McGill Law Journal ~ Revue de droit de McGill
INTERNATIONAL LAW AND HUMAN RIGHTS:
THE POWER AND THE PITY
MCGILL LAW JOURNAL ANNUAL LECTURE
Hon. Rosalie Silberman Abella*
About ten years ago, Irwin Cotler organized a conference on the fifti-
eth anniversary of the Nuremberg Trials and invited me to speak on the
topic, The Instructive Power of Outrage1. It launched me on a voyage of
legal discovery that has kept me in intellectual thrall ever since. And
looking back on that lecture and how hopeful we all were that Nurem-
bergs lessons would prevail, I find myself wistful for that optimism, and
somewhat disillusioned but unprepared to give up. As a result, I have
called this lecture about international law and human rights The Power
and the Pity in the hope that in this audience of brilliant students are
the leaders who will take the world by the hand and help show it the way
into the future.
Since 1945, the global community has demonstrated an enormous ca-
pacity for constructing legal systems and institutions to enhance and ad-
vance international law. Many areas of international law are free from
controversy and generally effective: telecommunications and broadcast-
ing; the international postal system; laws on shipping and bills of ex-
change; international travel; passport and customs control; international
financial transactions; international trade of goods, services, and ideas;
diplomatic and consular relations; and the mutual recognition of mar-
riages, divorces, and university degrees. They are a less visible, but none-
theless significant, series of successes for international law.
And it is a tribute to the perceived legitimacy of international law that
it is repeatedly invoked by the Supreme Court of Canada as an interpre-
tive guide when deciding domestic cases. Whereas the Court made use of
* Justice, Supreme Court of Canada. This speech was delivered as the McGill Law
Journal Annual Lecture at the Faculty of Law, McGill University on 26 January 2010.
(cid:148) Rosalie Silberman Abella 2010
Citation: (2010) 55 McGill L.J. 871 ~ Rfrence : (2010) 55 R.D. McGill 871
1 Rosalie Silberman Abella, The Instructive Power of Outrage: Remembering Nurem-
berg (2000) 46 McGill L.J. 113.
872 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
key international human rights instruments in fifty cases between 1984
and 1996 when interpreting the Canadian Charter of Rights and Free-
doms,2 the Court cited foreign and international law in half of its 114 de-
cisions in 2006 and 2007.3
Like international law generally, international economic law since
1945 has witnessed a proliferation of institutional organs established to
administer the regime and to participate in legal development,4 including
Organisation for Economic Co-operation and Development (OECD); the
World Intellectual Property Organization (WIPO);5 the International La-
bour Organization (ILO);6 the United Nations Commission on Interna-
tional Trade Law (UNCITRAL);7 the International Bank for Reconstruc-
tion and Development (IBR), the International Finance Corporation (IFC),
the International Development Association (IDA), the International Cen-
tre for the Settlement of Investment Disputes (ICSID) and the Multilat-
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11.
3 The cases where international law has been used have represented a wide range of is-
sues. The Supreme Court of Canada has turned to international law for guidance in
cases dealing with: trade obligations (National Corn Growers Association v. Canada
(Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449); state recession (Reference
Re Secession of Quebec, [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385); extradition to the
death penalty (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, 84 D.L.R.
(4th) 438; Reference Re Ng Extradition, [1991] 2 S.C.R. 858, 84 D.L.R. (4th) 498; United
States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 195 D.L.R. (4th) 1); international
crimes (R. v. Finta, [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513; Mugesera v. Canada (Min-
ister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, 254 D.L.R.
(4th) 200); deportation to torture (Suresh v. Canada (Minister of Citizenship and Immi-
gration), 2002 SCC 1, [2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1); collective bargaining
(Health Services and SupportFacilities Subsector Bargaining Association v. B.C.,
2007 SCC 27, [2007] 2 S.C.R. 391, 283 D.L.R. (4th) 40); duty to disclose (Canada (Jus-
tice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, 293 D.L.R. (4th) 629); extraterritorial
search and seizure (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, 280 D.L.R. (4th) 385
[Hape]); extraterritorial reach of domestic laws (Society of Composers, Authors and Mu-
sic Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45,
[2004] 2 S.C.R. 427, 240 D.L.R. (4th) 193; Hape, supra); immunity (Schreiber v. Canada
(A.G.), [1998] 1 S.C.R. 841, 158 D.L.R. (4th) 577); young offenders (R. v. D.B., 2008 SCC
25, [2008] 2 S.C.R. 3, 92 O.R. (3d) 399); and prisoners right to vote (Sauv v. Canada
(Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, 218 D.L.R. (4th) 577).
4 I am indebted to my law clerk, Kate Glover, for her research on international trade law.
5 Convention Establishing the World Intellectual Property Organization (WIPO), 14 July
1967, 828 U.N.T.S. 3, 21 U.S.T. 1749.
6 International Labour Organization (ILO) Constitution, 15 U.N.T.S. 40, online: ILO
7 Establishment of the United Nations Commission on International Trade Law
(UNCITRAL), GA Res. 2205(XXI), UN GAOR, 21st Sess., UN Doc. A/RES/2205(XXI)
(1966).
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 873
eral Investment Guarantee Agency (MIGA);8 and the United Nations En-
vironment Programme (UNEP).9 In addition, organizations and legal in-
struments have been established at the regional level to ensure closer
economic co-operation between states, including the European Commu-
nity (EC); the North American Free Trade Agreement (NAFTA);10 the
Southern African Development Community (SADC);11 the West African
Economic and Monetary Union (WAEMU);12 the Association of Southeast
Asian Nations (ASEAN);13 MERCOSUR and the Central American Free
Trade Agreement;14 and, of course, the IMF, the World Bank, and GATT.15
Then, in 1994, the Marrakesh Agreement established the World Trade
Organization (WTO),16 which came into being on 1 January 1995, dra-
matically extending the reach of trade regulation and creating a compre-
hensive international legal and institutional framework for international
trade. After only fifteen years in operation, the WTO is in essence inter-
national laws child prodigy. Like the UN, the WTO struggles with recon-
ciling the interests of the most powerful states and the least, as is obvious
from the tumultuous eight-year saga of the Doha Development Round of
8 The IBRD, IFC, IDA, ICSID, and MIGA comprise the five bodies of the World Bank
Group, online: The World Bank
9 Institutional and Financial Arrangements for International Environmental Co-
operation, GA res. 2997(XXVII), UN GAOR, 27th Sess., UN doc. A/RES/2997(XXVII)
(1975).
10 North American Free Trade Agreement Between the Government of Canada, the Gov-
ernment of Mexico and the Government of the United States, 17 December 1992, Can.
T.S. 1994 No. 2, 32 I.L.M. 289, 605.
11 Treaty of the Southern African Development Community (SADC), 17 August 1992, 32
I.L.M. 116, 5 A.J.I.C.L. 418.
12 WAEMU is commonly known by the French title, lUnion Economique et Montaire
Ouest Africaine (UEMOA). See Trait de lUnion Economique et Montaire Ouest Afri-
caine, 10 January 1994, online: UEMOA
13 ASEAN Declaration, 8 August 1967, 6 I.L.M. 1233. See also ASEAN Charter, online:
ASEAN
14 See Treaty Establishing a Common Market between the Argentine Republic, the Federal
Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, 26
March 1991, 30 I.L.M. 1041 [MERCOSUR]; Central AmericaDominican Republic
United States Free Trade Agreement, 5 August 2004, 43 I.L.M. 514 (commonly known as
CAFTA or CAFTA-DR).
15 See Articles of Agreement of the International Monetary Fund, 27 December 1945, 2
U.N.T.S. 39 (Bretton Woods Agreement). See also General Agreement on Tariffs and
Trade (GATT 1947), 30 October 1947, 55 U.N.T.S. 187, Can. T.S. 1947 No. 27 (entered
into force 1 January 1948); General Agreement on Tariffs and Trade (GATT 1994), 15
April 1994, 1867 U.N.T.S. 187, 33 I.L.M. 1153.
16 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867
U.N.T.S. 154; 33 I.L.M. 1144.
874 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
negotiations.17 Yet despite occasional criticism, the WTO and its dispute
settlement mechanism in particular are regarded as legitimate, effective,
and influential in international relations.
International trade law has, like international human rights law, con-
structed a complex network of institutions and norms to regulate state
conduct. But unlike international human rights law, states comply with
international trade law and, in the event of non-compliance, an effective
settlement mechanism is available to resolve disputes. In other words,
what states have been unable to achieve in sixty-five years of interna-
tional human rights law, is up and running after only fifteen years of in-
ternational trade regulation. I find this dissonance stark and unsettling.
If we examine international trade law and international human rights
law in parallel, we can make a number of discouraging observations.
First, unlike the UN, the WTO is extremely difficult to join. That means
that the global community agrees that obtaining membership in a trade
organization should be more onerous than obtaining membership in an
organization responsible for saving humanity from inhumanity. Second,
the global community has implemented non-discrimination (as between
states) as an enforceable tenet of international trade law, but cannot im-
plement the same principle as between people. Third, the global commu-
nity agrees that the products of one state should be treated the same as
products from every other state, but cannot agree that individuals have
rights as individuals, not as citizens of particular states. And fourth, the
global community agrees on the principles underlying international trade
law: non-discrimination and most favoured nation. In contrast, the global
community cannot agree on the principles underlying international law
generally, and sovereignty and human rights continue to conflict.
Is it fair to ask, when looking at this picture, what the dissonance be-
tween international trade law and international human rights law says
about our global priorities? I would say it is not only fair, it is essential.
Through the UN Charter, the peoples of the United Nations deter-
mined to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of
nations large and small.18 It was created for the purpose of achieving in-
ternational co-operation in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race,
sex, language, or religion.
17 See WTO, Doha WTO Ministerial Declaration, WTO Doc. WT/MIN(01)/DEC/1 (2001),
41 I.L.M. 746.
18 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7, Preamble [UN
Charter].
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 875
We have clearly seen the emergence of the individual as an actor on
the international legal scene. In fields such as human rights, criminal
law, humanitarian law, and environmental law, individuals have interna-
tional legal obligations to other individuals and can be held accountable
for their breaches, representing a dramatic change from classical interna-
tional law, which construed the state as the only legal entity subject to
regulation. That is why there was so much cheering when we thought the
global community had finally resolved the rancorous, longstanding debate
about humanitarian intervention through the UN General Assemblys
unanimous endorsement of the doctrine of the Responsibility to Protect
(R2P) in 2005.19 It seemed, at last, that we had seen a triumph of human
rights over sovereignty. Yet, at the end of July 2009, the UN General As-
sembly debated R2P for the first time since unanimously endorsing the
doctrine in 2005 and it seemed to unravel before our eyes.20
How did we get there, why did we get there, where is this leading us,
and what do we need to think about to fix it? And fix it we must, because
unless we pay attention to intolerance, the worlds fastest growth indus-
try, we risk losing the civilizing sinews that flexed the worlds muscles af-
ter World War II. We changed the worlds institutions and laws then be-
cause they had lost their legitimacy and integrity. We may be there again,
not so much because our laws need changing, but because a good argu-
ment can be made that our existing institutions, and especially the UNs
deliberative role, are playing fast and loose with their legitimacy and our
integrity.
What has happened to the miraculous regeneration and luminous mo-
ral vision that brought us the Universal Declaration of Human Rights,21
the Genocide Convention,22 and the Nuremberg Trialsthose phoenixes
that rose from the ashes of Auschwitz and roared their outrage, those in-
struments of justice that yielded, in the next sixty years, the most sophis-
ticated array of laws, treaties, and conventions the international commu-
nity has ever known, all stating that rights abuses will not be tolerated?
It is not clear to me what our multilateral solutions should be, but it is
clear to me that the status quo is not the solution. So this is a lecture
about the moral choices we will be asked to make as a global community
and what to think about when we make those choices.
19 2005 World Summit Outcome, UN GAOR, 60th Sess., UN Doc. A/60/1 (2005) at 30.
20 United Nations Department of Public Information, News Release, Press Conference on
General Assembly Dialogue on Responsibility to Protect (23 July 2009), online: UN
21 GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.
22 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, 78 U.N.T.S. 277 (entered into force 12 January 1951) [Genocide Convention].
876 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
In his remarkable play, Copenhagen,23 Michael Frayn explored this
theme through a fictionalized account of a real meeting in Copenhagen in
September 1941 between two Nobel Laureates, Niels Bohr and his former
student and German physicist, Werner Heisenberg. The meeting took
place at Bohrs home. Together the two men had revolutionized atomic
physics in the 1920s with their work on quantum mechanics and the un-
certainty principle.
The play is a sophisticated, intellectual expos on the justice of devel-
oping nuclear weapons, and whether there was a moral distinction be-
tween developing them for the Allies and developing them for Hitler. The
moral question at the heart of the play is Heisenbergs duty as a loyal
German and as a scientist in charge of its nuclear program. Was he ob-
liged to help protect Germany by developing the atomic bomb, or was he
obliged to protect the world from Germany, by sabotaging its production?
The atom bomb was never developed in Germany and the play leaves un-
clear whether this was due to Heisenbergs deliberate derailment of the
German atomic project or just as a result of getting the calculations
wrong.
The genius of the play is the way it plays on the tensions between the
mentor, Niels Bohr, half-Jewish and living self-consciously and proudly in
occupied Denmark developing nuclear expertise for the Allies, and the
acolyte, Werner Heisenberg, working conscientiously and proudly for the
occupier and the honour of German science. Both scientists blame them-
selves and each other for perceived breaches of their moral responsibili-
ties as scientistsBohr for coming to America where he worked at Los
Alamos and playing what he called his small but helpful part in the
deaths of 100,000 people at Hiroshima and Nagasaki, and Heisenberg for
working for a crazed dictator.24
planation for his ambivalence, when he says:
I found the most interesting speech in the play to be Heisenbergs ex-
We have one set of obligations to the world in general, and we have
other sets, never to be reconciled, to our fellow countrymen, to our
neighbors, to our friends, to our family, to our children … All we can
do is look afterwards, and see what happened.25
The point of the play is not what actually happened at the meeting be-
tween Bohr and Heisenberg because no one really knows, but what it tells
us about how we make moral choices and how the context of the moment
may not be a sufficient defence in historys court. It is time, in other
words, that judges how just we have been.
23 Michael Frayn, Copenhagen (New York: Samuel French, 1998).
24 Ibid. at 75.
25 Ibid. at 65 [emphasis added].
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 877
This is the context for what I want to discuss with you today. We are
at a crossroads in so many ways, and the choices we will make in many
areas will determine not only how history will judge us, but also what
kind of world we will have. The environment, the economy, trade, poverty,
health, and education are only some of the global policy challenges we will
need to address. But the one I want to address today is the international
justice crossroads, not by pretending to have any solutions, but by offering
some conceptual mortar for international laws edifice. What I propose is
to make these observations around the themes of democracy, the Rule of
Law, and human rights.
Let us start with the term Rule of Law, the Holy Grail of rights dis-
course today. I confess that I have always been somewhat confused by the
use of this term as an organizing principle. Beyond students of scholars
like Joseph Raz, H.L.A. Hart, and Ronald Dworkin,26 I think that the de-
bate between positivists who see the Rule of Law as a procedural concept
and those who see it as one with moral substance is lost on most lawyers,
let alone members of the public. Universal principles, to which most of us
are expected to give aspirational loyalty, should be unshackled from se-
mantically ambiguous rhetoric like Rule of Law. After all, this genera-
tion has seen the Rule of Law impose apartheid, segregation, and geno-
cidal discrimination. It makes me wonder why we cling so tenaciously to
the moniker.
So what are we really talking about? Were talking, I think, about
some universal goalsensuring limitations on arbitrary state power, pro-
tection against rule by whim, and about our belief in law as an instru-
ment of procedural and substantive justice. If I am right that that is what
we are really talking about when we talk about a just Rule of Law, are we
not talking about what we have come to see as the indispensable instru-
ments of democracy: due process; an independent bar and judiciary; pro-
tection for minorities; a free press; as well as rights of association, relig-
ion, and expression? These are core democratic values, and I, for one, am
not the least bit embarrassed to trumpet them, because when we trumpet
these core democratic values, we trumpet the instruments of justice.
Who can argue that a society that tolerates differences, that encour-
ages freedom of expression and dissent, that respects women and minori-
ties, that has an independent bar and judiciary, and whose government is
accountablea society, in short, where justice is both the motivating core
26 For a sample of influential works by these thinkers, see generally Joseph Raz, The Au-
thority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1975); Joseph
Raz, The Rule of Law and Its Virtue in Liberty and the Rule of Law, ed. by Robert L.
Cunningham (College Station, Tex.: Texas A&M University Press, 1979) 3; H.L.A. Hart,
Law, Liberty and Morality (Stanford: Stanford University Press, 1963); Ronald
Dworkin, Laws Empire (Cambridge, Mass.: Harvard University Press, 1986).
878 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
and the legally protected goalis not a better society than one whose
greatest tolerance is for intolerance? So why are we out there internation-
ally promoting a euphemism like the Rule of Law instead of what we
really meanthe promotion of the universalism of democratic values, the
instruments of justice that emerged triumphant from World War II? We
need the Rule of Justice, not just the Rule of Law.
Democratic values, while no guarantee, are the best aspirational goals
in my view, because without democracy there are no rights, without rights
there is no tolerance, without tolerance there is no justice, and without
justice there is no hope.
What kind of rights are we talking about? Two kindshuman rights
and civil liberties, both crucial mainstays of our democratic catechism,
and both at risk from neglect. Whats the difference between them?
Civil liberties is about treating everyone the same; human rights is
about acknowledging peoples differences so that they can be treated as
equals. Civil liberties is only about the individual; human rights is about
how individuals are treated because they are part of a group. Civil liber-
ties is a concept of rights that requires the state not to interfere with our
liberties; human rights, on the other hand, cannot be realized without the
states intervention.
But we have to start at the beginning of the story. The human rights
story in North America, like many of our legal stories, started in England.
The rampant religious, feudal, and monarchical repression in seven-
teenth-century England inspired new political philosophies like those of
Hobbes, Locke, and eventually John Stuart Millphilosophies protecting
individuals from having their freedoms interfered with by governments.27
They were also the theories that journeyed across the Atlantic Ocean
and found themselves firmly planted in American soil, receiving confirma-
tion in the Declaration of Independence guaranteeing that every man
enjoyed the right ot life, liberty, and the pursuit of happiness, and that
the government existed only to bring about the best conditions for the
preservation of those rights. Thus was born the essence of social justice
for Americansthe belief that every American had the same right as
every other American to be free from government intervention. To be
equal was to have this same right. No differences.
27 See e.g. Thomas Hobbes, Leviathan, rev. student ed. by Richard Tuck (Cambridge:
Cambridge University Press, 1996); John Locke, The Second Treatise of Government:
An Essay Concerning the True Original, Extent, and End of Civil Government in Two
Treatises of Government, 3d ed. by Peter Laslett (Cambridge: Cambridge University
Press, 1988) 265; John Stuart Mill, Three Essays (London, U.K.: Oxford University
Press, 1975).
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 879
Unlike the United States, we in Canada were never only concerned
with the rights of individuals. Our historical roots involved as well a con-
stitutional appreciation that the two groups at the constitutional bargain-
ing table, the French and the English, could remain distinct and unas-
similated, yet theoretically of equal worth and entitlement. That is, unlike
the United States, whose individualism promoted assimilation, we in
Canada have always conceded that the right to integrate, based on differ-
ences, has as much legal and political integrity as the right to assimilate.
In any event, the individualism at the core of the political philosophy
of rights articulated in the American constitution ascribing equal civil, po-
litical, and legal rights to every individual regardless of differences, be-
came Americas most significant international export and the exclusive
rights barometer for countries in the Western world. Concern for the
rights of the individual monopolized the remedial endeavours of the pur-
suers of justice all over the world.
It was not until 1945 that we came to the realization that having
chained ourselves to the pedestal of the individual, we had been ignoring
rights abuses of a fundamentally different and at least equally intolerable
kind, namely, the rights of individuals in different groups to retain their
different identities without fear of the loss of life, liberty, or the pursuit of
happiness.
It was World War II that jolted us permanently from our complacent
belief that the only way to protect rights was to keep government at a dis-
tance and to protect each individual. What jolted us was the horrifying
spectacle of group destructiona spectacle so far removed from what we
thought were the limits of rights violations in civilized societies that we
found our entire vocabulary and remedial arsenal inadequate. We were
left with no moral alternative but to acknowledge that individuals could
be denied rights not in spite of, but because of their differences, and
started to formulate ways to protect the rights of the group in addition to
those of the individual.
We had, in short, come to see the brutal role of discriminationa word
we had never and could never use in a concept like civil rights that per-
mitted no differencesand invented the term human rights to confront
it. We clothed governments with the authority to devise remedies to pre-
vent arbitrary harm based on race, religion, gender, or ethnicity, and we
respected governments new right to treat us differently to redress the
abuses our differences attracted. So we blasted away at the conceptual
wall that had kept us from understanding the inhibiting role group differ-
ences played, and extended the prospect of full socio-economic participa-
tion to women, non-whites, aboriginal people, persons with disabilities,
and those with different sexual preferences. And, most significantly, we
880 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
offered this full participation and accommodation based on and notwith-
standing group differences.
Civil liberties gave us the universal right to be equally free from an in-
trusive state, regardless of group identity; human rights had given us the
universal right to be equally free from discrimination based on group
identity. We needed both. Then, in North America, we seemed to stall as
the last century was winding down.
What we appeared to do, having watched the dazzling success of so
many individuals in so many of the groups we had previously excluded, is
conclude that the battle with discrimination had been won and that we
could, as victors, remove our human rights weapons from the social bat-
tlefield. Having seen women elected, appointed, promoted, and educated
in droves; having seen the winds of progress blow away segregation and
apartheid; having permitted parades to demonstrate gay and lesbian
pride; and having constructed hundreds of ramps for persons with dis-
abilities, many were no longer persuaded that the diversity theory of
rights was any longer relevant, and sought to return to the simpler rights
theory in which everyone was treated the same. We started to dismiss-
ively call a differences-based approach reverse discrimination, political
correctness, an insult to the goodwill of the majority and to the talents of
minorities, or a violation of the merit principle.
Somehow we started to let those who had enough say enough is en-
ough, allowing them to set the agenda while they accused everyone else
of having an agenda, and leaving millions wondering where the human
rights they were promised had gone, and why so many people who already
had them thought the rest of the continent didnt need them.
We started to ignore the built-in headwinds for those who are differ-
ent, who were thwarted in their conscious choices by stereotypes uncon-
sciously assigned, and who could not be expected to understand why the
evolutionary knowledge we came to call human rights appeared to suffer
such swift Orwellian obliteration. We seemed to forget the courage our
horror gave us after World War II to expand our understanding and toler-
ance.
We were, I would argue, in a kind of rights distress by the end of the
last decade of the century, the 1990s: the decade of deficit reduction, Bea-
vis and Butthead, globalization, and Microsoft; the decade when Ameri-
cans didnt ask and didnt tell; and the decade when they stood by their
man, the President, but spent over $60 million trying to find out if he had
had an extramarital affair (something a good matrimonial lawyer could
have done for half the money … ). Everyone appeared to be taking at face
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 881
The crash of four planes changed everything.
value Yogi Berras suggestion that when you come to a fork in the road,
take it.28
We realized to our horror that while we were riveted on hanging chads
and butterfly ballots, terrorists were next door learning how to fly com-
mercial airplanes into buildings. In less than two hours on the morning of
September 11, 2001, we went from being a Western world luxuriating in
conceptual moral conflicts, to being a Western world terrorized into grap-
pling with fatal ones.
I think what irrevocably shocked us about the horror of September 11
was how massively it violated our assumptions that our expectations
about justice were universally shared, at least to the extent that they
would be respected in North America. Whether these expectations were
reasonable is not the issue. They were genuine. We felt safe. We no longer
do. And we are right not to.
The human rights abuses occurring in some parts of the world are
putting the rest of the world in danger because intolerance, in its hege-
monic insularity, seeks to impose its intolerant truth on others. Yet we
appear to be reluctant to call to account the intolerant countries that
abuse their citizens, and instead hide behind silencing concepts like cul-
tural relativism, domestic sovereignty, or root causes.
erance means intolerance wins.
This week is the sixty-fifth anniversary of the liberation of Auschwitz.
And we just finished recognizingI dont think celebrating is appropri-
atesome of the most iconic global anniversaries in the modern era: the
sixtieth anniversary of the Universal Declaration of Human Rights, the
Genocide Convention, and the last of the Nuremberg Trials. To me, they
represent the mirror we are obliged to hold up, look into, and ask our-
selves, Are we the fairest of them all? They were soon followed by other
steps in the promotion of international human rights: the European Con-
vention on Human Rights;29 the Convention on the Political Rights of
Women;30 the Protocol amending the Slavery Convention;31 the Interna-
tional Covenant on Civil and Political Rights and its two optional proto-
28 Yogi Berra with Dave Kaplan, When You Come to a Fork in the Road, Take It! (New
These are concepts that excuse intolerance. Silence in the face of intol-
York: Hyperion, 2001).
29 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Novem-
ber 1950, 213 U.N.T.S. 221, E.T.S. 5 (entered into force 3 September 1953) [European
Convention on Human Rights].
30 20 December 1952, 193 U.N.T.S. 135, (entered into force 7 July 7 1954).
31 23 October 1953, 182 U.N.T.S. 51 (entered into force 7 December 1953).
882 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
cols;32 the International Covenant on Economic, Social and Cultural
Rights;33 the Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes Against Humanity;34 the International Conven-
tion on the Suppression and Punishment of the Crime of Apartheid;35 the
International Convention against the Taking of Hostages;36 the African
Charter on Human and Peoples Rights;37 the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment and
its optional protocol;38 the Convention relating to the Status of Refugees;39
the Convention relating to the Status of Stateless Persons;40 the Conven-
tion on the Reduction of Statelessness;41 the International Convention on
the Elimination of All Forms of Racial Discrimination;42 the Convention
on the Elimination of All Forms of Discrimination against Women and its
optional protocol;43 the Convention on the Rights of the Child;44 the Con-
vention on the Prohibition of the Use, Stockpiling, Production and Trans-
fer of Anti-Personnel Mines and on their Destruction;45 and the Convention
on the Rights of Persons with Disabilities,46 among others. These agree-
32 16 December 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (entered into force 23 March 1976).
See also Optional Protocol to the International Covenant on Civil and Political Rights,
16 December 1966, 999 U.N.T.S. 302 (entered into force 23 March 1976); Second Op-
tional Protocol to the International Covenant on Civil and Political Rights, GA Res.
44/127, UN GAOR, 44th Sess., Supp. No. 49, UN Doc. A/44/49 (1989) at 207 (entered
into force 11 July 1991).
33 16 December 1966, 993 U.N.T.S. 3, 6 I.L.M. 368 (entered into force 3 January 1976).
34 26 November 1968, 754 U.N.T.S. 73, 18 I.L.M. 68 (entered into force 11 November
1970).
35 30 November 1973, 1015 U.N.T.S. 243 (entered into force 18 July 1976).
36 17 December 1979, 1316 U.N.T.S. 205, 18 I.L.M. 145 (entered into force 3 June 1983).
37 27 June 1981, 1520 U.N.T.S. 217, 21 I.L.M. 58 (entered into force 21 October 1986).
38 10 December 1984, 1465 U.N.T.S. 85 (entered into force 26 June 1987); Optional Proto-
col to the Convention against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment, 18 December 2002, 42 I.L.M. 26 (entered into force 22 June 2006).
39 14 December 1950, 189 U.N.T.S. 150 (entered into force 22 April 1954). See also Proto-
col relating to the Status of Refugees, 4 October 1967, 606 U.N.T.S. 267 (entered into
force 4 October 1967).
40 26 April 1954, 360 U.N.T.S. 117 (entered into force 6 June 1960).
41 30 August 1961, 989 U.N.T.S. 175 (entered into force 13 December 1975).
42 21 December 1965, 660 U.N.T.S. 195 (entered into force 4 January 1969).
43 18 December 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (entered into force 3 September
1981); Optional Protocol to the Convention on the Elimination of Discrimination against
Women, 10 December 1999, 2131 U.N.T.S. 83 (entered into force 20 December 2000).
44 20 November 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1456 (entered into force 2 September
1990).
45 18 September 1997, 2056 U.N.T.S. 241, 36 I.L.M. 1507 (entered into force 1 March
1999).
46 UN GAOR, 61st Sess., Annex I, UN Doc. A/RES/61/106 (2006).
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 883
ments removed human rights from the exclusive domain of domestic ju-
risdiction and converted them into matters of international concern.
Yet consider some of the events that have occurred around the world
since then: we had genocide in Rwanda; the massacres in Bosnia and the
Congo; the violent expropriations, the judicial constructive dismissals,
and sheer immorality in Zimbabwe; the assassination of law enforcers in
Colombia and Indonesia; the repression in Chechnya; the slavery and
child soldiers in Sudan; the cultural annihilation of women, Hindus, and
ancient Buddhist temples by the Taliban; the attempted genocide of the
Kurds in Iraq; the rampant racism tolerated at the UN World Conference
against Racism in Durban;47 the worlds shocking lassitude in confronting
AIDS in Africa; the disgraceful chapter in global insensitivity as the world
formulated a strategy of astonishingly glacial and anaemic proportions in
Darfur, China, Myanmar, and Pakistan; the nuclear roguery of North Ko-
rea; and the moral roguery period in Iran.
the concentration camps of Europe.
The world was supposed to have learned three indelible lessons from
1. Indifference is injustices incubator;
2. Its not just what you stand for, its what you stand up for; and
3. We must never forget how the world looks to those who are
vulnerable.
As Justice Robert Jackson said in his opening address at the Nuremberg
Trials,
[t]he wrongs which we seek to condemn and punish have been so
calculated, so malignant, and so devastating, that civilization cannot
tolerate their being ignored, because it cannot survive their being
repeated.48
But clearly what remains elusive is our willingness as an international
community to protect humanity from injustice.
To me, this is not just theory. I am the child of survivors. My parents
spent four years in concentration camps. Their two-and-a-half-year-old
son (my brother), my fathers parents, and my fathers three younger bro-
thers were all killed at Treblinka. My father was the only person in his
family to survive the war. He was thirty-five when the war ended and my
mother was twenty-eight. As I reached each of those ages, I tried to imag-
47 See Report of the World Conference against Racism, Racial Discrimination, Xenophobia
(2001), online: WCAR
Intolerance, UN Doc. A/CONF.189/12
and Related
48 Second Day, Wednesday 21 November 1945 in Trial of the Major War Criminals Be-
fore the International Military Tribunal: Proceedings Volumes (The Blue Set), vol. 2, 94
at 97-98, online: The Avalon Project
884 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ine how they felt when they faced an unknown future as survivors of an
unimaginable past. And as each of my two sons reached the age my bro-
ther had been when he was killed, I tried to imagine my parents pain in
losing a two-and-a-half-year-old child. I couldnt.
After the war, my parents went to Germany, where my father, a law-
yer, taught himself English. The Americans hired him as a defence coun-
sel for displaced persons in the Allied Zone in Southwest Germany. In an
act that seems to me to be almost incomprehensible in its breathtaking
optimism, my parents transcended the inhumanity they had experienced
and decided to have more children. I was born in Stuttgart in 1946, a few
months after the Nuremberg Trials started, and came to Canada with my
family in 1950, a few months after the trials ended.
I never asked my parents if they took any comfort from the Nurem-
berg Trials, which were going on for four of the five years we were in
Germany until we got permission to come to Canada in 1950. I have no
idea if they got any consolation from the conviction of dozens of the worst
offenders. But of this I am sure: they would have preferred, by far, that
the sense of outrage that inspired the Allies to establish the International
Military Tribunal of Nuremberg had been aroused many years earlier, be-
fore the events that led to the Nuremberg Trials ever took place. They
would have preferred, Im sure, that world reaction to the 1933 Reichstag
Fire Decree49 suspending whole portions of the Weimar Constitution;50 to
the expulsion of Jewish lawyers and judges from their professions that
same year; to the 1935 Nuremberg laws prohibiting social contact with
Jews; or to the brutal rampage of Kristallnacht in 1938they would have
preferred that world reaction to any or all of these events had been, at the
very least, public censure.
But there was no such world reaction. By the time World War II star-
ted on 3 September 1939, the day my parents got married, it was too late.
Millions of lives were lost because no one was sufficiently offended by the
systematic destruction of every conceivable right for Jews in Germany to
feel the need for any form of response. And so, the vitriolic language and
venal rights abuses, unrestrained by anyones conscience anywhere, in or
out of Germany, turned into the ultimate rights abuse: genocide. That is
why we poured our souls and agony into the Universal Declaration of
Human Rights, the Genocide Convention, and the Nuremberg Trials.
Lawyers like me, I think, have a tendency to take some comfort, and
properly so, in the possibility of subsequent judicial reckoning, such as
those that occurred at the Nuremberg Trials. But is subsequent justice
49 Order of the Reich President for the Protection of People and State, 28 February 1933.
50 Die Verfassung des deutschen Reichs, 11 August 1919, mit allen Anderungen bis zum 30
January 1933.
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 885
So Lesson #1 not yet learned: Indifference is injustices incubator.
really an adequate substitute for justice? I do not for one moment want to
suggest that the Nuremberg Trials were not important. They were a cru-
cial and heroic attempt to hold the unimaginably guilty to judicial ac-
count, and showed the world the banality of evil and the evil of indiffer-
ence. At Nuremberg, victims bore public witness to horror, and history
thereby committed to memory the unspeakable indignities so cruelly im-
posed. And there is no doubt that some justice did in fact emerge in the
aftermath of the Nuremberg Trials, and there are many connective dots of
history leading to the present, of which we can be proud.
But we still have not learned the most important justice lesson of all
to try to prevent the abuses in the first place. All over the world, in the
name of religion, national interest, economic exigency, or sheer arrogance,
men, women, and children are being murdered, abused, imprisoned, ter-
rorized, and exploited. With impunity.
Between the values the international community articulates and the
values it enforces, the gap is so wide that almost any country that wants
to can push its abuses through it. No national abuser seems to worry
whether there will be a Nuremberg Trial later because usually there
isnt, and in any event, by the time there is, all the damage that was
sought to be done, has already been done. Where injustice is preventable,
it should be prevented when first identified, not permitted to create its
human devastation first before being held to account. What we see in-
stead, for the most part, is an inexplicable international tentativeness in
asserting that the humanity we sought to restore in 1948 is an enforce-
able objective today.
What has kept the global community from liberating the Universal
Declaration of Human Rights and the Genocide Convention from the in-
hibiting politics and parochialism to which they are tethered, so that they
can be free to help create, once again, a civilized world confident and will-
ing to provide a future of tolerance and justice?
Does this raise questions about the effectiveness of the UN as a delib-
erative body? Frankly, it should. And this to me is the most significant in-
ternational justice challenge in the years ahead. I think we have reached
a turning point.
It is true that the UNs agencies have achieved great success in a
number of areas. They have provided shelter and relief to refugees and
displaced persons, and supported their repatriation and resettlement of
refugees and displaced persons. UNICEF has gathered hundreds of mil-
lions of dollars worth of supplies for children, operated safe water and
sanitation program in ninety countries, served as the primary agency aid-
ing the millions of African AIDS orphans and was the leader in aiding
886 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tsunami survivors in 2005.51 And the World Health Organization has been
central to the fights against polio, malaria, and smallpox.52 The UN has
also raised awareness about global issues such as violence against women,
the environment, and the plight of children. In addition, the fact that
much of international law works is often due to UN-based agencies. The
UNs International Civil Aviation Organization,53 Universal Postal Un-
ion,54 and International Telecommunication Union55 ensure the smooth
flow of international travel, mail delivery, and communications. And its
successes in peacekeeping and with the WTO have been breathtaking.
But the UN was the institution the world set up to implement Never
Again. Its historical tutor was the Holocaust, yet it seems hardly to be an
eager pupil. What was never supposed to happen again, has. Again and
again.
Ninety years ago we created the League of Nations to prevent a sec-
ond world war. It failed and we replaced it with the UN. I wonder if we
have not come to the point where the human rights community needs to
think about whether the illegitimacy of the UNs rule-making moral au-
thority requires the courage to have that most difficult of global conversa-
tions: Is the UN really the best we can do? The UN has spent years dis-
cussing reform, but I think the record now shows that it either cannot
change, or it will not change. Nations debate; people die. Nations dissem-
ble; people die. Nations defy; people die.
We need more than the rhetoric of justice. We need justice.
you stand up for.
I have already told you that after the war my parents went to Ger-
many, and that my father was hired as a lawyer by the Americans. A few
years ago, my mother gave me some of his papers and letters from Eu-
rope. The letters were from American lawyers, prosecutors, and judges he
worked with in the U.S. Zone in Stuttgart. They were warm, compassion-
ate, and encouraging letters either recommending, appointing, or qualify-
ing my father for various legal roles in the system that the Americans had
Lesson #2 not yet learned: Its not just what you stand for, its what
51 See generally United Nations International Childrens Fund (UNICEF), online:
UNICEF
52 See generally World Health Organization (WHO), online: WHO
See also Constitution of the World Health Organization, 22 July 1946, 14 U.N.T.S. 185
(entered into force 7 April 1948).
53 See International Civil Aviation Organization, online: ICAO
54 See Constitution of the Universal Postal Union (UPU), 10 July 1964, 611 U.N.T.S. 7 (en-
tered into force 1 January 1966). See generally online: UPU
55 See generally International Telecommunication Union, online: ITU
INTERNATIONAL LAW AND HUMAN RIGHTS: THE POWER AND THE PITY 887
set up in Germany after the war. These people not only restored him, they
also gave him back his belief that justice was possible.
One of the most powerful documents I found was written by my father
when he was head of the Displaced Persons Camp in Stuttgart where we
lived. It was his introduction of Eleanor Roosevelt when she came to visit
our D.P. Camp in 1948. He wrote:
We welcome you, Mrs. Roosevelt, as the representative of a great na-
tion, whose victorious army liberated the remnants of European
Jewry from death and so highly contributed to their moral and
physical rehabilitation. We shall never forget that aid rendered by
both the American people and army. We are not in a position of show-
ing you many assets. The best we are able to produce are these few
children. They alone are our fortune and our sole hope for the future.
I was one of those children. And as one of those children, I am here to tell
you that the gift of justice is the gift that just keeps on giving.
My life started in a country where there had been no democracy, no
rights, and no justice. It created an unquenchable thirst in me for all
three. My father died two months before I finished law school, but not be-
fore he taught me that democracies and their laws represent the best pos-
sibility of justice, and that, as lawyers, we have a particular duty to make
that justice happen. That means that we have a duty to make sure that
we will do everything possible to make the world safer for our children
than it was for their grandparents so that all children, regardless of race,
religion, or gender, can wear their identities with pride, in dignity, and in
peace.
vulnerable.
never forget why I joined it.
Lesson #3: We must never forget how the world looks to those who are
I am very proud to be a member of the legal profession, but I will
