Part II: Realizing Human Rights

Human Rights Treaties and Organizations

Spring 2013

Main message

UDHR established normative standard by which to judge behavior of organizations

(especially states) and individuals in them

Influenced domestic legal instruments and measure of implementation, contributed to customary and treaty-based international

law, major source of inspiration

Main message: over time impact on multiple levels

• UN bureaucracy (High Commissioner, Assistant Secretary-General in New York, Special Rapporteurs, etc.)

• Impact on constitutions and domestic laws• Impact on domestic resistance (Charter 77, Moscow Helsinki Group) • Joining forces with anti-colonial efforts (decolonization, self-

determination) • Major (binding) human rights treaties plus multiple others • Regional human rights regimes • Increasing role of NGOs – very name was born in connection to

“consultative status” with the UN• Grant-making institutions (e.g., Ford Foundation, Rockefeller

Foundation, Soros (Open Society) Foundation)

Deepening and broadening of human rights concerns over time

Will go through this in some spotlights

Spotlight:

Human Rights in UN bureaucracy

UN Human Rights OrganizationsOverview

(Since 2006: Human Rights Council)

The Six Core Human Rights Treaties (Each + Treaty Body)

• The International Covenant on Civil and Political Rights, adopted in 1966 and which entered into force 23 March 1976

• The International Covenant on Economic, Social and Cultural Rights, adopted in 1966, entered into force 3 January 1976

• The International Convention on the Elimination of All Forms of Racial Discrimination, adopted in 1965, entered into force 4 January 4 1969

• The Convention on the Elimination of All Forms of Discrimination Against Women, adopted in 1979, entered into force 3 September 1981

• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984, entered into force 26 June 1987

• The Convention on the Rights of the Child, adopted in 1989, entered into force 2 September 1990

ICCPR/ICESC: Joint Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

International Convention on the Elimination of All Forms of Racial Discrimination

• emerged from discussion about various incidents of Antisemitism, but then included broader issues

• Very different issues in background: antisemitism; apartheid in South Africa; emancipation of former colonial peoples

• Has given rise to much domestic legislation, for instance on labor markets

International Convention on the Elimination of All Forms of Racial Discrimination

• Possessed such strong support from Asia, Africa, Latin America that it entered into force only four years after adoption

• treaty body was first international mechanism for implementing UN-sponsored human rights treaty

• Members elected by states parties, but serve in individual capacities

Offensive to Americans: Article 4 (freedom of speech issue)

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

Convention on Elimination of All Forms of Discrimination Against Women

• Criticisms in many countries: CEDAW promotes too “radically feminist” a picture of women, or provides support for domestic organizations to do so

Article 11 (2)

• 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

• (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

• (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

Another controversy

• Does this call for legalization of prostitution?

• Article 6 States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

Convention on Rights of the Child

• “Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance”

• Much of the convention transfers general rights to children, but there are also specific issues (adoption, parental responsibilities, education)

• But does it make sense to promote goals in terms of rights?

For instance:

Article 14

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

Article 15

1. States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.

Not ratified: US and Somalia

• Concerns in US:

• Homeschooling

• Some states have death penalty and life sentence without parole

• General concerns of constitutional oversight

Spotlight:

Regional Human Rights Treaties

• European

• Inter-American

• African

• South-East Asian

Committed to European Integration: Council of Europe

Confusing: same flag for EU

Major provider of international public law

• Often other countries are invited to sign convention as well

• Convention on Cybercrime • Convention on the Prevention of Terrorism• Conventions against Corruption and Organized

Crime• Convention on Action against Trafficking in

Human Beings • Convention on Human Rights and Biomedicine

Human Rights

• European Convention on Human Rights (1950)

• Regionally binding treaty

• Additional protocols signed by everybody eliminating death penalty

• European Court of Human Rights: allows for individual complaints – can appeal directly to court

European Court of Human rights

• Members have incorporated Convention into their own national legal orders

• impact of case law is enormous

• National judges, elected officials, and administrators under pressure to make Convention rights effective within national system

Organization of American States

• Much older: goes back to ideas of Simon Bolivar (1820s)

• Hemispheric cooperation, protection against intrusion, and against wars among American states

• This organization: 1948

American Declaration of the Rights and Duties of Man (1948)

• From preamble: “The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty.”

• Contains a whole chapter on duties!

Inter-American convention on human rights

• no duties mentioned!

• US signed but did not ratify

• Plus Inter-American Commission on Human Rights (DC)

• Inter-American Court of Human Rights (San Jose, Costa Rica)

• Impact much less than European system – does not accept individual complaints, and is not as closely integrated with national legislation

African Union

• Light green: suspended (mostly because of coup d’etats)

• Morocco left organization because of issue pertaining to West Sahara region

Charter African Charter on Human and People’s Rights (1981)

• Contains again many of the same ideas as the other conventions

• But also specifically African concerns

• And chapter on duties

African Charter on Human and People’s Rights (1981)

• Recognizing on the one hand, that fundamental human rights stem from the attributes of human beings which justifies their national and international protection and on the other hand that the reality and respect of peoples rights should necessarily guarantee human rights;

• Considering that the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone;

African Charter on Human and People’s Rights (1981)

• Convinced that it is henceforth essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights ia a guarantee for the enjoyment of civil and political rights;

• Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism, apartheid, zionism and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, color, sex. language, religion or political opinions;

Article 20

• 1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

Organs

• African Commission on Human and Peoples’ Rights (1986)

• African Court on Human and Peoples’ Rights (2004), based in Arusha, Tanzania

• Passed first judgment in 2009

Association of Southeast Asian Nations (ASEAN)

• Traditionally based on non-interference, informal contacts among leaders

• Human rights not a priority

• Inaugurated in 2009: ASEAN Intergovernmental Commission on Human Rights

• Consultative body with members dependent on governments

Questions about HR NGO’s

• How much impact?

• Legitimacy? Is this acceptable that they have this sort of impact?

• Selection of targets?

Assessing the Impact of Human Rights NGOs

• Overall, presumption is that they have contributed enormously to realization of human rights, but difficult social science questions arise about assessing precisely how and how much

• Those who work for HR NGO’s are working in different structures and are motivated by different incentives than those who work for bureaucracies

NGO’s

• Term (NGO) came in use in context of founding of UN, when such organizations could obtain “consultative status”

• San Francisco, 1945: Without American NGO’s UN Charter would have contained merely passing reference to HRs

• Major mover and shaker: James Shotwell, Columbia U history professor

NGOs

• Originally very American phenomenon: voluntarism, and government paying attention

• Commission to Study the Organization of Peace, American Jewish Committee, National Peace Conference, Council of Churches

• Shotwell coordinated their efforts

UN Charter, Article 71 (Unprecedented!)

The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.

But --

• This consultation status didn’t lead to meaningful implementation in UN machinery

• NGOs later encountered outright hostility (especially from Soviet bloc and Third World countries)

• Move of human rights division of UN from New York to Geneva was partly motivated to draw less media attention to NGO’s

• Enthusiasm of 40s gradually disappeared

Some of the Bigger Ones

• Amnesty International• Human Rights Watch• International Commission of Jurists • International Federation of Human Rights • International Committee of the Red Cross• Human Rights First • Lawyers Without Borders• Doctors Without Borders • Physicians for Human Rights

A Complicated World

• NGO’s• INGO’s – International NGO• IGO’s – Intergovernmental Organizations• QUANGOs – quasi-NGO’s • DONGOs – donor-organized NGO’s• AGO’s – anti governmental • GRINGO’s – government-regulated • BINGO – business and industry NGO’s• DODONGO’s – donor-dominated

But then there is also…

Controversies

Peter Benenson (1921-2005)

Benenson• November 1960: Benenson reads article about two Portuguese

students sentenced to seven years for toasting to freedom

• What to do about it? get people organized to write letters to prisoners and to the governments holding them

• May 28, 1961: Benenson's article, "The Forgotten Prisoners,"

published

• asked readers to write letters showing support for the students.

• To co-ordinate letter-writing campaigns, Amnesty International founded in Luxembourg in July at meeting of Benenson and six other men -- within a year groups formed in more than a dozen countries

Compare: Transparency International

Compare: Clarkson/Wilberforce

Compare: Henry Dunant and Red Cross

The original Observer Article:

Compare: Corruption Perception Index

Compare:

Original Focus

• Focus on “prisoners of conscience” – imprisoned for non-violent resistance and who had not advocated violence

• Local groups would adopt three prisoners (one from the West, one from the East, one from a developing country) – no AI group works for prisoners in their own country

• All research would be done from London Headquarters

• letters to let them know somebody was concerned, but also to governments and prisons to make clear they were being watched

No “Prisoner of Conscience”

• From a prisoner in the Dominic Republic, 1975: “When the two hundred letters came the guards gave me back my clothes. Then the next two hundred letters came and the prison director came to see me. When the next pile of letters arrived, the director got in touch with his superior. The letters kept coming and coming: three thousand of them. The President was informed. The letters still kept arriving and the President called the prison and told them to let me go.” (Like Water on Stone, p 134)

Success?

• hard to assess, as often with NGO’s – often people gave them credit – of 47,000 cases AI has dealt with, as of 2001, 45,000 were then closed, more than half freed

• Could be counter-productive: in Iran under the Shah, AI letters indicated to gov that prisoners had the sort of connections they were suspected of

• Doesn’t always apply: in cases of “disappearances”, one doesn’t know where the prisoner is, or whether (s)he is still alive (e.g., Guatemala) – in that case, a country campaign is being adopted

Controversies

• Later AI adjusted approach and also made efforts for others if it was thought their trial was unfair or that they had been tortured

• led to heavy criticism when they were involved with getting better conditions for German terrorists who then gave instructions from inside their prison to carry out more attacks

• led to internal debates about how to preserve stance of neutrality – including having headquarters in London (Northern Ireland!)

• major leadership crisis in 1967, with Benenson accusing his own organization of being infiltrated by the British government

Standing

• AI has always shown reservation in taking credit

• AI’s stance is that of strict “ideological neutrality” – would not even take a principled stance on apartheid because that could be considered an ideology

• reputation of informational accuracy, meticulous research - governments would rely on AI research, sometimes to AI’s chagrin (perception of too close association)

From their Nobel Lecture, 1977

• “Fifth, human rights will not be protected if left solely to the governments. Individuals of goodwill must everywhere concern themselves with and act to curb repression, and to defend human rights. The ordinary individual can make a difference. This is the experience of Amnesty International. An aroused public opinion is a powerful weapon. Important as bills of rights and legal mechanisms are, still more important is the concern of one individual for another, one group for another, one nation for another. The active concern of public opinion is everywhere of help. But nowhere is it more essential than when an individual human being remains helpless before a repressive regime, a frightened national community, and an inadequate international machinery for redress.”

Changes

• At a later stage, AI became involved in campaigns of a different sort

• 1988: “Human Rights Now” rock concert tour• 1993, Vienna: creation of the office of a UN High

Commissioner for Human Rights • Personal pledge campaign signed by 13 million people

(incl. 1 million from Morocco, 600,000 from Tanzania) • 1998: “USA: Rights for All” • 1998: major lobbyist for ICC • More emphasis on education of children • A generally, a broader human rights emphasis

Structure • governed by biannual congress, the International Council Meeting • organized like a transnational corporation with quasi-independent

national subsidiaries

• Except that all national and international boards are elected – very democratic, a grass-root movement, but also somewhat inflexible

• different from its major competitor, Human Rights Watch, which is top-down, funded through foundations and major donations, and centralized (including its focus on the American government)