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9/17/2018 The power of shame - A survey of human-rights law

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SPECIAL REPORT

A survey of human-rights law

The power of shame International scrutiny has become more e�ective

Dec 3rd 1998

Print edition | Special report

ON THE day the Universal Declaration was adopted, Andrei Vishinsky, representing

the Soviet Union at the UN, scornfully dismissed it as just a “collection of pious

phrases”. Vishinsky had been the sly and brutal prosecutor at Stalin's Moscow show

trials in the 1930s. For a while, it looked as if his cynicism might be justi�ed.

During the cold war both the Soviet Union and America played a two-faced game on

human rights, condemning each other for supporting oppressive governments

even while themselves sponsoring dictatorships that regularly committed abuses.

The Soviets tolerated no dissent, at home or in their satellites in Eastern Europe.

America's record abroad was not much better. As part of a worldwide crusade

against communist oppression, it supported harsh right-wing regimes in Latin

America and elsewhere. “He's a son-of-a-bitch, but he's our son-of-a-bitch,”

Franklin Roosevelt had said about one Central American dictator in the 1930s. That

seemed to sum up the post-war American attitude as well until the late 1970s, when

President Carter tried to turn human rights into a foreign-policy priority.

These attitudes among the superpowers dramatically slowed progress on

international human-rights standards, and on mechanisms to apply them, but they

did not stop it altogether. Debate about human rights in the UN General Assembly

was highly partisan. Public criticism was generally con�ned to South Africa, Chile

or Israel, which had few friends. The UN Commission on Human Rights was

created in 1946 as the main vehicle for promoting international norms. But UN

members, jealous of their sovereignty, were reluctant to give it much of a role. After

drafting the Universal Declaration, the commission spent the next 20 years

preparing the International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural Rights, the two treaties

which �esh out the broad provisions of the declaration and commit governments

to implementing them. These were originally supposed to follow soon after the

declaration. The Commission was not even allowed to see the thousands of

complaints which �owed into the UN each year, and it did no monitoring of its

own. In 1970 it was at last authorised to investigate persistent human-rights

abuses, but for years it could do this only in secret.

As the cold war waned, however, the UN system of human-rights monitoring

expanded rapidly and, more importantly, became public. Inevitably, this has meant

more bureaucracy (see chart 2). Mary Robinson, a former Irish president who was

appointed UN High Commissioner for Human Rights last year, sends her own

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9/17/2018 The power of shame - A survey of human-rights law

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o�cials to monitor a range of trouble spots, and may propose streamlining this

cumbersome structure, although she does not exercise direct control over any of it.

Any changes must ultimately be approved by the General Assembly.

Nevertheless, the system is not quite as bewildering, nor as expensive, as it looks at

�rst sight. Much of the monitoring work is done by unpaid experts who volunteer

their time to investigate abuses around the world, with little sta� support. Many

are law professors or former judges partly subsidised by academic institutions or

professional groups. The UN spends less than 2% of its budget on human rights

(not counting the much bigger amounts it spends on relief for refugees).

At the heart of the system is a rejuvenated Human Rights Commission, whose

deliberations and decisions are now public. Its annual meetings in Geneva each

March are attended by hundreds of diplomats, NGO o�cials and campaigners.

These meetings have become an arena for intense lobbying and deal-making.

Commission resolutions criticising individual countries are often made for overtly

political reasons. Governments with clout, such as China, are able to avoid

criticism; those unable to marshal support, such as Cuba, fare less well. Indeed, the

commission has never passed a resolution criticising China's human-rights record,

not even after the Chinese government sent tanks against pro-democracy

protesters in Beijing's Tiananmen Square in 1989. Last year China waged a

concerted diplomatic campaign in Europe and America, including tours by Chinese

leaders and quiet o�ers of trade deals, to dissuade countries from voting for a

resolution critical of it.

The right to meddle

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It would be easy to condemn such machinations as discreditable. But, “If you want

to change the way people live, you have to use politics. That doesn't mean that

idealism isn't involved too,” argues Thomas McCarthy, an adviser to Mrs Robinson.

The very fact that a country such as China goes to great lengths to avoid criticism at

the commission suggests that it matters. After decades of vehemently denying that

other countries had any right to “meddle” in its internal a�airs, the Chinese

government virtually conceded the point on October 5th when it signed the

International Covenant on Civil and Political Rights. This has given not only

outsiders, but Chinese activists as well, a standard with which to measure the

behaviour of the government, which should have a more di�cult time explaining

why it is not abiding by its own international commitment. In addition, once it

rati�es the treaty, which it has promised to do, it will be required to submit

periodic reports on its human-rights record to the treaty's monitoring committee,

and to submit to a public grilling.

Not all the Human Rights Commission's work is so partisan. It also appoints

“special rapporteurs”, experts who operate independently of their governments and

with the authority of the UN behind them. They report on broad themes of concern

such as torture, extrajudicial executions, arbitrary detention and religious

intolerance, as well as investigating conditions in particular countries. They take

up individual cases directly with governments. This can sometimes bring results

even in countries with poor records.

Nigel Rodley, the commission's rapporteur on torture since 1993 (and a law

professor at Britain's Essex University), receives some 400-500 urgent appeals a

year. Governments can ignore him if they wish, but most, he says, now respond in

some way, if only with a blanket denial. They can also refuse to allow him to visit to

investigate consistent allegations of torture, but give permission surprisingly

often. This autumn Mr Rodley spent ten days in Turkey investigating charges of

widespread torture used against the Kurds. Sometimes government o�cials have

quietly encouraged his investigations even as their political bosses have issued

denials. Perhaps his sharpest weapon is a report he delivers to the commission

every year. This publicly pillories governments which refuse to co-operate, or

against which serious allegations have been raised.

Is it doing any good? Mr Rodley admits he does not always know whether he has

helped any particular individual, but he believes that such monitoring has an

e�ect. “The information gets to families that someone outside is investigating or

appealing to the government. Occasionally the prisoner learns of this too. And I feel

that somehow the drip, drip, drip of external demands that a government do

something to stop things like torture will have an e�ect. History will see that

people weren't totally forgotten. And those in positions of power can't say they

didn't know.” Most important of all, international scrutiny helps support people

within the country who are �ghting to stop abuses. “It's not the UN that can change

things directly,” says Mr Rodley. “It's groups in the country itself. International

monitoring gives these forces, both non-governmental and within government,

some support.”

In addition to monitoring by the Human Rights Commission, countries that have

rati�ed individual UN treaties agree to deliver periodic reports (usually every �ve

years) to panels of experts on their own compliance under each treaty. At a

minimum, this encourages government o�cials to examine their obligations and

try to justify their own policies. The most important of these panels is the Human

Rights Committee, the monitoring body for the International Covenant on Civil

9/17/2018 The power of shame - A survey of human-rights law

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and Political Rights. Reports to the committee are often years late, and frequently

consist of nothing more than descriptions of legislation or o�cial wa�e. But at its

public meetings, held in New York and Geneva and attended by journalists and

NGOs as well as representatives of other governments, committee members—often

primed with information from NGOs—can pose di�cult questions to o�cials.

Predictably, Algeria and Libya were given a rough ride from the committee this year.

But even highly respectable developed countries have come in for criticism. After

committee sessions, Canada and the Netherlands changed some of their laws, and

Japan improved the treatment of prisoners. In 1995 the committee issued a critical

report on the United States, citing the poor legal representation of indigent

defendants, anti-gay laws, allegations of widespread police abuse, and the scope

and implementation of the death penalty. The world's sole superpower ignored the

report, as it does most outside criticism, but American human-rights campaigners,

and other governments, took note.

Good old Europe

By far the most e�ective international human-rights regime is not part of the UN at

all, but the regional one which has developed since 1953 under the aegis of the

Council of Europe. The European Convention on Human Rights is applied by the

European Court of Human Rights in Strasbourg, whose judgments have acquired

the force of law in most West European countries. In e�ect, the court has become

the �nal court of appeal, and the European Convention a bill of rights.

Although the court has no way of enforcing its decisions directly, it has never been

openly de�ed by a government, and its rulings sometimes prompt changes of

domestic legislation. For example, after losing cases before the court, Britain and

France changed their laws on telephone tapping, Britain revised its military court-

martial process, Germany gave non-German-speaking defendants the right to an

interpreter, Ireland legalised homosexuality, and Austria abolished a state

monopoly on cable and satellite television, which had been criticised as a

restriction on the freedom of expression. The court's decisions are now accepted as

the ruling precedent on human-rights issues for the European Union's Court of

Justice.

It could be argued that the European Convention system has been so successful

because it operates in a part of the world where human rights are already widely

respected. This is partly true, but it does not mean that the system has not been

useful. The standards set by the European Court of Human Rights helped Spain,

Portugal and Greece to establish liberal democratic governments in the 1970s, as

well as encouraging governments even of established democracies, such as Britain,

France and Italy, to tread more carefully.

Now the court's remit extends from Lisbon to Vladivostok. Since 1990, Russia and

17 other ex-communist countries have been admitted to the Council of Europe and

have rati�ed the European Convention, bringing the number of members to 40. All

members have formally accepted the jurisdiction of the court and the right of

individuals to appeal to it once all appeals in their domestic courts are exhausted.

Already hundreds of cases have been �led by individuals in Poland, the Czech

Republic, Hungary and Romania. Hundreds more are expected over the next few

years from Russia and the Ukraine, which only recently rati�ed the convention. A

stream of cases still comes from West European countries as well. To cope with the

9/17/2018 The power of shame - A survey of human-rights law

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Dec 3rd 1998

Print edition | Special report

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�ood of new cases, as well as an existing backlog—litigants have to wait up to �ve

years for a decision—the court in November streamlined its procedures and

absorbed the European Commission on Human Rights, a separate body which had

previously screened cases before referring them to the court.

It remains to be seen whether the European Convention system can help Eastern

Europe establish as �rm a rule of law and respect for human rights as in Western

Europe. It will be a stern test. One of the new court's main challenges, says Nicolas

Bratza, a judge who sits on it, will be “not to let standards be watered down to suit

our new members. The court must have the courage of its convictions and �nd

violations where they exist.”

The system is likely to have the greatest e�ect in countries such as Poland, the

Czech Republic and Hungary, which have already established functioning

democracies. For these, the prospect of joining the EU before too long is an added,

and crucial, incentive. But it is di�cult to imagine the Strasbourg court exercising

much in�uence on the chaos in Russia in the near future. A similar, but weaker,

human-rights system established by the Organisation of American States in 1959

has been less successful at constraining Latin American governments.

There are severe limits to what any international human-rights regime—

monitoring, self-reporting on compliance with treaties, or judicial—can achieve on

its own. In emergency situations, as in the former Yugoslavia or Rwanda, other

governments must take the tough political decisions on whether to intervene.

Monitors can only issue warnings. A government determined to crush opposition

is unlikely to heed panels of experts, monitors or distant judges. Rogue states such

as Iraq, Serbia or Myanmar are beyond their reach.

Yet even in these countries, the government is not the only actor. Opposition

groups and victims can be encouraged by the knowledge that the outside world is

watching. Sometimes this can lead them to miscalculate the willingness of other

countries to intervene, as the Hungarians tragically did in 1956. Nevertheless,

outside scrutiny more often acts as an antidote to despair and a constraint on the

opposition's own actions than a spur to abortive revolt. International monitoring

also provides human-rights NGOs with important forums in which to publicise and

document abuses. Moreover, few governments are as vicious, or as isolated, as

Iraq's or Myanmar's present ones. Most will go some way to avoid international

disapproval. It is “the power of shame that lies at the heart of investigatory and

reporting mechanisms,” says Jack Donnelly, the author of a wide-ranging

examination of international human-rights practices*. Shame may not be as solid

as a policeman's billy club, but sometimes it can be more e�ective.

*“International Human Rights”. Westview Press, 1998.

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