Regional courts have played an important role in addressing the challenges of reconciling the protection of national security and respect for human rights. The European Court of Human Rights has a well-known history of pronouncing itself on the complexities of situations as diverse as Russia’s role in Chechnya, the United Kingdom’s struggle with IRA terrorism, and Turkey’s relationship with the PKK and other militant groups. The Inter-American Court of Human Rights has also addressed many questions involving national security, not the least of which have concerned some of the policies and practices of the United States.
This track record raises the question of whether a World Court of Human Rights (WCHR), an initiative which is being actively championed by a range of prominent and generally level-headed advocates, should be embraced as a potentially effective way to achieve judicial scrutiny of national security policies alleged to violate international human rights norms. According to their blueprint, the WCHR would have jurisdiction over 21 different human rights treaties, apply to non-state actors as well as states, and issue binding judgments that could ultimately be enforced by the Security Council. Because participation in the process is potentially universal and because the proposed Statute would not limit obligations to a state’s territory, it might be seen as an effective means by which to raise a range of issues concerning the rights of non-Americans whom both the current Administration and too often US courts seem to ignore. At last, we would have a court that could adjudicate on US targeted killings abroad, on the treatment of detainees in Guantanamo, and on the foreign (and domestic) surveillance activities of the NSA, not to mention a vast range of abuses by other states in the name of security.
Most American observers will instantly dismiss such a prospect as utopian and one that will never happen because it is certain to be met with unremitting resistance by the US. But I would go further and say that the very notion of a WCHR and the very effort to promote it are, at least for the foreseeable future, a bad idea. In a paper recently posted on SSRN, I argue that the proposal for a court of this type is fundamentally misconceived. There are, of course, enormous practical challenges implicit in the assumption that any court could function effectively to pass judgment in response to complaints from over seven billion people. The cost would be vast, at least by the standards of any funds currently devoted to human rights protection at the international level. And the political prospects of almost any state being prepared to subject itself to a world court with such a vast jurisdiction (virtually any human right recognized in any international treaty) and potential enforcement powers would seem far from bright.
But it is not inconceivable that those various obstacles could gradually be whittled away, if not overcome entirely. So, on the theory that establishing the post of UN High Commissioner for Human Rights and the creation of the International Criminal Court were also once written off as being far-fetched if not utopian, why not give the WCHR a chance? Surely there is no harm in flying a kite of gigantic proportions, and hoping that at least a modest part of “the ask” might eventually be achievable.
My view is that in today’s world the WCHR is a bad idea and that time, energy and resources are not well spent in promoting it. There are several reasons for this assessment. The first is the extent to which the proposal privileges legalism over other approaches, and assumes that the creation of a judicial structure can occur almost in a vacuum without extensive groundwork having been laid beforehand. The establishment of an institution such as a court should reflect the general acceptance of a set of values and expectations on the part of the community concerned. The leap to a universal court, and the resolution of deep and divisive issues on a global basis through judicial means is far from an appealing solution to the world’s deep-rooted human rights dysfunctions.
Second, the proposal is highly hierarchical since it would vest ultimate power in the hands of a tiny coterie of judges. Such a vision is barely compatible with the values underlying a vision of an international regime governed by the rule of law and democratic institutions. Moreover, the potential for “capture” of the court by state interests could easily turn this all-powerful body into a force which would foster and endorse a race to the bottom in terms of international standards.
Third, a campaign to create a WCHR will only distract resources and attention away from the far more pressing and important issues that challenge the evolution of the human rights regime. They include: the need to nurture a culture of human rights at all levels of society, the creation of tailored national accountability mechanisms, the strengthening of regional systems (not just courts) especially in Asia and the Pacific and in the Arab World, the building of means by which corporations as well as international organizations can be held to account, far-reaching reform of the treaty body system, and refinement of the UN Human Rights Council’s Universal Periodic Review process to make it more targeted and demanding. And, just as clearly, there is a need for more sustained and nuanced efforts to address the nature of the tradeoffs that are required in order to reconcile a reasonable concern for national security with respect for human rights. These complex challenges cannot be dealt with in a meaningful way by seeking to bypass them all and create a WCHR as if it were some magical panacea. A serious effort to promote a WCHR would involve a huge opportunity cost – a direct tradeoff – with these other goals.