Better Friends than Foes? Human Rights and WTO Law

By Cailean MacLean

September 21st, the final day of the World Trade Organization (WTO) Public Forum, featured a panel jointly sponsored by ICHRP and the UN Office of the High Commissioner for Human Rights (OHCHR) discussing Human Rights and the WTO: Dispute Settlement and Trade Policy Review Mechanisms. This event brought together a large audience composed of trade delegations, lawyers, human rights actors, academics, and interested members of the public.

The panel included Sanya Reid Smith of the Third World Network, Dr. James Harrison of the Centre for Human Rights Practice at the University of Warwick, Hunter Nottage from the Advisory Centre on WTO law, and Dr. Andrew Lang of the LSE, all contributing significant expertise in human rights practice, WTO law, and legal theory on the possibilities for an international trade regime that better respects human rights.

Sanya Reid Smith pointed out that human rights bodies had recognized the potential for WTO related obligations to negatively affect human rights, in particular she drew attention to the concerns expressed by the UN Special Rapporteur on Right to Food around agreements with respect to agriculture and services affecting the right to food of vulnerable populations in less developed countries. She went on to highlight the case of the significant increase in the price of AIDS medication when licensed under patents, raising the question of whether extra-territorial human rights obligations do not constrain members from enforcing certain WTO obligations when they may undermine human rights in other countries. In this connection, she expressed concern over recent suggestions by US and EU trade representatives that seemed to suggest 2016 as a deadline for LDCs transition into full TRIPS (Trade Related Intellectual Property Rights) compliance despite provisions such as in Article 66.1 that allows LDCs a 10 year transition period (as well as further extensions following a ‘duly motivated request’). Such provisions, being vital in ensuring access to medicines and safeguarding the right to health in LDCs, should also be seen as important avenues to realise the extra-territorial responsibilities of developed countries.

Hunter Nottage invited critical consideration of whether dispute settlement was indeed the ideal conduit for streaming human rights issues into the WTO. Despite the admission by the appellate body (AB) in US Gasoline that it cannot ignore public international law and that WTO law does not exist in clinical isolation, he noted that the threshold for considering such laws was very high. In EC Biotech the use of the precautionary principle, despite being widely referred to (see the Rio Declaration) and applied (see Blue Fin Tuna) in international legal contexts, was rejected on the grounds that it did not reflect clearly crystallized norms of general customary international law nor was it so clarified by an authoritative international body. These findings only led to further questions. Are human rights law norms capable of “precise definition and content”? For instance, what precisely does a right to health or a right to development mean and which international body is actually mandated to authoritatively clarify it?

Mr. Nottage also noted that the AB has clearly stated that WTO Dispute Settlement Bodies cannot adjudicate in matters of non-WTO law. In Mexico Soft drinks, for example, Mexico’s defense of a violation of WTO norms to ensure compliance with its obligations under NAFTA was rejected. Strangely, at the same time a WTO Panel considering a dispute between the USA and Indonesia over import of clove cigarettes utilized the WHO Framework Convention on Tobacco Control to “corroborate and reinforce” its own understanding. Mr Nottage urged consideration of the legislative process to advance a human rights agenda, noting the concessions made with respect to patent exemptions in TRIPS or the Kimberly (conflict diamonds) waiver, which were a resulted political pressure rather than dispute related jurisprudence.

Dr. Lang focused primarily on what he characterized as the tensions within the WTO between functionalist and systemic integrationalist approaches to law. The former prioritizes the belief that the WTO has a duty to its 1994 trade-centric mandate and leaves conflict of law issues to the political realm. The latter argues that the body should recognize itself and the WTO as a creation of international law and thus be more open to an evolutionary interdependent view of its legal rulings. Dr. Lang himself attempted to balance the two, acknowledging the fidelity owed by the WTO panel and appellate body to its role as a trade dispute mechanism while simultaneously considering their place in the international legal order.

A legal basis for this middle ground may be found by focusing on the duties imposed by article 31.1 of the Vienna Convention on the Law of Treaties. This calls for treaties, including the founding documents of the WTO and the AB, being interpreted “in context and in the light of its object and purpose.” The AB should play a more investigative role as to the reasons and rational behind legal norms established by treaty. He acknowledges that this raises the specter of judicial activism, the primary reason the court has thus avoided this teleological approach, but felt that the level of textual resources in treaty creation focuses the court on a limited, manageable approach. With this as a basis, the court can utilize its role to providing reasoned analysis of the underlying goals and purposes of WTO texts and jurisprudence and view them in the context of competing legislation.

The final speaker, Dr. Harrison, saw human rights as analytical tools for approaching justice issues in trade, particularly in regards to the WTO dispute resolution process. Much debate between human rights lawyers and trade lawyers stems from an argument over supremacy; which norms, treaties, or obligations trump others. This has often become a legalistic debate where human rights lawyers claim the supremacy of their norms while trade lawyers fail to see their compatibility with trade requirements. As an example Dr. Harrison spoke about Suez v. Argentina, an investment case concerning rising prices at foreign owned private water companies. In the reasoning, the court barely touched on the disparity between the right to water and the right to financial returns for investors, merely noting that Argentina had an obligation to both trade and human rights law without any real exploration of the rights to water or to utilize human rights norms as a problem solving tools. What is the right to water? Under what circumstances could it allow price controls?

Instead trade law and treaties can and should be utilized as analytical tools, ideally utilized on a case-by-case analysis. Human rights norms and understandings can thus be used to distinguish between actions designed to uphold human rights guarantees and protectionism disguised in human rights language. Additionally while trade law often seems to occupy its own world, observed violations of human rights norms can greatly undermine the legitimacy of such treaties, a situation undesirable to both proponents of trade and human rights. An ideal example of human rights analysis utilized with international trade cited by Dr. Harrison is the recent Canada-Columbia Free Trade Agreement (FTA). The FTA agreement was paired with required annual reports as to the effect of the agreement on human and environmental rights allowing constant analysis and political feedback on trade-human rights interaction.

The question and answer period showed an audience concerned with a wide variety of WTO - Human Rights issues. Debate proved lively and left the door open for further research into this underexplored but vital issue.

About the Author:

Cailean MacLean is a 2011 Research Intern at the International Council on Human Rights Policy. He recently graduated from the University of Kent, Brussels School of International Studies with an LL.M. in International Law and Relations.

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Climate change: Technology urgently needed for human rights protection

By Stephen Humphreys

Climate change impacts are felt in both the North and South – but in general, wealthier countries have better technological capacity both to mitigate greenhouse gases and to adapt to climate change’s impacts. Moreover, those impacts are likely to be much worse in the South: some 97% of deaths related to natural disasters occur in developing countries. About 17 million people in Bangladesh could be homeless by 2030, as encroaching Himalayan melt waters destroy their homes. Changing rainfall patterns are contributing to increased desertification in West Africa, causing massive losses of livestock and persistent food insecurity. Approximately 2.7 billion people worldwide still rely on wood or dung stoves for cooking, considerably compromising their health as well as damage the environment.

Technological solutions to some of these problems already exist: renewable energy sources (biofuels, biomass, wind, solar and hydro power); low carbon building materials; crop rotation; improved irrigation techniques to cope with drought, and new plant varieties that are resistant to drought or to salt water. Nevertheless, these technologies are not reaching people quickly enough. Despite decades of debate, there has been virtually no practical movement on technology transfer, due largely to profound disagreements over the appropriate reach of intellectual property rights. While governments are fiddling in Bali, Copenhagen, Cancun, and Durban, the world burns (or floods, or freezes).

The ICHRP’s summary report on Climate Technology Policy and Human Rights: Protecting Rights in a Climate-Constrained World, shows that human rights concerns must be taken into account if climate change technology is to function justly and effectively. Beyond this, the urgency of the threats climate change pose to human rights can play an important role in kickstarting technology policy. They can do so in the context of both mitigation and adaption policies.

Effectively, mitigation requires a dramatic shift towards low carbon technologies in every walk of life—a shift that must ultimately take place globally through the universalisation of renewable energy technologies. Adaptation is of great urgency in the developing world, where the worst effects of climate change are already being felt. Access is critical: technologies must not only be developed but also be made available where they are needed. In this regard, threats to human rights can function as a kind of early warning system, helping locate where technologies will be most useful and are needed most urgently.

So what is technology transfer? Article 4.5 of the UNFCCC says, “The developed country Parties … shall take all practi­cable steps to promote, facilitate and finance … the transfer of, or access to, environmentally sound technologies and know-how to … developing countries, to enable them to implement the provisions of the Convention.”

This provision has an obvious ethical dimension: wealthier countries recognised both their greater contribution to climate change and their greater capacity to deal with it. However, technology transfer is also practical – it is impossible to imagine dealing effectively with climate change if advanced technologies are not made available where they are most needed. This provision also has a political dimension. Technology transfer is the quid pro quo of global solidarity: part of the deal by which poor countries too agree to pull their weight for a problem they did not cause.

However, it is probably unproductive today to approach technology transfer as a simple matter of rights and duties. It will only succeed if based on cooperation. Indeed there are a number of points upon which everyone is agreed: there is a moral need for greater responsibility of the world’s wealthiest countries; it is imperative to have a concerted effort to effect technology transfer; it cannot merely be a ‘passive’ process between North and South; and it is not a coercive process, rather it involves channelling the power of private initiative into a shared and urgent public interest.

Thanks in particular to considerable efforts by the Maldives, at Cancun, for the first time, the working climate change text recognised the importance of ‘fully respect[ing] human rights’ in ‘all climate change-related actions’. Technology, which is one of the four pillars of the Bali Action Plan, is clearly one of the ‘climate change-related actions’ to which human rights are relevant. But what does this mean?

At first glance, it involves recognising the degree to which human rights are impacted by the failure to move on technology transfer. The delay on technology policy is itself a cause of human rights harm. But beyond this, we are called to take account of human rights in constructing technology policy. How might that work?

1. A focus on human rights can help decide which technologies national policies should concentrate on. The identification of particular human rights threats caused by climate change provides a sound basis for prioritising the technologies best suited to meeting those threats. 
2. Human rights can help international coordination of technology policy.. The fact that human rights embody agreed standards is essential: persons vulnerable to human rights threats constitute, in principle, a priority for international as well as domestic law and policy. 
3. Making clean energy universally available is vital to protect human rights as climate change encroaches. 
4. With regard to both adaptation and mitigation, least developed countries must constitute a priority for technology transfer policy. 
5. The human rights principles of participation, consultation, accountability and access to justice provide a key resource in the construction of international policy in the technology domain (as in others). 
6. A human rights focus can help the technology transfer debate transcend the old and worn-out arguments about intellectual property.

Further readings:

ICHRP (2011)
Climate Technology Policy and Human Rights: Protecting Rights in a Climate-Constrained World
Project - Executive Summary

ICHRP (2008)
Climate Change and Human Rights - A Rough Guide
Project - Report - Summary



About the Author:

Stephen Humphreys is Lecturer in Law at the London School of Economics and Political Science and former Research Director of the ICHRP. 

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Not Waving But Drowning: Climate Change event at the UN Human Rights Council

By Paula Mendez Keil and Kate Donald

On 13th September, the Geneva Missions of the Maldives and Ireland sponsored a high-level Human Rights Council side-event on Human Rights and Climate Change. With an illustrious panel of speakers including Mary Robinson and the President of the Maldives, the event was unsurprisingly well-attended (not just for the free sandwiches). It proved to be a fruitful discussion on the impact of climate change, especially on the most vulnerable: women, indigenous peoples and the poor. The threat that climate change poses to the rights to life, food, health, and adequate housing, to name a few, is now well acknowledged. The link has been made in two Human Rights Council Resolutions, as well as in the work of the Office of the High Commissioner on Human Rights, international financial institutions, inter-governmental and non-governmental organisations, building up to a formal recognition of the importance of human rights in the current climate change negotiating text, the Cancun Agreements. However, real constructive action has not been forthcoming, as illustrated by the deadlock on technology transfer.

H.E. Mr. Mohamed Nasheed, President of the Republic of Maldives;
H.E. Mrs. Mary Robinson, former UN High Commissioner for Human Rights and former President of Ireland;
Ms. Kyung-Wha Kang, UN Deputy High Commissioner for Human Rights;
Dr. Stephen Humphreys, Lecturer at the London School of Economics, former ICHRP Research Director;
H.E. Mr. G. Corr, Ambassador at the Permanent Mission of Ireland.

Of particular interest was the impassioned and candid analysis of the imminent threat of climate change by the President of the Republic of the Maldives, Mohamed Nasheed. His sense of urgency is unsurprising given the Maldives faces a literally existential threat from rising sea levels: predictions state that by the end of this century the Maldives may cease to be a functioning state. (Nasheed and his cabinet held an underwater meeting in 2009 to highlight their cause.) Memorable among President Nasheed’s comments regarding the need for green energy and sustainable development was his statement that among the biggest challenges he faces are in persuading his citizens and others that development should not be measured in tall buildings, but rather as something that happens to people.

Of course, climate change is already causing significant suffering and dramatic upheavals, including forced migration and displacement. The plight of not only the Maldives but also the Carteret islands (part of Bougainville, an autonomous region of Papua New Guinea) were highlighted in this meeting, as well as Bangladesh (where 30 million are predicted to be displaced from coastal regions by 2050). Bangladesh was also used as an example to highlight the urgency of adaptation measures: former UN High Commissioner for Human Rights Mary Robinson spoke of flying over miles and miles of (former) paddy fields, still saline from 2007’s Cyclone Sidr. The land is not useless; but the locals have to be aided to adapt from their former practice of growing rice to other methods of farming, for example crab fattening.

Mary Robinson, who champions these issues through her Foundation on Climate Justice, discussed the economic, gender and political power asymmetries that are so often at the heart of the problem. The 50 poorest nations are responsible for less than 1% of greenhouse gas emissions, yet find themselves suffering most heavily. It is estimated that 1.4 billion people in the world still have no access to electricity, while 2.7 billion continue to cook their meals on firewood or animal dung, increasing not only carbon emissions but the likelihood of diseases and health related problems.

One of the most significant points of the discussion was the importance of a democratic process in effectively tackling climate change adaptation and mitigation, especially in ensuring that the needs of vulnerable groups are addressed in a transparent and equitable manner and international aid and local resources are used responsibly. The devastation that is occurring in the horn of Africa (at least 28,000 children have died of starvation in Somalia this summer), with 8 consecutive summers measured as the hottest in regional history, was flagged as a clear result of climate change, combined with a disastrous political situation and the lack of adequate and timely humanitarian relief.

Some thought-provoking points were made by Dr. Stephen Humphreys (author of the upcoming ICHRP report on climate technology and human rights; a summary is available), on the current impasse on technology transfer, partly due to a (distracting, he argued) concern for intellectual property rights. Technology transfer is a fundamental pillar in every climate change agreement: poorer countries are not bound by any emission targets until it is effective. It is therefore crucial that we move ahead on this point: Dr. Humphreys stressed the importance of international cooperation and the obligations for developed countries to effectively transfer their know-how to developing ones, suggesting that using human rights law and principles may help to break the stalemate. He reiterated that a continued delay in implementing technology policies is ultimately perpetuating human rights violations around the world.

Further readings:

ICHRP (2011)
Climate Technology Policy and Human Rights: Protecting Rights in a Climate-Constrained World
Project - Executive Summary

ICHRP (2008)
Climate Change and Human Rights - A Rough Guide
Project - Report - Summary




About the Author:

Kate Donald is Research Associate at the International Council on Human Rights Policy. She works on the ICHRP project on sexuality, health and human rights.

Paula Mendez Keil is a 2011 Research Intern at the International Council on Human Rights Policy. She is currently completing a Master’s in International Affairs at the Graduate Institute of International and Development Studies in Geneva.

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The Right to Gender Identity: Legal Perspectives from Europe - Part 2

By Johanna Westeson 
(Read Part 1)

The European Court of Human Rights has addressed issues linked to gender identity several times. These include cases on the right to be legally recognized in one’s preferred gender, and the right to reimbursement for gender reassignment treatment. One landmark case is Goodwin v. UK (2002). Christine Goodwin was a post-operative male-to-female transsexual, who could not have her sex corrected on her birth certificate. This meant, among other things, that she was not entitled to a pension at the age of entitlement for women, that she could not marry her male partner, and that she suffered harassment and discrimination in daily life. The Court found that her right to respect for her private life and her right to marry had been violated. It came to this conclusion in part by stressing that “transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief.” Transsexuals have the right to “personal development and to physical and moral security,” and it could no longer be seen as sustainable for transsexuals to live in “an intermediate zone as not quite one gender or the other.”


It was because the Court concluded that transsexualism or gender identity disorder is a medical condition that it found that states are obliged to offer relief. This line of argument has some obvious advantages from a human rights point of view: if the preoperative state of a transgendered individual is seen as a medical or psychological problem, it can be argued that the state, under its obligations to respect and fulfill the right to health, has a responsibility to provide for and support adequate remedy. This remedy can be to provide treatment at affordable cost, or to legally recognize the acquired gender so the individual can live fully in his or her true gender identity.

In later cases the European Court has more clearly made the connection between medical condition and right to treatment. In Van Kück v. Germany (2003), the applicant was also a male-to-female post-operative transsexual. German courts had denied her the reimbursement she had claimed from her insurance company for her treatment, which included surgery. The German courts accused the applicant of having deliberately caused her transsexualism, which exempted the insurance company from liability, and assumed that treatment and surgery were not “medically necessary” for her. The European Court strongly condemned this reasoning. It reiterated that transsexualism is seen internationally as a medical condition, found inappropriate the assumption that transsexualism was self-induced, and stressed that gender reassignment surgery was necessary for the applicant’s well-being.

It can be deeply problematic to treat transsexualism, or transgenderism, as a disorder; many human rights violations have occurred as the result of such an approach. Diagnosis of a mental disorder can stigmatize individuals and make them objects of medicine, rather than subjects responsible for expressing their own health needs. The European Court seems aware of this dilemma, stressing that this issue “touched upon the applicant’s freedom to define herself as a female person, one of the most basic essentials of self-determination.” It seems the Court tried to reconcile the two perspectives – choice versus medical condition – by concluding that transsexualism is a disorder, or medical condition, if the person involved perceives it as such, which was the case in Van Kück. The right to reimbursement relied on the medical necessity of the intervention – and the applicant had stressed very strongly that for her, this intervention was necessary.

These cases leave a lot of questions unanswered. The Court has not addressed the right to legal change of gender for a pre-operative transgendered person, for example. It has not stated that there is such a thing as a right to gender identity, nor has it ruled that it should be legally possible to live outside of the fixed binary ‘male’ and ‘female.’ All of its cases have dealt with individuals who have or are about to undergo gender reassignment surgery and who clearly identify as one of the two genders. It is therefore hard to draw far-reaching conclusions on how strong the human rights protection of transgendered individuals in Europe in fact is. Some of the European national laws provide more guidance – in particular laws like the Spanish, that disassociate legal change of gender from requirements such as sterilization and surgery. Here we see an approach that more clearly constitutes a right to gender identity less focused on medicalization and more attentive to the psychological and social well-being of the individual. The courts still struggle with this. Furthermore, no European country has recognized a right to live as a third gender, or “sex not specified,” which we have seen in some other parts of the world. Countries far from Europe – most notably Nepal and Pakistan – have started recognizing that some people simply do not wish to and should not have to be defined as either male or female. A fascinating development that takes gender identity concerns to a whole new level. In Europe, we are not there yet.

Read Part 1

About the Author:

Johanna Westeson is currently the Regional Director for Europe at the Center for Reproductive Rights. She is based in Stockholm, Sweden. This post is adapted from a longer presentation given at the 20th World Congress for Sexual Health, Glasgow, June 2011.

Johanna is also the author of a report on law and jurisprudence related to sexual health and human rights in the European region, written for a global research initiative of the World Health Organisation and shortly to be published in updated, edited form by the ICHRP. Read more on this project.

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The Right to Gender Identity: Legal Perspectives from Europe - Part 1

By Johanna Westeson  

Courts and legislators have long grappled with questions about gender identity, in particular by regulating under what conditions an individual may legally transition from one gender to another. Much of this legislation and jurisprudence has been problematic from a human rights point of view, although, a more recent evolution of the law has started to incorporate human rights principles.

Social rules of gender are in part codified and maintained in law. There are therefore legal consequences for transgressing the rules regulating gender. For example, states permit, mandate, control, or forbid surgeries and medical interventions for the purpose of modifying bodies of persons to align with specific expectations about gender. Similarly, states influence individuals’ practical possibilities to change legal gender and to undergo gender reassignment treatments of various kinds. For example, states can allow or deny change of sex on legal documents such as birth certificates, and states can choose to include or exclude medical treatment related to gender reassignment in health insurance coverage.

Claims drawing on human rights principles include:

• freedom to access treatment for bodily modification to better reflect the person’s perceived or chosen gender
• on the other hand, the ability to legally and socially transition to a new gender without submitting to surgeries and/or sterilization
• the ability to marry, reproduce and found a family for individuals who have transitioned to a new gender
• the right of transgendered persons to live a life free from violence, discrimination, stigma, and marginalization.

These claims are based on fundamental human rights principles, such as the right to the highest attainable standard of health, the right to private and family life, and to dignity, self-determination and autonomy. In some cases, however, these principles collide or at least partly contradict each other, as can be shown by discussing some relevant laws and court cases from Europe.

Sweden was the first country in the world to provide gender reassignment surgery and to allow for legal change of gender, in 1972. However, the Swedish law is now criticized for the criteria it imposes. The person must be over 18, a Swedish citizen, unmarried, and unable to reproduce. In other words, unless the person is already unmarried and unable to reproduce, sterilization and divorce are imposed. The requirement for unmarried status is also absurd given that Sweden now has a gender neutral marriage law, not distinguishing between same-sex and opposite-sex couples who wish to marry.

Laws like this are not uncommon. For example, in Germany, until very recently gender reassignment surgery was a requirement for change of legal gender. This criterion, alongside with sterilization, was abolished in January, after the German constitutional court found that they violated the basic rights to sexual self-determination, physical integrity and privacy. In Sweden, too, a government-appointed commission has suggested that the requirements for sterilization and unmarried status be removed from the legislation. So what we see here is that human rights principles start to affect laws on gender identity more and more, increasingly stressing the dignity and self-determination of transsexual people. However, problematic aspects remain.

Kazakhstan offers a fascinating example. The law allows for legal change of gender for all purposes, without any requirements of divorce, sterilization, or corrective surgery. Gender change is allowed once “gender identity disorder” has been diagnosed. This approach has many advantages: the law embraces the self-determination of the individual without imposing any more or less oppressive state-defined interventions. However, the Kazakh model is heavily medicalized in its own way and the process of diagnosis is troubling. The individual has to undergo an in-hospital stay, be investigated by psychiatric, neurological and somatic experts, be scrutinized by a special commission, and must undergo an extensive list of tests, including blood and urine tests, an HIV-test, a liver-test, and an X-ray of the skull. This procedure opens an array of possibilities for humiliating, degrading and discriminatory treatment, quite apart from the fact that many of these criteria seem totally irrelevant to the diagnosis as such. Thus – while the Kazakh model is commendable in the outcome that it provides – the possibility of legal change of gender without the imposition of surgery or sterilization – its process presents serious concerns from a human rights angle.

In Spain, there is yet another model. The law is relatively new (2007), and clearly human rights principles have been incorporated more thoroughly. The purpose of the law is to regulate name changes and changes in the civil register related to the sex of a person, when “this entry does not match a person’s real gender identity.” The use of the term “real gender identity” suggests that the individual’s sense of self, dignity, and well-being are at the core of the matter. Surgery is not necessary for a legal change of gender, nor sterilization or unmarried status. Two criteria must be fulfilled: that gender dysphoria has been diagnosed, and medical treatment – not necessarily surgery – for at least two years. The latter criterion is flexible: exceptions can be made for health or age reasons. This presents another example of a rights-based approach: individual concerns play into and may influence state-imposed criteria.

Part 2 discuss the jurisprudence of the European Court of Human Rights and draw conclusions.

About the Author:

Johanna Westeson is currently the Regional Director for Europe at the Center for Reproductive Rights. She is based in Stockholm, Sweden. This post is adapted from a longer presentation given at the 20th World Congress for Sexual Health, Glasgow, June 2011.

Johanna is also the author of a report on law and jurisprudence related to sexual health and human rights in the European region, written for a global research initiative of the World Health Organisation and shortly to be published in updated, edited form by the ICHRP. Read more on this project.

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After Gaddafi: The State of International Intervention

By Ashley Drew

The recent Human Rights Council special session on Syria, which proposed the creation of an independent fact finding mission to investigate alleged human rights violations by the Syrian government on civilian protesters, produced some contextually thought provoking and potentially damaging criticism. An anti-intervention discourse emerged courtesy of the usual suspects: Cuba, Venezuela, Russia and China, who each vehemently denounced any international interference in Syria as an unacceptable breach of affairs internal to the state. How does this argument fare in light of ostensibly successful international intervention in Libya, which contributed to the victory of Libyan rebels over Muammar Gaddafi’s despotic regime?

When Libyan rebels entered Tripoli last week, in the final push that toppled Gaddafi’s regime, there were no foreign soldiers in sight. Intervention in Libya strengthened the position of the rebels whilst weakening Gaddafi’s military might. A no-fly zone was imposed, NATO airstrikes bombed strategic targets with the primary objective of avoiding civilian casualties, Gaddafi’s assets were frozen, and weapons were supplied to the rebels by Gulf States sympathetic to their cause. The culmination of these careful and bolstering strategies provided a level of assistance that allowed the Libyans to take ownership of victory.

Arguably, the conditions in Libya were ripe for positive intervention. Reports of grave human rights violations by the state against civilians surfaced. It was explicit from his rhetoric and reaction that Gaddafi would stop at nothing to quell the civilian outcry. Those caught protesting were subject to shoot-to-kill policies and state administered airstrikes. Moreover, a rebel army with the potential to defeat his regime was building and eventually requested international assistance. Had conditions been different in Libya, the strategies of intervention may not have achieved the same level of success.  

In Syria, where the tally of civilian deaths due to state-inflicted violence is now in the thousands, there is no rebel army to rival Bashar Assad’s military, and until recently, anti-regime protesters opposed international intervention. Thus, conditions in Syria hint that a Libya-style intervention may not be appropriate or helpful. Other aspects of intervention also complicate matters. Self-interested state motivations spur mainstream condemnation of intervention. The lasting scars of western activities in Iraq and Afghanistan can claim some responsibility for this. Critics of intervention in Libya claim, for instance, that motivations include prevention of further immigration to Europe and stabilisation of oil markets. Yet, the spirit of humanitarianism was clearly at the forefront of the decision to intervene in Libya. Self-interest may have been present but it did not appear to be prominent. The western invasions in response to September 11th were markedly different. Hundreds of thousands of civilians lost their lives in the Iraq war. By contrast, airstrikes in Libya resulted in few civilian casualties, and NATO has ordered a full investigation into those incidents.

Bearing past blunders in mind, it is right to be wary of intervention. Yet, some circumstances do merit the full attention and reaction of the international community. Where there is evidence of grave human rights violations by the state and a loud call for external assistance from the state’s population the international community should act to protect. States critical of international interference of any kind probably do so for political reasons. By supporting intervention due to popular civilian revolt against an authoritarian regime, China, for instance, would fall into contradiction as a major repressor of its own population. Nevertheless, the maintenance of an anti-interventionist stance promotes a culture of impunity and undermines international systems of accountability that encourage prevention of future atrocities and promote universal respect for human rights. Critics of intervention must not forget the devastating human cost and enduring damage of turning a blind eye to atrocities in Rwanda and Srebrenica.  International intervention is by no means perfect; it can be destructive and governed by political interests but it certainly deserves reassessment after Gaddafi.  

About the Author:

Ashley Drew is a 2011 Research Intern at the International Council on Human Rights Policy. She recently graduated from Goldsmiths, University of London with a masters in International Studies.

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Right Comment for the Right Time: Reaffirming Our Freedom of Expression

By Paula Mendez Keil

The long overdue General Comment 34 on the Freedoms of Opinion and Expression (addressing Art. 19 of the International Covenant on Civil and Political Rights) was recently adopted by the Human Rights Committee, in its 102nd session of late July.

The General Comment (one of the longest, amounting to 52 paragraphs) entailed 2 years of negotiations, totalling roughly 30 hours of discussion between lawyers avidly debating technical issues such as how one defines the principles of necessity and proportionality. Given the 30 year time lapse since the last General Comment on the topic, this text is a far more detailed elaboration of state obligations to respect and protect freedom of expression and the limits within which they can restrict it.

Furthermore, this General Comment provides additional help to guide states, in that it provides an authoritative commentary on the normative base of Art. 19 and tackles (as one of its most recurring and elaborated topics) the Right of Access to Information. General Comment 10 was crucial in stating that freedom of expression included the freedom to seek and receive information in whatever medium, a formulation that has been used in pivotal court cases such as Reyes v. Chile (Inter-American Court of Human Rights, 2006). However, General Comment 34 goes into greater detail and is much more up-to-date and comprehensive, tackling personal data collection, the “right to receive media output”, access to new media and also stating that states should “proactively put in the public domain Government information of public interest.”

Among other issues, laws against blasphemy (paragraph 48), lèse-majesté, historical memory (paragraph 49), contempt of court procedures, and the freedom of expression to incite violence were focal points of the discussion. As if speaking prophetically to the involvement of social media networks in protests and disturbances across North Africa, the Middle East, and even Europe, the Committee accounted for the information revolution of our era and took a strong position in defending media space including new media, and reiterating the importance of a pluralistic and diverse media. For a brief synopsis of the General Comment, see an interview with rapporteur Michael O’Flaherty, conducted by the Centre for Civil and Political Rights.

Although not formally legally binding, General Comments are considered to have a high authority, as they emerge from the very bodies that are tasked under the various treaties to carry out their supervision. Keeping this in mind, the work of the Committee cannot afford to be static in nature and must flow with the ever-changing international climate. More succinctly, in the words of Michael O’Flaherty: “treaties are living documents [and as such] have to be reinterpreted on an ongoing basis to take into account contemporary circumstances.”

About the Author:

Paula Mendez Keil is a 2011 Research Intern at the International Council on Human Rights Policy. She is currently completing a Master’s in International Affairs at the Graduate Institute of International and Development Studies in Geneva.

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