INTERNATIONAL HUMAN RIGHTS: NEED FOR FURTHER INSTITUTIONAL DEVELOPMENT.

Author:Buergenthal, Thomas
Position::Corporations on Trial: International Criminal and Civil Liability for Corporations for Human Rights Violations
 
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I imagine that when you saw the title of my talk, you were tempted to exclaim that "we have enough international human rights institutions, what we need is more compliance." I agree, of course, that we need much greater compliance by states with their international human rights obligations. But I also believe that that there is an urgent need for additional international human rights institutions in order to bring about greater compliance by states with their human rights obligations. That is what I hope to demonstrate here this morning.

Neither the Charter of the United Nations, which gave birth to modern international human rights law, nor the International Bill of Rights, which proclaims the basic norms of that law, provide for a human rights court to enforce the rights these instruments proclaim. That is surprising, especially since the Bill of Rights, which consists of the Universal Declaration of Human Rights and the two UN Covenants of Human Rights, proclaims an almost universally recognized basic list of civil and political rights as well as economic, social, and cultural rights. (1) On further reflection, though, the failure of the states which drafted the International Bill of Rights to provide for a human rights court should not surprise. It reflects the traditional fear and opposition of states to international courts in general and international human rights courts in particular.

Of course, failure to establish such a human rights court would not prevent one state party to the Covenants to bring cases to the International Court of Justice, charging another state party with a breach of one or more provisions of the Covenants, provided of course both parties had accepted the Court's jurisdiction. (2) Although the Universal Declaration is not a treaty, I believe at least some, if not all, provisions of the Declaration have become general international law, making them justiciable in the ICJ. Let us not forget, however, that individuals cannot bring cases to the ICJ and it may only deal with a case if both states parties thereto have accepted its Jurisdiction. To date, only some 40 UN member states have accepted the Court's jurisdiction. (3) These realities do not make the ICJ a very inviting tribunal for dealing with human rights disputes.

In addition to the International Bill of Rights, the major normative contribution of the United Nations to international human rights law consists of an important group of treaties that proclaim the basic principles of contemporary international human rights law. Most important among these treaties are the UN's Racial Convention (4), the Convention on the Elimination of Discrimination against Women (5), the Torture Convention (6), and the Convention on the Rights of the Child (7). Also belonging to this important group of treaties is the Genocide Convention (8). The UN adopted this convention on December 9, 1948, one day before the proclamation of the Universal Declaration by the UN General Assembly and many years before the adoption of the above-mentioned conventions.

Each of these treaties, except for the Genocide Convention, operates with its own treaty body or so-called Committee (9). The Committees do not, however, function as human rights courts. They monitor compliance by the States Parties with their obligations under the aforementioned human rights treaties by reviewing the required reports the States Parties submit periodically to their Committees. (10) Unlike most other UN organs and sub-organs, these treaty Committees are supposed to be composed of experts elected in their individual capacities and not as state representatives. (11) Whether and to what extent Committee members are truly independent depends on the States Parties that nominate them for these positions. Some certainly are and others are not. It is clear, nevertheless, that the presence on these Committees of at least some truly independent experts has led over the years to more thorough reviews of State reports, forcing the States Parties to be more forthcoming in explaining their human rights practices and at times even remedying failures to comply with their treaty obligations. (12) In making their findings, the Committees have to interpret the applicable treaty provisions. (13) They thus contribute to the corpus of international human rights law.

The Covenant on Civil and Political Rights, the Torture Convention, and the Racial Convention authorize their Committees to deal with interstate communications and individual petitions charging...

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