Agora 7 : les droits de l'homme

Présidée par Professor Susan Marks

Le droit international relatif aux droits de l’homme a été qualifié de ‘religion séculaire de l’Occident’. Cette religion s’est-elle étendue depuis 1989 ? Quels ont été les changements dans ce domaine et comment ont-ils été soutenus ? Pourrait-on affirmer que la Guerre froide a été l’ère du développement des normes et 1989-2010 l’ère de leur application ?

1989-2010: The rise and fall of democratic governance in international law

DR JEAN D'ASPREMONT, Associate Professor of International Law, University of Amsterdam (UvA)

Abstract: The years 1989-2010 can be hailed as a very unique epoch of international law during which domestic governance came to be regulated to an unprecedented extent, for international law has been as far as to impose a given type of procedure to accede to power at the domestic level. The rapid rise of non-democratic super-powers, growing security concerns at the international level as well as the 2007-2009 economic crisis cut short the emergence of such a principle of democratic legitimacy in international law. The role that democracy had played in the practice of recognition, State-creation, diplomatic relations, economic cooperation, multilateral uses of forces, approval of credentials in international organizations has radically shrunk and lost its consistency, ushering in an end to an epoch of international law. After sketching out the rise and fall of the principle of democratic legitimacy in the practice of international law from 1989 to 2010 (I) and in the legal scholarship (II), the paper will seek to critically appraise the lessons learnt from that period (III). In particular, the paper will try to capture the reasons underlying the rapid success and disappearance of the principle of democratic legitimacy in the international legal order with a view to gauging the limits of international law when it comes to regulate domestic governance.

Biography: Dr Jean d’Aspremont is Associate Professor of International Law of the Amsterdam Center for International Law at the University of Amsterdam. He is Guest Professor of International Humanitarian Law at the University of Louvain in Belgium. He is a Senior Editor of the Leiden Journal of International Law. He acted as counsel in proceedings before the International Court of Justice. He is a member of the ILA Committee on Non-State Actors.

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The law and the self: international human rights and the paradoxes of identity

MS JULIE RINGELHEIM, Researcher and Lecturer in International Human Rights Law, Belgian Fund for Scientific Research (FNRS) and University of Louvain; andDR FLORIAN HOFFMANN, Lecturer in Law, London School of Economics and Political Science (LSE)

Abstract: The increased salience of claims for recognition of cultural, ethnic or religious identities have put to the forefront the vexing question of how to define and adjudicate collective identities within a human rights framework. In particular, the recognition of group-specific rights, such as minority and indigenous peoples’ rights raise the problem of how legal institutions should determine whether a group qualify as a minority or an indigenous people or whether an individual can be deemed as a member of such community.


This confronts international human rights law with a paradox. On the one hand, the notions of human dignity and personal autonomy, which are paramount in the human rights cannon, seem to require that individuals are free to, subjectively, define their identity as they feel. On the other hand, the formal recognition of minority or indigenous peoples’ rights by public authorities calls for ‘objective’ definitions that crosscut individual discretion. How does international human rights law deal with these conflicting concerns? What sorts of criteria are used to ‘adjudicate identity’ in these situations? What conception of identity does the practice of international institutions reflect in this regard? The paper will explore these issues throughout relevant human rights instruments and practice of the Human Rights Committee, the European Court of Human Rights, the Inter-American Court of Human Rights and the Advisory Committee on the Framework Convention on the Protection of National Minorities.

Biographies:
Julie Ringelheim teaches international human rights law at the University of Louvain (Belgium) and has a PhD from the European University Institute (Florence) and an LLM from Cambridge University (Trinity Hall College). Her areas of expertise include minority protection, law and identity, the European Court of Human Rights and antidiscrimination law. She is co-author (with O. De Schutter) of Ethnic Monitoring – The Processing of Racial and Ethnic Data in Antidiscrimination Policies. Reconciling the Promotion of Equality with Privacy Rights (2010) and author of Diversité culturelle et droits de l’homme. La protection des minorités par la Convention européenne des droits de l’homme (2006).

Florian Hoffmann is currently a Lecturer in Law at the London School of Economics and Political Science (LSE) and a Visiting Associate Professor of Law at the Pontifícia Universidade Católica do Rio de Janeiro (PUC-Rio) where he taught full-time from 2003-2008. He holds a masters degree (Mestrado) in law from the PUC-Rio and a PhD in law from the European University Institute (EUI) in Florence (Italy). He teaches and researches in international law and human rights and has published, inter alia, on the theoretical foundations of human rights, on international accountability, on human security, and on law and development with a special focus on economic and social rights. His current projects include work on human dignity as a framework for human rights, the application of theories of multi-regime governance to international law, and a workshop series on Kelsen, Schmitt, Arendt, and the possibilities of (international) law.

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International law of ethnicity and minority protection: the post-Cold War (1989-2010) paradigm shifts in perspective

MR MOHAMMAD SHAHABUDDIN, PhD Candidate in Law, School of Oriental and African Studies, University of London (SOAS)

Abstract: This paper demonstrates how the concept of ‘ethnicity’ having the image of ‘otherness’ as well as ‘backwardness’ shapes the idea of international protection of minorities in three different post-Cold War (1989–2010) contexts.


First, in the internal context of international protection of minorities, the notion of ‘ethnicity’ is used to define the ‘minority’ as the ‘ethnic other’ of the majority within a given polity. Thus, in almost all UN and European instruments, ‘minority’ is invariably defined as a group in an inferior position, members of which collectively share certain characteristics distinct from those of the majority.

Conversely, in the external (international) context, the minority protection mechanism is guided towards removing ‘ethnicity’ from the concept of ‘minority’. Having perceived ethnicity as ‘primitiveness’, the UN mechanism primarily relies on certain human rights for persons belonging to minorities, and thereby, deny the ethnic group character of minorities. Although the outbreak of violent ethnic conflicts in the 1990s brought ‘ethnicity’ to the surface, no concrete binding obligation to accommodate ethnic features of minorities has yet been advanced.

And finally, in the post-Cold War European context, ‘ethnicity’ is approached even in a more complicated way. As pragmatism dictated, a number of instruments emerged to effectively address minority issue, and thereby, reinstated ‘ethnicity’ in the notion of ‘minority’. Nevertheless, this was done in a selective way; the ‘ethnic’ notion of minority was attributed to the Eastern and Central Europe alone given their allegedly ‘ethnic nature’ very much in line with the inter-war mechanism.

Biography: Mohammad Shahabuddin is an LLB and LLM (Dhaka) and an MA in International Law (Yokohama). He is currently a PhD candidate in law at the School of Oriental and African Studies (SOAS), University of London. His ongoing research project examines the relationship between international law and ethnicity, and explores how this relationship informs the understanding of international protection of minorities in relation to ethnic conflicts.

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International law's invisible hand and the future of corporate accountability for violations of human rights

DR PENELOPE SIMONS, Associate Professor of International Law, Faculty of Law, University of Ottawa

Abstract: As the UN Special Representative on Business and Human Rights, John Ruggie, approaches the last year of his second mandate, it remains unclear whether he will recommend to the Human Rights Council the eventual adoption of binding international legal obligations for corporations. Ruggie has argued elsewhere that international law does have an important role to play and that “the effectiveness of its contribution will be maximized if it is embedded within, and deployed in support of, an overall strategy of increasing governance capacity”. Yet his focus on governance capacity has not included an examination of the role of international financial institutions and international law itself in removing governance capacity from many developing countries. This paper argues that one of the most significant impediments to corporate human rights accountability is the structure of the international legal system. The validity of this assertion will be explored through an examination of critiques of the international legal system by Third World Approaches to International Law (TWAIL) scholars, as well as insights drawn from feminist critiques of international law. Powerful states have used international law and international institutions to create a globalized legal environment which protects and facilitates corporate activity. Although the Special Representative has identified symptoms of this reality, he has not to date examined the deep structural aspects of this problem. Such an examination would likely reveal a crucial role for binding international human rights obligations for corporations in any strategy to address corporate impunity.

Biography: Penelope Simons is an associate professor at the Faculty of Law, University of Ottawa, Canada. Her current research includes a focus on the human rights implications of domestic and extraterritorial corporate activity as well as state responsibility for corporate complicity in human rights violations. She is currently working with two colleagues at the University of Ottawa to develop a new model bilateral investment treaty based on sustainable development principles for the Commonwealth Secretariat. Penelope teaches international human rights law, corporate law, public international law and a course on the intersections between human rights, transnational corporate activity and international economic law.

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