By: Ciara O'Connor,
on 12/24/2015
The 50th anniversary of the adoption of the Universal Declaration of Human Rights on December 10th this year prompted some reflections and grounds for concern about international human rights law.
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By: Alice,
on 12/10/2014
Today, 10 December, is Human Rights Day, commemorating The Vienna Declaration and Programme of Action. In celebration, we’re sharing an edited extract from International Human Rights Law, Second Edition by Kenneth Roth, Executive Director of Human Rights Watch.
The modern state can be a source of both good and evil. It can do much good – protecting our security, ensuring our basic necessities, nurturing an environment in which people can flourish to the best of their abilities. But when it represses its people, shirks its duties, or misapplies its resources, it can be the source of much suffering.
International human rights law sets forth the core obligations of governments toward their people, prescribing the basic freedoms that governments must respect and the steps they must take to uphold public welfare. But the application of that law often differs from the enforcement of statutes typically found in a nation’s law books.
In countries that enjoy the rule of law, the courts can usually be relied on to enforce legislation. The rule of law means that courts have the independence to apply the law free of interference, and powerful actors, including senior government officials, are expected to comply with court orders.
In practice, there is no such presumption in most of the countries where my organization, Human Rights Watch, works, and where international human rights law is most needed. The judges are often corrupt, intimidated, or compromised. They may not dare hold the government to account, or they may have been co-opted to the point that they do not even try, or the government may succeed in ignoring whatever efforts they make.
International human rights law should be seen as a law of last resort when domestic rights legislation fails. Judicial enforcement is always welcome, but when it falls short, human rights law provides a basis that is distinct from domestic legislation for putting pressure on governments to uphold their obligations.
Human rights groups investigate and report on situations in which governments fall short of their obligations. The resulting publicity, through the media and other outlets, can undermine a government’s standing and credibility, embarrassing it before its people and peers and generating pressure for reform.
Beyond documenting and reporting violations of human rights law, human rights groups must shape public opinion to ensure that the exposure of government misconduct is met with opprobrium rather than approval. In part this is done by citing international law to convince the public of a global consensus about what is right or wrong in a given context. By presenting an issue in terms of rights, human rights groups help the public to develop a moral framework for assessing governmental conduct beyond public sentiment in any particular case or incident.
For the law to play this role of moral instruction, it is not enough simply to recite it. When people’s security or traditions are at stake, it takes more than a mere reference to the law to change the public’s sense of moral propriety. Human rights groups must be creative in moving the public to embrace what the law demands.
Sometimes it is difficult to convince a local public to disapprove of its government’s conduct. Thus, the great challenge facing human rights groups is often less concerned with arguing the law’s fine points or applying them to the facts of a case than with convincing the public that violations are wrong. That requires the hard work of helping the public to identify with the victim’s plight, making the law come alive, and generating outrage at its violation with some public of relevance. When human rights law can be made to correspond with the public’s sense of right and wrong, governments face intense pressure to respect that law. Shame can be a powerful motivator.
Headline image credit: Hands raised. CC0 via Pixabay.
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By: Alice,
on 12/10/2014
What are the ties that bind us together? How can we as a global community share the same ideals and values? In celebration of Human Rights Day, we have asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses.
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“My area of research is complementary forms of international protection, which is where international refugee law and international human rights law merge. Since the beginning of time, there has been an element of compassion in customary and religious norms justifying the acceptance of and assistance to persons banned from their communities or forced to leave their homes for reasons of poverty, natural disasters, or other reasons outside their control. Based on a general conviction that the alleviation of suffering is a moral imperative, many industralized countries included in their domestic migration practice the possibility to grant residence permits to certain categories of persons, who seemingly fall outside their international obligations, but who they considered to deserve protection and assistance because of a sense that this is what humanity dictates. In the past twenty years, many of these categories have become regulated and categorized as beneficiaries of protection, either through a broad interpretation of the refugee concept or through the adoption of new legislation confirming the domestic practice of States, such as the EC Qualification Directive. I find this to be a fascinating area of international law because, it shows how human rights and the notion of ‘humanitarianism’ (i.e. reasons of compassion, charity or need) have generated legal obligations to protect and assist aliens outside their country of origin.”
— Liv Feijen, Doctoral Candidate in international law at the Graduate Institute of International and Development Studies, and author of ‘Filling the Gaps? Subsidiary Protection and Non-EU Harmonized Protection Status(es) in the Nordic Countries’ in the International Journal of Refugee Law
* * * * *
“My work focuses on the forms and functions of the law when faced with contemporary mass crimes and their traces (testimony, archives, and the (dead) body). It questions the relationship between law, memory, history, science, and truth. To do so, I call into question the various legal mechanisms (traditional/alternative, judicial/extrajudicial) used in the treatment of mass crimes committed by the State and their heritage, especially at the heart of criminal justice (national and international), transitional justice, international human rights law, and constitutional law. In this context I have explored the close relationship between international criminal law and international human rights law. These two branches of law, that have distinct objects and goals, are linked by what they have in common: the protection of the individual. Their interaction culminated in the 90s when international criminal law, and in a larger sense transitional justice, boomed: an actual human rights turn took place with the strong mobilization of human rights in favour of the ‘fight against impunity’ of the gravest international crimes. At the heart of this human rights turn lays the consecration of a new human right, namely, the ‘right to the truth’, which is the object of my current research.”
— Sévane Garibian, Assistant Professor, University of Geneva, and lecturer, University of Neuchâtel, and author of ‘Ghosts Also Die: Resisting Disappearance through the ‘Right to the Truth’ and the Juicios por la Verdad in Argentina’ in the Journal of International Criminal Justice
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“I decided early on to focus in my work on how rights perform when they are put under some kind of strain. That could be panic and fear emerging from a terrorist attack, or resource limitations at national or international level, or political structures that make effective enforcement of rights (un)feasible, for example. It seemed to me to be important to think about the resilience of the language and structures, as well as the law, of human rights because in the end of the day we rely on states to deliver rights in a meaningful way and this raises all sorts of challenges around legitimacy, will, embeddedness, international relations, domestic politics, legal systems, constitutional frameworks, and so on. These are factors that have to be accounted for when we think about what makes human rights law work as a means of ensuring human rights in practice; as a means of limiting the power of states to do as it wishes, regardless of the impact on individual and group welfare, dignity, and liberty. Thus, rather than specialise in any particular right per se, my interest is in frameworks of effective rights protection and understanding what makes them work, or makes them vulnerable, especially in times of strain or crisis.”
— Fiona de Londras, Professor of Law, Durham Law School, and author of ‘Declarations of Incompatibility Under the ECHR Act 2003: A Workable Transplant?’ in the Statute Law Review
* * * * *
“I have always been interested in the protection of individual rights from undue interference by executive authority. So, my scholarly roots arguably originate in classic social contractarianism. In my work, I have been mostly focusing on civil and political rights, whether in the context of constitutional law, criminal justice, or international (human rights) law. An important part of my research examines the (alleged) tension between ‘liberty’ and ‘security’ and explores how this tension plays out in both domestic and international contexts, often addressing the interface between the two dimensions. National security issues, such as terrorism, have featured prominently in my scholarship, but my human rights-related work also extends to the field of preventive justice, including questions relating to the post-sentence detention of ‘dangerous’ individuals for public safety purposes. A fascinating development that has captured my attention recently concerns the expansion of executive power of international organisations. International bodies such as the UN Security Council have become increasingly active in the administration and regulation of matters that once used to be the exclusive domain of States. This shift in governance functions, however, has not been accompanied by the creation of mechanisms to restrain or review the exercise of executive power. I suspect that it is in this area that much of my research will be carried out in the years ahead.”
— Christopher Michaelsen, Associate Professor, Faculty of Law, UNSW Australia, member of Australian Human Rights Centre, and author of ‘Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining the Application of Proportionality?’ in the Journal of Conflict and Security Law
* * * * *
“I specialize in the interaction between international financial markets and human rights, both in relation to (a) understanding international legal obligations relating to socio-economic rights in the context of financial processes and dynamics; and (b) the business and human rights debate as it applies to financial institutions. My focus on these areas resulted from an awareness that as the world economy globalised over the last twenty years, the financial markets changed beyond all recognition to become a predominant force shaping economic processes. Therefore, although they are generally seen as remote from immediate human rights impacts, they set the context of socio-economic rights enjoyment. The practical challenges involved in realising these rights can only be fully understood by accepting the way financial markets shape economic and policy making options, and outcomes for individuals. As this is a huge field of enquiry and many of the connections have not so far been extensively explored from a human rights point of view, my focus tends to be determined by (a) a desire to bring new areas of the financial markets into a human rights framework, and (b) a desire to respond to issues of importance as they arise, such as financial crisis and austerity.”
— Mary Dowell-Jones, Fellow, Human Rights Law Centre, University of Nottingham, and author of ‘Financial Institutions and Human Rights’ in the Human Rights Law Review
* * * * *
“My research covers a variety of human rights issues, however I have a particular interest in the analysis of domestic violence as a human rights issue. Domestic violence affects vast numbers of people in every state around the globe. The practice of domestic violence constitutes a breach of internationally recognised rights such as the right to be free from torture and inhuman or degrading treatment; the right to private and family life; and, in some circumstances, the right to life itself. However it is only relatively recently that domestic violence has been analysed through the lens of human rights law. For example, it is only since 2007 that judgments of the European Court of Human Rights have been issued which directly focus on domestic violence. Nevertheless, there is now an ever-increasing awareness of domestic violence as a human rights issue, and there have been a number of important recent developments, such as the adoption of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014.”
— Ronagh McQuigg, lecturer in School of Law, Queen’s University Belfast, and author of ‘The Human Rights Act 1998—Future Prospects’ in the Statute Law Review
* * * * *
“Human rights discourse has been proliferating. Yet I feel that the proliferation of the discourse of human rights does not contribute to the success of implementing human rights on the ground. Perhaps one reason is that human rights scholarship and activism has great appeal to idealists and while idealists whom I admire are good in articulating ideals, they are less capable of carrying out these ideals. I believe that a major difficulty in implementing human rights is the costs of implementation. Human rights organizations may be justifiably appalled by police brutality and urge states to restructure their police forces, but such a restructuring is not costless and it may be detrimental to other urgent concerns including human rights concerns. The good intentions of activists and the scholarly work of theorists (to which I have been committed in the past) may ultimately turn out to be detrimental to the protection of human rights. What I think is urgently needed in order to carry out the lofty ideals is not more human rights scholarship but scholarship which will focus its attention on the best ways to implement the most urgent and basic humanitarian concerns. This is not what I have been doing in my own work but I am convinced it is what needs at this stage to be done. In doing so one ought to constrain idealism in favor of modest pragmatism. Ironically those who can most effectively pursue modest pragmatism are not human rights activists or theorists.”
— Alon Harel, Professor in Law, Hebrew University Law Faculty and Center for Rationality, and author of ‘Human Rights and the Common Good: A Critique’ in the Jerusalem Review of Legal Studies
* * * * *
“It had long been assumed that the best protection of human rights was a strong, Western-style democracy – if it came to the test, the people would always decide in favour of human rights. Recent developments, however, have challenged this assumption: human rights restrictions introduced after 9/11 in the United States and other Western democracies had strong popular support; the current British government’s plans to weaken (or even withdraw from) the ECHR system seem primarily designed to gain votes; Swiss voters have approved several popular initiatives that conflict with international human rights guarantees. Is the relationship between democracy and human rights not as symbiotic as it is often thought? Do direct democratic systems lend themselves more to tyranny of the majority than representative democracies? What is needed so that the human rights of those in the minority can be effectively protected? These, I believe, are among the most pressing questions that human rights lawyers must confront today.”
— Daniel Moeckli, Assistant Professor of Public International Law and Constitutional Law, University of Zurich, co-editor of International Human Rights Law, Second Edition
* * * * *
Headline image credit: Canvas Orange by Raul Varela via the Pattern Library.
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By: Alice,
on 10/24/2014
Today is United Nations Day, celebrating the day that the UN Charter came into force in 1945. We thought it would be an excellent time to share thoughts from one of their former Commissioners to highlight the work this organization undertakes. The following is an edited extract by Navanethem Pillay, former United Nations High Commissioner for Human Rights, from International Human Rights Law, Second Edition.
I was born a non-white in apartheid South Africa. My ancestors were sugarcane cutters. My father was a bus driver. We were poor.
At age 16 I wrote an essay which dealt with the role of South African women in educating children on human rights and which, as it turned out, was indeed fateful. After the essay was published, my community raised funds in order to send this promising, but impecunious, young woman to university.
Despite their efforts and goodwill, I almost did not make it as a lawyer, because when I entered university during the apartheid regime everything and everyone was segregated. However, I persevered. After my graduation I sought an internship, which was mandatory under the law; it was a black lawyer who agreed to take me on board, but he first made me promise that I would not become pregnant. And when I started a law practice on my own, it was not out of choice but because no one would employ a black woman lawyer.
Yet, in the course of my life, I had the privilege to see and experience a complete transformation in my country. Against this background it is no surprise that when I read or recite Article 1 of the Universal Declaration of Human Rights, I intimately and profoundly feel its truth. The article stated that: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.
The power of rights made it possible for an ever-expanding number of people, people like myself, to claim freedom, equality, justice, and well-being.
Human rights underpin the aspiration to a world in which every man, woman, and child lives free from hunger and protected from oppression, violence, and discrimination, with the benefits of housing, healthcare, education, and opportunity.
Yet for too many people in the world, human rights remain an unfulfilled promise. We live in a world where crimes against humanity are ongoing, and where the most basic economic rights critical to survival are not realized and often not even accorded the high priority they warrant.
The years to come are crucial for sowing the seeds of an improved international partnership that, by drawing on individual and collective resourcefulness and strengths, can meet the global challenges of poverty, discrimination, conflict, scarcity of natural resources, recession, and climate change.
In 2005, the world leaders at their summit created the UN Human Rights Council, an intergovernmental body which replaced the much-criticized UN Human Rights Council, with the mandate of promoting ‘universal respect for the protection of all human rights and fundamental freedoms for all’. The Council began its operations in June 2006. Since then, it has equipped itself with its own institutional architecture and has been engaged in an innovative process known as the Universal Periodic Review (UPR). The UPR is the Council’s assessment at regular intervals of the human rights record of all UN member states.
In addition, at each session of the Council several country-situations are brought to the fore in addresses and documents delivered by member states, independent experts, and the Office of the High Commissioner for Human Rights.
Today, the Office of the High Commissioner is in a unique position to assist governments and civil society in their efforts to protect and promote human rights. The expansion of its field offices and its presence in more than 50 countries, as well as its increasing and deepening interaction with UN agencies and other crucial partners in government, international organizations, anad civil society are important steps in this direction. With these steps we can more readily strive for practical cooperation leading to the creation of national systems which promote human rights and provide protection and recourse for victims of human rights violations.
In the final instance, however, it is the duty of states, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms. Our collective responsibility is to assist states to fulfil their obligations and to hold them to account when they do not.
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By: Carolyn Napolitano,
on 3/25/2014
Today, 25 March, is International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade. But unfortunately, the victims of slavery were not all in the distant past. Contemporary forms of slavery and forced labor remain serious problems and some reputable human rights organizations estimate that there are some 21-30 million people living in slavery today. The issue is not limited to just a few countries, but involves complex transnational networks that facilitate human trafficking. Just as in the past, international cooperation is necessary to end this international problem.
International law played a key role in ending the transatlantic slave trade in the 19th century. In the year 1800, slavery and the slave trade were cornerstones of the Atlantic world and had been for centuries. Tens of thousands of people from Africa were carried across the Atlantic each year, and millions lived in slavery in the new world. In 1807, legislatures in both the United States and Britain — two countries whose ships had been key participants in the trade — banned slave trading by their citizens. But two countries alone could not stop what was a truly international traffic, which quickly shifted to the ships of other nations. International cooperation was required.
Beginning in 1817, Britain negotiated a series of bilateral treaties banning the slave trade and creating international courts to enforce that ban. These were, I suggest, the first permanent international courts and the first international courts created with the aim of enforcing a legal rule designed to protect individual human rights. The courts had jurisdiction to condemn and auction off ships involved in the slave trade, while freeing their passengers. The crews of navy ships that captured the illegal slave vessels were entitled to a share of the proceeds of the sale of the vessels, creating an incentive for vigorous policing. By 1840, more than twenty nations — including all the major maritime powers involved in the transatlantic trade — had signed treaties of various sorts (not all involving the international courts) committing to the abolition of slave trading. By the mid-1860s, the slave trade from Africa to the Americas had basically ceased, and by 1900, slavery itself had been outlawed in every country in the Western Hemisphere.
“East African enslaved people rescued by the British naval ship, HMS Daphne (1869)” via The National Archives UK on Flickr.
While treaties today prohibit slavery and the slave trade, international efforts at eradicating modern forms of slavery and forced labor trafficking are inadequate. Looking to the lessons of the past, international policy makers should consider implementing a more robust system for dismantling modern day slavery. A system of property condemnation with economic incentives for whistleblowers could again be used to leverage enforcement power; someone who turns in a human trafficker could be entitled to a share of the proceeds of a sale of the trafficker’s assets. Similarly, international courts could be used in especially severe cases. Enslavement is a crime against humanity under the statute of International Criminal Court, and severe cases involving transnational trafficking networks with large numbers of victims might meet the criteria for ICC jurisdiction. Violent acts in wartime are more visible international crimes, but the human impact of enslavement is no less severe or deserving of international justice.
It is not enough to remember past victims of enslavement; to truly honor their memory, we must do something to help those who are enslaved today.
Jenny S. Martinez is Professor of Law and Justin M. Roach, Jr., Faculty Scholar at Stanford Law School. A leading expert on international courts and tribunals, international human rights, and the laws of war, she is also an experienced litigator who argued the 2004 case Rumsfeld v. Padilla before the U.S. Supreme Court. Martinez was named to the National Law Journal’s list of “Top 40 Lawyers Under 40.” She is the author of The Slave Trade and The Origins of International Human Rights Law (OUP 2012), now available in paperback.
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By: Alice,
on 12/17/2012
The last couple of years have been bad for journalists. I’m not referring to phone-hacking, payments to police, and the like, which have occupied much attention in the United Kingdom these last months. Rather, I’m referring to the number of journalists who have been killed in wartime.
Arab news reporters conduct an on-site interview with 4th Civil Affairs Group Public Affairs Officer Maj. M. Naomi Hawkins in front of the Dr. Talib Al-Janabi Hospital in Fallujah, Iraq, on Dec. 2, 2004. The hospital was one stop during a tour for media to different sites where reconstruction efforts are beginning after the November battle with insurgents. Photo by Cpl. Theresa M. Medina, U.S. Marine Corps.
Why are journalists targeted?
Journalists play a critical role in wartime — reporting on events, revealing the horrors of war, investigating abuses by the parties. Their role is a particularly important one given the fog of war. It’s often through media reporting that the public takes notice of a situation and the international community is pushed into action. For these very reasons, journalists are not infrequently viewed as a thorn in the side of the government or the armed group. They may be considered unwanted witnesses to what is going on and targeted for their reporting.
How does the law of armed conflict protect journalists?
The law of armed conflict distinguishes between different types of journalists:
The first category of journalists constitutes members of the armed forces. Accordingly, they don’t benefit from the protections afforded to civilians and their deaths don’t constitute a violation of the law.
The latter two categories of journalists are civilians. Accordingly, they can’t be attacked, unless and for such time as they take a direct part in hostilities. Reporting on events and investigating abuses committed by the parties can never constitute taking a direct part in hostilities, even if the investigations lead to greater support for one side or another.
Journalists may, however, prove to be casualties of lawful attacks. This is a particular risk for journalists who are embedded with troops. The law allows for the targeting of troops and that targeting may result in bystanders or embedded reporters becoming casualties. In order to judge the legality of such an attack, the law utilizes the principle of proportionality, ie we have to weigh up the expected loss of civilian life, injury to civilians, and damage to civilian objects with the concrete and direct military advantage anticipated. Only where the former is excessive when compared to the latter will the attack be unlawful. Although any loss of life is regrettable, the legal test means that deaths don’t necessarily imply that unlawful acts have been committed.
Particular controversies
One particularly controversial area of the law is the targeting of TV and radio stations. Civilian broadcasting services are protected from attack. They may be legitimate targets, however, if they constitute military objectives. In legal terms, this refers to objects that, “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
This would render dual purpose broadcasters that broadcast civilian programmes and which are used for military communications possible targets. Civilian broadcasters that broadcast propaganda are not generally considered military objectives, as propaganda doesn’t satisfy the test for a military objective. Thus, following NATO’s targeting of the RTS studio in Belgrade during the conflict in Kosovo, the Committee established by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia noted that, “if the attack on the RTS was justified by reference to its propaganda purpose alone, its legality might well be questioned by some experts in the field of international humanitarian law” (para. 76). Compare that to Radio Mille Collines, the broadcaster that was inciting genocide in Rwanda and which many people consider a legitimate target. The dividing line is a tricky one to draw.
Sandesh Sivakumaran is Associate Professor and Reader in International Law, University of Nottingham. He is the author of The Law of Non-International Armed Conflict (OUP, 2012), co-editor of International Human Rights Law (OUP, 2010) and recipient of the Journal of International Criminal Justice Giorgio La Pira Prize and the Antonio Cassese Prize. He advises and acts as expert for a range of states, inter-governmental organizations, and non-governmental organizations on issues of international law.
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