There is little doubt that the international human rights regime is today under sustained attack from diverse quarters. Proponents of the system tend to assume that this is just another moment of pushback and that things will soon return to some sort of equilibrium. Critics have seized on the opportunity to announce the ‘end times’ of the ‘utopian’ dream, and have called for a fundamental rethinking of a bankrupt humanitarian vision. Conferences and publications reflecting on the future of the regime are proliferating. In the midst of it all, one of the most ambitious projects for the future is a proposal to set up a World Court of Human Rights (WCHR). This initiative is being actively championed by a range of prominent advocates, who argue it should be embraced as a potentially effective way to achieve judicial scrutiny of human rights abuses worldwide.
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 UN Security Council. Because participation in the Court is potentially universal and because the proposed Statute would allow scrutiny of the extra-territorial impact of a state’s policies on human rights, it might be seen as a way to transcend many of the shortcomings that undermine the effectiveness of the existing institutional patchwork.
Many observers will probably dismiss the idea of a World Court of Human Rights as utopian and one that will never happen because it is certain to be met with unremitting resistance by a range of key states. 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 soon to be published in Ethics and International Affairs, and posted on SSRN, I argue that the proposal for a court of this type is fundamentally misconceived.
There are 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 limitless jurisdiction (virtually any human right recognized in any international treaty) and with 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 creating 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 achieved.
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 elitist since it would vest ultimate power in the hands of a tiny coterie of judges. The notion that, at this stage in the evolution of the international human rights regime, there should be binding judgments on cases worldwide, enforced if necessary by the Security Council, and purporting to settle deeply contentious and contested issues, is little more than a conceit of lawyers. Such a vision is barely compatible with the values underlying the ideal 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 that would foster and endorse a race to the bottom in the interpretation 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. These 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; further far-reaching reform of the UN human rights treaty body system; and refinement of the UN Human Rights Council’s Universal Periodic Review process to make it more targeted and demanding. 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.
The seriousness of the threats to the existing system should not be under-estimated, nor should the need for more creative and deeply grounded solutions. But the answers do not lie in grandiose schemes to occupy international lawyers.
An earlier version of this article appeared on Just Security.