1 Introduction: HR in international relations
HR = fundamental moral
rights of the person that are necessary for a life in human dignity
Even if inalienable,
rights still have to be constructed and codified in the legal system
After 1945: HR =
global international law. Evidence: UNC, universal and regional treaties,
universal adherence to 1949 Geneva Conventions, UNHCHR, ad hoc
international criminal tribunals, statute of Rome, HR regularly part of
diplomacy
Liberalism = attention
to personal rights
Classical liberalism =
emphasis on hard law for personal rights; implementation through courts
Neo-Liberalism =
emphasis both hard and soft law for personal welfare, not just for rights
(morality beyond rights); implementation implies difficult political choices
Realism = attention to
State interests and power
This book analyses
competing liberal and realist perspectives & charts the enormous gap
between legal theory and political behaviour
4 key theses:
2 Establishing HR standards
While HR as such have
become universal, every notion put forward in regard to HR is a contested
concept within the West
Lack of agreement on
sources and nature of fundamental personal rights. Which individuals should
benefit? Should rights go beyond individuals? Origin of rights? Implementation?
Other regions and
cultures have moral principles in favour of human dignity, but outside the HR
discourse
Powerful Western
States could advance or retard ideas about human beings
Welfare State in the
West
League of Nations
Covenant silent about HR, but LoN later developed social agencies and programmes
(refugees, slave-like practises, etc.); minority rights in certain countries
and territories became an international issue (democratic elections in the
Saar, 1934)
United Nations Charter
1st treaty in history to recognize universal HR; connects HR with
peace and Security (Art. 55). Contradiction: Affirmation of universal HR and
reaffirmation of State sovereignty over domestic social issues
1941 FDR “four
freedoms” speech: freedom of speech, of religion, from want, from fear
UDHR, 1948 (accepted
by all countries except Saudi Arabia by 1990s)
ICCPR, 1966 (1976)
& ICESCR (1976) with common Art. 1 (right to collective
self-determination), around 140 parties by 1990s
USA compelled by
domestic politics to abandon a position of leadership in the setting of IHR
standards until Jimmy Carter
UN General Assembly:
adopted important conventions 1948 – 1989
ILO & UNESCO
conventions
Four Geneva
Conventions (1949); two additional protocols (1977), one of which expands
humanitarian regulation to internal conflict
à No lack of global or universal humane
standards in both peace and war
Vienna Conference on
HR (1993)
Agreement on
universality put in question by a minority of States. Vienna Final Declaration:
universal nature beyond question, but national and regional particularities and
historical, cultural and historical backgrounds must be borne in mind
à Nothing in HR that makes it ipso facto
unsuitable for other parts of the world
Most important
critique from realists, who consider HR as an unfortunate and sentimental
intrusion into inter-State power calculations. Central problem of contemporary
international relations: how to reconcile the liberal framework of
international human rights law with the widespread practise of realist foreign
policy
3 Global Application of HR norms
Contradiction of norms
in UNC and lack of enforcement mechanism à States remain judge and jury
Neither ICJ nor SC
privileges HR at this point in time
Attempts at
international implementation of HR (diplomatic pressure)
States may restrict
their sovereignty in the name of HR à ECHR
Concerned with
maintainance of international peace and security; enforcement measures Chapter
VII.
Economic, social,
cultural and humanitarian issues; recommendations Chapter VI.
1960-1991: Racism in
southern Africa; human rights in armed conflict; armed intervention across
international boundaries; armed supervision of election and plebiscites.
Post-1991: Security » increasingly also security of the person, not
just military violence.
Examples: El Salvador
from 1990; Iraqi government attacks on minorities 1991; Systematic rape, ethnic
cleansing and other gross HRV in the former Yugoslavia 1992-1995; Widespread
malnutrition and starvation in Somalia 1992 – 1994; Absence of liberal
democracy and stability in Cambodia 1991 –1997; Absence of liberal democracy
and economic well-being in Haiti 1993-1996; Genocide in Rwanda from 1994; Low-level
conflict in Guatemala from 1996, …
à Essentially national rather than international
issues (“Who governs?” and “How humanely?”), even no sometimes international
dimensions
à Gap between Council resolutions endorsing HR
with reference to Chapter VII and the lack of political will to accept
casualties of military action (Somalia, Bosnia, Cambodia, Rwanda)
à El Salvador, Namibia, Haiti, Mozambique,
Guatemala: Improvements
à Cambodia: some improvements
Represents the purposes
of the organization as found in the Charter, including international
cooperation on HR.
From Trygve Lie to
Boutros Boutros Ghali: more and more active
Perez de Cuellar:
deeply intrusive rights agreement in El Salvador
Boutros Boutros Ghali:
Agenda for Development à democratic development based on civil and
political rights. High Commissioner for Human Rights, 1993; José Ayala
Lasso (weak), then Mary Robinson (strong). à Free SG in public diplomacy to focus on
security issues
Post-1991: Spoken out
more frequently and generally more active in the domain of HR; increasingly
find HR intertwined with security
GA: Many treaties and “motherhood” resolutions;
fewer resolutions about specific HR in specific situations
CW: Israel (Zionism a
form of racism), South Africa. GA shrank the realm of State sovereignty by
making specific HR situations in specific countries a part of routine
ECOSOC: Mailbox between GA and subsidiary bodies.
Important decisions:
ICJ: Not a major imprint on the protection of IHR.
Nicaragua, 1996.
Post-1991: not
necessarily the prime UN body for HR anymore; but still center for traditional
or routine HR diplomacy, in addition to SG office, UNHCHR
1945-1966: Drafting of
International Bill of HR & specific Conventions; avoiding specific
inquiries about specific rights in specific countries
1967-2001: From promotion
to protection (southern Africa, Israel, Haiti, Greece)
Neither 1235 nor 1503
systematic, sure and impressive protections of specific rights for specific
persons in specific countries. 1235: country investigators. Thematic investigators
(more successful). 1503: confidential.
à UN HR Commission taken seriously, but outside,
States are prepared to continue HRV
à Divorces from control of military, economic or
diplomatic sanctions
Tripartite membership à less political obstruction
Around 170 treaties
like: Freedom to associate in trade unions; freedom to bargain collectively;
right to be free from forced labour
Reports reviewed by a
committee of experts, then by a larger and more political body. ILO regular
review process: polite diplomacy devoid of more stringent sanctions beyond
public criticism
Special review procedure
on freedom of association, regardless of consent to treaties
Urgent cases didn’t
stop events in Poland, Chle…
Legal refugees
according to PIL: individuals crossing an international boundary on the basis of
a well-founded fear of persecution; must be granted at least temporary asylum
Reality: Some people
flee without being singled out individually for persecution; some are
internally displaced
Post-1991: UNHCR
focuses on repatriation rather than resettlement; not differentiate between
legal refugees, war refugees, internally displaced
Increasing attention
to HR problems causing the flight in the first place
Problematic:
Protection and relief to those who had broken normal relations with their
governments
Covenant on Civil and
Political Rights, around 140 parties in 1999
HRC composed of
independent experts
Post-1991: More
towards maximalist view (check if State was in compliance) as opposed to
minimalist view (dialogue)
Some Western States
have adapted their legislations, but US Senate Foreign Relations Committee
challenged HRC’s right to pass judgment on US reservations, understandings
Covenant on Economic,
Social and Cultural Rights, almost 140 parties in 1999
Incompetent
supervisory body replaced by independent Committee of Experts in 1986
Few States pay serious
and sustained attention to Covenant
Reports: Often more
formal
Control Committees
under:
à States don’t react affirmatively and quickly
Everywhere politically
difficult to put a nation’s soldiers in harm’s way and then prosecute them for
international crimes
Geneva Conventions
(1949) & Additional Protocol I (1977): Neutral State should oversee
application of rules. Reality: ICRC does its best to do the job
à UN increased commitment to liberal values
centering on personal HR in IR, but commitment seems to be somewhat pro
forma since States insist on their independence and freedom from
authoritative international supervision on rights issues
4 International criminal courts
First international
tribunal after WWII in Nuremberg and Tokyo.
Claim: victor’s
justice; some ex post laws applied (crimes against humanity [including
genocide]; crimes against peace)
Punishment,
fact-finding, but no credible threat for sure prosecution
Never used (Hungary
1956, Afghanistan 1979, Grenada 1983, Panama 1991, Iraq/Kuwait 1991, El
Salvador 1991, South Africa 1994) until ad hoc tribunals
National trials (universal jurisdiction) only held in
France and Israel before 1990’s + Denmark, Switzerland (former Yugoslavia) à rare
à Continuing strength of nationalism
Liberals: States bound
by international standards of HR in both peace and war, which includes criminal
prosecution
Basic conflict: Impede
or help peace and democratisation with criminal proceedings?
Garten, classical
liberal: frontal assault will not work in many cases, other means of protecting
HR (like truth commission); contextual analysis of gains and losses of a
judicial approach
Neier, neo-liberalist:
Justice in court, supported by NGOs and HR lawyers
Established by SC,
required all UN member States to cooperate with the tribunal
War crimes
Crimes against
humanity
Genocide
80+ persons indicted,
7 convictions
à More Garten than Neier (non-arrest of Karadzic
and Mladic, …)
à ICTFY declared systematic rape as a crime
against humanity
à Somalia: pursuit of criminal justice à withdrawal due to US losses à less willingness to intervene in Rwanda
Like ICTFY, SC
(principally US) did not want to fight, but wanted to do something nonetheless
(moral side show)
35 persons indicted, 2
major judgments, including a prime minister and a major
Petty corruption,
mismanagement, lack of adequate support
Statute of Rome 1998
(entry in force with 60 ratifications): Permanent criminal court, loosely
associated with UN; NGOs and some like-minded States like Canada pressed for
Court
Genocide
Crimes against
humanity
War crimes
Aggression as soon as
international law presents a sufficiently precise definition
Principle:
Complementarity, but if States unable or unwilling to prosecute, Court can act
SC can refer cases to
the Court and block delay proceedings
US refuse to sign and pressed
other States not to ratify à negative reactions even with British and
French as well as Canada and Italy (troops of the latter two have committed
crimes in Somalia)
A number of potential
problems involving acting or former heads of State, parliamentarians
5 Regional application of HR norms
Ambiguous regional
systems in the Western hemisphere
Embryonic in Africa
Otherwise week
Decisive: Underlying
political culture, political will, and political acumen.
Others: European
Social Charter (1961); European convention for the prevention of torture
(1986); Framework Convention for the Protection of National Minorities (1995)
Fundamental individual
civil and political rights: mostly negative, requiring sometimes positive
steps
Former method of
compliance:
Option of accepting
jurisdiction and supranational authority of ECHR
Option of accepting
private petitions to European Commission on HR [screening, fact-finding,
conciliation body]
Commission could bring
case before Committee of Ministers or the Court
Developments:
à Mostly not gross and systematic HR violations
à When gross and systematic à target government uncooperative à HRV not easily prevented or corrected [as in
UN, OAS]. Ex: Greece 1967 – 1974; Turkish policy in Cyprus, Turkey itself.
Derogations: Greece,
1967: not allowed under Art. 15 (emergency threatening the life of a nation);
justified in Northern Ireland à generally some margin of appreciation given.
Court can order compensations,
administrative practises and national laws be changed, challenge national court
decisions.
Committee of Ministers
à now only function of supervision of Court decisions
Accepted by 22 States
Ideas of a new
protocol that would be added to ECHC making the ESC subject to authoritative
review by the European Court of HR
European Committee of
Social Rights: independent experts à recommendations to inter-governmental bodies
about application of the ESC
à Violations often found, but lack of
enforcement
1995 Protocol:
Collective private petition by trade unions and certain HR groups [e.g.
International Commission of Jurists]
1996 RESC incorporated
amendments and protocols & new rights à M control mechanisms unchanged
à European States generally social-democratic
à Not prepared to subject to the same type of
authoritative third-party review as with civil and political rights
Convention for the
Prevention of Torture (1986)
Except for France, all
ECHR States also party to this Convention
Committee of
uninstructed persons right to regularly visit States to inquire into measures
and conditions pertaining to torture. Confidentiality. But may publicize
conclusions of violations persist.
à A number of States have been found in
violation
Framework
Convention for the Protection of National Minorities (1995)
Absence of minority
rights in ECHR and ESC
No special monitoring
aside from unspecified role for CoM
Endorse preservation
of national minorities
Public policies on
language, State services, etc.
1950’s: no mention of
HR
1992, Maastricht
Treaty of European Union: Union shall respect HR guaranteed by ECHR [joint declaration
in that sense of European Commission, Council and Parliament in 1977]
European Court of
Justice (ECJ) had encouraged HR before:
Institutions
eventually took up HR subjects, but no European Declaration on HR
Common foreign &
security policy: Use EU influence to protect and promote HR, e.g. foreign aid,
electoral assistance à most of the time rhetoric; but sometimes sanctions à former Yugoslavia, Haiti
Sometimes EU States
split, e.g. how to deal with China
à EU = HR actor through its own jurisdiction and
through its emerging foreign policy
à No explicit coordination between ECJ and ECHR;
potential for conflict considerable
ECHR: explicit HRT
containing specified HR; judges = HR specialists
Principles vaguely derived from other sources; judges = economic law
specialists
Possible solution:
Adherence of EU to ECHR; ECJ: not possible as convention only open to States;
States refused to change the law
Helsinki Final Act
(1975) helped create environment for change in the East
After CW: From 35 to
55 States
A lot of former USSR
States lacked real commitment and real capability
No enforcement power
à Diplomatic framework to try to advance
internationally recognized HR, especially civil and political rights
à OSCE High Commissioner for National Minorities
Traditional military
alliance took up HR duties after CW: lay the groundwork for liberal democracy,
including arresting war crimes suspects & return of refugees;
1998 Admission of
Hungary, Czech Republic & Poland
1999 Kosovo
intervention to stop persecution and expulsion of ethnic Albanians in Kosovo
Some realist
objection: Bosnia and Kosovo not vital security interests à but even for realists: what is a “national interest”? Including liberal
democratic “neighbourhood” in Europe?
OAS
American Declaration
of the Rights and Duties of Man (1948)
Inter-American
Convention of HR (1969), 35 State Parties
Commission and court
to move towards implementation; yet many States à repeated violations since 1945
Inter-American Court
on HR (1979), only 16 States consented to jurisdiction
‘Political values’ of
the Western Hemisphere:
Factors constraining
regional HR development:
à Similar only on paper to European system
à Ambitious regional HR program, but mostly
ineffective in the actual protection of HR in most places most of the time
à Major State (USA) not accept jurisdiction of
Court (¹ Europe)
à Individual petitions à not real restraints on State policy as a result (¹ Europe)
OAU (1961) Charter
mentions HR; but OAU deals only with racial discrimination and de-colonization à double standard; emphasizing State sovereignty and domestic
jurisdiction
African Charter on HR
(1981 / 1986):
à Duties and peoples’ rights reflect uniquely
African approaches to internationally recognized HR
à Only advisory African HR Commission to oversee
application of Charter; weak; some improvements in 1990’s with European help
[several in-country investigations with the consent of the appropriate State]
à 1998 Protocol approving the creation of an
African HR court; but if unsympathetic government regional machinery not very
effective (see Europe)
à CW: Political liberalism & HR application
in short supply [inconceivable for the OAU to be clear and strong on behalf of
individual HR & enforcement in 80’s]. African culture? Political
self-interest? Post-CW: Some progress in “third wave” of democratisation
à Even reporting duties neglected; rarely
discussion
à Individual petitions no effect
HR Commission of Arab
League à concerned with Israel; double standard
Asia: no inter-governmental
organization for HR
à If lack of political will at national level à supra-national level will be ineffective
à Even liberal democracies need supra-national
institutions
6 HR and foreign policy in comparative perspective
Enormous gap between
liberal legal framework on HR that most States have formally endorsed, and
realist principles that they often follow in their foreign policies
Problem not formal
(universal or not?) but substantial (reality of genocide after the CW)
States most important actors in IGOs discussed so
far; States approve treaties; manipulate foreign aid; arrest war
criminals
States’ policy on HR à nationalism = national self-image = informal ideology
HR = personal freedom
as found in US Bill of Rights, not with the broader and more complex conception
found in the International Bill of Rights
Ergo: HR foreign
policy à pressure others to improve personal freedom; not applying global or
regional standards to itself
Talk about freedom and
democracy
American
exceptionalism can lead to involvement or isolationism.
Interventions in the
name of HR only with limited casualties: Somalia, Rwanda, Bosnia,
Kosovo
Public opinion for
pragmatic internationalism, not for moral internationalism à only moral and altruistic arguments alone not likely to bring about
political coalitions for action
Pressure groups,
media, can’t change the fundamental aversion towards combat casualties
Greater attention for
religious freedom abroad in the 90’s, but not enough to impose sanctions
against allies
As long as price “in
blood or treasure” is not too high, US administration for HR
Further soft spots:
Strong points about
recent US rights policy abroad:
Paradoxes:
à Rhetorical support for universal human rights,
but national particularism for USA
à Rhetorical support for development according
to liberal democracy, but extensive economic relations with many authoritarian
States
à Support for two ad hoc criminal
tribunals, but not for a standing court & mostly shield away from arresting
war criminals
à Advocate of the extension of Chapters VII and
VI, but block significant UN protection force in Rwanda or DRC &
humanitarian intervention in Kosovo
Virtually all have
increasingly active policies on HR
Similar to USA: take
various initiatives; particular national slant to their policies; their general
orientation to IHR reflects their national political culture
Netherlands: self-image = international, cosmopolitan;
wants to be very progressive in foreign policy // M Srebrenica 1995; terminate aid to Indonesia on grounds of HR à no leverage in East Timor crisis. Effort to combine development
assistance with protection of HR
GB: proud legal culture emphasizing
constitutionalism and limited government. Accepted whole bill of rights. Accepted supra-national institutions (CoE, EU). Tried to condemn China in front of Commission
in 1997 // M Arms sales to Saudi Arabia
Japan: HR = imported from the West, not high on
agenda. But effort to play greater role: Pressed Burma; mostly voted with West
in UN
Russia: Wants » good relations with West; concerned about
protection of nationals abroad, but tradition of individual legal rights = very
weak // M Chechnya; Slavic tendency in former Yugoslavia; Iraq
France: Proud HR nation // M Torture bureau in Algeria, 1954-62; support for African dictators
Iran: Rejects the notion of secular and universal
HR in IPL; Sharia: emphasis on duties; changes (Khatami) only in the context of
discussing and interpreting religious law
As late as 1944, HR
considered essentially a domestic matter
à National history, character, self-image and
nationalism
à Contemporary situation and interests; fear and
insecurity (e.g. minorities)
à Even illiberal States à propelled to draw more attention to rights in foreign policy
à State foreign policy = very large role on
P&P of HR
7 Non-governmental organizations and HR
Out of 250 or so, only
a handful with enough resources and reputation
à Based in the West, mostly concerned with civil
and political rights as well as international humanitarian law
Others might become HR
actors at certain moments: Catholic Church, World Council of Churches; AFL-CIO;
“ethnic lobbies”; national HR actors; …
à Concept of “movement” on specific issues.
Example: Movement for UN criminal court: like-minded States, 200+ NGOs,
elements of the communications media, some individuals.
Spreading of
information on the internet with potential of considerable impact
1)
Collection of
accurate information and timely dissemination
2)
Try to persuade
public authorities to adopt new HR standards or apply those already adopted.
Kind of action depends on structure.
M May come across public authorities as moralistic, rigid, and
politically naïve. Relatively little success in achieving immediate policy
changes. But many movements success over time: Slavery, etc. Views of the
“right” policy may differ even with sympathetic governments.
3)
Education/publishing
May fall on pragmatic rather than moralistic political culture (US)
4)
Direct services
to victims of HRV: judicial assistance, amicus curiae briefs,
observation of trials, …
Can’t threaten
electoral punishment or withholding of significant financial resources.
Difficult to analyze:
multiple causation, media attention
Sometimes-elusive
notion of success or achievement:
à Wider movement: NGO’s create conditions in
which governmental pressure can be effective
à Important role in some cases: Pressure of AI helped
release some prisoners of conscience; NGO pressure helped transform the
political culture of Mexico, Argentinia, etc.; UN monitoring mechanisms rely on
NGO information
à When States complain about NGO’s: safe
indication that they do have some influence
Economic and social
rights: Food, clothing, shelter, medical care; non-combatant right to medical
assistance; UN extended application to “complex emergencies”
Many
relief/development agencies got a salient discourse on HR
1)
Negotiate access
to those in need
2)
Accurate
assessment of need
3)
Mobilize relief
in a timely and effective way
4)
Deliver
assistance in a timely and cost-effective way
5)
Evaluation of
past action and planning for future
à More coordination?
à Separate politics from humanitarian action?
à Could one change the situation through new
legislation and/or better dissemination of norms?
Considerable if
amorphous influence
ICRC, UNHCR, Doctors
Without Borders
But inter-governmental
organisations = major sources for material resources directed to humanitarian
assistance in war and complex situations
Difficult to fully
“neutralize” relief
PVOs crucial part of
development process
Sustainable development:
part of it is participation of NGOs and CBOs in the WB, UNDP and OECD States
Ethnic/internal
conflicts à less attention to development
PVOs didn’t always
think of development in relation to HR à shift towards participatory rights
(empowerment)
à Amorphous contribution to a wider movement,
network or coalition interested in sustainable human development
à Advocate HR ideas
à Implement the right to humanitarian assistance
à Contribute to the HR inherent in sustainable
human development
Impact on public
authorities and private individuals
Provide information
and challenge/validate facts and policies of States
Making and
implementing HR standards would probably not work the same way without NGOs
NGOs need States: Arrest
war criminals, provide food and tents and sometimes physical relief, provide
capital and cooperation for Development
States need NGOs:
ideas and services
8 Transnational corporations and HR
TNC à tremendous impact on persons, for good or ill
Attention to TNC = new
frontier in the international discourse on HR
Renewed pressures on
States to contribute to, rather than contradict, internationally recognized HR
Only six States larger
revenue than the nine largest TNCs; 200 largest TNCs in just 10 States, most
importantly USA & Japan
à Power of the TNCs
à Difficulty of their regulation
Unregulated business:
often exploited, crushed, de-humanized and affronted human dignity
National capitalism:
Prevent gross exploitation
International
capitalism: Stabilize capitalism regardless of exploitation
Growing disparity N-S
Globalisation of
economy and of HR developed separately from each other
TNC sometimes active
against progressive governments, labour regulation, even in favour of
cooperation with military governments (Royal Dutch Shell, Nigeria)
Other types of TNCs:
consumer product firms, manufacturing firms, service and information firms
Compatible with HR,
sometimes even helpful (health care, safety, education, democracy) à economic interest in avoiding negative publicity
One study finds
association of TNC with improved civil-political and socio-economic rights
Countervailing power
from State or HRO or HR movements needed
Nike and Reebok
altered policies in Asia (child labour, etc.) à public relations, damage control, substantive
concern with HR?
à TNCs frequently asked by citizens &
governments for more active commitment to IHR
à PIL so far does not apply to TNCs
à Ways to reorientate: private negotiated codes
of conduct, accompanied by independent monitoring and public reporting
[especially with support of governments] à some promise for change
à Process likely to remain quasi-legal and
extra-judicial; even no some national courts may bring people remedy
à Evidence of changing attitudes of TNCs:
Volkswagen, Swiss banks
International law on
HR is based on liberalism, but the practice of HR all too often reflects a
realist world
Review:
HR = institutionalised
in IR, but will remain controversial.
Controversies in
liberalism concerning
traditional principles (self-determination, freedom of religion, even freedom
from torture, etc.) and third generation of HR (environment, peace, etc.)
Classical liberal:
emphasis on law, criminal justice, and other punishments for violation of the
law
Neo-liberal: many
avenues to the advancement of personal dignity and social justice, of which attention
to legal rights, adjudication and sanctions is only one
Forsythe sees no
alternative to case-by-case evaluation (Somalia, Rwanda, Bosnia, China,
Pinochet, etc.)
Feminist critique:
Controversies
beyond liberalism: individual
HR based on liberal philosophy = misguided as a means to human dignity
Realism: Falsely
assumes permanence of national interest, doesn’t capture situations not
characterized by fear, suspicion and the classical security dilemma
à Historically dominant prism in West for
understanding IR
Marxism: Individual
legal rights = a sham in the context of economic forces and structures that
prevent the effective exercise of HR