HUMAN RIGHTS: ASSESSED ESSAY
Introduction
The modern notion of human rights was born in the direct aftermath of World War II. It is indeed with the discovery of the atrocities committed by the Axis forces that a strong "Never Again" political stream arose in the international community, culminating with the adoption in 1948 of the Universal Declaration of Human rights. Since that day, human rights have been established as a major and legitimate focus of international attention. In the half century since, hundreds of universal, regional or national agreements governing human rights issues have arisen. Yet, in the meantime, major breaches of human rights have been witnessed from South America (Chile, Argentina) to Far East Asia (North Korea, China) on what appears to be a worldwide scale. Even more frightening is the constatation that these breaches are often committed in or by states that are parties to one or more treaties on Human Rights. Such a situation could have been understood in the light of the statu quo existing during the Cold War, when the ideological division of the world was the first concern. But as stated by Farer & Gaer: "In the wake of the Cold War the UN has finally become an agent for democratisation and minority protection". This paradox existing between the growing importance of Human Rights and their constant breaches is made even more surprising by the fact that Human Rights became "in the century's finale a pervasive global cause, culminating in the most unusual of modern wars, the NATO intervention in Kosovo"1 and the American expeditions in the Middle East (Afghanistan and Iraq). As never before, the foreign political stage is seemingly dominated by claims for basic political, individual and even social and economical rights (with the growth of an anti-globalization movement). So strong is that tendency, that Human Rights offenses are now hunted down whether they are past (for example the attempt to bring Augusto Pinochet to justice) or more recent (in Rwanda and ex-Yugoslavia). One of the best examples of the importance of that concern is to be found in the development of the Belgian legal doctrine of universal competence for the Belgian courts. But the attempts to bring to trial actual leaders of different countries and the potential diplomatic clashes that would have resulted (in april 2003 a request was even brought against the U.S president Georges W. Bush) convinced the Belgian authorities to deprive that concept of substance by raising the level of requirements for such actions and overcomplicating the procedure.
The reason of the existing discrepancy between the position of the international opinion and the still going breaches of Human Rights mainly lays in the difficulties faced when it comes to enforce these human rights. As stated supra, perpetrators of Human Rights violations are often the countries that are bound by treaties to respect them or even that are at the origin of those regulations. Iraq, Rwanda and Yugoslavia had all ratified the Convention on the Prevention and Punishement of the Crime of Genocide, before being themselves the stages of such genocide. The USA and the United Kingdom themselves have often been pinpointed as perpetrators of gross breaches of Human Rights, in the penitentiary sector for example (the first one for the constant application of death penalty and the unfairness of the American judicial system, the second one for the detention conditions of Northern Irish prisoners).
Moreover, according to Oona Hathaway2 it is possible that countries with worse Human Rights practice are more inclined to ratify Human Rights treaties. "Ratification of a Human Rights treaty, after all, allows a government to send a message to the world that it is committed to the principles outlined in the treaty. This message may be honest and sincere. But as the examples of Iraq and Afghanistan suggest, if the treaty is poorly monitored and enforced, countries face little or no penalty for failure to match rethoric and action". This lack of enforcement comes in light with even more accuracy when it comes to policing the great powers in their misbehaviour: there is simply no possibility of forcing the USA, China, Russia, Great Britain or France into respecting their obligations.
Some explanations have been brought about the difficulties faced in the struggle for enforcing Human Rights amongst which:
- The reality of a consensus on Human Rights and the conflicts over them.
- The lack of strength of international law.
- The lack of transcription of the ratified treaties into national legislations and the current reliance on self-policing.
- The potential lack of coherence of the nations which gave birth to these principles.
Some solutions to the problem have already been found particularly with the growing influence of some effective regional agreements (the European Convention on Human Rights for example), the growing influence of the non governemental organizations (Amnesty International, Doctors without Borders) and the already quoted trials of war criminals from Kosovo and Rwanda. Nevertheless, these examples are exceptions in a world where Human Rights are hardly enforced.
I- Consensus and conflict over Human Rights
The notion of Human Rights has been presented either as an emanation of the modern western culture or as a concept as old as civilization itself. In her introduction3 Kirsten Sellars report that the idea of Human rights being such an old concept has been widely supported by those who have interest in the propagation of this notion. The common idea is to root Human Rights in the ancient Greece tradition, mistaking them for the concept of natural law. According to Harlan Cleveland4, "In the long history of civilization, they ...
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I- Consensus and conflict over Human Rights
The notion of Human Rights has been presented either as an emanation of the modern western culture or as a concept as old as civilization itself. In her introduction3 Kirsten Sellars report that the idea of Human rights being such an old concept has been widely supported by those who have interest in the propagation of this notion. The common idea is to root Human Rights in the ancient Greece tradition, mistaking them for the concept of natural law. According to Harlan Cleveland4, "In the long history of civilization, they [Human Rights] have to be listed as 'new business'. The old business was rights conferred or arrogated - granted by god, if that could be arranged, but if necessary seized by force and maintained by claims of superiority on account of rank, race, early arrival or self anointed citizenship. ... Not inalienable rights but the alienation of rights was the rule". As stated supra, the opposite conception of Human Rights is that they have arisen in response of the World War II and the horrors of the Nazi regime. Indeed, there was at the time a strong reaction against the idea of a global conflict taking place 20 years only after the devastating World War I. But whether recent or old, the concept of Human Rights has been developed in a world dominated by the occident and its civilization (the Universal Declaration of the Rights of Man has originally signed by only 58 countries with 48 affirmative votes). In fact, at this time the existence of colonial empires was reducing the world to these empires, the old European and Asian nations (China, Japan, etc...) and America.
It is normal then that Human Rights reflect "the profound moral and political reaction, particularly in Europe and America against the worst features of fascist regimes"5.
Here arises the first problem in enforcing Human Rights: are they or not of universal nature. If they are universal rights, they are the rights people simply have as human beings regardless of their nationality, citizenship, sex, race, occupation, etc... When facing criticism for their breach, China, for example, often gave as an answer that Human Rights were part of the occidental culture, and unknown to Chinese people. In an article about Human Rights and different cultures, Peter Jones6 states that to be plausible and appealing, a theory of Human Rights must accommodate that diversity. Without this accommodation, the theory cannot be put in practice. The author examines two different strategies. One can be called the continuous strategy and amount to uncover a core of rights that can be discovered in all cultures, in order to establish the parentality between all cultures and the concept of Human Rights. The second option is to disconnect Human Rights and preexisting cultures by giving the concept a foundation radically different from those cultures. In fact, this second fiction is about creating ex nihilo a set of beliefs common to all humanity. Whether it is the continuity or the discontinuity theory which might be favored it seems indeed impossible to reach the point of an efficient system of Human Rights enforcement without a real belief in the universality of those Rights.
Of course, it can be argued that such a belief already exists. After all, in 1978, the idea of creating an UN Human Rights Comissioner was approved by the General Assembly of the UN "to promote and strengthen universal and effective understanding and respect for human rights and fundamental freedoms"7. This appealing idea brought the different observers to reckon that such a stream of decisions should culminate in "a full International Bill of the Rights of Man; defining the substantive rights of all human beings as citizens of the worlds and partakers of its resources with correlative duties on states and other greater or lesser political authorities; limiting the governmental powers or political authorities to act or legislate to the contrary; conferring the right/power on aggrieved individuals to petition some UN organ to investigate and if need be pronounce on violations and propose redress; allowing recourse to the World Court for final adjudication; and empowering the Security Council in the last resort to execute decisions and judgments"8. Such an analysis seems today (and was already at the time as stated by Dowrick) overoptimistic. But the validity of such a course of action is indubitable, for it is envisaging a different way from self-policing in Human Rights enforcement. Only the realism of the proposition can be challenged: even with an enforcement body as deterrent as the UN Security Council, it is hardly possible to imagine what course of action can be planned against such Human Rights violators as China or Russia (also members of the Council).
As said by Karl Meyer "in the post-Cold War era, pivotal powers generally get a Human Rights pass: consider Turkey and the Kurds, China and the Tibetans, Russia and the Chechens"9. Even economical retaliation seems to be a remote threat facing the opportunity for the industrialized nations to conquer a 1.5 billion people market.
If conflicts over Human Rights are still raging, one must reckon that the consensus is nearly attained. Even the perpetrators of Human Rights violations are nowadays avoiding any criticism, reporting violations as "matters of internal affairs". Yet they do not seriously challenge the Human Rights principles of the Universal Declaration, aware that today public opinion no longer tolerates such official positions.
But as stated by Tom Campbell "the language of Human Rights carries great rethorical force of uncertain practical significance. This is both its persuasive strength and its legislative weakness"10. There is not a better way of underlining the second set of obstacles on the road to enforcement: the legal issues linked with the concept of efficiency of international law and the problems of transposition in national laws.
II- The hollow principle of international law in Human Rights.
To paraphrase Oona Hathaway International public opinion have often been lured "that (in the words of Columbia Law professor Louis Henkin) 'almost all nation observe almost all principles of international law and almost all of their obligations almost all of the times'"11.
This assertion can definitely be regarded as false when it comes to Human Rights. Examples can be found involving "almost" all the countries "almost" all of the times. It took America nearly forty years to ratify, with qualifying conditions the 1948 Genocide Convention. France has never transcripted in its national law the UN Charter for the Rights of Children (which has never been ratified by the USA). Last but not least, most of the genocides that have been perpetrated since the end of World War II, have taken place in countries party to the already quoted 1948 Genocide Convention (Rwanda, Yugoslavia, Iraq, etc...).
In fact, it seems impossible to imagine a way of enforcing Human Rights when one reckons that it is already impossible to enforce the principles of international law. Indeed, the respect of international agreements is completely left to the will of the nations parties to these agreements. The respect (or non-respect) of a signed treaty is a matter of sovereignty and no sanction can be envisaged but a military intervention violating this concept of sovereignty. This is also Carlos Santiago Nino's stance: according to this author the most serious limitation of the strategy of enforcing Human Rights is "that the still current conception of sovereignty of states impose severe restrictions on the obligations that governments accept by their commitment and on the forms of intervention available to external organs for investigating and punishing Human Rights violations"12. The conception of a potential international normative system has to clash with the ideal of self determination because there is no 'global civil society'. Or in Chris Brown's words "properly understood, 'civil society' requires an effective state, while 'global civil society' is characteristically seen as a substitute for such a political order.
Furthermore, it may be doubted that the mind-set required to make a civil society work actually exists in the world today"13. For that reason, the application of treaties in the different countries stayed a matter of self-determination and self-policing, leading, of course, to consequent opportunities of Human Rights breaches, and impeaching nearly all attempts in enforcing Human Rights.
III- Self-policing in enforcing Human Rights Law
"Washington can unilaterally proclaim a Pax Americana, dispatching marines or cruise missiles, when necessary, to rush in humanitarian aid, prevent massacres, and punish tyrants. A second option would be to heed George Kennan's advice: abjure interventionist meddling, address our own ills and lead by moral example"14. These are the two only choices left in an American dominated world relying on self-policing for Human Rights enforcement. Indeed, there is actually no real obligation weighting on states for enforcing Human rights but their good will to do so. And, of course, the perspective of an American led military intervention if the rogue state is weak enough to ensure prompt victory to the coalition. In such circumstances, there obviously is a violation of a state sovereignty. Moreover, the perpetrators of Human Rights violations might have the support of the majority of the local population (as in Hassan II's Morocco, for example).
At the same time, countries that are ratifying Human Right treaties may face less pressure to improve their Human Rights practices for those treaties "might allow some government to substitute words (in the form of ratification) for deeds, thereby slowing, rather than hastening, improvements in Human Rights"15.
There might be another way of enforcing Human Rights different than the reliance on the notion of self-policing, followed with military intervention in case of breaches. Especially if the fact that international support for Human Rights has always been declaratory more than contractual, is acknowledged. The international community "could, for the first time make a serious commitment to collective action, building on structures that already exist, and thereby give some meaning to the phrase 'international community'"16. An already working example of this concept is to be found in the European policy on Human Rights. These Rights are effectively enforced on the territory of the Union, not only because the EU was build by a bunch of democracies respectful of Human Rights but also because of the commitment of the nations, to be under the authority of a supra-national organ, gifted with real enforcement powers. The nations composing the EU are not only relying on self-policing anymore, but also gave an independent organ enough power to supervise this self-policing policy. On this model, an international system could be created, allowing for the first time an efficient system of Human Rights enforcement to arise.
But such an option requires to vast abandons of sovereignty to be easily accepted, especially for countries like the USA that are "used to lead the world in denouncing Human Rights violations but which behave like a rogue state in relation to international conventions"17.
"Avant de chercher la paille dans l'oeil du voisin, il faut savoir trouver la poutre dans le sien". This popular French proverb is a good illustration of such a situation. The only form of authority that ever got involved into enforcing Human Rights, is generally incarnated in countries that are not exempt of gross Human Rights violations18.
The reliance on self-policing is also raising a second issue linked with the unwillingness of government to give effect to treaties in their national legal order. In the vast majority of the democracies, treaties are "the supreme law of the land" (except maybe regarding to the theorical English doctrine of parliamentary sovereignty). But most of the times, treaties are deprived of legal effect for the citizen before any act of transcription in "the land of the law".
Some other times, the problem lays in incompatibilities between the common law and the Human Rights principles. As stated before, many states that have signed international agreements on Human Rights impede or prevent enjoying and enforcing Human Rights. In Germany or France, for instance, minors and people under guardianship do not have the right to sue for their Human Rights themselves. In Germany again, the evidence of Human Rights violations is sometimes missing because authorities are entitled by ordinary law to erase personnal data and files of the citizen, even against their will.
This inadequation of internal legal orders is a major issue when one realizes as L.J McFarlane that "there is no way in which Human rights violations can be redressed by an international court against a state party determined to brook no interference... Human Rights enforcements is essentially a matter of domestic politics rather than of international law"19.
IV- The lack of Coherence of the leading nations.
US ambassador Morris Abram once described the Universal Declaration of Human Rights and the idea of Human Rights as "little more than an empty vessel into which vague hopes and inchoate expectations can be poured", a "dangerous incitement," and even "preposterous". With as much disregard but much more objectivism, the soviet delegate Andrei Vyshinsky used to say the Universal declaration was "a letter to Santa Claus....Neither Nature, experience, nor probability informs these lists of 'entitlements', which are subjects to no constraint except those of the mind and appetite of their authors"20. Indeed, reports routinely pinpoint the promoters of Human Rights as perpetrators of consequent violations of those rights. Yet, there is no Human Rights enforcement system apart from the great powers, decisively the USA. Being judges and parties, these powers do little to comply with the international standards of Human rights in their behaviour.
In the Reagan era, the USA refused to obey the orders of the world court to withdraw from Nicaragua and pay reparations, on the basis its intervention in the country was military and not humanitarian, therefore contrary to Human Rights principles. But the American violations of Human Rights are not only occurring on the international stage. The American National Justice Commission reported the "role of the government and private industry in stoking citizen fear, exploiting latent racial tension for political purpose with racial [not to say racist of course] bias in enforcement and sentencing that is devastating black communities, creating a racial abyss and putting the nation at risk of a social catastrophe"21. Chomsky quotes the American criminologists describing the situation as "the American Gulag" or "the new American Apartheid". The statistics are indeed eloquent enough: there are more black males in prison than in University and African Americans are the majority of the American prisoners. America also maintained the black population in a dreadful system of segregation more than 20 years after the proclamation of the Universal Declaration, depriving part of its own population of its civil and political rights.
But America is not the only power disregarding Human Rights. The UK failed in complying with Human Rights when facing terrorism in Ulster, abusing of torture and inhuman conditions of imprisonment. France took at the end of 2002 a legislation banning mendacity and assimilating it to an offense (beggars are now facing huge fines or the risk of being jailed), decision that is dubitably concurring with the ideals of Human Rights.
The complete record of Human Rights abuses by those supposed to enforce and protect Human Rights is to long and fastidious to be given here, but these breaches are the perfect example that the moral example given by the powers is contestable. And without that moral example and a proper conduct in the matter of Human Rights, the very idea of a worldwide enforcement of Human Rights looks like an unreachable utopia.
Conclusion
Enforcing Human Rights is still a goal to be reached. Despite the existence of international criminal courts, born in Nuremberg and Tokyo, actually dealing with war criminals from Yugoslavia or Rwanda, this goal is far from being attained.
Nowadays, in a world rid of the Cold War, the enforcement of these Rights became the favourite excuse for war triggering, depriving this noble idea of its substance.
The inexistence of a global civil society, of independent organs in charge of the matter; the non-respect of the UN Charter and UN Human Rights convention; the contempt for the rules of international law or the wild behavior of the champions of Human Rights are all causes of the inexistence of a proper system for enforcing Human Rights. Moreover, the dramatic state of poverty in with the Third World is crawling, leading observer to say bluntly that in those countries, "the respect for Human Rights comes after the breakfast" is raising considerable obstacles for the implantation of such principles.
To conclude with, one must reckon that la raison d'état (the political imperatives) is too often interfering with the possibility of enforcing Human Rights.
This fact is to be regretted for those rights "which have priority over other rights may have an extensive core which is inviolable even in state of emergency"22.
Nevertheless, a practical example of Human Rights enforcement is to be found in the European experience. On this model, observers are often recommending the three following way of enforcing Human Rights:
- Customary international law based on protection established through the UN Charter.
- Universal treaty regimes collectively called the International Bill of Rights in some part reliant on enforcement by UN organs.
- Increasing of the influence of regional treaties as the ECHR.23
Karl Meyer, enforcing human rights, in www.worldpolicy.com.
2 Oona Hathaway, Global Legal Information & Human Rights in the 21st Century, in www.worldpolicy.com
3 Kirsten Sellars, The rise and rise of Human Rights, Sutton publishing, 2002.
4 Director of the institute of public affairs, University of Minnesota quoted in The rise and rise of Human Rights
5 F.E Dowrick, introduction in Human Rights problems, perspectives and texts, Saxon House, 1979, p.6.
6 Peter Jones, Human Rights and diverse cultures: continuity or discontinuity? In www.worldpolicy.com
7 UN Chronicle, January 1978, p 68 quoted by F.E Dowrick in Human Rights problems, perspectives and texts, Saxon House, 1979.
8 F.E Dowrick, introduction in Human Rights problems, perspectives and texts, Saxon House, 1979, p.22.
9 Karl Meyer, enforcing human rights, in www.worldpolicy.com
0 Tom Campbell, Realizing Human Rights in Human Rights: from rhetoric to reality, Blackwell, 1986, p.1.
1 Oona Hathaway, Global Legal Information & Human Rights in the 21st Century, in www.worldpolicy.com.
2 Carlos Santiago Nino, The Ethics of Human Rights, Clarendon Press, 1991, p.3.
3 Chris Brown, Cosmopolitanism, World citizenship and Global Civil Society, in www.worldpolicy.com
4 Karl Meyer, enforcing human rights, in www.worldpolicy.com
5 Oona Hathaway, Global Legal Information & Human Rights in the 21st Century, in www.worldpolicy.com
6 Karl Meyer, enforcing human rights, in www.worldpolicy.com.
7 Michael Ignatieff quoted in www.worldpolicy.com.
8 see Noam Chomsky, Rogue States, Pluto press, 2000, chapter 2.
9 L.J McFarlane, The theory and practice of Human Rights, Maurice Temple Smith, 1985, p. 12-13.
20 Both quoted by Noam Chomsky in Rogue States, Pluto press, 2000, chapter 9, p. 112-113.
21 Steven Donziger, The real war on crime: The report of the National Criminal Justice Commission, HarperCollins, 1996.
22 Tom Campbell, Realizing Human Rights in Human Rights: from rhetoric to reality, Blackwell, 1986, p.11.
23 in www.udhr.org
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