The Role of Human Rights in Foreign Policy, 3rd Edition

The Role of Human Rights in Foreign Policy Third Edition Peter R. Baehr and Monique Castermans-Holleman The Role of H...

Author: Peter R. Baehr | Monique Castermans-Holleman

53 downloads 925 Views 536KB Size Report

This content was uploaded by our users and we assume good faith they have the permission to share this book. If you own the copyright to this book and it is wrongfully on our website, we offer a simple DMCA procedure to remove your content from our site. Start by pressing the button below!
Report copyright / DMCA form

DOWNLOAD

The Role of Human Rights in Foreign Policy Third Edition

Peter R. Baehr and Monique Castermans-Holleman

The Role of Human Rights in Foreign Policy

Also by Peter R. Baehr POLICY ANALYSIS AND POLICY INNOVATION (editor with Björn Wittrock) THE NETHERLANDS AND THE UNITED NATIONS: Selected Issues (editor with Monique Castermans-Holleman) THE UNITED NATIONS: Reality and Ideal (with Leon Gordenker) THE UNITED NATIONS IN THE 1990s (with Leon Gordenker) HUMAN RIGHTS: UNIVERSALITY IN PRACTICE HUMAN RIGHTS IN THE FOREIGN POLICY OF THE NETHERLANDS (with Monique Castermans-Holleman and Fred Grünfeld)

The Role of Human Rights in Foreign Policy Third Edition Peter R. Baehr Honorary Professor of Human Rights, Utrecht University

and

Monique Castermans-Holleman Assistant Professor of Human Rights and Foreign Policy, Utrecht University

Third edition © Peter R. Baehr and Monique Castermans-Holleman 2004 © Peter R. Baehr 1994, 1996 Foreword © Peter Kooijmans 2004 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First Edition 1994 Second Edition 1996 Third Edition 2004 First published 2004 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 1–4039–0463–4 hardback ISBN 1–4039–0464–2 paperback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Baehr, P. R. (Peter R.) The role of human rights in foreign policy / Peter R. Baehr and Monique Castermans-Holleman ; foreword by Peter Kooijmans. – 3rd ed. p. cm. Includes bibliographical references and index. ISBN 1–4039–0463–4 (cloth) – ISBN 1–4039–0464–2 (paper) 1. Human rights. 2. International relations. I. CastermansHolleman, Monique C. II. Title. K3240.B34 2004 341.4⬘8—dc22 10 13

9 12

8 11

7 6 10 09

2003065251 5 08

4 07

3 06

2 05

1 04

Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

Contents

Foreword

viii

Preface

x

Preface to the Second Edition

xi

Preface to the Third Revised Edition

xii

1 Introduction Human rights as a part of foreign policy Human rights Rights of the individual Government abstention Categories of rights Hierarchy of human rights Vertical and horizontal effect Human rights and the international context The period before 1945 The Cold War The 1980s and 1990s Human rights and the national context Views regarding the role of morality and human rights in international politics Small states and superpowers Conclusion

1 1 3 4 5 6 8 9 10 10 12 15 18

2 Contemporary Issues Introduction The universal character of human rights Collective rights Economic, social and cultural rights Combating impunity Truth and reconciliation commissions Conclusion

23 23 24 28 32 36 38 42

v

18 20 22

vi

Contents

3 Dilemmas of Foreign Policy Introduction Conflicting policy goals Peace and security Economic relations Development cooperation Other dilemmas Selectivity Consistency Effectiveness Joint activities Conclusion

45 45 47 47 51 56 63 63 64 65 66 67

4 Policy Instruments Introduction Diplomatic means Economic means Economic sanctions Development aid Military means: intervention for humanitarian purposes Apartheid by way of example Conclusion

69 69 70 73 73 77 78 86 87

5 Actors: States and Intergovernmental Organizations Introduction States The United States The Netherlands International organizations The United Nations The Council of Europe The European Union The Organization for Security and Cooperation in Europe The Organization of American States The African Union Conclusion

89 89 90 90 95 101 101 105 107 108 110 111 113

6 Non-state Actors Introduction

115 115

Contents vii

Non-governmental organizations Multinational corporations Other non-state actors Conclusion

116 122 126 128

7 Concluding Observations

129

Appendix: Universal Declaration of Human Rights

133

Notes

139

Bibliography

159

Index

161

Foreword Much has changed in the field of human rights and foreign policy during the last decade. The long period of confrontation between East and West, during which the human rights issue played a preponderant and highly politicized part, has disappeared. The post of a United Nations High Commissioner of Human Rights, which for decades had been hotly disputed, was created and gave a new face to the universality of human rights. It seemingly put an end to the controversy about the universal character of human rights as opposed to cultural relativism, a controversy that dominated the World Conference of Human Rights held in 1993. International tribunals for the prosecution and punishment of massive human rights violations perpetrated in the former Yugoslavia and Rwanda were established and the long-cherished dream of an International Criminal Court came true in 2003 when the new judges were sworn in at a ceremony in the Hall of Knights in The Hague. Much may have changed, much regrettably has stayed the same. Violations of human rights are still rampant and are openly perpetrated or are wilfully condoned by State authorities. An active policy – either bilaterally or multilaterally – to stop and punish such violations is as necessary as it was in the past. An ever-increasing number of monitoring mechanisms have been established in the course of time, but the political will of the community of States to give a vigorous and meaningful follow-up to their findings and recommendations is still sadly inadequate. But reprobation, necessary though it is, is in itself not sufficient to make a human rights-oriented foreign policy effective. As important is the rendering of assistance and of advisory services, in particular in the case of countries where authoritarian and dictatorial regimes have made place for democratically elected governments which have committed themselves to the rule of law. For it should always be kept in mind that respect for human rights is not only a question of political will; good governance, which is premised on the rule of law, asks for a structural approach and for long-term measures. viii

Foreword ix

Professor Baehr and Dr Castermans have meticulously scrutinized the various elements that determine foreign policy in the field of human rights. In doing so they have also considered other factors and interests that determine foreign policy. At a time when there are new challenges, but at the same time reasons for serious concern, their book makes thought-provoking reading for all those who have committed themselves to the cause of human rights. DR. PETER KOOIJMANS Minister of Foreign Affairs of the Kingdom of the Netherlands (1993–94)

Preface This book is about the relationship between human rights and foreign policy. Part I discusses the relationship in general; Part II deals with a number of specific countries and regions. The perspective of this book is a blend of realism and optimism. Realism means recognition of the fact that human rights are by no means the only consideration guiding foreign policy, plus a full awareness of the fact that human rights are still being violated in many parts of the world. More optimistic is the assumption of the universality of international human rights standards, or of at least a growing consensus in that direction. Non-governmental organizations play a significant role in this. Though written from a ‘pro human rights’ point of view, a genuine effort has been made to avoid subjective bias in the treatment of the subject. The personal views of the author are expressed in the concluding chapter. The basis for this book was laid during a fellowship at the Netherlands Institute for Advanced Study (NIAS) in Wassenaar in the 1980s, which led to the publication of Mensenrechten: Bestanddeel van het Buitenlands Beleid, published in Dutch in 1989 by Boom Meppel. Boom has graciously given permission to use the original Dutch text as a basis for this book. The text has been fully revised and updated. For obvious reasons this is especially true for Chapter 8 which deals with the former Soviet Union. Saskia Bal of the Netherlands Institute of Human Rights (SIM) helped in collecting the necessary source material, while Annelies Bos, Nelki Lauret and Jacqueline Smith, also of SIM, were most helpful in the preparation of the manuscript. I also want to thank Ineke Boerefijn, Monique Castermans, David Forsythe, Wolfgang Heinz, Johannes van der Klaauw, Yvonne Klerk, Cecilia Medina, Sally Morphet, Tiemo Oostenbrink, Alfred Pijpers, William Wallace and Leo Zwaak, who read parts of the manuscript. The full responsibility for the use of the commentary and the source material rests of course solely with the author. Heemstede, the Netherlands, August 1993

PETER R. BAEHR

x

Preface to the Second Edition This second edition of The Role of Human Rights in Foreign Policy has been marginally revised and brought up to date. The section of European cooperation has been more substantially revised. New developments since August 1993, such as the appointment of the United Nations High Commissioner for Human Rights, the coming into force of the Maastricht Treaty on European Union and the renaming of the Conference into the Organization for Security and Cooperation in Europe, have been covered. A number of new references have been added. As this revision is being completed, it is obvious that human rights remain very much on the international political agenda. Political developments such as the sad events in the former Yugoslavia and in Rwanda belong very much to the themes covered in this book. It is tragic but true that the international community has not yet been able to find effective ways of preventing or solving gross human rights violations. The activities of non-governmental organizations and of international governmental agencies to combat violations remain as necessary as ever. Saskia Bal and Maaike Hogenkamp of the Netherlands Institute of Human Rights (SIM) were of great help in collecting and bringing up-to-date source material. I also want to thank Ineke Boerefijn, Johannes van der Klaauw and Cecilia Medina who checked and commented on parts of the revised text. The responsibility for the final result remains with the author. Heemstede, the Netherlands January 1996

PETER R. BAEHR

xi

Preface to the Third Revised Edition This revised edition is very much the result of a joint effort. Both authors were engaged in the revision of the entire text of the previous editions. The second author has profited from her experience in using the text in a human rights course for graduate students at Utrecht University. A major change is that the ‘country chapters’ (Part II) that dealt with the United States, the Soviet Union and its Successors, Western Europe, the Third World and the Netherlands have been omitted, as they tend to become too quickly outdated. The ‘thematic’ chapters have been rewritten and re-organized. They contain illustrations from state practice, especially the United States and the Netherlands. Subjects that were added for separate treatment include: collective rights, economic, social and cultural rights, combating impunity, multinational corporations and other non-state actors. We thank David Forsythe and Fred Grünfeld who read and commented on parts of the text. We also thank our colleagues at the Netherlands Institute of Human Rights (SIM) for providing us with an atmosphere of critical, yet always compassionate comment. Needless to say, the full responsibility for any errors or omissions rests fully with us. Heemstede/Leiden, the Netherlands June 2003

PETER BAEHR/ MONIQUE CASTERMANS-HOLLEMAN

xii

1 Introduction

Human rights as a part of foreign policy In the last fifty-odd years many governments adopted, at least in theory, the notion of human rights as a guiding principle for the treatment of their nationals. In addition, governments also tried to influence the human rights situation in other countries. The then twelve member-states of the European Union (EU), for example, condemned the massacre that took place in June 1989 on Tianammen Square, Beijing. In a statement they urged the Chinese authorities to stop the use of force against civilians. Several weeks later, the Twelve adopted such measures as the interruption of military cooperation with China, an arms embargo and the postponement of several development cooperation projects. Although relations were normalized after some time, the member-states of the European Union continued to express concern with regard to the human rights situation in China in specific démarches and in meetings of the United Nations Commission on Human Rights. Another important instrument used by the member-states of the European Union to improve the human rights situation in China was the European Union–China dialogue. In this dialogue, human rights issues were discussed between representatives of the Chinese ministry of foreign affairs and Chinese academics and their European counterparts.1 The international human rights standards that have been developed in the last decades, serve as a guideline for governments on how to treat their own nationals. However, it is now commonly accepted that the way in which human beings are treated, is a 1

2


legitimate concern of all states. Therefore, human rights have also become part of the foreign policy of many countries. In today’s era of globalization, the intensity of activities that transcend national borders has greatly increased. Diplomats send notes, attend meetings, take part in dialogues and introduce resolutions in order to implement the foreign policy of their country or their group of countries. But what is foreign policy? The international relations specialist K.J. Holsti has defined foreign policy as ‘ideas or actions designed by policy makers to solve a problem or promote some change in the policies, attitudes, or actions of another state or states, in nonstate actors (e.g. terrorist groups), in the international economy, or in the physical environment of the world’.2 Referring to human rights, one can describe foreign policy as activities by policy makers to influence another state or group of states so that they may improve the respect for human rights. Human rights have a place of their own in foreign policy. More traditional objects of foreign policy, such as the protection of national security or the promotion of foreign trade, are based on material interests of the state concerned. Human rights differ from these objectives of foreign policy in that they do not refer to such material interests. Governments that want to promote human rights abroad do not set themselves an easy task. They have to face difficult choices of policies and priorities. Raising human rights issues may lead to intensive discussions and even tensions with other countries. The Chinese authorities, for example, accused the EU countries of intervention in internal affairs and postponed economic relations with several EU member-states in the second part of the 1990s. One can ask why governments decide to include the promotion of human rights among their foreign policy objectives. What makes human rights an issue in world politics? Some authors argue that it is in the national interest of liberal democracies to export their norms and values, including human rights norms. Order and peace in the world would be stimulated by the dissemination of the notions of liberty and democracy all over the world. Attention for human rights in world politics would add to the dissemination of these notions. Samuel Huntington has drawn attention to the fact that the policies and action of the United States, the major Western European powers and international institutions helped to bring democracy to Spain and Portugal, many Latin American countries,

Introduction 3

the Philippines, South Korea and Eastern Europe.3 Others are of the opinion that all persons have a fundamental drive to be respected. The process of history would drive persons towards acknowledgement of human rights, since the ideal of human rights contributes to human dignity.4 Governments may best legitimize their power by respecting human rights. A third explanation for the attention paid to human rights in world politics has to do with the fact that there are so many human rights treaties and agencies by now, that attention for human rights in world affairs cannot be reversed.5 Human rights have become the subject of complaint procedures, and reporting procedures, and bilateral and multilateral governmental debates in such a way that it has become almost impossible to ignore the notion of human rights in international politics. Today, much lip service is paid to the notion of human rights. At the same time, human rights are being violated all over the world. Human rights are a matter of law; they are codified in many international documents and explained by international lawyers, the United Nations treaty bodies and regional supervision bodies. However, human rights have increasingly become a matter of politics as well. In this book we will pay attention to the relationship between human rights and foreign policy. Although the issue of human rights has received a place of its own in international politics, the amount of attention paid to this issue differs from time to time and from government to government. Hereafter, attention will be paid to developments in the international order that are relevant to the notion of human rights as part of foreign policy. Furthermore, national variables that might be of influence regarding the place of human rights in foreign policy will be discussed. Before we go deeper into the relationship between human rights and international politics, we will discuss briefly various aspects of the concept of human rights.

Human rights Human rights are internationally agreed values, standards or rules regulating the conduct of states towards their own citizens and noncitizens. Human rights are, in the words of the Preamble of the Universal Declaration of Human Rights (UDHR): ‘a common standard of achievement for all peoples and all nations’. These rules,

4


which states have imposed upon themselves, serve to restrict the freedom of states to act towards their entire population: citizens as well as non-citizens, men as well as women, adults as well as children, whites as well as non-whites, believers as well as non-believers, married persons as well as the unmarried, heterosexuals as well as homosexuals. This situation is different from the past, when the states, or rather the princes, were absolute sovereigns who could treat their subjects in any way they wanted. Nowadays, human beings have rights: human rights. Our purpose is not to give an exhaustive survey of all existing definitions. Many of those are of a rather abstract nature. The following examples will illustrate this point. The political philosopher Maurice Cranston refers to human rights as ‘something that pertains to all men at all times. Therefore, it cannot be justified in the way we justify rights that are earned or are acquired by the enactment of special roles; human rights are not bought, nor are they created by any other specific contractual undertaking (…) They belong to a man simply because he is man.’6 The late political scientist Hedley Bull called human rights ‘rights attaching to human beings as such, rather than to this or that class of human beings. They are thought to be enjoyed by all human beings, to be enjoyed by human beings only and to be enjoyed by them equally.’7 For our purposes it is sufficient to note that the subject refers to rights that belong to human beings – rights that have a status of their own. They are considered to be of greater importance than other rights, they are inalienable and equally applicable to all. For that reason they are called human rights or (formerly) rights of man. Rights of the individual ‘The rights of man, human rights, or fundamental rights, are names given to those elementary rights which are considered to be indispensable for the development of the individual.’ 8 Thus begins the memorandum, Human Rights and Foreign Policy, which was published in 1979 by the Dutch ministry of foreign affairs. With the cited text the ministry made a commendable effort at clarifying its views on the subject; it opted for emphasizing the rights of individuals. By way of commentary to the quoted definition, the Dutch government has noted that there are certain rights that are exercised by groups of people. By way of example, reference was made to the right

Introduction 5

of association and the right of assembly, the right of ethnic and cultural minorities to preserve their own language and culture and the right of peoples to self-determination. In the view of the Dutch foreign ministry, the reason for recognizing self-determination as a human right is that its realization is regarded as an essential precondition for the development of the individual in a manner worthy of human dignity.9 This emphasis on the individual represents a rather typical western approach to the concept of human rights. We shall return to this when we will discuss the subject of cultural relativism (Chapter 2). At this stage it should be emphasized that there is another view that holds that collective rights derive their value from the collectivity as such and therefore need not necessarily serve the development of the individual. Thus it is no accident that the most important African human rights document is called ‘African Charter on Human and Peoples’ Rights’ [emphasis added]. We will return later to the consequences of this view. Here we limit ourselves to noting that the development of the individual provides an important background to the notion of human rights, but not necessarily the only one. Government abstention The fundamental rights and freedoms emphasize the need for government abstention with regard to the rights of the individual. A government is not allowed to torture and should not allow its servants to do so. It may not interfere in the right of people to associate and to assemble freely; it may not interfere in the freedom of the press and freedom of expression. Nor may it destroy houses or prevent people from having access to adequate food. But that is not the whole story. Sometimes, a government must do something in order to guarantee that the rights and freedoms can actually be exercised. For example, the right to a fair trial can only be realized if there are sufficient trained lawyers to conduct such trials and if the judicial authorities have the necessary technical means at their disposal. Sometimes, the freedom of assembly can only be exercised under police protection against political opponents. The right to participate in the government of one’s country, ‘directly or through freely chosen representatives’ (UDHR, article 21) requires the organization of free and secret elections by the government. Training facilities, libraries and other provisions will normally be supplied by the government. Full government abstention is, in other words, not

6


enough to guarantee respect for these rights and liberties. The opposite may be true. In the case of social and economic rights, the need for government intervention is even greater. The realization of such rights as the right to work, the right to education, the right to medical care and the right to social security are nowadays unthinkable without some measure of government involvement. There may be political differences of view about the extent of this government involvement, but the nineteenth-century idea of the ‘night watchman state’ has been abandoned. Categories of rights Human rights literature makes a distinction among different categories of rights. Usually, a distinction is made between civil and political rights (classical rights) and economic, social and cultural rights. Most civil and political rights are rights that restrict the power of the state in respect of the individual. The UDHR contains the following civil and political rights: ● ● ● ● ● ● ● ● ● ● ●

the right to life, liberty and security of person (article 3); the prohibition of slavery (article 4); the prohibition of torture (article 5); the prohibition of arbitrary arrest, detention or exile (article 9); the right to a fair trial (article 10); the right to freedom of movement (article 13); the right to property (article 17); the right to freedom of thought, conscience and religion (article 18); the right to freedom of opinion and expression (article 19); the right to freedom of assembly and association (article 20); the right to participate in the government of one’s country (article 21).

Economic and social rights are usually rights that create conditions necessary for human development. The UDHR also mentions some important social and economic rights: ● ●

●

the right to work (article 23); the right to an adequate standard of living, including food, clothing, housing and medical care (article 25); the right to education (article 26).

Introduction 7

Cultural rights include the right to participate in the cultural life of one’s community, to share in scientific advancements and the right to the protection of the moral and material interests resulting from one’s scientific, literary or artistic production (article 27). These rights, included in the UDHR, have been elaborated in two legally binding international treaties which were adopted by the General Assembly in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They differ from the Universal Declaration in that they do not include the right to seek asylum, the right to nationality and the right to property. The ICCPR adds to the UDHR that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted. The covenants are more detailed than the Universal Declaration and contain a number of specific restrictions. Both came into force in 1976. The ICCPR has now (spring 2003) been ratified by 149 states, the ICESCR by 146 states. Both covenants mention explicitly in article 1 the right of all peoples to self-determination. This right belongs to the category of collective rights. These collective rights have received increasing attention in recent years. Such rights are the following: ● ● ● ● ●

the the the the the

right right right right right

to to to to to

development; peace; a clean natural environment; one’s own natural resources; one’s own cultural heritage.

The last two rights are usually considered to be part of the common heritage of mankind. Some of these collective rights, which have been mainly emphasized by the former communist and the Third World states, are rather controversial in the eyes of the west. They have been criticized for their vagueness and lack of clarity. Take, for example, the right to peace; most people will be in favour of an abstract notion of peace, but that notion acquires real meaning only when questions are answered such as: peace under what circumstances and at what price? It is moreover unclear who could exercise

8


such a right to peace – individuals, groups or states – and how it can be enforced. On the other hand, Katarina Tomaˇsevski has a point, when she argues that the conception of peace as a human right might help in ‘raising public awareness that everyone has a stake in peace-keeping, widening public support for disarmament policy’.10 Another classification used is the division into first, second and third generation rights. First generation rights include civil and political rights; second generation rights include economic, social and cultural rights, while the third generation rights refer to collective rights. The term ‘generations’ is somewhat unfortunate. It suggests a succession of phenomena, whereby a new generation takes the place of the previous one. That is, however, not the case with the three ‘generations’ of human rights. On the contrary, the idea is rather that the three ‘generations’ exist and be respected simultaneously. Finally, there is the curious phenomenon that one particular right – that of self-determination – belongs both to the first and the second category. It is mentioned in the ICCPR and in the ICESCR. It is also an example of a collective or group right. The reason for its being mentioned is that the African and Asian states, which already were in the majority when the two treaties were adopted by the General Assembly in 1966, wanted in this way to emphasize the importance of this right. Hierarchy of human rights It is not common practice to put human rights in any hierarchical order. At the United Nations it is even frowned upon to call certain human rights more important than others. Nevertheless, there clearly exists some kind of difference among them. Thus there are rights which, according to article 4 of the ICCPR, may not be derogated from, even in a state of public emergency. Such rights include the protection of the right to life, the prohibition of torture, the prohibition of slavery and the freedom of thought, conscience and religion, but none of the social and economic rights. However, other human rights treaties name other rights as ‘non-derogable’. In this context it should be mentioned that international experts who met in Syracusa, Italy in 1984, tried to further define the conditions and grounds for permissible limitations and derogations of human rights. The point of departure was that such conditions and grounds should themselves be clearly defined and strongly limited.11

Introduction 9

So far, these proposals have not been put in an international legally binding treaty. Another useful distinction is that between principal rights and other rights. Principal rights are rights that are necessary for a dignified human existence and which therefore should receive absolute protection. Among such principal rights are the right to life and personal integrity, which includes freedom from slavery, servitude and torture, arbitrary arrest, discrimination and other acts that violate human dignity. Freedom of religion and freedom of expression are also considered as principal rights. Some writers include among the principal rights, the right to adequate food, clothing, housing and medical care. The distinction between principal rights and other rights may be of importance to policy making. A government may give a sharper reaction, if it is confronted by a violation of principal rights elsewhere. This calls for a clear and sharply delineated definition of such rights. If too many rights are considered to be principal rights, the concept is in danger of losing its significance. This is called inflation of terms.12 Vertical and horizontal effect So far, we dealt with human rights in a ‘vertical’ meaning, that is, to protect individuals or groups against unjust government interference. There is, however, also a ‘horizontal’ meaning that refers to relations among citizens. In such cases, it is the task of the government to protect the individual against violations of his rights by others. In the memorandum of the Dutch ministry of foreign affairs, cited before, the example is given of the right to life and the right to liberty of person that implies that the government must endeavour to protect people against homicide and deprivation of life by their fellow human beings. ‘In more abstract terms it can be said that the liberty of every individual has its bounds at the line where the exercise of such liberty would constitute a violation of the liberty of others.’13 In foreign policy this horizontal effect is less important than the vertical one, except in the case that a government has consciously failed to give certain individuals such protection or when it helps directly or indirectly such violations of human rights in its own country or abroad. This happens, for instance, in the case of so-called

10 The Role of Human Rights in Foreign Policy

‘death squads’ which eliminate political opponents under direct instructions of a government (‘vertical effect’) or with its tacit consent (‘horizontal effect’).

Human rights and the international context The period before 1945 The Treaty of Westphalia (1648) is usually considered to be the beginning of the modern European state system. Centrally controlled and administered national states came into being at that time. Although the sovereign possessed absolute power over his territory and his subjects and no other state was allowed to interfere in the domestic affairs of that state, sovereignty was not absolute. The Dutch people had already acknowledged in 1581 ‘that God did not create the subjects for the benefit of the Prince, to do his bidding in all things whether godly or ungodly, right or wrong, and to serve him as slaves, but the Prince for the benefit of the subjects, without which he is not Prince’.14 It took, however, until the eighteenth century before individual rights were codified. The two most important basic documents are the Virginia Bill of Rights of 1776 that was incorporated in 1791 in the US Constitution, and the French Declaration of the Rights of Man and Citizen of 1789. Both documents contain a list of human rights in the sense of individual liberties. Many of these rights are based on the writings of political philosophers such as John Locke, Montesquieu and Jean-Jacques Rousseau.15 At the time, man was regarded as being endowed by nature with certain inalienable rights that could be invoked against his own government. It was not common practice then, to interfere in what was seen as the domestic affairs of another state in order to uphold these rights. After a period of almost continuous wars, European governments assembled in Vienna in 1814. Since that time they have assembled every now and then to maintain peaceful relations. This ‘Concert of Europe’ was a first attempt to institutionalize the international system and to ban war as an instrument of international politics. Former US Secretary of State, Henry Kissinger, has observed that ‘this unique state of affairs’ was not only the result of a well-designed balance of power, but also of ‘a shared sense of justice’.16 In this period of relative stability and peace, the Hague Peace Conventions were organized; the first in 1899, the second in 1907. At these conferences,

Introduction 11

a first step was taken in the development of humanitarian law (adoption of rules concerning weapons to be used in warfare). After the First World War, new initiatives were developed to organize international relations more peacefully such as the founding of the League of Nations. Within the League’s framework, arrangements were made to protect the minorities that resulted from the new frontiers drawn in Europe at the end of the war. Provisions to protect the right to freedom of religion, to speak their own language and to protect the minority’s own religious and educational establishments, were adopted. In addition, steps were taken to provide international supervision regarding the rights of these minorities. It was the first time in human rights history that provisions creating obligations of international concern were adopted.17 In other areas too, states committed themselves by adopting international regulations to respect the rights of their own citizens. The International Labour Organization drafted a number of workers’ rights conventions, such as the Convention Concerning Forced Labour (1930). As a reaction to the outrageous crimes against humanity committed by the National-socialists in Germany between 1933 and 1945, the drafters of the United Nations Charter decided to pay attention to human rights. The torture and killing of more than six million Jews, gypsies, homosexuals and political opponents was violation of fundamental human rights of the largest kind in modern times. The preamble of the Charter of the United Nations mentions explicitly the notion of fundamental human rights. Article 1, paragraph 3 calls as one of the purposes of the United Nations: ‘to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’. Thus a first step was taken in a long process to develop a body of human rights law. In addition, the UN Charter proclaimed the protection of human rights a matter of international concern. The way in which a government treats its nationals was no longer seen as a matter of national sovereignty. On the basis of articles 55 and 56 of the UN Charter, in which it is stated that the United Nations shall amongst others promote universal respect for human rights and that all members pledge to take joint and separate action to achieve this purpose, it was commonly accepted that the traditional principle of national sovereignty had been limited.


The Cold War Since the founding of the United Nations, a great deal of standard setting has been achieved. In 1948, the General Assembly adopted the UDHR. Rights included in the UDHR have been elaborated in the ICCPR and the ICESCR (1966). In the period under consideration, the UN human rights catalogue was further developed in the International Convention on the Elimination of All Forms of Racial Discrimination (1965) and the Convention on the Elimination of All Forms of Discrimination Against Women (1979). Furthermore, nonbinding declarations, principles and guidelines were adopted such as the Standard Minimum Rules for the Treatment of Prisoners (1955). In addition to the codification of human rights norms, supervision procedures were developed in this period. Some procedures are linked to the specific treaties (so-called treaty-based procedures), others were developed in the context of the UN Commission on Human Rights (Charter-based procedures). By way of example we mention the ‘1235 procedure’, giving the Commission the possibility to deal with violations in specific countries. The development of norms and supervision procedures was not limited to the United Nations. Also in the context of regional forums, human rights norms were codified; in Europe, the Convention for the Protection of Human Rights and Fundamental Freedoms was adopted in 1950 and supplemented in 1961 by the European Social Charter. The American Convention on Human Rights was adopted in 1969 and the African Charter on Human and Peoples’ Rights in 1981. Attention for the well-being of human beings in other countries resulting from the obligations included in the aforementioned documents was a new phenomenon in international politics. International politics and in particular the Cold War marked the discussions on human rights, as became clear soon after the Second World War. The Cold War, the ideological and political struggle between the United States and other western liberal countries on the one hand and the Soviet Union and its allies on the other hand, shortly after the Second World War, heavily influenced discussions in the field of human rights. The discussion focussed mainly on the position of the individual. In the western approach, the individual has certain fundamental rights to be respected by the government. The MarxistLeninist government of the Soviet Union, on the other hand, stressed

Introduction 13

that the rights of the individual refer to his participation in society rather than to protection from society. The individual derives his rights from society.18 When the General Assembly of the United Nations debated the UDHR, Soviet delegate Andrei Vishinskij made an explicit reservation regarding the rights of individual persons in relation to his own state. Such ideas were not relevant for the USSR, where there were no rival classes. In such a society there could not be any antagonism between the government and the individual, since the government was in fact the collective individual.19 In that discussion the western countries stressed the importance of civil and political rights, the socialist countries emphasized economic and social rights, pre-eminently the right to work, but also the right to health care and care for the elderly. This difference in perspective with regard to the importance of civil and political rights and economic, social and cultural rights was one of the reasons that the single treaty as originally envisioned was split into two separate covenants, the ICCPR and the ICESCR. Human rights were not the only subject of ideological and political controversies in the United Nations. In the early 1970s, Western European countries, the United States and Canada were successful in their claim to put human rights on the agenda when the Eastern European countries invited them to hold talks on security and postSecond World War frontiers in Europe. The talks resulted in the adoption of a Final Act by all participating States in Helsinki on 1 August 1975. The Final Act included not only principles with respect to security in Europe (inviolability of frontiers – principle III, territorial integrity of states – principle IV) but also principles with regard to respect for human rights and fundamental freedoms (principle VII). As a result of the talks in the context of the Conference on Security and Cooperation in Europe (CSCE) and the adoption of the Final Act, the human rights situation in Eastern Europe was put on the agenda, to be part of a political debate. In this period of tense relations between east and west, both sides accused each other of human rights violations. The United States focussed on violation of civil and political rights in the USSR and its satellites; the USSR pointed at racial discrimination and unemployment in the United States and other Western countries. The American political scientist Jack Donnelly put it aptly when he stated


that ‘the superpowers rarely raised those issues out of an independent concern for human rights. Rather charges of human rights violations were tactical manoeuvres in a broader political and ideological struggle.’ 20 On top of that, the superpowers made themselves guilty of serious violations in their foreign policies. In 1956, for example, the Soviets put an end to liberal reforms in Hungary with the use of force. The United States supported repressive military dictatorships in Chile, Guatemala and Haiti in its fight against communism. At the level of standard-setting as well as concrete implementation of human rights, human rights were an instrument in the political and ideological controversy between east and west. Both blocks accused each other of severe violations and in doing so tried to implement policy objectives in the context of national security. Nevertheless, it can be seen as an important development that human rights were put on the agenda, being or not being the result of sincere concern. Although human rights were at that time closely linked to security and political warfare, some authors argue that the massive violations that resulted from the Cold War, also created a space for non-governmental organizations (NGOs) such as Amnesty International to emerge as an important political force.21 These NGOs helped to legitimize international concern for human rights. Another important development that took place in this period is the movement for decolonization. The growing number of former colonies, the so-called Third World countries that became members of the United Nations, had their own agenda with regard to human rights. In the first place they turned out to be the advocates of new rights such as the right to self-determination. The UN Charter recognized in article 55 the principle of self-determination. The new UN member-states wished to recognize the right to self-determination as a human right, a collective right attributed to peoples. Consequently, it was included in both international covenants. At the instigation of the new UN members another collective right, the right to development, was elaborated in a Declaration on the Right to Development (1986). In the second place, anti-racism became an important issue in the United Nations, partly as a result of Third World pressure. Freeman writes that the worldwide anti-apartheid campaign ‘probably helped to legitimise the role of human rights in international politics’.22 The Convention on the Elimination of Racial Discrimination was a clear result of the influence of this new group of states.

Introduction 15

To summarize: after the Second World War international human rights norms emerged and human rights became an issue in world politics. In 1948, the then member-states of the United Nations reached an agreement on the UDHR, probably the most authoritative statement of international human rights norms. In the Cold War period, human rights became an issue of ideological controversy between east and west. Human rights were part of this controversy, as well as the object of actions by NGOs. Furthermore, newly independent states in the United Nations contributed to the codification of new rights and increased attention for existing rights. The Cold War was a period of severe violations by both superpowers and other states, but also one in which the well-being of people in other countries became an issue in international politics. The 1980s and 1990s In the 1980s, new conventions were adopted both in the United Nations (e.g.: the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; the Convention on the Right of the Child, 1989) and in the context of regional organizations such as the Organization of African Unity (African Charter on Human and Peoples’ Rights, 1981). In addition to these new standards, supervision-mechanisms were improved and extended. The UN Human Rights Commission adopted several resolutions calling for the appointment of Special Rapporteurs to work on specific country situations or on a specific theme. Improving East–West relations stimulated the work in the context of the CSCE; it was considered an important breakthrough that in the final document of the Third Follow-up Meeting in Vienna (concluded in January 1989) a new, far-reaching supervisory mechanism was included creating the possibility for the participating states to bring to the attention of other CSCE states the human rights situation in a specific CSCE state. This development was seen as the formal confirmation that human dimension issues were no longer considered to be solely domestic issues.23 Human rights issues were no longer subject to Cold War rivalries. When the Second World Conference on Human Rights was held in Vienna in 1993, a Declaration and Program of Action was adopted by the attending 171 states. In this Declaration, the importance of the Universal Declaration was underlined and the promotion of human rights was affirmed as ‘a legitimate concern of the international


community’.24 In this period we also see a de facto improvement in respect for human rights: since the fall of the Berlin Wall (1989) people could travel freely from east to west and vice versa. In addition, democratization and a growing respect for civil and political rights were introduced in many former socialist countries. In Latin America, changes took place as well; countries like Chile and Argentina gained more human rights oriented governments when the former authoritarian governments that had been supported by the United States, were overthrown. However, these positive developments also show the reverse. With the disappearance of the East–West rivalry, the dissolution of the Soviet Union and the vanishing spheres of influence of the superpowers in Africa, new, massive violations appeared as a result of ethnic conflicts and the dissolution of states. During the Cold War, political developments and internal tensions were contained. With the new freedom, room for internal rivalries and ethnic tensions developed in many countries. The weakness of many states tempted some groups to overthrow the government and seize power. In addition, religious extremism caused a threat to human rights in several Asian and African countries. Human rights discussions were held no longer between the representatives of East and West, but between the governments of countries in the south and the rich countries of the north. New issues such as the universality of human rights and cultural relativism, began to play an important role in the United Nations. Appalling violations in certain African countries and on the Balkan led to two important reactions by the international community. In the first place, international tribunals were set up to prosecute those who committed the gross violations of human rights and international humanitarian law in Rwanda and the former Yugoslavia. These ad hoc tribunals were supplemented by the International Criminal Court that was established in 2002 in The Hague, the Netherlands. Second, the members of the United Nations, confronted with severe violations in different places, came to the conclusion that it could not wait and see but had to act in case of severe violations. Human rights violations gave way to interventions by the international community either under the aegis of the United Nations or a group of countries outside the United Nations to bring these violations to an end. When Iraq’s occupation of Kuwait was brought to an end in February 1991, it intensified the suppression of the rebelling Kurds

Introduction 17

in Northern Iraq. The Security Council adopted resolution 688, expressing concern over the repression of the Kurds, leading to a flow of refugees across international frontiers ‘which threaten international peace and security in the area’.25 Shortly after the adoption of this resolution, various western countries under the leadership of the United States conducted ‘Operation Comfort’ to set up ‘safe havens’ for the Kurdish people. Consequently, many Kurds were able to return home. Although this action was not explicitly authorized by any UN resolution, it can be seen as a first step in a new practice of the collective use of force, either by the United Nations or by a group of countries, to protect human rights.26 Since that time, international organizations have acted several times in case of humanitarian emergency situations: Somalia, 1992; the former Yugoslavia, 1992–93; Haiti, 1994; Rwanda, 1996; Sierra Leone, 1997; East-Timor, 1999 and Kosovo, 1999. At the end of the twentieth century, more and more states felt the responsibility for the life and well-being of people in other countries and chose to adopt the promotion of human rights as part of their foreign policy. This responsibility seems to stem not only from a feeling of collective morality, but also from the view that severe violations of human rights and humanitarian emergency situations might endanger international peace and stability. As it was formulated by the heads of government meeting in a special summit of the Security Council on 31 January 1992 The absence of war and military conflicts among States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.27 Michael Ignatieff has pointed to the fact that stimulating respect for human rights is not without problems. He refers to the conflict ‘between furthering the human rights of individuals and maintaining the stability of the nation-state system’.28 In the years of totalitarian tyranny, the state was the main threat with regard to the freedom of the individual. In the post-Cold War world, the danger is the fragmentation of states as happened in the Balkan, in the Great Lake region in Africa and in the southern Islamic frontier states of the former Soviet Union. The fragmentation in these areas stems partly from the serious violations committed by the former regimes


that tried to create stable national states. Fragmentation also results from demands for territorial autonomy and independence (right to self-determination) by secessionist groups, so Ignatieff argues. In this conflict between stability and justice, western governments are justified in concluding that restoring stability is more important than bringing democracy and human rights.29 A new phenomenon that may threaten respect for human rights is international terrorism. The terrorist attacks on several goals in the United States, 11 September 2001, formed the low point in the recent period. The terrorist acts in itself form a violation of the rights of the victims. The reactions and measures taken by governments may come into conflict with notions of freedom and fair trial as well. Then UN High Commissioner for Human Rights, Mary Robinson, has pointed at the ‘risks posed to the promotion and protection of human rights by the growing number of anti-terrorism measures being adopted around the world’.30 The US government, for example, decided as part of its ‘war against terrorism’, to increase electronic surveillance and search and seizure authority, to increase possibilities for detention and deportation of non-citizens and to use military commissions to bring to trial international terrorists, lacking guarantees that fair trial principles will be respected. In an attempt to safeguard human rights in the fight against terrorism, the Committee of Ministers of the Council of Europe, has adopted guidelines in which it stated that ‘(a)ll measures taken by states to fight terrorism must respect human rights and the principle of the rule of law…’.31

Human rights and the national context The position that human rights hold in the foreign policy of a country is influenced not only by external variables such as the international structure. The way a country’s foreign policy is shaped and the different perspectives on which foreign policy is based, also influence the place of human rights in foreign policy. Second, the position of a state in the international context plays a role. Views regarding the role of morality and human rights in international politics In international relations theory different opinions exist with regard to the position of morality in international relations. From the realist

Introduction 19

point of view, based on the traditions of Thucydides and Machiavelli, the question of ethics in international relations seems to be of less or no importance.32 Realists argue that the international society is an anarchical one in which order can only be reached by maintaining the balance of power. In order to strengthen national power, national interest defined in terms of power and security should be the key concept in a country’s foreign policy. In this view, moral arguments do not play a role. The state is the central actor in international politics and to maintain order and peace, sovereign states should refrain from intervening in each other’s affairs. Consequently, realists hardly pay attention to the promotion of human rights in international politics. Stanley Hoffmann has articulated the realist argument clearly: human rights policies are essentially conflictive and as a result will lead to a deterioration of international relations.33 Those who stress the importance of morality in international relations, try to reach peace and stability by stimulating cooperation between states. The use of international law is one of the most important instruments in this respect. In this tradition, the wellbeing of the individual is important, much more so than the sovereignty of the state. As a result, human rights policy is very much needed. Those who stress the importance of moral values, such as human rights, in international politics, are referred to under different names. David Forsythe refers in this context to liberals and neoliberals. Liberals are those who give attention to fundamental rights. Neo-liberals are those who start from the same assumption as liberals but recognize that there is morality or ethics beyond the human rights discourse.34 Jack Donnelly makes a distinction between three models, each with its own conception of the international community and its role in international human rights. In the statist concept of world politics the state is still the central actor exercising sovereign power. Human rights are no longer seen as the exclusive preserve of states, but they remain principally a matter of sovereign national jurisdiction. Internationalists, according to Donnelly, argue that states are central actors in international relations, but these internationalists also focus attention on the international society of states. Internationalists stress the importance of the evolving concept of human rights. The cosmopolitan model starts at the other end of the continuum: the individual is the central element in the single global political community and not so much citizen of a state. From that


point of view, action for the promotion of human rights is highly desirable.35 In this book, we will refer to all these views under the common denominator of idealism as opposed to realism. Idealists are those who argue that moral values play a role in international society. The realist and the idealist approach are reflected in day-to-day foreign policy. At one end of the continuum, we find governments that, in accordance with the realist tradition, pay hardly any attention to human rights or use human rights only as an instrument to strengthen the security interests of the state. At the other end, there are governments that pay extensive attention to human rights, since it will strengthen international order and peace. We will use illustrations from the experience of the United States, currently the most powerful state in the world, and the Netherlands, the country with which we happen to be most familiar. The different human rights policies of the United States and the Netherlands can be explained in these traditions. American foreign policy has always been a mixture of idealism and realism. It gives evidence of a certain measure of moralism, of ethical principles, based on the idea that the United States will bring good to the world. At the same time a watchful eye is kept on the preservation of the American national interest. In American foreign policy both lines of thinking are found alternately and have their consequences for the human rights policy of the United States. In the case of President Jimmy Carter much attention was focussed on human rights. Under the Reagan and first Bush administrations, human rights policy was often used as an instrument to attain more general objectives such as security. The Netherlands pursues a foreign policy that is often described as moralist. The Netherlands, being a small country, puts a lot of emphasis on principles of international law and moral values. Governments of different political signatures see human rights as a substantial element of foreign policy. Small states and superpowers The foreign policy of a government is also shaped by the position of the state in the international arena. In international relations theory, a distinction is made regarding the power position of a state. Small states usually exert limited influence in international politics, while major powers may have dominant influence. Small states have limited sources of power: a small territory, relatively few inhabitants, limited economic resources and usually few military sources of

Introduction 21

influence. Superpowers usually possess extensive sources of influence. These sources might be used to influence or force other states to behave in a certain way. The US government, for example, in implementing its policy to prevent American soldiers from being handed over to the International Criminal Court, concluded bilateral agreements with several countries in which these countries had to promise not to extradite American soldiers to the International Criminal Court. In concluding these agreements the American government threatened several countries to withdraw its military support if they would not be willing to conclude such an agreement. Many governments gave way to this pressure (e.g. Israel, Romania and East-Timor) but others refused to conclude the agreement (Croatia).36 Also in the field of human rights policy, superpowers are sometimes more successful in restraining other countries from human rights violations and stimulating respect for human rights, than small powers. In the end, they have the power to use force. Small countries have fewer means. Nevertheless, small states might be more influential than expected as a result of their diverse activities, their prestige or the capacity of its diplomats. In addition, it should be stated that small countries might be able to exert influence in specific issue areas. Therefore, it should not be concluded that small countries are able to influence other countries as far as human rights are concerned. It has often been argued that the Netherlands, because of the quality of its ideas, the political culture on which these ideas are based (respect for human rights, democracy and non-discrimination) and its diplomatic network, has ‘considerable means of influence’.37 The Dutch government has argued that it ‘goes without saying that the Netherlands can exert only limited influence through bilateral channels. Therefore it is in principle better to combine forces with other countries’. Joint diplomatic actions by the European countries with regard to human rights situations in many cases, are important in that respect.38 Cooperation with other countries in the UN or any other context is an important way to exercise influence for less powerful countries. By way of summary it can be stated that if we want to have a good picture of the human rights policy of a country and its possibilities to exercise influence in this respect, several factors should be taken into account. Not only should the political traditions be considered, but attention should also be paid to the position of a country in the international arena and the possibilities it has to exercise influence.


Conclusion The international standards called ‘human rights’ are laid down in many legally binding treaties as well as in non-binding declarations. The UDHR and the two human rights covenants of 1966 are commonly referred to as the ‘international bill of human rights’. Apart from these, there are many other declarations and treaties which will be dealt with in subsequent chapters. At the same time, one must note on the basis of the reports of the United Nations themselves, of Amnesty International and other human rights organizations, that the international standards are often being violated. What is the purpose of the operation, one may be tempted to ask. Why establish a long list of rights, which are continuously being violated all over the world? The answer is simple and can be found by referring to the national context. National criminal and penal laws are as often violated as international human rights standards. However, that is no reason to abolish such national laws. Similarly, in international society there is no reason to abolish international human rights standards. Crimes such as murder, theft and rape are in most national societies prohibited. Nevertheless, they do occur all the time. Should the penal laws prohibiting them therefore be abolished? No, on the contrary they must not be abolished, but the supervision of the laws should be improved. The same reasoning applies to international society. International standards are not found in laws, but in declarations and binding treaties. Similar to the national context but worse, international supervision is woefully inadequate. In an ideal world, laws and treaties in the field of human rights would be superfluous. In a world that is far from perfect, there is a great need for such instruments. In this book we pay attention to the promotion of respect for human rights as a part of international politics. For the past centuries, the principle of sovereignty has been one of the central tenets of international relations. However, since the Second World War it has commonly been accepted that the way a government treats its nationals is also a matter of international concern. Hereafter, we will deal with certain questions and dilemmas related to the promotion of human rights as part of foreign policy.

2 Contemporary Issues

Introduction During the last fifty years, many human rights standards have been developed (see Chapter 1). Human rights have in fact become one of the main issues in today’s international affairs. Respect for the wellbeing of citizens is not only the subject of attention by scholars; it is also linked to the day-to-day political debate. For years, the Cold War structured the human rights debate. With the end of the Cold War, the human rights debate obtained a new structure. New players put new items on the agenda. Third World countries asked attention for their views with regard to the universality of human rights and cultural diversity. They asked attention for the rights of groups, so-called collective rights, a notion that has been presented next to an alleged overemphasis in the west on individual rights. In addition, they emphasized the importance of economic, social and cultural rights. Today, these rights are increasingly – at least outside the United States – presented as equal to the classic civil and political rights. As a consequence of regime changes that took place in the last decennium of the twentieth century, in Eastern Europe as also in South Africa and Latin America, the question was brought up as to what should happen to persons guilty of gross human rights violations under a previous regime. The question of combating impunity is receiving close attention. The importance of combating impunity is illustrated by the interest expressed in the international criminal tribunals set up in former Yugoslavia and Rwanda, the recently established International Criminal Court, as well as the issue of the 23


extradition from Britain of the former Chilean dictator Augusto Pinochet in 2000. In this chapter, we will pay attention to the following contemporary issues in the field of human rights: (1) the universal character of human rights; (2) the place of collective rights; (3) the promotion of economic, social and cultural rights next to civil and political rights; (4) combating impunity. These themes reflect controversies both in the academic world and in the world of international politics and diplomacy. They are receiving new or renewed worldwide attention.

The universal character of human rights The Vienna Declaration and Programme of Action, adopted at the second World Conference on Human Rights in 1993, reaffirmed the commitment of all states to fulfil their obligations to promote universal respect for, and the observance and protection of all human rights. Furthermore, it was stated that the universal nature of human rights was beyond question.1 The more than 170 states that took part in this Vienna conference also stated that: ‘All human rights are universal, indivisible and interdependent and interrelated.’2 The Vienna Declaration emphasized also the Universal Declaration of Human Rights as a common standard of achievement for all peoples and nations.3 This is important, since many of the countries that adopted this Vienna Declaration, were not yet members of the United Nations when the Universal Declaration was adopted in 1948. By reaffirming the importance of the Universal Declaration they adopted, at least in theory, the principles included in the Declaration. These principles were elaborated in the two international covenants, today ratified by over 140 countries all over the world. However, the fact that most countries have endorsed these human rights norms at least in theory, does not necessarily mean that the universality of these rights is indeed ‘beyond question’.4 When the preparations for the drafting of the Vienna Declaration started, it became clear that a group of states was not prepared to

Contemporary Issues 25

adopt the universality of human rights as such.5 These countries were of the opinion that human rights standards cannot be the same in every country. Because of differences in history, culture, religion and economic development, rights differ from country to country. The head of the Chinese delegation, Liu Huaqiu, explained that one should not think of the human rights model of certain countries as ‘the only proper one’.6 At the Asian Conference that took place in Bangkok, Thailand, from 29 March to 2 April 1993, in preparation of the World Conference, governments of countries such as Indonesia, China, Malaysia and Singapore, emphasized not only the universality of human rights, but also the importance of ‘national and regional particularities and various historical, cultural and religious backgrounds’.7 This ominous addition was included in the Vienna Final Document as well. The precise meaning of this addition, which was obviously the result of a political compromise, has remained unclear. Yet, these very national and regional particularities lie at the basis of possible differences of view between local and international social movements affecting human rights implementation. In fact, the universality of rights is questioned not only by Asian states. Politicians as well as scholars from African and other countries have questioned the universality of rights and argued that human rights are culturally relative. The doctrine of cultural relativism in relation to human rights holds that different societies have developed unique attitudes to the concept of human rights and human dignity. From this point of view, the human rights concept as evolved in the west is not necessarily applicable to Third World societies. Moral codes and social institutions differ from culture to culture and these variations should be exempt from outside criticism. Customs such as female genital mutilation, stoning and subordination of minority groups, are justified by referring to specific cultural traditions.8 Claims of cultural relativism may differ greatly. The American political scientist Jack Donnelly makes a distinction between radical cultural relativism (culture is the sole source of the validity of a moral right or rule), strong cultural relativism (culture is the principal source of the validity of a moral right) and weak cultural relativism (culture may be an important source of the validity of a moral right or rule). Donnelly argues that if all the rights rested solely on culturally determined social rules, there could be no human rights at all, since one has those rights simply as a human being.9 Whether one


attaches much or little importance to the influence of culture, one should always keep in mind that the argument of cultural and regional practices is often misused by politicians and those who are in power, in order to safeguard that power vis-à-vis their subordinates. There exists a clear relationship between the almost 20 million political refugees and internally displaced persons in the world and human rights. The right to ‘seek and enjoy asylum from persecution’ which is mentioned in the Universal Declaration of Human Rights (article 14) is not part of internationally legally binding treaties. Nevertheless, it is a fact that most political refugees are the result of human rights violations elsewhere. It is, therefore, a matter of great concern that all over the world there is a decreasing willingness among governments to accept refugees. We will, however, not deal with this subject in this book. It deserves a separate volume of its own. The government of the Netherlands has always been a strong advocate of the concept of the universality of human rights. In a recent policy document it states that rights are by definition universal.10 The government agrees with its Advisory Council on International Affairs that has stated that human rights norms ‘are in principle compatible with the leading ethical, religious and philosophical traditions’.11 The concept of universalism is also implemented in the practice of Dutch foreign policy. In their reaction to human rights violations in China, Dutch and European Union officials were not willing to take into account specific cultural or historical values for Chinese human rights behaviour. During a trip to China, the Dutch minister of foreign affairs, emphasized that human rights should not be used as a political instrument and that the dialogue between the Chinese and Dutch authorities should be based on the principle of universality of rights.12 Differences of view on the precise nature of human rights are not limited to intercultural relations. They are found within cultures as well. Among western nations there exists, for example, much difference of view regarding capital punishment as a violation of the right to life. This applies of course to the United States, where in most of the states the death penalty is retained and practised. In one other western country (Israel) the death penalty still exists for crimes in time of war. The remaining western countries are among the 74 countries where the death penalty has been fully abolished.13 Differences of view about the precise meaning of the right to life exist within national societies as well. The question of when life


begins sharply divides proponents and opponents of legalized abortion. Should the right to life protect the unborn child? Most international treaties are silent on this issue14 and it appears difficult in most societies to reach consensus over national legislation on the matter. The same applies to the definition of circumstances under which euthanasia should be permitted, which is still hotly debated in most western societies. The cited examples show how within one (western) culture opinions may vary about the precise meaning of the fundamental human right to life. The same is true for the meaning of certain other human rights. Should pornography be seen as a manifestation of freedom of expression? Should homosexual relationships between consenting adults be considered as a matter of lifestyle? Should polygamy be allowed? Some of these issues are still the subjects of debate in most western societies; others have been settled. It is hardly surprising that such variations multiply, if one moves beyond one culture. The Dutch Advisory Council on International Affairs has argued that in general the universality of human rights does not imply that human rights should be applied everywhere in a uniform way. International human rights norms have to be applied in different social, economic and cultural contexts and in such contexts states should have a certain degree of latitude in making their own policy. The Advisory Council refers in this context to the margin of appreciation doctrine, a method of judicial review developed by the European Court of Human Rights in the framework of the Council of Europe. The European Court has emphasized that states may differ in their interpretation of certain terms used in the European Convention. The latitude available to states may differ from one right to another and the degree of latitude depends among other things, on the prevailing circumstances, the right that allegedly has been violated and on the specific nature of the violation. Only the European Court has the right to determine whether a state has exceeded its limits of latitude or not. The Advisory Council concludes that differences in the specific application of certain human rights should be tolerated.15 However, the latitude in policy of states should be a controlled latitude. It must always be possible to call states to account, primarily at national level, but also in international judicial, semi-judicial and political forums.16 Notwithstanding the lip service being paid to the universal nature of human rights,17 the issue of what is the exact meaning of that


universality is bound to remain with us. This is, as it ought to be. The limits of what constitutes fundamental human rights to be enjoyed by men and women all over the world deserve to be permanently explored. Such exploration takes the form of intensive academic as well as political debate. Views on this matter tend to change over time. The examples of torture18 and slavery serve to show that what used to be accepted, now no longer is. The prohibition of racial discrimination seems to be moving in the same direction. The continuation of a permanent debate on the nature of the universality of human rights should be welcomed. This book is based on the idea of a gradually developing international agreement, while recognizing a certain degree of cultural diversity.

Collective rights Human rights, as codified in most international human rights instruments, are mainly formulated in terms of the rights of individuals. The only exceptions are the common article 1 of the two UN human rights covenants of 1966 relating to the right of self-determination of peoples and a number of articles on the African Charter on Human and Peoples’ Rights.19 Should, next to the right of self-determination, other collective rights (or group rights) be recognized? Which rights would be at stake and who could make legitimate demands of them? Another question is whether such rights should be seen as collective rights or given the status of collective human rights.20 Posing such questions takes us into the realm of controversy. In academic literature a great deal of attention is being paid to these problems.21 In 1993, the Dutch Advisory Committee on Human Rights and Foreign Policy was asked by the minister of foreign affairs to answer the question ‘… whether collective rights qualify, in principle, for recognition, and if so, which of the rights currently styled “collective” could be regarded as true collective rights. You might also consider the potential added value of such rights with respect to those civil, political, economic, social and cultural rights which have already been recognized, and the conditions which would have to be attached to the exercise of collective rights.’22 The advisory report, which was issued in May 1995, marks out the problem area, discusses who are the bearers of collective rights and deals with a number of


concrete collective demands. Furthermore, the advisory report contains six criteria that are considered of importance for the recognition of collective rights: (1) they must have an object which determines the substance of the right; (2) they must have a subject (bearer) who can invoke the right; (3) they must be addressed to a duty-bearer against whom they can be invoked; (4) the claim must be essential to a dignified existence; (5) the claim should not be one which can be individualized and (6) the claim must reinforce the exercise of individual human rights, and in any event should not undermine existing human rights.23 What are collective rights? It has been argued that one should only distinguish collective aspects of individual human rights. This would have important consequences for the entire approach to the problem. It would mean a rejection of the idea of ‘collective human rights’. In this view, there would only be place for individual human rights.24 Within the Advisory Committee views were divided on this point.25 The present authors are proponents of the view that collectivities should be entitled to human rights, if rights are involved that can only be enjoyed by collectivities and cannot be reduced to individual rights.26 The fundamental values protected by collective rights are collective goods that cannot be enjoyed by individuals, but only in common. If collective rights could be reduced to individual rights, the notion of collective rights would have no added value. Rights such as freedom of association and assembly, which can only be exercised collectively, as well as the right to education or the right to freedom of religion, which are usually exercised collectively, should not be considered as collective rights, since they can be reduced to an individual claim. Rights that do qualify as collective rights are: the right of self-determination, freedom from genocide and the right of peoples to development and to access to natural resources. Other collective rights are such rights as the maintenance or protection of one’s culture, the rights of indigenous peoples and the rights of minorities. They have the community as such as the subject of their right and the collective interest as object.27 Willem van Genugten has rightly made the point that individual human rights alone are not adequate to guarantee a dignified human existence.28 If the notion of collective rights is accepted, the question comes up as to what should be the relationship between collective rights and individual rights. Which should prevail in case of conflict? Should


collective rights be permitted to harm individual rights or should the latter always prevail? To answer such questions entails making of choices. The present authors agree with the Advisory Committee on Human Rights and Foreign Policy that, in case of conflict among rights, individual rights should prevail. It may even be argued that collective rights should always serve to reinforce the exercise of individual rights. Yvonne Donders rightfully argues that, since the community derives its existence from the members it is composed of, possible collective rights cannot prevail over the individual rights of the members of that community.29 Collective rights are then made subordinate to individual human rights. This preference is based on the notion that what has been achieved in the field of human rights, should be preserved. Whether a collective demand should be accepted as a right, depends on the question whether it adds anything to the guarantees offered by already existing human rights to a dignified human existence and the quality of society as a whole.30 Who are the bearers of collective rights? The obvious answer would be: groups, collectivities. Should the state also be considered as a bearer of collective rights? This is an interesting question, as traditionally human rights are seen as instruments to protect the rights of individuals versus state power. Therefore, the state should rather be seen as an addressee of individual as well as collective rights, but not as a bearer of such rights.31 Usually, peoples are seen as the bearers of collective rights, because they are mentioned as such in international treaties. But what are peoples? Should an ethnic or a territorial definition, or a combination of the two, be employed? Are Jews and Palestinians separate peoples or should only citizens of the State of Israel be seen as a people? The answer to this question is important, because groups of human beings appeal to this kind of rights in support of their claims to autonomy, self-government or political independence. Unfortunately, so far, no definition has been agreed on at the international political level. Minorities might also be seen as bearers of collective rights, although states usually do not favour this approach. It is by no means accidental that minority rights are formulated as rights of collections of individuals in existing treaties. Certain states, such as France and Turkey, explicitly deny the existence of (ethnic) minorities within their territorial borders.32 Should certain conditions be set as to who may act as representative of a given collectivity? That would seem to be necessary, in order to


prevent anyone from claiming to represent a certain collectivity. Whether this should mean the holding of formal elections, is a different matter. The holding of elections raises the question as to who exactly is entitled to participate in such elections. All those who consider themselves as belonging to a certain entity? Or only those admitted by the group’s leadership? Or only those who live on the territory to which the decision making in question refers? Or should participation be based on old, traditional customs handed down through the ages? It is not easy to give a satisfactory answer to such questions. It will, however, be necessary to find such answers, if only to avoid dealing with such matters in an arbitrary fashion. The right to (one’s own) natural resources is often mentioned as a collective human right (e.g. article 21 of the African Charter on Human and Peoples’ Rights). One may, however, ask oneself, why? Why has a certain group of human beings a ‘right’ to the proceeds of natural resources that happen to be present below, upon or above the territory where those human beings are living? Why should it be justified that others, who happen to live in places that have been less endowed by nature, do not enjoy such profits? This applies not only to oil-rich states in the Middle East and elsewhere, but also to West European states such as the United Kingdom, Norway, and the Netherlands that profit greatly from reserves of oil and natural gas under their territory. There would seem to be nothing ‘right’ about such collective rights. An international income tax to even out such inequalities among all states might provide a solution, but this is not very likely to be accepted in the foreseeable future. Collective human rights are still the subject of fierce debates that have so far remained undecided.33 The Dutch minister of foreign affairs has expressed himself against the adoption of collective rights in the human rights catalogue. Much can be attained by implementing collective aspects of individual rights. Discussions on items related to what might be called as collective rights, should therefore not take place in human rights forums, but in the context of the United Nations Development Programme (UNDP) and the World Bank.34 Many representatives of non-western countries, on the other hand, have argued that the individualistic approach to human rights does not suit the tradition of African and other non-western countries. The African tradition stresses the importance of the group or the community. A vast majority of the people is loyal to a certain


organic unit such as a tribe, clan or ethnic group. From this perspective, the community’s interest is always supreme and individuals may have duties (as included in the African Charter on Human and Peoples’ Rights, articles 27, 28 and 29) towards the community or the state.35 Emphasis by non-western countries on the importance of collective rights should be seen against this background. We agree with Abdullahi An-Na’im who has stressed the importance of collective rights as a conceptual category: ‘[T]he human rights movement is much more weakened by their wholesale exclusion than the inclusion of some of them, in accordance with appropriate “quality control” criteria and processes.’36

Economic, social and cultural rights In the debates about the observance of human rights, economic, social and cultural rights are still receiving less attention than civil and political rights.37 Perhaps this is caused by a failure to recognize phenomena such as poverty, malnutrition, illiteracy and unemployment as human rights problems.38 This is manifestly wrong. It takes little imagination to see that the right to life, which is generally considered as one of the classical civil rights, is closely linked to the (economic) rights to food, housing and health care. They are inseparable. The fact that economic, social and cultural rights receive less attention than civil and political rights in the human rights discourse might also be due to the fact that it is difficult for victims of violation of these rights to complain about such violations. In contrast to the area of civil and political rights, so far there exists no right to complain for states or individuals in case of an alleged violation of economic, social and cultural rights. Establishment of such a right, in the form of an optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR), would strongly increase the possibilities for UN-bodies to supervise the observation of such rights. So far, states have been reluctant to agree to such a right to complain. The debates deal mainly with the question of the justiciability of economic, social and cultural rights.39 The view is now commonly accepted that this will depend on the nature of the case; it is, in other words a ‘fluid concept’. For example, aspects of the right to housing are in many national legal systems open to judicial review.40 Generally speaking, courts are reluctant to review economic,


social and cultural rights, in view of the alleged vagueness of relevant standards. However, this should be seen as an important argument to arrive at a formal complaints procedure, as judicial review would offer an opportunity to derive concrete obligations from vague standards. At the request of the UN Committee on Economic, Social and Cultural Rights, the Australian human rights expert Philip Alston prepared in 1992 a study on the subject.41 It is partly due to this study that the following cautious passage was included in the Final Declaration of the 1993 World Conference on Human Rights in Vienna: ‘The World Conference encourages the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the ICESCR.’42 Since that time, several draft texts have been developed, but adoption of a complaints procedure for violations of economic, social and cultural rights is, for the time being, still a matter of considerable controversy among both academics and politicians.43 Governments are reluctant to commit themselves in an area in which they cannot oversee all possible consequences. Against this it should be argued that if, as has often been said, all human rights deserve equal treatment, adoption of a complaints procedure would be an important step in the right direction. However, possibilities exist to deal with violations of economic, social and cultural rights. The UN Commission on Human Rights can deal with violations under the confidential 1503 procedure, as well as under the 1235 procedure. Under the first procedure, individual victims or groups of people with knowledge of a situation indicating a consistent pattern of gross and systematic violations of human rights, may send communications to the United Nations. So far, this procedure has rarely been used with regard to socio-economic rights. Under the 1235 procedure, creating the possibility for states to deal with severe violations in other states, incidental reference has been made to the deteriorating economic situation in a specific country. The lack of attention for violations of economic, social and cultural rights is partly related to the lack of attention paid by the Special Rapporteurs in their country-reports, by NGOs and by governments themselves.44 Governments are usually not very eager to deal with violations of economic and social rights, as it is often not clear whether a government can be held accountable for a violation or not. Many governments are of the opinion that the socio-economic


rights as included in the Universal Declaration on Human Rights (UDHR) and the ICESCR, only imply obligations to undertake steps to implement a certain right. As such these obligations do not create binding commitments and therefore states cannot be said to have violated their duties. From that point of view, the 1235 procedure is not a useful instrument. Although the Dutch government has so far not been willing to support the proposals for the adoption of a right to complain with regard to the violation of economic, social and cultural rights, it subscribes to the view that classical and social rights are of equal importance. Nevertheless, its criticism of the lack of implementation of labour rights in Turkey remains somewhat of an exception.45 The US government on the other hand, does not recognize most economic, social and cultural rights as rights, but sees them as aspirations or ambitions. In dealing with human rights the US government only keeps an eye on internationally recognized, individual, civil, political and worker rights, as set forth in the Universal Declaration on Human Rights.46 As a consequence of this point of view, the US government does not pay attention to the promotion of socio-economic rights as human rights. It cannot be denied that it is often more difficult to describe the substance of a socio-economic right than of a civil or political right. However, for example in the case of the demolition of houses as in the Israeli Occupied Territories, it is clear that the right to adequate housing is being violated.47 In addition, it should be kept in mind that a growing number of rights are being elaborated. Recently, the UN Committee on Economic, Social and Cultural Rights adopted a General Comment on the right to water.48 By doing so the Committee clarified the contents of that right and made the argument less opportune that socio-economic rights cannot be accepted as justiciable. If the two kinds of human rights would indeed be dealt with on an equal footing, this could also have important consequences with regard to the admittance of asylum seekers. So far, while almost all states recognize that political refugees have in principle the right of asylum, they do not recognize economic refugees as such. It is, however, often almost impossible to distinguish the motives why people flee their country: is it ‘merely’ for economic reasons which would deny them the right of asylum or is it for truly political reasons making them into bona fide asylum seekers? Moreover, they often


present themselves as if they were political refugees, knowing fully well that economic motives would give them no chance of being accepted in the host country. Asylum seekers here usually are the consequence of human rights violations elsewhere. We do accept the existence of at least two kinds of human rights: civil and political rights on the one hand, economic, social and cultural rights on the other. The Final Statement of the Vienna World Conference on Human Rights noted that ‘all human rights are universal, indivisible and interdependent and interrelated’ [italics supplied]. All human rights refer to both categories: civil and political as well as economic, social and cultural human rights. The Limburg Principles (1987) state: ‘As human rights and fundamental freedoms are indivisible and interdependent, equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political, and economic, social and cultural rights.’49 These principles have been reiterated in the 1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights.50 Along this line, the (former) Dutch Advisory Committee on Human Rights and Foreign Policy, in an advisory report on economic, social and cultural rights, had earlier argued in favour of an integrated approach to rights derived from the international covenants on civil and political rights and on economic, social and cultural rights.51 It remains, however, curious to note that in the refugee field states tend only to accept one kind of human rights violations (civil and political rights) to the detriment of the category of economic, social and cultural rights. The acceptance of both kinds of human rights as valid reasons for fleeing one’s country would have far-reaching political consequences, which governments would be reluctant to accept. Far from showing any willingness to accept more asylum seekers, states are now doing their utmost to restrict, as much as possible, the acceptance of refugees. They are not very likely to accept the logical consequences of the reasoning here presented. That is one of the reasons why, for the time being we plead here only for further study and investigation of the criteria, which might be taken into consideration so that victims of the second category of human rights violations might be considered for admittance. This would bring notions about respect for all human rights and the admissibility of asylum seekers more in line.


Combating impunity During the last decennium of the twentieth century, many regime changes took place either because of internal political developments or by means of international intervention: Argentina, Chile, Guatemala, Germany after reunification, Czechoslovakia after the fall of the Communist regime, the former Yugoslavia, South Africa after the end of apartheid – to name just a few. In that context the question comes up as to what should happen to persons who are guilty of gross violations of human rights and international humanitarian law, committed under the responsibility of the former regime, such as genocide, torture, cruel, inhuman and degrading treatment or punishment, disappearances, wanton killings, abductions, death in detention, rape, ‘ethnic cleansing’, robbery, and ill-treatment of civilians – practices with which we in this day and age have become only too familiar. In short, the question of accountability for such acts arises, as well as the question, whether and how to punish those that are responsible for the violations.52 In some cases, such persons are tried by domestic courts, in other cases international criminal tribunals are established such as on the former Yugoslavia and on Rwanda. Again in other cases, a process of ‘lustration’ takes place: a system of inspection to determine whether such persons are qualified to hold official positions under the new administration. Next to punishment of the persons who committed the violations, the victims can be compensated. Different methods are possible: restitution (the victim is restored to the original situation, for example, by allowing him to return to his place of residence and return of property), compensation (for any economically assessable damage resulting from violation of international human rights), rehabilitation and satisfaction and guarantees of non-repetition (include a wide range of policy measures to verify facts and full and public disclosure of the truth, acknowledgement of the facts and tributes to victims). In this context, reference should be made to the so-called ‘truth and reconciliation commissions’ that have by now been established in more than thirty countries. Hereafter, we will deal with two methods to combat impunity: the establishment of international tribunals and the establishment of truth and reconciliation commissions. After the international tribunals of Nuremberg and Tokyo of 1946 it took until 1993, before a decision was reached to set up a comparable


tribunal: the one on the former Yugoslavia, followed by that on Rwanda. Surprisingly enough, these tribunals came into being by decisions of the UN Security Council, a body whose mandate it is to look after the maintenance of international peace and security, which does not necessarily include finding ways of dealing with culprits of violations of human rights and international humanitarian law. It was mainly for political reasons that the cases of the former Yugoslavia and Rwanda were singled out for judgment. There is no legal reason, why human rights in these countries should be dealt with, while similar events in countries such as Burundi, Cambodia, Somalia, Liberia or Zaire/Congo (to name only a few of the more notorious ones) were not dealt with. Since 1948, the International Law Commission had studied the possibility of setting up a permanent international criminal court, but it took until 1998, before an international conference held in Rome agreed on a draft-treaty on the subject. The tasks of this new court comprise (a) genocide, (b) crimes against humanity, (c) war crimes and (d) the crime of aggression, which remains to be defined. The former two are clearly violations of human rights. Agreement on the court, which has been established in The Hague in the Netherlands, is to be welcomed. By now (winter 2003) 81 states have become parties to the Statute of the Court, although major states such as the United States of America, China and Israel have indicated that they will not do so. The United States has even set up a strong campaign against the Court, asking other states to enter into a bilateral agreement to grant immunity to US citizens from being extradited to the Court.53 The decision by the Security Council determined the political character of the two tribunals. Though staffed by eminent jurists of a high moral character, certain decisions remain clearly outside its mandate, for political reasons. The leaders of Yugoslavia and Croatia, Slobodan Milosevic and the late Franjo Tudjman, were considered necessary for the peace process in the region and therefore remained for a beyond indictment long time, although they were in all likelihood responsible for some of the worst human rights violations in the area.54 What is worse, it has so far appeared impossible to arrest two persons who have been indicted: the Serb–Bosnian leaders Radovan Karadjic and Ratko Mladic, although allied soldiers serving with the NATO forces in Serbian Bosnia, encounter the two of them regularly. This brings us to the general problem of peace versus


justice, which has been discussed at length in the literature.55 There is a permanent fear that the pursuit of criminal prosecutions could interfere with political agreements that are necessary to end both the fighting among combatants and the more numerous attacks on, and abuses of civilians. This clearly diminishes the authority of the Tribunal. If it turns out that it will only be able to catch the small fish, what will that mean to the cause of justice in the area?56 The strength of the international criminal tribunals is that they help to serve to individualize guilt. However, one may pause to wonder, to what extent this is indeed an advantage, if one takes Daniel Goldhagen’s thesis into account, who argues that most of the German people were to a greater or lesser extent involved in the extermination of the Jews.57 Should all Germans have been punished then? Or only some of them? And by whom? One may well agree with the lowest common denominator as formulated by David Forsythe: Perhaps the best that can be said of the Court in the light of the Dayton peace agreement is that once created the Court generated pressures that diplomats could not ignore.58 The establishment of the two international tribunals is in any case an institutionalized – if far from perfect – form of dealing with the past. The Yugoslavia Tribunal received a great deal of support in the Dayton Peace agreement, which mentions the ‘… obligation of all parties to cooperate in the investigations and prosecution of war crimes and other violations of international humanitarian law’.59 The Dayton agreement has been of great help to the operations of the Yugoslavia Tribunal. Yet, this does not mean that all of its problems have been solved. The best that can be said of the Rwanda Tribunal is that its progress is slow and one has to wait and see whether, and to what extent, it will have concrete results. Truth and reconciliation commissions Truth and reconciliation commissions are a relatively new phenomenon. They appear on the scene after a change of regime, when those who have been engaged in gross violations of human rights, have given up their positions of power and been replaced by another, often democratic regime.


The chairman of the South African truth and reconciliation commission, Bishop Desmond Tutu, has addressed the main function of his commission as follows: ‘So how important is it that the Commission addresses these scars?’ Bishop Tutu: ‘Absolutely crucial. You see there are some people who have tried to be very facile and let bygones be bygones: they want us to have a national amnesia. And you have to keep saying to those people that to pretend that nothing happened, to not acknowledge that something horrendous did happen to them, is to victimize the victims yet again. But even more important, experience worldwide shows that if you do not deal with a dark past such as ours, effectively look the beast in the eye, that beast is not going to lie down quietly; it is going, as sure as anything, to come back and haunt you horrendously. We are saying we need to deal with this past as quickly as possible – acknowledge that we have a disgraceful past – then close the door on it and concentrate on the present and the future. This is the purpose of the Commission; it is just a small part of a process in which the whole nation must be engaged.’60 Priscilla Hayner, who has done a major study on the subject, defines truth and reconciliation commissions as follows: … bodies set up to investigate a past history of human rights in a particular country – which can include violations by the military of other government forces or by armed opposition forces.61 The main objective of such commissions is to reveal the facts of human rights violations under the previous regime. They explicitly do not have the objective of adjudication, but of reconciliation after the facts have been revealed. Especially the truth commissions that were set up in Chile after the fall of the Pinochet regime and the more recent one in South Africa have received a great deal of attention. Similar such commissions have operated in Uganda, Argentina, Chad, El Salvador and the one in Guatemala that was called commission of clarification.62 The composition of a truth commission requires a great deal of care, in order to avoid the impression that it has been established with certain political objectives in mind or in order to whitewash the past. Its members must have the confidence of the public and their independence must be guaranteed. Independence, that is, from the


government. Therefore, José Zalaquett, who was a prominent member of the Chilean Commission, has argued that the commission should be financed by the state, not by the government: ‘It is important that the government secures the necessary funds before the commission begins its work. It should not reserve the right to suspend funding.’63 Some of these commissions have considerable powers. The one in South Africa had the authority to compel witnesses to appear and to hear them under oath. It could even offer a perpetrator indemnity ‘amnesty’ for the human rights violations he disclosed, provided he had performed them for political objectives. The commission must decide whether the violation in question constituted such a political act. The first and foremost task of the commission is to present the true facts, or rather to recognize those facts. After all, often the true facts are already well known among the people involved, but they ask for an official recognition. Hayner has called this ‘sanctioned factfinding’. She quotes the then director of Americas Watch, Juan Mendez: ‘Knowledge that is officially sanctioned, and thereby made “part of the public cognitive scene” acquires a mysterious quality that is not there when it is “truth”.’64 The recognition of the facts should help such events from occurring again in the future. It was therefore that the report of the Argentinean National Committee on Disappeared Persons was given the title Nunca Más! (Never Again!). Establishing a truth and reconciliation commission is often controversial. On the one hand, there are those who prefer a policy of ‘forgiving and forgetting’ and who are of the opinion that this process may be harmed by the establishment of a truth and reconciliation commission. Opposite to this is the idea that true forgiveness is only possible after recognition of the facts. Also the former perpetrators are, for obvious reasons, not very enthusiastic about the idea, unless of course a process of amnesty, as in South Africa, accompanies it. There always remains the danger that a truth and reconciliation commission will contribute to the whitewashing of the misdeeds of a previous regime.65 Another question is whether, next to members of the governing regime, the military and the police, also members of the opposition should be called to account before a truth and reconciliation commission. In the case of South Africa, the deeds of the African National


Congress (ANC) were explicitly included in the investigation. In neighbouring Namibia, the government of President Sam Nujoma remained adamantly opposed to the whole idea of a truth and reconciliation commission. As the former leader of the South West African People’s Organization (SWAPO), which itself was responsible for torture and disappearances during its fight for independence, he did not want such practices to be officially acknowledged. In contrast, in South Africa, there was a powerful political consensus, created by the then President Nelson Mandela, for setting up such a commission; this was obviously lacking in Namibia. If one wants to establish such a commission, a number of questions must be answered regarding the scope of its mandate, the time period to be covered, the question of whether its activities should be published, and the question whether the names of the culprits should be made public.66 The question must also be answered whether it should begin its activities as soon as possible after the change of regime or whether it is wiser to allow some time to elapse. In favour of starting quickly is that public attention may wane after too much time has elapsed. On the other hand, there may also be an argument to wait a little, so that emotions have cooled down and the commission can do its work in an atmosphere suitable for sober, dispassionate analysis. By way of conclusion it can be stated that in some of the aforementioned cases, actual punishment of the culprits is at issue, while in others it is mainly the gathering of information about what has happened in the past. In many cases, such as that of the so-called ‘disappearances’ in countries such as Argentina and Chile, the relatives and friends of the victims more or less knew already or had at least strong suspicions about what had happened. The famous ‘Mothers of the Plaza de Mayo’ in Buenos Aires, who held their weekly silent demonstrations,67 harboured little hope that they would ever see their loved ones again. But what they and others who ask for truth-finding want, is official confirmation of what has happened: on the part of the government, the courts and other public officials or, for that matter, a truth and reconciliation commission. Such official confirmation may take the form of financial reparations, though full financial compensation for what has happened is in itself impossible. How should a mother who lost her son, a wife who lost her husband, be financially compensated?68


Conclusion In this chapter, issues have been addressed that were put on the agenda as a result of international political developments in the last decennia. Taking the reverse order in which the issues have been presented in this chapter, some progress has recently been made on the issue of fighting the impunity of perpetrators of human rights violations. The activities of the criminal tribunals on the former Yugoslavia and Rwanda, the newly established International Criminal Court as well as the manifold truth and reconciliation commissions all point in one and the same direction: present and would-be perpetrators should be aware that there may be a day of reckoning in the not so distant future. The case of former Chilean dictator Augusto Pinochet shows that national courts also have become more active than in the past in trying to prosecute such criminals.69 Economic, social and cultural rights are clearly equally important as civil and political rights with which they are closely intertwined. So far, the importance of economic, social and cultural rights is lost on the political leaders of the United States, who prefer to view these as ‘aspirations’ or ‘policy objectives’ rather than as human rights. This issue should remain high on the next human rights agenda, including the rights of ‘economic migrants’ as compared to those of ‘bona fide asylum seekers’. Next to reasons of a substantive nature, there is also a tactical consideration why western governments should insist on the promotion of economic, social and cultural rights. It would give them a strong argument in the dialogue with those nonwestern states that claim that western countries are mainly working for the promotion of their own (economic) interests. Western states should demonstrate that they are serious about the promotion of all human rights, as mentioned in the Final Declaration of the 1993 World Conference on Human Rights in Vienna. Human rights clearly refer to the rights of individuals. These rights should be first and foremost protected. This should, however, not mean that the human rights of collectivities can be ignored. It is by no means anymore that only African and Asian societies press for recognition of collective rights. The rights of (ethnic, linguistic or religious) minorities ought to be protected anywhere in the world. Collective rights are very much part and parcel of the next human rights agenda. It should by now be clear that the promotion of


individual human rights alone is not enough. There are quite a few unjust situations in the world, which can only be solved by granting rights to collectivities. One may think of the right to development, the right of self-determination, the right to a clean natural environment, and the right to be free from genocide. Granted such rights should not gain precedence over individual rights. Here is also a tactical aspect to consider. Western countries would do well to set aside their present reluctance in this area. In the dialogue with non-western states they might thus gain in persuasiveness. Finally, and perhaps more importantly, there is the issue of the universality of human rights. Should we or should we not speak of standards that are equally valid to all human beings in all parts of the world? What are the precise restrictions of cultural relativism? That debate has an empirical as well as a strongly emotional and normative character. The empirical aspect calls for research; research into the extent to which internationally agreed standards, as contained in the Universal Declaration and other human rights mechanisms, are accepted all over the world and, to the extent that this is not the case, what are the exact differences that can be observed. That means interdisciplinary research by sociologists, cultural anthropologists, lawyers, political scientists, economists and historians from the west as well as the ‘non-west’. Only then will it be possible to determine whether there is indeed an ‘emerging consensus’, as some authors have suggested. At the same time, there is also a normative question to be answered: should human rights be accepted everywhere? The authors of this book happen to think so. This does of course not mean that these norms should be implemented everywhere in the same way. It does mean, however, that permanent pressure should be exercised on states to implement internationally agreed standards. This presents the need for a continuous improvement of global and regional instruments of supervision. In regard to the latter, it would be of importance, if other than the existing supervision mechanisms for Europe, the Americas, and Africa, a regional supervision mechanism would be developed for Asia or parts of Asia, and the Pacific as well. Such regional mechanisms should be seen as a first step in the direction of true global supervision. Refugees and displaced persons have not been dealt with in this chapter. Yet, their fate is indissolubly linked to violations of human


rights in their countries of origin. In this field, very little has been achieved so far by the international community. The UN High Commissioner for Refugees is among one of the more effective UN organs, but is unable to meet all the needs of refugees and internally displaced persons. The latter category in particular is on the increase. The Western European states no longer practice what used to be called a ‘generous’ policy of admittance. On the contrary, they are inclined to close their borders. Internal borders within Europe have been opened up, but externally the opposite is true. Official policy leads to degrading situations, which stand in sharp contrast to the principles contained in the UDHR. Here lies an important task for all those who are concerned with principles such as human dignity and equal treatment, to persuade people in the receiving countries, the parliaments and in the end also the governments, that the acceptance of human rights should have consequences for a more generous policy of admittance. It would be a step in the right direction, if the UN High Commissioner for Refugees would be provided with the necessary financial means to take care of a more dignified treatment of all refugees and displaced persons.

3 Dilemmas of Foreign Policy

Introduction In foreign policy practice, situations may be faced in which different policy objectives may turn out to be incompatible. A choice may have to be made between alternatives, all of which have negative consequences. Having to make difficult choices and setting priorities is part of all policy making, but even more so in the field of human rights than in other areas. This is caused by two kinds of factors. First of all, a human rights policy may conflict with the maintenance of friendly relations with foreign governments. This is of course especially the case, if the foreign government in question is responsible for gross human rights violations. That will call for a response by those governments that emphasize human rights in their foreign policy. Their embassies will be instructed to report on the human rights situation, if necessary on the basis of some specific factfinding, which may involve asking questions that will be perceived as unfriendly by the offending government. The latter may see this as endangering mutual friendly relations. Obviously, these relations will be perceived as even further endangered, if the questions are followed up by criticism, the more so if such criticism is publicly expressed. A second factor is that human rights policy often implies that a government deals with matters that other governments consider as part and parcel of their domestic affairs. This leads to a tension between traditional sovereignty and what the offending government sees as interference in another state’s affairs. For many years, the 45


government of the Republic of South Africa claimed that apartheid was a purely domestic matter with which on the basis of article 2, paragraph 7 of the Charter of the United Nations, the outside world, and the United Nations in particular, had no business. Eventually, the Security Council acted on the basis that the situation in South Africa, if unchanged, might endanger international peace and security. The government of South Africa is of course not the only one that has tried to hide its violations of human rights under the domestic jurisdiction provision of the Charter. Governments prefer to keep their human rights violations secret or, if such efforts are unsuccessful, claim that they are no business of outsiders, or of what is often grandly called the ‘international community’. That international community, for its part, will appeal to the seriousness of the violations in question as the reason why they should be considered, disregarding the domestic jurisdiction argument. Resolutions of UN bodies and other international organizations are often cited in support of this argument. Thus it is argued, for instance, that the right to life is of such a fundamental nature that it should be considered more important than national sovereignty. This can be seen as an important argument in support of interference by international organizations, such as the United Nations. Later in this volume we shall deal with the question whether this might also lead to unilateral intervention by other states, of a military or non-military nature (see Chapter 4). A policy of human rights means a choice among priorities. It means that a government will have to decide, whether and when it will give higher priority to human rights over other foreign policy considerations. These considerations belong to areas such as national security, foreign trade and development cooperation. Such policy considerations may conflict with each other. If they do, a government will have to make a policy choice and set priorities. A wellknown example is the granting of export licenses, for example for weapons or other strategic items, to a state where human rights are being violated. Which consideration should prevail? National security? The country in question may be an important link in the international security network. Economic policy? It may be essential for the survival of an important segment of national industry to be allowed to export the goods in question. Indeed, as it is often argued in such cases, ‘if we don’t deliver the goods, some other country will be quite

Dilemmas of Foreign Policy 47

willing to take our place’. Full employment? The industry in question may be vital for the maintenance of full employment and thus it would be suicidal from the point of view of the national interest to refuse such permission. Indeed, the labour movement is often faced with such dilemmas; on the one hand it may be quite willing to make the case for human rights, while at the same time it will be reluctant to risk losing vital employment opportunities. These policy choices may involve issues that are politically of a highly sensitive nature. Should a donor country use development assistance to effect human rights policy in aid receiving countries? Should development aid to a country where human rights are systematically violated, be cut off? Would that help? Such questions may on occasion lead to heated political debates in parliament, pressing cabinet ministers to come up with a systematic and satisfactory answer. Yet, governments find it hard to come up with systematic answers. ‘Such issues should be decided on a case by case basis’, is an often heard but hardly very satisfactory answer, often given by governments.

Conflicting policy goals Peace and security There exists a general feeling among policy makers that the essence of human rights policy is always potentially conflictive and may lead to a deterioration of relations among states, as no government likes to be criticized for alleged human rights violations. Such criticism may be seen as interference in its internal affairs and as an infringement of its national sovereignty. Human rights policies may indeed produce a decisive deterioration of international relations. As the international relations expert Stanley Hoffmann wrote more than twenty years ago: ‘When a nation asks foreign governments to improve human rights, whether economic or civil or political, it really strikes at the heart of the other country’s political legitimacy and at the heart of its economic system.’1 At about the same time, R.J. Vincent drew attention to the fact that, while diplomats are usually mostly interested in short-term considerations, human rights may play an important role, if security is seen in the middle and long term.2 Moreover, he pointed to the fact that, for example, a flood of refugees, resulting from a denial of human rights should focus attention on the practicality of human rights observance as ‘preventive medicine’.3


Human rights will not always figure on the top of the list of priorities, even of those governments that see human rights as a central element in their foreign policy. Less will be said about human rights, if the offending government happens to be a major power. Criticism of human rights of such countries as the United States, the Russian Federation, or China can lead to an undesirable increase of tension in the world. Former Dutch foreign minister Max van der Stoel, whose commitment to human rights is beyond doubt, once wrote during the Cold War period [T]here are … situations in which human rights policy, in my opinion, should not be given absolute priority. Would it, for example, be correct policy on the eve of an important breakthrough in arms control negotiations, to risk reaching agreement by putting forward the condition that first certain specific human rights violations should be ended? I do not think so: the interest of peace and security should prevail.4 The problem is relatively easy to solve when human rights considerations and national security interests coincide. During the height of the Cold War, this was largely true of the two superpowers, the United States and the Soviet Union. The United States decried violations of human rights in the Soviet Union, such as suppression of freedom of expression and freedom of religion. The USSR for its part criticized the United States for the civil rights situation in that country and for not even having ratified the major UN human rights instruments (the US eventually ratified the ICCPR in 1992 with a great number of reservations and ‘understandings’). When the Cold War changed into détente, western states had to look for an accommodation between a policy of détente, which had been adopted by both alliances, as symbolized by the Final Act of the Helsinki Conference on Security and Cooperation in Europe (CSCE) of 1975, the ‘Helsinki agreements’, on the one hand, and the rejection of basic human rights violations on the other. Although in its view, the two were not necessarily in conflict with each other, the government of the Soviet Union considered criticism of its human rights record as a threat to détente. The Helsinki agreements symbolized with this ‘comprehensive security’ approach as it were, the tension between the wish to maintain


security in Europe and attention for respect for human rights, especially in Eastern Europe. It contained two principles that at first sight seemed to contradict each other. The sixth principle deals with non-intervention in internal affairs: The participating States will refrain from any intervention, direct or indirect, individual or collective, in the internal or external affairs falling within the domestic jurisdiction of another participating State, regardless of their mutual relations. This would mean that supervision over human rights would be left to every state itself. Human rights are mentioned in the seventh principle that deals with respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief: The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion. No rank order was established among the principles. The Helsinki Final Act even explicitly excludes such a rank order: All the principles set forth above are of primary significance and, accordingly, they will be equally and unreservedly applied, each of them being interpreted taking into account the others.5 The subsequent frequent international meetings in the framework of CSCE were characterized by, on the one hand, the desire to maintain and expand détente between east and west, while at the same time – at least among western states – trying to improve the human rights situation in Central and Eastern Europe. In the end, human rights prevailed. Even Henry Kissinger, who as US Secretary of State had been very sceptical about the Helsinki Final Act, had to admit that ‘The European Security Conference … came to play an important dual role: in its planning stages, it moderated Soviet conduct in Europe and afterward, it accelerated the collapse of the Soviet empire.’6


Conflicts may develop between human rights and other foreign policy aims which should lead to a difficult process of weighing. Turkey is a case in point. Although for many years gross human rights violations have been taking place in Turkey, as witnessed by the reports of various sources,7 western governments have on the whole been reluctant to put more than perfunctory pressure on the Turkish government to change that situation. The state complaint under the European Convention on Human Rights by Norway, Sweden, Denmark, France, and the Netherlands of 1982, led in 1985 to a friendly settlement by which Turkey committed itself to submit three reports in 1986 on the measures it had taken to ensure the prohibition of torture practices.8 These reports have never been made public and the practice of torture has not been put to an end. The said Western European governments have refrained from lodging another state complaint, nor has the OSCE-mechanism (see Chapter 4) been put into action against Turkey. Other powerful western governments, such as the United States, the United Kingdom, and Germany have remained silent. It seems rather obvious that in the case of staunch NATO ally Turkey, security interests prevailed over human rights considerations. The failure by the United States to follow up on its own State Department’s reports on the human rights situation in Chechnya in the Russian Federation is another clear example of where security interests prevail over human rights considerations. According to the State Department report over 2001, the Russian government’s record in Chechnya was poor, ‘where the federal security forces demonstrated little respect for basic human rights and there were credible reports of serious violations, including numerous reports of extrajudicial killings by both the Government and Chechen fighters. … The indiscriminate use of force by government troops in the Chechen conflict resulted in widespread civilian casualties and the displacement of hundreds of thousands of persons, the majority of whom sought refuge in the neighbouring republic Ingushetiya. Attempts by government forces to regain control over Chechnya were accompanied by the indiscriminate use of air power and artillery.’9 The State Department report on the Russian Federation was full of these and other violations of fundamental human rights. Yet, little was done by the US government to follow up this report. There can be no other reason to explain this failure to act than that security considerations


prevailed. The Russian Federation was simply too large a piece to swallow. Actions by the United States (or other western nations for that matter) of a military or non-military nature were rightly expected to have negative consequences for international peace and security. Therefore virtually no action was taken. Finally, since the terrorist attacks of 11 September 2001, the ‘war on terrorism’ is, certainly in the United States, considered the most important aspect of current national security. It has trumped most considerations of human rights. Human rights violations in states that cooperate with the United States in combating terrorism, are virtually disregarded, while the objectives of spreading democracy and human rights are mostly seen in function to national security. Terrorism is what first and foremost must be combated. If that fight tallies with considerations of human rights, well and good. If it doesn’t, that is just too bad.

Economic relations Human rights considerations may come into conflict with international trade. The question has often been raised, whether trade should continue undisturbed with countries whose governments are engaged in major human rights violations or whether the suspension of such trade might help to put pressure on the offending government. For instance, after the Chinese crackdown on the demonstrators on Tianammen Square in Beijing in 1991, a large-scale debate took place in the United States on the question whether China should be granted the status of ‘most favored nation’ (in the end it was granted such status). Some years ago, the results were published of a study of domestic efforts to influence Dutch foreign policy.10 This included a number of case studies of possible conflicts between human rights and economic considerations. These referred not only to verbal policy, but also to demands for concrete steps by the government in reaction to human rights violations. It is by no means certain that the proposed actions would have been effective. What is certain is that they would have been at odds with other aspects of government policy – in particular the promotion of foreign trade. On the whole, the latter appears to have prevailed. The Netherlands government was found only to a limited extent to be prepared to take the steps that were


demanded of it. The case studies show clearly that human rights did not prevail over other policy considerations. More recently, the Netherlands government was confronted with a conflict between human rights considerations and economic interests in its relations with China. Holding the chair of the European Council of Ministers, it took the initiative in 1997 to draft a resolution in the UN Commission on Human Rights, on behalf of the EU, criticizing China for its human rights record. The EU had drafted similar resolutions in previous years – resulting in the adoption of a ‘no action’ decision by the Commission. In 1997, however, France, later followed by Germany, Spain and Italy, refused to support this initiative. The reason was that these countries were on the verge of concluding with China a lucrative contract for their aircraft industry. In the end, it was left to Denmark to introduce the draft resolution. As in previous years, China succeeded in preventing the draft resolution from being discussed. It later sharply criticized the Netherlands and Denmark for their alleged unfriendly attitude and by way of sanction, it annulled a number of planned ministerial visits.11 Another consequence of a conflict between human rights considerations and economic relations may be the prohibition of the export of certain goods, the not granting of licences or the postponement of loans, most of which took place in the relations between the Netherlands with Argentina, Chile, and South Africa. A recently published study on human rights in the foreign policy of the Netherlands contains case studies on these countries. In all of them, gross violations of human rights took place in the 1970s, while the Netherlands maintained close economic relations with them, although the specific differences are worth studying (see below).12 During the years 1976–78, the period of the most severe gross human rights violations, Argentinean exports to the Netherlands increased so much that the Netherlands became the most important exporting country for Argentina. Dutch imports from Argentina doubled, whereas Dutch exports to Argentina increased fourfold. A majority in the Dutch parliament felt that economic relations should not be hindered, as long as they did not contribute directly to gross and systematic violations of human rights. It therefore supported the export credit reinsurance by the government for a gas pipeline project by a Dutch firm in Argentina. The day after the Dutch delegate gave a speech in the Commission on Human Rights


in Geneva in 1980, in which he explicitly condemned Argentina, the representative of a major Dutch dredging company in Argentina was summoned to the Argentinean deputy minister of trade affairs and was given a verbal lashing. As a result, the director-general of international cooperation in the Dutch ministry of foreign affairs phoned the Dutch delegation leader in Geneva and conveyed to him the displeasure of his minister. ‘Friendly relations’ between the two countries had obviously been endangered – to say the least. In the case of Argentina, the Netherlands refrained from taking economic measures, though the human rights situation would have warranted such action. On the contrary, in the period of the most severe human rights violations (1976–78), Dutch imports from Argentina increased to such a degree that the Netherlands became its most important target country. It is of course hard to say whether a restriction of these exports would have helped to improve the human rights situation in the country. However, not restricting them certainly did not help to improve matters. This is even clearer with the subject of Dutch arms deliveries to Argentina that were not stopped. Would the termination of such deliveries have disproportionately damaged Dutch interests? Again, that is hard to say, but the conclusion is inescapable that in the case of Argentina economic considerations were given priority over human rights. As the Dutch government paper on Argentina of 1981 was the first application of the principles of the 1979 government memorandum on human rights in foreign policy, the results can only be termed disappointing, if one takes human rights considerations as the point of departure. During the gross human rights violations in Chile, there was an extensive debate about the wisdom of granting export-credit reinsurance policies to Dutch companies doing business in that country. The reinsurance by the Dutch government is necessary for the business firms to obtain financing from private banks. In short, without such reinsurance, no transactions are likely to take place. The government adopted a restrictive policy with respect to the reinsurance of export credits to Chile. Since 1973, private banks have not granted loans to Chile and neither was arms trade conducted with Chile. From the beginning, the Netherlands reacted with strong economic measures to the human rights violations in Chile. Directly after the military take-over by General Augusto Pinochet and his junta, the Dutch government ended all financial credits to Dutch


companies engaged in exporting goods to Chile. Although it was presented as a purely technical decision, there can be little doubt that it was taken mainly on political grounds. The efforts made to end economic and trade relations with the Chile of General Pinochet should be seen as a political signal of condemnation. In the case of South Africa also important economic considerations competed with abhorrence of the apartheid policy, a legally established system of racial discrimination, which was an obvious gross violation of human rights. Domestically, parliament had been paying close attention to the question of apartheid since 1960. Moreover, an anti-apartheid movement had been active in the Netherlands since 1957. This movement, which was in close touch with similar groups abroad, exerted continuous pressure on the Dutch government and parliament to express their revulsion of apartheid and to adopt effective measures against it. In 1979, two Dutch NGOs started a campaign, which aimed at the introduction of an oil embargo against South Africa and the withdrawal of the Shell oil company from that country. The Dutch parliament debated a proposal for such an oil embargo. It passed a motion, which gave the government six months’ time to consult with its European Community (EC)-partners about the possibility of establishing such a joint embargo. The Dutch government was, to say the least, not very enthusiastic about the idea of introducing such unilateral sanctions. It felt that economic sanctions could only be effective if decided by the UN Security Council. In a policy paper, the government promised to see to it that the arms embargo of the Security Council of 1977 would be respected. Voluntary measures could only be effective if at least a relevant number of states, including the then nine members of the European Community, participated. However, parliament was not to be deterred. It adopted another motion asking the government to set up an oil embargo ‘now’. The government refused, however, to carry out the motion. A motion of no confidence was then introduced, which, if adopted, would have meant the fall of the cabinet. The motion was rejected in a cliffhanger vote of 74 against 72. It was the second time in post-war history that a Dutch government was almost forced to resign as a result of its policy towards South Africa. In 1976, a similar situation had occurred as a result of the delivery of nuclear reactor vessels to South Africa. Those in favour of the deal then repeatedly expressed


the fear that other countries (France!) might be quite willing to take over the Dutch position – which is what eventually happened. Instead of introducing a unilateral Dutch oil embargo, the government committed itself to seek support for an oil embargo amongst its Benelux partners and the Nordic countries. These efforts turned out to be unsuccessful. The Nordic countries felt that a broader international context was needed for such an embargo, while the Benelux partners were opposed, as it would be at odds with the common Benelux trade policy and be an obstacle to free trade within the Benelux economic union. From then on, the question of apartheid continued to occupy an important place in the Dutch political debate. The policy agreement of 1981 on which the cabinet was based, contained a number of passages about economic measures against South Africa. It committed itself to participate in the existing voluntary oil embargo; it would follow Sweden’s example in introducing a law on investments; certain imports from South Africa, including coal, would be restricted. However, in 1983, the Netherlands abstained when the UN General Assembly nearly unanimously condemned the new South African constitution. However, faced with continued domestic demands to oppose apartheid, the foreign minister in 1984 presented a so-called ‘two track policy’. This consisted of increasing international political and economic pressure on the South African government and supporting developments in society directed towards peacefully realizing reforms in that country. However, unilateral economic punitive measures were not considered. In the course of 1985, a number of cautious measures were taken, such as the prohibition of the sale of Kruger rands, the recall of the Dutch military attaché from South Africa and the stoppage of oil exports, followed a year later by a ban on the import of iron and steel. Efforts to end KLM flights to and from South Africa were, however, not successful. International anti-apartheid action virtually came to an end with the release of Nelson Mandela, the leader of the African National Congress (ANC), in February 1990, after 27 years of imprisonment. The South African government also announced the end of the prohibition of the African National Congress, the Pan African Congress and other political organizations, a mitigation of the state of emergency, and the abolishment of the law on separate provisions. This led to


serious talks between the South African government and the ANC about the racial and political situation in South Africa. The Dutch government welcomed these relatively peaceful developments and from then on posed as one of the leaders of the anti-apartheid struggle – which it never had been. With regard to South Africa, the Netherlands tried in vain to find foreign partners for imposing an oil embargo. It argued, not without reason, that the Netherlands, acting on its own, would have no impact of any significance. Yet, enthusiasm among friendly western states, including the Nordic countries, for taking part in such an undertaking was scant. On the whole, the Netherlands followed a rather consistent pattern by condemning apartheid in principle, yet shying away from more radical measures, including, for example, ending all forms of cooperation, even economic ones, with South Africa. However, the Netherlands succeeded in 1984 in having the Security Council adopt a voluntary embargo on the import of arms from South Africa. This may have done some damage to the South African economy and have helped to put pressure on the South African government to end apartheid.

Development cooperation Another dilemma presents itself when the government of an aidreceiving country is found responsible for violating human rights. Should the donor country continue its support, diminish or suspend it or terminate it altogether? An argument in favour of continuation is that development aid is meant to give support to the poor, who, in the case of discontinuation, might become victims twice: once through the violation of human rights by their own government and then, by the suspension of aid by the donor government. Moreover, it is not at all certain that the offending government will be harmed by the suspension or termination of aid. On the other hand, continuation of aid could be seen as a (tacit) form of support to the offending regime, which would make the donor government as it were an accomplice in the violation of human rights. Diminishing or suspending aid can have at least a symbolic significance. The donor government thereby distances itself from the violations of human rights in the receiving country.


This type of choice has presented itself in the relations between the Netherlands and its former colony Indonesia, since the coming to power of President Suharto in 1965 until the ending of the aid relationship by Indonesia in 1992. On the one hand, the Netherlands government’s policy was to extend aid to Indonesia to help its economic development. On the other, it was confronted with human rights violations for which the Indonesian government was responsible and which were at odds with the avowed human rights policy of the Netherlands. This led to an unpleasant policy choice: what type of consequences should its human rights policy have for the development relations with Indonesia, if any?13 A complicating factor was Dutch trade interests, that might be imperilled, if the Dutch government, in the view of Indonesia, put too much emphasis on the observation of human rights standards. In the Netherlands, relations with Indonesia have always been the centre of attention. Political parties, NGOs, and the news media have always paid considerable attention to these relations. This is partly because of the colonial past and the reluctance with which the Netherlands had parted with its colonial possessions in Asia in the late 1940s. At the same time, critics have not ceased to point to the much sharper way in which the Netherlands has reacted to violations of human rights in another former colony, Suriname, with which development relations were fully suspended after the killings of a number of political opponents in 1982 (see below). The suppression by the Indonesian army of a coup d’état of left-wing officers on 30 September 1965 led to a period of massive violations of human rights. According to an Indonesian source, between 1965 and 1968 more than half a million persons were killed. According to other sources, the figure was more than a million.14 Beginning in October 1965, arrests took place on a massive scale. These massive numbers of political prisoners were not, or only after a long time, put to any kind of trial. Many were detained in camps. They were badly treated especially during the first years of detention. Many were tortured, often leading to their deaths. The survivors were only gradually released, often after many years of detention. After their release, these ‘ex-Tapols’ remained exposed to all sorts of restrictions. At the time, the question was raised in the Netherlands, whether and to what extent development aid should be used to put pressure


on the Indonesian authorities, to get the political prisoners released. The international position of the Netherlands was strengthened, when it became chairman of an international donor consortium for Indonesia, the Inter Governmental Group for Indonesia (IGGI), established in 1967. Non-governmental human rights organizations were given the opportunity to raise human rights concerns in the margin of IGGI meetings, though these were never formally put on the agenda. The human rights situation further deteriorated in the early 1970s, when death squads operated, killing opponents of the Suharto regime. In 1975, Indonesia invaded and incorporated the former Portuguese colony of East Timor. The Indonesian army also acted mercilessly against separatist movements in Aceh and West Irian. What should the Netherlands do under these circumstances? Economic and business relations with Indonesia had improved after 1966. Almost 10 per cent of Dutch development aid went to Indonesia. Trade with Indonesia had tripled between 1966 and 1984. Cultural relations showed a growing improvement. On the other hand, NGOs continued to urge the Dutch government to do something about the deteriorating human rights situation in Indonesia. Also within the Dutch Labour Party and the smaller Radical Party, both of which formed part of the governing coalition, voices were heard in favour of cutting or suspending development aid to Indonesia to express Dutch concern about the human rights situation. Between 1982 and 1984, a number of ‘mysterious murders’ took place, of which President Suharto in his autobiography later admitted that they had occurred under official orders. There were reports about human rights violations by the security forces in Irian Jaya, Aceh and East Timor. On the latter island, matters became explosive, when Indonesian military opened fire on a funeral procession in the East Timorese capital of Dili, killing an estimated one hundred persons. Since then, both intergovernmental and NGOs have reported about continued human rights violations in East Timor until it came under a United Nations interim administration and finally achieved independence in 2002. The Netherlands government reacted to the execution of four former bodyguards of President Sukarno by withdrawing 27 million guilders (about 13.5 million US dollars) of additional aid for Indonesia. This announcement may have been of little financial importance, but it was generally seen as a cause for renewed tension between the Netherlands and Indonesia.


In reaction to some specific promises by Indonesia, the Netherlands government announced in January 1992 its willingness to resume its aid programme for Indonesia. It stated that it assumed that the Indonesian–Portuguese negotiations about the future of East Timor were to lead to a satisfactory solution. But it added that, should these negotiations not lead to satisfactory results, it would discuss possible consequences with its European partners. In answer to the Dutch threat, Indonesia started a diplomatic offensive in order to prevent other donor countries from associating themselves with the Dutch approach. The Indonesian minister of foreign affairs visited a number of foreign capitals and succeeded in receiving the support he requested. President Suharto, on the occasion of accepting the credentials of the new Dutch ambassador, spoke of Dutch ‘colonial behaviour’, as had become apparent from the continued Dutch interference in the domestic affairs of Indonesia. The establishment of a link between human rights and economic aid, he termed ‘typically western’. The Indonesian government announced on 25 March 1992 that henceforth it did not want to receive Dutch aid anymore and that it had asked the Netherlands to discontinue its chairmanship of IGGI. By way of explanation, Indonesia referred to the ‘reckless use of development aid as an instrument of intimidation or as a tool of threatening Indonesia’.15 The dilemma faced by the Netherlands was the result of its traditional emphasis on human rights in its foreign policy on the one hand, and its desire to maintain friendly relations with Indonesia – including the maintenance of a policy of development cooperation to contribute to Indonesia’s economic development. The problems that arose, were undoubtedly made more acute by the circumstance that it involved a relationship between a former colonial power and its former possession. From the beginning, it has been alleged by critics of the Dutch government that the suspension of aid to Suriname, while this was initially not done in the case of Indonesia, was a policy of double standards. The Netherlands government has, however, steadfastly denied that such was the case. It has emphasized the unique, treatybound character of the development relationship with Suriname. Aid to Suriname was not only very extensive, but also formed the lion’s share of total international aid to that country. A further important consideration for suspending aid was the seriousness of the human rights violations in a country with a tradition of absence of violence in politics. The assassination of fifteen known opponents of the then


military regime in December 1982 destroyed in one blow the core of the political opposition in Suriname. Next to these factors, mentioned by the government, there were undoubtedly other political considerations as well. Suriname is a relatively small, powerless country, while the Netherlands was and still is one of the few foreign states that have shown some real interest in its fate. The case of Indonesia is entirely different. That country is large and potentially powerful, located in a strategically important geographical area. For Dutch business interests Indonesia is by far more important than Suriname. Annual Dutch aid to Indonesia was small in comparison to the size of its population and represented only a small proportion of total international aid given to Indonesia. The debate may never end about the question, whether or not the Netherlands government did apply double standards with reference to Suriname and Indonesia. The government claimed at the time that the assassinations in Suriname had changed so drastically the situation that continuation of the aid effort was impossible. It also pointed out that, according to its policy principles adopted in 1979, development aid should never be used to support repressive regimes nor lead to complicity in gross violations of human rights. The government never said, however, that it had suspended the treaty with Suriname in order to improve the human rights situation in that country. However, in Suriname, the suspension of aid was definitely seen as a sanction in reaction to the violation of human rights. The different approach did at least not contribute to the credibility of Dutch human rights policy; the more so as in both cases the same kind of violations of human rights (summary and arbitrary executions, disappearances, torture, arbitrary arrests) were at stake. The Netherlands government had at times to face strong domestic political pressure. Human rights organizations have a relatively strong position in the Netherlands. They have repeatedly pointed to the deficiencies in the human rights situation in Indonesia. On the other hand, there were clear economic interests of the Netherlands that demanded extension of trade relations with Indonesia and an improved climate for investments. These interests were not served by very explicit criticism of Indonesian government policies, in the realm of human rights or elsewhere. The case study of Dutch–Indonesian relations serves to show how a government that makes support for human rights one of the main


tenets of its foreign policy, may be confronted with difficult choices of policy. Whatever it does, it will always fall short in the eyes of some critics: either because of stressing human rights too much at the expense of other central elements of foreign policy, or because of not paying enough attention to human rights. It also provides a vivid example of a receiving country refusing further economic assistance because of alleged undue interference in its domestic policies. Problems of tension between considerations of human rights and of development cooperation may also appear in relations between countries that have no former colonial ties. In a joint Norwegian–Dutch study, a comparison has been made between the rupture of development aid relations between Indonesia and the Netherlands and a similar case between Kenya and Norway, because Norway had allegedly expressed itself too critically over the human rights situation in that African country.16 Another example of the relationship between development aid and human rights is the relationship between the Netherlands and the countries of Central America.17 Some Central American countries used to protect and promote civil and political rights, for example, Costa Rica, whereas others protected and promoted economic, social and cultural rights, for example, as in Nicaragua. The Dutch parliament has expressed clearly its wish to promote both types of rights. In the case of Nicaragua, the parliament not only asked to continue development aid, but at the same time sought to put human rights (i.e. civil and political rights) on the agenda. To Costa Rica the reverse applied: in order to preserve democracy (i.e. civil and political rights) it was suggested to promote the implementation of economic and social rights by means of economic and financial aid. The critical attitude in the Dutch parliament was also the result of United States’ support for El Salvador and its boycott of Nicaragua, whereas the Dutch supported Nicaragua and denounced the US boycott. Each year, the Dutch government reported to parliament on the money spent by the government on development aid. Since the government memorandum on human rights and foreign policy of 1979, this report has been accompanied by an evaluation of the human rights situation in the target countries. During the first decade, the reports on the human rights situation were gloomy. Frequently, deterioration was reported and in some cases the issue was put on the international agenda, as with Guatemala in 1982. Bilateral


development cooperation with Nicaragua was continued, because the Dutch felt that Nicaragua should not be internationally isolated. At the same time, the Netherlands tried to achieve a common European aid programme to promote stability in the region through European economic aid. The continuing struggle in Nicaragua, Guatemala and El Salvador was not the result of the east–west division, but was rooted in socioeconomic conditions. For this reason, economic aid was needed, preferably supported by the EU. This Dutch view differed vastly from the US position and consequently the Netherlands opposed the United States blockade of Nicaragua in the UN Security Council. Although the east–west dimension may not have been the origin of the struggle, it was clearly reflected in these proxy wars and had its repercussions in United States, European and Dutch foreign policy. In 1985, the foreign affairs ministry dealt, for the first time, in a special paragraph with the development cooperation programme between the EU and Central America. The Dutch government put forward its ‘appreciation of the endeavours of the Central American countries to end the violence and to promote social justice, economic development, compliance with human rights and democratic liberties, while the government was of the opinion that the European Union could support this endeavour with a substantial contribution’. It is concluded that the Netherlands consistently put forward arguments of security and human rights to start a European development programme in Central America outside the Lomé context. In 1985, the first agreement on development cooperation between the European Union and Central America was signed. It had only a modest budget. The degree of poverty was the prime criterion for EU aid selection. The Netherlands argued, however, that in the future, support for the democratization process should also be an important criterion. In its regional policy for Central America, the Dutch government was clear on its policy objectives: the preservation and reinforcement of the process of democratization required a combination of political and economic support from the outside. Economic aid was also necessary, because a political democracy could only survive if fundamental socio-economic rights were safeguarded and the population felt that there was economic progress. In 1984, the government was faced with the problem of how to extend humanitarian aid to displaced persons and other groups living in territories outside the


control of the central government, as in Guatemala and El Salvador. Special channels were created under the supervision of a separate officer in the embassy in Costa Rica, a post specially created for that purpose. In 1988, the regional programmes for Nicaragua, Costa Rica, Guatemala and some projects in Honduras and El Salvador received Dutch financial support. In the following years, the human rights situation deteriorated to such a degree that the Dutch government decided to provide the aid for a considerable part through multilateral and private channels in order to directly help the groups of primary concern. A new Dutch policy was disclosed: a three-way approach to the different developments and perspectives of the Central American countries: bilateral, multilateral and non-governmental. For instance, bilateral aid to El Salvador was discontinued, while bilateral aid to Guatemala was reconsidered. This policy was continued in the following years. It can be concluded that human rights in general and the restoration of democracy in particular were the main reasons for initiating development assistance to these countries. Safeguarding human rights, restoring democracy and preserving and sustaining the process of peace and security in Central America were the main reasons for Dutch government policy in the 1980s and 1990s for providing economic and financial aid to these countries. In this case, the main foreign policy areas of human rights and development assistance were closely interconnected. Development assistance contributed, however, only to a very limited extent to the promotion of economic and social rights. In monitoring the violations of human rights in Central America, the Dutch government was more aware of civil and political human rights than of economic and social rights. Nevertheless, it is fair to conclude that, at least in the case of Central America, development aid was used as an instrument of human rights policy.

Other dilemmas Selectivity Another policy choice refers to the selection of countries one may want to concentrate on. Should a government direct its concern for human rights to countries of whatever political colour? In other words: should it be ‘non-partisan’ and ‘non-selective’? Should a human rights policy be ‘even-handed’ or is that not necessary?


Should a government see it as a problem, if it is being accused of ‘selective indignation’? Should it be allowed to make human rights policy an instrument of security policy, which would mean that one would concentrate one’s attention only on governments that are already or may become one’s enemies? Or should one rather focus on countries that belong to one’s own political and cultural sphere? A matter of consideration may be which policy is considered to be most effective. The government of the Netherlands once noted ‘… that there is more reason to make our views known in cases which concern the observance of human rights in the Western countries with which the Netherlands has close, cultural and political ties’.18 That is a very principled and attractive sounding point of departure, but the question is whether such an approach can be maintained in political practice. One’s enemies may misuse criticism of the human rights performance of one’s allies. On the whole, governments will therefore be reluctant to pay systematically greater attention to the human rights performance of their friends rather than to that of their foes – at least in public. There are of course always informal channels, as part of what is often called ‘silent diplomacy’, through which one can, out of the public ear, express one’s views. There can also be a kind of selectivity that relates to the choice of rights on which a government focuses its human rights policy. Most western states tend to concentrate their efforts on the classical civil and political rights to the detriment of economic, social and cultural rights. This is of course obvious for the United States of America that even principally rejects the notion of socio-economic human rights. The late R.J. Vincent gave priority to what he called ‘subsistence rights’ which consist of the fulfilment of basic human needs. Such basic needs would buttress human rights by insisting on a more equitable distribution of wealth and income by being more detailed and comprehensive, and by spelling out what is basic to human survival.19 These subsistence rights encompass most of what is commonly listed as social-economic rights. The authors of this volume share his view that developed states have not paid sufficient attention to the implementation of socio-economic rights in their foreign policy.20

Consistency It is often claimed that governments should pursue a certain degree of consistency in their human rights policy. This means that in equal


situations there should be equal reaction. It is commonly assumed that governments will be more persuasive, if they react equally to human rights violations in different political settings. Evan Luard was a strong proponent of such consistency: If western governments … denounced only human rights violations in Eastern Europe, but ignore those in the West; if communist states denounced only the situation in Chile or Northern Ireland but say nothing of that in Cuba or Ethiopia, they cannot expect to be treated as unbiased in such campaigns.21 As was noted before, the Dutch government has often been accused of inconsistency, because it suspended its development aid to Suriname, after the political murders there in 1982, while in the case of Indonesia, where equally serious human rights violations had taken place, for many years it refused to do the same. It always denied that its policy had been inconsistent in view of the major differences in the aid receiving countries. It seems, however, that the Dutch government more strongly emphasized the notions of ‘complicity’ and ‘regime support’ in the case of Suriname than in the case of Indonesia. In the latter case, other western donor countries were willing to take over the role of the Dutch. While this policy can be understood as realistic, its lack of consistency may damage the credibility of overall human rights policy. Absolute consistency is not necessarily always most effective. Former British foreign minister, David Owen, relates that, when he made human rights a major item of his foreign policy, he warned that its price might be a little inconsistency. On second thought, he writes, it was not a matter of a little inconsistency, but a great deal of inconsistency. He does not seem to regret this.22 Assuming that international standards should always be equally applied, an effective foreign policy can nevertheless imply that in similar situations different instruments are employed. However, the burden of proof that an inconsistent or less consistent policy may be more effective in the promotion of human rights rests with the government choosing such instruments. Effectiveness One can never be 100 percent sure that (suspension of) activities in the field of security, economic relations or development aid will


indeed help the cause of human rights. It may hurt national security, economic interests and full employment, without actually achieving the desired improvement of human rights. Thus a negative decision on a requested export licence may be quite costly in those other policy areas and in the end it may merely result in the good feeling of ‘having done something’. That may be a pleasant feeling for private citizens, from a moral point of view. However, as important as moral views are, they are not the only considerations that guide foreign policy. A government will thus be faced with difficult policy decisions, especially where human rights considerations are involved. One way of ‘measuring’ effectiveness is to make use of a human rights impact assessment, as proposed by the Dutch Humanist Committee on Human Rights (HOM) in a report issued in 2002. Such an approach could include the following seven procedural steps at the national or preferably at the international or regional level: (1) an assessment of the actual human rights situation; (2) political analysis; (3) selection of the essential questions and outline of policy options; (4) political decision making on policy measures; (5) implementation of policy actions; (6) monitoring and (7) an evaluation.23 Joint activities A joint démarche undertaken by a number of states acting together, is more likely to be effective than a solitary action. Such countries as Norway, Sweden, Denmark, Finland, the Netherlands and Canada often used to find each other as ‘like-minded’ in matters of human rights. For the Nordic countries, this was, for instance, the case in joint efforts to combat apartheid in South Africa. The Netherlands, on the other hand, nowadays looks rather for support among its European Union partners, which have decided in principle to develop a common foreign policy.24 An added advantage of such joint action is that a lesser burden is placed on overall bilateral relations with governments that are responsible for human rights violations. Thus, this type of ‘burden-sharing’ may be rather effective. On the other hand, the wish to act jointly may also have negative effects. For example, according to some experts, the Netherlands agreed too quickly to joint withdrawal – ‘friendly settlement’ as it was officially worded – of the European states’ complaint against Turkey in 1985. Critics felt at the time that the Turkish government had made little or no commitment to improving the human rights


situation and was let off far too easily.25 A second example is provided by the efforts of a number of EC members, including the Netherlands, to impose sanctions on South Africa, including an import stop of South African coal. Germany and Portugal, the only major European consumers of South African coal, however, successfully opposed this proposal. In that case, the direct economic interests of the EC member-states clearly diverged, which made it impossible to impose the sanctions favoured by the majority.26

Conclusion No government can afford to pay attention only to human rights in its foreign policy. There are always other issues to consider. Only NGOs can afford to be single-minded in the sense that they need not have other concerns to deal with. What it boils down to is that governments are continually faced with the dilemma of making the right choices at the right time. Where and when to work for the promotion and protection of human rights in the world is one of these choices. It is a continuous weighing process. The difficulty of this weighing process has been brought out in this chapter. It should be remembered that governments are seldom free to make such choices simply on their merits. They are constrained by their own domestic history, by the history of their bilateral and multilateral relations and, particularly by the fact that they are under constant pressure: pressure by parliament, by the press, by public opinion and, last but not least, by NGOs. All of these actors watch their government’s steps carefully and express their views and criticisms whenever and wherever they find that necessary. As was pointed out before, this may be true of all forms of policy, but perhaps even more so in the field of human rights foreign policy. Why is that so? For the simple reason that, while the greater part of foreign policy consists of maintaining friendly relations with other governments, human rights happen to be a highly sensitive matter. No government likes being criticized for its human rights policies. What other governments may consider human rights violations, the government in question will see as a legitimate pursuit of its national interests. It will vehemently deny that it has been guilty of human rights violations. If it happens to be a major power – and sometimes even if it isn’t – it may respond by hitting back in other fields of


foreign policy, such as national security, economic relations, or development cooperation. That is why a government that has decided to pursue a human rights foreign policy, has to weigh carefully the possible repercussions of such a policy. That means also that choices have to be made among the states whose human rights violations one wants to criticize. It is manifestly impossible for a foreign ministry to deal with all human rights violations of all states at the same time. Again this means a careful consideration of where one wants to pinpoint one’s arrows. Only to one’s (potential) foes? Or indeed to one’s allies? To major powers or rather not? Whatever the choice, there are bound to be critics who will bring out the necessary inconsistencies in those choices. Whoever wants to pursue a human rights foreign policy, must accept some manner of inconsistency. The only way to be fully consistent in one’s choices is not to act at all, which is not a very attractive option, either. As Stanley Hoffmann once pointed out To ask for consistency would, in practice, consist of saying that since there are some countries whose internal policies we can never affect, for instance the Soviet Union, we should not try to affect any.27 That would indeed not be satisfactory.

4 Policy Instruments

Introduction Governments command a great number of instruments that can be used to influence other governments’ policy. Such instruments vary roughly from ‘making a friendly request’ to military intervention. Between these two extremes lie many possibilities. In academic literature, various lists of such instruments have been developed.1 Governments use certain instruments to try to influence the policy behaviour of other governments. Such instruments are used for foreign policy in general, but are also applied to promote respect for the promotion and protection of human rights. This chapter deals with actions by governments to bring about improvements of the human rights situation elsewhere. These instruments can be divided into three major categories: ● ● ●

Diplomatic means; Economic means; Military means.

The choice among policy instruments depends on the kind of instrument that is available, on the effect to be expected and on the expected reactions. In order to increase the effectiveness of their actions, governments often take steps jointly with other governments (see next section).

69


Diplomatic means A traditional and very common possibility is to approach another government through confidential, diplomatic channels. ‘Quiet diplomacy’ is the classical way in which governments, through the ages, have dealt with each other. They deal unobtrusively with each other in private meetings, bringing matters of mutual concern to each other’s attention.2 One way of using diplomatic means is to undertake a formal démarche through one’s diplomatic representative. That representative may call on the authorities of another country (an official of its foreign ministry or, if the matter is of sufficient importance, the foreign minister himself) for example, to express concern about the human rights situation or to call upon that government to refrain from certain actions. If such confidential activities have no or insufficient effect (or are expected to have no such effect), a government may decide to deliver a statement in public. It is a matter of judgement, which may differ from case to case, whether it is more effective to take up human rights matters in public or in private. Sometimes, a government can be more easily persuaded to make certain concessions, if there is no threat of loss of face involved. On other occasions, publicity, or the threat of such publicity, may force a government into action. Governments often allege that they are busy taking action through diplomatic channels, when faced with critical questions by members of parliament or journalists. For obvious reasons, such statements cannot be verified. It is a matter of faith, whether or not one is prepared to believe them. If a minister has shown on other occasions that he is personally seriously concerned with human rights questions, he is more likely to be believed when referring to confidential approaches than if he is not known for his commitment to human rights. Even NGOs such as Amnesty International do not always act in public, but may prefer acts of ‘quiet diplomacy’. The determining factor is what method is expected to be most effective. Public statements, in parliament or at international organizations such as the United Nations, are often also meant for domestic consumption. In organs of the United Nations a state can choose to adopt an active position, for example, as a member of the Commission on Human Rights. But even if a state is not a member of that body, it is entitled to attend its meetings as an observer and make statements on human rights in general or on particular issues or countries. It thus

Policy Instruments 71

may act to promote the observance of human rights. Such promotion also takes place in the Third Committee (for social and cultural affairs), the committee of the General Assembly where issues of human rights are discussed. The cancellation or postponement of ministerial visits can be a manner to express criticism of the human rights situation in another country. The ministerial visit itself can also be used for this purpose, although this requires considerable caution, in view of the sensitivity of such issues. The host government will usually not appreciate clearly expressed criticisms of its policies on the part of a visiting foreign dignitary. Firm pronouncements may be applauded at home, but not have the desired effect abroad. Such a visit, if extended to a country that is known for its poor record in human rights, must be very carefully prepared, to prevent it from being misused by the host country as a sign of approval for its policies. There are also various legal and political means to deal with human rights violations elsewhere. Various international treaties offer legal means to deal with human rights violations. Among such legal means are the state complaint procedures under the International Covenant on Civil and Political Rights (article 41), the European Convention on Human Rights (article 24), the American Convention on Human Rights (article 45), and the African Charter on Human and Peoples’ Rights (article 47). These states’ complaints are, however, nowadays seldom used (see Chapter 5). Different international arrangements also provide for more political procedures that can be used to deal with human rights violations. These include the ‘Vienna’ and ‘Moscow’ mechanisms of the Organization for Security and Cooperation in Europe (see Chapter 5), and the 1235 and 1503 procedures in the UN Commission on Human Rights. The United Nations Economic and Social Council (ECOSOC) resolution 1235 (adopted in 1967) allows both members and non-members of the Commission to raise issues regarding violations of human rights all over the world; this may lead to the adoption by the Commission of country-specific resolutions. ECOSOC resolution 1503 gave rise to the ‘1503 procedure’, whereby confidential communications about violations of human rights are dealt with in closed meetings. Violations of human rights can lead to a restriction or breaking off of contacts in the fields of culture or sports. Thus, for a long time many nations refused to have such contacts with South Africa, by


way of protest against its policy of apartheid, in response to resolutions to that effect adopted by the General Assembly of the United Nations. On the whole, this attitude was supported by the victims of apartheid, as represented by organizations of black South Africans, such as the African National Congress. The case of South Africa used to be a rather simple one, at least in terms of policy choices. In other cases it may be more difficult to decide on a proper response. Breaking off diplomatic relations is an instrument by which a government can express its disapproval of another government’s policy, for example, in the realm of human rights. But this instrument can be a double-edged sword. Luard has pointed to the negative aspects of breaking off diplomatic relations. He gives the example of Cambodia, where between 1975 and 1978 horrid killings took place. As no western government maintained diplomatic relations with the country at the time, there was no possibility to even try to influence the Cambodian government. Moreover, little was known outside Cambodia of what happened in the country. Luard strongly opposed the breaking off of diplomatic relations with this type of regimes: There is a double disadvantage in such situations. On the one hand, there is little external influence on the government concerned. On the other hand, the oppressed population feels deserted and without recourse. Potential centres of resistance lose hope. Churches and religious groups, without support from elsewhere, lose influence. A policy of isolating a country where such events are taking place is thus the opposite of what in fact is required.3 One might add that in many Latin American countries foreign embassies have often functioned as a refuge for political opponents of local repressive regimes. In communist Eastern Europe, western embassies gave moral and material support to dissident movements. These are additional reasons to maintain diplomatic representations in such countries. If one accepts these arguments, one must give up the clear sign of disapproval expressed by breaking off diplomatic relations. It means, however, that the diplomatic representatives must be clearly instructed as to which activities vis-à-vis the oppressive government they should, and which they should not take part in.


Finally, it should be added that diplomatic instruments are not necessarily only negative in nature, as the above may suggest. For example, extensive debates have dealt with the question of whether to extend expert legal training to judges, lawyers, officials and students in countries where human rights are being violated by the government. Proponents of such training projects argue that they will make legal practitioners more aware of international human rights norms, while opponents see it mainly as an indirect measure of support to the offending regime. In such cases, both parties are aiming for the same thing: improvement of the human rights situation. They have, however, diametrically opposed views with regard to which means should be employed to achieve that aim. Further positive measures include ●

●

●

●

The invitation for a visit by a head of state or government to express support for the host country’s human rights policies. The invitation to a government to participate in an international conference or to become a member of an international organization. The latter option may include an invitation to various Central- and Eastern European states to join the Council of Europe and the European Union, in order to stimulate the process of democratization and respect for human rights in these countries. Programmes to train judges, lawyers, police officers and students as part of a programme of development assistance (see below), as have happened, for example, in Turkey, China and Indonesia. The offering of financial or practical support, for example in the organization of elections.

Economic means Economic sanctions Among economic sanctions one may distinguish boycott actions from embargo measures. A boycott prohibits the importing of goods from the state against which the boycott is directed, whereas an embargo prohibits the exporting of goods to the state against which the embargo has been imposed.4 Within the UN system, the Security Council is the only organ competent to impose mandatory economic sanctions.5 The United Nations has imposed economic sanctions on


the following countries: Afghanistan, Angola, Cambodia, Eritrea, Ethiopia, Haiti, Iraq, Liberia, Libya, Rhodesia, Rwanda, Sierra Leone, Somalia, South Africa, Sudan and Yugoslavia. In general, governments are often reluctant to apply economic sanctions, among other reasons because they may hurt themselves. Donor states rather suspend their development assistance than apply economic sanctions.6 In the case of the arms embargo against South Africa, most western states were only willing to enter into such an embargo after the Security Council had taken an explicit position in support of such sanctions. Governments tend to hide behind the argument ‘if we don’t do it, some other country may’. Moreover, the effect of such a measure is often put into question. It might hurt the wrong persons, promote a ‘lager-mentality’ or be counterproductive. A similar argument was often heard against the establishment of an oil-embargo against South Africa.7 Moreover, such sanctions, are, in the words of former UN Secretary-General Boutros Boutros-Ghali, a ‘blunt instrument’. ‘They raise the ethical question of whether suffering inflicted on vulnerable groups in the target country is a legitimate means of exerting pressure on political leaders whose behaviour is unlikely to be affected by the plight of their subjects. Sanctions also always have unintended or unwanted effects.’8 Sanctions are considered successful, if they help to bring about a desired policy change in the target country. The stated goals are thus punishment and coercion.9 However, sanctions may also be imposed for symbolic and demonstrative purposes rather than for coercive or punitive reasons and may be directed at domestic or third-country audiences, as much as, at the ostensible target.10 Hazelzet has pointed out that the numerous side effects of sanctions, especially for the innocent population, have insufficiently been addressed in the literature. She suggests that hardly any government has changed as a result of sanctions.11 Economic sanctions may indeed violate social and economic human rights, such as the right to food, education and health. One author has even labelled economic sanctions as ‘economic terrorism’: ‘… there is no denying the fact that sanctions imposed by the UN have adversely affected the most vulnerable sectors of society: women, children, the sick, the poor, the elderly. … The use of the sanctions weapon often seems to be an easy way out, but it is never a solution.’12


In recent times, a great deal of discussion has dealt with the concept of so-called ‘smart sanctions’, which supposedly will hit directly at the target governments, while avoiding hurting the civilian population. For instance, in the case of UN economic sanctions against Iraq, certain humanitarian exceptions have been made in the field of food and medicine. However, so far there exists no consensus at to whether such ‘smart sanctions’ are workable and will have the intended effect.13 Van Genugten c.s. conclude their book with some seven ‘guidelines’ on the use of sanctions that should be taken into consideration, in order to make sanctions a successful – ‘or at least tolerable’ – instrument from a human rights perspective. They relate to (1) the specificity of objectives: the objectives have to be as clear and well described as possible, (2) the proportionality between objective and instrument: the harm that is inevitably caused by sanctions must be proportional to the good to be achieved, (3) the possibility to influence the position of the rulers: these rulers, not the population, should be mainly affected by sanctions, (4) the linkage between external and internal pressure: such pressure is most likely to be effective if it comes both from outside and from within society, (5) the ways of minimizing and monitoring humanitarian damage: a sanctions regime should contain clauses to restrict as much as possible the damage for the civilian population, (6) the period of time sanctions take: the duration of sanctions should be as limited as possible, and (7) the preference of a multilateral basis for sanctions: the legitimacy of sanctions increases when more countries support them.14 All of these suggestions are well worthy of consideration. It is rather difficult to distinguish in the debates about economic sanctions the arguments that are based on finding the most effective ways to promote human rights from those that are used for other political or economic reasons. The discussion about the effect of economic sanctions is an old one. Would an oil-embargo against South Africa in and of itself have ended apartheid? Probably not immediately, but it might have hastened the demise of the system and have brought the regime into difficulties. In the event, international disapproval undoubtedly contributed to the eventual dissolution of apartheid, but its final termination depended in the end on the people of South Africa themselves. The sanctions that the Security Council in 1990 ordered against Iraq were widely criticized for hurting the wrong people. Although


exceptions were made for medical supplies and other forms of humanitarian aid (‘the food for oil programme’), it was widely felt that the sanctions hurt the civilian population of Iraq far more than the regime of Saddam Hussein that they intended to affect.15 In 2003, after its successful military operations that ended the regime of Saddam Hussein, the United States persuaded the UN Security Council to lift the sanctions and to resume full economic relations with Iraq. Economic means to affect human rights policies may also include positive measures, such as granting most-favoured nation status in trade relations and the allocation of loans or credits, as were extended by the European Union to Central- and Eastern European states, linked to the rule of law and respect for human rights. The economic measures discussed in this paragraph can fulfil the following functions: ●

●

●

●

●

The exertion of political pressure. The aim is to cause economic damage and thus to bring pressure to bear on the responsible authorities to terminate a practice of violation of human rights. Punishing an offending regime. A government may be punished for human rights abuses by the infliction of economic damage. The ultimate aim of such economic penalties is specific and general deterrence; the imposition of economic sanctions is intended to restrain the offending government and to discourage other governments from committing similar abuses. To create practical obstacles to (further) violations, for instance by not allowing the export of arms or other military equipment. An embargo on such deliveries is intended to make it more difficult to carry out repressive practices. Avoiding involvement in human rights violations. A government may terminate economic relations with another country in order to avoid becoming an accomplice to certain human rights violations in that other country. The showing of solidarity and moral support to the victims and their next of kin. Economic sanctions may convey a message to victims of human rights violations, assuring them that the government that is imposing the sanctions, is concerned about their plight.


Development aid The instrument of a denial or cancellation of development aid was already briefly discussed in the previous chapter. In addition to the problem of ‘manipulation’, there is the danger that such measures may hurt the wrong people – the very poor for which development aid was set up in the first place. Members of government, even of very poor countries, rarely suffer directly from the withholding of development aid. It is very difficult to determine, whether in the case of gross and systematic human rights violations, the cancellation or suspension of development aid is or is not an effective instrument to restore human rights. The Netherlands suspended its large aid programme to its former colony Suriname in 1982, after the summary execution by the military regime of 15 known opponents. Difficult as it is to determine afterward, whether the instruments employed have been effective, even harder is it to state so beforehand. Therefore, for donor countries it may be the best way to try to avoid complicity in the sense that its aid should not be used for purposes of repression and to prevent the aid from helping the repressive regime to stay in power – although this may be hard to avoid. The only way to stay ‘clean’, is not to give any aid at all to countries with repressive regimes. Such a ‘clean hands’ policy is, however, not going to help the poor people of the world and would limit aid to the happy few human rights observing countries such as Costa Rica, Botswana and Oman. Such a policy would, obviously be self-defeating. There are just no easy solutions to the problem. One way of expressing disapproval of a recipient government’s human rights record would be to cut aid programmes by a certain percentage, as Norway has done in the case of Sri Lanka. But the recipient country may retaliate by refusing aid programmes altogether, as Indonesia did in 1992 in the case of the Netherlands.16 Positive sanctions may be more effective than negative ones. Development aid is after all intended to improve economic and social human rights in the recipient country. Development aid can also be used to support local institutions that try to promote civil and political rights. This may entail giving support to the judicial process, improving the role of the communication media, the development of independent trade unions, the giving of training and refresher


courses to judges, helping prison reform, designing legislation that is in accordance with international standards, giving human rights education to the military and the police, supporting relevant UN projects as well as university cooperation. Support may also be extended to local movements working on behalf of the development of democracy and the promotion of respect for human rights.17 Such support may also be offered by subsidizing NGOs in donor countries that work in developing nations.

Military means: intervention for humanitarian purposes The strongest and most drastic instrument governments dispose of to put pressure on other governments is intervention, if necessary military intervention. Intervention is some manner of forceful interference by a state into another state, in order to bring about a change of behaviour by that other state. Such unilateral use of force is, however, not permitted under the rules of international law. Military intervention runs counter to the concept of national sovereignty, which lies at the basis of traditional international relations and which is enshrined in article 2, paragraph 7 of the Charter of the United Nations. The prohibition of the use of force has, for example, been clearly formulated in the UN Charter article 2, paragraph 4 and in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which was adopted by the General Assembly of the United Nations in 1970: Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purposes of the United Nations.18 The prohibition of the use of force also extends to what is known as ‘humanitarian intervention’ which refers to the unilateral threat or use of armed force by one state against another to protect the life and liberty of nationals of the latter from acts or omissions by their own government.19 There is, however, one situation in which the use of force, including humanitarian intervention, might be acceptable under international law: if the Security Council acting under the


articles 39–42 of the UN Charter, decides that the human rights violations in a specific area pose a threat to international peace and security and that therefore measures of a military nature are necessary. There has been, however, a continuing debate on the question whether gross human rights violations, while threatening life and liberty of the local population, do necessarily pose a threat to international peace and security. Already in the 1960s, the Security Council decided that the domestic situation in South Africa, if unchanged might endanger international peace and security. Therefore, it called on South Africa to end its policies of apartheid. In the 1970s, it characterized the domestic situation in Rhodesia as a threat to international peace, requiring correction.20 More recently, the Security Council in its resolutions on the oppression of the Kurds in Iraq21 and on Somalia22 established a direct link between gross violations of fundamental human rights and the existence of a threat to international peace and security. In the resolution on the Kurds, the Security Council condemned the repression of the Iraqi civilian population in many parts of Iraq, including in Kurdish populated areas, ‘the consequences of which threaten international peace and security in the region’ [italics added]. It ‘insisted’ that Iraq should allow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq. In 1992, the heads of state of the members of the Security Council adopted a statement in which they confirmed the link between human rights and international peace and security (see Chapter 1).23 This does not mean that there exists an obligation for UN memberstates to respond positively to a call by the United Nations to supply armed forces, for instance in order to terminate gross violations of human rights, as has happened in Sierra Leone, or to come to the assistance of an attacked state, as in the case of Kuwait. Strictly speaking that is only the case, if the call is made by the Security Council, acting under Chapter VII of the UN Charter (‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’). Gross and systematic violations of human rights may be considered as such a threat. The Council may respond to such a threat with measures of a non-military nature that may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.24 The members of the United Nations


are obliged to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.25 No such agreements have, however, ever been concluded, and therefore legally speaking, member-states are not obliged to provide troops to the United Nations. Humanitarian intervention without the consent of the Security Council refers to all those cases in which coercive action is used by states against another state to protect the life and liberty of nationals of the latter from acts or omissions by their own government, without UN Security Council involvement. This might be the case if gross human rights violations, while threatening life and liberty of the local population, do not necessarily pose a threat to international peace and security. It might also be the case if the Security Council is not consulted, as was the case with regard to the NATO air strikes against military and civilian targets in Serbia and Kosovo to counter Serbian suppression of the Albanian ethnic community in Kosovo. At that time, it was extensively discussed whether these human rights violations generated sufficient justification for the air strikes. Leading scholars in the field of human rights are found on both sides of the argument.26 In the case of Kosovo, the Council was not consulted, because the western powers were in fear of a Russian or Chinese veto. The military action of the United States and the United Kingdom in Iraq in 2003 was a case of military intervention, though it does not fit into the category that has been discussed in this paragraph.27 At first, its avowed purpose was to combat terrorism by way of response to the terrorist attacks of 11 September 2001 in the United States. When no direct relationship between the regime of Saddam Hussein and international terrorism was shown, the aims of the intervention were changed to the finding of arms of mass destruction that had not been discovered by a team of UN arms inspectors. The final aim of the operation seems to have been the removal of the regime of Saddam Hussein. This regime had for a number of years been guilty of human rights violations, but to put an end to these violations was not mentioned as a main objective of military action. In recent history, examples can be found of military interventions by countries of the Third World, which at first sight appear to have occurred in reaction to human rights violations. The first of these


was the military intervention by India in East Pakistan in 1971 that ended the slaughter of Bengali citizens by the Pakistani army and resulted in the proclamation of the independent state of Bangladesh.28 The second was the invasion by Tanzania in Uganda in 1979, terminating the murderous rule of dictator Idi Amin.29 Finally, there was the occupation of Cambodia by Vietnam in 1979, which overthrew the even more murderous rule of the Khmer Rouge of Pol Pot. None of the intervening states motivated their actions by humanitarian or human rights considerations. India justified its attack by alleging that it had first been attacked by Pakistan.30 Tanzania claimed that its troops had invaded Uganda to punish Idi Amin for an earlier raid into Tanzania – its invasion allegedly coincided with a domestic revolt in Uganda against Amin. Vietnam denied at first that its troops had invaded Cambodia and claimed that Pol Pot had been deposed by the Cambodians themselves.31 The reasons for these denials is obvious: to recognize the legitimacy of humanitarian intervention would have created a precedent which at some other point in time could have turned against the intervening state. Thus Pakistan might have used it to legitimize attacking India for its treatment of its Muslim subjects or China might invade Vietnam for its treatment of its Chinese minority population. Moreover, the Security Council would have been less likely to condemn actions allegedly for reasons of self-defense than for a – legally not existing – right of humanitarian intervention.32 In the motivation of their actions, the three states – India, Tanzania and Vietnam – followed customary practice. In the course of history, the principle of non-intervention has been accepted as being in the interest of all states, as it removes a source of possible conflicts and thus contributes to the maintenance of international peace and stability – meaning the maintenance of the territorial status quo. Action with or without authorization by the Security Council Today, in cases of severe human rights violations, often a call for ‘humanitarian intervention’ is being heard. The most important examples of these gross and massive violations are crimes against humanity, genocide and war crimes. These include the following violations as the most important ones: enslavement, arbitrary and summary executions, torture, cruel, inhuman or degrading treatment or


punishment, rape, mass deportations, involuntary disappearances, and ‘ethnic cleansing’. In such circumstances, it is often argued that humanitarian intervention by another state or other states is allowed as a last resort, with or even without prior consent of the UN Security Council. Hereafter, this argument is examined and an answer is sought as to whether the term ‘humanitarian intervention’ is properly used or should be rejected as a misnomer. The idea has by now been generally accepted that the promotion and protection of human rights is a matter of concern to all states and that, in reverse, states that violate human rights, have no recourse to the doctrine of non-intervention. Already more than 25 years ago, the British professor of international relations R.J. Vincent argued When a state by its behaviour so outrages the conscience of mankind, no doctrine can be deployed to defend it against intervention. Thus it might be argued that states had not only a right but a duty to overrule the principle of non-intervention in order to defend the Jews against Nazi persecution and a parallel is drawn and similar argument urged in support of intervention against the institutions of apartheid in present-day South Africa.33 In the case of gross violations of human rights, such as in the past in South Africa, in Rwanda, the former Yugoslavia or Sierra Leone, one may argue that states are bound by higher obligations than merely refraining from interference in domestic affairs. For instance, the 1993 Final Declaration of the World Conference on Human Rights in Vienna states explicitly: The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community.34 There exists broad consensus that such action should preferably take place under authorization by the UN Security Council, acting under Chapter VII of the UN Charter, this being the proper legal


forum, in view of the provisions of article 2, paragraphs 4 and 7 of the Charter. The Security Council has primary responsibility to take as early as possible all necessary measures to prevent or end grave and massive violations of human rights and international humanitarian law that are considered a threat to or a breach of international peace and security. As stated before, the use of violence, if consistent with the purposes of the United Nations, is not incompatible with article 2, paragraph 4 of the Charter. One of the purposes of the United Nations is, according to article 1, paragraph 3 of the Charter ‘to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.35 As far as humanitarian intervention without Security Council authorization is concerned, it can be argued that at least state practice of recent years suggests that this kind of intervention can be considered morally and politically justifiable in certain cases. This would mean that humanitarian intervention is in a process of becoming part of international customary law. The international duty to protect and promote the rights of individuals and groups has developed into a universally valid obligation that is incumbent upon all states, both individually and collectively. It is desirable that, as part of the doctrine of state responsibility, efforts be made to further develop justification grounds for making it possible to intervene even in the absence of Security Council authorization. Humanitarian intervention should only be undertaken under exceptional circumstances, if other non-military instruments, such as diplomatic efforts or economic sanctions, to improve the situation are not available or have failed. In the foreseeable future, states will not refrain from such interventions, if they are deemed imperative on moral and political grounds. Under these circumstances, it would be helpful if criteria were developed for such intervention, in order to help avoid abuse of the concept for purely national interests. Some kind of guidelines, criteria or assessment framework would seem to be needed, if only to avoid actions of an arbitrary nature by any state or group of states, whenever it suits its/their purposes. If the necessary international agreement can be reached, they could have the form of legally binding criteria. However, as the reaching of such


agreement may be difficult at this point, it may be necessary to settle for (political) guidelines. The ‘assessment framework’ presented in a report by two Dutch advisory councils may provide a useful mechanism in this respect.36 Such an assessment framework would be useful to answer the following questions: ●

●

●

●

Which states should be allowed to engage in humanitarian intervention? When should states be allowed to engage in humanitarian intervention? What conditions should states satisfy during humanitarian intervention? When and in what way should states end their humanitarian intervention?

If non-military means to put an end to gross violations of fundamental human rights, such as the mass killings of civilians, torture, ‘ethnic cleansing’, genocide, massive rape and involuntary disappearances in a country have failed, military intervention remains as a final resort. Such intervention should preferably take place under authorization of the United Nations Security Council, this being the internationally accepted legal use of force in situations that are beyond the scope of self-defence. However, as is well known, the political situation may be such that the Security Council is unable to reach a decision, while grave violations of human rights continue to take place. From a moral – if not legal – point of view, it may then be acceptable to undertake military action without prior Security Council authorization. Although the formulation of legal criteria for such action would be preferable, it may be necessary to settle for political guidelines, for example, in the form of an ‘assessment framework’, as spelled out before. Once a decision to intervene has been taken, the action itself should be of a limited nature, with the sole objective of ending the violations of human rights that were mentioned. While an assessment framework may help to arrive at a somewhat objective basis for action, in the final instance, the decision to intervene by military means is left to the individual governments, which may do so for political reasons that have little or only a partial


relationship with the lofty objective of ending human rights violations, while using the term ‘humanitarian intervention’ by way of justification. This may mean that in certain cases military action will be undertaken, while in other similar cases this is not done. The reactions to human rights violations in Kosovo on the one hand, and Chechnya on the other, bear witness to this, from an ethical point, unwelcome observation. However, the fact that the United States and other western governments, for obvious reasons, have been unwilling to take action in the case of Chechnya should not lead to the conclusion that, for the sake of consistency, non-action in Kosovo would have been better too. In an imperfect world one must settle for imperfect solutions. But not to respond at all to grave violations of fundamental human rights may be even worse. Finally, there is the matter of terminology. The term ‘humanitarian intervention’ could wrongly suggest that the intervention will take place using humanitarian means. However, nothing is further from the truth. The use of high flying aircraft dropping bombs that may hit military as well as non-military targets (the often quoted ‘collateral damage’ in the case of Kosovo), is by no means more ‘humanitarian’ than shooting a person at close range or launching a ballistic missile. One may therefore conclude that the term ‘humanitarian intervention’ is misleading. It would be far better to speak of the use of military force for (allegedly) humanitarian purposes. However, it is not very likely that governments will be prepared to change their use of terminology. ‘Humanitarian intervention’ has the advantage of sounding nice, while being sufficiently vague so as to leave governments considerable freedom of action – which they like. In the absence of either a Security Council or a General Assembly resolution, the unilateral military intervention by NATO in the Kosovo crisis was legally unsound.37 Does this mean that the western powers should not have acted and that there were no political reasons to do so? Far from it. The Yugoslav government’s actions against the Albanian population of Kosovo amounted to a gross and systematic violation of their human rights. Western powers reacted by air strikes against this widespread persecution and repression of ethnic Albanians. These air strikes were apparently successful in that President Milosevic was forced to withdraw his military and police units from Kosovo. This ended the repression of the Albanian population and allowed the refugees to return home to their devastated


villages. This seems to be a clear case of the ‘outrage of the conscience of mankind’ mentioned by R.J. Vincent, where third governments cannot afford to stand aloof.38 In the case of Kosovo, what may have been legally questionable was politically sound.

Apartheid by way of example In the case of South Africa’s policy of apartheid, the UN has legitimized its actions referring to the threat it posed to international peace and security. As early as 1960, the Security Council declared that the situation in South Africa had led to international friction, which, if it continued, might threaten international peace and security. In 1972, the Council expressed its concern that the situation in South Africa disturbed international peace and security in southern Africa. Eventually, the Security Council decided on a mandatory arms embargo, prohibiting any state from providing South Africa with arms and military equipment for police use. It also banned cooperation with South Africa in nuclear development. After the killing of hundreds of people by the police in the black township of Soweto in 1976, the Security Council condemned the South African government and called on it to end apartheid because of its effects on peace. In 1977, the Council passed a resolution that determined that ‘the acquisition by South Africa of arms and related materiel constitute[d] a threat to the maintenance of international peace and security’.39 Since then, the Council took up South African raids on its neighbouring countries, issuing condemnations and warnings. But it never adopted proposals for stronger economic and military sanctions, because the western countries declined to support such actions. The Soviet Union used to verbally support coercion, but it never made more concrete commitments, although it gave substantial covert aid to liberation movements. The General Assembly also yearly adopted a series of resolutions condemning apartheid. South Africa, for its part, always claimed that these type of resolutions interfered in its domestic affairs, which meant a violation of article 2, paragraph 7 of the UN Charter. Was apartheid in its heyday a threat to international peace and security? Yes, if it meant that South Africa – as it did on several occasions – let apartheid coincide with military attacks on its neighbours. But was apartheid also a threat to international peace and security in the absence of such


attacks? Strictly speaking one could argue that a repressive regime that stays within its own borders, does not pose a threat to international peace and security. That is only the case, if it crosses its borders and tries to impose its policy on other countries as well. In the case of South African policy of apartheid a much stronger line of reasoning is that states are legally bound to higher obligations than refraining from interference in each other’s domestic affairs, as expressed by the late professor Vincent.40 Apartheid was a flagrant violation of fundamental human rights, as codified in the Universal Declaration of Human Rights, the two UN covenants of 1966 and a large number of international treaties. Such a flagrant violation of fundamental human rights justifies external interference even if it belongs, as the South African government used to claim – basically to ‘domestic affairs’.

Conclusion An important criterion in the selection of policy instruments is their expected effectiveness. Small- and medium-sized states may find it useful to tune their policy to that of the ‘like-minded’. The voice of two, three or fifteen and perhaps twenty-five (the EU) states will be more influential than the voice of one. However, this may raise the difficulty of reaching agreement among sovereign units and the chance that the original point of view may become diluted. Difficult choices have to be made between effectiveness, credibility and the necessity of looking for compromises. Such choices are also influenced by expected reprisals on the part of the affected government. Finally, there is the matter of credibility to its own domestic public. Foreign policy is not made in vacuo. Foreign policy makers must take account of domestic public opinion. That public opinion is expressed in parliament, in the press, through political parties and by NGOs. Violations of human rights in other parts of the world are reported in the media and may elicit indignant reactions. This is another aspect which governments have to consider in their choice of policy instruments. It would be of first and foremost importance to continue the international discussion about the scope and limits of international military intervention for humanitarian purposes. The dilemma which presents itself, is the following: if authorization by the Security


Council is seen as an indispensable condition, this may mean that glaring human rights violations, such as in Kosovo, may continue unchallenged. On the other hand, in the absence of Security Council authorization, powerful states such as the United States or the United Kingdom, may undertake military action whenever it suits their purposes, while omitting such action in other situations. Neither course is acceptable, if one wants to preserve at least a semblance of an international legal order. Further thought is needed on the precise circumstances under which such unilateral action is justified. It has been argued in this chapter that the air strikes against Serbia may have been politically justified, but no precise criteria have as yet been developed to decide when such action in general is justified and when not. The diplomatic, economic and military instruments discussed in this chapter are used in government-to-government relations. However, governments may also choose to support domestic opposition groups in other countries who work for the improvement of the human rights situation. For example, in the 1980s, western states gave support to so-called ‘Helsinki monitoring groups’ in Central and Eastern European states, which confronted their governments with the conclusions relating to human rights reached at the Helsinki Conference of 1975. Another example is formed by the support given by the Netherlands and a number of Scandinavian states to the antiapartheid activities of the African National Congress. Such support to domestic groups will usually be considered ‘subversive action’ by the government of the country concerned. Nevertheless, it may be an important instrument in the fight against human rights violations.

5 Actors: States and Intergovernmental Organizations

Introduction Traditionally, international relations are a matter of interchanges among states. It is states that conduct foreign policy and the making of war and peace. It is states that oversee and promote bilateral and multilateral negotiations in the field of peace and security, trade and other economic relations, and development co-operation. States conclude binding treaties in various fields that establish intergovernmental organizations – including the field of human rights. Classic handbooks on international relations used to deal mainly, if not only, with relations among states.1 However, in order to arrive at a full picture of present-day international relations, other actors must also be considered. First of all, there are the intergovernmental organizations that, though established by and consisting of states, have become actors on the international scene in their own right. At the global level, there is the United Nations and its specialized agencies, whereas at the regional level since World War II important actors have also come up, such as the Council of Europe, the European Union, the Organization for Security and Cooperation in Europe (OSCE), the Organization of American States (OAS), and the Organization of African Unity (OAU), now called African Union. Furthermore, there are non-state actors such as non-governmental organizations, multinational corporations and armed opposition groups. They may also deal with human rights.

89


This chapter deals with state actors and intergovernmental organizations. For reasons of brevity, the non-state actors are dealt with separately in Chapter 6.

States Foreign policy, including its human rights aspects, is still principally made by states. It is their foreign ministries that prepare and conduct human rights foreign policy. It is their representatives that meet in international gatherings like the United Nations and regional organizations like the European Union and present their views. It is also within and among states that non-governmental organizations lobby for the promotion and protection of human rights. In the following we will consider some aspects of the foreign policy of two states that traditionally have paid great attention to human rights, a major power and a smaller one: the United States of America and the Netherlands. The United States From its very beginning, the foreign policy of the United States has been typified by the pursuit of a combination of ethical principles and national interests. Whatever is good for the United States is assumed to be good for the world as well.2 This comes out in particular in the way American political leaders tend to present their views. Rhetoric like ‘the fight for freedom’, ‘the evil empire’, ‘the axis of evil’, sounds unusual or even inappropriate to the ears of nonAmericans, when at the same time hard-headed US national interests – at least in the eyes of non-Americans – are being pursued. In practice, this dual attitude has had conflicting consequences. At some points in time, it has meant a policy of non-engagement, if not isolation; at other times, it has meant internationalism and an active engagement in world politics. The principle of setting an example to other nations, while at the same time avoiding political links with foreign countries, was reflected in the famous farewell address of the first American president, George Washington. The avoidance of ‘entangling alliances’ was also favoured by his successor, Thomas Jefferson. The Monroe doctrine, formulated in 1823, explicitly limited the engagement of the United States to the American continent. A similar approach can

Actors: States and Intergovernmental Organizations 91

be found in the neo-isolationism of the 1920s and 1930s. On the other hand, there were also years of active engagement. The United States entered the First World War under Woodrow Wilson ‘to make the world safe for democracy’. He argued for the maintenance of world order by means of international arbitration and adjudication. However, the League of Nations, which was in many ways the brainchild of this American President, was never approved by the US Senate and consequently the United States never became a member. In 1941, President Franklin Delano Roosevelt formulated his famous four freedoms: freedom of speech and expression, freedom to worship God, freedom from want and freedom from fear.3 Thus a number of important human rights became explicit goals of American foreign policy. They are also found in human rights documents that were adopted in later years at the international level. It should be emphasized that human rights have always been a major theme of American domestic policy as well. The Declaration of Independence of 1776 mentions life, liberty and the pursuit of happiness as inalienable rights of all men. The first ten amendments to the American Constitution, the ‘Bill of Rights’, encompass a number of fundamental human rights. The fight for the abolishment of slavery in the nineteenth century and the civil rights movement for equal rights for the black population and other minority groups in the twentieth century, point to human rights as a basic theme of American domestic policy, though one must of course be aware that both slavery and other forms of discrimination were for a long time legally entrenched in American society. American foreign policy has always been a mixture of idealism and realism. It gives evidence of a certain measure of moralism, of ethical principles, based on the idea that the United States will bring good to the world. At the same time, a careful eye is kept on preserving its own national interests. In brief, American foreign policy is characterized by thinking in terms of good and evil, of moralism, and bringing freedom and democracy to the rest of the world, personified in statesmen such as Woodrow Wilson, John Forster Dulles and Jimmy Carter. At the same time, there is a strong touch of realism, based on reasons of state, personified in former diplomat George Kennan, former Secretary of State Henry Kissinger and his President Richard Nixon. Both lines of thinking – moralism and realism – are found alternatively or simultaneously in American foreign policy. The human


rights policy of the United States should be seen in that framework. Putting an emphasis on human rights has on the one hand a strong moralistic character, as in the case of President Jimmy Carter, especially during the first two years of his presidency.4 On the other hand, it also has a strong instrumental character: by emphasizing human rights, other more general foreign policy objectives may be attained, as for example, the urge for greater respect for human rights in authoritarian Chile, during the second Reagan administration.5 The ideal situation from the point of view of policy makers arises if considerations of power politics and ethical consideration coincide. For many years, this was the case with American foreign policy vis-à-vis Western Europe in the late 1940s and early 1950s, when it promoted democracy and human rights, because it was good for individuals and helped to contain Soviet power. The Marshall Plan and NATO had liberal as well as realist foundations or goals. In its policy towards the Soviet Union the United States could express its concern over human rights without having to fear that this might be detrimental to its security interests.6 The United States Congress has adopted various pieces of legislation with reference to human rights, in particular in relation to the US foreign aid programme.7 Of great importance is the law that requires the Department of State to submit an annual public report on the human rights situation in all countries of the world (with the single exception of the United States itself!), including information on the number of political prisoners, torture, arbitrary arrests and detention, arbitrary restriction of existing political rights, extralegal executions and unfair trials. All American embassies must collect information about the human rights situation in their country of accreditation. The reporting covers only civil and political rights; with the exception of a few labour rights, economic, social and cultural rights are excluded. The latter are not considered to be human rights, but regarded as ambitions or aspirations. The quality of the reports has steadily improved over the years and includes critical assessments of the human rights situation in close allies of the United States such as Israel.8 It is of great importance that this type of reporting takes place, as it offers the opportunity to members of Congress and others to discuss the human rights situation in various countries on the basis of an official document supplied by the US government. Unfortunately, however, there is often little policy


follow-up to the often highly accurate reports. The report over 2002 covered 196 countries. President Carter devoted a large part of his speeches to human rights, which he considered a major item of foreign policy, at least in the first years of his Presidency. He felt that the commitment of the United States to human rights should be of an absolute nature. He was well aware of the fact that his policy pronouncements were to a large degree verbal announcements: ‘But I also believe that it is a mistake to undervalue the power of words and of the ideas that words embody. In the life of the human spirit, words are action.’9 Under Reagan, increasing public attention was paid to the human rights situation in countries as diverse as Cuba and South Africa, as well as the Soviet Union, the ‘evil empire’. The Bush Sr administration began to pay more attention to human rights violations in America’s long time ally in the Middle East, Israel, while the collapse of communism in Eastern Europe was partly acclaimed as a victory for US human rights policy. Both these administrations, as well as that of Bill Clinton, found it difficult to formulate a consistent policy vis-à-vis China. While on the one hand critical of China’s violation of a number of fundamental human rights, the United States has made an effort to maintain a smooth working relationship with that government. The Clinton administration has been strongly criticized by human rights activists for renewing in 1994 China’s mostfavoured nation status in trade relations with the United States. President George W. Bush seems to be so much in need of China’s support in his fight with the ‘axis of evil’ (consisting of Iraq, Iran and North Korea) that his administration seems to have given up all efforts to criticize China for its human rights record. Basically, his policy was one of engagement: business as usual, with no sanctions over human rights violations, hoping for improvement of the human rights situation over time, for example, in the case of China. In 1978, President Carter signed the two international human rights covenants and submitted them for approval to the Senate. That body was not very eager to approve the treaties, for a number of political and judicial reasons. There was considerable reluctance to accept the notion that American citizens should behave according to standards that were devised by non-Americans and supervised by an international body. Furthermore, many people feared that it would increase the power of the federal government at the expense of states’ rights.10


It took until 1992 for the Senate finally to approve one of the two treaties, the International Covenant on Civil and Political Rights. It did not, however, accept the First Optional Protocol that offers the possibility of individual complaints. Moreover, the United States declared that it did not regard the treaty as self-executing. This means that it cannot be invoked in procedures before American courts. Finally, the United States has added a number of reservations, understanding and declarations to the treaty,11 meaning that it has not accepted any commitments that go beyond what was already accepted under the provisions of the US Constitution. Thus it has, for example, rejected the provision of the treaty, which rules out the application of the death penalty to persons who at the time the crime was committed were younger than eighteen. Also the notion of ‘cruel, inhuman and degrading treatment or punishment’ is restricted to the way in which it has been interpreted under the United States Constitution. These reservations and interpretations have not been accepted by a number of other states parties to the treaty. Similar reluctance to enter into international commitments in the field of human rights has been the reason why the United States has not yet ratified many other international human rights treaties. This includes the Convention on the Rights of the Child, where the United States and Somalia are the only members of the United Nations that have not ratified it, though the United States has recently accepted the Protocol on the minimum age of 18 for military personnel. The United States has refused to accede to the Statute of the International Criminal Court for fear of subjecting US citizens to the jurisdiction of the Court.12 It has also put pressure on other states not to extradite US citizens to the Court. American human rights policy fits clearly in the traditions of American foreign policy. The objective of human rights policy is either to create a better world or to contribute to the interests in the field of national security and the economy of the United States. Sometimes, both objectives are at stake, if they are not in conflict with each other. Human rights policy, as formulated by the President and the Secretary of State, is, as always under the American constitutional system, strongly influenced by Congress. That influence may be seen by the executive as either negative or positive. A negative influence was exerted when the Senate refused to approve the most important


international human rights covenants, and finally only approved the International Covenant on Civil and Political Rights with strong reservations. While President Carter had at least developed some activities in the field, there were fewer on the part of his successors. Of a more positive nature was the legislation that led to a separate division within the State Department dealing with human rights, the annual country reports and activities of Congress with regard to foreign economic and military aid, and American performance in the World Bank and other international financial institutions. The Netherlands13 The foreign policy of the Netherlands is characterized by a sense of international engagement. In the Netherlands – perhaps more than in other countries – there has always been a strong interest in events abroad. This phenomenon, which has been observed by many commentators at home as well as abroad,14 has been explained in various ways. There is the physical location of the Netherlands on the shores of the North Sea, in the Rhine estuary, in the immediate neighbourhood of the three most important West European powers, Germany, France and Great Britain. This location, with relatively few natural resources, in combination with a relatively large population in a small area,15 has led to an early emphasis on international trade as a source of income. This explains the great interest in the development of the rule of law in the world – a traditional feature of Dutch policy dating back to the time of Hugo Grotius (1583–1645). From time immemorial, the Dutch economy has been dominated by its dependence on international trade. This trade has always greatly depended on the freedom of the high seas – mare liberum. The development of international law was not only a fine principle, but also in the national interest of a small, militarily weak state such as the Netherlands. This has been translated into the maintenance of international peace and the furtherance of international trade as tenets of Dutch foreign policy. The achievement of international peace and prosperity was seen as a national interest of the Netherlands. In modern times, this has received a new application in the form of furnishing development aid to poor countries and the promotion and protection of human rights. This idea has been given a legal foundation in the Netherlands Constitution (article 90): ‘The government promotes the development of the international legal order.’


The reputation of the Netherlands in the field of human rights is on the whole greater abroad than at home. This may be due to the fact that domestic non-governmental human rights organizations are in a better position to critically follow Dutch foreign policy than can be done from abroad. Members of parliament and the news media pay attention to what these human rights organizations have to say. The government of the Netherlands has expressed its ideas about human rights in foreign policy in a formal policy document.16 That document was issued in 1979, but it still contains the basic tenets of government policy in this field. In that memorandum the government put down some important principles of its human rights foreign policy. It provided an inventory of basic dilemmas a human rights foreign policy has to face, with at least the implication that it would be possible to find acceptable solutions for such dilemmas. Below, a number of policy principles are mentioned as set out in the memorandum. First of all, the promotion of human rights is seen as one of the important aims of foreign policy, but it cannot be its predominating aim.17 A policy that seeks to counter specific human rights abuses should be impartial and non-selective; it must not concentrate on abuses in countries of one particular political colour.18 That may have been one of the reasons why the Netherlands has expressed itself strongly about human rights violations in China, on the basis of the argument that solidarity with the oppressed all over the world did not imply criticizing only the weaker states for their human rights violations. However, a policy that should be impartial and non-selective, would seem to be at odds with another governmental principle that suggests that there is more reason to make Dutch views known to western countries with which the Netherlands has close historical, cultural and political ties.19 This happened to a certain extent in the case of Turkey, whose membership in the Council of Europe was used to confront it with its human rights violations, which allegedly did not fit a ‘western nation’. Classical and social human rights are considered of equal importance ‘in the sense that an existence worthy of human dignity is only possible if both categories of rights are enjoyed’.20 Therefore, working for human rights should be seen as combating not only political oppression, but also economic exploitation and social discrimination. Such were the principles, but in practice human rights were usually interpreted as the promotion and protection of civil and


political rights. However, in the case of Turkey the Netherlands criticized a foreign government for the violation of the economic and social rights (labour rights) of its citizens.21 In this respect, it did not differ much from the policy of many other western states. It can be said, however, that its generous development assistance policy was to a greater part meant to improve the economic and social rights of the population of the aid-receiving countries. The relationship between human rights and economic relations is a sensitive issue. ‘Grave and systematic violations of human rights may under certain conditions constitute grounds for restrictions on economic relations with the country in question.’22 A number of limiting conditions are then mentioned, culminating in the statement that ‘the measures must not disproportionately damage Netherlands’ interests’.23 As was pointed out in Chapter 3, the Netherlands reacted with strong economic measures to human rights violations in Chile. After the military takeover, the Dutch government ended all financial credits to Dutch companies engaged in exporting goods to Chile. The efforts to end economic and trade relations with Chile should be seen as a political signal of condemnation. It was only after the fall of the Pinochet regime that Dutch exports to Chile again expanded. With regard to South Africa, the Netherlands tried in vain to find foreign partners for imposing an oil embargo. Yet, enthusiasm among friendly western states, including the Scandinavian countries, to take part in such an undertaking was scant. The Netherlands followed a consistent pattern by condemning apartheid in principle, yet it shied away from more radical measures such as ending all forms of cooperation, including economic ones, with South Africa. However, through the personal efforts of the then ambassador Max van der Stoel, the Netherlands succeeded in having the Security Council adopt a voluntary embargo on the import of arms from South Africa in 1984.24 This may have damaged the South African economy and have helped to put pressure on the South African government to end apartheid. Another policy principle is the idea that the government prefers ‘to combine forces with other countries: this applies both to confidential approaches and to public action’25 ‘[t]hrough international organisations such as the Council of Europe and the United Nations’.26 Common action is preferred because ‘our country can exert only


limited influence through bilateral channels’,27 while ‘the chance of finding a positive response’, when in confidential talks specific human rights are raised, ‘is greatest in the case of governments with which the Netherlands had a certain relationship of trust as a result of co-operation between the two countries’.28 As time went on, the Netherlands’ position on human rights coincided more and more with that of its partners in the European Union. However, with regard to countries with which the Netherlands had a ‘special relationship’, such as Indonesia and South Africa, it could not avoid adopting a position of its own on the human rights situation. Whatever it did or did not do led to the expression of criticism from some quarters. Thus ‘paternalism’ was a critique often heard with regard to the policy towards its former colony of Indonesia. This critique cut two ways. The former colonial master was supposed to avoid condemning human rights practices in Indonesia too strongly, in view of its past oppressive record. Yet, if it avoided such condemnation, others would claim that it failed to apply its high-minded human rights principles in the few cases where this could be expected to have an impact. In the case of South Africa, the notion of a ‘common kinship’ was often put forward, either to argue for a greater understanding of the white minority views on apartheid, or to demand the strongest possible condemnation which, coming from a ‘kindred’ source, was supposed to carry more weight. The unilateral termination by the Netherlands of the Dutch–South African cultural treaty in 1981 was a case in point. On the other hand, it has also been argued that the Netherlands should have used the common heritage to achieve more than it did achieve, for instance, by using the channels of the churches. In both the cases of Indonesia and of South Africa, domestic human rights groups followed the government’s doings and non-doings with considerable attention and did not fail to express their views.29 The question of whether the provision or suspension of development assistance may be used as an instrument of human rights policy has never been satisfactorily resolved. Aid should not be given to reward countries that respect human rights and withheld to punish countries that disregard those rights.30 Yet, the possibility was opened to non-allocate or suspend aid to countries with gross and persistent violations of fundamental human rights.31 An example was the suspension of treaty-based aid to the former Dutch colony of


Suriname in 1982, after the wanton killings of fifteen known opponents of the military regime led by Desi Bouterse. In response to human rights violations in the small countries of Central America and the Caribbean, the Netherlands showed a willingness to use the instrument of development assistance. For instance, in the late 1980s, Haiti was refused development assistance, bilateral aid to El Salvador was discontinued and aid to Guatemala was reconsidered. Between 1993 and 1995, aid to Haiti was again suspended and only resumed after restoration of democracy and the creation of a constitutional state. In some cases, aid was replaced by ‘indirect development cooperation’, which referred to the giving of aid to private groups in those countries rather than to governments. This ‘positive linkage approach’,32 between human rights and development aid meant that a development programme tailored to specific groups was possible, even if the overall human rights situation was bad in the country concerned. NGOs and institutions aiming at promoting the rule of law and civil and political rights continued to receive Dutch financial and technical support, even in a situation in which bilateral aid was no longer given. In the case of the Indonesia of President Suharto, the threat of suspending development assistance by way of response to human rights violations was repeatedly used by the Dutch. They paid little attention to feelings of national prestige and the avoidance of loss of face, which in Asian countries in particular is a matter of considerable importance. The Netherlands failed to gather sufficient international support for its human rights policy with regard to Indonesia. Yet, when it threatened to discuss possible consequences with its European partners in 1992, it caused Indonesia by way of reprisal to break off the entire development relationship with the Netherlands.33 It remains a matter of interpretation whether this meant that the Dutch human rights policy vis-à-vis Indonesia had ended in complete failure. One could also argue that it had called attention to the issue of human rights violations in Indonesia as well as providing moral support to the victims. Although international relations have undergone great changes since these policy principles were formulated, these principles have remained unchanged. A few additional policy memoranda have been published since 1979, but they contain no major amendments. As far as policy practice is concerned, we have concluded that during the last fifteen years, the Netherlands seems to have become less


outspoken in the field of human rights.34 This may have been caused by the following factors: (1) A change in the ‘political climate of the time’, which in 1970 was more geared to human rights than in the late 1990s and early 2000s. It may be fair to say that Dutch public opinion has become more or less used to human rights violations elsewhere in the world and tends to be less affected by the subject, whereas many activities in the 1970s were the result of pressures from public opinion. (2) The world has changed. In 1979, the human rights situation in most parts of Latin America, Eastern Europe and South Africa was of the utmost concern; by the end of the century the scene had shifted mainly to Asia and to Africa, which is seen by many as a ‘lost continent’ where human rights considerations are extremely hard to apply. There was of course also the situation in the former Yugoslavia, where extensive human rights violations did occur, but there were many other aspects to that problem that tended to overshadow the human rights concerns. (3) Since the 1980s there has been a renewed emphasis on the notion of Dutch ‘national interest’, usually interpreted as Dutch economic interests. According to this view, the time has come to decrease traditional Dutch involvement in world affairs. This would mean the end of a long tradition of thinking in terms of an international framework. On the other hand, however, the Netherlands by acting as a host to the Tribunal on the former Yugoslavia and by inviting the newly established International Criminal Court, has continued a tradition of commitment to international legal values, making The Hague (in the words of former UN Secretary-General Boutros Boutros-Ghali) the ‘legal capital of the world’. (4) Finally, the Dutch government’s freedom of operation in the field of foreign policy is increasingly restricted by its membership of the European Union. Though a European common foreign and security policy is still more in the planning stage than in actual operation, close consultations in international bodies of the United Nations and the desire to adopt a common position among ‘The Fifteen’ members of the European Union have become common practice.


International organizations The United Nations From the beginning, the issue of human rights has played an important role in the United Nations. In 1948, the General Assembly adopted the Universal Declaration of Human Rights, which in its preamble is named a ‘common standard of achievement for all peoples and all nations’. Though not legally binding, it has become the foundation for establishing obligatory legal norms to govern international behaviour with regard to rights of individuals. More than 140 states have acceded to the two international covenants – on civil and political rights and on economic, social and cultural rights respectively – adopted in 1966 and based on the Declaration. Basically, the United Nations has a threefold task in the area of human rights. It must develop international standards in the field; it must implement those standards and supervise or monitor states’ behaviour, and it has a task in the field of human rights education. The Commission on Human Rights is the chief political organ charged with carrying out these tasks.35 (In addition, there are the more legally oriented treaty organs, such as the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee against Torture, the Committee on the Elimination of Discrimination against Women, the Committee on the Elimination of Racial Discrimination, and the Committee on the Rights of the Child.) The Commission on Human Rights meets annually for a five-week session in Geneva, and is composed of fifty-three states, elected for three-year terms by the Economic and Social Council. It has a broad mandate touching on any matter relating to human rights. The Commission carries out studies, prepares recommendations to governments, and drafts international instruments relating to human rights for ratification by governments. It investigates allegations of violations of human rights and receives and processes communications related to such violations. It has appointed ‘thematic’ rapporteurs on issues such as torture and summary or arbitrary executions and a working group on enforced or involuntary disappearances. Unique among UN organs is the presence on the floor of representatives of non-governmental organizations which take an active part in the debates (albeit without a vote) and which may submit proposals for adoption by the Commission. Among these non-governmental


organizations are well known defenders of human rights, such as Amnesty International and the International Commission of Jurists. The Commission on Human Rights has been criticized for having among its members some notorious violators of human rights. For example, the 2002 term of the Commission included among its members China, Cuba, Congo, Libya, Saudi Arabia, Sierra Leone, Sudan and Togo – countries whose governments have been cited for gross violations of human rights.36 These states, as well as nonmember governments that attend the sessions of the Commission as observers, make frequent use of their ‘right of reply’, whenever they find themselves criticized for failing to live up to international human rights standards. It would, however, not be feasible and probably not even advisable to exclude such countries from the Commission: not feasible, as the members of the Commission are elected by the Economic and Social Council on a political and geographical basis; not advisable, as these countries in the Commission can be confronted with the norms they claim to adhere to – such confrontation has at times led to improvements in the situation. The Commission on Human Rights is a political body, as are most UN organs. Decision making within the Commission is mostly guided by political considerations. Thus in 2002, the Commission failed to call attention to human rights abuses in Chechnya, Iran and Zimbabwe. No resolution was introduced on human rights violations in China, and the Commission failed by a vote of 20–19 to censure Iran for executions and torture, discrimination against minorities and stifling freedom of the press – as had been reported by nongovernmental organizations. The Commission deals also with the annual reports of the SubCommission on the Promotion and Protection of Human Rights, previously called the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The 26 members of the SubCommission are selected in their personal capacity, although it is common knowledge that some of them retain close relations with their governments. The Sub-Commission deals with studies on a broad range of human rights, which it submits to the Commission. In 1993, the General Assembly, acting on recommendations of the second World Conference on Human Rights, decided to establish a UN High Commissioner for Human Rights. This official has the principal responsibility for United Nations human rights activities and carries out the tasks assigned to him or her by the competent


bodies of the United Nations. He/she coordinates all activities in the promotion and protection of human rights and heads the Bureau of the High Commissioner. Former Ecuadorian diplomat José Ayalo Lasso and former Irish President Mary Robinson were the first holders of this position, which is now held by the Brazilian diplomat Sergio Viera de Mello who was tragically killed in August 2003 while serving as United Nations representative in Iraq. The Office of the High Commissioner has established a number of ‘field presences’ all over the world. They are engaged in such matters as providing advice to governments to bring national laws and institutional practices in line with international human rights standards, developing human rights education, supporting human rights institutions, legislative and policy reform, human rights training of policy and judicial officers, and building of human rights capacities in the field. Such field presences have been established for a great number of countries in Africa, Asia, Latin America and Eastern Europe, usually in the aftermath of the occurrence of major human rights violations. In addition to the World Conference on Human Rights, many other world conferences dealing with aspects of human rights were organized during recent years. One example was the fourth World Conference on Women held in Beijing, China in September 1995. It drew some 50 000 participants and was the first UN gathering of its size ever organized in the People’s Republic. It resulted in a Beijing Declaration that contained a Platform for Action to enhance the social, economic and political empowerment of women, improve their health, advance their education, and promote their marital and sexual rights. The action plan set specific targets, committing nations to carry out concrete actions in such areas as health, education and legal reforms. In 2000, a Special Session of the General Assembly, ‘Beijing ⫹ 5’, was convened to review progress in the implementation of the Beijing Declaration and Platform for Action. The main themes of the meetings were equality, development and peace. Although by no means all the targets that had been set were reached, both meetings greatly stimulated international activities by women’s organizations and helped to identify more clearly the most important matters of concern relating to the status of women. In 2001, the third World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance was convened in Durban, South Africa. The conference was dominated by political


controversies, especially about the situation in the Middle East, which led to the departure of the United States and Israeli delegations. Major items of discussion during the conference, next to the rights of the Palestinian people, were the issue of reparations for wrongs and injustices committed in the context of slavery, slave trade and colonial rule. For the first time, the Dalits (‘Untouchables’) from the Indian sub-continent succeeded in gaining attention for their plight at a major international conference – much to the chagrin of the Indian government. The conference resulted in the adoption of a Declaration and a Programme of Action. It requested the High Commissioner for Human Rights to cooperate with independent experts to follow the implementation of the provisions of the Declaration and Programme of Action and it welcomed the intention of the High Commissioner to establish within her office an antidiscrimination unit. Concern with violations of human rights and the international law of war led the Security Council in 1993 to create an international criminal tribunal to try persons accused of genocide and war crimes in former Yugoslavia, located in The Hague, the Netherlands. A number of former officials, including former Yugoslav President Slobodan Milosevic, have appeared before the Tribunal. Following this example, the Security Council in 1994 created a similar tribunal to try those accused of war crimes and genocide in Rwanda, located in Arusha, Tanzania. In 1998, a Statute was adopted for an International Criminal Court, also to be located in The Hague. The Court will deal with the crime of genocide, crimes against humanity, war crimes and the crime of aggression (yet to be defined). In 2002, 60 ratifications had been entered, required for the Statute to come into force. The US government formally announced that it would not become a party to the Statute. A relatively new phenomenon is temporary administrations created in the aftermath of peacekeeping operations. The United Nations has established such administrations, for example, in East Timor and Kosovo with a mandate that explicitly includes overseeing the human rights situation. The Security Council established in 1999 the UN Transitional Administration in East Timor (UNTAET) that lasted until 2002 when East Timor reached full independence; it was then succeeded by a ‘field presence’ of the High Commissioner for Human Rights. UNTAET established, for example, a Serious


Crimes Investigation Unit (SCIU) to address abuses that were committed in 1999 and concluded a memorandum of understanding with Indonesia regarding legal, judicial and human rights cooperation. However, according to Amnesty International, the newly established justice system ‘remained fragile and was unable to respond fully to the demands placed upon it’.37 In Kosovo, the Security Council established in 1999 the UN Interim Administrative Mission in Kosovo (UNMIK) that set up a civil administration in the territory that was formally still part of the former Yugoslavia. UNMIK adhered in its policies to international human rights standards. However, according to the US State Department Report for 2001, ‘serious problems remained, many related to ongoing inter-ethnic tensions within Kosovo and ethnic Albanian insurgencies …’38 Amnesty International pointed out that UNMIK and the NATO-led peacekeeping force Kosovo Force (KFOR) ‘failed to protect and promote human rights, particularly the right of detainees’ and concerns were raised about accountability, property rights and executive detention orders.39 There is now also a ‘field presence of the Office of the High Commissioner for Human Rights in Kosovo’. The Council of Europe The Council of Europe is a regional European organization for political and cultural cooperation that was founded in 1949. Its 44 member-states are also parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1950, which contains a great number of provisions for the protection of civil and political rights, though not economic and social rights.40 The European Court of Human Rights, located in Strasbourg, France, exercises the supervision of the obligations of the Convention. All states parties to the Convention have now accepted the individual right of complaint. If a complaint is considered admissible, the Court tries first to reach a friendly settlement. If that turns out not to be possible, it draws up a report on the facts and gives its opinion as to whether there has been a breach by the state concerned of its obligations under the Convention. The number of members of the European Court, who are elected by the Parliamentary Assembly, is equal to the number of members of the Council of Europe. In practice, each member of the Council


appoints one member of the Court. The Court may receive applications from any person, non-governmental organization or group of individuals, claiming to be the victim of a violation by one of the state parties, provided that all domestic remedies have been exhausted. The Convention also provides for the possibility of an inter-state complaint. Every state party to the Convention has the right to lodge with the Court a complaint of an alleged breach of the Convention by any other state party. This provision has not remained a dead letter in the past. In 1967, Denmark, Norway, Sweden and the Netherlands submitted an inter-state complaint against Greece, because of the human rights situation under the military regime that governed the country at the time. Greece thereupon withdrew from the Council of Europe, but the (then) European Commission on Human Rights nevertheless concluded that a number of human rights violations, including torture, had taken place. In 1982, Denmark, Norway, Sweden, France and the Netherlands submitted an inter-state complaint against Turkey claiming that human rights under the Convention were being violated by the Turkish military regime. This complaint led to a friendly settlement in 1985 whereby Turkey committed itself to report periodically on the measures it had taken to improve the human rights situation. Since then, the inter-state complaint has only rarely been used, although one might argue that, for example in the case of Turkey, there was ample reason to do so. The supervision mechanisms of the European Convention are the most extensive and most effective existing procedures of implementation of international human rights standards. For a number of years already, the system has suffered from its own success. So many appeals are made to the European judicial organs that considerable delays occur in the handling of the cases. The increase in the number of states-members of the Council of Europe, especially from Eastern Europe, including the Russian Federation, has aggravated this problem. In 2001, 30 000 cases were submitted, 9000 of which were taken into consideration. On January 1, 2002, 20 000 appeals were pending. At a ministerial meeting in 2003, plans were discussed to find solutions to this problem. Only time will tell whether the Court will be able to meet its increased workload, while maintaining the quality of its jurisdiction.


The European Union The original treaties that form the basis of the European Community (now the European Union), did not contain specific reference to human rights. In the beginning, human rights did not constitute a major field of activity of the European Community.41 In later years, this has changed, however. In the course of time, the Council of Ministers, the European Commission and the European Parliament have adopted a number of joint declarations on the subject of human rights. Originally, the European Parliament and the governments meeting in the framework of European Political Cooperation were the bodies that paid most attention to human rights. The Treaty on European Union (‘Maastricht Treaty’) that came into force in 1993, provides for a Common Foreign and Security Policy. Its objectives include explicitly ‘to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms’.42 However, most of this common European foreign and security policy is still very much at a preparatory stage. For the time being, foreign policy making remains more a matter of intergovernmental cooperation than of Union policy. For example, the US–British military intervention in Iraq in 2003 brought to light major differences of view among EU members, with Britain, Spain and Italy supporting the Americans, while France, Germany and Belgium were strongly opposed. EU member-states meet during meetings of intergovernmental organizations and at international conferences to exchange information and for mutual consultations. In meetings of the UN Commission on Human Rights, the country that holds the presidency of the Council of Ministers issues joint statements on behalf of the European Union. Sometimes, the members of the European Union introduce joint draft-resolutions. Treaties of development cooperation with countries in the Third World usually contain human rights provisions.43 The activities of the European Union in the field of human rights have led to what can at best be termed ‘a mixed result’. Though there are by now a large number of handsome statements and declarations with regard to the importance of maintaining human rights in the world, it is usually left to the member-states to draw concrete policy conclusions. On the other hand, there are only limited possibilities for the member-states to conduct their own policies. This is especially


true in the field of international trade that has to a large extent become common European policy, which, for example, makes it impossible for a member-state acting on its own to apply economic measures to a third state. The Organization for Security and Cooperation in Europe The Final Act of the Helsinki Conference on Security and Cooperation in Europe (CSCE) of 1975 was originally signed by all European states except Albania, plus the United States and Canada. The human rights paragraphs in the Final Act gained considerably in importance, when dissident groups in the Soviet Union and other East European countries began to use these texts to call their own government to account over their violations of human rights. ‘Helsinki monitoring groups’, including ‘Charter 77’ in Czechoslovakia, were established which aimed at supervising their governments in this respect. The activities of these groups were greatly hindered by the governments; many of their members were arrested. The Concluding Document of the OSCE follow-up meeting in Vienna, which was approved in 1989, contained numerous detailed provisions on human rights. A new mechanism was developed to handle specific violations within the ‘human dimension’. This mechanism contained the following provisions: ●

● ●

●

participating states are obliged to react to requests for information about the human dimension by other participating states; they must be willing to hold bilateral meetings about such issues; each participating state is entitled to inform all other participating states about the questions concerned; finally, participating states were entitled to raise issues of human dimension at the annual conferences and the next OSCE follow-up meeting.

These provisions were further elaborated and refined at the meetings on the human dimension, held in Paris (1989), Copenhagen (1990) and Moscow (1991) and at the follow-up meeting in Helsinki (1992). In Helsinki, it was decided to continue to hold annual implementation meetings on human dimension issues. The main task of these meetings is to review implementation of all OSCE human dimension


commitments, while indirectly a further development of these commitments is also provided for. At the conference in Budapest in 1994, it was decided to change the name from Conference into Organization for Security and Cooperation in Europe; this change of name, however, was not meant to have any legal consequences. The OSCE was closely involved in trying to find solutions to the conflicts in the Armenian enclave of Nagorno–Karabakh in Azerbaijan and the conflict about the Russian republic of Chechnya, where serious violations of human rights were committed. The organization tried to mediate as much as possible in both cases with varying success. The same is largely true for OSCE activities in the conflict in the former Yugoslavia, where it helped to supervise elections in Bosnia–Herzegovina and in Kosovo. At the follow-up conference in Helsinki in 1992, a Dutch proposal was adopted to establish a High Commissioner on National Minorities. The former Dutch minister of foreign affairs, Max van der Stoel, was appointed as the first person to occupy this position. He carried out his activities beyond the glare of publicity, using the technique of ‘quiet diplomacy’. Within the framework of conflict prevention he concentrated on ‘early warnings’, and, where necessary, ‘early actions’, whenever the position of any national minority in Europe led to tensions. This meant a dual task: on the one hand, he must try to contain such tensions, if they fell within his mandate; on the other hand, he must warn the OSCE if tensions increased to such a point that he was no longer able to contain them. Dr Van der Stoel’s actions received wide appreciation and he succeeded in containing a number of potential conflicts. His successor is the Swedish diplomat Ralf Ekeus.44 The Helsinki Final Act of 1975 was a very important document that has greatly helped to promote human rights in Central and Eastern Europe. Nowadays, however, the OSCE fulfils only a limited role in the field of human rights supervision. It functions mostly as a forum, where states, if they feel the need, can consult each other. If requested, it makes observers available to monitor the observation of agreements in the field of human rights, including the observance of elections. But its achievements for instance in the former Soviet republics in Asia, where major violations of human rights have occurred, have been less than impressive.


The Organization of American States In 1948, the Charter of the Organization of American States (OAS) was adopted, together with the American Declaration of the Rights and Duties of Man as a set of standards in the field of human rights. In 1959, the Inter-American Commission on Human Rights was created. In 1969, the American Convention on Human Rights was adopted, creating the Inter-American Court of Human Rights, while the Commission continued to exist. The Inter-American Commission supervises the provisions of the OAS Charter and the American Declaration of the Rights and Duties of Man, which apply to all members of the OAS. The Inter-American Commission and the InterAmerican Court supervise the provisions of the Convention, which only apply to the states parties to the Convention.45 The Inter-American Commission on Human Rights has seven members elected by the General Assembly of the OAS to act in their individual capacity. Its aim is to promote the observance and defence of human rights in the continent as well as to serve as a consultative body for the OAS in this field. It may accept petitions from individuals, groups of individuals or non-governmental organizations. As in the case of the European Convention, national remedies must be exhausted before the Commission may deal with a petition. Furthermore, the Commission can conduct an investigation of its own and prepare a report on the human rights situation in a particular country. It may request information from the parties, conduct hearings or – with the approval of the government concerned – have a special committee visit the country under investigation. The Inter-American Court consists of seven members elected by a majority vote of the states parties to the Convention. It decides on disputes brought before it by states parties to the Convention or by the Inter-American Commission relating to charges that a state party has violated the Convention. It may also render advisory opinions at the request of any member of the OAS or organs of the organization on the interpretation of the Convention and other human rights treaties, and on the conformity of national laws of the states with these treaties. For many years, the Court had ruled on very few contentious cases, but more recently its workload has increased. The Inter-American Commission can itself take the initiative to deal with a case and a person need not be a victim himself to bring


a case before the Commission. When conducting an investigation in a particular country, the Commission may accept all information that is supplied, irrespective of formal criteria of admissibility as evidence. Such local visits provide the Commission with the opportunity to become acquainted with the details of gross human rights violations. The Inter-American organs in the field of human rights have gained prestige over the years. This is clearly linked to the fact that in most Latin American countries elected civilian governments have replaced military dictatorships. The strange paradox has occurred that some of these civilian governments tend to become irritated by what they see as new forms of intervention in their domestic affairs. Some of these governments have tried to trim the powers of the Inter-American Commission. It would indeed be a curious development if the very governments that had regained power partly thanks to the efforts of the Commission, were now to contribute to the limitation of its powers.46 Another serious concern is that the United States and Canada so far have refused to accede to this American Convention on Human Rights. The African Union The African Charter on Human and Peoples’ Rights (the Charter of Banjul) was adopted by the Organization of African Unity (OAU, since 2002 the African Union) in 1981 and came into force in 1986.47 The human rights listed are largely derived from earlier international human rights instruments such as the Universal Declaration and the two international covenants. Its new and ‘African’ character consists of the list of ‘peoples’ rights’ in the Charter. Among these are the right of self-determination, the right of peoples to freely dispose of their wealth and natural resources, the right to economic, social and cultural development, the right to peace and security and the right to a general satisfactory environment. The term ‘people’ is not defined, but coincides in practice with the population living on the territories of the state parties to the Charter. Another specific feature of the Charter is the mentioning of duties that apply both to state parties and to individuals. The Charter provides for an African Commission on Human and Peoples’ Rights, which started to function in 1987.48 The Commission consists of eleven members who are elected in their


personal capacity for a term of six years by the Assembly of Heads of State and Government of the African Union (AU). It was envisaged as a body to promote rather than to protect human rights. The Commission, which meets twice annually, deals with communications of a state party on violations of the Charter by another state party, if efforts to reach a friendly settlement have failed and after all local remedies have been exhausted. The Commission may also deal with communications from other, non-state sources. It reports to the Assembly of Heads of State and Government. Its reports are confidential, unless the Assembly decides otherwise. Each state party must submit a periodic report on the legislative or other measures taken with a view to giving effect to the rights and freedoms recognized in the Charter. This obligation has gradually been put into practice, but the states have been rather sparing in providing the necessary information. All African states have acceded to the Charter. While this is undoubtedly a positive development, on the whole the system has faced considerable difficulties. The African Commission has been confronted with a chronic lack of finances. Its secretariat is understaffed and the Commission lacks even the most elementary infrastructure such as office equipment, interpretation facilities and other administrative support. The Bureau of the UN High Commissioner for Human Rights and a number of nongovernmental organizations as well as private foundations supply financial and organizational support. While such support is of course welcome, in the end the African states will have to supply the financial means of support themselves, if only to prevent the Commission from receiving too much of a ‘non-African’ image. The Charter does not yet provide for an African Court of Human Rights, but a draft for such a court was adopted in 1998. So far, differently from the European and Inter-American conventions, in the African case final decisions have been left to the heads of state and government. This means also that the African system has, so far, been dominated more by political than by judicial considerations. The system is, however, still very much in development. Efforts are being made to learn from European and Inter-American experiences. NGOs are emphasizing the need for an African human rights regime that is truly independent of governments. The future of the system will very much depend on the degree of success of such efforts.


Conclusion At least for the time being, states remain the main actors in the field of human rights. It is states that design and ratify international human rights instruments; it is states that can be called to account for their lack of observation of the obligations of these instruments. Special attention was in this chapter devoted to the United States and the Netherlands. The United States of America has a proud historical record of drawing up human rights, both domestically as expressed in the US Constitution and internationally, for example, in the UDHR which it helped to design. Yet, in recent times, it looks as if its fear of international terrorism, which expressed itself in the destruction of the Twin Towers in New York with several thousands of innocent victims, has affected its commitment to the rule of law and international human rights. This would mean that values of humanitarianism and international human rights that used to be strongly expressed in US domestic and foreign policy are now at stake. Also in the much smaller country of the Netherlands, there is reason for considerable concern among those who uphold international human rights values. They seem to play a much lesser role now than in the past. The traditional commitment of the Netherlands to internationalism and the promotion of international law seems to have suffered both from the onslaught of the threat of international terrorism and a preference for the pursuit of national economic interests. That is to be regretted, both as a matter of principle and on the basis of promotion of interests in the long term. A country such as the Netherlands can ill afford to neglect its international relations. Yet, this is what seems to be at issue today. States can act both as protectors and as violators of human rights. Therefore it is important that, as the traditional sovereignty of national states decreases, attention is paid to other actors as well. That is why in this chapter international organizations and in the following chapter non-state actors are the subject of discussion. International organizations seem also to be affected by the threat of international terrorism. The United Nations has grown to a spectacular size; its membership is now well-nigh universal. Yet, its impact in international relations in general, and in the field of human rights in particular, seems to be on the decrease. The


Secretary-General can do little without the support of its major member, the United States, which seems to have lost interest in the organization that it once helped to create. The statements of the Commission for Human Rights and the High Commissioner for Human Rights seem to be more and more ignored. Among the regional organizations, the Council of Europe has also grown in size, but not in influence. There is a grave danger that the European Court of Human Rights will be so overwhelmed with cases that it will cease to function properly. The European Union has also grown in size and in economic importance, but it seems questionable whether that is also true of its activities in the field of human rights. With the fall of the Berlin Wall, the Organization for Security and Cooperation in Europe seems to have lost most of the impact it once had in the field of human rights. The same is true of the human rights organs of the Organization of American States, which also suffers from the absence of the United States and Canada among the signatories of the American Convention on Human Rights. The Organization of African Unity, though renamed African Union, has not progressed much from where it was, when it adopted the African Charter on Human and Peoples’ Rights back in 1981. Since the 1980s a lot has changed in the world. The fall of the Berlin Wall brought an end to major human rights violations in Central and Eastern Europe. The internal war in the former Yugoslavia came to an end. Apartheid in South Africa was ended without the violent bloodshed many people had feared. And in many countries of Latin America democratically elected governments have replaced military dictatorships. Yet, in many parts of the world, as in many parts of Africa, the former Soviet republics in Asia, and the Middle East, there is still considerable reason for concern about the state of human rights. This means that those individuals and groups that are committed to international human rights values, should increase their activities and see to it that negative developments are turned in the right direction.

6 Non-state Actors

Introduction International and national NGOs play a role of great importance in the field of human rights. A number of binding treaties in that field and implementation procedures would not have come about, were it not for the activities of these NGOs. They are single-minded in their pursuit of the promotion and protection of human rights and continuously remind governments of the obligations these have voluntarily taken upon themselves. Multinational corporations increasingly play a role in the field of human rights. Times are past in which multinationals limited themselves to the assertion that they were ‘obeying the law of the land’ where they had important foreign investments and that human rights were a matter of politics to be left to the states. More and more, one may find that such major companies take pride in the attention they pay to human rights considerations, making them even an aspect of their public relations activities. Finally, there are other non-state actors which may aspire to statehood or whose activities have important repercussions for states and for human rights. This is a wide-ranging category of armed opposition groups that include the Palestine Liberation Organization (PLO), various Kurdish groups, as also guerrilla groups such as those operating in Algeria, Colombia, Mexico, Congo, Angola, Northern Ireland and elsewhere, including the Al Qu’aida network. They may refer to themselves as ‘liberation movements’ or ‘freedom fighters’, whereas their opponents may rather see them as ‘rebels’ or even ‘terrorists’. 115


Non-governmental organizations NGOs are defined by what they are not. They emphasize their distance and independence from national governments, yet at the same time it is mostly the actions and activities of these governments that are the very cause and purpose of their existence. Without governments there would be no NGOs. NGOs date back to the nineteenth century. The earliest that is usually mentioned is the British and Foreign Anti-Slavery Society formed in 1839. The International Committee of the Red Cross dates from 1864. The number of international NGOs has grown during the twentieth century from 1083 in 1914 to more than 37 000 in 2000. Around one quarter of today’s international NGOs were formed after 1990.1 There exist a great number of examples of successful cooperation between NGO coalitions and UN agencies.2 However, not all human rights NGOs are always equally prepared to cooperate in such networks. Amnesty International has, for many years, been notoriously reluctant to participate in such cooperation, claiming that it might violate its self-imposed ‘mandate’.3 The organization has been castigated as ‘arrogant’ by other human rights NGOs.4 In recent years, however, Amnesty International has shown itself more prepared to leave this position of splendid isolation.5 Non-governmental human rights organizations (HRNGOs) exist in all sizes and shapes. They may run from a letterhead ‘organization’ basically existing of one individual with or without expert knowledge of the subject, to large organizations with thousands of members. The only thing these phenomena have in common is that they are, or claim to be, ‘non-governmental’. The addition of ‘claim to be’ is needed, to cover the so-called ‘GONGOs’, ‘QUANGOs’ and ‘DONGOs’ referred to by Gordenker and Weiss, that look like HRNGOs, but are not truly non-governmental.6 It is not always easy to distinguish in practice these government-supported organizations from the real thing. Apparently, governments find it useful to hide some of their activities under the guise of being ‘non-governmental’, presumably because that title adds to their effectiveness. The Canadian human rights expert Laurie Wiseberg has developed the following definition of non-governmental human rights organizations: ‘[A] private organization which devotes significant resources to the promotion and protection of human rights, which is independent

Non-state Actors 117

of both governmental and political groups that seek direct political power, and which itself does not seek such power.’7 This definition covers HRNGOs of many different types and sizes, large and small, well endowed and poor, professional and less professional. At the UN World Conference on Human Rights in 1993, differences of view arose between large, well-organized NGOs, usually based in western countries, on the one hand, and relatively poor, less well-organized organizations often from ‘southern’ countries, on the other. The difficulty of reaching a more or less permanent form of cooperation among HRNGOs may be partly caused by this lack of agreement. Providing reliable information to governments, intergovernmental organizations, politicians, the news media, academics as well as to the general public, is the most important precondition to be fulfilled for any NGO to have an impact. It is probably much more important than the views and comments that are being expressed, as these are often already known anyway. All concerned eagerly seek reliable information. It is in the area of the collection of sound, reliable information that the need for a professional expert staff is most clearly felt. NGOs that command such a staff can more easily provide such information than organizations that have to rely mostly on the activities of volunteers. Volunteers may also possess the necessary expertise, but often lack a collective memory of the past. A body of information is usually built on previous knowledge as well as personal acquaintances. Volunteers come and go and, though mostly highly motivated, they may lack experience. Therefore, the existence of a professional staff may greatly add to the information-gathering role of the NGO. Reliability is closely linked to credibility. A government that is the target of such information will do its utmost to discredit such an organization by questioning its motives (e.g. calling it ‘political’), its financial resources (‘CIA-supported’, ‘communist umbrella organization’, and so on) and also its methods of work.8 In case such efforts are successful and the credibility of the organization’s work has been successfully challenged, its impact may suffer for many years to come. ‘New’ kinds of violations of human rights seem to occur all the time. Before the 1970s, most people thought that torture was a matter of the past. Human rights organizations have brought out that torture belongs very much to this day and age. The phenomenon of involuntary disappearances was another such phenomenon brought


to light by NGOs. In the 1990s, the world was confronted with ‘ethnic cleansing’, something nobody had heard of before. The hearings before the Yugoslavia Tribunal in The Hague provide almost daily, new material of what human beings can do to each other. For an NGO it is important to have access to the government. This means that it should be able to approach government officials to make them aware of its views. ‘Access’ may mean many things. It may mean that the organization can call an official on the telephone to make him or her aware of new information that may then be put to him or her in written form. It may mean having the ability to engage the official in a formal or informal conversation with representatives of the NGO, in order to raise the matter at the ministerial or cabinet level or at intergovernmental meetings. In certain countries, former NGO executives hold positions in national governments and NGO representatives are routinely included in official delegations to sessions of the General Assembly of the United Nations and special conferences. This is a welcome feature, if seen from the perspective of gaining maximum access. However, maximum access may be gained at the expense of putting at risk the organization’s independence. It should be clear then that access to the government is of extremely great importance to NGOs. No impact without access, though access is no guarantee for success. NGOs should at the same time be aware of the dangers to easy access may entail. The government and its permanent officials may hedge them in. This means that the NGOs run the risk of being seen by the public as an extension of the government. For a government, it is of great importance to maintain close relations with NGOs it considers reliable. Seen from the government’s perspective, there is little to be lost and much to be gained by such close relations. It is rather the NGOs that have to maintain a certain degree of caution in these relations. The Economic and Social Council of the United Nations, in its 1996 session, decided on new ‘Arrangements for Consultation with NGOs’.9 One of the principles to be applied in establishing consultative relations with NGOs is that the organization should have ‘… a representative structure and possess appropriate mechanisms of accountability to its members, who shall exercise effective control over its policies and actions through the exercise of voting rights or other appropriate democratic and transparent decision making


processes’.10 Criteria for judging such representativeness were, however, not spelled out. The issue of whom precisely NGOs represent, remains unsolved for the time being. In view of all of these difficulties, one may well come to the conclusion that the issues the NGOs take up are more important than their own democratic representativeness. But in the absence of more formal criteria for such representatives, the claim of many of them of being grass roots movements should be taken with a considerable grain of salt. NGOs are notorious for their wish for independence. Coordinating NGOs is, according to one UN official, ‘like herding cats’.11 This, it may be added by way of comment, is equally true of governments. Among NGOs, Amnesty International has traditionally stood out for its independence and unwillingness to associate itself with other HRNGOs for fear of endangering its cherished limited mandate. On the other hand, NGOs are aware of the need to work together to realize common aims. Paradoxically, international conferences organized by governments to discuss pressing international problems serve as a catalyst for bringing together NGOs. Recent examples are the world conferences on environment and development (Rio de Janeiro 1992), human rights (Vienna 1993), population and development (Cairo 1994), women’s issues (Beijing 1995), housing problems (Istanbul 1996), the environment (Kyoto 1997), racial discrimination (Durban 2001), all of which saw the phenomenon of ‘parallel’ conferences of NGOs.12 These NGOs might never have met, but for the occasion of the governmental meetings that had brought them together. There exists considerable pressure, both from the outside and the inside, on HRNGOs to co-ordinate their efforts. From the outside, certain governments try to limit the number of NGO interventions in intergovernmental meetings, using the argument that it is too time consuming to have to listen to the statements of so many NGOs, which basically have the same message to convey.13 These same governments have no qualms about similar endless interventions by diplomatic delegates, exercising their ‘right of reply’. The NGOs should show more self-discipline by grouping their statements.14 In principle, the NGOs themselves also see the need for closer cooperation and co-ordination of their activities, in order to mobilize scarce resources and avoid duplication of efforts. However, in view of


the diverse nature of the various NGOs, with regard to aims to be achieved, their size, financial resources and cultural background, it has so far proved extremely difficult to bring about such cooperation. The independent International Service for Human Rights, a shoestring operation in Geneva, is doing its best to supply information – for example, on procedures at the United Nations, schedules of meetings, nature of the issues under discussion, and so on – to all human rights organizations. This type of effort clearly deserves to be expanded. As soon as the provision of facilities in conference centres and the right to take the floor at intergovernmental gatherings, let alone the provision of financial aid, are at stake, NGOs ostensibly working for similar aims, may become fierce competitors. In this respect, they resemble competing governments who also are reluctant to give up their sovereign rights for the sake of mutual cooperation. One thing is clear, however: it should be left to the NGOs themselves, to find the proper channels for cooperation. The ‘mobilization of shame’ is greatly dependent on media exposure. Politicians in general and governments in particular are more likely to be persuaded to act on behalf of human rights, in the face of media attention or the threat of it. Even if HRNGOs make use of ‘silent diplomacy’ when approaching governments, for instance to bring about the release of a particular political prisoner or to end cases of torture, around the corner there is always the threat of media exposure. What remains in the last resort, is publicity in order to try to change a government’s attitude and behaviour by public pressure. Chances of success are greater if the country concerned traditionally pays attention to expressions of public opinion, but there are no governments – ranging from full-fledged democracies to dictatorships – that can afford to ignore fully their public relations. In addition, public exposure may also lead to the exertion of external pressure by other governments or intergovernmental organizations. The need for publicity may lead NGOs to what Ritchie has called ‘dramatic postures’ for the sake of gaining publicity.15 Such stunts may include pop-music performances by well-known entertainers, television shows (on occasion sponsored by commercial firms), or imitations of human rights violations such as torture or isolated imprisonment. The limits of what is acceptable in this sphere and the ethics of accepting company money for such purposes are often hotly debated within the organizations.


There is always a danger that the message the human rights organization wants to convey may be lost in the glare of publicity, that, as it were, ‘the show takes over’. For instance, many members of the audiences attending the pop concerts in a world tour by such artists as Bruce Springsteen, Peter Gabriel and Sting, in the ‘Human Rights Now!’ event in 1988 may not have been aware that they were taking part in an awareness event.16 The tour was underwritten by a commercial enterprise.17 Internally within Amnesty there was initially a great deal of discussion over the wisdom of having such an arrangement. In the event, the commercial enterprise was given a relatively low profile during the concerts, thanks to which fears that Amnesty might be associated with the selling of one particular brand of sportswear did not materialize. Human rights NGOs play a role of some significance in international relations. That in itself remains a remarkable feat that calls for explanation. They criticize governments for violating human rights or for allowing or condoning such acts. Why should national governments pay attention at all to what HRNGOs have to say? The NGOs have no power; they rely on a relatively limited membership, if at all. They pose no economic or military threat. Yet, they are given the floor in meetings of intergovernmental organizations and in international conferences. Their representatives are received in national capitals and their views are paid at least lip service to. Governments even go as far as setting up or sponsoring fake NGOs to counter the activities of the real ones. Why? The only answer to this question,18 which is the same that is offered by the NGOs themselves, is the often-cited ‘mobilization of shame’. This refers to the circumstance that all governments like to be known as civilized and as observing the international human rights standards that they themselves have helped to devise. No government will easily admit that it allows violations of those standards to take place. Yet, most governments in the world at some time or other violate them. This discrepancy between norm and practice creates the space in which HRNGOs can operate. Starting from the point of agreement as to how governments ought to behave, they draw attention to violations of these standards. Basically, governments have two ways of reacting to such allegations: admittance or denial. In view of their above cited adherence to international human rights standards, admittance of violations of such standards logically means


that something will be done about it. In such cases, one can say that the NGO’s activities have been successful. If, as often happens, the government in question denies the allegation, the reputation of the NGO for reliability is at stake. In the absence of other elements of power, reliability is the only source of strength HRNGOs can dispose of. By continuous truthful reporting an organization can build up a reputation of reliability, which must be jealously guarded. It can be threatened from two sides. First, of course by an offending government which may try either to discredit the HRNGO by questioning its motives or methods of work and by disseminating disinformation. But there is also a danger from the opposite direction. Political opponents of the government in question may try to use HRNGOs for purposes of their own by feeding the HRNGO with news about alleged atrocities on the part of the government that may actually never have taken place.

Multinational corporations Increasingly, the notion is gaining acceptance that multinational corporations have a role to play in the promotion of respect for human rights in the countries where they operate. This has taken many years of strenuous efforts on the part of especially nongovernmental human rights organizations, which continue to remind multinationals of their responsibilities in this area. A Dutch legal scholar, Nicola Jägers, has looked into the question of which human rights may be at issue through the activities of multinational enterprises. She mentions the right to life, liberty and security, the prohibition of slavery, the freedom of movement and residence, the right to privacy, the right to freedom of expression, the right to assembly and association, the right to work, conditions of work and the right to form a trade union, the right to rest and leisure, the right to take part in government, the right to self-determination and to permanent sovereignty over natural wealth and resources.19 In the past, multinational corporations, when faced with criticism about their role in countries where gross human rights violations were taking place, used to refer to their observance of the law of the land and their refusal to ‘become involved in politics’. In that attitude a change seems to have occurred. Some multinationals tend to recognize their responsibility in this area and even use it in their


public relations campaigns. In a brochure issued by Royal Dutch/Shell, the company cites a letter by two non-governmental human rights organizations praising it for ‘the pioneering role that Shell is fulfilling in recognizing that multinational corporations bear responsibility in the field of human rights’.20 Shell does this, not so much out of idealism, but out of an enlightened self-interest. In its own words: Campaigners argue that companies should recognize a direct selfinterest in promoting the preservation of human rights. The violation of human rights often leads to civil instability and uncertainty in the investment climate. And even in stable times, a lack of positive action from companies in this regard can damage corporate reputations.21 In 1998, two human rights organizations, Amnesty International and Pax Christi International, published a study that was conducted in the context of a dialogue with nine Dutch multinational enterprises as well as employers and workers’ organizations.22 The report outlines on the one hand human rights within a company’s own operations and human rights within a company’s direct environment on the other hand. The two human rights organizations propose a number of ‘quality marks’ for a corporate code of conduct.23 They conclude their report by stressing that, in order to be effective, a corporate human rights policy must become an integral part of a company’s culture. To this end ●

●

●

employees at all levels must be made aware of the company’s standards; a monitoring system will be needed to regularly assess company performance; transparence requires the establishment of confidential complaint procedures for employees.24

As important as the report itself – or perhaps even more important – is that through this initiative human rights organizations have entered into a dialogue with multinational corporations. The NGOs should, however, not lose sight of the fact that, notwithstanding all positive and praiseworthy initiatives, in the end the two parties have


different objectives: respect for human rights on the one hand, and achieving maximum profits on the other. Human rights organizations are the only bodies that can permit themselves to be single-minded in the pursuit of the maximization of respect of human rights. Economic globalization is in the first place clearly ‘… being driven by forces other than the global human rights movement – mainly of course, by the interests of global capital, trans-national corporations, and their political allies’.25 This has, however, had great impact especially on the possibilities for people in Africa, Asia and Latin America to substantially realize their economic and social rights.26 The human rights organization Amnesty International has listed the following human rights that are violated through the operations of multinational corporations that benefit from the advantages of globalization: ●

● ●

● ●

employment of sub-contractors who abuse child labour, bonded labour or slave labour; hiring firms linked with human rights abuses; contracting producers who have prohibited or repressed unions or who violate accepted labour standards and endanger the health and safety of workers or other citizens; occupying indigenous peoples’ lands to extract national resources; failing to stop discrimination or observe rights to equal pay and many lesser infringements of standards.27

Yet, at the same time, some of the corporate leaders recognize that they must pay attention to human rights or risk consumer pressure plus ‘a tarnished image, and problems with employee recruitment and morale’.28 They have come to realize that they have also to fulfil a role in helping to guard the observance of human rights in countries where they are located. The use of child labour by clothing manufacturers, the damage to the physical environment by oil companies, the destruction of tropical forests by timber companies – often doing great damage to the living conditions of the indigenous population – are only a few of the many ways in which human rights can be affected by multinational corporations. No longer do they only refer to ‘observing the laws of the land’ when being confronted with human rights violations of whatever kind. NGOs have begun a dialogue with them, to consider in which way multinationals can fulfil their responsibilities.


Human Rights Watch has with some reason, criticized many of the existing voluntary codes of conduct that are often written ‘in vague language … avoid some of the stickier human rights issues … such as how to do business in a country that bars labour unions, restricts the rights of women, guards company facilities with abusive soldiers, or uses joint-venture revenue to fund military abuses’.29 It has also criticized the international financial institutions30 that used to pursue ‘… a conception of economic development that was largely insensitive to human rights’. However, the human rights organization has acknowledged that especially the World Bank more recently ‘has begun to change this sorry legacy’,31 showing greater sensitivity to human rights by combating corruption, reducing poverty and promoting good governance and the rule of law. Under the heading ‘Struggles for Human Freedom’, the United Nations Development Programme, in its Human Development Report for 2000, has observed that global corporations ‘… can have enormous impact on human rights – in their employment practices, in their environmental impact, in their support for corrupt regimes or in their advocacy for policy changes’.32 It lists seven areas, where the struggle continues for realizing and securing human freedoms: ● ● ● ● ● ● ●

freedom freedom freedom freedom freedom freedom freedom

from discrimination – for equality; from want – for a decent standard of living; for the realization of one’s human potential; from fear – with no threats to personal security; from injustice; of participation, expression and association; for decent work – without exploitation.33

The important point is made that international law holds states accountable, not corporations, many of whom ‘… may fail to meet human rights standards, or local implementation measures and independent audits’.34 This leads to a twofold preliminary conclusion: either the multinational corporations should be made accountable to the rules of international law – which may be difficult to accomplish – or the role of the state should be strengthened. The latter was probably what Jack Donnelly had in mind, when he made the following suggestion: ‘[I]n those countries where human rights advocates are


maintaining or strengthening their position, an alliance with the State – so often the enemy of human rights – may prove the best way to re-establish the social control over markets necessary to assure economic and social rights for all.’35 It is up to the state to ‘temper the efficiency of markets with rights-based concerns for at least minimally equitable distributions of social goods, services and opportunities’.36 States may be sooner prepared to undertake action in this field, if prodded by human rights NGOs.

Other non-state actors Other non-state actors include groups that aspire to statehood or to secession from existing states. They are commonly referred to as ‘nongovernmental entities’ (NGEs) or ‘armed opposition groups’ that are willing to use armed force to overthrow existing governments or to secede from existing states. The question arises whether and to what extent the observance of human rights is relevant for them. In the past, the most important of such groups were the so-called ‘liberation movements’ that wanted to free their peoples and the territories in which they operated from colonial rule. They were often recognized as the legitimate representatives of the peoples still under colonial rule and many of them were granted special observer status in UN organs.37 Examples of such groups are Frelimo in the former Portuguese Mozambique, the Popular Movement for the Liberation of Angola (MPLA), and the South-West African People’s Organization (SWAPO) in Namibia. Some of these organizations were guilty of human rights abuses during their fight for independence. In the case of Namibia, the issue was raised during the 1990s whether a truth and reconciliation commission should be set up to investigate both the activities of the South African apartheid regime in Namibia as well as practices of torture and disappearances as practised by SWAPO. But the government of President Sam Nujoma was adamantly opposed to the whole idea of such a truth and reconciliation commission. As the former leader of SWAPO, he did not want such human rights abuses officially acknowledged. In contrast, in neighbouring South Africa, there was a powerful political consensus, led by President Nelson Mandela, for setting up such a commission whose mandate included looking at human rights abuses committed by the anti-apartheid forces.


Since the gaining of political independence by the former colonies, the phenomenon of armed opposition groups has not disappeared. On the contrary, all over the world we find such groups that are referred to in what Liesbeth Zegveld has called a ‘multifarious terminology’. They are variously referred to as ‘insurgents’, ‘rebels’, ‘terrorists’, ‘subversive groups’, ‘guerrillas’, ‘criminals’, ‘non-governmental groups’, ‘movements’ and ‘clans’.38 Some of these groups, such as the Palestine Liberation Organization (PLO) clearly aspire to statehood and have received a certain measure of international recognition.39 Other organizations have not (yet) reached that status. Some of them control de facto territories and populations;40 others are militarily and politically inferior to the established government, have no direct control over territory, and operate only sporadically.41 For example, in Northern Iraq (the Kurds), in Sri Lanka and in Sudan, armed opposition groups operate as quasi-governments. Zegveld has studied 15 internal armed conflicts where such organizations have operated or are still operating: Afghanistan, Algeria, Cambodia, Chechnya, Colombia, El Salvador, Lebanon, Nicaragua, Rwanda, Somalia, Sri Lanka, Sudan, Turkey, Northern Ireland and the Former Yugoslavia.42 On the whole, these groups have not signed or ratified international human rights treaties and can therefore not be called to account, if they violate the terms of such treaties. Human rights NGOs, such as Amnesty International, have long internally debated the question how they should approach such situations. Should such groups be asked to honour the same commitments in the field of human rights as the formal government of their country? Should they be asked to give their prisoners fair and prompt trials? How realistic would it be to treat such groups as if they were governments? And to what extent would the making of such demands imply some sort of informal recognition?43 Zegveld has made the point that when armed opposition groups exercise quasi-governmental functions in part of a state territory, ‘and in that sense resemble a government’, human rights can be extended to them.44 They can then, in other words, become themselves protectors and promoters of human rights. But the term ‘armed opposition groups’ is by no means a fixed concept in international law and for the time being ‘there exists little consensus on the question whether and under what conditions such armed opposition groups can or should be held accountable under international human rights law’.45


It is to be expected that in the near future the activities of such non-governmental entities will not decrease. There seems to be an upsurge of groups that seem to have little in common except for an abundant supply of weapons and a striving for power. Together with that go killings of civilians, torture, non-judicial executions and other violations of international human rights standards. The existence and contents of such standards are often little known to the perpetrators. That makes the supervision of their activities by international governmental and NGOs highly difficult.

Conclusion Non-state actors tend to play an ever-increasing role in international relations in general, and in the realm of human rights in particular. They have an impact on interstate relations, but also play a role of their own that has grown in strength and importance in recent years. This is true for each of the three categories of non-state actors discussed in this chapter. Non-governmental human rights organizations are as active as ever in the promotion and protection of human rights. Yet, again their impact seems to have suffered as a result of international terrorism. Their messages are as strong as ever, but it seems that they are less listened to than in the past. Efforts to increase cooperation among human rights organizations have on the whole not been very successful. Multinational corporations show considerably more interest in human rights than in the past, but their commitment is highly dependent on what their customers ask and expect from them. In the end, the selling of their products is of course of greater importance to them than the promotion of human rights. This would make their long-term commitment to human rights values questionable. Finally, there are the armed opposition groups, who on the whole pursue other objectives than human rights. Their use of violence may affect the lives and physical integrity of innocent civilians. They are not explicitly committed to upholding human rights standards.

7 Concluding Observations

Everybody seems to be in favour of human rights. That is true for governments that have made it a constituent element of their foreign policy. It is true for global and regional intergovernmental organizations that devote elegant words to it in international treaties and declarations. It is of course also true for NGOs that spend all or part of their efforts on it. And nowadays it is true of many multinational corporations who use it in their public relations campaigns. The Netherlands is in favour of human rights. So are the United States, Russia and China and all other states. Amnesty International is in favour of human rights. In short, everybody is in favour; nobody is against. There appears to be ‘consensus’ – at least in words, if not always in deeds. Such consensus has positive as well as less positive aspects. One of the positive aspects is that governments can be confronted with their own words – especially if actual practice is not fully in accordance with the theory. Such confrontations take place on a daily basis: in the UN Commission on Human Rights, the Security Council, the General Assembly; in the framework of the OSCE, the Council of Europe, NATO, the Organization of American States, the African Union, and elsewhere. Sometimes, this has effect and may lead to an improvement of the human rights situation. But consensus has also negative aspects. It can mean that one may close one’s eyes to problems that are the consequences of greater respect for human rights; or to political dilemmas for which there are no simple solutions. Such dilemmas that have been discussed in the

129


previous chapters are: ●

●

●

●

The choice between human rights and non-intervention in domestic affairs; The choice between human rights on the one hand and peace and security on the other; The choice between the right to national self-determination and territorial integrity; The choice between human rights and economic interests.

Whoever decides to make human rights a constituent element of foreign policy will be confronted with such dilemmas. There are no simple recipes for solving them. Having weighed pros and cons, a decision must somehow be made. That is part and parcel of policy making in general, including the making of foreign policy. The greatest and most important problem remains the question of the universality of norms. Are human rights ‘universal’ or are they ‘culturally relative?’ There are no easy answers to that question, either. This book is based on the idea of a gradually developing international agreement, while recognizing a certain degree of cultural diversity. That means the acceptance of the UDHR as a ‘common standard of achievement’. Human rights are rights that are special and very important. They are now an essential part of international politics. They serve either as a goal or as an instrument of foreign policy. If seen as a goal, it means that one works for the improvement of human rights as such; seen as an instrument, it means that one uses human rights for other purposes, for example to strengthen national security. International human rights standards have been greatly developed since the Second World War. The UDHR was followed by numerous treaties and declarations, globally as well as regionally, both with regard to human rights in general and specific rights in particular. Governments and political elites may by now be assumed to know what is permitted by these standards and what is not. This knowledge has, however, not yet reached all levels of society. This means that there remains an important task for human rights education: the distribution of knowledge of internationally accepted norms and values. For that purpose the translation of the most important texts into as many languages as possible is a conditio sine qua non.

Concluding Observations 131

The implementation of human rights standards has made less progress. International supervision mechanisms are insufficiently effective. This is not to say that no progress has been made at all. At a global level, there are the organs of the United Nations and their special rapporteurs and working groups. These have some effect, if only through the ‘mobilization of shame’; governments do not like to be accused of human rights violations. Quite a few international human rights treaties contain reporting obligations. These are also of some importance, but the absence of effective sanctions for states that do not report or do not execute the recommendations of the supervisory organs, remains a major deficiency. Yet, this is of course true of the international system as a whole: it still lacks the overall police force that national states have. The most important supervisory mechanisms on a regional basis exist under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Well-nigh all European states have now acceded to this Convention. This has even further increased the already overburdened system that is in grave danger of succumbing under its own success. Supervision mechanisms in the other regions of the world are either less developed (the Americas, Africa) or entirely absent (Asia, Oceania). Important new and promising developments are the establishment of the UN High Commissioner for Human Rights, the international tribunals (on the former Yugoslavia, Rwanda, East Timor and Sierra Leone) and the International Criminal Court. In the further development of supervision mechanisms consideration should be given to the circumstance that human rights violations occur increasingly by armed opposition groups that are not under government authority. Acts of terrorism, abductions, torture, and extrajudicial executions are human rights violations whether or not ordered by governments. Such groups often justify their activities by appealing to an aim of higher order; the fight against intolerable oppression or the liberation of their country. The violent attacks in the United States of 11 September 2001, which killed several thousands of innocent civilians, have so far formed the culmination of such actions. Governments may react by using means that are themselves violations of fundamental human rights. The US government has been rightly criticized by human rights organizations for its handling of alleged ‘hostile combatants’, who have been denied elementary


rights of fair trial. Violations of both kinds – by governments and non-governments alike – should be a subject of concern to those who work for the promotion and protection of fundamental human rights in the world. An important contribution to this work is made by NGOs. At the international level, they contribute to the further development of international standards and they provide information to supervisory organs. In many fields, there exists close cooperation between intergovernmental and NGOs. At the national level, they observe critically the activities of the government and provide pertinent information to parliament and the press. In this area, parliamentary and non-parliamentary groups can usefully complement each other. The communication media are of vital importance in this area. Violations of human rights often occur in silence, behind the screens. The communication media distribute information, both about violations of human rights and about the reports of intergovernmental and NGOs, which are not widely read. Such reports, if further distributed by the press, radio and television, make such practices publicly known. Only if human rights violations are publicly known, can the ‘world conscience’ come into action. This world conscience or public opinion is in the final instance the most important weapon to be used against human rights violations. At the same time, it is a highly uncertain and unreliable weapon. It is very difficult to say when and under what circumstances it will come into action. Fatigue symptoms and feelings of apathy among citizens, when they hear about ever-recurring human rights violations, can have a negative impact. Concern for human rights is permanent in nature. Nobody ever does enough on behalf of human rights. That is true for governments, for intergovernmental organizations, for national parliaments, for NGOs and for private individuals. It is praiseworthy if governments commit themselves to make human rights a central element of their foreign policy. They must, however, be continually reminded of that commitment.

Appendix: Universal Declaration of Human Rights Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, therefore, The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

133

134 Appendix

Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3 Everyone has the right to life, liberty and security of person.

Article 4 No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6 Everyone has the right to recognition everywhere as a person before the law.

Article 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8 Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.

Appendix 135

Article 10 Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11 1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 14 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

136 Appendix

2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17 1. Everyone has the right to own property alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.

Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20 1. Everyone has the right to freedom of peaceful assembly and association. 2. No one may be compelled to belong to an association.

Article 21 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right to equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22 Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23 1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

Appendix 137

2. Everyone, without any discrimination, has the right to equal pay for equal work. 3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. 4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24 Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25 1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. 3. Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

138 Appendix

Article 28 Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30 Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Notes 1 Introduction 1. Monique Castermans–Holleman, ‘Between condemnation and constructive cooperation: The Netherlands and China,’ in Peter Baehr, Monique Castermans-Holleman, Fred Grünfeld, Human Rights in the Foreign Policy of the Netherlands (Antwerpen: Intersentia, 2002) 159–61. 2. K. J. Holsti, International Politics, a Framework for Analysis (Englewood Cliffs NJ: Prentice Hall International Editions, 1995, seventh edition) 83. 3. Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Power, (London etc.: Touchstone Books, 1998) 192. He added, however, that in the nineties almost all non-western civilizations, especially in Asia, became resistant to this pressure from the west. 4. Cf. Francis Fukuyama, The End of History and the Last Man (London: Hamish Hamilton, 1992) 152. ‘Men seek not just material comfort, but respect or recognition, and they believe that they are worthy of respect because they possess a certain value or dignity.’ 5. David P. Forsythe, Human Rights in International Affairs (Cambridge: Cambridge University Press, 2000) 7. 6. Maurice Cranston, What are Human Rights? (New York: Taplinger Pub. Co., 1973) 70. 7. Hedley Bull, ‘Human rights and world politics,’ in Ralph Pettman (ed.) Moral Claims in World Affairs (London: Croom Helm, 1979) 79. 8. Ministry of foreign affairs of the Kingdom of the Netherlands, Human Rights and Foreign Policy, memorandum presented to the Lower House of the States General of the Kingdom of the Netherlands on 3 May 1979 by the Minister for Foreign Affairs and the Minister for Development Cooperation [English version], 15 (Hereafter: Human Rights and Foreign Policy). 9. Ibid., 16. 10. Katarina Tomaˇsevski, ‘The right to peace,’ in Richard Pierre Claude and Burns H. Weston (eds) Human Rights in the World Community: Issues and Action (Philadelphia: University of Pennsylvania Press, 1989) 168. [Reprinted from: Current Research on Peace and Violence, 5 (1982) 42–69]. 11. See ‘The Syracusa principles on the limitations and derogation provisions in the international covenant on civil and political rights,’ Human Rights Quarterly, 7 (1985) 3 ff. 12. See Philip Alston, ‘Conjuring up new human rights: a proposal for quality control,’ American Journal of International Law, 78 (1984) 607–21. 13. Human Rights and Foreign Policy, supra note 8: 16. 14. Human Rights and Foreign Policy, supra note 8: 10.

139

140 Notes

15. For the texts of these documents see, for instance: Walter Laqueur and Barry Rubin (eds) The Human Rights Reader (New York: New American Library, rev. edn. 1989) 59 ff.; Micheline R. Ishay (ed.) The Human Rights Reader: Major Political Essays, Speeches, and Documents. From the Bible to the Present (New York: Routledge, 1997) 73 ff. For an excellent analysis of the historical evolution of human rights, see Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998). 16. Henry Kissinger, Diplomacy (London: Simon & Schuster 1994) 79. 17. A.H. Robertson and J.G. Merrills, Human Rights in the World, An Introduction to the Study of the International Protection of Human Rights (Manchester: Manchester University Press, 1996) fourth edition, 20–3. 18. Arie Bloed and Fried van Hoof, ‘Some aspects of the socialist view of human rights,’ in A. Bloed and P. van Dijk (eds) Essays on Human Rights in the Helsinki Process (Dordrecht: Martinus Nijhoff, 1985) 34–5. 19. Ibid. 20. Jack Donnelly, International Human Rights, Dilemmas in World Politics (Boulder CO: Westview Press, 1993) 8. 21. Donnelly supra note 20, 13; Michael Freeman, ‘Fifty years of development of the concept and contents of human rights,’ in Peter Baehr, Cees Flinterman, Mignon Senders (eds) Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (Amsterdam: Koninklijke Nederlandse Akademie van Wetenschappen, Verhandelingen, deel 178, 1999) 32. 22. Freeman, supra note 21: 33. 23. Netherlands Ministry of Foreign Affairs, Human Rights Reference Handbook (The Hague, 1999, second, revised edition) 151. 24. Vienna Declaration and Program of Action, para. 4. 25. UN/S/RES 688; see also P.R. Baehr, ‘The Security Council and human rights,’ in Rick Lawson and Matthijs de Blois (eds) The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of Henry G. Schermers (Dordrecht/Boston/London: Martinus Nijhoff, 1994) 22–3. 26. Two earlier human rights related actions by the Security Council can be discerned: in 1977 the Security Council decided to use enforcement measures (arms embargo) in response to South African apartheid and in the case of Rhodesia the Security Council ordered economic sanctions under chapter VII of the UN Charter (Baehr, supra note 25: 17–20). 27. S/PV 3046, 31 January, 1992 28. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton NJ: Princeton University Press, 2001) 23. 29. Ibid., 25. 30. Statement by Mary Robinson, United Nations High Commissioner for Human Rights, to the Opening of the 54th session of the sub-commission on the promotion and protection of human rights, 29 July 2002. 31. ‘Guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism,’ adopted on 15 July 2002, para. II.

Notes 141

32. See Monique C. Castermans–Holleman, ‘State sovereignty and the international protection of human rights’ in Moorhead Wright (ed.) Morality and International Relations, Concepts and Issues (Aldershot: Avebury, 1996) 119–20. 33. Stanley Hoffmann, Duties beyond Borders: On the Limits and Possibilities of Ethical International Politics (Syracuse, NY: Syracuse University Press, 1981) 116. 34. Forsythe, supra note 5: 31–2. 35. Donnelly, supra note 20: 30–3 36. See David P. Forsythe, ‘The United States and International Criminal Justice,’ Human Rights Quarterly 24 (2002) 974–91. 37. J. J. C. Voorhoeve, Peace, Profits and Principles, A Study of Dutch Foreign Policy (The Hague/Boston/London: Martinus Nijhoff, 1985) 20. 38. Human Rights and Foreign Policy, supra note 8: 82.

2 Contemporary Issues 1. United Nations General Assembly, A/CONF.157/23, 12 July 1993, Vienna Declaration and Programme of Action, para. 1 2. Ibid., para. 5. 3. Ibid., para. 1. 4. Adamantia Pollis has rightly pointed out that for many states the acceptance of the international covenants is a symbolic gesture attesting to their membership in the world community but devoid of substance. Adamantia Pollis, ‘Towards a New Universalism; Reconstruction and Dialogue,’ Netherlands Quarterly of Human Rights, 16 (1998) 9. 5. It was not for the first time that the universality of human rights was being questioned. One could argue for example that the United States de facto rejected the universality of human rights during the Cold War by denying the importance of economic and social rights and refusing to ratify the International Covenant on Economic, Social and Cultural Rights. 6. Speech 15 June 1993 Vienna. 7. UN doc. A/CONF.157/ASRM/8, 7 April 1993, Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights, para. 8. 8. Bonny Ibhawoh, ‘Cultural Relativism and Human Rights: Reconsidering the African Discourse,’ Netherlands Quarterly of Human Rights, 19 (2001), 46–7. 9. Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca and London: Cornell University Press, 1989) 109–10. 10. Ministry of foreign affairs, 2001 Memorandum on Human Rights Policy, The Hague, 2001 (official English version) 1. 11. Advisory Council on International Affairs, Universality of Human Rights and Cultural Diversity, The Hague, June 1998, 33; Letter of the minister of foreign affairs to the chairman of the Adviesraad Internationale Vraagstukken (AIV), 30 October 1998.

142 Notes

12. Monique Castermans–Holleman, ‘Between Condemnation and Constructive Co-operation: The Netherlands and China’, in Peter Baehr, Monique Castermans–Holleman, Fred Grünfeld, Human Rights in the Foreign Policy of the Netherlands (Antwerpen/Oxford/New York: Intersentia, 2002) 162 and 170. 13. Amnesty International, The Death Penalty: List of Abolitionist and Retentionist Countries, htttp://www.amnesty.org/rmp/dplibrary, visited on 14 August 2002. 14. Article 4 of the American Convention on Human Rights says, however: ‘Every person has the right to have his life respected. This right shall be protected by law, and, in general, from the moment of conception’ [italics supplied]. 15. Certain human rights, the so-called non-derogable rights, are rights that may never be set aside (see in general article 4 ICCPR). 16. Advisory Council on International Affairs, Universality of Human Rights and Cultural Diversity, The Hague: ministry of foreign affairs, June 1998, official English version, 34. 17. ‘The universal validity of basic human rights and fundamental freedoms is indeed beyond question,’ Vienna Declaration and Programme of Action, supra note 1, para. 1. 18. Though recent public debates in the United States, Israel and Germany about the possible use of torture methods to obtain information from alleged terrorists are a matter of serious concern among human rights activists. See: ‘Is Torture Ever Justified?’ The Economist, 11 January 2003. 19. Two other relevant treaties are ILO Convention No. 107, ‘Concerning the Protection and Integration of Indigenous and Other Tribal and SemiTribal Populations in Independent Countries’ (1957) and ILO Convention No. 169, ‘Concerning Indigenous and Tribal Peoples in Independent Countries’ (1989). 20. Other terms in use are ‘solidarity rights’ or ‘rights of the third generation’. 21. See for example: Jan Berting et al. (ed.) Human Rights in a Pluralist World: Individuals and Collectivities (Westport/London: Meckler, 1990); Marlies Galenkamp, Individualism versus Collectivism: the Concept of Collective Rights (Rotterdam: RFS, 1993); Marlies Galenkamp, ‘Collective Rights’, SIM Special no. 16 (Utrecht: SIM, 1995) 53–102; Abdullahi An-Na’im, ‘Human Rights and the Challenge of Relevance: The Case of Collective Rights’, in Monique Castermans–Holleman, Fried van Hoof and Jacqueline Smith (eds) The Role of the Nation–State in the 21st century: Human Rights, International Organisation and Foreign Policy (The Hague/ Boston/London: Kluwer Law International, 1998) 3–16. 22. Advisory Committee on Human Rights and Foreign Policy, Collective Rights, Advisory Report No. 19, The Hague: Ministry of Foreign Affairs, 1995, 35 (official English version), hereafter cited as Collective Rights. 23. Collective Rights, 23. 24. Cf. W.J.M. van Genugten, Mensenrechten in Ontwikkeling: Het ‘Goede Doel’ Voorbij [‘Human Rights in Development: Beyond the “Good Purpose” ’], (Nijmegen: Katholieke Universiteit, 1992) 27.

Notes 143

25. ‘After extensive discussions, the Advisory Committee has failed to reach a consensus on the question of whether collective rights can be termed human rights,’ Collective Rights, 4. 26. See also An-Na’im, ‘Human Rights and the Challenge of Relevance’, supra note 21, 4: ‘… I would emphasize that the recognition of collective rights as human rights should neither be at the expense of the protection of individual human rights, nor confined to the concept and implementation framework of these rights.’ 27. Yvonne M. Donders, Toward a Right to Cultural Identity? (Antwerpen/ Oxford/ New York: Intersentia, 2002) 95. 28. Van Genugten, ‘Mensenrechten in Ontwikkeling’, supra note 24: 24 and 29. 29. Donders, supra note 27: 99. 30. Cf. Collective Rights, 5. 31. Prevailing opinion in China is quite different on this point. See: Li Buyun, ‘On Individual and Collective Human Rights’, in Peter R. Baehr, Fried van Hoof, Liu Nanlai, Tao Zhenghua (eds) Human Rights: Chinese and Dutch Perspectives (The Hague/London/Boston: Martinus Nijhoff, 1996) 121: ‘The subject of collective human rights consists mainly of nations, societies, countries, and groups of countries. Among them, the State is the essential subject of human rights, for today the basic unit in the international community is the State.’ 32. France has made an explicit reservation with regard to article 27 of the International Covenant on Civil and Political Rights, referring to article 2 of the French Constitution which determines the equality under the law of all French citizens, without distinction as to origin, race, or religion. The British human rights expert Sir Nigel Rodley rightly wonders why France has found it necessary to make this reservation. Other countries whose constitutions contain a similar guarantee, have not found it necessary to enter such a reservation regarding article 27. See Nigel Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal Developments,’ Human Rights Quarterly, 17 (1995) 51–2. 33. Donders discusses arguments in favour and against collective human rights (Donders, supra note 27: 97–100). 34. Minister of foreign affairs, letter to the chairman of the Advisory Council on Human Rights and Foreign Policy, 5 March 1996. 35. Olusola Ojo, ‘Understanding Human Rights in Africa’, in Jan Berting (ed.) Human Rights in a Pluralist World, Individuals and Collectivities (London/Westport: Meckler, 1990) 115–24. 36. An-Na’im, ‘Human Rights and the Challenge of Relevance’, supra note 21, 16. He emphasizes the role of the human rights movement: ‘If the movement itself is not supportive of the idea of collective rights, governments and intergovernmental organizations are unlikely to pursue the matter on their own initiative’ (Ibid., 6). 37. ‘In most ministries [in the Netherlands], the view seems to persist that the ICESCR [International Covenant on Economic, Social and Cultural Rights] is still but a “poor relation” of its sibling Covenant, the

144 Notes

38.

39.

40.

41. 42. 43.

44.

45. 46. 47.

48. 49.

International Covenant on Civil and Political Rights’ (Netherlands Lawyers’ Committee for Human Rights, Commentary on the Second Periodic report of the Netherlands submitted in accordance with article 16 of the ICESCR, December 8, 1997, 4). See A.P.M. Coomans, ‘Schendingen van Economische, Sociale en Culturele Rechten’ [‘Violations of Economic, Social and Cultural Rights’], in A.P.M. Coomans, A.W. Heringa, I. Westendorp (eds) De Toenemende Betekenis van Economische, Sociale en Culturele Rechten [‘The Increasing Significance of Economic, Social and Cultural Rights’] (Leiden: Stichting NJCM–Boekerij, 1994) 59. See also Peter van der Auweraert, Tom de Pelsmaeker, Jeremy Sarkin, Johan Vande Lanotte (eds) Social, Economic and Cultural Rights: An Appraisal of Current European and International Developments (Antwerpen/Apeldoorn: Maklu, 2002). For an extensive comparison of the two draft texts see: Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Antwerpen/Groningen/Oxford: Intersentia/Hart, 1999) 199–346. Scott Leckie, ‘The Justiciability of Housing Rights’, in Fons Coomans and Fried van Hoof (eds) The Right to Complain about Economic, Social and Cultural Rights (Utrecht: SIM Special no. 19, 1995), 37. UN Doc. E/C.12/1992/WP.9. UN Doc. A/CONF.157/23, 25, para. 75. The UN Committee on Economic, Social and Cultural Rights has developed a Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc E/CN.4/1997/105; another draft has been developed by the Netherlands Institute of Human Rights (SIM): The Right to Complain about Economic, Social and Cultural Rights, supra note 40. The Dutch section of the International Commission of Jurists, NJCM, has argued in favour of setting up a complaints procedure that should be made available to a wider group than only individual complainants. Such a complaints procedure should be applied first to a limited number of economic, social and cultural rights to be gradually expanded. The (former) Dutch Advisory Committee on Human Rights and Foreign Policy has also argued in favour of such a complaints procedure. Monique Castermans–Holleman, ‘The Protection of Economic, Social and Cultural Rights within the UN Framework,’ Netherlands International Law Review, 62 (1995) 353–73. Baehr, Castermans–Holleman, Grünfeld, supra note 12, 220. Department of State, Country Reports on Human Rights Practices for 2002, (Washington D.C. 2003). Amnesty International, ‘Israel/Occupied Territories: End Collective Punishment of Palestinian Occupied Territories,’ AI-index: MDE 15/121/2002, 22/07/2002. Committee on Economic, Social and Cultural Rights, General Comment No. 15, E/C.12/2002/11, 26 November 2002. For text see: Human Rights Quarterly, 9 (1987) 123–35.

Notes 145

50. Theo C. van Boven, Cees Flinterman, Ingrid Westendorp (eds) The Maastricht Guidelines on Economic, Social and Cultural Rights (Utrecht: SIM Special no. 20, 1998). 51. Advisory Committee on Human Rights and Foreign Policy, Economic, Social and Cultural Human Rights, advisory report No. 18, The Hague: ministry of foreign affairs, 1994 (official English version) 32. International human rights provide that everyone has the right to an effective remedy for acts violating fundamental rights (e.g. art. 8 UDHR, art. 2 (3A)ICCPR, article 6 CERD). 52. Advisory Council on International Affairs, The World Conference against Racism and the Right to Reparation, The Hague, June 2001 (official English version), 12–13. 53. Forsythe discusses the US position with regard to international criminal justice, including its position regarding the International Criminal Court: David P. Forsythe, ‘The US and International Criminal Justice,’ Human Rights Quarterly, 24 (2002) 974–92. 54. Milosevic was finally indicted in May 1999 and brought before the Tribunal in 2001. 55. Payam Akhavan, ‘The Yugoslav Tribunal at a Crossroads; The Dayton Peace Agreements and Beyond,’ Human Rights Quarterly, 18 (1996), 267–74; David P. Forsythe, ‘International Criminal Courts: A Political View,’ Netherlands Quarterly of Human Rights, 15 (1997) 11; Payam Akhavan, ‘Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal,’ Human Rights Quarterly, 20 (1998) 737–816. 56. According to the Belgian sociologist Luc Huyse, the crucial challenge consists in finding a balance between the call for justice and the need for political prudence, ‘… or in other words, to reconcile ethical imperatives and political constraints’ (Luc Huyse, ‘Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past,’ Law and Social Inquiry 20 (1995) 65). However, this problem has by no means been resolved. Will the pronouncements of such a tribunal be accepted? Will it, in other words, fit the sense of justice of the population concerned? 57. Daniel Joel Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (London: Abacus, 1997). 58. Forsythe, ‘International Criminal Courts’, supra note 55: 13. 59. ‘The general framework agreement for peace in Bosnia and Herzegovina’, Netherlands Quarterly of Human Rights, 14 (1996) 102–10; see also Akhavan, ‘The Yugoslav tribunal at the crossroads’, supra note 55: 274–83. 60. ‘Wounded Nations Broken Lives: Truth Commissions and War Tribunals’, Index on Censorship 5/96, 39. 61. Priscilla B. Hayner, ‘Fifteen Truth Commissions – 1974–94: A Comparative Study’, Human Rights Quarterly, 16 (1994) 597–655. See also her Unspeakable Truths: Confronting State Terror and Atrocity (New York and London: Routledge, 2001); Michelle Parlevliet, ‘Considering Truth.

146 Notes

62.

63.

64. 65.

66. 67.

68.

69.

Dealing with a Legacy of Gross Human Rights Violations’, Netherlands Quarterly of Human Rights, 16 (1998) 141–74. See Christian Tomuschat, ‘Human Rights and National Truth Commissions’, in Peter Baehr, Cees Flinterman, Mignon Senders (eds) Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (Amsterdam: Koninklijke Nederlandse Akademie van Wetenschappen, 1999) 151–60. Truth Commissions: An Interdisciplinary Discussion held at Harvard Law School in May 1996 (Cambridge MA: Harvard Law School Human Rights Program, 1997) 50. Hayner, ‘Fifteen Truth Commissions,’ supra footnote 61: 607. See for example the following statement by Ntsiki Biko, widow of the slain South African anti-Apartheid activist Steve Biko: ‘To me it is an insult [to be asked to testify before the South African Commission on Truth and Reconciliation], because all that is needed is to have the perpetrators taken to a proper court of justice. … I doubt very much whether they can convince me that this Truth Commission is going to bring us reconciling: one would think of reconciling after justice, but justice must be done first. It can never be easy. To me, really, it is just opening the wounds for nothing. Because these people are going to go to the Commission – I suppose they have applied or their names have been taken. But if they go there, are they going to tell the truth? Or are they going to lie so they will get amnesty?’ (‘Wounded Nations Broken Lives,’ supra note 60: 68). Cf. Daan Bronkhorst, ‘Naming Names,’ Netherlands Quarterly of Human Rights, 16 (1998), 457–74. See Iain Guest, Behind the Disappearances: Argentina’s Dirty War against Human Rights and the United Nations (Philadelphia: University of Pennsylvania Press, 1990) 52 ff. The most extensive financial reparations have been paid by the German government to the victims of the Nazi regime: Wiedergutmachung. All in all, almost DM 100 billion have been paid out to the victims and their surviving relatives. Not all former victims were willing to accept such reparations, but what is important is that the German government in this way acknowledged its involvement for what had happened in the period 1933–45. This in itself was more important than the actual size of the financial reparations. Although, on account of his state of health Pinochet escaped extradition from Britain to Spain and was allowed to return to Chile in early March 2000, his arrest and subsequent house arrest for almost sixteen months have carried a powerful message to other former perpetrators of human rights violations.

3 Dilemmas of Foreign Policy 1. Stanley Hoffmann, Duties Beyond Borders: On the Limits and Possibilities of Ethical International Politics (Syracuse: Syracuse University Press, 1981) 116.

Notes 147

2. R.J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986) 132 ff. 3. Ibid., 143. 4. Max van der Stoel, ‘De Rechten van de Mens in de Oost–West betrekkingen’ [‘Human Rights in East–West Relations’] in Ph.P. Everts and J.L. Heldring (eds) Nederland en de Rechten van de Mens (Baarn: Anthos, 1981) 79; translated from the original Dutch. 5. http//www.osce.org/docs/English/1990–1999/summits/helfa75e.htm visited 14 March 2003. 6. Henry Kissinger, Diplomacy (New York: Simon and Schuster, 1994) 759–60. 7. See, for example: US Department of State. Country Reports on Human Rights Practices 2000 Turkey, Amnesty International, Report 2002, 248–50. 8. See Leo Zwaak, ‘A Friendly Settlement in the European Inter-State Complaints Against Turkey’, SIM Newsletter, no. 13, February 1986, 44–8. 9. US Department of State, Country Reports on Human Rights Practices 2001, http://www.state.gov/g/drl/rls/hrrpt/2001/eur/8331.htm visited 14 March 2003. 10. Ph. P. Everts (ed.) Controversies at Home: Domestic Factors in the Foreign Policy of the Netherlands (Dordrecht: Martinus Nijhoff, 1985). 11. Monique Castermans–Holleman, ‘Between Condemnation and Constructive Co-operation: The Netherlands and China’, in Peter Baehr, Monique Castermans–Holleman and Fred Grünfeld (eds) Human Rights in the Foreign Policy of the Netherlands (Antwerpen/Oxford/New York: Intersentia, 2002), 156–7. 12. The following observations on the relations of the Netherlands with Argentina, Chile, and South Africa are taken from two studies by Fred Grünfeld: ‘The Netherlands and Argentina: Economic Interests versus Human Rights’, and ‘A Showpiece of Human Rights Policy: Chile’, and by Peter R. Baehr, ‘Seldom in the Frontline: The Netherlands and South Africa’, in Baehr, Castermans–Holleman and Grünfeld, supra note 11, 23–42, 43–72 and 195–216. 13. See further Marlies Glasius, ‘Human Rights Conditionality Between the Netherlands and Indonesia: Two Cases Compared’, in Mielle Bulterman, Aart Hendriks, Jacqueline Smith (eds) To Baehr in Our Minds: Essays on Human Rights from the Heart of the Netherlands, SIM Special No. 21, (Utrecht: SIM, 1998) 249–69; Peter R. Baehr, ‘On an Equal Footing? The Netherlands and Indonesia’, in Baehr, Castermans–Holleman and Grünfeld, supra note 11, 173–94. 14. Peer Baneke, Nederland en de Indonesische Gevangenen [‘The Netherlands and the Indonesian Prisoners’] (Amsterdam: Wiardi Beckman Stichting, 1983) 9. 15. Press statement by the Indonesian government, 25 March 1992. 16. Peter Baehr, Hilde Selbervik and Arne Tostensen, ‘Responses to Human Rights Criticism: Kenya–Norway and Indonesia–the Netherlands’, in Peter Baehr, Hilde Hey, Jacqueline Smith, Theresa Swinehart (eds) Human

148 Notes

17. 18.

19. 20. 21. 22.

23.

24.

25. 26.

27.

Rights in Developing Countries: Yearbook 1995, (The Hague/London/Boston: Kluwer Law International, 1995) 64–94. See Fred Grünfeld, ‘Central America: Development Aid to Promote Human Rights’, in Baehr, Castermans–Holleman, Grünfeld, supra note 11: 73–98. Ministry of Foreign Affairs of the Kingdom of the Netherlands, Human Rights and Foreign Policy: Memorandum presented to the Lower House of the States General of the Kingdom of the Netherlands on 3 May 1979 by the Minister for Foreign Affairs and the Minister for Development Co-operation, 136. Vincent, supra note 2: 85. Ibid., 143. E. Luard, Human Rights and Foreign Policy (Oxford: Pergamon Press, 1981) 8. David Owen, Human Rights (London: Jonathan Cape, 1978) 2. See also Abraham M. Sirkin, ‘Can a Human Rights Policy be Consistent?’ in Peter G. Brown and Douglas MacLean (eds) Human Rights and U.S. Foreign Policy (Lexington MA: Lexington Books, 1979) 199–213. See further Marike Radstaake and Daan Bronkhorst, Matching Practice with Principles: Human Rights Impact Assessment: EU Opportunities (Utrecht: HOM, 2002). Title V, article 11 of the Consolidated Version of the Treaty on European Union states that the Union shall define and implement a common foreign and security policy, the objective of which shall be among other things to develop and consolidate democracy and the rule of law, and respect of human rights and fundamental freedoms. The crisis on Iraq in early 2003, which pitted the United Kingdom and Spain (with the United States) against Germany and France, has shown how little of this common foreign and security policy has been realized. Cf. Leo Zwaak, ‘A Friendly Settlement in the European Inter-State Complaints against Turkey’, SIM Newsletter, no. 13, February 1986, 44–8. Esther M. van den Berg, The Influence of Domestic NGOs on Dutch Human Rights Policy: Case Studies on South Africa, Namibia, Indonesia and East Timor (Antwerpen/Groningen/Oxford: Intersentia/Hart, 2001) 91–130. Hoffmann, supra note 1: 125.

4 Policy Instruments 1. See E. Luard, Human Rights and Foreign Policy (Oxford: Pergamon Press, 1981) 26–7; K.J. Holsti, International Politics: A Framework for Analysis (Englewood Cliffs NJ: Prentice–Hall, 7th edition 1995) 337. 2. It is to be distinguished from ‘parliamentary diplomacy’ or ‘conference diplomacy’, which applies mainly to multilateral fora. Cf. Johan Kaufmann, Conference Diplomacy: An Introductory Analysis (Dordrecht: Martinus Nijhoff, second revised edition, 1988). 3. Luard, supra note 1: 28–9.

Notes 149

4. Fred Grünfeld, ‘The Effectiveness of United Nations Economic Sanctions’, in Willem J.M. van Genugten and Gerard A. de Groot (eds) United Nations Sanctions: Effectiveness and Effects, Especially in the Field of Human Rights. A Multi-disciplinary Approach (Antwerpen/Groningen/ Oxford: Intersentia, 1999) 125. Doxey distinguishes economic sanctions (‘penalties linked to real or alleged misconduct’) from broader uses of economic leverage for narrow national purposes. Margaret P. Doxey, International Sanctions in Contemporary Perspective (New York: St Martin’s Press, 1987) 4. 5. Nico Schrijver, ‘The Use of Economic Sanctions by the UN Security Council: An International Law Perspective’, in Harry H.G. Post (ed.) International Economic Law and Armed Conflict (Dordrecht/London/ Boston: Martinus Nijhoff, 1994) 155. 6. Cf. Katarina Tomaˇsevski, Responding to Human Rights Violations, 1949–1999 (The Hague/Boston/London: Kluwer Law International, 2000) 2. 7. Cf. R. Hengeveld and J. Rodenburg (eds) Embargo: Apartheid’s Oil Secrets Revealed (Amsterdam: Amsterdam University Press, 1995). 8. Boutros Boutros–Ghali, An Agenda for Peace (New York: United Nations, 2nd edition 1995) 26. See also General Comment 8 of the Committee on Economic, Social and Cultural Rights, the Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, E/C.12/1997/8 that has warned that ‘… insufficient attention is being paid to the impact of sanctions on vulnerable groups’. 9. Schrijver, supra note 5: 156. 10. See Schrijver, supra note 5: 156 and bookreview by Kimberly Ann Elliott, American Political Science Review, 83 (1989) 692. 11. Hadewych Hazelzet, ‘Assessing the Suffering from “Successful” Sanctions: An Ethical Approach’, in Van Genugten and De Groot, supra note 4: 71–2. 12. Kunja Medhi, ‘Economic Sanctions: A Negation of Human Rights’, in Van Genugten and de Groot, supra note 4: 59–60. 13. The government of the Netherlands has pointed out that ‘… so far the international community has not succeeded to fully exclude undesired side-effects for the civilian population.’ Ministry of foreign faffairs, Sancties: Een Balans tussen Legimiteit, Proportionaliteit en Effectiviteit [‘Sanctions: a Balance between Legitimacy, Proportionality and Effectiveness’], letter to the Second Chamber of Parliament, 27 October 2000, 10 (translated from the original Dutch). 14. Willem van Genugten, Gerard A. de Groot and Saskia Lavrijssen, ‘Guidelines on the Future Use of Sanction: An Evaluation’, in Van Genugten and De Groot, supra note 4: 141–50. 15. See Roger Normand, ‘A Human Rights Assessment of Sanctions: The Case of Iraq, 1990–1997’, in Van Genugten and De Groot, supra note 4: 32: ‘By what logic can we hold an entire nation hostage to the “compliance” of a dictator who is indifferent to the fate of his own people?’

150 Notes

16. Cf. Peter Baehr, Monique Castermans–Holleman, Fred Grünfeld, Human Rights in the Foreign Policy of the Netherlands (Antwerpen/Oxford/New York: Intersentia, 2002) 184–91. 17. Cf. Dutch Human Rights and Foreign Policy Advisory Committee, Development Cooperation and Human Rights, The Hague: Ministry of foreign affairs, 1987, 32–4. 18. Resolution 2625 (XXV). 19. Cf. Peter Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force (Amsterdam: Het Spinhuis, 1993); Adam Roberts, ‘Humanitarian War: Military Intervention and Human Rights’, International Affairs 69, 429–50; Nigel Rodley (ed.) To Loose the Bands of Wickedness: International Intervention in Defence of Human Rights (London: Brassey’s, 1992). 20. See further: Peter R. Baehr, ‘The Security Council and Human Rights’, in Rick Lawson and Matthijs de Blois (eds) The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of Henry G. Schermers vol. III (Dordrecht/Boston/London: Martinus Nijhoff) 1994 15–33. 21. S/RES/688 (1991). See Nico Schrijver, ‘Sovereignty versus Human Rights? A Tale of UN Security Council Resolution 688 (1991) on the Protection of the Kurdish People’, in Monique Castermans–Holleman, Fried van Hoof and Jacqueline Smith (eds) The Role of the Nation–State in the 21st Century (The Hague/Boston/London: Kluwer Law International, 1998) 347–57. 22. S/RES/733 (1992). 23. S/PV 3046, 31 January 1992. 24. United Nations Charter, article 41. 25. United Nations Charter, article 43. 26. See Abdullahi An–Na’im, ‘NATO on Kosovo is Bad for Human Rights’, Netherlands Quarterly of Human Rights, 17 (1999) 229–31 who argues against. David Forsythe, ‘Postscript: The Kosovo Crisis’, in David P. Forsythe (ed.) Human Rights and Comparative Foreign Policy (Tokyo/New York/Paris: United Nations University Press, 2000) 335–41, is basically in favour of the bombardments. 27. The action took place without explicit approval by the Security Council, which the US and the UK had failed to obtain. However, it has remained a mater of controversy whether the original Security Council resolution 1441, that had been passed unanimously in November 2002, already permitted such military action. 28. This invasion is cited by Fernando Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (Irvington-on-Hudson, New York: Transnational Publishers, 2nd edition 1997) 208 as a good example of humanitarian intervention. 29. See however, Bartram S. Brown, ‘Humanitarian Intervention at a Crossroads’, William and Mary Law Review, 41 (2000) 1704: ‘This invasion markedly improved the human rights situation in Uganda. This was accomplished, however, by completely replacing the unspeakably brutal regime of Idi Amin. This broader political objective would be difficult to justify under a right of humanitarian intervention.’

Notes 151

30. The Indian representative at the United Nations initially referred to the Indian move into East Pakistan as an example of humanitarian intervention, but in the final edited version of the debate on the matter in the Security Council this defense had been dropped and it was now claimed to be an act of self-defense since Pakistan had attacked first. See Stephen A. Garrett, Doing Good and Doing Well: An Examination of Humanitarian Intervention (New York: Praeger, 1999) 63, quoting from Michael Akehurst, ‘Humanitarian Intervention,’ in Hedley Bull (ed.) Intervention in World Politics (Oxford: Clarendon Press, 1984), 95–9. We thank Hiroki Kusano for providing us with these references. 31. Akehurst, supra note 30: 97–9. 32. We thank Fred Grünfeld for bringing this point to our attention. 33. R.J. Vincent, Non-Intervention and International Order (Princeton NJ: Princeton University Press, 1974) 346. For an opposite view, see for instance Ian Brownlie: ‘… a jurist asserting a right of forcible humanitarian intervention has a very heavy burden of proof. Few writers familiar with the modern materials of state practice and legal opinion on the use of force would support such a view’ (Ian Brownlie, ‘Humanitarian Intervention’, in John Norton Moore (ed.) Law and Civil War in the Modern World (Baltimore etc.: The Johns Hopkins University Press, 1974) 218). 34. UN General Assembly, A/CONF.157/23, 12 July 1993, Vienna Declaration and Programme of Action, para. 4. The term ‘international community’ should be read as ‘the United Nations.’ See further C. Flinterman, Soevereiniteit en de Rechten van de Mens [‘Sovereignty and Human Rights’], inaugural address Utrecht University, 19 January 2001, 21: ‘The expression of criticism, within the framework of “quiet diplomacy” or in public, even the taking of diplomatic or economic sanctions in reaction to violations of human rights are, generally speaking, no more considered as unlawful interference’ [translated from the original Dutch]. 35. Italics Supplied. 36. Advisory Council on International Affairs and Advisory Committee on Issues of Public International Law, Humanitarian Intervention, The Hague: Ministry of foreign affairs, April 2000, 27–32 (official English version). 37. Cf. Mary Ellen O’Connell, ‘The UN, NATO and International Law After Kosovo’, Human Rights Quarterly, 22 (2000) 88: ‘This article … concludes that the UN Charter and UN practice required the authorization of the Security Council to use armed force in Kosovo.’ 38. It is of course entirely true that they have not, or too little or too late intervened in such countries as Rwanda, Sierra Leone, Liberia, Angola and other places. However inconsistent as this may be, it is no argument against intervention in Kosovo. One act of commission is not invalidated by many acts of omission. 39. S/RES/418 (1977). 40. Vincent, supra note 33.

152 Notes

5 Actors: States and Intergovernmental Organizations 1. See for example, Hans J. Morgenthau, Politics among Nations: The Struggle for Power and Peace (New York: Alfred A. Knopf, 5th edition 1973). 2. Forsythe refers to ‘US exceptionalism’. See David P. Forsythe, ‘The United States and International Justice’, Human Rights Quarterly 24 (2002) 975: ‘From the founding of the republic, the dominant self-image was of a good and great people, divinely inspired to lead the world – by example at home or activism abroad – to greater respect for personal freedom.’ 3. Cf. M. Glen Johnson, ‘The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection of Human Rights,’ Human Rights Quarterly, 9 (1987) 19–48. 4. We thank David Forsythe for bringing the latter point to our attention. See further: Joshua Muravchik, The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights Policy (Lanham MD: Hamilton Press, 1986); A. Glen Mower Jr, Human Rights and American Foreign Policy: The Carter and Reagan Experiences (Westport CT: Greenwood, 1987). 5. See David P. Forsythe (ed.) The United States and Human Rights: Looking Inward and Outward (Lincoln and London: University of Nebraska Press, 2000) 9. In a recent article, Forsythe deals with human rights in US foreign policy in terms of four sets of ideas: American exceptionalism, neoisolationism, liberalism, and realism (David P. Forsythe, ‘US Foreign Policy and Human Rights,’ Journal of Human Rights, 1 (2002) 501–21.) 6. Cf. David P. Forsythe, ‘ Human Rights in U.S. Foreign Policy: Retrospect and Prospect’, Political Science Quarterly, 105 (1990) 451: ‘Indeed, in the final years of the second Reagan administration, any number of staunch anti-communists discovered that an active and even-handed attention to human rights contributed to the containment of the Soviet Union.’ 7. See David P. Forsythe, Human Rights and U.S. Foreign Policy: Congress Reconsidered, (Gainesville FL: University of Florida Press, 1988) 1–23. 8. See Judith de Neufville, ‘Human Rights Reporting as a Policy Tool: An Examination of the State Department Country reports’, Human Rights Quarterly, 8 (1986) 681–99; Edward S. Maynard, ‘The Bureaucracy and Implementation of U.S. Human Rights Policy’, Human Rights Quarterly, 11 (1989) 229. 9. Speech at the University of Notre Dame, 22 May 1977. 10. For a full treatment, see Richard B. Lillich, U.S. Ratification of the Human Right Treaties (Charlottesville, VA: University Press of Virginia 1981); Natalie Hevener Kaufman, Human Rights Treaties and the Senate: A History of Opposition (Chapel Hill and London: The University of Carolina Press, 1990); Stefanie Grant, ‘The United States and the International Human Rights Treaty System: For Export Only?’ in Philip Alston and James Crawford (eds) The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000) 317–29. See further the contributions by Barbara Stark, Christina Cerna and William A. Schabas in Forsythe, supra note 5: 75–125.

Notes 153

11. Congressional Record – Senate, 2 April 1992, S 4783–4. Cf. Louis Henkin, ‘US Ratification of Human Rights Conventions: The Ghost of Senator Bricker’, American Journal of International Law, 89 (1995) 341–50. 12. See David P. Forsythe, ‘The US and International Criminal Justice’, Human Rights Quarterly, 24 (2002) 974–91; Jamie Mayersfeld, ‘Who Shall Be Judge? The United States, the International Criminal Court, and the Gobal Enforcement of Human Rights’, Human Rights Quarterly, 25 (2003) 91–129. 13. The following section is based on a book by Peter Baehr, Monique Castermans–Holleman and Fred Grünfeld, Human Rights in the Foreign Policy of the Netherlands (Antwerpen/Oxford/New York: Intersentia, 2002). A shorter version is contained in an article by the same authors: ‘Human Rights in the Foreign Policy of the Netherlands’, Human Rights Quarterly, 24 (2002) 992–1010. 14. A classic description is: J.J.C. Voorhoeve, Peace, Profits and Principles: A Study of Dutch Foreign Policy (The Hague: Martinus Nijhoff, 1979). 15. The Netherlands has almost 16 million inhabitants on a territory of 16 000 sq. miles. 16. Ministry of Foreign Affairs of the Netherlands, Human Rights and Foreign Policy, Memorandum Presented to the Second Chamber of the States General of the Kingdom of the Netherlands by the Minister for Foreign Affairs and the Minister for Development Cooperation, Second Chamber of the States General, 1978–79, 15 571 no. 1–2. References will be made to the official English version of that document [hereinafter Policy Memorandum]. In 2001 a ‘Note on Human Rights’ was published by the foreign ministry, Second Chamber of the States General 2000–01, 27 742. 17. Policy Memorandum, 131. 18. Conclusion No. 14, Policy Memorandum, 133–4. 19. Conclusion No. 25, Policy Memorandum, 136. 20. Conclusion No. 29, Policy Memorandum, 136. 21. Appeals 9940–9942/82, Denmark, France, The Netherlands, Norway, Sweden versus Turkey, Decisions and Reports of the European Commission of Human Rights, 35, 143–99. 22. Conclusion No. 20, Policy Memorandum, 135. 23. See supra note 20. 24. Security Council Resolution 558. 25. Conclusion No. 17, Policy Memorandum, 134. 26. Conclusion No. 18, Policy memorandum, 134. 27. Conclusion No. 17, Policy Memorandum, 134. 28. Conclusion No. 17, Policy Memorandum, 134. 29. Esther M. van den Berg, The Influence of Domestic NGOs on Dutch Human Rights Policy: Case Studies on South Africa, Namibia, Indonesia and East Timor (Antwerpen/Groningen/Oxford: Intersentia, 2001) 49–179 and 217–309. 30. Conclusion No. 35, Policy Memorandum, 138. 31. Conclusion No. 39, Policy Memorandum, 139.

154 Notes

32. Oda van Cranenburgh, ‘Development Cooperation and Human Rights: Linkage Politics in the Netherlands,’ in Peter Baehr, Hilde Hey, Jacqueline Smith and Theresa Swinehart (eds) Human Rights in Developing Countries: Yearbook 1995 (The Hague/London/Boston: Kluwer Law International, 1995) 47 ff. 33. Nico Schulte Nordholt, ‘Aid and Conditionality: The Case of DutchIndonesian Relationships’, in Olav Stokke (ed.) Aid and Political Conditionality (London: Frank Cass, 1995) 129–61. 34. Baehr/Castermans/Grünfeld, supra note 13: 233–5. 35. See Howard B. Tolley Jr, The U.N. Commission on Human Rights (Boulder & London: Westview Press, 1987); Philip Alston, ‘The Commission on Human Rights’, in Philip Alston (ed.) The United Nations and Human Rights: A Critical Appraisal (Oxford: Clarendon Press, 1992) 126–210. 36. In 2003, Libya, having been nominated by the African group, was even elected chair of the Commission. 37. Amnesty International, Report 2002, 89. 38. US State Department Report 2001. 39. Amnesty International, Report 2002, 270. 40. See P van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague/London/Boston: Kluwer Law International, 3rd edition, 1998). 41. See Andrew Clapham, Human Rights and the European Community: A Critical Overview (Baden-Baden: Nomos Verlagsgesellschaft, 1991) 7; Philip Alston (ed.) The EU and Human Rights (Oxford: Oxford University Press, 1999). 42. Treaty on European Union, Title V, Article J.1. 43. See Karin Arts, Integrating Human Rights into Development Cooperation: The Case of the Lomé Convention (Amsterdam: Free University, 2000); Mielle Bulterman, Human Rights in the Treaty Relations of the European Community (Antwerpen/Groningen/Oxford: Intersentia/Hart, 2001). 44. See further Hans–Joachim Heintze, ‘New Directions in the Approach of the OSCE High Commissioner on National Minorities: General Recommendations on Participation of Minorities’, Netherlands Quarterly of Human Rights, 19 (2001) 101–12. 45. See Cecilia Medina Quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter–American System (Dordrecht: Martinus Nijhoff, 1988). 46. For a general account of human rights in Latin America see Cristina Eguizabal, ‘Latin American Foreign Policies and Human Rights,’ in David P. Forsythe (ed.) Human Rights and Comparative Foreign Policy (Tokyo/New York/Paris: United Nations University Press, 2000) 276–309. 47. See Malcolm D. Evans and Rachel Murray (eds) The African Charter on Human and Peoples’ Rights (Cambridge: Cambridge University Press, 2002). 48. See Evelyn Ama Ankumah, The African Commission on Human and Peoples’ Rights: Practice and Procedures (The Hague: Martinus Nijhoff, 1996); Rachel Murray, The African Commission on Human and Peoples’ Rights and International Law (Oxford: Hart, 2000).

Notes 155

6 Non-state Actors 1. Helmut Anheier, Marlies Glasius and Mary Kaldor, Global Civil Society 2001 (Oxford: Oxford University Press, 2001) 4. One should remain aware, however, that there exists no universally accepted definition of the term. Anyone in the possession of a personal computer or simple typewriter can call him – or herself a ‘non-governmental organization’; see Peter R. Baehr, Human Rights: Universality in Practice (Houndmills: Palgrave, paperback edition, 2001) 114–15. Thomas G. Weiss and Leon Gordenker (eds) NGOs, the UN & Global Governance (Boulder/London: Lynne Rienner Publishers, 1996) 24 call them ‘… private in their form but public in their purpose’. They point out that the term ‘nongovernmental organization’ itself is challenged by a host of alternative usages: ‘These include officials, independent sector, volunteer sector, civic society, grassroots organizations, private voluntary organizations, transnational social movement organizations, grassroots social change organizations and non-state actors’ (18). See also Menno T. Kamminga, ‘The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?’ in Gerard Kreijen, Marcel Brus, Jorri Duursma, Elisabeth de Vos, and John Duggard, State, Sovereignty and International Governance (Oxford: Oxford University Press 2002) 389: ‘… international law does not offer an authoritative definition of non-governmental organizations’. 2. Cyril Ritchie, ‘Coordinate? Cooperate? Harmonise? NGO Policy and Operational Coalitions’, in Weiss and Gordenker, supra note 1: 181. 3. Cf. Peter R. Baehr, ‘Amnesty International and its Self-Imposed Limited Mandate’, Netherlands Quarterly of Human Rights, 12 (1994), 5–21. 4. Ann Marie Clark, Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms (Princeton and Oxford: Princeton University Press 2001) 135: ‘It has been criticized at times for narrowness and lack of flexibility both by outsiders and by its own members.’ 5. Cf. Morton E. Winston, ‘Assessing the Effectiveness of International Human Rights NGOs: Amnesty International,’ in Claude E. Welch (ed.), NGOs and Human Rights: Promise and Performance (Philadelphia: University of Pennsylvania Press, 2001) 45. 6. GONGOs: Government-organised NGOs, which achieved notoriety during the Cold War because they owed their very existence and entire financial support to communist governments in the Soviet bloc or authoritarian ones in the Third World. QUANGOs: Quasi-nongovernmental organizations: many Nordic and Canadian NGOs and a handful of US ones, as well as the ICRC receive the bulk of their resources from public funds. DONGOs: Donor-organized NGOs are also distinguished by their source of funds, from donor governments or intergovernmental organizations to promote or to carry out tasks established by their financial backers (Weiss and Gordenker, supra note 1: 20–1). This list is by no means exhaustive, as indicated by the following additions by a Japanese scholar: AGOs: AntiGovernment Organizations, TRANGOs: Transnational NGOs, GRINGOs: Government Regulated and Initiated NGOs, BINGOs: Business and

156 Notes

7.

8.

9.

10. 11. 12.

13.

14. 15. 16.

17. 18.

Industry NGOs, DODONGOs: Donor Dominated NGOs, ODANGOs: ODA Financed NGOs, and FLAMINGOs: Flashy Minded NGOs representing the rich (Tatsuro Kunugi, ‘The United Nations and Civil Society – NGOs Working towards the 21st Century’, unpublished paper). Laurie S. Wiseberg, ‘Protecting Human Rights Activists and NGOs: What Can Be Done?’ Human Rights Quarterly, 13 (1991) 529. She refers to Henry J. Steiner, Diverse Partners: Non-Governmental Organizations in the Human Rights Movement, the Report of a Retreat of Human Rights Activists (Cambridge MA: Harvard Law School Human Rights Program and Human Rights Internet, 1990) 5–15. For a useful survey of various kinds of government responses see Stanley Cohen, ‘Government Responses to Human Rights Reports: Claims, Denials and Counterclaims’, Human Rights Quarterly, 18 (1996) 517–43. Resolution 1996/31, 49th plenary meeting, 25 July 1996. In February 1993, the ECOSOC established an open-ended working group to update, if necessary, its arrangements for consultation with NGOs and to introduce coherent rules to regulate the participation of NGOs in international conferences organized by the UN. See for a discussion of the newly adopted rules: Laurie S. Wiseberg, ‘Resolution 1296 Revised: A Done Deal on Consultative Status, Not Ideal But a Major Improvement’, Human Rights Tribune, August/September 1996, 810. ECOSOC Resolution 1996/31, para. 12. Weiss and Gordenker, supra note 1: 28. Falk has called such meetings ‘counter-conferences’; Richard Falk, ‘The Global Promise of Social Movements: Explorations at the Edge of Time’, Alternatives, 12 (1987) 187. ‘Time pressures at the 1995 Commission on Human Rights led its Malaysian chair to reduce by half the speaking time of all participants – governments and NGOs alike. Some governments argue that this should diminish NGO “speechifying” in favour of on-the-record debate and discussion among member-states’ (Felice D. Gaer, ‘Reality Check: Human Rights NGOs Confront Governments at the UN’, in Weiss and Gordenker, supra note 1: 64). Ibid. Cyril Ritchie, ‘Coordinate? Cooperate? Harmonise? NGO Policy and Operational Coalitions’, supra note 2: 181. See James Henke, Human Rights Now! The Official Book of the Concerts for Human Rights Foundation World Tour (London: Bloomsbury, 1988) 16. On the occasion of the London concert, pop-star Bruce Springsteen commented: ‘I think people come out to see the rock show, to dance and have fun. But if you reach a small percent, if you reach just one person, you’ve done something’ (The New York Times, 3 September 1988). Reebok Athletic Shoe Corporation. Sikkink has rightly called attention to the importance of international human rights issue networks. The diverse entities that make up the international human rights issue-network include parts of IGOs at both the

Notes 157

19.

20. 21. 22.

23.

24.

25. 26.

27.

28. 29. 30.

international and regional levels, international NGOs on human rights, domestic NGOs on human rights and private foundations (Kathryn Sikkink, ‘Human Rights, Principled Issue-Networks, and Sovereignty in Latin America’, International Organization, 47 (1993) 411–41). Nicola Jägers, ‘Transnational Corporations and Human Rights’ in Mielle Bulterman, Aart Hendriks, Jacqueline Smith (eds) To Baehr in Our Minds: Essays on Human Rights from the Heart of the Netherlands, SIM Special No. 21 (Utrecht: SIM, 1998) 79–83. Profits and Principles: does there have to be a choice? (London: Shell International, 1998) 33. Profits and Principles, 32. Multinational Enterprises and Human Rights: A Report by the Dutch sections of Amnesty International and Pax Christi International (Utrecht, November 1998). An advisory council, consisting of the following organizations contributed to the report ‘by sharing their thoughts on different drafts’: ABN AMRO Bank, Confederation of Christian Trade Unions in the Netherlands, Confederation of Netherlands Industry and Employers, Heineken, ING Group, Netherlands Trade Union Confederation, Royal Ahold, KPMG Accountants, Philips, Rabobank, Shell and Unilever. In 1999, a large Dutch dredging company, with important offshore activities in Burma (Myanmar), publicly refused to develop such a code of conduct for its own activities. It said that it preferred to await such texts from the European Union or the Ministry of Economic Affairs. See de Volkskrant (Amsterdam), 2 June 1999. These tie in with the set of principles developed by the International Secretariat of Amnesty International: Human Rights Principles for Companies, London: AI Index ACT 70/01/98, January 1998. Winston, supra note 5: 44. Cf. Anthony G. McGrew, ‘Human Rights in a Global Age: Coming to Terms with Globalization,’ in Tony Evans (ed.) Human Rights Fifty Years On: A Reappraisal (Manchester and New York: Manchester University Press, 1998) 204. Amnesty International, ‘Solidarity Action for Universal Rights: Making Multinational Companies Accountable – Protecting Human Rights in a “Globalised” Economy’, AI Index:ACT 70/01/99, 26 February 1999, 1. See also Human Rights Watch World Report 2001, 3: ‘Some of the most alarming by–products of globalization are clear violations of rights emphasized in international treaties.’ Human Rights Watch World Report 2001, supra note 27: 5. Ibid. Forsythe mentions that the World Bank officially endorses the participation of NGOs and community-based organizations in establishing development programs: ‘Theory and practice are not always the same, and historical relations between the Bank and development NGOs have been less than perfectly smooth.’ David P. Forsythe, Human Rights in International Relations (Cambridge: Cambridge University Press, 2000) 185.

158 Notes

31. Human Rights Watch, supra note 27:5. ‘The IMF, for its part, under the new leadership of Horst Köhler, has also begun slowly to change in ways that will help integrate human rights in the global economy.’ 32. UNDP, Human Development Report 2000 (New York/Oxford: Oxford University Press, 2000) 10. It refers clearly to labour standards with regard to child labour, fairer wages, sufficient periods of rest, etc. 33. Ibid., 31. 34. Ibid., 10. See also Robert McCorquodale with Richard Fairbrother, ‘Globalisation and Human Rights’, Human Rights Quarterly, 21 (1999) 744: ‘… the type of investment generated by globalized economic institutions tends to infringe upon economic rights rather than protect them’. 35. Jack Donnelly, ‘Human Rights, Globalisation and the State,’ in Monique Castermans–Holleman, Fried van Hoof and Jacqueline Smith (eds) The Role of the Nation–State in the 21st Century: Human Rights, International Organisations and Foreign Policy (The Hague/Boston/London: Kluwer Law International, 1998) 410. 36. Ibid. 37. See Theo van Boven, ‘Non-State Actors: Introductory Comments,’ in Theo C. van Boven, Cees Flinterman, Fred Grünfeld, Rita Hut (eds) The Legitimacy of the United Nations: Towards an Enhanced Legal Status of NonState Actors (Utrecht: SIM Special No. 19, 1997) 4–5. 38. Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002) 151–2. 39. See Fred Grünfeld, ‘The Cases of the PLO and the “Republic of the Krajina,” ’ in Van Boven et al., supra note 37: 113–23. 40. In Nigel Rodley’s view only such groups among NGEs can be considered as capable of violating human rights. See Nigel S. Rodley, ‘Can Armed Opposition Groups Violate Human Rights?’ in K.E. Mahoney and P. Mahoney (eds) Human Rights in the Twenty-first Century (Dordrecht/Boston/London: Martinus Nijhoff, 1993) 297–318. 41. Zegveld, supra note 38: 1. 42. Zegveld, supra note 38: 7–12. 43. See Peter R. Baehr, ‘Amnesty International and its Self-Imposed Limited Mandate’, Netherlands Quarterly of Human Rights, 12 (1994) 16. 44. Zegveld, supra note 38: 167. 45. Zegveld, supra note 38: 171 and 216.

Bibliography This is a list of literature on human rights and foreign policy in English. The notes to the separate chapters contain more detailed references. Alston, Philip (ed.) The United Nations and Human Rights (Oxford: Clarendon Press, 1992). Alston, Philip (ed.) The EU and Human Rights (Oxford: Oxford University Press, 1999). An-Na’im, Abdullahi Ahmed (ed.) Cultural Transformation and Human Rights in Africa (London: Zed Books, 2002). Baehr, Peter R., Monique Castermans-Holleman, Fred Grünfeld, Human Rights in the Foreign Policy of the Netherlands (Antwerpen/Oxford/New York: Intersentia, 2002). Castermans-Holleman, Monique, Fried van Hoof, Jacqueline Smith (eds) The Role of the Nation–State in the 21st Century: Human Rights, International Organisations and Foreign Policy. Essays in Honour of Peter Baehr (The Hague/Boston/London: Kluwer Law International, 1998). Coomans, Fons, Fred Grünfeld, Ingrid Westendorp, Jan Willems (eds) Rendering Justice to the Vulnerable: Liber Amicorum in Honour of Theo van Boven; and: Human Rights from Exclusion to Inclusion. Principles and Practice: An Anthology from the Work of Theo van Boven (The Hague/London/Boston: Kluwer Law International, 2000). Eide, Asbjørn, Catarina Krause, Allan Rosas (eds) Economic, Social and Cultural Rights: A Textbook (Dordrecht/London/Boston: Martinus Nijhoff, 2nd edition, 2001). Forsythe, David P. (ed.) Human Rights and Comparative Foreign Policy (Tokyo/New York/Paris: United Nations University Press, 2000a). Forsythe, David P. Human Rights in International Relations (Cambridge: Cambridge University Press, 2000b). Freeman, Michael, Human Rights: An Interdisciplinary Approach (Cambridge: Polity Press, 2002). Genugten, Willem J.M. van, Gerard A. de Groot (eds) United Nations Sanctions: Effectiveness and Effects, Especially in the Field of Human Rights. A Multidisciplinary Approach (Antwerpen/Groningen/Oxford: Intersentia, 1999). Glasius, Marlies, Foreign Policy on Human Rights: Its Influence on Indonesia under Soeharto (Antwerpen/Groningen/Oxford: Intersentia, 1999). Ignatieff, Michael et al., Human Rights as Politics and Idolatry (Princeton and Oxford: Princeton University Press, 2001). Lauren, Paul Gordon, The Evolution of International Human Rights (Philadelphia, University of Pennsylvania Press, 1998).

159

160 Bibliography

Mullerson, Rein, Human Rights Diplomacy (London & New York: Routledge, 1997). Robertson, A.H., J.G. Merrils, Human Rights in the World: an Introduction to the Study of the International Protection of Human Rights (Manchester/New York: Manchester University Press, 4th edition, 1996). Welch, Claude E. Jr (ed.) NGOs and Human Rights: Promise and Performance (Philadelphia: University of Pennsylvania Press, 2001).

Index

Afghanistan 74, 127 African Charter on Human and Peoples’ Rights 5, 28, 31, 32, 71 African Commission on Human and Peoples’ Rights 111–12 African Court of Human Rights 112 African National Congress 40–1, 55–6, 72, 88 African Union 111–12 Algeria 127 Alston, Philip 33 American Convention on Human Rights 110, 114 American Declaration of the Rights and Duties of Man 110 Amnesty International 70, 102, 116, 119, 121, 123–4, 127 ANC see African National Congress Angola 74, 126 An-Na’im, Abdullahi 32 apartheid 54–6, 75, 79, 86–7, 114 Argentina 16, 36, 39–41, 52–3 Armenia 109 asylum seekers 34 Ayalo Lasso, José 103 Azerbaijan 109 Bangladesh 81 Belgium 107 Bosnia-Herzegovina 109 Bouterse, Desi 99 Boutros-Ghali, Boutros 74, 100 boycott 73 Bull, Hedley 4 Britain see United Kingdom Bush, George 20, 93 Bush, George W. 93

Cambodia 72, 74, 81, 127 Canada 66, 111, 114 capital punishment see death penalty Carter, Jimmy 20, 92–3, 95 Chad 39 Chechnya 50, 85, 102, 109, 127 Chile 16, 36, 39, 40, 42, 52–4, 65, 92 China 1, 25–6, 37, 48, 51–2, 81, 93, 96, 102 Clinton, Bill 93 Cold War 12–15, 48 collective rights 5, 7, 42 Colombia 127 Conference on Security and Cooperation in Europe see Organization for Security and Cooperation in Europe Congo 102 Costa Rica 61, 63 Council of Europe 18, 105–6, 114 Cranston, Maurice 4 Croatia 21, 37 CSCE see Organization for Security and Cooperation in Europe Cuba 65, 93, 102 cultural relativism 25, 43 Czechoslovakia 36, 108 Dalits 104 Dayton Peace Agreement 38 death penalty 26 Denmark 50, 52, 66, 106 Development, right of 14 development aid see development cooperation development assistance see development cooperation development cooperation 56–63, 77–8, 98 161

162 Index

Donnelly, Jack 13, 19, 25, 125–6 Dutch see Netherlands East-Timor 17, 21, 58–9, 104–5 Economic and Social Council 118–19 ECOSOC see Economic and Social Council Ekeus, Ralf 109 El Salvador 39, 61–3, 99, 127 embargo 73 Eritrea 74 Ethiopia 65, 74 EU see European Union European Community see European Union European Convention on Human Rights and Fundamental Freedoms 50, 71, 105–6, 131 European Court of Human Rights 27, 105–6 European Union 1, 26, 76, 100, 107–8, 114 Finland 66 Forsythe, David 19, 38 France 30, 50, 52, 107 Freeman, Michael 14 Frelimo 126 Genugten, Willem van 29, 75 Germany 36, 38, 52, 67, 107 Goldhagen, Daniel 38 Gordenker, Leon 116 Guatemala 36, 39, 61–3, 99 Haiti 17, 74, 99 Hayner, Priscilla 39–40 Hazelzet, Hadewych 74 Helsinki Final Act 13, 48–9, 108 High Commissioner on National Minorities 109 Hoffmann, Stanley 19, 47, 68 Holsti, K.J. 2 HOM see Humanist Committee on Human Rights Honduras 63

Hungary 14 Humanist Committee on Human Rights 66 humanitarian intervention see intervention Huntington, Samuel 2 ICC see International Criminal Court ICCPR see International Covenant on Civil and Political Rights ICESCR see International Covenant on Economic, Social and Cultural Rights Idi Amin 81 IGGI see Inter Governmental Group for Indonesia Ignatieff, Michael 17–18 ILO see International Labour Organization impunity 23, 36–41 India 81, 104 Indonesia 25, 57–61, 65, 77, 98–9, 105 Inter-American Commission on Human Rights 110 Inter-American Court of Human Rights 110 Inter Governmental Group for Indonesia 58–9 internally displaced persons 26, 43–4 International Commission of Jurists 102 International Convention on the Rights of the Child 94 International Covenant on Civil and Political Rights 7, 71, 94–5 International Covenant on Economic, Social and Cultural Rights 7, 32 International Criminal Court 16, 21, 37, 42, 94, 104, 131 International Labour Organization 11 International Service for Human Rights 120

Index 163

intervention 78–86 Iran 93, 102 Iraq 16–17, 74, 75, 79, 80, 93, 107, 127 Israel 21, 26, 34, 37, 92 Italy 52, 107 Jägers, Nicola Jews 11, 82

122

Karadjic, Radovan 37 Kenya 61 Khmer Rouge 81 Kissinger, Henry 10, 49 Kosovo 17, 80, 85–6, 88, 104–5, 109 Kurds 16, 79, 127 Kuwait 16, 79 League of Nations 11, 91 Lebanon 127 Liberia 74 Libya 74, 102 Limburg Principles 35 Liu Huaqiu 25 Luard, Evan 72 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 35 Malaysia 25 Mandela, Nelson 41, 55, 126 margin of appreciation 27 Mendez, Juan 40 Milosevic, Slobodan 37, 85, 104 minorities 11, 30 Mladic, Ratko 37 Mothers of the Plaza de Mayo 41 Mozambique 126 MPLA 126 Multinational corporations 122–6, 128 Nagorno-Karabakh 109 Namibia 41, 126 National-socialists 11, 82

NATO see North Atlantic Treaty Organization Nazi see National-socialists Netherlands 4, 9, 20, 21, 26, 31, 34, 50, 51–6, 57–67, 77, 95–100, 106, 109, 113 NGEs see non-governmental entities NGOs see non-governmental organizations Nicaragua 61–3, 127 non-derogable human rights 8 non-governmental entities 126–8 non-governmental organizations 14, 67, 70, 78, 96, 101, 116–22, 127–8, 132 North Atlantic Treaty Organization 80, 85 Northern Ireland 65, 127 North Korea 93 Norway 31, 50, 61, 66, 77, 106 Nujoma, Sam 41, 126 OAS see Organization of American States OAU see African Union Occupied Territories 34 Organization for Security and Cooperation in Europe 13, 15, 48–50, 71, 108–9, 114 Organization of African Unity see African Union Organization of American States 110–11, 114 OSCE see Organization for Security and Cooperation in Europe Owen, David 65 Pakistan 81 Palestine Liberation Organization 127 Palestinians 30, 104 Pax Christi International 123 peoples 30 Pinochet, Augusto 42, 53–4, 97 PLO see Palestine Liberation Organization

164 Index

Pol Pot 81 Portugal 67 racial discrimination 28 Reagan, Ronald 20, 92–3 refugees 26, 34, 43–4 Rhodesia 74, 79 Robinson, Mary 18, 103 Romania 21 Roosevelt, Franklin Delano 91 Royal Dutch/Shell 123 Russian Federation 48, 50–1, 106, 109 Rwanda 16–17, 36–7, 42, 74, 82, 127 Rwanda Tribunal 38, 104, 131 Saddam Hussein 76, 80 sanctions 73–6, 83 Saudi Arabia 102 self-determination, right of 8, 14, 28 Serbia 80, 88 Sierra Leone 17, 74, 79, 82, 102, 131 Singapore 25 slavery 28, 104 smart sanctions 75 Somalia 74, 79, 94, 127 South Africa 36, 39–40, 46, 52, 54–6, 66–7, 71–2, 74–5, 79, 86–7, 93, 97–8, 114 South West African People’s Organization 41, 126 Soviet Union 12–14, 48, 68, 86, 92–3, 108 Spain 52, 107 Sri Lanka 77, 127 Stoel, Max van der 48, 97, 109 Sudan 74, 102, 127 Suharto, President 57–9, 99 Suriname 59–60, 65, 77, 99 SWAPO see South West African People’s Organization Sweden 50, 66, 106 Tanzania 81 terrorism 51, 80 Togo 102 Tomasˇevski, Katarina

8

torture 28 truth and reconciliation commissions 36, 38–41 Tudjman, Franjo 37 Turkey 30, 34, 50, 66, 97, 106, 127 Tutu, Desmond 39 UDHR see Universal Declaration of Human Rights Uganda 39, 81 UNDP see United Nations Development Programme United Kingdom 31, 80, 107 United Nations 101–5, 113–14 United Nations Charter 11, 78–9, 83, 86 United Nations Commission on Human Rights 15, 33, 52, 70–1, 101–2, 107, 114 United Nations Committee on Economic, Social and Cultural Rights 33–4 United Nations Development Programme 31, 125 United Nations General Assembly 12, 86, 101–2 United Nations High Commissioner for Human Rights 18, 102–5, 112, 114, 131 United Nations High Commissioner for Refugees 44 United Nations Security Council 17, 37, 46, 54–6, 73–6, 78–9, 81–4, 86, 88, 97, 104 United Nations Sub-Commission on the Promotion and Protection of Human Rights 102 United States of America 12–14, 17, 20–1, 26, 34, 37, 42, 48, 51, 61–2, 64, 76, 80, 85, 90–5, 107, 111, 113–14, 131–2 Universal Declaration of Human Rights 3, 5–6, 12, 24, 133–8 U.S. see United States of America USSR see Soviet Union Viera de Mello, Sergio Vietnam 81

103

Index 165

Vincent, R.J. 47, 64, 86–7 Vishinskij, Andrei 13 Weiss, Thomas 116 Wilson, Woodrow 91 World Conference on Human Rights, Second 15, 24, 33, 35, 42, 82, 102, 117 Wiseberg, Laurie 116 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance 103–4

World Conference on Women, Fourth 103 World Bank 31 Yugoslavia (Former) 16–17, 36–7, 42, 74, 82, 85, 100, 104, 109, 114, 127 Yugoslavia Tribunal 38, 104, 131 Zalaquett, José 40 Zegveld, Liesbeth 127 Zimbabwe 102

The Role of Human Rights in Foreign Policy, 3rd Edition

Human Rights and US Foreign Policy

Human Rights and Comparative Foreign Policy

Civil Liberties and Human Rights (3rd Edition)

Global Good Samaritans: Human Rights as Foreign Policy

Human rights and U.S. foreign policy: Congress reconsidered

Foreign Investment, Human Rights and the Environment

Foreign Investment, Human Rights and the Environment

Human Anatomy, 3rd Edition

Human Walking, 3rd edition

Human Rights in the Twentieth Century (Human Rights in History)

Atlas of the Human Brain, 3rd Edition

Encyclopedia of American Foreign Policy Edition 2

Human Rights as Indivisible Rights (International Studies in Human Rights)

Human Rights as Indivisible Rights (International Studies in Human Rights)

Understanding Human Rights, Second Edition

Human Rights in Islam

Visualizing Human Biology (3rd edition)

Human Resources in China, 3rd Edition

Human Rights and Foreign Aid: For Love or Money? (Routledge Research in Human Rights)

The Future of Human Rights

The Politics of Human Rights in Australia

Practice of human rights

The Idea of Human Rights

The End of Human Rights

The Human Rights of Children

The Politics of Human Rights

The Idea Of Human Rights

The Security Council and the Protection of Human Rights (International Studies in Human Rights) (International Studies in Human Rights)

Globalization of Human Rights

Encyclopedia of Human Rights

The Role of Human Rights in Foreign Policy, 3rd Edition

Human Rights and US Foreign Policy

Human Rights and Comparative Foreign Policy

Civil Liberties and Human Rights (3rd Edition)

Global Good Samaritans: Human Rights as Foreign Policy

Human rights and U.S. foreign policy: Congress reconsidered

Foreign Investment, Human Rights and the Environment

Foreign Investment, Human Rights and the Environment

Human Anatomy, 3rd Edition

Human Walking, 3rd edition

Human Rights in the Twentieth Century (Human Rights in History)

Atlas of the Human Brain, 3rd Edition

Encyclopedia of American Foreign Policy Edition 2

Human Rights as Indivisible Rights (International Studies in Human Rights)

Human Rights as Indivisible Rights (International Studies in Human Rights)

Understanding Human Rights, Second Edition

Human Rights in Islam

Visualizing Human Biology (3rd edition)

Human Resources in China, 3rd Edition

Human Rights and Foreign Aid: For Love or Money? (Routledge Research in Human Rights)

The Future of Human Rights

The Politics of Human Rights in Australia

Practice of human rights

The Idea of Human Rights

The End of Human Rights

The Human Rights of Children

The Politics of Human Rights

The Idea Of Human Rights

The Security Council and the Protection of Human Rights (International Studies in Human Rights) (International Studies in Human Rights)

Globalization of Human Rights

Encyclopedia of Human Rights

Recommend Documents