Coming to terms with a new role: the approach of the International Court of Justice to the interpretation of human rights treaties.

• Author: Gall, Chloe

Abstract

Human rights treaties are the principal source of human rights obligations at international law. The process of interpreting and applying these treaties has become an important function of regional human rights courts and bodies, and one that has led to the development of a 'special' approach to treaty interpretation. This article asks the following question: what occurs when a non-human rights body begins to play a role in the adjudication of human rights treaty disputes? This is a reality that the international legal community is now faced with in light of a number of recent cases heard by the International Court of Justice, the highest judicial arbiter of inter-state disputes. This article analyses the recent excursions the International Court of Justice has taken into the realm of human rights treaty interpretation. Ultimately, the author argues that the ICJ should take a teleological approach to interpreting human rights treaties in line with human rights courts and bodies. Such an approach will serve the dual purpose of enabling the ICJ to make significant contributions to the development of international human rights law and enhancing ICJ s own role in adjudicating human rights claims.

I Introduction

The potential for the International Court of Justice to ensure effective judicial protection of human rights depends to a large extent on its approach to the interpretation of human rights treaties. Since the introduction of the Universal Declaration of Human Rights in 1948, (1) numerous regional and international treaties have been created with the objective of protecting the civil, political, economic, social and cultural rights of individuals. These instruments are the principal source of human rights obligations. (2) The interpretation of the often aspirational and broadly worded terms of human rights treaties has become one of the most critical tasks performed by judicial bodies.

Historically, the International Court of Justice ('ICJ' or 'the Court') has not played a significant role in this process. A number of specialised regional courts and quasi-judicial bodies have been established to supervise compliance with human rights treaties. These 'human rights arbiters' have developed a special approach to interpreting human rights treaties in recognition of the unique characteristics of human rights obligations. Unlike the great majority of treaties, which focus on the creation of reciprocal obligations between states, human rights treaties create objective obligations that states owe individuals. (3) Human rights arbiters generally favour 'teleological' or purpose-oriented techniques of interpretation that result in expansive interpretations of human rights treaty provisions, recognising that the objective of human rights treaties is to ensure a high degree of protection for individuals.

The state-centric character of the ICJ does not sit neatly with the adjudication of human rights treaties. However, with the rapid development of human rights law, the Court has inevitably had to address human rights questions, and over the last decade the ICJ has been presented with several cases that concern the interpretation and application of human rights treaties. The Court therefore finds itself assuming a new role in human rights treaty adjudication; what Judge Cancado Trindade refers to as a reflection of a new jus gentium ('law of the people'). (4) This development raises a number of important questions. Will the Court follow the interpretive techniques favoured by human rights arbiters? Will it adopt a narrower approach due to its limitations as an inter-state Court? Or will it take a broader approach in recognition of the growing significance of human rights to the international community?

This article argues that in order to foster the continued development of international human rights law, the ICJ should adopt a teleological approach to interpreting human rights treaties. Such an approach would bring the interpretive methodology of the Court in line with that favoured by human rights arbiters. This is imperative for the development of international human rights law and will allow the ICJ to itself develop as an important forum for human rights complaints. However, this is by no means an easy prospect for a Court that faces significant institutional, political and structural limitations. This article will seek to examine these tensions by analysing recent cases in which the Court has grappled with its new role in human rights treaty adjudication.

The first part of this article provides an overview of the special techniques of treaty interpretation that have been developed by human rights arbiters. Against this background, the second part of the article examines the ICJ's excursions into human rights treaty interpretation, in particular giving detailed attention to the diverging approaches to interpretation in the recent cases of Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (' Diallo) and the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) ( CERD') as well as Questions Relating to the Obligation to Prosecute and Extradite (Belgium v Senegal) ('Obligation to Prosecute and Extradite). These cases illustrate the tension between the nature of human rights treaties and the procedural and normative restraints of the International Court of Justice. The final part of this article will explore the significance of the ICJ's adoption of a teleological approach to human rights treaty interpretation.

II The Special Nature of Human Rights Treaties: Patterns in Treaty Interpretation

Traditionally, international law was directed at stabilising and facilitating relations between sovereign states. (5) The first true international agreements governing the protection of individual human rights were not introduced until the wake of the atrocities of World War II. In 1950 the Council of Europe created the first regional human rights treaty, the European Convention on Human Rights ('ECHR'). (6) Several years later the United Nations introduced the International Convention on the Elimination of all Forms of Racial Discrimination ('CERD',7) the International Covenant on Civil and Political Rights ('ICCPR'8) and the International Covenant on Economic, Social and Cultural Rights ('ICESCR'). (9)

In the years following, numerous international and regional human rights treaties have been concluded between states, extending from treaties protecting the most basic civil and political rights to treaties protecting persons against specific wrongs, such as torture, to those treaties recognising the rights of 'vulnerable' groups such as minorities, children, and women. (10)

Human rights treaties enumerate rights that are 'part and parcel of the integrity and dignity of the human being'. (11) The central objective of human rights treaties is to create legally binding standards for these rights. (12) Unlike most other multilateral treaties, human rights treaties are not primarily concerned with reciprocal exchanges of obligations between state governments. As the European Court of Human Rights ('ECtHR') stated in Austria v Italy (discussing the ECHR):

....the obligations undertaken by the High Contracting Parties in the Convention are essentially of an objective character, being designed to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves. (13) Human rights law is therefore concerned with establishing universal and objective rights and providing individuals with access to judicial bodies for redress for violations of those rights. Dame Rosalyn Higgins, a former president of the International Court of Justice and member of the Human Rights Committee, comments that these features make human rights law strikingly different to what may be deemed classic international law. (14) Human rights law places less emphasis on the interests of states and instead focuses on regulating the relationship between states and individuals.

Judicial supervision of human rights treaties is a crucial but difficult task. Human rights treaty provisions are by their very nature ordinarily drafted in broad and abstract terms meaning that the key to resolving complaints often lies in how the text is interpreted. (15) The interpretation of human rights treaties has therefore become a central function of regional human rights courts and treaty bodies. The methodologies adopted by these arbiters will inform the approach the International Court of Justice takes when it comes to consider human rights questions.

A An Overarching Emphasis on a Teleological Approach to Interpretation

It was originally anticipated that human rights courts and treaty bodies would take a restrictive approach to the interpretation of human rights treaty terms, given the potential for these instruments to interfere with states' domestic jurisdiction. (16) However, the opposite has proven true. Human rights arbiters have generally demonstrated an overarching commitment to fulfilling the object and purpose of human rights treaties, taking what has been termed a purpose-based or 'teleological' approach to treaty interpretation. (17) The object and purpose principle is enshrined in article 31 (1) of the Vienna Convention on the Law of Treaties (VCLT) which provides that a treaty shall be interpreted in 'good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose'. (18) Human rights arbiters use the VCLT canons of interpretation as a starting point for treaty interpretation and give high precedence to the object and purpose element. (19)

The Inter-American Court of Human Rights (IACtHR) argues that the general object and purpose...