informationNotes on contributorsJesse KirkpatrickJesse Kirkpatrick is a Resident Postdoctoral Research Scholar in the Stockdale Center for Ethical Leadership at the United States Naval Academy.