Experts of the Committee on the Elimination of Racial Discrimination Discuss the Development of International Human Rights Law with Judge Patrick Robinson of the International Court of Justice

The Committee on the Elimination of Racial Discrimination today held a meeting with Judge Patrick Robinson of the International Court of Justice, discussing developments in international human rights law after the Second World War.

Judge Robinson said the greatest development in international law after the Second World War was the growth of a corpus of law affirming fundamental human rights based on respect for the inherent dignity and worth of the human person.  An integral part of this development was the vast number of human rights treaties and international instruments that had been adopted since 1945; equally important was the contribution to this development made by the ten United Nations treaty bodies. 

Perhaps the greatest impact of the development, Judge Robinson proposed, was the movement from a State-centred view of international law to one in which there had been a greater focus on the individual.  This change reflected the impact of the growth of fundamental human rights.

Judge Robinson observed that throughout the ages, including the period when transatlantic chattel slavery was carried out, there was a strong undercurrent reinforcing a principle of “humanity” requiring respect for the inherent dignity and worth of the human person.  He cited historic treaties and decisions acknowledging the principle of humanity, such as the 1814 Treaty of Ghent between the United States and the United Kingdom, 1815 Vienna Declaration on the Abolition of the Slave Trade and the dictum of Justice Story in the case of La Jeune Eugenie.  He argued that these had the capacity to exert legal force throughout the entire period of the “grotesque international wrong” of transatlantic chattel slavery.

In closing, Judge Robinson said the Committee needed to ensure the continued growth of the body of international human rights law; this was a difficult but noble task.  He expressed hope that the Committee would succeed in this task.

During the session, Judge Robinson answered Committee Experts’ questions concerning the practical implications of the principle of “humanity”, the resurgence in xenophobia and other intolerances, indigenous peoples’ rights, law against apartheid and the trans-Saharan slave trade, among other topics.

Verene Albertha Shepherd, Committee Chairperson, closing the session, thanked Mr. Robinson for delivering his impactful lecture and for his responses to the Committee’s questions. 

The Committee’s one hundred and ninth session will conclude on 28 April.  Summaries of the public meetings of the Committee can be found here, while webcasts of the public meetings can be found here.  The programme of work of the Committee’s one hundred and ninth session and other documents related to the session can be found here.

The Committee will next meet in public on Friday, 28 April at 4 p.m. to close its one hundred and ninth session.

Statements

PATRICK ROBINSON, Judge of the International Court of Justice, said the greatest development in international law after the Second World War was the growth of a corpus of law affirming fundamental human rights based on respect for the inherent dignity and worth of the human person.  An integral part of this development was the vast number of human rights treaties and international instruments that had been adopted since 1945; equally important was the contribution to this development made by the ten United Nations treaty bodies.  This development, which was prompted by the atrocities committed during the Second World War, and was now described as international human rights law, had both a customary and conventional basis.

Mr. Robinson introduced six foundational instruments adopted between 1945-1950. 
The first was the 1945 Charter of the United Nations, which reaffirmed in its preamble "faith in fundamental human rights, in the dignity and worth of the human person…”.  It identified as a purpose of the United Nations the achievement of international cooperation “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.
 
The second foundational instrument was the American Declaration of the Rights and Duties of Man.  The Declaration, which stressed the relationship between rights and duties, stated in its preamble that “all men are born free and equal, in dignity and in rights”.

The third foundational instrument was the Universal Declaration of Human Rights. Its preamble recognised "the inherent dignity […] of all members of the human family as the foundation of freedom, justice and peace in the world”.  The Declaration was seen as the genesis of modern human rights law, and was cited in a myriad of treaties and international instruments.  The requirement of respect for the inherent dignity and worth of the human person would become the basis, express or implied, for all the fundamental human rights affirmed by customary and conventional international law since 1945.

The fourth and fifth foundational instruments, the Nuremberg Charter and the Nuremberg Principles on the one hand, and the Genocide Convention on the other, direct responses to the atrocities of the Second World War.  In 1946, the General Assembly adopted a Resolution that affirmed the principles of international law set out in the Nuremberg Charter, which established the Nuremberg Tribunal.

This was the first human rights treaty adopted by the United Nations.  Its background was the Nazi killing of six million Jews during the War.  In 1951, the International Court of Justice held that "the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that the Convention was adopted "for a purely humanitarian and civilizing purpose".  In these findings, the Court made clear the human rights basis of the Convention, and its collective, communitarian goal.

The sixth and final foundational instrument was the 1950 European Convention on Human Rights.  It was foundational because it was the first human rights treaty addressing a wide range of human rights to be adopted after the Second World War; and because its aim was to “[secure] the universal and effective recognition and observance of the rights set out in the Universal Declaration of Human Rights”. The Convention had a global influence on the adoption of other human rights treaties, as well as the inclusion of provisions on human rights in a vast number of national constitutions.  A significant achievement of the Convention was the establishment of the European Court of Human Rights.

A notable aspect of the development was the establishment of the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court. The International Criminal Tribunal for the Former Yugoslavia was the first war crimes tribunal to be established after the Nuremberg and Tokyo Tribunals, in 1993, by the United Nations Security Council through Resolution 873 to prosecute persons for war crimes, crimes against humanity and genocide committed during the Yugoslav conflict.  The International Criminal Tribunal for Rwanda was established in 1994 by the Security Council to prosecute persons for crimes against humanity and genocide in the conflict between the Tutsis and the Hutus in Rwanda.  The International Criminal Court was established by the Rome Statute in 1998 to prosecute the crimes of genocide, war crimes, crimes against humanity and the crime of aggression.  The Statutes of all three bodies rendered irrelevant the official position of an accused person charged with crimes thereunder.

In 1966, the United Nations General Assembly adopted the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  Today, the International Covenant on Civil and Political Rights was the most important human rights treaty in the world.  It had 173 States parties and its provisions were cited and applied in the work of the International Court of Justice, other international courts and tribunals, and in national courts.  Meanwhile, the European Convention on Human Rights godfathered the American Convention on Human Rights, as well as the African Charter on Human and People’s Rights. 

The development had led to a plethora of human rights treaties and instruments in the period after 1950, notably the International Convention on the Elimination of Racial Discrimination and the International Convention on the Elimination of Discrimination against Women.  These later instruments were all adopted and implemented based on the principle of respect for the inherent dignity and worth of the human person.

Fundamental human rights were implemented by national courts; regional courts, namely the European Court of Human Rights, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights; the ten United Nations treaty bodies; and by the International Court of Justice.  Access to the various courts and bodies, and the binding or non-binding nature of their decisions, depended on the instrument establishing that court or body.  The growth of a corpus of law emphasising respect for the inherent dignity and worth of the human person was the greatest development in international law since 1945.  This body of law had permeated practically every area of international law, every aspect of national life and international relations.

Perhaps the greatest impact of the development was the noticeable movement from a State-centred view of international law to one in which there had been a greater focus on the individual, challenging the classical view that States were the only subjects of international law.  This change reflected the impact of the growth of fundamental human rights.  Equally impactful was the influence of the development on the body of international humanitarian law itself.  The rights of an accused person who was charged with a crime under the Statutes of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda were the same as the rights of an accused person set out in Article 14 of the International Covenant on Civil and Political Rights.  Additionally, in 2005, United Nations Educational, Scientific and Cultural Organization adopted the Universal Declaration on Bioethics and Human Rights; one of the aims of that Declaration was “to promote respect for human dignity and protect human rights...".  There was scarcely anything that could be done in international law or international relations that did not engage the development of human rights.

The principle of humanity had existed for centuries, and had been transgressed many times, for example, by the practice of transatlantic chattel slavery for a period of more than 400 years.  Throughout the ages, including the period when transatlantic chattel slavery was carried out, there was a strong undercurrent reinforcing a principle of humanity requiring respect for the inherent dignity and worth of the human person.  Transatlantic chattel slavery breached that principle through the process of chattelization that reduced Africans to “things”.  But that breach did not nullify the principle; it remained and retained its vitality and validity.

The 1814 Treaty of Ghent between the United States and the United Kingdom stated that the States were working for the abolition of the slave trade, because “the Traffic in Slaves is irreconcilable with the principles of humanity and Justice".

These two States, while having been involved in the Slave trade, had thus acknowledged that it could not be reconciled with the principle of humanity.  Similar acknowledgements could be found in the 1815 Vienna Declaration on the Abolition of the Slave Trade and the dictum of Justice Story in the case of La Jeune Eugenie. 

These suggested that the fundamental principle of humanity and human dignity was timeless.  This explained why it was one of the first principles which ought to govern nations.

The first case that was adjudicated by the International Court of Justice, “Corfu Channel”, also addressed the principle of humanity.  In that case, the United Kingdom alleged that Albania had breached its obligation “[to notify], for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters...”.  The Court confirmed that such an obligation was applicable “on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war”.  These "general and well-recognized principles", which imposed obligations on States, were not new, but existed throughout the ages and, notably, they were even more demanding in peace than in war. 

The principle of humanity did not become normative for the first time in 1949 based on the Court's judgment in Corfu Channel.  They were already normative and capable of “exerting legal force” from the time of the Treaty of Ghent in 1814.  Consequently, their agelessness, timelessness, and their application in peacetime as in war, mean that they were certainly normative, and had the capacity to “exert legal force” throughout the entire period of the grotesque international wrong of transatlantic chattel slavery.  The principle of humanity, as a general principle of law, could work in tandem with the customary obligation not to carry out slavery, and could also be applied in its own right.

Judge Robinson recounted his difficult experience appearing before the Committee between 1976 and 1980 to explain why Jamaica had not enacted legislation, as required by Convention Article 4(a), to outlaw "hate speech".  Regrettably, he said, Jamaica had still not enacted legislation to give effect to Article 4 and had maintained the reservation that it entered on ratification of the Convention.  Treaty bodies, by the work which they do, including making recommendations or comments, had made a sterling contribution to the development of human rights.  In every aspect of their work, including State-to-State disputes and individual complaints, treaty bodies helped to sensitise States to the need to perform their obligations under the relevant human rights treaties. 

It was questionable whether the individual, traditionally seen as an object of international law, had joined States as subjects of international law.  The distinction between subjects and objects of international law was not helpful.  International law had “participants”, including States, international organisations, and other bodies.  Individuals had made significant advances in international law after 1945, for example under the European Convention on Human Rights they could bring claims against States.  It could be accepted that the individual had acquired a status under international law.

The impact of the development on international law and international relations had been resounding; its impact had been overwhelmingly pervasive.  The principle of humanity was age-old and timeless.  The historic norms that Judge Robinson addressed imposed obligations on States to respect the inherent dignity and worth of the human personhood of Africans.  The principle of humanity outlawed all seven phases of chattelization in transatlantic chattel slavery.

The Committee needed to ensure the continued growth of this body of law; this was a difficult but noble task.  Judge Robinson expressed hope that the Committee would succeed in this task.

Questions and Comments from Committee Experts

A Committee Expert addressed Judge Robinson’s observation of the long-standing nature of the principle of “humanity”.  What were the practical implications of this observation?  Judge Robinson indicated that transatlantic chattel slavery was illegal under the international norms of the time.  What implications did this have for reparatory justice, and what else could be done to achieve reparatory justice?

One Committee Expert thanked Judge Robinson for sharing his views on the post-1945 era.  This was a historic era in human history, in which the Trusteeship Council came into being.  This Council had called on the United Kingdom to resolve the Palestine question, however it had failed in this task, not having held a referendum for the self-determination of the Palestinian people.  This failure led to the rejection of the Palestinian people from their own land.  There was a need for intelligent international human rights law that allowed for the consideration of weighty human rights issues and the achievement of justice.  Throughout history, slavery had existed, and analogous practices continued today.  The United Nations would continue to work to address such practices.  The Expert promised to work to promote the rights of the Palestinian people.

A Committee Expert thanked Judge Robinson for his enlightening lecture, which had addressed important developments in international law and transatlantic chattel slavery.  While transatlantic chattel slavery was being carried out, in Mauritius, the French relied on slaves to look after their plantations.  Severe penalties were issued under the Code noir when those slaves infringed on rules imposed on them, even in the 1970s.

A Committee Expert said that for some time, there had been a return to nationalism and a resurgence in related xenophobia and other intolerances.  Indigenous peoples had their own unique circumstances.  In post-colonial States, indigenous peoples’ status had evolved, and there were now clashes between nationalist claims and indigenous claims.  How could a balance be struck between acknowledging the claims of indigenous peoples and preserving the stability of States in challenging circumstances?

Another Committee Expert said apartheid had been declared as a crime against humanity and a war crime.  Had this been reflected in international humanitarian law?  Why had no persons or States been charged under this crime?  Could the crime be applied outside of southern Africa? 

One Committee Expert said that laws led to changes in social situations.  International human rights law should be more progressively interpreted to change other international laws and international society.  What was Judge Robinson’s opinion on this?

A Committee Expert asked about the application of the principle of “humanity” to the trans-Saharan slave trade.  What should be the role of treaty bodies in promoting the application of international human rights law?

Another Committee Expert asked about the growth of fundamental human rights in the future.  Human rights seemed to be deteriorating.  How did Judge Ro

VERENE ALBERTHA SHEPHERD, Committee Chairperson, asked about the role of apologies in the application of human rights law. 

Answers by Judge Robinson

PATRICK ROBINSON, Judge of the International Court of Justice, said that during the era of transatlantic chattel slavery, there was a legal principle of “humanity” that had been transgressed.  The implication of this was that the practice of transatlantic chattel slavery was a breach of international law that gave rise to reparations, which could include restitution, compensation and the issuance of an apology.  The practice of transatlantic chattel slavery, being wrongful conduct, could not be used as a basis for any legislation that made the practice lawful.

There had been vile treatment of runaway slaves in Jamaica.  These punishments needed to be considered in the issuance of reparations for transatlantic chattel slavery.

There had been an upsurge in nationalism that had impacted the rights of indigenous peoples.  These rights should not be ignored.  In many parts of the Caribbean, indigenous peoples had been wiped out.  The law needed to provide for their protection.  An International Labour Organization Convention had been adopted on indigenous peoples and a decision had been made in favour of the rights of the Maroons by the International Court of Justice.  Indigenous peoples needed to be able to enjoy their rights under international law.

Apartheid was declared a crime and treaties that allowed for apartheid were void.  International law against apartheid was applicable outside of South Africa, and it was regrettable that the law had not been applied outside of South Africa.  It was up to concerned parties to take cases concerning apartheid to the International Criminal Court.  Jamaica had played a significant role in the struggle against apartheid, having banned trade with South Africa during the apartheid era.

Law was a tool for social change, and should be interpreted and applied in a progressive manner.  Treaty bodies had an important role to play in the growth of international human rights and in monitoring the implementation of their conventions.  There should be no pessimism in the growth of human rights.

The principle of “humanity” acknowledged in historic legislation was applicable to the trans-Saharan slave trade.

The International Law Commission was concerned with the progressive development of human rights and reparations.  Abused States needed to be placed in the position that they would have been in had abuses not taken place.  This was an impossible goal with restitution alone, so in most cases compensation was required.  Damages that were due could be quantified.  When restitution and compensation was not able to achieve reparation, “satisfaction” was needed.  “Satisfaction” included apologies and memorials.

There was a case concerning the dispute between Israel and Palestine before the International Court of Justice, and thus Judge Robinson could not provide further comment on the issue.

Follow-Up Questions and Comments from Committee Experts

One Committee Expert asked whether States needed to make assessments of damage suffered to determine whether reparation, compensation or satisfaction was required.  What was the process in this regard?

Another Committee Expert asked when international customary law applied.

One Committee Expert asked how treaty bodies could contribute to the effective application of international human rights law.

One Committee Expert asked whether States’ obligations regarding reparations included obligations towards both individuals and other States.

Answers by Judge Robinson

PATRICK ROBINSON, Judge of the International Court of Justice, said that international law required the responsible State to provide reparations, but other States had to make efforts to pursue such reparations through international fora.  In the case of transatlantic chattel slavery, the individual victims of the practice and their descendants needed to benefit from reparations.  Apologies were welcomed, but responsible States also had a responsibility to provide restitution and compensation.

Treaty bodies could only act within their jurisdiction, but needed to use their jurisdiction to its fullest extent.  Racial discrimination and xenophobia were fundamental contradictions of human rights, and the Committee needed to fully tackle these.

Concluding Statement

VERENE ALBERTHA SHEPHERD, Committee Chairperson, thanked Mr. Robinson for delivering his impactful lecture and for his responses to the Committee’s questions.  She said that the issue of the statute of limitations on historical crimes against humanity should be discussed at another time.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2023/04/experts-committee-elimination-racial-discrimination-discuss