International law and human rights: the power and the pity.

AuthorAbella, Rosalie Silberman
PositionMcGill Law Journal Annual Lecture

About ten years ago, Irwin Cotler organized a conference on the fiftieth anniversary of the Nuremberg Trials and invited me to speak on the topic, "The Instructive Power of Outrage" (1). It launched me on a voyage of legal discovery that has kept me in intellectual thrall ever since. And looking back on that lecture and how hopeful we all were that Nuremberg's lessons would prevail, I find myself wistful for that optimism, and somewhat disillusioned but unprepared to give up. As a result, I have called this lecture about international law and human rights "The Power and the Pity" in the hope that in this audience of brilliant students are the leaders who will take the world by the hand and help show it the way into the future.

Since 1945, the global community has demonstrated an enormous capacity for constructing legal systems and institutions to enhance and advance international law. Many areas of international law are free from controversy and generally effective: telecommunications and broadcasting; the international postal system; laws on shipping and bills of exchange; international travel; passport and customs control; international financial transactions; international trade of goods, services, and ideas; diplomatic and consular relations; and the mutual recognition of marriages, divorces, and university degrees. They are a less visible, but nonetheless significant, series of successes for international law.

And it is a tribute to the perceived legitimacy of international law that it is repeatedly invoked by the Supreme Court of Canada as an interpretire guide when deciding domestic cases. Whereas the Court made use of key international human rights instruments in fifty cases between 1984 and 1996 when interpreting the Canadian Charter of Rights and Freedoms, (2) the Court cited foreign and international law in half of its 114 decisions in 2006 and 2007. (3)

Like international law generally, international economic law since 1945 has witnessed a proliferation of institutional organs established to administer the regime and to participate in legal development, (4) including Organisation for Economic Co-operation and Development (OECD); the World Intellectual Property Organization (WIPO); (5) the International Labour Organization (ILO); (6) the United Nations Commission on International Trade Law (UNCITRAL); (7) the International Bank for Reconstruction and Development (IBR), the International Finance Corporation (IFC), the International Development Association (IDA), the International Centre for the Settlement of Investment Disputes (ICSID) and the Multilateral Investment Guarantee Agency (MIGA); (8) and the United Nations Environment Programme (UNEP). (9) In addition, organizations and legal instruments have been established at the regional level to ensure closer economic co-operation between states, including the European Community (EC); the North American Free Trade Agreement (NAFTA); (10) the Southern African Development Community (SADC); (11) the West African Economic and Monetary Union (WAEMU); (12) the Association of Southeast Asian Nations (ASEAN); (13) MERCOSUR and the Central American Free Trade Agreement; (14) and, of course, the IMF, the World Bank, and GATT. (15)

Then, in 1994, the Marrakesh Agreement established the World Trade Organization (WTO), (16) which came into being on 1 January 1995, dramatically extending the reach of trade regulation and creating a comprehensive international legal and institutional framework for international trade. After only fifteen years in operation, the WTO is in essence international law's child prodigy. Like the UN, the WTO struggles with reconciling the interests of the most powerful states and the least, as is obvious from the tumultuous eight-year saga of the Doha Development Round of negotiations. (17) Yet despite occasional criticism, the WTO and its dispute settlement mechanism in particular are regarded as legitimate, effective, and influential in international relations.

International trade law has, like international human rights law, constructed a complex network of institutions and norms to regulate state conduct. But unlike international human rights law, states comply with international trade law and, in the event of non-compliance, an effective settlement mechanism is available to resolve disputes. In other words, what states have been unable to achieve in sixty-five years of international human rights law, is up and running after only fifteen years of international trade regulation. I find this dissonance stark and unsettling.

If we examine international trade law and international human rights law in parallel, we can make a number of discouraging observations. First, unlike the UN, the WTO is extremely difficult to join. That means that the global community agrees that obtaining membership in a trade organization should be more onerous than obtaining membership in an organization responsible for saving humanity from inhumanity. Second, the global community has implemented non-discrimination (as between states) as an enforceable tenet of international trade law, but cannot implement the same principle as between people. Third, the global community agrees that the products of one state should be treated the same as products from every other state, but cannot agree that individuals have rights as individuals, not as citizens of particular states. And fourth, the global community agrees on the principles underlying international trade law: non-discrimination and most favoured nation. In contrast, the global community cannot agree on the principles underlying international law generally, and sovereignty and human rights continue to conflict.

Is it fair to ask, when looking at this picture, what the dissonance between international trade law and international human rights law says about our global priorities? I would say it is not only fair, it is essential.

Through the UN Charter, the "peoples of the United Nations" determined to "reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small." (18) It was created for the purpose of achieving international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

We have clearly seen the emergence of the individual as an actor on the international legal scene. In fields such as human rights, criminal law, humanitarian law, and environmental law, individuals have international legal obligations to other individuals and can be held accountable for their breaches, representing a dramatic change from classical international law, which construed "the state" as the only legal entity subject to regulation. That is why there was so much cheering when we thought the global community had finally resolved the rancorous, longstanding debate about humanitarian intervention through the UN General Assembly's unanimous endorsement of the doctrine of the Responsibility to Protect (R2P) in 2005. (19) It seemed, at last, that we had seen a triumph of human rights over sovereignty. Yet, at the end of July 2009, the UN General Assembly debated R2P for the first time since unanimously endorsing the doctrine in 2005 and it seemed to unravel before our eyes. (20)

How did we get there, why did we get there, where is this leading us, and what do we need to think about to fix it? And fix it we must, because unless we pay attention to intolerance, the world's fastest growth industry, we risk losing the civilizing sinews that flexed the world's muscles after World War II. We changed the world's institutions and laws then because they had lost their legitimacy and integrity. We may be there again, not so much because our laws need changing, but because a good argument can be made that our existing institutions, and especially the UN's deliberative role, are playing fast and loose with their legitimacy and our integrity.

What has happened to the miraculous regeneration and luminous moral vision that brought us the Universal Declaration of Human Rights, (21) the Genocide Convention, (22) and the Nuremberg Trials--those phoenixes that rose from the ashes of Auschwitz and roared their outrage, those instruments of justice that yielded, in the next sixty years, the most sophisticated array of laws, treaties, and conventions the international community has ever known, all stating that rights abuses will not be tolerated?

It is not clear to me what our multilateral solutions should be, but it is clear to me that the status quo is not the solution. So this is a lecture about the moral choices we will be asked to make as a global community and what to think about when we make those choices.

In his remarkable play, Copenhagen, (23) Michael Frayn explored this theme through a fictionalized account of a real meeting in Copenhagen in September 1941 between two Nobel Laureates, Niels Bohr and his former student and German physicist, Werner Heisenberg. The meeting took place at Bohr's home. Together the two men had revolutionized atomic physics

in the 1920s with their work on quantum mechanics and the uncertainty principle.

The play is a sophisticated, intellectual expose on the justice of developing nuclear weapons, and whether there was a moral distinction between developing them for the Allies and developing them for Hitler. The moral question at the heart of the play is Heisenberg's duty as a loyal German and as a scientist in charge of its nuclear program. Was he obliged to help protect Germany by developing the atomic bomb, or was he obliged to protect the world from Germany, by sabotaging its production? The atom bomb was never developed in Germany and the play leaves unclear whether this was due to Heisenberg's deliberate derailment of the German atomic project or just as a result of getting the calculations wrong.


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