Enforcing Human Rights Law International Civil Society s Influence in Defining Rights and Responsibilities Polliann Hardeo Overview

Transcription

1 Enforcing Human Rights Law International Civil Society s Influence in Defining Rights and Responsibilities Polliann Hardeo Overview How can international civil society influence international human rights law for use in civil law remedies? This paper analyzes current international law statutes and covenants to measure their efficacy at protecting human rights when applied in a civil law setting. International human rights law has been championed as a collaborative mechanism able to help provide protection for individuals facing a variety of security concerns. Nonetheless, the actual manifestation of international human rights law is much less heroic than originally conceived with far less avenues for recourse available for individuals facing human rights abuses. (Hill, 2010; Posner, 2004.) This study hypothesizes that because international civil society has been so effective at aiding prosecution through international criminal law, it can similarly help achieve civil remedies by helping human rights laws become more specific and executable. First, the distinction between international human rights law, international humanitarian law, and international criminal law is explained. Moreover, the efficacy of current human rights law (applied in both civil and criminal law settings) is examined with the model of the International Criminal Court (ICC) being used as a paradigm of international law implementation. Next, alternatives to the International Court of Justice (ICJ) are examined as possible avenues for civil remedies in human rights abuses. Lastly, this paper discusses the role civil societies have played in forming international law, and the possibility of it forming an international civil remedy is explored. 1

2 Distinguishing Between International Humanitarian Law, International Human Rights Law, and International Criminal Law Current international law distinguishes between the laws of war (international humanitarian law) and international human rights law (HRL). Although both are tenants of our current international legal system, each law holds particular characteristics that are important in understanding how individual human rights are protected. International humanitarian law (IHL) is derived from the idea that there are minimum standards that should be followed in times of war. The concept was fully adopted into written law in 1949 with the Geneva Convention in Common Article III (Hereafter, the Article). The Article protects persons who are not involved in the hostilities or the armed conflict and restricts certain weapons and methods of warfare. Unlike the unwritten terms of customary international law, Common Article III is one tenet of written international law that is legally binding on all states that ratify it. (Cross, 2013). Grave breaches of international humanitarian law are prosecutable through another written instrument the Rome Statute, an example of hard international law which sets criteria of international criminal law (ICL) and establishes the International Criminal Court (ICC). These grave breaches include war crimes, crimes against humanity, genocide, and crimes of aggression. 1 (Court, 2013). The adoption of Article III was lauded as a win for proponents of human rights, and the adoption of the Article has been widely received. However, because IHL only accounts for certain protections in armed conflicts, many human rights abuses remain unchallenged because they either fall outside of the scope of armed conflict, or are not grave enough to be prosecutable under the ICC. (Buergenthal, et al., 2009). 1 The ICC will have jurisdiction over Crimes of Aggression in

3 Nonetheless, states and activists continuously strive for human rights protections through international human rights law. HRL is created through treaties, covenants, and customary measures. The UN s Universal Declaration of Human Rights is the most notable of these provisions. Although it is not considered hard international law like the Rome Statute, it is considered soft and customary international law. (Buergenthal, et al., 2009). Other examples of HRL include soft statutes like the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the Committee on the Elimination of Discrimination against Women (CEDAW), and the Convention of the Rights of the Child (CRC). Yet, unlike IHL, none of these conventions are self-executing, meaning there is no enforcement mechanism built into these covenants if there is a breach of law. (Clapham, 2013). Moreover, HRL covenants do not have an executing body like the ICC to enforce violations. Therefore, the international community sees these international covenants and treaties as mere guidelines for behavior rather than as actual law. (Hill, 2010). One of the important challenges that human rights proponents face is finding a way to prosecute human rights violations that may not amount to the severity of current ICL. While the UN Charter did create the International Court of Justice (ICJ) to apply breaches of international law, only states may refer other states as violators. (Justice, 2013). The importance of having a civil court, however, cannot be understated. Currently, the ICC s only remedies are criminal in nature meaning that its only actions against violators include imprisonment. (Court, 2013). Conversely, the ICJ applies civil remedies which traditionally mean fines and other monetary compensation for victims. (Justice, 2013). The lack of other mechanisms for achieving justice is a challenge for human rights supporters. (Clapham, 2013). 3

4 Understanding the Venues for International Civil Remedies Certain regional courts have been established for protecting human rights. The two most notable courts are the European Court on Human Rights (ECHR) and the Inter-American Court of Human Rights. The ECHR has been the most successful in its efforts. The ECHR was established by statute in 1998 and defines specific human rights that its member states are entitled to. (Rights, 2013). In an article comparing the ECHR to other human rights regimes, International lawyer, Mark Milanovic says, The ECHR system is by far the strongest of all human rights regimes in its ability to effectively secure compliance and have a direct impact on state policy. (Milanovic, 2011). In a study of compliance amongst human rights regimes, it was determined that the states compliance with decisions by the ECHR were close to 100% compliance, with only partial compliance characterizing some of the court s earlier cases. (Hawkins & Jacoby, 2008, p. 51). Nonetheless, the impact the court remains in Europe since it cannot apply its jurisdiction extraterritorially. Milanovic says, It is a jurisprudence of (at times quite unprincipled) compromise, caused mostly by the Court s understandable desire to avoid the merits of legally and politically extremely difficult cases by relying on the preliminary issue of extraterritorial application. (Milanovic, 2011). Therefore, the role of the court is limited to overseeing human rights abuses within Europe. The Inter-America Court of Human Rights has a far less compliance rate. The same study examining the ECHR examined 703 rulings by the Inter-American Court to determine compliance. Within the number of total cases examined, it was determined that approximately 4

5 50% of these orders were complied with. The researchers write, Full compliance occurred in five of the 81 cases for which there are compliance reports, or 6% of the total. In nine of those 81 cases, the state has not complied with any compliance orders, for an absolute noncompliance rate of 11%. Thus, 83% of the cases should be coded as having partial compliance. (Hawkins & Jacoby, 2008). The low compliance rate exemplifies that although the Americas have attempted to create a mechanism for ensuring human rights apart for global institutions, it may not always work. Some scholars attribute this phenomenon to the lack of enforcement. (Hill, 2010; Hawkins & Jacoby, 2008; Knox, 2011). The ECHR succeeds because the EU will issue sanctions and other deterrent mechanisms for states that do not comply, whereas the Inter- American system does not have a regional government that can similarly do this for their area. (Hawkins & Jacoby, 2008). Possible Solutions for Enforcing Human Rights Law One solution to this problem includes establishing new international laws and a court to prosecute less heinous crimes than those of the ICC. This outcome immediately presents many problems. First, a new international court would be difficult to create because it requires international consensus as well as statute planning, creation, and ratification. (London & Schneider, 2012). Moreover, one reason that the Rome Statue was accepted as legitimate is because it only prosecutes heinous crimes and does not easily allow for frivolous prosecution. (Glasius, 2002). A new criminal court that prosecutes smaller violations of HRL might be interpreted as broadening the scope of international power too much. Moreover, current ICL 5

6 does not have a mechanism for prosecuting corporations or states. 2 (Court, 2013). A civil remedy is therefore necessary since many human rights abuses currently occur within areas of labor, environment, states, and other areas encompassed in current HRL. The ICJ can apply principles of international covenants, treaties, and customary international law, but it does not frequently do so. In fact, as international lawyer, Eric Posner asserts, Usage of the ICJ has unmistakably declined. (Posner, 2004, p. 3). He attributes this trend to ICJ judges not applying the law impartially, but rather, doing so in a way that favored the interest of their home state or reflected cultural prejudices. (Posner, 2004, pp. 2-3). Although impartiality is always a concern in the representation within international organizations, this leads into Posner s second argument that the ICJ could not please major powers who would not be defied while maintaining loyalty to minor powers. Therefore, the ICJ remains unused because it cannot gain legitimacy. (Posner, 2004, pp. 3-4). The Problem of Legitimacy The question of how to achieve legitimacy is difficult. In their article on organizational legitimacy, John Dowling and Jeffrey Pfeffer write, Organizations seek to establish congruence between the social values associated with or implied by their activities and the norms of acceptable behavior in the larger social system of which they are a part. Insofar as these two value systems are congruent, we can speak of organization legitimacy. (Dowling & Pfeffer, 1975, p. 122). Using this theory, the international community likely views the ICJ judges impossible partiality as conflicting with the norms of acceptable behavior expected. 2 The ICC is limited to prosecuting high level individuals such as the heads of state. 6

7 Therefore, the most plausible solution for prosecuting violations of international human rights law in a civil setting would be by either refining existing HRL to have a self-executing enforcement mechanism that acts impartial, or finding alternative domestic courts considered to be legitimate that have a way of applying HRL. Yet, having individual domestic courts apply HRL when they have not traditionally done so can also be illegitimate if there is no definite standard of law that they are applying. This is the problem currently seen in the United States application of its Alien Tort Statute. In the case, Kiobel v. Royal Dutch Petroleum, the second circuit court held that it could not reach a decision by applying the provisions from statutes in HRL since these bodies of law are too vague to constitute customary international law. (Kiobel v. Royal Dutch Petroleum Co., 2013). If these international covenants had been more specific, it would mean wider application of its provisions in other forums besides the ICJ within the international community. Refining these international covenants is possible with enough support. I propose that international civil society s role in influencing current HRL can be influential enough to refine the laws into functional catalysts for protecting individual rights. The Role of International Civil Society in Shaping International Law International civil society is most commonly defined in reference to traditional civil society. If traditional civil society is neither state, nor international organization, yet neither market nor private business enterprise, then it is part of the Third Sector of international actors. This Third Sector includes voluntary civic and citizens organizations, churches, civil liberties organizations, service clubs, and literacy volunteers. (Anderson, 2000, p. 110). 7

8 Therefore, international civil society is a category of these modern collectives that is capable of manipulating social and political movements on a global level. The role that international civil society has played in shaping existing human rights laws is significant and indicative of its role as an international actor. Two of the largest victories in human rights law are the creation of the Ottawa Convention Banning Landmines and the adoption of the Rome Statute which created the International Criminal Court. (Anderson, 2000; Court, 2013). The steps leading to the Ottawa Convention Banning Landmines teach us important lessons about international civil society s role in shaping international law. The process began with a campaign from the International Committee of the Red Cross (ICRC) which brought attention to the stark rise in limb amputations being done on victims of landmines. Several other NGOs quickly bolstered the ICRC s cause by joining its campaign. These groups included NGOs from the United States, Germany, France, and the United Kingdom. As the campaign progressed, it drew more than 1200 NGOs from 60 nations. (Anderson, 2000, p. 105). What was interesting is how differently separate NGOs framed the issue. Some NGOs like Human Rights Watch and the ICRC saw landmines as a human rights law and humanitarian law problem while others framed it in terms of medical and public health, and development. (Anderson, 2000, pp ). There are a few reasons that scholars attribute to these NGOs success in creating the Ottawa Convention Banning Landmines. First, governments were not interested in these discussions and did not believe that creating the Convention was an attainable goal. Therefore, the harmless NGOs were able to discuss and negotiate without fear that government would 8

9 complicate the processes. Moreover, the language of the landmine ban was transparent and direct, and the convention was not an economic threat to arms makers. Most importantly, many governments felt that joining the Convention would be relatively risk free. (Anderson, 2000, p. 107). In this regard, states felt that joining with international NGOs would be a mechanism to counteract America s power to set agendas for issues like landmines and other rules of international law. The trend that all of these advantages have in common is that they represent an interaction between civil society groups, government, and international organizations. Therefore, it is significant because civil society groups established themselves globally as a recognized actor in the shaping of international law. The role of international civil society in the negotiations forming the Rome Statute is similar to the formation of the landmine ban. Specifically, it facilitated (and continuously examines) cooperation between state governments, international organizations and itself. (Court, 2013). This cooperation amongst different international powers is part of what has given international civil society legitimacy to create international law. A secondary form of power comes from the various methods used by international civil society in negotiations. In forming the Rome Statute, organizations and individuals lobbied state and intergovernmental representatives, wrote expert documents, reports, and journal articles, held seminars and discussions, dispersed information, sought financial support to pay for expert participation, and engaged in street action. (Glasius, 2002, p. 147). These efforts paid off in significant ways. International civil society s influence on the Rome Statute included expanding the power of the independent prosecutor in ICC proceedings 9

10 and drawing attention to gendered dimensions of international criminal law. NGOs wanted to expand the power of the prosecutor to allow him to recommend cases to the ICC. Without this role, the only parties able to refer cases to the court would be a state or the Security Council. Therefore, it was a human rights concern to have the prosecutor refer cases because many feared that states and the Security Council may not acknowledge abuses if it were not in their political interests. Expanding the role of the prosecutor acted as a check on state interests. (Glasius, 2002, p. 154). Moreover, many women s groups that were active in the negotiations for the Rome Statute wrote papers and held causes around gender issues in international law. These efforts established, among other gender issues like sexual slavery and rape, forced pregnancy as a war crime and a crime against humanity. (Glasius, 2002, p. 155). Consequently, the role of international civil society in shaping international law has been significant. In approaching how international civil society can influence human rights law in developing civil remedies, some parallels can be drawn between methods that have proven to be effective and current challenges. International civil society has made the most impact in creating multilayered governances, privatizing some aspects of governance and in reconstructing identities, citizenship and democracy through implementing policies and social programs. Binding all of these qualities is the degree of legitimacy that international civil society maintains. This legitimacy is drawn from the concept of democracy. NGOs are seen as representing the people in a nonthreatening, nongovernmental way. They have gained legitimacy through public support because they acknowledge that traditional governance is lacking. NGOs thereby 10

11 fill that need by backing the voices of the community. Critics recognize that international lawmaking has never been a democratic process. (Glasius, 2002, p. 161). Yet, the influence of international civil society in recent years proves that it can help create a pluralistic marketplace of ideas that makes international decision-making more of a participatory activity. Because international civil society s legitimacy is granted to it by the community, this quality helps overcome the main concern of legitimacy that international civil law courts currently face. Besides legitimacy, effective international civil law establishments should have statutes and covenants with definite terms, actors (like judges) who can be trusted to enforce fair judgments, proper enforcement mechanisms, and compliancy by states against whom judgment has been rendered. Based on the role international civil society has played in forming the landmine ban and the Rome Statute, it is likely that its role can be significant in addressing the need for a functioning civil law enforcement mechanism. Some NGOs stemming from the groups involved in forming the Rome Statute have recognized that the ICC is too limited in scope to address the plethora of human rights abuses that still go unaccounted for. (Court, 2013; Organization, 2013; Tribunals, 2013). International civil society has an important role in the further negotiations for developing an international civil law remedy. These NGOs must discuss the limitations of the International Court of Justice and the effectiveness of regional human rights courts in addressing human rights abuses. These discussions will likely revolve around the role of the global South which remains as one of the regions where human rights abuses are most rampant and where economic reparations can most significantly impact lives. (Glasius, 2002). Also, the 11

12 role of NGOs in fueling debate, acting as a conduit for civic education, and enhancing social cohesion will be significant in understanding how the public would like to define their rights. (Scholte, 1999). These definitions will be influential in reforming existing human rights covenants that lack enforcement mechanisms and the concreteness necessary to implement the laws in existing courts. Nevertheless, there will be some limitations to the impact that international civil society has on shaping viable civil law remedies. One of the largest concerns is that unlike discussions amongst NGOs in shaping the landmine ban and the Rome Statute, governments may be more threatened by a mechanism which enforces civil law remedies. Because civil law remedies include monetary settlements, states may fear that their own economic wellbeing will be put at risk, or may dissuade foreign investment from corporations which may face penalties for human rights abuses. States are more likely to be involved in the process of creating firmer civil law remedies than they were with international criminal law. Additionally, debates about enforcing human rights through civil law will likely revolve around international organizations instead of domestic courts. The United States has used its Alien Tort Statue in recent years to pioneer human rights by using domestic courts breaches of international law. There has been much criticism to this action, however, because enforcing international law in a domestic setting can be considered neocolonialism. All qualms with westernization set aside, the U.S. s Alien Tort Statute is one of the only civil law remedies applying human rights law with a high rate of both efficacy and compliance. (Giannini & Farbstein, 2010). It is likely that using a domestic court system to apply international human 12

13 rights law will not be agreed upon. Debates from NGOs will likely involve reforming the International Court of Justice to be more effective, creating a new international civil law system, reforming regional human rights courts to be better enforced, and creating selfexecuting mechanisms in existing international covenants so that they are more specific and pertinent to human right abuses. All of the aforementioned tasks will be complicated. Manipulating existing covenants and laws within international organizations will likely be met with more criticism, opposition, and difficult than working with individual nations on creating a remedy for international human rights abuses domestically. Conclusions Despite the win attributed to creating international human rights laws, there have been few functioning enforcement mechanisms in existence for protecting individuals of human rights abuses through civil remedies. Civil remedies are preferred to criminal law remedies because it offers monetary compensation and covers a wider variety of crimes than the ICC. (Knox, 2011). Currently, the ICC s subject matter jurisdiction is limited to grave breaches of international humanitarian law. (Court, 2013). Other, less heinous human rights abuses are adjudicated in the ICJ, or regional human rights courts. These courts have problems enforcing human rights law because of the lack of precise definitions in existing statutes, because of a lack of legitimacy, or because of an improperly functioning enforcement mechanism. (Posner, 2004; Hawkins & Jacoby, 2008). Therefore, the human rights that international lawyers and scholars hoped would be protected through the creation of human rights statutes have been vulnerable to abuse. 13

14 The role of international civil society in influencing human rights law for use in civil law remedies, however, has much potential. International civil society has been very effective in creating and supporting the Ottawa Convention Banning Landmines and the Rome Statue. (Anderson, 2000; Glasius, 2002). The main benefit of international civil society s role in shaping international law is the degree of legitimacy attributed to it from the community. Moreover, its ability to create multilayered governances, privatize some aspects of governance, and reconstruct identities, citizenship and democracy through implementing policies and social programs are all unique qualities that qualify its legitimization through the public. Because international civil society has been able to effectively organize globally for previous international law purposes, it is possible that the same mechanisms used to create the Ottawa Convention Banning Landmines and the Rome Statue will be just as effective in negotiating functioning civil law enforcement of human rights. Nevertheless, there are limitations to the role that international civil society can play in this regard. Most likely, this feat will be more difficult because nations will fear economic repercussions to establishing civil remedies for non-criminal human rights abuses. (Glasius, 2002). This disincentive for state cooperation will make it more difficult for NGOs negotiating for international cooperation and support. Furthermore, if discussions about venue refuse domestic courts as a possible mechanism for enforcing human rights law, then international civil societies would have the difficult task of either reforming the statutes of the ICJ and other regional courts, or work on creating laws for a new international organization. 14

15 Even with these possible limitations, the structures enabling international civil society to influence international human rights law for use in civil remedies are noteworthy. This includes the legitimacy granted to NGOs from the public, the environment in which NGOs are acting as new global actors in line with state governments, and international civil society s history of shaping international law. Despite the relative likeliness of international civil society succeeding in this endeavor, the realization of human rights abuses enduring without justice will surely evoke a response somewhere that enables action. Works Cited Anderson, K., The Ottawa Convention Banning Landmines, the Role of International Nongovernmental Organizations and the Idea of International Civil Society. European Journal of International Law, 11(1), pp Bank, I.-A. D., Inter-American Development Bank. [Online] Available at: [Accessed 23 November 2013]. Buergenthal, T., Shelton, D. L. & Stewart, D. P., International Human Rights in a Nutshell. In: INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL. 4th ed. s.l.:george Washington University Law School. Clapham, A., The Use of International Human Rights Law by Civil Society Organizations. In: N. Rodley & S. Sheeran, eds. Routledge Handbook of International Human Rights Law. Oxford, UK: Routledge. Court, C. f. t. I. C., Coalition for the International Criminal Court. [Online] Available at: [Accessed 23 November 2013]. Court, I. C., About the Court. [Online] Available at: [Accessed 24 November 2013]. Cross, A. R., Rules of War. [Online] Available at: [Accessed 21 November 2013]. 15

16 Dowling, J. & Pfeffer, J., Organizational Legitimacy: Social Values and Organizational Behavior. The Pacific Sociological Review, 18(1), pp Giannini, T. & Farbstein, S., Corporate Accountability in Conflict Zones: How Kiobel Undermines the Nuremberg Legacy and Modern Human Rights. Harvard International Law Journal, 52(1), pp Glasius, M., EXPERTISE IN THE CAUSE OF JUSTICE: GLOBAL CIVIL SOCIETY INFLUENCE ON THE STATUTE FOR AN INTERNATIONAL CRIMINAL COURT. In: G. Marlies, M. Kaldor & H. K. Anheier, eds. Global Civil Society Yearbook. Oxford, UK: Oxford University Press, pp Hawkins, D. & Jacoby, W., Partial Compliance: A Comparison of the European and Inter-American Courts of Human Rights. Journal of International Law and International Relations, 6(1), pp Hill, D. W. J., Estimating the Effects of Human Rights Treaties on State Behavior. The Journal of Politics, 72(4), pp Justice, I. C. o., Information. [Online] Available at: [Accessed 21 November 2013]. Kiobel v. Royal Dutch Petroleum Co. (2013) 133 S.Ct Knox, J., The Ruggie Rules: Applying Human Rights Law to Corporations. [Online] Available at: Electronic copy available at: [Accessed 21 November 2013]. London, L. & Schneider, H., Globalisation and health inequalities: Can a human rights paradigm create space for civil society action?. Social Science and Medicine, 74(1), pp Milanovic, M., Extraterritoriality of Human Rights Treaties: Overview. [Online] Available at: [Accessed 21 November 2013]. Organization, W. E. a. D., Women's Environment and Development Organization. [Online] Available at: [Accessed 21 November 2013]. Posner, E. A., The Decline of the International Court of Justice. Chicago, IL: The Law School, University of Chicago. Rights, E. C. o. H., The European Court of Human Rights, Questions and Answers, Strasbourg: Council of Europe. Scholte, J. A., Global Civil Society: Changing the World?, Coventry, UK: The University of Warwick. 16

17 Tribunals, P. o. I. C. a., Project on International Courts and Tribunals. [Online] Available at: [Accessed 22 November 2013]. 17