Can multilateralism be effective? Protecting human rights

Bahá'í gardens in Haifa (picture David Shankbone)

Based on a talk given by Daniel Wheatley, Government Relations Officer of the Bahá’í Community of the UK, to the AGM of Federal Union, 12 March 2005.

May I begin by thanking Federal Union for inviting me to address this meeting on a topic that is very important to federalists everywhere. I have spent the last six years working within my faith community, the Bahá’ís, in pursuit of human rights for our co-religionists in Iran, and other states, but my interest in federalism stretches back for many more years. Federalism may be regarded as the most radical expression of internationalism, but it may also be the most practical. It is surely the goal of federalists to see the visions of international harmony and justice, that are so eloquently expressed in a profusion of international laws, put into place with lasting mechanisms and institutions that realise the potential inherent in such noble documents as the Universal Declaration of Human Rights.

Like federalists, members of the Bahá’í faith, a community of some six million people spread across over 200 states and territories, have root principles that endorse and affirm both the core values of universal human rights, but also we have a vision of a system of global governance to give effect to these values. Indeed, the sacred writings of the Bahá’í faith endorse federalism as one potentially suitable system on which to base an emerging international order.

Bahá’ís are also consumers of the human rights system. Many of you may be aware that the Bahá’í community in Iran continues to face wide-ranging persecution in Iran. This has included executions and disappearances, torture, imprisonment and detention, through to wide-ranging deprivation of social and economic rights, education, employment etc, and attacks upon their collective cultural identity. The Bahá’í community have for many years come as plaintiffs to the UN and Commission on Human Rights, the European Parliament as well as national governments ands human rights organisations. My own responsibilities have included lobbying for the rights of my community at these fora and I offer you my comments on today’s topic, based on my experiences.

The short answer to the question is yes, multilateralism can be effective and in defence of human rights and indeed has been. I have met individuals who have been freed from unjust imprisonment and escaped possible death because international organisations have intervened on their behalf. If you look carefully at the sheer amount of diplomatic resources and effort that certain states expend on trying to avoid being the target of an item 9 resolution – that is a country-specific resolution – at the Commission on Human Rights, it is clear that the vast majority of states do care about their international image and therefore the scrutiny of international bodies can, and does have an effect on them. For example, I could draw you two parabola of trends in Iran over the 1980s. The Iranian state began killing Bahá’ís in 1979. In 1980 23 were killed, in 1981 48 were killed, in 1982 34 were killed, in 1983 29, in 1984 30. The rate fell to single digits in 1985 diminishing to 1 in 1998 and none since then. Coincidence may not always be the same as causality, but it was in 1984 that the CHR passed a resolution on the human rights situation in Iran, including the Bahá’ís, and created the mandate of a Special Representative and in 1985 the General Assembly followed suit. The rate of killing declines at the same time that serious multilateral scrutiny starts. (And now with absence of resolution, the problems are getting worse.)

I suggest that the first and perhaps most serious problem is within the realm of thought and belief. We have an international machinery for rights, but we do not yet have a global culture of human rights. Many governments and many people have a range of qualifications that hold them back from accepting universal human rights as it is articulated by for example the six core treaties. And even those states that ratify the treaties can interpret the specific articles of the conventions in highly creative ways that seem entirely at odds with the pursuit of human rights.

There is a need for a debate about the universality of human rights, but this is not what I am here to address today.

Although some historians will dispute this, I believe human rights are a very modern evolution in thinking. The principles, the laws and treaties that codify them, and the international institutions that have been created to express them together form a global framework for human rights that I believe should rank as one of humanity’s greatest collective achievements.

The human rights world has been greatly strengthened since the mid-nineties by the creation of a new generation of multilateral instruments. I refer of course to the series of international tribunals and courts that have been established in the wake of conflicts such as Rwanda and Yugoslavia and the recently established International Criminal Court. These courts represent a major advance for human rights in that they offer the possible end of impunity for serious crimes. The Hague tribunals have seen the trial of senior political and military leaders, held individually for their action, for the first time since Nuremberg. With the establishment of the ICC we have the hope of a body that will be able to operate at the beginning rather than the end of a conflict and may act as a deterrent. What these courts have brought is a new reality whereby any leader must at least factor into their decision-making that they might one day face trial if they commit serious crimes against humanity.

But of course these courts face some of the same problems that the post-war UN system faced, prime amongst these the obstacle of national sovereignty. Just like Nuremberg, the tribunals have been accused of championing the justice of the victors, although with the recent indictment and surrender of the former Kosovan prime minister, Ramush Haradinaj, and the pressure on Croatia to deal with indicted suspects, the perception of the Hague tribunal that I encountered in Belgrade as a body that only brought Serbs to account, is less tenable. The Achilles heel of the new ICC reflects one of the primary flaws of the UN Commission and Third Committee, namely that governments decide whether they will sign up to the treaty and therefore have to effectively give permission for themselves to be policed. In the case of the ICC this inevitably leads to the unfortunate situation where those states willing to ratify are of course those states that are least likely to face action by the court.

The ratification rate of the court, which initially had a good deal of momentum, has slowed to a trickle of new members and has remained stubbornly static at 97 since September 2004.

Many of you will be aware that the USA is deeply wary of the court. There is no prospect of a US ratification in the near future and under the terms of the American Service-members Protection Act, legislation passed by Congress in 2002, the US is withholding military assistance from allies who ratify the court unless they grant immunity for US nationals through bilateral agreements, and authorising the President to use “any means necessary” to liberate US nationals held by the court. Wags in Washington nicknamed the bill “the Hague invasion act”. Events however have led to a very interesting recent development.

The ICC has jurisdiction over nationals of state parties to the treaty or nationals detained on the territory of a state party. There is also the capacity for the court to be given jurisdiction anywhere by authorisation of the Security Council under chapter 7 of the UN charter. Until recently it was assumed that the US would oppose any such action on principle. The US has had a long term interest in the Sudan and the long standing human rights issues that have arisen in that state. A recent report by the UN on the situation in Darfur found that serious crimes against humanity have occurred there and recommended that the Security Council should refer the situation to the court for investigation. The US initially argued for the creation for another ad hoc tribunal for Darfur, but this position was widely opposed and it is rumoured that the US would now abstain on a vote in the Security Council. This may all be academic if either Russia or China, both of whom have a good relationship with Khartoum, exercises their veto, but it shows the incremental erosion of the US position against the court.

In summary, the recent system of international courts is a qualified victory, but is nonetheless a remarkable step forward for human rights. Perhaps its most significant contribution has been the recognition of so-called gender-based and sexual violence in situations of conflict.

These are unprecedented victories for human rights and they demonstrate the utility of a principle that federalists will identify with: the pooling of sovereignty. Ratification of the ICC represents a tangible loss of sovereignty by the state parties. If the world is going to get serious about effective multilateralism it will require these kinds of hard decisions.

That is the good news.

We have to face up to the reality that there are real problems in making human rights effective. We do no favours to internationalism if we duck the hard questions and ignore the systemic problems that frustrate the world’s human rights machinery at the multilateral level.

Multilateralism can be effective in pursuit of human rights but the existing system can be much improved upon and the existing system is becoming increasingly politicised and ineffective.

The Commission on Human Rights in Geneva remains the world’s primary body for addressing human rights concerns. The Commission has played a laudable role in protecting human rights from more than half a century and our community is one of many to have benefited from its action. But within the world of human rights there is growing concern at several trends that are undermining the efficacy of this global body.

The Commission, like all UN agencies, is a creation of the nation state system and so its primary actors are states and its work is influenced by international or more specifically inter-governmental relations. The current geo-political climate has impacted very negatively upon the work of the Commission. Events such as the Iraq war and the recent Intifada have fuelled increasing acrimony and partisanship in how states engage with questions of rights.

A far more serious development has been the increasingly Machiavellian tactics by which states use the Commission not to improve human rights, but to block criticism of themselves and other states. There has been greater use of “no action” motions whereby states that are friendly to say, China, will pass a no action resolution and in doing so prevent the Commission from further action on human rights concerns in China. Another trend that is causing dismay to human rights group is the pressure to abandon so-called item 9 resolutions, i.e. those that are country specific. A network of states, led primarily by states with very poor records in human rights, are pressing other governments to vote against any resolution that criticises a state (although this doesn’t include Israel and the Palestinian territories, which is covered as a separate topic).

States – or rather their governments – remain the primary sources of human rights abuse in the world. To deny the Commission the ability to hold states to account for their records in human rights would be to exonerate en masse the primary sources of abuse, and to gut the Commission as an effective body. I am pleased to note that the UK Foreign Secretary has made clear that our government will stand firm in resisting this trend.

Such practices have also resulted in a regrettable trend whereby the state that most ardently seek membership of the Commission are not those most enthused about human rights, but those seeking to block action against them. Sudan and Zimbabwe for example have sought and succeeded in receiving two of the membership nominations from the African group for the Commission this year, which is about to commence its annual session.

Another dubious practice that I have witnessed for myself at the Commission is that its effectiveness is being diluted and its resources over-stretched by the addition of more issues, and the creation of new mechanisms, some of which are to my mind peripheral to the core issues of human rights. Once in Geneva I sat with other NGO representatives waiting for a report on human rights in Iran that was delayed by the unscheduled intervention of the report of the Special Rapporteur on the Human Right not to be Polluted by Toxic Waste. I don’t wish to imply that toxic waste is a subject for flippancy, but the Commission has seen a burgeoning expansion of special mechanisms to address every conceivable human rights problem on earth, and these all eat into the very finite six weeks session and even more finite financial resources of the Commission. They also have the effect of diluting or displacing more serious issues, although this is of course my personal view.

EU governments including the UK are increasingly concerned over the way in which the Commission’s work is in effect being corrupted. To UN sceptics in America the Commission is exhibit A in the case against global governance – and they have a strong case. Even human rights organisations are concerned about the seepage of effectiveness and legitimacy of this key international institution. Human Rights Watch has voiced concern over how its work “has been undermined by eroding credibility and professionalism” and Amnesty refers to the “legitimacy deficit” at the Commission.

What remedies can be considered? The recent report of the UN High Level Panel on Threats, Challenges and Change chaired by Lord Hannay has also called restoring effectiveness to the Commission. Almost all commentators recognise the problems, but observe that “turkeys don’t vote for Christmas” – getting governments to agree to reform is regarded as very difficult. The High Level Panel recommended the extension of membership to all UN members (like General Assembly). This is a plausible idea, but would face resource implication. Getting the agenda complete with 53 nations in 6 weeks is a struggle – with nearly 200 governments it would be a massive challenge. It might be necessary to extend the Commission to several months, but this has serious financial implications for the UN and for Governments, and would likely lead to less representation from poorer states, which is already a problem.

The panel also recommends including respected human rights figures in national delegations. This is an interesting idea; I would extend it to great involvement of civil society in general. They also call for creation of an independent advisory panel and the preparation of an annual report by the UN High Commissioner for Human Rights. These are laudable and useful ideas but they all have costs and many governments and other interested parties may be reluctant to give more resources to the Commission where states with poor human rights records remain the ultimate decision-makers.

Pragmatically it may make sense to work for the attainable and leave the more visionary goals for another time, but it strikes me that one of the superior qualities of the European institutions versus the UN institutions is that Europe has qualifications for membership. Thus Croatia has been told it cannot come into the Union until it hands over an indicted war criminal. There are ideas for qualification for membership; ratification of treaties, or a human rights grading system.

The worst outcome would be if the UN human rights machinery continued to exist in a long drawn out decline, unreformed, ineffective but shielded from the necessity of change as it was seen as indispensable.

Federalism offers a means of improving this, but it has to be democratic federalism rather than state-centric federalism. Surely one of the principles federalists hold to be true is that the state should not be above the law, yet in the world’s premier human rights forum the very governments accused of the worst abuses sit in judgement on their own cases and act as decision-makers on their own records. Federalists therefore should press for the dilution of unfettered sovereignty at the Commission through the addition of committees of independent experts, perhaps parliamentary delegations and eventually some element of representation from international civil society.

That which does not evolve will die, and be replaced by superior entity. If the Commission is not reformed it will, I believe, eventually fall into disuse and stagnation. Even if the machinery for international human rights protection disappears, the need for it will not and if a vacuum comes into being, it will eventually be filled, hopefully by a better, more effective body for the promotion of universal human rights.

Daniel Wheatley is Government Relations Officer of the Bahá’í Community of the UK. The opinions expressed are those of the author and not necessarily those of Federal Union or the Bahá’í Community of the UK.

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