As an academic and practicing lawyer on international human rights law, I recently read an entry on www.ejiltalk.org, the blog of the European Journal of International Law, subscribed by Dr. Joanna Harrington, a professor at the University of Alberta. This entry was published on August 5, 2015, just some days after the end of the last session of the Human Rights Committee. This session was remarkable. Perhaps I should say this session drew intensively the attention of some media. Why? Canada and the Committee clashed on the scope and interpretation of some legal provisions of the International Covenant on Civil and Political Rights (hereinafter ICCPR) in the context of certain extracting activities carried out abroad by some Canadian corporations.
As long as I read each paragraph I was increasingly realizing her unconformity with the Committee, its interpretations and its chairperson… and with the national and international NGOs and national human rights institutions that commonly take part of its working methods, and somehow with the UN treaties machinery as well.
I do agree with Dr. Harrington when she expresses that Human Rights Committee boldness has been expanding over the time. In fact, all international human rights systems have faced radical changes since the Berlin Wall was brought down. The Vienna Conference (1993) and the evolutive transformation of the former Center for Human Rights into the current High Commissioner for Human Rights, the increasing seriousness given by states to human rights issues in their international dialogues, the instauration of the international criminal special tribunals, and then the implementation of the International Criminal Court, the elimination of the UN Human Rights Commission and the manipulation it did on many human rights themes due to its highly political contamination, and the emergence of the Human Rights Council, are some benchmarks in the route to take human rights out from the international political agenda, and to reconfigure human rights institutions toward their missional role, i.e., to protect the victims of human rights violations, through the objective methodology granted by juridical debates, arguments and interpretations, instead of the subjective, interested and convinience-based decisions adopted by a political method.
If a name is required to describe such evolution I propose “juridification” of human rights. One of the consequences of such juridification at international level implies the recognition of the special features of international human rights treaties. In a few words international human rights treaties are not traditional treaties where contracting States exchange reciprocal obligations under the frame of a synallagmatic relationship. The traditional kind of treaties is the most common in public international law, and represents its classic feature: ordre private. But an increasing ordre public also composes current public international law.
These traditional treaties gave birth to an ancient understanding of international law. In the entry I read, Dr. Harrington invokes a 1923 advisory opinion adopted by the International Permanent Court of Justice, in the Question of Jaworzina, a case regarding a dispute on the delimitation of the frontier between Polish and Czechoslovakia; in particular she recalled the traditional principle formulated as ejus est interpretare legem cujus condere, meaning that the authentic interpretation of a treaty is the one made by all its parties. I immediately wondered. Am I reading an entry on juridical archeology? Is international law evolution the product of my flexible imagination solely? My surprise was even bigger when I read some of her expressions against one of the assertions made by the Committee chairperson during the dialogue with the Canadian delegation held on July 7, 2015. He said: “The final arbiter for interpreting the Covenant is the Committee, not individual states”. And I do agree with him.
Well, now is clear. Dr. Harrington considers that in modern international law, and particularly on international human rights law, the subjective interpretation of the States must prevails instead of the objective interpretation of the body created to supervise whether or not States comply with their commitments. Probably she has not considered the main differences between public international law and international human rights law; while the first one has developed concepts and theories based on traditional interstates relations, intra-states relations have modeled the latter. Indefectible there will always be a tension between these two perspectives, however an academic-based attitude should be geared to discover, reflex, and explain them, instead of ignore them.
When I refer to interstates relations I always highlight that states are set on an equal foot. Their relations are relations among equals. Nevertheless, an intra-state relation is a relation between states –as international community– toward protection of human beings or other global relevant values. In these relations states are obliged by themselves to protect and provide guarantees to human beings rights under their jurisdiction, on a non-discrimination basis, and those human beings do not assume any undertaking or commitment in exchange. In other words, there is not a synallagmatic relationship. The intra-state relations are not based on the ordre private, but on the ordre public. What a difference!
The European Court of Human Rights, the Inter-American Court of Human Rights, the UN Committee on Human Rights, and the International Court of Justice have described this feature of international human rights law in many of their judgments. This feature is also easy to understand when international treaties of human rights are contrasted with traditional treaties. If the contrast is made under the perspective of the reservation to treaties, such understanding is easy. The Vienna Convention on the Law of Treaties rules on reservations on treaties under the perspective of traditional treaties, and it mainly prescribes that states might formulate reservations only if such reservations are not prohibited (articles 19.a and 19.b) or are not incompatible with the object and purpose of the treaty (article 19.c). If a state formulates a reservation, the other states parties to the treaty are able to determine from their own particular approach, whether or not such reservation is compatible with the object and purpose of the treaty (VCLT, Article 20). Generally speaking, if a state formulates an objection to the reservations made by other state, it may oppose to the entry into force of the treaty between itself and the reserving state, but if it does not oppose the treaty will entry into force but the provisions reserved will not apply in their mutual relations. Result: traditional treaties are treaties à la carte.
The ICCPR is not a traditional treaty. This does not mean that states are not allowed to formulate reservations to it. They may formulate reservations, but the determination about their compatibility with the object and purpose of the treaty is not an attribution of the other states. The obligations instituted by the ICCPR are not interstate obligations, so it would be unreasonable to provide them with the opportunity to effectively object to those reservations. In practice, states formulate reservations and other states object to such reservations, but that is only in a declarative sense aimed to convince the reserving state to retire it. An example is useful. When Pakistan ratified the ICCPR formulated a reservation to article 40, in the sense of not recognize the competence of the UN Human Rights Committee to consider and conclude on periodic reports submitted by states parties. Many states objected that reservation considering that was incompatible with the object and purpose of the ICCPR. One of those objecting states was Uruguay. If this situation is understood under the terms of a interstate relation, article 40 ICCPR would not apply between Pakistan and Uruguay. Does it mean that Uruguay, who has not reserved on such article 40, is now authorized to not submit those periodical reports to UN Human Rights Committee? Absolutely no. This is uncontestable evidence that traditional logic does not operate on the field of international human rights law.
Bearing in mind the ICCPR, who is authorized to decide if a reservation is or not compatible with its object and purpose? On traditional treaties –again, those based on ordre private– that decision is left to the states, but this cannot be the right answer to ICCPR; particularly its underlying ordre public demands other rationale. In this treaty, the Committee is the only one able to make such determination.
Treaties based on ordre private rest upon on a subjective paradigm. This is clear on reservations, as expressed previously. But on interpretation this paradigm also displays its particularities. The first step on interpretation is good faith as attitude and accordance with the ordinary meaning of the words used in the provision, in the context of the treaty and in the light of its object and purpose (VCLT, Article 31.1). But the context implies the preamble, annexes, and any other agreement made between the parties; in addition to the context it also has to be considered any interpretative agreement made by the parties, the practice of the parties, and any other rule of international law applicable to the parties. In sum, the interpretation of these treaties depends directly of the parties, their intentions and interests.
Quite different is the interpretation of the human rights treaties. Firstly, these treaties have their own rules on interpretation. Secondly, its interpretation follows an objective paradigm, and consequently the intention of the parties is pretty irrelevant. Thirdly, such interpretation is evolutive and guided by the effet utile principle, aiming the effective protection of human beings. Then in this kind of treaties, it is unreasonable to consider that states are able to pronounce the ultimate authoritative interpretation. Any international effort to give protection to human rights will indefectible fail, if states parties say the last word on interpretation of human rights treaties. It would be as setting the fox to guard the henhouse. In these treaties, the organs created by them have the role to verify whether or not states comply adequately with their commitments to protect and ensure human rights to all human beings under their jurisdiction, and so, these organs are vested with the authority and legitimacy to pronounce the final word on the interpretation of such treaties.
Is possible any other interpretative paradigm to ICCPR? In my mind a state vested with the authority to provide the authoritative interpretation of a norm that imposes on that state an obligation does not fit. I do not want to imagine how a tolerant state on female circumcision, will interpret the provisions of the ICCPR that prohibit torture and other cruel, inhuman or degrading treatment or punishment. Surely someone will say that an assembly of states parties would have the legitimacy to issue any authoritative interpretation, however I have never heard about meetings of states parties where they had analyzed, discussed, and adopted an authoritative interpretation on ICCPR, and this treaty will have soon 40 years of having entered into force, and during that time none of the states has demonstrated the interest to do it. I cannot see the urgency or necessity to do it now, when evolution on understanding public international law advances by a different way.
As in many other fields on legal issues, suddenly one or other interpretation will not deserve claps. In many of these situations, when a state whose behavior has been considered somehow in not conformity with the treaty, with high probability this state will hardly give a clap on such interpretation. It is always helpful and advisable to call a spade a spade. On November 2014, the UN Committee on Human Rights requested Canada to provide information on measures taken or envisaged to monitor the human rights conduct of Canadian extracting companies operating abroad. In particular, the Committee requested detailed information on the available legal venues in Canada where victims of human rights abuses arising from overseas operations of such Canadian companies could bring their complaints. Canada provided information on the enhanced official strategy on corporate social responsibility and on the jurisdiction of its civil courts to receive complaints lodged against defendant Canadian corporations, and the margin of such courts to proceed or decline on the exercising of jurisdiction. On July 2015 this Committee considered the periodic Canadian report, the complementary information provided by Canada and requested by the Committee in a list of issues, and held a dialogue with a Canadian delegation, as usually happens.
As a result, the Committee adopted its concluding observations on Canada. In the public version of such observations –currently unedited but available at www.ohchr.org– the Committee expresses its concern on the alleged human rights abuses by Canadian extracting corporations operating abroad, and formulates some recommendations to Canada in order to enhance the effectiveness of mechanisms to ensure that those corporations do respect human rights in their operations abroad. Although Canada affirms that any victim of those abuses, since are abroad, are not “generally speaking” within the limits of the Canadian jurisdiction and neither under such jurisdiction, meaning that Canada is not obliged to ensure their rights. However ICCPR prescribes –Article 5.1– that nothing in such covenant may be interpreted as implying for any State, group or person, any right to engage in any activity or perform an act aimed at the destruction of any of the rights and freedoms recognized therein. Consequently even though the first obligation under ICCPR is the protection and guarantee of the rights of all human beings under the jurisdiction of the states, this provision may not be interpreted as a loophole whereby anyone may abuse of the rights of the others just because his/her/its actions take place out of a particular jurisdiction. In modern international law, the obligations to protect and ensure human rights are erga omnes obligations for the protection of humankind.
Restrictive approaches on international human rights law are not admissible. A restrictive approach is one aimed not to consider that this emerging part of public international law has its own rules, doctrines and paradigms. The use of classical rules, doctrines and paradigms to understand how international human rights law functions, can mislead any intellectual effort. The protection of human rights at a global level requires new attitudes and techniques for the analysis of phenomena and reality. At the end of the day, international law, as any other law, is not a purpose per se, but an intellectual tool to achieve other purposes and values, precisely those linked with liberty, solidarity and justice.