fundamental rights

Scientific & Academic Marathon for Ahmadreza Djalali

Posted on by Susanna Cafaro

Life

_____________________________

Everyone has the right to life.

No one shall be condemned to the death penalty, or executed

Right to the integrity of the person

Everyone has the right to respect for his or her physical and mental integrity

Everyone has the right of access to preventive health care and the right to benefit from medical treatment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Thought

___________________________

Everyone has the right to freedom of thought, conscience, and religion.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers

The arts and scientific research shall be free of constraint. Academic freedom shall be respected.

Justice

____________________________________

Everyone is equal before the law.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

Everyone shall have the possibility of being advised, defended and represented.

________________________________________________

These rights are from the European Charter of Fundament Rights (2000), one of the youngest children of the Universal Declaration of Human Rights (UDHR) drafted by representatives with different legal and cultural backgrounds from all regions of the world, proclaimed by the United Nations General Assembly in Paris on 10 December 1948.

The doctrine of human rights is one of the fruits of the WWII, which exposed which atrocities humans are capable of against fellow humans. The idea was, in a sense, to inoculate antibodies, setting a universal standard for the respect of human dignity beyond borders.

Respecting the rights of my fellow humans I respect myself, my humanity and humanity as a whole.

All the rights aforementioned have unfortunately been violated in Ahmad’s vicissitude.

The initiative by the colleagues of Università del Piemonte orientale to organize an international academic marathon to drive attention to his story deserves to be known.

Rethinking Global Rules and Institutions

Posted on by Susanna Cafaro

WKSHP_SDD_1505020_SLIDE

The current global health crisis shows an unprecedented interconnectedness of the human family. Moreover, it has fostered an unprecedented debate over the borders.

Networks and networks of networks are now debating about the “new normal” and are wondering if we really want to go back to the “old” normal.

It is strange. It seems that we needed such a traumatic event as a pandemic to really stop and think about our development model. We had already plenty of reasons to do so: the unsustainable inequalities, the unacceptable damages to our beautiful planet.

But it seems that we really needed to stop and think. To be forced to do so.

And here we are.

This series of debates was imagined well before the pandemic. A call for papers was put out in October 2020. And it looks like we are going timely to the point, to discuss a change which is necessary, to imagine new scenarios and new models for cooperation, sustainability, and resilience.

The next events in the series are going to focus even more on the needs, and on the awareness required to prioritize them.

Stay with us!

Susanna

The link to the recording is here

One Humanity: Shared Responsibility

Posted on by Susanna Cafaro

The Istanbul Summit is approaching, the first of its kind: a world humanitarian summit.

When the UN Secretary General called it in 2012, he could not imagine, that in May 2016 it would have been the no.1 issue on the agenda, because of all sort of humanitarian crises.

Every day, more funding and more organization is needed to save life and to offer first aid, the number of people in need of humanitarian assistance exploded in the last 12 months. Frustration is growing on both sides: the one of those who need help and that of those who do not know how to help.

Released a few days ago, the Report of the Secretary-General for the World Humanitarian Summit is a first provisional answer, aiming at paving the road. It offers a vision, inclusive and universal.

Here is the annex Agenda, summarizing the core proposals and the envisaged actions and tools.

Among others, a clear effort is needed to enhance law and governance tools, as pointed out in the Core Responsibility II. Uphold the norms that safeguard humanity, where we find under letter D:

“Reinforce our global justice system

Adopt national legislation encompassing the full range of international crimes and universal jurisdiction over them, and strengthen and invest politically in national law enforcement and invest financially in strong and impartial judicial systems.
Carry out systematically effective investigations into and prosecutions for allegations of serious violations of international humanitarian and human rights law.
Provide adequate political, technical and financial cooperation and support to the International Criminal Court and for the systematic investigation and prosecution of international crimes”
and under letter E:
“Uphold the rules: a global campaign to affirm the norms that safeguard humanity
Launch a global campaign
Launch a global effort to mobilize States Parties, civil society, and other global leaders to prevent the erosion of international humanitarian and human rights law, demand greater compliance with them, and ardently pursue the protection of civilians.
Adhere to core instruments
Urge all states to accede to core international instruments aimed at protecting civilians and their rights and implement them.
Promote compliance by engaging in dialogue on the law
Hold regular meetings of States Parties and experts on implementation of international humanitarian and human rights law and new challenges to reinforce its relevance, identify areas requiring clarification, and offer opportunities for legal assistance to ultimately compel compliance.
Use high-level United Nations Member States forums, such as the General Assembly, Security Council or the Human Rights Council for dialogue on compliance with international humanitarian and human rights law.”
But what we find really innovative and important is the last para. in Core Responsibility IV. Change people’s lives – From delivering aid to ending need

 “C. Deliver collective outcomes: transcend humanitarian-development divides

Commit to the following eight elements in order to move beyond traditional silos, work across mandates, sectors and institutional boundaries and with a greater diversity of partners toward ending need and reducing risk and vulnerability in support of national and local capacities and the achievement of the 2030 Agenda
Create a joint problem statement driven by data and analysis
Collect, analyse, aggregate and share reliable and sex –and -age disaggregated data with adequate security and privacy protection as a collective obligation to inform priorities.
Make data and analysis the basis and driver for determining a common understanding of context, needs and capacities between national and local authorities, humanitarian, development, human rights, peace and security sectors.
Develop a joint problem statement to identify priorities, the capacities of all available actors to address priorities, and where international actors can support or complement existing capacities.
Identify and implement collective outcomes
Formulate collective outcomes that are strategic, clear, quantifiable and measurable, and prioritized on the areas of greatest risk and vulnerability of people identified in the joint problem statement.
Aim for collective outcomes to have a positive impact on overall national indicators of advancement toward the 2030 Agenda and for multi-year plans to be installments toward achieving national development strategies in line with the 2030 Agenda.
Develop multi-year plans in three to five year duration that set out roles for various actors, adopt targets and drive resource mobilization to achieve collective outcomes.
Draw on comparative advantage
Deliver agreed outcomes based on complementarity and identified comparative advantage among actors, whether local, national or international, public or private.
Promote a strong focus on innovation, specialization and consolidation in the humanitarian sector.
Coordinate collective outcomes
Coordinate around each collective outcome with the diverse range of actors responsible to achieve it.
Empower leadership for collective outcomes
Empower national and international leadership to coordinate and consolidate stakeholders toward achieving the collective outcomes
Empower the Resident/Humanitarian Coordinator to ensure coherent, collective and predictable programme delivery of the United Nations and its partners toward the full programme cycle of the multi-year plan and the achievement of collective outcomes.
Empower the Resident/Humanitarian Coordinator to request and consolidate data and analysis to develop the common problem statement; moderate and conclude the setting of collective out comes; ensure implementation and monitoring of progress; and to steer adequate resources to ward the agreed multi-year plan.
Adapt structures, processes and financial systems at headquarters of agencies and donors as appropriate to reinforce this approach towards collective outcomes.
Monitor progress
Ensure clear performance benchmarks and arrangements are in place to monitor and measure progress toward achieving collective outcomes, to ensure timely adjustments, and the right re sources and political support are in place.
Retain emergency capacity
Enable and facilitate emergency response and people’s access to life-saving assistance and protection in contexts where meeting longer-term collective outcomes will be difficult to achieve.
Recognize the provision of emergency response as a short-term exception and all efforts should be made to reduce need, risk and vulnerability from the outset.”

Infact, one of the (many) problems to overcome is the fragmentation of each emergency response among an impressive number of actors, acting at different level and often without a shared vision. Not only state actors and international actors may address different priorities or have in mind different goals, but also at the same state level (even  at the same international level) different actors could contradict each other, not to speak of the not always clear sharing of competences among international institutional actors (as the UN and the many specialized agencies).

What the Agenda do not get to say is that we need a control room, possibly in the UN, and we need an holistic approach to include development policy, equality, humanitarian emergencies and peace-keeping.
Of course, these are different problems that need tailored responses and dedicated specialists, but we could not deny that they impact each other significantly. A common vision on preventing conflicts would avoid displacements – having an impact on development, equality, health emergencies. Working on development and equality, on the other hand, reduces the risk of conflicts, and so on….
My best wishes to the World Humanitarian Summit, my hope is that  – approaching the date – it becomes even more ambitious and far-reaching (as it just happened in Paris).

A Democracy Index for International Organization?

Posted on by Susanna Cafaro

Democracy indexes are usually for states.

They are designed to assess trends and  level of democracy inside countries.

Democracy is never a yes or no, or maybe it may be a clear no, but never a clear and final yes.  Democracy standards evolve, societal challenges require a continuous update of democratic tools and indicators and citizens should never stop to claim for better and more efficient participatory and accountability tools. Democracy is a work in progress.

Let’s have a look at same of these democracy indexes:

The Economist Intelligence Unit Index of Democracy compiles an annual ranking of countries by democracy level. The index is based on 60 indicators grouped in five different categories measuring electoral process and pluralism, civil liberties, government role, political participation and cultural participation.

The Index distinguishes between full democracies and flawed ones, hybrid and authoritarian regimes on the basis of their scores within each category. In 2015, democracies appear to be complete in only 20 of the 167 countries surveyed!

Other interesting indexes and measurements are on other sites, such as the Democracy Barometer, whose theoretical basis is in this chart:

quality_en

Many other indexes and rankings deserve a mention. The Bertelsmann Transformations Index on the political and economic development assesses the status of countries in transition, while the Bertelsmann Sustainable Governance Index refers instead to the OECD countries. The Democracy Ranking is based on political and socioeconomic factors; the Democratic Audit, focuses on UK; the Freedom House: Freedom in the World Reports is developed by the American NGO “Freedom House”; the Global Democracy Ranking measures the quality of democracy freedom & other characteristics of the political system) plus the performance of the non-political dimensions  (gender, economy, knowledge, health, and the environment); Polity classifies political systems on a scale between the two extremes autocracy and democracy; the Polyarchy Dataset is based on Robert Dahl’s concept of polyarchy as the Vanhanen’s Index of Democracy; the Worldwide Governance Indicators (WGI) project reports aggregate and individual governance indicators for 215 economies;  the V•Dem ratings on 11 different democracy components  for all countries worldwide from 1900 onwards; the Unified Democracy Scores combines measures from 12 other democracy measures (among others Freedom House, Polity, Polyarchy, Vanhanen).

Other ways to measure democracy level may involve the respect of human rights (see among others Amnesty International – Human Rights Reports, or HDR – Human Development Reports (UNDP), or transparency (as Transparency International: Corruption Perception Index (CPI), Global Corruption Barometer (GCB) und Bribe Payers’ Index (BPI)) or the freedom of press and media (as Freedom House). Please note that the list is not complete!

Even if the theoretical approach and the data sets may differ, all these indexes and rankings have something in common: they all refer to states. These parameters can only be used to a limited extent when evaluating an international organization.

There are some good reasons for that: first of all they measure the efficiency of representative democracy, i.e. the electoral system (are there free elections? do all individuals enjoy voting rights? is the electoral process transparent? and so on…)

Second, many indicators refer to human rights and quality of legislation (freedom of press, judicial rights, gender equality, access to education, et cetera).

Finally, some of them evaluate the economic environment: economic freedoms, free competition, inequality.

All of them, so, assume the existence of a demos and a territory of reference and a government responsible for them. They are definitely useful to inform us on how things work, how they evolve over time and how they can be improved.

But still, I think that we miss an important tile in the mosaic of our democratic rights. What if the decisions which have an impact on our rights do not originate from states, but instead from the UN, the IMF, the Eurogroup? Are still the states to blame? and if so, what can we do to address the issue? The Greek crisis offered a powerful example, but should we speak of the UN Security Council listing potential terrorists without any respect for their defence rights?

I have spent some time reflecting on possible indicators to measure democracy in international organizations, once again to assess how things work, how they evolve over time and how they can be improved. The main difference with democracy indicators for states is that they concern only the relationship between citizens and a governance system.

Here is my concept tree:

supranational democracy chart

What I came up with, is a chart based on three core indicators: legitimacy, accountability and inclusion. All the three may , in turn, be split into different substantial elements, in order to explore possible improvements. Only through a prismatic factorization of each of them in their multiple meanings is possible a real assessment of the existing democratic toools as well as a verification of what is really missing.

There is a close relationship between democratic legitimacy, accountability and inclusiveness; several tools serve more than one of these values (you’ll see repetitions in the chart) and transparency serves them all.

What seems interesting to me is that this chart imagined for international organizations works very well for any kind of organization expected to be democratic (even if not all the yellow elements – the practical tools –  would apply, or we could imagine other ones).

 I don’t know how to convert these elements in numeric values in order to build an index, but I’d like very much to join a team to imagine one.

I’m open to suggestions!

 

We are all French, we are all Europeans.

Posted on by Susanna Cafaro

candle

After the tragic events in Paris on Friday evening, we Europeans were all under shock. From Italy to Sweden, from Greece to Portugal, we grieved and lightened candles and prayed. We all knew that Paris was a symbolic place (how powerful): the attack was brought against our core values,  the values of a democratic, liberal society, based on the rule of law and the respect of fundamental rights, free, multicultural, sexually-liberated, open.

The freedom of speech, of religion, of circulation are suddenly at risk and we know that we have to fight a new kind of struggle (of war, if you want) – totally different from the previous ones – the war to keep our societies open, because if we react in the old-fashioned style with  closure and protectionism and hate, if we step back from liberty of speech and religion, the enemy has already won.

It’s not an easy task. The immigration emergency, the rise of populism and the risk of extreme right political parties taking advantage of what has happened is definitely high. The point is that our states have partially failed in making us feel safe and, at the same time, open. We can observe decaying national identities as here and there states failed the challenge of integration; moreover the worsening of economic conditions favored urban subcultures and rebellions of the excluded ones. Jihadists grown up and living in Europe are a very bad symptom of our societies’ health status.

We must roll up our sleeves and rebuild trust in our values, which are the very fabric of our identity.

We felt all Europeans after the Paris tragedy, we recalled what makes us stand together against terror, let’s start from there. Let’s work on our European identity, which shouldn’t surface only in the bad moments, but help us overcome the failure of states with its motto “united in diversity”, able to comprise all of our populations, all of the honest migrants who came here for a better living and are ready and willing to respect our values.

Of course, any reaction, military, political and diplomatic should be likewise European. To be as symbolic and significant as the aberrant acts which injured Paris, heart of Europe.

The Global Goals and All the Ways to Communicate Them

Posted on by Susanna Cafaro

Sustainable development goals are ambitious. They are milestones intended to change the world in the next 15 years.

As you can read, the 5 Ps in the preamble reveal a broaden view…

The Goals and targets will stimulate action over the next fifteen years in areas of critical importance for humanity and the planet:

People

We are determined to end poverty and hunger, in all their forms and dimensions, and to ensure that all human beings can fulfil their potential in dignity and equality and in a healthy environment.

Planet

We are determined to protect the planet from degradation, including through sustainableconsumption and production, sustainably managing its natural resources and taking urgentaction on climate change, so that it can support the needs of the present and futuregenerations.

Prosperity

We are determined to ensure that all human beings can enjoy prosperous and fulfillinglives and that economic, social and technological progress occurs in harmony with nature.

Peace

We are determined to foster peaceful, just and inclusive societies which are free from fearand violence. There can be no sustainable development without peace and no peace without sustainable development.

Partnership

We are determined to mobilize the means required to implement this Agenda through arevitalised Global Partnership for Sustainable Development, based on a spirit of strengthened global solidarity, focussed in particular on the needs of the poorest and most vulnerable and with the participation of all countries, all stakeholders and all people.

Many will notice that this list is much longer than the previous one, the list of Millennium development goals, written fifteen years ago. The focus is not just on the people, but on the planet too and on all the living creatures on it. As somebody said, “What does not benefit the hive, is no benefit to the bee.”

Are they achievable? Yes, they are. But if we look at the previous 15 years we can tell than setting a direction doesn’t guarantee that we are going to reach the target. Nonetheless, it is far better than not setting it at all. If we fall short, we’ll be somewhere on the way. Somewhere closer.

Of course, the goals and their formulations are the results of negotiations and compromises – not necessarily the best possible – and the follow-up won’t be easy (you can read something more here)

Nonetheless, this new 15-years-race has been better prepared than the previous one.

First of all, the SDGs are the final results of many different levels of contribution, which have involved an impressive number of people. Even if the diplomatic and political level played the decisive role, it has been preceded by on-line polls (involving more than 8 million people), thematic and national consultations, large debates, meetings with civil society.

The idea is that creating a sense of ownership – through a bottom-up dialogue, inclusive planning structures such as the World We Want Platform  and multi-stakeholder partnerships – will benefit its delivery.

Another powerful idea is that communications is in itself a key to making the targets attainable.

If a majority of people around the world will believe in the goals they will become achievable. Not only because private action will join the efforts of government and international organizations, but also because – on a deeper level – a sort of global awareness will make them appear realistic so that many small actions will add up to the big ones.

The effort to communicate the new goals appears, in this early stage, already impressive.

For instance, for the number of testimonials…

…or for the different targets, including children

…and for the spontaneous involvement of private companies.

Virgin, for instance, has created an app in support of the global goals, wich could transform all of us in superheroes to join ‘the global goals alliance’.

I’ve chosen for myself the superpower “partnership for the goals” ( no.17)

Embarrassing, isn’t it?

But what I think is really great, it’s the idea that we can contribute in many different ways and so several different platforms are just being created to offer us occasions to engage, such as the PEOPLE + PLANET PROJECT or the Global Citizen Community.

Quite interesting as a start, isn’t it?

IS THERE A WAY TO STOP TECHNOLOGIES WHICH BREACH (OR MAY BREACH) HUMAN RIGHTS?

Posted on by Susanna Cafaro

(originally published on ODBMS.org)

The European Parliament voted on Sept. 8 a report presented by the Alliance of Liberals and Democrats focusing on human rights and technology in third countries. In it, the EU Parliament claims that the Union should take a clear stance against those authoritarian regimes which use spying and hacking technologies to violate human rights. In order to do so they should lead in preventing this kind of technologies from falling into the wrong hands.
In the same day, the Parliament amended a Commission’s initial proposal to ban animal cloning to include the cloning of all farm animals, their descendants and products derived from them, including imports into the EU.

What do so different topics have in common?
They expect to have an impact on technology, or the use of technology.

Every year, the level of concern about the possible use of new technology raises exponentially: artificial intelligence, big data, drones, space race, not to speak about genetics or nanotechnologies (and being a lawyer I stop here, I’m sure my little list sounds poor and even silly to scientists).
Could we ever expect to stop technological evolution? And would it be something good?
The answer is clearly “no” to both the questions.
Technologies are the new borders of humanity exploration: pushing the limit to expand knowledge is in our very nature and enhancing human well-being through technological improvement is a moral obligation, especially where it is desperately needed.

But, how could we make sure that knowledge goes hand in hand with wisdom? How to avoid that the final result of this quest is nothing but self-destruction?

We face here two different problems, both difficult to solve: the How and the Who.

I. How the development of new technologies could be scrutinized in order to stop the research addressing wrong goals (goals of destruction of people or planet or control over other human beings)? How to avoid the misuse of technology which could have peaceful and fruitful applications?

II. Who should be in charge to do so?

First of all, an assumption seems inevitable: there isn’t much we can do at national level, not even at continental level. It’s even too easy, nowadays, to move a lab or a factory from one country to another, to shop among legal systems just to find the most accommodating (or the most interested) one. Even without moving, the product or the patent which is the outcome of a research can easily be sold abroad.

About the “how”, I doubt any international treaty could be effective. Too long negotiating processes, too difficult to verify the real implementation. Most of all a lack of flexibility in its content would make it immediately outdated. By the way, how many treaties should we need?

The only way to address the point is in identifying an evaluation body, in charge of screening in “the interest of humanity”.
And here comes the “Who” problem.

I don’t think that academic records or prizes and accomplishments would be enough to choose somebody for such a sensitive position. A clear commitment in the interest of humanity is needed for the members of such a value-centered group.
There are actually some bodies of scientists or experts in the UN, as the Commission on Science and Technology for Development, whose members are appointed by national governments according to a geopolitical distribution.

I am not sure this is the best formula (and I’m not sure to know the best formula), but I think that it should be possible to agree on some basic key points:

  • High profile of members (both ethical and scientific) recognized at global level;
  • Pluralism and diversity (and of course gender equality);
  • A transparent appointing process (by whom? The UN General Assembly? Or involving the same scientific community?)
  • Affiliation with a global organization or agency able to endorse and give authority to recommendations.

I don’t think that such a body should enter into details of single projects, but It could take charge of deep evaluation in areas of concern, to be submitted by states, international organizations or NGOs.
These are nothing but early reflections on a topic which I hope will be developed over the next months and years.

The scientific community – both academic and entrepreneurial- is called to join this debate and to be at the forefront in guaranteeing its own integrity in the interest of humanity.

International Law vs Human Rights

Posted on by Susanna Cafaro

International law sometimes is binding.

International treaties may be amended or repealed by new treaties, customary law can evolve over time (and sometimes it takes centuries), but a core of international law is really binding.

Members’ obligations under the UN Charter override their obligations under any other treaty; decisions by the International Court of Justice are law for the parties to the judgment; resolutions of the UN security Council – grounded on chapter seven of the charter- must be enforced and – of course –  rules of jus cogens are not modifiable.

What happens when this core of international law conflicts with fundamental rights of individuals? what comes first? Most of the legal scholars would say: the binding international rules. As uncomfortable as it appears, the primacy of the rules ensuring the peaceful coexistence of states must be guaranteed.

But aren’t human rights a too high price to pay? And isn’t the system contradicting itself? After all, the United Nations are the cradle of the doctrine of human rights: they gave birth to the  Universal Declaration of Human Rights (1948), another conerstone of international law.

Now, some jurisdictions are challenging the UN system on this same ground of the guarantee of human rights. A couple of meaningful examples will clarify what I’m saying: the Kadi saga and the decision 238/2014 of the Italian Constitutional Court

Scholars of EU Law and of international Law are very familiar with the Kadi and Kadi II decisions which from 2001 to 2013 involved the European Courts in the evaluation of EU acts  implementing a UN Security Council binding Resolution.

In its Kadi judgment,  the European Court of Justice (ECJ) stated that “the Community judicature must (…) ensure the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations.”

The resolution we are speaking about ( Resolution 1267 (1999)) established a “Sanctions Committee” responsible in particular for designating the funds or other financial resources which all States must freeze in order to ensure that those funds or are not made available to, or for the benefit of, the Taliban . In Resolution 1333 (2000),  the UN Security Council instructed the Sanctions Committee to maintain an updated list of the individuals and entities designated as associated with Osama bin Laden, and held that States must freeze funds and other financial assets of these individuals. In order to implement this resolution, the Council of the EU adopted, inter alia, the contested Council Regulation 881/2002

Even if the ECJ emphasized that it had no  no power to review the lawfulness of resolutions adopted by the UN Security Council, the European regulation adopted on its ground was annulled as the whole procedure both at UN level and EU level didn’t respect the right of the individual to be heard.

In the community of international lawyers this decision was almost heretical. infact, according to Article 103 of the UN Charter :

‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

But is the right of the individual to be heard just an European Law principle or is it a cornerstone in the whole human rights doctrine?

And even if one  may have little sympathy with that Saudi businessman (and his well equipped legal team), wasn’t the principle right?

In the so called Kadi II case, mr Kadi then brought new proceedings before the General Court, seeking annulment of Commission’s Regulation 1190/08.  It appeared that the delisting procedure available before the Sanctions Committee failed to offer the minimum guarantees of judicial protection, nor had the system set up at the EU level offered other than a formalistic protection. Even this second Regulation was annulled.

In October 2012 – after more than a decade-  Mr Kadi was delisted by the Sanctions Committee.

In July 18, 2013, the Court of Justice of the EU handed down the judgment in the so-called Kadi II dispute. With this decision, the Court dismissed the appeals brought by the Council, the Commission and the UK against the General Court’s judgment. In so doing, the Court has confirmed that Mr. Kadi’s inclusion in the list was in breach of his fundamental rights.

Now, we are not so much worried for the question whether the primacy of UN Charter obligations is jeopardized as -from a substantial point of view- we are for the non compliance with fundamental human rights by the Security Council

What is really important to point up is that since 2009 there is an  Ombudsperson in the UN System. It was established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011).  He is also in charge for assisting the Sanctions Committee in dealing with delisting requests.

The creation of the Ombudsperson is a direct result of combative individuals and brave judges (see also some cases in domestic courts, such as , Abdelrazik, Hay, Ahmed, etc). I don’t see it as a failure but as a step forward in international law.

Another step forward is suggested by the decision 238/2014 of the Italian Constitutional Court which concerned  the constitutional legitimacy of certain Italian norms which had been adopted by Italy in order to give application to the International Court of Justice’s 2012 Judgment on Jurisdictional Immunities of the State (Germany v. Italy).

This time the clash was between the jurisdictional immunity of states and the rights of victims of war crimes and an “heretical” decision by the Italian Court chose to favor the rights of individuals.

In the dispositif, the Constitutional Court declared Article 3 of Italian law 5/2013 constitutionally unlawful. This article was a specific implementation of the ICJ Judgment of 2012, requiring Italian Courts to decline jurisdiction in any cases where the International Court of Justice had decided that Italian civil Courts should not adjudge upon the conduct of other States; moreover, the Court declared the 1957 Italian law of ratification of the UN Charter constitutionally unlawful,

“with respect to the execution given to Article 94 of the Charter, only to the extent in which it obliges Italian Courts to comply with the Judgment of the International Court of Justice of 3 February 2012, which requires them to decline their jurisdiction in relation to the acts of a foreign State which consist in war crimes and crimes against humanity, impairing inviolable human rights”.
For further explanations of the Court’s reasoning, you can see here.
The conflict between fundamental human rights and international law cannot be healed remaining on the same level of thinking in which it has been generated, what I see here is an effort of the Italian Constitutional Court to move to a new level: giving fundamental rights a different stance vis-a-vis binding international law.

Democracy, What Does it Mean?

Posted on by Susanna Cafaro

We know (or think to know) the exact meaning of the word “democracy”. Our idea of democracy is grounded on personal experiences of democratic – or undemocratic – national systems as well as on something we studied at school: the Magna Charta, the Déclaration des Droits de l’Homme et du Citoyen, the United States Declaration of Independence.

And we all know the origin of the word in ancient Greece from the two words “Demos” and “Kratia“: people and power. So, democracy literally means power to the people or power for the people. No doubt it means for us free elections, equality, pluralist society, fundamental rights,  access to justice.

We tend to forget, nonetheless, that this definition is relative in space and time. In the ancient Athens as in the 13 American colonies there was an aristocracy living on the work of slaves and women enjoyed very few fundamental rights. Only in the XX century, our democracies acquired the current structure and still… we cannot say they perfectly mirror our ideal of democracy. Let’s face it: democracy is more a process than a state. Whatever the democracy we are in, there is always something we can do to improve it. This is clearly recognized in international rankings – such as the Democracy index or the Global democracy ranking.

Both rank countries according to levels or degrees of democracy, not just by its existence/non-existence. Not only democracy is different according to historical evolution, it is also different according to the territorial dimension we are in. Democracy in a city-state is radically different from democracy in a big country: different ways to build consensus, different ways to participate. In the first it is easy to use the instruments of direct democracy, in the second it is less. And still, both are states.

The difficulties involved in moving this democracy model from the state to the global arena are all too evident: we deal with a community of states and a community of individuals (humanity!), both crossed by deep cultural differences and dramatic inequalities. Not only there isn’t a shared concept of democracy in a framework different from the state, but it is simply impossible to apply to international organizations a model of democracy conceived in the eighteenth century for the state. Several attempts have been done by academia to build an autonomous model, but we are far from a shared vision. Moreover, international organizations are the result of a different evolutive path over the centuries, grounded on the principles of international law: a law for states, not for individuals inspired by the different logic of international relations.

So, a new democratic model for global institutions has to be implemented and, at the same time, old visions  -not serving us anymore- have to be dismantled. Utopistic? For sure! But have we a different choice? Before an institutional formula for global democracy, we need a methodological approach to get there. The aim is double: to evaluate the existing “level” of democracy in international organizations and to propose possible reforms in line with the legitimate expectations of democracy emerging in the global civil society.

Utopistic? For sure! But have we a different choice? Before we imagine an institutional formula for global democracy, we need a methodological approach to get there. The aim is double: to evaluate the existing “level” of democracy in international organizations and to propose possible reforms in line with the legitimate expectations of democracy emerging in the global civil society.

My suggestion is to ground this process on values more than on rules and institutions: let’s identify values first. My choice? Legitimacy, Accountability, Inclusiveness. They will be explored, one by one, in the following posts.

Which is your idea of democracy? Do you have a different list of values? A ranking of priorities? I’d love to know!