Welcome to the new books network. Hello and welcome to this episode of the new books network, where we interview Professor Linus Alexander C.C. Lamos. Professor C.C.
Lamos is a former judge and president of the European Court of Human Rights in Strasbourg. He is also a dean of the law school at the University of Athens and Professor of International Law. He is Vice President of the Institute of International Law, Member of the Curatorium of the Hague Academy of International Law, and a member of the Permanent Court of Arbitration. He is also a former member of the UN Committee on the Elimination of Racial Discrimination, and he has written a book titled Economic Sanctions in International Law, which is a collective effort of which he is a co-editor in his capacity of the Center of Research of the Hague Academy of International Law.
He is coming out with a new book on the Human Dimension of International Law, which is a written version of the general course on public international law given at the Hague Academy of International Law in 2023. We will be discussing this book in this podcast. Dr C.C. Lamos, thank you for joining us today.
Thank you so much for your kind invitation. Great. Well, could we start by explaining once by due to write about the human dimensions in international law, and why you think this is an important topic? Well, I have been working on the Human Dimension of International Law for a number of years.
It represents my own vision of international law. International law cannot be only about state relations. It cannot be only about states. It cannot be a law without values.
It is an offer for a human being. This is absolutely critical today. All major crisis, the Ukraine, the foreign Ukraine, the conflict and the Gaza Strip are nowadays before the International Court of Justice. And they are before the International Court of Justice on the basis of major human rights instruments.
So this demonstrates the this aspect of international law, the human implications of international law. And that's why I think that it's very topical today. And in your book, you discuss how human rights have influenced the evolution of international law. Could you elaborate on some key ways in which human rights have reshaped international legal norms?
Well, in my book, I discuss both the influence of international law on human rights and the influence of human rights on international law. In this aspect, in this framework, I could say that this influence of human rights on general international law is either mild or drastic. It is mild as far as the law of treaties are concerned, especially in relation to reservations, international treaties, in relation to the so-called the evaluative interpretation, which is a very interesting method of interpretation, has been invented by the European Court of Rights. And since then has been generalized and also accepted by the ICJ.
We have a number of other influences in respect to recognition, for instance, in respect to diplomatic protection, in respect to consular assistance, but also in respect to the law of the sea. For instance, the use of force at sea, the issue of search and rescue, the issue of an order from the sea and so on. And then we have a number of drastic influence of human rights on the theory of international law. For instance, the theory of subjects or users of international law, the whole issue of structure of international international law.
Human rights have major role to the stratification of international obligations. We speak up today and the International Court of Justice has been speaking very recently about Erga Omnes' partisan obligations. This has been said in relation to human rights obligations. We have been speaking out for a number of decades about Erga Omnes' obligations.
Well, many human rights obligations are Erga Omnes, and this has been affirmed also by the Institute of International Law and by the ICJ once more. And we have been speaking about obligations deriving from usecogans and norms from parameter rules of international law. Well, most of them are human rights obligations. The International Law Commission has made a tremendous effort in this field in codifying, so to say, the very notion of human rights in the text, which has been adopted in 2022, but by the International Law Commission.
And in this annex, one can see that human rights obligations are among the most prominent examples of parameter rules of international law. So that there is a visible influence of human rights into the ERK, is a nation of international legal order in this stratification of international legal order. And one can also mention the influence exercised by human rights in relation to state responsibility. In relation to this drinking, the sphere of jurisdiction, the so-called the manner of his area.
In relation to the whole collective security system, for instance, we have a number of examples of activation of chapter seven of the UN charter in case of immigrant violations of human rights and international community and law. And we have the whole dogma, the whole theory of the responsibility to protect responsibility to protect is very closely related to human rights and international community. So, in a nutshell, one can see a major mind, but in the differences of human rights in general international law. We have a series of fields of traditional chapters of international law, general international law, which have been more or less influenced by human rights and international humanitarian law.
And you talk about state jurisdiction and the extraterritorial application of human rights. What are some challenges that arise when human rights are applied beyond state supporters? Well, extraterritorial jurisdiction has become a rather complex issue, especially in the case law of the European Court of Human Rights. But in reality, the question is straightforward, in my view.
A state is responsible for all the acts or missions of its organs wherever they act, on the territory or outside the territory of a given state. This is what the ICJ has said in substance indicates of the armed activities on the territory of the Congo. And this is also what the ILC said in the commentaries to the articles on state responsibility. Although complex, the contemporary approach of the European Court of Human Rights confirms this view to a very large extent.
It is a very important aspect of the human rights protection. If we do not accept the extraterritorial application of human rights instruments, we risk to create a black holes of human rights protection of territories, which are not controlled by a given state. They are controlled by another entity, which is not recognized by the international community. So it is essential in order to generalize the international protection of human rights.
And in situations like a state of emergency, how should international law balance between maintaining order and protecting human rights? And could you give examples of where this was well-balanced and maintained and where it was poorly managed? Well, the most striking example of this respect is the simultaneous application of international humanitarian law and the human rights law. This is a principle which has been affirmed by the International Court of Justice.
In most cases, those two branches of law, IHL and human rights, are complementary and mutually reinforcement. A concrete example of such a situation is the Georgia vs Russia II judgment by the European Court of Human Rights, in which it is said with the issue of occupation that a number of provisions of the European Convention of Human Rights are reinforced by relevant provisions of IHL, especially the third and fourth Geneva Convention of 1949. So this is a palpable example of the coherent and complementary application of those two bodies of law. And your book critiques the concept of jurisdictional immunity, especially when it conflicts with human rights.
Could you explain this concept and discuss a case of jurisdictional immunity in the diversity of justice for human rights violations? Well, the distinction immunity is a procedural obstacle. It does not permit national courts to examine the case on the merits. It is an obstacle to the right to access to a court.
This is the human right, which is affected by judicial immunities. Now, the judicial immunity of states is relative. We make it classic and traditional distinction nowadays between acts you and Perry sovereign acts, which are covered by immunity, and acts you and against the honest, which are not covered by the immunity. The same is true for the immunity of state officials, especially when they commit international crimes, the so-called functional immunity of state officials is cannot be invoked when it comes to the perpetration of an international crime.
According to the most dominant opinion nowadays and the most correct opinion in my view. On the other hand, the judicial immunity of international organizations tends to be absolute, and this can lead to situations of denial of justice. The whole issue of judicial immunities is intention with human rights protection and the reparation of victims. So we have to accept more and more exceptions to immunity if we want to better protect human rights.
There is a tension between them. Although I understand the eratsio of immunities, I have to say that we must acknowledge this tension. And how have human rights considerations influenced the traditional practices and international relations such as diplomatic recognition or treatment of refugees? Well, in many ways, in relation to recognition, human rights have contributed to the restriction of the discretionary power of states, the traditional discretionary power of states, to recognize or not to recognize other states, governments or situations more generally.
According to the contemporary approach on the law of recognition, states have an obligation not to recognize situations involving breaches of loose organs and norms, including a force of religious violation of human rights. Take, for instance, the recent UN General Assembly resolutions concerning the situation in Ukraine or in Gaza, the Yask states, not to recognize situations implicating violations of parental rules, including serious violations of human rights and international humanitarian law. In the past, one could mention the seminal advisory opinion of the ICJ in the Namibian case, asking states not to recognize a situation related to apartheid and to help the UN to put an end to such a regime. So human rights considerations have supported this evolution towards a more restricted power of states to recognize or not to recognize the differentiation.
There is an obligation not to recognize situations related to human rights violations, to violations of a parent to the roots of international law. All these processes since the steam's on duct in 32, up until now, the last century, the last century, so to say, has been influenced by human rights considerations. Other examples concerned, as I said before, the humanization of diplomatic protection and cultural assistance, the scope of diplomatic protection, for instance, is now broader, both Latino and because it can be exercised on the basis of the whole range of human rights, and that's only persona. And since you asked for about refugees, refugees can be protected by the state of residence, for instance, this is what the international law commission has said.
And the same is true in relation to stateless persons, so we can see a humanization of the institution. There are some judgments, including by the European Court of Human Rights, asking states to give the reparation, the sums of the reparation to be paid in the context of diplomatic protection to the individuals concerned. So there are the elements of new elements in the whole theory of diplomatic protection, and the same is true also in the framework of the so-called cultural assistance. We can see that the, and we can say safely that cultural assistance is an individual right, and if we want to follow the Inter-American Court of Human Rights, cultural assistance is not only an individual right, it's a human right, related to the right to a trial, and eventually to the right of life, the right to life.
And there are many instruments, human rights instruments, speaking about cultural assistance, also in different fields. For instance, I mentioned quite recently, the Istanbul Convention concerning violence against women and domestic violence, speaking about the cultural assistance of victims of such violence. So there are new matters, also in this respect. And what are some of the most significant challenges you see in international law today, particularly regarding human rights protections?
Well, many, many unfortunately excessive use of force being the most prominent one, serious violations of humanitarian law. And I would also mention a quite worrying phenomenon, namely the non-execution of ICJ orders of provisional measures. This could be seen as a technical issue, but it is not a technical issue. It is about undermining international justice because when the ICJ orders of provisional measures, there is an urgency that the imminent risk for the very object of the dispute before the international court of justice.
So when states do not execute such orders, they undermine international justice. And for me, this is a very worrying phenomenon. In the field of human rights, we have a series of so-called illiberal democracy, but to end with another note, in a very different completely different context, we have also positive evolutions in relation to climate change, for instance. In last April, we have seen a similar judgment by the European Court of Human Rights in the Klima Senorinan case versus Switzerland.
In this context, the European Court of Human Rights has found the violation of Article 8 of the European Convention on Rights because of the inefficiency of the measures taken by a state like Switzerland, rich state, which takes a lot of inter-consideration environmental issues. Nevertheless, the European Court found the violation there. And we have seen also more recently in May the advisory opinion of the International Tribunal for the law of the sea. And as we all know, there are pending advisory opinions by the Inter-American Court of Human Rights and the ICJ on the issue of climate change, so we are waiting in order to see how the ICJ and the Inter-American Court will deal with approach to the issue of climate change.
But what we can see already now is that there is a very positive role of international courts and tribunals in this respect, and that there is an interrelationship, an emerging interrelationship between the human rights law and international environmental law. And do you have any examples of the non-exocutable measures that the ICJ has issued that haven't been complied with? Yes, the orders concerning Gaza Strip, or some of them at least, the orders concerning the conflict in the God-Mokanabag. You analysed the role and responsibilities of international organisations in enforcing human rights.
Do you have any improvements that you would suggest to enhance their effectiveness? Yes, I think that accountability is the major challenge in this respect. As I said before, international organisations have an absolute jurisdiction immunity. This is understandable to a set of extents.
It is very important for international organisations to be in a position to peacefully do their work. But on the other hand, international organisations should put in place independent and efficient mechanisms to examine individual applications concerning alleged human rights violations, so a complete lack of accountability of international organisations should not be acceptable anymore. In your book, you touched on the role of non-state actors in international law. How do you see the influence of NGOs and other civil society groups shaping the future of international human rights laws?
Indeed, there is a section on NGOs and civil society as actors and factors in the development of international law, especially international conventional law, international treaties, in the field of human rights, but also in the field of international humanitarian law. In the field of international criminal law, a very important influence of the different NGOs in putting in place the state of the ICC, the International Criminal Court, and also even more recently in relation to international environmental law. So in different sectors of international law, especially those four, they have just mentioned human rights, IHL, international criminal law and international environmental law, and we assisted to the growing of the role and influence of NGOs and civil society in shaping those areas of law. And with rapid advancement of technology, what new challenges and opportunities do you see for the production of human rights under digital age?
Well, this is an issue which is very close to my heart. I have published a number of studies in this field, including one on the case law of the European Court of Human Rights. I have the privilege of participating in the composition of the court in different cases dealing with the advancement of technology in human rights. And in all those cases, we have seen that the European Court has applied the method of the so-called evaluative interpretation.
I have mentioned this method before. And as you know, there are new instruments on artificial intelligence, both within the Council of Europe and the European Union. We have to monitor closely the application where in front of drastic changes in these fields and very rapid changes in these fields. I have impression that international courts and tribunals have to adjust also rapidly the case law in order to increase those developments.
And do you think there's any opportunities that come from all the technological development and international human rights law? Well, of course there are opportunities, major opportunities, but at the same time there are challenges. And different organizations have warned about those challenges. We have to be very attentive to those new technologies.
We can gain a lot from them. I can tell you on the top of my hat, so to say that the European Court of Human Rights has drawn heavily upon artificial intelligence during the lockdown period. I remember it was a depression of the court by the time. And during the first lockdown in France, that is in less than two months, we have been in a position to deal with 5,400 cases.
And we have done so because the IT department of the court was already by the time and even more now, very developed. So we have very positive results and very good opportunities. But as I said before, AI cannot take decisions in the place of an international judge or a national judge. And so you teach international law at the University of Athens and other dean of the law school at the University of Athens.
What changes would you recommend in legal education to better prepare future lawyers to deal with the complexities of international human rights law? Well, I'm always saying that human rights law permeates all branches of law, including not only all branches of domestic law, but also international law, general law, as I mentioned before, European Union law and so on. And so we are also saying that the law is not a matter of constitutional law, but it is not a matter of constitutional law. It is a matter of civil law, civil law, criminal law, criminal procedure, penitentiary law, and so on and so forth.
So we can see it when examining the case law of the European Court of Human Rights of the Inter-American Court and so on. International Protection of Human Rights goes deep into the National Legal Order. I could say that there is a fusion of relationship between the National Legal Orders and international protection of human rights. In that sense that the European Convention on Human Rights, for instance, is not just an integral part of domestic law, but the opposite is also true.
Domestic law is an integral part of the European Convention. In that sense, the European Convention refers directly to the domestic law in relation to the right of liberty for instance, or in relation to the restriction of a number of human rights, like the freedom of expression, the freedom of conscience and religion, and so on and so forth. There are reference, direct references to domestic law. So domestic law becomes an integral part of the European Convention.
At the same time, the European Convention goes deep into questions of sovereign, for instance, the functioning of the army, the functioning of the police, the functioning of intelligence and services, in case of big blood, the watch versus the United Kingdom, or the case of the unzahar versus the Russian Federation, and so on and so forth. You have a law which goes deep into all branches of domestic law, you have a law which goes deep into the nucleus of sovereign powers of the state, and you have a law which interacts with domestic law very heavily. And so for me, in order to be acquainted with this law, you have to mainstream it, you have to make it possible for civil lawyers, for instance, to teach the European Convention, why not? To see the EU and the Charter of Fundamental Rights implications into the domestic legal order.
In a number of months, I'm organizing a colloquy, a big conference on exactly this subject, named the Interaction Between the European Convention and all branches of law, including International Law and EU Law. Fantastic. And looking ahead, how do you see the development of international human rights law? Are there any emerging trends or setbacks that concern you?
Well, I would say that the UN-normality framework is quite impressive. We have a series of conventions on a very large set of matters and issues, not only general protection, but also specialized instruments, discrimination against women, discrimination, discrimination. Children, in force, disappearances, persons with disabilities and so on and so forth. But we have to enhance the effectiveness of existing mechanisms at a global level.
And this is the problem. The effectiveness of existing mechanisms are used to be, as you said at the beginning, used to be a member and vice president of the UN Committee on the International Professional Discrimination. If you take the concluding observations of the committee, they have a very correct and very engraising, very large picture of the situation in the countries which have been examined. The problem is the implementation of the recommendations by the committee.
And of course, you have the peer review of the human rights council. The peer review of the human rights council should be based, in my view, or more closely based on the findings of the different expert bodies, the treaty bodies. The regional level of the situation is unequal. In Asia, there are no human rights protection mechanisms, and in America and in Africa, the existing institutions should be strengthened.
The European system is functioning in a rather satisfactory manner, although it is confronted with important challenges. And I will mention the disrespect, the accession of the EU to the European Convention on Rights, which could give a new impetus to the whole European system. It will be the first time in human history when an international organisation will probably, we hope, be subjected to external control by the European political human rights. This is something which will be a major achievement in defeat.
As we know, this is a long process, a very long process, but I'm quite confident that it will happen and that the EU accession to the ECHR will be a factor in the foreseeable future. And finally, having dedicated much of your career to studying international law, what personal lessons or insights have you gained about the role of law and global human rights advocacy? Well, despite all the above shortcomings, international law in general and international human rights law in particular have played a major role in human rights advocacy. Human rights law has been instrumental in promoting a number of co-values, such as human dignity, rule of law and democracy.
It is on that basis that democratic states and civil society have worked together in order to drastically emulate the level of protection of a human being. More recently, human rights are systematically invoked in relation to major environmental issues, including climate change, as I said before. The potential of human rights law is enormous. It is up to all relevant stakeholders and mainly it is up to states to take advantage of this normal-take trend.
And with that answer, we come to the end of this podcast. Dr. Sivanos, thank you very much for joining us today and talking about the human dimension of international law. I thank you very much for the opportunity.
It was a pleasure.