The Role and Jurisdiction of a World Court of Human Rights

The World Court of Human Rights (the Court, or the WCHR) is designed to adjudicate selected, qualifying, human rights cases in which judicial review is sought by affected individuals, or classes of individuals, who are found by the Court to have standing. The cases which are accepted for adjudication by the Court will be decided, in part, in accordance with the United Nations human rights-related conventions, and their case law, all of which have evolved from the United Nations' December 10, 1948 Universal Declaration of Human Rights (UDHR).  The cases before the Court will also be adjudicated in accordance with the broader body of regional human rights conventions, and their case law, and in accordance with generally accepted human rights custom, practice, jurisprudence and scholarship.  The work of the Court will create a consistent and comprehensive body of substantive human rights law, through a uniform and efficient global judicial process.  In so doing, the WCHR will promote worldwide awareness of, respect for, and compliance with, the ever-evolving "world law" of human rights.

A Brief History of the Project to date
The idea of a World Court of Human Rights is not new. Globalist Garry Davis was one of its most active promoters, beginning soon after the end of World War II. Disillusioned by the role that he had played as a United States bomber pilot, he renounced his United States citizenship in 1948, and devoted the last 65 years of his life advocating for a "world without borders," arguing that it is the existence of nation-states that makes war possible. He was widely recognized as "World Citizen No. 1," and he lived out his days, until age 91, engaged in the struggle for world government, out of his modest home in South Burlington, Vermont.  His obituary is one of the very few that have run on the front page of the New York Times. Garry, and a Chicago-based international human rights lawyer, Luis Kutner, produced a rough draft of a statute for a court that proposed to adjudicate matters of "world law." Their vision was arguably naive from the standpoint of public international law, because there is (as yet) no world government, and therefore, no "world law."  That said, there is a growing body of public international law that is evolving from the increasing proliferation of bilateral and multilateral treaties which can credibly be argued to constitute an incipient body of world law. As Garry confronted his final battle with cancer, he asked Burlington, Vermont attorney, Mark Oettinger, who had been appointed by the United States District Court in 2000 to represent Garry in a prosecution that had arisen out of one of Garry's many acts of civil disobedience, to travel to India in order to participate in the annual meeting of the world's Chief Justices. Mark should advance, he said, his vision of a "World Court." Mark agreed to go, albeit with an agenda limited to advancing the World Court of Human Rights. 

With this background, Mark Oettinger attended the 14th annual meeting the World Chief Justices, in Lucknow, India, held in December, 2013.  The goal of the trip was to propose to the Chief Justices that, if they thought the project worthy, that he, with the support of the World Service Authority (the Washington DC-based NGO that Garry had created in 1959, and that remains active to this day) would assemble a high-level committee of experts on public international law, human rights law, and judicial systems, to produce a proposed Statute for a World Court of Human Rights. The Chief Justices' reaction was 100% enthusiastic, and so, while essentially "between jobs," Mark spent the first several months of 2014 researching and drafting, with input from a series of online meetings of the committee of experts, the proposed Statute of the World Court of Human Rights. Because the Chief Justices meet annually in Lucknow, India, we deemed the proposed Statute, "The Treaty of Lucknow," although there is reportedly an earlier treaty dealing with the Northern border of India that may bear the same name.

To draft the Treaty, we assembled a Design Team, convened a series of video conferences, and conducted four months of essentially full-time research, in order produce the present draft. The Design Team was composed of a mixture of judges, lawyers, academics, practitioners and nonprofits.  We used the statutes and practices of the International Court of Justice (ICJ), the European Court of Human Rights (ECHR), the Inter-American Commission on Human Rights (IACHR), and the African Commission on Human and Peoples' Rights (ACHPR), as guidance.  The structures and missions of each of these bodies is different, but each sheds light on the requirements, demands and limitations of the characteristics of a "supranational" court that would be necessary to accomplish the envisioned objectives.

The video conferences were recorded and archived. Samples can be found on the Archived Meetings page of our website:

www.worldcourtofhumanrights.net

The proposed Statute is clearly susceptible of improvement. We therefore encourage all interested parties to explore the many international human rights resources that have been assembled on our website (and elsewhere), to watch the archived meetings of the Design Team, and to post comments and suggestions through the interactive Comments page of the website.  All comments are gratefully considered, and responses are promptly responded to, by the Design Team. Several improvements to the Statute have been the result of reader input.

At the plenary session of the 15th annual World Chief Justice meeting, in December 2014, Mark Oettinger reported on the Design Team's work, and distributed the draft Statute to the conference attendees. At the conclusion of the conference, the World Chief Justices issued a unanimous Resolution which provided, inter alia, that, "The Heads of State/Government of all countries be urged...to hold a high level meeting to deliberate on the measures required for creating...a World Court of Human Rights..."  The full text of the Chief Justices' Resolution can be found at the following link:


In January 2015, representatives of the Design Team traveled to New York City, to begin the process of advancing the Treaty of Lucknow through the United Nations' treaty accession process.  Then, in March 2015, representatives of the Design Team traveled to Washington DC to meet with key US Congressional delegations, and leading NGOs in the field of international human rights.  We informed them of our work, and we solicited their support for advancing the World Court of Human Rights.

Mark Oettinger returned to the 16th annual meeting of the World Chief Justices in October 2015. The support of the Chief Justices was undimmed, and the work of the Design Team was heralded as the most concrete outcome of the two prior conference-concluding resolutions. That said, since a country's accession to a treaty depends upon the willingness of the executive branch to initiate it, and typically, its legislative branch to confirm it, the support of the country's judiciary is helpful, but it is in no way sufficient to ensure the country's accession to the treaty.  In addition, and disappointingly, we found no examples of chief justices who could report significant success in their overtures to their countries' chief executives. Understandably, there is an entirely appropriate propensity for judges to eschew interaction with the executive and legislative branches, due to traditional principles of separation of powers. 

Frequently Asked Questions

Question:  Should the WCHR be a United Nations organ, like the International Court of Justice (ICJ)?

Answer:  The strong view of the Design Committee is, "No."  This is not to take anything away from the ICJ, which is a vibrant, important and effective "supranational" court which adjudicates disputes which are, in the vast majority of cases, between and among nation states which agree to submit their disputes to the ICJ.  What the ICJ lacks, for the most part, is a venue for affected individuals, or more importantly, classes of individuals (an example...6 million Syrian refugees) within which they can obtain judicial review of their currently-transpiring human rights violations, and through the WCHR process, receive a meaningful and timely remedy.  

Question:  If "No," what role does the United Nations have in the process?

Answer:  The United Nations' Third and Sixth Committees are the venues in which proposed treaties dealing with issues of human rights, and with the related legal questions, are debated and implemented.  In short, these are the venues in which the world's 193 United Nations member-states come together to incubate human rights conventions.  One shining example is the land mine treaty, championed by Nobel Peace Prize laureate Jodie Williams.  Within this structure, we endeavor to have those committees debate and refine the Treaty of Lucknow, and to encourage United Nations member states to adopt it, thereby implementing the World Court of Human Rights.

Question:  Will the decisions of the World Court of Human Rights be enforced in the countries to which action is directed, and if not, what is the point?

Answer:  In accordance with general principles of public international law, it is fundamental that a treaty, when adopted in accordance the signatory nation's treaty accession process, becomes that nation's "domestic (i.e., national) law," fully enforceable by that nation's domestic courts.  An additional insight into this question was offered by Chief Justice Carl Ashok Singh, of Guyana, at the 2013 Chief Justice conference in Lucknow.  His observation was roughly as follows: "Just because a decision of a Court is not 100% enforceable, does not mean that it is worthless."  This point is echoed by officials of Human Rights Watch, Amnesty International, and other human rights NGOs.  Even though the world is still comprised of nation-states, and probably always will and should be, their national laws are constantly becoming more informed and inhabited by the growing body of public international law.  This is, in part, a byproduct of nation-states' ever-increasing accession to treaties, and is in part a byproduct of the growing body of case law that emanates from the related judicial and quasi-judicial bodies, as they apply treaty-derived law to the cases before them.  In addition, in an increasingly interconnected world, where news travels faster and (for the most part) more freely all the time, "public shaming" is a powerful force in educating the public and impacting the political process.

Question:  If the International Criminal Court (ICC) is in distress, what's to say that the creation of yet another "supranational" court has any real chance of success?

Answer:  The ICC and the proposed WCHR perform entirely different functions.  The ICC's narrow mission is to prosecute individuals (typically, former heads of state) for their roles in war crimes, genocide and crimes against humanity.  The impact, if the ICC is successful, is the criminal punishment of a single individual.  Without diminishing this worthy goal, the mission of the WCHR is far broader, and holds the potential of having a far more impactful outcome for enormous groups of individuals whose human rights are being denied as a result of conditions that violate universally recognized human rights norms.

Question:  What is the route through which the adoption of the Treaty of Lucknow, and thereby, the creation of the World Court of Human Rights, can be made a reality?    

Answer:  The realization of a treaty through the United Nations process occurs in a manner that is essentially analogous to the way in which legislation is enacted in a state or national legislative body.  Bills (or treaties) are introduced by sponsors, and are taken up by the committees which have jurisdiction over the relevant subject matter.  The more numerous the sponsors, and the more influential, the greater the likelihood that a particular bill (or treaty) will become law.  Proposed treaties are to the United Nations what bills are to a state or federal legislative body.  The present stage of our work is to mobilize a critical mass of nation-state sponsors to debate the Treaty of Lucknow in the context of the United Nations Third and Sixth Committee processes.  The Chief Justices have pledged to urge their national chief executives to do so.

Question:  Which nation-states do we (or did we) envision as lead "sponsors" of the Treaty of Lucknow?

Answer:  In part because we are physically located in the United States, one of our early focuses was to get the support of the United States executive branch.  In addition, because the Chief Justices meet annually in India, another of our initial focuses was to get the support of the Indian executive branch.  Both the United States and India have long-standing commitments to the protection of international human rights.  In addition, the 2015 meeting between President Obama and Prime Minister Modi seemed to set the stage for historic cooperation in this arena.  For these reasons, the WCHR Development Project named an Indian Country Director, Vishal Bhatnagar, and an Indian Student Director, Neel Lohit Pandy, who have helped to spread the word throughout certain key constituencies, and to the public in general.

Will India Agree To Be A Lead Sponsor?

In December 2014, on Mark Oettinger's second trip to the meeting of the World Chief Justices in Lucknow, India, he met a thirty-something graduate of City Montessori School, a "favorite son," a truly inspirational speaker, and therefore, a regular presenter at the Chief Justice Conferences.  At that time, he was stationed at the Indian Mission to the United Nations, in New York City.  He was enthused by the idea of a WCHR, and he invited members of the WCHR Development Project to visit him at the Indian Mission in New York, where he proposed to introduce us to his colleague who staffs the Third Committee for the Mission.  We did that, and were again enthusiastically received.  They welcomed the prospect of advancing the Treaty of Lucknow in the Third Committee, "As soon as we receive instructions from Delhi that we should do so."  This prompted us to explore potential inroads to Prime Minister Modi himself.

The out-of-pocket expenses for each of the three Lucknow trips were paid by the World Service Authority (WSA), a Washington DC-based NGO that was established by Garry Davis in the 1950s.  WSA's mission is to provide free legal assistance to refugees and stateless individuals, and to advance peace through supporting the creation of global governmental structures.  Since 1992, David Gallup has been its General Counsel, and since 1999, its President.  Its home office at 5 Thomas Circle, in Washington DC, is widely (and deservedly) viewed by WSA's countless supporters, as something of a world heritage site.  WSA paid for Mark Oettinger's flights and visa.  His accommodations in Lucknow were kindly provided by the host City Montessori School at one of its two "guest houses" for visiting faculty and conferences attendees.  WSA also hired a well-known Indian filmmaker, Senthil Bala Kumar, to document the trips.  This Southern Indian, US-educated filmmaker, also served as Mark's cultural guide, interpreter and companion throughout each of his three stays in Lucknow.

One of the annual evening social events at the Chief Justice Conference was an invitation to the compound of Akhilesh Yadav, the "Chief Minister" of Uttar Pradesh, for dinner and cultural performances.  The Chief Minister was in his early 40s, and has movie star good looks.  Uttar Pradesh (commonly known as "UP"), the "state" of which Lucknow is the capital city, is the largest of India's 29 states, and has a population of 200,000,000.  Yes, you read that right.  If it were a country unto itself, it would be the 6th most populous country in the world.  While making small talk on our first visit, it came out that the Chief Minister and our filmmaker/colleague are alumni of the same university, and when the conversation turned to film-making, the Chief Minister beamed, offered Senthil his card, and said that the two had to talk about making Lucknow the next Bollywood city in India.  A potentially important bond had been made.

Senthil, as it turns out, also has a somewhat distant familial connection to the Home Minister of India, second in government stature within the country only to the Prime Minister.  Still intent upon garnering the support of Prime Minister Modi for the Treaty of Lucknow, we made outreach through our India Country Director to the UP Executive Committee of the BJP, the party of Prime Minister Modi.  Through this process, we was able to germinate a dialogue between City Montessori School and Home Minister Singh, which resulted in the Home Minister accepting an invitation to serve as "Chief Guest" for a day at the conference in 2015, where we were able to speak with him briefly, and to give him a package of materials on the World Court of Human Rights.  Would the packet possibly find its way into the possession of Prime Minister Modi himself?

In late January 2016, we had a chance to have a wide-ranging two-hour meeting with a former Indian career diplomat and ambassador who knows intimately how the United Nations, and the Third Committee, operate.  Much to our surprise, that individual felt that the United States and India are very unlikely to support Third Committee discussion of the Treaty of Lucknow, and suggested instead Senegal, Ghana and Norway, as potential sponsors.

Will the United States Agree To Be A Lead Sponsor?

We visited the Vermont Congressional Delegations in Washington DC in early March, 2015.  We had separate meetings with staffers of Senator Leahy, Senator Sanders, and Representative Welch.  The Sanders and Welch staffers were pleasant, and promised to pass our information along, but we have not heard anything further.  With Senator Leahy's office, we were fortunate to meet with a very senior staffer whose job focus and content area expertise include both human rights and international relations.  He was intrigued intellectually, and he gave us twice the 20 minutes that his schedule had called for, but he had two (paraphrased) blunt assessments: (1) "What aspect of my current assignments can I afford to set aside in order to free up the time necessary to promote the Treaty of Lucknow before the Third Committee?;" and (2) "If the United States House of Representatives won't support United States membership in the International Criminal Court, what makes you think they would support a World Court of Human Rights?" As mentioned in the Question & Answer section above, there is a clear answer to the second question, which we offered.  We also opined that getting the Third Committee process started would not require that much of his time, and that the staff of the Third Committee would be responsible for the process once it was formally "on the Third Committee's agenda," per the sponsorship of one or more member nations.  He was supportive, he "got it," and was sympathetic, but he was unable to offer us a path.
   
How Do We Penetrate the United Nations?

Attempts to access policy-level people at the United States Mission to the United Nations have not been particularly successful to date, notwithstanding Burlington, Vermont Mayor Miro Weinberger's close personal friendship with then-United States Ambassador to the United Nations Samantha Power, and notwithstanding the fact that she has a deep commitment to the subject of international human rights. Clearly, the United States Mission to the United Nations has to rely on the White House to set its priorities, and must presumably resist the temptation to field ideas from the general public, no matter how worthy.  After all, there are plenty of "tin foil hat people" hawking Utopian and futuristic ideas.  No, we do not fit that mold, but from the establishment's perspective, it's not always easy to tell.

We also tried to have direct interaction with the staff of the Third Committee, but as with the United States Mission, the policymakers are well-shielded, and their mission is to support the member nation-states of the United Nations, and far less so (if at all), to provide a point of access for the public.  One thing the Third Committee staff did suggest is that we attempt to advance our Treaty through one or more of the NGOs which are recognized by the Third Committee.  In this case, Amnesty International and Human Rights Watch come to mind.  Interestingly, our retired Indian diplomat, whose views are recounted above, felt that this approach would be ineffectual in getting the Treaty of Lucknow onto the agenda of the Third Committee.

The Role of Funding, and Our Efforts To Date To Secure It

Our efforts to date have been made possible by a serendipitous confluence of events.  Garry Davis appeared in Mark Oettinger's life in 2000, after he flew an "undocumented non-resident alien" into Vermont.  She had been living in the United States without immigration status, despite having received work authorization from the City of New York.  US immigration authorities had turned her away when she had attempted to reenter the United States after a visit to Canada to purchase bibles for her church group.  The local federal judge before whom Garry was brought, with whom Mark had traveled to Russia twice before on rule of law activities, asked Mark to represent Garry in his possible alien smuggling prosecution, and in the already-pending civil forfeiture proceedings regarding his plane.  The threatened criminal prosecution was avoided, but Garry could not avoid the civil forfeiture unless he agreed to pay a $300 fine.  He refused to pay the fine, because he felt that doing so might negatively impact the woman's right to remain in the United States, and as a result, he forfeited the plane.

During these proceedings, a bond between Garry and Mark was established that lasted until Garry died in 2013.  Mark's trips to Lucknow in 2013, 2014 and 2015 happened to occur during a time of professional transition for Mark, who was therefore able to devote the significant time that was necessary to lead the design team that drafted the Treaty of Lucknow.  The heart of that process occupied roughly the first four months of 2014 full-time.

During that period, Mark was involved in re-establishing his Burlington, Vermont law practice, and as the demands of that practice grew, he still had sufficient time to spearhead the efforts that are described in this article.  The World Service Authority paid the out-of-pocket expenses for his trips to India, and for his several trips to New York City and Washington DC.  The World Service Authority also gave a modest, but badly needed, amount of "seed money" for us to hire fund-raising consultants to pursue the realistic levels of funds that we believe are needed to create the necessary momentum for the Treaty of Lucknow.  Our first fund-raising consultant was attorney/author/activist Charlotte Dennett, of Cambridge, Vermont.  We next worked with Paula Cope, of Cope & Associates, a Williston, Vermont-based consulting company.  Both Charlotte and Paula gave us far more service than we were able to pay for, which is a reflection of the infectiousness of the mission.  As a further incentive for donations, the World Service Authority created the related World Citizenship Foundation, which was awarded 501(c)(3) status in 2015.  As a result, donations earmarked for the World Court of Human Rights are now tax deductible.  We have met with numerous NGOs, which universally express support for our efforts, but which also understandably have their own financial priorities.  We estimate that $500,000 would allow us to create and support an influential Advisory Board, develop broad-based publicity, and enlist the necessary nation state sponsors to catalyze the adoption of the Treaty of Lucknow through the United Nations treaty accession process.   

What's Next?

"Is the World ready for a World Court of Human Rights?"  This question was raised by Professor Thomas Buergenthal, when he was first contacted by Mark as he was preparing for his first trip to India in December 2013.  Professor Buergenthal literally "wrote the book," in fact many of them, on the subject of the international protection of human rights, and on public international law generally.  Mark came across his name when, in preparation for his first trip to Lucknow, I read Professor Buergenthal's two "Nutshells" on those topics.  Mark told Professor Buergenthal what we were undertaking, and he expressed sincere doubts that we would succeed.  That said, he was willing to participate in a fairly lengthy conversation with Mark on a Sunday afternoon, and his insights were extremely helpful in Mark's planning of the strategy for the Design Team's efforts.

We did "our thing" for a couple of years, and with the Treaty of Lucknow in what we felt was "good shape," with some trepidation, Mark sent Professor Buergenthal a copy.  His response was roughly, "This is remarkably good...but I'm still not sure that the world is ready for a World Court of Human Rights."  Mark was delighted.  He understood what Professor Buergenthal was saying, and to have it come from him was a powerful and satisfying affirmation.  As far as the "readiness" question is concerned, those of us who have devoted significant effort to this task believe that the world is ready.  And ready or not, there can be no doubt that the desperate need presently exists, and that it would be irresponsible of us not to advance the cause.  

We published a slight variant of this article in the Winter 2016-2017 issue of the Vermont Bar Journal, and we believe that by re-publishing in one or more of the American Bar Association's International Law Section's specialty publications, The International Law News; and/or The International Lawyer; and/or The Clarion, we will be able to reach a high concentration of experts who are knowledgeable in, and committed to, the field.  The ABA may also be interested in having us prepare a webinar for live delivery, which would be archived in its permanent continuing education resources.  With the goal of developing such further teaching modules on the World Court of Human Rights, Mark has met with a Burlington, Vermont-based lawyer who has both an interest in human rights law, and facility with Prezi. The idea going forward is to spread the word as broadly as possible.  We have never met a single person who believes that the creation of a World Court of Human Rights is a bad idea.  Some question the enforceability of its decisions.  Others question the willingness of certain countries, or at least certain perceived "critical" countries, to subject their policies and/or actions to the scrutiny of such a court. But...no one questions the value of such a Court.

An Advisory Board

Our colleague at the Indian Mission to the United Nations put us in touch with Jonathan Granoff, Executive Director of the Global Security Institute, who also (in his spare time) curates the meetings of the Nobel Peace Laureates.  He has provided us with a long list of globally-influential leaders whom he believes can be counted upon to support the World Court of Human Rights.  This list has been combined with the list of individuals (Chief Justices and others) who have been identified by the efforts of the WCHR Development Project to date, and if we can get the funding to take our efforts to the next level, they will all be solicited for the purpose of being included on the list of those who support a WCHR.  The list is roughly 50 in number, and includes former heads of state and the most influential academics in the field.  

How Stay Informed and Get Involved

First, please visit our website at www.worldcourtofhumanrights.net, and in the process, please read the Treaty of Lucknow by clicking on the "WCHR Statute (Current Draft)" button in the upper left hand corner of each page.

Then, please take our online survey at https://www.surveymonkey.com/s/WorldCourt.  The survey only takes a few minutes, and in our fund-raising efforts, it is critical that potential donors have a clear picture of the public's belief in the need for the World Court of Human Rights, and of the commitments of member countries and member judiciaries to the process.

And finally, please submit comments, questions, ideas and suggestions through our website's Comments page, where visitor input is constantly monitored, and where submissions always receive a timely response.  We sincerely value all expressions of interest and support.   

Donations in Support of the World Court of Human Rights
The World Court of Human Rights Development Project's fiscal agent, the World Citizenship Foundation, in Washington, DC, has been granted 501(c)(3) status by the United States Internal Revenue Service.  This means that donations to the World Court of Human Rights Development Project are tax deductible for United States federal and state tax purposes.  Even if you are not a tax domiciliary of the United States, however, you may still be able to receive tax benefits from donating to the World Court of Human Rights Development Project, and we encourage you to explore this possibility with your local tax authorities and/or your tax adviser.

The Treaty

Included below are the Index, and the full text, of the Treaty of Lucknow.  The Treaty offers panoramic views of the full range of issues that sit at the intersection of supranational courts, public international law, and the protection of human rights. Enjoy, and please participate!