Human rights foreign policy and the role of the United Nations
The story of the UN's human rights treaties may leave us dissatisfied. Where is the enforcement of these rights? We have a legal framework and reports from non-governmental organizations, but where is the pressure to ensure that these rights are realized in practice? What does it really mean when governments say that their foreign policy is concerned with promoting and protecting human rights? Only very rarely do governments actually use these treaties to bring international complaints against other states. Human rights in foreign policy deserve some exposition.
The idea that governments can legitimately concern themselves with the way in which another state treats its own nationals is a relatively recent innovation in international relations. The concept of non-interference in domestic affairs loomed large for much of the 20th century and was seen to foreclose meaningful human rights foreign policy.
By the time of the 50th anniversary of the Universal Declaration of Human Rights in 1998, it was becoming commonplace to raise human rights issues in foreign relations, but many of those concerned with realpolitik saw the exchanges as little more than cosmetic. Interviewed for the anniversary, Alan Clarke, the former British Defence Minister, saw the clash of interests in the following terms:
My principal duty is to the people of my own country. Diplomacy is a matter of reconciling, either by compromise or threat, conflicting national interests, and the considerations about the Universal Declaration of Human Rights come fairly low on the list of priorities.
Such an approach has nearly always governed international relations and is still prevalent in parts of important foreign ministries, but the significant point is that perceptions about what are the actual 'national interests' can change. Governments are increasingly susceptible to the idea that the nation wants issues of human rights raised with other governments in meaningful ways, and that improving human rights abroad may indeed be in the national interest: as security threats diminish, international stability increases. In addition, we can idealistically hope that the national interest includes the idea that millions of nationals are actually altruistic, rather than selfish, and are concerned about remedying the suffering of others, wherever they may be.
Many national governments have more recently established human rights units within their foreign offices, advisory committees on human rights, and even ministers for human rights. As the legal framework develops, and as rhetoric gives way to constructive discussion, more and more governments may come to see human rights policy and expertise as something central to all aspects of government and foreign relations. Of course, there is a difference between proclaiming that human rights are at the heart of foreign policy, and actually changing the way decisions are taken. Respect for human rights may now be said to be a factor to be considered in a number of spheres of inter-state decision making: admission to certain international and regional organizations; trade agreements and preferential tariffs; export credit guarantees; arms transfers; foreign direct investment; cooperation with international financial institutions; UN technical assistance programmes; development work; international investment agreements; customs communities; and the maintenance of international peace and security. The human rights record or reputation of a state can adversely affect any of the above. A willingness to improve human rights has also almost become a condition for entering into a range of diverse arrangements with other states. One obvious example is that respect for human rights has become a formal pre-condition for admission to the European Union. In short, all states, through their representatives, now care about how their human rights record is regarded internationally. In contrast to this apparent progress, we must remind ourselves that promoting human rights in other countries still comes pretty low down the list of priorities when there is a perceived clash with other competing 'national interests'. The extent to which this will change depends on the enthusiasm of people to hold their leaders to a human rights foreign policy that reorganizes these priorities.
Preface to The Law of Rights of Mankind\Paul Sieghart
Down to the end of the Second World War, it was a matter of universally accepted doctrine in international affairs that how a state treated its own citizens was a matter entirely for its own sovereign determination, and not the legitimate concern of anyone outside its own frontiers. Had a well-meaning delegation from abroad called on Chancellor Adolf Hitler in 1936 to complain about the notorious Niirnberg laws, and the manner in which they were being applied to persecute German Jews, the Fuhrer would probably have dismissed such an initiative with the classic phrase of’ an illegitimate interference in the internal affairs of the sovereign German state', pointing out that these laws had been enacted in full accordance with the provisions of the German Constitution, by an assembly constitutionally and legally competent to enact them, and that neither they nor their application were the concern of meddling foreigners.
And in international law as it then stood, he would have been perfectly right - and so would party Secretary-General Josef Stalin have been if a similar delegation had called upon him at around the same time to complain about the wholesale destruction of the kulaks in the Soviet Union.
The limits of human rights foreign policy
The promotion of human rights through foreign policy may be open to criticism on several grounds. First, there is the reaction from certain states which see a creeping justification for the use of military force. There was a sharp reaction from key states to the NATO bombing of Serbia (in connection with Kosovo).
The speech of the Chinese Ambassador to the United Nations in Geneva illustrates the suspicion which human rights foreign policy can arouse in states.
Recently, some people turn upside down the relationship between sovereignty and human rights in an attempt to impose with force their human rights values on others, and even with this excuse pursue a hedonistic policy and legalize their aggression activities.
If this policy is stubbornly pursued, not only protection of human rights could not be genuinely guaranteed, but even global peace and security will be under threat.
President Yeltsin of Russia rebuked the United States with regard to the NATO bombing in similar terms, rejecting the human rights justification:
... not all of the ideas which have surfaced in the course of discussions about the future of Europe strike us as being well-founded. I have in mind the calls for 'humanitarian intervention' - a new idea - in the internal affairs of another State, even when they are made under the pretext of defending human rights and freedoms. We all know what disproportionate consequences such intervention can have.
It is sufficient to recall NATO's aggression, spearheaded by the United States of America, against Yugoslavia.
This suspicion that claims about human rights violations are being used as a pretext to justify military intervention has not gone away since the Kosovo intervention in 1999. In fact, there has been a greater conceptualization of the connection between human rights violations and military intervention. The developing recognition of the need to repress and prevent international crimes, such as genocide and other crimes against humanity, has been linked to the developing possibility of aright for states to intervene militarily in another state on humanitarian grounds (so-called 'humanitarian intervention'). Following the disagreement in the UN Security Council over the 1999 NATO intervention to protect the population of Kosovo, various governments, including that of the United Kingdom, sought to outline situations in which it would be legal for states to use force against another state in the face of a 'humanitarian catastrophe'.
The International Commission on Intervention and State Sovereignty reoriented the popular notion of humanitarian intervention' into a responsibility to protect. The idea of the 'responsibility to protect' was presented by the Commission as being derived from a need to avoid a perceived militarization of humanitarian work and to avoid prejudging the motives for intervention by simply labeling them 'humanitarian'. There was a desire to force a reconceptualization of the issues. Heads of State and Government, meeting at the UN's 2005 Summit, endorsed this new concept and declared themselves ready to take timely decisive collective action when states are manifestly failing to protect their populations from 'genocide, war crimes, ethnic cleansing and crimes against humanity'. While a strict reading of the text does not alter the need for the approval of the UN Security Council before military force is used, the developments in this field raise the possibility for states to feel more comfortable using military force against another state in response to the latter's failure to protect its people. Already the states of the African Union have agreed that a founding principle of the Union is:
'The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.'
Calls for force to be used to protect the civilian population in the contexts of Rwanda, Srebrenica, Kosovo, and Darfur have built on the concepts of crimes against humanity and war crimes to justify the use of military action. We can say that, in light of the recent failure of the international community to protect the people of Bosnia and Rwanda, there is a greater expectation that effective protection will be offered in the face of ongoing genocide or crimes against humanity. The concern with regard to the atrocities in Darfur constantly recalls this global commitment. However, the protection offered to the people of Darfur has remained tragically inadequate, as the rapes and killings continued through 2006.
The grand principle of the responsibility to protect looks rather hollow from the perspective of today's victims of armed conflict.
An assessment of human rights-based justifications for the use of military force is complicated by the following factors. First, in many situations there will be a danger that the necessary force used to intervene could do more harm than good. People get killed in military interventions; how many deaths are justified to save more lives? Even where human rights violations are actually ongoing, human rights activists have sometimes baulked at supporting the use of military force in the name of human rights.
The US-based organization Human Rights Watch wrote in its 2004 World Report: now that the war's proponents are relying so significantly on a humanitarian rationale for the war, the need to assess this claim has grown in importance. We conclude that, despite the horrors of Saddam Hussein's rule, the invasion of Iraq cannot be justified as a humanitarian intervention.
By contrast, others have justified the war against Iraq on the basis that it brought about the downfall of the Saddam Hussein regime and ushered in freedom and democracy for the people of Iraq. Evidently, the fight for human rights has become entangled with controversial justifications for the use of massive military force. The issue cannot easily be resolved, as there may well be cases where force must be used to protect people from immediate violence. As human rights organizations enter the terrain of endorsing and protesting the use of military intervention, determining at what point force should be used, and who should use it, is one of the biggest challenges facing the human rights movement.
A second strand of opposition sees Western human rights foreign policy as disguising hegemonic ambitions and rejects human rights as incompatible with so-called Asian values'. Part of the Asian values reaction is a simple rejection of Western interference in the political affairs of certain countries in the Far East. But another part comes from a sense that the Western notion of human rights has paid too little attention to the correlative responsibilities which ought to accompany the exercise of human rights. Yash Ghai has sought to explain why the end of the Cold War led to this backlash against the renewed enthusiasm for human rights foreign policy: The emphasis on rights was not welcomed by all States... Those States which had felt immune from international scrutiny of their authoritarian political systems (which in East and South East Asia had been justified on the basis of the menace of communism) found themselves a little like the emperor without clothes. They were anxious at what were considered to be the likely consequences of this new stress on human rights for their political systems. They were also resentful of conditionality’s that derogated from their political and economic sovereignty. The universalization of rights was seen as the imposition of Western norms. They were anxious because of the effects of these rights on their competitiveness in the framework of international trade that was ushered in by globalization, and they claimed to detect in this emphasis a Western conspiracy to undermine newly growing economies.
In fact, the reaction may be understood as the position of a few government representatives and internationally recognized elites, rather than the cultural specificity of a whole continent.
Amartya Sen tackles the currency given to the 'Asian values' assault on human rights and argues that voices have 'persistently been raised in favour of freedom - in different forms - in distinct and distant cultures'. He concludes his chapter on 'Culture and Human Rights': As far as the authoritarian claims about Asian values' are concerned, it has to be recognized that values that have been championed in the past in Asian countries - in east Asia as well as elsewhere in Asia - include an enormous variety. Indeed, in many ways they are similar to substantial variations that are often seen in the history of ideas in the West also. To see Asian history in terms of a narrow category of authoritarian values does little justice to the rich varieties of thought in Asian intellectual traditions. Dubious history does nothing to vindicate dubious politics.
This debate has lost much of its sting. Respect for others, the protection of human dignity, equality, self-determination, and tolerance of others' beliefs can arguably be discerned in many cultures, traditions, and religions. As we have already suggested, the reality is that the correct balance between the liberty of the individual and the needs of the community will vary depending on the context. Such an admission is not a negation of the idea of 'universal' human rights. The same fundamental human rights exist everywhere - but concrete questions regarding respect for individual rights in individual cases will yield different answers depending on the context. Even when a tribunal can conclude that different national considerations need to be taken into account in deciding whether a state has correctly balanced a right against the needs of the community, the values that underpin the importance of respect for these rights remain universally accepted. Briefly stated, the underlying idea that the dignity or moral worth of a person should be respected can be found in the values adopted by various peoples, religions, and civilizations.
We might add that in the 21st century, resistance to the human rights message is not confined to an Asian/Western clash. Some formerly socialist countries have sometimes shown little enthusiasm for the economic, social, and cultural rights that were, for so long, part of their foreign policy attack on the West. Now, as emerging economies, they perceive attempts to impose welfare state-like regulation as possible impediments to economic development. It is also fair to say that there is antagonism from some people in such transitional economies towards 'state law' and 'state regulations'. This is not an Asian or Eastern European phenomenon but is based on opinions as to the potential market benefits that are perceived to flow from minimal regulation in the economic sphere, and a sense of disadvantage believed to follow from compliance with internationally recognized labour standards. In these situations, the suspicion is that human rights are being used to achieve economic dominance (rather than hegemonic control through military or cultural means) by holding back the development of fragile economies in transition.
In particular, the idea of a 'social clause' (which allows a state to impose trade sanctions on states that fail to respect core labour standards) has been treated with suspicion. The incorporation of such a clause into the multilateral trading rules of the World Trade Organization (WTO) has been rejected by developing countries.
Several governments in a position to support trade sanctions, such as the United Kingdom, have declared their opposition to the use of such sanctions to enforce full compliance with all labour standards, on the grounds that such trade sanctions 'punish countries for their poverty, and hurt the poorest most'.
Third, a human rights foreign policy may suggest that promoting human rights is about changing what other governments do, rather than examining respect for these rights at home. Foreign ministries are unlikely to turn their attention to domestic human rights violations. For example, the US Department of State's Country Reports on Human Rights Practices does not cover the human rights situation in the United States. The Assistant Secretary of State explained at the launch of the 2005 report: The 196 reports include every member country of the UN, except of course the United States. We do however consider the human rights performance of any government, including our own, to be a legitimate subject for international comment and debate.
Human rights foreign policy is always skewed towards the 'other'. For some time this really was a one-way street. Today, not only is there a preparedness on the part of some governments to publicly criticize another government's human rights record, but we now see that a target government is often ready to turn the tables.
The United States is used to pointing fingers at other countries' human rights situation, but back in its own country, there exist gross violations of human rights: notorious racial discrimination, police brutality, torture in prison, infringement on women's rights and campus gun killings. A country like the US with such poor human rights record has no right to judge other countries' human rights situation at UN forum. We advise that, instead of interfering in the internal affairs of other countries under the pretext of human rights, the US should spend more time to examine its own human rights situation. Otherwise it will end up with lifting a rock only to drop it on his own feet. This is not an exchange about Asian values'. This is about seeing that human rights foreign policy is only convincing when rooted in respect for the same values at home. Joseph Nye's recent appeal for the use of’ soft power' recognizes this challenge: The United States, like other countries, expresses its values in what it does and what it says. Political values like democracy and human rights can be powerful sources of attraction, but it is not just enough to proclaim them.... Others watch how Americans implement our values at home as well as abroad. A Swedish diplomat recently told me, all countries want to promote the values we believe in. I think the most criticized part of the US's (and possibly most rich countries') soft power 'packaging' is the perceived double standard and inconsistencies.' Perceived hypocrisy is particularly corrosive of power that is based on proclaimed values.
Those who scorn or despise us for hypocrisy are less likely to want to help us achieve our policy objectives.
Fourth, governments do not promote all rights in all places. Different governments have different priorities. The United States, for instance, has failed to embrace economic and social rights or the right to development. The United States treats the promotion of the rights of the child as liable to conflict with established parental rights in US law, and it obviously takes a back seat with regard to concerns about the death penalty. The 2005 US State Department's report explains: The Country Reports on Human Rights Practices cover internationally recognized individual, civil, political and worker rights, as set forth in the Universal Declaration of Human Rights.
These rights include freedom from torture or other cruel, inhuman or degrading treatment or punishment, from prolonged detention without charges, from disappearance or clandestine detention, and from other flagrant violations of the right to life, liberty and the security of the person. Such country reports are often criticized for bias or spin. We should perhaps not be surprised that there are differences of opinion on how one government should present the situation in another country. Despite the limited list of rights and the prospect of lack of objectivity, these reports remain influential for decision making in the context of trade preferences, foreign investment, loans, development, and military assistance.
We can compare the European Union's Common Foreign and Security Policy on human rights. Although there is an EU Annual Report on Human Rights, this does not offer country profiles but rather describes the initiatives taken over the year by the EU.
The 2005 report is clear that EU policy is not confined to civil, political, and workers' rights: The European Union attaches the same importance to economic, social and cultural rights as to civil and political rights, bearing in mind the universality, indivisibility, interdependence and inter-relatedness of all human rights and fundamental freedoms, as confirmed by the 1993 World Conference on Human Rights, held in Vienna. Both categories of rights stem from the inherent dignity of the human person and the effective implementation of each right is indispensable for the full implementation of others.
Furthermore, a look at the sorts of human rights projects that were funded in 2004 reveals a particular set of priorities. The European Initiative for Democracy and Human Rights had resources amounting to more than 100 million Euros, funding projects in 32 countries, with the following priority areas: the promotion of democracy, the rule of law and good governance, abolition of the death penalty, combating torture and impunity, support for the international criminal tribunals and the International Criminal Court, combating racism and xenophobia and discrimination against minorities, as well as the protection of the rights of indigenous peoples.
The extent to which the human rights record of a country is actually raised in international relations still depends on the willingness of governments seriously to raise such issues.
Enthusiasm for human rights in foreign policy ebbs and flows. Different governments and different ministers make different promises. In 1998, UK Foreign Secretary Robin Cook stated: I am instructing our posts around the world to report regularly on the use of torture in the countries they cover, to raise individual cases with their host governments, and to maintain contact with the medical, legal and human rights groups tackling the problem. That way we can ensure that our efforts have the biggest possible impact. Raising individual cases with governments can be effective, although the nature of such quiet diplomacy makes it difficult to evaluate. But the promise that it is done takes us into a new era of human rights foreign policy. Switzerland has gone so far as to enshrine in its Constitution a foreign policy commitment to contribute to the alleviation of need and poverty in the world as well as to the promotion of respect for human rights and democracy. According the Department of Foreign Affairs, Swiss Federal Councilors 'address human rights questions with their foreign counterparts when visiting them in their own countries'.
Raising human rights through diplomatic channels can sometimes lead to concrete results, but such demarches are usually of little use without the threat of some sanction or positive incentive. The former EU Commissioner Chris Patten has written of his frustration at the hours of wasted time spent negotiating human rights clauses in agreements that he knew would never be activated against violating states. In Patten's words: Winking at electrodes, as it were, makes for wretched diplomacy. Few authoritarian governments go weak at the knees at the prospect of a European demarche'.
In a way, all states have a human rights foreign policy to the extent that they participate in the human rights debates and initiatives at the United Nations, and it is to this subject that we now turn.
UK Foreign Secretary Robin Cook, January 2000
The UK submitted to the UN Secretary-General: 'a set of ideas to help the international community decide when it is right to act.
First, any intervention is by definition a failure of prevention. Force should always be the last resort; second, the immediate responsibility for halting violence rests with the state in which it occurs; but, third, when faced with an overwhelming humanitarian catastrophe and a government that has demonstrated itself unwilling or unable to halt or prevent it, the international community should act; and finally, any use offered in this context should be collective, proportionate, likely to achieve its objective, and carried out in accordance with international law.'
US Department of State Country Report 2005: Sudan
The government's human rights record remained poor, and there were numerous serious problems, including evidence of continuing genocide in Darfur, for which the government continued to bear responsibility.
The following human rights problems were reported:
Abridgement of citizens' rights to change their government
Evidence of war crimes
Extrajudicial and other unlawful killings by members of the security forces and government- killed militias acting with impunity
Killings of civilians in conflict
Torture, beatings, and rape by security forces
Harsh and life-threatening prison conditions
Arbitrary arrest and detention, including incommunicado
Detention of suspected government opponents and prolonged pretrial detention
Executive interference in the judiciary and denial of fair trial in civilian and military courts forced military conscription of underage men
Obstructions to humanitarian assistance in Darfur
Infringement of citizens' privacy rights
Severe restrictions on freedom of speech, press, assembly, association, religion, and movement within the country
Harassment and detention of internally displaced persons (IDPs)
Harassment of human rights organizations
Violence and discrimination against women and female genital mutilation (FGM)
Abuse of children, particularly in Darfur
Trafficking in persons
Discrimination and violence against ethnic minorities
Denial of workers' rights
Forced labor, including forced child labor, by security forces and associated militias
Widespread child labor