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'We need a World Court of Human Rights' – UN expert tells Commonwealth

The Commonwealth
June 3rd, 2009

Dr Martin Scheinin, the UN Special Rapporteur on human rights and counter-terrorism, used an interview at the Commonwealth Secretariat to lay out his plans for the establishment of a 'World Court of Human Rights' - a global tribunal that would, for the first time, carry a mandate to try private companies accused of human rights abuses.

“[The court] would have jurisdiction not only in respect of states, but also in respect of other actors that have the capacity to affect the enjoyment of human rights - including transnational corporations,” Dr Scheinin said last Thursday.

Dr Scheinin, a renowned international law expert from Finland, was speaking following a counter-terrorism debate at the Commonwealth's headquarters in London in which he warned governments against “copycatting” controversial policies such as rendition and called for greater respect for the rights of victims.

“Multinational corporations, international organisations [as well as] armed groups and terrorists now have the powers to negate or destruct human rights,” he said. “We need a formal procedure in respect of them. I don’t think the other options are sufficient.”

Under Dr Scheinin’s plans, to be unveiled later this month, the World Court of Human Rights would have the power to enforce legally-binding judgments on transnational companies and organisations as well as governments and, crucially, would be able to demand compensation for victims.

The Special Rapporteur’s intervention comes as national courts have increasingly been put under pressure to hear cases against multinational corporations operating in foreign jurisdictions. Most high-profile among these is the case against Royal Dutch Shell for alleged human rights abuses in Nigeria, currently being heard under an obscure centuries-old law of tort in the United States.

Dr Scheinin however - who over successive years has been a thorn in the side of governments which he believes have trampled on human rights in their pursuit of authoritarian counter-terrorist policies - is unconvinced about whether national courts can effectively deal with such international disputes.

“I have been around for a long time in the world of human rights and I have seen many young generations become enthused about the prospect of the [US Alien Tort Claims Act of 1789] to not only litigate against other states but also individuals or multinational corporations for human right violations," he said. "I have seen those waves, and so I’m a bit sceptical as to whether it will ever deliver.”

Asked to develop his paper by the Swiss Government to mark the 60th anniversary of the Universal Declaration of Human Rights, Dr Scheinin’s proposals involve giving the United Nations’ High Commissioner for Human Rights the power to request an opinion from the World Court of Human Rights on a given case. The court’s binding jurisdiction, triggered by complaints from individuals and groups, would however only be accepted voluntarily or on an ad hoc basis, he said.

“To me, globalisation is a huge process of de-regulation, where the protective shield of national legislation falls away and exposes societies and individuals within them to the direct effect of multinationals and other international agents,” he said. “Because of this phenomenon called globalisation, multinational corporations are now exercising powers that only states possessed previously.”

“So there is an objective need for making accountable other actors than states.”

During the panel debate - which was chaired by Eduardo del Buey, director of communications at the Commonwealth Secretariat, and included contributions from Arvinder Sambei, director of Amicus Legal Consultants - Dr Scheinin also offered his verdict on the counter-terrorist policies of the Commonwealth.

Commonwealth countries tend to benefit from a strong traditional of common law despite huge differences in economic wealth and levels of political tension and unrest, he told an audience of 30 officials.

“That [tradition of common law] creates a strong presumption in favour of judicial independence and also judicial pride – judges want to be seen to be independent and to do a good job. That is a strong positive factor.”

But he warned that the picture across the world was “not uniform” and cautioned governments against the practice of “copycatting”, whereby controversial counter-terrorist policies, such as the UK’s 28 days detention without charge, are implemented by others without also adopting that country’s own human rights safeguards.

“Although the pendulum is now shifting back so that increasing attention is given to human rights when fighting against terrorism, there is also an undercurrent going in the opposite direction, which I could refer to as copycatting,” he said. “Copycatting the sad, negative practices of secret detention, rendition and torture - many countries now think they have permission to do this.”

“That is why it is important that we human rights people pass the message that we will go after you if you follow this negative example.”

Dr Scheinin added that too often debate on human rights has focused on efforts to safeguard the rights of terrorist suspects, neglecting concern for the human rights of victims. “That is a separate component of the human rights agenda – to push states towards recognising and protecting the rights of persons suffering from terrorism through the loss of loved ones or the destruction of property,” he said.

“States which are ruthless in respect of the terrorists usually are ruthless in respect of the victims of terrorism – they don’t care about either. We say not only should you have procedures to deal properly with the suspected terrorists, but you should also do justice to the victims – through compensation, rehabilitation and, if there is displacement, helping people back to their communities.”

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