Increasing the ICJ's Influence as a Court of Human Rights: The Muslim Rohingya as a Case Study

Article excerpt

Abstract

Human rights violations continue today at an alarming pace. To appreciate the severity of these violations, and the seemingly ineffectual response by the international legal regime, one need look no further than the persecuted Muslim Rohingya. The Rohingya people, an ethnic and religious minority in Myanmar, have been the subject of state-sponsored violence for years, a trend that continues despite Myanmar's recent moves towards democracy. Two of Myanmar's neighbors, Thailand and Bangladesh, have contributed to the problem by violating the international legal principle of non-refoulement. This Comment argues that the International Court of Justice can play a larger role in policing and remedying human rights violations, using the Muslim Rohingya as a case study. The Court's jurisdictional requirements to hear a contentious case are stringent, and participation in an ICJ case generally requires the consent of the states involved. However, several current human rights treaties provide a way to get the plight of the Rohingya into the Court. Moreover, the Rohingya's plight can also be the subject of an ICJ advisory opinion, which would be more difficult than a contentious case to enforce, but which can be brought before the ICJ with relative ease, and which can be transformed from soft law to hard law by other international actors.

Table of Contents

I. Introduction ............................................... 292

II. A Brief History of Human Rights Abuses in Myanmar .................................... 294

III. The Current Human Rights Legal System .......................................... 296

A. Domestic Systems ........................................ 296

B. Regional Human Rights Courts and Institutions ................................. 297

C. The United Nations Human Rights System ............................ 298

D. The International Criminal Court ........................ 299

IV. The ICJ as a Court of Human Rights: Normative Advantages ............................. 300

A. Broad International Participation ............................................ 300

B. Enforceability through the Security Council ................................... 301

C. Ability to Employ Preliminary Measures .................................... 301

D. The Ability to Bring Suits Against States ................................... 302

V. Jurisdiction and the ICJ ...................................... 303

A. Contentious Cases ........................................ 304

B. Advisory Opinions .................................... 305

VI. The ICJ and Human Rights in Myanmar .......................................... 307

A. The Possibility of a Contentious Case Before the ICJ ................................... 307

1. Jurisdiction by special agreement or under the optional clause ......................................... 307

2. Jurisdiction through a referral clause in an applicable treaty ............................... 308

B. The Applicability and Utility of an ICJ Advisory Opinion .............................................. 310

1. Sources of law that the ICJ could draw upon .............................................. 310

2. Jurisdiction and an ICJ advisory opinion .............................. 311

3. Soft law and the enforcement of an ICJ advisory opinion .................................... 312

VII. Conclusions and Recommendations ........................................ 315

I. Introduction

The continued persecutions of the Muslim Rohingya in Myanmar, Bangladesh, and Thailand illustrate perhaps the greatest challenge facing modern international law: the problem of human rights violations. Since the creation of the United Nations, countless committees, commissions, courts, economic groups, and non-governmental organizations have been established with the goal of stopping current violations and preventing future crimes. …