Frederic Megret

The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?

The UN Convention on the Rights of Persons with Disabilities is about more than making sure that existing human rights are applied to persons with disability. It also subtly reformulates and extends existing human rights to take into account the specific rights experience of persons with disability. In fact, the argument can be made that the Convention comes close to creating new rights, or at least very new ways of seeing common rights. This suggests a deeper point about the fragmentation of international human rights law and the increasingly recognized need to take into account the irreducibility of the experience of certain categories of persons. The Disabilities Convention has some interesting lessons to teach about human rights more generally.

The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities

This article attempts to explore how changes in the UNs mission may force it to rethink its responsibilities in terms of human rights. Until recently, the UN had never thought of itself as actually capable of violating human rights. But a number of evolutions have made this a possibility. Starting with peace operations and culminating with the international administration of entire territories, the UN is increasingly taking on sovereign-like functions. This evolution may be seen as a larger metaphor for what the UN is becoming, from a traditional inter-governmental organization to one increasingly entrusted with tasks of global governance. With these new powers, it would seem, come new responsibilities.

The Anxieties of International Criminal Justice

This paper presented at the International Studies Association Toronto meeting (2013) argues that international criminal justice as a field and project is chronically afflicted by forms of anxiety. In particular, the article is interested in what might be described as a form of existential disciplinary anxiety linked to a constant search for meaning. The fields anxieties are described as those of dependence, politics, method, legitimacy, authenticity, fairness, moral clarity, identity, status and responsibility. Anxieties are deeply woven into the rhetorical and practical structures of international criminal justice. To escape them would be to escape the fields condition, a difficult proposition that might well be the projects downfall. Yet anxieties can also be fundamentally creative and inform a range of practices deployed by international criminal tribunals. A modified version of the paper will appear in the Leiden Journal of International Law in 2015.

Is There Ever a ‘Right to One's Own Law’? An Exploration of Possible Rights Foundations for Legal Pluralism

This article explores the possibility of elaborating a strong rights foundation for ‘weak’ legal pluralist arrangements, consisting of the recognition by the state of a degree of autonomy for the legal practices of minorities. It finds unhelpful and reductionist those arguments based merely on whether certain aspects of minority law are in violation of human rights or are more effective at protecting rights than state law.Instead, the article seeks to tackle the central issue of whether there is more generally a human rights case for legal pluralism, despite the modern rights movement’s strong historical association with state monism and egalitarian universalism. Traditional rights bases for minority protection, both group and individual based, are envisaged specifically from the point of view of recognition of minority legal traditions. Both are found to raise difficulties that are magnified by the entry into play of legal considerations. When it comes to collective rights, there is a fear that endowing certain communities with legal autonomy will increase their ability to oppress the minority within; when it comes to individual rights, the idea of a ‘right to one’s law’ misses the degree to which law is an institutional construct which requires a new division of power with the state that goes far beyond what are generally understood as basic freedoms. Rather than assessing the problem merely from an individual or group point of view, the rights validity of legal pluralist arrangements is seen as dependent on how they relate to society at large. Specifically, a case is made that legal pluralism can be part of a beneficial coming to terms by societies with their diversity, a reinforcement of democratic forms and, in some cases, a type of transitional justice that recognizes the extent to which the deprivation of law has been a traditional means of subjugation of minorities. The article concludes with an effort to recast the entire debate from the point of view of international human rights law and to critique its somewhat arbitrary focus on the state as the only locus of significant legal diversity.

The International Criminal Court Statute and the Failure to Mention Symbolic Reparation

The International Criminal Court (ICC)s reparations regime seems very geared towards material reparation such as restitution, compensation and rehabilitation. However, a growing number of international instruments, particularly in the human rights field, anticipate that more symbolic forms of reparation such as satisfaction and non-repetition are mandatory. The article explores what reasons may have led the ICC drafters to not at least mention symbolic reparation and finds that, apart from a possible trend towards commodification of reparation in general, the perception was probably that only states can grant symbolic reparation, and that ordering individuals to do so might raise human rights problems. None of these arguments are conclusive. Individuals can provide symbolic reparation, and this could be encouraged rather than ordered to avoid the human rights issue. More importantly, the role of the ICC and the Victims Trust Fund will be to use money as reparation, and nothing will prevent them from using awards so made for symbolic purposes. In fact, strong principle and policy arguments militate in favor of granting a larger role to symbolic reparation in the ICC context, thus helping to make the Court into more of an institution of transitional justice.

Global reasonable accommodation : how the convention on the rights of persons with disabilities changes the way we think about equality

Abstract This article assesses the potential of the notion of reasonable accommodation as included in the UN Convention on the Rights of Persons with Disabilities. Reasonable accommodation provides a unique case of a domestic concept that has been gradually diffused transnationally, is in the process of being thoroughly internationalised and ought now to be re-domesticated so as to maximise its impact. The record of its domestic implementation so far however is not very promising, at least in countries that do not already have experience with the concept. The article traces some of the conceptual obstacles to implementation of reasonable accommodation including the enduring allure of formal equality, disputes about the meaning of ‘reasonable’ and the related notion of ‘undue burden’, the need to evaluate who the obligation applies to, and how it fits within the immediate/progressive realisation dilemma.

International Judges and Experts’ Impartiality and the Problem of Past Declarations

The impartiality of international judges, fact-finders and rapporteurs is a central issue for the international rule of law. Although much attention has been devoted to conflicts of interest and prior office, the status of previous declarations that might impinge on impartiality remains a complex matter whose practical and theoretical ramifications have not been wholly addressed. This article explores the conditions under which prior utterances might impugn the impartiality of international judicial or other international mandate holders involved in the administration of international law. It proposes to frame the problem not merely as it relates to a particular kind of international agent (judge, or expert, or rapporteur), but more broadly as involving an assessment of the notion of impartiality as such. The article begins by proposing a broad outline of the international impartiality regime, drawing on recent cases and practice. It then makes the argument that impartiality should be evaluated by examining a broad range of factors that may demonstrate the presence of bias, and that are not reducible to a simple legal formula. The article seeks to make a contribution to outlining these factors on the basis of existing case law and best practices.

Bin Laden: Tale of a Death Foretold

ABSTRACT The death of Bin Laden was the highly intentional result not only of US efforts, but also of an international legal regime that could not tolerate what he stood for. What legally justified the execution of Bin Laden for US authorities? International human rights law and international humanitarian law have failed to fully answer this question. Bin Laden was neither “just” a criminal nor merely an adversary in the “war on terror.” Rather, the Al-Qaida leader was constructed as the ultimate enemy of sovereignty, a scourge that only the sovereign’s sword could purge. From there, a biopolitical logic paved the way for his execution: a spectacular reassertion of statehood through violence, couched in a novel form of legal normativity.

The repentant defendant and the potential of international criminal justice

ABSTRACT Repentant defendants are a more common feature of the international criminal trial than commonly thought, and offer interesting opportunities to conceptualize the possibility of restorative justice within what is otherwise a conventionally retributive framework. Repentance may arise at different stages of the trial and is an inherent part of the assessment at the plea bargain and sentencing stages. It must be understood as a particular performance from the accused, one that individualizes guilt and performs the sort of moral agency on which international criminal law is otherwise premised. Its force lies potentially in its power to break down some of the constitutive dichotomies of international criminal justice, including those between perpetrator/victim, international/domestic, and retributive/restorative justice. One needs to account, however, for the potential ambiguity of repentance and the fact that it may be subtly exonerating, as well as the fact that international criminal tribunals have reasons to encourage it that have nothing to do with restorative justice. Only if the sincerity of repentance can be ascertained and if it can be addressed to victims may the restorative potential of international criminal justice be realized.

Transnational Mobility, the International Law of Aliens, and the Origins of Global Migration Law

To speak of a “global migration law” is challenging, perhaps even quite provocative, in an era in which walls are being continuously erected at borders and seas transformed into mass graves. The ambition of international law often seems to be to rescue what can still be saved: the refugee regime for example, or minimally decent treatment of migrants once under the jurisdiction of a third country. A global law of migration, then, might be as much if not more the law of obstacles to human mobility than a body of law premised on a more fundamental commitment to freedom of movement.