Unit 14 Human-rights law Key terms:

Cultural imperialism – the attempt to impose your own value system on others, including judging others by ho closely they conform to your norms.

Cultural relativists – Cultural relativism is the principle that an individual human's beliefs and activities should be understood in terms of his or her own culture. This principle was established as axiomatic in anthropological research by Franz Boas in the first few decades of the 20^th century and later popularized by students. Cultural relativism involves specific epistemological and methodological claims. Whether or not these claims necessitate a specific ethical stance is a matter of debate. This principle should not be confused with moral relativism.

European Commission for Human Rights – an institution of the Council of Europe, set up under the European Convention on Human Rights to examine complaints of alleged breaches of the Convention. It is based in Strasbourg

European Convention on Human Rights – an international agreement set up by the Council of Europe in 1950 to protect human rights. Under the Convention were established the European Commission for Human Rights and the European Court of Human Rights

European Court of Human Rights – an institution of the Council of Europe, set up to protect human rights in conjunction with the European Commission for Human Rights. The Court, based in Strasbourg, is called to give judgment in cases where the Commission has failed to secure a settlement

Human Right Committee – a separate body to the Human Rights Council (which replaced the Commission on Human Rights, under the UN Charter in 2006) with permanent standing, to consider periodic reports submitted by member States on their compliance with the treaty. Members of the Human Rights Committee are elected by member states, but do not represent any State. It is a body of 18 experts that meets three times a year for four-week sessions (spring session at UN headquarters in New York, summer and fall sessions at the UN Office in Geneva) to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights, and to examine individual petitions

Inalienable rights – The notion of inalienable rights was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being." Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter."

International Bill of Rights –an informal name given to two international treaties and one General Assembly resolution established by the United Nations. It consists of the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and Political Rights (1966) with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights (1966).1 The two covenants entered into force in 1976, after a sufficient number of countries had ratified them.

International Covenant on Civil and Political rights – The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of October 2009, the Covenant had 72 signatories and 165 parties.The ICCPR is part of the International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The International Covenant on Civil and Political Rights is monitored by the Human Rights Committee

Majoritarianism – The theory of democracy that holds that government decisions do or should represent the will of the majority

Racial segregation – Racial segregation is the separation of different racial groups in daily life. It may apply to activities such as eating in a restaurant, drinking from a water fountain, using a washroom, attending school, going to the movies, or in the rental or purchase of a home. Segregation is generally outlawed, but may exist through social norms. Segregation may be maintained by means ranging from discrimination in hiring and in the rental and sale of housing to certain races to vigilante violence (such as lynchings, e.g.) Generally, a situation that arises when members of different races mutually prefer to associate and do business with members of their own race would usually be described as separation or de facto separation of the races rather than segregation

Statutory rights – (sometimes also called civil rights or Legal rights) are rights conveyed by a particular polity, codified into legal statutes by some form of legislature (or unenumerated but implied from enumerated rights), and as such are contingent upon local laws, customs, or beliefs.

Tiananmen Square – a square in the centre of Beijing adjacent to the Forbidden City, the largest public open space in the world. In spring 1989 government troops opened fire there on unarmed pro-democracy protesters, killing over 2,500

Text 1 Power of shame

On the day the Universal Declaration was adopted, Andrei Vishinsky, representing the Soviet Union at the UN, scornfully dismissed it as just a "collection of pious phrases". Vishinsky had been the sly and brutal prosecutor at Stalin's Mos­cow show trials in the 1930s. For a while, it looked as if his cynicism might be justified.

During the cold war both the Soviet Union and America played a two-faced game on human rights, condemning each other for supporting oppressive governments even while themselves sponsoring dictatorships that regularly committed abuses. The Soviets tolerated no dissent, at home or in their sat­ellites in Eastern Europe. America's record abroad was not much better. As part of a worldwide cru­sade against communist oppression, it supported harsh right-wing regimes in Latin America and else­where. "He's a son-of-a-bitch, but he's our son-of-a-bitch," Franklin Roosevelt had said about one Cen­tral American dictator in the 1930s. That seemed to sum up the post-war American attitude as well un­til the late 1970s, when President Carter tried to turn human rights into a foreign-policy priority.

These attitudes among the superpowers dra­matically slowed progress on international hu­man-rights standards, and on mechanisms to apply them, but they did not stop it altogether. Debate about human rights in the UN General Assembly was highly partisan. Public criticism was generally confined to South Africa, Chile or Israel, which had few friends. The UN Commission on Human Rights was created in 1946 as the main vehicle for promot­ing international norms. But un members, jealous of their sovereignty, were reluctant to give it much of a role. After drafting the Universal Declaration, the commission spent the next 20 years preparing the International Covenant on Civil and Political Rights and the International Covenant on Eco­nomic, Social and Cultural Rights, the two treaties which flesh out the broad provisions of the declara­tion and commit governments to implementing them. These were originally supposed to follow soon after the declaration. The Commission was not even allowed to see the thousands of com­plaints which flowed into the UN each year, and it did no monitoring of its own. In 1970 it was at last authorized to investigate persistent human-rights abuses, but for years it could do this only in secret.

As the cold war waned, however, the UN system of human-rights monitoring expanded rapidly and, more importantly, became public. Inevitably, this has meant more bureaucracy.

Nevertheless, the system is not quite as be­wildering, nor as expensive, as it looks at first sight. Much of the monitoring work is done by unpaid experts who volunteer their time to investigate abuses around the world, with little staff support. Many are law professors or former judges partly subsidized by academic institutions or profes­sional groups. The UN spends less than 2% of its budget on human rights (not counting the much bigger amounts it spends on relief for refugees).

At the heart of the system is a rejuvenated Hu­man Rights Commission, whose deliberations and decisions are now public. Its annual meetings in Geneva each March are attended by hundreds of diplomats, NGO officials and campaigners. These meetings have become an arena for intense lobby­ing and deal-making.

Commission resolutions criticizing individual countries are often made for overtly political rea­sons. Governments with clout, such as China, are able to avoid criticism; those unable to marshal support, such as Cuba, fare less well. Indeed, the commission has never passed a resolution criticizing China's human-rights record, not even after the Chinese government sent tanks against pro-democ­racy protesters in Beijing's Tiananmen Square in 1989. In 1997 China waged a concerted diplo­matic campaign in Europe and America, including tours by Chinese leaders and quiet offers of trade deals, to dissuade countries from voting for a reso­lution critical of it.

The right to meddle

It would be easy to condemn such machinations as discreditable. But the very fact that a country such as China goes to great lengths to avoid criticism at the commission suggests that it matters. After decades of vehemently denying that other countries had any right to "med­dle" in its internal affairs, the Chinese government virtually conceded the point on October 5^th when it signed the International Covenant on Civil and Political Rights. This has given not only outsiders, but Chinese activists as well, a standard with which to measure the behaviour of the government, which should have a more difficult time explaining why it is not abiding by its own international commit­ment. In addition, once it ratifies the treaty, which it has promised to do, it will be required to submit periodic reports on its human-rights record to the treaty's monitoring committee, and to submit to a public grilling.

Not all the Human Rights Commission's work is so partisan. It also appoints "special rappor­teurs", experts who operate independently of their governments and with the authority of the UN be­hind them. They report on broad themes of concern such as torture, extrajudicial executions, arbitrary detention and religious intolerance, as well as in­vestigating conditions in particular countries. They take up individual cases directly with governments. This can sometimes bring results even in countries with poor records.

Nigel Rodley, the commission's rapporteur on torture since 1993, receives some 400-500 urgent ap­peals a year. Governments can ignore him if they wish, but most, he says, now respond in some way, if only with a blanket denial. They can also refuse to allow him to visit to investigate consistent allega­tions of torture, but give permission surprisingly of­ten. In 1998 Mr Rodley spent ten days in Tur­key investigating charges of widespread torture used against the Kurds. Sometimes government of­ficials have quietly encouraged his investigations even as their political bosses have issued denials. Perhaps his sharpest weapon is a report he delivers to the commission every year. This publicly pillo­ries governments which refuse to co-operate, or against which serious allegations have been raised.

Is it doing any good? Mr Rodley admits he does not always know whether he has helped any par­ticular individual, but he believes that such moni­toring has an effect. "The information gets to fam­ilies that someone outside is investigating or appealing to the government. Occasionally the pris­oner learns of this too. And I feel that somehow the drip, drip, drip of external demands that a govern­ment do something to stop things like torture will have an effect. History will see that people weren't totally forgotten. And those in positions of power can't say they didn't know." Most important of all, international scrutiny helps support people within the country who are fighting to stop abuses. "It's not the UN that can change things directly," says Mr Rodley. "It's groups in the country itself. Interna­tional monitoring gives these forces, both non-gov­ernmental and within government, some support." In addition to monitoring by the Human Rights Commission, countries that have ratified individ­ual UN treaties agree to deliver periodic reports (usually every five years) to panels of experts on their own compliance under each treaty. At a mini­mum, this encourages government officials to ex­amine their obligations and try to justify their own policies. The most important of these panels is the Human Rights Committee, the monitoring body for the International Covenant on Civil and Politi­cal Rights. Reports to the committee are often years late, and frequently consist of nothing more than descriptions of legislation or official waffle. But at its public meetings, held in New York and Geneva and attended by journalists and NGOS as well as representatives of other governments, committee members—often primed with information from NGOS—can pose difficult questions to officials.

Predictably, Algeria and Libya were given a rough ride from the committee in 1998. But even highly respectable developed countries have come in for criticism. After committee sessions, Canada and the Netherlands changed some of their laws, and Japan improved the treatment of prisoners. In 1995 the committee issued a critical report on the United States, citing the poor legal representation of indigent defendants, anti-gay laws, allegations of widespread police abuse, and the scope and imple­mentation of the death penalty. The world's sole su­perpower ignored the report, as it does most out­side criticism, but American human-rights campaigners, and other governments, took note.

Good old Europe

By far the most effective international human-rights regime is not part of the un at all, but the re­gional one which has developed since 1953 under the aegis of the Council of Europe. The European Convention on Human Rights is applied by the Eu­ropean Court of Human Rights in Strasbourg, whose judgments have acquired the force of law in most West European countries. In effect, the court has become the final court of appeal, and the Euro­pean Convention a bill of rights.

Although the court has no way of enforcing its decisions directly, it has never been openly defied by a government, and its rulings sometimes prompt changes of domestic legislation. For exam­ple, after losing cases before the court, Britain and France changed their laws on telephone tapping, Britain revised its military court-martial process, Germany gave non-German-speaking defendants the right to an interpreter, Ireland legalized homo­sexuality, and Austria abolished a state monopoly on cable and satellite television, which had been criticized as a restriction on the freedom of expres­sion. The court's decisions are now accepted as the ruling precedent on human-rights issues for the Eu­ropean Union's Court of Justice.

It could be argued that the European Conven­tion system has been so successful because it oper­ates in a part of the world where human rights are already widely respected. This is partly true, but it does not mean that the system has not been useful. The standards set by the European Court of Human Rights helped Spain, Portugal and Greece to estab­lish liberal democratic governments in the 1970s, as well as encouraging governments even of estab­lished democracies, such as Britain, France and It­aly, to tread more carefully.

Now the court's remit extends from Lisbon to Vladivostok. Since 1990, Russia and 17 other ex-communist countries have been admitted to the Council of Europe and have ratified the European Convention, bringing the number of members to 40. All members have formally accepted the juris­diction of the court and the right of individuals to appeal to it once all appeals in their domestic courts are exhausted. Already hundreds of cases have been filed by individuals in Poland, the Czech Republic, Hungary and Romania. Hundreds more are expected over the next few years from Russia and the Ukraine, which only recently ratified the convention. A stream of cases still comes from West European countries as well. To cope with the flood of new cases, as well as an existing backlog—liti­gants have to wait up to five years for a decision— the court in November streamlined its procedures and absorbed the European Commission on Hu­man Rights, a separate body which had previously screened cases before referring them to the court.

It remains to be seen whether the European Convention system can help Eastern Europe estab­lish as firm a rule of law and respect for human rights as in Western Europe. It will be a stern test. One of the new court's main challenges, says Nicol­as Bratza, a judge who sits on it, will be "not to let standards be watered down to suit our new mem­bers. The court must have the courage of its convic­tions and find violations where they exist."

There are severe limits to what any international human-rights regime – monitoring, self-reporting on compliance with treaties, or judicial – can achieve on its own. In emergency situations, as in the former Yugoslavia or Rwanda, other governments must take the tough political decisions on whether to intervene. Monitors can only issue warnings. A government determined to crush op­position is unlikely to heed panels of experts, moni­tors or distant judges. Rogue states such as Iraq, Ser­bia or Myanmar are beyond their reach.

Yet even in these countries, the government is not the only actor. Opposition groups and victims can be encouraged by the knowledge that the out­side world is watching. Sometimes this can lead them to miscalculate the willingness of other coun­tries to intervene, as the Hungarians tragically did in 1956. Nevertheless, outside scrutiny more often acts as an antidote to despair and a constraint on the opposition's own actions than a spur to abor­tive revolt. International monitoring also provides human-rights NGOs with important forums in which to publicize and document abuses. More­over, few governments are as vicious, or as isolated, as Iraq's or Myanmar's present ones. Most will go some way to avoid international disapproval. It is "the power of shame that lies at the heart of investi­gatory and reporting mechanisms," says Jack Don­nelly, the author of a wide-ranging examination of international human-rights practices. Shame may not be as solid as a policeman's billy club, but some­times it can be more effective.

Comprehension