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Inter-State Dispute Settlement in the Field of Human Rights

Published online by Cambridge University Press:  21 July 2009

P. H. Kooijmans
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Extract

Inter-state disputes on human rights issues have been a far from exceptional phenomenon. During the Cold War the human rights question deeply divided the countries belonging to the Western and the communist blocs. Relations between developed and developing countries quite often have been heavily strained by controversies on human rights. But even within a group of countries belonging to an alliance or a homogeneous regional organization, human rights issues from time to time have been the cause of serious difficulties; e.g., the human rights record of Greece and Portugal within NATO and that of Greece and Turkey within the Council of Europe. Hardly ever have such disputes been subjected to third party dispute settlement machinery, even if such machinery was available. Most human rights treaties have a so-called procedure for state complaints, although in most cases acceptance of such a procedure is optional for the state parties. Only under two treaties, the European Convention on Human Rights and the UN Convention on the Elimination of All Forms of Racial Discrimination, it is mandatory for any state party against which a complaint by another state party is made, to submit itself to such a procedure. In most cases the procedures are of a fact-finding and mediatory character.Again, only under two (regional) treaties, the European and the American Convention on Human Rights, the initiating of such a procedure may lead to a binding decision.

Type
Articles
Information
Leiden Journal of International Law , Volume 3 , Issue 3: SPECIAL ISSUE 1990: THE UNITED NATIONS DECADE OF INTERNATIONAL LAW: Reflections on International Dispute Settlement , December 1990 , pp. 87 - 98
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1990

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References

1. See Valticos, N., The International Labour Organisation, in K. Vasak, P. Alston (eds.) The International Dimension of Human Rights 363–399 (Vol.1, 1982).Google Scholar

2. See Cohen-Jonathan, G., La Convention Européenne des Droits de ľHomme, 49, 50 (1989).Google Scholar

3. See for the draft-covenant and the comments of the UN Commission on Human Rights, U.N. Doc. A/2929, Paras. 59–132.

4. See Report of the Third Committee, U.N. Doc. A/6564, Paras. 516–540.

5. 1970 I.C.J. Rep. 32, Paras. 33, 34.

6. See Kamminga, M.T., Inter-State Accountability for Violation of Human Rights, 152et seq.(1990)Google Scholar; Meron, Th., Human Rights and Customary Law, 103et seq.(1989)Google Scholar, Kalshoven, F., International Concern with Human Rights: Can It Be Effective, 21 German Yearbook of International Law 139 et seq. (1978).Google Scholar

7. See on this question Simma, B., Fragen der zwischenslaatlicher Durchsetzung vertraglich vereinbarter Menschenrechte, in Staatsrecht-Völkerrecht-Eurorecht, Festschrift für H.J. Schlochauer, 635et seq. (1981)Google Scholar and M.T. Kamminga, supra note 6, at 180 et seq..

8. The original draft did not have the term “fulfillment”. It was added by the General Assembly. According to Drost, P.N., The Crime of State 69 (Vol. 2, 1959), this supplementary term “did not give rise to any controversy although it was not explained why it had been added”. On the other hand, there is some ground for the position that ‘application’ in the original draft only referred to cases where a state party had failed to comply with its obligation to take the necessary measures in order to prevent and punish cases of genocide within its territory, measures therefore of a legislative or administrative character; See P.N. Drost, at 50.Google Scholar

9. In passing it may be remarked that the European Convention by its Art. 62 does establish a selfcontained regime. In this case it is logical since the state complaint procedure is not optional. Inter-state disputes therefore can always be settled.

10. See for the Vienna Document Bloed, A., Institutional Aspects of the Helsinki Process After the Follow up Meeting of Vienna, 36 Netherlands International Law Review, 342et seq. (1989).CrossRefGoogle Scholar

11. See for the Copenhagen Meeting on the Human Dimension Vigny, J.D., Le Document de la Réunion de Copenhagen de la Conférence sur la Dimension Humaine de la CSCE, 2 Revue Universelle ties Droits de ľHomme 305et seq. (1990)Google Scholar; Bloed, A., Successful Meeting of the Conference on the Human Dimension of CSCE, 3 Netherlands Quarterly of Human Rights, 235et seq. (1990)CrossRefGoogle Scholar; Lawson, R., Human Rights in Europe, The Copenhagen Conference, June 1990 3 LJIL 238et seq. (1990).CrossRefGoogle Scholar