by Rhodri C. Williams
For the international lawyers and those who take an anthropological interest in their doctrinal debates, there have been a few interesting iterations on old themes recently. They fall into three categories, namely the ‘law of peace’ debate, the ‘justiciability’ debate, and the debate over whether UK Prime Minister David Cameron’s international law advisor is a crank or a mad genius. Lets take them in that order.
First in Opinio Juris, Gabor Rona posts a concise update (and a forceful argument) to the debate about whether human rights (the ‘law of peace’) and humanitarian law (the ‘law of war’) are to be applied in a complementary or mutually exclusive manner. Rona argues for a limited ‘rule exclusion’ approach to the relationship (e.g. when human rights and humanitarian law rules clash in an armed conflict situation, the latter trumps) rather than a ‘framework exclusion’ approach in which human rights are suspended entirely in favor of humanitarian law at the outbreak of conflict. His piece comes in response to an earlier piece on Lieber Code by Jens Ohlin, and both parties along with some others continue to parse the differences between these frameworks afterward, for instance here and here. Meanwhile in EJIL-Talk, Marko Milovanovic notes that the US position on this point (which previously leaned toward framework exclusion) appears to be softening, as reflected in its fourth periodic report to the Human Rights Committee on compliance with the 1966 civil and political rights covenant.
Continuing with Opinio Juris, David Landau provides a brief summary of his recent article in the Harvard Journal of International Law regarding ‘justiciability’, or the extent to which social and economic rights are equally as suited to court enforcement as the more familiar corpus of civil and political rights. His article moves beyond the tired debates in places like Sweden and the US about whether some rights are really more equal than others and takes a hard look at what is happening in the majority of countries that have just rolled up their sleeves and started ‘justiciating’:
Based on an in-depth case study of Colombia, … and on evidence from other countries …, I argue that both the assumption and the consensus recommendation are wrong. In fact, most social rights enforcement has benefited middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.
Interestingly enough, Mr. Landau’s case-study concentrates on the role of the Colombian Constitutional Court in securing the social and economic rights of internally displaced persons (IDPs). In other words, his inquiry with regard to the judicial role in attaining respect for SE rights tracks Sebastian Albuja’s recent inquiry on this blog regarding the judicial role in attaining durable solutions to displacement. For an interesting, if somewhat esoteric, response to Landau’s arguments by Mark Tushnet, look here.
And finally, we turn to David Cameron’s recent pronouncements on international law. Article A involves a statement commemorating the upcoming 30th anniversary of the Falklands war by accusing Argentina of ‘colonialism’. The specific form of Argentina’s imperial ambitions consisted of demanding renewed talks about the Falkland Islands, which strikes me as a bit less strictly colonial than, oh, say, the invasion of Burma under the pretext of a timber concession dispute or the suppression of the Mau Mau rebellion. Unsatisfied with simply calling the kettle black, Mr. Cameron went on to (via his spokesperson) invoke the right to self-determination of the Falkland Islanders. Accurate? Yes, probably, rather a small “people” at just topping 3,000, but with some historic continuity and a tradition of largely managing of their own affairs. A bit rich, coming from the country that was once a pink blob covering half the globe? ¡Si, claro! Just ask Christina Fernandez de Kirchner.
Article B then involves Mr. Cameron sallying forth to Strasbourg to provide the Council of Europe with a lecture on what ails the European Court of Human Rights. As noted by Antoine Buyse on the ECHR Blog, the criticisms were in part quite familiar and in part somewhat contradictory. What struck me was the extent to which Mr. Cameron seemed not only to be pushing on an open door, but on a door that was opened years ago. The Court has spurred intense debate by already having taken many of the steps Mr. Cameron proposes, such as long since having adopted a deferential approach to member-state decision-making (margin of appreciation doctrine?) and more recently taking subsidiarity more seriously in part in response to its rising backlog (an issue central to my and Ayla Gürel’s recent analysis of the Court’s property jurisprudence in Cyprus). No pleasing some people? Maybe, but also a good argument for the Court to redouble its efforts to make itself comprehensible and comprehended.