Printer Friendly

Raoul Wallenberg: a man ahead of his time - and ours as well.

Raoul Wallenberg was certainly not a man of his time. When the Swedish diplomat carried out his heroic measures, thereby saving the lives of an estimated 100,000 Hungarian Jews, international law bore only a passing resemblance to what it looks like today. Perhaps the most obvious difference is that there was no such thing as international human rights law. Instead, international law focused on states and the relationship between states, which also meant that individuals played a subservient role--if they played any role at all.

What also differentiates Wallenberg's era from the present is the manner in which we view the principle of state sovereignty. Before World War II, state sovereignty was virtually sacrosanct. What this meant in practice was that what a state did within its own territorial borders--no matter how cruel or barbaric these policies and practices happened to be--was treated by the rest of the international community as a purely "domestic" affair that was solely the concern of that particular state. In that way, and as perverse as this will sound to us today, if Germany had not invaded neighboring countries and had instead limited the reach of its "Final Solution" to its own domestic borders, it would not have acted in violation of international law.

What also distinguishes the pre-World War II period from the present, at least in theory, is the way we think of the "other," namely, foreign nationals, especially those who look and act differently and perhaps who worship a different god. This was a period of time where "science" had determined that there was a racial hierarchy, with the white race sitting quite comfortably on top. Because of this, colonialism and racial segregation went virtually unquestioned, or at least unquestioned by those who ruled. Certainly, the Holocaust was the direct result of these prevalent notions of that time. As Daniel Goldhagen has argued in his searing book Hitler's Willing Executioners, (1) the mission to eliminate what was perceived as a Jewish vermin was widespread throughout all segments of German society, but what we also know is that this poison spread far beyond this one country.

In that way, then, Raoul Wallenberg not only displayed incredible personal courage, but when he acted he did so in direct contravention to the dominant legal and moral order. (2) Frequently, if not systematically, Cain's cry to the Lord--Am I my brother's keeper?--went unanswered. And the governing legal standards of that age provided the perfect cover for all those who could not see the humanity in the desperate people around them.

Largely as a reaction to the Holocaust and the other unprecedented horrors of World War II, much of this old order was discarded in the war's immediate aftermath and it was accomplished through the development of international human rights law. Law is meaningless without enforcement and thus one essential element of this was the prosecution of Nazi and Japanese war criminals. The promise, which turned out to be illusory for decades thereafter, was that those who violated international humanitarian and human rights standards would be tried and appropriately punished.

Also at this same time, the United Nations was established to achieve a more peaceful world and to promote and to protect human rights. And in December 1948, within a period of two days, the world witnessed two monumental achievements in the realm of human rights. One was the promulgation of the Universal Declaration of Human Rights, (3) which remains the most revolutionary document in all of history.

The other was the adoption by the U.N. General Assembly of the Genocide Convention. (4) Article 1 of the Convention reads: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish." Although this language from Article 1 might appear to be little more than typical dry legalese, what it demands of states is nothing short of astounding. As later explained by the International Court of Justice in Bosnia v. Serbia, (5) under the Genocide Convention each state party dedicates itself to "take all measures to prevent genocide which are within its power, and which might have contributed to preventing genocide." (6) What this demands is "due diligence," which is to be determined for each state on a case by case basis, according to these kinds of factors:
   The first, which varies greatly from one State to another, is
   clearly the capacity to influence effectively the action of persons
   likely to commit, or already committing genocide. This capacity
   itself depends, among other things, on the geographical distances
   of the States concerned from the scene of the events, and on the
   strength of the political links, as well as links of all other
   kinds, between authorities of that State and the main actors in the
   events. The State's capacity to influence must also be assessed by
   legal criteria, since it is clear that every State may only act
   within the limits permitted by international law; seen thus, a
   State's capacity to influence may vary depending on its particular
   legal position vis-a-vis the situations and persons facing the
   danger, or the reality, of genocide. (7)


After enunciating this standard, the ICJ held that during the period under consideration, Serbia was in fact "in a position of influence over the Bosnian Serbs ... unlike that of any of the other States parties to the Genocide Convention owing to the strength of the political, military and financial links between [Serbia] on the one hand and the [Bosnian Serbs] on the other." (8) The Court proceeded to condemn the Serb government's unwillingness to act to prevent genocide: "the Respondent has not shown that it took any initiative to prevent what happened, or any action on its part to avert the atrocities which were committed...." (9) It then went on to explain its ruling further:
   for a State to be held responsible for breaching its obligation of
   prevention, it does not need to be proven that the State concerned
   definitely had the power to prevent genocide; it is sufficient that
   it had the means to do so and that it manifestly refrained from
   using them. (10)


The larger point is that states are obligated to do more, actually much more, than simply not engage in genocide themselves. Instead, all have a legal obligation to be vigilant to ensure that some other state also does not act in such manner, and if this does occur, to take immediate measures to stop these atrocities and to work towards bringing the perpetrators to justice. In addition, because the obligations under the Convention are of conduct and not of result, each state has to act to the utmost of its abilities and its powers--even if other states fail to carry out their own obligations under the Convention, and even if the efforts of this state (or even all states combined) would not be able to effectuate this result. Through his long and tireless efforts, Raphael Lempkin is generally thought of as the father of the Genocide Convention. (11) While this is certainly true, the Convention is also a reflection of the spirit and the work of Raoul Wallenberg. It is not enough not to carry out harms ourselves. Rather, what we must do--and from 1948 on, what international human rights law obligates states to do--is to act to protect others.

I. THE OBLIGATION TO PREVENT

No other international or regional human rights convention uses the "prevent" language that the Genocide Convention does. (12) However, I would argue that all human rights treaties are based on this exact same principle. When a country becomes a state party to an international human rights treaty it is thereby obligating itself to do more than to merely abide by the law within its own domestic realm. Rather, through this simple but powerful act, it is also dedicating itself to share in the fate of "others."

Perhaps this principle is easier to see in the 1951 Refugee Convention, (13) the next major international human rights treaty following the Genocide Convention. After all, the very essence of refugee protection is that states must act when another state is unwilling or unable to offer human rights protections to one of its own citizens.

But this obligation of prevention and protection is inherent in all human rights. Without this, there simply is no other reason for a state to join an international human rights treaty. Rather, a state could address these same ends domestically by itself. The point is that becoming a party to a human rights treaty has a meaning that transcends national borders. Human rights are universal, but the obligation to protect these rights is universal as well. Three other examples should help to show this.

A. Torture Convention

The first example is the Torture Convention. (14) Among its various provisions, a state obligates itself: not to engage in torture and to enact legislation to achieve that end; to appropriately train security personnel; to investigate any and all accusations of torture; and so on. However, the Torture Convention demands more of states than this. For one thing, it obligates state parties not to send a person to another country where there are substantial grounds for believing that this individual might be tortured. (15) In that way, although the (prohibited) torture would be carried out in another land and at the hands of foreign agents, the (sending) state still has a legal responsibility not to play any supporting role in this, and if it does so, it has acted in violation of international law. (16) Furthermore, this nonrefoulement prohibition is absolute in the sense that it protects all human beings--including those who have directed and/or engaged in human rights violations themselves. (17)

But the Torture Convention goes even further. Under Article 7, states obligate themselves to either prosecute or extradite any alleged torturer who is within its territory and jurisdiction. Moreover, this legal obligation arises even if neither the torturer nor the victim is a national of that state and even if the alleged torture did not take place within the territorial borders of that country.

In order to effectuate the "prosecute or extradite" provision in Article 7 there must be at least some territorial connection in the sense that the alleged perpetrator is within the national borders of that state at that time. However, under Article 14, any victim of torture can press a claim for redress before any state party--even if this state had no previous involvement with the harms in question. (18) The requisite connection comes from joining this international movement to eradicate torture, wherever it is carried out. And finally, an essential component of all this--or so it was thought--is the interstate complaint system in Article 21, through which one state can press a claim that some other state party is not carrying out its obligations under the treaty.

Given this worldwide network to fight the scourge of torture, one might conclude, quite naively as it turns out, that torture has been eliminated, or at the very least, substantially reduced. Of course, because these acts are shrouded in secrecy, such things are difficult to measure. (19) However, although there have been a few slight victories in this realm, most notably the worldwide effort to prosecute the former Chilean dictator Augusto Pinochet, (20) there is absolutely no indication that torture has been reduced in any significant way. If anything, the "war on terror" greatly expanded the number of states that were willing to engage in torture, (21) or perhaps more accurately, to have other countries engage in torture for them. (22) But what is equally disappointing is that states have not been willing to recognize the existence of a duty to prevent torture, perhaps as best evidenced by the fact that the U.N. inter-state complaint mechanism has never been invoked. (23)

B. The Covenant on Economic, Social and Cultural Rights

The universality of human rights obligations is also readily apparent (or should be apparent) in the International Covenant on Economic, Social and Cultural Rights (ICESCR). (24) Like the Genocide and Refugee conventions, the ICESCR was a direct outgrowth of the horrors of the Holocaust and World War II, and the drafting of this treaty (along with the International Covenant on Civil and Political Rights) began in the early 1950s, although it would not be until 1976 that the treaty became binding international law.

Many international human rights treaties contain terms such as "territory" and "jurisdiction," which, unfortunately, is one reason why international human rights law has so often been given a territorial interpretation. This, however, is not true of the ICESCR. Article 1 makes no mention of either "territory" or "jurisdiction." (25) More than this, the Article speaks quite clearly of an obligation of "international assistance and cooperation." (26) To be sure, the ICESCR does not specify what levels of international assistance and cooperation are demanded of states. However, as Sigrun Skogly has noted in her definitive work on the preparatory work of the ICESCR, the drafters readily assumed that this would serve as a key component of the Covenant.
   The drafting history of Article 2(1) shows that there are some
   inconsistencies in the approaches held to the concrete meaning of
   through international assistance and cooperation. However, it seems
   that the delegations were quite agreed that international
   co-operation and assistance is needed for the full implementation
   of the rights, and that the resources available based upon this
   co-operation and assistance should be part of the resources used
   for the full realization of these rights. (27)


In sum, the ICESCR contains language--and just as importantly, does not contain other kinds of language--that underscores the universality of human rights obligations. International assistance and cooperation means exactly that. Unfortunately, like so much of international human rights law, the ICESCR has come to be interpreted in a strictly territorial fashion. (28) Relating this back to the work of the Swedish diplomat Raoul Wallenberg, there is indeed a special irony that Sweden, arguably the most generous country in the world in terms of the levels of foreign assistance that it provides, maintains the position that it has no legal obligation to provide such aid--or any aid whatsoever--a position that has been strongly criticized by the (former) U.N. Special Rapporteur on the Right to Health. (29) No doubt, this same position would have been perfectly acceptable during Raoul Wallenberg's time, although it is also quite clear that Wallenberg himself would not be in agreement with this position of the Swedish government. However, the whole point of establishing international human rights law is to remove human rights from the vagaries of state politics and practices and to place them squarely within the realm of international law. Unfortunately, it is by no means clear that this transformation has been achieved.

C. The Responsibility to Protect (R2P)

The aptly named Responsibility to Protect (R2P) initiative provides the third and final example of the obligations states have of preventing human rights violations. Throughout the 1990s, the international community repeatedly failed to respond to gross and systematic human rights violations and even genocide. The excuse that was readily relied upon for this inaction--a rationale that seemingly had been discarded decades before--was that any intervention would violate the sovereignty of this other state. In his 2000 Millennium Report, U.N. Secretary-General Kofi Annan plaintively addressed this question to world leaders: "If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica--to gross and systematic violations of human rights that offend every precept of our common humanity?" (30)

Responding to the Secretary-General's challenge, in 2000 the Canadian government, along with several international foundations, created the International Commission on Intervention and State Sovereignty, which was made up of a body of distinguished academics and international policymakers who subjected the issue of military intervention to intense scrutiny. In December 2001, the Commission issued its report: The Responsibility to Protect. (31) At the 2005 UN World Summit, world leaders unanimously agreed upon the principle that all states have a responsibility to protect their citizens from genocide, war crimes, crimes against humanity and ethnic cleansing, but just as important, that as members of the international community they stand prepared to take collective action in any situation where national authorities are manifestly failing to protect their populations from these international crimes. (32)

Subsequent to this, in April 2006, the UN Security Council reaffirmed R2P and indicated its readiness to adopt appropriate measures where necessary. (33) And more recently, in January 2009, the Secretary-General issued a report entitled 'Implementing the responsibility to protect' based on a three pillar approach, which reaffirms these principles, while at the same time placing a much heavier emphasis on outside countries to assist states in meeting their own responsibility to protect. (34)

The focus here will be on The Responsibility to Protect because these principles are set forth and analyzed in much greater detail in this report. To begin, one of the most important features of R2P is its vastly different conceptualization of state sovereignty, shifting the understanding from sovereignty as control to sovereignty as responsibility. The Report explains the significance of this change.

First, it implies that the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare. Secondly, it suggests that the national political authorities are responsible to the citizens internally and to the international community through the UN. And thirdly, it means that the agents of state are responsible for their actions; that is to say, they are accountable for their acts of commission and omission. (35)

Where does the responsibility to protect lie? In the first instance, it is the territorial state. As the Report explains:
   The Commission believes that responsibility to protect resides
   first and foremost with the states whose people are directly
   affected. This fact reflects not only international law and the
   modern state system, but also the practical realities of who is
   best placed to make a positive difference. The domestic authority
   is best placed to take action to prevent problems from turning into
   potential conflicts. (36)


However, if domestic authorities fail to meet this responsibility, then this task is placed in the hands of the international community.
   While the state whose people are directly affected has the default
   responsibility to protect, a residual responsibility also lies with
   the broader community of states. This fallback responsibility is
   activated when a particular state is clearly either unwilling or
   unable to fulfill its responsibility to protect or is itself the
   actual perpetrator of crimes or atrocities; or where people living
   outside a particular state are directly threatened by actions
   taking place there. This responsibility also requires that in some
   circumstances action must be taken by the broader community of
   states to support populations that are in jeopardy or under serious
   threat. (37)


As mentioned earlier, under traditional notions of state sovereignty, states enjoyed the prerogatives of sovereignty without question or challenge. The Responsibility to Protect changes this completely. Sovereignty is now something that states have to earn, and they do so by protecting their own people. However, if a state is not able or willing to offer such protection, this responsibility is then to be taken over by the international community.

Perhaps what most significantly distinguishes R2P from humanitarian intervention is the nature and scope of state responsibility. Under the latter, the sole focus was on military action. Because of this, there was seldom, if ever, any discussion concerning an antecedent obligation to help avoid humanitarian crises from arising, or a subsequent obligation to help reconstruct a society after intervention has taken place.

The Responsibility to Protect proposal offers a much broader approach, positing three separate but related obligations: 1) the responsibility to prevent; 2) the responsibility to react; and finally, 3) the responsibility to rebuild. As its name indicates, the responsibility to prevent seeks to ensure that humanitarian disasters do not arise in the first place. Or as the Report pithily states: "Intervention should only be considered when prevention fails--and the best way of avoiding intervention is to ensure that it doesn't fail." (38) To reiterate, the primary responsibility for averting humanitarian disasters lies with the territorial state. However, if this state fails, this task of prevention is to be taken up by the international community. Toward that end, what is required of the international community is this: "more resources, more energy, more competence, more commitment [to] be put into prevention." (39)

The responsibility to react comes closest to traditional humanitarian intervention. However, this responsibility only arises after the responsibility to prevent has failed and military measures need to be undertaken. Finally, the responsibility to rebuild occurs after intervention has been completed and in many ways the term is to be taken literally: building bridges, houses, schools, roads and so on. But in addition to providing material support, what also is demanded of the international community is that security must be provided. Beyond this, there must be strong efforts--by both domestic and international actors --to re-establish the rule of law.

R2P has spawned an enormous amount of interest, particularly among academics who readily point to such things as the increasing number of times that this principle is invoked in the United Nations and in other international fora. Furthermore, it could be argued that the intervention in Libya in 2011 was based squarely on R2P principles. However, since then, R2P has seemingly lost ground with both the public and policymakers alike. One possible reason for this is the chaotic aftermath of the Libya intervention itself. What can be said with much greater certainty is that R2P has played essentially no role in the worst humanitarian crisis of the present age: Syria.

II. CONCLUSION

There has been a dramatic change in international law from Raoul Wallenberg's time to the present. When Wallenberg acted, states were not obligated to involve themselves in the affairs of other states, even in the face of massive humanitarian disasters. The human rights revolution that began in the wake of World War II sought to fundamentally change this. The protection of the individual now became paramount and to effectuate this, international law placed severe limitations on when states could resort to the use of force and in what manner they could act.

The most important achievement of all--now ensconced in international law--was the recognition that the human rights obligations of states do not end at their own national borders. It might sound either trite or obvious, but Raoul Wallenberg was certainly of the belief that the Swedish government's obligations were not confined to Swedish citizens or only to individuals within the territorial borders of that state. What he saw and what he acted upon instead was a vision where all states had a responsibility to act to prevent harm to all others. In that way, he was certainly a man who was well ahead of his time. But perhaps the real question is whether he is ahead of ours as well.

Mark Gibney is the Raoul Wallenberg Visiting Professor of Human Rights and Humanitarian Law at Lund University and the Raoul Wallenberg Institute. He is also the Carol Belk Distinguished Professor at the University of North Carolina-Asheville. Professor Gibney has been a longstanding member of the editorial board at Human Rights Quarterly, the Journal of Human Rights and the International Studies Journal (Iran). Gibney is currently the Chair of the Academic Freedom Committee and past Chair of the Human Rights Section of the International Studies Association.

(1.) DANIEL JONAH GOLDHAGEN, HITLER'S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE HOLOCAUST 70-71 (1996).

(2.) See generally PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN (1998). In this wonderful book, Lauren traces the historical evolution of the idea (and ideal) of "human rights" through the visionary actions of iconoclasts throughout the ages. To a person, these were men and women who, like Raoul Wallenberg, refused to be confined and compromised by the dominant societal values of that time.

(3.) Adopted and proclaimed by Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

(4.) The International Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (iii) A, U.N. Doc. A/RES/3/260 (Dec. 9, 1948) (entered into force Jan. 12, 1951).

(5.) Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43 (Feb. 26).

(6.) Id. [paragraph] 430.

(7.) Id.

(8.) Id. [paragraph] 434.

(9.) Id. [paragraph] 438.

(10.) Id.

(11.) See generally SAMANTHA POWER, "A PROBLEM FROM HELL": AMERICA IN THE AGE OF GENOCIDE (New York, Basic Books 2002).

(12.) Although this aspect of the ICJ's ruling in Bosnia v. Serbia has much to commend it, what diminishes the Court's ruling is its earlier analysis in the case in which it held, rather incredulously, that notwithstanding the enormously close connections between the Serbian government and various Bosnian Serb paramilitary organizations which served as the very basis for concluding that Serbia had not met its obligation to prevent genocide--Serbia was not "responsible" for the genocide committed by these allies on the basis of what it perceived as certain "differences" between the two groups. For a critical analysis of the Court's treatment of this issue see, Mark Gibney, Genocide and State Responsibility, 7 Hum. Rts. L. Rev. 760 (2007).

(13.) Convention and Protocol relating to the Status of Refugees (adopted on July 28,1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, convened under G.A. Res. 429) (V) (Dec. 14, 1950) (entered into force Apr. 22, 1954).

(14.) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. G.A.O.R. Supp. No 51 at 197, U.N. Doc. A/39/51 (1984) (entered into force June 26, 1987) [hereinafter Convention Against Torture].

(15.) Id. at art. 3 (1) provides: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

(16.) This is often referred to as the Soering principle from the European Court of Human Rights (ECtHR) ruling in Soering v. United Kingdom, App. No. 14038/88, 161 Eur. Ct. H.R. (ser. A) at 25 (1989).

(17.) See, e.g., Chahal v. United Kingdom, Eur. Ct. H.R. App. No. 22414/93 (1996).

(18.) Convention against Torture, supra note 14. Article 14 (1) provides:
   Each State Party shall ensure in its legal system that the victim
   of an act of torture obtains redress and has an enforceable right
   to fair and adequate compensation, including the means for as full
   rehabilitation as possible. In the event of the death of the victim
   as a result of an act of torture, his dependants shall be entitled
   to compensation.


(19.) The Political Terror Scale (PTS) measures levels of political violence--of which torture is the most common in more than 190 countries from 1976 to the present. Unfortunately, the worldwide average has remained virtually unchanged over the past four decades. Mark Gibney, Linda Cornett, Reed Wood, Peter Haschke, and Daniel Arnon, The Political Terror Scale 1976-2015, http://www.politicalterrorscale .org (last visited Feb. 14, 2016).

(20.) Regina v. Bow Street, Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147 (H.L.) (appeal taken from Divisional Court of the Queen's Bench Division).

(21.) It is not possible to give a full account here of the "global war on terror." However, consider these two aspects of extraordinary rendition, where individuals were kidnapped in one country and then sent to another country (or a number of other countries) and tortured and/or killed. One is the scope of these operations. In a 2013 report, the Open Society Justice Initiative catalogued the involvement of fifty-four countries in extraordinary rendition practices. OPEN SOCIETY JUSTICE INITIATIVE, GLOBALIZING TORTURE: CIA SECRET DETENTION AND EXTRAORDINARY RENDITION 6, 61-118 (2013), available at https://www.opensocietyfoundations.org/sites/ default/files/globalizing-torture-20120205.pdf. The second thing to note is the continued lack of transparency regarding these practices and the dearth of any form of accountability. One of the best accounts of this can be found in the European Parliament study: DIDIER BIGO ET. AL., EUROPEAN PARLIAMENT, A QUEST FOR ACCOUNTABILITY? EU AND MEMBER STATE INQUIRIES INTO THE CIA RENDITION AND SECRET DETENTION PROGRAMME (2015), available at http://www.europarl.europa.eu/ RegData/etudes/STUD/2015/536449/IPOL_STU%282015%29536449_EN.pdf.

(22.) See generally, COMM. ON INT'L HUMAN RIGHTS OF THE ASS'N OF THE BAR OF THE CITY OF N.Y. & CTR. FOR HUMAN RIGHTS & GLOBAL JUSTICE, N.Y. UNIV. SCH. OF LAW, TORTURE BY PROXY: INTERNATIONAL AND DOMESTIC LAW APPLICABLE TO "EXTRAORDINARY RENDITIONS" (2004), available at https://www.therenditionproject.org.uk/pdf/PDF%2039%20 [CHRGJ-2006-06-REP%20Torture%20by%20Proxy].pdf.

(23.) On the positive side, judicial bodies have begun to recognize that the obligations under the Torture Convention go beyond simply not engaging in torture. In Prosecutor v. Furundzija, the International Criminal Tribunal for the Former Yugoslavia ruled: "Firstly, given the importance that the international community attaches to the protection of individuals from torture, the prohibition against torture is particularly stringent and sweeping. States are obliged not only to prohibit and punish torture, but also to forestall its occurrence[.]" Prosecutor v. Furundzija, Case No. IT-9517/1-T, Judgment, [paragraph] 148 (Int'l Crim. Trib. For the Former Yugoslavia Dec. 10,1998). Similarly, in A(FC) and others v. Secy. Of State for the Home Department, the British Supreme Court ruled that the jus cogens nature of the prohibition "requires member states to do more than eschew the practice of torture." A (FC) and others (FC) v. Secretary of State for the Home Department, [2005] UKHL 71, [paragraph] 34 (appeal taken from Eng. & Wales) (Lord Bingham of Cornhill), available at http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051208/aand.pdf.

(24.) International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res 2200A (XXI), U.N. Doc. A/RES/21/2200 (Dec. 16, 1966) (entry into force Jan. 3, 1976).

(25.) Article 2 of the ICESCR provides:
   Each State party ... undertakes to take steps, individually and
   through international assistance and co-operation, especially
   economic and technical, to the maximum of its available resources,
   with a view to achieving progressively the full realization of the
   rights recognized in the present Covenant by all appropriate
   means....


(26.) The term "international cooperation" is used in Article 11 (1):
   The States Parties to the present Covenant recognize the right of
   everyone to an adequate standard of living for himself and his
   family, including adequate food, clothing and housing, and to the
   continuous improvement of living conditions. The States Parties
   will take appropriate steps to ensure the realization of this
   right, recognizing to this effect the essential importance of
   international co-operation based on free consent.


(27.) SIGRUN SKOGLY, BEYOND NATIONAL BORDERS: STATES' HUMAN RIGHTS OBLIGATIONS IN INTERNATIONAL COOPERATION 86 (Antwerp: Intersentia, 2006) (emphasis in original).

(28.) See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. Doc. A/RES/63/117 (Dec. 10, 2008). One of the more controversial aspects of the ICESCR Optional Protocol for individual complaints was the inclusion of the term "jurisdiction." Article 2 reads in part: "Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party." Id. What remains unclear is whether this language will now give the Covenant a territorial reading--although it could be said that it already has been given such an interpretation even without this term in the treaty itself.

(29.) As part of his mandate as U.N. Special Rapporteur on the Right to Health, Paul Hunt conducted a country study of Sweden. Two aspects of this study are particularly noteworthy here. The first is that as part of this work, Hunt also traveled to Uganda (which was a recipient of large amounts of Swedish foreign aid) and to Washington D.C. to interview Swedish officials who worked for the International Monetary Fund and the World Bank. The rationale for these other trips is that Sweden's obligation to protect the right to health extends beyond the country's own territorial borders. The second thing relates to the issue of whether foreign assistance is mandatory under Article 2 of the ICESCR. Swedish officials were of the opinion that there was no legal obligation to provide foreign assistance. Hunt vigorously disagreed: "If there is no legal obligation underpinning the human rights responsibility of international assistance and cooperation, inescapably all international assistance and cooperation is based fundamentally on charity. While such a position might have been tenable years ago, it is unacceptable in the twenty-first century." U.N. Human Rights Council, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, Addendum, Mission to Sweden, U.N. Doc. A/HRC/4/28/Add.2, [paragraph] 113 (Feb. 28, 2007).

(30.) KOFI ANNAN, SECRETARY-GENERAL, "WE THE PEOPLES": THE ROLE OF THE UNITED NATIONS IN THE 21 ST CENTURY, at 48, U.N. Sales No.: E. 00.1.16 (2000).

(31.) INT'L COMM'N ON INTERVENTION & STATE SOVEREIGNTY, RESPONSIBILITY TO PROTECT (2001) [hereinafter RESPONSIBILITY TO PROTECT],

(32.) 2005 World Summit Outcome, G.A. Res 60/1, U.N. Doc. A/RES/60/1 (Sept. 16, 2005).

(33.) S.C. Res. 1674, U.N. Doc. S/RES/1674 (Apr. 28, 2006).

(34.) UN Secretary-General, Implementing the responsibility to protect: Rep: of the Secretary-General, U.N. Doc. A/63/677 (Jan. 12, 2009).

(35.) RESPONSIBILITY TO PROTECT, supra note 31, H 2.15.

(36.) Id. [paragraph] 2.30.

(37.) Id. [paragraph] 2.31.

(38.) Id. [paragraph] 3.34.

(39.) Id. [paragraph] 3.40.
COPYRIGHT 2016 Suffolk University Law School
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2016 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Symposium on the Refugee Crisis
Author:Gibney, Mark
Publication:Suffolk Transnational Law Review
Date:Sep 22, 2016
Words:5703
Previous Article:The right to a future: human rights, armed conflict and mass migration - the Raoul Wallenberg legacy.
Next Article:Strategic engineered migration as a weapon of war.
Topics:

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters |