Two years ago the world celebrated the 60th anniversary of the adoption of the Universal Declaration of Human Rights. This milestone in the history of human rights created new momentum for the creation of a World Court of Human Rights.
Professor Manfred Nowak (Professor of International Human Rights Protection and UN Special Rapporteur on Torture) outlined some key reasons for the establishment of a World Court of Human Rights earlier this month in 'Sydney Ideas Open'.
Nowak made the case that the time is right to contemplate the creation of a World Court of Human Rights. The Court is part of a wider Agenda for Human Rights instigated by the Swiss in 2008 to celebrate the 60th anniversary of the Universal Declaration of Human Rights.
The idea of an international human rights court is not new. It was the Australian jurist, politician and writer HV Evatt (pictured) who envisioned the establishment of an International Court of Human Rights in 1947. Around the same time, several other important international initiatives were put forward, such as the Universal Declaration of Human Rights, an International Criminal Court, and a UN High Commissioner for Human Rights. While all of these proposals materialised in one form or another, a World Court of Human Rights is – sadly enough – still shelved.
Here are some of the arguments Manfred Nowak made in support of the establishment of a World Court of Human Rights:
1. Legal rights without a remedy are empty promises. This goes back to the simple logic of accountability between 'right holders' and 'duty bearers'. If duty bearers violate their obligations towards right holders there should be a procedural right to hold them accountable before an independent court. Nowak made the point that this basic logic should be applied to the most precious of all rights: human rights. Alas, this isn't the case on a global scale, yet.
2. UN Human Rights complaints mechanisms still reflect the logic of the Cold War. The political tensions of the Cold War necessitated the use of very cautious approaches to human rights. This created mechanisms that carried little weight; complaints were not adjudicated but received 'final views' – no more than non-binding opinions.
Nowak calls it absurd that, more than 20 years after the end of the Cold War, we are still operating these kinds of systems. Time to move towards a global system of transparency, public hearings and fair trials to deliver binding decisions on individual human rights complaints.
3. The UN can learn from regional organisations. Three regional organisations have so far adopted Human Rights Charters and created courts to monitor and enforce the respect of human rights by states. While these Courts are operating under different procedural mechanisms in Europe, the Americas and Africa, the rest of the world is left without any international judicial body. The Asia-Pacific region has no regional judicial body to enable and empower people to make human rights complaints.
4. The Human Rights Council needs an independent and powerful counterpart. As a subsidiary body of the UN, the Human Rights Council appears to be a slight improvement on its predecessor, the Human Rights Commission. However, the Council's work balance has shifted towards a state-centred process and it has few tools and mechanisms to protect human rights. The creation of a World Court could provide a proper balance between states and independent experts, while it will at the same time seriously expand the human rights toolbox with heavy-weight binding judgements.
5. The World Court will operate under the principle of complementarity. This principle means human rights complaints are in the first instance addressed under the national jurisdiction; only if states are not able or unwilling to investigate human right violations would the World Court have competence. Today, this system successfully functions as the underlying paradigm of the International Criminal Court. Complementarity will in this way also work as an incentive for states to implement better and effective domestic remedies, to avoid having the World Court decide cases.
On a more practical note, Nowak earlier articulated the relative ease of implementation:
The creation of the World Court can be achieved in a smooth manner without any treaty amendment and without abolishing the present treaty monitoring bodies. It is a purely voluntary measure as States would decide freely whether or not to ratify the Statute of the Court.
In sum, we have here some solid reasons to overcome any charge of utopianism.
The current proposal for a World Court of Human Rights appears to be a serious push towards a more extensive and balanced global human rights regime. This begs the question whether the timing is right for the adoption of a wider human rights agenda, including a World Court.
There appears to be some momentum, with states like Switzerland, Norway, Brazil and Qatar already showing their support. Despite the Australian Government's unsupportive stance in the creation of an Australian Human Rights Act, could the memory and intentions of Australia's 1947 proposal align with this contemporary initiative?
A video of the lecture and podcast are available from the Sydney Ideas Open website. Photo courtesy of the Evatt Foundation.