Professor Manfred Nowak is a widely respected human rights expert who in 2007 started to promote a reform of the UN human rights treaty bodies that would contain the establishment of the so-called World Court of Human Rights. How does he perceive this idea today?
The interview was published in March 2016, in Czech, now we also present it in English.
The UN human rights treaty bodies are control mechanisms that monitor the respect for a number of human rights treaties at the universal level (e.g. the International Covenant on Civil and Political Rights). However, the functioning of the treaty bodies is in the long-term, quite inefficient and therefore, Manfred Nowak suggests that in the future these committees (e.g. the Human Rights Committee) should focus mainly on reviewing state reports.
Today, treaty bodies also consider individual complaints (communications) on violations of rights. However, their decisions are not legally binding. According to the proposal, a new international court should take over the competence of the committees to consider individual complaints. Manfred Nowak, Martin Scheinin and Julia Kozma drafted a doctrinal proposal of a statute for the intended judicial institution that is called the World Court of Human Rights.
According to the proposal, the court would be established by a new international treaty to which states could join on a voluntary basis. No new catalogue of human rights would need to be elaborated, as the court would apply the current human rights treaties at the universal level, such as the above-mentioned International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.
Apart from states, international organizations such as the UN or transnational corporations also could accept the jurisdiction of the court. Although, at first sight this idea looks utopian to many, at a closer look it is very well thought through. A couple of years ago the Swiss government supported its implementation, however, since then the interest of states cooled down. How does Manfred Nowak see the prospects of the establishment of the World Court of Human Rights?
I remember your article named The Need for a World Court of Human Rights published in 2007 that at that time seemed to be a very surprising idea. Can you briefly explain why you started to think it is time to consider creating such a new court?
In fact the idea was not new because it goes back to an old Australian proposal in 1947 in the former UN Human Rights Commission. Therefore, from the very beginning the idea was there that you develop an international treaty on human rights, but you also have an international implementation mechanism, and the best is always that individuals can apply to an international or regional human rights court. Such an institution can then decide with a judgment; meaning in a legally binding manner. That is the usual way how rights and responsibilities work. If my right is violated, I should have an effective remedy.
During the time of the Cold War this idea was dead, because the Soviet Union and its allies did not want any kind of effective international human rights mechanisms and the West only wanted it for civil and political rights. Therefore, the compromise in the UN was the two Covenants and other treaties with fairly weak quasi-judicial or non-judicial monitoring bodies like the Human Rights Committee. And even though they can consider individual complaints, their views are not legally binding and in reality this does not play a major role. This system came out of the Cold War situation as a compromise. However, the Cold War has been over for more than 25 years.
What makes the idea so important that the international community should invest time and effort into its realisation?
First, there is a lot of dissatisfaction with the way the various treaty bodies currently work. They are overloaded, there is a long delay in the state reporting procedure and there are in fact very few cases that really have been decided by the treaty bodies like the Human Rights Committee, the Committee against Torture or others.
Second, this is not reflecting reality. The ECHR decides tens of thousands of cases every year and the UN treaty bodies together decided perhaps, 1000 cases so far, and they are intended for the whole world. Therefore, something is wrong and we need something better.
If we take up the idea of the WCHR, it would not replace the treaty bodies – they should continue with their main task, which is monitoring state reports. For that, you do not need lawyers, so it is good that we have other experts than lawyers in the committees such as doctors in the Committee against Torture. However, deciding individual complaints is a classic legal task. And for that we need lawyers, judges, and the court.
Another reason is that we are living in a time when many human rights violations are no longer committed by states. They are committed by international organizations such as the UN itself, NATO, the World Bank etc., but also non-state actors such as transnational corporations and many others. However, we cannot hold them accountable under present international law because the human rights treaties are only treaties between states. Therefore, we should develop more future-oriented ideas and be able to hold non-state actors accountable as well.
How was the idea perceived within the academic world?
I think there was quite a positive response from many of my colleagues but also negative reactions, most notably from Philip Alston, who takes the view that it is currently not the main issue. I agree, it is one of many different proposals of how we can make the international protection of human rights more effective.
In fact, in recent years the West has become very defensive, with the opinion that we should focus on what we have rather than developing further treaties. The more progressive Global South is undertaking most initiatives within the UN today, for example, the new Convention on the Rights of Older People. Another example I can tell is from the time when I was a UN Special Rapporteur on Torture. When I found out the widespread use of torture within detention facilities in different countries, I proposed a development of a special convention on the rights of detainees. Many states in Latin America, Africa and Asia supported the idea, but it was the EU and the US who were against.
The idea of creating a World Court of Human Rights became part of the so-called Swiss Initiative. Could you explain what it was and how it supported the idea?
The Swiss government created a so-called Panel of Eminent Persons in order to develop a human rights agenda on the occasion of the 60th anniversary of the adoption of the Universal Declaration of Human Rights in 2008. The created agenda, called “Protecting Dignity” focused on a number of human rights issues and also took up the idea of creating a World Court of Human Rights as part of the agenda. The Governments of Switzerland and Norway have further promoted this. Later they also brought together a small group of like-minded states from different regions who supported the idea.
Unfortunately, the real enthusiasm did not come up. Later the Swiss government changed, as well as the ambassador in Geneva who was very supportive of the idea. Furthermore, the topic was overtaken by events like the Arab spring and others and the Human Rights Council is now fully engaged in dealing with crisis management. That is why a forward-looking agenda is difficult to realise at this time.
Why do you think it is so important to streamline and strengthen the individual complaints procedure of the current treaty bodies?
It is necessary to say that there has been a long process of human rights treaty body reform, but at the end it was a very modest reform of the treaty bodies, streamlining a bit the state reporting procedures but in reality does not solve the problems of proliferation of treaty bodies on the one hand and the low key of individual complaints procedure on the other hand.
So it seems that individual complaints are not seen in the UN as a major way of promoting and protecting human rights. But individual complaints are very important in two ways. First, they have the role of bringing relief to the applicant. And second, the way a court decides individual cases has far-reaching consequences for the interpretation of particular treaty provisions. Think about the cases brought before the ECHR in the 1990s with respect to Turkey about torture and enforced disappearances, which had a very strong impact and definitely improved the situation in Turkey. Furthermore, think what the Inter-American Court of Human Rights has achieved with respect to the gross violations of human rights that occurred in the 1970s and 1980s or indigenous rights protection that really contributed to improving the overall human rights situation in Latin America. Therefore, much can be done with strategic litigation but not before a committee that cannot hand down binding judgments.
Does the EU and its member states support such a reform?
I was the head of the COST Action, a research programme financed by the EU on the role of the EU in the UN human rights reform, and again the idea of the WCHR was very prominent in our joint recommendations. I still remember when we went to Brussels and we introduced our recommendations to the EU Special Representative for Human Rights, to the EU Parliament and the Commission. It was again very positively received, but not much has been done to my knowledge that the EU as institution would actually promote the idea within the UN.
On the other hand, it should not be a northern initiative. If you really wanted to bring a resolution into the UN Human Rights Council to work towards a WCHR – and we developed a statute of the court that could be taken as a starting point for the negotiations – it could only be successful if we would have the support of states from all regions of the world. So it should be a multi-regional like-minded group. Therefore, if there were countries like South Africa, Brazil, Indonesia etc. on-board, it might have a chance to be realized in the near future.
Another and perhaps more suitable option is to develop the idea within a bigger conference, ideally a third World human rights conference.
Do you have any information from states of different cultural background whether they would support it? What could be the major reasons for them to support such an institutional reform?
At the time of the Swiss Initiative governments of states like Uruguay, Costa Rica, Qatar, Kazakhstan and to some extent Indonesia, seemed to be interested. However, that was it.
In this respect it is important to mention that the idea goes beyond the ECHR that in fact only holds states accountable for violations of civil and political rights. We also include economic, social and cultural rights, which are much more of the interest of states of the Global South. We also try to create incentives for transnational corporations to accept the binding jurisdiction of the court. For example, what Shell did in Nigeria, or the exploitation of indigenous peoples by Exxon in Ecuador etc. If these kinds of major cases could also be brought before the WCHR, which could decide that the victims should receive compensation, then it could have a real impact on improving the human rights situation of such victims.
Of course it is a long-term strategy and there is the question of why the transnational corporations should voluntary declare themselves to be bound by the judgments of the WCHR. Today we have the Global Compact and the Ruggie framework of business and human rights so there are numerous reasons why corporations that develop corporate social responsibility policy would want to belong to this club.
In April 2016 the European Society of International Law will organize a conference in Zurich to commemorate the 50th anniversary of the adoption of the ICCPR and ICESCR. Do you think it is likely that there will be some shift towards realizing the idea in the near future or will this idea remain simply an academic topic?
I think the 50th anniversary of the adoption of the Covenants should lead to a major analysis of the operation of the current system based on the two Covenants and other treaties. Many features of the current system reflect the Cold War spirit. After the end of the Cold War we had the Vienna World Conference on Human Rights in 1993 as a reaction to the changes. I actually think we missed a historic window of opportunity in the years after 1989 to really establish a world society and international economic and social order as envisaged already in Art. 28 of the Universal Declaration of Human Rights of 1948. And the consequences we see today. We are living in a world of crisis of many different kinds, including a deep human rights crisis.
In my opinion, the year 2016, the year we celebrate 50 years of the International Bill of Rights, is a good year to think about what we wanted at that time.
So in your opinion the right momentum could still come?
I am advocating that we should have another – a third – World Conference on Human Rights in 2018, which is 70 years after the adoption of the Universal Declaration of Human Rights, 25 years after the Vienna Conference on Human Rights and 50 years after the first World Conference on Human Rights in Teheran in 1968. It is a very symbolic year. The Third World Conference on Human Rights could take place somewhere in the Arab world, Africa or in Latin America and would be a very good forum where we could discuss and promote the idea of the WCHR.
It is necessary to say that at this time it is a difficult political environment for such far-reaching future-oriented structural reforms, but I am deeply convinced that there will come a time when states would agree on it.
It was similar to the International Criminal Court. You will find it already in the 1948 Genocide Convention and then the following 40 years there was nothing due to the Cold War. In the 1990s it was finally possible, so now we have an International Criminal Court – of course it is not ideal, but it is a big step forward to hold individual perpetrators criminally accountable.
The same refers to the UN High Commissioner of Human Rights – it was an old Uruguayan proposal from the 1940s, which was dead during the Cold War, and in 1993 we needed something important to come out of the Vienna Conference of Human Rights. During the last night the states finally agreed and since 1994 we have the Office of the UN High Commissioner for Human Rights. I think it was a big step forward in developing the human rights agenda of the United Nations.
In other words, two of the three structural ideas that go back to the 1940s have been implemented in the 1990s, and the third one not. So I think time has come for the World Court, even if it takes a little bit longer.
The Czech version of the interview was published in March 2016 and can be viewed here.
Professor Manfred Nowak, author: Jan Lhotský
8. 4. 2019 Jan Lhotský