Philip Alston on a World Court for Human Rights

JOHN TESSITORE: Hello and welcome to another in our series of interviews with leading members of the academic and policymaking communities, sponsored by the Carnegie Council for Ethics in International Affairs.

I am John Tessitore, executive editor of the Carnegie Council and editor of the Council's quarterly journal, Ethics & International Affairs. Now in its 28th year, we are published by Cambridge University Press.

I am delighted to have with me today Professor Philip Alston, whose essay entitled "Against a World Court for Human Rights" appears in the Summer 2014 issue of Ethics & International Affairs as part of a special roundtable on the future of human rights.

This is one in a series of roundtables that has been published to commemorate the Carnegie Council's 100th anniversary in 2014 and that also features contributions from Beth Simmons, James Nickel, Jack Donnelly, and Andrew Gilmour.

Professor Alston is currently the John Norton Pomeroy Professor of Law at New York University School of Law, and the UN special rapporteur on extreme poverty and human rights. Among his many other previous positions, and there have indeed been many, he was, from 2004 to 2010, the UN special rapporteur on extra-judicial summary for arbitrary executions, and was the legal advisor to UNICEF during the drafting of the UN Convention on The Rights of the Child.

He is the author, with Frédéric Mégret, of United Nations and Human Rights: A Critical Appraisal and with, Ryan Goodman, International Human Rights in Context, as well as a great many other books and articles.

Welcome, Professor Alston. It is a great pleasure to have you with us today.

PHILIP ALSTON: Thanks, John.

JOHN TESSITORE: Let's begin our discussion broadly, if we may. In the present international legal system, tell us briefly how many human rights violations are adjudicated, and by what relevant treaties—international instruments, or bodies? If I may also add, do these work in concert or completely independently?

PHILIP ALSTON: It has to be acknowledged that the existing system is highly fragmented. There isn't a single, coordinated system, by any means. Essentially, we have courts at the apex of the system, which exist at the regional levels in Europe and in Latin America.

But for the rest of the world, we have various United Nations mechanisms, which involve things like soft procedures, whereby states report to expert committees, or to a political body like the UN Human Rights Council, and those bodies do some sort of assessment.

In addition to that, there is a growing system whereby the Security Council, or the Human Rights Council, set up some sort of commission of inquiry to investigate specific allegations in a given situation or country.

So it's a very complex system, which, of course, could do with simplification, if that were possible.

JOHN TESSITORE: Thank you.

Let's move then from that broad overview to some specifics, most particularly, the Swiss government recently proposed the establishment of a World Court of Human Rights, which by the very title of your essay, you are clearly against.

But before we get into the reasons why you are against it, could you tell us what such an institution would look like, according to that proposal, and what specific human rights issues would this court deal with?

PHILIP ALSTON: The proposal is modeled very much on what the European Court of Human Rights looks like. In essence, you would have 21 judges. The court would be permanent. The judges would be completely independent, and they would be able to issue a "final and binding judgment" on any human rights complaint that is brought to them.

The complaint could concern either actions by states, which is what we have in some situations now, or actions by what are called "non-state actors," like corporations or international organizations, and a range of other groups.

The court would then have the power, basically, to order that certain actions be taken. The UN high commissioner for human rights would be required to follow up, and if the high commissioner wasn't satisfied, he could refer it to the Security Council, which in theory could impose sanctions against the state, if it fails to do what it's being ordered to by the court.

JOHN TESSITORE: Given what you've just described, let's look at the practical issues involved, and obviously there are quite a number.

Specifically, under the current human rights and global governance regime, how do you think a world court of human rights would be received, especially by, let's say, such key states as the United States, China, etc.?

PHILIP ALSTON: The United States and China are actually the easy cases because they stand out as two countries that have very assiduously and consistently resisted involvement in any strong human rights mechanisms at the international level. So they would have no interest in this, and would certainly take no part in it.

Much more problematic, really, is the track record of regions—in particular, Asia—over 50 percent of the world's population, and virtually none of the Asian states is at all keen on strong human rights mechanisms, let alone setting up some sort of court. Similarly, the Middle East has been entirely resistant, and Africa, although it has set up an African court, its governments show remarkably little appetite for these sorts of initiatives.

JOHN TESSITORE: You've given us a good overview of various national and regional responses. Let's get your personal position on this.

Given that proponents of a world court of human rights are clearly driven by the laudable desire to protect and enhance human rights across the globe, what could possibly be wrong with such an idea, aside from the fact that there are obviously political obstacles?

PHILIP ALSTON: Fair question. At an instinctive level, the idea of having a single world court that's going to adjudicate and resolve every human rights issue in the world should be appealing. The problem I have, first of all, is that it's a bit like saying we really need to eradicate poverty, so I propose that every poor person be given $1,000 a week.

Now, if we've not been able to do anything much more basic and rudimentary to the point where we still have a couple of billion people living in extreme poverty, it doesn't make much sense to jump from that point to say, "Let's give some extremely generous handout."

I think this suffers from the same problem, that we go from a situation in which governments are very reluctant to really cooperate internationally on the human rights front, also to much softer arrangements and mechanisms are being resisted or ignored, to prescribing a model which is extremely demanding and intrusive.

I think it is not just pie in the sky, as we say, but more importantly, it focuses attention on the wrong set of issues. It gets us going down a highly legalistic route, rather than looking at the much more complex challenges that I think we need to address.

JOHN TESSITORE: Do you want to follow up on that? I understand that you're taking issue with the pragmatic side, and there's something rather Utopian here. But you've just indicated that you say it's taking us down the wrong path. What's it leading us away from and toward?

PHILIP ALSTON: There's an assumption, which many proponents of human rights share, that the best and the ultimate answer to human rights problems lies in courts. Now this is a very American approach, that if you have a right, it's only meaningful if you can take it to a court and get an order. It's becoming a much more European approach in the human rights area, because the European Court of Human Rights has set that precedent, such that 800 million people are now able to take a complaint to the Strasbourg court, and get some sort of satisfaction.

But, when we're looking at the overall set of human rights challenges for the entire globe, the idea that setting up a court is the answer overlooks all of the many intermediate steps that would need to be taken. We need to build a culture of human rights, which is a very long, time-consuming process. We need to start to improve some of the mechanisms that already exist, make them more effective; persuade governments to be more cooperative; and we need to try to mobilize the many international organizations and other actors who continue to be very skeptical of the human rights agenda.

Until we've tackled that really major set of problems, it doesn't seem to me to make much sense to say, "Well, let's not worry about all of that. We'll just jump to the end point, and proclaim that there should be a world court."

JOHN TESSITORE: Those comments rather nicely dovetail into my next question.

The Swiss proposal recognizes the European Court of Human Rights as the most advanced functional model for a world court. But it also signals that this proposed World Court of Human Rights would help make up for certain weaknesses in the European court itself.

Tell us, do you agree that there are weaknesses in the European court, and what lessons could proponents of a World Court of Human Rights learn from the European court?

PHILIP ALSTON: That question goes in two different directions. The first direction really involves the issue of what are the powers that the European Court of Human Rights currently lacks, which proponents of the world court would like to see that initiative have.

JOHN TESSITORE: Precisely, yes.

PHILIP ALSTON: So basically the European court has a very limited capacity to undertake on-the-spot fact finding, in other words to actually go and ascertain what is going on.

JOHN TESSITORE: Is that because of a lack of judicial mandate, or a lack of pragmatic issues like lack of funding and staffing?

PHILIP ALSTON: It's much more a lack of resources, as well as a lack of governmental enthusiasm. Even the governments of Western Europe—and if you look at the pushback from the United Kingdom and others at present, the idea that the court would actually send a delegation, which would be empowered to go wherever it wanted to, to interview whomsoever it wanted, and so on, in connection with any case, would be pretty controversial. Yet that's one of the many features of the world court proposal.

One of the other issues, which is increasingly prominent on the international agenda, of course is the inability of the international system to deal with corporate power, transnational corporations, and others that are not formally subject to human rights standards. So the world court proposal simply tries to transcend all of those complex issues and says that corporations can be parties to the world court, can agree to abide by all of the many human rights treaties that the court would have under its jurisdiction, and can be subject to orders from the court.

Now that really just downplays a lot of very complex issues, quite apart from the political resistance, which would be fairly obvious to most observers.

JOHN TESSITORE: I see. Then maybe I'm just going to switch the discussion slightly here, and talk about global courts more generically.

Arguably the two closest things we have to universal judicial organs are the International Court of Justice and the International Criminal Court (ICC).Where have they found their success, and what are their limitations? And if you want to make the connection, are there lessons to be learned here, for such a potential World Court of Human Rights? Are those lessons positive or negative?

PHILIP ALSTON: The accepted starting point, I think, is that the International Court of Justice has been successful and effective in a limited range of areas, and human rights is not one of those. It doesn't get many cases on its docket. States have to agree to any litigation. Only states can appear, not individuals or other actors. The court has been very reluctant to take on human rights issues for fear of discouraging states from using it in other areas. That much is pretty well agreed on.

So then you've got the model of the International Criminal Court, and that is indeed one of the inspirations of the proponents of the world human rights court. They say very simply, "Look, there was a proposal for an international criminal court back in the 1940s. People thought it was Utopian. It's been much criticized in the intervening decades, and yet, because we persisted, it actually happened, and now we have an International Criminal Court. So this is the same route that could be taken with the world court of human rights."

Then we have to look at the downside of that. The International Criminal Court is clearly a huge achievement. But, first of all, it's a very limited precedent because we're talking about a court which is able to conduct a very small number of cases against a very small number of individuals.

Secondly, the court is very costly—about $160 million a year, for the handful of cases that it does. Thirdly, it's not proven itself to be particularly effective in terms of being able to carry out investigations and really follow through on effective prosecutions.

So while the International Criminal Court hopefully has a bright future, it's going to have to struggle to really establish itself. It certainly doesn't provide grounds for optimism that an infinitely more ambitious court would be agreed to by states, or would be able to establish itself effectively in the even distant future.

JOHN TESSITORE: I see.

Let me take you back to your own essay. There you state, and I'm quoting directly, "The world court of human rights misconceives the nature of challenges confronting an international community dedicated to eliminating major human rights violations." Tell us what these challenges then are and why do they foreclose the idea of a world court?

PHILIP ALSTON: As I said earlier, the challenges are not primarily judicial challenges. The reason why governments are violating human rights on a grand scale is not because there is an absence of a world court. The reason is that human rights culture has not taken off sufficiently in a great many countries.

The attempts that have been made so far to set up bodies that will impose meaningful constraints upon governments have been hugely resisted. Change in this whole area, even though it has been pretty dramatic by overall historical standards, is nonetheless rather slow and incremental.

If you take the case of the United States, which would seem a relatively easy one, the Universal Declaration of Human Rights was drawn up in 1948, and so too was the convention against genocide. It took the United States 36 years to become a party to the very first international human rights treaty, which was the Genocide Convention. By that time, there were all sorts of other human rights treaties but the United States was not prepared, at that stage in 1948, to become a party to them.

It has since moved very slowly to accept several other treaties, but has avoided all of the various mechanisms that would enable international bodies to look at specific cases, and to come up with outcomes that the United States would be obliged to take seriously.

JOHN TESSITORE: Including the ICC, of course.

PHILIP ALSTON: So if you have those sort of problems from the United States, one doesn't need to think too hard to look at the even greater resistance from countries in Asia and Africa, in particular, to realize that it's going to be a very time-consuming process to try to persuade people in these countries, first, and then their governments to accept more intrusive and demanding mechanisms.

JOHN TESSITORE: Understood, and indeed in both your essay and in this conversation, you make a very strong argument that a world court of human rights would not be helpful, and apparently, perhaps, even in some ways be counterproductive in terms of enhancing human rights across the globe.

Let me try to throw something else at you, and ask you if there is a plausible alternative of some sort that you think might work better?

PHILIP ALSTON: We've long talked about the idea of setting up regional mechanisms, first of all, and then subsequently regional courts. Those exist now in Europe and Latin America, in very advanced forms. They exist in a rather embryonic form in Africa. We need very much to develop the African system, so that it becomes effective in a way that it simply is not yet.

We need to begin to develop mechanisms to cover Asia—as I said, more than half of the world's population. There's no Asian commission on human rights. There's no context in which the governments of Asia get together and discuss human rights, except for a very small initiative on the part of the Southeast Asian states, in ASEAN (Association of Southeast Asian Nations).

So we need to move to set up those sorts of building blocks, but that's, in itself, an agenda for the next 20 or 30 years, and only long after that has happened could one realistically start thinking about a world court.

JOHN TESSITORE: Let me pick up then on this forward-looking perspective that you're suggesting. I would be remiss if I did not mention that some of your co-contributors to the Ethics & International Affairs roundtable write rather optimistically about the future of human rights.

For instance, Beth Simmons characterized the movement as having, "significant accomplishments, good momentum, and a flexible structure to respond to challenges in the years to come." That's a rather upbeat, forward-looking perspective.

What is your take on the future of the international human rights regime? Is she right? Do you feel positive? Do you feel negative? Do you feel something in between?

PHILIP ALSTON: I think it all depends where you start, of course. In other words, what your aspirations are. There are still many people who will be very dismissive and say, "Look, governments are never going to respect human rights. That's not their nature. The international organizations are never going to be able to constrain them, and that's it."

Beth Simmons is quite right in saying, "Well, in fact, over the last 50 years or so, there has been very considerable progress beyond that point." There are now lots of mechanisms, which core governments do account and which generate pressures of different sorts and with different degrees of effectiveness on those governments.

So I think there's been a lot of progress. We should also, however, come at it from the other end, which is that there are massive violations of human rights continuing, and that in many of the worst situations, the international arrangements that have been set up remain pretty marginal, to say the least.

My closing comment, I think, would be to suggest that human rights will always be on the back foot, or on the defensive. This is an attempt to really change in fundamental ways, the ways in which people think, and the ways in which governments act.

So the aspiration is enormous. The pushback will always be significant, and it's inevitably going to be a gradual process, but one that is historically and morally absolutely critical.

JOHN TESSITORE: Understood. And well, as you say, we will stop here. But this has been a very, very good conversation. I'm most grateful.

Once again, we've been speaking with Professor Philip Alston, whose essay "Against a World Court for Human Rights" appears in the Summer 2014 issue of Ethics & International Affairs, as part of a special roundtable on the future of human rights. That essay, as well as much more, is available online at eiajournal.org.

I also encourage listeners to follow us on Twitter, where our handle is @EIAJournal. Finally, I want to thank again Professor Philip Alston most sincerely for joining us today, and to wish you all the best in your important work ahead.

PHILIP ALSTON: Thanks, John. My pleasure.

JOHN TESSITORE: Again, this is John Tessitore for the Carnegie Council and the Council's journal, Ethics & International Affairs. Thank you for listening.