Ilias Bantekas

The UN human rights treaty system

Introduction UN treaty bodies constitute the main institutional vehicle for the application of international human rights law. Bodies such as the UN HRCtee are by no means the only international mechanisms that address issues of human rights protection. Indeed, bodies as diverse as the ILO and the World Bank employ special procedures dealing with human rights questions. International tribunals and courts, particularly the ICJ, are increasingly adjudicating cases that have a bearing on international human rights law. Yet, human rights treaty bodies fulfil a special role in that they are the only entities within the UN system that states have explicitly mandated to monitor compliance with their human rights treaty obligations. Treaty bodies fulfil a range of functions, from promotional activities to monitoring and adjudicating complaints. These tasks, which are taken for granted today, are the result of states’ willingness to vest treaty bodies with the mandate of monitoring compliance. This constituted a remarkable shift away from earlier notions of sovereignty in a system where states were, essentially, the sole authors, interpreters and enforcers of rights and obligations. What accounts for this change and why do states agree to be part of such regimes? This question, which has attracted considerable attention in recent years, poses a particular challenge because it does not seem to conform to the realist views that used to hold considerable sway in international relations, according to which states use institutions as a means to exercise power. Alternative theories emphasise states’ interests (enhancing reputation and avoiding sanctions) or point to ‘acculturation’. This denotes a process of interaction of various actors which generates a pull to build and join credible human rights mechanisms as part of an international order. Indeed, these mechanisms form part of broader international institution-building, particularly at the UN level. The development of UN treaty bodies has witnessed a steady growth after a slow beginning in which it took over twenty years and numerous debates to set up the first two, the Committee on the Elimination of Racial Discrimination (CERD) and the HRCtee.

International Human Rights Law and Practice: International human rights law and notions of human rights: foundations, achievements and challenges

Introduction The term human rights is frequently used as if it were self-explanatory. It is tempting and not uncommon to view ‘human rights’ as something intrinsically good. Human rights are often labelled (somewhat mockingly) as the new religion, a label which illustrates the elevated status they appear to enjoy. On closer inspection, it becomes evident that the term human rights is used freely and sometimes loosely by members of different disciplines and the public at large, meaning different things – both positive and negative – to different people depending on the context and the purpose for which it is used. It is therefore important to clarify the meaning(s) of the term by tracing its genealogy and examining its use in various contexts. This undertaking cannot be confined to charting the development of international human rights law. Equating human rights with rights recognised in international treaties and/or other legal sources may in practice suffice when addressing particular human rights issues. Beyond this, it amounts to taking a purely positivist position that provides little guidance in response to a crucial question. Can a claim that something be recognised as a human right, for example the right to same-sex marriage, be justified, even if it is currently not explicitly recognised in law?

International Human Rights Law and Practice: The human rights of women

Introduction The disadvantages, discrimination and subordination suffered by women globally have been well documented in a variety of contexts, yet the issue of women’s human rights has until relatively recently been neglected in international law. The instruments composing the international Bill of Rights contain general non-discrimination clauses which include the prohibition of discrimination on the basis of sex or gender, whereby the rights within these instruments are held to be applicable to everyone, regardless of, inter alia , sex. As this chapter will discuss, these generic discrimination clauses have, in a number of ways, proved inadequate to capture the specific nature of violations suffered by women and to provide adequate protection. Women’s human rights are an overarching phenomenon touching on all aspects of the international human rights framework. The importance of addressing human rights issues as they specifically pertain to women and others suffering disadvantage or oppression within gender-based power structures has been widely recognised. Informed, determined and vociferous campaigns by national and international women’s rights movements and coalitions have brought to light, and attempted to redress, a number of inadequacies within the international human rights system. In particular, they have questioned a number of the assumptions underlying the existing framework of protection, particularly a narrow focus on non-discrimination at the expense of broader concerns reflecting the experiences of women, such as gender-based violence. The culmination of the 1976–1985 UN Decade for Women with the 1995 Beijing Fourth World Conference was instrumental in bringing key issues to the fore, followed by the Beijing Platform for Action ten years later. The Platform discussed and made recommendations on a wide range of issues, including poverty, education, health, violence against women, armed conflict, political rights and the rights of the girl child, which showed the breadth of concerns relating to women’s rights.

International Human Rights Law and Practice: Human rights in practice

INTRODUCTION Human rights are constructed by multiple actors acting within the given political and legal structures, and challenging and changing them in the process. While the political struggle for human rights is universal and potentially engages all human beings, our focus is on key agents, both the ‘true authors’ of human rights and others who play an influential role. The ‘human rights movement’ includes individuals and communities fighting for their rights, non-governmental organisations (NGOs), the somewhat amorphous ‘civil society’, social movements and transnational networks that engage in local and global power struggles. More recently, the term ‘human rights defenders’ has become a widely used category to embrace the range of actors concerned. The human rights movement is by no means uniform and a series of challenges, both within the movement and in respect of its role as a political actor, have become more pronounced with the increasing power of human rights and its advocates. This development has cast the light on human rights advocates, such as NGOs, and has raised questions both of legitimacy – who are you to make claims in the name of human rights or on behalf of certain people? Are you living up to human rights principles in your own practice? – and effectiveness – are you really making the positive difference in peoples lives you claim to make? Responses to these challenges testify to a growing self-awareness and critical assessment of the nature of human rights work, which includes an evaluation of the efficacy of strategies used to promote and protect human rights. Inevitably, human rights advocates are increasingly drawn into the political domain and are faced with the difficult task of marrying principle with pragmatism. This chapter explores the tensions arising in these contexts and assesses the strategies used by human rights actors, namely documentation, human rights reporting, advocacy, awareness-raising, training and education and, where relevant, litigation (which is considered in more detail in Chapters 7 and 13). CIVIL SOCIETY The last decades have witnessed a growing emphasis on civil society, both as a collective group of actors that promote human rights and as a societal structure or forum that enables the exercise of rights.

Outsourcing Law Reform in Developing Countries to Private Contractors: A Human Rights Perspective

The financial resources available for the pursuit of human rights objectives has given rise to an entire industry that is reliant on human rights consultancies. This is fed by tied or other forms of development aid and there exist few controls to assess the work of the actors that make their living from this industry. To a large degree, this privatisation of law reform is exacerbated by the fact that developing countries agree to the multitude of conditions set upon them by multilateral donors, one of which is said privatisation. In this manner, donors may adversely intervene in the relevant processes and distort a situation on the ground by, for example, painting a picture that does not accord with reality solely to justify their funding policies and recommendations to the recipient State.

Sociological implications arising from World Bank projects and their impact on sub-Saharan indigenous peoples

The World Bank has in place a set of guidelines for assessing the impact of Bank-funded projects on indigenous peoples and requires investors to produce detailed reports and ensure for the provision of adequate compensation. The tendency is to preserve sub-Saharan indigenous social structures without inquiring whether a particular indigenous group finds itself oppressed within such structures and wants to escape from them. The Banks compensation policy should strive to remedy social imbalances if that is the wish of indigenous societies.

Arbitration and the courts

Introduction This chapter is a seeming misfit in a book dealing with a private method of dispute resolution. Surely, the very rationale of arbitration is aimed at leaving the courts outside the parties’ dispute. In the course of this chapter the reader will discover that arbitration needs the courts but the courts do not need arbitration – only insofar as this is desired to reduce their work loads. Without an effective judicial system and domestic arbitration laws that cater for a synergy between tribunals and the courts, arbitration may ultimately run into a dead end. The courts are there to make sure that unless there are serious legal impediments for arbitration to continue, that no one or anything can effectively delay or terminate arbitral proceedings or in any other way frustrate the parties’ agreement to arbitrate. This chapter will examine the relationship between arbitral tribunals and the courts of the seat, as well as their relationship with the courts of third nations and transnational courts. It will go on to examine the role of the courts prior to and after the constitution of the tribunal as well as once arbitral proceedings have been terminated. The relationship between tribunals and the courts It should have become clear so far that although it is possible for an arbitral process to commence and terminate without any recourse to the local courts, the tribunal does not operate outside the lex arbitri and in addition if it runs into trouble (e.g. the parties cannot agree on the person of the chairman) the local courts assume a critical role. Hence, tribunals are dependent on the local courts in order to resolve certain procedural disputes over which they have no discretionary powers or authority. However, one should not go as far as to argue that tribunals are subservient to the courts. The authority of the courts extends only to those issues of the arbitral process that are either outside the scope of the parties’ agreement (e.g. third-party disclosure) or which are covered by a public policy rule (e.g. absence of equal treatment). This conclusion is further justified by the prohibition of appeals against arbitral awards.

The conduct of arbitral proceedings

Introduction This chapter examines the applicable rules and processes in the conduct of international arbitral proceedings. As the reader will come to realise there are very few elaborate rules as to how arbitral proceedings should be conducted, in contrast to the detailed regulation in respect of ordinary civil proceedings. Given the differences between the major legal systems and the goals of speed, cost-effectiveness and flexibility which arbitration promises to its end users, it is natural that no single model of civil procedure is promoted; whatever the particular attributes of such national models they are generally inflexible and slow. That international arbitration operates successfully in the absence of such predetermined rules (as far as written and oral pleadings are concerned) demonstrates perhaps that the over-regulation of litigation may come at the expense of speed and flexibility, not to mention cost. Here, we shall examine the foundations of conduct rules, as well as the limitations to party autonomy in designing and enforcing such rules by the parties or arbitral institutions. In this respect, we shall be guided by a variety of soft law instruments that have had a significant impact in addressing gaps and queries often raised by arbitrators and parties. The bulk of the chapter is devoted to understanding current practice in both written pleadings as well as the procedure relevant to oral hearings. The function of the party autonomy rule We have already discussed the over-arching significance of party autonomy in relation to the design of the agreement to arbitrate and the use of substantive law chosen by the parties in order to construe their main agreement and their arbitration clause. The voluntary character of arbitration would be seriously undermined if the parties were unable to dictate how arbitral proceedings are to be held and conducted, particularly if deprived of their desire to achieve flexibility and speed. The control of the process is hardly an end to itself. Its purpose is to mitigate the adverse qualities of litigation or ADR and hence ultimately to satisfy the parties’ business demands in a particular case. By way of illustration, if the dispute concerns a sensitive or pressing issue, the parties may well urge the tribunal to resolve the dispute as timely as possible, perhaps through fast-track proceedings.

Arbitral awards and challenges against awards

Introduction This chapter aims to introduce the reader to the variety of arbitral awards and the reasons for choosing one form over another. It will go on to demonstrate the differences between an order and an award and the consequences arising from this distinction. Moreover, an analysis of the binding nature of awards and their subsequent production of res judicata will help the reader understand under what circumstances a party may be estopped from further pursuing claims and issues already decided by an existing arbitral award. In addition, the chapter will discuss the preconditions for valid awards, as well as the remedies which the parties can seek from the tribunal. These range from simple monetary compensation to restitution and gap-filling in the parties’ contract. Once we have explained the nature of arbitral awards we shall go on to explore the possible challenges against them. We identify three grounds for challenges, namely jurisdictional, procedural and challenges on points of law. A large part of this chapter is predicated on an analysis of pertinent domestic laws and practice and although an effort is made to discern general principles, the reader should view references to domestic law as merely an illustration of practice and not as hard law that applies uniformly throughout the world. Legal nature of awards and res judicata 7.2.1 The legal nature of awards The purpose of arbitration is to resolve disputes by arriving at an award that is in conformity with the law of the seat. These two qualities of the award, namely its dispositive dimension and legality (or validity), can be guaranteed by the tribunal because they lie within its power. This suggests that there are qualities or dimensions to an award which lie beyond the authority of arbitrators. By way of illustration, although arbitrators must ‘make every effort to ensure that the award is enforceable’ they cannot foresee the peculiarities (especially the minute ones) of every legal system and the requirements they impose for the enforcement of foreign awards. It is, of course, a wholly different matter if the parties have notified the tribunal as to where they intend to seek enforcement of the award and the tribunal subsequently fails to address the requirements of the enforcement state even though it could easily have done so.

Consumer and online arbitration

Introduction The subject matter of this chapter, particularly consumer arbitration, has not traditionally been included in textbooks on international arbitration because it is perceived as being of domestic concern only and not wholly relevant to commercial law. While this is true to a large degree, the author suggests several approaches which tend to show both its commercial and international character. Given the explosion of consumerism, both offline and online it is certainly prudent for those interested in arbitration to be aware of developments in consumer arbitration and its possible linkages to commercial arbitration. Consumer arbitration is a special form of arbitration, alongside commercial and investment arbitration. The chapter will go on to show how consumer arbitration and the underlying agreement to arbitrate consumer disputes have developed differently between EU and US lawmakers and the courts. We shall then attempt briefly to sketch the perilous waters of class arbitration before finally getting to grips with the operation and regulation of online arbitration, which is a hybrid (but not distinct) between consumer and commercial arbitration. The nature of consumer disputes Consumer disputes should be distinguished between business-to-consumer (B2C) and business-to-business (B2B). The reason why they are of concern is because the average consumer is at a disadvantage against the majority of businesses when it comes to dispute resolution. For one thing, there exists a significant financial disparity between businesses and their consumers. Secondly, the majority of consumers do not typically find it cost effective to institute proceedings against businesses, especially with respect to products and services whose value is relatively small. Thirdly, although the purchase of a product by a consumer may give rise to consumer arbitration in the event of dispute, it is unimaginable that even the most diligent of consumers would condition their purchase on the dispute resolution clause in their contract with the business. Where, for example, a consumer purchases a product in person or online the contract between seller and consumer is often indistinguishable from the receipt, a warrantee or (in the case of online purchases) the agreement of sale – typically appearing at the very end of the process – which requires a ‘tick’ by the consumer.