International Affairs Forum:
You have been working on reforms necessary for international courts and institutions. What kind of reforms should be implemented within the European Court on Human Rights in order to enhance actions against human rights abuses?
The European Court on Human Rights faces a lot of challenges currently. It has a backlog of about 100,000 cases. The number of applications to the Court has gone up dramatically in the last couple of years, partly because of a number of new states that have been added to the European Convention on Human Rights. Russia and Bulgaria are good examples. The number of applications coming from individuals living in these countries has skyrocketed in the last couple of years. And the court has no way of dealing with that. It is a big problem, as the Court actually becomes a victim of its own success. Its decisions have a lot of weight, even in places like Russia. Indeed, people want to apply to the court, they want to see if they can use it as a way to have individual human rights remedies. But the Court tends to be overwhelmed.
There is, unfortunately, very little effort in trying to think of what kind of institutional reforms could take place to make the Court work better. There’s something called “Protocol 14” that has been rejected by the Russian Duma, and indeed won’t be implemented. However, even if it would have been implemented, it wouldn’t really increase the resources available to the Court. To be quite frank, very few countries seem interested in making the Court stronger or more powerful. So, it looks very unlikely that something is going to happen anytime soon.
The kind of things that could happen, though, would be that the Court could expand its power by having more judges, for instance. But, you could also change the nature of the Court. It could become more like the Supreme Court. Now, the Court has to accept any case that’s admissible. It can’t choose, unlike the Supreme Court, which receives a lot of applications but gets to choose only a few, the most relevant in terms of developing law. The European Court of Human Rights can’t do this. Many are arguing that it should become more like a real constitutional Court. This is a very big debate going on.
Other concerns are coming with issues of compliance. For instance, Russia tends to comply with the Court rulings in very narrow ways, meaning that it pays compensation to the victims of human rights abuses, but it never really prosecutes anyone who is responsible for these abuses, or implements some forms of broader legislative reforms that will prevent these abuses from occurring in the future. And that’s a big problem that the Court is dealing with. It’s very hard, as an institutional reform at the European Court of Human Rights is not going to change state behaviors. And since Russians are not interested in changing their policies in that regard, policies are not going to be changed just because the Court wants it to be changed.
However, to be fair, the European Court of Human Rights remains the most effective Court of Human Rights that we can find out there, to compare with the American Court system for example. We don’t know yet if the African Court of Human Rights is going to function, because it hasn’t really had any cases yet, but it is the example by which other regional courts will be evaluated.
Within the United Nations, have there been recently, any efforts to improve measures against human rights violations?
It’s important to understand that the United National cannot create laws. It can create conventions, sometimes called soft laws, but they are generally not binding on states. What’s binding on states are treaties, sometimes negotiated in the U.N., and that states have to ratify. But the kinds of documents that the U.N. adopts through the general assembly or the Human Rights Council are non-binding. They might be advisory, they might be recommendations, but they are not laws, in the obligatory sense of the word. So, in that sense, the U.N. is not the forum through which most of the action takes place in regards to human rights laws.
At the U.N., you have two organizations. You have the Human Rights Committee, which is sort of a quasi-legal committee. Then, you have the Human Rights Council, which used to be called the Human Rights Commission. But it was reformed a couple of years ago, and is now known as the Council. The Council is a number of states that sit and vote on resolutions. These resolutions can be of two types: they can be general, non-binding resolutions on the principles of human rights; or they can be specific votes on individual countries. But again, those are symbolic votes; there’s no sanction attached to these resolutions, they are completely symbolic exercises. That doesn’t mean they are not necessarily important. For years, there were attempts to make resolutions against China. And China has always fought very hard to avoid that to happen, because it didn’t want to have that kind of defeat in the Human Rights Council.
Indeed, if symbolic actions can be important, the United Nations still isn’t a legal but political institution. The votes are politically motivated. I think that about 30 percent to 40 percent of their votes tend to be on Israel. Now, people can agree or disagree that Israel is a human rights abuser; it does not commit 30 percent to 40 percent of human rights abuses in the world, obviously. There is a clear political agenda there, and it is probably not the most likely institution where you can find actions against human rights abuses, it has much more of a political and symbolic menu.
What’s interesting about it is that the United States was not a member of the Human Rights Council during the Bush administration. The official reason for that was that the Administration was unhappy with the reforms that had been implemented, changing the old Commission to the new Council system. Another reason, maybe, is that every member of the Human Rights Council agrees to have a review of its own human rights records. With the war on terror going on, that might have been something that the Bush administration wanted to avoid: have a public discussion about the U.S. human rights records. The Obama administration has indicated its desire to be elected as a member of the Human Rights Council, and so probably will be. That means that in the near future, there will be a public evaluation of Human Right abuses occurring in the United States that will be discussed. This will be an interesting moment.
Besides the European Court on Human Rights, which institutions are the most likely to enact laws efficiently against human rights abuses?
The European Court on Human Rights is the most advanced legal institution. One might also take into account the international criminal tribunals, which deal in some way with human rights abuses as well. There is the American Court of Human Rights as well. However, the difference with the European Court on Human Rights is that individuals don’t have direct access to the Court. What that means is that, for the European Court of Human Rights, every individual in Europe can follow an application, after going through the domestic court system, and this application will be directly heard by the Court.
In the American system, the process is much more protected. States have to agree to accept the challenge. It’s also important to take a broader view of how international institutions can help fight human rights abuses. For example, the World Bank is increasingly interested in this, in investing aid in countries that have good human rights records, and providing investments in the development of good legal systems. Those projects, especially the projects that the World Bank has to develop courts, are usually not motivated by human rights, but more by the importance of courts for economic production, for property rights, and so on. But often, the development of good, independent and strong legal systems is very important for the protection of human rights.
Another example is trade agreements, in which the European Union, especially, now engages in, with other countries. They have human rights provisions in them. Some scholars have argued that those have been very effective. For instance, the EU has a free trade agreement with Morocco. Through this agreement, it will be demanded to have access to the human rights situation records in Morocco, and to report on that. So those are sort of broader ways of thinking of how international institutions could be effective in improving human rights records of countries.
Do you think that foreign aid could be used as an incentive to fight to reduce human rights abuses?
It could be. It’s very hard to assess whether it has been so far, or not, as foreign aid is often not directly motivated by human rights concerns. But there is some evidence that it could help to fight human rights abuses. However, it could also have the opposite effect. During the Cold War, we gave a lot of aid to regimes that were very repressive. We gave them aid, because they were allies in our struggle against the Soviet Union, for example in Congo. But since the end of Cold War, there are records that it has had more positive effects on human rights. Through more selective ways, countries that have human rights abuses get less aid, giving the incentives for countries to behave better.
Especially, in Africa, could development based on foreign aid enhance respect of human rights?
It could be, in some parts of Africa. There are different ways to think about it. The U.S. has developed what is called the Millennium Challenge Account. This is an initiative through which countries have to show that they have a set of institutions in place, before they become eligible for receiving foreign assistance. The idea here is to give countries incentives to improve on a certain number of dimensions. And if they do, they become eligible for aid. This idea has become rather popular. In parallel, Denmark and the Netherlands have done similar things. It could be that these strategies are effective, but the reality is that we don’t quite know yet if it clearly helps to improve human rights records.
Do NGOs work efficiently in collaboration with international courts in this process of improving human rights records?
NGOs are very important - they have very diverse roles. For instance, in the European Court of Human Rights, as well as the American Court of Human Rights, a large number of cases are brought through NGOs. To give an example, George Soros has created a Roma rights foundation, which is an NGO dedicated to Roma people, whose rights are often thought as abused. The foundation tries to identify individual victims of human rights abuses, and then finds lawyers for them, and helps them prosecute through the courts and get their rights protected. That is one way through which NGOs operate: they pick individual cases, and they help establish legal principles, by working through the legal system. But, also, NGOs work to publicize human rights abuses, in order for us to improve the human rights situation abroad before certain know that there are human rights abuses going on. They are critically important for that. And they put a lot of pressure on businesses to stop for instance investing in places where human rights abuses occur. In more direct ways, a lot of relief work in humanitarian disasters is done through NGOs.
Nowadays, which specific countries are known as the most likely to provoke human rights abuses, and what specific actions are being implemented against these countries?
There are different natures of countries that commit human rights abuses. Starting with North Korea, for example. It is currently ranked as one of the worst countries to live in. It’s very hard to do anything about it, as the regime is not open to other regimes and is not very dependent on other countries, except maybe for China. So it becomes, in that sense, very difficult to work on human rights abuses there.
Another issue, that can have an effect on that, is the nuclear issue. Burma, as well, is a very interesting case that is similar to North Korea, in the sense that it is a regime that wants to be completely closed off to the rest of the world, which wants to completely isolate itself from pressures to reforms. The Secretary of State, Hillary Clinton, made an interesting remark about Burma, on her recent Asia trip. She explained how we could interact a little more with Burma, because that might give them incentives to improve human rights records. It is a similar logic that the US is applying to Cuba: maybe through more interaction, you create more incentives for those regimes to change their behavior. But Cuba, Burma, and North Korea are a specific kind of regimes. They clearly want to close themselves off from the rest of the world; they are places were many human rights abuses occur.
The different kind of situations where very severe human rights violations occur, are cases where states are in conflict, in civil war for example: Somalia, Congo, Sudan…
Again, it’s very hard to do something about it, except from stopping the civil war. The best thing that can happen to these countries, that could make them stop human rights abuses is to directly stop the civil war, and develop economically. These are the two things that these countries need, in order to improve their human rights records. The issue is that, once a civil war occurs, it becomes very hard for these countries to develop. For those cases, the best thing the international community can do is to help find a way to stop the civil war. Cases such as Darfur, or Congo, are very difficult situations to resolve, even if a lot of action is being done there.
So, in a nutshell, those two cases, civil wars and repressive regimes, provide the hardest cases for improvement, in terms of human rights records. Then, there are other cases, where you see forms of slippage. These are societies that are not completely closed off, that are reasonably developed, but they have in some way dictatorial regimes, like Russia for instance. Some others would say Venezuela, even if they might not have the same human rights abuses records as other countries we are talking about. It’s very important to understand the different causes for human rights abuses.
Especially concerning Darfur, how do you perceive the way the international community tries to fight human rights abuses there?
I’m not a specialist on the question of Darfur. On one aspect though, it can be interesting to talk about the International Criminal Court, and its implications in the crisis in Darfur. The international criminal court has decided to indict President Bashir for crimes against humanity. And so, there is an arrest warrant against the President of Sudan. That has been a very controversial decision, which nobody seems to actually like. The NGOs don’t like it, because the ICC didn’t charge the President Bashir for genocide, something the NGOs were expecting. They want more severe charges of genocide against the Sudanese government. Other people, on the other hand, feel that it disrupts the peace process. In response to the ICC decision, Bashir threw out a lot of humanitarian organizations.
The issue of the ICC decision has raised a lot of debates. In terms of peace deals, a pragmatic strategy defended by some is to think that, in the case of a civil war for instance, we have to sit around a table, with people who have done incredibly bad things, and the idea that we might have to promise them amnesty, otherwise they won’t engage in any peace agreement. And people were worried that they would not be able to do that anymore, if there was going to be an international criminal court around.
In fact, there has been a recent case, where U.N. negotiators were accused of sitting around a table with a person from Congo who had been indicted by the ICC. Indeed, there is a clear tension here, between the legal approach, and the somehow pragmatic attitude of peacekeepers, who believe that deals with the devil are parts of the process of ending civil wars, which is considered as a priority for ending human rights abuses in a significant way. This was also an issue in Uganda.
It is a big debate that is going on there.
How can international courts be efficient in trying to put pressure on China, which we know invests massively in Africa and in fact supports some human rights abusing regimes?
It’s a very big issue in Africa. And it goes well beyond Darfur. China has invested a lot in Africa, and especially in natural resources, but also in other industries. The Chinese foreign minister has said very explicitly that China would not ask any question about what occurs domestically. They presented themselves as very different from the Europeans, or the Americans, on this issue. For example, all the European and American companies are bound by a convention from the OECD, which bans corruption, and threatens these companies to be prosecuted in that case.
Obviously, Chinese companies do not face those kinds of constraints. The problem is that it puts pressure on Western companies to lower their standards. That’s a very difficult situation to deal with. There are attempts to go through the U.N., and try to adopt a U.N. convention against corruption. But, as I said before, they don’t have any binding force, so they are not going to be very effective. As well, we see attempts to try to convince African countries that it is in their interest to change the way they do projects. There is a great book by Paul Collier, entitled Bottom Billion, in which he explains how to make those processes more transparent. But, globally, it is a very hard issue to deal with. The major problem is that we can’t tell China what to do. If we do, they won’t do it. And if they don’t do what we tell them to do, there is no actual legal means of acting against that.
Now, concerning the United Nations Security Council, do you think it needs to be reformed? And in what ways?
It is easy for me to say what should happen. After, it is much harder to say what can happen. In order to have a real U.N. Security Council reform, it needs to be approved by all five permanent members. It is very hard to take away the veto power from any of those states. A major idea for reform is to expand the Council, to create new members and to include some of the countries whose power has become larger over the years. This idea would promote new memberships, such as Japan or Germany, which are the second and the third contributors to the U.N. budget. In that sense, they would have permanent seats, but without a veto power.
As well, India, which is the first world democracy, has for a long time said that it wanted a seat on the Council. But it would want, as well as the five permanent members, an equal status, which means the veto power.
This gets very complicated. China doesn’t want Japan to be on the Security Council for instance. Also, if you ask India to come in, should you ask Pakistan to come in? And if Pakistan comes in, why not Indonesia, which is the largest Muslim country in the world? Surely, Africa should be represented. But which African countries should be members? And, as well, for Latin America, Brazil and Mexico are both asking to be part of the Council. The issue is that these debates have been raised from a long time now, and I don’t really see anything happening anytime soon. In my opinion, the best way to deal with it would be, I think, to increase the membership, but not the number of permanent members. As well, a good thing would be to do elections, and allow states to be re-elected. Right now, the non-permanent members of the Security Council only have two-year terms. I would change that. And, in that sense, countries such as Japan, or India, could be elected on a steadier basis. But it seems unlikely to happen anytime soon.
Concerning Europe, the idea of a common permanent member at the Security Council would not be a bad idea. But they need to have a real common foreign policy before. There is something called a Common Foreign Security Policy, but it is not clearly a common policy.
On a broader level, do we see a growing concern about human rights abuses within international organizations nowadays, especially the U.N.?
If you start from the 1990s, there has been a clear increase of the concern about human rights violations. The number of international tribunals created has increased significantly. Concerns about human rights abuses are now always parts of peace agreements that are negotiated through the U.N., especially concerning civil wars. Human rights have become much more a part of the U.N. agenda than it was before. Also, it’s very interesting that the African Union felt they had to create an African Court of Human Rights. Even if it might not be as effective in the short-term, the idea that having a human rights court should be part of any effort for regional integration is very interesting. It develops African standards for what good observance of human rights should be. That probably would not have happened 15 or 20 years ago.
Erik Voeten is the Peter F. Krogh Assistant Professor of Geopolitics and Global Justice at the Edmund A. Walsh School of Foreign Service, and the department of Government at Georgetown University.
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| what's is happening in Indian held kashmir , juts see the atrociates committed by Indian forces,at least 70,000-10,0000 people are dead and at least 20,000 thousand are missing.no one is reporting what indian forces is doing in Moaist rebillion areas and in ASAM areas too .every day due to POTA thousand muslims are behind bars due to that's law.what about European human right abuses in Africa specially to giving a full support to Ethiopa for human right abuses in Somalia and in Eriteria.why European union has a double standar .just see what Ethopia is doing with the blessing of European union.