A SEMINAR TO MARK WORLD PEACE DAY

How is the interpretation of human rights in international law changing? This was the topic discussed on 21 September at the Bell at a seminar held to mark the International Day of Peace established in 1981 by the United Nations General Assembly. The speakers who took to Colle di Miravalle for the event were Giuseppe Nesi, holder of the chair of International Law at the University of Trento and elected member of the UN Commission on International Law, and Guido Raimondi, judge of the European Court of Human Rights from 2010 to 2019 and president of the same Court from 2015 to 2019. The following is a summary of Mr Raimondi's speech.

In 1981, when the UN General Assembly decided to establish a day on which to commemorate and strengthen the ideals of peace and non-violence, the date 21 September was chosen for its symbolic significance, as it coincides with the beginning of the session of the UN General Assembly. This coincidence therefore represents the commitment of the nations of the world to work together to resolve conflicts and promote Peace. This is backed by confidence in the beneficial role of international law in the service of Peace.

We are currently experiencing a serious crisis in international relations. The war in Ukraine, the tensions around Taiwan and a great many other unresolved conflicts are spreading scepticism about the ability of international law and its most spectacular achievement in the aftermath of World War II, namely the creation of the United Nations, to fulfil their ultimate and most important function, that of preserving and promoting Peace.

The Charter of the United Nations, which came into force on 24 October 1945 and is seen by many as the constitution of the international community, is the first international legal document in history to open up the legal recognition of the rights of the individual beyond and above state borders. Paragraph 3 of Article 1 of the Charter states that one of the purposes of the United Nations is to promote and encourage respect for human rights and fundamental freedoms without distinctions of race, sex, language or religion.

The UN Charter opens the way for the legal recognition of the rights of the individual beyond state borders

Indeed, the aftermath of the Second World War was succeeded by the era of the United Nations, but also by the era of human rights and thus the era of a transformation of international law in the sense of its increasing focus on the human person and the protection of his or her dignity. In this sense, there has been talk of a process of 'humanisation' of international law. There is talk, in the wake of a famous book by Louis Henkin, of an Age of rights.

Following this ideal impulse, a few years after the United Nations Charter came into force, the Universal Declaration of Human Rights was proclaimed in Paris on 10 December 1948. With the Declaration, the international community affirms, at its highest level, the declaration of the United Nations General Assembly, reiterating that the way a territorial sovereign treats those subjects to its jurisdiction can never again be considered a purely internal matter, to which the principle of non-interference in the affairs of others is applicable.

The human rights discourse thus occupies an important space in international relations. It is a fact, however, that despite the set of legal instruments for the protection of human rights that were drawn up and came into force in the wake of the Universal Declaration of Human Rights, violations are unfortunately widespread, and this is the point that is emphasised, with rather few consequences in terms of sanctions.

Here, a distinction must be made between the universal and regional levels. Europe, in this picture, is a happy island. The European system of human rights protection, based on the European Convention on Human Rights, with all its difficulties, is a model of effectiveness. The judgements of the Strasbourg Court are binding on the contracting states, and are normally faithfully executed.

On a universal level, however, it is plain for all to see that there are numerous violations, and many of them go unpunished, as is evident from the annual reports of serious and reputable non-governmental organisations, such as Human Rights Watch. The so-called risk of 'broken window syndrome’ is therefore present. The reference is to the sociological theory underlying the zero-tolerance policy pursued by Rudolph Giuliani as mayor of New York.

The way in which a territorial sovereign treats persons subject to his jurisdiction is not a purely internal matter

The 'broken window' theory states that maintaining and controlling urban environments by clamping down on petty crime, vandalism, defacement of places, drinking in public, bad parking or evasion of parking fees, public transport tickets or toll charges, helps to create a climate of law and order and reduces the risk of more serious crimes occurring. For example, the existence of a 'broken window' (hence the name of the theory) could generate emulation phenomena, leading someone else to break a lamppost or fire hydrant, thus triggering a spiral of urban and social decay. In essence, it is said, the lack of sanctioning consequences of massive violations of rights leads to a trivialisation of the rights themselves. This means that insisting on their 'legal' value in the language of international relations may do more harm than good to international law.

According to a current of thought that is developing mainly in the United States, human rights have spread across the board in international law since the 1980s and have changed its most important features, affecting fundamental issues such as the definition of sovereignty and the theory of its sources. In the opinion of those who support this approach, the age known as the 'era of human rights' is over, at least for the time being. They believe that the human rights movement is in decline. This is motivated by a number of reasons, such as the growing number of authoritarian governments, the difficulties in the functioning of the institutional architecture set up to protect human rights, the increasing influence of China and Russia on the content of international law and the resurgence of nationalism and populism. It is argued that the human rights movement has, due to its expansion, changed international law in such a way as to make it weaker, and less likely to encourage states to follow it, and that this has increased the likelihood of it generating friction and conflict between states.

It is clear that the human rights enforcement architecture is conceptually built on the redefinition of the concept of sovereignty, which is now understood as being based on a responsibility towards individuals and their universally recognised human rights. This redefinition would provide the conceptual basis for coercive enforcement of a variety of human rights norms through foreign courts, secession, then territorial changes, and even the use of force. From an institutional point of view, it can be noted that all sectors of the United Nations have progressively focused their action more and more on human rights, considering it central to their mission, including the Security Council, whose main task should be the protection of international peace and security. It is argued by this current of thought, on the one hand, that there is a lack of serious commitment on the part of states to the enforcement of human rights norms and, on the other hand, that there is a widespread perception that interventions in the defence of human rights have been selective and political, having come at a cost to peaceful relations between states.

The question therefore arises whether we should move towards a 'post-human rights' season which, given the decline of the human rights movement, focuses on strengthening a strong core of international law norms that are geared towards protecting peace and security rather than human rights. According to this approach, human rights should continue to be protected by legally binding instruments at the regional and national levels, while at the global level, soft law instruments should be favoured.

Following this round-up of arguments aimed at showing, on the one hand, that the influence of the human rights movement on international law and its classical functions is in decline and, on the other, that these developments need not necessarily to be seen in a negative light, the question arises as to why the irrigation of international law by human rights doctrines would lead to the weakening of its capacity to provide for its most important function, that of the preservation of international peace and security?

From a technical point of view, one could raise the objection that a contradiction is inherent in the thesis. If we argue that doctrines inspired by the human rights movement would have failed precisely in those areas where their influence would have been most 'dangerous' to the ability of international law to provide for the peace and security of nations, then where does the danger lie? Evidently, international law contains the necessary antibodies to react to an overdose of human rights.

Let's say that this 'sceptical' current of thought on the desirability of human rights having an increasing influence on general international law had at least two merits.

Violations are widespread with rather few consequences in terms of sanctions

On the one hand, it emphasises that the human rights movement has been accompanied on too many occasions by triumphalist and emphatic rhetoric that is rightly denounced as detrimental to a calm and objective legal analysis, the only one that truly guarantees all actors: the individuals who must be protected, but also the states, which are entitled to have their responsibilities for the protection of fundamental rights established by law and nothing else.

On the other hand, it is right to emphasise the risk to peace and security of arguments based on human rights that are, however, used selectively and for exclusively political purposes.

Ultimately, however, I do not believe that these reflections can distract us from the path, begun with the 1948 Universal Declaration of Human Rights, towards an ever greater humanisation of international law. And yes, a return to the pre-World War II situation would be a threat to peace.