"Has International Human Rights Movement Reached and Passed its Golden Age?", Presentation by Dr Danilo Türk, Former President of the Republic of Slovenia at the Harvard Law School
Cambridge, 23. 9. 2013 | govori
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INTRODUCTION
The question posed suggests that there is such a thing as »the international human rights movement«. Some may have doubts. Human rights represent a set of values and norms, a program, a variety of advocacy groups and a large number of institutions at all levels of social organization. Therefore, talking about human rights norms and practices and human rights landscapes is natural and based on the easily recognizable reality.
But movement, does it exist and if so what is meant by this? First, let me clarify that I do not refer to a politically constituted movement or something akin to a political party. Human rights activism primarily belongs to the realm of civil society, and above all to NGOs, the »natural allies of human rights«. In addition, there is a wide array of academic institutions, reserch institutes and remarkable individuals who have taken human rights to the centre of their engagemant and who set the tone of the human rights discourse.
An important aspect of this activity happens at the international level, including in the UN as an arena in which some of the most important human rights projects have been carried out – starting with the Universal Declaration of Human Rights in 1948. The Delartion has provided a durable platform for international action. All subsequent activities at the international level can be traced to its provisions and its programatic appeal enshrined in its Article 28:
»Everyone is entitled to a social and international order in which the rights and freedoms et forth in this Declaration can be fully realized«.
The international human rights movement is a conglomerate of international actors operating for the achievement of these objectives – realization of human rights to the fullest extent possible and constructing social and international order necessary for this purpose. Amittedly, this is not a movement with a defined structure or single leadership. Its morpholgy is constantly changing and its leaderhip is not formally established. However, the leadership position of the key NGOs and the role of intellectual leaders are sufficiently well known to justify the use of the term »movement«.
The international human rights movement grew over the period of last half century. Before that there were individual initiatives and organizations, committed personalities and states that created the international normative framework for human rights. The movement emerged later - in the 1960s and grew exponentially in the subsequet two decades which were sometimes described as »the age of human rights«.
My argument will be that the »age of human rights«, reoughly the period between mid 1970s and the immediate aftermath of the cold war in early 1990s was also the zenith of the international human rights movement. The creativity and transformative effects of that era remain unsurpassed. The question today is whether the international human rights movement has an adequate agenda? Is it capapble and prepared to engage for a major transfomational project? Is there a need for such a project and what are the central issues of human rights which may represent the key to transformation needed today?
Let me elaborate briefly.
THE DAWN OF THE AGE OF HUMAN RIGHTS
In the early 1970s the human rights NG0s have already grown to a point at which they could influence the UN - not only in the process of norm creation but also in the more difficult and more conflictual area of implementation. In mid 1970s the international institutions expanded the scope of implementation activities: In 1975, the UN, hitherto preoccupied with the human rights issues in Southern Africa and the Middle East appointed a special rapporteur on the situation in Chile. This was an important step which led to a variety of new activities relevant to human rights in Latin America such as the working group on enforced and involuntary disappearances, the working group on indigenous populations and other thematic and country specific activities.
Innovation in the field of thematic procedures was relevant to human rights problems in other parts of the world as well and contributed to awarenss rising and pressure needed to achieve the necessary change which happened later. In 1976 the two UN Covenants on human rights entered into force and that strengthened the UN role, in particular in the implementation of civil and political rights.
In Europe the adoption of the Helsinki Final Act of the CSCE in 1975 represented an important turning point. While its substntive provisions on human rights were relatively weak and general it had an enormous mobilizing potential. It called on all states parties to disseminate the Helsinki Final Act in their languages which contributed to the emergence of powerful initiatives such as Charter 77 and - and twelve years later - to a social and political change of historic proportions.
A very significant, perhapos decisive push for change came from the US where President Carter, elected in 1976, put human rights at the center of the US foreign policy. This gave a powerful boost to human rights movements, in particular in Central and Eastern Europe in Latin America and at the level f the international NGOs.
The secod half of 1970s was the time of dawn of the age of human rights. It strengthened human rights activism beyond the levels previously imagined. This was decisive: the idea of human rights, in particular civil and political rights such as the right to personal safety and security, freedom of opinion and expression, freedom of assembly and association became politically significant- The were no longer a matter of interest of a few, primarily the victims of human rights violations and jurists with different roles in human rights advocacy, but an ideology capable of mobilizing masses of people and transforming entire societies.
THE ZENITH OF THE AGE OF HUMAN RIGHTS
By the late 1970s the power of human rights was sufficiently large to require strategic leadership.
Two approaches emerged. The first was coming from the human rights movement itself: It insisted on the expansion of human rights activities already in place and creation of new NGOs (such as Helsinki Watc and various NGOs focusing on the Latin American situations).
The UN has expanded the scope of its special procedures. The number of rapporteurs dealing with situations in different countries has grown, the thematic procedures were expanded. The latter category embraced such themes as the question of administrative detention, the minimum standard rules on treatment of prisoners, the prohibition of torture and arbitrary executions, independence of the judiciary and others. The texture of human rights activism became much more complete and gradually almost every issue of human rights became a matter of international concern. The proponents of this strategy, chiefly international NGOs and distinguished academics, many of them American, believed that creating a sufficiently strong structure of international norms, procedures and advocacy groups for the human rights implementation will gradually help in the necessary social and political transformation, in particular in latin America and Eastern Europe.
The second approach contained a variety of political elements. A new dynamics developed in the relationship between the international institutions, the international NGOs and states where human rights were violated. The NGOs achieved major successes in strengthening the normative power of human rights and became able to use the international instruments, including a variety of expert reports and other products of the already lively international discusion in their advocacy work at home. In nmany countries human rights advocacy became an important political factor.
On the opposite side changess occured too. The states that had been accused as violators of human rights had increasing difficulty in hiding behind the principle of sovereignty. They had to get involved in the discussion and provide answers. Obviously, the violaters were imaginative too. They became ever more interested in membership in the international human rights to defend themselves, to oppose initiatives they deemed harmful and to try to promote their own agenda. The human rights discourse became more political. In the circumstances this was inevitable and had to be reckoned with.
At the international level this situation demanded political assesment and political choices. Should the countries in which human rights are violated be subjected to sanctions and isolation or should the y be »engaged« in the hope that engagement will lead to the needed change? Are there differences between violators of human rights that would justify a diversity of approaches?
This was the point at which a new American approach was tested. In 1979 Jean Kirkpatrick published her influential article »Dictatorship and Double Standards« (Commentary, November 1979) in which she argued that there is a need to distinguish the totalitarian regimes that are »incapable of real reforms« from the authoritarian ones which are »capable of improvement«. Therefore human rights activism should be directed against the totalitarian regimes of East Europe while the authoritarians of Latin Amarica and Asia should be expected to transform themselves gradually as a result of their own capacity to change. This became the approach f the new American administration that was elected in 1980.
The subsequent developments have proved this analysis wrong. The regimes defined as totalitarian crumbled in a quick succesion in 1989 -1991 and mostly peacefully. The demand for respect for and enjoyment of human rights became a matter of broad popular movement and a major component of change the ruling elites withdrew or mutated relatively quickly and the societies of these countries transformed. The emphasis on human rights was bery significant aspect of the process of their political and legal transformation.
In the states described as merely »authoritarian« by professor Kirkpatrick, the processes of change were more diverse. Human rights made strong advances in countries like Philippines, Argentina and Chile and the change was relatively peaceful. In other »authoritarian« states like Guatemala, Nicaragua and El Salvador, the situation turned violent. In the »authoritarian« Iran the Shah was replaced by a revolutionary theocratic regime and new violations of human rights have taken place.
In general, the events of the 1980s did not confirm professor Kirkpatrick's theory of totalitarian and authoritarian regimes. On the other hand, human rights became a significant vehicle of change while the political and social factors affecting the change remained country specific and a matter of subsequent development in each of the countries concerned.
The changes, which started in late 1970s, were mostly over by the end of the subsequent decade. It was already with a sense of victory that the global human rights movement gathered in Paris in 1988 to celebrate the 40th anniversary of adoption of the Universal Declaration of Human Rights. The changes were either at hand or quick in coming. The presence of Lech Walesa and the leaders of the Polish Solidarity at the Paris celebration were highly symbolic.
AFTER THE VICTORY: THE TRICKY ISSUE OF ACCOUNTABILITY
The age of human rights culminated in the 1980s with the demise of authoritarian governments in Latin America and, finally with the collapse of Communism in Eastern Europe and Soviet Union. New visions were now called for. The key international NGOs proposed a new priority: No to impunty! This slogan was broadly accepted and the international human rights community focused on perpetrators of pat human rights violations, initially in particular in Latina America. The underlying idea of retributive justice gained strong support, much more so than was the case in the previous periods.
However, the complexities involved were less than fully understood. Redressing injustices, which characterized long periods of human rights violations, is a difficult task in itself. Combining it with the necessary reconciliation makes it even more difficult. In most situations both of these tasks have to be addressed in parallel and with the determination of short-term goals, in particular the need to prevent new violations.
Moreover, in one of the most bitter ironies of recent history an unexpectedly dramatic set of challenges for human rights arose soon after the victory of human rights. Vienna conference on human rights in 1993 was initially designed as a celebration of victory of an idea. However when it met - only a few hundred miles from the battlefields of Bosnia and Herzegovina – it was confronted with a bitter reality of the war in the Balkans. The post cold war reality brought new and completely unexpected challenges. The wars in the Balkans, genocide in Rwanda and later in West Africa, in DRC and in the Sudan produced hitherto unimaginable level of violence, atrocities and iolations of humanitarian law and human rights. The international human rights movement was confronted with a new and completely unexpected task. The situation was made worse by the fact that the main powers and international institutions failed in their attempts to contain violence and stop the wars.
In the situation the remedy was sought in the creation of a number of nternational and mixed tribunals that were established to try the principal perpetrators of masive and systematic violations of humanitarian law and human rights. Later, the establishment of the International criminal court represented a further step in building of structure of international justice. Later still, the UN has accepted – albeit half-heartedly and with uncertain practical consequences – the idea of the responsibility to protect, a notion which points to the responsibility of states and international institutions for prevention of massive human rights violations.
These developments are significant. Kofi Annan, the UN Secretary-General who made an important contribution to the establishment of international judicial structures and to the concept of responsibility to protect made the following conclusion:
»In the face of war crimes, crimes against humanity, and genocide, the default position of theinternational community is now accountability, not impunity«. (K. Annan, Interventions, 2012, p. 151)
This conclusion is both realistic and incomplete. The »default position of accountability«, desirable as it is, may not be sufficiently efective. It suffices only to think about the ongoing situation in the Sudan to understand the fragility and limits of reach of the strategy of rejection of impunity. It would be an exaggeration to say that the policies and institutions established in the wake of the post cold war transformation ensured a new, qualitatively higher and effective level of accountability for human rights violations. While the international human rights movement succeeded brilliantly by making a key contribution to the great transformation in the 1970s and 1980s, its later role was much more defensive and – given the magnitude of new violations of human rights – only partly successful.
DOES THE INTERNATIONAL HUMAN RIGHTS MOVEMENT NEED A NEW AND CLEAR PRIORITY?
There is no doubt that the past two, »post cold war« decades have brought significant progress. The creation of new institutions of justice is important. The office of the UN High Commissioner for Human Rights has developed a series of meaningful activiteies including an increased field presence. The evolution of regional institutions, in particular the Europeaan Court of Human Rights, represents an example of major progress for human rights.
A view of the annual reports of the High Commissioner shows steady expansion and increasing sophistication of her activities. This has been a characteristic of a variety of her areas of work including the area of the rule of law, prevention of discrimination, protection of immigrants and support to the treaty bodies in the field of human rights. The role of special procedures has been strengthened. In 2012 alone various country specific and thematic rapporteurs made 80 visits to 55 states to discuss various problems and violations of human rights.
Some areas of innovation are welcome. They include the development of specific indicators to help measuring progress in the area of the rule of law and in the implementation of economic, social and cultural rights. The sensitivity for the corporate responsibility for human rights has grown. Based on serious and effective work of Professor John Ruggie and a specialized UN working group, theUN Human Rights Council adopted a set of guiding principles on business and human rights in 2011. In December 2012 a UN forum on business and human rights has met in Geneva and agreed to continue to meet annually. The Universal periodic review, conducted by the Human Rights Council which replaced, in 2006, the earlier Commission on Human Rights, has enabled a comprehensive consideration of human rights performance of all UN Member state. This provides an opportunity to gradually develop a system of scrutiny which will take full advantage of human rights expertise, analysis and information existing in various parts of the UN System and in the work of NGOs. All this should enable a meaningful contribution of the human rights arm of the UN to the work on the Millenium Development Goals and, more specifically on the priorities to form the core of the post 2015 Agenda.
In short, the volume of work and the level of innovation of the past few years clearly indicate significant growth. This is welcome – and something that opens an important basic question: Should the international human rights movement be satisfied with this development? Should it not ask itself whether a clearer definition of priorities is needed?
Human rights are a way to improve and transform societies. There is no doubt that the contribution made by the existing human rights system has to be valued and supported. But is this sufficient? Isn’t human right also about transformation, the way its contribution in the 1970s and 1980s indicated? It that is the case, which problems of today needs to be addressed?
A key problem calling human rights based action today became very evident. Let me quote two different sources of analysis. First, this year's global risk report prepared by the World Economic Forum identified »
a severe and growing income disparity« as one of the two main areas of concern (global warming being the other).
The Second source is much ore expected but also more detailed: Oxfam has warned, this year in quite dramatic tones tha
t income disparity is rapidly becoming unsustainable. In the UK, according to Oxfam, the current inequality has reached levels not seen since the time of Charles Dickens. In some of the more successful countries of today, for example China and South Africa the top 10 per cent take home nearly 60 per cent of national income. These disparities are described as economically inefficient, politically corrosive, socially divisive, environmentally destructive and, yes, unethical.
It doesn't take much efforts to see the expressions of public revolt against the situation produced by the imbalalces of advantages of globalization, the domination of financial industries, the resulting financial crisis and the policies of austerity which have weakened the existing social safety nets and put the onus of consequences of the financial deregulation on the weakest segments of society.
Some of the reactions are already very visible. The Occupy movement, the indignados and many other desparate intititve are the early sign of discontent calling for transformation. The new Pope Francis has made a number of strong statements advocating social justice and presented himself as the moral leader of a »culture of solidarity«. His approach is opening an important opportunity for an approach reaching beyond class warfare and culture wars, away from charity based concern for the poor towards a major mobilization for a positive cause. Solidarity can be a very powerful mobilizing principle provided that it is clearly and adequately conceptualized and that it is followed by appropriate policies and institutional reforms – both at the national level and internationally.
Understandably, there are also opinions based on serious analysis suggesting that the current call for change and social transformation cannot produce change. The policy makers catering to the majority of the voters largely ignored the protest movements. According to this view, the unfettered markets will continue to characterize global economy and the result will be more volatile economic conditions and slower growth at the national level. (Adam Posen of Petterson Institute in the Financial Times, 7 august 2013).
The economsist are expectedly analysing and, in essence defending the status quo. They are also usually inattentive to socio political aspects of the situations they analyze. Human rights activists and human rights movement cannot share this attitude. Isn' the current economic turmoil an opportunity for the international human rights movement to regain its earstwhile transformational role? Justice is a fundamental platform of huma rights and it is not limited only to its basic legal expresion, the principle of the rule of law or to its libertaraian core of fundamental freedoms. Justice is also social. The Catholic Church seems to have understood that the time is ripe to take social justice to the center of its endeavours. Similarly, the global human rights movement should be able to go beyond the framework of existing activities and agree on a major task for the future. The fight for individual freedom was the order of the day in 1970s and 1980s. The rejection of impunity inspired action and institutional development of much of the past two decades. What is to be the next transformational task? My proposal is - solidarity and social justice.