From Paris with love: The systemic integration of environmental law in the interpretation of UN human rights treaties

Reviewed by: The United Nations High Commissioner for Human Rights: Conscience for the World ed. by Felice D. Gaer & Christen L. Broecker Matheus de Carvalho Hernandez (bio) The United Nations High Commissioner for Human Rights: Conscience for the World ( Felice D. Gaer & Christen L. Broecker eds., Martinus Nijhoff Publishers, 2014), 398 pages (incl. index), ISBN 978-90-04-25424-4. The position of the United Nations High Commissioner for Human Rights was created at the end of 1993 by a unanimous vote in the United Nations General Assembly. The creation of this office was preceded by strong lobbying by NGOs (particularly Amnesty International) and state delegations (primarily the United States) during the Second World Conference on Human Rights, known as the Vienna Conference, in June of 1993. Throughout the Cold War, several negotiation attempts to create this office were hampered, on the one hand by the bipolar conflict between the United States and the Soviet Union—and consequently between the so-called “generations” of human rights—and on the other hand by the still incipient institutional strengthening of the international human rights system. The end of the Cold War, the “thawing” of the UN, and the consolidation of NGOs as international political agents established the conditions for the emergence of this position, which from then on assumed primary responsibility for human rights within the entire political-institutional framework of the UN. Despite the centrality of the position for the institutionalization of human rights within the UN and the fact that, bureaucratically, it has the rank of Under-Secretary General, there are very few studies and analyses on the High Commissioner for Human Rights and the office in the international literature. In this respect, this book is an extremely welcome addition to the small number of other titles on the topic, such as the works of Bertrand Ramcharan and the pioneering doctoral thesis by Roger Clark in 1972. As stated above, the book has its merits. The first, doubtlessly, is its originality. The second is the attempt to cover the most varied aspects of the High Commissioner and the office. In addition to the introduction written by the editors, the book is divided into five well balanced parts. The first part discusses the expectations concerning the work of the mandate holder and the office, analyzing its twenty five years of existence and making recommendations for its future. Besides the articles by the current High Commissioner, Navi Pillay, and the former High Commissioner, Ramcharan, the reflections of Michael Ignatieff on the possibilities for increasing the duties of the High Commissioner and of Harold Koh on the personification and institutionalization process contribute to the literature in the area. The second part addresses a recurring theme in the literature on human [End Page 971] rights: universality. The authors in this section, Michael O’Flaherty and Sunila Abeysekera, focus on how the High Commissioner operationalizes and promotes the principle of universality, or fails to do so, in its work, particularly in relation to the committees that monitor compliance with international human rights treaties (known as Treaty Bodies). In the third part, one of the main contributions of the collection starts to emerge: the little known or studied responses of the Office of the High Commissioner to systematic human rights violations. Felice Gaer, who is extremely knowledgeable about the UN human rights system, recommends that there should be more synergy and cooperation and less disputing and rivalry between the work of the High Commissioner and the Special Procedures. Christen Broecker and William O’Neill make a panoramic analysis of the work conducted by the High Commissioner’s national offices, located in several different countries around the world, demonstrating the political-institutional potential and difficulties of giving local significance to international human rights standards. Tseliso Thipanyane wraps up the third part by describing the relationship between the National Human Rights Institutions and the High Commissioner, the leading enthusiast of these institutions within the institutional framework of the UN. The fourth part is interesting in that it responds to the more skeptical literature concerning the political influences of the UN human rights bodies. Suzanne Nossel and Broecker show how the institutional maturity of the position of High Commissioner...

This chapter describes access to justice before International Human Rights bodies, focusing on the UN Human Rights Committee and the European Court of Human Rights. It also discusses the two human rights treaties, the requirement of exhausting domestic remedies, and issues of standing before the Human Rights Committee (HRC) and the European Court of Human Rights. One dimension of the effectiveness of access to justice on the international level relates to the existence and effect of interim measures of protection while a case is pending before an international body. In addition, availability of legal aid, and reform of the European court of human rights, are addressed.

The 2017 Annual Conference of the Association of Human Rights Institutes (AHRI) held at the University of Leuven (KU Leuven) in Leuven (Belgium) from 27 to 28 April 2017 is the one of the leading events among the professional associations uniting international law scholars in human rights field. The conference focused on issues of monitoring compliance with international human rights obli-gations of States in the activities of universal and regional human rights bodies, particularly UN human rights mechanisms, human rights treaty bodies and regional and sub-regional human rights mechanisms within European, Inter-American and African human rights systems. Within these issues a particular at-tention was paid to the interaction between universal and regional human rights systems, specifically the role of regional mechanisms in the promotion and protection of human rights and enhancing univer-sal human rights standards enshrined in international human rights treaties. The paper provides a brief review of the selected reports presented at the conference, which raised a particular scientific interest of the author. The author describes the reports devoted to: 1) factors de-termining adoption and enforcement of international human rights obligations by States; 2) States’ im-plementation of international human rights norms through the lens of interplay between the internation-al, regional and national levels; 3) the interaction between the universal and European human rights sys-tems (European Court of Human Rights with human rights treaty bodies and special procedures of the UN Human Rights Council).

In defence of human rights

The interpretation of human rights treaties is not often addressed from a formal legal perspective. This article argues that such a perspective is necessary, and that it would likely involve conceptualising part of the work of the UN human rights treaty bodies as conduct constituting subsequent practice establishing the agreement of the parties under Article 31 (3) (b) of the Vienna Convention on the Law of Treaties. The article draws from the jurisprudence of the International Court of Justice and the Dispute Settlement Body of the World Trade Organisation, as well as other international courts and tribunals, to postulate a framework for analysing the work of the UN treaty bodies if it were to be conceptualised in this way. The article sets forth likely requirements for the crystallisation of subsequent practice in the human rights context, before considering some of the implications of the proposed model.

The Chapter takes as a focus the interpretation given to the offence of torture given by the UK Supreme Court in the Case of R v Reeves Taylor in 2019. Even though Mrs Agnes Reeves Taylor was not eventually prosecuted for the alleged torture committed in Liberia in 1990, the idea that human rights treaties create offences to be prosecuted in the states parties, even where the individual belonged to a non-state actor, has confirmed that international law attaches to these private individuals and that the international human rights regime contains obligations for these individuals. This goes some way to busting the myth that human rights law derived from UN human rights treaties does not apply to non-state actors. The Chapter also considers the work of UN bodies such as the Security Council, Human Rights Treaty Bodies, Special Rapporteurs and Commissions of Inquiry that have already applied human rights norms to armed non-state actors. Lastly, it considers some factors that would affect a Commission’s choice of whether to describe an act of torture as a war crime or a human rights crime.

INTRODUCTION This chapter offers an overview of the role of the expert bodies set up under the core UN human rights treaties (see generally G. Alfredsson et al. (eds), International Human Rights Monitoring Mechanisms (The Hague: Kluwer Law International, 2001); P. Alston and J. Crawford (eds.), The Future of the UN Human Rights Treaty System (Cambridge University Press, 2000); P. Alston (ed.), The United Nations and Human Rights: a Critical Appraisal , second edn (Oxford: Clarendon Press, 2004)). Seven such bodies are currently in operation. These are the Committee on the Elimination of Racial Discrimination (CERD), which has been functioning since 1969, the Human Rights Committee (CCPR) (1976), the Committee on Economic, Social and Cultural Rights (CESCR) (1987), the Committee on the Elimination of Discrimination Against Women (CEDAW) (1981), the Committee Against Torture (CAT) (1987), the Committee on the Rights of the Child (CRC) (1990), and the Committee on Migrant Workers (CMW) (2003). All but one of these expert bodies have their role and composition defined in the respective treaties with which they supervise compliance. The exception is the Committee on Economic, Social and Cultural Rights (CESCR), which was established by Resolution 1985/17 of the Economic and Social Council (Ecosoc) and which was modelled on the Human Rights Committee created by the International Covenant on Civil and Political Rights (ICCPR).

“The amount of violations of human rights in a country is always an inverse function of the amount of complaints about human rights violations heard from there. The greater the number of complaints being aired, the better protected are human rights in that country.”― Daniel Patrick MoynihanIn the year 1945, the world envisioned the idea of Human Rights as Real Rights at universal level. This pronouncement came from the horse mouth, United Nations itself via United Nations Charter. The approach taken in this study is to determine the comparative notions between Charter based and treaty based System of Human Rights under the aegis of United Nations. In order to reach its ends of protection, preservation and promotion of Human Rights, these systems/bodies played a crucial role. Despite all prospective motion of these bodies, they have encountered more than a few problems in their functioning. This study intends to gaze in to those areas as well. There are number of characteristic problems, oriented towards these organs and their functioning. The fact apparent from the establishment of these organs and its independent machinery versus the ground reality of “being subjected” to Secretary General, General Assembly’s tutelages are one of the issues that have been portrayed in this discourse. Human rights are elemental to the United Nations. More recent UN actions embrace the adoption of international human rights treaties, the conception of the position of United Nations High Commissioner for Human Rights (UNHCHR) in 1993 and the organization of the Human Rights Council (HRC) in 2006. In 60th session, the General Assembly adopted the World Summit Outcome, resolution 60/1 of September 2005, which identified, inter-alia, for intensification of the UN's human rights apparatus.

Climate change is already being felt around the world, impacting a range of human rights including ultimately the right to life. While a healthy environment is a pre-condition for the enjoyment of rights, the environment is not mentioned in the foundational human rights document – Universal Declaration of Human Rights – nor is it specifically protected in subsequent international human rights treaties. This artificial division is partially a function of the separate development of international human rights and environmental law in the last century, which today needs urgently to be bridged. Progress is slowly being made, such as the 2021 Resolution recognising the right to a healthy environment by the UN Human Rights Council and the various petitions being lodged before human rights bodies. This column discusses the (long overdue) recognition of the human rights/environment nexus and the subsequent human rights turn in climate change litigation. In light of the challenges still faced when addressing the impacts of climate change under human rights law, we engage in (self-)reflection on the professional responsibilities of judges/decision-makers, lawyers, and scholars as active participants in the development of the law as well as the struggle for climate justice. We urge these legal professionals to be aware of the power they have in shaping these developments, and discuss how their role can be performed responsibly.

The individual communications procedure is a vital mechanism in international human rights law that enables victims to seek remedies when domestic legal venues have been exhausted or failed to deliver justice. Although Indonesia has acceded to almost all core international human rights treaties, its individual communications procedures have yet to be accepted. This study investigates the Indonesian Government’s human rights legal policy toward individual communications procedures acceptance through the ratification/accession of the ICCPR First Optional Protocol and ICESCR Optional Protocol, as well as analyzes the potential implications of such acceptance. This study utilizes a normative legal methodology coupled with interdisciplinary and conceptual approaches. In addition to analyzing legal materials, interviews were conducted with scholars, NGO activist, victim, and former Commissioner of Indonesia’s National Human Rights Commission to deepen the analysis. The findings reveal the Government’s lack of political will to accept individual communications procedures due to a tendency to avoid adjudicatory human rights accountability mechanisms and the avoidance of possible compliance costs, such as financial, reputational, and political burdens. Furthermore, this study demonstrates that these procedures’ acceptance has potential implications for opening access to justice for victims, providing strategic litigation channels, and facilitating interaction between treaty bodies and the national judiciary regarding the development of interpretations of human rights through judicial dialogue. The Government should consider ratifying/acceding the ICCPR and ICESCR Optional Protocols to strengthen the domestic human rights protection infrastructure and enhance its reputation as a promoter of human rights.

Enforcement: practice and potential Over the past decades a broad range of international institutions, mechanisms and procedures have been set up to promote human rights, assist states in implementing human rights norms, scrutinize states’ adherence to these norms, prevent human rights violations and offer remedies for victims of such violations. The main human rights bodies created under international law – the UN Human Rights Council (and its predecessor, the Commission on Human Rights), the UN Office of the High Commissioner for Human Rights, the UN treaty bodies, the Inter-American Commission and Court of Human Rights, the European Court of Human Rights and the African Commission on Human and Peoples’ Rights – have all repeatedly been confronted with situations of armed conflict. A certain practice of human rights bodies with regard to armed conflicts has emerged which necessarily reflects a human rights view of armed conflict. What these bodies have to say on the continued application of human rights law in such situations and on the interplay of humanitarian law and human rights law can inform the debate on human rights in armed conflict and carries with it the authority of institutions specifically designed to promote and protect human rights at all times, even though situations of armed conflict did not take centre-stage in the mind of their creators.

This article analyses the role that human rights bodies play in triggering the application of criminal law. By examining the jurisprudence of the Inter-American Court of Human Rights, the European Court of Human Rights, the UN Human Rights Committee, as well as other human rights bodies, the article discusses how these institutions have started imposing on states positive obligations to criminalise, prosecute and punish serious human rights violations. While criminal law has traditionally been seen as a threat to fundamental rights, human rights bodies have contributed to presenting criminal law in a positive vein, as an essential instrument of human rights protection. The mainstream of the human rights movement has largely lauded the trend. This article challenges this view, by presenting the pitfalls of using human rights law to extend the reach of criminal justice in order to ensure that perpetrators are held accountable. Not only the imposition of duties to criminalise and punish ends up restricting the accused’s fundamental rights and neglecting the conceptualisation of criminal law as ultima ratio, but the invocation of criminal-law enforcement might also contribute to enhancing the coercive power of the state and, therefore, make state abuses more likely.

This study analyses US state court behaviours in citing international human rights treaties to advance human social rights. Employing case analysis and logistic regression, we find that US state court citation practices to human rights treaties provide support for human social rights depending upon the type of human rights treaty cited; whether the case opinion is a published decision; and, whether the judicial opinion is a criminal or civil case. These judicial citation practices provide US state judges with the institutional capacity to advance universal human social rights. Theoretical and empirical implications are presented in the concluding section.

The today universal recognition of 'inalienable' human rights implies that the legitimacy and legality of all government measures, including rules and decisions of intergovernmental organizations, depend also on their respect for human rights as defined in national constitutions and international law. This contribution argues that the universal human rights obligations of every Member of the World Trade Organization (WTO) pursue objectives (like protection of personal autonomy, freedom of choice, legal security) that complement those of liberal trade and may be legally relevant context for the interpretation of WTO rules (chapters I-II). The human rights approach to international trade advocated by the UN High Commissioner for Human Rights (chapter III) could, like the 1996 WTO and 1998 ILO Declarations on core labor standards (chapter IV), promote synergies between human rights law and GATT/WTO law. The 'basic rights approach' to trade liberalization in European integration (chapter V), as well as the GATT-, WTO- and EC dispute settlement jurisprudence (chapter VI) confirm that, on the level of principles, human rights and liberal trade rules do not conflict with each other. The emerging 'human right to democratic governance' requires, however, more effective parliamentary involvement, citizen participation, and 'deliberative democracy' in WTO matters (chapter VII). A WTO Declaration (1) confirming the commitment of WTO Members to respect their existing human rights obligations in all policy areas; (2) supporting the progressive development of human rights through the competent UN and other human rights bodies; and (3) welcoming the UN initiatives for harnessing the complementarity of WTO rules and human rights for welfare-increasing cooperation among free citizens, could enhance the 'input-legitimacy' as well as the 'output-legitimacy'of WTO negotiations -- without creating new WTO obligations or new WTO competencies. The limited mandate of the WTO, however, and the divergent human rights concepts and diverse constitutional traditions in WTO member countries, make a consensus among WTO Members on such a Declaration unlikely. Even though the WTO should leave the interpretation, monitoring, and progressive development of human rights to specialized human rights bodies outside the WTO, WTO dispute settlement bodies may be legally required to address arguments that human rights may be relevant legal context for interpreting WTO rules (chapter VIII). Oxford University Press 2004; all rights reserved, Oxford University Press.

The obligations set out in UN human rights treaties are open-textured and evolutionary, therefore they present a particular challenge in articulating the basis of a substantive breach that is universally applicable. Universal applicability, however, is a primary goal of international human rights and fundamental to the recognition of a jus commune of human rights. As the specialist supervisory mechanisms of the core UN human rights treaties, the human rights treaty bodies must balance the progressive realisation of rights against the historic state sensitivity to interference in domestic affairs, an exercise that has often put the treaty bodies at odds with states. Review of treaty body jurisprudence suggests that migration toward a procedural approach to human rights violations may resonate more naturally with states due to the simplicity of establishing procedural infractions. This observation stems from examining how treaty body jurisprudence is utilised in national judicial decisions. It is argued that proceduralized decisions aid in the establishment of human rights jus commune by slowly moving away from value-based determinations, a practice that sits more easily with States. This migration is reflected in two identifiable practices. The first sees states in breach of obligations based on the failure to adhere to rules of procedure or procedural obligations under a treaty. The second bases a breach determination on the procedural dimension of a substantive right. The lingering question is whether this is a positive development in the overall protection of human rights and how this impacts the growing common law of human rights. An examination of treaty body jurisprudence across the UN treaty bodies will allow the proceduralization of human rights at the international level to be evaluated in terms of individual human rights protection. The tedious balance that must be maintained in order to advance the human rights jus commune should be evaluated from a universal perspective to assess whether proceduralization of rights adds to or detracts from the overall human rights project.