Comparative Human Rights Diplomacy [1st ed. 2022] 9783030970949, 9783030970956, 3030970949

Table of contents :
Foreword
Acknowledgements
Praise for Comparative Human Rights Diplomacy
Contents
About the Author
Abbreviations
1 Introduction
2 From the Historical Legacy of the United Nations Commission on Human Rights Until the Comprehensive Assessment of the United Nations Human Rights Council
2.1 Introduction
2.2 United Nations Commission on Human Rights
2.3 Main Factors Leading to the Replacement of the Commission on Human Rights
2.4 United Nations Human Rights Council
2.4.1 Establishment of the United Nations Human Rights Council and Its Comparison with the Commission on Human Rights
2.4.2 Main Institutions and Features of the Human Rights Council
Membership, Regional Groups, Voluntary Pledges, Special Sessions, Agenda
Special Procedures
Complaint Procedure
Subsidiary Bodies
Participation of Non-governmental Organizations and National Human Rights Institutions in the Work of the Human Rights Council
2.4.3 Assessment of the Work of the Human Rights Council
2.5 Conclusion
3 The Internal and External Human Rights Diplomacy of the European Union the Economic Giant Became a Decisive International Human Rights Actor?
3.1 The Internal Human Rights Diplomacy of the European Union
3.1.1 Introduction
3.1.2 The Religious and Historical Roots of Modern Human Rights in Europe
3.1.3 “Conservative Human Rights Revolution” and the Establishment of the Council of Europe
3.1.4 The Geopolitical Factors Inspired the Creation of the European Union
3.1.5 Major Steps in Development Leading to the Enhanced Role of Human Rights Within the European Union Internal Policy
3.1.6 Present Tools and Sources of European Union Internal Human Rights Diplomacy
The Constitutional Fundamental Rights of the European Union, the Question of European Values
European Union Charter of Fundamental Rights
Infringement Proceedings
Article 7 Procedure, “the Nuclear Option”
Justice Scoreboard
Cooperation and Verification Mechanism
EU Rule of Law Framework
3.1.7 Role of the Different Actors Within the Present Internal Fundamental Rights Protection System of the European Union
European Commission
European Parliament
Council
Court of Justice of the European Union
Fundamental Rights Agency
European Union Ombudsman
3.1.8 Possible Future Tools to Address Fundamental Rights Violations in Member States
3.2 External Human Rights Diplomacy of the European Union
3.2.1 Preliminary Dilemmas and Thoughts Serving as an Introduction
3.2.2 Historical Overview of the Pre-Lisbon Period
3.2.3 Changes Brought to the EU’s External Human Rights Policy by the Lisbon Treaty
3.2.4 Main Actors of the European Union Human Rights Diplomacy in the Post-Lisbon Period
High Representative of the European Union for Foreign Affairs and Security Policy
EU Special Representative for Human Rights
Working Party on Human Rights
European External Action Service—European Union Delegations
European Parliament
3.2.5 Main Instruments and Tools of the European Union Human Rights Diplomacy in the Post-Lisbon Period
European Instrument for Democracy and Human Rights
European Union Action Plan on Human Rights and Democracy
European Union Annual Report on Human Rights and Democracy in the World
Human Rights Dialogues
Human Rights Clauses
European Union Human Rights Guidelines
European Union Declarations, Démarches
Human Rights and Democracy Country Strategies
Other Trade and Financial Related Measures
3.2.6 Role of the European Union at United Nations Human Rights Forums
European Union at the United Nations General Assembly
Cooperation with United Nations Human Rights Treaty Bodies, Human Rights Council Mandates, and the Office of the United National High Commissioner for Human Rights
European Union in the United Nations Human Rights Council
3.2.7 Main Sessions of the Human Rights Council in 2017
Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017)
Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)
Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)
3.3 Conclusion
4 The Human Rights Diplomacy of the Latin American and Caribbean States in Light of the Challenges of Transitional Justice: Coping with the Shadows of the Past, Extreme Social Differences, and Poverty
4.1 Introduction
4.2 Cultural, Historical, and Religious Roots of Human Rights in Latin America
4.2.1 Latin America and the Caribbean in a Comparative Regional Context
4.2.2 A Short Overview of the History of Human Rights in Latin America and the Caribbean
Colonial Period
Human Rights and Constitutionalism in the Nineteenth Century Since the Independence of Latin America and the Caribbean
4.2.3 Democratization in the Twentieth Century
4.2.4 Dealing with the Past
4.2.5 The Role Played by Washington in Latin America and the Caribbean
4.3 Development of the Inter-American System of Human Rights
4.3.1 First Attempts of Regional Cooperation
4.3.2 Organization of American States and the American Declaration on the Rights and Duties of Man
4.3.3 Inter-American Commission on Human Rights
4.3.4 American Convention on Human Rights and the Inter-American Court of Human Rights
4.3.5 Recent Human Rights Instruments of the Inter-American System
4.4 Latin American Human Rights Diplomacy at Multilateral Forums with Special Emphasis on the United Nations Human Rights Council
4.4.1 International Criminal Court
4.4.2 United Nations General Assembly and the Universal Declaration of Human Rights
4.4.3 UN Treaty Bodies
4.4.4 Main Sessions of the United Nations Human Rights Council in 2017
Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017)
Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)
Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)
4.5 Recent Developments in the United Nations Human Rights Council
4.6 Conclusion
5 Implementing Universal Human Rights Standards in and by Sub-Saharan African States in the Shade of Local Traditions
5.1 Introduction
5.2 A Short Overview of the History of Human Rights in Sub-Saharan Africa
5.2.1 Human Rights in Pre-colonial Africa
The Situation of Human Rights During the Colonial Period
Post-colonial History of Human Rights in Africa
5.3 Human Rights Development in Contemporary Africa
5.4 Implementation of International Human Rights Standards Regarding Africa and by Africa in a Multilateral Context
5.4.1 International Criminal Court
5.4.2 Other Judicial Organs
International Criminal Tribunal for Rwanda
5.4.3 United Nations General Assembly
5.5 United Nations Human Rights System
5.5.1 United Nations Treaty Bodies
5.5.2 United Nations Human Rights Council
Universal Periodic Review
5.6 Human Rights Policy of Sub-Saharan African States During the Regular Sessions of the United Nations Human Rights Council in 2017
5.6.1 Thirty-Fourth Session of the United Nation Human Rights Council (27 February–24 March 2017)
Country Situations
Thematic Issues
5.6.2 Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)
Country Situations
Thematic Issues
5.6.3 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)
Country Situations
Thematic Issues
5.7 Conclusions
6 Human Rights Diplomacy of Asia-Pacific States in the United Nations Human Rights Council in Light of the “Asian Values Debate” and Regional Human Rights Initiatives
6.1 Introduction
6.2 Cultural, Historical, and Religious Roots of Human Rights in Asia
6.2.1 Historical Context
6.2.2 Religions
Confucianism
Buddhism
Hinduism
6.3 Asian Values Debate
6.4 Regional Human Rights Initiatives
6.4.1 Possible Hurdles for an Asian Regional Human Rights System
6.4.2 Sub-Regional Arrangements in Asia
Association of Southeast Asian Nations
South Asian Association for Regional Cooperation and the Pacific Islands Forum
6.4.3 Regional Cooperation
6.5 Asian Human Rights Diplomacy at Multilateral Forums with Special Emphasis on the United Nations Human Rights Council
6.5.1 International Criminal Court
6.5.2 United Nations General Assembly
6.5.3 United Nations Human Rights Treaty Bodies
6.5.4 United Nations Human Rights Council
Universal Periodic Review
6.6 Main Sessions of the Human Rights Council in 2017
6.6.1 Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017)
Country Situations
Thematic Issues
6.6.2 Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)
Country Situations
Thematic Issues
6.6.3 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)
Country Situations
Thematic Issues
6.7 Conclusion
7 Human Rights Diplomacy of Muslim States at Multilateral Forums
7.1 Introduction
7.2 Islam and Human Rights
7.2.1 Historical Context
7.2.2 Sources of Islamic Law
7.2.3 Compatibility of Islam and International Human Rights Standards
7.3 Regional/Identity-Based Organizations
7.3.1 League of Arab States
7.3.2 Organisation of Islamic Cooperation
7.4 Islamic Human Rights Instruments
7.4.1 Universal Islamic Declaration of Human Rights (1981)
7.4.2 Cairo Declaration on Human Rights in Islam (1990)
7.4.3 Arab Charter on Human Rights (2004)
7.5 Muslim Human Rights Diplomacy at Global Multilateral Forums
7.5.1 United Nations General Assembly
United Nations General Assembly Resolution 181 on the Future Government of Palestine
Universal Declaration of Human Rights
Role of Muslim Delegations During Certain Important General Assembly Debates on Human Rights
7.5.2 United Nations Human Rights Treaty Bodies
7.5.3 United Nations Human Rights Council
7.6 Main Sessions of the Human Rights Council in 2017
7.6.1 Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017)
Country Situations
Thematic Issues
7.6.2 Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)
Country Situations
Thematic Issues
7.6.3 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)
Country Situations
Thematic Issues
7.7 Conclusions
8 The United Nations Human Rights Council: A Platform for the Clash of Civilizations or a Forum of Cross-Regional Cooperation?
8.1 Bloc Voting at the United Nations Human Rights Council
8.2 Culturally Sensitive and Divisive Issues on the Agenda of the Human Rights Council
8.2.1 North–South Divisions in the 2017 Sessions of the Human Rights Council
8.2.2 Traditional Values
8.2.3 Protection of the Family
8.2.4 Sexual Orientation and Gender Identity
8.2.5 Defamation of Religion
8.3 Cross-Regional Cooperation Within the HRC
8.4 Most Recent Developments in the Human Rights Council During the COVID-19 Pandemic
8.5 Final Thoughts
8.6 Conclusion
Bibliography
Index

Citation preview

Comparative Human Rights Diplomacy István Lakatos

Comparative Human Rights Diplomacy

István Lakatos

Comparative Human Rights Diplomacy

István Lakatos Budapest, Hungary

ISBN 978-3-030-97094-9 ISBN 978-3-030-97095-6 (eBook) https://doi.org/10.1007/978-3-030-97095-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

The dynamic relationship between what unites all human beings and our multifaceted diversity is as old as time. In the twenty-first century, our commonality of destiny has become even more vital and its manifestations even more complex. Mass media, climate change, environmental preservation, migration, trade, mass displacement—whether leisure-driven, feardriven, or wants-driven—and the COVID-19 pandemic are examples of globally shared phenomena. Even if solidarity does not always accompany the aforementioned phenomena, the universal aspiration to well-being and betterment has always preceded, accompanied, or followed this evolution. From a normative standpoint, the 1948 Universal Declaration of Human Rights, the two 1966 international human rights covenants, the 1993 Vienna Declaration and Programme of Action, the 2001 Durban Programme of Action Declaration, and the 2018 Global Compact on Migration, as well as the 2015 Paris Global Climate and Global Warming Agreement illustrate a constant willingness to build this solidarity. The end of the colonial era and the end of the Cold War have reinforced the principles of equality of all human beings in dignity and rights, as well as the universality of human rights, their interdependence, and the principle that differences in origins and cultures, religions or beliefs, economic systems or social organization are all opportunities to strengthen the basis for the acceptance by all of the equal aspiration of all human beings to

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FOREWORD

dignity, freedom, and the enjoyment of all their civil, economic, political, social, and cultural rights. And yet, in spite of everything, the tension between universalism and particularism, between proclamations and acts, persists. How, and by what means, have the states of sub-Saharan Africa, the European Union, the states of the Asia-Pacific group, the member states of the Organization of the Islamic Conference, and the group of Latin American and the Caribbean States, with, of course, different interests of the states within each group, taken into account universal human rights, their cultures, their governance, with respect to individuals and groups within them, including minorities, their civil societies, their interests of all kinds, to implement human rights diplomacy, within them, in their region, within the United Nations? Are their interactions indicative of a clash of civilizations? Are their cultural, religious, or ideological foundations, their conceptions of the role of women, of the family, of the individual, of the scope and limits of freedom of association or expression, of the elderly, of gender, of the child, of sexual orientation or gender identity, irreconcilable? What really divides them? What is the future of their cooperation? A seasoned diplomat, a methodical researcher, a man open to the world, Ambassador István Lakatos spent nearly two decades at the Commission and then at the Human Rights Council in Geneva, including a decade as the human rights ambassador of his country, Hungary. His extensive knowledge of procedures, as well as informal negotiations, his vast culture, and his passion have allowed him to closely study the debate on human and women’s rights, and their common aspiration to live a life worth living, respect one another, and recognize that all human beings have similar aspirations, whether they be foreigners, migrants, or refugees, or in any way different. In this undertaking, Ambassador Lakatos has turned to the great religions, philosophies, or ideologies that animate human beings and inspire them to search in each one for the “irreducible human” and the diverse foundations of the universal from its identity, or rather its identities. From these diverse sources, he showcases the universal willingness to free oneself from oppression. Oppression is not compatible with human solidarity and fraternity. He found in the passage from the Commission on Human Rights to the Human Rights Council an array of methods and ways to achieve this goal.

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More concerned with consensus, more creative in its procedures, more egalitarian in the treatment of states large and small, more inclusive in the mandates of the special procedures and commissions of inquiry, and above all through the universal periodic review mechanism, the Human Rights Council has marked a new era. It has not, however, put an end to the indignity of the treatment of victims of human rights violations. However, a transparent study of alliances, coalitions, positions, and their evolution has allowed Ambassador Lakatos to expose the main confrontation: that between states that are not very concerned about human rights and protection for all, both within and outside their borders, and states that, despite real contradictions, are trying to achieve this. Upon closer inspection, the development of national and regional systems of human rights protection, the massive ratification of the main international human rights conventions, the countless cross-border challenges, the slow, too slow, but irresistible implementation of civil, political, economic, and social rights by organizations that were not explicitly designed to do so, show the desire to ensure that no culture or national sovereignty can prevent the progressive universalization of human rights. Who expected the Court of Justice of the Economic Community of West African States or the West African Economic and Monetary Union to play the role of a supranational bulwark in the protection of rights and freedoms and in the fight against impunity? The progressive abolition of the death penalty, the halting of executions, and the relative improvement of conditions of detention thanks to national mechanisms for the protection of human rights and for the prevention of torture working in concert with the members of an international committee create a sense of optimism. At times one wonders whether human rights diplomacy is failing to bring about universal progress, which has put human rights within the reach of sanctions, and therefore within the reach of effective enjoyment, or at least hope for the victims of violations. However, it is not only in the Human Rights Council but also in every region of the world that the universal aspiration for human dignity, which palpitates in the heart of each person, is being fostered, and amplified by mass media, civil society organizations, and the Internet.

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The reading of Ambassador Istvan Lakatos’s book sheds light on the foundations and meanders of the common path that has taken us from the ancient Roman proverb that “man is a wolf to man” to the Wolof adage that “man is man’s medicine”. Dakar, Senegal

Bacre Waly Ndiaye

Bacre Waly Ndiaye Barrister at Law, President of the Team of the UN Experts on the human rights situation in Kasai (RDC), former Special Rapporteur on extrajudicial executions, former Director of the New York Office, former Director of the Treaties, Human Rights Council and Research Divisions at OHCHR.

Acknowledgements

This project would not have been possible without the generous help and encouragement I received from many friends and colleagues. As this book is based on my Ph.D. thesis, first of all, I would like to express my gratitude to the Supervisor of my research, Gábor Kardos, who provided excellent guidance for finishing this study. I owe special debts of gratitude to my two opponents, Erzsébet Kaponyi and Tamás Ádány for their useful comments and suggestions regarding the structure of the project and its chapters. I am particularly grateful to Mary Murphy whose editing work was invaluable in getting this project in shape; her detailed comments often helped me avoid common mistakes and find good solutions. Many colleagues and friends offered thoughtful comments on earlier drafts, and in this context, I would like to highlight the great influence of Ambassador András Dékány, whose critical comments widened my perspective and thereby enriched the whole study. Sadly, Ambassador Dékány is no longer with us; I dedicate my book to his memory. I am grateful to my good friends and colleagues Péter Bajtay, Zoltán Farkas, Imre Herczegh, Anjet Lanting, Péter Mocsáry, Thomas Peak, György Tatár, Zoltán Taubner, and Ellen van Thiel, for taking the time to read the early drafts of several chapters and providing excellent comments. Many thanks also go to Hungarian international law professors and research fellows Tamás Hoffmann, Gábor Kajtár, Péter Kovács, Boldizsár Nagy, and Pál Sonnevend, whose constructive

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ACKNOWLEDGEMENTS

suggestions during the working debate on my research certainly enhanced the quality of this work. I am especially indebted to Erzsébet N. Rózsa; her sensitive remarks were vital regarding the chapters dealing with the human rights diplomacy of Muslim states and of the Asian Pacific region. I was deeply touched by the prompt responses from several colleagues who were willing to prepare a short review of this work, namely Andrea Bartoli, President of the Sant’Egidio Foundation for Peace and Dialogue and CORE Fellow at Seton Hall University; Reed Brody, Senior Counsel of Human Rights Watch; Gianni Buquicchio, President of the Venice Commission; Collen Diane, Senior Foreign Affairs Officer of the Ministry of International Affairs and Cooperation of the Republic of Botswana and former member of the Delegation of Botswana to the HRC; Javed Faizal, Additional Secretary (Deputy Minister) of the Ministry of Foreign Affairs of the Republic of Maldives, former member of the delegation of the Maldives to the HRC; Zorica Mari´c-Ðord-evi´c, former Ambassador of Montenegro to the Human Rights Council and WTO; Bacre Waly Ndiaye, President of the Team of the UN Experts on the human rights situation in Kasai (DRC), former Special Rapporteur on extrajudicial executions, former Director of the New York Office, and former Director of the Treaties, Human Rights Council and Research Divisions at OHCHR; James C. O’Shea, member of Ireland’s HRC delegation in the period of 2013–2015; Ambassador Dianela Pi, former member of the delegation of Uruguay to the UN Human Rights Council; and Ambassador Irina Schoulgin Nyoni, Deputy Director-General, Head of Africa Department Ministry for Foreign Affairs of Sweden and also former member of the Swedish HRC delegation. I am especially grateful to my colleagues in the Ministry of Justice, Human and Minority Rights of Montenegro, and in particular to Bijondina Kim Mehmedi, Maja Jovi´c, Tatjana Radulovi´c And-eli´c, and Hajdana Simovi´c, whose moral and logistical support was essential during the preparation of this project. I dedicate this project to my family, namely to my wife Rita; my children Eszter, Dániel, and Márk; and to my sister Ágnes. Without their constant encouragement, this book would have never been concluded. The opinions expressed herein are strictly personal and do not necessarily reflect the position of the Hungarian Ministry of Foreign Affairs and Trade.

Praise for Comparative Human Rights Diplomacy

“It is a special value of his work that it also pays special attention to the relevant historical, religious, cultural, and political backgrounds which shaped the human rights diplomacy of the given regions. His more than two decades of multilateral human rights diplomacy experience is well seen in the precise analytical approach Ambassador Lakatos follows during the entire book, providing insights for those who are interested in the ‘secrets’ of multilateral diplomacy. The book not just offers an intellectually stimulating comparison of the human rights priorities and approaches of the five selected regional/cultural/political groups of states but also gives an interesting overview about the development of international human rights diplomacy, the universalism vs. cultural relativism debate, and the work of the UN Human Rights Council. Ambassador Lakatos concludes this research with an optimistic note arguing that the religious and cultural norms of all important civilizations/cultures/religions can be reconciled, within certain limits, with the international human rights standards, but with the warning that neither radical universalism nor radical cultural relativism serves the cause of the universal acceptance of human rights. The work of Ambassador Lakatos is an essential reading for scholars, students, policy analysts, experts, or government officials dealing with human rights diplomacy or just interested in international relations or in public international law.” —Gianni Buquicchio, President of the Venice Commission xi

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“István Lakatos traces the history of human rights diplomacy since the founding of the United Nations through the Cold War and explodes the myth that the Human Rights Council and other international institutions have become platforms for a ‘clash of civilizations’, a confrontation of monolithic regional and religious groupings. Rather, drawing on his decades as a participant and observer of human rights diplomacy, and a rigorous analysis of bloc behaviour and Human Rights Council votes – issue by issue, country by country – he reveals that the dividing lines are not between civilizations and traditions, for within each group are governments which champion a strong global human rights regime and those which seek to undermine it. Lakatos demonstrates that government claims of ‘cultural particularities’ and ‘traditional values’ in reality most often seek to mask the suppression of rights at home. Ruling elites who abuse rights to maintain their grip on power fear a strong international system which could endanger their position. Lakatos concludes optimistically that the slow but inexorable democratization process worldwide will lead to more states which respect rights at the national level who will in turn strengthen the global enforcement system.” —Reed Brody, Senior Counsel, Human Rights Watch “This text by István Lakatos covers an important gap: the analysis of actual groupings that have claimed specificity against universality. The methodology is simple and convincing: it focuses on the human rights diplomacy of the five regional/cultural/political groups (sub-Saharan African states, Asian states, Muslim states, the European Union (EU), and Latin American and Caribbean States), which contributes significantly to the debate. Lakatos work also takes seriously the role of the UN Human Rights Council (HRC), the most important universal human rights body of today, replacing the UN Commission on Human Rights (CHR) 60 years after its establishment. His analysis hones in on three 2017 sessions of the HRC which are studied in detail and very fruitfully. The nuances and dynamism that emerge in all regions can be detected by the careful examination of the documentation available. Of particular relevance is the articulation of individual states in relation to their group. It must be noted in this context that the general dynamism should not be understood as one way but rather as a dialogical exchange through which the very universality of human rights is more precisely understood. The insistence of the African group on the right to development is not just a political position: it is an

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invitation to reconsider the shared responsibility of the world in which we are living. Human rights cannot be a European elitist project: it must be truly universal to be fully successful. The study by Dr. István Lakatos is an essential contribution to that process. My reading is that the text will be very helpful to researchers, scholars, and students of diplomacy, international law, and human rights as well as the sociology of institutions, and experts on multilateralism.” —Dr. Andrea Bartoli, President, Sant’Egidio Foundation for Peace and Dialogue CORE Fellow—Seton Hall University “In a messy, shrinking world in which little is black and white, István Lakatos establishes a framework for the role of human rights in international politics and foreign relations. A former Ambassador of Hungary to the Human Rights Council and master of the tools of the United Nations, the world’s preeminent multilateral institution, Lakatos examines the record of individual nations and regional alliances during the past 75 years. Lakatos also provides an expert, comprehensive study and analysis of the European Union’s thus-far successful efforts to expand the functioning of the Human Rights Council by defining the terms of its role and mandate, and by strengthening cooperation within regional blocs. Each chapter of Lakatos’s study evidences shrewd analysis, profound understanding, and clear guidance and other conclusions on how the United Nations, its institutions, and its member states can meet the body’s Charter’s obligation to ‘uphold the highest standards in the protecting and promoting of human rights’. With an unerring emphasis on the tangible and potential effects of the Council’s work, this study instantly serves as essential reading for scholars, policy analysts and experts, and government officials addressing vital issues facing the Union Nations, the European Union, and other institutions and governments in the critical years ahead.” —Zorica Maric Djordjevic, former Ambassador of Montenegro to the Human Rights Council and WTO “The book by Dr. István Lakatos on the inner workings of human rights diplomacy, specifically the UN Human Rights Council, and the contemporary issues that arise within the practice of diplomacy touches upon significant challenges and perspectives in relation to the ongoing cultural relativism versus universalism debate. It is these inner workings

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that require pertinent observation and participation, which without being present in the room would render meaningful insight impossible. This is where Dr. Lakatos’s experience in the field, and his presence on the ground add a critical element to the context presented in his argument. This work by Dr. Lakatos is an important contribution to the work of diplomatic practitioners, academics, and other policymakers, and invaluable to those keen to get a perspective of how countries behave within the realm of international relations, in balancing the need to address genuine human rights concerns from a global perspective, while at the same time allowing time and space domestically to nurture the presented values. It is equally important to note that there is a less of a correlation between what is presented to the global audience, and the real happenings domestically in these countries. It is nevertheless an important insight into how human rights standards could be further enhanced through a platform such as the UN Human Rights Council, which has by far and large been a beneficial source for countries interested in furthering their human rights obligations, and its implementation. The book is a comprehensive guide, a thrilling perspective, and a valuable insight into some of the ideas and debates on human rights diplomacy that takes place behind closed doors.” —Javed Faizal, Additional Secretary (Deputy Minister), Ministry of Foreign Affairs, Republic of Maldives “Having been able to take part in the UN negotiations that led to the creation of the Human Rights Council and afterwards having been part of the diplomatic team of the Permanent Mission of Uruguay to the UN in Geneva, Dr. Lakatos’s work has been of particular interest to me. I just could not stop reading it! This book allows us to go deep inside the work of the Human Rights Council what should be of particular interest for those that haven’t had the chance to work at the this body. At the same time, for those like me who had the opportunity to be part of the main UN human right body, Dr. Lakatos’s work bring us back to those wonderful times and reminds us that despite our differences and our different political interests we have indeed a platform for cross-regional cooperation and that our work hasn’t been in vain. We have created an incredible tool for the protection and

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promotion of human rights and we have to use it effectively and efficiently in order to get results on the ground. I encourage everybody to go through this work and take their own conclusions!!” —Ambassador Dianela Pi, former member of the delegation of Uruguay to the UN Human Rights Council “Can the implementation of human rights be strengthened, and given a better chance of success nationally, if the dialogue and debate was broadened to how the social and cultural practices relate to the norms of human rights? How can we better understand the positions on respect for cultural traditions or religious considerations as being in contradiction to the promotion and protection of human rights? This book offers welcome guidance and clarity on many of these questions. Protection and promotion of human rights are not just about adhering to international conventions and instruments, it has foreign policy at its core. And not just international relations but even more so as a question of political survival to many political leaders and governments. As a diplomat negotiating at the UN Human Rights Council, that becomes clear rather fast. Reading the book by Dr. Lakatos, you get a comprehensive and well-founded understanding of it. By sharing his experience and research, Dr. Lakatos explains the link between standpoints in the HRC on international human rights and national political interests (even survival). He has mapped, and clearly illustrated, how the priorities and dynamics within the significant groupings in the HRC plays out and influence the negotiations, debates and outcomes. Dr. Lakatos also illustrate possible constructive ways of strengthening the cross-regional collaboration and, by doing so, the human rights agenda. With the help of Dr. Lakatos research, the necessary informed dialogue has a much better chance of taking place and succeeding. With this deeper comprehension of motives and points of departure, the findings of the book offer important guidance to diplomats and practitioners in the field of human rights. I highly recommend it.” —Irina Schoulgin Nyoni, Ambassador, Deputy Director-General, Head of Africa Department, former member of the Swedish HRC Delegation, Ministry for Foreign Affairs of Sweden

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“This is a masterly treatment of how human rights diplomacy is conducted in practice, and the factors influencing the behaviour of states and other actors in the field of human rights. The author provides us with a comprehensive overview of the background and evolution of human rights concepts in different cultures and regions of the world, and their treatment in the system of international relations up to the present day. Drawing on his experience of more than a quarter of a century as a practitioner and close observer of human rights diplomacy in action, he gives us some useful reminders of facts which tend sometimes to escape our notice when focusing on one particular issue or moment in time. The concepts, often considered as competing ones, of cultural relativism and universalism, and their impact on the promotion and protection of human rights at the national and international levels, are explored in detail. The author demonstrates that excessive espousal of either view does not contribute to improving the human rights situation in the world. Based on a detailed review, the author argues that ‘all of the main cultures and civilizations can be reconciled with the accepted international human rights standards and therefore most of the references to cultural particularities only serve the political purposes of the elite to justify their poor human rights records.’ He suggests that there is an urgent need for further intercultural dialogue on the question of universalism vs. cultural relativism, and that ‘the UN could play an important role in organizing this discussion, aiming at a cultural transformation that can contribute to the enhanced cultural acceptance of internationally recognized human rights norms and to the strengthening of the universality of global human rights standards.’ While acknowledging and examining in detail several issues that have proven divisive among the membership of the Human Rights Council in recent years, the author also draws attention to more positive developments, which generally do not attract the same amount of attention. Chief among these is the level of cooperation on human rights issues between countries from different regions and cultures in pursuit of common goals. This leads him to observe that ‘The key to success in light of the composition of the HRC is cross-regional cooperation, overstepping cultural differences, and fighting cultural relativism for the betterment of the human rights situation of the world.’” —James C. O’Shea, diplomat, member of Ireland’s HRC delegation 2013–2015

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xvii

“This book presents a very interesting aspect of the debates in the Human Rights Council across its various mechanisms amid cultural relativism and universality of human rights. Dr. Lakatos puts forward the perspective of a regional bloc or grouping’s undertaking on the promotion and protection of human rights; it comes out clear that culture has influenced how countries, particularly members of the Human Rights Council, engage on issues concerning humanity. Within the internationally accepted human rights norms and standards, in between remains the issue of how member states look at human rights from a cultural/traditional or societal standpoint. Many debates on the universality of human rights remain skewed by the geographical and traditional principles of countries. As clearly stated in this book, groupings like the African Group and GRULAC remain divided on certain human rights norms. Some vote on the principles of universality, while some, understandably so, take a cultural perspective. What the book also clearly puts across is the question of how human rights diplomacy thrives in the middle of such debates. With the consideration of aspects of policies and programmes on human rights adopted by countries, there is a growing concern about priorities developing countries who are members of the Human Rights Council would be faced with, a task of pronouncing themselves on issues presented by other regional groupings. This is a well theoretically researched book on both cultural relativism and brings out issues that deserve to be looked at in advancing universal human rights protection.” —Collen Diane, Senior Foreign Affairs Officer, Ministry of International Affairs and Cooperation of the Republic of Botswana

Contents

1

Introduction

2

From the Historical Legacy of the United Nations Commission on Human Rights Until the Comprehensive Assessment of the United Nations Human Rights Council 2.1 Introduction 2.2 United Nations Commission on Human Rights 2.3 Main Factors Leading to the Replacement of the Commission on Human Rights 2.4 United Nations Human Rights Council 2.4.1 Establishment of the United Nations Human Rights Council and Its Comparison with the Commission on Human Rights 2.4.2 Main Institutions and Features of the Human Rights Council 2.4.3 Assessment of the Work of the Human Rights Council 2.5 Conclusion

1

15 16 16 19 22

22 23 47 50

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3

CONTENTS

The Internal and External Human Rights Diplomacy of the European Union the Economic Giant Became a Decisive International Human Rights Actor? 3.1 The Internal Human Rights Diplomacy of the European Union 3.1.1 Introduction 3.1.2 The Religious and Historical Roots of Modern Human Rights in Europe 3.1.3 “Conservative Human Rights Revolution” and the Establishment of the Council of Europe 3.1.4 The Geopolitical Factors Inspired the Creation of the European Union 3.1.5 Major Steps in Development Leading to the Enhanced Role of Human Rights Within the European Union Internal Policy 3.1.6 Present Tools and Sources of European Union Internal Human Rights Diplomacy 3.1.7 Role of the Different Actors Within the Present Internal Fundamental Rights Protection System of the European Union 3.1.8 Possible Future Tools to Address Fundamental Rights Violations in Member States 3.2 External Human Rights Diplomacy of the European Union 3.2.1 Preliminary Dilemmas and Thoughts Serving as an Introduction 3.2.2 Historical Overview of the Pre-Lisbon Period 3.2.3 Changes Brought to the EU’s External Human Rights Policy by the Lisbon Treaty 3.2.4 Main Actors of the European Union Human Rights Diplomacy in the Post-Lisbon Period 3.2.5 Main Instruments and Tools of the European Union Human Rights Diplomacy in the Post-Lisbon Period 3.2.6 Role of the European Union at United Nations Human Rights Forums

55 56 56 57 59 63

64 69

79 87 94 94 96 97 98

102 107

CONTENTS

3.2.7

3.3 4

Main Sessions of the Human Rights Council in 2017 Conclusion

xxi

The Human Rights Diplomacy of the Latin American and Caribbean States in Light of the Challenges of Transitional Justice: Coping with the Shadows of the Past, Extreme Social Differences, and Poverty 4.1 Introduction 4.2 Cultural, Historical, and Religious Roots of Human Rights in Latin America 4.2.1 Latin America and the Caribbean in a Comparative Regional Context 4.2.2 A Short Overview of the History of Human Rights in Latin America and the Caribbean 4.2.3 Democratization in the Twentieth Century 4.2.4 Dealing with the Past 4.2.5 The Role Played by Washington in Latin America and the Caribbean 4.3 Development of the Inter-American System of Human Rights 4.3.1 First Attempts of Regional Cooperation 4.3.2 Organization of American States and the American Declaration on the Rights and Duties of Man 4.3.3 Inter-American Commission on Human Rights 4.3.4 American Convention on Human Rights and the Inter-American Court of Human Rights 4.3.5 Recent Human Rights Instruments of the Inter-American System 4.4 Latin American Human Rights Diplomacy at Multilateral Forums with Special Emphasis on the United Nations Human Rights Council 4.4.1 International Criminal Court 4.4.2 United Nations General Assembly and the Universal Declaration of Human Rights 4.4.3 UN Treaty Bodies

121 134

139 140 141 141 142 146 151 152 158 158

160 162

164 166

167 167

169 172

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CONTENTS

4.4.4

4.5 4.6 5

Main Sessions of the United Nations Human Rights Council in 2017 Recent Developments in the United Nations Human Rights Council Conclusion

Implementing Universal Human Rights Standards in and by Sub-Saharan African States in the Shade of Local Traditions 5.1 Introduction 5.2 A Short Overview of the History of Human Rights in Sub-Saharan Africa 5.2.1 Human Rights in Pre-colonial Africa 5.3 Human Rights Development in Contemporary Africa 5.4 Implementation of International Human Rights Standards Regarding Africa and by Africa in a Multilateral Context 5.4.1 International Criminal Court 5.4.2 Other Judicial Organs 5.4.3 United Nations General Assembly 5.5 United Nations Human Rights System 5.5.1 United Nations Treaty Bodies 5.5.2 United Nations Human Rights Council 5.6 Human Rights Policy of Sub-Saharan African States During the Regular Sessions of the United Nations Human Rights Council in 2017 5.6.1 Thirty-Fourth Session of the United Nation Human Rights Council (27 February–24 March 2017) 5.6.2 Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017) 5.6.3 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017) 5.7 Conclusions

173 183 185

189 189 191 191 203

209 209 212 213 214 214 215

217

217 221

224 228

CONTENTS

6

7

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Human Rights Diplomacy of Asia-Pacific States in the United Nations Human Rights Council in Light of the “Asian Values Debate” and Regional Human Rights Initiatives 6.1 Introduction 6.2 Cultural, Historical, and Religious Roots of Human Rights in Asia 6.2.1 Historical Context 6.2.2 Religions 6.3 Asian Values Debate 6.4 Regional Human Rights Initiatives 6.4.1 Possible Hurdles for an Asian Regional Human Rights System 6.4.2 Sub-Regional Arrangements in Asia 6.4.3 Regional Cooperation 6.5 Asian Human Rights Diplomacy at Multilateral Forums with Special Emphasis on the United Nations Human Rights Council 6.5.1 International Criminal Court 6.5.2 United Nations General Assembly 6.5.3 United Nations Human Rights Treaty Bodies 6.5.4 United Nations Human Rights Council 6.6 Main Sessions of the Human Rights Council in 2017 6.6.1 Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017) 6.6.2 Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017) 6.6.3 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017) 6.7 Conclusion

275 278

Human Rights Diplomacy of Muslim States at Multilateral Forums 7.1 Introduction 7.2 Islam and Human Rights 7.2.1 Historical Context 7.2.2 Sources of Islamic Law

281 281 282 282 289

231 231 233 233 237 244 251 251 254 260

260 260 264 265 266 268

268 272

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CONTENTS

7.2.3

7.3

7.4

7.5

7.6

7.7 8

Compatibility of Islam and International Human Rights Standards Regional/Identity-Based Organizations 7.3.1 League of Arab States 7.3.2 Organisation of Islamic Cooperation Islamic Human Rights Instruments 7.4.1 Universal Islamic Declaration of Human Rights (1981) 7.4.2 Cairo Declaration on Human Rights in Islam (1990) 7.4.3 Arab Charter on Human Rights (2004) Muslim Human Rights Diplomacy at Global Multilateral Forums 7.5.1 United Nations General Assembly 7.5.2 United Nations Human Rights Treaty Bodies 7.5.3 United Nations Human Rights Council Main Sessions of the Human Rights Council in 2017 7.6.1 Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017) 7.6.2 Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017) 7.6.3 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017) Conclusions

The United Nations Human Rights Council: A Platform for the Clash of Civilizations or a Forum of Cross-Regional Cooperation? 8.1 Bloc Voting at the United Nations Human Rights Council 8.2 Culturally Sensitive and Divisive Issues on the Agenda of the Human Rights Council 8.2.1 North–South Divisions in the 2017 Sessions of the Human Rights Council 8.2.2 Traditional Values 8.2.3 Protection of the Family 8.2.4 Sexual Orientation and Gender Identity

290 296 296 299 302 302 302 304 306 306 314 317 320

320 325

327 330

335 335 338 338 341 346 349

CONTENTS

8.3 8.4 8.5 8.6

8.2.5 Defamation of Religion Cross-Regional Cooperation Within the HRC Most Recent Developments in the Human Rights Council During the COVID-19 Pandemic Final Thoughts Conclusion

xxv

352 354 358 362 363

Bibliography

365

Index

399

About the Author

Dr. István Lakatos (1968) holds a law degree and a Ph.D. from Eötvös Loránd University, Budapest, and has passed the Bar. In addition, he has an M.A. in International Relations from the Budapest Institute for Graduate International and Diplomatic Studies. A career diplomat since 1993. He served two terms in Geneva (altogether 10 years) at the Hungarian xxvii

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ABOUT THE AUTHOR

UN Mission and as a deputy permanent observer of the Council of Europeto the UN Office in Geneva. He was one of the main initiators of the Budapest Centre for Genocide and Mass Atrocities Preventionand the Budapest Human Rights Forum. A former human rights ambassador, who was the first appointed with this title in 2008 in the whole region. He was an active participant of the EU–China, and the Hungary–China human rights dialogue. Dr. Lakatos was also a member of a small group of experts who drafted the resolution establishing the UN Forum on Minority Issuesand the one establishing the mandate of the Independent Expert on Minority Issues. He was also the main drafter of the Human Rights Council resolution 24/24 establishing the position of a UN-wide focal point on addressing reprisals against those cooperating with the UN. Ambassador Lakatos led the drafting of the Hungarian resolutions on the independence of the judiciary and on reprisals for many years. During the Hungarian EU Presidency he represented the EU position in the HRC review discussion and in EU initiatives like Burma/Myanmar, DPRK, Tunisia, and Syria. Presently, he is a Senior Adviser to the Ministry of Justice, Human and Minority Rights of Montenegro, helping the Government of Montenegro in their negotiations for EU accession with respect to human rights issues. Ambassador Lakatos is member of the Board of Trustees of the Foundation for the International Prevention of Genocide and Mass Atrocities, and also member of the Presidency of the Hungarian UN Association.

Abbreviations

AC ACHR ACWC AEC AFET AGA AHRC AICHR ALBA APCHR APEC APF APRM APT ARF ASCC ASEAN AU CAR CEDAW CELAC CFR CFSP

Advisory Committee Arab Charter on Human Rights ASEAN Commission on the Promotion and Protection of the Rights of Women and Children African Economic Community Committee on Foreign Affairs (After the French Affaires étrangères ) African Governance Architecture Arab Human Rights Committee ASEAN Intergovernmental Commission on Human Rights Alliance for the Peoples of Our America Arab Permanent Committee on Human Rights Asia-Pacific Economic Cooperation Asia-Pacific Forum African Peer Review Mechanism ASEAN Plus Three ASEAN Regional Forum ASEAN Socio-Cultural Community Association of South East Asian Nations African Union Central African Republic Convention on the Elimination of all Forms of Discrimination Against Women Community of Latin American and Caribbean States Charter of Fundamental Rights of the European Union Common Foreign and Security Policy xxix

xxx

ABBREVIATIONS

CHR CJEU CoE COHOM Cominform COREPER CRC CRPD CVM DEVE DPRK DRC DRF DROI EC ECHR

ECJ ECtHR EEA EEAS EEC EEG EFTA EMRIP EU EUDEL FDI FEMM FGM FRA FREMP FYROM GDP GRULAC HLTF HOM HRC HRD

Commission on Human Rights Court of Justice of the European Union Council of Europe Working Party on Human Rights Information Bureau of the Communist and Workers’ Parties Comité des représentants permanents (Committee of Permanent Representatives in the European Union) Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Cooperation and Verification Mechanism Committee on Development Democratic People’s Republic of Korea Democratic Republic of the Congo Democracy, the Rule of Law, and Fundamental Rights Subcommittee on Human Rights (After the French Droits de l’Homme) European Community European Convention on Human Rights (Formally the Convention for the Protection of Human Rights and Fundamental Freedoms) European Court of Justice European Court of Human Rights European Economic Area European External Action Service European Economic Community Eastern European Group European Free Trade Association Expert Mechanism on the Rights of Indigenous Peoples European Union European Union Delegation Foreign Direct Investment Committee on Women’s Rights and Gender Equality Female Genital Mutilation Fundamental Rights Agency Working Party on Fundamental Rights, Citizens’ Rights and Free Movement of Persons Former Yugoslav Republic of Macedonia Gross Domestic Product Group of Latin American and Caribbean States High-Level Task Force Head of Mission UN Human Rights Council Human Rights Defender

ABBREVIATIONS

ICC ICCPR ICERD ICESCR ICTR ILO INTA ISIL JUSCANZ LAS LIBE LMG MENA NAM NEPAD NGO NHRI OAS OAU OHCHR OIC OPT OSAA PIF R2P SAARC SOGI TEU TFEU TOR UAE UDHR UIDHR UN UNAOC UNCAT UNESCAP UNGA UPR URG

xxxi

International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Criminal Tribunal for Rwanda International Labour Organization Committee on International Trade Islamic State of Iraq and the Levant Japan, the United States, Canada, Australia and New Zealand League of Arab States (Arab League) Committee on Civil Liberties, Justice and Home Affairs Like-Minded Group Middle East and North Africa Non-Aligned Movement New Partnership for Africa’s Development Non-Governmental Organization National Human Rights Institution Organization of American States Organization of African Unity Office of the UN High Commissioner for Human Rights Organisation of Islamic Cooperation (Formerly the Organisation of the Islamic Conference) Occupied Palestinian Territories Office of the Special Adviser on Africa Pacific Islands Forum Responsibility to Protect South Asian Association for Regional Cooperation Sexual Orientation and Gender Identity Treaty on European Union Treaty on the Functioning of the European Union Terms of Reference United Arab Emirates Universal Declaration of Human Rights Universal Islamic Declaration of Human Rights United Nations United Nations Alliance of Civilizations United Nations Convention Against Torture United Nations Economic and Social Commission for the Asia and the Pacific United Nations General Assembly Universal Periodic Review Universal Rights Group

xxxii USSR WEOG WWI WWII

ABBREVIATIONS

Union of Soviet Socialist Republics Western European and Others Group World War I World War II

CHAPTER 1

Introduction

The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for who the distinction between fact and fiction and the distinction between true and false no longer exist.

Hannah Arendt German-American philosopher and political theorist1 As will be elaborated in more detail in Chapter 3, the first references to the rights and duties of people can be found in written sources like the Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Koran, or the Analects of Confucius,2 which came into existence outside of Europe. However, most experts consider the creation of the modern notion of human rights a mainly European project. In this context, they usually refer to documents like the Magna Carta of 1215, the Petition of Right of 1628, the Habeas Corpus Act of 1679, the first English Bill of Rights of 1689, or the French Declaration on the Rights of Man and the Citizen of 1789. It is worth referring to Jack Donnelly who emphasized that although human rights first developed in the West, this 1 Arendt, H. (1951). The Origins of Totalitarianism. San Diego, CA, USA: Harcourt. p. 474. 2 Flowers, N. (ed). (n.d.). A Short History of Human Rights, Part 1: Human Rights Fundamentals. http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part1/short-history.htm.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6_1

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was not because of any particular features of Western culture, which is today a result and not a cause of human rights ideas and practices.3 In his view, no culture is by nature either compatible or incompatible with human rights4 ; they can be legitimately applied to non-Western societies, too,5 as they can be as effective as or even more effective than either traditional approaches or modern non-human-rights strategies.6 The operation of a capitalist model required a certain system of rights and liberties, resulting in a transformation of social structures. This new development, through the appearance of social welfare rights, equal rights for women and minorities, and religious tolerance, was as alien to the West at that time as it is nowadays to certain developing countries. This parallel shows that certain differences between the West and the Rest can be explained by socio-economic factors. The adoption of the United Nations (UN) Charter and the Universal Declaration of Human Rights (UDHR) brought quality changes to the international protection of human rights. The horrors of World War II and the Holocaust made it very clear that the policy of absolute sovereignty could not continue, and the cause of human rights could not remain the exclusive subject of domestic political considerations. During the Cold War period, a significant standards-setting process took place under the auspices of the UN Commission on Human Rights (CHR). In the past 70 years, we have witnessed not just the gradual development of national constitutional and legal protection systems regarding human rights and fundamental freedoms, but the establishment of universal and regional organizations, institutions, and mechanisms aimed at the promotion and protection of human rights. Human rights diplomacy has gone through substantial changes since the end of the Cold War, not just in acceptance, but in means and participants. Despite the permanent tension that exists between the principle of sovereignty and respect for human rights, human rights issues have become an integral part of a state’s foreign policy. The obvious consequence of the collapse of the Berlin Wall was the replacement of the 3 Donnelly, J. (2013). Universal Human Rights in Theory and Practice. 3rd ed. Ithaca, NY: Cornell University Press. pp. 106–107. 4 Ibid., p. 107. 5 Bayalama, S. (1993). Universal Human Rights and Cultural Relativism. Scandinavian

Journal of Development Alternatives, 12(2,3):131. 6 Ibid., p. 132.

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3

East–West confrontation by conflicts in North–South relations. The political changes at the end of the 1980s made the differences between the European approach to human rights and that of the USA more visible. In the post-Cold War period, although states remained the most important players in shaping the human rights diplomacy of the international community, new actors appeared, such as civil society and the business community. The role of international organizations has increased since the 1990s, as for many states they proved to be much more suitable forums, for both political and economic reasons, to highlight human rights concerns regarding third countries. The establishment of the position of the UN High Commissioner for Human Rights provided a new quality in the international fight against human rights violations. Human rights NGOs have become one of the most important sources of information regarding the human rights situation in the world, while big multinational companies are more and more involved in human rights debates, by realizing their corporate social responsibility in this field. The use of the different means of human rights diplomacy, starting with diplomatic steps, through economic sanctions to the use of military measures very much depends not only on the human rights problems of a given state, but on realpolitik considerations, like the size, and the economic and military power of the given country, not forgetting bilateral diplomatic and trade relations as well. Addressing the new human rights challenges of our globalized age is vital for international human rights diplomacy to remain relevant in the future. Despite all the controversies around human rights diplomacy, it has become an important reference point in international relations, having a strong legitimizing power. Not surprisingly, according to research based on data collected during the period 1976–2002, regimes with negative human rights records are signing and ratifying international human rights treaties at similar rates to pro-human-rights governments, giving the low-cost legitimizing power of ratification in the absence of an effective implementation and monitoring system.7 Consequently, the international community should focus on strengthening these mechanisms to make human rights diplomacy more efficient. The power of human rights is also well demonstrated by the fact that many governments are trying to manipulate international human rights diplomacy, by allowing their public 7 Hafner-Burton, E. M., Tsutsui, K. & Meyer, J. W. (2008). International Human Rights Law and the Politics of Legitimation. International Sociology, 23(1):115.

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to hear criticisms of them only from rival powers and not from neutral or friendly states or organizations.8 As noted by Pease: “Human rights and humanitarian diplomacy is not about reaching some Western European social ideal about the relationship of the state to its citizens, but rather constructing a home where everyone can comfortably live while preserving human dignity and respecting cultural differences”.9 In order to put the human rights diplomacy of the five selected groups into context, it is worth to address briefly the universalism versus cultural relativism debate. The proponents of universality are of the view that the human rights guaranteed in international treaties and conventions should be applied in all countries, and that they must prevail even when they conflict with established cultural or religious practices.10 This notion is based on the equality, indivisibility, and universality of all human rights. According to Shestack, “modern universalist theories of human rights can be based on natural law, justice, reaction to injustice, dignity, and equality of respect and concern”.11 As was correctly pointed out by Michael Freeman, universality cannot be confused with conformity, as universality promotes diversity by protecting cultural freedom.12 Universalists firmly believe that human rights and fundamental freedoms are inherent in the nature and dignity of each human being and that there should be a set of basic ethical standards and principles, acceptable to all cultures, religions, and political systems.13 In their view, humanity, or some particular facet of human nature, is the only source of rights; 8 Gruffydd-Jones, J. J. (2019). Citizens and Condemnation: Strategic Uses of International Human Rights Pressure in Authoritarian States. Comparative Political Studies, 52(4):589. 9 Pease, K.-K. (2016). Human Rights and Humanitarian Diplomacy. Manchester, UK: Manchester University Press. p. 180. 10 Musalo, K. (2015). When Rights and Cultures Collide. Santa Clara, CA: Markkula Center for Applied Ethics, Santa Clara University. p. 2. https://www.scu.edu/ethics/eth ics-resources/ethical-decision-making/when-rights-and-cultures-collide/. 11 Cited in Goodhart, M. E. (2003). Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization. Human Rights Quarterly, 25(4):940. 12 Freeman, M. (2010). Human Rights. Cambridge, UK: Polity Press. p. 132. 13 Sybesma-Knol, N. (2013). The United Nations System for the Protection of Human

Rights: What Is Happening to the Principle of Universality? In: A. Alen, V. Joosten, R. Leysen, & W. Verrijdt (eds), Liberae Cogitationes. Liber Amicorum Marc Bossuyt. Cambridge, UK: Intersentia. p. 703.

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5

therefore, cultures are irrelevant concerning the validity of moral rights and rules.14 This is, however, the view of the proponents of radical universalism—as it is called by Donnelly—which implies a certain method of cultural imperialism. Radical universalism completely denies national or subnational ethical autonomy and self-determination by giving an absolute priority to the demands of the cosmopolitan moral community over all other moral communities.15 Donnelly found that radical universalism could not be maintained, as certain moral communities deserve respect from the outside world. In parallel with the universalization of international human rights standards, there are tendencies, of altering intensity, to challenge this universality based on cultural differences. Radical cultural relativism may provide grounds for misusing the concept in the interests of veiling human rights violations; however, by totally neglecting cultural particularities in the implementation of international human rights standards, radical universalism is not serving the universal acceptance of human rights in the long run. Leaders misusing the notion of cultural relativism often refer to communal or collective traditions to justify human rights violations or to subordinate everyone to the interests of the ruling party.16 However, collective or communitarian ideologies are not always hostile to human rights, and the respect for the rights of the individual does not automatically mean the neglect of families or the larger community. In the view of cultural relativists, there are no absolute values or principles upon which any culture or society could be judged, apart from those of the given culture, so no moral judgement is universally valid.17 Consequently, if a human right is not indigenous to a particular culture, its

14 Bayalama, S. (1993). Universal Human Rights and Cultural Relativism. Scandinavian Journal of Development Alternatives, 12(2,3):132. 15 Donnelly, J. (1984). Cultural Relativism and Universal Human Rights. Human

Rights Quarterly, 6(4):402. 16 Müllerson, R. (1997). Human Rights Diplomacy. Abingdon, UK: Routledge. pp. 84–

85. 17 Goodhart, M. E. (2003). Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization. Human Rights Quarterly, 25(4):939.

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validity and applicability are questionable. Cultural relativism is often criticized as it is rejecting the comparative method of research and therefore rendering the search for cross-cultural universals meaningless.18 If cultural relativists adopted the position that human rights are based on human nature and human nature is universal, it would be difficult to explain how human rights could be relative in any way.19 The solution offered by cultural relativists is that, in their view, human nature is relative in certain aspects. The cultural variability of human nature, therefore, requires the allowance for cross-cultural variations in human rights. The accelerating process of globalization makes the comparative exploration of the question of cultural relativism even more necessary, to clarify several misconceptions regarding the topic, which are spreading in light of increasingly intense intercultural or cross-civilizational interactions. In our globalized world—due to increasing migration trends—people belonging to different cultures often live side by side, and in many instances, this coexistence results in conflicts regarding the prevailing human rights norms to be implemented. We have to separate those deviations in the implementation of international human rights standards which are related to cultural, historical, or religious differences from those references to cultural traditions which are intended to justify human rights violations by political leaders.20 It is important to understand that the conflicts between universalism and cultural relativism can have positive effects as well.21 They are opposite sides of the same coin and can reinforce each other. Human rights advocates can benefit from the cultural sensitivity of cultural relativism when they are developing their human rights campaigns in a specific cultural context, avoiding negative reactions from the host society.22 On the other hand, human rights experts can contribute to the development of a culture, making it more adaptive to international human rights standards by helping to reconcile traditional practices with them. As was so 18 Dundes Renteln, A. (1990). International Human Rights: Universalism Versus Relativism. New York, NY: Sage. p. 78. 19 Donnelly, J. (1984). Cultural Relativism and Universal Human Rights. Human Rights Quarterly, 6(4):403. 20 Müllerson, R. (1997). Human Rights Diplomacy. Abingdon, UK: Routledge. p. 83. 21 Le, N. (2016). Are Human Rights Universal or Culturally Relative? Peace Review:

A Journal of Social Justice, 28:209. 22 Ibid., p. 209.

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7

eloquently stated by Kofi Annan: “No single model of human rights, Western or other, represents a blueprint for all states […]”.23 As was put by Rein Müllerson: “The most important human rights, and gross and massive violations of them, are not culturally conditioned”.24 Their forms may vary according to different cultural practices, but their content is culturally irrelevant. Moreover, universal human rights standards are not rigid rules, so their interpretation and application can vary depending on the different cultural norms and traditions. The reconciliation of local and international norms is not always possible, but it is possible in many cases, especially because international norms are usually not as detailed as local ones. That is one of the reasons the practice of the so-called margin of appreciation25 doctrine was established by the European Court of Human Rights (ECtHR) to solve that kind of problem under its jurisdiction.26 It is important to see that international human rights norms, by contributing to the gradual eradication of inhuman traditional practices, are not undermining the cultural foundations of Asian or African societies, but making them more human.27 The cultural relativists’ position that human rights are not observed worldwide because they do not integrate non-Western concepts of dignity is not sustainable. The main elements and values of our present human rights system can be found in almost all cultures. Because of globalization, people face similar threats everywhere and human rights are still the best way to address them. Howard suggested an interesting model to reconcile cultural relativism and universalism. She supports national legislation permitting women to opt out of traditional practices in favour of universal values. Of course, in certain cases—for example, that only families can use community-owned 23 Ibid. 24 Müllerson, R. (1997). Human Rights Diplomacy. Abingdon, UK: Routledge. pp. 79–

80. 25 The national authorities of Contracting States to the Convention for the Protection of Human Rights and Fundamental Freedoms (now known as European Convention on Human Rights ‘ECHR’) are permitted a degree of latitude in respect of the manner in which they discharge their obligations under the Convention. This degree of freedom is referred to as the doctrine of the “margin of appreciation”. The doctrine plays a pivotal role in ensuring that the ECHR is workable throughout the Contracting States despite the varied differences found in the national systems of Contracting States. 26 Müllerson, R. (1997). Human Rights Diplomacy. Abingdon, UK: Routledge. p. 80. 27 Ibid., p. 84.

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lands—this reconciliation is not possible but in some cases it can be a solution.28 Alison Dundes Renteln suggested that despite all the differences among individuals, there are certain cross-cultural universal values, which are adopted by all societies and which can be used to legitimize universal moral standards.29 Marie-Benedicte Dembour proposes that we should take an intermediary position allowing local factors to be taken into account during the implementation of international human rights law.30 An-Na’im aimed to achieve the cultural legitimacy of international human rights norms. According to him, this can only be achieved if members of a given culture regard the norms to be validated and sanctioned by their own cultural norms, so there is a need for internal legitimation of international human rights law.31 His two-stage approach included an internal discussion within cultures and then a cross-regional dialogue. In conclusion, ideas about liberty, freedom, and human dignity are found in different cultures. The difference is that the market economy and the modern state were created first in the West, establishing the necessary conditions for the development and the realization of these ideas.32 The current discussion on cultural relativism is consequently between societies at different levels of social development. The international community is responsible for not substantially addressing the question of universality and the role of culture in the international human rights enterprise. There is an urgent need for further dialogue on these issues. This may trigger internal debates within cultures or societies where traditional practices prevail, practices that conflict with the international human rights obligations of the given state. The UN could play an important role—as the CoE did in 2008 by preparing a

28 Donnelly, J. (1984). Cultural Relativism and Universal Human Rights. Human Rights Quarterly, 6(4):418–419. 29 Patel, G. (2017). How “Universal” Is the United Nations’ Universal Periodic Review Process? An Examination of the Discussion Held on Polygamy. Human Rights Review, 18:465. 30 Ibid., p. 465. 31 Ibid. 32 Müllerson, R. (1997). Human Rights Diplomacy. Abingdon, UK: Routledge. pp. 96–

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White Paper on Intercultural Dialogue33 —in organizing this discussion aiming at a cultural transformation that can contribute to the enhanced cultural acceptance of internationally recognized human rights norms and the strengthening of the universality of global human rights standards. The United Nations Alliance of Civilizations (UNAOC) could be also used as one of the forums for discussion.34 It was also clear from the research into the consideration of women’s rights during the first two cycles of the UPR that real dialogue on culturally sensitive issues only started when states challenging a certain traditional practice in a given country were willing to accept its cultural relevance and not simply refer to a legal solution. Cultures are not closed entities with rigid borders. They can be developed or changed as a result of interaction with external effects or influence. This is, however, a much longer process than amending a law, but by involving internal forces, an organic inter-culturalization process can happen in a given society making these cultural changes sustainable; it would be the result of internal discussions and not enforced by external forces. There are three important books to be mentioned aimed at finding the correct answers to the new challenges of the post-Cold War era. The Clash of Civilizations and the Remaking of World Order by Samuel Huntington, Francis Fukuyama’s The End of History and the Last Man, and the one by John Mearsheimer entitled The Tragedy of Great Power Politics . The three concepts on the “clash of civilizations”, “the end of history”, and “the tragedy of Great Power Politics” managed to describe certain periods or events during the post-Cold War era. Fukuyama’s concept was useful in the 1990s, when everyone thought that by the collapse of the Soviet System, the liberal form of democracy is going to dominate the new world order, without any serious competitor. Huntington’s paradigm became popular by the outbreak of the Yugoslavian War, as a proof that civilizational identity is the main driving force in international relations. Finally, the Russian annexation of Crimea in 2014 and the hostilities between Russia and Ukraine contributed to the better 33 Council of Europe. (2008). Living Together as Equals in Dignity. White Paper on Intercultural Dialogue launched by the Council of Europe Ministers of Foreign Affairs at their 118th Ministerial Session (Strasbourg, 7 May 2008). https://www.coe.int/t/dg4/ intercultural/source/white%20paper_final_revised_en.pdf. 34 UNAOC homepage. https://www.unaoc.org/.

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acceptance of Mearsheimer’s thesis. However, none of them was able to provide a comprehensive explanation for the complexity of our contemporary international landscape. The history certainly did not end after the collapse of communism, and as we can see in many countries, the so-called illiberal democracy became the most popular catchphrase to describe the political philosophy of a given government. More and more researchers made it clear that civilizations cannot clash with each other, there can be confrontation only between people claiming to represent a certain civilization. Besides that, civilizations are not monolithic entities, there are serious dividing lines within them. They are in permanent contact with each other and most of their “clashes” are due to different state interests and not to civilizational differences. An interesting survey about the variation in tolerance in 23 Muslim-majority and Western countries also demonstrated that it was more the Islamic political regimes that have a negative effect on social tolerance and not the Islam itself.35 Lastly, despite the significant economic strengthening of China and the more and more “self-confident” foreign policy of Russia, we cannot say at this moment that any of them would become a new sole superpower, replacing the USA even in the medium term. According to the conviction of the author, the best way to overcome civilizational prejudices is education, aimed at fighting ignorance of other cultures. The “unknown” has frequently been considered a danger in the history of mankind. The international community should finally adopt—at the level of the individual citizens and not only in statements by politicians—human rights and democracy as universal values, which have roots and place in every culture, and recognize that there are no insurmountable cultural barriers preventing the peaceful cooperation of different peoples in our contemporary world. We have only one world, so our responsibility is exceptional. In a work addressing the human rights diplomacy of different regional, political, and religious groups of states, it seems important to clarify what we mean under human rights. According to the Office of the UN High Commissioner for Human Rights (OHCHR) definition: “Human rights are rights we have simply because we exist as human beings, they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, 35 Milligan, S., Andersen, R., & Brym, R. (2014). Assessing Variation in Tolerance in 23 Muslim-Majority and Western Countries. Canadian Review of Sociology, 51(3):239.

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national or ethnic origin, color, religion, language, or any other status”. This understanding puts the emphasis on the inherent nature of human rights, which exist independently from the will of a given state.36 The Council of Europe (CoE) provides a more poetic definition for human rights: “Human rights are like armour: they protect you; they are like rules, because they tell you how you can behave; and they are like judges, because you can appeal to them. They are abstract – like emotions; and like emotions, they belong to everyone and they exist no matter what happens. They are like nature because they can be violated; and like the spirit because they cannot be destroyed”.37 The common element of both definitions is that human rights exist by nature and not due to the goodwill of an authority. The same philosophical approach was expressed by János Kis, the Hungarian philosopher in his book entitled “Do we have human rights?”, which had been originally published in the 1980s as a samizdat publication. He expressed that the citizens were not receiving their fundamental rights from the state; we have human rights.38 Human Rights Watch offers yet another definition: “Human rights are the basic rights and freedoms to which everyone is entitled on the basis of their common humanity. They include civil and political rights, as well as economic, social, and cultural rights. Human rights are drawn from various cultures, religions and philosophies from around the world over many centuries. They are in force at all times and in all places. Human rights protect everyone equally without discrimination according to race, sex, religion, political opinion or other status”.39 This not just reinforces the “inherent nature” element of the previous two ones, but also emphasizes that human rights are based on the values of different cultures and civilizations. The ethnocentric use of human rights was emphasized by Willem Doise, who was of the view that “generally, concerns about these rights 36 OHCHR. (n.d.). What Are Human Rights? https://www.ohchr.org/en/issues/ pages/whatarehumanrights.aspx. 37 Council of Europe. (n.d.). What Are Human Rights? https://www.coe.int/en/web/ compass/what-are-human-rights. 38 Halmai, G. & Tóth, G. A. (2008). A Szerkeszt˝ ok El˝ oszava (Preface) In: G. Halmai & G. A. Tóth (eds), Emberi Jogok (Human Rights) Osiris. p. 21. 39 Human Right Watch. (2014). What Are Human Rights? https://www.hrw.org/ news/2014/09/15/what-are-human-rights.

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expressed by citizens of Western countries become much stronger when non-Western countries are involved, whereas violations of these rights in their own country are often not severely condemned”.40 It is clear that the notion of human rights is a highly controversial and sensitive concept around the world, given the fundamentally different understandings. In the course of this work, when reference is made to the “cause of human rights”, it should not be perceived as a Eurocentric approach, considering the European way of addressing human rights as the only valid solution. Under this terminology, I apply the spirit of the UDHR, which is based on the common values of all major cultures and civilizations. As was put by Charles Norchi: the Universal Declaration “represents a broader consensus on human dignity than any single culture or tradition”.41 The foundation for this book rests on the assumption that the religious and cultural norms of all major civilizations/cultures/regions can be reconciled, within certain limits, with the international human rights standards. Reference to cultural/religious particularities or regional specificities—with a few acknowledged exceptions—usually serves the political/power interests of the leaders of a given state to avoid the acceptance of and respect for universal human rights norms which may endanger the status quo, and thereby their position. As already mentioned, neither radical universalism nor radical cultural relativism serves the cause of the universal acceptance of human rights. In this context, the academic world is already taking a far more nuanced position than state practice, which is usually found at one of the two radical positions. The second, more specific hypothesis of the author is that there is more and more cross-cultural cooperation within the Human Rights Council (HRC), which is not seen by the general public, as the international media mainly covers those issues which are confrontational, and therefore, this news coverage paints a picture of a landscape where the clash of civilizations is ongoing and the human rights values of the different cultures

40 Doise, W. (2003). Human Rights: Common Meaning and Differences in Positioning. Psicologia: Teoria e Pesquisa, 19(3). https://doi.org/10.1590/S0102-377220030 00300002. 41 Cited in Ayton-Shenker, A. (1995). The Challenge of Human Rights and Cultural Diversity. United Nations Background Note, DPI/1627/HR-March. New York, NY: UN Department of Public Information. p. 2.

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and regions are irreconcilable. This project refutes this position based on detailed analyses of the work of the HRC. This work gives a comprehensive picture of the main priorities and characteristics of the human rights diplomacy of those regional/cultural/political groups which are the major actors in our contemporary world in this field. The five groups [the European Union (EU), Latin American and Caribbean States, sub-Saharan African states, Asian states, and Muslim states] chosen as the subject of this exploration are not identical to the regional groups working within the UN system [Western European and Others Group (WEOG), Group of Latin America and Caribbean (GRULAC), African Group, Asia–Pacific Group, EasternEuropean Group (EEG)] as certain groups, such as the EEG, cannot be considered as a separate entity in this context. In addition, while the states belonging to the Organisation of Islamic Cooperation (OIC) have many common elements in their human rights diplomacy, they can be found in three UN regional groups. As a result, sub-Saharan states are considered a separate grouping, while North African states are discussed as part of the group of Muslim states. The EU also forms a particular entity considering its active and sophisticated internal and external human rights diplomacy, even though its members belong to three regional groups within the UN system. Besides the group of sub-Saharan African states, the Asia–Pacific Group is where certain overlapping with the Muslim states could not be avoided as Asian Muslim states have certain features in their human rights diplomacy linking them to other Asian states, while others are similar to other Muslim states. The most appropriate forum to demonstrate the main features of the human rights politics of the five regions selected is the politically most important universal human rights body of today, the UN Human Rights Council (HRC), which, in 2006, replaced the Commission on Human Rights (CHR) established in 1946. The three 2017 sessions of the HRC are studied in detail; this was the last full year before the preparation of this work started, and therefore, all details were readily available. It was also the last year that the USA was still a member of the HRC. In 2018, on the decision of President Donald Trump, the US delegation resigned from the Council. (It was one of the first decisions by the Biden administration to re-join the HRC.) Several people may raise the question whether the sections dealing with the 2017-year sessions of the Human Rights Council will become obsolete in the short term. You should know that about 90% of the HRC resolutions are the same every year and even

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the content does not change much, so “unfortunately” the vast majority of the findings for 2017 will not lose their relevance by 2022. This book begins by a chapter giving an institutional overview of the work of the UN HRC, which is essential before addressing the human rights diplomacy of the five selected regional, political, and religious groups contained in the research. The sequence of the five groups is based on their size, starting with the smallest, the European Union (28 in 2017), followed by the Latin American and Caribbean States (33), sub-Saharan African states (46), Asian states (55), and ending by the largest group, the Muslim states (57). This order also provides a logic in the sense that the four geographical regional groups are followed by a grouping based on religious belief. The last chapter of the book is addressing the issue whether the HRC become the platform of cross-regional cooperation or of the clash of civilizations. It is my sincere hope that the achievement of the scientific aims of this present study, focusing on demonstrating the compatibility of major cultures and civilizations with universal human rights standards together with a studiously non-Eurocentric approach, will contribute to the better cognition of major civilizations and cultures and to the further development of the international literature aimed at strengthening the cross-cultural dialogue on human rights.

CHAPTER 2

From the Historical Legacy of the United Nations Commission on Human Rights Until the Comprehensive Assessment of the United Nations Human Rights Council

Most of the people in this room work for government or seek to affect the actions of government. That is politics. For some to accuse others of being political is a bit like fish criticising each other for being wet. Sergio Viera de Mello former UN High Commissioner for Human Rights1 The Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights

1 Commission’s structures are sound, problems can be surmounted, high commissioner says as main UN human rights body ends session, 25 April 2003. http://www.usp.br/ svm/textos/t-dh-07.php.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6_2

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but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole. Kofi A. Annan former Secretary-General of the United Nations2

2.1

Introduction

Very few international bodies or institutions received the amount of criticism as the Commission on Human Rights (CHR) did during its last period of work. These heavy criticisms annulled the enormous results achieved by the CHR since 1946 particularly during the not entirely human-rights-friendly conditions of the Cold War. This chapter intends to provide a fair and balanced portrait of the first universal human rights body of the world by explaining the reasons that led to its replacement by the Human Rights Council (HRC) in 2006. The third section of this part is devoted to the establishment of the HRC and the identification of the special features of this new intergovernmental human rights body. I intend to comprehensively assess the work of this new body, based on the present international political circumstances, and the further development of human rights law in light of new symptoms or tendencies to be found in our contemporary world. It is acknowledged, however, that the HRC is still a young institution under permanent changes and facing new challenges, which should be addressed by the main human rights body of the UN.

2.2

United Nations Commission on Human Rights

The CHR had a relatively weak mandate, reflecting the political considerations of UN member states. It was known by certain experts as a “moral talk shop”.3 During the first period of the CHR (1947–1967), the body was dominated by Western states and its focus was standardssetting. During this period, not one Chair of the CHR came from the

2 Annan, K. A. (2005). In Larger Freedom: Development, Security and Human Rights for All. Report of the Secretary-General of the United Nations. para 182. https://www. ohchr.org/Documents/Publications/A.59.2005.Add.3.pdf. 3 Forsythe, D. P. & Park, B. (2008). The Changing of the Guard: From the UN Human Rights Commission to the Council. Human Rights Law Journal, 29(1–5):4.

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Eastern Bloc and the participation of African countries was minimal.4 Its supervising role began to be established during the second period (1967– 1979), with the adoption of ECOSOC Resolutions 1235 and 1503. During the following cycle between 1979 and 1991, CHR members tried to enhance its policy supervising functions, despite the political limitations of the Cold War. The first part of the post-Cold War period was marked by the dominance of nearly consensus-like resolutions, while in its last years between 2001 and 2006, inter-regional clashes were strengthened, leading to the replacement of the CHR by the HRC.5 Jack Donnelly, in his study on the period between 1955 and 1985, indicated that almost 30% of the CHR’s meeting time was devoted to civil and political rights while social and cultural rights were only discussed in 5.5% of the meeting time. However, these figures look a bit different if we take into consideration that almost half of the 30% devoted to discussing civil and political rights was related to the question of racial discrimination, the number one priority for the Third World in this period, besides the issue of the right to self-determination (10%).6 Economic and social rights only started to be discussed after 1965, and even if we accept the argument that they can be implemented gradually, this does not explain their very low share of the CHR agenda. Donnelly was of the view that it was partly because developing countries also had a lot to hide regarding their performance on economic and social rights, as not all the problems could be explained by external factors exclusively.7 Donnelly was perfectly right in highlighting that while there were serious human rights violations committed by Israel, they were certainly not the worst and there were several countries in Africa, Asia, and Latin America—not to mention the members of the Soviet Bloc—with similar human rights problems which were never named by any CHR resolution. The most visible bias regarding country situations was that only three

4 Boyle, K. (2009). The United Nations Human Rights Council: Origins, Antecedents, and Prospects. In: K. Boyle (ed), New Institutions for Human Rights Protection. Oxford, UK: Oxford University Press. p. 26. 5 Forsythe, D. P. & Park, B. (2008). The Changing of the Guard: From the UN Human Rights Commission to the Council. Human Rights Law Journal, 29(1–5):4. 6 Donnelly, J. (1988). Human Rights at the United Nations 1955–85. The question of Bias. International Studies Quarterly, 32(3):279. 7 Ibid., p. 281.

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states, namely South Africa, Israel, and Chile, received a separate agenda item both in the CHR and in the Third Committee.8,9 According to Donnelly’s survey, Africa was almost completely absent from critical comments during this period. Asia and the Middle East were covered a little bit better, with the situation of Afghanistan, Iran, Kampuchea, and East Timor, discussed. However, the human rights situations of Vietnam, North and South Korea, or the Philippines are certainly missing from the list of issues, which should have been discussed by the CHR. Donnelly was of the view that probably, Latin America received the most balanced treatment among all the regions, with resolutions on Bolivia, El Salvador, Guatemala, and Nicaragua. However, the absence of Argentina, Cuba, and Uruguay from this list is striking.10 Important work by Ron Wheeler on the targeted resolutions of the CHR shows that before 1982 specific country situations could not be discussed publicly before the confidential procedures had been completed.11 During the 16-year period (1982–1997) he examined, the CHR considered 1216 draft resolutions. Of these 1196 were passed, 3 failed, and in the case of 17, the CHR voted either to take “no action” or decided to suspend the debate. Of the resolutions, 68% were thematic, not addressing any special human rights violation in a given country. During the period examined, 391 draft resolutions focused on the human rights violations committed by specific actors. The number of targeted resolutions gradually increased from 1982 to 1997. There were only three country-specific drafts, which were not adopted during the examined period (USA, China, and Nigeria in 1995).12 It is clear from the list of adopted targeted resolutions that they were focusing on a few “regional outcasts”, such as South Africa or Israel, and other unpopular regimes, like Guatemala, Iran, or Iraq.

8 Ibid., pp. 290–292. 9 One of six main committees at the UNGA, it deals with human rights, humanitarian

affairs, and social matters. 10 Donnelly, J. (1988). Human Rights at the United Nations 1955–85. The Question of Bias. International Studies Quarterly, 32(3):293. 11 Wheeler, R. (1999). The United Nations Commission on Human Rights, 1982– 1997: A Study of “Targeted” Resolutions. Canadian Journal of Political Science, 32(1):75–76. 12 Ibid., pp. 78–81.

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Altogether 37 states (including Croatia and Bosnia-Herzegovina, separately) were targeted by the CHR during this period, which indicated a substantial improvement compared to the previous period when only Israel and South Africa were highlighted.13 Steven Seligman examined the post-Cold War period of the CHR and the first few years of the HRC, regarding country-specific resolutions. Based on the examination of the 330 resolutions regarding 34 different states, adopted by the CHR between 1992 and 2005, he found that democratic states were more likely to support resolutions targeting states other than Israel. He also concluded that Western democracies were more willing to support targeted resolution than non-Western democracies. Not surprisingly non-democratic states were the least supportive of country-specific resolutions. However, Seligman also found that contrary to expectations, democracies were not more supportive than non-democracies of resolutions condemning Israel.14 He concluded that the CHR was used by many states to protect friends and criticize enemies, and in this context, the resolutions regarding Israel were usually drafted in a “one-sided manner”, while concerning other states, like Sudan, they “were designed to minimize criticism”.15 The disproportionate focus of the CHR was underlined by the fact that during the examined period, 24% of the country-specific resolutions targeted Israel.

2.3

Main Factors Leading to the Replacement of the Commission on Human Rights

Before starting to address the most important elements contributing to the discreditation of the CHR, it should be noted that the CHR did more than any UN body to involve representatives of civil society in international human rights diplomacy.16 This transparency continued with the HRC, too. Despite all these achievements during the last years of its existence, the CHR became the target of severe criticism from different 13 Ibid., p. 98. 14 Seligman, S. (2011). Politics and Principle at the UN Human Rights Commission

and Council (1992–2008). Israel Affairs, 17(4):538. 15 Ibid., p. 538. 16 Lauren, P. G. (2007). “To Preserve and Build on Its Achievements and to Redress

Its Shortcomings”: The Journey from the Commission on Human Rights to the Human Rights Council. Human Rights Quarterly, 29(2):324.

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circles. The first sign, the one that made the problem visible for the outside world too,17 was the 2004 report of the UN Secretary-General’s High-level Panel on Threats, Challenges and Change, entitled A more secure world: our shared responsibility,18 and Kofi Annan’s response to it, entitled In larger freedom: towards development, security and human rights for all (2005).19 However, the process which led to the replacement of the CHR by the HRC had started several years earlier. An important moment was May 2001, when the USA lost its seat on the CHR for the first time in history. That year, there were four contenders for the three seats available for WEOG, three European candidates, and the USA, with the majority of the developing world supporting the Europeans. In 2003, when the USA was again elected to the CHR, Washington intensified its fight against the practice of electing countries with a deplorable human rights record. That year the Libyan ambassador was elected as Chair of the CHR despite the protest from Washington, which lost the vote on the issue.20 The political vacuum created as a result of the end of the Cold War had been filled by regional confrontations instead of the East–West divide. The growing CHR membership was followed by an expanding agenda, containing more and more country-specific resolutions contributing to the so-called politicization of the CHR. As a result, it was increasingly accused of applying double standards in the course of reviewing the human rights standards of UN member states.21 The main human rights

17 Scannella, P. & Splinter, P. (2007). The United Nations Human Rights Council: A

promise to Be Fulfilled. Human Rights Law Review, 7(1):42. 18 The Secretary-General’s High-level Panel Report on Threats, Challenges and Change, A more secure world: our shared responsibility. https://www.un.org/ruleoflaw/ blog/document/the-secretary-generals-high-level-panel-report-on-threats-challenges-andchange-a-more-secure-world-our-shared-responsibility/. 19 In larger freedom: towards development, security and human rights for all: Report of the Secretary-General. https://www.un.org/ruleoflaw/blog/document/in-larger-fre edom-towards-development-security-and-human-rights-for-all-report-of-the-secretary-gen eral/. 20 Boyle, K. (2009). The United Nations Human Rights Council: Origins, Antecedents, and Prospects. In: K. Boyle (ed), New Institutions for Human Rights Protection. Oxford, UK: Oxford University Press. p. 27. 21 Spohr, M. (2010). United Nations Human Rights Council. Between InstitutionBuilding Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:173.

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body of the UN devoted more and more time to procedural debates and the practice of the so-called no-action motions, by which procedural motion powerful member states such as China blocked the CHR from taking action on certain country-specific resolutions. There were several attempts to substantially reform the body, but finally, only limited reforms took place affecting the agenda and the working methods. The “institutional jacket” of the CHR, as a result of being the functional committee of ECOSOC, the limited working time, and the facilities allocated to it were not addressed.22 Despite the unique privileges enjoyed by NGOs in the CHR, civil society increasingly criticized the Commission for not addressing important human rights issues as a result of applying double standards. Many states were also critical of the fact that the P5 countries’ human rights problems, like the situation in Tibet, Chechnya, or Guantanamo Bay, were never on the CHR’s agenda. Kofi Annan described this situation as a “credibility deficit”.23 This credibility deficit was also because many states with deplorable human rights records were mainly motivated to join the CHR to protect themselves against international criticism and to criticize their political enemies. Given the loose membership criteria, it was a relatively easy job to secure 28 votes within ECOSOC.24 Kofi Annan explicitly stated that politicization and selectivity had undermined the credibility of the CHR and had had a negative effect on the reputation of the UN as well. Consequently, he suggested the establishment of a new institution, the HRC.25 In conclusion, the international community began to prepare to replace the CHR with a new institution, to extend the working time, enhance the quality of membership, make it easier to address crises outside

22 Schrijver, N. (2007). The UN Human Rights Council: A New “Society of the Committed” or Just Old Wine in New Bottles? In: T. Skouteris & A. Vermeer-Künzli (eds), The Protection of the Individual in International Law. Essays in Honor of John Dugard. Cambridge, UK and NY, USA: Cambridge University Press. p. 84. 23 Terlingen, Y. (2007). The Human Rights Council: A New Era in UN Human Rights Work? Ethics and International Affairs, 21(2):169. 24 Davies, D. (2010). Rhetorical Inaction? Compliance and the Human Rights Council of the United Nations. Alternatives, 35:452. 25 Rahmani-Ocora, L. (2006). Giving the Emperor Real Clothes: The UN Human Rights Council. Global Governance, 12:15.

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the main sessions, and upgrade the status of the institution.26 The international community intended for the HRC to overcome the selectivity, the politicization, and the practice of double standards of the CHR.27 The political decision to replace the CHR with the HRC was taken in September 2005 at the World Summit.28

2.4 2.4.1

United Nations Human Rights Council Establishment of the United Nations Human Rights Council and Its Comparison with the Commission on Human Rights

As a result of difficult negotiations, the UNGA managed to adopt Resolution 60/251 on the establishment of the HRC.29 Unfortunately, the international community did not reach a consensus on the terms of the most important intergovernmental human rights body of the UN. Besides three abstentions (Belarus, Venezuela, and Iran), the USA, Israel, Marshall Islands, and Palau voted against the resolution, which was finally adopted by 170 supportive votes on 15 March 2006.30 Going through the main differences between the CHR and the HRC, the following elements could be highlighted: • The status of the HRC was elevated from a functional commission of ECOSOC to a subsidiary body of the UNGA. • The HRC has 47 members; the CHR had 53. The decrease in membership changed the composition of seats among the regional groups in favour of the South.

26 Ibid., p. 16. 27 Landolt, L. K. & Woo, B. (2017). NGOs Invite Attention: From the United Nations

Commission on Human Rights to the Human Rights Council. Journal of Human Rights, 16(4):407. 28 Warbick, C. (2006). From UN Commission on Human Rights to the UN Human Rights Council: One Step Forward or Two Steps Sideways? International and Comparative Law Quarterly, 55(3):697. 29 Resolution adopted by the General Assembly, 60/251. Human Rights Council. https://www2.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf. 30 Spohr, M. (2010). United Nations Human Rights Council. Between InstitutionBuilding Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:176.

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• Members of the HRC are not eligible for immediate re-election after two consecutive terms. • Members of the HRC are elected by a majority of the UNGA (193 members) and not by the majority of ECOSOC (54 members). • In the case of gross and systematic human rights violations, membership of the HRC can be suspended by a two-thirds majority vote of GA members present and voting. • No formal membership criteria were established; however, in the course of the election, the candidates’ contribution to the promotion of the protection of human rights and their voluntary pledges and commitments should be taken into account. • The number of sessions has significantly increased. The CHR met once a year for six weeks. The HRC meets at least three times a year, including a main session, for a total duration of no less than ten weeks. • Instead of half of the members—as was the case with the CHR—only one-third of the members are needed to convene a special session. • The UPR is the most visible new tool in the hands of the HRC. It takes place every four and a half years (originally every fourth year) to scrutinize the human rights situation of all UN member states. All elected HRC members must go through the UPR process during their tenure. • The former Sub-Commission on the Promotion and Protection of Human Rights was replaced by the Advisory Committee. • A new complaint procedure was created, replacing the former 1503 procedure. 2.4.2

Main Institutions and Features of the Human Rights Council

Membership, Regional Groups, Voluntary Pledges, Special Sessions, Agenda The High-Level Panel suggested in its 2004 report to replace the CHR with the HRC, which would have universal membership and be upgraded to a Charter body from being a subsidiary organ of ECOSOC. They intended to prevent the kind of criticisms about the composition of the Commission common during the final years of the CHR and to avoid

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discussions about membership criteria.31 However, while Kofi Annan agreed with the assessment of the Panel, he called for a smaller HRC, which could be either the principal body of the UN or a subsidiary organ of the UNGA.32 He was of the view that the HRC should be “a society of the committed” with members having “a solid record of commitment to the highest standards”. The size of the new body, he suggested, should be 15, rather than the 53 the CHR enjoyed.33 This proposal was strongly supported by Washington, which was also in favour of the Secretary-General’s suggestion that the election of candidates to the CHR would need a two-thirds majority vote (128 votes in favour) within the UNGA.34 The USA, together with EU member states, also supported an initiative whereby membership would not be granted to states under Chapter VII measures by the Security Council concerning human rights violations or acts of terrorism.35 The issue of membership size created tense discussions among member states as many governments thought that although a smaller body could be more efficient, it would not be sufficiently representative.36 As underlined by Conall Mallory, strict membership criteria would have made the HRC “an unrepresentative institution, both geographically and in terms of its members’ religious, political and cultural backgrounds”.37

31 Freedman, R. (2013). The United Nations Human Rights Council—A Critique and Early Assessment. Abingdon, UK: Routledge. pp. 44–45. 32 Spohr, M. (2010). United Nations Human Rights Council. Between InstitutionBuilding Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:175. 33 Warbick, C. (2006). From UN Commission on Human Rights to the UN Human Rights Council: One Step Forward or Two Steps Sideways? International and Comparative Law Quarterly, 55(3):700. 34 Boyle, K. (2009). The United Nations Human Rights Council: Origins, Antecedents, and Prospects. In: K. Boyle (ed), New Institutions for Human Rights Protection. Oxford, UK: Oxford University Press. p. 30. 35 Mallory, C. (2013). Membership and the UN Human Rights Council. Canadian

Journal of Human Rights, 2(1):22. 36 Warbick, C. (2006). From UN Commission on Human Rights to the UN Human Rights Council: One Step Forward or Two Steps Sideways? International and Comparative Law Quarterly, 55(3):700. 37 Mallory, C. (2013). Membership and the UN Human Rights Council. Canadian Journal of Human Rights, 2(1):10.

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The possibility of universal membership—as an option to avoid the politicization of the body—was also explored, but it was not supported by the majority of states.38 It would have been considered by many diplomats as a duplication of the Third Committee. According to the final, compromise solution, the membership of the new body was slightly reduced, from 53 to 47, and elected by a simple majority of the UNGA (97/193 votes). As a result of the “equitable geographic distribution”, the majority of seats (26 of 47) are held by the African and the Asia–Pacific Group. The African Group received 13 seats (28% of the membership) instead of 15, while the size of the Asia–Pacific Group increased to 13 (28%) from 12. The WEOG share decreased from 10 to 7 (15%) seats. The EEG gained one extra seat (6, instead of 5, 13%), while Latin America lost 3 seats (8 instead of 11, 17%). The HRC became a subsidiary body of the UNGA, which did not require the amendment of the Charter.39 According to the founding resolution, candidate countries are expected to hold the highest standards regarding the promotion and protection of human rights. They should cooperate fully with the HRC and should be reviewed by the UPR mechanism during their term of membership. Member states electing them were required to consider their contribution to the promotion and protection of human rights and the voluntary commitments and pledges they made in course of their candidacy.40 Unfortunately, the seriousness and the quality of voluntary pledges very much differed among candidate states. Many states make “general expressions of good intentions”, and several governments do not even bother to update their former pledges, or as happened the first time in the case of Uganda in 2010, do not even submit a voluntary pledge.41 There were several promising examples at the beginning of the HRC’s operation

38 Freedman, R. (2013). The United Nations Human Rights Council—A Critique and Early Assessment. Abingdon, UK: Routledge. p. 48. 39 Schrijver, N. (2007). The UN Human Rights Council: A New “Society of the Committed” or Just Old Wine in New Bottles? In: T. Skouteris & A. Vermeer-Künzli (eds), The Protection of the Individual in International Law. Essays in Honor of John Dugard. Cambridge, UK and NY, USA: Cambridge University Press. p. 87. 40 Ramcharan, B. G. (2015). The Law, Policy and Politics of the UN Human Rights Council. Leiden, Netherlands: Brill Nijhoff. p. 2. 41 Mallory, C. (2013). Membership and the UN Human Rights Council. Canadian Journal of Human Rights, 2(1):24–25.

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when expectations regarding the human rights record of the candidate state had a deterrent effect, and thus, both Sudan and Zimbabwe refrained from seeking election, or when Iran and Belarus withdrew their candidacy realizing that they were not going to be elected due to their poor human rights record.42 However, human rights requirements are inefficient in the absence of competition among the states for a seat on the HRC. This was, unfortunately, the case for the CHR, and except for the first year and a few other occasions, the HRC could not avoid the same situation. The “clean slate” phenomenon meant that the regional groups put forward the same number of candidates as seats available for them, leaving the UNGA with little choice but to vote for them. In 2006, all regions were overrepresented during the elections and 65 candidates ran for 47 seats.43 Unfortunately, this competition has almost entirely disappeared. For example, in 2018, there were 18 candidates for 18 seats.44 While this clean slate situation improved marginally in 2019 when there were 17 candidates for 14 seats, there was no competition within the African Group and WEOG.45 Clean-slate voting coupled with the secret ballot system has certainly had a very detrimental effect on the composition of the HRC, minimizing as it does the importance of voluntary pledges. Many decisions are based on commercial, regional, or political alliances and not on human rights records.46 It was also decided that a member who served two consecutive terms would no longer be eligible for re-election. And, the membership of those who committed gross and systematic human rights violations during their term could be suspended by a two-thirds majority vote of the UNGA.47 Despite the high threshold created for suspension, in March 2011, the HRC decided to ask the UNGA to suspend Libya’s membership. This 42 Ibid., p. 26. 43 Ibid., p. 30. 44 HRC elections. https://www.un.org/en/ga/73/meetings/elections/hrc.shtml. 45 HRC elections in 2019. https://www.un.org/en/ga/74/meetings/elections/hrc.

shtml. 46 Mallory, C. (2013). Membership and the UN Human Rights Council. Canadian Journal of Human Rights, 2(1):30. 47 Joosten, V. (2011). The UN Human Rights Council at Work: From High Hopes Back to Reality. United Nations Association: Flanders Belgium. p. 6. http://www.vvn.be/wpcontent/uploads/2011/04/VVN_HRC_at_work_-_Definitieve_versie.pdf.

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decision took place at a special session, the convening of which was supported by 6 of the 26 African and Asia–Pacific members of the HRC.48 Although several states, like Russia or Cuba, voiced their concerns about this precedent, the HRC unanimously decided to suggest the suspension of Libya’s membership to the UNGA. It was symbolic that the proposal was submitted to the UNGA by Lebanon as a member of the OIC and supported by Mauritius on behalf of the African Group.49 According to UNGA Resolution 60/251, the HRC meets at least three times a year, for a total duration of ten weeks, compared to the annual 6 weeks which was at the disposal of the CHR. This ensures a more effective and comprehensive approach to global human rights challenges.50 Besides, the new regulation about special sessions also helps the HRC to better address emergency human rights situations, if they are used properly. These changes certainly reflect the position of WEOG, compensating a little for the fact that their numbers within the Council had been reduced.51 An important feature of the new human rights body was that the 50% support which was needed to convene a special session of the CHR was reduced to one-third of the HRC membership (15 members). It should be convened not earlier than two working days and not later than five working days after formal receipt of the request. Its duration cannot exceed three days unless the HRC decides otherwise.52 ECOSOC authorized the CHR, in its Resolution 1990/48 of 25 May 1990, to meet exceptionally between its regular sessions, provided that a majority of

48 Report of the Human Rights Council on its fifteenth special session, 25 February 2011, p. 6. https://www.ohchr.org/Documents/HRBodies/HRCouncil/SpecialSession/ Session15/A-HRC-S-15-1.pdf. 49 Mallory, C. (2013). Membership and the UN Human Rights Council. Canadian Journal of Human Rights, 2(1):21. 50 Maitya, J. (2010). Repositioning the International Human Rights Protection System:

The UN human Rights Council. Commonwealth Law Bulletin, 36(2):318. 51 Cox, E. (2010). State Interests and the Creation and Functioning of the United Nations Human Rights Council. Journal of International Law and International Relations, 6(1):105. 52 Ramcharan, B. G. (2015). The Law, Policy and Politics of the UN Human Rights Council. Leiden, Netherlands: Brill Nijhoff. p. 4.

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the members of the Commission so agreed. The CHR held five special sessions within its last 15 years.53 The effect of lowering the threshold for convening a special session was significant with 30 special sessions between 2006 and 2021. It became visible from the beginning that the OIC used this tool to maintain pressure on Israel as nine sessions were devoted to the human rights situation in the Occupied Palestinian Territories (OPT). This was followed by frequency by the Syrian crisis which was the topic of five special sessions. Myanmar was the cause of three special sessions. The subjects of the other special sessions were South Sudan, Burundi, Boko Haram, Islamic State, Central African Republic (CAR), Libya, Cote d’Ivoire, Haiti, Sri Lanka, global economic and financial crises, the Democratic Republic of the Congo (DRC), world food situation, and Darfur.54 Given the nature of this initiative, the vast majority of sessions were convened to address a country situation, but interestingly there were two thematic ones on global economic and financial crises and the world food situation. The previous agenda of the CHR has been significantly changed in case of the HRC. 1. Organizational and procedural matters. 2. Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the UN High Commissioner for Human Rights (OHCHR) and the Secretary-General. 3. Promotion and protection of all human rights, civil, political, economic, social, and cultural rights, including the right to development. 4. Human rights situations that require the HRC’s attention. 5. Human rights bodies and mechanisms. 6. UPR. 7. Human rights situation in Palestine and other occupied Arab territories. 8. Follow-up to and implementation of the Vienna Declaration and Programme of Action.

53 Special sessions of the Commission on Human Rights. https://www.ohchr.org/EN/ HRBodies/CHR/Pages/PreviousSessions.aspx. 54 Special sessions of the UN Human Rights Council. https://www.ohchr.org/EN/ HRBodies/HRC/SpecialSessions/Pages/SpecialSessions.aspx.

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9. Racism, racial discrimination, xenophobia and related forms of intolerance, follow-up to and implementation of the Durban Declaration and Programme of Action. 10. Technical assistance and capacity-building. The HRC has 10 agenda items, compared to the 21 on the CHR agenda. But one agenda item remained the same. Item 8 on the CHR agenda on the question of the violation of human rights in the occupied Arab territories, including Palestine, became Item 7 on the HRC agenda entitled human rights situation in Palestine and other occupied Arab territories. It was very unfortunate that during negotiations about the agenda, the majority of the HRC decided to keep this special and discriminative agenda item on one country’s situation, while all other cases were being dealt with under Item 4. Special Procedures Special procedures55 of the HRC are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. With the support of the OHCHR, the special procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to states and others in which they bring alleged violations or abuses to their attention; conduct thematic studies and convene expert consultations; contribute to the development of international human rights standards; engage in advocacy; raise public awareness; and provide advice for technical cooperation. Special procedures report annually to the HRC; the majority of the mandates also report to the UNGA. Their tasks are defined in the resolutions creating or extending their mandates.56

55 Special procedures are individual independent human rights experts, or groups of such experts, who report and advise on human rights issues. They are called by many names, including Special Rapporteurs, Special Representatives, Working Groups, and Independent Experts. 56 Special Procedures of the Human Rights Council. https://www.ohchr.org/en/hrb odies/sp/pages/welcomepage.aspx.

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Secretary-General Kofi Annan called the special procedures “the crown jewel of the [UN human rights] system”,57 which adequately reflects the important role they play in the international promotion and protection of human rights. As mentioned earlier, by the end of the CHR mandate (June 2006), there were 28 thematic mandates and 13 country-specific mandates. It was obvious in the course of the negotiations about the parameters of the work of the HRC that several member states would have been keen to use the establishment of the UPR to eliminate countryspecific resolutions and mandates. China described country resolutions as “the chronic disease of the Commission on Human Rights”.58 It was not surprising therefore that Beijing wanted to introduce the requirement of a two-thirds majority regarding country resolutions. Finally, a compromise solution was reached that “proposers of a country resolution have to secure the broadest possible support for their initiatives – preferably 15 members – before action can be taken concerning a draft resolution”.59 The EU and other countries in favour of country mandates were fortunate that the Chinese initiative would have made the life of Arab states more difficult regarding the resolution on the human rights situation in the OPT which also helped to achieve the compromise solution. Finally, two country resolutions, namely those on Cuba and Belarus, became the target of hostilities about country mandates. They were terminated during this transitional period, continuing the trend of terminating country mandates (between 1998 and 2006 their number decreased from 26 to 13).60 Otherwise, the two camps managed to reach an agreement leading to the preservation of the entire special procedures system, but the member states decided to conduct a review and if necessary a rationalization of mandates within one year.61

57 Freedman, R. (2013). The United Nations Human Rights Council—A Critique and Early Assessment. Abingdon, UK: Routledge. p. 110. 58 Joosten, V. (2011). The UN Human Rights Council at Work: From High Hopes Back to Reality. Flanders, Belgium: United Nations Association. p. 17. 59 Ibid., pp. 17–18. 60 Spohr, M. (2010). United Nations Human Rights Council. Between Institution-

Building Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:186. 61 Ibid., p. 180.

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HRC Resolution 5/1 on Institution-building62 adopted on 18 June 2007 ushered in a rigid, but a more transparent system for the selection of mandate holders. A decisive role was delegated to a Consultative Group of five members, each of the regional groups appointing one member. This Group studies the nominations, interviews the best candidates, and then makes recommendations to the President of the HRC63 who normally accepts the position of the Consultative Group. They can decide otherwise, but in that case, the provision of a detailed, wellfounded explanation is needed. Finally, the HRC plenary approves all the candidates,64 which was not the case in the CHR, where the President although in consultation with the Bureau did not have to go to the plenary for approval.65 It is important to note that besides states, regional groups, and international organizations, NGOs can nominate mandate holders to be reviewed by the Consultative Group.66 The mandates of country-specific Special Rapporteurs or other mandate holders are extended yearly, while thematic mandate holders are elected for three years. Each mandate has a maximum duration of six years,67 with one exception. The mandate of the Special Rapporteur on the human rights situation in the OPT will last “until the end of the Israeli occupation of those territories”, and therefore, it is not renewed annually as is the case with the other country-specific mandates.68

62 HRC Resolution 5/1. On Institution-building of the United Nations Human Rights

Council. http://hrlibrary.umn.edu/iwraw/Inst-building-UN.pdf. 63 Tomuschat, C. (2007). Origins and History of UN Special Procedures. An Overview from Their Inception to June 2007. Human Rights Law Journal, 29(1–5):30. 64 Basic information on the selection and appointment process for independent United Nations experts of the Human Rights Council. https://www.ohchr.org/EN/HRBodies/ HRC/SP/Pages/BasicInformationSelectionIndependentExperts.aspx. 65 Nowak, M., Birk, M., Crittin, T. & Kozma, J. (2011). UN Human Rights Council in Crisis—Proposals to Enhance the Effectiveness of the Council. In: W. Benedek, F. BenoitRohmer, W. Karl, & M. Nowak (eds), European Yearbook on Human Rights. Cambridge, UK: Intersentia Ltd. p. 67. 66 Joosten, V. (2011). The UN Human Rights Council at Work: From High Hopes Back to Reality. Flanders, Belgium: United Nations Association. p. 26. 67 Tomuschat, C. (2007). Origins and history of UN Special Procedures. An Overview from Their Inception to June 2007. Human Rights Law Journal, 29(1–5):30. 68 Joosten, V. (2011). The UN Human Rights Council at Work: From High Hopes Back to Reality. Flanders, Belgium: United Nations Association. p. 24.

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As a response to the heavy criticism by some states on the work of mandate holders, an important, but not too fortunate resolution was adopted by the HRC in June 2007 on the Code of Conduct for Special Procedures Mandate Holders (Resolution 5/2),69 intended to reduce the freedom of action of rapporteurs. According to the Code of Conduct, priority should be given to information coming from the state and mandate holders should “rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions they are called upon to draw up”. As highlighted by Christian Tomuschat, that sort of provision “might shield rapporteurs from non-official information”.70 The draft of the Code of Conduct was tabled by the African Group, reflecting the discontent of several countries in the region about a few special procedures,71 and although the official intention was to ensure the impartiality and independence of mandate holders, it can be certainly misused and thereby limiting their independence.72 The Russian delegation, supported by several likeminded countries suggested the reference to the Code of Conduct in every single resolution thereafter, indicating that it represents an issue of priority for them.73 Another important document was adopted in 2008 by the 15th Annual Meeting of special procedures mandate holders entitled Manual of Operations of the Special Procedures of the Human Rights

69 HRC Resolution 5/2. On Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council. https://www.ohchr.org/Documents/HRBodies/SP/Cod eOfConduct.pdf. 70 Tomuschat, C. (2007). Origins and History of UN Special Procedures. An Overview from Their Inception to June 2007. Human Rights Law Journal, 29(1–5):31. 71 Forsythe, D. P. & Park, B. (2008). The Changing of the Guard: From the UN

Human Rights Commission to the Council. Human Rights Law Journal, 29(1–5):12. 72 Spohr, M. (2010). United Nations Human Rights Council. Between InstitutionBuilding Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:187. 73 Joosten, V. (2011). The UN Human Rights Council at Work: From High Hopes Back to Reality. Flanders Belgium: United Nations Association. pp. 21–22.

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Council.74 This document, together with the Code of Conduct, guides the work of the Special Rapporteurs.75 As of September 2020, there are 44 thematic76 and 11 country mandates.77 In 14 years, the HRC created 16 new thematic mandates, while the number of country-focused rapporteurs reduced by two since the establishment of the HRC in 2006.78 As Marc Limon underlined, if this trajectory of the adoption of special procedures continues, by 2030 the number of mandates will reach 100.79 This trend is not surprising given that the creation of a mandate is always more difficult than its periodical renewals,80 and that there are very few examples of the termination of a mandate. Certain states are looking at the OHCHR as the administrative body of the HRC and overloading it with additional tasks, which

74 Manual of Operations of the Special Procedures of the Human Rights Council, August 2008. https://www.ohchr.org/Documents/HRBodies/SP/Manual_Ope rations2008.pdf. 75 Subedi, S. P. (2011). Protection of Human Rights Through the Mechanism of UN

Special Rapporteurs. Human Rights Quarterly, 33(1):211. 76 The thematic special procedures of the HRC are addressing the following subjects: African Descent, albinism, arbitrary detention, business, cultural rights, development, disability, disappearances, education, environment, executions, food, foreign debt, freedom of opinion and expression, freedom of peaceful assembly and of association, hazardous substances, health, housing, human rights defenders, independence of judges and lawyers, indigenous peoples, internally displaced persons, international order, international solidarity, leprosy, mercenaries, migrants, minority issues, older persons, poverty, privacy, racism, religion or belief, sale of children, sexual orientation and gender identity, slavery, terrorism, torture, trafficking in persons, truth, justice, reparation and guarantees of nonrecurrence, unilateral coercive measures, violence against women, water and sanitation, women and girls. 77 Country-specific special procedures of the HRC: Belarus, Cambodia, CAR, DPRK, Eritrea, Islamic Republic of Iran, Mali, Myanmar, Palestinian territories occupied since 1967, Somalia, Sudan, Syrian Arab Republic. 78 Special Procedures of the Human Rights Council. https://www.ohchr.org/en/hrb odies/sp/pages/welcomepage.aspx. 79 Freedman, R. & Mchangama, J. (2016). Expanding or Diluting Human Rights? The Proliferation of United Nations Special Procedures Mandates. Human Rights Quarterly, 38(1):165. 80 Ibid., p. 173.

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may result in the paralysation of the OHCHR, thereby preventing it from carrying out its important human rights work.81 These phenomena were demonstrated by an interesting piece of research, carried out by Rosa Freedman and Jacob Mchangama on the proliferation of special procedures. Their work showed that free states— according to Freedom House categories (free, partly free, and not free states)—almost always support mandates on civil and political rights, while their voting record is more mixed on economic and social rights. They are very sceptical about third-generation rights, which are mostly supported by not free states, which on the other side rarely support mandates on civil and political rights.82 One of their most important findings was that states belonging to partly free or not free categories, and with poorer human rights records, are usually the ones behind the proliferation of mandates aimed at expanding the narrower focus of mandates on civil and political rights to a more expansive focus on economic and social and third-generation rights.83 The research underlined that special procedures are no longer used for the sole protection and promotion of human rights, but have become an important tool in course of the political and ideological battle among member states, where states are following their own agenda to advance their own objectives.84 It is difficult to challenge the Freedman and Mchangama’s final assessment, namely that the proliferation of mandates without increased resources will have a detrimental effect on the special procedures system. It is also telling that according to the OHCHR’s financial statement from 2012, only 24% of the total earmarked contributions85 were allocated to mandates on civil and political rights while economic, social, and cultural rights mandates received 44%, and groups in focus gained 32%. 81 Rathgeber, T. (2010). Ambiguity as a Main Feature: The UN Human Rights Council in 2009. In: W. Benedek, F. Benoit-Rohmer, W. Karl, & M. Nowak (eds), European Yearbook on Human Rights. European Academic Press. p. 190. 82 Freedman, R. & Mchangama, J. (2016). Expanding or Diluting Human Rights? The Proliferation of United Nations Special Procedures Mandates. Human Rights Quarterly, 38(1):180–181. 83 Ibid., p. 187. 84 Ibid., p. 190. 85 Ibid., p. 193.

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An important element of the reform process is the consolidation of the practice of interactive dialogues with mandate holders, which existed in the last period of the CHR, but has been further strengthened, although time constraints rarely allow a real interactive dialogue.86 Since 1994, Special Rapporteurs/representatives, independent experts, and chairs of working groups of the special procedures of the HRC hold an annual meeting in Geneva. It is an important forum to learn more about best practices and can serve to harmonize working methods. Their annual report to the HRC contains the most important facts about the special procedures system. According to the report of 2018, the special procedures system included 80 mandate holder positions, 45% female and 55% male.87 The report includes important facts about cooperation with special procedures. Accordingly, “the large majority of Member States, namely 169, have received at least one visit from a mandate holder. However, 24 member states have not yet been visited by any mandate holder, of which 7 have not yet received a request for a visit, 14 have not yet accepted any request, and 3 have accepted visits that have not yet taken place”.88 In this context, the institution of standing invitation should be mentioned. This is “an open invitation extended by a Government to all thematic special procedures. By extending a standing invitation States announce that they will always accept requests to visit from all special procedures”. As of 10 June 2021, 127 member states and 1 non-member observer state have extended a standing invitation to thematic special procedures.89 The Coordination Committee of Special Procedures was established at the 12th Annual Meeting of special procedures mandate holders in 2005. It is comprised of six special procedures mandate holders. Its main 86 Frouville, O. (2011). Building a Universal System for the Protection of Human Rights: The Way Forward. In: M. Cherif Bassiouni & W. A. Schabas (eds), New Challenges for the UN Human Rights Machinery. Cambridge, UK: Intersentia Ltd. p. 248. 87 A/HRC/40/38, Report on the twenty-fifth annual meeting of Special Rapporteurs/representatives, independent experts, and chairs of working groups of the special procedures of the Human Rights Council (Geneva, 4–8 June 2018), including updated information on special procedures. p. 3. https://documents-dds-ny.un.org/doc/ UNDOC/GEN/G19/275/98/PDF/G1927598.pdf?OpenElement. 88 Ibid., p. 3. 89 Standing Invitations to thematic special procedures. https://spinternet.ohchr.org/

StandingInvitations.aspx?lang=en.

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function is to enhance coordination among mandate holders and to act as a bridge between them and the OHCHR, the broader UN human rights framework and civil society.90 Universal Periodic Review The UPR is the only existing universal process involving the review of the human rights record of all UN member states. The UPR is a process run by member states, under the auspices of the HRC, providing the opportunity for each state to report on actions they have taken to improve the human rights situation in their countries and to fulfil their human rights obligations. The UPR is designed to ensure equal treatment for every country in the course of the assessment of their human rights situation. The most important aim of this mechanism is to improve the human rights situation in all countries and to address human rights violations wherever they occur.91 It is important to note that the notion of a universal periodic process is not a complete novelty as such. ECOSOC set up a similar process in 1956 that was abolished in 1980.92 One of the main reasons for this failure was that the preparation of reports was left to the discretion of states. The system did not include a formal, organized discussion between the reporting state and the CHR.93 According to Resolution A/HRC/RES/5/1, the UPR is conducted by a working group, chaired by the President of the HRC and composed of the 47 member states. However, all other UN member states can participate in the process by making recommendations. They cannot be part of the so-called Troika, which is a group of three HRC member states, coming from different regional groups selected by drawing of lots. Their role is to facilitate the review by helping to finalize the reports about it. They have an important role to play in clarifying certain

90 Coordination Committee of Special Procedures. https://www.ohchr.org/EN/HRB odies/SP/CoordinationCommittee/Pages/CCSpecialProceduresIndex.aspx. 91 UPR. https://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx. 92 UNGA Resolution A/RES/35/209 on the Identification of activities that have been

completed or are obsolete, of marginal usefulness on ineffective. https://undocs.org/en/ A/RES/35/209. 93 Bernaz, N. (2009). Reforming the UN Human Rights Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic Review Mechanism. In: K. Boyle (ed), New Institutions for Human Rights Protection. Oxford, UK: Oxford University Press. pp. 85–87.

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recommendations which are not clear for the state under review. The Institution-Building Resolution of June 2007 specified the sources of the UPR process, which is based on the UN Charter, the UDHR, human rights instruments to which a state is a party, and voluntary pledges and commitments made by a given state, including those undertaken in course of their candidacy.94 Customary rules of human rights law were also suggested, but they were finally excluded as many states thought that the determination of customary law is a complex process, which could be undertaken only by proper judicial organs. However, a consensus emerged among member states on “applicable humanitarian law” which seems to include customary humanitarian law as well.95 The review is based on three documents: • A national report prepared by the state under review. • A compilation prepared by the OHCHR on reports of treaty bodies, special procedures, and other relevant UN documents related to the states under review. • A document based on information submitted by other stakeholders, like NGOs, or national human rights institutes. The most important part of the process is the interactive dialogue between the state under review and the UPR working group in which the observer states can participate, but NGOs cannot. During the first cycle, three hours were designated to every state review and the whole cycle took four years, meaning that 48 states were reviewed annually.96 The second cycle, which started in May 2012 and finished in November 2016, was extended by six months allowing 42 states to be reviewed.97 The time allocated for the discussion was raised to three and a half hours during the second cycle, and from that, 70 minutes were devoted to the 94 Ibid., p. 78. 95 Ibid., p. 80. 96 Spohr, M. (2010). United Nations Human Rights Council. Between Institution-

Building Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:184–185. 97 Charlesworth, H. & Larking, E. (2014). Introduction: The Regulatory Power of the Universal Periodic Review. In: H. Charlesworth & E. Larking (eds), Human Rights and the Universal Periodic Review. Rituals and Ritualism. Cambridge, UK: Cambridge University Press. p. 3.

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initial presentation and replies to questions and concluding comments.98 The outcome report summarizes the discussion, including questions and comments, and contains recommendations for the state under review. It also identifies which recommendations enjoy the support of the state under review; those which are not supported by the state are also noted.99 The HRC adopts the final outcome in a plenary session approximately six months following the review of the country, containing a “summary of proceedings of the review process” and “conclusions and/or recommendations, and the voluntary commitments of the State concerned”.100 This is the part when NGOs can also take the floor and address the human rights situation of the state under review. The creation of the UPR was considered by all observers as the most visible new instrument of the HRC. It is based on the concept of “constructive dialogue and cooperation” and which would mark a significant departure in the eyes of many developing states from the perceived “naming and shaming” approach of the CHR. Many countries hoped that it could become an alternative for the very much contested countryspecific mandates and resolutions.101 However, as was pointed out by the Netherlands during its UPR review: “the universal periodic review was an additional tool for human rights monitoring, intended to complement and not duplicate the work of the treaty bodies and the special procedures. Furthermore, the review should not detract from the mandate of the Human Rights Council to act upon gross human rights violations in specific countries”.102 An important contribution of UPR can be the provision of a cooperative atmosphere, in which states can meet and encourage and promote common human rights policies, aimed at improving the human rights

98 Ibid., p. 5. 99 Ibid., p. 5. 100 de la Vega, C. & Lewis, T. N. (2011). Peer review in the Mix: How the UPR

Transforms Human Rights Discourse. In: M. Cherif Bassiouni & W. A. Schabas (eds), New Challenges for the UN Human Rights Machinery. Cambridge, UK: Intersentia Ltd. p. 361. 101 Joosten, V. (2011). The UN Human Rights Council at Work: From High Hopes Back to Reality. Flanders, Belgium: United Nations Association. p. 32. 102 Carey, J. (2009). The UN Human Rights Council: What Would Eleanor Roosevelt Say? ILSA Journal of International and Comparative Law, 15:469.

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situation on the ground, by sharing best practices.103 A significant feature of the UPR process is that it can be linked to technical assistance and capacity-building programmes aimed at the better implementation of UPR recommendations. The establishment of the Voluntary Fund for Financial and Technical Assistance serves exactly this purpose.104 Kofi Annan hoped that the UPR “would give concrete expression to the principle that human rights are universal and indivisible”.105 Several experts and academics were conscious, however, that the UPR may become a ritual, i.e. mere participation in the process without any intention to change the human rights situation on the ground.106 The cooperative, non-confrontational character of this intergovernmental process, which is lacking punitive sanctions, was the price for the support of certain developing states, although as it is stated in Resolution 5/1, the UPR should “not diminish the Council’s capacity to respond to urgent human rights situations”.107 In this context, it is important that ritualism is transformed into conformity or commitment. States should not be allowed to “mask low commitment to human rights through the mere fact of participation”.108 The UPR process has the potential to develop a more inclusive international human rights agenda, and by referring to the UDHR, the list of human rights to be addressed becomes very comprehensive. This is particularly important in regions of low rates of ratification regarding

103 de la Vega, C. & Lewis, T. N. (2011). Peer Review in the Mix: How the UPR Transforms Human Rights Discourse. In: M. Cherif Bassiouni & W. A. Schabas (eds), New Challenges for the UN Human Rights Machinery. Cambridge, UK: Intersentia Ltd. p. 385. 104 Charlesworth, H. & Larking, E. (2014). Introduction: The Regulatory Power of the Universal Periodic Review. In: H. Charlesworth & E. Larking (eds), Human Rights and the Universal Periodic Review. Rituals and Ritualism. Cambridge, UK: Cambridge University Press. pp. 6–7. 105 Ibid., p. 234. 106 Ibid., p. 10. 107 McMahon, E. & Ascherio, M. (2012). A step ahead in promoting human rights?

The Universal Periodic Review of the UN Human Rights Council. Global Governance, 18(2):234. 108 Charlesworth, H. & Larking, E. (2014). Introduction: The Regulatory Power of the Universal Periodic Review. In: H. Charlesworth & E. Larking (eds), Human Rights and the Universal Periodic Review. Rituals and Ritualism. Cambridge, UK: Cambridge University Press. p. 12.

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international human rights instruments. These otherwise marginalized parts of the world can thereby participate in a common human rights dialogue.109 The UPR emphasizes “bilateral, state-to-state relations” which is a novelty compared to other sectors of the HRC’s work, which are dominated by regional affiliations and North–South divisions.110 Research by Edward McMahon and Marta Ascherio shows that African and Asia–Pacific Groups formulated 40% of their recommendations to their own regions, while in case of the EEG, GRULAC, and WEOG, the range of variation in recommendations by region was much smaller.111 In line with this phenomenon, Asia–Pacific and African states were more ready to accept recommendations coming from within their own regions.112 Consequently, clear regional patterns can be detected during the process, with a much softer approach followed by Asia–Pacific and African states towards human rights questions, while WEOG is making the most critical, action-oriented recommendations. GRULAC and the EEG could play a mediating role between Asia/Africa and WEOG, in light of their historical background. McMahon and Ascherio formulated an important recognition, namely that “the long term success of the HRC will depend on states being able to recognize that criticism can be a component of cooperation”.113 Finally, it is worth looking at the UPR process from the point of view of statistics. During the first cycle, of the 21,355 recommendations made, 7364 were action oriented. The five top issues were: 1. International instruments 2. Women’s rights 3. Rights of the child 4. Torture 5. Justice.

109 Ibid., p. 13. 110 McMahon, E. & Ascherio, M. (2012). A Step Ahead in Promoting Human Rights?

The Universal Periodic Review of the UN Human Rights Council. Global Governance, 18(2):234–235. 111 Ibid., p. 237. 112 Ibid., p. 242. 113 Ibid., p. 246.

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WEOG formulated the highest number of recommendations (8676— 40.63%), followed by GRULAC (3579—16.76%), Asia–Pacific (3338— 15.63%), the EEG (3069—14.37%), and the group which made the smallest number of recommendations was Africa (2494—11.68%). The list of groups receiving recommendations is quite different, headed by the Asia–Pacific Group (30.33%) and followed by the African Group (27.86%), GRULAC (15.58%), WEOG (14.56%), and the EEG (11.66%).114 The activity of states significantly increased during the second cycle, as the total number of recommendations was 36,331 with 13,404 containing a specific action. The list of regional groups of recommending states has changed. After WEOG (29.94%), the Asia– Pacific Group became the second (19.54%), followed by the African Group (18.24%), GRULAC (16.96%), and the EEG (14.19%). The list of regions receiving recommendations also changed. After the African Group (28.61%) and the Asia–Pacific Group (28.51%), WEOG came third (15.24%), followed by GRULAC (15.23%) and the EEG (11.43%). The list of the top 5 issues remained the same.115 Complaint Procedure116 As member states did not show too much interest in reforming the CHR’s 1503 procedure, it was decided to continue using it with small changes117 aimed at making the admissibility requirements easier and providing more frequency for the meetings of the working groups in charge of analysing the cases.118 The purpose of the complaint procedure was to “address consistent patterns of gross and reliably attested violations of all human rights and fundamental freedoms occurring in any part of the world and

114 UPR Info—Statistics of Recommendations. https://www.upr-info.org/database/sta tistics/index.php?cycle=1. 115 UPR Info—Statistics of Recommendations. https://www.upr-info.org/database/sta tistics/index.php?cycle=2. 116 Human Rights Council Complaint Procedure. https://www.ohchr.org/en/hrb

odies/hrc/complaintprocedure/pages/hrccomplaintprocedureindex.aspx. 117 Spohr, M. (2010). United Nations Human Rights Council. Between InstitutionBuilding Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:189. 118 Viegas e Silva, M. (2013). The United Nations Human Rights Council: Six Years On. SUR International Journal of Human Rights, 10(18):105.

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under any circumstances”.119 The main difference is that the HRC’s 1503 procedure can deal explicitly with all human rights violations, occurring in any part of the world, “under any circumstances”.120 These modifications reduce the possibility of questioning the substantial or territorial scope of the procedure. They are also clear that an emergency or an internal conflict cannot prevent the examination of a given situation by the HRC.121 The admissibility criteria have also changed, not excluding, for example, a case when the given state is under public procedure by the Council, or when the communication falls within the mandate of a special procedure. Now, only litis pendentia 122 excludes the admissibility of a new communication.123 Two working groups conduct the procedure. The Working Group on Communications consists of five members of the HRC’s Advisory Committee, coming from different regional groups and serving for three years as independent experts. The Working Group on Situations consists of five representatives of HRC member states, representing five regional groups and serving for one year in a personal capacity.124 The initial screening is carried out by the Chair of the Working Group on Communication, together with the secretariat. This measure was aimed at depoliticizing the process; the UN Secretary-General, as a political figure, is no longer involved in the screening process.125 The new mechanism is also faster, as the HRC decided that the consideration of a communication cannot take longer than two years.126 Lastly, the new mechanism provides 119 Davala, M. (2011). ‘Old-New’ Complaint Procedure of the Human Rights Council. Law and Economics Review, 3:49. 120 HRC Resolution 5/1 on Institution-building of the United Nations Human Rights Council Article 85. “A complaint procedure is being established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances”. 121 Davala, M. (2011). ‘Old-New’ Complaint Procedure of the Human Rights Council. Law and Economics Review, 3:49. 122 Litis pendentia, as grounds for the dismissal of a civil action, refers to a situation where two actions are pending between the same parties for the same cause of action, so that one of them becomes unnecessary and vexatious. 123 Davala, M. (2011). ‘Old-New’ Complaint Procedure of the Human Rights Council. Law and Economics Review, 3:50. 124 Ibid., p. 51. 125 Ibid., p. 51. 126 Ibid., p. 52.

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an additional action at the end of the procedure, namely to recommend the OHCHR to provide technical assistance or advisory services to the state concerned.127 Subsidiary Bodies Advisory Committee128 The HRC decided to dissolve the CHR’s Sub-Commission on the Promotion and Protection of Human Rights and replace it with the Advisory Committee (AC). The Sub-Commission was established in 1947. Until 1999, it was called Sub-Commission on Prevention of Discrimination and Protection of Minorities and was mandated to recommend standards for the protection and promotion of human rights.129 This mandate was expanded over the years and the Committee became a think tank for the CHR, examining information related to grave human rights violations, and researching and interpreting international human rights standards.130 The AC became slightly smaller than the Sub-Commission (18 rather than 26 members), with the possibility of holding two sessions per year, for a maximum of 10 working days altogether, instead of a single threeweek annual session.131 However, HRC Resolution 5/1 limited its work exclusively to cases it requested; therefore, its right to take its own initiative was eliminated. The HRC also decided to remove the possibility for the AC to establish subsidiary bodies and to adopt resolutions or decisions.132 The members of the AC are elected by secret ballot, with geographical distribution of seats among the five regional groups.133

127 Ibid., p. 52. 128 HRC Advisory Committee. https://www.ohchr.org/EN/HRBodies/HRC/Adviso

ryCommittee/Pages/HRCACIndex.aspx. 129 Abraham, M. (2006). A New Chapter for Human Rights. A Handbook on Issues of Transition from the Commission on Human Rights to the Human Rights Council. International Service for Human Rights, Friedrich Ebert Stiftiung, p. 52. 130 Ibid., p. 52. 131 Viegas e Silva, M. (2013). The United Nations Human Rights Council: Six years

on. SUR International Journal of Human Rights, 10(18):102–103. 132 Ibid., p.103. 133 Spohr, M. (2010). United Nations Human Rights Council. Between Institution-

Building Phase and Review of Status. In: A. Von Bogdandy & R. Wolfrum (eds), Max Planck Yearbook of United Nations Law, 14:188.

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Forum on Minority Issues The Forum on Minority Issues was established by HRC Resolution 6/15 of 28 September 2007 (the mandate of the Forum was renewed by Resolution 19/23 of 23 March 2012) to provide a platform for promoting dialogue and cooperation on issues pertaining to national or ethnic, religious and linguistic minorities, as well as thematic contributions and expertise to the work of the Special Rapporteur on minority issues. The Forum seeks to identify and analyse best practices, challenges, opportunities, and initiatives for the further implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.134 The Forum meets annually for two working days allocated to thematic discussions. The Special Rapporteur on minority issues guides the Forum’s, preparing its annual meetings and reporting on its thematic recommendations to the HRC. The President of the HRC appoints a chairperson for each session, based on regional rotation, and in consultation with regional groups, choosing from experts on minority issues.135 Social Forum136 The Social Forum, a subsidiary body of the HRC, meets for three days annually, bringing together states, international organizations, and civil society to discuss social issues.137 The debates are steered by a Chairperson-Rapporteur, appointed every year by the HRC from candidates nominated by regional groups. Expert Mechanism on the Rights of Indigenous Peoples138 The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) is a subsidiary body of the HRC. Created in 2007 by HRC Resolution

134 Forum on Minority Issues. https://www.ohchr.org/EN/HRBodies/HRC/Min ority/Pages/ForumIndex.aspx. 135 Ibid. 136 The Social Forum of the Human Rights Council. https://www.ohchr.org/EN/Iss

ues/Poverty/SForum/Pages/SForumIndex.aspx. 137 Richardson, L. (2015). Economic, Social and Cultural Rights (and beyond) in the UN Human Rights Council. Human Rights Law Review, 15:428. 138 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). https://www. docip.org/en/indigenous-peoples-at-the-un/expert-mechanism/.

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6/36, the EMRIP meets once a year for five days. The Expert Mechanism is mandated to provide the HRC with thematic advice on the rights of indigenous peoples. It also can suggest proposals to the HRC for consideration. Participation of Non-governmental Organizations and National Human Rights Institutions in the Work of the Human Rights Council The CHR had the most liberal rules for the participation of NGOs within the whole UN system. NGOs accredited by ECOSOC could attend all public sessions and make oral statements under different agenda items. They could also submit written statements for circulation among member states.139 These rights were only enjoyed by NGOs with consultative status granted by the so-called NGO Committee of 19 member states which holds its sessions in New York. The criteria for consultative status were specified by ECOSOC Resolution 1996/31 (1996).140 Currently, there are over 3000 NGOs in consultative status with ECOSOC.141 According to the HRC’s founding resolution, the participation of NGOs and national human rights institutions (NHRIs) is based on the CHR model and these practices have been transferred to the Council.142 Research by Laura K. Landolt and Byungwon Woo on the participation of NGOs in the work of the CHR and the HRC indicates that the establishment of the HRC had a visibly positive effect on the participation of domestic and regional NGOs. Their work also demonstrates that more democratic states and CHR/HRC members receive more NGO statements.143 Finally, they note how often the different regions become 139 Abraham, M. (2006). A New Chapter for Human Rights. A Handbook on issues of Transition from the Commission on Human Rights to the Human Rights Council. International Service for Human Rights, Friedrich Ebert Stiftiung. p. 88. 140 Mertus, J. A. (2009). The United Nations and Human Rights. A Guide for a New Era. 2nd Ed. Abingdon, UK: Routledge. p. 62. 141 NGO Branch of UN Department of Economic and Social Affairs. https://esango. un.org/paperless/Web?page=static&content=faqs. 142 Abraham, M. (2006). A New Chapter for Human Rights. A Handbook on Issues of Transition from the Commission on Human Rights to the Human Rights Council. International Service for Human Rights, Friedrich Ebert Stiftiung. p. 91. 143 Landolt, L. K. & Woo, B. (2017). NGOs Invite Attention: From the United Nations Commission on Human Rights to the Human Rights Council. Journal of Human Rights, 16(4):420.

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targets of NGO statements. Middle East and North Africa (MENA) countries receive the most domestic and international NGO statements, while Asia–Pacific countries receive the most regional NGO statements. SubSaharan African countries attract the fewest NGO statements across the board.144 It is clear from the statistical data that the procedural innovations of the HRC provide greater NGO participation, in particular from southern NGOs. A surprisingly large number of NGOs consider that their work can have a meaningful effect on the behaviour of states, and therefore, they are investing large resources to be active in the HRC.145 Olivier de Frouville highlighted, however, that because the HRC is holding three sessions per year, plus the three annual UPR sessions, not to mention the numerous special sessions; it has become very difficult for NGOs to follow all the events. Apart from the financial challenges, there is the increasingly visible phenomenon of GONGOs (governmentorganized NGOs) and the different forms of measures aimed at restricting the meaningful participation of NGOs in the work of the HRC.146 The adoption of HRC Resolution 24/24 entitled “Cooperation with the United Nations, its representatives and mechanisms in the field of human rights” initiated the appointment of “a United Nations-wide senior focal point to engage with all stakeholders, in particular member states, to promote the prevention of, protection against and accountability for reprisals and intimidation related to cooperation with the United Nations, its representatives and mechanisms and to encourage a prompt and effective unified response to such acts by sensitizing the United Nations system as a whole by facilitating cooperation and coordination among all stakeholders, with the overall objective of supporting and promoting cooperation with the United Nations in the field of human rights, including cooperation with civil society”.147 As a result of this

144 Ibid., p. 420. 145 Ibid., p. 421. 146 Frouville, O. (2011). Building a Universal System for the Protection of Human

Rights: The Way Forward. In: M. Cherif Bassiouni & W. A. Schabas (eds), New Challenges for the UN Human Rights Machinery. Cambridge, UK: Intersentia Ltd. p. 249. 147 HRC Resolution 24/24 entitled “Cooperation with the United Nations, Its Representatives and Mechanisms in the Field of Human Rights”. https://www.ohchr.org/EN/ Issues/SRHRDefenders/Pages/Resolutions.aspx.

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resolution, the UN Secretary-General appointed Andrew Gilmour, Assistant Secretary-General for Human Rights, as a senior official on the issue of reprisals in October 2016.148 2.4.3

Assessment of the Work of the Human Rights Council

As already mentioned, ineffectiveness and selectivity were the main weaknesses attributed to the CHR as a result of politicization.149 However, it is difficult to blame a political entity for not doing its utmost to end politicization. Therefore, we must look at the work of the HRC as a successor body through a realistic prism, one that cannot be separated from real politics. Important research was carried out by the Universal Rights Group in 2015, showing that 555 of adopted HRC resolutions were on general thematic issues, while country-specific resolutions shared only 7% of the total output, focusing on 12 situations.150 The research also highlighted that the proportion of resolutions adopted by consensus decreased from 80% in 2007 to 69% in 2014. The authors called attention to the fact that 56% of the human rights resolutions adopted by the Third Committee of the UNGA had an equivalent in the HRC and that 40% had also a substantive overlap in the content too.151 The Third Committee—and not the UNGA plenary—adopts a short resolution annually, submitted by the African Group about the report of the HRC. However, in certain cases, the Third Committee resolution is concerned about specific HRC 148 Sinclair, M. & McEvoy, T. (2018). International Service for Human Rights, Ending Reprisals Against Those Who Cooperate with the UN in the Field of Human Rights. Submission to the UN Secretary-General on Recent Developments, Cases, and Recommendations. p. 2. https://www.ishr.ch/sites/default/files/documents/final_ for_web_ishr_submission_to_sg_reprisals_report_06_05_2018_0.pdf. 149 Salama, I. (2009). Institutional Re-engineering for Effective Human Rights Monitoring: Proposals for the Unfinished Business Under the “New” Human Rights Council. In: G. Alfredsson, J. Grimheden, B. G. Ramcharan, & A. de Zayas (eds), Essays in Honour of Jakob Th. Möller. International Human Rights Monitoring Mechanisms. Leiden-Boston: Martinus Nijhoff Publishers. p. 186. 150 Gujadhur, S., & Lamarque, T. (2015). Universal Rights Group, Ensuring Relevance, Driving Impact: The Evolution and Future Direction of the UN Human Rights Council’s Resolution System. p. 2. https://www.universal-rights.org/urg-policy-reports/ ensuring-relevance-driving-impact-the-evolution-and-future-direction-of-the-un-human-rig hts-councils-resolution-system/. 151 Ibid., p. 3.

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initiatives, as in 2011 regarding the Resolution 17/19 on “human rights, sexual orientation and gender identity” or in 2013 when the Third Committee decided to defer the consideration of Resolution 24/24 on “Cooperation with the United Nations, its representatives and mechanisms”, as many member states—mainly African and Asian—did not support the initiative to designate a UN-wide senior focal point on reprisals. The discussion was about whether the HRC could make a decision affecting the whole UN system.152 Consequently, the new status of the HRC compared to the CHR has the disadvantage that the Third Committee may reopen the Council’s report; this never happened in the relationship with ECOSOC and the CHR. The situation is not that simple, however. Research by Krishna Chaitanya Vadlamannati, Nicole Janz, and Oyvind Isachsen Berntsen on the effects of CHR/HRC resolutions on foreign direct investment (FDI) demonstrates that countries condemned by the CHR/HRC were associated with roughly a 49% decline in FDI inflows.153 It is visible from the data that shaming by the most important UN human rights body is a major driver of the negative effect on FDI, much stronger than the human rights violation itself, which also has a negative effect.154 Consequently, critical HRC resolutions can have tangible economic costs for repressive regimes by deterring foreign investors. Vadlamannati et al. also found that media reporting about human rights violations plays a significant role as well, by strengthening the effects of HRC resolutions on FDI.155 Therefore, international human rights bodies like the HRC can have an important role in encouraging human rights abusing regimes to ameliorate their human rights practice. Sibylle Scheipers considered the institutional design of the HRC a compromise between the position of the North, which aimed at

152 Bichet, E., & Rutz. S. (2016). Universal Rights Group, The Human Rights Council as a Subsidiary Organ: Evaluating Its Relationship with the UN General Assembly and the UN Security Council. p. 7. https://www.universal-rights.org/urg-policy-reports/humanrights-council-subsidiary-organ-evaluating-relationships-un-general-assembly-un-securitycouncil/. 153 Vadlamannati, K. C., Janz, N. & Isachsen Berntsen, O. (2018). Human Rights Shaming and FDI: Effects of the UN Human Rights Commission and Council. World Development, 104:229. 154 Ibid., p. 229. 155 Ibid., p. 234.

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establishing a body with an “exclusive and confrontational institutional design”, and the Global South, which was in favour of inclusiveness and cooperation. Scheipers described this intellectual struggle of two competing paradigms of international order, namely “civilization” and “toleration”. The concrete terms of the establishment of the HRC indicated that the South had managed to prevent the North from imposing its political preference regarding the institutional design of the Council. The solution to the reconciliation of these two competing paradigms was for the HRC to create standards to be followed by the member states.156 Seligman analysed the work of the HRC based on liberal and realist theories and found that on the one side, in supporting the liberal vision, democracies are more likely to support country-focused resolutions, except for those targeting Israel. In the support of the realist theory, he found that many states are using the HRC to “protect friends and criticize foes”. His overall assessment was that the HRC has become even more politicized than its predecessor and is used by many states to “advance their own self-interested political agenda”.157 Rosa Freedman was of the view that the two new mechanisms of the HRC, namely the UPR and the special sessions—which are not new, but due to the lower threshold for convening them their role became much more significant—have been used by regional groups, other blocs, and states to achieve their own political aims, thereby undermining the ability of the HRC to do its job, namely the promotion and protection of human rights. Friedman named the OIC and the African Group as two dominant groups using the new mechanisms to divert attention from their human rights records.158 Marisa Viegas e Silva considered after the first six years of the Council that “the political environment in the Council corresponds to the reality of international relations”.159 Her assessment was more mixed than those

156 Scheipers, S. (2007). Civilization vs. Toleration: The New UN Human Rights Council and the Normative Foundations of the International Order. Journal of International Relations and Development, 10:237–238. 157 Seligman, S. (2011). Politics and Principle at the UN Human Rights Commission and Council (1992–2008). Israel Affairs, 17(4):538–539. 158 Freedman, R. (2011). New Mechanisms of the UN Human Rights Council. Netherlands Quarterly of Human Rights, 29:323. 159 Viegas e Silva, M. (2013). The United Nations Human Rights Council: Six years on. SUR International Journal of Human Rights, 10(18):110.

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previously mentioned, as she highlighted the semi-permanent status of the HRC, the adjustments to the process of selecting members, the possibility of suspending them, and the UPR as positive changes. On the other side, the fact that the HRC is repeating the same mistakes as the CHR, like politicization, double standards, and the strengthened intergovernmental nature of the body leading to the restriction of the role played by civil society, was mentioned as a negative consequence of the establishment of the HRC.160 Theodor Rathgeber was very sharp in criticizing the HRC: “HRC lacks credibility and efficiency, and a majority of states still show low interest to discuss controversial issues”.161 He considered the socalled misplaced notion of solidarity of the Global South to prevent the meaningful human rights monitoring by the HRC. He also highlighted that the construction of the Council as a political body is an atypical one including “fact finding, assessment and negotiations”. He concluded that a more pertinent role should be given to special procedures, NGOs, and the OHCHR, to ameliorate the performance of the HRC.162 Finally, Eric Cox was very clear by stating: “One should not expect the HRC to function differently than did the CHR, as both are fundamentally political institutions that reflect the will of their membership”.163

2.5

Conclusion

The six decades of the CHR cannot be assessed based on the criticisms formulated during the last few years of the most important human rights body in the world. The contribution of the CHR to the international standards-setting activities of the international community in the field of the promotion and protection of human rights and fundamental freedoms was enormous. Such a contribution cannot be negated by criticisms related to politicization or double standards. These are unfortunate but normal signs of an intergovernmental body, influenced by the political 160 Ibid., p. 109. 161 Rathgeber, T. (2010). Ambiguity as a Main Feature: The UN Human Rights

Council in 2009. In: W. Benedek, F. Benoit-Rohmer, W. Karl & M. Nowak (eds), European Yearbook on Human Rights. European Academic Press. p. 193. 162 Ibid., p. 193. 163 Cox, E. (2010). State Interests and the Creation and Functioning of the United

Nations Human Rights Council. Journal of International Law and International Relations, 6(1):89.

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aspirations and agendas of the member states. The CHR did what it could within the confines of Cold War realities, which were replaced by the North–South confrontation in the 1990s. Despite these political hurdles, the CHR managed to establish a sophisticated system of special procedures, covering a wide range of thematic issues and numerous country situations. This database, however, is not used enough. This is one of the areas where the international community could do much more in the interests of more efficient prevention or management of human rights crises. Country offices of the OHCHR should have a pivotal role in this context. A political body like the CHR cannot do more than it is allowed to do by member states and cannot be blamed for being political. The international community decided to replace the CHR with another organ, as many member states thought that a new institutional framework could cure its political deficiencies. It was not surprising therefore that the new body of almost the same size, with the same players and similar political conditions, could not bring about a breakthrough in the international fight against human rights violations. However, the establishment of the UPR process brought a new approach to the whole UN system, by providing human rights monitoring of all UN member states in a cooperative manner, with an increasingly important technical assistance pillar for the implementation of UPR recommendations. In the literature, sufficient emphasis is not put on the importance of HRC side events, which are very often the only place where sensitive issues, like the human rights violations (Tibet, Guantanamo, and Chechnya) committed by P5 countries (USA, Russia, China, UK, France) can be addressed. Civil society is the engine behind these events, bringing human rights defenders (HRDs) or victims to Geneva to call the attention of the international community to human rights violations, which are sometimes not even discussed at the HRC plenary. The HRC’s constantly expanding agenda is not sustainable. There is a desperate need to clean its profile and transfer issues such as toxic waste, housing, or foreign debt to more competent UN bodies. The termination of several thematic mandates is also essential for the HRC to work more efficiently. This could be done by introducing “sunset provisions” into those resolutions covering topics no longer needed or those that should be dealt with by other UN bodies. The UPR process certainly did not render the adoption of countryspecific resolutions redundant; however “naming and shaming” should be

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done more strategically, with better coordination within the UN system, i.e. by increasing the regional dimensions in the work of the world organization. Using the present practice as a fall-back solution where because of political pressure several item 4 (Country situations) resolutions are tabled under item 10 (technical assistance) is only acceptable if there is a real, tangible improvement in the human rights situation of the given state. The soft conditionalities regarding HRC membership are completely neglected by most UN members. We have already reached the point where certain states are not even bothering to submit human rights pledges in connection with their candidacies. It would be politically unrealistic and probably counterproductive to dream about members of the HRC having perfect human rights records, but the pro-human-rights states should encourage the candidacy of countries with a positive political will regarding the promotion and protection of human rights. Another interesting feature of the HRC is that despite the dominance of the African and Asia–Pacific regional groups, and the relative fall-back position of the North within the Council, there are still many important thematic and country-specific initiatives, supported or initiated by the West. The standards-setting legacy of the CHR has also continued. These positive developments are largely due to the increasing importance of inter-regional coalitions, overstepping the traditional North–South dichotomy. In many sensitive issues, WEOG, most of the EEG, and GRULAC, together with human-rights-friendly African and Asian states, have managed to build a successful coalition. The overall democratization process of the world—which is happening despite certain temporal backslides164 —will hopefully further strengthen these positive trends by ameliorating the composition of the Council, as more and more democratic states run for a seat on the HRC. Although, as it become clear from this chapter, the HRC is still not a perfect body in many sense, it is worth referring to the list of significant achievements of the HRC put together by Eric Tistounet, the 164 According to Pew Research, by the end of 2017, 57% of 167 countries with a population of at least 500,000 were democratic, 28% were mixed, and only 13% were autocracies. This democratic wave started in the mid-70s and although there has been a certain backsliding in the last few years, the numbers are still not comparable with those of 1976, when 62% of states were autocratic, 25% were democratic, and 13% had a mixed regime type. https://www.pewresearch.org/fact-tank/2019/05/14/more-thanhalf-of-countries-are-democratic/.

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person who—as a Chief of the HRC Branch in the OHCHR—is among those experts who know the most about this body. He emphasized the following elements among others: The HRC managed to address sensitive, controversial issues and was able to react promptly to human rights crises around the world (Arab Spring). The UPR should be considered as a prominent innovation. Many countries extended a standing invitation to all thematic Special Rapporteurs. The Council played an instrumental role in human rights mainstreaming on issues traditionally not seen as part of the human rights agenda, like climate change. The HRC has a positive role in the promotion of diversity, and for different religions and beliefs. The HRC produced a few ground-breaking reports, like the one on lethal autonomous weapons. It contributed to the abolishment of death penalty in many countries (22 states abolished it since the creation of the HRC). The HRC addressed the challenging issue of violations committed by non-state actors. Lastly, the question of reprisal against those cooperating with the UN was put on the agenda of the HRC and the Council made significant steps to address this alarming phenomena.165 Finally, an important task for the international community is to strengthen the preventive role of the HRC, by using the immense databases of the special procedures system and the UPR strategically. The better composition of the Council, together with the phenomenon of increased cross-regional cooperation among member states and the adequate proportionality of naming and shaming and cooperating with technical assistance will make the Council more suitable to carry out its difficult, but uplifting mandate regarding the international promotion and protection of human rights.

165 Tistounet, E. (2020). The UN Human Rights Council: A Practical Anatomy. Cheltenham, UK: Edward Elgar Publishing. pp. 311–314.

CHAPTER 3

The Internal and External Human Rights Diplomacy of the European Union the Economic Giant Became a Decisive International Human Rights Actor?

The European Union is the world’s most successful invention for advancing peace. John Bruton former Irish Prime Minister1 When the EU speaks, people listen. When the UN speaks on human rights issues, people also listen, and when we are in tune we can be an important force for change. Navi Pillay former UN High Commissioner for Human Rights2

1 John Bruton Quotes. (2021). BrainyQuote.com. BrainyMedia Inc. https://www.bra inyquote.com/quotes/john_bruton_348349. 2 United Nations. (2009). First UN Human Rights Office in European Union Opens in Brussels. Press Release. 14 October. https://news.un.org/en/story/2009/10/317222.

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3.1 The Internal Human Rights Diplomacy of the European Union 3.1.1

Introduction

Even though the EU did not start its career as a human-rights-focused entity, and still cannot be considered as a human rights organization in a Council of Europe (CoE) sense, by the beginning of the twenty-first century it had become a major player in the international protection and promotion of human rights. The increasing role of human rights on the EU agenda can be detected in light of the various treaty revisions during the last three decades, from Maastricht to Lisbon. The promotion and protection of human rights are in the EU’s self-interests. This is not just because it may result in fewer refugees, fewer wars, and less need for development aid, but because it can also “contribute to the creation of a stable framework for international trade and investment”.3 There is still, however, a considerable gap between the internal and external toolboxes available for the EU, related to its external and internal human rights diplomacy. This is especially visible regarding its enlargement policy, which many experts call the “Copenhagen dilemma”. This chapter introduces the development of human rights on the European continent, which led to the creation of the CoE. It then gives an overview of how the European Economic Community (EEC), the European Community (EC), and subsequently the EU gradually expanded its instruments to address human rights violations happening in member states. Although this process started in the 1970s, the results are still mixed. There is a real danger that insufficient internal human rights diplomacy will undermine both the credibility of the EU enlargement process and the increasingly sophisticated external human rights diplomacy of the EU.

3 Harris, G. (2013). Conclusion: Looking to the Future: No Hubris, No False Modesty. In: J. E. Wetzel (ed), The EU as a ‘Global Player’ in Human Rights? Abingdon, UK: Routledge. p. 235.

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The Religious and Historical Roots of Modern Human Rights in Europe

The first references to the rights and duties of people can be found in written sources like the Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Koran, or the Analects of Confucius,4 which came into existence outside of Europe. The first event marking the birth of human rights, according to the UN, took place in the present territory of Iraq in 539 BC, when Cyrus the Great conquered Babylon, freed the slaves, declared that everyone had the right to choose their religion, and established racial equality known as the Cyrus Cylinder, the first human rights document.5 The Edicts of the ancient Indian King Ashoka (BC third century) or the Constitution of Medina (622) are also significant non-European documents with great human rights importance.6 Yet most experts consider the creation of the modern notion of human rights a mainly European project. European documents which made the most significant contribution to the cause of human rights include the Magna Carta of 1215 (establishing that everyone including the king or the queen is subject to the law), the Petition of Right of 1628, the Habeas Corpus Act of 1679, the first English Bill of Rights of 1689 (affirming free elections, freedom of speech, and freedom from “cruel and unusual punishment”), and the French Declaration on the Rights of Man and the Citizens of 1789. One document which was drafted outside of Europe, however, had a great effect on the European development: the US Constitution of 1791 and its Bill of Rights.7 In this context, we have to mention the Four Geneva Conventions (adopted between 1864 and 1949) that safeguard the human rights of individuals in a conflict and the Hague Conventions from 1899 and 1907, aimed at regulating—first time in history—the laws of war. 4 Flowers, N. (ed). (n.d.) A Short History of Human Rights, Part 1: Human Rights Fundamentals. http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part1/short-history.htm. 5 Sustainability for All. (n.d.). A Brief History of Human Rights. https://www.active

sustainability.com/sustainable-development/brief-history-human-rights/. 6 Pasture, P. (2018). The Invention of European Human Rights. The Journal of the Historical Association, 103:485. https://onlinelibrary.wiley.com/doi/abs/10.1111/1468229X.12619. 7 Speak Truth to Power Canada. (n.d.). A Short History of Human Rights. https:// sttpcanada.ctf-fce.ca/human-rights/history/.

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The establishment of the International Labour Organization (ILO) in 1919 marked an important milestone regarding the protection of workers’ rights. The League of Nations played a significant role in the field of minority protection by facilitating the conclusion and the monitoring of minority agreements or of minority clauses within peace agreements concluded after World War I. However, the credibility of the organization unfortunately waned due to its failure to prevent the Japanese invasion of China and Manchuria (1931), the attack of Ethiopia by Italy (1935), and the military preparation of Hitler. There is no consensus about the source of natural rights, which was the basis of the modern concept of human rights. Many experts argue that the idea of natural rights first emerged in the works of secular political philosophers of the Enlightenment, like Locke or Hobbes. Others are of the view that the notion of natural rights came from the “legal culture of the Christian West in the Early Middle Ages” and they inspired the philosophers of the Enlightenment.8 Despite disputes over the origin of natural rights, there is an agreement that one of the most important contributions of Christianity was the affirmation of the dignity of the man, going back to the fundamental Christian teaching about the intrinsic value of all human beings and their moral equality.9 This value is based on the idea—according to the believers—that all human beings are created by God. As man is created in the image of God, man has a certain dignity and was given domination over the rest of creation (Genesis 1:26). According to Samuel Moyn, a significant development occurred after World War II when the Roman Catholic Church no longer rejected the secular and liberal language of human rights and the Protestant elite considered human rights as a key concept for the future world order.10 As a result, today’s Liberal and Conservative Protestant, Roman Catholic, and Orthodox churches are remarkably united in supporting human rights advocacy. This is particularly significant in light of the historic

8 Wolterstorff, N. P. (2011). Christianity and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. p. 43. 9 Bottone, A. (2018). The Christian Contribution to the Universal Declaration of Human Rights. Iona Institute for Religion and Society. 6 December 2018. https:// ionainstitute.ie/the-christian-contribution-to-the-universal-declaration-of-human-rights/. 10 Moyn, S. (2017). Christian Human Rights: An Introduction. King’s Law Journal, 28(1):2.

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relationship between Christianity and human rights, which was quite an ambiguous one, since the Christian Church was an active promoter of religious intolerance, prosecuting those who did not agree with its moral values and customs. Some of them (like the subjugation of women, the acceptance of slavery, and discrimination on the basis of sexual behaviour) are now considered against contemporary human rights norms.11 The way forward from this position till the late 1960s, when the World Council of Churches launched specific human rights programmes, is certainly noteworthy. 3.1.3

“Conservative Human Rights Revolution” and the Establishment of the Council of Europe

Marco Duranti’s important book on the so-called conservative human rights revolution puts the European political context leading to the adoption of the European Convention on Human Rights and the ECtHR in a completely different light. He does not deny the central role the European left played regarding the promotion of civil liberties, ending discriminatory measures against vulnerable groups, and securing economic and social rights, all of which were decisive in the course of drafting the UDHR. They also had a significant influence on the work of the UN CHR.12 However, Duranti argues that European conservatives considered that post-war socialists—who were in power in the UK and in France, too—wanted to centralize bureaucratic authority over economic and social affairs, and in these interests, they could reject the checks over the majority rule. The conservatives responded to this fear with the establishment of the European human rights system, which “would replace majority rule with the rule of law, the unitary state with a more pluralistic system, the absolute sovereignty of nations and parliaments with greater autonomy for individuals, families, localities, minorities, and civil society”.13 11 Villa-Vicencio, C. (2000). Christianity and Human Rights. Journal of Law and Reli-

gion, 14(2):579. https://www.cambridge.org/core/journals/journal-of-law-and-religion/ article/christianity-and-human-rights/3EBCF1C49AFC838D1D6781624D212B9D. 12 Duranti, M. (2017). The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention. Oxford, UK: Oxford University Press. p. 6. 13 Ibid., p. 403.

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The so-called European Movement was dominated by conservative politicians, including the prominent figure of former British Prime Minister Winston Churchill. It was at the forefront of the pan-European efforts aimed at surpassing the nation-state by some type of European federalism, in order to solve not only the economic and psychological crisis of the continent, but to guarantee a sustainable peace in Europe after two horrible wars.14 The novelty of this conservative Europeanism was its association at the end of the 1940s with human rights, which were not framed as “recent liberal innovations but rather as part of Europe’s Christian and humanist heritage”.15 This movement was also among the most vocal supporters of involving Germany in the European integration process and thereby diminishing the demons of the Nazi past.16 According to Patrick Pasture, the tragedy of the Holocaust was a much less significant factor during the drafting of the European Convention that it was regarding the UDHR.17 To sum up, the European human rights system intended in parallel to halt the advance of socialism, reconstruct the ethical foundation of liberal capitalism, and restore the elements of an older social order.18 Therefore, the European Court of Human Rights (ECtHR) should be seen, according to Duranti, as a product of the free market with a social conservative origin. The European conservatives excluded the colonies and the communist states from the protection system of the CoE by considering human rights a derivative of a Christian Western European civilization.19 It was visible 14 Bates, E. (2011). The Birth of the European Convention on Human Rights—And the European Court of Human Rights. In: J. Christoffersen & M. R. Madsen (eds), The European Court of Human Rights Between Law and Politics. Oxford, UK: Oxford University Press. p. 19. 15 Duranti, M. (2017). The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention. Oxford, UK: Oxford University Press. p. 351. 16 Ibid., p. 359. 17 Pasture, P. (2018). The Invention of European Human Rights. The Journal of the

Historical Association, 103:495. https://onlinelibrary.wiley.com/doi/abs/10.1111/1468229X.12619. 18 Duranti, M. (2017). The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention. Oxford, UK: Oxford University Press. pp. 392–393. 19 Ibid., pp. 165–166.

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from the text of the European Convention on Human Rights (ECHR) which managed to avoid the application of the antidiscrimination clause to “everyone”, as was the case in the UDHR. It is also important to note that the individual petition system, which was the real novelty of the European Convention, was optional originally, together with the application of the Convention to colonies and the acceptance of the jurisdiction of the Court.20 It was not surprising, therefore, how the President of the Consultative Assembly commented on the adoption of the Convention: “It is not a very good Convention, but it is a lovely Palace”.21 In 1953, at the time of the entry into force of the Convention, only three states (Denmark, Ireland, and Sweden) accepted the right to individual petition and two (Denmark and Ireland) the jurisdiction of the Court.22 This latter was only accepted in 1959 by sufficient number of CoE member states to become functional. The whole process started very slowly. In the 1950s, only five applications were admitted by the Commission. This number went up to 54 throughout the 1960s. The number of cases that reached the Court was much smaller, so in this early period the Commission’s role was much more significant than that of the Court.23 (The Court delivered only 10 judgements during its first 10 years.) In several states, such as Italy and France, Parliament decided to prevent communist delegates participating in their national delegations to the CoE’s Consultative Assembly.24 “The coupling of European 20 Madsen, M. R. (2010). Legal Diplomacy—Law, Politics and the Genesis of Post-War European Human Rights. In: S.-L. Hoffman (ed), Human Rights in the 20th Century. Cambridge, UK: Cambridge University Press. p. 8. https://www.researchgate.net/pro file/Mikael_Madsen/publication/292491181_%27Legal_diplomacy%27_-_law_politics_ and_the_genesis_of_postwar_European_human_rights/links/59f7112aaca272607e2be ea7/Legal-diplomacy-law-politics-and-the-genesis-of-postwar-European-human-rights.pdf? origin=publication_detail. 21 Bates, E. (2011). The Birth of the European Convention on Human Rights—And the European Court of Human Rights. In: J. Christoffersen & M. R. Madsen (eds), The European Court of Human Rights Between Law and Politics. Oxford, UK: Oxford University Press. p. 29. 22 Ibid., p. 40. 23 Madsen, M. R. (2010). Legal Diplomacy—Law, Politics and the Genesis of Post-War

European Human Rights. In: S.-L. Hoffman (ed), Human Rights in the 20th Century. Cambridge, UK: Cambridge University Press. p. 11. 24 Duranti, M. (2017). The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention. Oxford, UK: Oxford University Press. p. 179.

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integration with a human rights treaty legitimized the creation of a noncommunist bloc during a delicate moment of transition in European international relations”.25 In their view, colonial subjects and communists were not entitled to equal protection as they were not part of the “historical community of European peoples who honoured the ethical inheritance of the West”.26 However, the colonial policy of the European empires made the European human rights policy extremely vulnerable in the 1950s. Not surprisingly, political human rights completely disappeared from the European agenda in these years.27 The beginning of the Cold War ideology was marked by the invitation to Greece and Turkey to join the CoE, whose authoritarian character was beyond doubt. It was very telling that only the Swedish delegation argued against their admission.28 The political atmosphere which led to the creation of the CoE was well demonstrated by Paul-Henri Spaak, President of the Consultative Assembly of the Council of Europe. He joked that the person who did the most for the creation of the CoE was Joseph Stalin.29 As was eloquently put by Mikael Rask Madsen, “if the UN Human Rights Commission was to be paralyzed by Cold-War-inspired confrontations, the European human rights regime was fuelled by Cold-War-enthused sentiments”.30 In other words, the human rights project represented a sort of “Cultural Cold War”. Duranti even considered the construction of the European human rights law as a counter project to the work of the UN, where non-state actors played the most important role, contrary

25 Ibid., p. 10. 26 Ibid., p. 10. 27 Pasture, P. (2018). The Invention of European Human Rights. The Journal of the

Historical Association, 103(356):501. https://onlinelibrary.wiley.com/doi/abs/10.1111/ 1468-229X.12619. 28 Duranti, M. (2017). The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention. Oxford, UK: Oxford University Press. pp. 180–181. 29 Bates, E. (2011). The Birth of the European Convention on Human Rights—And the European Court of Human Rights. In: J. Christoffersen & M. R. Madsen (eds), The European Court of Human Rights Between Law and Politics. Oxford, UK: Oxford University Press. p. 18. 30 Madsen, M. R. (2010). Legal Diplomacy—Law, Politics and the Genesis of Post-War European Human Rights. In: S.-L. Hoffman (ed), Human Rights in the 20th Century. Cambridge, UK: Cambridge University Press. pp. 17–18.

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to the UN HRC where this role was played by states.31 Duranti also emphasized that the safeguarding of property rights and parental education did not find their way into the two UN Covenants in 1966, but were included in the First Protocol of the European Convention, after lengthy discussions.32 3.1.4

The Geopolitical Factors Inspired the Creation of the European Union

József Böröcz, in his book The European Union and Global Social Change: A Critical Geopolitical—Economic Analysis, gives a new, innovative explanation about the main causes that led Europe to engage in colonialization and then to search for ways to integrate European economies. Böröcz demonstrates that Western Europe played a peripheral role in the world trade system before capitalism. This fact was coupled by the relatively low weight of the population of the region (about 13.06% of the world population in 1500, compared to China’s 23.5%).33 Besides these comparative disadvantages, the strengthening of the Russian Empire on the East and the Osman Empire on the South heavily restrained the involvement of Western Europe in Afro-Eurasian trade and turned their attention to the West.34 The smallness and marginality of the region resulted in colonization as serious expansion was not possible on the continent due to the complicated system of power balances. In this process, the trading class and the states had the same interests and sometimes the role of the soldiers and merchants was mixed up.35 Even after colonization, however, the gross domestic product (GDP) share of the most important European colonial power in the world did not reach the size of the Chinese one in the sixteenth century. The relative dominance of the British Empire at the end of the nineteenth century was due to

31 Ibid., p. 323. 32 Ibid., p. 329. 33 Böröcz, B. (2018). Az EU és a világ. Kritikai elemzés. Budapest, Hungary: Pesti

Kalligram. p. 41. Originally published in English in 2009 as The European Union and Global Social Change: A Critical Geopolitical—Economic Analysis. Abingdon, UK: Routledge. 34 Ibid., p. 44. 35 Ibid., p. 59.

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the dramatic backsliding of the Manchurian Empire.36 Consequently, as stated by Böröcz, the Western European states reached the limits of their possible economic weight between the middle of the nineteenth century and the mid-twentieth century. It is very telling that in 1950, at the time of the collapse of the colonial system, Great Britain represented 6.5% of the global economy, while Germany and France were at 4%, Italy was at 3%, and the Netherlands and Spain at 1%.37 The horrible destruction of World War II inspired the creation of a new European cooperation system to prevent future aggression by any state of the region.38 The damages that occurred as a result of World War II made the economic unbalance between the USA and Europe even bigger, also stipulating a European integration process. 3.1.5

Major Steps in Development Leading to the Enhanced Role of Human Rights Within the European Union Internal Policy

The activities of the European Movement led to the creation of the CoE in 1949. It aimed at greater unity between its members by common action in different fields, including human rights and fundamental freedoms.39 However, there were divergent views about what this unity would actually mean. This was well illustrated by the weak institutional character of the CoE and by the failure of the European Political Community in 1954. Due to the lack of agreement on a parallel European Defence Community, the European Political Community did not come into existence. Instead, the path of a sectoral, economic cooperation was followed, where the Treaty Establishing the European Economic Community (Treaty of Rome) did not include any reference to human rights and the respect of fundamental rights was not among the preconditions for membership, as was the case for the CoE. However, the Treaty Establishing the European Economic Community (1957) contained a few articles that had a certain impact on human rights, such as those concerning equal pay for men and women. In 1969, in the 36 Ibid., p. 70. 37 Ibid., p. 73. 38 Ibid., p. 142. 39 Douglas-Scott, S. (2017). Introduction. In: S. Douglas-Scott & N. Hatzis (eds), Research Handbook on EU Law and Human Rights. Cheltenham, UK: Edward Elgar Publishing. pp. 16–17.

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Stauder v City of Ulm case, the European Court of Justice (ECJ) stated “fundamental rights common to the constitutional traditions of member states and/or protected in international agreements to which member states were party, are enshrined in the general principles of Community law”.40 This development was followed in 1973 by the European Council (Heads of States) which identified from the outset that the respect of fundamental rights was a vital element of European identity.41 An important step was taken in 1977 by the Joint Declaration of the European Parliament, the Council, and the Commission concerning the protection of fundamental rights and the Convention for the Protection of Human Rights and Fundamental Freedoms, later known as the ECHR (Luxembourg, 5 April 1977) “stressing their commitment to fundamental rights arising from the sources identified by the ECJ, and pledged to respect them in exercising their powers”.42 In 1979, the European Parliament adopted a resolution suggesting the EU’s accession to the ECHR.43 In 1986, the ECJ in the Les Verts v Parliament case qualified the rule of law as an unwritten constitutional principle.44 In the 1980s, the European Parliament remained the most progressive institution of the EU, and in 1989, it adopted a Declaration on a List of Fundamental Rights, which was not accepted by the other institutions as legally binding.45 In 1992, the Maastricht Treaty on European Union (TEU) introduced the notion 40 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. pp. 238–239. 41 European Commission. (1973). The Copenhagen Summit Conference, Bull. EC

12-1973, p. 119. https://ec.europa.eu/dorie/fileDownload.do;jsessionid=1KGyQ1tKt TpNjBQwQh6cwgC2yLn7BJMymvTrDq5s2rD3JYR9RfGQ!243197488?docId=203013& cardId=203013. 42 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 239. 43 EU. (2018). Respect for Fundamental Rights in the European Union, Fact Sheet No. PE 600.415, 16 April 2018, p. 6. 44 Schroeder, W. (2016). The European Union and the Rule of Law—State of Affairs and Ways of Strengthening. In: W. Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation. Oxford, UK: Hart Publishing. p. 9. 45 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 240.

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of EU citizenship and converted the jurisprudence of the ECJ into a treaty obligation by stating that the Union would “respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to member states, as general principles of community law”.46 In 1993, the European Council included among the so-called Copenhagen criteria47 that “Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect of minorities…”. In 1994, the European Parliament continued its activism on human rights and adopted a draft constitution containing a revised version of the 1989 list of rights.48 The Treaty of Amsterdam brought an important change in 1997 by affirming that the “Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law principles which are common to the member states”.49 The Treaty also stipulated a new objective for the EU, namely to “maintain and develop the Union as an area of freedom, security and justice”.50 These treaty amendments envisaged the transformation of the “Community from a single market organization to the Union as a community of values”.51 At the same time, the Commission established an Expert Group on Fundamental Rights to monitor the accession process of the 46 Ibid., p. 241. 47 The Copenhagen Criteria are the following: (1) stable institutions guaranteeing

democracy, the rule of law, human rights and respect for and protection of minorities. (2) A functioning market economy and the capacity to cope with competition and market forces in the EU. (3) The ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic, and monetary union. 48 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 241. 49 Schroeder, W. (2016). The European Union and the Rule of Law—State of Affairs and Ways of Strengthening. In: W. Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation. Oxford, UK: Hart Publishing. p. 9. 50 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 242. 51 Schroeder, W. (2016). The European Union and the Rule of Law—State of Affairs and Ways of Strengthening. In: W. Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation. Oxford, UK: Hart Publishing. p. 9.

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Union to the ECHR, which was seen as the best way to enhance the role of the human rights component within the EU.52 The report by this Expert Group significantly contributed to the decision of the Cologne European Council in 1999 to establish the Charter of Fundamental Rights of the EU. It was drafted by the European Convention and proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers, and the European Commission. The Lisbon Treaty in 2009 gave the EU Charter of Fundamental Rights the same status as the EU treaties. The Treaty of Nice (2001) made one significant contribution to the development of an efficient internal human rights system of the Union, by incorporating a preventive mechanism into Article 7 of the TEU, enabling the Council to determine a “clear risk” of a serious breach of fundamental rights, together with monitoring the process and making appropriate recommendations to the concerned member state.53 The proposed Constitution for Europe—intended to replace the founding treaties in 2004—would have brought important changes in the field of human rights protection within the EU, by incorporating the Charter of Fundamental Rights and including human rights among the values of the Union. But as we know, the Constitutional Treaty was rejected by French and Dutch voters so it never came into force. The inauguration of the Fundamental Rights Agency (FRA)54 on 1 March 2007 represented another important step in providing assistance and expertise in the field of fundamental rights to EU bodies and member states. Its work mainly contains data collection, the production of expert opinion, the creation of communication strategy, and dialogue with civil society. However, in the case of future political will by the member states, there is huge potential in the Agency to become the intellectual engine of human rights developments within the EU. So far, the most remarkable achievements occurred with the adoption of the Treaty of Lisbon (signed in 2007, came into force in 2009). It not just rendered the Charter legally binding as part of the EU law but also recognized the single legal personality of the EU, making it possible 52 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. pp. 242–243. 53 Ibid., p. 243. 54 Fundamental Rights Agency. https://fra.europa.eu/en.

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for the organization to join human rights treaties. This happened the first time in 2010, with the EU’s accession to the UN Convention on the Rights of Persons with Disabilities.55 An important provision of the Lisbon Treaty was Article 6(2) of the TEU, which makes it clear that the EU should join the ECHR, as it states that the Union “shall” accede to the ECHR, in a manner which will not “affect the Union’s competences as defined in the Treaties”.56 As a result, intensive negotiations started between the CoE and the EU about accession. However, at the request of the Commission of July 2013, the Court of Justice of the European Union (CJEU) rendered an Opinion in which it concluded (Opinion 2/13) on 18 December 2014 that the draft agreement on the accession of the EU to the ECHR was not compatible with EU law.57 In light of this Opinion, it became more difficult and time consuming for the EU to join the ECHR in the near future, despite the wording of the Lisbon Treaty. However, it is clear from diplomatic sources that the Commission is willing to resume negotiations on the accession of the EU to the ECHR. In spite of the modest beginning of the early years of the organization, by now the EU has made significant progress in mainstreaming human rights in most of its policy areas and has developed a remarkable human rights policy. Therefore, many observers were not that surprised when in October 2012, the Norwegian Nobel Committee awarded the Nobel Peace Prize to the EU. The main results mentioned by the Committee were “the successful struggle for peace and reconciliation and for democracy and human rights”.58

55 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 244. 56 Groussot, X. & Stavefeldt, E. (2015). Accession of the EU to the ECHR: A Legally Complex Situation. In: J. Nergelius & E. Kristoffersson (eds), Human Rights in Contemporary European Law: Swedish Studies in European Law, Vol. 6. Oxford, UK: Hart Publishing. p. 10. 57 EU. (2018). Respect for Fundamental Rights in the European Union, Fact Sheet No. PE 600.415, 16 April 2018, p. 4. 58 Duranti, M. (2017). The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention. Oxford, UK: Oxford University Press. p. 407.

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Present Tools and Sources of European Union Internal Human Rights Diplomacy

In this section, we take a snapshot of the present tools which are at the disposal of the different EU institutions to address the cause of human rights internally. This internal human rights structure is extremely complicated. From one side, it is affected by the permanent conflict between the member states and the EU institutions over the scope and content of fundamental rights. From the other side, it is characterized by a certain duality, partly centred on the EU Charter and partially on the ECHR.59 The protection of fundamental rights is a shared responsibility within the EU, and its legal basis is fragmented between the different policy areas.60 It is not surprising therefore that fundamental rights are often used within the EU for strategic aims, namely for building alliances or increasing influence. The situation is even more complicated in light of the fact that the EU can be equally regarded as a quasi-state, where the individuals should be protected from it. It also can be seen as an international organization focusing on the human rights violations of member states.61 Therefore, the EU has to combine two roles: the one of a judicial supervisor of fundamental rights and the other of an organization ensuring fundamental rights through its substantive policies. Compared to the CoE system monitoring the implementation of the ECHR, the EU has a set of sophisticated political institutions, with a corresponding decision-making machinery in which the different actors are consulted and included in the interests of passing certain legislative measures. There is also a significant apparatus in charge of implementing and monitoring fundamental rights within national systems.62 This chapter presents the different mechanisms which can be used in the case of a violation of fundamental rights and the EU institutions responsible for monitoring the respect of fundamental rights, or promoting human rights within the Union. Despite the significant influence the ECHR wields on the internal human rights situation of the EU, it is not addressed here in detail as it belongs to the CoE human 59 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 2. 60 Ibid., pp. 84–86. 61 Ibid., pp. 18–19. 62 Ibid., p. 45.

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rights protection system, which is used by the EU as well. The ambivalent relationship between the Charter and the Convention is manifested in the tension between the competing imperatives of homogeneity on the one hand and institutional autonomy on the other.63 The Constitutional Fundamental Rights of the European Union, the Question of European Values Article 2 of the TEU contains the values of the EU: respect for human dignity, freedom, democracy, equality, the rule of law, and human rights, including the rights of persons belonging to minorities. According to Article 49 of the TEU, those states that are willing to join the EU should respect and promote the values enshrined in Article 2. This respect and promotion is an important precondition of EU membership. Article 6 of the TEU mentions the Charter of Fundamental Rights of the European Union (CFR) and the ECHR as the “bill of rights in the European legal culture”.64 Besides the recognition of the rights and principles contained in the CFR, the EU considers the fundamental rights guaranteed by the ECHR as general principles of the law of the Union. The third source of fundamental rights mentioned in Article 6 of the TEU is the constitutional traditions common to member states. The Commission considers these values, together with legality, legal certainty, prohibition of arbitrariness of the executive powers, independent and impartial courts, effective judicial review including respect for fundamental rights, and equality before the law to constitute the concept of the rule of law.65 The protection and promotion of fundamental rights are not possible without respect for the rule of law, which is an important precondition of the mutual trust between member states. Oliver Mader considers that this shift from principles to values only mirrors the “constitutionalization” of the legal order of the EU, meaning that it has deeper roots than only the “successful economic integration,

63 Brittain, S. (2015). The Relationship Between the EU Charter of Fundamental

Rights and the European Convention on Human Rights: An Originalist Analysis. European Constitutional Law Review, 11(482):502. 64 Altafin, C., Haasz, V. & Podstawa, K. (2016). Assessing the Strategic Use of the EU Fundamental and Human Rights Toolbox. European Inter-University Centre for Human Rights and Democratization, 30 June 2016, Frame, p. 46. 65 Ibid., p. 47.

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legal approximation or a strong internal market”.66 The level of commitment to these values and their enforcement also determines whether we are speaking about a “community of interests” or about a “union of values”. According to Yolanda Onghena, these values are indistinguishable from universal values. What makes them “European” is “the historical importance of countries who had just lived through and participated in the two world wars recognising shared values”.67 Europe is going through an identity crisis now and the situation compared to that after World War II in which peace was the common denominator and out of which solidarity, tolerance, and justice were born, is very different today, where the values of tolerance and openness are in decline. This identity crisis was dramatically documented by the Policy Brief of the European Council on Foreign Relations. It states that according to an April 2019 survey conducted in 14 EU member states, in every member state except Spain the majority of voters believed that it was possible that the EU would fall apart in the next 10–20 years.68 This is even more shocking that a large proportion of Europeans in every member states believe that a war between EU countries is possible. These results are in strong contradiction with the Eurobarometer survey stating that twothirds of EU voters are of the view that EU membership has been positive for their country.69 The Austrian-based association EuropeanValues.info lists six fundamental European values: humanistic thinking, rationality, secularity, rule

66 Mader, O. (2019). Enforcement of EU Values as a Political Endeavour: Constitutional Pluralism and Value Homogeneity in Times of Persistent Challenges to the Rule of Law. Hague Journal on the Rule of Law, 11(1):133–170. https://link.springer.com/art icle/10.1007/s40803-018-00083-x. 67 Onghena, Y. (2015). The Crisis of European Values. CIDOB, Barcelona Center for International Affairs, November 2015. https://www.cidob.org/en/articulos/monogr afias/refugiados/the_crisis_of_european_values. 68 Dennison, S., Leonard, M. & Lury, A. (2019). European Council on Foreign Relations, Policy Brief: What Europeans Really Feel: The Battle for the Political System. https://www.ecfr.eu/publications/summary/what_europeans_really_feel_the_bat tle_for_the_political_system_eu_election. 69 Ibid.

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of law, democracy, and human rights. According to their vision, these six values led to the establishment of our modern humanistic worldview.70 Bill Wirtz, however, is of the view that European charters or conventions represent a poor justification for the existence of so-called European values. He argues that values “arise from feelings within a society” and besides that the EU does not have a monopoly over these values. In his final conclusion, he states that the only acceptable argument is that the EU is a “beneficial economic and political project that improves the lives of the citizens living inside its borders”.71 Gabriela Langholf expressed the view that fundamental rights could serve to fight populism in the member states. According to her, the rise of populism is closely connected to societal malaise, so the EU should devote more attention to social and economic rights.72 The Robert Schuman Foundation, in its paper establishes that between 2004 and 2015 although there were differences between the new and old members of the EU regarding socio-economic indicators, they had no serious effect on political life in the EU. In 2015, the migration crisis strengthened the East–West split and challenged the basic values of the Union.73 These differences are well documented by surveys conducted by the Pew Research Centre between 2015 and 2017, establishing that people in Central and Eastern Europe are less accepting of Muslims and Jews, same-sex marriage, and legal abortion.74 Another important finding was 70 EuropeanValues.info. (n.d.). Definition of the Most Basic European Values and Their Significance for Our Modern Society, p. 26. http://europaeischewerte.info/fileadmin/tem plates/Documents/ewdef_en.pdf. 71 Wirtz, B. (2018). What Are “European Values” Anyway? 24 January 2018. Fee— Foundation for Economic Education. https://fee.org/articles/what-are-european-valuesanyway/. 72 Langholf, G. (2019). European Values as a Tool Against Right-Wing Populism. Polis Blog. https://polis180.org/polisblog/2019/03/29/european-values-as-a-tool-aga inst-right-wing-populism/. 73 Robert Schuman Foundation. (2018). In the Face of the European Union’s Political Crisis: The Vital Cultural Struggle Over Values. European Issues no. 479. https://www.robert-schuman.eu/en/european-issues/0479-in-the-face-of-theeuropean-union-s-political-crisis-the-vital-cultural-struggle-over-values. 74 Pew Research Center. (2018). Eastern and Western Europeans Differ on Importance of Religion, Views of Minorities, and Key Social Issues, 29 October 2018. https://www.pewforum.org/2018/10/29/eastern-and-western-europe ans-differ-on-importance-of-religion-views-of-minorities-and-key-social-issues/.

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that for most people from the former Eastern Bloc, religion is a major part of their national identity, which is not the case in Western Europe. It is interesting to see, however, that according to a survey conducted by Eurobarometer in 2012, the majority of Europeans considered that they were close to each other in terms of shared values. Europeans mentioned human rights and respect for human life first among the personal values.75 Peace and democracy were mentioned most often as values best representing the EU.76 As we can see, there is no clear agreement among Europeans about the real content of European values, which are in a constant state of change and mean something differing in the different European societies. They are related to the “feelings in a society”, which are influenced by political and economic developments. Therefore, a credible, value-based European policy by the leaders of the continent would have a significant effect on the perception of personal values by European citizens and the values considered that best represent Europe. European Union Charter of Fundamental Rights The drafting and the adoption of the Charter were not a complete surprise in 2000 as the EU did not have its own single document containing a comprehensive list of fundamental rights. Although all EU member states were party to the ECHR, they could have been in a difficult position if a human rights violation occurred by a member state while it was implementing EU law.77 The increasingly visible clash between economic interest and the protection of human rights also required action by the EU institutions. There are several differences between the Convention and the Charter, both in scope and in methodology. Given the 50 years which exists between their adoption, it is not surprising that the Charter expands or updates rights which were already in the Convention. It also provides a more extensive catalogue of rights than the ECHR, including social, 75 European Commission. (2012). The Values of Europeans. Standard Eurobarometer

77. Spring 2012, p. 10. https://ec.europa.eu/commfrontoffice/publicopinion/archives/ eb/eb77/eb77_value_en.pdf. 76 Ibid., p. 12. 77 Kerikmae, T. (2014). EU Charter: Its Nature, Innovative Character, and Horizontal

Effect. In: T. Kerikmae (ed), Protecting Human Rights in the EU. Berlin, Heidelberg: Springer-Verlag. p. 5.

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economic, cultural, and citizenship rights.78 It also stipulates new rights, such as the right to good administration; the rights allocated to specific class of people, like the elderly or those with disabilities; and rights that can only be exercised in a collective manner, such as the right to collective bargaining. An important innovation of the Charter is the inclusion of principles which are not judicially recognizable rights per se. Unlike the ECHR, the Charter does not provide limitations to certain provisions, but it does contain a general limitation: the limitation should be provided for by the law, it should respect the essence of the rights, and it must be subject to the principle of proportionality. The last important difference between the two documents is while the ECHR binds member states in all their activities, the Charter—in line with its Article 51—mostly addresses EU institutions and bodies and only concerns member states when they are implementing EU law.79 Looking at the reference the Charter contains regarding the case law of the ECtHR, it is obvious that the drafters intended to create an independent human rights instrument, and not a CoE clone. The Charter only recognizes its case law as a source of inspiration, giving equal importance to the human rights case law of the ECJ.80 It certainly does not intend to impose a legally binding obligation on the ECJ to follow the jurisprudence of the ECtHR, which of course does not mean that the ECJ does not refer to the case law of the ECtHR, but it does not do so in a uniform manner.81 The ECHR was considered a minimum standard by the drafters of the Charter. It is important to note that the Charter does not extend the EU competences, so it does not give legal ground for EU legislation. Finally, the EU Charter does not provide any rights of individual petition.82

78 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. pp. 249–250. 79 Ibid., p. 250. 80 Brittain, S. (2015). The Relationship Between the EU Charter of Fundamental

Rights and the European Convention on Human Rights: An Originalist Analysis. European Constitutional Law Review, 11:501. 81 Ibid., pp. 504–505. 82 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of

Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 251.

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By the entry into force of the Lisbon Treaty, the Charter became a legally binding document, receiving equal status to treaties and having a significant impact of the ECJ’s case law. Since 2010, the Commission has also published reports about the application of the Charter. This elevated status was manifested in the adoption of detailed guidelines by the Council for its preparatory bodies in order to take into account the Charter during the preparation of their proposals. The European Parliament also started to scrutinize the Charter’s compatibility with its legislation.83 Infringement Proceedings Under Article 258 of the Treaty on the Functioning of the European Union (TFEU), the Commission can turn to the CJEU to obtain a judgement finding that a member state has failed to comply with EU law.84 In 2016, the Commission made it very clear that it is going to use this tool in a more strategic manner, turning to infringement proceedings only as a last resort, in cases when no agreement has been reached with a member state and the chances of convincing the Court of the violation of fundamental rights by the member state are high. If the member state is not willing to comply with the judgement of the Court, the Commission can bring the case again to the ECJ, but this time with the prospect of financial penalty under Article 260 of the TFEU.85 The Commission used this tool to address issues like the right of same-sex spouses to join EU citizens residing in Malta, or the discrimination against Roma children in education in the Czech Republic, Slovakia, and Hungary. In 2012, for the first time, the Commission launched infringement proceedings against a member state (Hungary) before the Court for non-compliance with certain directives and corresponding key provisions of the CFR.86 The negative Court decision prompted a remedial judicial and legislative response at domestic level. 83 Ibid., pp. 253–254. 84 de Schutter, O. (2017). Infringement Proceedings as a Tool for the Enforcement of

Fundamental Rights in the European Union. Open Society European Policy Institute. p. 4. 85 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 262. 86 Ibid., p. 263.

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The efficiency of this tool is well manifested by the statistics, according to which in 2014/2015, 75% of cases were closed as the Commission received a successful response from the member state.87 Article 7 Procedure, “the Nuclear Option” According to Article 7 of the TEU, based on the proposal by either the Commission or one-third of the member states, supported by the European Parliament, the European Council can unanimously determine (with the exception of the concerned state) that a “serious and persistent breach” of the founding values contained in Article 2 of the TEU has occurred in a member state.88 In this case, the Treaty rights of the offending state can be suspended. This provision was considered by many observers as the internalization of the Copenhagen criteria for accession. On 20 December 2017, the European Commission triggered an Article 7 procedure for the first time in relation to Polish judicial reforms because, in the view of the Commission, they remove the separation of powers between the executive and the judiciary. The second case was Hungary. In 2017, Judith Sargentini was appointed by the European Parliament Committee on Civil Liberties, Justice and Home Affairs as the Special Rapporteur to examine triggering Article 7 proceedings against Hungary alleging breaches of core EU values. On 12 September 2018, the European Parliament adopted a resolution based on her report to trigger Article 7 procedures. Not much by way of concrete follow-up has happened so far in the two cases. On 16 September 2019, the Council held a hearing over rule of law concerns in Hungary.89 It was noteworthy,

87 de Schutter, O. (2017). Infringement Proceedings as a Tool for the Enforcement of Fundamental Rights in the European Union. Open Society European Policy Institute. p. 13. 88 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. p. 263. 89 Donner-WittKopf, J. (2019). EU Questions Hungary Over Rule of Law Concerns. Reuters, 16 September. https://www.reuters.com/article/us-eu-hungary/eu-questionshungary-over-rule-of-law-concerns-idUSKBN1W11YY.

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however, that only 10 member states participated actively in the discussion and none of them were from Central or Eastern Europe.90 A second hearing took place on 10 December 2019, when issues like academic freedom, media, and judicial reform were discussed. Eleven states took the floor, but from Central and Eastern Europe only Slovenia had questions about the Hungarian situation.91 The most visible difference between the two situations is that in the Polish case it was the Commission that initiated the procedure, while regarding Hungary it was a resolution by the European Parliament that launched the process. In light of the history of the Article 7 procedure, we can safely state that it cannot be considered as an operational tool to address human rights violations, due to its high procedural threshold. It would only work if a given state is completely isolated within the Union without even one supporter among the other 26 member states. The aim of this procedure is deterrence; it is only used in extreme and exceptional situations which are not so far part of the European post-war history.92 Justice Scoreboard93 The Justice Scoreboard is a mechanism designed to assess and compare the functioning of justice systems within the EU. Although it is not associated with any formal enforcement mechanism, it has a positive effect on governmental policies regarding the improvement of national judicial performance. It is widely agreed that the increasing trust in the judiciary has a positive influence on economic benefits, too.

90 EU-OCS. (2019). EU Hearing: Hungarian Justice Minister Denies Budapest Backsliding on Rule of Law, EU-OCS—European Observatory of Crimes and Security, 18 September 2019. https://eu-ocs.com/eu-hearing-hungarian-justice-minister-den ies-budapest-backsliding-on-rule-of-law/. 91 Bayer, L. (2019). Hungary Clashes with Other EU Members in Rule-of-Law Hearing. Politico, 10 December 2019. https://www.politico.eu/article/hungary-clasheswith-eu-governments-in-rule-of-law-hearing/. 92 Schroeder, W. (2016). The European Union and the Rule of Law—State of Affairs and Ways of Strengthening. In: W. Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation. Oxford, UK: Hart Publishing. p. 32. 93 European Commission. (n.d.). EU Justice Scoreboard, European Commission Website. https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholdingrule-law/eu-justice-scoreboard_en.

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Cooperation and Verification Mechanism When Romania and Bulgaria joined the EU on 1 January 2007, they still had progress to make in the fields of judicial reform, corruption, and (for Bulgaria) organized crime. The Commission set up the Cooperation and Verification Mechanism (CVM) as a transitional measure to assist the two countries to remedy these shortcomings. The Commission reports on progress on a regular basis. The reports contain the Commission’s assessment and recommendations to the Bulgarian and Romanian authorities. Each Commission report, with its methodology and conclusions, is subsequently discussed and has always been endorsed in conclusions by the Council of Ministers.94 EU Rule of Law Framework In March 2013, the foreign ministers of Denmark, Finland, Germany, and the Netherlands suggested in a letter addressed to President Barroso to establish safeguards to ensure compliance with the fundamental values of the EU in the member states.95 In June 2013, the Justice and Home Affairs Council called on the Commission to address this issue. On 11 March 2014, as a result of this request by a Communication from the Commission to the European Parliament and the Council, the so-called new EU Framework to strengthen the Rule of Law was established.96 The objective of the Rule of Law Framework is to prevent emerging threats to the rule of law to escalate to the point where the Commission has to trigger the mechanisms of Article 7 of the TEU. The main purpose of the Framework is to address threats to the rule of law which are of a systemic nature. The framework establishes a three-stage process: (1) Commission assessment, (2) Commission recommendation, and (3)

94 European Commission. (n.d.). Cooperation and Verification Mechanism for Bulgaria and Romania, European Commission. https://ec.europa.eu/info/policies/justice-and-fun damental-rights/effective-justice/rule-law/assistance-bulgaria-and-romania-under-cvm/ cooperation-and-verification-mechanism-bulgaria-and-romania_en. 95 Crabit, E. & Bel, N. (2016). The EU Rule of Law Framework. In: W. Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation. Oxford, UK: Hart Publishing Oxford. p. 201. 96 European Commission. (n.d.). Communication from the Commission to the European Parliament and the Council: A New EU Framework to Strengthen the Rule of Law /* COM/2014/0158 final */ https://eur-lex.europa.eu/legal-content/EN/TXT/?uri= celex%3A52014DC0158.

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monitoring of the EU country’s follow-up to the Commission’s recommendation. If no solution is found within the Rule of Law Framework, Article 7 of the TEU is the last resort to resolve a crisis and to ensure the EU country complies with EU values.97 3.1.7

Role of the Different Actors Within the Present Internal Fundamental Rights Protection System of the European Union

European Commission The Commission has different roles regarding the protection and promotion of fundamental rights as the main initiator of EU legislation on the one side and the guardian of the treaties on the other side. The negative function of the Commission means that it guarantees that fundamental rights are not ignored in other policy areas. Besides that, the Commission has a very sophisticated toolkit at its disposal to correct fundamental rights defects or to identify and address legislative violations of fundamental rights.98 On the other hand, the Commission has a positive role unique among the EU institutions, around developing and actively shaping the EU fundamental rights policy in a proactive manner. In 2010—as a result of the entry into force of the Lisbon Treaty—the Commission adopted a “Strategy for the effective implementation of the Charter”.99 This strategy has four main pillars: 1. “Establishing a fundamental rights culture”, which includes an ex ante review in the form of a fundamental rights checklist for legislative proposals, public consultations in this field, or carrying out fundamental rights impact assessment regarding EU legislation.100

97 European Commission. (n.d.). Rule of Law Framework, European Commission. https://ec.europa.eu/info/policies/justice-and-fundamental-rights/effective-justice/ rule-law/rule-law-framework_en. 98 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 87. 99 European Commission. (2010). Communication from the Commission Strategy for the Effective Implementation of the Charter of Fundamental Rights by the European Union /* COM/2010/0573 final */ https://eur-lex.europa.eu/legal-content/ EN/TXT/?uri=CELEX%3A52010DC0573. 100 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 89.

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2. Including the Charter in the legislative process, resulting in the mainstreaming of fundamental rights through the legislative process. 3. Enforcing the Charter as an element of the EU acquis, which is manifested in launching litigations against member states violating Charter rights.101 4. Raising awareness and better informing the public, meaning for example post-legislative guidance based on the case law of ECHR and the CJEU.102 One of the most recent initiatives by the Commission occurred in March 2014 when it issued a Communication entitled “A new framework to strengthen the Rule of Law” focusing on the performance of member states acting in national competence in this regard. During the whole process, the Commission may get advice from the CoE or the FRA.103 As already mentioned, it was the Commission that initiated the first Article 7 procedure on 20 December 2017, against Poland. Finally, we have to mention the Communication from the Commission to the European Parliament, the European Council, and the Council of 3 April 2019 on “Further strengthening the rule of law within the Union. State of play and possible next steps”.104 This Communication provided a useful overview of the situation about the rule of law within the EU and invited stakeholders to make concrete proposals in order to enhance the toolbox of the Union in this respect. This Communication was followed by a follow-up Communication from the Commission on “Strengthening the rule of law within the Union. A blueprint for action” on 17 July 2019, suggesting concrete short- and mid-term actions, including the publication of an Annual Rule of Law Report, summarizing the situation in

101 Ibid., p. 95. 102 Ibid., p. 98. 103 Scusterschitz, G. (2016). The EU and the Rule of Law—The Unavoidable Question

of: Who Controls It? In: W. Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation. Oxford, UK: Hart Publishing. p. 248. 104 European Commission. (2019). Communication from the Commission to the European Parliament, the European Council, and the Council of 3 April 2019 on Further Strengthening the Rule of Law Within the Union. State of Play and Possible Next Steps. https://ec.europa.eu/info/sites/info/files/rule_of_law_communication_en.pdf.

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member states.105 The paper also suggests the establishment of a Rule of Law Review Cycle to monitor the situation of the rule of law in member states, and the creation of a dedicated dialogue with all member states on this topic through a network of contact persons.106 The Communication calls on the Parliament and the Council to organize a dedicated follow-up of the Commission’s Annual Rule of Law Report. Finally, the Commission will pursue a strategic approach to infringement proceedings, building on the case law of the ECJ.107 European Parliament Following the adoption of the Nice Treaty in 2001, the European Parliament announced its “particular responsibility” regarding the monitoring of fundamental rights across the EU. In the same year, it started to prepare an annual report about the situation of fundamental rights within the EU. Its political activity is, however, very much dependent on the actual political composition. In 2004, it had a discussion with the Commission over the usage of Article 7 of the TEU, stating that it cannot support any right to or policy of permanent monitoring of member states. As a result, it suspended its annual reporting for five years (2004–2009).108 The European Parliament elected in 2009 was much more sensitive to fundamental rights issues. It reintroduced the practice of annual human rights reporting and started to criticize the Commission for not being sufficiently active in this field. The activism of the European Parliament was manifested by its proposal in 2014 to abolish Article 51 of the Charter and make the document generally implementable. During this period, the Parliament was also actively lobbying for the establishment of a Copenhagen Mechanism.109

105 European Commission. (2019). Communication from the Commission to the European Parliament, the European Council and the Council, the European Economic and Social Committee and the Committee of the Regions of 17 July 2019 on Strengthening the Rule of Law Within the Union. A Blueprint for Action, p. 15. https://ec.europa.eu/ info/sites/info/files/7_en_act_part1.pdf. 106 Ibid., p. 17. 107 Ibid., p. 20. 108 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK:

Cambridge University Press. p. 101. 109 Ibid., p. 101.

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During the last full legislative term (2014–2019), the activism of the European Parliament remained very high, with the key role of the Committee on Civil Liberties, Justice and Home Affairs (LIBE). The European Parliament, in its resolution of 25 October 2016, recommended that the Commission establishes an EU mechanism on democracy, the rule of law, and fundamental rights (DRF). The whole system would be based on an interinstitutional agreement with the Commission and the Council and would include an annual policy cycle based on a report prepared by the Commission and by an expert panel, followed by a parliamentary debate and accompanied by arrangements to address fundamental rights violations.110 As a following step, there was an Interparliamentary Committee meeting on 22 June 2017 organized by LIBE on the establishment of an EU mechanism on DRF which was followed in 2018 by a resolution on the need for a comprehensive EU mechanism for the protection of democracy, the rule of law, and fundamental rights, calling up the Commission to propose a draft interinstitutional agreement on the EU Pact for DRF. The Commission’s communication on the state of play and on the possible next steps was presented in April 2019 in LIBE.111 During this legislative period, the European Parliament initiated the Article 7 procedure against Hungary by its resolution of 12 September 2018, calling on the Council to determine pursuant to Article 7(1) of the TEU, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded.112 It was the first ever launching of Article 7 procedure by the European Parliament. On 1 March 2018, the Parliament had supported the decision by the Commission of 20 December 2017 to initiate an Article 7 procedure against Poland. The European Parliament also established rule of law monitoring groups regarding Malta and Slovakia and held a plenary debate on the situation of democracy and justice in Romania. On 4 April 2019, the European Parliament adopted a first reading position on the proposal of the Commission on the protection of the Union 110 European Parliament. (2019). The Protection of Fundamental Rights in the EU: European Parliament Achievements During the 2014–2019 Legislative Term and Challenges for the Future, European Parliament Briefing, p. 3. http://www.europarl.europa. eu/thinktank/en/document.html?reference=IPOL_BRI%282019%29621911. 111 Ibid., p. 4. 112 Ibid., p. 5.

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budget in case of generalized deficiencies as regards the rule of law in member states. This is the first proposal linking EU funding to respect for rule of law.113 Council The Council was the last of the three main EU institutions to be involved in the development of an EU fundamental rights protection system. Its first explicit political commitment occurred in the context of the Stockholm Programme, which was adopted by the European Council in December 2009,114 providing a framework for EU action on the issues of citizenship, justice, security, asylum, immigration, and visa policy for the period 2010–2014.115 This commitment contained the insurance “that legal initiatives are and remain consistent throughout the legislative process by way of strengthening the application of the methodology for a systematic and rigorous monitoring of compliance with the ECHR and the rights set out in the Charter of FR”.116 This commitment was also manifested in the establishment of the Working Party on Fundamental Rights, Citizens’ Rights and Free Movement of Persons (FREMP)117 dealing with issues related to the Charter of Fundamental Rights of the European Union, and with negotiations in respect of EU accession to the ECHR. This working group was originally created as a temporary one, but after a while it became a permanent one within the Committee of Permanent Representatives (COREPER).118 The Working Group had an important role in creating procedures addressing the fundamental rights implications of Council legislation. The guidelines prepared 113 Ibid., p. 6. 114 European Council. (2009). European Council Conclusions, 10/11 December 2009.

https://register.consilium.europa.eu/doc/srv?l=EN&f=ST%206%202009%20INIT. 115 European Commission. (2009). The Stockholm Programme—An Open and Secure Europe Serving and Protecting the Citizens. https://ec.europa.eu/anti-trafficking/eu-pol icy/stockholm-programme-open-and-secure-europe-serving-and-protecting-citizens-0_en. 116 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 107. 117 European Council. (n.d.). The Working Party on Fundamental Rights, Citizens’ Rights and Free Movement of Persons. https://www.consilium.europa.eu/en/councileu/preparatory-bodies/working-party-fundamental-rights-citizens-rights-free-movementpersons/. 118 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 107.

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by the Council for the consideration of Charter implications mentioned three sources of expertise: (1) the case law and the text of the Charter, (2) external and internal fundamental rights experts, and (3) the Legal Service of the Council.119 Not surprisingly, the Council always emphasizes the place of fundamental rights in national constitutional norms and the importance of national expertise in the whole process. The Council represents the most restrictive view among EU institutions about the scope of the Charter. The Legal Service of the Council is very clear that “there is no legal basis in the Treaties empowering the institutions to create a new supervision mechanism of the respect of the rule of law by the Member States”.120 The Council’s preferred way of promoting and protecting fundamental rights is usually through peer review or monitoring mechanisms and not by EU legislation. The reasoning behind this position was that member states are more willing to accept criticism from other member states then from central EU institutions.121 However, this proposal lacks an important procedural element, namely who is monitoring the process. Several member states were against more competence being given to EU institutions, and therefore, they supported the existing monitoring mechanisms, like the ones of the CoE.122 Court of Justice of the European Union The Court of Justice of the European Union (CJEU) was established in 1952 and located in Luxembourg. It interprets EU law in order to ensure that it is applied in the same way in all EU countries, and it settles legal disputes between national governments and EU institutions. The CJEU through its decisions also contributed to the fact that human rights were present at the agenda of the European Union. Not surprisingly after World War II, the focus of the European integration was on economic issues and the creation of a common market that would enhance the standard of living on that part of the continent. Consequently, the Treaty of Paris establishing the Coal and Steel Community, 119 Ibid., p. 108. 120 Ibid., p. 110. 121 Ibid., p. 111. 122 Scusterschitz, G. (2016). The EU and the Rule of Law—The Unavoidable Question of: Who Controls It? In: W. Schroeder (ed), Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation. Oxford, UK: Hart Publishing. p. 252.

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and the Treaty of Rome creating the European Economic Community, paid little attention to the protection of human rights.123 In the past few decades, ECJ made important decisions on cases related to fundamental rights such as non-discrimination, freedom of religion, association, and expression. The EEC Treaty protected only a few specific individual human rights, like the freedom of movement and gender equality with respect to equal pay for male and female workers. Beyond this, EEC Treaty offered little or no protection in other areas of human rights and did not contain any enforcement provisions regarding these rights.124 The Court has done a lot for integrating human rights into the acquis communitaire of the EU, which was accomplished in several steps. The first one was its decision of 1964, in which the Court enunciated the principle of supremacy of Community law over the domestic law of the member states.125 The second step was the important decision by the Court from 1969 (Stauder v City of Ulm case), where the Court stated that “fundamental rights common to the constitutional traditions of member states and/or protected in international agreements to which member states were party, are enshrined in the general principles of Community law”.126 The substance of the above-mentioned decisions has been incorporated into the subsequent treaties of the EU. The role of the CJEU’s fundamental rights protection system is not as central as courts mean in most member states. It represents one of the players, however, with an irreplaceable role.127 Member states, in most fundamental rights cases, are bound by their national constitutions, unless they are implementing EU law. In the first case, the Charter “ought to play a back-seat to national FR obligations”.128 However, as certain cases illustrate, sometimes a relatively limited connection to EU law may bring

123 Defeis, E. F. (2007). Human Rights and the European Court of Justice: An Appraisal. Fordham International Law Journal, 31(5): Article 2, pp. 1104–1105. 124 Ibid., p. 1106. 125 Ibid., p. 1109. 126 Greer, S., Gerards, J. & Slowe, R. (2018). Human Rights in the Council of

Europe and the European Union: Achievements, Trends and Challenges. Cambridge, UK: Cambridge University Press. pp. 238–239. 127 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 47. 128 Ibid., p. 54.

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an action by a member state within the scope of the Court. The uncertainty about when a national action is implementing EU law can lead to arbitrary decisions on whether national or Charter standards should be used in a given situation.129 As eloquently stated by Mark Dawson, the CJEU within the present circumstances cannot bear alone the burden of ensuring that the EU Charter is adequately fulfilled.130 In many cases, the situation requires a political and not a legal response, which should come from the other EU institutions. Fundamental Rights Agency The FRA has a broad mandate in implementing fundamental rights, although its mandate is less ambitious than many of its advocates aimed for. The Agency’s monitoring scope is restricted by Article 51 of the Charter, limiting it to fundamental rights issues in the EU and its member states when implementing EU law.131 The FRA management board is composed of national representatives and two Commission and one CoE representative. The five years Multiannual Framework of the Agency determines the thematic areas the FRA should pursue. It is proposed by the Commission and adopted by the Council. This adoption method can result in certain sensitive issues being excluded from the agenda by member states. The FRA found different creative ways to extend its scope of activity, such as publishing national country reports across EU member states on issues like Roma integration, or human trafficking, containing sometimes interviews with victims using a critical tone about the national policy of their government.132 European Union Ombudsman133 The European Union Ombudsman is an important watchdog institution, which supplements rather than substitutes the legal review by the CJEU. The Ombudsman normally suggests a friendly solution to the problem 129 Ibid., p. 77. 130 Ibid., p. 82. 131 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK:

Cambridge University Press. p. 127. 132 Ibid., p. 129. 133 European Commission. (n.d.). Treaty on the Functioning of the European

Union, Article 228. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX% 3A12016E228.

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it is confronted with and only if that does not work it makes a recommendation with more specific demands.134 The Ombudsman increasingly considers itself as a fundamental rights instrument, although in its statute fundamental rights are not mentioned. Although the recommendations of the Ombudsman are not binding, it has comparative advantages, making it an attractive forum to turn to; the barriers for access are relatively low, the rates of institutional compliance are quite high (80–90% in 2013/2014), and its statute does not significantly delimit the themes or initiatives the Ombudsman can pursue.135 3.1.8

Possible Future Tools to Address Fundamental Rights Violations in Member States

In the literature, in EU circles, and even in certain member states, there are several suggestions for innovative tools aimed at addressing the Copenhagen dilemma, namely to provide an adequate method for monitoring and sanctioning possible fundamental rights violations by member states and not just for candidate countries. The solution to this problem was one of the main topics of the European Parliament election campaign in 2019, so it was not a surprise that the new European Commission and the European Parliament already addressed this question. One of the most well-known proposals comes from US scholar, Kim Lane Scheppele. The so-called systemic infringement procedure aims to ensure the most effective way of using the existing infringement procedure. Her suggestion is to unite the different infringement procedures regarding a member state and send them in a package to the Court for consideration. Scheppele also proposes that instead of financial sanctions the EU should subtract EU funds to the concerned country as a result of the procedure. Of course, this solution is only effective regarding states that are strongly dependent on EU funds.136 The second suggestion is called Biting intergovernmentalism. The idea is that systemic infringement cases would be launched on the basis of 134 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 115. 135 Ibid., p. 116. 136 Bárd, P., Carrera, S., Guild, E., Kochenov, D. & Marneffe, W. (2016). An EU

Mechanism on Democracy, the Rule of Law and Fundamental Rights. CEPS Paper on Liberty and Security in Europe, No. 91/April 2016, pp. 29–30.

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Article 259 and not on Article 258 of the TFEU.137 According to Article 259 of the TFEU “A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union. Before a Member State brings an action against another Member State for an alleged infringement of an obligation under the Treaties, it shall bring the matter before the Commission. The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party’s case both orally and in writing. If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it, the absence of such opinion shall not prevent the matter from being brought before the Court”. What is crucial in this paragraph is that the member state is bound by the Commission’s exercise of discretion and there is no need for direct concern on behalf of the initiator state; the mere fact of the violation of EU law is sufficient.138 In this case, the standard financial sanctioning procedure would be applied, too. The third proposal is the so-called Reverse Solange. It is based on the Solange jurisprudence of the European Court of Justice, holding that the respect for human rights is an important precondition of the lawfulness of EU acts.139 Armin Bogdandy proposed reversing the Solange approach and allowing the Court of Justice to move within the territory of the national law in order to protect EU values. This solution would only be used in exceptional cases, when the systematic violation of fundamental rights occurs. It would empower national courts to refer to Article 267

137 Article 258 of the TFEU (e.g. Article 226 of the Treaty establishing the European Community—TEC). If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. 138 Bárd, P., Carrera, S., Guild, E., Kochenov, D. & Marneffe, W. (2016). An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights. CEPS Paper on Liberty and Security in Europe, No. 91/April 2016, pp. 31–32. 139 Ibid., p. 33.

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of the TFEU140 aimed at inviting the Court of Justice to consider the legality of national actions in light of Article 2 of the TEU. The fourth proposal by Jan-Werner Müller is the first one to suggest the creation of a new EU body, the so-called Copenhagen Commission, which would ensure the monitoring and the enforcement of the compliance with Article 2 of TEU141 by member states. The new body would build on the Copenhagen criteria establishing among others the political criteria for EU membership, such as respect for democracy, the rule of law, and the protection of fundamental rights.142 Several experts are of the view that this new body would not need an amendment to the current treaty framework, but could be solved by inter-institutional agreement. Others would include the FRA in the monitoring of the compliance with Article 2 of the TEU.143 The fifth solution, which is called the Exit Card, is a radical proposal. It suggests a similar solution as Article 8 of the Statute of the CoE making it possible for the EU to force out a member state which seriously and systematically violates fundamental rights. This option goes even further than the Article 7 procedure and would certainly need a change to the

140 Article 267 of the Treaty on the Functioning of the European Union (e.g. Article

234 TEC) “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay”. 141 Article 2 of the Treaty on European Union. “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. 142 Bárd, P., Carrera, S., Guild, E., Kochenov, D. & Marneffe, W. (2016). An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights. CEPS Paper on Liberty and Security in Europe, No. 91/April 2016, p. 34. 143 Ibid., p. 35.

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treaty framework, complementing Article 50 of the TEU which allows a member state to voluntarily withdraw from the EU.144 The sixth proposal is the Peer Review and Horizontal Solange. This has a positive and a negative option. The positive option would mean the mutual peer review by member states of the compliance with rule of law, while the negative one suggests that member states would not apply EU law in bilateral relations with the “guilty” state. The first option is not considered very effective, while the second one would undermine the foundations of EU law.145 The seventh proposal came from the former Vice President of the Commission, Viviane Reding, who in 2013 suggested abolishing Article 51 of the EU Charter of Fundamental Rights and, as a consequence, the provisions of the Charter would apply to member states in all cases and not only when they are implementing EU law. This suggestion would make the Court of Justice as a supranational human rights court, or something like the US Supreme Court.146 Not surprisingly, member states are not very enthusiastic about this solution, which would grant a very wide competence for the EU. However, on 27 February 2014, the European Parliament adopted resolution calling for the abolition of Article 51 of the Charter.147 A very concrete proposal was put forward on 3 May 2018 by the Commission entitled Regulation on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States, based on Article 322(1)(a) of the TFEU and Article 106a of the Treaty establishing the European Atomic Energy Community.148 The proposal considers among the generalized deficiencies in particular the endangering of the independence of judiciary; failing to prevent, correct, and sanction arbitrary or unlawful decisions by public authorities; and limiting the availability and effectiveness of legal remedies. If the Commission finds generalized deficiencies as regards the rule of law in one of the 144 Ibid., p. 35. 145 Ibid., p. 36. 146 Ibid., p. 37. 147 Dawson, M. (2017). The Governance of EU Fundamental Rights. Cambridge, UK: Cambridge University Press. p. 101. 148 European Parliament. (2019). New Boost for Jobs, Growth, and Investment. http://www.europarl.europa.eu/legislative-train/theme-new-boost-for-jobs-growth-andinvestment/file-mff-protection-of-eu-budget-in-case-of-rule-of-law-deficiencies.

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member states, it may resort to protective measures including the suspension or reduction of payments from the EU budget and the prohibition to enter into new legal commitments. The European Council would be able to veto the Commission’s ruling by a qualified majority. The European Parliament supported the proposal by 397 votes, with 158 against and 69 abstentions. From both the European People’s Party and the Socialists and Democrats Group, the majority was in favour of linking EU funds to rule of law requirements. Among the members of the Alliance of Liberals and Democrats for Europe, only two MEPs voted against the Commission’s proposal.149 Ursula von der Leyen, the newly elected President of the Commission, also confirmed in her opening statement in the European Parliament her support for an EU-wide rule of law mechanism.150 She emphasized in the Political Guidelines for the next Commission that this new comprehensive European Rule of Law Mechanism should provide the same monitoring in all states, in close dialogue with national authorities. She also made it clear that rule of law should be an integral part of the next Multiannual Financial Framework.151 In September 2019, the Civil Liberties Committee of the newly elected European Parliament renewed and expanded the mandate of its working group on the rule of law, which is now called the Democracy, Rule of Law and Fundamental Rights Monitoring Group. The working group will be able to recommend specific actions to the Parliament, in order to address threats to democracy, the rule of law, and fundamental rights as well as corruption within the EU member states.152

149 Bayer, L. (2019). European Parliament Backs Plan to Link EU Funds to Rule of Law. Politico, 19 April 2019. https://www.politico.eu/article/budget-hungary-polandrule-of-law-european-parliament-backs-plan-to-link-eu-funds/. 150 European Parliament. (2019). Opening Statement in the European Parliament Plenary Session as Delivered by Ursula von der Leyen Candidate for President of the European Commission. Strasbourg, 16 July 2019. https://ec.europa.eu/commission/ sites/beta-political/files/opening-statement-plenary-session_en_fr_de.pdf. 151 European Parliament. (2019). Political Guidelines for the Next European Commission 2019–2024 by Candidate for President of the European Commission Ursula von der Leyen. https://ec.europa.eu/commission/sites/beta-political/files/political-gui delines-next-commission_en.pdf. 152 European Interest. (2019). Rule of Law: New Mandate for MEPs to Assess EU Values in Member States. European Interest, 16 September 2019. https://www.europeani nterest.eu/article/rule-law-new-mandate-meps-assess-eu-values-member-states/.

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Within the new European Commission according to the portfolios, two commissioners address rule of law questions. The rule of law portfolio was offered to Vera Jourová (Czech Republic), a former Commissioner for Justice, Consumers and Gender Equality, who is responsible for addressing disinformation, election interference, and hate speech, too.153 The other Commissioner who is responsible for enforcing the rule of law, in tandem with Vera Jourová, is Didier Reynders (Belgium) as the new Commissioner for Justice.154 In September 2020, a new, preventive tool was established as part of the annual European Rule of Law Mechanism. The Rule of Law Report examines the key developments across the EU—positive and negative— as well as the specific situation in each Member State. The main purpose of the report is to identify possible problems in relation to the rule of law as early as possible, as well as best practices. It is not a sanctioning mechanism. The report covers the following areas: justice systems, the anti-corruption framework, media pluralism and freedom, and other institutional issues linked to checks and balances. The Rule of Law Report consists of a general report and 27 country chapters presenting the Member State-specific assessment.155 The most recent development in this field that after several years of debate, on 5 November 2020, “the European Parliament and the German Presidency of the Council of the EU reached a preliminary agreement that would enable the EU to cut capitals’ funding if they renege on rule-of-law commitments in a way that threatens the Union’s financial interests”.156 The deal entitled “Multiannual Financial Framework (MFF) 2021–2027 and Recovery package – Proposal for a Regulation of the European Parliament and of the Council on a general regime of conditionality for the

153 Istrate, D. (2019). Vera Jourová Offered Rule of Law Portfolio in New European Commission. Emerging Europe, 4 September 2019. https://emerging-europe.com/news/ vera-jourova-offered-rule-of-law-portfolio-in-new-european-commission/. 154 Global Policy Watch. (2019). The New European Commission 2019–2024. Global

Policy Watch, 16 September 2019. https://www.globalpolicywatch.com/2019/09/thenew-european-commission-2019-2024/. 155 EU Rule of Law Report 2020. https://ec.europa.eu/commission/presscorner/det ail/en/qanda_20_1757. 156 ‘Historic’ EU Rule of Law Deal Faces Challenge. Politico, 5 November 2020. https://www.politico.eu/article/historic-rule-of-law-deal-faces-challenges/.

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protection of the Union budget ”157 allows for any EU country to be penalized if a majority of other member states agree. The Regulation contains a “rule of law” definition in its Article 2, namely that “the rule of law refers to the Union value enshrined in Article 2 TEU. The rule of law includes the principles of legality, implying a transparent, accountable, democratic and pluralistic law-making process, legal certainty, prohibition of arbitrariness of the executive powers, effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights, separation of powers, and non-discrimination and equality before the law. The rule of law shall be understood having regard to the other Union values and principles enshrined in Article 2 TEU ”. There are three cases of violation of the above-mentioned rule of law principles specified in the proposal, namely by (1) “endangering the independence of the judiciary”, (2) “failing to prevent, correct and sanction arbitrary or unlawful decisions by public authorities, including by law enforcement authorities, withholding financial and human resources affecting their proper functioning or failing to ensure the absence of conflicts of interests ”, and (3) “limiting the availability and effectiveness of legal remedies, including through restrictive procedural rules, lack of implementation of judgements, or limiting the effective investigation, prosecution or sanctioning of breaches of law”.158 The final compromise was adopted after lengthy negotiations as the agreement on the rule of law mechanism was part of a package of measures linked to the EU’s next multiannual financial framework and its COVID-19 recovery plan. Poland and Hungary initially indicated that they were willing to use their veto power regarding the adoption of the two documents, which needed to be adopted by consensus, if the rule of law conditionality remained (which can be adopted by the qualified majority of member states). The compromise did not alter the text of the

157 Multiannual Financial Framework (MFF) 2021–2027 and Recovery package— Proposal for a Regulation of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, No. 12616/20, Council of the European Union, Brussels, 6 November 2020. https://data.consilium.europa.eu/ doc/document/ST-12616-2020-INIT/en/pdf. 158 Ibid., Article 2a, Breaches of the principles of the rule of law, p. 12.

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rule of law mechanism, but the European Council decided in its conclusions159 that it was going to adopt guidelines regulating the application of the Regulation and if any member state initiated an action for the annulation of the Regulation, the guidelines would be finalized only after the judgement of the ECJ. The Commission would not propose measures under the Regulation before the finalization of the guidelines. On 11 March 2021, the governments of Poland and Hungary filed a complaint with the ECJ challenging this new mechanism linking funding with the respect for rule of law.160 On 17 December 2020, the European Parliament in its resolution on the Multiannual Financial Framework 2021–2027, the Interinstitutional Agreement, the EU Recovery Instrument, and the Rule of Law Regulation161 endorsed the above-mentioned package; however, it was of the view that “the content of the European Council conclusions on the Regulation on a general regime of conditionality for the protection of the Union budget is superfluous ” as it recalled that “the applicability, purpose and scope of the Rule of Law Regulation is clearly defined in the legal text of the said Regulation”.

3.2 External Human Rights Diplomacy of the European Union 3.2.1

Preliminary Dilemmas and Thoughts Serving as an Introduction

Before launching our review of the external human rights diplomacy of the EU, it is useful to highlight a few questions and observations which could help put the whole issue into context, and mark its complexity at

159 European Council meeting (10 and 11 December 2020)—Conclusions. https:// www.consilium.europa.eu/media/47296/1011-12-20-euco-conclusions-en.pdf. 160 Gera, V. (2021). Poland, Hungary File Complaint at EU Court Over Budget Rule, Associated Press, 11 March 2021. https://abcnews.go.com/International/wireStory/pol and-hungary-file-complaint-eu-court-budget-rule-76386587. 161 European Parliament resolution of 17 December 2020 on the Multiannual Financial Framework 2021–2027, the Interinstitutional Agreement, the EU Recovery Instrument and the Rule of Law Regulation (2020/2923(RS)). https://www.europarl. europa.eu/RegData/seance_pleniere/textes_adoptes/provisoire/2020/12-17/0360/P9_ TA-PROV(2020)0360_EN.pdf.

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the same time. The EU has developed a highly sophisticated coordination system at the multilateral human rights forums, where it acts as a unified block, voting together in most cases. However, it may at the same time strengthen the group dynamics in relation to other regional groups, which are in many instances under the influence of states with radical human rights agendas, not allowing smaller, more moderate states to follow their own way. The new members of the EU, mostly from Central and Eastern Europe, belong to the EEG, which serves only technical/electoral purposes. They cannot attend WEOG meetings, which are the main venues of trans-Atlantic human rights policy discussion and cooperation. This collaboration is, however, essential for the success of the EU in the HRC or in the UNGA. Practice has shown that the most sensitive political problems should be solved in Brussels and not in Geneva or in New York. There is no point in forcing their solution during EU coordination meetings at UN headquarters. Moreover, there are too many EU priorities to be implemented at multilateral human rights forums, like Third Committee or the HRC sessions. The USA, which is a more efficient lobbyist in this field, usually has two to three priorities per session. The European Union Delegation (EUDEL) should consult more often and more substantially smaller UN member states than large, powerful countries, as they are more likely to become allies in many issues. The strength of the EU external human rights policy is in its multilayer and multifaceted character. The EU has a wide range of tools at its disposal to influence other states. There is a need to have more coherence in coordinating and calibrating these tools to find the best solutions in a given human rights situation, involving the local heads of missions (HOMs) to obtain the optimal outcome. Finally, we have to mention the looming effects of BREXIT on the external human rights diplomacy of the EU, as some of the most professional human rights diplomats with an extensive diplomatic network left the EU, substantially diminishing its lobbying force. Regarding the substantial work of the EU, it may have more profound effects on addressing country situations than on thematic issues. The special relationship of the UK with several countries of Africa and Asia was a great asset for the EU; its leverage will be missed in the future during sensitive negotiations or human rights crises. As a result of BREXIT, stronger US–UK cooperation can be predicted, and we cannot exclude the involvement of London in JUSCANZ (Japan, the USA, Canada, Australia, and New Zealand), which would become an even more effective informal information-sharing group. Continued

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strong cooperation with the UK is needed to minimize the backlash for EU human rights diplomacy. An important consequence of BREXIT will be that one of the most vocal internal critics of the EU will disappear from the picture, which may have both positive (smoother EU coordination meetings) and negative (diminishing state contribution to the work of EUDEL, including certain controlling elements) effects. 3.2.2

Historical Overview of the Pre-Lisbon Period

The external dimension of the EU’s human rights diplomacy started to develop after the end of the Cold War, at the beginning of the 1990s. The Maastricht Treaty established the consolidation of democracy, rule of law, and respect for human rights as one of the objectives of the newly created Common Foreign and Security Policy (Article J(1) of the TEU).162 In parallel with this development, Article 130u of the TEU listed the promotion of democracy, rule of law, and respect for human rights among the main objectives of development policy. Later on, Article 181(a) of the TEU as amended by the Nice Treaty considered the promotion of human rights among the objectives of all forms of cooperation with third countries.163 In this respect, we have to speak about the Copenhagen criteria, developed by the European Council during its meeting in the Danish capital in 1993, containing the respect for and protection of human rights and minorities, stable institutions guaranteeing democracy, and rule of law among the conditions of EU membership.164 The same requirement is stipulated in Article 49 of the TEU, stating “ …any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union”.165 In 1995, the European Council decided to include a “human rights clause” 162 Egan, A. & Pech, L. (2017). Respect for Human Rights as a General Objective of the EU’s External Action. In: S. Douglas-Scott & N. Hatzis (eds), Research Handbook on EU Law and Human Rights. Cheltenham, UK: Edward Elgar Publishing. p. 244. 163 Egan, A. & Pech, L. (2015). Respect for Human Rights as a General Objective of the EU’s External Action, Leuven Centre for Global Governance Studies, Working Paper No. 161—June 2015, p. 3. https://ghum.kuleuven.be/ggs/publications/ working_papers/2015/161eganpech. 164 Egan, A. & Pech, L. (2017). Respect for Human Rights as a General Objective of the EU’s External Action. In: S. Douglas-Scott & N. Hatzis (eds), Research Handbook on EU Law and Human Rights. Cheltenham, UK: Edward Elgar Publishing. p. 245. 165 Ibid., p. 245.

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in all agreements with third states, although the respect for human rights was already part of many agreements before 1995. It is important to note, however, that while African and Latin American countries were willing to enter into agreements containing human rights clauses, ASEAN or Arab states refused to accept them.166 The growing importance of human rights in EU policy was well marked by the EU declaration prepared at the occasion of the fiftieth anniversary of the UDHR in 1998, declaring that “both internally and externally, respect for human rights as proclaimed in the Universal Declaration is one of essential components of the activities of the Union”.167 3.2.3

Changes Brought to the EU’s External Human Rights Policy by the Lisbon Treaty

The entry into force of the Lisbon Treaty in December 2009 brought significant changes in the field of both external and internal human rights diplomacy of the EU. Besides providing the same legal status to the EU Charter of Fundamental Rights as the Treaties have, it committed the EU to join the European Convention for the Protection of Human Rights and Fundamental Freedoms. By Article 21(1), it placed human rights at the centre of the external relations of the EU, declaring that the actions by the EU on the international scene will be guided by several principles, including democracy, rule of law, and the universality and indivisibility of human rights.168 Although the Lisbon Treaty formally abolished the pillar structure of the EU, it retained the mainly intergovernmental nature of the Common Foreign and Security Policy (CFSP) decisionmaking process with the adoption of a specific CFSP instrument requiring unanimity within the Council. The institutional changes brought by the Treaty are also significant in this field, namely the creation of the posts

166 Heinz, W. S. (2006). EU External Relations and Human Rights In: M. Brosing (ed), Human Rights in Europe: A Fragmented Regime? New York, NY: Peter Lang. p. 190. 167 Smith, K. E. (2015). The EU as a Diplomatic Actor in the Field of Human Rights. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor. Basingstoke, UK: Palgrave Macmillan. p. 159. 168 Egan, A. & Pech, L. (2017). Respect for Human Rights as a General Objective of the EU’s External Action. In: S. Douglas-Scott & N. Hatzis (eds) Research Handbook on EU Law and Human Rights. Cheltenham, UK: Edward Elgar Publishing. p. 245.

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of the President of the European Council and of the High Representative of the EU for Foreign Affairs and Security Policy.169 However, in the absence of a needed clarity regarding the new posts, plus due to the strengthened legislative, budgetary, and supervisory role of the European Parliament, certain experts envisaged the likelihood of inter-institutional conflicts making an effective and coherent external human rights policy “as challenging as before”.170 3.2.4

Main Actors of the European Union Human Rights Diplomacy in the Post-Lisbon Period

High Representative of the European Union for Foreign Affairs and Security Policy The High Representative, who is at the same time the Vice President of the European Commission, is the “face” of the foreign and security policy of the EU.171 They are the one conducting the high-level negotiations with other international organizations (CoE, UN) responsible for the international protection and promotion of human rights and they are one of the main actors delivering the statements on behalf of the EU at different international human rights conferences, or time to time at the sessions of the UN Human Rights Council. As a quasi-foreign minister of the EU, they represent the EU at many bilateral meetings, where human rights issues are regularly on the agenda. Besides this, they head the EEAS, whose members represent the EU in around 140 EU delegations and offices in the world.172

169 Ibid., p. 246. 170 Ibid., p. 246. 171 The post of the High Representative for the Common Foreign and Security

Policy was originally created under the Amsterdam Treaty. The first holder was Javier Solana, Secretary-General of the CoE. The Lisbon Treaty maintains the function of the High Representative for Common Foreign and Security Policy. Federica Mogherini was appointed to the post for the 2014–2019 period. She succeeded Catherine Ashton who held the post between 2009 and 2014. The newly elected High Representative is Josep Borrell, former Spanish foreign minister. 172 European Commission. (n.d.). European Delegations. https://ec.europa.eu/neighb ourhood-enlargement/about/eu-delegations_en.

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EU Special Representative for Human Rights In February 2019, the Council appointed Eamon Gilmore, former Irish Minister of Foreign Affairs, as EU Special Representative for Human Rights. Gilmore replaced Stavros Lambrinidis, who was appointed in 2012 as the first EU Special Representative. Gilmore took up his duties on 1 March 2019 and has been appointed initially for two years.173 The main task of the Special Representative for Human Rights is to enhance the effectiveness and visibility of EU human rights policy. The Special Representative has a broad, flexible mandate, which provides the possibility of adapting to evolving geopolitical circumstances. The Special Representative works closely with the EEAS, which provides full support to his work.174 He also represents the EU at important human rights conferences, like the UN HRC, and holds bilateral human rights dialogues with several countries outside the EU. Working Party on Human Rights The Working Party on Human Rights (COHOM) was established in 1987 by the Council to work on the human rights aspects of the EU’s external relations and to assist the Council’s decision-making process in the field of human rights.175 Originally, COHOM met twice a year, before the session of the UN CHR and the UNGA.176 As a result of the growing importance of human rights issues within the external relations of the EU, COHOM’s mandate was extended once in 1999 and then in 2003. Today, COHOM holds its meetings on monthly basis at capital level, a logical reaction to the fact that the HRC with its three sessions per year works almost as a permanent forum and COHOM’s human rights agenda has been substantially expanded. (COHOM at the level of experts based in Brussels meets on a weekly basis.) It now includes

173 European Commission. (n.d.). Human Rights: EU Appoints a New Special Representative. https://www.consilium.europa.eu/en/press/press-releases/2019/ 02/28/human-rights-eu-appoints-a-new-special-representative/. 174 European Commission. (n.d.). EU Special Representatives. https://eeas.europa.eu/

headquarters/headquarters-homepage_en/3606/EU%20Special%20Representatives. 175 Tebidze, J. (2016). European Union External Human Rights Policy. Vilnius Lithuania: Vilnius University. p. 16. 176 1987 COHOM mandate. https://www.mzv.sk/documents/30297/2698727/ MANDATE+FOR+THE+EPC+-+WORKING+GROUP+ON+HUMAN+RIGHTS/d50 4b79d-9e20-46a1-b7d1-69f73fe85347.

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the political management of the work of the Third Committee and of the HRC, adopting and updating of different EU human rights guidelines, providing political guidance in relation to human rights dialogues, drafting and adopting human rights documents, and addressing other ad hoc human rights crises in cooperation with relevant regional Working Parties. The heavy burden of the Working Party resulted a few years ago the creation a second, Brussels-based COHOM format, including diplomats from the EU missions of member states, besides the original one, with human rights directors and experts from capitals. European External Action Service—European Union Delegations The High Representative is assisted by the EEAS in implementing their mandate, which is the first unified policy actor at the European level. The EEAS comprises officials from relevant departments of the General Secretariat of the Council and of the Commission as well as seconded diplomats from member states. There are around 140 EU delegations around the world to represent the EU, making it one of the largest diplomatic networks within the EU.177 Previously, there were representations of the European Commission, which were transformed into “prototype embassies for Europe”.178 The fact that the EEAS is in an “institutional middle ground somewhere between the Commission and the Council” allowed it to obtain the support of EU member states.179 Therefore, the EEAS assumes certain tasks traditionally belonging to the Commission and others traditionally belonging to the Council.180 In these new settings, the EU delegations represent the EU at the human rights forums of the UN and coordinate the work of the EU member states in Geneva and New York. European Parliament Under Articles 207 and 218 of the TFEU, most international agreements need the Parliament’s consent to enter into force. From time to 177 European Commission. (n.d.). European Delegations. https://ec.europa.eu/neighb ourhood-enlargement/about/eu-delegations_en. 178 Austermann, F. (2014). European Union Delegations in EU Foreign Policy: A Diplomatic Service of Different Speeds. Basingstoke, UK: Palgrave Macmillan. p. 175. 179 Carta, C. (2013). The European Union Diplomatic Service: Ideas, Preference and Identities. Abingdon, UK: Routledge. p. 146. 180 Ibid., p. 148.

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time, the EP has blocked them because of human rights concerns. Article 36 of the TEU obliges the High Representative to consult the Parliament on the main aspects and basic choices of the CFSP, and to inform it on the evolution of those policies. Parliament may ask questions or make recommendations to the Council or the High Representative.181 Resolutions adopted by the Parliament often raise awareness of human rights abuses. Parliament’s Subcommittee on Human Rights (DROI), attached to the Committee on Foreign Affairs (AFET), is responsible for issues concerning democracy, the rule of law, human rights—including the rights of minorities—in third countries and the principles of international law, and for ensuring coherence between all the EU’s external policies and its human rights policy. It organizes hearings on a wide range of human rights issues, attended by stakeholders, to provide input on resolutions and other parliamentary initiatives. It is also regularly briefed by the EU ambassadors of multilateral delegations. The subcommittee also handles the day-to-day management of human rights dossiers, while its delegations regularly visit relevant countries. Human rights issues in the EU’s external relations are also dealt with by the following committees: the Committee on International Trade (INTA), the Committee on Development (DEVE), and the Committee on Women’s Rights and Gender Equality (FEMM).182 Human rights are essential elements of meetings with non-EU parliaments and in regional parliamentary assemblies. To ensure the consistency and credibility of Parliament’s activities, the Guidelines for EP Interparliamentary Delegations on promoting human rights and democracy in their visits to non-EU countries were approved in 2011 and updated in 2016. Thanks to its budgetary powers, the Parliament has a say in the allocation of funds to the EIDHR and other financing instruments used for the promotion of human rights. Every year, the European Parliament awards the Sakharov Prize for Freedom of Thought to human rights activists around the world. Previous laureates include Nelson Mandela, Malala Yousafzai, or Raif Badawi. The President of the European Parliament actively supports human rights through statements and letters and

181 European Parliament. (n.d.). Fact Sheets on the European Union—European Parliament—Human Rights. https://www.europarl.europa.eu/factsheets/en/sheet/165/ human-rights. 182 Ibid.

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by discussing human rights issues when meeting important actors. Parliament’s own initiative is the adoption of an annual report which includes reflections on the EU’s human rights policy and the EU annual report, reviews Parliament’s own activities, and sets priorities for the future.183 3.2.5

Main Instruments and Tools of the European Union Human Rights Diplomacy in the Post-Lisbon Period

European Instrument for Democracy and Human Rights The EIDHR184 as a thematic funding instrument was launched in 2006 with a budget of e1,332,752 for the period 2014–2020.185 The EIDHR provides funding for civil society organizations in third countries to carry out projects aimed at the promotion and protection of human rights. The reactions to foreign funding are mixed. Several governments have banned international support for their civil society; therefore, the EIDHR can have an influence only in those countries which are open to foreign assistance.186 European Union Action Plan on Human Rights and Democracy The original aim of the first Action Plan on Human Rights and Democracy adopted by the Council for the period 2012–2014 was to implement the EU Strategic Framework on Human Rights and Democracy.187 It confirmed the EU’s commitment to promoting and protecting human rights and democracy worldwide, and promoting the universality of human rights and the cause of human rights in all external policy areas. The document also confirmed the EU’s support for effective multilateralism, by assisting the human rights work of multilateral organizations 183 Ibid. 184 European Commission. (n.d.). European Instrument for Democracy & Human

Rights (EIDHR). https://ec.europa.eu/europeaid/how/finance/eidhr_en.htm_en. 185 Tebidze, J. (2016). European Union External Human Rights Policy. Vilnius Lithuania: Vilnius University. p. 17. 186 Smith, K. E. (2015). The EU as a Diplomatic Actor in the Field of Human Rights. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor. Basingstoke, UK: Palgrave Macmillan. p. 164. 187 Council of the EU. (n.d.). EU Strategic Framework and Action Plan on Human Rights and Democracy, Council of the European Union Luxembourg, 25 June 2012, 11855/12. https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/for aff/131181.pdf.

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and bodies, including the UNGA, the HRC, and the ILO. It emphasizes the importance of an even closer cooperation between the European Parliament, the Council of the EU, the member states, the European Commission, and the EEAS in order to realize their common goal of improving respect for human rights. Based on this mentioned document, a second Action Plan was adopted for the period 2015–2019.188 The text was prepared by the EEAS with the support of member states and the Commission.189 The Action Plan reinforced the implementation of the EU’s human rights policy in all activities and focused in particular on empowering local institutions and civil society organizations. The guiding principles of the document were early detection, prevention, and conflict mediation. European Union Annual Report on Human Rights and Democracy in the World The Annual Report on Human Rights and Democracy adopted by the Council represents one of the most comprehensive documents on the human rights priorities and position of the EU, containing a countryspecific190 and a thematic part.191 The country-specific part contains the addressed states in interesting groupings, mixing up political and geographic criteria. It starts with the enlargement countries, followed by EEA/EFTA (European Economic Area/European Free Trade Association) countries and non-EU Western countries, then countries of the European Neighbourhood Policy, followed by Russia and Central Asia, and then Africa, the Arabian Peninsula, Asia, and Oceania, and the last group is the Americas. The thematic part first addresses the work of the EU at multilateral level, and then, the report contains the following chapter titles: democratic governance; enabling space for civil society; human rights defenders; freedom of expression and media freedom;

188 Council of the EU. (n.d.). EU Action Plan on Human Rights and Democracy. https://www.consilium.europa.eu/en/documents-publications/publications/ eu-action-plan-on-human-rights-democracy/. 189 Tebidze, J. (2016). European Union External Human Rights Policy. Vilnius Lithuania: Vilnius University. p. 19. 190 EEAS. (2018). EU Annual Report on Human Rights and Democracy in the World 2018 Country Updates. https://eeas.europa.eu/sites/eeas/files/complete_eu_country_u pdates_on_human_rights_and_democracy_in_the_world_2018-29.05.pdf. 191 Ibid.

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freedom of conscience, religion or belief, torture and other ill-treatment; the death penalty; equality and antidiscrimination; economic, social, and cultural rights; business and human rights; the EU human rights approach to conflicts and crises; human rights throughout EU external policies; and EU instruments. Human Rights Dialogues The EU has four types of dialogue focusing on human rights, or in which human rights play an important role. The first is based on legally binding association and cooperation agreements, like the Cotonou Agreement. The second type of dialogue is ad hoc one, like the one with India or with Russia. The third type of dialogue happens with like-minded states, like the USA, Canada, Japan, or New Zealand. Finally, in the last category, we find the structured dialogues on human rights, like the one with China or with Iran.192 In 2018, the EU held human rights dialogues and consultations with 46 partner countries, and regional groupings, like the African Union (AU).193 Human Rights Clauses The standard human rights clause, which contains a negative conditionality, has been used since 1995 in all cooperation and association agreements concluded by the EU.194 This clause has two elements. The first is about the respect of democratic principles, human rights, and the rule of law, while the second contains a non-execution clause, allowing the suspension of the agreement if the violation of an essential element of the agreement occurs. In most cases, however, there is a prior consultation process, before the actual suspension takes place, in order to keep the agreement operational.195 A so-called model human rights clause

192 Egan, A. & Pech, L. (2017). Respect for Human Rights as a General Objective of the EU’s External Action. In: S. Douglas-Scott & N. Hatzis (eds), Research Handbook on EU Law and Human Rights. Cheltenham, UK: Edward Elgar Publishing. p. 254. 193 EEAS. (2018). EU Annual Report on Human Rights and Democracy in the World

2018, p. 115. https://eeas.europa.eu/sites/eeas/files/2018_annual_report_on_hr_e-ver sion.pdf. 194 Egan, A. & Pech, L. (2017). Respect for Human Rights as a General Objective of the EU’s External Action. In: S. Douglas-Scott & N. Hatzis (eds), Research Handbook on EU Law and Human Rights. Cheltenham, UK: Edward Elgar Publishing. p. 261. 195 Ibid., p. 261.

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was included the first time in a cooperation agreement with Indonesia in 2009, which besides the envisaged punitive action also contains the recognition of the need of positive engagement by both parties.196 Not surprisingly, many states were not willing to sign up to treaties containing a human rights clause. Also as the practice of human rights clauses show, weaker states are more like to suffer suspension of aid than states in a stronger bargaining position.197 European Union Human Rights Guidelines Since 1998, the EU has adopted 12 human rights guidelines, which are not legally binding, but because they were adopted at ministerial level, the guidelines represent a strong political signal that they are priorities for the EU and its member states. These guidelines represent practical tools to help EU missions better advance the EU’s human rights policy. The first guidelines were adopted regarding the death penalty, followed by guidelines on torture; freedom of religion and belief; the rights of the child; children and armed conflict; violence and discrimination against women and girls; the rights of LGBT persons; international humanitarian law; human rights dialogue with third countries; HRDs; freedom of expression online and offline; and most recently, non-discrimination in external action.198 Only the guidelines on human rights dialogue with third countries address the use of particular policy instruments, while the others deal with the EU policy on a particular human rights theme.199 European Union Declarations, Démarches Declarations represent one of the most visible forms of the EU’s human rights diplomacy, which usually refer to an anniversary of a human rights instrument, an important human rights event, or a human rights crisis. Many observers consider this “declaratory diplomacy” as ineffective. Those countries mentioned in these declarations in a negative context

196 Ibid., p. 262. 197 Ibid., pp. 262–263. 198 EEAS. (n.d.). EU Human Rights Guidelines. https://eeas.europa.eu/delegations/ indonesia/65018/eu-human-rights-guidelines_en. 199 Egan, A. & Pech, L. (2017). Respect for Human Rights as a General Objective of the EU’s External Action. In: S. Douglas-Scott & N. Hatzis (eds), Research Handbook on EU Law and Human Rights. Cheltenham, UK: Edward Elgar Publishing. p. 254.

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usually complain that the EU is lecturing them.200 Démarches represent a confidential way to transmit a diplomatic message to a third country. They can note individual cases or more comprehensive human rights concerns. Most of the work in this regard is done by EU delegations, but sometimes EU member states may have special political leverage in one or other country in which case they may equally get involved in the démarche process. Human Rights and Democracy Country Strategies Human rights and democracy country strategies are prepared by EUDEL and member state missions, following close consultation with relevant interlocutors based on a political and operational analysis of the human rights situation in a given country. They identify key strategic priorities for EU action on human rights and democracy in that country, define longand short-term key objectives, and set out concrete actions to advance human rights and democracy. One hundred twenty-five country strategies were fully updated for 2016–2020.201 Other Trade and Financial Related Measures In 1998, the EU adopted a Code of Conduct on Arms Exports, thereby refusing to grant an export licence if there is a risk that the weapons could be used for internal repression in the country concerned.202 Certain agreements, like the Cotonou Agreement, allow increased aid to countries where the human rights situation is improving.203

200 Smith, K. E. (2015). The EU as a Diplomatic Actor in the Field of Human Rights. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor. Basingstoke, UK: Palgrave Macmillan. p. 163. 201 EEAS. (2018). EU Annual Report on Human Rights and Democracy in the World, p. 114. https://eeas.europa.eu/sites/eeas/files/2018_annual_report_on_hr_e-version.pdf. 202 Heinz, W. S. (2006). EU External Relations and Human Rights. In: M. Brosing (ed), Human Rights in Europe: A Fragmented Regime? New York, NY: Peter Lang. p. 201. 203 Smith, K. E. (2015). The EU as a Diplomatic Actor in the Field of Human Rights. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor: Basingstoke, UK: Palgrave Macmillan. p. 164.

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Role of the European Union at United Nations Human Rights Forums

European Union at the United Nations General Assembly Representation of the European Union in the General Assembly Besides Brussels, New York and Geneva were the first places the EU created an institutionalized coordination process,204 which not just indicated the importance of the UN in EU foreign policy, but constituted a logical step in an environment which was dominated by a few blocks of states (like NAM—the Non-Aligned Movement, or the G77). There has been coordination among the Benelux countries since the foundation of the world organization, which was expanded by France and Italy by the establishment of the European Community and by Germany in 1973 when it joined the UN.205 The European Commission established its information office in New York in 1964. It was transformed in 1974 into an official delegation when the European Commission received observer status at the UN.206 The first statement by the EU Presidency took place in 1975, when the Italian Foreign Minister Mariano Rumor spoke on behalf of the nine foreign ministers during the General Debate of the UNGA.207 In May 2011, the UNGA passed Resolution A/65/276 granting an enhanced observer status to the EU which was initiated by the EU as a reaction to the entry into force of the Lisbon Treaty.208 The process leading to this enhanced observer status was not an easy one. On 30 August 2010, the EU had already tabled a resolution that was not very well prepared and contained a maximalist proposal, which could have endangered the intergovernmental nature of the world organization

204 Rasch, M. B. (2008). The European Union at the United Nations: The Functioning and Coherence of EU External Representation in a State-Centric Environment. Leiden, Netherlands: Martinus Nijhoff Publishers. p. 2. 205 Ibid., p. 60. 206 Ibid., p. 105. 207 Ibid., p. 40. 208 Wouters, J. & Burnay, M. (2011). The EU and Asia in the United Nations Security Council. Leuven Centre for Global Governance Studies Working Paper No. 78— December 2011, p. 4. https://ghum.kuleuven.be/ggs/publications/working_papers/ 2011/78WoutersBurnay.

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according to many states.209 The draft prepared by the EU contained exclusive privileges that had never been granted to any other regional organization or group, and their adoption was not very tempting for other states.210 The danger of the draft was that it could turn the UN into an “organization of organizations”, which would have had a detrimental effect on the role of states, especially small states.211 As a result, a motion was tabled by opposing states suggesting consideration of the draft be deferred. The motion was adopted on 14 September 2010 by 76 votes in favour, 71 votes against, and with 26 abstentions.212 As a consequence of this surprising defeat, the EU built up a comprehensive campaign, with tailormade démarches, reaching out to the whole UN membership. In May 2011, the second EU draft was adopted by 180 votes, with 2 abstentions (Zimbabwe and Syria).213 An important difference between the two drafts was that the elements contained in the second, finally adopted version were mutually beneficial for the EU and other UN member states (e.g. a reduced number of interventions by EU member states, therefore more space for other states). The envisaged rights of the EU could be conferred to other regional organizations too, irrespective of the level of their integration.214 Resolution A/65/276 did not give the right to vote,

209 Guimaraes, F. A. (2015). Speak Up! Getting the EU a Voice at the UN General Assembly. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor. Basingstoke, UK: Palgrave Macmillan. p. 91. 210 Blavoukos, S. & Bourantonis, D. (2017). The Politics of UNGA Resolution 65/276: A Tale of the EU Performance in the UNGA. In: S. Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. p. 50. 211 Ibid., p. 51. 212 Ibid., p. 52. 213 Guimaraes, F. A. (2015). Speak Up! Getting the EU a Voice at the UN General

Assembly. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor. Basingstoke, UK: Palgrave Macmillan. p. 99. 214 Blavoukos, S. & Bourantonis, D. (2017). The Politics of UNGA Resolution 65/276: A Tale of the EU Performance in the UNGA. In: S. Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. p. 53.

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the right to co-sponsor a resolution, or the right to present a candidate to a UN body.215 With the adoption of Resolution A/65/276, EUDEL could now speak among the major groups, before other UN member states (just as it was done by the rotating EU Presidencies in the pre-Lisbon period). The President of the European Council could also address the General Debate of the UNGA in September alongside other dignitaries. Also, the EU could now participate in major UN meetings and could circulate documents. However, the fourth right contained in the resolution, namely the presentation of proposals or amendments orally for any resolution, was never really exercised. Likewise, the EU has never used its right of reply, which would have been very difficult due to the timeconsuming process of obtaining a coordinated reply.216 As a result of this new enhanced observer status of the EU, not surprisingly the number of EU oral statements increased, while there were fewer national statements by EU member states.217 EU Coordination and Voting Coherence in New York Before the entry into force of the Lisbon Treaty, the EU presidency convened the coordination meetings via email through the “cireu” system.218 Silent procedure was also carried out through the cireu system, meaning that if there was no reaction to a sent document or statement, it was considered adopted by member states. The coordination meetings were prepared and chaired by the representatives of the EU presidency. This role was taken over by the EEAS after the entry into force of the Lisbon Treaty, although in general it was assisted in this task by the EU presidency, which as a matter of courtesy was often invited to cochair meetings alongside the EEAS. In 2003, the EU experts working 215 Guimaraes, F. A. (2015). Speak Up! Getting the EU a Voice at the UN General Assembly. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor. Basingstoke, UK: Palgrave Macmillan. p. 100. 216 Galariotis, I. & Gianniou, M. (2017). Evidence from the EU Presence at UNGA: In Pursuit of Effective Performance. In: S. Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. pp. 75–76. 217 Ibid., p. 77. 218 Rasch, M. B. (2008). The European Union at the United Nations: The Functioning

and Coherence of EU External Representation in a State-Centric Environment. Leiden, Netherlands: Martinus Nijhoff Publishers. pp. 66–67.

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in the Third Committee had the second highest number of coordination meeting (27% of all meetings) after the Second Committee (35%).219 From 1995 to 2005, the total number of EU coordination meetings was more than 1000 in an average year; in 2001, it even reached 1200.220 It is a significant increase compared to 1975 when this number was 173, or 1989 when it was 490. Before the establishment of the UN HRC, the EU HOMs met more frequently in New York (weekly) than in Geneva (monthly), but nowadays the Geneva EU HOMs meet once a week as well.221 Looking at the EU coherence during the ten-year period from 1999 till 2009, it is interesting to observe that the EU member states voted in the same manner on about 95% of the resolutions. This figure did not change over the years nor was it affected by the EU enlargement in 2004.222 It is clear from the numbers, however, that a common position on economic issues was generally easier to achieve than when security or disarmament questions were concerned. Another survey regarding the period between 2009 and 2015 indicates that the most difficult committee was the Fourth Committee with only 74% of EU voting cohesion, while in the Second Committee and in the Plenary the EU managed to maintain 100% voting coherence. They were followed by the Fifth Committee (93%), the Third Committee (91%), and the First Committee (82%).223 Regarding the Third Committee, there were only two occasions between the sixty-fourth and the sixtyninth sessions when the EU was not able to vote in a coherent manner. It was concerning the resolution of the Right to development and the resolution on the Global efforts for the total elimination of racism, racial

219 Ibid., p. 75. 220 Ibid., p. 61. 221 Ibid., p. 87. 222 Panke, D. (2017). Speaking with One Voice: Easier Said Than Done? The EU in the UNGA. In: S. Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. p. 31. 223 Galariotis, I. & Gianniou, M. (2017). Evidence from the EU Presence at UNGA: In Pursuit of Effective Performance. In: S. Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. p. 68.

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discrimination, xenophobia and related intolerance, and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action.224 Role and Activity of the European Union in the General Assembly Third Committee The priorities for the EU at the UN human rights forums are drafted by COHOM, which is chaired by an EEAS officer. Since 2012, the Foreign Affairs Council has prepared a list of priorities for the EU in human rights bodies, while for a long time the Council has prepared the EU priorities for UNGA, in which there is always a human rights section.225 Resolutions run by the EU are decided by COHOM and usually drafted by EUDEL in New York, with input from headquarters. The details of EU statements are decided in Brussels (regarding country situations) or in New York, together with its outreach strategy.226 The political landscape at the UN has changed dramatically in the last decade. China, Russia, and their allies significantly increased their influence on the events of the world organization. Therefore, the EU has to double its efforts to gain support for the international protection and promotion of human rights, overriding national sovereignty.227 According to Richard Gowen and Franziska Brantner, this power shift is clearly demonstrated by the fact that while in the 1990s, the EU enjoyed up to 72% of support on human rights issues in the UNGA, it went down to 48 and 55% in 2007 and 2008. On the other side, the support of China increased during the same period from less than 50 to 74%.228 However, looking at the figures collected by Karen Smith regarding Third Committee voting between 2004 and 2015, there is no clear proof of this power shift. The percentage of resolutions when the EU was in 224 Ibid., p. 70. 225 Smith, K. E. (2017). The EU in the Third Committee of UNGA. In: S.

Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. p. 111. 226 Ibid., p. 112. 227 Gowen, R. &

Brantner, F. (2008). A Global Force for Human Rights? An Audit of European Power at the UN. European Council on Foreign Relations, p. 1. https://www.ecfr.eu/page/-/ECFR-08_A_GLOBAL_FORCE_FOR_ HUMAN_RIGHTS-_AN_AUDIT_OF_EUROPEAN_POWER_AT_THE_UN.pdf. 228 Ibid., p. 2.

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minority varies from 18.45% (2005) to 56.25% (2013), but it is difficult to see a tendency as the support of the EU was almost identical in the first (2004—33.3% in minority) and in the last year (2015—33% in minority).229 During the seventy-third session of the Third Committee in 2018, the EU was in the minority regarding 10 voted resolutions (45.45%) and in the majority in the case of 12 resolutions.230 It is interesting to note that from those resolutions where the EU was in a minority, five were submitted by Cuba and two by Russia. The difficult political atmosphere has made the EU very cautious, and since 2008, it has only sponsored four resolutions on the same topics: Rights of the child together with GRULAC, Freedom of religion and belief , and two country situations, Myanmar and North Korea. The “oldest” resolution is the one on the rights of the child, which has run since 1998,231 followed by the one on North Korea (2002). The two most recent EU initiatives concern the Situation of human rights in Myanmar and the resolution on Freedom of religion and belief (2005). In the 1990s, and at the beginning of the twenty-first century, the EU sponsored 5 to 6 or even 7 resolutions. However, due to their increasingly controversial nature in the eyes of the developing world, they dropped the resolution on the Sudan (run between 1999 and 2005) and on Iran (which is now run by Canada), and after one failure in 2004, they did not submit the resolution on Zimbabwe.232 As a consequence, at present, the EU is conducting a relatively conservative human rights policy, not reacting to new human rights developments with new initiatives. Although its internal coherence and coordination strengthened significantly, it has not resulted in a more effective and innovative EU. However, this does 229 Smith, K. E. (2017). The EU in the Third Committee of UNGA. In: S. Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. p. 124. 230 Universal Rights Group. (2018). Report on the 73rd Session of the Third Committee of the UN General Assembly, Danica Damplo, Universal Rights Group NYC, 27 November 2018. https://www.universal-rights.org/universal-rights-group-nyc-2/rep ort-on-the-73rd-session-of-the-third-committee-of-the-un-general-assembly/. 231 Smith, K. E. (2017). The EU in the Third Committee of UNGA. In: S. Blavoukos & D. Bourantonis (eds), The EU in UN Politics: Actors, Processes and Performances. Basingstoke, UK: Palgrave Macmillan. p. 121. 232 Ibid., p. 122.

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not prevent the EU from being one of the key players of the Third Committee, although its potential is certainly not used sufficiently, and regretfully, the topics that could be—but are not—addressed by the EU are not going to be addressed by anyone else. The EU in New York is seen as a monolithic bloc in most cases, which sends a strong political message to the outside world, but can also contribute to the strengthening of the bloc mentality in other groups as well. Finally, it is striking that in the Third Committee, EU member states are much less involved in cross-regional initiatives that they are in Geneva.233 Cooperation with United Nations Human Rights Treaty Bodies, Human Rights Council Mandates, and the Office of the United National High Commissioner for Human Rights According to Article 9 of UNGA Resolution 60/251 of 2006 establishing the HRC, “ …members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, shall fully cooperate with the Council”.234 In light of this provision, it is worth analysing the cooperation of those EU member states who were members of the UN HRC with UN treaty bodies in 2017, which is the year of example in this thesis. The following nine EU member states were sitting in the HRC in 2017: Netherlands, Portugal, Belgium, Germany, UK, Croatia, Hungary, Latvia, and Slovenia. The first five states belong to WEOG while the last four states belong to the EEG. All five EU members from WEOG provided voluntary contributions to the OHCHR in 2016 and 2017.235 All of them issued a standing invitation to the mandate holders of the HRC, thereby allowing Special Rapporteurs to visit any time, without requiring further consent of the government concerned. Overall, these countries submitted their reports to treaty bodies on time

233 Ibid., p. 129. 234 United Nations. (2006). Resolution 60/251 Adopted by the General Assembly on

15 March 2006 on the Human Rights Council. https://documents-dds-ny.un.org/doc/ UNDOC/GEN/N05/502/66/PDF/N0550266.pdf?OpenElement. 235 Universal Rights Group. (2017). The Human Rights Council in 2017. Leadership, Resolve and Cooperation at the UN’s Main Human Rights Body. pp. 62–65. https:// www.universal-rights.org/urg-policy-reports/human-rights-council-2017/ [accessed 11 October 2018].

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and only a few states were one or two years overdue in this regard. There are seven states (Belgium, Denmark, France, Italy, Lithuania, Poland, Sweden) from the EU (Belgium was the only member of the HRC in this year) that are fully up to date with their treaty body reporting and, therefore, they belong to an exclusive club of 33 states within the same category in the world as highlighted by the High Commissioner for Human Rights in his statement during the thirty-fifth session of the Council.236 The UK ratified seven of the eight core human rights treaties, while the other four ratified all.237 From the four EU members belonging to the EEG and sitting on the HRC in 2017, with the exception of Croatia all of them provided voluntary contribution to the OHCHR either in 2016 or in 2017. All of them issued a standing invitation to the mandate holders of the HRC. They all ratified 7 of the 8 core human rights instruments. However, contrary to WEOG members of the EU sitting on the HRC, they were not doing as well concerning timely submission of reports to treaty bodies. With the exception of Slovenia, they had long overdue reports: 14 years with ICERD (Hungary), 11 years with ICESCR (Croatia), or 8 years with ICESCR (Latvia).238

236 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights Council 35th Session: Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-acc ess-and-lack-cooperation-un-bodies-will-not-diminish-scrutiny-states-human. 237 The eight human rights instruments are the following: International Convention

on the Elimination of All Forms of Racial Discrimination (1965), International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), Convention on the Elimination of All Forms of Discrimination against Women (1979), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989), International Convention for the Protection of All Persons from Enforced Disappearance (2006), and Convention on the Rights of Persons with Disabilities (2006). 238 Universal Rights Group. (2017). The Human Rights Council in 2017. Leadership, Resolve and Cooperation at the UN’s Main Human Rights Body. pp. 52–55. https:// www.universal-rights.org/urg-policy-reports/human-rights-council-2017/ [accessed 11 October 2018].

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European Union in the United Nations Human Rights Council Position of the European Union Regarding the Establishment of the Human Rights Council The EU was one of the most vocal supporters of the creation of the new HRC in 2006, declaring that it would make every effort to ensure that the HRC was “able to fulfil its mandate responsibly and effectively”.239 This positive approach was very much needed in light of the contrasted position of the USA, not supporting the establishment of the Council and refusing to run for HRC membership.240 It should nonetheless be noted that UNGA Resolution 60/251 as finally adopted did not contain all of the EU priorities. For example, the HRC did not become one of the main UN bodies, but a subsidiary organ of the UNGA, and its members are not elected by a two-thirds majority of the UNGA, but by a simple majority. Also, as a result of the new composition of the HRC, the share of WEOG reduced from 19% during the period of the CHR to 15%,241 which was not considered to be sufficiently compensated by the fact the EEG gained one extra seat. When during the World Summit of September 2005, the establishment of the HRC was discussed, the EU was still rather conservative in its approach, only supporting small changes in the system, and focusing on the retention of the achievements of the CHR. This modesty was due to the disagreements within the EU about the assessment of the former CHR and about the possible alternatives.242 However, by the end of the negotiations, the position of the EU became more explicit and bolder, arguing in favour of a more effective and efficient HRC. This

239 Declaration by the Presidency on behalf of the European Union on the establishment of the UN Human Rights Council, Brussels, 7469/06 (Press 83) 16 March 2006. https://ec.europa.eu/commission/presscorner/detail/en/PESC_06_48. 240 Smith, K. E. (2011). The European Union and the Review of the Human Rights Council. (2011). Policy Department of the Directorate-General for External Policies of the Union. Study Prepared by Karen E. Smith at the Request of the European Parliament, p. 11. http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/ 433870/EXPO-DROI_ET(2011)433870_EN.pdf. 241 Smith, K. E. (2008). Speaking with One Voice but Having Little Impact: The EU at the UN’s Human Rights Council. Garnet Conference, Brussels, April 2008, p. 6. https://www.ies.be/files/repo/conference2008/EUinIA_III_1_Smith.pdf. 242 Tuominen, H. (2016). The Role of the European Union at the United Nations Human Rights Council. Academic Dissertation, Lund University, p. 82. https://helda.hel sinki.fi/bitstream/handle/10138/162475/theroleo.pdf?sequence=1&isAllowed=y.

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resolute stand was no luxury considering that the EU remained rather isolated in the articulation of the Western position.243 As already indicated, the EU was not successful as far as the establishment of membership criteria was concerned. It also lost ground as far as the number of members allocated to the different regions was concerned in comparison with the former CHR. However, there were several smaller victories, like the elimination of quasi permanent membership, the presentation of human rights pledges by states running for membership in the HRC, and the possibility of suspending the membership of a country seriously violating human rights.244 One of the main reasons for replacing the CHR with the HRC was the alleged loss of credibility of the CHR in the eyes of most of the UN member states. As UN Secretary-General Kofi Annan rightfully observed, many governments were not seeking membership in the CHR with the objective to strengthen human rights but in order to be in a better position to defend themselves against human rights criticism or to criticize others.245 In this context, it is not surprising that one of a tense debates erupted regarding the consideration of country situations by the new body. The outcome of the negotiations in this respect was not very favourable for the EU. The list of country situations which were sponsored by the EU during the final years of the CHR, but discontinued with the creation of the HRC is shockingly long: Belarus, Chechnya, Iran, Iraq, Turkmenistan, and Zimbabwe.246 (Although in 2011 a country-specific HRC mandate was established on Iran and in 2012 on Belarus.)

243 Ibid., p. 82. 244 Ibid., p. 83. 245 Wouters, J. & Meuwissen, K. (2013). The European Union at the UN Human

Rights Council. Multilateral Human Rights Protection Coming of Age? December 2013. Leuven Centre for Global Governance Studies Working Paper No. 126. Institute for International Law, University of Leuven, p. 1. https://ghum.kuleuven.be/ggs/publicati ons/working_papers/2013/126WoutersMeuwissen. 246 Smith, K. E. (2011). The European Union and the Review of the Human Rights Council. (2011). Policy Department of the Directorate-General for External Policies of the Union. Study prepared by Karen E. Smith Upon the Request of the European Parliament, p. 12. http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/ 433870/EXPO-DROI_ET(2011)433870_EN.pdf.

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Role and Activity of the European Union During the Pre-Lisbon Period of the United Nations Human Rights Council (2006–2010) In the work of the HRC, EUDEL participates as an observer with the right to deliver statements and interventions (after the UN member states during the HRC general debates, but on an equal footing with other UN member states during the interactive dialogues with mandate holders), but not holding any voting rights. This status did not change after the Lisbon Treaty, as was the case in New York where the EU received an enhanced observer status. Therefore, during the general debates and the voting process, the rotating presidency speaks on behalf of the EU, among the state representatives of other regional or political organizations or groupings. The members of the EU can be found in three regional groupings. The old members of the EU sit in WEOG, while new member states mainly belong to the EEG, with the exception of Malta, which is in WEOG and Cyprus which belongs to the Asia–Pacific Group. Therefore, usually 7–10 EU states are members of the HRC, which has 47 members.247 Before the entry into force of the Lisbon Treaty, it was also the responsibility of the rotating presidency to organize and chair the EU coordination meetings. It was remarkable that during the first three years of the HRC, EU member states were completely united during the voting process. The first lines of division among EU members only appeared in 2009 and in 2010, concerning Middle East resolutions, like the Goldstone Report on the Gaza conflict or the one condemning the Israeli human rights violations.248 The number of EU statements shows that the EU became increasingly active in the Council. While it made only 55 statements in 2006, in 2010 92 interventions were delivered on behalf of the EU.249 In an interesting contrast with the decreasing unity of EU member states, the 247 Tuominen, H. (2016). The Role of the European Union at the United Nations Human Rights Council. Academic Dissertation, Lund University, p. 73. 248 The European Union and the Review of the Human Rights Council. (2011). Policy Department of the Directorate-General for External Policies of the Union. Study Prepared by Karen E. Smith Upon the Request of the European Parliament, p. 12. http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/433 870/EXPO-DROI_ET(2011)433870_EN.pdf. 249 Smith, K. E. (2015). The EU as a Diplomatic Actor in the Field of Human Rights. In: J. A. Koops & G. Macaj (eds), The European Union as a Diplomatic Actor. Basingstoke, UK: Palgrave Macmillan. p. 167.

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EU became not just more visible, but also much more efficient by 2010. In 2006, the EU won 20% of the votes, while lost on 60% and abstained in 20% of the voted resolutions. These figures had changed substantially by 2010, when the EU won 25% of the votes, lost in 41%, abstained in 27%, and was divided in another 27% of the cases. (However, these figures were even better in 2009: 36% win, 41% defeat, 18% abstain, and 5% split.250 ) In conclusion, it can be established that during the first few years of the HRC, the EU was in a difficult, often isolated position, not really able to run the show. Most of its efforts were directed at damage control, trying to maintain at least the situation that had existed during the end of the mandate of the former CHR. This attitude was well explained by the fact that in a normal case the EU could only mobilize 21 votes of the 47 in the HRC.251 This situation significantly improved in 2009, when the USA joined the HRC under the Obama administration. Although it could have resulted in a competition between the EU and the USA for the leadership of the pro-human-rights forces, and in many cases, there were differences between their human rights positions, and the lobbying force of Washington was essential in putting the EU more frequently on the winning side of the HRC. Overall, this period cannot be considered a success story, mainly because of the decreased attention to country situations. As a consequence of the “rationalization of the mandates”, the country mandates on Cuba and Belarus disappeared; the human rights situations of the DRC, Iran, and Uzbekistan were considered in a weaker manner; and human rights problems in countries like Columbia, Somalia, Turkmenistan, and Zimbabwe failed to be addressed by the HRC.252 Finally, in this context, we have to mention the EU’s failure in 2009 during the special session on Sri Lanka, when the majority of the HRC supported a resolution

250 Gowan, R. & Brantner, F. (2011). The EU and Human Rights at the UN: 2011 Review. European Council on Foreign Relations, p. 5. 251 Tuominen, H. (2016). The Role of the European Union at the United Nations Human Rights Council. Academic Dissertation, Lund University, p. 78. 252 Wouters, J. & Meuwissen, K. (2013). The European Union at the UN Human Rights Council. Multilateral Human Rights Protection Coming of Age? December 2013. Leuven Centre for Global Governance Studies Working Paper No. 126. Institute for International Law, University of Leuven, p. 4. https://ghum.kuleuven.be/ggs/publicati ons/working_papers/2013/126WoutersMeuwissen.

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commending the government of Sri Lanka and reaffirming the principle of non-interference. This period was marked by a low ambition level on the part of the EU, as a reflection of its relatively weak position in the new human rights body. As a result in 2010, there were only two country situations (Myanmar and North Korea) submitted by the EU, the latter submitted with Japan. During these five years, the EU proposed fewer resolutions than the other active regional groups. It submitted 28 resolutions during the first 15 sessions of the HRC, while this number was 32 in the case of the OIC and 38 for the African Group. On the top of that, we have to mention the 19 resolutions sponsored by the Group of Arab States (with the OIC) and NAM with its 15 initiatives.253 European Union in the Human Rights Council After the Entry into Force of the Lisbon Treaty The establishment of the EEAS certainly marked a different chapter in the representation of the EU on the UN HRC. The EEAS was considered a strange animal by most of the delegations outside the EU. In 2011, the EUDEL human rights team contained five experts, which was certainly not sufficient to run the show in the HRC, so EUDEL still had to rely on the rotating presidency to carry out its work. In the first few years, many states still considered the EU member states as their key partners and not the EEAS officers, so during this transition period the rotating EU Presidency had an important role to play. As already mentioned, the entry into force did not automatically change the status of the EU at the UN. In the HRC, the EU enjoys observer status. This means that the EU is not in the position to submit resolutions or to participate actively in their adoption. It can only speak among the observers, after HRC members. Therefore, the rotating presidency speaks on behalf of the EU in plenary debates and introduces resolutions. The EEAS can only speak on behalf of the EU during the interactive debates with mandate holders, where there is no distinction between members and observers.

253 Smith, K. E. (2011). The European Union and the Review of the Human Rights Council. (2011). Policy Department of the Directorate-General for External Policies of the Union. Study Prepared by Karen E. Smith Upon the Request of the European Parliament, p. 13.

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The other challenge of the representation of the EU in Geneva was that the staff members of the EEAS were recruited from three sources, which required the successful merger of different working methods and working culture. The fourth challenge was that the EU had to build up its profile and credibility and had to gain the confidence of EU member states and of third countries. The last challenge was the communication of the human rights policy of the EU. The importance of that was recognized by the appointment of a media officer to EUDEL in mid-2011. The presence of a permanent EEAS team helped to establish a professional diplomatic leadership during the HRC sessions, but several member states felt it also had a negative effect on the creativity of the EU, as the new ideas and energy brought by each rotating presidency was now missing from the system.254 However, the very effective burden-sharing system established among member states helps to use the creative energy of the almost 200 human rights diplomats of EU member states present during the HRC sessions. Every human rights resolution on the agenda of the Council is followed by either EUDEL or an EU member state, which represents the position of the EU during the negotiations and keeps the other delegations in the picture. This is complemented with an organized outreach system in Geneva where EU member states help EUDEL to transmit the EU’s messages to the UN missions of HRC member states and observers. The most important political messages are forwarded by démarches to capitals, mostly by the local EUDELs, but also by EU member states that have special relations with the concerned country. Experience has shown that the USA can be an extremely useful partner in lobbying and that good personal relations can make this cooperation very successful, like it was the case during the review of the HRC’s work, or regarding country situations, like the special session on Libya. The latter case was the first occasion that the HRC recommended to the UNGA to suspend the membership of an HRC member as a consequence of gross and systematic human rights violations. As a logical reaction to the decreased voting force of the EU within the HRC, the number of cross-regional alliances initiated by the EU has increased. By 2018, a large part of the resolutions were run by crossregional Core Groups. For example, those initiatives where at least one EU member was part of the main sponsoring cross-regional Core Group 254 Tuominen, H. (2016). The Role of the European Union at the United Nations Human Rights Council. Academic Dissertation, Lund University, p. 74.

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during the thirty-seventh session of the HRC in March 2018 included the one on the right to privacy (Austria, Germany); on adequate housing (Germany, Finland); on the role of good governance (Poland); on human rights and the environment (Slovenia); on persons belonging to national or ethnic, religious and linguistic minorities (Austria, Slovenia); on the right to work (Greece, Romania); on cultural rights (Cyprus, Greece, Ireland, Italy, Poland); on the promotion of human rights through sport (Cyprus, Greece); on the implementation of the 2030 Agenda for Sustainable Development (Denmark, Luxembourg, Portugal); on the human rights situation in the Syrian Arab Republic (France, Germany, Italy, UK); on the human rights situation in the Islamic Republic of Iran (Sweden); on the situation of human rights in South Sudan (UK); and on the world drug problem (Greece, Portugal).255 3.2.7

Main Sessions of the Human Rights Council in 2017

Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017) The human rights situation in EU member states did not dominate the annual report of the High Commissioner for Human Rights. Zeid Ra’ad Al Hussein, however, expressed his concerns about “increasing calls within the European Union to establish extraterritorial processing centres or camps in North Africa and elsewhere, and to engage external actors in migration issues, with little regard for human rights”.256 He also referred to Hungary’s Prime Minister who “reportedly declared that ‘ethnic homogeneity’ is key for economic success”. The High Commissioner was of the view that: “No society is homogenous, least of all in Central Europe, and these toxic notions of so-called ethnic purity hark back to an era in which many people suffered atrociously, Hungarians included”. He also mentioned that “as Poland, the Hungarian Government has continued to undermine civil society and

255 Universal Rights Group. (2018). Report on the 37th Session of the Human Rights Council, 27 March 2018. https://www.universal-rights.org/blog/report-37th-ses sion-human-rights-council/. 256 OCHCR. (2017). High Commissioner for Human Rights on the Activities of His Office and Recent Human Rights Developments. Item 2: Annual Report and Oral Update to the 34th session of the Human Rights Council, p. 4. http://www.ohchr.org/EN/New sEvents/Pages/DisplayNews.aspx?NewsID=21316&LangID=E.

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judges, and increase government influence over the media. In both countries, legislative changes have curbed the independence of Constitutional Courts”. Referring to the UK and France, he highlighted that judicial institutions traditionally accorded wide respect had been subjected to deep criticism, and in some cases abuse. He was concerned about “a future trend in this direction which may compromise their independent functioning”. He referred as a positive, encouraging example to the statement by the President of Greece, who visited a refugee centre and told children from Iraq, Syria, and Afghanistan, “We welcome you. You are a part of us, and you will stay here as long as necessary, until the nightmare of war is over”. Resolutions Submitted by the European Union and European Union Member States The EU, as in previous years, sponsored four resolutions during the March session including two country initiatives: Situation of human rights in the Democratic People’s Republic of Korea (sponsored together with Japan) and the Situation of human rights in Myanmar. The two traditional thematic resolutions were on the Freedom of religion or belief and on the Rights of the child: protection of the rights of the child in the implementation of the 2030 Agenda for Sustainable Development (sponsored together with GRULAC). All four resolutions were adopted by consensus, without a vote, which should be considered as a success for the EU. It is interesting to note that besides the four EU-sponsored resolutions, EU member states were part of 11 Core Groups submitting resolutions to the thirty-fourth session of the HRC, but there were only two EU member states (Denmark and Portugal) ran a resolution alone, not in a Core Group.257 In this context, we should keep it in mind that two of the resolutions (Mandate of the Special Rapporteur on minority issues —Austria; Regional arrangements for the promotion and protection of human rights—Belgium) submitted during this session on behalf of a Core Group were previously run by a single EU member state.

257 Universal Rights Group. (2017). Report on the 34th Session of the Human Rights Council, pp. 12–15. https://www.universal-rights.org/urg-human-rights-council-reports/ report-34th-session-human-rights-council/.

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Country Situations It is interesting to analyse the voting behaviour of the nine EU members sitting on the Council regarding country situations. We should start with the Achilles heel of EU foreign policy. There were five resolutions on the human rights situation in the Middle East (Human rights in Syrian Golan, Human Rights in the Occupies Palestinian Territories [OPT], Accountability in the OPT, Self-determination, and Israeli settlements ). All of them were submitted by Pakistan on behalf of the OIC.258 Concerning the Human rights in the Occupied Syrian Golan, which was finally adopted by 26 votes to 3, with 18 abstentions, the UK voted against the resolution, together with the USA and Togo, while the other EU members abstained. The EU also could not achieve a consensual position regarding “Ensuring accountability and justice for all violations of international law in the OPT, including East Jerusalem”, which was supported by Slovenia, while the other EU member states abstained. The EU managed to have a same voting position regarding the Right to Palestinian people to selfdetermination and the Human rights situation in the OPT, including East Jerusalem, which were both supported by the EU. However, the fifth resolution brought a division within the EU, as Belgium, Germany, the Netherlands, Portugal, and Slovenia supported it, while Croatia, Hungary, Latvia, and the UK abstained during the vote. In conclusion, it should be established that Middle East issues remained the weakest point of the EU human rights policy, as three of the four splits within the EU which occurred during this session were related to resolutions dealing with this region. (The fourth one was about racism.) The resolution concerning the Situation of human rights in the Islamic Republic of Iran, was submitted by a Core Group (Sweden, USA, Former Yugoslav Republic of Macedonia [FYROM]/now North Macedonia, and Moldova) and was adopted by 22Y:12N:13A, which was a better result than in the previous year, due to the better composition of the Council.259 The resolution was co-sponsored by 26 EU member states (with the exception of Hungary and Greece). 258 United Nations. (2018). Report of the Human Rights Council on Its 34th Session, A/HRC/34/2, 14 June 2018, pp. 137–140. https://www.ohchr.org/en/hrbodies/hrc/ regularsessions/session34/pages/34regularsession.aspx. 259 United Nations. (2018). Report of the Human Rights Council on Its 34th Session, A/HRC/34/2, 14 June 2018, pp. 64–65. https://www.ohchr.org/en/hrbodies/hrc/reg ularsessions/session34/pages/34regularsession.aspx.

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The resolution on the Human rights situation in the Syrian Arab Republic, which was submitted by a Core Group (USA, France, UK, Germany, Italy, Kuwait, Morocco, Jordan, Saudi Arabia, and Turkey) and was adopted by 37Y:7N:13A.260 The resolution was co-sponsored by 26 EU member states (with the exception of Hungary and Greece) like in the case of the resolution on Iran. The resolution on the Cooperation with Georgia, submitted by Georgia, was adopted by 18Y:5N:24A and was co-sponsored by 27 EU member states, with the exception of Cyprus.261 Thematic Issues Besides the Middle East issues, the questions regarding racism also challenged the cohesion of the EU. The resolution on the Elaboration of International Complementary Standards to the International Convention on the Elimination of all Forms of Racial Discrimination, presented by the African Group, was adopted by 31Y:4N:12A. This resolution even led to a three-way split within the EU, as Germany and the UK voted against the resolution, while Portugal supported it; the other EU HRC members abstained. The EU position regarding this issue was that the international community should focus on the implementation of the ICERD as there is no evidence that the Convention is not addressing all contemporary forms of racism; therefore, there is no need for complementary standards at that stage. It did not exclude, however, the option of non-legally binding instruments. There were three resolutions traditionally voted on a North–South division line; therefore, not surprisingly, the EU was on the losing side in all three cases. The first one was on Foreign debt tabled by Cuba. The resolution was adopted by 31 to 16 with no abstention. Interestingly, Greece became co-sponsor of the resolution. The second one was on human rights and unilateral coercive measures tabled by Venezuela on behalf on NAM, which was adopted by 32Y:15N:0A. There was no EU co-sponsorship for this initiative. The third one was on The negative impact of the non-repatriation of funds of illicit origin on the enjoyment of human rights, and the importance of improving international cooperation tabled by Egypt, Libya, and Tunisia on behalf of the African

260 Ibid., pp. 66–67. 261 Ibid., pp. 153–154.

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Group and which was adopted by 30Y:1N:16A.262 No EU member state co-sponsored the resolution. Among the thematic issues, the EU paid special attention to those initiatives aiming at restricting civil society space. Therefore, the victory— 18Y:28N:6A—over the amendments tabled by China, Russia, and Pakistan to the resolution on Human rights, democracy and the rule of law,263 intended to restrict the participation of NGOs in HRC forums, was of vital importance. In the same line, the fact that the five Russian amendments to the Norwegian resolution aiming at Extending the Mandate of the Special Rapporteur on human rights defenders 264 were successfully defeated with the active support of the EU was considered as a positive achievement. During the 16 interactive dialogues (7 clustered and 9 individual) with mandate holders (Special Rapporteurs, working groups, independent experts) of the HRC from the 277 statements delivered by states individually or collectively, the two regional groups containing EU member states (with the exception of Cyprus which belongs to the Asia–Pacific Group) were the most active. WEOG represented 36% of all the statements, followed by 18% from the EEG (GRULAC 16%, Asia–Pacific Group 17%, African Group 13%).265 Not surprisingly, EU member states were the most active during the interactive dialogues with country mandate holders (Iran, Myanmar, Mali, Haiti, Eritrea, CAR, and North Korea) and on the questions of human rights defenders, torture, and freedom of religion. Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017) During the presentation of his annual report, the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, focused on the cooperation with UN human rights mechanisms. He mentioned those states that had devoted considerable efforts to cooperating with mandate holders, 262 United Nations. (2018). Report of the Human Rights Council on Its 34th Session, A/HRC/34/2, 14 June 2018, pp. 42–56. https://www.ohchr.org/en/hrbodies/hrc/reg ularsessions/session34/pages/34regularsession.aspx. 263 Ibid., pp. 55–56. 264 Ibid., pp. 44–47. 265 Universal Rights Group. (2017). Report on the 34th Session of the Human Rights

Council, p. 9. https://www.universal-rights.org/urg-human-rights-council-reports/rep ort-34th-session-human-rights-council/.

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facilitating more than five country visits in the past five years. One of the eight highlighted states was Italy, besides Australia, Brazil, Chile, Georgia, Mexico, Tunisia, and the USA.266 It was also quite striking that according to the list prepared by the OHCHR, 74 states (there are four EU member states on the list: Croatia [2], Hungary [1], Latvia [1], and Romania [2]) have overdue reports to UN treaty bodies for a decade or longer. There are only 33 states—including eight EU states (Belgium, Denmark, France, Italy, Lithuania, Poland, Portugal, and Sweden) fully up to date with their reporting. Resolutions Submitted by the European Union and European Union Member States The EU, as in previous years, sponsored one resolution during the June session. The traditional EU resolution on the Situation of human rights in Belarus was adopted by 18Y:8N:21A, which was a little better result than the previous year (3 more yes votes and 1 fewer no vote).267 It was China that asked for a vote as Russia was not member of the Council. The resolution had 42 co-sponsors, including the 28 EU member states. EU member states were parts of 12 Core Groups submitting resolutions to the thirty-fifth session of the HRC, but as during the March session only two EU member states (Sweden and Portugal) ran a resolution alone and not in a Core Group.268 In this context, we should keep it in mind that three of the resolutions (Mandate of the Special Rapporteur on the Independence of judges and lawyers, and the Independence and impartiality of the judiciary, jurors and assessors, and the independence 266 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights Council 35th Session: Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-acc ess-and-lack-cooperation-un-bodies-will-not-diminish-scrutiny-states-human. 267 OHCHR. (2018). Report of the Human Rights Council on Its 35th Session, A/HRC/35/2, 14 June 2018, pp. 59–60. https://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session35/Pages/35RegularSession.aspx [accessed 11 October 2018]. 268 Universal Rights Group. (2017). Report on the 35th Session of the Human Rights Council, pp. 9–12. https://www.universal-rights.org/urg-human-rights-council-reports/ report-35th-session-human-rights-council/.

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of lawyers —Hungary; Internally displaced persons —Austria) submitted during this session on behalf of a Core Group were previously run by a single EU member state. Country Situations The resolution on Syria submitted by a Core Group (USA, France, UK, Germany, Italy, Kuwait, Morocco, Jordan, Saudi Arabia, and Turkey) was adopted by 27Y:8N:12A. All EU members were co-sponsors of the resolution.269 Under agenda item 10, dealing with technical assistance, Ukraine submitted a resolution entitled Cooperation with and assistance to Ukraine in the field of human rights. The resolution was adopted by 22Y:6N19A. Twenty-seven EU member states co-sponsored the resolution (with the exception of Hungary); it also had an additional 19 non-EU cosponsors.270 The Hungarian position was not surprising, as due to the bilateral conflict between the two states over the Ukrainian Education Act, which is detrimental to the Hungarian minority living in Ukraine, the Hungarian Minister of Foreign Affairs and Trade Péter Szijjártó made it very clear that this was going to be very painful for Kiev, and that they are going to “block all steps within the European Union that would represent a step forward in Ukraine’s integration process”.271 Thematic Issues It was not surprising that due to the fact that during this session most of the controversial thematic resolutions (International solidarity, Right to peace, International cooperation, Protection of family, and Contribution of development ) were strongly influenced by North–South political differences. The EU members of the Council either voted against them or abstained. The EU voted unanimously against the resolution on Human rights and international solidarity, presented by Cuba which was finally

269 OHCHR. (2018). Report of the Human Rights Council on Its 35th Session, A/HRC/35/2, 14 June 2018, pp. 59–59. https://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session35/Pages/35RegularSession.aspx [accessed 11 October 2018]. 270 Ibid., p. 79. 271 Hungarian Government. (2017). This Will Be Painful for Ukraine. Press statement

Ministry of Foreign Affairs and Trade, 26 September 2017. https://www.kormany.hu/ en/ministry-of-foreign-affairs-and-trade/news/this-will-be-painful-for-ukraine.

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adopted by 32Y:15N:0A. In its explanation of vote, the EU expressed its doubt whether the principle of international solidarity can meaningfully be translated into the language of human rights standards. The EU also managed to stay together regarding the Chinese resolution on the Contribution of development to the enjoyment of all human rights, which was adopted by 30Y:13N:3A. In its explanation of vote, the EU emphasized that sustainable development cannot be achieved without respect for the protection and promotion of human rights and that the lack of development may not be invoked to justify the abridgment of internationally recognized human rights. Unfortunately, the EU could not achieve a common position concerning the other three resolutions. The resolution on the Right to peace, submitted by Cuba, was adopted by 32Y:11N:4A. Portugal abstained, while the other EU member states voted against the resolution. The EU expressed its position in its explanation of vote, that there is a lack of legal basis in international law for the existence of the right to peace. The resolution on the Enhancement of international cooperation in the field of human rights, submitted by Venezuela on behalf of NAM, was adopted by 32Y:3N:12A. From the EU, Hungary voted against the resolution (together with the USA and the Republic of Korea) while the other EU member states abstained. The EU was of the view in its explanation of vote that the promotion and protection of human rights cannot rely only on the enhancement of international cooperation; the EU stressed the primary responsibility of states in this regard. The third resolution on the Protection of the family: role of the family in supporting the protection and promotion of human rights of older persons was adopted by 30Y:12N:5A. The EU member states voted against the resolution, with the exception of Hungary, which abstained during the vote. Before the final vote, the EU introduced an amendment, which would have recognized that in different cultural, political, and social systems, various forms of the family exist. This amendment did not receive sufficient support within the Council (19Y:22N:5A); therefore, the EU could not support this initiative, emphasizing that the resolution put the emphasis on the protection of the family, rather than on the international legal obligations of states regarding the protection and promotion of the human rights of individual family members. During the 15 interactive dialogues (6 clustered and 9 individual) that took place in course of this session, 80 states delivered statements. WEOG members, as during previous sessions, were the most active participants of the dialogues, delivering 35% of all statements. They were followed by the

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Asia–Pacific group with 19%, closely followed by the EEG with 16%. The African Group, similarly to the previous session, was at the end of the list together with GRULAC; members of both groups made 14% of the statements, respectively.272 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017) In his regular update, the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, focused on the lack of consistency between many states’ internal and external human rights policy that undermines the credibility of the HRC.273 As during the March session, he referred to the human rights situation in Poland and Hungary. He applauded the protests by thousands of people in Poland in July 2017 for the reforms of the judiciary and as a result that the President of Poland vetoed two bills and returned them to the Parliament. He deplored “the Government’s increasingly visible control of key institutions, including the constitutional tribunal and national broadcast media”.274 Regarding the human rights situation in Hungary, he regretted “the deterioration of rule of law and fundamental rights in recent years”. According to his assessment, “vital aspects of freedom of expression have been undermined, including independence of the media and academic freedom”. Zeid Ra’ad Al Hussein expressed concern about the new legislation on NGOs introducing additional restrictions for civil society. Lastly, he deplored “the drastic and inhumane procedures which limit access by migrants to even basic services”.275 On a positive note, he mentioned the people of the tiny island of Tilos, in Greece, who demonstrated that it is possible to welcome the refugees in dignity and with respect. “Despite the country’s recession and

272 Universal Rights Group. (2017). Report on the 35th Session of the Human Rights Council, p. 6. https://www.universal-rights.org/urg-human-rights-council-reports/rep ort-35th-session-human-rights-council/. 273 Ibid., p. 3. 274 Al Hussein, Z. R. (2017). Darker and More Dangerous: High Commissioner

Updates the Human Rights Council on Human Rights Issues in 40 Countries. Human Rights Council 36th Session Opening Statement, United Nations High Commissioner for Human Rights, 11 September 2017. https://www.ohchr.org/EN/NewsEvents/Pages/ DisplayNews.aspx?NewsID=22041&LangID=E. 275 Ibid.

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severe cuts in public spending, municipal authorities, assisted by NGOs and many local volunteers, have taken in families requesting asylum and candidates for relocation to other EU countries – integrating the children in the local school and enabling adults to seek work. I honour and commend this example of human decency”.276 Resolutions Submitted by the European Union and European Union Member States During the thirty-sixth session of the HRC, there were two initiatives on behalf of the EU. Estonia presented a resolution on behalf of the EU on the Renewal of the Mandate of the Commission of Inquiry on Burundi, which was finally adopted by 22Y:11N:14A.277 Although there were no comments by Burundi or by the African Group on the EU draft, the African Group started parallel negotiations with Burundi. As a result, Tunisia on behalf of the African Group submitted a competing resolution on Technical assistance and capacity-building to Burundi. It was largely based on the EU draft, but replaced the renewal of the Commission of Inquiry by a request to send an expert team to reinforce the OHCHR Office in Bujumbura, making suggestions for technical assistance and to collect and preserve information. However, the African Group did not agree to give the same investigative power and independence to this new mechanism as it was the case with the Commission of Inquiry. It was significant to note that Botswana and Rwanda did not join the African Group in submitting the draft and when the EU asked for a vote regarding the text—which was adopted with 23Y:14N:9A—Botswana abstained, and Rwanda did not participate in the voting. The same two countries were the only ones from the African Group supporting the EU draft. As a result, the HRC adopted two competing resolutions on Burundi in 2018. The second initiative by the EU was a short Decision in order to extend the mandate of the Independent international fact-finding mission on Myanmar.278 It was the first time that a mandate had been extended by

276 Ibid. 277 OHCHR. (2018). Report of the Human Rights Council on Its 36th Session,

A/HRC/36/2, 2018, pp. 48–49. https://www.ohchr.org/EN/HRBodies/HRC/Regula rSessions/Session36/Pages/36RegularSession.aspx. 278 Ibid., pp. 49–50.

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a procedural decision and not by a resolution. The decision was adopted without a vote. Besides the two EU-led initiatives, EU member states were parts of 10 Core Groups submitting resolutions to the thirty-sixth session of the HRC, but only one EU member state (Austria) ran a resolution alone and not in a Core Group.279 In this context, we should keep it in mind that three of the resolutions (Enforced or involuntary disappearances — France; Conscientious objection to military service—Croatia; Cooperation with the United Nations, its representatives and mechanisms in the field of human rights —Hungary) submitted during this session on behalf of a Core Group were previously run by a single EU member state. Country Situations The resolution on the Human Rights situation in the Syrian Arab Republic 280 was presented by the traditional Core Group, including four EU member states (Germany, France, Italy, and the UK) besides the USA, Kuwait, Qatar, Turkey, Saud Arabia, and Morocco. The resolution was adopted by 27Y:7N:13A. All EU members co-sponsored the resolution, with the exception of Hungary. The adoption of the resolution on Human rights, technical assistance and capacity-building in Yemen 281 was a success story for the EU. The final text of the resolution—due to the important work of the Core Group led by the Netherlands—established a credible international independent investigative mechanism, and therefore, it was supported by the EU, from which 23 states co-sponsored the initiative (with the exception of Estonia, Hungary, Lithuania, Portugal, and the UK). Thematic Issues The fact that of the high number of voted resolutions (13 of 33), the vast majority were thematic issues represented an important feature of this session. The African Group submitted four thematic resolutions during 279 Universal Rights Group. (2017). Report on the 36th Session of the Human Rights

Council, pp. 12–16. https://www.universal-rights.org/urg-human-rights-council-reports/ report-36th-session-human-rights-council/. 280 OHCHR. (2018). Report of the Human Rights Council on Its 36th Session, A/HRC/36/2, 2018, pp. 48–49. https://www.ohchr.org/EN/HRBodies/HRC/Regula rSessions/Session36/Pages/36RegularSession.aspx. 281 Ibid., pp. 169–171.

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the session. One of them established a new Intergovernmental Working Group to elaborate the content of an international regulatory framework on the regulation, monitoring, and oversight of the activities of private military and security companies. This was finally adopted without a vote as the EU, despite its concerns, joined the consensus. South Africa expressed its gratitude for this gesture by the EU.282 The most controversial initiative submitted by the African Union (AU) was the one, entitled From rhetoric to reality: a global call for concrete action against racism, racial discrimination, xenophobia, and related intolerance.283 The major difference between the positions of the AU and the EU was that the African states were not willing to delete a reference to the commencement of the negotiations of a new additional protocol on the criminalization of acts of racist and xenophobic nature. The EU asked for a vote and the African resolution was adopted by 32Y:5N:10A. The delicate nature of the issue was well demonstrated by the fact that even the EU states were divided, and while Germany and the UK rejected the resolution, the other EU members of the HRC abstained. The other initiative tabled by the AU was on the renewal of the mandate of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes. This resolution was adopted without a vote, although the EU was not supportive of a reference to the Declaration on the Right to Development in the text. There were three resolutions traditionally submitted by Cuba, which were very sensitive and provoked North–South division within the HRC. The one on the Composition of the Staff of the Office of the United Nations High Commissioner for Human Rights,284 which was adopted by 33Y:12N:1A. All EU member states voted against the resolution, which was based on the notion that there is an imbalance in the regional representation of the staff of the OHCHR. The second Cuban initiative was on the Use of mercenaries as a means of violating human rights and 282 OHCHR. (2018). Report of the Human Rights Council on Its 36th Session, A/HRC/36/2, 2018, pp. 35–36. https://www.ohchr.org/EN/HRBodies/HRC/Regula rSessions/Session36/Pages/36RegularSession.aspx. 283 Ibid., pp. 159–160. 284 Ibid., pp. 13–15.

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impeding the exercise of the right of peoples to self-determination,285 which was adopted by 32Y:15N; all EU member states voted against it. The third Cuban resolution was on the Mandate of the Independent Expert on the promotion of a democratic and equitable international order,286 which was also adopted by 32Y:15N and again, all EU member states voted against it. The EU was of the view that the mandate has exhausted its potential, and therefore, it should not be retained. Altogether, there were three resolutions during this session where the EU was not able to keep its unity. The first one was already mentioned among the initiatives by the African Group. The second one was on the Right to development,287 presented by Venezuela on behalf of NAM. The resolution was adopted by 31Y:11N:4A, and while seven EU member states voted against it, Portugal and Slovenia abstained during the vote. The EU expressed in its explanation of vote that it was not supporting the elaboration of an international legally binding instrument on the right to development. The third resolution was on the Promotion and protection of the human rights of peasants and other people working in rural areas,288 which was adopted by 34Y:2N:2A. It was the only initiative resulted a three-way split within the EU, as Portugal supported it, the UK voted against it, while the others abstained. On the positive side, there were several important thematic initiatives, like the one on the Death penalty,289 on Reprisals,290 and on Enforced and involuntary disappearances 291 which were adopted by the HRC. The EU managed to defeat hostile amendments presented by Russia, Egypt, Cuba, Venezuela, and China to these resolutions. During the 12 interactive dialogues (6 clustered and 6 individual) that took place in course of this session, 62 states delivered statements (either individually or collectively). As in the previous sessions, WEOG members 285 Ibid., p. 30. 286 Ibid., pp. 30–31. 287 Ibid., pp. 34–35. 288 Ibid., p. 63. 289 Ibid., pp. 38–42. 290 Ibid., pp. 48–49. 291 Ibid., pp. 54–63.

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(28%) were the most active. It was a surprise that the Asia–Pacific Group also delivered 28% of the statements during the interactive dialogues. The African Group—unlike the previous sessions—was more active, as its members delivered 18% of the statements, which was higher than in case of the EEG (10%) or GRULAC (12%).292

3.3

Conclusion

Europe has made unbelievable developments since the issue of the Magna Carta in 1215, as by now it became the standards within the world’s most sophisticated economic and political integration that human rights cannot be considered as an internal affair of any member state and by the end of 2020 even the intention by many member states to link the rule of law performance of EU members to the access to structural funds became a reality. Today, the development of the EU has reached the point where the question of human rights is mainstreamed through all EU policies and the EU has joined a UN human rights treaty, a first for an international organization. The EU has developed a significant toolbox to address human rights violations or problems within member states, although in the absence of a majority decision-making process in this field it cannot be as effective as its initiators intended it to be. As a result of strong pressure both from several member states and civil society organizations to elaborate an EU-wide Rule of Law Mechanism, the EU managed to adopt in December 2020 a Rule of Law Mechanism aimed at protecting the financial interests of the EU against violations of the rule of law. In 2020, the Commission also introduced the system of the Rule of Law Report, containing a general chapter and 27 specific chapters covering annually the rule of law situation of the individual member states. The consensual decision making in this field is also under attack, in light of the negative experience regarding the Article 7 Procedure. On the other hand, the states under attack are in favour of retaining the consensual decision-making character of the process and would like to see a system in which member states monitor each other rather than be monitored by independent institutions, like the Commission. This debate is not just about the question of sovereignty, but also about money, which makes it 292 Universal Rights Group. (2017). Report on the 36th Session of the Human Rights Council, pp. 9–10. https://www.universal-rights.org/urg-human-rights-council-reports/ report-36th-session-human-rights-council/.

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vital for participants on both sides. The result of this discussion will frame the future of European integration, whether it follows a federalist path or whether the role of sovereign states will be strengthened. The satisfactory solution of this problem is essential, not just for the credibility of the external human rights policy of the EU, but for the future of the whole organization. Although the external human rights diplomacy of the EU only started to develop in the 1990s, at the end of the Cold War, it has reached a remarkable sophistication in a few decades. Naturally, the Lisbon Treaty, by making the Charter of Fundamental Rights legally binding and providing the ground for the establishment of the EEAS, brought a different quality to this development. The creation of the post of the High Representative for Foreign Affairs and Security Policy gave a face to the foreign policy of the EU, while the establishment of the EU Special Representative for Human Rights provided a leader for the human rights diplomacy of the Union. The EU’s human rights diplomacy, however, is a result of very complex teamwork, in which all the different actors have a role and their close cooperation is essential for success. At the multilateral human rights forums, the EU has managed to create a very efficient coordination mechanism making it possible for the Union to appear as an important player with a detailed and coordinated human rights agenda. EU enlargement did not have a negative effect on the efficiency of this process, although lately many splits within the EU have occurred due to a few so-called new member states. In light of the recent failures by the EU to adopt several human rights declarations due to the disagreement of one or two member states, certain member states, in particular Germany, already suggested that a qualified majority decisionmaking process should be introduced in the area of the Common Foreign and Security Policy as well. It is worth mentioning that the most important European human rights organization, the Council of Europe signed on 26 September 2013 in New York a Joint Declaration on the reinforcement of Cooperation between the Council of Europe Secretariat and the Office of the United Nations High Commissioner for Human Rights. As a result of this Declaration, a CoE Office to the UN had been established in Geneva providing a permanent working contact with the OHCHR. The Office contributes to all Universal Periodic Review discussions concerning the CoE member states, frequently delivers statements at the HRC plenary meetings, and convenes side events in course of the HRC sessions. The

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President of the UN Human Rights Council participates regularly at the annual Committee of Ministers meeting under agenda item “UN – the exchange of views ( human rights questions) with experts from capitals”. An annual CoE-OHCHR inter-secretariat coordination meeting is taking place in Strasbourg and in Geneva alternatively. We should highlight as another good example of cooperation between a European human rights body and the UN that the European Union Agency for Fundamental Rights had provided information to the United Nations Special Rapporteur on migration on the situation in the European Union.293 The signing of a joint declaration between OSCEODIHR and OHCHR, in 2014, can be also mentioned as a best practice for increased exchange of information and expertise, joint advocacy and cross-referencing.294 Regarding the activities of the EU in the HRC, two contrary trends can be detected. During the first three years, the EU managed to vote in a completely unified manner, but at the same time only won 20% of the votes and lost in 60% of the cases (20% abstentions). These figures improved with the passing of time, although the voting coherence of the Union became even weaker. The main reason behind this increased efficiency is that the EU intensified its outreach towards other regional groups. By now, most of the sensitive resolutions are tabled on behalf of cross-regional Core Groups, which can counterbalance the fact that EU member states have only 7–10 of the 47 votes in the HRC. Several countries are bringing their bilateral conflicts to the UN forums where their human rights diplomacy is an integral and very visible part of their internal political agenda, while others are not mixing the two. Not surprisingly, those EU member states that are under attack within the EU, both from EU institutions and from member states due to their economic or rule of law policy are taking a more reserved

293 Workshop on regional arrangements for the promotion and protection of human rights, A/HRC/34/23, Report of the United Nations High Commissioner for Human Rights, p. 4. 294 Workshop on regional arrangements for the promotion and protection of human rights, A/HRC/28/31, Report of the United Nations High Commissioner for Human Rights, p. 6.

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position regarding country situations.295 The internal political priorities of certain countries (e.g. Hungary, Portugal, Greece), such as the importance of the family, economic and social rights, or the fight against migration, are reflected in their voting patterns or in their cosponsorship policy. In case of other states, it is not as visible, as they are not using the multilateral human rights forums to manifest their identity policy. In many cases, however, pure economic interests enjoy priority over human rights concerns and affect the voting behaviour of an EU member state. Middle East issues represent the Achilles heel of the EU’s human rights diplomacy, where it can be seen that the Visegrád countries (Slovakia, Hungary, Czech Republic, and Poland) usually follow a pro-Israeli policy, while Slovenia—following the Yugoslavian heritage in this respect—represents a more pro-Palestinian position. In summary, the EU’s external human rights diplomacy found the only adequate way to become an efficient player in this very competitive arena, where the influence of third players, in particular China, Russia, India, Pakistan, Egypt, Cuba, or the African Group is increasing. The key to success in light of the composition of the HRC is cross-regional cooperation, overstepping cultural differences, and fighting cultural relativism for the betterment of the human rights situation of the world.

295 The Minister of Foreign Affairs and Trade of Hungary indicated during a press conference after he met the Indonesian counterpart that “It is not right if large international organizations pass irresponsible judgements about countries, and therefore action must be taken also in international relations in the interest of the enforcement of mutual respect”. Source: Indonesia is an important economic and political partner for Hungary. Press News 17 September 2019, Ministry of Foreign Affairs and Trade of Hungary. https://www.kormany.hu/en/ministry-of-foreign-affairs-and-trade/news/ind onesia-is-an-important-economic-and-political-partner-for-hungary.

CHAPTER 4

The Human Rights Diplomacy of the Latin American and Caribbean States in Light of the Challenges of Transitional Justice: Coping with the Shadows of the Past, Extreme Social Differences, and Poverty

An overall trend of political moderation in Latin America makes for far less interesting headlines, but it also makes for far better lives for our people. Óscar Arias former president of Costa Rica, and Nobel Peace Prize Winner1 Non-intervention is not a shield behind which crime may be perpetrated, laws may be violated. Eduardo Rodríguez Larreta former foreign minister of Uruguay2

1 Arias, Ó. (2006). Shifting toward the center. YaleGlobal Online. https://yaleglobal. yale.edu/content/shifting-toward-center. 2 Digest of International Law. Washington, DC: US Government Publications Office.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6_4

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4.1

Introduction

The particular situation of this region, containing 33 members of the Group of Latin American and Caribbean States (GRULAC)3 was well described by Ted Simon4 : “The Latin American has no tribe to fall back on, as the African does, no reliable judiciary to defend his rights as the European does, no social ideal or sacred constitution as the North American does, no pervasive mythology to soften life as it does in Asia, and not even an ideology to subscribe to, as does the Russian or Chinese. Without wealth, what is there left to him but his manhood, to be flaunted and defended at every occasion?” In line with Simon’s assessment, in the absence of strong traditions, external validation is needed for any reform project to be effective in the region. The strong orientation of Latin America towards modernity is therefore not surprising. In the same book, Whitehead describes the region as a “mausoleum of modernities”.

3 Latin American and Caribbean Group (GRULAC).

Dominica Antigua and Barbuda Dominican Republic Argentina Ecuador Bahamas El Salvador Barbados Grenada Belize Bolivia (Plurinational State of) Guatemala Guyana Brazil Haiti Chile Honduras Colombia Jamaica Costa Rica Mexico Cuba

Nicaragua Panama Paraguay Peru Saint Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines Suriname Trinidad and Tobago Uruguay Venezuela (Bolivarian Republic of)

https://www.un.org/depts/DGACM/RegionalGroups.shtml. 4 Ted Simon. AZQuotes.com, Wind and Fly LTD, 2021. https://www.azquotes.com/

quote/736878.

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4.2 Cultural, Historical, and Religious Roots of Human Rights in Latin America 4.2.1

Latin America and the Caribbean in a Comparative Regional Context

Latin America and the Caribbean is a region that spans 33 countries with a total population of 652 million people,5 but with the combined GDP of France and the UK.6 The region could be seen as a relatively homogeneous one, based on the common language in most of the countries—Spanish. Latin America and the Caribbean is well known for its inequalities and large differences, not just between countries, but within each society. This inequality can even be detected geographically, as the coastal areas are much more developed than the interior of the region.7 Laurence Whitehead explains the main features of Latin America through an intellectually stimulating comparative perspective. In this context, he emphasizes that while the “Islamic world still turns to Mecca and the Koran for unity and direction. … Latin America is oriented toward a multiplicity of external sources of inspiration, all characterized by role differentiation”.8 In comparing the region with sub-Saharan Africa, Whitehead highlights that sub-Saharan Africa is more diverse than Latin America and the Caribbean from the point of view of religion, ethnicity, language, and political traditions, but as a common feature the elites of both regions “may also be unambivalently keen to assimilate models and practices from former colonial and metropolitan sources”. According to Whitehead, although both regions can be characterized by “peripheral development”, state failure and conflicts for the control of natural resources are more characteristic of Africa than of Latin America and the Caribbean.9 Regarding the comparison with Asia,

5 https://www.worldometers.info/world-population/latin-america-and-the-caribbeanpopulation/. 6 Marshall, T. (2015). Prisoners of Geography. Ten Maps That Explain Everything about the World. New York, NY, USA: Scribner. pp. 231–232. 7 Ibid., p. 231. 8 Whitehead, L. (2010). Latin America. A New Interpretation. Basingstoke, UK:

Palgrave Macmillan. p. 4. 9 Ibid., p. 5.

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Whitehead underlines that the foreign occupation and “the massive dislocation of traditional institutions” Asian countries witnessed during the twentieth century have been fortunately unknown in Latin America and the Caribbean since 1820.10 In this context, he also emphasizes, “Latin America is far more wholly integrated into Western traditions and assumptions [being] Europe’s Far West”. Finally, he considers ties with the countries of South-West Europe intimate, from cultural, linguistic, and religious aspects.11 This European presence was later destroyed, and Latin America and the Caribbean was under complete US influence during the middle half of the twentieth century. This phenomenon was specified by John H. Coatsworth as the main significance of World War I in the region, bringing “to an end a period in which the European powers, and particularly, Great Britain, could be used to balance against the growing influence of the United States in the region”.12 4.2.2

A Short Overview of the History of Human Rights in Latin America and the Caribbean

Colonial Period Spanish law did not immediately wipe out pre-existing indigenous customs when the newly discovered territories came into the possession of the Spanish Crown. They remained valid—at least in theory—if they were not in conflict with the region and the laws of Spain.13 To a great extent in certain areas, indigenous laws were compatible with Spanish laws. Examples include “the payment of tributes, slavery, forced labour, jointly held land, or special courts for particular classes of litigants”.14 The notion of human rights first appeared in the region in the sixteenth century, in relation to the origins of natural law. In 1512, the Laws of Burgos established that “the Indians should be treated as a free 10 Ibid., p. 6. 11 Ibid., pp. 8–9. 12 Rojas Castro, D. (2013). Latin American Contemporary History: Problems and

Tendencies. An Interview of John H. Coatsworth, 13 December 2013. New World New Worlds. https://journals.openedition.org/nuevomundo/66110. 13 Kleinheisterkamp, K. (2018). Development of Comparative Law in Latin America. In: M. Reimann & R. Zimmermann (eds), The Oxford Handbook of Comparative Law, 2nd ed. Oxford, UK: Oxford University Press. p. 255. 14 Ibid., p. 255.

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people; one clearly entitled to hold property”.15 These laws were applied in intra-indigenous relations and were also applied by royal courts. A few decades later, the “New Laws” of 1542 approved by the King of Spain provided that “the natives were to be considered free, and the owners of the encomienda could no longer demand free labour or services from them”.16 Given that the laws were extremely unpopular in Latin America, King Charles was forced to suspend the most unpopular aspects of the new legislation, in order not to lose his colonies. These universal and cosmopolitan approaches towards natural rights were stopped in the eighteenth century because of the influence of the French Revolution and rising nationalism. Thereafter, human rights were considered in the sense of “equal and inalienable individual entitlements”.17 These mainly civil and political citizen rights were established within a specific political order, by a “society constituted as a nation”.18 Human Rights and Constitutionalism in the Nineteenth Century Since the Independence of Latin America and the Caribbean Independence movements that started in the region in 1809 were not separated from the fact that in 1808 Napoleon invaded Spain and Portugal, thus undermining the empires’ “capacity to defeat defectors”.19 The first to challenge the Spanish rule and ask for independence was Bolivia, followed by Ecuador. In 1810, the Spanish governor was expelled from Venezuela. Similar events happened in Argentina, Paraguay, Mexico, Columbia, Uruguay, and Chile. Only two important countries were absent from the list of countries launching efforts for independence:

15 Serrano, M. (2010). The Human Rights Regime in the Americas: Theory and Reality. In: M. Serrano & V. Popovski (eds), Human Rights Regimes in the Americas. Tokyo, New York, Paris: United Nations University Press. p. 1. 16 Minster, C. (2018). Spain and the New Laws of 1542. ThoughtCo. https://www. thoughtco.com/the-new-laws-of-1542-2136445. 17 Serrano, M. (2010). The Human Rights Regime in the Americas: Theory and Reality.

In: M. Serrano & V. Popovski (eds), Human Rights Regimes in the Americas. Tokyo, New York, Paris: United Nations University Press. p. 2. 18 Ibid., p. 3. 19 Rojas Castro, D. (2013). Latin American Contemporary History: Problems and

Tendencies. An Interview of John H. Coatsworth, 13 December 2013. New World New worlds. https://journals.openedition.org/nuevomundo/66110.

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Brazil and Peru.20 Brazil received its independence in 182221 ; Peru in 1824.22 By 1898, following the Spanish-American War, Spain had lost its final colonies.23 At the end of the nineteenth century, two other wars changed the borders of the region. As a result of the Mexican–American War (1846–1848) California, Nevada, Utah, Arizona, New Mexico, Wyoming, and parts of Colorado became part of the USA. As a consequence of the war between Chile and Bolivia (1879), Chile captured the disputed coastal province, leaving Bolivia a landlocked country.24 After achieving independence, the Latin American and Caribbean states had to accomplish two important tasks. The first was to overcome political instability by opening the door to popular participation in politics, and the second was to secure effective control over the state apparatus to create constitutional regimes guaranteeing property rights and provide the stability and credibility essential for economic growth.25 It was not surprising that French enlightenment philosophy, the French Declaration of Human and Civil Rights (1789), and the United States Constitution (1787) had an important influence on the constitutions of the region.26 In the first constitution of Bolivia, elements of Roman antecedents, like the three-chamber legislature (the senate, the tribute, and the censors) can be detected. The federalism of the USA can be seen in the Mexican and Brazilian systems. The liberal Spanish Constitution also had an important effect on many countries’ constitutions, and of course, several newly independent states copied the French Codes, due to

20 History of Latin America. http://www.historyworld.net/wrldhis/PlainTextHistories. asp?groupid=868&HistoryID=aa87>rack=pthc. 21 Ibid. 22 https://www.britannica.com/place/Peru/Achievement-of-independence. 23 Minster, C. (2019). The 10 Most Important Events in the History of Latin America. ThoughtCo. https://www.thoughtco.com/important-events-in-latin-americanhistory-2136471. 24 Marshall, T. (2015). Prisoners of Geography. Ten Maps That Explain Everything about the World. New York, NY, USA: Scribner. p. 234. 25 Rojas Castro, D. (2013). Latin American Contemporary History: Problems and Tendencies. An Interview of John H. Coatsworth, 13 December 2013. New World New Worlds. https://journals.openedition.org/nuevomundo/66110. 26 Kleinheisterkamp, K. (2018). Development of Comparative Law in Latin America. In: M. Reimann & R. Zimmermann (eds), The Oxford Handbook of Comparative Law, 2nd ed. Oxford, UK: Oxford University Press. p. 258.

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their admiration of Napoleon.27 Beginning with the civil code of Peru, there were several successful attempts in the region to prepare indigenous civil codes using comparative law as a catalyst.28 The lack of political and legal stability was demonstrated by the fact that from independence till the end of the nineteenth century, the 16 states of Spanish America produced 103 constitutions, i.e., more than 6 per country.29 Peter H. Smith differentiates three types of political rule in the region at the end of the nineteenth century. The first, the so-called caudillismo, was a system of political-social domination based on the leadership of a strongman.30 This system involved the struggle for power between the different strongmen. The second, integrating dictatorships, aimed at centralizing the dictatorships and establishing the hegemony of the nation-state. The third, Smith calls a “competitive oligarchy” or “Oligarchic Republicanism”, meaning regular elections, but the restriction of effective competition, like a restriction on suffrage or the eligibility criteria for candidates.31 The question of human rights was already an important part of the international relations of Latin America and the Caribbean in the nineteenth century. The first Pan-American conferences addressed issues such as slavery, continental citizenship, and asylum with the latter becoming a significant element of the diplomatic tradition of the region.32 The Latin American Confederacy Treaty of 1848 was the first to refer to the right to asylum and codified the notion of extradition. In this context, the Treaty of Extradition (1877–1880) and the International Criminal Law Treaty (1889) should also be mentioned.

27 Ibid., p. 261. 28 Ibid., p. 263. 29 Smith, P. H. (2005). Democracy in Latin America. Political Change in Comparative

Perspective. Oxford, UK: Oxford University Press. p. 22. 30 https://www.britannica.com/topic/caudillismo. 31 Smith, P. H. (2005). Democracy in Latin America. Political Change in Comparative

Perspective. Oxford, UK: Oxford University Press. p. 22. 32 Eguizabal, C. (2000). Latin American Foreign Policies and Human Rights. In: D. P. Forsythe (ed.), Human Rights and Comparative Foreign Policy: Foundations of Peace. Tokyo, New York, Paris United Nations University Press. Chapter 11, p. 2. http://www. corteidh.or.cr/tablas/27531.pdf.

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4.2.3

Democratization in the Twentieth Century

As a consequence of the Spanish defeat of 1898, the danger of European colonialization ceased to exist for the countries in the region; however, US expansionism still caused serious concerns.33 This situation, in conjunction with the fact that “no traditional civilization (or divergent worldview such as Islam) remained sufficiently intact to offer an alternative”, and therefore “the restoration of a pre-Conquest imagined past” was impossible, pushed the region towards modernity.34 There were competing external models of modernity, besides the obvious US or Spanish influence, starting from British trade, followed by French culture, through German technology till the influence of the Soviet Union, which took root in Cuba after 1959.35 Based on Samuel P. Huntington’s “three waves of democratization” concept, Smith considered that Argentina, Chile, Columbia, and Uruguay were affected at the beginning of the twentieth century by the first wave, which ran from 1900 till 1939.36 In this period, the socio-economic elites tried to mobilize the middle class and to a lesser extent the lower class in order “to gain partisan advantage or to co-opt potential sources of opposition”.37 The second wave between 1940 and the mid-70s included Costa Rica, Venezuela, Peru, Bolivia, Brazil, and Ecuador.38 During the first 17 years of this period, the middle class “sought access to power through tactical alliances with working class elements, including organized labour”.39 It was followed by a reverse wave from 1958 to 1974. The Cuban Revolution of 1959 was one of the main catalysts of the

33 Whitehead, L. (2010). Latin America. A New Interpretation. Basingstoke, UK: Palgrave Macmillan. p. 32. 34 Ibid., pp. 28–29. 35 Ibid., p. 37. 36 Smith, P. H. (2005). Democracy in Latin America. Political Change in Comparative Perspective. Oxford, UK: Oxford University Press. pp. 27, 32. 37 Ibid., p. 314. 38 Ibid., p. 32. 39 Ibid., p. 314.

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region’s human rights crisis, bringing social, economic, and political problems into focus.40 The third wave of democratization, which started with the overthrow of the Salazar dictatorship of Portugal in 1974, spread to Latin America in the late 70s, and till the 90s it affected Central America and parts of the Caribbean.41 This phase was much more heterogeneous and class coalitions were not visible.42 By 1990, almost all countries of the region had an elected government. (By 2004, the two openly authoritarian regimes were Cuba and Haiti, while in 1978 only Columbia, Costa Rica, and Venezuela were considered democracies.) These democratic and semi-democratic regimes even survived the poor economic and social performance of the given country.43 The major challenge was that despite the significant democratization process, there was no real advancement regarding economic growth, poverty reduction, or the amelioration of inequalities and criminality. Only a few states in the region (Chile, Costa Rica, and Uruguay) were able to meet the challenge of “governing both democratically and effectively”.44 The number of Latin Americans living on a dollar per day or less increased by 20% between 1987 and 1993.45 Not surprisingly, in 2008, according to a survey by Latinobarómetro carried out in 18 states, only 57% of respondents agreed that “democracy is preferable to any other kind of government”.46 In his study, Smith states that the overall relationship between development and democracy was very strong in the early period (1900–1939). 40 Wright, T. C. (2007). State Terrorism in Latin America. Chile, Argentina, and International Human Rights. Lanham, MD, USA: Rowman and Littlefield Publishers. p. 19. 41 Smith, P. H. (2005). Democracy in Latin America. Political Change in Comparative Perspective. Oxford, UK: Oxford University Press. p. 32. 42 Ibid., p. 314. 43 Mainwaring, S. P. & Hagopian, F. (2005). Introduction. In: S. P. Mainwaring & F.

Hagopian (eds), The Third Wave of Democratization in Latin America. Cambridge, UK: Cambridge University Press. pp. 1–2. 44 Mainwaring, S. P. & Scully, T. R. (2010). Introduction. In: S. P. Mainwaring & T.

R. Scully (eds), Democratic Governance in Latin America. Palo Alto, CA, USA: Stanford University Press. p. 1. 45 Wright, T. C. (2007). State Terrorism in Latin America. Chile, Argentina, and International Human Rights. Lanham, MD, USA: Rowman and Littlefield Publishers. p. 33. 46 Ibid., p. 4.

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It was still considerable, but weaker, during the second period (1940– 1977), and it vanished for the third period (1978–2000).47 The survival of these regimes was due to political factors, including the main actors’ commitment to democracy and the favourable international environment.48 In this context, the Catholic Church also had a positive effect on the region’s political environment as, since the 1970s, it usually supported the democratization process and not the authoritarian players as it had done before.49 One of the most important elements of the favourable international environment was the changing US policy towards the region, starting with the pro-human-rights foreign policy of President Carter.50 And, by the mid-1980s, the revolutionary left had become a non-actor in most counties (except for Peru, El Salvador, Guatemala, and Nicaragua).51 Smith also highlights the significant role of middle-class actors who expressed their opposition to the authoritarian regimes in several ways, including “advocating human rights, condemning corruption, forging social movements, propounding sexual equality, and demanding electoral reform”.52 The military, too, changed and enjoyed prestige, playing a special role in most countries of the region. In the twentieth century, there were more than 50 military regimes in the region.53 Lowering the military’s political profile and subjecting military personnel to the rule of law were necessary to complete the democratization process.54

47 Smith, P. H. (2005). Democracy in Latin America. Political Change in Comparative Perspective. Oxford, UK: Oxford University Press. p. 53. 48 Mainwaring, S. P. & Hagopian, F. (2005). Introduction. In: S. P. Mainwaring & F. Hagopian (eds), The Third Wave of Democratization in Latin America. Cambridge, UK: Cambridge University Press. p. 7. 49 Mainwaring, S. P. & Pérez-Linán, A. (2005). Democratic Transitions, Breakdowns, and Erosions. In: S. P. Mainwaring & F. Hagopian (eds), The Third Wave of Democratization in Latin America. Cambridge, UK: Cambridge University Press. pp. 39–40. 50 Ibid., pp. 40–41. 51 Ibid., p. 44. 52 Smith, P. H. (2005). Democracy in Latin America. Political Change in Comparative Perspective. Oxford, UK: Oxford University Press. p. 62. 53 Ibid., p. 80. 54 Ibid., p. 73.

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This third wave of democratization went hand in hand with extensive constitutional transformation. For example, during the period between 1993 and 2002, according to a study of the 18 established democracies of the region, 16 amended their constitutions and 7 did so five times or more.55 The average was 8.4 reforms per country. These amendments resulted in the increasing acceptance of human rights and the emergence of stronger and more independent supreme and constitutional courts. There was a visible tension between human rights guarantees and the measures aimed at enhancing neoliberal reforms. Finally, the traditional prioritization of civil and political rights over economic and social rights was tempered and rights such as the right to food, shelter, and healthcare received constitutional protection to a much greater extent than in Europe or in the USA.56 As a reaction to neoliberal individualism, these constitutions recognized collective legal and political subjects (citizens collectively or societal organizations) to intervene in the political decision-making process.57 In the context of constitutionalism, the amparo proceedings were an “extraordinary judicial remedy specially conceived for the protection of constitutional rights against harms or threats inflicted by authorities or individuals”.58 This remedy was introduced in the region in the nineteenth century and is still one of the most distinguishable features of Latin American constitutionalism. This system is very different from the constitutional system of the USA, where that sort of human rights protection was effectively ensured through general judicial actions and equitable remedies.59 The first country to introduce the amparo proceedings was Mexico (1857), followed by the other countries of the region, for the 55 Nolte, D. & Schilling-Vacaflor, A. (2012). Introduction: The Times They Are a Changin’: Constitutional Transformations in Latin America since the 1990s. In: D. Nolte & A. Schilling-Vacaflor (eds), New Constitutionalism in Latin America. Promises and Practices. Farnham, UK: Ashgate Publishing. p. 4. 56 Ibid., pp. 20–21. 57 Fernández, A. N. (2012). What Do We Mean When We Talk About ‘Critical Consti-

tutionalism’? Some Reflections on the New Latin American Constitutions in the 1990s. In D. Nolte & A. Schilling-Vacaflor (eds), New Constitutionalism in Latin America. Promises and Practices. Farnham, UK: Ashgate Publishing. 58 Brewer-Caria A. R. (2009). Constitutional Protection of Human Rights in Latin America. A Comparative Study of Amparo Proceedings. Cambridge, UK: Cambridge University Press. p. 1. 59 Ibid., p. 4.

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exclusive purpose of protecting human rights and fundamental freedoms. As a result of the constitutional development of the region, in all countries except for Cuba, the habeas corpus and amparo actions are regulated for the protection of constitutional rights.60 The amparo action has been also incorporated into the American Convention on Human Rights, as a “right to judicial protection”. According to Article 25 of the Convention, “Everyone has the right to a simple and prompt recourse, or any other effective recourse, before a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the Constitution or laws of the State or by this Convention even though such violation may have been committed by persons acting in the course of their official duties”.61 Roberto Gargarella considers Latin American constitutionalism to be co-responsible for the great level of inequalities still prevailing in the region.62 He underlines the tension between the way the constitutions address the organization of power and approach rights. This contradiction means that while the constitutions provide a very progressive, “twentyfirst century style of declarations of rights”, they still insist on organizations of power, with strong authoritarian characteristics belonging more to the eighteenth or nineteenth century. In practice, this has resulted in the parallel existence of the desire to provide constitutional “checks and balances” and the creation of a hyper strong, “unbalanced” presidential regime.63 An important and distinctive characteristic of Latin American constitutions is the clear commitment to economic and social rights; however, this was accompanied by new limits on personal autonomy, in the name of traditional values (gender issues, patriarchal understanding of the family).64 Further inconsistency occurs because the expansion of rights was not followed or accompanied by relevant changes in the organization of powers. This paradox was conceived by Juan Carlos Calleros-Alarcón in the following way: “The main shortcoming of Latin 60 Ibid., p. 5. 61 American Convention on Human Rights: Pact of San José. https://www.refworld.

org/docid/3ae6b36510.html. 62 Gargarella, R. (2018). Constitutionalism in the Americas: A comparison between the U.S. and Latin America. In: C. Crawford & D. Bonilla Maldonado (eds), Constitutionalism in the Americas. Cheltenham, UK: Edward Elgar Publishing. pp. 121–122. 63 Ibid., p. 123. 64 Ibid., pp. 134–135.

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American democracies is their lack of commitment to republican balances and a liberal protection of rights”.65 Guillermo O’Donnell called it “delegative democracy” where the “presidential tradition tends to concentrate unaccountable power in the Executive Branch”.66 The phenomenon of radical constitutionalism, examined by Javier Couso in relation to the illiberal constitutional changes, occurred in the USA as a response to September 11, 2001. According to his assessment, the negative human rights developments in the most powerful country of the world offered a perfect excuse for the radical democracies of the region (Venezuela, Ecuador, Bolivia, and Nicaragua) to “gradually walk away from the Inter-American Human Rights System”.67 The aim of these states was to “unify state power, in order to confront multinational corporations and other forms of private power” which they blamed for the socio-economic inequalities of the region.68 4.2.4

Dealing with the Past

The democratization of the region unavoidably led to addressing both the politically and legally challenging task of dealing with the past. Countries in the region chose various forms to settle the past; almost every country did something in this regard. Most of the attempts were quite limited, however, for several reasons. For example, the military felt that their actions in the past were justified and they still had the potential to stop any proceedings.69 Legislators were timid, as many people felt that they had to choose between social peace and accountability. In other regions, the question of accountability was most frequently addressed by international tribunals, hybrid tribunals, or even by foreign courts. In Latin America and the Caribbean, however, human rights prosecution was carried out by 65 Calleros, J. C. (2009). The Unfinished Transition to Democracy in Latin America. Abingdon, UK: Routledge. pp. 34–35. 66 Ibid., p. 35. 67 Couso, J. (2018). Back to the Future? The Return of Sovereignty and the Prin-

ciple of Non-intervention in the Internal Affairs of the States in Latin America’s ‘Radical Constitutionalism’. In: C. Crawford & D. Bonilla Maldonado (eds), Constitutionalism in the Americas. Cheltenham, UK: Edward Elgar Publishing. p. 152. 68 Ibid., p. 143. 69 Cleary, E. L. (2007). Mobilizing for Human Rights in Latin America. Sterling, VA,

USA: Kumarian Press. p. XII.

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domestic criminal courts.70 In this regard, the important role of domestic human rights organizations and activists should be mentioned, who did their utmost to stop impunity.71 The Inter-American Court also provided a significant contribution to the success of these efforts with its decision in the Barrios Altos Case of 2001, declaring that amnesty laws that shielded perpetrators from prosecution violate the American Convention on Human Rights and thereby are null and void.72 In certain countries (Argentina, Peru), trials immediately followed the transition, while in other cases, like Chile, they happened several years later, partly due to judicial reforms.73 Unfortunately, efforts by the military to block any movement towards accountability were common in the region and therefore the role of truth commissions was important in addressing previously unspeakable truths.74 Contrary to the African situation, in Latin America and the Caribbean when they had to face serious human rights violations of the past, there was a functioning regional human rights framework, with a strengthened civil society, with no ongoing conflict.75 4.2.5

The Role Played by Washington in Latin America and the Caribbean

The history of human rights in Latin America and the Caribbean would not be complete without addressing US policy towards the region in the last 50 years. The strengthening of the role played by Washington started with the Spanish-American War of 1898 and further strengthened

70 Burt, J.-M. The New Accountability Agenda in Latin America. The Promise and Perils of Human Rights Prosecution. In: K. Hite & M. Ungar (eds), Sustaining Human Rights in the Twenty-First Century. Strategies from Latin America. Baltimore, MD, USA: John Hopkins University Press. p. 102. 71 Ibid., p. 104. 72 Ibid., p. 107. 73 Ibid., p. 108. 74 Hayner, P. B. (2013). Reconsidering the Peace-and-Justice Debate: International Justice in Africa and Latin America. In: K. Hite & M. Ungar (eds), Sustaining Human Rights in the Twenty-First Century. Strategies from Latin America. Baltimore, MD, USA: John Hopkins University Press. p. 156. 75 Ibid., pp. 158–159.

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during the twentieth century.76 The first years of the twentieth century were marked by intensified US military interventions under Theodore Roosevelt’s Corollary to the Monroe Doctrine.77 The Corollary states that “not only were the nations of the Western Hemisphere not open to colonization by European powers but that the United States had the responsibility to preserve order and protect life and property in those countries”.78 President Woodrow Wilson further expanded the scope of the Corollary by including interventions in favour of democracy, against tyranny.79 An important shift occurred during the Franklin D. Roosevelt administration when it admitted the negative effects of US interventions in the previous 30 years. In 1933, at the Seventh Conference of the American Republics in Montevideo, the American delegation introduced a Good Neighbour Policy, resulting in the repudiation of the Roosevelt Corollary interventionism.80 Following World War II, the USA became not just the region’s main, but almost its only foreign partner, which significantly reduced the room for foreign policy manoeuvring for the region.81 President Nixon never discussed US policy towards human rights violations in the region.82 It was the Ford administration in 1975 that 76 Lehoczki, B. (2019). A Latin-Amerika-Egyesült államok –Kína Háromszög a XXI. Században (The Latin America—USA-China Triangle in the 21st Century). In: E. Horváth & B. Lehoczki (eds), Diplomácia és Nemzetközi Kapcsolatok. Amerika a XIXXXI. Században (Diplomacy and International Relations. America in the 19th–21st Centuries). Budapest, Hungary: L’Harmattan Kiadó. p. 245. 77 Perina, R. M. (2015). The Organization of American States as the Advocate and Guardian of Democracy. An Insider’s Critical Assessment of Its Role in Promoting and Defending Democracy. Lanham, MD, USA: University Press of America. p. 22. 78 Theodore Roosevelt’s Corollary to the Monroe Doctrine (1905). https://www.our documents.gov/doc.php?flash=true&doc=56. 79 Perina, R. M. (2015). The Organization of American States as the Advocate and Guardian of Democracy. An Insider’s Critical Assessment of Its Role in Promoting and Defending Democracy. Lanham, MD, USA: University Press of America. p. 23. 80 Ibid., p. 23. 81 Lehoczki, B. (2019). A Latin-Amerika-Egyesült államok –Kína Háromszög a XXI.

Században (The Latin America—USA-China Triangle in the 21st Century). In: E. Horváth & B. Lehoczki (eds), Diplomácia és Nemzetközi Kapcsolatok. Amerika a XIXXXI. Században (Diplomacy and International Relations. America in the 19th–21st Centuries). Budapest, Hungary: L’Harmattan Kiadó. p. 245. 82 Schoultz, L. (1981). Human Rights and United States Policy Toward Latin America. Princeton, NJ, USA: Princeton University Press. p. 110.

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suggested giving more importance to the question of human rights in US foreign policy. Kissinger’s 1976 statement at the General Assembly of the Organization of American States (OAS) in Santiago entitled “Human Rights and the Western Hemisphere”, was a clear indication of this change, by referring to the necessity of protecting and extending the “fundamental rights of humanity”.83 The real breakthrough in this field happened during the Carter administration, which considered human rights as a prominent feature of their foreign policy. Carter’s inauguration speech was already a clear indication of this dramatic change. “Because we are free, we can never be indifferent to the fate of freedom elsewhere. Our moral sense dictates a clear-cut preference for those societies which share with us an abiding respect for individual human rights”.84 It was not surprising therefore, that then Secretary of State Cyrus Vance announced in 1977, that the administration was planning to reduce aid to Argentina, Ethiopia, and Uruguay because of the serious human rights violations in these countries.85 In the course of the 1980 election campaign, Ronald Reagan attacked the human rights diplomacy of the Carter administration, arguing that this diplomacy was backfiring as it was alienating traditional allies because of their questionable human rights record and it was not sufficiently critical of the Soviet Bloc.86 The Soviet invasion of Afghanistan completely side-lined human rights priorities within foreign policy. The hardliner anti-communist policy of the first years of the Reagan administration, marked by the Kirkpatrick Doctrine87 was discredited by his second term in office. Consequently, Reagan initiated a policy more supportive of democracy.88 However, this policy change was more valid in South America, while in Central America—due to the situation in Nicaragua 83 Ibid., p. 111. 84 Ibid., p. 113. 85 Ibid., p. 114. 86 Sikkink, K. (2004). Mixed Signals. US Human Rights Policy and Latin America. Ithaca, NY, USA: Cornell University Press. p. 143. 87 Kirkpatrick claimed that states in the Soviet bloc and other Communist states were totalitarian regimes, while pro-Western dictatorships were merely “authoritarian” ones. According to Kirkpatrick, totalitarian regimes were more stable and self-perpetuating than authoritarian regimes, and thus had a greater propensity to influence neighbouring states. 88 Sikkink, K. (2004). Mixed Signals. US Human Rights Policy and Latin America. Ithaca, NY, USA: Cornell University Press. p. 149.

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and El Salvador—Reagan maintained “a single minded and militant anti-communist focus”.89 By the end of the Cold War, the whole global context had changed, diminishing the importance of anti-communism within US foreign policy. The human rights policy of Washington had become institutionalized. Human rights reporting carried out by the State Department improved significantly and human rights diplomacy became an integral part of the mandate of the US Foreign Service.90 Both George H.W. Bush and Bill Clinton faced major human rights challenges outside of the USA and contrary to Carter, in general, they did not show too much interest in human rights issues. The exceptional cases, which reached their attention, were Panama for Bush and Haiti for Clinton, where they even carried out military operations.91 The two operations were different. It was the first time in the case of Haiti that the USA was backed by the UN; Washington92 was acting within the context of multilateral diplomacy. President George W. Bush was much too preoccupied by the wars in Afghanistan and Iraq. He failed to define a new relationship with Latin America and the Caribbean, responsive to the region’s demand for social and economic justice. The Bush administration left “Latin American policy in the hands of conservative cold warriors who reacted with hostility to the election of ‘new left’ socialists and populists. As a result, Washington’s reputation and relations in Latin America deteriorated dramatically”.93 The election of President Obama was received with high expectations in Latin America and the Caribbean. In April 2009, Obama declared at the Fifth Summit of the Americas that no Latin American country was considered a threat to the USA.94 He intended to rebuild normal relations with Cuba and Argentina and his visit to both countries represented 89 Ibid., p. 149. 90 Ibid., p. 182. 91 Ibid., p. 183. 92 Ibid., p. 185. 93 Leogrande, W. M. (2007). A Poverty of Imagination: George W. Bush’s Policy in

Latin America. Journal of Latin American Studies, 39(2):355. 94 Ayuso, A. (2016). Obama’s Legacy in Latin America: Hindrances from the Past, Uncertainties in the Future. CIDOB. https://www.cidob.org/en/articulos/monogr afias/elecciones_presidenciales_en_estados_unidos/obama_s_legacy_in_latin_america_hind rances_from_the_past_uncertainties_in_the_future.

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a major shift in US foreign policy towards the region. He was the first US President to visit Cuba (March 2016) in the previous 50 years and the first to conduct a bilaterally focused visit to Argentina in two decades.95 Despite high hopes and certain important steps, the Obama administration did not really meet the region’s expectations, and according to many observers the president “neglected much of the concerns of the region and has sustained in many respects the policy errors of his predecessors”.96 He did nothing about the trade embargo against Cuba and did not engage with Havana in any substantial way.97 Obama’s first official visit to the region happened in March 2011, when he visited Brazil, Chile, and El Salvador, but did not support the aspirations of Brasilia concerning a permanent seat in the UN Security Council.98 In January 2009, when Obama took office, Latin America and the Caribbean were dominated by “independent-minded, left-leaning governments”, despite all the efforts of the previous Republican administration. By the end of his second term, most of the governments of the region had turned to the right, which resulted in the paralysation of regional integration schemes, like the Union of South American Nations (UNASUR) and the Community of Latin American and Caribbean States (CELAC) initiated originally by left-wing governments. The USA backed a grouping called the Pacific Alliance (Chile, Mexico, Columbia, and Peru) supporting neoliberal policies and dismissing UNASUR and the Alliance for the Peoples of Our America (ALBA), another grouping with a leftist orientation.99 Despite the many friendly right-wing governments, President Trump has not been very interested in benefitting from this political constellation. He has cancelled several trips to the region, including the Eighth

95 Latin American Advisor. (2016). Inter-American Dialogue. What Will Be Obama’s Latin America Legacy? 29 February. https://www.thedialogue.org/analysis/what-will-beobamas-latin-america-legacy/. 96 Saragoza, A. M. (2014). Obama and Latin America: Disappointed Hopes. Les Cahiers des Amériques, 75. https://journals.openedition.org/cal/3088?lang=en. 97 Ibid. 98 Ayuso, A. (2016). Obama’s Legacy in Latin America: Hindrances from the Past,

Uncertainties in the Future. CIDOB. 99 Main, A. (2019). The Right Has Power in Latin America, but No Plan. Jacobin, 3 August. https://jacobinmag.com/2019/08/latin-america-united-states-donald-trumpright-wing.

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Summit of the Americas, in Peru.100 His only trip to the region has been to Buenos Aires for the G20 summit of December 2018. It is not surprising, considering his presidential campaign only mentioned Mexico, and in an anti-migration context. During the Trump administration, as under his predecessors’ terms, Latin America and the Caribbean did not have strategic importance for Washington. This will change only if an unprecedented situation happens in the region endangering US security.101 Trump has made it very clear on several occasions that he is not interested in democracy or human rights promotion. This was also underlined by the fact that the Trump administration reduced the USAID budget to the region by 36%.102 The administration also failed to lobby members of the Lima Group103 in implementing broad economic sanctions against Venezuela.104 Finally, in August 2019, “President Donald Trump ordered a freeze on all Venezuelan government assets in the United States and barred transactions with its authorities ‘in light of the continued usurpation of power’ by the socialist leader”.105 Latin American governments most likely were not very pleased to hear from John Bolton that the key motivation behind the US intervention was the vast oil reserves of Venezuela.106 Despite the not very friendly behaviour of the Trump administration towards even the right-wing governments of 100 Ibid. 101 de la Fuente, E. (2017). U.S. Foreign Policy Towards Latin America Under

Trump: Beyond Business as Usual. Developing Ideas Special Report, p. 4. https://ideas. llorenteycuenca.com/wp-content/uploads/sites/5/2017/07/170720_DI_Report_For eign_Policy_US_LATAM_ENG-1.pdf. 102 Ibid., pp. 9–10. 103 The Lima Group was established in August 2017 by a dozen right-wing Latin Amer-

ican governments and Canada, which signed a declaration denouncing the alleged “rupture of democratic order” and “violation of human rights” in Venezuela and committed themselves to work together to isolate the Maduro government. 104 Main, A. (2019). The Right Has Power in Latin America, but No Plan. Jacobin, 3 August. https://jacobinmag.com/2019/08/latin-america-united-states-donald-trumpright-wing. 105 Agence-France Press. (2019). Trump Freezes All Venezuelan Government Assets in US Ahead of Lima Group Conference. The Telegraph, 6 August. https://www.telegraph.co.uk/news/2019/08/06/trump-freezes-venezuelan-gov ernment-assets-us-ahead-lima-group/. 106 Main, A. (2019). The Right Has Power in Latin America, but No Plan. Jacobin, 3 August. https://jacobinmag.com/2019/08/latin-america-united-states-donald-trumpright-wing.

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Latin America and the Caribbean, as highlighted by Alexander Main, they are unlikely to develop a “coherent, collective project in defence of their vision for the region” as they have not developed an alternative strategy not involving US leadership.107 There were four issues concerning Latin America and the Caribbean that had a role in the 2020 US presidential campaign: immigration, drugs, trade, and the policy of hardliners in South Florida in relation to Cuba and Venezuela.108 The election of John Biden as the new president of the USA brought high expectations for the relations with Latin America, as he focused much more on the region as a vice president than others.

4.3

Development of the Inter-American System of Human Rights 4.3.1

First Attempts of Regional Cooperation

As a reaction to the intention of European monarchies—after the defeat of Napoleon (1814)—to regain their former colonies, Simón Bolívar, leader of Latin America’s independence from Spain movement, proposed a loose regional confederation of the independent republics. He organized the Congress of Panama in 1826 attended by Colombia (consisting of Colombia, Ecuador, and Venezuela), Peru, Mexico, and the Central American Federation. They approved two documents—the Treaty of Union and Perpetual Confederation and another on collective selfdefence—but neither was ever ratified.109 The establishment of the International Union of American Republics—also known as the PanAmerican Union—was the first real precursor of the OAS.110 It happened during the First International Conference of the American Republics which took place in Washington between 2 October 1889 and 9 April

107 Ibid. 108 Michael Shifter, Latin America is already Trump’s 2020 Presidential Campaign

Testing Ground, The New York Times, 8 April 2019. https://www.nytimes.com/2019/ 04/08/opinion/trump-latin-america-immigration.html. 109 Perina, R. M. (2015). The Organization of American States as the Advocate and Guardian of democracy. An Insider’s Critical Assessment of Its Role in Promoting and Defending Democracy. Lanham, MD, USA: University Press of America. p. 21. 110 Ibid., p. 22.

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1890.111 The lack of equilibrium between the USA and the other parties caused several problems. Washington was interested in the promotion of peace and trade relations in the region and keeping America separate from Europe, while the other participants aimed at unification to become stronger against their former colonial powers, but also to be in a position to defend themselves against the USA given that it had been pursuing an expansionist policy since the proclamation of the Monroe Doctrine in 1826.112 In 1933, at the Seventh International Conference of the American States, 20 participating governments—including the USA—signed the Convention on Rights and Duties of States, which came into force in 1934.113 By the Convention, the contracting parties adopted the juridical equality of the states, and according to its Article 8: “No State has the right to intervene in the internal or external affairs of another”.114 As a response to the threat posed by Nazi Germany, the American republics met in 1938 in Lima and agreed to collectively confront the threat and reaffirmed their commitment to democracy. In line with that, they proposed the establishment of a Council for the Promotion of PanAmerican Democracy and adopted a declaration on the defence of human rights.115 During World War II, there were several meetings of the foreign ministers of the region (1939 Panama, 1940 Havana, and 1942 Rio) to strengthen the cooperation and coordination among the states and address the international threat to the security of the region.116

111 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 21. 112 Ibid., p. 22. 113 Montevideo Convention on Rights and Duties of States. https://www.ilsa.org/Jes

sup/Jessup15/Montevideo%20Convention.pdf. 114 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic

Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 23. 115 Perina, R. M. (2015). The Organization of American States as the Advocate and Guardian of Democracy. An Insider’s Critical Assessment of Its Role in Promoting and Defending Democracy. Lanham, MD, USA: University Press of America. p. 24. 116 Ibid., p. 24.

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In Mexico City, in 1945, the governments of the region agreed to consolidate and strengthen the inter-American system.117 They were afraid that the USA was no longer going to support them financially and that they would not have any influence on the planned world organization. They agreed to draft a collective security treaty to be adopted at the next conference in 1947 in Rio: The Inter-American Treaty on Reciprocal Assistance.118 The first 40 years of the inter-American system was devoted on the one hand to “build[ing] up mechanisms to solve inter-American conflicts and to establish[ing] organs to promote and facilitate trade, both tasks stimulated by the United States”.119 On the other hand, the Latin American and Caribbean states tried to adopt declarations or binding documents containing important principles, like the one on non-intervention in order to limit Washington’s influence. 4.3.2

Organization of American States and the American Declaration on the Rights and Duties of Man

The OAS’s Charter120 was adopted at the Ninth Inter-American Conference, held in Bogota in 1948. The Charter came into force in 1951 and has been amended several times since (Protocol of Buenos Aires of 1967, Protocol of Cartagena de Indias of 1985, Protocol of Washington of 1992, and Protocol of Managua of 1993).121 Today, the OAS has 35 member states. Cuba’s membership was suspended in 1962 after the establishment of a Marxist-Leninist government there. This decision was revoked by the OAS in 2009, although the organization established a 117 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 27. 118 Perina, R. M. (2015). The Organization of American States as the Advocate and Guardian of democracy. An Insider’s Critical Assessment of Its Role in Promoting and Defending Democracy. Lanham, MD, USA: University Press of America. pp. 24–25. 119 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic

Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 30. 120 OAS Charter. https://treaties.un.org/doc/Publication/UNTS/Volume%20119/ volume-119-I-1609-English.pdf. 121 Kumar, D. (2014). Inter-American System of Human Rights: An Analysis. Mauritius: Lambert Academic Publishing. pp. 9–10.

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few preconditions including that re-admission should be requested by Cuba, and Havana must take part in the negotiations of the organization. So far, Cuba has not complied with these conditions.122 The Charter contains a regional agreement on basic values and principles, such as democracy, human rights, cooperation, solidarity, territorial integrity, the sovereignty of states, and most importantly, the principle of nonintervention. However, the proposal for not recognizing anti-democratic regimes and another to include a declaration on the rights and duties of man were not accepted by the majority of states,123 although the Charter stipulates the conviction that democracy is a precondition for the security and peace of the region. By Article 5(j) of the Charter, “The American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed or sex”. The same article contains a paragraph according to which “The solidarity of the American States and the high aims which are sought through it require the political organization of those States on the basis of the effective exercise of representative democracy”. However, it is important to note that the Charter does not define human rights or the expression “effective exercise of representative democracy”. This was done deliberately by most member states to avoid strict obligations concerning these notions, even though the Charter does not have a legally binding effect.124 At this same meeting in Bogota, the Latin American and Caribbean governments adopted separately the American Declaration on the Rights and Duties of Man, together with the Inter-American Charter of Social Guarantees, representing the starting point of a general human rights protection system for the region.125 The American Declaration represented the first international human rights document of its kind; it preceded the UDHR by eight months. The American Declaration came

122 Pasqualucci, J. M. (2013). The Practice and Procedure of the Inter-American Court of Human Rights, 2nd ed. Cambridge, UK: Cambridge University Press. p. 2. 123 Perina, R. M. (2015). The Organization of American States as the Advocate and Guardian of democracy. An Insider’s Critical Assessment of Its Role in Promoting and Defending Democracy. Lanham, MD, USA: University Press of America. pp. 25–26. 124 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. pp. 46–47. 125 Kumar, D. (2014). Inter-American System of Human Rights: An Analysis. Mauritius: Lambert Academic Publishing. p. 10.

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into existence as a separate document, as only 6 of the 21 states supported its inclusion in the Charter and only 8 states supported the preparation of a legally binding treaty.126 In light of the present state of the international protection and promotion of human rights and fundamental freedoms, the mixture of rights and duties and the reference to the rights of “man” are considered archaic, non-inclusive language.127 However, despite these shortcomings, the Declaration is still considered an important document. The Inter-American Court on Human Rights in its Advisory Opinion of 14 July 1989 considered that the Declaration was binding on OAS member states by virtue of its incorporation into the OAS Charter.128 At the same Conference, the participating states entrusted the InterAmerican Juridical Committee with the preparation of a draft statute of an Inter-American Court.129 However, it took 31 years (1979) until the Inter-American Court of Human Rights was finally set up. 4.3.3

Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights was created in 1959, just after Castro’s victory in Cuba. Therefore, it was not surprising that the main declared aim of the Commission was to offer “legal options to counter tyranny and oppression”.130 Composed of seven independent experts rather than governmental officials, it was considered an interim solution until the establishment of the Inter-American Court of Human Rights. This “improvisation” resulted in the Commission not having a

126 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 38. 127 Mendez, J. E. & Mariezcurrena, J. (2000). Human Rights in Latin America and the Caribbean: A Regional Perspective. A paper submitted to the Human Development Report 2000: Human Rights and Human Development. p. 1. https://www1.essex.ac.uk/ armedcon/story_id/humanrightscaribbeanreport.pdf. 128 Ibid., p. 1. 129 Kumar, D. (2014). Inter-American System of Human Rights: An Analysis. Mauritius:

Lambert Academic Publishing. p. 10. 130 Eguizabal, C. (2000). Latin American Foreign Policies and Human Rights. In: D. P. Forsythe (ed.), Human Rights and Comparative Foreign Policy: Foundations of Peace. Tokyo, New York, Paris United Nations University Press. Chapter 11, p. 10. http:// www.corteidh.or.cr/tablas/27531.pdf.

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“well-thought-out role” or procedure.131 According to the functions and roles of the Commission, it should develop human rights awareness in the region, prepare recommendations for the governments, prepare studies on the performance of its duties, ask information from governments on the human rights measures adopted by them, and serve the OAS.132 It is clear from this list of functions that the OAS did not want to create a body that would intervene in the “domestic affairs of the Member States”; however, as the Commission was considered the only organ of the region to be in a position to protect people from human rights violations, it received a great number of complaints, which could not be neglected.133 The Commission addressed human rights problems in Cuba for the first time. It was seen not just as a human rights issue, but as part of the fight against communism by many OAS member states. Consequently, it could use certain implied powers, which were needed for the better fulfilment of their function, including preparing reports on the general human rights situation of a country based on individual complaints, too.134 In 1967, the Protocol of Buenos Aires amended the OAS Charter. The functions of the Commission were broadened and its relationship with the political organs of the OAS was clarified; it became the only human rights body of the OAS.135 The Commission is still the most active organ of the Inter-American human rights system due to its independent membership. The Convention on Human Rights incorporated the role of the Commission, “without precluding the Commission from acting apart from the Convention”.136 Had it not, the worst human rights violators could have placed outside the regional human rights system if they were not members

131 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic

Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 67. 132 Ibid., p. 69. 133 Ibid., p. 70. 134 Ibid., pp. 74–75. 135 Ibid., p. 87. 136 Eguizabal, C. (2000). Latin American Foreign Policies and Human Rights. In: D.

P. Forsythe (ed.), Human Rights and Comparative Foreign Policy: Foundations of Peace. Tokyo, New York, Paris United Nations University Press. Chapter 11, p. 10. http:// www.corteidh.or.cr/tablas/27531.pdf.

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of the Convention.137 In the case of OAS member states not party to the Convention, the Commission operates under the OAS Charter. The human rights it covers by it are the ones contained in the American Declaration.138 Comparing its original functions, it could now act on petitions and communications and submit annual reports to the GA of the OAS. It also contained a few additional functions related only to the members of the Convention, including conducting on-site observations in a state.139 4.3.4 American Convention on Human Rights and the Inter-American Court of Human Rights The adoption of the American Convention on Human Rights (Pact of San José, Costa Rica) in 1969 (coming into force on 18 July 1978) represented a major step in the regional development of the protection and promotion of human rights, being the first legally binding human rights document of Latin America and the Caribbean. The American Convention, similarly to the European Convention on Human Rights, mainly focused on civil and political rights, containing only one general paragraph on the “progressive development” of economic, social, and cultural rights.140 This deficiency was addressed by the adoption of an Additional Protocol on Economic, Social and Cultural Rights (Protocol of San Salvador) in 1988.141 In 1990, another protocol was adopted on

137 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 113. 138 Medina, C. (2014). The American Convention on Human Rights. Cambridge, UK and Antwerp, Belgium: Intersentia Publishing. p. 2. 139 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 117. 140 Eguizabal, C. (2000). Latin American Foreign Policies and Human Rights. In: D. P. Forsythe (ed.), Human Rights and Comparative Foreign Policy: Foundations of Peace. Tokyo, New York, Paris United Nations University Press. Chapter 11, p. 11. http:// www.corteidh.or.cr/tablas/27531.pdf. 141 Picado, S. (2004). The Evolution of Democracy and Human Rights in Latin America: A Ten Year Perspective. Human Rights Brief , 11(3):3. http://digitalcommons. wcl.american.edu/cgi/viewcontent.cgi?article=1373&context=hrbrief.

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the abolition of the death penalty.142 The Convention made the interdependence between democracy and human rights very clear and gave the Commission “interventionist” functions regarding human rights violations in the region.143 The catalogue of non-derogable rights contained in the Convention is longer than that of the European Convention of Human Rights or the ICCPR. More rights are protected by the Convention than by other international human rights instruments; it includes, in certain cases, more advanced ways of protection. It is not surprising, therefore, that Professor Goldman called the American Convention “perhaps the most ambitious and far-reaching document of its kind ever elaborated by an international body”.144 However, the implementation of these advanced human rights guarantees can be questionable in a Latin American context.145 The Convention created the Inter-American Court of Human Rights, located in San José, Costa Rica. This is the only judicial organ of the InterAmerican Human Rights System. The Court consists of seven judges, who should be nationals of any OAS member state, but no two judges can be the nationals of the same state. The judges are elected for a term of six years. Each member state may appoint an ad hoc judge who is party to a case when no judge of that nationality is sitting on the case.146 Concerned parties can appeal to the Inter-American Commission after exhausting domestic remedies. The Commission investigates the facts and, if it considers that the applicant is right, it tries to reach an agreement to repair the damage and compensate the victims. If this is not possible, it sues the country before the Court, as the victims cannot

142 Kumar, D. (2014). Inter-American System of Human Rights: An Analysis. Mauritius: Lambert Academic Publishing. p. 11. 143 Perina, R. M. (2015). The Organization of American States as the Advocate and Guardian of democracy. An Insider’s Critical Assessment of Its Role in Promoting and Defending Democracy. Lanham, MD, USA: University Press of America. p. 41. 144 Kumar, D. (2014). Inter-American System of Human Rights: An Analysis. Mauritius: Lambert Academic Publishing. p. 81. 145 Ibid., p. 62. 146 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic

Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 165.

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do this themselves.147 During the first few years of the Court, it did not have much impact on the human rights situation in the region as until 1986 it did not receive any contentious cases from the Commission. However, after addressing contentious cases, the reputation of the Court grew because of the quality of its jurisprudence.148 The Court has a broad responsibility under its advisory jurisdiction, by providing interpretations of the Convention, the OAS Charter, the American Declaration of the Rights and Duties of Man, and other human-rights-related treaties. It is also entitled to give a ruling on the compatibility of domestic laws with these instruments.149 The Court has no means of enforcing its decisions; however, according to the Convention, if this obligation is not met, the state concerned is internationally accountable.150 Dinesh Kumar, in his assessment of the Inter-American system, found that its judicial basis was not as solid as that of the European system. Quite a few states are not party to the Convention (23 of the 35 OAS member states, after the denunciation of two states) and only a few states accept the Commission’s competence for inter-state cases. He considered it positive that there is no political body, like the Committee of Ministers in the Council of Europe system. The bodies of the Inter-American system are smaller in size than their European counterparts and their members are also elected for a shorter period.151 4.3.5

Recent Human Rights Instruments of the Inter-American System

The Inter-American Convention to Prevent and Punish Torture opened for signature in 1985. The Convention not only contains a detailed

147 Silva Abbott, M. (2018). The Inter-American Court of Human Rights, the Control of Conventionality Doctrine and the National Judicial Systems of Latin America. Ave Maria International Law Journal, 5, pp. 5–6. 148 Kumar, D. (2014). Inter-American System of Human Rights: An Analysis. Mauritius: Lambert Academic Publishing. p. 84. 149 Ibid., p. 86. 150 Medina Quiroga, C. (1988). The Battle of Human Rights. Gross, Systematic

Violations and the Inter-American System. Dordrecht, Netherlands: Kluwer Academic Publishers. p. 173. 151 Kumar, D. (2014). Inter-American System of Human Rights: An Analysis. Mauritius: Lambert Academic Publishing. p. 117.

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definition of torture, but also includes measures to prevent and punish any cruel, inhuman, or degrading treatment or punishment.152 The Convention entered into force in 1987. The Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará), entered into force on 5 March 1995.153 A year later, the Inter-American Convention on Forced Disappearance of Persons entered into force, on 28 March 1996. Finally, the Inter-American Democratic Charter, while not a classical human rights instrument, makes it very clear that respect for human rights is a prerequisite for effective democracy. The Charter was adopted on 11 September 2001 and was efficiently invoked to prevent a coup in Venezuela in 2002. It was invoked with more limited success in the case of Honduras in 2009 and Paraguay in 2012.154

4.4 Latin American Human Rights Diplomacy at Multilateral Forums with Special Emphasis on the United Nations Human Rights Council 4.4.1

International Criminal Court

The region is the second most represented region after Africa, with 28 Latin American and Caribbean states from the 122 States Parties to the Rome Statute of the International Criminal Court (ICC) (33 are African states, 18 are Asia–Pacific states, 18 are from Eastern Europe, and 25 are Western European and other states).155 Since 1999, the OAS has adopted annual resolutions on the promotion of the ICC as well as on the guiding principles of judicial cooperation with it. This is especially

152 Ibid., p. 78. 153 Ibid., pp. 78–79. 154 Crahan, M. E. (2013). Epilogue: A Task for All. In: K. Hite & M. Ungar (eds), Sustaining Human Rights in the Twenty-First Century. Strategies from Latin America. Baltimore, MD, USA: John Hopkins University Press. p. 376. 155 The States Parties to the Rome Statute. https://asp.icc-cpi.int/en_menus/asp/sta tes%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

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challenging considering the ongoing issues regarding the past in several Latin American states.156 As of June 2021, there is one ongoing case against Columbia for alleged war crimes committed since 1 November 2009 and for alleged crimes against humanity committed since 1 November 2002, and one against Venezuela for alleged crimes committed since April 2017.157 Two were closed (Honduras and Venezuela) with a decision not to proceed. On 28 September 2018, six states from the American continents (Argentina, Canada, Chile, Columbia, Paraguay, and Peru) sent a referral to the prosecutor of the ICC regarding the situation in the Bolivarian Republic of Venezuela since 12 February 2014, opening a new chapter in the history of the ICC as the first inter-state referral.158 The case is in a preliminary examination phase.159 In 2020, the Office of the ICC concluded that there is a reasonable basis to believe that crimes against humanity, particularly in the context of detention, have been committed in Venezuela since at least April 2017. Since then, the preliminary examination has also focused on the existence and genuineness of national proceedings as part of the admissibility assessment. On 13 February 2020, the ICC received a referral from the Government of the Bolivarian Republic of Venezuela regarding the situation in its own territory, in accordance with its prerogatives as a State Party to the Rome Statute. Venezuela requests the Prosecutor to initiate an investigation into crimes against humanity allegedly committed on the territory of Venezuela, with the view to determining whether one or more persons should be charged with the commission of such crimes. In its referral, the Government of Venezuela states that crimes against humanity are committed “as a result of the application of unlawful coercive measures

156 Herencia-Carrasco, S. (2010). Implementation of War Crimes in Latin America: An Assessment of the Impact of the Rome Statute of the International Criminal Court. International Criminal Law Review, 10:461–462. 157 ICC Preliminary examinations. https://www.icc-cpi.int/pages/pe.aspx. 158 FIDH. (2018). First Inter-State Referral to the ICC on Venezuela: An Impor-

tant but Insufficient Precedent Set, International Federation for Human Rights, 5 October, Press Release. https://www.fidh.org/en/region/americas/venezuela/first-interstate-referral-to-the-icc-on-venezuela-an-important-but. 159 ICC—Preliminary Examination—Venezuela. https://www.icc-cpi.int/venezuela.

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adopted unilaterally by the government of the United States of America against Venezuela, at least since the year 2014”.160 There were significant developments in the region regarding the regulation of specific crimes by national legislations, such as genocide or crimes against humanity, while there is a deficit concerning other crimes, like war crimes and judicial cooperation mechanisms with the ICC.161 One of the reasons behind this deficiency is that except for Columbia, Latin American states do not consider the perpetration of war crimes and the violation of International Humanitarian Law as a possible option in the region. 4.4.2

United Nations General Assembly and the Universal Declaration of Human Rights

Twenty Latin American and Caribbean states were among the 51 founding members162 present in 1945 at the establishment of the UN (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, and Venezuela).163 It was the largest regional group of the world organization at that time, which tried to put the question of human rights on the agenda of the San Francisco Conference and managed to include several important references to human rights in the Charter, including mention of the promotion and respect for human rights as one of the purposes of the UN.164 The Uruguay delegation even proposed that the Charter should include a “Declaration of Rights” and “a system of effective juridical guardianship of those rights”. Their proposal was not 160 International Criminal Court—Preliminary Examination—Venezuela II. https:// www.icc-cpi.int/venezuelaII. 161 Herencia-Carrasco, S. (2010). Implementation of War Crimes in Latin America: An Assessment of the Impact of the Rome Statute of the International Criminal Court. International Criminal Law Review, 10:462–463. 162 The Charter was signed on 26 June 1945 by the representatives of 50 countries; Poland signed on 15 October 1945. There were 51 Founding Members in 1945. https:// research.un.org/en/unmembers/founders. 163 At this moment there are 33 members in the Latin American and Caribbean Group (GRULAC), representing 17% of the 193 members of the United Nations. https://www. un.org/depts/DGACM/RegionalGroups.shtml. 164 Cleary, E. L. (2007). Mobilizing for Human Rights in Latin America. Sterling, VA, USA: Kumarian Press. pp. 2–3.

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adopted, and the Charter only called on the UN to promote, encourage, and assist respect for human rights.165 Of the 58 countries, which negotiated the UDHR, 20 were from Latin America.166 It is important to note that the UDHR was adopted in 1948 with eight abstentions and no dissentient votes. Besides the six members of the Communist Bloc (Poland, Czechoslovakia, Yugoslavia, Byelorussian SSR, Ukrainian SSR, and the Soviet Union), South Africa, and Saudi Arabia abstained, and Yemen and Honduras did not vote. All the Latin American states adopted it without any formal reservations.167 Since the drafting of the American Declaration of the Rights of Man preceded that of the UDHR (it was also adopted eight months earlier than the UDHR) the text of the American Declaration served as one of the main sources for those drafting the UDHR.168 It had a particularly important effect on those parts of the UDHR dealing with social and economic rights. The American Declaration contains one single right (the right of petition) and nine articles on duties that are not included in the UDHR.169 John Peters Humphrey, a Canadian lawyer, who was one of the main drafters of the UDHR also acknowledged the important contributions provided by Latin American states and experts. Hernán Santa Cruz, a Chilean jurist, was probably the most influential contributor to the drafting process

165 Sikkink, K. (2015). Latin America’s Protagonist Role in Human Rights. SUR 22, 12(22): 211. This article is a modified version of the piece published as: Sikkink, K. (2014). Latin American Countries as Norm Protagonists of the Idea of International Human Rights. Global Governance, 20(3), pp. 389–404. https://sur.conectas.org/wpcontent/uploads/2015/12/15_SUR-22_ENGLISH_KATHRYN-SIKKINK.pdf. 166 de Varennes, F. (2006). The Fallacies in the “Universalism Versus Cultural Rela-

tivism” Debate in Human Rights. Asia–Pacific Journal on Human Rights and the Law, 67:71–72. 167 International Bill of Human Rights: Universal Declaration of Human Rights: Resolution/Adopted by the UNGA. https://digitallibrary.un.org/record/670964?ln=en&p= Resolution+217%28III%29+A. 168 Obregon, L. (2009). The Universal Declaration of Human Rights and Latin America. Maryland Journal of International Law, 24(1):94–96. https://core.ac.uk/dow nload/pdf/56359238.pdf. 169 Sikkink, K. (2015). Latin America’s Protagonist Role in Human Rights. SUR 22, 12(22): 213. This article is a modified version of the piece published as: Sikkink, K. (2014). Latin American Countries as Norm Protagonists of the Idea of International Human Rights. Global Governance, 20(3), pp. 389–404.

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from the region, especially regarding economic and social rights.170 Cuba, Panama, and Chile were the first countries to submit full drafts of the bill to the Commission; these were extensively used by Humphrey.171 Latin American female delegates had an important role in changing the term “Universal Declaration of the Rights of Man” to “Universal Declaration of Human Rights”, and therefore not surprisingly of the four women who signed the UDHR, two were from Latin America.172 The drafting of an article on the right to justice (Article 8 of the UDHR) also came from Latin American delegations, especially Mexico, Cuba, and Chile, inspired by the amparo laws of the region.173 The active role played by the Latin American and Caribbean countries and experts during the drafting of the UDHR continued in the following years. For example, two Delegations (Uruguay and Costa Rica) first proposed the creation of the post of a High Commissioner for Human Rights.174 Based on an initiative by René Cassin (France) in 1947, regarding the establishment of a post of Attorney-General—which was the first name of the position of the present High Commissioner for Human Rights—Uruguay submitted a proposal concerning it in 1950 and again in 1951, while in 1965 Costa Rica introduced a similar proposal to the Commission on Human Rights.175 In 1952, it was the delegation of Mexico, among others, who argued in the Third Committee in favour

170 Cleary, E. L. (2007). Mobilizing for Human Rights in Latin America. Sterling, VA, USA: Kumarian Press. p. 3. 171 Sikkink, K. (2015). Latin America’s Protagonist Role in Human Rights. SUR 22,

12(22): 214. This article is a modified version of the piece published as: Sikkink, K. (2014). Latin American Countries as Norm Protagonists of the Idea of International Human Rights. Global Governance, 20(3):389–404. 172 Cleary, E. L. (2007). Mobilizing for Human Rights in Latin America. Sterling, VA, USA: Kumarian Press. p. 4. 173 Sikkink, K. (2015). Latin America’s Protagonist Role in Human Rights. SUR 22, 12(22): 214. This article is a modified version of the piece published as: Sikkink, K. (2014). Latin American Countries as Norm Protagonists of the idea of International Human Rights. Global Governance, 20(3):389–404. 174 Eguizabal, C. (2000). Latin American Foreign Policies and Human Rights. In: D. P. Forsythe (ed.), Human Rights and Comparative Foreign Policy: Foundations of Peace. Tokyo, New York, Paris United Nations University Press. Chapter 11, p. 9. http://www. corteidh.or.cr/tablas/27531.pdf. 175 Clapham, A. (1994). Creating the High Commissioner for Human Rights: The outside story. European Journal of International Law, 5:556–557.

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of the relationship between individual human rights and the collective right to self-determination.176 Minerva Bernardino from the Dominican Republic was one of the most effective supporters of women’s rights during the early period of the world organization. She was the one who, in 1954, introduced Resolution 843 on “The Status of Women in Private Law: Customs, Ancient Laws, and Practices Affecting the Human Dignity of Women”.177 Latin American states—including Cuba and Chile—were also very active in the fight against the colonial clause, which set up different categories of people, and thereby violating the concept of universality.178 The next time Latin America and the Caribbean was on the agenda of the UNGA and the CHR was in 1974 when the UNGA expressed “its deepest concern that constant and flagrant violations of basic human rights and fundamental freedoms in Chile continue to be reported”. A few months later, the Commission on Human Rights decided to set up a working group to examine the situation in the country. This mission was the first of its kind, paving the way for other country mandates.179 4.4.3

UN Treaty Bodies

Looking at the ratification of the eight UN human rights instruments in a report prepared by the Universal Rights Group,180 it is quite impressive that the average number of ratified treaties is 7.5 in the case of members181 of the Council belonging to GRULAC. This is the highest rate among the regional groups (it was 7.1 for the African Group and

176 Burke, R. (2010). Decolonization and the Evolution of International Human Rights. Philadelphia, PA, USA: University of Pennsylvania Press. pp. 42–43. 177 Ibid., pp. 115, 126. 178 Ibid., pp. 119–120. 179 Tomuschat, C. (2008). Origins and History of UN Special Procedures—An

Overview from Their Inception to June 2007. Human Rights Law Journal, 29(1–5):27– 28. 180 Universal Rights Group. (2017). The Human Rights Council in 2017. Leadership, Resolve and Cooperation at the UN’s Main Human Rights Body. yourHRC.org, pp. 38– 39. https://www.universal-rights.org/urg-policy-reports/human-rights-council-2017/. 181 In 2017 the following eight Latin American states were members of the UN Human Rights Council: Bolivia, Brazil, Cuba, Ecuador, El Salvador, Panama, Paraguay, and Venezuela.

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for WEOG, 7.2 for members of the EEG of the Council, and 6.5 in the case of the Asia–Pacific Group). The situation is not as good when we look at the statistics about the performance concerning their reporting obligations. The average lateness of overdue reports is 4.7 years in case of the Latin American states that are members of the Council, which places them third after WEOG (less than one year) and the Asia–Pacific Group (4 years), but significantly better than the Eastern European (8.8 years) or the African Group (12.5 years).182 There were three states in the whole continent in 2017 (including one HRC member), which were fully up to date with its treaty body reporting: Ecuador, Honduras, and Uruguay. These, therefore, belonged to an exclusive club of 33 states within the same category in the world as the High Commissioner for Human Rights highlighted it in his statement during the thirty-fifth session of the Council.183 4.4.4

Main Sessions of the United Nations Human Rights Council in 2017

Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017) The human rights situation in Latin America and the Caribbean was not very present in the annual report of the High Commissioner for Human Rights. Mr Zeid Ra’ad Al Hussein highlighted that the Dominican Republic and São Tomé and Principe had ratified and acceded to the Second Optional Protocol of the ICCPR.184 However, he expressed concern “about the extreme polarisation in Venezuela, with continued restrictions on the freedoms of movement, association, expression and 182 Universal Rights Group. (2017). The Human Rights Council in 2017. Leadership, resolve and cooperation at the UN’s Main Human Rights Body. yourHRC.org, pp. 38–39. https://www.universal-rights.org/urg-policy-reports/human-rights-council-2017/. 183 Al Hussein, Z. R. (2017). Denial of access and lack of cooperation with UN bodies will not diminish scrutiny of a State’s human rights record. Human Rights Council 35th session: Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-access-and-lack-coo peration-un-bodies-will-not-diminish-scrutiny-states-human. 184 Al Hussein, Z. R. (2017). High Commissioner for Human Rights on the Activities of His Office and Recent Human Rights Developments. Item 2: Annual Report and Oral Update to the 34th session of the Human Rights Council. http://www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=21316&LangID=E.

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peaceful protest”. The High Commissioner was also disturbed by “the lack of independence of rule of law and national human rights institutions”.185 He mentioned that “across many parts of Central and Latin America, people engaged in defending land rights and the environment from extractive industries and development projects face acute danger, including murder and violent attacks. Among them are numerous leaders of indigenous communities, whose civil, political, economic, social, and cultural rights continue to be widely abused throughout the region, despite the adoption of the American Declaration on the Rights of Indigenous Peoples last year. No development projects should be financed without extensive public deliberation and consultation with the directly affected communities that are free from intimidation”.186 Finally, he spoke about the “widespread criminal violence in the region, compounded by shortcomings in the judicial system”, underlining the recent deadly accidents in Brazil and Haiti.187 Country Situations There were five resolutions on the human rights situation in the Middle East (Human rights in Syrian Golan, Human Rights in the OPT, Accountability in the OPT, Self-determination, and Israeli settlements ). The Latin American states followed an unanimous voting pattern, as six of the eight Council members supported all five resolutions, while Panama and Paraguay abstained. It was the same way the EU members voted, except for the resolution on human rights in the Syrian Golan, where part of the EU voted against and others abstained. The situation was a bit different in case of the resolution on Iran, which was supported only by El Salvador, Panama, and Paraguay, while Bolivia, Cuba, and Venezuela voted against it. Brazil and Ecuador abstained. Similarly, the Latin American states were divided regarding the resolution on Syria, which was supported by Brazil, El Salvador, Panama, and Paraguay, while Bolivia, Cuba, and Venezuela voted

185 Ibid. 186 Ibid. 187 Ibid.

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against it. Ecuador abstained. GRULAC HRC members were even divided on the resolution on the Cooperation with Georgia, where only Panama and Paraguay supported the resolution submitted by the country concerned, while Bolivia, Cuba, and Venezuela—in line with their firm policy opposing all country resolutions—voted against it. Brazil, Ecuador, and El Salvador abstained. Thematic Issues There were three resolutions traditionally voted on a North–South division line. The first on Foreign debt was tabled by Cuba and supported by the whole GRULAC except Brazil, who voted against the resolution. The second on Human rights and unilateral coercive measures was tabled by Venezuela on behalf of NAM and was supported by the whole group. The third on Illicit funds was tabled by Egypt, Libya, and Tunisia on behalf of the African Group and where Panama and Paraguay abstained, the others supported the resolution.188 The thematic resolution submitted by Egypt, Saudi Arabia, Jordan, Morocco, and Algeria on the Effects of terrorism on the enjoyment of all human right s was supported by the whole group, except for Panama, which abstained. GRULAC members were active in running resolutions, either individually, or as part of a Core Group. In this context, Brazil was part of a Core Group on The right to privacy in the digital age, together with Mexico, and of another on Adequate housing. Mexico was even more active, running a resolution with Turkey on Birth registration and the right to everyone to recognition everywhere as a person before the law, and another alone on Human Rights of migrants. Besides all these initiatives, Mexico was a member of a Core Group on Regional arrangements for the promotion and protection of human rights and of one on the Right to work. Smaller countries in the region also actively participated in the work of the Council. Barbados was in the Core Group on Promoting the voluntary technical assistance trust fund to support the participation of least developed countries and Small Island Developing States in the work of the Human Rights Council, while Peru participated in the Core Group tabling the 188 OHCHR. (2018). Report of the Human Rights Council on Its 34th Session, A/HRC/34/2, 14 June 2018, pp. 42–56. https://www.ohchr.org/en/hrbodies/hrc/ regularsessions/session34/pages/34regularsession.aspx.

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resolution on Human rights, democracy, and the rule of law. Paraguay took part in the Core Group running the initiative entitled Situation of human rights in South Sudan, while Costa Rica was a member of a Core Group on Human rights and the environment.189 Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017) During the presentation of his annual report, the High Commissioner for Human Rights, focused on cooperation with UN human rights mechanisms. It was also quite striking that according to the High Commissioner, 74 states had overdue reports to UN treaty bodies for a decade or longer and that only 33 states—including three GRULAC countries (Ecuador, Honduras, and Uruguay)—were fully up to date with their reporting.190 The High Commissioner underlined that “members of this Council, and candidates for future membership, have a particular responsibility to cooperate with the Council’s mechanisms”. In this context, he mentioned Venezuela as one of the negative examples with ten pending requests for visits by the Special Procedures, and therefore not surprisingly its most recent visit by a thematic mandate holder had been conducted in the last century. While introducing a survey of global cooperation and non-cooperation with Special Procedures, the High Commissioner mentioned Cuba. In April 2017, after ten years of no visits by mandate holders, Havana accepted a mission by the Special Rapporteur on trafficking in persons. In this context, the High Commissioner highlighted that this was “unusual for such an active member of the HRC to maintain such limited engagement with the Special Procedures”.191 Finally, he mentioned several states, including Brazil, Chile, and Mexico, as positive examples, which facilitated more than five country visits in the past five years. 189 Universal Rights Group. (2018). Report on the 34th Session of the Human Rights Council, pp. 12–14. https://www.universal-rights.org/urg-human-rights-council-reports/ report-34th-session-human-rights-council/. 190 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights Council 35th session: Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-access-andlack-cooperation-un-bodies-will-not-diminish-scrutiny-states-human [accessed 11 October 2018]. 191 Ibid.

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Country Situations During the thirty-fifth session, three resolutions on country situations were adopted by vote. The resolution on Syria was adopted with 27 yes votes, 8 no votes, and 12 abstentions. The Latin American states were quite divided concerning this initiative, as Bolivia, Cuba, and Venezuela voted against it, while Brazil, El Salvador, Panama, and Paraguay supported it. Ecuador abstained.192 It was not surprising that GRULAC members were also divided concerning the resolution on Belarus, which was finally adopted with a vote of 18Y:8N:21A. It was not supported by Bolivia, Cuba, and Venezuela. Brazil, Panama, and Paraguay voted yes to the resolution. Ecuador and El Salvador abstained.193 Regarding the other Eastern European country initiative, namely the resolution on Ukraine, which was adopted with a vote of 22Y:6N:19A, GRULAC was also divided. Ecuador and Panama supported it. Bolivia, Cuba, and Venezuela voted against it.194 Thematic Issues During this session, most of the controversial thematic resolutions were strongly influenced by North–South political differences, and the GRULAC members of the Council, almost unanimously, supported all of them (International solidarity, Right to peace, International cooperation, Protection of family, and Contribution of development ). The two exceptions were the resolution on the Protection of the family, where Brazil and Panama abstained, and the resolution on the Contribution of development, where Panama abstained, and Paraguay was absent. The role of Latin American states was quite remarkable. The first two were submitted by Cuba, and the third by Venezuela. Besides these two resolutions,

192 OHCHR. (2018). Report of the Human Rights Council on Its 35th Session,

A/HRC/35/2, 14 June 2018, pp. 58–59. https://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session35/Pages/35RegularSession.aspx. 193 Ibid., pp. 59–60. 194 OHCHR. (2018). Report of the Human Rights Council on Its 35th Session,

A/HRC/35/2, 14 June 2018, p. 79. https://www.ohchr.org/EN/HRBodies/HRC/ RegularSessions/Session35/Pages/35RegularSession.aspx.

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Cuba was the main sponsor of the resolution on Social Forum, which was adopted by consensus.195 Given the divergent human rights policy of the GRULAC members, the Latin American and Caribbean states were involved in most of the Core Groups submitting resolutions. In this context, the thematic resolution on the Elimination of discrimination against persons affected by leprosy and their family members should be mentioned as Brazil was one of the members of the Core Group led by Japan. Brazil was also a member of the Core Group that submitted the resolution entitled Consideration of the elaboration of a draft declaration on the promotion and full respect of human rights of people of African descent, and of another Core Group which ran the resolution on The right of everyone to the enjoyment of the highest attainable standard of physical and mental health in the implementation of the 2030 Agenda for Sustainable Development. The resolution on Human rights in the cities and other settlements was submitted by Brazil and Ecuador. Besides these initiatives, Brazil was a member of the Core Group—with Argentina—which tabled the resolution on The negative impact of corruption on the enjoyment of human rights.196 Argentina was also involved in the Core Group on Business and human rights and in another on Child, early and forced marriage in humanitarian settings, together with other GRULAC members, Honduras and Uruguay. Honduras was also a member of the Core Group running the resolution on Panel discussion on the human rights of internally displaced persons in commemoration of the twentieth anniversary of the guiding Principles on Internal Displacement. Mexico was also a very active member of the Council, being part of several Core Groups, including one running the resolution on the Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers, and the one on the Special Rapporteur on the rights of persons with disabilities. Besides this, Mexico ran two resolutions alone, one on the Protection of human rights and fundamental freedoms while countering terrorism and another on the Protection of the

195 Universal Rights Group. (2018). Report on the 35th Session of the Human Rights Council, p. 9. https://www.universal-rights.org/urg-human-rights-council-reports/rep ort-35th-session-human-rights-council/. 196 Ibid., pp. 10–12.

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human rights of migrants: the global compact for safe, orderly and regular migration.197 El Salvador was a member of the Core Group running the resolution on the Protection of the family and of another which tabled the resolution entitled Youth and human rights. Ecuador was also an active member of the Council, taking part in the Core Group—with Peru—on National policies and human rights, and in another on the Contribution of parliaments to the work of the Human Rights Council and its universal periodic review. Peru was also a member of the Core Group—with Chile—that ran the resolution on Extreme poverty and human rights.198 Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017) In his regular update, the High Commissioner for Human Rights focused on the lack of consistency between many states’ internal and external human rights policy that undermines the credibility of the Council.199 Regarding Venezuela, he mentioned reports about “excessive use of force by security officers, and multiple other human rights violations, in the context of anti-Government protests”. He was of the view that “there is a very real danger that tensions will further escalate, with the Government crushing democratic institutions and critical voices – including through criminal proceedings against opposition leaders, recourse to arbitrary detentions, excessive use of force, and ill-treatment of detainees, which in some cases amounts to torture”. The High Commissioner referred to the investigation carried out by his office, suggesting the “possibility that crimes against humanity may have been committed, which can only be confirmed by a subsequent criminal investigation”. He underlined that the current mechanism of the National Truth and Reconciliation Commission was inadequate; therefore, he urged its reconfiguration with the support and involvement of the international community. Finally, he

197 Ibid., pp. 10–12. 198 Ibid., pp. 10–12. 199 Al Hussein, Z. R. (2017). Opening Statement by Zeid Ra’ad Al Hussein, United

Nations High Commissioner for Human Rights, Human Rights Council 36th Session, 11 September 2017. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=22041&LangID=E.

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also urged the Council to “establish an international investigation into the human rights violations in Venezuela”.200 The High Commissioner welcomed the act by the Constitutional Court in Guatemala “to reverse an attempt to expel the head of the International Commission against Impunity in Guatemala, or CICIG— an independent international body whose main purpose is to support State institutions in the investigation and prosecution of corruption and organized crime”.201 He was concerned, however, about the continuing violence in El Salvador “between members of powerful gangs and the security forces, which have given rise to alarming reports of extra-judicial killings”.202 Country Situations GRULAC members of the Council were divided on three of the four country-specific resolutions adopted by the HRC by a vote. On the resolution on Syria, as usual Bolivia, Cuba, and Venezuela voted against the resolution, while Brazil, El Salvador, Panama, and Paraguay supported the initiative. Only Ecuador abstained.203 The Council renewed the mandate of the Commission of Inquiry on Burundi for one year by a voted (22Y:11N:14A) resolution submitted by the EU.204 The resolution was not supported by Bolivia, Cuba, and Venezuela, while Brazil, El Salvador, Panama, and Paraguay supported it. Ecuador abstained. Tunisia, on behalf of the African Group, submitted a competing resolution on the Mission by the Office of the United Nations High Commissioner

200 Ibid. 201 Al Hussein, Z. R. (2017). Opening Statement by Zeid Ra’ad Al Hussein, United

Nations High Commissioner for Human Rights, Human Rights Council 36th Session, 11 September 2017. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=22041&LangID=E. 202 Ibid. 203 OHCHR. (2018). Report of the Human Rights Council on Its 36th Session,

A/HRC/36/2, 2018, pp. 48–49. https://www.ohchr.org/EN/HRBodies/HRC/Regula rSessions/Session36/Pages/36RegularSession.aspx. 204 Ibid., pp. 47–48.

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for Human Rights to improve the human rights situation and accountability in Burundi (23Y:14N:9A) which was supported by most of the Latin American states; only Panama and Paraguay abstained.205 The last country-specific resolution adopted by a vote (45Y:1N:1A) during this session was one on Technical assistance and capacity-building in the field of human rights in the Democratic Republic of Congo. Only the USA voted against it, while the Republic of Korea abstained. GRULAC remained unified.206 Thematic Issues GRULAC members of the Council voted in a quite coherent way concerning most of the sensitive thematic resolutions (Mercenaries; Democracy and equitable international order; Right to development; Rights of peasants; Composition of the staff of the OHCHR; Unilateral coercive measures; From rhetoric to reality). They supported all of them. Panama was missing from the room for the vote on the Right to development and on Unilateral coercive measures.207 The resolutions on Mercenaries, on the Composition of the Staff of the OHCHR, and on Democracy and equitable international order were submitted by Cuba. The resolution on the Right to development and on unilateral coercive measures was tabled by Venezuela on behalf of NAM. The resolution on the Right of peasants was tabled by Bolivia, Cuba, Ecuador, and South Africa. Consequently, GRULAC countries played a determining role regarding all sensitive thematic resolutions, except for the last entitled From rhetoric to reality, which was an initiative by the African Group. GRULAC members of the HRC were divided during the vote on the resolution on Reprisals, which was critical of the support of those who want to cooperate with the UN. The resolution which was adopted by 28Y:0N:19A, was supported by most of GRULAC countries; however, Bolivia, Cuba, and Paraguay were among those 19 states that abstained.208 However, before this final vote, there were 19 hostile amendments; three of them were adopted by the Council. Venezuela was

205 Ibid., pp. 14–15. 206 Ibid., pp. 168–169. 207 Ibid., p. 35. 208 Ibid., pp. 54–63.

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one of the key players in this attack against the resolution, besides Russia, Egypt, China, and India. GRULAC countries were not as divided as other regional groups— like the Asia–Pacific or the African Group—in the case of the resolution on the Death penalty, tabled by a Core Group containing Costa Rica and Mexico, alongside other countries. Only Cuba abstained during the voting on the resolution which was finally adopted by 27Y:13N:7A.209 As was the case during the previous sessions of the HRC this year, GRULAC members were very active as main sponsors of resolutions. Besides those already mentioned, Argentina was part of a Core Group running the resolution on Enforced and involuntary disappearances and of another on the Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence—together with a few other Latin American countries such as Columbia, Peru, and Uruguay. Brazil was active as usual, participating in a Core Group on the resolution entitled The full enjoyment of human rights by all women and girls and the systematic mainstreaming of a gender perspective into the implementation of the 2030 Agenda for Sustainable Development. Together with Costa Rica, Brazil also participated in a Core Group running the initiative on World Programme for Human Rights Education, and with Portugal, Brazil tabled a resolution on Mental health and human rights. With Paraguay, Brazil ran a resolution on Promoting international cooperation to support national human rights follow-up systems, processes and related mechanisms, and their contribution to the implementation of the 2030 Agenda for Sustainable Development. Finally, Brazil was also a member of a larger Core Group together with Honduras on Enhancement of technical cooperation and capacity building in the field of human rights. Mexico ran a resolution with Guatemala on Human rights and indigenous peoples. Uruguay was a member of the Core Group that tabled the resolution on Cooperation with the United Nations, its representatives and mechanisms in the field of human rights. Finally, Costa Rica was part of a Core Group that tabled the resolution on Conscientious objection to military service.210

209 Ibid., pp. 38–42. 210 Universal Rights Group. (2017). Report on the 36th Session of the Human Rights

Council. pp. 13–15. https://www.universal-rights.org/urg-human-rights-council-reports/ report-36th-session-human-rights-council/.

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Recent Developments in the United Nations Human Rights Council

Since 2017, important and far-reaching developments occurred in the HRC, which should be addressed to complete and refine the general picture of human rights diplomacy in GRULAC countries in the HRC. Two countries in the region were put on the agenda of the Council. At the thirty-ninth session of the HRC (September 2018), a resolution was adopted by 23Y:7N:17A on The Promotion and protection of human rights in the Bolivarian Republic of Venezuela, calling on the government to accept humanitarian assistance to address the food, medicine, and medical supply shortage in the country.211 The resolution requested the High Commissioner “to prepare a comprehensive written report on the human rights situation in the Bolivarian Republic of Venezuela and to present it to the HRC at its forty-first session, to be followed by an enhanced interactive dialogue, and to present an oral update on the human rights situation to the Council at its fortieth and forty-second sessions”.212 It was the first time since the creation of the HRC that an Item 4 resolution was tabled by countries belonging to the same regional group as the concerned country. The resolution was introduced by Peru on behalf of several GRULAC member states belonging to the Lima Group (Argentina, Chile, Columbia, Costa Rica, Guatemala, Guyana, Honduras, Mexico, and Paraguay). It was an important sign of the limits of regional solidarity, given that Brazil, Chile, Ecuador, Mexico, Panama, and Peru supported the initiative, while only Cuba and Venezuela voted against it. During the forty-second session of the HRC (September 2019), two independent resolutions, with completely different approaches to the human rights situation in Venezuela were adopted. By the resolution on Strengthening cooperation and technical assistance in the field of human

211 OHCHR. (2018). Human Rights Council Adopts 10 Resolutions and One Presidential Statement. Press release of the OHCHR, Geneva, 28 September. https://www. ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23652&LangID=E. 212 RES/39/1 Promotion and protection of human rights in the Bolivarian Republic of Venezuela. https://www.right-docs.org/doc/a-hrc-res-39-1/.

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rights in the Bolivarian Republic of Venezuela 213 submitted by Iran and adopted by a vote of 18Y:6N:23A, the Council welcomed the permanent presence of the OHCHR in Venezuela under the terms established in the memorandum of understanding signed on 20 September 2019. The focus of this resolution was on the cooperation between the OHCHR and Venezuela, by prioritizing capacity-building and technical assistance.214 The other resolution submitted by the Lima Group on the Situation of human rights in the Bolivarian Republic of Venezuela, adopted by a 19Y:7N:21A, the Council requested the OHCHR to prepare a comprehensive written report on the situation of human rights in Venezuela and to present the report to the Council at its forty-fourth session. By this resolution, the Council decided to establish, for one year, an independent international fact-finding mission and to dispatch that mission urgently to Venezuela to investigate extrajudicial executions, enforced disappearances, arbitrary detentions and torture, and other cruel, inhumane, or degrading treatment since 2014, to ensure full accountability for perpetrators and justice for victims. The Council requested the mission to present a report on its findings during an interactive dialogue at its forty-fifth session.215 The President of the HRC, Ambassador Coly Seck (Senegal), announced on 2 December 2019, the appointment of Marta Valiñas (Portugal), Francisco Cox Vial (Chile), and Paul Seils (UK), to serve as the three members of the Fact-finding Mission on Venezuela. Ms Valiñas serves as Chair of the Mission.216 The political divisions within the region were well marked in course of the elections to the HRC in October 2019, when at the last minute Costa Rica decided to compete for one of the two seats available for GRULAC members, to prevent Venezuela being elected to the Council. Brazil won 153 votes, and Venezuela also got a seat on the Council with 105 votes. 213 HRC Resolution 2/L.38/Rev.1 on Strengthening cooperation and technical assistance in the field of human rights in the Bolivarian Republic of Venezuela. https://und ocs.org/A/HRC/42/L.38/Rev.1. 214 OHCHR. (2019). Human Rights Council, closes forty-second regular session, adopts 38 texts, establishes a Fact-finding Mission on Venezuela and an expert mechanism on the right to development, Press Release of the OHCHR, 27 September. https://www. ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25077&LangID=E. 215 Ibid. 216 OHCHR. (2019). President of Human Rights Council Appoints Members of Fact-

Finding Mission on Venezuela. Press Release of the OHCHR, 2 December. https://www. ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=25376&LangID=E.

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Despite the very late and short campaign Costa Rica received 96 votes, which was not enough to block Venezuela.217 The second country which was put on the agenda of the Council was Nicaragua. Members of the Lima Group (Argentina, Brazil, Canada, Chile, Columbia, Costa Rica, Ecuador, Paraguay, and Peru)—taking into consideration the deteriorating human rights situation—submitted a resolution during the fortieth session of the HRC (March 2019) on the Promotion and protection of human rights in Nicaragua. The resolution was adopted by 23Y:3N:21A. The only GRULAC country that voted against it was Cuba, alongside Egypt and Eritrea.218

4.6

Conclusion

Although the regional human rights bodies and organizations are not visible in the work of the HRC, there are many forms of cooperation between them and the United Nations. For example, the Inter-American Commission and the Inter-American Court on Human Rights found the United Nations human rights standards very important and useful when dealing with cases where there was no established case law within the Inter-American system.219 We could also mention that the InterAmerican human rights mechanisms had a useful cooperation with the Special Rapporteur on minority issues on Roma rights in the Americas.220 Finally, we can highlight the input provided by the Inter-American Commission on Human Rights for the consideration of the UPR of several Latin American states.221 217 Symonds, A. (2019). Venezuela to Join U.N. Human Rights Council, Despite Track Record, The New York Times, 17 October 2019. https://www.nytimes.com/2019/10/ 17/world/americas/venezuela-united-nations-human-rights-council.html. 218 OHCHR. (2019). Fortieth Session of the Human Rights Council. https://www. ohchr.org/EN/HRBodies/HRC/RegularSessions/Session40/Pages/ResDecStat.aspx. 219 Workshop on regional arrangements for the promotion and protection of human rights, A/HRC/28/31 Report of the United Nations High Commissioner for Human Rights. p. 5. 220 Workshop on regional arrangements for the promotion and protection of human rights, A/HRC/34/23 Report of the United Nations High Commissioner for Human Rights. p. 10. 221 Workshop on regional arrangements for the promotion and protection of human rights, A/HRC/28/31 Report of the United Nations High Commissioner for Human Rights. p. 7.

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Based on the unique historical and geopolitical circumstances, it is not surprising that Latin America and the Caribbean is probably the most open regional group in the UN system. Therefore, cooperation with GRULAC is essential for all the other regional groups to have a majority within the UN in general and in the HRC in particular. Looking at the activity of the GRULAC members, it is clear that they are involved in both pro-human-rights initiatives and in efforts aimed at undermining the human rights protection system of the world organization. We can distinguish three broad categories within the region. States like Venezuela, Bolivia, and Cuba are against any country-specific criticism in the name of national sovereignty and the principle of nonintervention. They are among the most active members of the Council aimed at strengthening artificially the South-North human rights divisions, thereby trying to avoid international scrutiny, and supporting those forces which would like to shrink the space for critical civil society organizations. In the second category of states, we can find countries like Brazil and Columbia that are in general supportive of country situations although unwilling to confront countries like Russia and China.222 In the third category, we have Argentina, Chile, Costa Rica, Mexico, and Uruguay, all are usually very committed to the cause of human rights in most of the circumstances. It does not mean that their human rights record is perfect, but for those governments the international protection and promotion of human rights belong to the key foreign policy priorities. Most of the countries to be found in the previous two groups are frequently having serious human rights problems and therefore not interested in the strengthening of the international human rights mechanisms, plus in order to avoid criticism from the HRC they are voting together with those governments which are in the same situation, providing a practical coalition of those states which are on the agenda of the Council or facing a risk of being on it. Looking at the voting and co-sponsorship patterns of the members of the Group, it is striking that even those countries that are in favour of country resolutions and take part in Core Groups addressing the most progressive human rights issues, also unanimously support thematic initiatives aimed at intensifying hostilities between the Global South and the 222 Sabatini, C., Williams, A., Buey Fernandez, M. & Romo, M. (no date). Global Americans, Liberals, Rogues and Enablers. International Order in the 21st Century. p. 2. https://theglobalamericans.org/files/LAGG-final-report.pdf.

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North and thereby weakening the international human rights protection system. However, in recent years, positive trends can be detected on the horizon, such as the resolution tabled by the Lima Group concerning the human rights situation in Venezuela or Nicaragua. It is the sincere hope of the author that soon GRULAC can play an important role in strengthening intercultural dialogue and cooperation. Latin America and the Caribbean is capable of doing much, due to its historical and political background. It is the only regional group with a strong regional human rights system and living cultural and political relations with Europe that at the same time belongs to the Global South and shares all the problems the developing world has to face in the twenty-first century. The region’s strong commitment to modernity should be converted to the strength and force, which is needed for the task. The pro-human rights countries of Latin America and the Caribbean can work as the engine of the efforts aimed at establishing close and efficient cooperation among states of the South and the North to enhance the human rights situation worldwide, by avoiding the trap of cultural relativism or civilizational fights.

CHAPTER 5

Implementing Universal Human Rights Standards in and by Sub-Saharan African States in the Shade of Local Traditions

For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others. Nelson Mandela former President of South Africa1

5.1

Introduction

There is not one single Asian, African, Arab, or Latin American perspective on human rights. Joanne Bauer distinguishes two broad types of societal perspectives: first, a cultural nationalism that is often tied to and manipulated by governments and the second, the so-called activistintellectual perspective.2 This second group of perspectives, whose representatives are outside of the West, focuses its energies on two areas: “to look within their cultures for values and practices that resonate with the current human rights regime; and second, to attempt to enrich the current international rights regimes with values and practices” extracted from their particular cultural norms, which may also resonate with the

1 Mandela, N. (1994). Long Walk to Freedom. Boston, MA: Little Brown & Co. p. 385. 2 Bauer, J. (2003). The Challenges to International Human Rights. In: M. Monshipouri

et al. (eds), Constructing Human Rights in the Age of Globalization. Armonk, NY: M. E. Sharpe. p. 238.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6_5

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universal human rights regime, but do not currently form part of it.3 Using the palaver political system of communal Africa, where chiefs routinely consult elders, as an argument for the right to political participation is an example of the first, and promoting Confucian ideas about respect for the elderly, a notion that is not found in existing UN international human rights documents, is an example of the second.4 This chapter depicts the aforementioned dilemma for African states regarding how they should approach the international human rights system, especially in cases when it is difficult to reconcile universal standards with local norms. There are several approaches to identify in Africa. Some countries have rejected the international human rights system; others accept it selectively with serious reservations; and still others try to adapt themselves to its presumed dictates, considering such harmonization a solution for the legacy problems found in many African societies. Analysing the different phases of the human rights debate in subSaharan Africa5 gives us a clear picture of the political and ideological history of that part of the continent.6 This chapter discusses this evolution of human rights in four distinct periods, starting with the pre-colonial stage, which ended at the beginning of the 1800s with the large-scale arrival of the Europeans. The chapter then continues with the colonial period through the mid-1900s, moves into the post-colonial era lasting until the late 1980s, and finally, offers a review of the contemporary human rights situation in sub-Saharan Africa. The second part of this chapter analyses how different human rights policies of the countries in the region are manifested in a multilateral context, demonstrating that, notwithstanding the common priorities of the continent, there are significant differences among the approaches of sub-Saharan African states regarding the most important human rights

3 Ibid., p. 239. 4 Ibid. 5 According to the UN, sub-Saharan Africa consists of all African states that are fully or partially located south of the Sahara. Although Somalia, Djibouti, Comoros, and Mauritania are geographically in sub-Saharan Africa, they are Arab states. They will not be addressed in this chapter, but under Chapter 7 entitled “The Human Rights Diplomacy of Muslim States at Multilateral Forums”. 6 El-Obaid Ahmed El-Obaid & Appiagyei-Atua, K. (1996). Human Rights in Africa—A New Perspective on Linking the Past to the Present. McGill Law Journal, 41:819, 821.

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challenges of our contemporary world. This chapter pays special attention to the role of sub-Saharan countries in the HRC, which gives a comprehensive picture of the priorities of a given region, particularly as compared to other continents. The review of the work of the sub-Saharan African states in the HRC offers a clear and comprehensive picture of how they reconcile their local values with universal standards in light of the complicated human rights development process in the region.

5.2 A Short Overview of the History of Human Rights in Sub-Saharan Africa 5.2.1

Human Rights in Pre-colonial Africa

One of the focuses of the academic debate between Western and African researchers regarding the pre-colonial period is whether law and a European concept of human rights existed on the continent. Most Western researchers argue that due to the traditional nature of African societies at that time, the people were governed by customs and not by laws.7 As a consequence, Western scholars such as Rhoda Howard and Jack Donnelly are of the view that human rights did not exist as a concept in pre-colonial Africa. According to Howard, the African concept of human rights is actually a concept of human dignity, of what defines “the inner” (moral) nature and worth of the human person and his or her proper (political) relations with society. Despite the twinning of human rights and human dignity in the preamble to the Universal Declaration of Human Rights and elsewhere, dignity can be protected in a society not based on rights. The notion of African communalism, which stresses the dignity of membership in, and the fulfilment of one’s prescribed social role in a group (family, kinship group, tribe), still represents accurately how many Africans appear to view their relationship to society.8 In Donnelly’s view, researchers who argue in favour of the existence of human rights in pre-colonial African societies either confuse human rights with measures intended to limit governmental powers or are referring to rights that were not based on the humanity of someone but rather on

7 Nmehielle, V. O. O. (2001). The African Human Rights System: Its Laws, Practice, and Institutions. Leiden, the Netherlands: Brill Nijhoff. p. 7. 8 Ibid., pp. 11–12.

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criteria such as age, sex, lineage, achievement, or community membership.9 He concludes that “[t]raditional African societies had concepts and practices of social justice that simply did not involve human rights”.10 In this context, it is worth mentioning how Timothy Fernyhough, one of the few non-African scholars supporting the idea of human rights in pre-colonial Africa, reminds Howard and Donnelly that “if [these authors] believe that human rights derive directly from a person’s humanity and embody human dignity, which makes them inalienable and universal, it would be contradictory for them not to apply their own definitions and philosophical concepts of human rights to pre-colonial Africa”.11 On the other hand, African scholars like Vincent O. Orlu Nmehielle argue that while religion or metaphysics had a great influence on African customs, these philosophies did not discredit the legal nature of predominant norms in African societies.12 Makau Mutua criticizes Donnelly and Howard’s position that only European liberalism can serve as a foundation for the notion of human rights. In his view, this position undermines the universality of human rights, as it situates the whole concept in the context of one particular culture.13 African scholars most frequently refer to the examples of the Akamba of Eastern Africa and the Akan of Western Africa to prove the existence of human rights in the pre-colonial period of the continent.14 According to researchers, both societies considered the individual to be an inherently valuable being that possessed certain basic rights, including the right to choose their rulers. In this context, we have to address the notion of ubuntu, which does not have a clear definition, but it can be found in diverse forms in many societies throughout Africa. More specifically, among the Bantu 9 Donnelly, J. (2013). Universal Human Rights in Theory and Practice. 3rd ed. Ithaca, NY: Cornell University Press. p. 78. 10 Ibid., p. 79. 11 Nmehielle, V. O. O. (2001). The African Human Rights System: Its Laws, Practice,

and Institutions. Leiden, the Netherlands: Brill Nijhoff. pp. 15–16. 12 Ibid., p. 11. 13 Mutua, M. W. (2002). Human Rights: A Political and Cultural Critique. Philadel-

phia, PA: University of Pennsylvania Press. p. 80. 14 Nmehielle, V. O. O. (2001). The African Human Rights System: Its Laws, Practice, and Institutions. Leiden, the Netherlands: Brill Nijhoff. pp. 13–14.

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languages of eastern, central, and southern Africa, the notion of ubuntu is a cultural worldview that tries to capture the essence of what it means to be human.15 “A person with ubuntu is open and available to others, affirming of others, does not feel threatened that others are able and good; he or she has a proper self-assurance that comes with knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed, or treated as if they were less than who they are”.16 Consequently, ubuntu can be considered as a local response to universal human rights standards, which is complementary to them and can contribute to a more efficient dialogue among civilizations. Nmehielle correctly criticizes those African researchers who overemphasize the uniqueness of the African human rights concept and use it to build up a cultural relativist theory. I share Nmehielle’s final assessment that although human rights were present in pre-colonial Africa, they were certainly not codified or formally articulated in a European manner but rather existed more at the concept level. Such formal articulation of human rights only happened in the West, particularly under the auspices of the United Nations.17 Mutua underlines that the pre-colonial past of Africa is not an ideal one, but the authoritarian and far-reaching control of the individual by the all-powerful state was unknown, as it happened in Europe.18 He puts the African societies in two categories: those with centralized authority, administrative machinery, and standing judicial institutions, such as the Zulu; and those with more communal and less intrusive governmental structures, such as the Akamba. According to Mutua, all societies of the region considered human beings special and worthy of protection. Therefore, ethnocentric universality is counterproductive and

15 Murithi, T. (2007). A Local Response to the Global Human Rights Standard: The Ubuntu Perspective on Human Dignity. Globalisation, Societies and Education, 5(3) (November 2007):277, 281. 16 Ibid., p. 282. 17 Nmehielle, V. O. O. (2001). The African Human Rights System: Its Laws, Practice,

and Institutions. Leiden, the Netherlands: Brill Nijhoff. p. 16. 18 Mutua, M. W. (2002). Human Rights: A Political and Cultural Critique. Philadelphia, PA: University of Pennsylvania Press. p. 75.

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results in the manipulation of the human rights concept to support repressive regimes,19 Mutua suggests a reasonable solution. By searching each culture for norms that appear to conform with universal standards, it is possible to establish the cultural legitimacy of certain human rights and to mobilize societal will behind the enforcement of the implementation of these rights. Mutua is correct in claiming that this internal cultural legitimacy would prevent those in power from considering them as external value, thus referring to national sovereignty to avoid the implementation of human rights. The Situation of Human Rights During the Colonial Period The pre-colonial phase of human rights ended with the large-scale arrival of Europeans on the continent. This interaction began with commercial cooperation regarding raw material, led to slave trading, and culminated in the near-total colonial occupation of the African continent.20 At the Vienna Conference in 1815, Africa was declared terra nullius , denying any legal standing to treaties and agreements between the African kings and chiefs and the Europeans. This official start to colonialism had a devastating effect on the relative dignity and human rights enjoyed by Africans in the pre-colonial period.21 During the colonial period, the organic development of African law was interrupted, as the artificially drawn borders did not respect existing ethnic divisions and thus the religions, languages, and legal-education systems imposed, demonized, and expelled their African equivalents.22 International standards, such as the Conventions of the International Labour Organization (ILO), were deliberately violated by the colonial powers, as the African territories were considered outside the scope of international instruments.23 It is worth comparing the main characteristics of British, French, and Belgian colonial practices, as their divergent philosophical bases and 19 Ibid., p. 81. 20 An-Na‘im, A. A. (2011). Muslims and Global Justice. Philadelphia, PA: University of

Pennsylvania Press. p. 66. 21 El-Obaid Ahmed El-Obaid & Appiagyei-Atua, K. (1996). Human Rights in Africa— A New Perspective on Linking the Past to the Present. McGill Law Journal, 41:821. 22 Ibid., p. 822. 23 Nmehielle, V. O. O. (2001). The African Human Rights System: Its Laws, Practice,

and Institutions. Leiden, the Netherlands: Brill Nijhoff. p. 19.

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distinct technical implementation of colonial systems resulted in diverse effects on the human rights of colonized peoples. French colonialism was based on the ambition to politically and culturally assimilate the population under their rule. In this system, the colony was an integral part of the mother country, and French law and jurisprudence prevailed.24 The ultimate aim was to transform the Africans to French, and the colonial powers even made the attainment of French citizenship theoretically possible. This system posed the biggest danger to indigenous African institutions by disregarding the traditional rights of African societies.25 The Belgian colonial administration of Congo was even more brutal and exploitive than the other two colonial powers under consideration. King Leopold II originally administered Congo as a personal undertaking, so the Belgian Congo was directly governed from Brussels and all directives came from there as a consequence.26 Belgium controlled every aspect of life, as “Africans were considered to incapable of guiding their own destinies”.27 Contrary to the French approach, the people of Congo never had the opportunity to become Belgian citizens and, unlike the French and British, the Belgians wanted to prevent their subjects from coming to Europe. The British colonial administration was characterized by the policy of indirect rule, using the administrative machinery created by the “natives” whereby the African chief played the role of the local government.28 As a consequence, African institutions were preserved and this resulted in serious savings for the British Crown. Britain was always more occupied with its Asian empire and never intended to turn the Africans into Britons. This indirect rule gave more power to indigenous chiefs than would have been tolerated in traditional African societies, but unfortunately, this power was frequently abused. The courts established by the British had the duty to implement the native law and customs, provided they were not barbarous.29 In addition, the British abolished certain 24 Ibid., p. 20. 25 Ibid., p. 21. 26 Ibid., p. 22. 27 Ibid., p. 22. 28 Ibid., pp. 23–24. 29 Ibid., p. 25.

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customary practices such as trial by ordeal, the custom of killing twins, caste systems, and witchcraft. However, “British colonial law accepted continuation of polygamy provided it could not be combined with other forms of marriage, such as civil marriage”.30 Some researchers are of the view that the indirect rule applied by the British was better than the direct administration by Paris and Brussels as it gave “the dependent peoples the greatest possibilities of acquiring self-determination by constitutional means”.31 As mentioned earlier, international instruments adopted even under the auspices of the United Nations, like the UDHR, did not affect the colonized nations. As a result, some African scholars are of the view that until the adoption of the Declaration on the Granting of Independence to Colonial Countries by the United Nations in 1960, no serious consideration was given to the plight of peoples under colonial rule.32 Post-colonial History of Human Rights in Africa The Atlantic Charter of 1941, declaring the “right of all peoples to choose the form of government under which they will live”, provided the framework for African elites to demand political reforms.33 However, the War Cabinet in London made it very clear in 1942 that it only referred to nations under Axis occupation and not the British Empire. This move provoked a protest memorandum to the British government by Nnamdi Azikiwe, the first President of Nigeria, who called for an African Human Rights Charter.34 In 1945, the Fifth Pan-African Congress made an effort to establish a link “between human rights and the fight against colonialism on the one hand and between Pan Africanism and human rights on the other”.35 However, it was the liberation of sub-Saharan Africa, starting with Ghana in 1957, that opened the door for Africans 30 Ibid., p. 26. 31 Ibid., p. 27. 32 Ibid., p. 29. 33 Eckert, A. (2011). African Nationalists and Human Rights, 1940s–1970s. In: S. L.

Hoffmann (ed), Human Rights in the Twentieth Century. Cambridge, UK: Cambridge University Press. pp. 283, 292. 34 Kufuor, K. O. (2010). The African Human Rights System: Origin and Evolution. Basingstoke, UK: Palgrave Macmillan. p. 1. 35 Nmehielle, V. O. O. (2001). The African Human Rights System: Its Laws, Practice, and Institutions. Leiden, the Netherlands: Brill Nijhoff. p. 68.

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to promote the human rights situation on the continent, and as a result, several constitutions that included positive human rights content were adopted.36 During the “Year of Africa” in 1960, when 17 African states became independent, US officials, including President Eisenhower, made sceptical statements about the value of human rights in developing countries and, as a result, as was put by several observers, “they opted for supporting dictators... and forgot about rights”.37 In 1961, during the first interAfrican meeting, several recommendations were formulated to improve the human rights situation in Africa, compiled in a document entitled “The Law of Lagos”.38 That was the first occasion that the idea of an African Human Rights Charter and a related court was suggested. However, the general sentiment among African leaders concerning the cause of human rights was very well reflected by Julius Nyerere in his Independence Address at the United Nations, where he considered the rights’ protections contained in the UDHR a goal rather than something Africa had already achieved.39 The 1963 Charter establishing the Organization of African Unity (OAU) was based on the principles of state sovereignty and noninterference and considered the fight for decolonization as one of its main objectives.40 Although the OAU’s founding document proposed the establishment of five specialized commissions, none of them was devoted 36 Wohlgemuth, L. & Sall, E. (2006). Introduction: Human Rights, Regionalism and the Dilemmas of Democracy. In: L. Wohlgemuth & E. Sall (eds), Africa, in Human Rights, Regionalism and the Dilemmas of Democracy in Africa. Senegal: CODESRIA. p. 4. 37 Eckert, A. (2011). African Nationalists and Human Rights, 1940s–1970s. In: S. L. Hoffmann (ed), Human Rights in the Twentieth Century. Cambridge UK: Cambridge University Press. p. 300. 38 Wohlgemuth, L. & Sall, E. (2006). Introduction: Human Rights, Regionalism and the Dilemmas of Democracy. In: L. Wohlgemuth & E. Sall (eds), Africa, in Human Rights, Regionalism and the Dilemmas of Democracy in Africa. Senegal: CODESRIA. p. 4. 39 Eckert, A. (2011). African Nationalists and Human Rights, 1940s–1970s. In: S. L. Hoffmann (ed), Human Rights in the Twentieth Century. Cambridge, UK: Cambridge University Press. p. 299. 40 Gawanas, B. (2009). The African Union: Concepts and Implementation Mechanisms Relating to Human Rights. In: A. Bösl & J. Diescho (eds), Human Rights in Africa: Legal Perspectives and Promotion. Windhoek, Namibia: Macmillan Education Namibia. pp. 135, 136.

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to the cause of human rights.41 Despite this, during its first period between 1963 and 1979, the OAU addressed two major human rights issues. First, it was heavily involved in the fight for self-determination of peoples still under colonial domination, and second, it had to tackle the problem of refugees arising from the numerous conflicts on the continent.42 During the OAU period, several human rights instruments were adopted, such as the African Charter on the Rights and Welfare of the Child and the Protocol establishing the African Court of Human and Peoples’ Rights. Even though the OAU Charter reiterated the principles contained in the UN Charter and referred to human rights several times, the Organization did not expressly uphold human rights norms. As a result of its position on non-interference, it was ineffective in the promotion and protection of human rights in a decolonized and free Africa.43 The notion of an African Human Rights Charter was further discussed under the auspices of the OAU, but member states were not willing to proclaim individual rights for African people.44 It took strong pressure from the international community, NGOs, and the African public within OAU member states to force the adoption of the Charter. Many observers stated that its drafting and adoption was a necessary political response partly to serious human rights violations that occurred in Uganda, Equatorial Guinea, and Bokassa’s Central African Empire and partly to positive international developments, such as the adoption of the Helsinki Final Act in 1975 and the human-rights-friendly policy of US President Jimmy

41 Eckert, A. (2011). African Nationalists and Human Rights, 1940s–1970s. In: S. L.

Hoffmann (ed), Human Rights in the Twentieth Century. Cambridge, UK: Cambridge University Press. p. 297. 42 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford Scholarship Online. p. 157. 43 Gawanas, B. (2009). The African Union: Concepts and Implementation Mechanisms Relating to Human Rights. In: A. Bösl & J. Diescho (eds), Human Rights in Africa: Legal Perspectives and Promotion. Windhoek, Namibia: Macmillan Education Namibia. p. 137. 44 Wohlgemuth, L. & Sall, E. (2006). Introduction: Human Rights, Regionalism and the Dilemmas of Democracy. In: L. Wohlgemuth & E. Sall (eds), Africa, in Human Rights, Regionalism and the Dilemmas of Democracy in Africa. Senegal: CODESRIA. p. 4.

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Carter.45 Another factor frequently mentioned in the literature is the Uganda–Tanzania War of 1979, which was the first occasion that an OAU member state invaded another member state to overthrow the incumbent government.46 Another traditional explanation for the creation of the African Charter is that it helped the OAU carry out its conflict-resolution role in relation to inter-African disputes.47 However, as scholar Kofi Oteng Kufuor very clearly explains, none of these factors was conducive to the adoption of the African Charter. The alternative factors, in his view, were “the quest for legitimacy by African governments; the rise of an increasingly active civil society within the OAU’s member states; and the strategic role that international organizations play”.48 In support of this position, a majority of the African governments were not able to deliver economic growth and development and, as a result, an increasing military challenge endangered their authority. By respecting civil and political rights, the adoption of the Charter represented a reinterpretation of the government’s legitimacy.49 Kufuor argues that NGOs profoundly influenced the adoption of the Charter, which can be seen as a kind of compromise between them and the governments. Despite serious human rights violations in most African states, NGOs were not passive and, although they were not as visible at a regional level, they played an important role in several states in the promotion and protection of human rights.50 Here, Kufuor uses Roland Vaubel’s argument. Vaubel was of the view that, when national governments are reluctant to adopt national reform programmes, they willingly shift responsibility to international institutions. In this manner, the adoption of a regional human rights instrument proved to be “a convenient escape mechanism for national elites threatened by challenges from the military and pressure from a nascent civil society”.51

45 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford Scholarship Online. p. 158. 46 Kufuor, K. O. (2010). The African Human Rights System: Origin and Evolution. Basingstoke, UK: Palgrave Macmillan. p. 17. 47 Ibid., p. 18. 48 Ibid., p. 18. 49 Ibid., p. 33. 50 Ibid., pp. 33–35. 51 Ibid., pp. 35–36.

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The African Charter on Human and Peoples’ Rights, or the so-called Banjul Charter, was adopted in 1981 and came into force on 21 October 1986. It was a drastic curtailment of the principle of non-interference.52 The adoption of the document also indicated that human rights became an issue of regional concern, providing the basis for the development of an African human rights system.53 In 1987, the African Commission on Human and Peoples’ Rights was established as the implementing institution of the rights enshrined in the Charter, but it only became fully functional in 1989.54 It is interesting to see how the Commission managed to expand the scope of its authority by gradually changing its original rules of procedures between 1988 and 1995. These changes enabled the body to receive communications from individuals regarding the alleged violations of the Charter. They also enlarged the scope of autonomy of the Commission’s Secretary by removing the ability to control the agenda from the OAU Secretary-General and giving it to the Commission Chairman and Secretary instead.55 Additionally, these changes gave the Commission the authority to independently establish working groups or committees and to issue press releases about its activity.56 As a consequence of these changes, the Commission had three main tools for promoting and protecting human rights: the examination of state reports, the passing of resolutions, and the consideration of communications from member states and individuals.57 One of the main objectives of the OAU is captured by Article 20(2) of the Charter which states that “colonized or oppressed peoples shall have the right to free themselves from the bonds of oppression by resorting to 52 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford Scholarship Online. p. 158. 53 Kufuor, K. O. (2010). The African Human Rights System: Origin and Evolution. Basingstoke, UK: Palgrave Macmillan. p. 16. 54 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK: Oxford Scholarship Online. p. 161. 55 Kufuor, K. O. (2010). The African Human Rights System: Origin and Evolution. Basingstoke, UK: Palgrave Macmillan. pp. 85–87. 56 Ibid., pp. 88–91. 57 Häusler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander,

M., Ho T. N., Nora, O., A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. p. 82. http://www.fp7-frame.eu/wp-content/ uploads/2016/11/Deliverable-3.4.pdf.

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any means recognized by the international community”.58 The Preamble of the Charter refers to traditional African values, which “should inspire and characterize their reflection on the concept of human and peoples’ rights”.59 References to African cultural values can also be found in substantial, operative articles, including Article 29(7), which enumerates that the individual shall have the duty to “preserve and strengthen positive African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the moral well-being of society”.60 Although there is no official interpretation by the Commission or the Court about the meaning of traditional values, the concept has been used by the political bodies of the African Union (AU) to challenge the universality of human rights, particularly in the context of LGBTI rights.61 One of the most important, distinctive features of the Charter is the “peoples” in its title, indicating that the drafters accepted group or collective rights. Another notable element of the Charter was the pivotal role that economic, social, and cultural rights were given, putting them on an equal footing with civil and political rights.62 It also contained the first official recognition of the right to development.63 However, there was no provision in the Charter for the enforceability of these rights. Many African leaders looked at civil and political rights as a Western construct

58 Gawanas, B. (2009). The African Union: Concepts and Implementation Mechanisms Relating to Human Rights. In: A. Bösl & J. Diescho (eds), Human Rights in Africa: Legal Perspectives and Promotion. Windhoek, Namibia: Macmillan Education Namibia. p. 137. 59 African Charter on Human and Peoples’ Rights, adopted 27 June 1981, Article 20, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 1520 U.N.T.S. 217 (entered into force 21 October 1986). 60 Ibid., Article 29(7). 61 Häusler, K. et al. (2016). European Commission, Human Rights, Democracy and

Rule of Law: Different Organisations, Different Conceptions?, p. 83. 62 Wohlgemuth, L. & Sall, E. (2006). Introduction: Human Rights, Regionalism and the Dilemmas of Democracy. In: L. Wohlgemuth & E. Sall (eds), Africa, in Human Rights, Regionalism and the Dilemmas of Democracy in Africa. Senegal: CODESRIA. p. 5. 63 Kufuor, K. O. (2010). The African Human Rights System: Origin and Evolution. Basingstoke, UK: Palgrave Macmillan. p. 9.

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which, if fully implemented, would slow down the economic development of their countries or, in extreme cases, undermine their social stability.64 One of the most frequently criticized parts of the Charter is the one imposing duties on the individuals towards the state and community, which runs against the classical Western concept of human rights. For example, Article 27(2) stipulates that rights can only be exercised “with due regard to the rights of others, collective security, morality and common interest”.65 It is not surprising that while the concept of peoples did not find its way to national constitutions, individual duties were incorporated into several African constitutions where they did not threaten the sovereignty of states; on the contrary, they could be used by oppressive regimes to undermine individual rights.66 The Charter has also been subject to criticism concerning its clawback clauses, which may restrict rights by stipulating that they are subject to the law and order of the given country. As scholar Frans Viljoen explains, this can mean that the level of protection provided by the Charter is equated to the level of domestic protection.67 However, it is worth noting that the progressive interpretation of such clauses by the African Commission on Human and Peoples’ Rights served to virtually nullify them.68 Overall, the post-colonial period could be described as a time of great disillusionment, when initial hopes for a successful transition from the colonial time to an independent and democratic Africa based on the rule of law were not fulfilled. It was a time when most African countries were characterized by repression, corruption, and serious human rights violations.69 African governments disregarded internationally recognized 64 Ibid., p. 11. 65 African Charter on Human and Peoples’ Rights, adopted 27 June 1981, Article

20, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 1520 U.N.T.S. 217 (entered into force 21 October 1986), n 57, Article 27(2). 66 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK: Oxford Scholarship Online. p. 240. 67 Wohlgemuth, L. & Sall, E. (2006). Introduction: Human Rights, Regionalism and the Dilemmas of Democracy. In: L. Wohlgemuth & E. Sall (eds), Africa, in Human Rights, Regionalism and the Dilemmas of Democracy in Africa. Senegal: CODESRIA. p. 5. 68 Kufuor, K. O. (2010). The African Human Rights System: Origin and Evolution. Basingstoke, UK: Palgrave Macmillan. p. 7. 69 El-Obaid, A. E. O. & Appiagyei-Atua, K. (1996). Human Rights in Africa—A New Perspective on Linking the Past to the Present. McGill Law Journal, 41:822.

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human rights standards and often justified their policies as being in the interest of collective good, referring to African values as distinct from Western ones. This approach implied two assumptions: first that the African notion of human rights is more collective than individualistic, and second, that “civil and political rights are not realized in full as long as social and economic rights remain rudimentary”.70 To understand the human rights developments of the period, it is important to acknowledge that for most of the African nationalists, human rights were an issue of minor interest compared to matters like nation-building or fighting poverty.71

5.3

Human Rights Development in Contemporary Africa

The end of the Cold War brought the wind of change to Africa during the 1990s. Multi-party elections took place in several states, and Namibia, the last country under colonial rule, gained its independence in 1990.72 The Algiers Declaration, adopted by the OAU in 1990, established the two main preconditions of economic development: one, a participatory political environment in which human rights are respected and in which the rule of law prevails, and two, the effective resolution of conflicts to promote and maintain peace and stability.73 The African Children’s Charter was adopted in 1990 to complement the UN CRC and the Maputo Protocol to the African Human Rights Charter on the Rights of Women, which was drafted in 1995, signed in 2003, and came into force in 2005.74 The Protocol is mostly in line with the provisions of CEDAW, with one notable difference

70 Eckert, A. (2011). African Nationalists and Human Rights, 1940s–1970s. In: S. L. Hoffmann (ed), Human Rights in the Twentieth Century. Cambridge UK: Cambridge University Press. pp. 284–285. 71 Ibid., p. 285. 72 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK: Oxford

Scholarship Online. p. 161. 73 Ibid., p. 161. 74 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of

Women in Africa, adopted by the Second Ordinary Session of the Assembly of the Union, held in Maputo, Mozambique (11 July 2003). https://www.refworld.org/docid/3f4b13 9d4.html.

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regarding polygamy. The Maputo Protocol recognizes monogamy as the preferred form of marriage without requiring states to abolish the practice of polygamy, which is considered by CEDAW as a violation of the prohibition of discrimination based on gender.75 Initial efforts to deepen the economic integration of the OAU began as early as 1977, but the treaty establishing the African Economic Community (AEC) was only adopted in 1991. While the primary objective of the AEC was “to promote economic, social and cultural development and integration of African economies”, it also recognized the promotion and protection of human rights as one of its guiding principles.76 In 1993, the OAU’s Cairo Declaration established the Mechanism for Conflict Prevention, Management, and Resolution, which certainly continued to erode the principle of non-interference and acknowledged the link between human rights and security.77 It was in 1994, on the initiative of NGOs with the support of the African Commission on Human and Peoples’ Rights, that negotiations were launched, aimed at drafting a Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights. The OAU Assembly cautiously supported the process in this year but finally took ownership of it when the Protocol was adopted in 1998.78 The Protocol’s purpose was to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights. The Protocol came into force on 25 January 2004 after ratification by 15 member states. Later, the AU Constitutive Act provided for an African Court of Justice as one of the main bodies of the organization and, although the relevant Protocol was adopted in 2003, the Court did not become operational. Rather, in 2008, the AU Assembly passed the Protocol on the Statute of the African Court of Justice and Human Rights, which merged the African Court of Justice with the African Court on Human and Peoples’ Rights, establishing the new African Court of Justice and Human Rights. This court has jurisdiction over all cases related to the interpretation of the Constitutive Act, 75 Häusler, K. et al. (2016). European Commission, Human Rights, Democracy and Rule of Law: Different Organisations, Different Conceptions?, p. 86. http://www.fp7frame.eu/wp-content/uploads/2016/11/Deliverable-3.4.pdf. 76 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford UK, Oxford Scholarship Online. p. 162. 77 Ibid., p. 163. 78 Ibid., p. 162.

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Union treaties, and all subsidiary legal instruments, the African Charter, and any question of international law.79 As of 18 June 2020, the Protocol had been signed by 33 of 55 members and ratified by 8 member states of the AU.80 The ratification of 15 members is needed for its entry into force. In 1999, the OAU adopted two important decisions: one on the right of political participation and one on unconstitutional changes of government. The second decision was followed by the Declaration on the Framework for OAU Response to Unconstitutional Changes of Government. According to this document, perpetrators are given six months to “restore constitutional order” in the country. In the absence of that, limited and targeted sanctions are possibly imposed by the OAU, including the suspension of participation in the political organs of the OAU.81 In July 2000, the OAU adopted the Constitutive Act of the African Union, which entered into force on 26 May 2001. In 2002, when the Durban Summit launched the AU, it brought about a new era by making human rights an explicit part of its mandate, as embodied in its Constitutive Act. The AU was a merger of the OAU (with its mainly political ambitions) and the AEC (with an economic focus in its work).82 The adoption of the Constitutive Act represented a significant departure from the philosophy of the OAU in several aspects. It moved from non-interference, although the principle was retained in the document, to non-indifference, including the right of the Union to intervene in the affairs of any member state; the explicit recognition of human rights; and

79 Protocol on the Statute of the African Court of Justice and Human Rights, adopted by the Eleventh Ordinary Session of the Assembly, held in Sharm El Sheikh, Egypt (1 July 2008). https://au.int/sites/default/files/treaties/36396-treaty-0035_-_protocol_on_the_ statute_of_the_african_court_of_justice_and_human_rights_e.pdf. 80 List of countries that have signed, ratified/acceded to the Protocol on the Statute of the African Court of Justice and Human Rights, AU (2 June 2019). https://au.int/sites/default/files/treaties/36396-sl-protocol_on_the_sta tute_of_the_african_court_of_justice_and_human_rights.pdf. 81 Häusler, K. et al. (2016). European Commission, Human Rights, Democracy and Rule of Law: Different Organisations, Different Conceptions?, p. 163. http://www. fp7-frame.eu/wp-content/uploads/2016/11/Deliverable-3.4.pdf [accessed 21 November 2019]. 82 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK: Oxford Scholarship Online. p. 164.

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the promotion of social, economic, and cultural development, which was an approach based on human-centred development and gender equality.83 It is indicative of the Union’s new focus that 6 of the 16 guiding principles of the AU referring to human rights either explicitly or implicitly. The most far-reaching provision of the Constitutive Act is 4 (h), which gives the Union the right to intervene in a member state if the Assembly decides that war crimes, genocide, or crimes against humanity have occurred.84 In this respect, the AU was the first organization to codify the notion of the responsibility to protect (R2P), even before it was approved by the UN. However, researchers usually highlight three aspects in which the AU could have more effectively protected and promoted human rights in the Constitutive Act. As mentioned earlier, the principle of non-interference, Article 4(g), was retained. Secondly, the observance of human rights is not among the preconditions for membership in the Union. Finally, the Constitutive Act is unclear regarding the use of sanctions in cases of state non-conformity.85 Another important development was the New Partnership for Africa’s Development (NEPAD), which places human rights at the centre of development.86 The integration of NEPAD into the AU and the existing human rights regime is underway, but its African Peer Review Mechanism (APRM), established in 2003, already represents a significant step towards a better human rights protection system on the continent, even preceding the similar UN UPR mechanism.87 The African Commission, the African Human Rights Court, and the African Children’s Rights Committee are the main human rights 83 Gawanas, B. (2009). The African Union: Concepts and Implementation Mechanisms Relating to Human Rights. In: A. Bösl & J. Diescho (eds), Human Rights in Africa: Legal Perspectives and Promotion. Windhoek, Namibia: Macmillan Education Namibia. p. 138. 84 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK: Oxford Scholarship Online. p. 165. 85 Ibid. 86 Gawanas, B. (2009). The African Union: Concepts and Implementation Mechanisms

Relating to Human Rights. In: A. Bösl & J. Diescho (eds), Human Rights in Africa: Legal Perspectives and Promotion. Windhoek, Namibia: Macmillan Education Namibia. p. 138. 87 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK: Oxford Scholarship Online. pp. 167–168.

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bodies of the AU. The AU has done its utmost to mainstream human rights through its organs, activities, and programmes; however, during the first decade of its existence, this effort was not very successful and led to the isolation of the Commission from the AU.88 The African Charter on Democracy, Elections and Governance (African Democracy Charter) provides that “State Parties shall respect ethnic, cultural and religious diversity, which contributes to strengthening democracy and citizen participation”.89 One of the main objectives of the Charter is to “promote the holding of regular free and fair elections to institutionalize legitimate authority of representative government as well as democratic change of governments”.90 It has a very progressive paragraph related to civil society, stating that state parties shall “create conducive conditions for civil society organizations to exist and operate within the law”.91 In 2010, the AU established the African Governance Architecture (AGA) and its platforms to support member states in promoting democratic and participatory governance.92 One of the five clusters of the AGA is the Human Rights and Transitional Justice Cluster. The Human Rights Strategy of Africa, implemented in 2012 as part of the AGA, seeks to unite the various national, regional, and continental stakeholders and to move the AU towards a more rigorous and homogeneous embrace of its various human rights platforms.93 The UN Office of the Special Adviser on Africa

88 Ibid., p. 169. 89 Häusler, K. et al. (2016). European Commission, Human Rights, Democracy and

Rule of Law: Different Organisations, Different Conceptions?, pp. 87–88. 90 African Charter on Democracy, Elections and Governance, Article 2(3), adopted by the Eighth Ordinary Session of the Assembly, held in Addis Ababa, Ethiopia (30 January 2007). https://www.refworld.org/docid/493fe2332.html. 91 African Charter on Democracy, Elections and Governance, Article 12(3), adopted by the Eighth Ordinary Session of the Assembly, held in Addis Ababa, Ethiopia (30 January 2007). https://www.refworld.org/docid/493fe2332.html. 92 Dr. Khabele Matlosa, Director for Political Affairs of the AUC, Opening Statement at the Fifty-sixth Ordinary Session of the African Commission on Human and Peoples’ Rights (21 April 2015) (on file with author). 93 Department of Political Affairs, African Union Commission. (2011). Human Rights Strategy for Africa (14 December 2011). https://au.int/sites/default/files/documents/ 30179-doc-hrsa-final-table_en3.pdf.

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(OSAA) and the OHCHR in New York declared 2016 the “African Year of Human Rights” with special focus on the “Rights of Women”.94 Finally, it is worth mentioning a few promising court decisions addressing harmful traditional practices on the continent. In 2008, the Constitutional Court of South Africa decided in favour of a daughter inheriting her father’s chief position, which was against the Valoyi people’s tradition, but the court noted that tradition is not static and that it should adhere to human rights standards laid out in a rights-based constitution.95 Kenyan courts ruled in 2005 and 2008 that, despite customary laws of particular ethnic groups favouring sons for inheritance purposes, daughters must have an equal right to inherit a father’s property. The courts noted that where discrimination is at stake, human rights must prevail.96 In a 2012 Botswana case, the High Court ruled in favour of four sisters versus a nephew who claimed ownership of the family home. The court ruled that the customary law contravened constitutional guarantees of equality for men and women, and it also noted that “culture changes with time”.97 Despite these positive changes, there are several concerns about the African human rights system, namely the lack of necessary resources and political backing to make a real difference, organizational and financial challenges of the AU, the inefficiency of the system due to its huge number of institutions, toothless implementation and enforcement mechanisms, differing approaches concerning the domestication of ratified international instruments, and the failure of countries to comply with reporting requirements of ratified instruments.

94 African Union. (2016). Press Release: African Year of Human Rights with Particular Focus on the Rights of Women (27 January 2016). https://au.int/en/pressreleases/ 19615/2016-african-year-human-rights-particular-focus-rights-women. 95 Reid, G. (2013). The Trouble with Tradition: When “Values” Trample Over Rights. Human Rights Watch World Report 2013. https://www.hrw.org/world-report/2013/ country-chapters/africa. 96 Ibid. 97 Ibid.

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5.4 Implementation of International Human Rights Standards Regarding Africa and by Africa in a Multilateral Context 5.4.1

International Criminal Court

In 2016, with Burundi’s withdrawal from the ICC imminent, South Africa announced plans to withdraw as well.98 In the case of Burundi, the decision may have been motivated by an announcement of a preliminary examination by the Court concerning alleged crimes against humanity in the country. The South Africans considered the Court’s charge that the government had an obligation to turn over foreign diplomats to be a violation of their domestic laws guaranteeing diplomatic immunity.99 As the South African Minister of Justice put it, the ICC is producing a “scenario of forced regime change by one country on another”.100 The decisions of Burundi and South Africa are particularly challenging because Africa is the largest regional group of countries within the ICC’s Assembly of States with 33 state parties.101 It is not a secret, however, that since its inception in 2005, the Court has indicted 39 people, all of

98 Gambia also threatened to leave the ICC in the same year, but the new government reversed that decision. 99 South Africa justified its decision to withdraw from the ICC by reference to the clash it had with the Court in June 2015 when it failed to comply with a request by the ICC to arrest Sudanese President Omar al-Bashir while he was in South Africa for an AU summit. South Africa’s Reasons for Leaving the ICC Don’t Quite Add Up, The Conversation (25 October 2016). http://theconversation.com/south-africas-reasons-forleaving-the-icc-dont-quite-add-up-67481. 100 Feldman, N. (2016). International Criminal Court Is Too Focused on Africa. Bloomberg Opinion (25 October 2016). https://www.bloomberg.com/view/articles/ 2016-10-25/international-criminal-court-is-too-focused-on-africa. 101 Sibiya, V. E. & Nel, M. (2017). Withdrawal from the International Criminal Court: Does Africa Have an Alternative? ACCORD (12 September 2017). http://www.accord. org.za/ajcr-issues/withdrawal-international-criminal-court/#.

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them African.102 This has prompted scholars and politicians to question why the ICC seems to be so focused on Africa.103 Of course, a simple solution for this political problem would be to prosecute some non-Africans.104 Looking at the ICC’s current work, there are ongoing preliminary investigations relating to Bolivia, Columbia, Honduras, Iraq, Palestine, the Philippines, Republic of Korea, the UK, Ukraine, and Venezuela, and which is even more important, among the situations under investigation, we can also find Georgia, Bangladesh/Myanmar, and Afghanistan outside of Africa.105 At issue here is the basic requirement for an international legal entity not just to be balanced but also to appear so. Right now, it is obvious that there is no confidence in the ICC in Africa, but in light of the current trends regarding the preliminary investigations and situations under investigation it may change in the future. An alternative solution to address ongoing impunity on the continent could be to wait for the establishment of an African Criminal Court. An easier and much faster method could be to instrumentalize universal jurisdiction in various African supreme courts, changing their statutes and giving them the authority to try cases of genocide and other mass atrocities committed on the continent. African leaders at the 2014 African Summit in Equatorial Guinea decided to follow the first approach, adopting the so-called Malabo Protocol, which includes in its annex an amendment to the Statute of the African Court of Justice and Human Rights. According to the amended Statute, the Court will have three sections, namely the General Affairs section, the Human and Peoples’ Rights section, and the International Criminal Law section. As of May 2019 (the latest version available), 15 of 55 member states had signed the Protocol. (So far there was no

102 Feldman, N. (2016). International Criminal Court Is Too Focused on Africa. Bloomberg Opinion (25 October 2016). p. 1. https://www.bloomberg.com/view/art icles/2016-10-25/international-criminal-court-is-too-focused-on-africa. 103 Sibiya, V. E. & Nel, M. (2017). Withdrawal from the International Criminal Court: Does Africa Have an Alternative? ACCORD (12 September 2017). http://www.accord. org.za/ajcr-issues/withdrawal-international-criminal-court/#. 104 Ibid. 105 International Criminal Court website. https://www.icc-cpi.int/Pages/Main.aspx.

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ratification by any state.)106 Critics of the idea of an African Criminal Court consider this an attempt to undermine the ICC. Supporters, on the other hand, acknowledge the new court’s potential to contribute to the development of international criminal law by complementing the ICC. The regionalization of international criminal law may result in extending the regional courts’ justiciable catalogue of crimes beyond the four crimes recognized under international law (namely genocide, crimes against humanity, war crimes, and aggression).107 Accordingly, the Malabo Protocol contains crimes with special relevance to the continent, especially the crimes of unconstitutional change of government, piracy, terrorism, mercenaries, trafficking in drugs, trafficking in persons, corruption, money laundering, and environmental crimes.108 During the Twenty-Eighth Ordinary Session of the AU Assembly held on 30–31 January 2017, the AU adopted a decision to support a strategy for a collective withdrawal from the ICC.109 However, the strategy is more like a recommendation and does not have a binding effect on the member states. Several states, like Nigeria, Senegal, and Tanzania, have already made clear their reservations regarding the document.110

106 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), adopted 17 June 2014, Article 16. p. 11. https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-jus tice-and-human-rights. 107 Werle, G. & Vorbaum, M. (2017). The Search for Alternatives: The “African Criminal Court”. ISPI Commentary 2 (28 March 2017). http://www.ispionline.it/sites/def ault/files/pubblicazioni/commentary_werle_wormbaum_28_03.2017.pdf. 108 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol), adopted 17 June 2014, n 106, p. 18. https://au.int/en/treaties/protocol-amendments-protocol-statute-african-court-jus tice-and-human-rights. 109 Draft Decision by the AU Assembly on the International Criminal Court, Twentyeighth Ordinary Session, Doc. EX.CL/1006(XXX) (30–31 January 2017). https://www. hrw.org/sites/default/files/supporting_resources/assembly_au_draft_dec._1_-_19_xxviii_ e.pdf. 110 Oneko, S. (2017). Will AU Members Really Withdraw from the ICC? DW.com (1 February 2017). http://www.dw.com/en/will-au-members-really-withdraw-from-the-icc/ a-37374040.

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5.4.2

Other Judicial Organs

International Criminal Tribunal for Rwanda The UN Security Council established the International Criminal Tribunal for Rwanda (ICTR) on 8 November 1994 to prosecute and punish individuals responsible for genocide and other serious violations of international humanitarian law committed in Rwanda between 1 January and 31 December 1994. The Tribunal indicted 93 individuals, resulting in 80 completed proceedings and 8 fugitive cases transferred to other jurisdictions.111 The ICTR stopped its work on 31 December 2015. The Court had an important role in the development of international criminal law, as it was the first Court to find someone guilty of the crime of genocide (Jean Kambanda) and it was also the first judicial organ that applied the crime of rape in an international context (Jean-Paul Akayesu).112 Concerning the way the international community and Rwanda addressed the horrible events in Rwanda, the Gacaca Courts should be mentioned.113 The word gacaca refers to “a bed of soft green grass” on which a community and leaders known for their integrity and wisdom would gather to discuss and resolve conflicts. They were traditional councils and tribunals made up of elders to resolve conflict and administrate justice. The Gacaca Courts played a significant role in finding out the truth of what happened during the genocide against the Tutsi. They allowed communities across Rwanda to meet face to face and talk about the events of 1994. In this way, they laid the foundation for peace and reconciliation and were considered the most extensive post-conflict justice system in human history. The activities of the Gacaca Courts produced an enormous archive of an estimated 1,200,000 case files.114

111 UNICTR. (2019). Key Figures of ICTR Cases, United Nations Int’l Residual Mechanism for Criminal Tribunals (February 2019). https://unictr.irmct.org/en/cases/ key-figures-cases. 112 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK:

Oxford Scholarship Online. p. 69. 113 Participedia. (2017). Gacaca Courts: Community Justice in Rwanda (6 June 2017). https://participedia.net/case/83. 114 Haskell, L. (2011). Justice Compromised: The Legacy of Rwanda’s CommunityBased Gacaca Courts (2011). https://www.hrw.org/report/2011/05/31/justice-compro mised/legacy-rwandas-community-based-gacaca-courts.

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United Nations General Assembly

In 1945, four African states were present at the establishment of the UN: Egypt, Ethiopia, Liberia, and the Union of South Africa, with its system of apartheid. During the decolonization process, UN membership was the first and most visible sign of a country’s independence. At this time, the UN was the organization that helped establish former colonial states lacking moral and political legitimacy.115 As at June 2021, there are 54 African member states among the 193 members of the United Nations. Prior to the 1960s, African states did not play a significant role in the work of the UNGA. Rather, they remained sceptical of the UN, as they considered it to be an ally of colonial powers who intended to exclude their colonies from the human rights achievements of the world organization, as they were, in their view, “at the lowest stage of development”.116 During the negotiations of UNGA Resolution 843 of 1954 on the Status of Women in Private Law, there were non-Western states on the front line to eradicate customs and cultural practices considered harmful to women.117 In the 1950s and at the beginning of the 1960s, it was typical for former colonial states to represent the pro-human-rights position in the UNGA, as most democratically elected post-colonial African governments enjoyed the support of their people. They considered human rights questions to be one of the most important elements of their foreign policy. The rise of cultural relativism in the Third World was associated with the rise of dictatorships in the 1960s and 1970s.118 The adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples by the UNGA on 14 December 1960 was a crucial moment for African states, as it was the first occasion that their right to self-determination had been acknowledged during the colonial period. The UNGA was a deliberate choice for the location of the vote in order to avoid a vote by the Security Council, where veto power would have been available to any of the three permanent members with

115 Ibid., p. 45. 116 Burke, R. (2010). Decolonization and the Evolution of International Human Rights.

Philadelphia, PA: University of Pennsylvania Press. p. 114. 117 Ibid., p. 114. 118 Ibid., pp. 143–144.

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remaining colonial legal ties or associations.119 Similarly, in 2000, it was the UNGA that adopted the Millennium Declaration and established the Millennium Development Goals, which were vital for Africa in its fight against poverty, hunger, malaria and other diseases, and infant child mortality.120

5.5

United Nations Human Rights System 5.5.1

United Nations Treaty Bodies

Looking at the ratification of the eight UN human rights instruments upon the report prepared by the Universal Rights Group,121 it is quite impressive that the average number of treaties ratified by African members122 of the Council is 7.1, which is just a bit lower than in case of GRULAC (7.5) and the EEG (7.2), the same as WEOG, and higher than the Asia-Pacific Group (6.5). The real problem starts when we look at the performance concerning their reporting obligations. There is only one state on the whole continent (not just among the HRC members) that is fully up to date with its treaty body reporting. That state, Rwanda, belongs to an exclusive club of 33 states within the same category in the world as was highlighted by the High Commissioner for Human Rights in his statement during the thirty-fifth session of the Council.123 Among the 11 sub-Saharan African HRC members, there are countries with reports overdue by 27 years (Congo), 23 years (Côte d’Ivoire), and 19 years (Burundi), and there are a few states that did not submit any reports on 119 Audiovisual Library of International Law. (n.d.). http://legal.un.org/avl/ha/dicc/ dicc.html. 120 Viljoen, F. (2012). International Human Rights Law in Africa. Oxford, UK:

Oxford Scholarship Online. pp. 48–49. 121 Universal Rights Group, The Human Rights Council. (2017). Leadership, Resolve and Cooperation at the UN’s Main Human Rights Body 38–39. https://www.universalrights.org/urg-policy-reports/human-rights-council-2017/. 122 These 11 sub-Saharan African states were members of the HRC in 2017: Botswana, Burundi, Congo, Côte d’Ivoire, Ethiopia, Ghana, Kenya, Nigeria, Rwanda, South Africa, and Togo. Egypt and Tunisia represent North Africa in the HRC. 123 Denial of access and lack of cooperation with UN bodies will not diminish scrutiny of a state’s human rights record. Zeid Ra’Ad Al Hussein, U.N. High Commissioner for Human Rights, Opening Statement at the Thirty-third Session of the Human Rights Council (13 September 2016). https://reliefweb.int/report/world/denial-accessand-lack-cooperation-un-bodies-will-not-diminish-scrutiny-states-human.

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schedule (e.g. Nigeria and Botswana).124 This phenomenon may be the result of the poor technical capacities of the given countries that make it extremely difficult to meet all the reporting obligations, but in certain cases, it can be traced back to the lack of political will, which indicates that cooperation with the UN is not a high priority. 5.5.2

United Nations Human Rights Council

Universal Periodic Review During the period of the UN Commission on Human Rights, African states frequently referred to the fact that, at the time of its establishment, most of them were still under colonial rule, and therefore, they did not have a say about its modalities.125 During the consultations regarding the establishment of the UN UPR, many states mentioned the example of the APRM as a possible model.126 Not surprisingly, African states were in favour of a state-driven process, limiting the role of civil society and the OHCHR.127 Given the large number of inter-state and internal military conflicts on the continent, African states were not supportive of the idea that international humanitarian law would be among the areas forming the normative basis of the review.128 They wanted to base the review exclusively on human rights norms, like the USA.129 On the one hand, African states were mostly in favour of a simplified process with minimal reporting obligations; on the other hand, they were afraid of ascribing too much influence to international and national NGOs. Ultimately, they 124 Ibid., pp. 43–44. 125 Abebe, A. M. (2009). Of Shaming and Bargaining: African States and the UPR of

the United Nations Human Rights Council. Human Rights Law Review, 9(1):1–35. 126 Ibid., p. 4. 127 Ibid., p. 8. 128 UN Human Rights Council, Basic Facts about the UPR. http://www.ohchr.org/

EN/HRBodies/UPR/Pages/BasicFacts.aspx. The UPR will assess the extent to which States respect their human rights obligations set out in: (1) the UN Charter; (2) the Universal Declaration of Human Rights; (3) human rights instruments to which the State is party (human rights treaties ratified by the State concerned); (4) voluntary pledges and commitments made by the State (e.g. national human rights policies and/or programs implemented); and (5) applicable international humanitarian law. 129 Abebe, A. M. (2009). Of Shaming and Bargaining: African States and the UPR of the United Nations Human Rights Council. Human Rights Law Review, 9(1):6.

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accepted the formula providing equal status for contributions coming from UN treaty bodies, the national government, and other national stakeholders.130 Researcher Edward R. McMahon investigated the premise that, unlike other HRC functions or the work of the UNGA, the UN UPR process is not regionally driven, and as a result, states are making decisions separate from their regional affiliations, thus disrupting the typical North–South dichotomy.131 The results of his study, however, demonstrate visible regional patterns. African and Asia-Pacific states are making much smaller numbers of recommendations than representatives of other regional groups, a fact that McMahon attributes either to the avoidance of tough decisions or to cultural particularities that show a strong preference for consensual rather than confrontational approaches.132 It is important to see how the different regions implement the recommendations they received and accepted during the UN UPR, which is the only truly global human rights mechanism we have now. The highest percentage of recommendations that triggered action during the first four-year cycle of the UN UPR was 63% in the case of the EEG, followed by 53% of WEOG, 50% of the African Group, 49% of GRULAC, and 33% of the Asia-Pacific Group. Former UN Special Rapporteur on Minorities Rita Izsak conducted interesting research on minority-related recommendations during the UN UPR. Such recommendations were mostly focused on Europe, where 43 states received recommendations, followed by 28 African states.133 It is interesting to note that the African region received only 74 recommendations in total. Most were received by Egypt (6), Namibia (5), Nigeria (8), Sudan (5), and Tanzania (6). Just to compare, the EEG received 368, Asia–Pacific received 169, and WEOG received 230. Only the much smaller GRULAC received fewer with 54 recommendations. This trend

130 Ibid., pp. 10–11. 131 McMahon, E. R. (2010). Herding Cats and Sheep: Assessing State and Regional

Behavior in the Universal Periodic Review Mechanism of the United Nations Human Rights Council. https://www.upr-info.org/sites/default/files/general-document/pdf/mcmahon_herding_cats_and_sheeps_july_2010.pdf. 132 Ibid. 133 Izsák, R. (n.d.). U.N. Special Rapporteur on Minority Issues, Minority Issues in

the First Cycle of the Universal Periodic Review (UPR). http://www.ohchr.org/Docume nts/Issues/IEMinorities/MinoritiesIssues1stcycleUPRProcess.pdf.

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tracks the fact that African states are still not willing to propose sensitive recommendations to the countries of their own region. Gayatri Patel researched the recommendations concerning women’s rights during the first two cycles of the UN UPR and one of the main findings of her paper was that challenges to the normative universalism of the UN UPR were made on two grounds: based on national sovereignty and based on a strict cultural relativist approach.134 For example, concerning the recommendations on polygamy, Burkina Faso, Tanzania, Ghana, and Libya used religious and cultural norms as a justification of this practice. Regarding female genital mutilation (FGM), Mali and Liberia mentioned that this practice was deeply embedded in their culture and that therefore the reforms suggested by the observer states could not be accepted.135 The question of polygamy has been raised in the case of 18 states during the first two cycles of the UN UPR. A total of 22 recommendations were formulated on that topic, 10 of which were adopted and 12 noted by the states under review.136 It is interesting to note that even though 14 of the 18 states under review were African, there was not one recommendation from the region.137 This indicates the importance of regional solidarity on a highly sensitive issue, which is closely related to traditional practices and cultures deeply rooted in many African societies.

5.6 Human Rights Policy of Sub-Saharan African States During the Regular Sessions of the United Nations Human Rights Council in 2017 5.6.1

Thirty-Fourth Session of the United Nation Human Rights Council (27 February–24 March 2017)

The human rights situation of sub-Saharan Africa was remarkably present in the annual report of the High Commissioner for Human Rights. Zeid Ra’ad Al Hussein expressed his concerns about the serious human rights 134 Patel, G. (2015). How ‘Universal’ Is the United Nations’ Universal Periodic Review Process? An Examination from a Cultural Relativist Perspective. PhD Thesis, University of Leicester. p. 257. https://lra.le.ac.uk/bitstream/2381/37501/1/2016PATELGPhD.pdf. 135 Ibid., p. 257. 136 Ibid., p. 467. 137 Ibid., p. 150.

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violations in Burundi, the DCR, Mali, and South Sudan, though he welcomed the improvements in the Gambia and was pleased to acknowledge the accession of Togo to the Second Optional Protocol of the ICCPR.138 Country Situations The Council adopted a strong resolution on South Sudan without a vote, which extended and strengthened the mandate of the UN Commission on Human Rights on South Sudan to “determine and report the facts” and make all information and evidence about alleged human rights violations available to all transitional mechanisms, including the Hybrid Court for South Sudan, should one be established in cooperation with the AU.139 The report by the Commission affirmed that there was deliberate targeting of civilian populations by the government based on victims’ ethnic identity. The HRC adopted a resolution without a vote on the Technical Assistance and Capacity-Building for Mali in the Field of Human Rights, which welcomed the close cooperation between the Independent Expert, the implementation of the Peace Agreement, and legal reform, and it also renewed the Mandate of the Independent Expert.140 During the interactive dialogue with the Commission of Inquiry on Burundi, the Chair of the Commission underlined that they had decided to focus their investigation on those human rights violations which may amount to crimes against humanity. The Commission regretted that Burundi was not willing to cooperate with them and that there was almost complete impunity for the serious human rights violations in the country. It is also interesting to analyse the voting behaviour of the 11 subSaharan members of the Council regarding country situations. There were five resolutions on the human rights situation in the Middle East

138 Al Hussein, Z. R. (2017). UN High Commissioner for Human Rights. Annual Report and Oral Update to the 34th Session of the Human Rights Council (8 March 2017). http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?New sID=21316&LangID=E. 139 UNHRC. (2017). Report of the Human Rights Council on its Thirty-Fourth Session, 27 February to 24 March 2017, UN GAOR, Hum. Rts. Comm., 34th Sess., UN Doc. A/HRC/34/2 (14 June 2018). https://www.ohchr.org/EN/HRBodies/HRC/ RegularSessions/Session34/Pages/34RegularSession.aspx. 140 Ibid.

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(concerning Human rights in the occupied Syrian Golan, Human rights violations in the OPT , Accountability in the OPT , Self-determination, and Israeli settlements ). The sub-Saharan countries typically ally with their North African Muslim neighbours and support these resolutions condemning Israel. While this was the case with most of the sub-Saharan members, there was one remarkable exception, namely Togo, which was the only member of the HRC (other than the USA) voting against all five resolutions. However, this is not surprising in light of the close cooperation between the Togolese government and Israel in the last few years. Israeli Prime Minister Benjamin Netanyahu met Togolese President Faure Gnassingbé twice in 2017. It was very indicative of their relationship that the Togolese President wrote the following in the guestbook during his visit: “I dream of Israel’s return to Africa and Africa’s return to Israel”.141 The Togolese Minister of Foreign Affairs Robert Dussey’s opinion is also very telling in this regard: “The African continent is booming and Israel holds the solution for African development”.142 Besides establishing strong political and economic ties with Israel, the Togolese government, despite the questions about the legitimacy of the President and the serious human rights violations, still receives a significant amount of development aid from the USA (over $13 million in 2016).143 It was also notable that, regarding resolutions involving the Middle East, Botswana abstained in the case of one, Congo in the case of two, and Rwanda in the case of four, indicating a small shift in the Middle East policy of sub-Saharan African states. The fact that the members of the African Group did not condemn Israel in a bloc was not in line with their historical heritage established in the early post-colonial period when the sub-Saharan countries used to unanimously support all the initiatives condemning Israel in solidarity with their North African partners. Regarding the voting on the Human rights situation in Iran, there were significant discrepancies among the positions of the different subSaharan HRC members. While Botswana and Rwanda supported the US-led resolution, Burundi and Kenya voted against it and Congo, Côte d’Ivoire, Ethiopia, Nigeria, Ghana, and Togo abstained. The 141 Hooper, S. (2017). Togo: How a Repressive West African State Built Close Ties with Israel. Middle East Eye (22 December 2017). http://www.middleeasteye.net/news/ togo-how-repressive-west-african-state-built-close-ties-israel-1894664807. 142 Ibid. 143 Ibid.

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situation was quite similar to the resolution on Syria, where Botswana, Côte d’Ivoire, Ghana, Rwanda, and Togo supported the resolution while Burundi voted against it, and the others abstained. The subSaharan HRC members were even divided regarding the resolution on the Cooperation with Georgia, where Botswana, Ghana, and Togo supported the resolution submitted by the country concerned, and Burundi, in line with its firm policy opposing all country resolutions, voted against it. The other sub-Saharan African states abstained. The African Group submitted two country-specific resolutions during the session, one for Mali and one for Libya, both focusing on technical assistance and capacity-building to improve human rights. Both were adopted without a vote. Thematic Issues The African Group submitted its three customary resolutions on racism, namely on the Mandate of the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action; the Mandate of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance; and the Elaboration of International Complementary Standards to the ICERD. It submitted a new one on the establishment of a Forum for People of African Descent. The latter, together with the resolution on the Special Rapporteur’s mandate, was adopted without a vote while the other two were voted on. From a legal standpoint, the most interesting vote was on the resolution of the ICERD, which resulted in a three-way split within the EU. The majority position within the EU regarding this issue was that the international community should focus on the implementation of the ICERD rather than on developing complementary standards, as there is no evidence that the Convention is not addressing all contemporary forms of racism. It did not exclude, however, the option of non-legally binding instruments like declarations. A fifth resolution submitted by the African Group was on the Negative Impact of Non-Repatriation of Funds of Illicit Origin on the Enjoyment of Human Rights and the Importance of Improving International Cooperation. The USA voted against this resolution, and 16 other countries abstained. The West’s major point of contention was that the resolution focused on non-repatriation of illicit funds to countries of origin rather than focusing on the obligation of states to prevent this illegal activity.

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Furthermore, they were not convinced about the link between the repatriation of illicit funds and the right to development. They did not consider that problem a human rights issue.144 It is worth mentioning that there was a joint statement of the Group of Friends on R2P, which is an informal grouping of those UN member states in New York who are supportive of the notion of R2P, led by Rwanda and the Netherlands. The statement highlighted the preventive aspect of the R2P. The notion of R2P has several strong supporters in Africa and, other than the Friends of R2P in New York, there is also a Geneva-based R2P Core Group consisting of three African states (Rwanda, Nigeria, and Ghana) as well as Australia, Uruguay, and Hungary. These countries are willing to argue, even with their African partners, on the real meaning of the concept, as they do not share the negative sentiments of many African and Asian countries concerning the whole notion of R2P, which some fear can be used for military intervention against them, as was the case in Libya. 5.6.2

Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)

During the presentation of his annual report, the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, focused on the cooperation with UN human rights mechanisms. He highlighted Burundi as a country which, despite being an HRC member since 2015, was not able to improve its human rights record. In fact, serious human rights violations continued to occur in the country and Burundi had suspended all forms of cooperation with the OHCHR. Tanzania was mentioned by the High Commissioner for refusing to allow any visits by UN Special Rapporteurs in the last five years. Zimbabwe was highlighted as an even more serious case, never allowing a single UN human rights mission in the country. As a result, it has 14 pending requests from different mandate holders of the HRC. From the African continent, Eritrea was listed among those countries that did not let the Special Rapporteur for Eritrea visit the country. It was also quite striking that, according to the High Commissioner, 74 144 UNHRC. (2017). Report of the Human Rights Council on Its Thirty-Fourth Session, 27 February to 24 March 2017, UN GAOR, Hum. Rts. Comm., 34th Session, UN Doc. A/HRC/34/2 (14 June 2018). p. 49. https://www.ohchr.org/EN/HRB odies/HRC/RegularSessions/Session34/Pages/34RegularSession.aspx.

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states have reports to UN treaty bodies that are a decade or more overdue. On the positive side, Rwanda is one of only 33 member states to be fully up to date on reporting, and Mozambique was mentioned among those states where access for the OHCHR has been improved.145 Country Situations The Council adopted a resolution on the Human rights situation in Eritrea without a vote. The resolution was submitted by Djibouti and Somalia, and it reflected the recommendations of the Special Rapporteur and encouraged the establishment of an OHCHR presence in the country. One of the most chaotic procedures surrounded the adoption of the resolution on the DRC. The essence of the problem was that, despite all the efforts during the review of the HRC in 2011, the Council still lacks a sufficient toolkit to address the situations of individual countries. The African Group emphasized that the Council should engage constructively with the DRC by providing technical assistance and capacity-building. The EU, on the other hand, highlighted the need for a proper balance between the international support and the DRC’s obligation to address the serious human rights violations in certain parts of the country.146 This disagreement led to the tabling of two resolutions, one by the EU and another by the AU. After lengthy and last-minute negotiations, the EU agreed to merge the two resolutions. The result was a resolution that looked more like a technical assistance resolution but included an accountability mechanism, which is more typical for resolutions of human rights situations that require the Council’s attention. Finally, the resolution on the Technical Assistance to the DRC and Accountability Concerning the Events in the Kasai Regions led by the African Group was adopted by the Council without a vote.147 During the interactive dialogue with the Commission of Inquiry on Burundi, the Chair of the Commission regretted that there was no cooperation from the side of the government and that, unfortunately, the

145 UNHRC. (2017). Report of the Human Rights Council on Its Thirty-Fifth Session, 6–23 June 2017, UN GAOR, Hum. Rts. Comm., 35th Session, UN Doc. A/HRC/35/2. p. 80. https://www.ohchr.org/Documents/HRBodies/UPR/A_HRC_35_2_EN.docx. 146 Ibid., p. 80. 147 Ibid.

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human rights crises had not seemed to improve over the previous two years.148 Like in the case of the thirty-fourth session of the Council, the voting behaviour of the 11 sub-Saharan African members of the Council regarding country situations was far from unified. On the resolution on Syria, Burundi voted negatively, as usual, while Botswana, Côte d’Ivoire, Ghana, Rwanda, and Togo supported the text, and Congo, Ethiopia, Kenya, Nigeria, and South Africa abstained. African states were seemingly more cautious regarding the two East European country situations. Regarding the EU initiative on Belarus , only Ghana supported the resolution, Burundi voted no, and all the others abstained. Given the hostilities between Ukraine and Russia and thus the more politically charged nature of the resolution on Ukraine, Côte d’Ivoire and Rwanda joined Ghana in support of it and the rest of the African Group voted as they had for the Belarus resolution. Thematic Issues Because, during this session, most of the controversial thematic resolutions were strongly influenced by North–South political differences, the African members of the Council voted unanimously on all of them (international solidarity, right to peace, international cooperation, protection of the family, and contribution of development). The fact that there were increasing numbers of African members joining Core Groups submitting non-African initiated resolutions indicates the opening up of certain African states’ human rights policies. Some African states were even willing to co-sponsor other countries’ resolutions, indicating their strong political support for the cause included in the given initiatives. For example, Sierra Leone, Ethiopia, and Zambia are members of a bigger Core Group submitting a resolution on Child, Early and Forced Marriage, including in Humanitarian Settings.149 Ethiopia took part in the Core Group submitting the resolution on the 148 Universal Rights Group. (2017). Report on the 35th Session of the Human Rights Council. p. 5. https://www.universal-rights.org/urg-human-rights-council-reports/rep ort-35th-session-human-rights-council/. 149 Universal Rights Group, The Human Rights Council in 2017. p. 41. https://www. universal-rights.org/lac/urg-policy-reports/human-rights-council-2017/.

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Elimination of Discrimination Against Persons Affected by Leprosy and Their Family Members. Finally, we should mention the participation of Botswana in the Hungary-led Core Group running the resolution on the Independence of judges and lawyers.150 5.6.3

Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)

In his regular update, the High Commissioner for Human Rights focused on the lack of consistency between many states’ internal and external human rights policies, a problem he claimed undermines the credibility of the HRC. As in previous sessions, sub-Saharan African states were often referred to in his statement. The High Commissioner expressed concerns over the human rights situation in the CAR, South Sudan, and Burundi. On the other hand, he noted positively the steps taken in Sudan, Congo, and Ethiopia concerning relations with his Office, as well as improved national legislation and the rule of law.151 Country Situations During the interactive debate regarding the Commission of Inquiry on Burundi, the Chairman of the Commission stated that the human rights violations and abuses of the country beginning in April 2015 were still happening and constituted crimes against humanity.152 The Council voted to renew the mandate of the Commission of Inquiry on Burundi for one year, a resolution submitted by the EU.153 Although there were neither comments by Burundi nor by the African Group on the EU resolution, the African Group started parallel negotiations with Burundi and, as a result, Tunisia (on behalf of the African Group) submitted

150 Ibid., p. 41. 151 UNHRC. (2017). Universal Rights Group, Report on the Thirty-Sixth Session of

the Human Rights Council 3 (2 October 2017). https://www.universal-rights.org/urghuman-rights-council-reports/report-36th-session-human-rights-council/. 152 UNHRC. (2017). Universal Rights Group, Report on the Thirty-sixth Session of the Human Rights Council 3 (2 October 2017). p. 7. https://www.universal-rights.org/ urg-human-rights-council-reports/report-36th-session-human-rights-council/. 153 It was interesting to note that among the sub-Saharan African states only Burundi, Congo, Ghana, and South Africa rejected the EU-led resolution, while Côte d’Ivoire, Ethiopia, Kenya, Nigeria, and Togo abstained, and Botswana supported the text.

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a competing resolution on Technical assistance and capacity-building to Burundi.154 The resolution of the African Group was largely based on the EU draft, but it replaced the renewal of the Commission of Inquiry with a request to send an expert team to reinforce the OHCHR in Bujumbura by making suggestions for technical assistance and by collecting and preserving information. However, the African Group did not agree to grant this new mechanism the same investigative power and independence as the Commission of Inquiry had under the original resolution. It is significant to note that Botswana and Rwanda did not join the African Group in submitting the draft and, when the EU asked for a vote regarding the text, which was adopted 23Y:14N:9A, Botswana abstained, and Rwanda did not participate in the voting.155 As a result of the adoption of two competing resolutions on Burundi in 2018, there were a total of six debates on Burundi in the HRC during this session. The HRC adopted a strong resolution on the Technical Assistance and Capacity-Building in the Field of Human Rights in the CAR without a vote.156 The resolution was submitted by the African Group and the CAR, and the President of the CAR, speaking to the HRC on 27 September 2017, confirmed his country’s commitment to fight impunity and to progress towards justice. The African Group presented a resolution on the Technical Assistance and Capacity-Building to Improve Human Rights in Sudan, which renewed the Mandate of the Independent Expert for one year. The resolution, which was adopted without a vote, focused on the positive developments in the country, and it was mainly the result of bilateral negotiations between the USA and Sudan with the aim, which was finally achieved, of preventing the transfer of the role of the Independent Expert to an OHCHR.157

154 UNHRC. (2017). Report of the Human Rights Council on Its Thirty-Sixth Session, 11–29 September 2017, UN GAOR, Hum. Rts. Comm., 36th Session, UN Doc. A/HRC/36/2 (14 June 2018). https://www.ohchr.org/EN/HRBodies/HRC/Regula rSessions/Session36/Pages/36RegularSession.aspx. 155 Ibid., pp. 14–15. 156 UNHRC. (2017). Report of the Human Rights Council on Its Thirty-Sixth

Session, 11–29 September 2017, UN GAOR, Hum. Rts. Comm., 36th Session, UN Doc. A/HRC/36/2 (14 June 2018). p. 161. https://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session36/Pages/36RegularSession.aspx. 157 Ibid., p. 167.

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Similar to the previous sessions of the Council, the voting behaviour of the members of the African Group was not uniform when it came to the human rights situation in Syria. While Burundi voted against the resolution, as usual, five African states (namely Botswana, Côte d’Ivoire, Ghana, Togo, and Rwanda) supported it. The other sub-Sharan African states (Congo, Ethiopia, Kenya, Nigeria, and South Africa) abstained. Thematic Issues The African Group submitted four thematic resolutions during the session. One of the resolutions, adopted without a vote, renewed the Mandate of the Working Group of Experts on People of African Descent. Another one established a new Intergovernmental Working Group to elaborate the content of an international regulatory framework on the regulation, monitoring, and oversight of the activities of private military and security companies. The latter was also adopted without a vote as the EU, despite its concerns, finally joined the consensus. South Africa expressed its gratitude for this gesture exercised by the EU. The most controversial initiative by the AU was entitled From Rhetoric to Reality: A Global Call for Concrete Action against Racism, Racial Discrimination, Xenophobia, and Related Intolerance. The major difference between the positions of the AU and the EU on this resolution was that the African states were not willing to delete a reference to the negotiations’ commencement of an additional protocol on criminalizing acts of racist and xenophobic nature. The EU eventually asked for a vote and the African resolution was adopted by a vote of 32 to 5, with 10 countries abstaining. The delicate nature of the issue was demonstrated by the fact that even the EU states were divided, and while Germany and the UK rejected the resolution, the other EU Council members abstained. The fourth initiative brought forward by the AU was on the renewal of the Mandate of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes. This resolution was adopted without a vote although the EU was not supportive of a reference to the Declaration on the Right to Development in the text.158 158 UNHRC. (2017). Report of the Human Rights Council on Its Thirty-Sixth Session, 11–29 September 2017, UN GAOR, Hum. Rts. Comm., 36th Session, UN Doc. A/HRC/36/2 (14 June 2018). p. 37. https://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session36/Pages/36RegularSession.aspx.

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Concerning most of the sensitive thematic resolutions, the African members of the Council voted in a coherent way. However, it is interesting to note that, regarding the Cuban resolution on the Composition of the Staff of the OHCHR, Togo abstained as they did on the resolution on Human Rights and Unilateral Coercive Measures. It was not the first time that the position of Togo was completely different from the rest of the group, as it had happened concerning the Middle East resolutions earlier that year. The African states were strongly divided during the vote on the resolution on Reprisals, which was critical for the support of those who want to cooperate with the United Nations. While Botswana, Congo, Côte d’Ivoire, Ghana, and Rwanda supported this initiative, the other African states abstained. The African states were even more divided in the case of the Death penalty resolution, where Congo, Ghana, Rwanda, South Africa, Togo, and Côte d’Ivoire supported the initiative; Botswana, Burundi, and Ethiopia rejected it; and Kenya and Nigeria abstained. As observed during the previous sessions, several African states were involved in different Core Groups running initiatives that were not traditionally in the mainstream of African human rights priorities or that divided African states. A classic example of this is the participation of Ghana in the Hungary-led Core Group running the resolution on Cooperation with the United Nations, Its representatives and Mechanisms in the Field of Human Rights 159 (the so-called Reprisals resolution), which became one of the most controversial initiatives in the Council and was seriously attacked by several developing countries and Russia. Another example is the resolution on the Death penalty submitted by a Core Group containing Benin. It was Egypt who asked for a vote on this initiative, which strongly divided the African states. In addition to these controversial resolutions, Senegal was a member of the Core Group

159 UNHRC. (2017). Report of the Human Rights Council on Its Thirty-Sixth Session, 11–29 September 2017, UN GAOR, Hum. Rts. Comm., 36th Session, UN Doc. A/HRC/36/2 (14 June 2018). pp. 54–63. https://www.ohchr.org/EN/HRBodies/ HRC/RegularSessions/Session36/Pages/36RegularSession.aspx.

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running the initiative on the World Programme for Human Rights Education, and Côte d’Ivoire was part of the Core Group behind the initiative on the Special Rapporteur on the Promotion of Truth, Justice, Reparation, and Guarantees of Non-Recurrence.160

5.7

Conclusions

The social and political concerns of Africans are shaped mainly by the legacy of colonialism and the memory of post-colonial era instability. Together, these concerns are also shaped by the severe socio-economic challenges the continent faces, including huge international debt, the highest number of refugees in the world, and widespread starvation. In this context, many Africans still consider human rights as a Westerninspired imperialist notion.161 The fact that Western powers supported African dictators in the past raised suspicions about the intent of the West. The inability of the international community to stop the genocide in Rwanda further discredited human rights in the region. Cultural nationalists argue against the applicability of a human rights doctrine that is based on the notion of the individual, a notion which does not exist in Africa, where the worth of the individual can be found only in the context of the community. Therefore, Africans traditionally prioritize duties and obligations over rights. Another common understanding of why human rights are inapplicable in Africa is the well-known argument that human rights in the West developed over a long period of struggle for democracy and that Africa has yet to go through this stage. Despite the resistance to human rights, the emerging African human rights system clearly indicates the political will of more and more African countries to establish a sound foundation guaranteeing the fundamental freedoms and rights of the people on the continent. However, besides the lack of the necessary financial preconditions for a sufficient regional protection system, the lack of political will frequently result in the poor

160 Universal Rights Group, The Human Rights Council in 2017. p. 40. https://www. universal-rights.org/lac/urg-policy-reports/human-rights-council-2017/. 161 Eckert, A. (2011). African Nationalists and Human Rights, 1940s–1970s. In: S. L. Hoffmann (ed), Human Rights in the Twentieth Century. Cambridge, UK: Cambridge University Press. pp. 284–285.

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implementation of the highly sophisticated African human rights instruments. The public frustration caused by this deficiency means that civil society often turns towards UN mechanisms as a real solution. The African regional human rights institutions and bodies have an enhanced cooperation with the UN. One of the best-known example of this cooperation is the adoption of the Addis Ababa roadmap by the special rapporteurs of the United Nations and the African Commission on Human and People’s Rights.162 In the long run, the fact that the UN was highly regarded as a resource for many African states aiming at changes in their human rights situation resulted in the gradual opening up of several sub-Saharan African states, such as Rwanda, Botswana, Ghana, and Togo, that started to be involved in broader initiatives within the HRC, representing global, rather than exclusively African interests. AU states generally support resolutions on the human rights violations of other countries—mainly outside of Africa—but seem reluctant to support certain thematic issues that are important to almost all the states supporting country situations. The voting behaviour of the African Group in Geneva is becoming less and less uniform, and they are voting in a block only on a few issues, like the right to development, which still represents the classical North–South division. In conclusion, the development of the protection and promotion of human rights in sub-Saharan Africa makes the region more and more suitable for accepting and implementing universal human rights standards. The reference to local cultural traditions in most of the cases serves the political aims of the elite, who try to avoid international scrutiny of the serious human rights violations committed in order to keep power and influence.

162 Regional Arrangements for the promotion and protection of human rights. A/HRC/39/58. Report of the Human Rights Council Advisory Committee. p. 11.

CHAPTER 6

Human Rights Diplomacy of Asia-Pacific States in the United Nations Human Rights Council in Light of the “Asian Values Debate” and Regional Human Rights Initiatives

When the (good) way prevails in the state, speak boldly and act boldly. When the state has lost the way, act boldly and speak softly. Confucius Chinese philosopher1

6.1

Introduction

Given the diversity and the size of Asia, it would be too ambitious to address the human rights diplomacy of the states of the whole continent within the framework of a single chapter. The human rights diplomacy of Islamic states is covered in Chapter 7; Asian Muslim states will be only mentioned here when necessary to understand important regional tendencies and phenomena. In a UN context, I will discuss the AsiaPacific Regional Group, one of the five regional groups of the world organization, comprising 55 members.2 1 Nylan, M. (ed) (2014). The Analects (International Student Edition). New York, NY, USA: W. W. Norton & Co. 2 Members of the Asia-Pacific Group of the United Nations:

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6_6

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This chapter explains the cultural, historical, and religious roots of Asia, without which it is impossible to understand the present human rights priorities of those states. In this context, special attention is given to Confucianism, Buddhism, and Hinduism and their relation to human rights. To gain a clear picture of how the present Asian approach towards human rights was shaped by different forces, the Asian values debate is discussed in detail. Before turning to the behaviour of Asian states at UN forums, it is essential to see the most recent regional and sub-regional initiatives in Asia, as it is the only region which does not have a regional human rights organization, so the UN is the only forum in which Asian states can substantively address human rights issues. The chapter presents key Asian human rights priorities, as articulated at the most important multilateral forums, including the ICC and the UNGA. Finally, it introduces the initiatives and the voting patterns of Asian states during the three sessions of the HRC in 2017.

• • • • • • • • • • • • • • • • • • •

Afghanistan Bahrain Bangladesh Bhutan Brunei Darussalam Cambodia China Cyprus Democratic People’s Republic of Korea Fiji India Indonesia Iran (Islamic Republic of) Iraq Japan Jordan Kazakhstan Kiribati Kuwait

• Kyrgyzstan • Lao People’s Republic • Lebanon • Malaysia • Maldives • Marshall Islands • Micronesia (Federated States of) • Mongolia • Myanmar • Nauru • Nepal • Oman • Pakistan • Palau • Papua New Guinea • Philippines • Qatar • Republic of Korea

• • • • • • • • • • • • • • • • • •

Samoa Saudi Arabia Singapore Solomon Islands Sri Lanka Syrian Arab Republic Tajikistan Thailand Timor-Leste Tonga Turkeya Turkmenistan Tuvalu United Arab Emirates Uzbekistan Vanuatu Vietnam Yemen

a Turkey is also member of WEOG group http://www.un.org/depts/DGACM/Region alGroups.shtml

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Cultural, Historical, and Religious Roots of Human Rights in Asia 6.2.1

Historical Context

It is very challenging and almost impossible to speak about Asia as a whole, given the cultural and religious diversity of the world’s largest continent which contains 60% of the world’s population. It is very indicative that there was no term for Asia in any of the Asian languages until the modern Western powers appeared on the continent.3 However, Colin Mackerras notes a few common features among the peoples of Asia. Most of their societies (except Mongolia) are based on agriculture with rice as their main staple. These societies are hierarchical and the interests of the individuals are subordinated to those of the community. The family is the most important unit, and in general, young people defer to their elders and females to males.4 However, from other aspects, Asia is much more diverse than other regions. Compared to Europe where Christianity became the dominant religion on the whole continent, except for a few territories under the occupation of the Ottoman Empire, and the Iberian Peninsula, in Asia Buddhism, Hinduism, Islam, Confucianism, Shinto, and Daoism compete with Christianity for more influence. Unlike Europe, where the Latin alphabet is dominant with only a few countries using Greek or Cyrillic alternatives, in Asia, the countries use several types of characters. Their languages belong to different language families and their borders change from time to time. Countries like Indonesia received its legitimacy quite late as a result of the nationalist movement. It is interesting to see how the different cultures influenced each other in the region. There is a recognizable impact of the Sino-Tibetan family on the languages of Southeast Asia, but there is influence moving from the opposite direction as well, like the rice cultivation which spread to China from Southeast Asia. At the same time, a gradual “Indianization” could be detected in Southeast Asia, in the form of Buddhism, Hinduism, and writing systems. It was China which developed the first “recognizable” state in the region, followed much later by Korea, Vietnam, and Japan.

3 Kissinger, H. (2014). World Order. London, UK: Penguin Press. p. 172. 4 Mackerras, C. (2007). The Historical Context. In: K. Palmer Kaup (ed), Under-

standing Contemporary Asia Pacific. Boulder, CO: Lynne Rienner Publishers. pp. 33–38.

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As a result, and due to its size and strength, it is not surprising that China had a significant influence on the development of its neighbouring states. The Age of Commerce (1450–1680) brought radical economic and social changes not only to Europe but to Asia, too. The arrival of European powers, the Portuguese, followed by the Spanish, Dutch, French, British, and Russians resulted in the integration of the region into the global trade system. This increase in commerce led to the appearance of cosmopolitan commercial cities in Southeast Asia, with increased connections among them.5 An important side effect of these developments was the so-called religious revolution, i.e. more than half of the population turned to Islam or Christianity. The Dutch were the only ones to not have missionary intentions in the region, and not surprisingly, they were the only ones who could stay in Japan after 1614 when the new Japanese regime expelled all missionaries and banned Christianity. China was less involved in trade than the countries of Southeast Asia, but a large number of Chinese people spread over the region, which had significant implications in the long run. The second half of the nineteenth century, which was marked by the move towards capitalism and dominated more by industry than by commerce, resulted in the increase of political control by colonial powers over Asian countries, putting almost all of them into a colonial status.6 The way the different European powers handled their colonies varied greatly. The Dutch first followed the so-called cultivation system aimed at cultivating exportable products with a high profit. In the early twentieth century, this was replaced by the “ethical policy”, which took into consideration the interests of the local population to a greater extent, and paid more attention to education and social welfare. The Spanish-American War of 1898 was significant in that the USA, following its victory, entered the region as a new colonial power. With the Anglo-Dutch treaty of 1824, Singapore became the main hub of British colonialism in Southeast Asia, also containing Penang, Melaka, and Labuan. Later on, the British managed to extend their control over the Malay Peninsula by concluding agreements with the local sultans. This led to the establishment of the Federated Malay States in 1895/1896. The French began fighting for

5 Mackerras, C. (2007). The Historical Context. In: K. Palmer Kaup (ed), Understanding Contemporary Asia Pacific. Boulder, CO: Lynne Rienner Publishers. pp. 56–58. 6 Ibid., pp. 60–62.

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India with Britain, but as they lost they turned their attention further east, in particular to Vietnam, a move not opposed by Britain. The French managed to colonize Vietnam, Cambodia, and Laos and in 1887 established the Union of Indochina. Siam was the only country in the region that did not become a colony, as it had been squeezed between the French and the British colonies and neither of the two powers was prepared to let the other take it over. It became a suitable buffer zone separating the two spheres of interest. Besides Siam, only China (and Japan) never became a real colony but was forced to accept unfavourable treaties, which resulted in the opening of “treaty ports” to foreign trade, often providing extraterritoriality for foreigners. These measures reached a boiling point, and in 1900, the Boxers tried to expel the foreign forces from Beijing. As a response, the eight supreme powers of that day (Britain, France, Germany, Italy, Austria-Hungary, Russia, the USA, and Japan) invaded Beijing and forced the most humiliating treaty yet on China.7 Because these powers did not continue their cooperation post-treaty, China did not become a colony and the Qing dynasty managed to make some reforms in the country. The USA forced Japan to give up its isolation policy and establish trade and diplomatic relations in 1853. The Japanese modern nation-state became extremely successful in the coming years as it won the first Sino-Japanese war in 1894/1895, gained influence in Korea, and then defeated Russia in the war of 1904/1905. By taking over Korea in 1910, it became the first Asian colonial power, losing its colonies only in 1945. At the beginning of the twentieth century, the most important force shaping the history of the region was nationalism, partly as a reflection to the principle of national self-determination, promoted by US President Woodrow Wilson. In most countries of the region, this national awareness developed in the 1920s and 1930s. The success of nationalism was also because the European colonial powers became much weaker as a result of World War I.8 These nationalist movements were open to Marxist-Leninist influences by way of explaining their most burning

7 Ibid., pp. 63–64. 8 Ibid., p. 72.

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social problems and also offering a feasible strategy for action.9 Communist movements were actively involved in cooperation with the Allies to fight against the Japanese occupation and gained influence and political prestige in the course of this war. The third factor, which later contributed to the popularity of communist parties in the region, was the repressive nature of the regimes leading the newly independent states. Finally, they were under the strong influence of China and to a smaller extent of the Soviet Union, which supported the communist movements in the region. In 1948, almost all communist parties of Southeast Asia switched to armed conflict by leaving the broad united fronts they had formerly participated in.10 Communist revolts occurred in India, Burma, Malaya, Indonesia, and the Philippines. They were not carried out on direct Soviet instructions but rather were influenced by the changed international communist line (the notion of the two irreconcilable political camps, promoted by the newly formed Information Bureau of the Communist and Workers’ Parties [Cominform]). This was attractive for the communist movements who felt that they were losing ground in local politics. Officially, most researchers consider 1949, the year of the communist change in China, as the beginning of the Cold War in Asia, which was left in a power vacuum as a result of the Japanese defeat. In the following year, the continent was the place of the first “hot war” of the Cold War period in Korea. The political situation became even more complicated by the late 1960s as a result of the break between the Union of Soviet Socialist Republics (USSR) and China as Beijing appeared as a third power in the region in a bipolar Cold War period. By the end of the Vietnam War, both superpowers recognized China as an influential force in the region, although true tripolarity was never achieved. At the same time, India, one of the most influential representatives of the Non-Aligned Movement (NAM), tried to manoeuvre between the major blocs and avoid any involvement in conflicts not in its national interests.11 Japan immediately reacted to the new political and economic trends in the post-World War 9 Wu, J. (2018). How Did Communism Spread in Asia? https://www.quora.com/ How-did-communism-spread-in-Asia [accessed 11 October 2018]. 10 Hack, K. & Wade, G. (2009). The Origins of the Southeast Asian Cold War. Journal of Southeast Asian Studies, 40(3):441, 443. 11 Kissinger, H. (2014). World Order. London, UK: Penguin Press. p. 202.

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II period and became a modern state, adapting to the Western democratic principles and under the US security umbrella developed the second (by now the third) largest economy of the world. 6.2.2

Religions

It is impossible to understand the human rights policy of a state and to a certain extent of a region without examining its religious roots, which form one of the most important sources of human rights values, besides philosophical and cultural traditions. In this respect, five major religions shaped Asian civilization, three of which are addressed in this chapter: Confucianism, Buddhism, and Hinduism. Christianity and Islam are discussed in Chapters 3 and 7 dealing with the human rights policy of the European Union and Muslim countries, respectively. In this research, the important question about the relationship between Confucianism, Buddhism, Hinduism, and human rights is whether those components and perspectives essential for the development of the modern notion of human rights, which started its global journey from Europe, were present in these religions. Looking at the most important teachings of major world religions, we can find the same ethical, moral principles, which form the basis of the modern concept of human rights. This fact was demonstrated by the adoption of the “Declaration Toward a Global Ethic”12 in 1993 by the Parliament of World’s Religions. Confucianism The most widespread religion of the Asia Pacific is Confucianism, in which the role of Confucius was more of a transmitter than of a creator.13 There are two major schools regarding the compatibility of Confucianism and human rights. Some are convinced that Confucianism as “an ethic of benevolence and harmonious social relationship” is incompatible with

12 Parliament of Religions. (1993). The Text of the Declaration Toward a Global Ethic adopted by the Parliament of World’s Religions in Chicago (4 September 1993). https://parliamentofreligions.org/pwr_resources/_includes/FCKcon tent/File/TowardsAGlobalEthic.pdf. 13 Mackerras, C. (2007). The Historical Context. In: K. Palmer Kaup (ed), Understanding Contemporary Asia Pacific. Boulder, CO: Lynne Rienner Publishers. p. 52.

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rights based on individualism.14 Within this incompatibilist group, others think that Confucianism is a religion representing authoritarian morality and politics which should be replaced by the “political philosophy of human rights and democracy”. On the other hand, the compatibilists are of the view that Confucianism can accept the notion of human rights, although probably not the whole expanded liberal concept.15 According to Louis Henkin, the values reflected in the UDHR are not alien to Confucianism, which encourages civility and supports humane concern and mutual respect in its teachings. However, not surprisingly, the Confucian values which were born in rural, pre-urban societies, long before the concept of modern human rights had been developed, are significantly different in their articulation, in their origin, and in their realization from those of modern human rights. These values derived from the ordinations of Heaven, while human rights, despite their inherent nature, come from the will of the people and are endorsed by the people through the adoption of a Constitution.16 Their realization is also different as Confucianism focuses on the actor (the ruler, the official) while human rights address the rights holders, the victims. Unlike Confucianism, human rights are not concerned about the character of those who are in power, but about their behaviour. Human rights norms represent principles of behaviour and not of morality. Confucian values were articulated in general terms, while human rights norms are defined specifically.17 Confucius supported that those who were injured or harmed could seek justice and compensation through litigation. He wanted to make human rights a fall-back position, an instrumental role; he did not consider them as an abstract ideal that expresses human dignity.18 According to Joseph C. W. Chan, Confucius would prefer a short list of

14 Chan, J. C. W. (2011). Confucianism and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. p. 87. 15 Ibid. 16 Henkin, L. (1999). Epilogue: Confucianism, Human Rights, and “Cultural Rela-

tivism. In: Wm. Theodore de Bary & T. Weiming (eds), Confucianism and Human Rights. New York, NY: Columbia University Press. p. 310. 17 Ibid., p. 311. 18 Chan, J. C. W. (2011). Confucianism and Human Rights. In: J. Witte & M.

C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. n 14. pp. 95–96.

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human rights, mainly containing first-generation rights. As the protection of economic and social rights is more difficult through litigation, they can be realized through the policy of the state.19 This does not mean, however, that there is no emphasis in Confucianism on the responsibility of the government to ensure the material needs of the people. Confucianism focuses on the present world; it gives much higher priority to real, daily life than to any potential afterlife.20 As a consequence, many consider it more like a philosophy than a religion. It puts great emphasis on morality and governance and also on rites and ceremonials as a manifestation of power. It is important to note that from the five relationships which form the basis for the smooth functioning of society (in order of importance: ruler–subject, father–son, husband–wife, older brother–younger brother, and friend–friend), three of them relate to the family. This list reflects a male-dominated society in which women are not even present in two of its main relationships.21 It is also clear that Confucianism puts the ruler and the father at the centre of absolute power in the family and in politics, and makes respect for traditions one of its main characteristics.22 Although most Asian authoritarian leaders promoting the notion of Asian values refer to Confucianism, Confucius did not recommend blind loyalty to the state. When he was asked how to serve a prince, he replied: “Tell him the truth even if it offends him”.23 As concluded by Amartya Sen, the monolithic authoritarian image of Confucius is at least questionable although he cannot be considered as a “great champion of freedom and political dissent”.24 There is no incompatibility between Confucianism and the notion of human rights, although the latter are not considered to safeguard human

19 Ibid., pp. 97–98. 20 Mackerras, C. (2007). The Historical Context. In: K. Palmer Kaup (ed), Under-

standing Contemporary Asia Pacific. Boulder, CO: Lynne Rienner Publishers. p. 52. 21 Ibid. 22 Chan, J. C. W. (2011). Confucianism and Human Rights. In: J. Witte & M.

C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. n 14. p. 88. 23 Sen, A. (1997). Human Rights and Asian Values. Paper presented at the Sixteenth Morgenthau Memorial Lecture on Ethics and Foreign Policy, New York City (25 May 1997). https://www.carnegiecouncil.org/publications/archive/morgenthau/254. 24 Ibid.

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dignity but rather to solve conflicts when mediation had already failed.25 They put more emphasis on civil and political rights as they can be more easily implemented legally than economic and social rights. Buddhism There are several parallels between modern notions like democracy, human rights, and good governance and the ancient teachings of Buddha. As a natural consequence, many Buddhist activists use human rights language in the course of their fight for change in their countries. The most remarkable examples can be found in Burma/Myanmar, Tibet, and Cambodia.26 Human rights education is part of the training of Buddhist monks and the Dalai Lama made it clear that reference to cultural diversity cannot override the universality of human rights inherent in human nature. Although in Sanskrit or Pali, no word conveys the idea of “right” as understood as a subjective entitlement,27 there is the preciousness of human birth within the round of births, as it is only the human birth that can attain enlightenment.28 Dharma in Buddhism covers what is right and just in all contexts, from all perspectives.29 According to the Five Lay Precepts of the basic Buddhist moral code, Buddhists should not kill, steal, lie, commit sexual misconduct, and ingest intoxicants. There is an obvious connection between them and the moral content of basic human rights norms. Buddha was also against the caste system as in his view a person’s place in the society should be determined by his acts and not by the class assigned to him at birth. Besides human equality, nonviolence and human freedom also have an important place in Buddhism. 25 Chan, J. C. W. (2011). Confucianism and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. p. 99. 26 King, S. B. (2011). Buddhism and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. pp. 103–106. 27 Keown, D. (n.d.) Are There human rights in Buddhism? UrbanDharma.org. https://

www.urbandharma.org/udharma/humanrights.html. 28 King, S. B. (2011). Buddhism and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. p. 107. 29 Bagde, U. (2014). Essential Elements of Human Rights in Buddhism. Journal of Law and Conflict Resolution, 6(2):32–33.

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One of the most important Buddhist justifications for human rights is “the freedom to pursue Buddhahood or self-perfection” which is our inherent right as human beings, based on our identity as human beings.30 In Buddhism, man is in the centre of the religion (Dhamma), and if something has no connection to the welfare of man, it has no place in the world of Buddha.31 Buddhism considers the concept of human rights as a legal extension of human nature and the mutual respect and concern of all people comes from human nature. Consequently, human nature is the ultimate source of human rights. Buddhism was the first religion to step up against slavery, as Buddhist monks were forbidden to keep slaves. The main challenge for the Buddhist human rights doctrine is to define the rights holder. Based on its doctrine of anatman (no self), there is no real person to own a human right. However, Buddhism functions well without a substantial self in many other fields. In undertaking the five precepts, a functional person is needed rather than a metaphysical entity.32 Buddhist intellectuals are also concerned about individualism that results from the promotion of human rights, something that is detrimental to the fundamental values of Buddhism. The Buddhist answer is that human rights protect both individuals and groups, and the protection of the rights of an individual also affects the rights of the group. Although Buddhism privileges humanity, humans cannot be rigidly separated from other non-human beings; human rights do not conflict with the rights of non-human beings. Engaged Buddhists also argue in favour of the environment as they do not see any reason to sacrifice the welfare of other species to promote human rights. The third issue after individualism and the privileging of humanity is the relationship between responsibilities and rights. Buddhist ethics are based on responsibilities, not on rights. But the answer to this concern lies in early societies when the notion of responsibilities was sufficient to guide human behaviour; there was no need for corresponding rights. This is not possible in a modern state, however,

30 King, S. B. (2011). Buddhism and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. p. 109. 31 Bagde, U. (2014). Essential Elements of Human Rights in Buddhism. Journal of Law and Conflict Resolution, 6(2):33–35. 32 King, S. B. (2011). Buddhism and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. pp. 110–112.

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where responsibilities cannot be guaranteed by the immediate community and the corresponding rights are protected by states and international organizations. According to Jack Donnelly: “Contemporary Asian individuals, families, and societies face the same threats from modern markets and states that Western societies do”; therefore, they need the same protection of human rights. Consequently, Buddhism determines duties explicitly, but it contains rights implicitly as well. According to Uttamkumars Bagde, “a husband has a duty to support his wife, while wives have the right to be maintained”.33 One of the most serious challenges for Buddhists concerning human rights is the question of adversity. Adversity is part of the human rights system and can be considered an instrument of power by their enactment. The human rights system contains not just the social willingness to honour human rights, but also to enforce them through specific mechanisms. This contradicts the consensual method which prevails in Asia, where there is no tradition of adversity. Tibetans, however, consider that nations or individuals demand the respect of their rights and they are turning to the international community for support. In their view, as the human rights violations committed by China against Tibet will start a very negative karmic chain of events, it is not adversarial, but good for everyone to stop these abuses by non-violent means.34 The teachings of Buddhism, therefore, are not in contradiction with modern human rights principles, despite several concerns regarding individualism and adversity. Hinduism Hinduism is one of the oldest living religions not associated with any definite personality. As noted by Sir Charles Eliot, “Hinduism has not been made but has grown. It is a jungle, not a building”.35 Hinduism, like most religions, does not have a word for “rights”; it is more focused on

33 Bagde, U. (2014). Essential Elements of Human Rights in Buddhism. Journal of Law and Conflict Resolution, 6(2):36. 34 King, S. B. (2011). Buddhism and Human Rights. In: J. Witte & M. C. Green (eds), Religion and Human Rights: An Introduction. Oxford, UK: Oxford University Press. pp. 114–115. 35 Yadav, P. K. (2014). Religion and Human Rights: A Philosophical Study. Thesis submitted to University of Lucknow. p. 194. http://shodhganga.inflibnet.ac.in/handle/ 10603/44616.

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the concept of human duties than on human rights.36 The closest word is adhikara, which covers the idea of “just claim”, and is used in the context where someone performs a duty.37 The social structure in traditional India rested on social duties (dharma) and not on human rights. However, as mentioned in relation to Buddhism, duties and rights are interrelated. In the notion of dharma, we can find an embryonic form of rights.38 Dharma can be translated to mean rights when we are using it in the context of a crisis (apad-dharma). For example, it is the king’s duty to protect and assist his people in the case of a crisis.39 There is also the right (adhikara) to rebel against the king if he does not fulfil this duty. In Hinduism, individuals are seen within the cosmos and their duty is to maintain it. Human rights are therefore not inherent but achieved through the fulfilment of duties, which are performed by the individual as a form of devotion to God, without thinking of the importance of the rights that will be received.40 For Hindus, Article 29(1) of the UDHR41 takes priority over the other articles as Hinduism puts greater recognition on the rights that others have in relation to us than the rights we have in relation to them. The caste system is among the first things to be addressed in the relationship between Hinduism and human rights. The word “caste” comes from the Portuguese casta, which means pure or clean.42 The concept of castes cannot be found in the Veda or other scriptures. They only speak 36 Ibid., p. 206. 37 Patel, D. (2005). The Religious Foundations of Human Rights: A Perspective from

the Judeo-Christian Tradition and Hinduism, University of Nottingham. p. 6. https:// www.nottingham.ac.uk/hrlc/documents/publications/hrlcommentary2005/religiousfou ndationshumanrights.pdf. 38 Hidayatullah, A. S. (n.d.). Human Rights in Hinduism. Palembang, Indonesia: Raden Fatah State Islamic University. p. 2. https://media.neliti.com/media/publications/98244EN-human-rights-in-hinduism.pdf. 39 Yadav, P. K. (2014). Religion and Human Rights: A Philosophical Study. Thesis submitted to University of Lucknow. pp. 208–210. http://shodhganga.inflibnet.ac.in/ handle/10603/44616 [accessed 11 October 2018]. 40 Hidayatullah, A. S. (n.d.). Human Rights in Hinduism. Palembang, Indonesia: Raden Fatah State Islamic University. p. 14. https://media.neliti.com/media/publicati ons/98244-EN-human-rights-in-hinduism.pdf. 41 Article 29(1) of the UDHR: “Everyone has duties to the community in which alone the free and full development of his personality is possible”. 42 Ibid., pp. 6–7.

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about varna, a way of dividing labour and managing society according to the talents of the individuals, where the place of a certain person cannot be inherited, but rather obtained through work and creativity. Consequently, “in the early stage varna system was based on karma and guna; afterwards, when it converted into caste system it is against human rights”.43 Scholars support the recognition of human rights by Hinduism by referring to the doctrine of ahisma that teaches how a human being should respect all creatures, from plants to humankind.44

6.3

Asian Values Debate

In the 1990s, one of the most serious challenges against the universality of human rights came from Asia in the form of the pronouncement of Asian values, questioning the applicability of universal human rights norms on the largest and most populous continent of the world. This countermodel was marked by obedience and respect for elders and authority, focusing on family and prioritizing economic and social rights over civil and political rights, the community over the individual, and social order and stability over democracy.45 Its cultural relativist approach was clearly articulated both during the regional preparatory conference in Bangkok and the World Conference on Human Rights in Vienna in 1993. The foreign minister of Singapore made the country’s position very clear by saying “universal recognition of the ideal of human rights can be harmful if universalism is used to deny or mask the reality of diversity”.46 The Bangkok Declaration of April 1993 aimed at culturally contextualizing human rights.47 This, however, did not entail the direct denial 43 Yadav, P. K. (2014). Religion and Human Rights: A Philosophical Study. Thesis submitted to University of Lucknow. p. 224. http://shodhganga.inflibnet.ac.in/handle/ 10603/44616. 44 Ibid., p. 14. 45 Bauer, J. (2015).

The Challenges to International Human Rights. In: M. Monshipouri, N. Englehart, A. J. Nathan, & K. Philip (eds), Constructing Human Rights in the Age of Globalization, 2nd ed. Abingdon, UK: Routledge. p. 244. 46 Sen, A. (1997). Human Rights and Asian Values. Paper presented at the Sixteenth Morgenthau Memorial Lecture on Ethics and Foreign Policy, New York City (25 May 1997). p. 2. https://www.carnegiecouncil.org/publications/archive/morgenthau/254. 47 “While human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the

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of human rights, as even the most prominent supporters of the concept of Asian values were aware of the view that the recognition of diversity could not justify serious human rights violations.48 This partly related to anti-Western sentiments and the need to resist post-colonial Western imperialism and hegemony. The discourse on Asian values was also a reaction to intensified pressure by the international community on Asian states to comply with international human rights standards.49 Asian values also served to challenge the moral foundations of this Western pressure, denying the universality of human rights, representing a cultural relativist position.50 This approach by the East and Southeast Asian elite was also shaped by popular pressure in these countries for good government and effective and efficient administration. However, as Donnelly pointed out, this is not possible in the absence of full respect for human rights.51 The promotion of the concept of Asian values related originally to two states, Singapore and Malaysia, followed by several other Asian countries, such as China, Vietnam, Burma/Myanmar, Indonesia, and Thailand. The most prominent supporter of the idea was Lee Kuan Yew, former Prime Minister of Singapore, who used the concept to justify its paternalistic and illiberal system of government, by arguing that Asian cultures are so different from the West that they should be exempt from human rights considerations.52 He argued that authoritarian governance was needed in the interests of economic development in Asia, as it provided the effectiveness essential for the promotion of economic success.53 As pointed out significance of national and regional particularities and various historical, cultural and religious backgrounds”. Article 8 of the Final Declaration. 48 Castellino, J. & Dominguez Redondo, E. (2006). Minority Rights in Asia. Oxford, UK: Oxford University Press. p. 16. 49 Bauer, J. R. & Bell, D. A. (1999). The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 3. 50 Tatsuo, I. (1999). Liberal Democracy and Asian Orientalism. In: J. R. Bauer & D. A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 38. 51 Donnelly, J. (1999). Human Rights and Asian Values: A Defense of “Western”

Universalism. In: J. R. Bauer & D. A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 82. 52 Barr, M. D. (2000). Lee Kuan Yew and the “Asian Values” Debate. Asian Studies Review, 24(3):309. 53 Sen, S. (1997). Human Rights and Asian Values. Paper presented at the Sixteenth Morgenthau Memorial Lecture on Ethics and Foreign Policy, New York City (25

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by William Theodore de Bary, the political elite of Singapore intended to establish some sort of common moral ground for society, which consisted of diverse ethnic and religious groups.54 The promotion of Asian values was an attempt at this. The origins of the notion came from the Confucian tradition, although Confucianism had little influence on daily practices and life in these societies.55 Confucianism in that context was not the “original set of ethics advocated by Confucius, but rather the statecentred form adopted by successive Chinese emperors from the second century onwards”.56 This renaissance of Confucianism was interesting because previously it had been stigmatized as backward and retrograde. Lee Kuan Yew was the first to combine support for an authoritarian direction with Confucian values within the framework of a “post-Confucian” culture.57 He also wanted to provide a contra-American model, characterized by patriarchy, respect for elders and authority, a focus on family, and the prioritization of economic and social rights over civil and political rights, the primacy of the community over the individual, and social order over democracy and individual freedom.58 The introduction of Asian values in Singapore and Malaysia resulted in the coexistence of high living standards and illiberal politics. It made these countries the exceptions to the rule that democratization follows economic development.59 The political aim behind this initiative was to fight the democratic movements, tendencies, and individualism in these countries despite significant economic advancement. Consequently, the real issue was not the clash between Asia and the West, but the conflict May 1997), n 23. p. 2. https://www.carnegiecouncil.org/publications/archive/morgen thau/254. 54 de Bary, W. T. (1998). Asian Values and Human Rights, A Confucian Communitarian Perspective. Cambridge, MA: Harvard University Press. p. 3. 55 Castellino, J. & Dominguez Redondo, E. (2006). Minority Rights in Asia. Oxford, UK: Oxford University Press. p. 18. 56 Barr, M. D. (2000). Lee Kuan Yew and the “Asian Values” Debate. Asian Studies Review, 24(3):311. 57 de Bary, W. T. (1998). Asian Values and Human Rights: A Confucian Communi-

tarian Perspective. Cambridge, MA: Harvard University Press. p. 4. 58 Bauer, J. (2015). The Challenges to International Human Rights. In: M. E. Sharpe, Constructing Human Rights in the Age of Globalization. Abingdon, UK: Routledge. p. 244. 59 Thompson, M. R. (2001). Whatever Happened to “Asian Values”? Journal of Democracy, 12(4):154, 156, 157.

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between authoritarian and democratic modernity.60 Not surprisingly, the main target of the Asian values discourse in Singapore and Malaysia was the middle class, which started to support pro-democracy opposition movements in the 1980s; they were not convinced that Asian cultural particularities justified the rejection of democracy and human rights.61 However, de Bary demonstrated that there were individualistic and even liberal tendencies in the Neo-Confucian movement, emphasizing the importance of individual self-development and the critical attitude towards Confucian texts.62 This individualist approach is even more visible in Buddhism, where Ashoka’s inscriptions emphasized tolerance and liberty as central values of a good society.63 Professor Tatsuo Inoue showed how supporters of Asian values tried to denounce Western liberal democracy as alien to Asian culture and it was based ironically on Western-centric misperceptions of Asia.64 The whole idea that Asian culture is fundamentally different from that of the West has its roots in Western intellectual imperialism, in the so-called Orientalism65 which had been previously criticized by Asian critics.66 The Japanese political philosopher pointed out that communitarian elements could be found in many Western societies, too, and that individualism also had a place among Asian traditions. Kevin Y. L. Tan noted that Asians appeared to speak from the position of strength, based on economic success and not

60 Ibid., p. 159. 61 Ibid., p. 160. 62 Tatsuo, I. (1999). Liberal Democracy and Asian Orientalism. In: J. R. Bauer & D.

A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 51. 63 Ibid., p. 52. 64 Bauer, J. R. & Bell, D. A. (1999). The East Asian Challenge for Human Rights.

Cambridge, UK: Cambridge University Press. p. 6. 65 Edward Sein was the one who introduced the critique of Orientalism by opposing the biased, simplified views of the West about the Orient. He called the Orient an intellectual construction of the West. 66 Bauer, J. R. & Bell, D. A. (1999). The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 6.

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on intellectual arguments.67 This approach was undermined by the financial crisis in the late 1990s, seriously affecting many East and Southeast Asian states. Confucianism was used by certain Asian politicians to serve as a cultural ground to reject human rights concepts as alien to Asian traditions and an imposition by Western states. They argued that Confucianism was incompatible with human rights norms.68 However, in 1948, several experts, including China’s representative, suggested including Confucian sentiments in the language of the UDHR, not considering them incompatible with the spirit of the Declaration. In the course of the Asian values discourse, Anthony J. Langlois differentiated cultural and economic arguments and those related to the role of the state.69 The first refers to the distinct cultural traditions of Asia, which are even opposed to those of the West and which legitimize a softauthoritarian style of leadership, requiring the individual to be subservient to the interests of the community. The economic argument states that civil and political rights depend on the achievement of economic development; economic and cultural rights take priority over civil and political ones. However, as pointed out by Donnelly, many Western welfare states place a great emphasis on economic and social rights and several Asian states sacrificed certain economic and social rights in the interests of rapid economic growth.70 Inoue Tatsuo noted that this Asian policy of neglecting civil and political liberties resulted in an economic modernization strategy without political modernization.71 This approach neglected the role of civil liberties in the realization of economic and social rights. The promoters of this pure economic modernization tend to forget that civil rights are much less costly than economic and social rights 67 Bauer, J. (2015). The Challenges to International Human Rights. In: M. Monshipouri, N. Englehart, A. J. Nathan, & K. Philip (eds), Constructing Human Rights in the Age of Globalization, 2nd ed. Abingdon, UK: Routledge. p. 245. 68 de Bary, W. T. (1998). Asian Values and Human Rights: A Confucian Communitarian Perspective. Cambridge, MA: Harvard University Press. pp. 6–7. 69 Langlois, A. J. (2001). The Politics of Justice and Human Rights, Southeast Asia and

Universalist Theory. Cambridge, UK: Cambridge University Press. p. 24. 70 Bauer, J. R. & Bell, D. A. (1999). The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 7. 71 Tatsuo, I. (1999). Liberal Democracy and Asian Orientalism. In: J. R. Bauer & D. A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 27.

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and consequently more affordable for developing countries.72 Donnelly even highlighted the economic costs of the denial of civil and political rights and the link between authoritarianism and economic failure.73 As mentioned by Anthony J. Langlois, civil and political rights in a democratic system make it possible for citizens to publicize social, economic, or environmental problems and makes political response and intervention faster and easier.74 Statistical data do not support the idea that there is a general conflict between political rights and economic performance.75 On the contrary, take Botswana as an example; it has one of the best economic performances and at the same time one of the most democratic systems in Africa. The third kind of argument defends the soft-authoritarian way of government by arguing that “without such authoritarianism the internal centrifugal forces of religion, race, ethnicity and economic disparity, if not controlled would tear the countries apart”.76 However, there is no wellfounded scientific proof that an oppressive regime can secure long-term stability more efficiently than a liberal democracy, as in the case of the former, security is largely based on military power.77 Regarding cultural arguments, many critics are of the view that Asian elites do not even represent Asian culture; they are just using it to justify the authoritarian state ideology and to secure their political position. Consequently, the Asian values discourse provides the illiberal government with an alternative to Western liberalism.78 It is considered essential 72 Ibid., p. 35. 73 Donnelly, J. (1999). Human Rights and Asian Values: A Defense of “Western”

Universalism. In: J. R. Bauer & D. A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 73. 74 Langlois, A. J. (2001). The Politics of Justice and Human Rights, Southeast Asia and Universalist Theory. Cambridge, UK: Cambridge University Press. p. 35. 75 Sen, A. (1999). Human Rights and Economic Achievements. In: J. R. Bauer & D. A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 91. 76 Langlois, A. J. (2001). The Politics of Justice and Human Rights, Southeast Asia and

Universalist Theory. Cambridge, UK: Cambridge University Press. p. 25. 77 Tatsuo, I. (1999). Liberal Democracy and Asian Orientalism. In: J. R. Bauer & D. A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 45. 78 Langlois, A. J. (2001). The Politics of Justice and Human Rights, Southeast Asia and Universalist Theory. Cambridge, UK: Cambridge University Press. p. 29.

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by the elite for building a nation and a national identity.79 Most elements of Asian criticisms of Western liberalism are also part of European conservativism and have no special Asian character at all. However, it is probably correct to say that dominant positions in Asia regarding issues like religious freedom, marriage, homosexuality, the death penalty, abortion, freedom of expression, or minority rights are quite different from mainstream Western views and vice versa. Certain minority views in Asia are often in agreement with dominant positions in the West.80 In this context, it is important to refer to Osman Bakar who was of the view that the Asian values debate was so focused on political issues that there was little discussion about real Asian values held by Asian democrats who do not want to consider themselves as liberals.81 It is also remarkable that while the Western concept of human rights is criticized in the Asian values discourse, the Western concept of sovereignty is accepted without reservation and serves to silence human rights criticism coming from outside.82 However, it is no coincidence that in the West the concept of human rights and sovereignty developed in parallel as it also served to protect weaker states and individuals against hegemonic states and more powerful political and social forces.83 As a result of this development, the sovereign state was not just a potential violator, but also a powerful protector of human rights.84 Many states in Asia see themselves as heavily involved in the “process of creating coherent nations out of the disparate ethnic, religious and political groups within the state. As a result, these states are reluctant to compromise their sovereignty to any outside actors”.85 As this controversial relationship of Asian states to sovereignty was eloquently described by Michael C. Davis, the “newly decolonized Asian countries 79 Ibid., p. 31. 80 Ibid., p. 43. 81 Ibid., p. 44. 82 Tatsuo, I. (1999). Liberal Democracy and Asian Orientalism. In: J. R. Bauer & D. A. Bell (eds), The East Asian Challenge for Human Rights. Cambridge, UK: Cambridge University Press. p. 30. 83 Ibid., p. 31. 84 Ibid., p. 32. 85 Narine, S. (2004). State Sovereignty, Political Legitimacy and Regional Institution-

alism in the Asia-Pacific. The Pacific Review, 17(3):423. https://www.tandfonline.com/ doi/abs/10.1080/0551274042000261524?scroll=top&needAccess=true&journalCode= rpre20&.

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often mobilized this conception as a weapon for national independence and to mask a dismissive attitude toward what was perceived as Western imposition of human rights”.86 According to the view of the author, economic liberalism with political pluralism and the rule of law is the best solution for Asian states. This is the only system able to guarantee stability and economic prosperity for the region and does not require these countries to give up their culture. It also ensures both communitarian and individualistic aspirations within societies. In this regard, the protection of human rights is not just compatible with but an integral part of Asian traditions. The Asian values discourse was mainly used by the political elite for their own, selfish political interests, securing their position in power. Their policy did not serve the economic and social development of the region in the long term and baulked democratic aspirations in East-Southeast Asia.

6.4 6.4.1

Regional Human Rights Initiatives

Possible Hurdles for an Asian Regional Human Rights System

Asia is the only continent that does not have its own regional human rights arrangements. There are several explanations for this phenomenon87 : • The diverse nature of Asia prevents it accepting uniform standards. • Asian values are so distinct from Western ones. • The principles of sovereignty and non-interference prevent external monitoring. • The cultural preference in Asia for conciliation over adjudication excludes quasi-judicial methods for the protection and promotion of human rights.

86 Davis, M. C. (2005). Sovereignty and the State in Asia: The Challenges of the Emerging International Order, ASIL Proceedings. p. 411. http://home.uchicago.edu/ ~tginsburg/pdf/articles/TheStateOfSovereigntyInSoutheastAsia.pdf. 87 Saul, B., Mowbray, J. & Baghoomians, I. (2011). Resistance to Regional Human Rights Cooperation in the Asia-Pacific: Demythologizing Regional Exceptionalism by Learning from the Americas, Europe and Africa. In: H. Nasu & B. Saul (eds), Human Rights in the Asia-Pacific Region, Towards Institution Building. Abingdon, UK: Routledge. p. 108.

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The argument concerning the diversity of Asia sounds a little odd, if we look at Africa, with 54 UN member states (there are 53 members of the Asia-Pacific Group of the UN), most of them with artificial borders, determined by former colonial powers, which, in most cases, did not respect ethnic lines in the continent. In this sense, many parts of Asia are more homogeneous and less exposed to external forces.88 Although Europe can be considered more homogeneous than Asia, the management of diversity was also part of European history. The “margin of appreciation” doctrine89 applied by the European Court is a modern example of addressing diversity. Consequently, in light of different international examples, diversity is not a valid excuse not to have regional human rights arrangements in Asia. Asian values, which besides not representing the real interests of the continent, did not take into account the diversity of the peoples of Asia, stating instead that there are distinct values that characterize the continent as a whole. There is, however, no such specific set of values and universal human rights standards do not prevent states taking into consideration their special cultural background during their implementation.90 Referring to Asian values as a form of cultural relativity resulted in resistance to rights and not the special implementation of human rights. Finally, we should acknowledge that the establishment of organizations in the region was always due to economic interests, not because the region wanted to express a particular political or cultural identity.91 Trying to explain the lack of regional human rights arrangements in Asia by referring to non-interference and national sovereignty is dated. It

88 Ibid., p. 109. 89 The national authorities of Contracting States to the European Convention of

Human Rights and Fundamental Freedoms (1950) (ECHR) are permitted a degree of latitude in respect of the manner in which they discharge their obligations under the Convention. This degree of freedom is referred to as the doctrine of the “margin of appreciation”. The doctrine plays a pivotal role in ensuring that the ECHR is workable throughout the Contracting States despite the varied differences found in the national systems of Contracting States. 90 Saul, B., Mowbray, J. & Baghoomians, I. (2011). Resistance to Regional Human Rights Cooperation in the Asia-Pacific: Demythologizing Regional Exceptionalism by Learning from the Americas, Europe, and Africa. In: H. Nasu & B. Saul (eds), Human Rights in the Asia-Pacific Region, Towards Institution Building. Abingdon, UK: Routledge. pp. 112–113. 91 Ibid., p. 116.

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is quite likely that the old reading of these principles will be increasingly challenged as the colonial era recedes, the middle class and civil society are empowered, and the economic and social integration of the continent is enhanced, together with the end of threat marked the Cold War period.92 An important issue which should be taken into consideration when we try to explain the lack of regional human rights organizations is the collective uncertainty of Asian states about their domestic political legitimacy, preventing them to be involved in that kind of strong political cooperation.93 Regarding Asia’s preference for informal dispute settlement over adjudication, it is clear that Asian states are more willing to turn to legally binding settlements in the field of economic cooperation or on territorial issues than on human rights questions. However, as the African example demonstrates, the African customs and traditions that support conciliation are a preferable way of solving disputes. The African Commission was complemented by the African Court of Human and Peoples’ Rights in 2004.94 A similar development is possible in Asia as well. In Asia, neither the atrocities of World War II nor colonialism was a sufficient trigger to launch regional cooperation on human rights as happened on the other continents. However, by the development of different sub-regional arrangements [Association of Southeast Asian Nations (ASEAN), South Asian Association for Regional Cooperation (SAARC), and the Pacific Islands Forum (PIF)], the necessary economic, diplomatic, trade, and communication links may be set up in the future, making an efficient regional human rights cooperation possible in the long run. Besides the confidence-building and norm-setting effects of sub-regional arrangements, the promotion of the ratification of international human rights instruments and the support of national human rights institutions can lead by an evolutionary approach to the establishment of

92 Ibid., p. 119. 93 Narine, Shaun. (2004). State Sovereignty, Political Legitimacy, and Regional Institu-

tionalism in the Asia-Pacific. The Pacific Review, 17(3):423. 94 Saul, B., Mowbray, J. & Baghoomians, I. (2011). Resistance to Regional Human Rights Cooperation in the Asia-Pacific: Demythologizing Regional Exceptionalism by Learning from the Americas, Europe, and Africa. In: H. Nasu & B. Saul (eds), Human Rights in the Asia-Pacific Region, Towards Institution Building. Abingdon, UK: Routledge. p. 122.

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a regional human rights arrangement.95 Despite all these developments, there is no real chance in the near future for the birth of an efficient regional human rights organization on Asian soil, in light of the old traditional notion of nationalism prevailing on the continent, together with the uncertainty of many Asian governments about their political legitimacy. Finally, as regional multilateral efforts were mainly aimed at state formation, human rights initiatives at that stage are not timely, as they are seen by many governments as weakening this process. 6.4.2

Sub-Regional Arrangements in Asia

In Asia, there was no strong motive for regional integration until the end of the Cold War, but globalization and the Asian financial crisis of 1997/1998 accelerated the process significantly.96 This integration manifested mainly in the form of enhanced economic cooperation. In this context, we can refer to the Asia-Pacific Economic Cooperation (APEC), the United Nations Economic and Social Commission for the Asia and the Pacific (UNESCAP), ASEAN Plus Three (APT), and the East Asian Summits (EAS). The UN also plays an important role in supporting regional human rights integration by organizing the UN workshops for the promotion and protection of human rights in the Asia-Pacific region. ASEAN, SAARC, and the PIF are the most important sub-regional arrangements, putting human rights on their agenda, and thereby significantly contributing to regional integration in the field of human rights protection. Regional human rights systems were usually initiated because of frustration over the ineffectiveness of global mechanisms, which were not easily accessible and were not able to take into account the regional particularities.97 Association of Southeast Asian Nations The ASEAN Declaration of 1967 establishing the Association of Southeast Asian Nations did not contain any specific reference to human

95 Ibid., p. 26. 96 Baik, T. (2012). Emerging Regional Human Rights Systems in Asia. Cambridge, UK:

Cambridge University Press. pp. 155–156. 97 Ibid., pp. 166–167.

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rights.98 Traditionally, ASEAN was reluctant to take part in any human rights cooperation, and when it addressed human rights questions, it usually emphasized the Asian particularities. The development of the organization was demonstrated by the debate that took place in the region between state sovereignty and human rights.99 The gradual change in the philosophy of the organization reached an important momentum in 1993, when at the occasion of the Vienna World Conference on Human Rights, the ASEAN foreign ministers issued a Joint Communiqué during their meeting in Singapore, reaffirming their commitments to human rights, and stressing the interrelated and indivisible nature of all human rights. In 1995, the Human Rights Committee of the Law Association of Asia and Pacific established a working group to promote the idea of the establishment of an ASEAN human rights mechanism.100 Contrary to the position of Asian governments, the Regional Working Group for an ASEAN Human Rights Mechanism stressed that the human rights mechanism should work in accordance with the principle of the universality of human rights and regional law should be in line with international standards.101 As a result of several workshops, a roadmap was adopted for the establishment of an ASEAN Human Rights Mechanism. In 2003, at the Bali Summit, ASEAN leaders decided to build the ASEAN Community on three pillars. These eventually became the ASEAN Economic Community, the ASEAN Political-Security Community (APSC), and the ASEAN Socio-Cultural Community (ASCC). However, as highlighted by Shaun Narine, the latter two were products of political considerations and concern about the image of ASEAN in the outside world.102 ASEAN leaders did not want the organization to be 98 Ibid., pp. 141–142. 99 Narine, S. (2012). Human Rights Norms and the Evolution of ASEAN: Moving

Without Moving in a Changing Regional Environment. Contemporary Southeast Asia: A Journal of International and Strategic Affairs, 34(3):365, 366. 100 Wahyuningrum, Y. (2014). The ASEAN Intergovernmental Commission on Human Rights: Origins, Evolution and the Way Forward. International Institute for Democracy and Electoral Assistance. p. 13. https://www.idea.int/sites/default/files/ publications/the-asean-intergovernmental-commission-on-human-rights-origins-evolutionand-the-way-forward.pdf. 101 Narine, S. (2012). Human Rights Norms and the Evolution of ASEAN: Moving Without Moving in a Changing Regional Environment. Contemporary Southeast Asia: A Journal of International and Strategic Affairs, 34(3):369. 102 Ibid., p. 371.

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seen as too focused on economic issues, to the detriment of political and social questions. ASEAN leaders signed the Kuala Lumpur Declaration in 2005 on the establishment of the ASEAN Charter. All ten members of the Organization ratified the Charter on 15 December 2008.103 The purpose of the Charter was to “confer a legal personality to ASEAN and to determine the functions, develop areas of competence of key ASEAN bodies and their relationship with one another in the overall ASEAN structure”.104 First, an Eminent Persons Group started to work on the content of a Charter, and then, this task was transferred to a High-Level Task Force (HLTF). The HLTF could not decide how to insert a provision into the Charter about the creation of an ASEAN human rights mechanism, so, in 2007, the issue was sent to the Ministerial Meeting in Manila. The foreign ministers of Malaysia, Indonesia, Singapore, Thailand, and the Philippines managed to convince Myanmar, Laos, Cambodia, and Vietnam to accept a provision in this direction.105 Article 14 of the Charter provided for the establishment of the ASEAN human rights body. The ASEAN Intergovernmental Commission on Human Rights (AICHR) was finally set up in September 2009. Just a few months later, the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) was inaugurated. This came as no surprise; all ASEAN member states had ratified or acceded to the UN CRC and almost all of them had ratified or acceded to CEDAW.106 The ACWC is like the AICHR, a consultative intergovernmental body, without a secretariat or enforcement power. There are, however, two important differences between the two bodies. The ACWC mandate is specifically linked to the work of the CRC and CEDAW, and given the less political nature of the issues covered by ACWC, it has a stronger protection role than the AICHR.107 The ACWC

103 Baik, T. (2012). Emerging Regional Human Rights Systems in Asia. Cambridge, UK: Cambridge University Press. p. 142. 104 Narine, S. (2012). Human Rights Norms and the Evolution of ASEAN: Moving Without Moving in a Changing Regional Environment. Contemporary Southeast Asia: A Journal of International and Strategic Affairs, 34(3):371. 105 Ibid., p. 372. 106 Ciorciari, J. D. (2012). Institutionalizing Human Rights in Southeast Asia. Human

Rights Quarterly, 34(3):695, 705. 107 Ibid., p. 721.

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is required to coordinate with the AICHR on issues related to children and women, but it is not subordinated to it.108 Looking at the AICHR’s terms of reference (TOR), it is obvious that it does not go against the main ASEAN principles of respect for sovereignty and non-intervention. The Commission is even required to balance between rights and responsibilities.109 The weakness of the system lies not just in the fact that the promotion of human rights is only the fifth among the principles, but that the members of the Commission are mainly current or former government officials and that the decision-making process is based on ASEAN’s consultation and consensus approach. It is also very telling that the members of the Commission are called “representatives” and not “commissioners” and that only two of them (Indonesia and Thailand) were elected by independent teams; the others were nominated by their governments.110 The main purpose of the establishment of the AICHR was to ameliorate ASEAN’s international reputation.111 Known to its critics as a “toothless human rights body”, it was never meant to be an independent watchdog.112 The AICHR’s TOR does not include any investigative, monitoring, or enforcement power or a catalogue of rights, and the promotion of human rights enjoyed priority over their protection. However, it is a potential platform for regional human rights discussions. Without a dedicated Secretariat, the AICHR’s efficiency is limited.113 Recent work by the Commission includes thematic studies. The first one on corporate social responsibility and human rights was completed 108 Ibid., p. 722. 109 Narine, S. (2012). Human Rights Norms and the Evolution of ASEAN: Moving

Without Moving in a Changing Regional Environment. Contemporary Southeast Asia: A Journal of International and Strategic Affairs, 34(3):375. 110 Ciorciari, J. D. (2012). Institutionalizing Human Rights in Southeast Asia. Human Rights Quarterly, 34(3):715. 111 Narine, S. (2012). Human Rights Norms and the Evolution of ASEAN: Moving Without Moving in a Changing Regional Environment. Contemporary Southeast Asia: A Journal of International and Strategic Affairs, 34(3):376. 112 Wahyuningrum, Y. (2014). The ASEAN Intergovernmental Commission on Human Rights: Origins, Evolution and the Way Forward. International Institute for Democracy and Electoral Assistance. p. 14. https://www.idea.int/sites/default/files/ publications/the-asean-intergovernmental-commission-on-human-rights-origins-evolutionand-the-way-forward.pdf. 113 Ibid.

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in 2014. The second thematic study was prepared on Women Affected by Natural Disasters and was adopted in August 2017. Further back, the ASEAN Human Rights Declaration was adopted in November 2012 by the ASEAN Heads of State.114 The OHCHR expressed concern about the non-compliance of the Declaration with international norms.115 The Declaration received harsh criticism from human rights groups and civil society, who considered it an “anti-human rights instrument” that distorted universal human rights standards by balancing rights with responsibilities and cultural relativist statements.116 However, several universal human rights are included in the Declaration, like the prohibition of discrimination, the right to dignity, the right to education, the right to medical and social care, and the right to a clean environment.117 There is special protection for vulnerable groups, like children, women, the elderly, people with disabilities, and migrant workers. It also contains a provision against the social and economic exploitation of children.118 As pointed out by Yuyun Wahyuningrum, the Declaration is a political rather than a legal document, reflecting the democracy deficit of most of the ASEAN states, and represents the lowest common denominator among the member states, among whom the ratification rate of international human rights instruments is quite low.119 In 2013, Indonesia initiated to report about its human rights situation to the AICHR, followed by Thailand in 2014. These were important steps towards an efficient regional

114 The text of the Declaration can be found at http://aichr.org/documents/. 115 Wahyuningrum, Y. (2014). The ASEAN Intergovernmental Commission on Human

Rights: Origins, Evolution and the Way Forward. International Institute for Democracy and Electoral Assistance. p. 18. 116 Palatino, M. (2012). Human Rights Declaration Falls Short. The Diplomat (28 November 2012). https://thediplomat.com/2012/11/human-rights-declarationfalls-short/. 117 Wahyuningrum, Y. (2014). The ASEAN Intergovernmental Commission on Human Rights: Origins, Evolution and the Way Forward. International Institute for Democracy and Electoral Assistance. p. 19. 118 Ywart, T. (2014). Safeguarding the Universal Acceptance of Human Rights Through the Receptor Approach. Human Rights Quarterly, 36(4):898, 903. 119 Wahyuningrum, Y. (2014). The ASEAN Intergovernmental Commission on Human Rights: Origins, Evolution and the Way Forward. International Institute for Democracy and Electoral Assistance. p. 20.

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human rights mechanism, enhancing the monitoring role which is missing from the Commission’s TOR.120 The AICHR recently began cross-pillar and cross-sectoral cooperation on issues like disability, youth, rights of children and women, and trafficking in person. In 2015, the first ASEAN-EU Policy Dialogue on Human Rights took place, followed by a second one in 2017121 and a third one in 2019.122 The AICHR, with all its institutional limits, represents a systematic, step-by-step approach to the development of human rights protection and promotion. It is a good implementation tool of the well-known “practice first, institutions later” formula, it provides a platform for human rights dialogue and meetings which receive significant media and public attention in the region and which contribute to the better self-organization of civil society in ASEAN member states.123 South Asian Association for Regional Cooperation and the Pacific Islands Forum As is the case with ASEAN member states, there were two international human rights treaties signed by all members of SAARC: the CRC and CEDAW. Consequently, the organization pays special attention to the rights of children, women, and migrant workers, which are closely connected to their economic development interests.124 Unfortunately, the significant limitations in the system did not let SAARC establish a serious human rights component and member states are still placing more emphasis on rejecting political and diplomatic pressure coming from the West than on promoting and protecting human rights. The efforts of the PIF to provide efficient human rights protection in the region are still at an early stage, and so far, the organization has not been very vocal about human rights violations in the Pacific. 120 Ibid., pp. 16–17. 121 AICHR. (2018). The ASEAN Intergovernmental Commission on Human Rights

(AICHR) Annual Report 2018. p. 3. http://aichr.org/documents/. 122 European Union, ASEAN Hold 3rd Human Rights Policy Dialogue. https://asean. org/asean-hold-3rd-human-rights-policy-dialogue/. 123 AICHR. (2018). The ASEAN Intergovernmental Commission on Human Rights (AICHR) Annual Report 2018. pp. 24–25. http://aichr.org/documents/. 124 Baik, T. (2012). Emerging Regional Human Rights Systems in Asia. Cambridge, UK: Cambridge University Press. pp. 208–212.

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6.4.3

Regional Cooperation

There are more and more good examples of regional economic cooperation in Asia, like APEC, the ASEAN Regional Forum (ARF), APT, and the EAS. Both the UN-sponsored Annual Workshops and the Asia-Pacific Forum (APF) played important roles as significant regional human rights arrangements.125

6.5 Asian Human Rights Diplomacy at Multilateral Forums with Special Emphasis on the United Nations Human Rights Council 6.5.1

International Criminal Court

Asia is the least represented region in the ICC; only 19 of the 53 members of the Asian Group are state parties to the Rome Statute establishing the ICC. In Africa, this number is 33 of 54; in Latin America 28 out of 33.126 When looking for possible reasons behind this reluctance to cooperate with the ICC, one of the most obvious answers is related to colonialism which delayed the development of nation-states and national identity in the region and the fight for independence required a great loss of life in many countries. Besides colonial rule, many states were affected and ruined by violent internal and inter-state conflicts, as a result of ethnic and religious hostilities.127 The extreme struggle for independence and internal stability made the principles of national sovereignty and non-interference cornerstone of their diplomacy. This approach was manifested in the Five Principles of Peaceful Coexistence (mutual respect for territorial integrity and sovereignty, mutual non-aggression, mutual non-interference, equality and mutual benefit, and peaceful coexistence), which were accepted by several countries in the region starting from the 1950s.128 This policy about the strict observance of the principles 125 Ibid., p. 227. 126 Nicolas, B. D. (2018). Asia “Least Represented Region” in International Criminal

Court. BusinessMirror (19 August 2018). https://businessmirror.com.ph/asia-least-repres ented-region-in-international-criminal-court/. 127 Kim, H. (2017). Missed Opportunities in the Judicialization of International Criminal Law? Asian States in the Emergence and Spread of the Rome Statute System to Punish Atrocity Crimes. Netherlands Quarterly of Human Rights, 35(4):247, 256. 128 Ibid., pp. 258–261.

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of national sovereignty and non-interference resulted in Asian governments preferring informal engagement and cooperation in the field of policy areas, while the trade and investment areas became more legalized. Unfortunately, a culture of impunity prevailed in the region; Asia was the continent least likely to prosecute mass atrocities and grave human rights violations committed by state authorities. Neither the Bangladesh International Criminal Tribunal nor the Ad Hoc Human Rights Court in Indonesia was able to stop the culture of impunity in their country. In Cambodia, it took more than three decades to punish crimes committed by the Khmer Rouge. This culture of impunity was further strengthened in many states by the adoption of legislation granting amnesties to those responsible for mass atrocities, for example, Fiji, Mongolia, and Cambodia in the case of Khmer Rouge guerrillas. Besides the lack of political will on behalf of the political and military elite directly or indirectly involved in past mass atrocities, limited financial, technical, and human resources made implementing the Rome Statute even more difficult.129 Motoo Noguchi, the current Chair of the Board of Directors of the Trust Fund for Victims at the ICC, identified four common features of the Asian societies which may contribute to the reluctance to cooperate with the ICC.130 1. Law has not traditionally been the primary guiding principle in Asia, as people prefer unofficial dispute settlement methods. 2. As the criminal justice system has serious problems, including corruption or the lack of independence, many people do not trust it. 3. Many states consider criminal justice an integral part of the domestic jurisdiction, which should be immune from external intervention. 4. The diversity of the region does not allow meaningful discussion on criminal justice at international and regional forums. In 2016, the Prosecutor of the ICC expressed her concern about reported extra-judicial killings of alleged drug dealers and users in the Philippines.

129 Ibid., p. 264. 130 Takemura, H. (2018). The Asian Region and the International Criminal Court. In:

Y. Nakanishi (ed), Contemporary Issues in Human Rights Law, Europe and Asia. Springer Nature. p. 109.

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In March 2018, President Duarte ordered the country’s withdrawal from the Rome Statute as a reaction to the ICC’s announcement regarding the launching of a preliminary examination of his campaign against illegal drugs.131 Although the ICC acknowledged the withdrawal, it made it clear that it had “no impact on on-going proceedings or on any matter already under the consideration by the Court prior to the date on which the withdrawal became effective”.132 According to Article 127 of the Statute, withdrawal becomes effective one year after the UN SecretaryGeneral receives written notice from the member state. Duarte’s decision could also have been influenced by the order of Vladimir Putin of November 2016 concerning the withdrawal of Russia’s signature from the Rome Statute.133 A remarkable shift can be seen recently in the regional focus of the ICC. There are ongoing preliminary examinations relating to Bolivia, Columbia, Honduras, Iraq/UK, the State of Palestine, the Philippines, Ukraine, and Venezuela outside of Africa. Among the situations under investigation, there are three non-African cases (Georgia, Bangladesh/Myanmar, Afghanistan).134 Among the cases under preliminary examination, besides the Philippines, the second one is about the State of Palestine, and the third one is Iraq from the region covered by this chapter.135 There are two Asian cases under investigation. The first one is the case of Afghanistan, which, however, affects not only the Taliban-led anti-government forces, but the Afghan National Security Forces, the

131 Asia Forum for Human Rights and Development. (2018). The Philippines: Withdrawal from the ICC/Rome Statute Another Attempt to Persecute Impunity for Human Rights Violations in the Country. https://www.forum-asia.org/uploads/wp/2018/03/ Statement-on-Philippines-withdrawal-from-ICC-and-Rome-Statute.pdf. 132 Esguerra, A. Q. (2018). International Criminal Court to Philippines: Don’t Quit. The Jakarta Post (16 March 2018). http://www.thejakartapost.com/seasia/2018/03/ 16/international-criminal-court-to-philippines-dont-quit.html. 133 Takemura, H. (2018). The Asian Region and the International Criminal Court, In: Y. Nakanishi (ed), Contemporary Issues in Human Rights Law, Europe and Asia. Springer Nature. p. 121. 134 International Criminal Court website. https://www.icc-cpi.int/Pages/Main.aspx. 135 Ibid.

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US Armed Forces, and the CIA as well.136 The second one is related to Bangladesh/Myanmar. On 18 September 2018, the ICC Prosecutor announced the opening of a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh.137 Even though Myanmar is not a member of ICC, the ICC was of the view that it had jurisdiction in the case, because of the cross-border nature of the crises. Not surprisingly, the government “resolutely” rejected the decision which, according to Myanmar, “was the result of manifest bad faith, procedural irregularities and general lack of transparency”.138 On 14 November 2019, the Pre-Trial Chamber of the ICC authorized the Prosecutor to proceed with an investigation for the alleged crimes within the ICC’s jurisdiction in the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar.139 Looking to the future, in light of the prevailing understanding of the principles of non-intervention and national sovereignty, and the culture of impunity, it is not likely that there will be a radical change in the region’s approach to the ICC; however, Asian ICC members should facilitate regional and sub-regional dialogue on the importance of international criminal justice. It may result in the establishment of a regional mechanism to facilitate the ratification process. At the same time, serious efforts are needed by legal professionals and human rights experts to enhance domestic implementation of the Statute or prepare the ground for its ratification and help the public to understand that despite the different legal and cultural traditions, there are no obstacles to prevent this.140

136 Joseph, A. (2017). International Criminal Court Probe Set Asia Precedent. Asia Times (25 November 2017). http://www.atimes.com/international-criminal-courts-trystafghanistan/. 137 Bensouda, F. (2018). Statement of ICC Prosecutor, Mrs. Fatou Bensouda, on Opening a Preliminary Examination Concerning the Alleged Deportation of the Rohingya People from Myanmar to Bangladesh. https://www.icc-cpi.int/Pages/item.aspx?name= 180918-otp-stat-Rohingya. 138 Anon. (2018). Myanmar Rejects International Criminal Court Decision Over Rohingya Crisis. The Straits Times (7 September 2018). https://www.straitstimes.com/ asia/se-asia/international-criminal-court-says-it-has-jurisdiction-over-alleged-crimes-aga inst. 139 https://www.icc-cpi.int/bangladesh-myanmar. 140 Kim, H. (2017). Missed Opportunities in the Judicialization of International Crim-

inal Law? Asian States in the Emergence and Spread of the Rome Statute System to Punish Atrocity Crimes. Netherlands Quarterly of Human Rights, 35(4):271.

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6.5.2

United Nations General Assembly

Nine Asian states were among the 51 founding members141 present in 1945 at the establishment of the UN: Republic of China (now the People’s Republic of China), Iran, Lebanon, Philippine Commonwealth (now the Philippines), Saudi Arabia, Syria, Turkey, India, and Iraq. In the course of the decolonization process, UN membership was the first and most visible sign of a country’s independence. The organization gave moral and political legitimacy to the former colonial states that were in urgent need of it. As of 2021, 53 members of the Asia-Pacific Group represent 27.5% of the 193 UN member states. Of the 58 countries which negotiated the UDHR, 20 were from Latin America, besides the 4 African and 14 Asian states. Only 20 states belonged to the European and Western world. Non-Western states had quite a significant input on some rights, mainly economic, social, and cultural rights, but they also raised several rights like the protection on minorities or self-determination and, although they did not make their way into the Declaration, they were subsequently accepted by international law.142 The UDHR was adopted in 1948 with eight abstentions and no dissentient votes. Besides the six members of the Communist Bloc (Poland, Czechoslovakia, Yugoslavia, Byelorussian SSR, Ukrainian SSR, and the Soviet Union), South Africa and Saudi Arabia abstained (Yemen and Honduras did not vote), so all the other Asian states including Afghanistan, Burma, China (Taiwan), Turkey, India, Iraq, Iran, Pakistan, Syria, Lebanon, Thailand (Siam), and the Philippines adopted it without any formal reservations. Several independent experts from the developing world (Peng-chun Chang—China; Charles Malik—Lebanon; Carlos Rómulo—the Philippines; Hernán Santa—Chile) were influential members of the CHR143 and all except Santa were also members of the drafting committee that 141 The Charter was signed on 26 June 1945 by the representatives of 50 countries; Poland signed on 15 October 1945. There were 51 Founding Members in 1945. http:// www.un.org/depts/dhl/unms/founders.shtml. 142 de Varennes, F. (2006). The Fallacies in the “Universalism Versus Cultural Relativism” Debate in Human Rights. Asia-Pacific Journal on Human Rights and the Law, 67:71–72. 143 Le, N. (2016). Are Human Rights Universal or Culturally Relative? Peace Review: A Journal of Social Justice, 28:203, 205.

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prepared the UDHR.144 Chang held a doctorate from Columbia University, and Malik had attended Harvard University, so they were familiar with both international and local norms and managed to understand and reconcile the values of distinct cultures.145 Their Western education was a great asset during the drafting process as they were culturally more sensitive; it helped to avoid legal solutions which would not be accepted by other non-European cultures. As it was already mentioned, the rise of cultural relativism in the Third World was associated with the rise of dictatorships in the 1960s and 1970s.146 The most important similarity between states referring to cultural relativism was not the culture they represented, but the authoritarian character of their governments. They all shared a common fear of outside investigation and loss of power. 6.5.3

United Nations Human Rights Treaty Bodies

Looking at the ratification of the eight UN human rights instruments in the report prepared by the URG,147 it is not surprising that the average number of ratified treaties is 6.5 in the case of states which are members of the HRC from the Asia-Pacific Group148 ; this is the lowest rate among the regional groups. The figure is 7.1 in the case of African members of the Council, which is just a bit lower than in case of GRULAC (7.5) and the EEG (7.2), and the same as in case of WEOG. The situation is, however, much better when we look at the statistics about the performance of their reporting obligations. The average lateness of overdue reports is four years, which is the best one after WEOG (less than one year) and significantly better than the EEG (8.8 years) or the African 144 Dundes Renteln, A. (1990). International Human Rights: Universalism Versus Relativism. Frontiers of Anthropology, 6:28. 145 Le, N. (2016). Are Human Rights Universal or Culturally Relative? Peace Review: A Journal of Social Justice, 28:205. 146 Burke, R. (2010). Decolonization and the Evolution of International Human Rights. Philadelphia, PA: University of Pennsylvania Press. pp. 143–144. 147 Universal Rights Group. (2017). The Human Rights Council in 2017. Leadership, Resolve and Cooperation at the UN’s Main Human Rights Body. https://www.universalrights.org/urg-policy-reports/human-rights-council-2017/. 148 The following 13 states were members of the HRC in 2017: Bangladesh, China, India, Indonesia, Iraq, Japan, Kyrgyzstan, Mongolia, Philippines, Qatar, Republic of Korea, Saudi Arabia, United Arab Emirates.

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Group (12.5 years) and even better than GRULAC (4.7 years). Eight states (Bhutan, China, Kuwait, Kyrgyzstan, Mongolia, Singapore, Turkmenistan, and Uzbekistan) from the continent (China, Kyrgyzstan, and Mongolia are members of the HRC) are fully up to date with their treaty body reporting, and therefore, they belong to an exclusive club of 33 states within the same category in the world, as highlighted by the High Commissioner for Human Rights in his statement during the thirty-fifth session of the Council.149 Asian states are more reluctant to enter into multilateral human rights agreements than countries from other continents, but if they become state parties, they take their reporting obligations seriously and most have the technical and professional capacity to do so. Besides them, however, we have countries with reports overdue by 18 years (Bangladesh), 16 years (India), 7 years (Indonesia), and 6 years (Philippines). 6.5.4

United Nations Human Rights Council

The replacement of the former CHR with the HRC was mainly the result of heavy criticism of the over-politization of the work of the CHR, its composition (human rights violators were sitting on the Commission to defend themselves), and the dominance of the West which was using double standards against the Global South by only criticizing states not supporting the political and economic agenda of the developed world. The creation of the HRC certainly addressed part of this problem by its composition which gave almost a three-quarters majority for the Global South (Asia-Pacific Group 13 seats, African Group 13 seats, GRULAC 8 seats, EEG 6 seats, and WEOG 7 seats). Consequently, no decision can be taken without the support of the South; even Asia and Africa can pass a decision without the support of the other three regional groups. This should, in theory, enhance the legitimacy of the decisions taken by the new body.150 149 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights Council 35th Session: Opening Statement by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-acc ess-and-lack-cooperation-un-bodies-will-not-diminish-scrutiny-states-human. 150 Adam, A. (2017). Perspectives on a Decade of Asian Foreign Policy at the UN Human Rights Council. Forum-Asia Working Paper No. 2. p. 6. https://www.forum-asia. org/?p=24828.

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Research carried out by Forum-Asia showed that during the first decade of the HRC, only 22 Asian states, 41.5% of the Asia-Pacific Group, were members of the Council. This very low figure indicates that the influential Asian states were monopolizing the seats allocated to Asia.151 The research paper analysed the support of several important thematic resolutions (safety of journalists, human rights on the Internet, peaceful assembly and association, HRDs, civil society space) by the Asian members of the HRC and showed a very low level of support in general, with only a few states willing to co-sponsor these resolutions. Not surprisingly, the Republic of Korea, Japan, and the Maldives were the most supportive states.152 A large proportion of Asian HRC members voted against these resolutions or supported regressive amendments to the drafts. According to the same research, there was a large inconsistency in the positions of Asian states on country situations. In theory, most of them were always very critical about Item 4 resolutions, which were adopted without the consent of the concerned state and supported Item 10 resolutions, which provided technical assistance to the state with its support. However, 61% of Asian states consistently supported the resolution on Syria, while only 27% of the Asian HRC members supported other Item 4 resolutions on average.153 Asian states were willing to join the consensus on 30 Item 4 resolutions, including such a sensitive one as the one on Burma/Myanmar. On the other side, 66% of Asian HRC members constantly abstained on the resolutions on Ukraine, Item 10 initiatives that enjoyed the support of Kiev. This inconsistency shows that regarding country situations, political considerations overwrite theoretical positions. This is even more obvious if we look at the voting behaviour of Asian HRC members on Item 7 resolutions, addressing the human rights situation in Palestine and other occupied Arab territories. These Item 4 type resolutions—adopted without the consent of Israel—were supported on average by over 93% of Asian HRC members.154 As mentioned in the introduction to this chapter, it is mainly focused on East and South-East

151 Ibid., p. 6. 152 Ibid., pp. 8–9. 153 Ibid., pp. 9–10. 154 Ibid., p. 79.

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Asian states, while Chapter 8 focuses on Islam and human rights, so the OIC initiatives are briefly mentioned, not discussed in detail. Universal Periodic Review Roger Lloret-Blackburn did some interesting research on which states challenged the universality of human rights during the first round of the UPR. He detected 12 states, 2 from the Middle East (Iraq and Yemen), 3 from Latin America, and 7 from Asia: China, Indonesia, Iran, Malaysia, Myanmar, Pakistan, and Viet Nam.155 He divided contemporary cultural relativism into two main categories: one based on political factors and/or revolutionary discourse can be identified in the case of China, Viet Nam, and Myanmar; and another representing the Islamic form of cultural relativism that can be seen in Yemen, Iran, and Pakistan. According to his assessment, Indonesia and Malaysia represent a more moderate form of cultural relativism.156

6.6 6.6.1

Main Sessions of the Human Rights Council in 2017

Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017)

The human rights situation in Asia was present in the annual report of the High Commissioner for Human Rights. Mr. Zeid Ra’ad Al Hussein expressed his concerns about the human rights violations in Myanmar, the DPRK, and Iraq and urged the Council to establish a commission of inquiry regarding the human rights situation in Myanmar. He was also concerned about the increased threats against HRDs in the Philippines, Cambodia, and China and over restrictions on religious and cultural rights in China and Iran. He expressed deep concern that four countries, namely China, Iran, Saudi Arabia, and Pakistan, were responsible for around 90% of all executions carried out in 2016. On the other hand, he welcomed

155 Lloret-Blackburn, R. (2011). Cultural Relativism in the Universal Periodic Review of the Human Rights Council. ICIP Working Papers, Institut Catalá Internacional per La Pau, Barcelona. pp. 15–36. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=203 3134. 156 Ibid., pp. 33–34.

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China and Uzbekistan regarding the improvements in the promotion of the former’s economic and social rights and the latter’s judicial reform.157 Country Situations It is interesting to analyse the voting behaviour of the 13 members of the Asia-Pacific Group of the Council regarding country situations. There were five resolutions on the human rights situation in the Middle East (Human rights in Syrian Golan, Human Rights in the OPT, Accountability in the OPT, Self-determination, and Israeli settlements ). All were submitted by Pakistan on behalf of the OIC. The Asian countries usually allied with the OIC’s position and supported these resolutions condemning Israel, which is not surprising as influential members of the Group are also members of the OIC. Only Japan abstained on two occasions (Human rights in Syrian Golan, Accountability in the OPT ), India once (Accountability in the OPT ), and the Republic of Korea once (Human rights in Syrian Golan).158 The resolution on the situation of Human rights in Myanmar was tabled by the EU and was adopted by consensus. The Council decided by this resolution to dispatch an international fact-finding mission to be appointed by the President of the HRC, as Myanmar did not accept the original solution to give this investigative task to the existing Special Rapporteur. The resolution extended the mandate of the Special Rapporteur, welcomed the positive developments that happened since the new government took office in April 2016, but also expressed concerns over several issues, including the situation in the Rakhine State. At the adoption of the resolution, Myanmar, China, India, and Venezuela dissociated from the whole text, while the Philippines dissociated only from the paragraphs regarding the fact-finding mission.159 The resolution on the Situation of human rights in the DPRK submitted by Japan and the EU was adopted without a vote. Besides

157 UN. (2017). High Commissioner for Human Rights on the Activities of His Office and Recent Human Rights Developments. Item 2: Annual Report and Oral Update to the 34th Session of the Human Rights Council. p. 4. http://www.ohchr.org/EN/NewsEv ents/Pages/DisplayNews.aspx?NewsID=21316&LangID=E. 158 United Nations. (2018). Report of the Human Rights Council on Its 34th session, A/HRC/34/2 (14 June 2018). pp. 137–140. https://www.ohchr.org/en/hrbodies/hrc/ regularsessions/session34/pages/34regularsession.aspx. 159 Ibid., p. 64.

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Japan, the Republic of Korea and the Maldives also co-sponsored the resolution which strengthened the capacity of the OHCHR and its field office in Seoul, to enhance the current monitoring and documentation efforts to prepare the ground for future accountability processes.160 A short procedural resolution was adopted by consensus on Promoting reconciliation, accountability, and human rights in Sri Lanka. The text presented by a Core Group [USA, UK, Macedonia (now North Macedonia), and Montenegro] and co-sponsored by Sri Lanka requested the OHCHR to continue reporting on the implementation of HRC Resolution 30/1 of 2015.161 Regarding the voting on the resolution concerning the Human rights situation in Iran, submitted by a Core Group [Sweden, USA, Macedonia (now North Macedonia) and Moldova] the Asia-Pacific Group was completely divided. Japan, Qatar, the Republic of Korea, Saudi Arabia, and the United Arab Emirates (UAE) supported it. Mongolia and the Philippines abstained. Bangladesh, China, India, Indonesia, Iraq, and Kyrgyzstan voted against the resolution. This voting pattern reflects the complex relationship the Arab world has with Iran.162 The situation was quite similar in case of the resolution on Syria, submitted by a Core Group (USA, France, UK, Germany, Italy, Kuwait, Morocco, Jordan, Saudi Arabia, and Turkey) where Japan, Qatar, the Republic of Korea, Saudi Arabia, and the UAE supported it; Bangladesh, Indonesia, Mongolia, and the Philippines abstained; while China, Iraq, and Kyrgyzstan voted against the resolution.163 The Asian HRC members were evenly divided in the case of the resolution on Cooperation with Georgia, where only Japan could support the text, enjoying the consent of the concerned country as well, while except for China, all other members of the Asia-Pacific Group abstained. China following its traditional policy on country situations voted against the resolution.164

160 Ibid., pp. 65–66. 161 Ibid., p. 18. 162 Ibid., pp. 64–65. 163 Ibid., pp. 66–67. 164 Ibid., pp. 153–154.

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Thematic Issues Besides Pakistan, who submitted a resolution on behalf of the OIC on Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against persons based on religion or belief , other Asian states were only involved in tabling resolutions as members of Core Groups. It was the case with the Republic of Korea regarding the resolution entitled Human rights, democracy and the rule of law. Indonesia was a member of a Core Group that submitted the resolution on the Right to food. Thailand was a member of a crossregional Core Group tabling a resolution on Regional arrangements for the promotion and protection of human rights. The Maldives was part of a Core Group tabling a resolution on Human rights and the environment and it was also a member besides Singapore of a Core Group which prepared the resolution on Promoting the Voluntary Technical Assistance Trust Fund to support the participation of Least Developed Countries and Small Island Developing States in the work of the Human Rights Council. The most divisive thematic resolution for the Asia-Pacific Group during this session was the one submitted by Egypt, Saudi Arabia, Jordan, Morocco, and Algeria on the Effects of terrorism on the enjoyment of all human rights. The resolution requested the Advisory Committee of the HRC to prepare a report on the negative effects of terrorism on the enjoyment of all human rights and fundamental freedoms, with a particular focus on economic, social, and cultural rights. The EU could not support the text because it believes that the discussion on the impact of terrorism on the economy is not within the mandate of the HRC. Japan and Korea supported the EU’s position, while Kyrgyzstan and Mongolia abstained. The other members of the Asia-Pacific Group supported the resolution. Three resolutions are traditionally voted on a North–South division line. The first on Foreign debt tabled by Cuba was supported by the whole Asia-Pacific Group except Japan and Korea, who voted against the resolution. For the second on Human rights and unilateral coercive measures, tabled by Venezuela on behalf on NAM, besides the objection of Korea and Japan, the other Asian members of the HRC supported the initiative. The third was on Illicit funds tabled by Egypt, Libya, and Tunisia on behalf of the African Group. Japan and Korea abstained and the others supported the resolution.165

165 Ibid.

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The resolution run by Norway on the Mandate of the Special Rapporteur on the situation of human rights defenders still provokes heated discussions within the HRC as it is about the philosophy member states have regarding civil society. Only Japan, Korea, and the Maldives became cosponsors of the resolution. The level of tension about the question was well marked by the fact that there were five amendments to the resolution tabled by Russia, China, Cuba, and Pakistan. They intended to delete any reference to the term “human rights defenders” and downgrade the reference to the work of the Special Rapporteur. China, India, Qatar, Saudi Arabia, and the UAE supported the amendments, while Indonesia, Iraq, Japan, Kyrgyzstan, Mongolia, and Korea voted against them. The Philippines and Bangladesh abstained. 6.6.2

Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)

During the presentation of his annual report, the High Commissioner for Human Rights, Mr. Zeid Ra’ad Al Hussein focused on the cooperation with UN human rights mechanisms. He highlighted three disgraceful incidents of personal threats and insults directed against Special Procedures mandate holders.166 All of them affected Asian states: the Special Rapporteur on Myanmar; the Special Rapporteur on summary executions, in the context of discussions on the Philippines; and the Special Rapporteur on Iran. In the context of cooperation with HRC Special Procedures, Indonesia was mentioned with 21 pending requests for visits by the Special Procedures, and that the country has received only two mandate holders since 2008. Nepal has 16 pending requests for visits, while the Philippines has accepted 3 visits in the past 5 years but 23 other requests are pending. It was also quite striking that according to the High Commissioner 74 states have reports to UN treaty bodies overdue by a decade or longer and that only 33 states—including 8 states from Asia (Bhutan, China, Kuwait, Kyrgyzstan, Mongolia, Singapore, Turkmenistan, and Uzbekistan)—fully up to date with their reporting. 166 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights Council 35th Session, Opening Statement. https://www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=21687&LangID=E.

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Country Situations During the thirty-fifth session, three resolutions on country situations were adopted by a vote. The resolution on Syria was adopted by 27Y:8N:12A. It was not a surprise that China, Iraq, Kyrgyzstan, and the Philippines did not support the initiative submitted by a Core Group (USA, France, UK, Germany, Italy, Kuwait, Morocco, Jordan, Saudi Arabia, and Turkey) while Japan, Qatar, Korea, Saudi Arabia, and the UAE supported it. The other members of the Asia-Pacific Group abstained.167 It was also not surprising that the Asia-Pacific Group was divided concerning the resolution on Belarus , which was finally adopted with a vote of 18Y:8N:21A. Japan and Korea supported the resolution submitted by the EU, while China, India, and the Philippines voted against it. The other members of the group abstained.168 It was more interesting that almost the same division existed in case of the resolution on Ukraine, which was submitted by Ukraine. China and the Philippines voted against it, while only Iraq, Japan, and the Republic of Korea supported it. The other members of the Asia-Pacific Group abstained. This resolution on technical assistance was adopted with a vote of 22Y:6N:19A.169 Regarding the human rights situation in Asia, it is important to note that there was a Joint Statement led by the UK on the Maldives. The statement which was co-sponsored by 35 member states—none of them were from Asia—was a response to the deteriorating political and human rights situation in the country, which resulted in attacks against HRDs or the arrest of opposition leaders. Thematic Issues It was not surprising that because most of the controversial thematic resolutions during this session reflected North–South political differences, the Asian members of the Council voted almost unanimously in all of them (International solidarity, Right to peace, International cooperation,

167 UNHRC. (2017). Report of the Human Rights Council on its 35th Session, A/HRC/35/2. pp. 58–59. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessi ons/Session35/Pages/35RegularSession.aspx. 168 Ibid., pp. 59–60. 169 Ibid., p. 79.

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Protection of family, and Contribution of development ). It was no coincidence that Japan and the Republic of Korea were the only two states not supporting these initiatives. Japan voted against four resolutions and abstained in the case of the one regarding international cooperation. Korea voted against three initiatives and abstained from the ones on Protection of the family and the contribution of development. Let us look at the controversial parts of each initiative to better understand the Asian position. The resolution on Human rights and international solidarity tabled by Cuba was not supported by Western states; they were of the view that international solidarity as a moral principle and political commitment does not meet the requirement of a legal concept and human rights. The resolution was adopted by a vote of 32Y:15N:0A. Regarding the resolution on the Promotion of the right to peace, also run by Cuba, the main concern of the EU was that there is no internationally agreed definition of “peace” and there is no legal basis for this right. The resolution was adopted by a vote of 32Y:11N:4A. The resolution on the Enhancement of international cooperation in the field of human rights tabled by Venezuela on behalf of NAM was not supported by the EU; that the EU’s position is that international cooperation cannot substitute for national efforts in promoting and protecting human rights; and that human rights protection cannot rely only on the enhancement of international cooperation. The resolution was adopted by a vote of 32Y:3N:12A. The resolution on the Protection of the family: role of the family in supporting the protection and promotion of human rights of older persons, which was submitted by a Core Group, including among other countries: Bangladesh, China, Qatar, Saudi Arabia, and Egypt on behalf of the Arab Group, was adopted by a vote of 30Y:12N:5A. The main concern of the EU was that the initiative did not recognize that “in different cultural, political and social systems, various forms of the family exist”. The last thematic resolution on The contribution of development to the enjoyment of all human rights marked an important development; it was China’s first own initiative in the HRC. The resolution was adopted by a vote of 30Y:13N:3A. The main concern of the EU regarding this initiative is that, in their assessment, it seeks to place development above human rights.170

170 Ibid., pp. 31–53.

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As a last thematic initiative important from an Asian point of view was the resolution tabled by a Core Group led by Japan (other members of the group were Brazil, Fiji, Ethiopia, and Morocco): Elimination of discrimination against persons affected by leprosy and their family members. 6.6.3

Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)

In his regular update, the High Commissioner for Human Rights, Mr. Zeid Ra’ad Al Hussein focused on the lack of consistency between many states’ internal and external human rights policy that undermines the credibility of the Council.171 As in his previous statements, Asian states were often referred to because of their serious human rights problems. Among the 40 states mentioned by the High Commissioner, several were from Asia: Myanmar, the DPRK, India, Pakistan, Sri Lanka, the Philippines, the Maldives, Cambodia, and Viet Nam. China was praised regarding the drafting of its first national law regarding detention centres to improve standards of treatment, oversight, and accountability. Country Situations The HRC extended the mandate of the independent international factfinding mission on Myanmar without a vote.172 It was the first time that a mandate was extended by a procedural decision and not by a resolution. During this same session, the Chair of the independent factfinding mission presented an oral update on the situation in Myanmar. Marzuki Darusman reported mass killings, excessive use of force, torture, ill-treatment, sexual and gender-based violence, and landmine-killings in his verbal update.173 The Asia-Pacific Group was divided on all the four country-specific resolutions adopted by the Council by a vote. On the resolution on Syria, as usual China, Iraq, and the Philippines voted against, while Japan, Qatar, the Republic of Korea, Saudi Arabia, and the UAE supported

171 Universal Rights Group. (2017). Report on the 36th Session of the Human Rights Council. https://www.universal-rights.org/urg-human-rights-council-reports/rep ort-36th-session-human-rights-council/. 172 Ibid., pp. 49–50. 173 Ibid.

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it. The other members of the group (Bangladesh, India, Indonesia, Kyrgyzstan, and Mongolia) abstained.174 The Council renewed the Mandate of the Commission of Inquiry on Burundi for one year by a voted resolution (22Y:11N:14A) submitted by the EU.175 From the Asia-Pacific Group, Japan, Mongolia, and the Republic of Korea supported the renewal of the mandate; China, Saudi Arabia, and the UAE were against it; while the others abstained. Tunisia, on behalf of the African Group, submitted a competing resolution on the Mission by the Office of the United Nations High Commissioner for Human Rights to improve the human rights situation and accountability in Burundi (23Y:14N:9A). Not surprisingly, this resolution received broader support from the Asia-Pacific Group as Bangladesh, China, India, Iraq, Saudi Arabia, and the UAE supported it, while only the Republic of Korea voted against it. The other members, including Japan, abstained during the vote. The last country-specific resolution adopted by a vote (45Y:1N:1A) during this session was the one on Technical assistance and capacitybuilding in the field of human rights in the DRC. Besides the one “no” vote by the USA, the Republic of Korea alone abstained among the HRC members.176 Finally, the Council adopted a resolution without a vote on the Advisory services and technical assistance for Cambodia tabled by Japan. It extended the mandate of the Special Rapporteur by two years and requested him to report to the HRC at its thirty-ninth and forty-second sessions.177 Thematic Issues The Asian members of the HRC voted in a quite coherent way concerning most of the sensitive thematic resolutions: Mercenaries, Democracy and equitable international order, Right to development; Right of peasants, Composition of the staff of the OHCHR, Unilateral coercive measures, From rhetoric to reality. Eleven members of the Asia-Pacific Group supported

174 Ibid., pp. 48–49. 175 Ibid., pp. 47–48. 176 Ibid., pp. 168–169. 177 Ibid., pp. 170–171.

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all of the initiatives; only Japan and the Republic of Korea voted differently. Japan objected to all the resolutions, except for the one entitled From rhetoric to reality: a global call for concrete action against racism, racial discrimination, xenophobia, and related intolerance and the one on the Rights of peasants, where Tokyo abstained. The Korean voting pattern was almost identical with the Japanese one, with the sole exception that Seoul also abstained concerning the resolution on the Right to development.178 There were two resolutions where the Asia-Pacific Group was even more divided for obvious reasons as they were not issues based on North–South ideological differences. They were the one on the Death penalty and the resolution on Cooperation with the United Nations, its representatives, and mechanisms in the field of human rights.179 On the first one, tabled by a Core Group including Mongolia from the AsiaPacific Group, Bangladesh, China, India, Iraq, Japan, Qatar, Saudi Arabia, and the UAE voted against the resolution, while Kyrgyzstan and Mongolia supported it. Indonesia, the Philippines, and the Republic of Korea abstained during the vote (27Y:13N:7A). According to Johnson and Zimring, political evolution and not cultural factors led many countries in Asia to follow an abolitionist policy.180 They rejected the common argument which attributed to the rejection of the abolition of the death penalty to Asian values. In their view, democratic governance and the promotion of human rights have an important role in this process. On the second one, tabled by a Core Group including Fiji from the Asia-Pacific Group, Iraq, Japan, Mongolia, and the Republic of Korea supported the resolution, while the others abstained (28Y:0N:19A). However, before this final vote, there were 19 hostile amendments, three of which were adopted by the HRC. China and India were key players in this attack against the resolution, besides Russia, Egypt, and Venezuela.

178 Ibid., pp. 30–42. 179 Ibid., pp. 54–62. 180 Schabas, E. (2010). Is Asia the Last Bastion of Capital Punishment? A Review of

David T. Johnson and Franklin E. Zimring, The Next Frontier: National Development, Political Change and the Death Penalty in Asia. New York: Oxford University Press. pp. 198, 200.

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6.7

Conclusion

Our intellectual journey through the largest, most populous, and probably most diverse continent indicates that there are no cultural, religious, or historical reasons why Asia could not accept internationally recognized human rights norms and standards. The fact that except for Thailand, China, and Japan, all countries of the region were colonies in some period of their history has resulted in a strong adherence to the principles of sovereignty and non-interference. This phenomenon, combined with nationalism and the decision by most states to choose economic modernization without Westernization, has shaped the human rights diplomacy of Asia. After careful examination of the three dominant religions of the region, it seems that the teachings of Confucianism, Buddhism, and Hinduism are also reconcilable with the notion of human rights. The promotion of the so-called Asian values in the 1990s was a reaction to Western pressure to comply with international human rights standards and served to challenge the moral foundations of the West, contributing to the nation-building efforts of the political elite which also used the concept to safeguard its position. Their argument emphasizing the primacy of economic development over the protection and promotion of human rights was seriously undermined during the Asian financial crisis of 1997. Those values promoted under the “Asian” label can also be found in Europe and have an important place in European conservative traditions. It is not a coincidence that in Europe the concept of human rights and sovereignty developed in parallel and as a result, the sovereign state was not just the potential violator, but also a powerful protector of human rights. It also protected the weaker states against their hegemonic neighbours. This did not happen in Asia, where they adopted the European concept of sovereignty without reservation and without the human rights component. These developments shaped the human rights diplomacy of most Asian states. This has resulted in the reserved position of most Asian states towards international judicial organs, based on their conservative understanding of the principles of non-interference and national sovereignty. Similar factors contributed to the fact that presently Asia is the only continent without a regional human rights organization. The development of regional economic arrangements and sub-regional human rights initiatives is already preparing the ground for an Asian human rights organization

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by strengthening regional diplomatic, economic, and financial connections and building trust among the countries of Asia. In this context, we should acknowledge that there is an increasing cooperation between the ASEAN and the UN on human rights issues. For example, the ASEAN Intergovernmental Commission on Human Rights had collaborated with a number of Special Rapporteurs of the United Nations Human Rights Council, including the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment.181 Looking at the voting behaviour of the Asia-Pacific Group in the HRC, it is detectable that Japan, and a few decades later the Republic of Korea, decided to choose economic development with a Western-style political modernization resulting in the adoption of European human rights philosophy in most spheres of their life. Their voting positions during the period in question were almost identical, mostly supporting the EU line. Although the other members of the Group voted in a quite predictable way concerning most of the resolutions, certain issues divided the Group. One of the most prominent was the question of the death penalty. Another divisive issue was the protection of HRDs and reprisals against those cooperating with the UN where several countries from the Group did not follow the mainstream negative approach of the region. These examples indicate that Asia is no longer a monolithic region from a human rights point of view, and although there is a long way to go, there is a fair chance that in the medium term, many Asian states will follow a much more open and cooperative position towards the international protection and promotion of human rights.

181 Workshop on regional arrangements for the promotion and protection of human rights, A/HRC/34/23. Report of the United Nations High Commissioner for Human Rights. p. 4.

CHAPTER 7

Human Rights Diplomacy of Muslim States at Multilateral Forums

There is no compulsion where the religion is concerned. Quran 2/256 He who desires a religion other than Islam, never will it be accepted of him; and in the Hereafter, he/she will be among the losers. Quran 3/85

7.1

Introduction

States discussed in this chapter are members of the Organisation of Islamic Cooperation (OIC).1 The first part of the chapter briefly introduces the 1 OIC Member State countries: •Islamic Republic of Afghanistan •Republic of Albania •People’s Democratic Republic of Algeria •Republic of Azerbaijan •Kingdom of Bahrain •People’s Republic of Bangladesh •Republic of Benin •Brunei-Darussalam •Burkina-Faso •Republic Of Cameroon •Republic of Chad •Union of The Comoros •Republic of Cote D’ivoire •Republic of Djibouti •Arab Republic of Egypt •Republic of Gabon •Republic of The Gambia •Republic of Guinea •Republic of Guinea-Bissau •Republic of Guyana •Republic of Indonesia •Islamic Republic of Iran •Republic of Iraq• Hashemite Kingdom of Jordan •Republic of Kazakhstan •State of Kuwait •Kyrgyz Republic •Republic of Lebanon •Great Socialist People’s Libyan Arab Jamahiriya •Malaysia •Republic of Maldives •Republic of Mali •Islamic Republic of Mauritania •Kingdom of Morocco

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6_7

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history of the Muslim world, providing an adequate contextual framework to understand the development of Islamic thoughts regarding the role of the individual in society and their relationship to the main values behind the modern notion of human rights. Given the importance of religion in the Muslim world, this section also introduces the sources of Islamic law to show the complex nature of the Shari’a, and the different and frequently conflicting interpretations of the Quran and their compatibility with international human rights standards. The chapter then demonstrates how this intellectual heritage and tradition have affected the human rights diplomacy of Muslim states carried out in the most important multilateral forums, starting with the regional bodies like the OIC and the Arab League, followed by global forums, like the UN Security Council, the UNGA, finally, the HRC. In the case of the HRC, the chapter follows the work of Muslim states during the three 2017 sessions, but in certain cases earlier and later examples are mentioned to understand the priorities of this group of countries. Concerning the work of the UNGA, the drafting of the UDHR and other early developments, like Resolution 181 on the Future Government of Palestine, are included because of their significance.

7.2

Islam and Human Rights 7.2.1

Historical Context

Islam is the second most populous religion in the world, with more than 1.5 billion followers, second only to Christianity.2 As it emerged in the seventh century, it is considered the youngest among world religions.3 Islam is much closer to Judaism and Christianity (all have their roots in

•Republic of Mozambique •Republic of Niger •Federal Republic of Nigeria •Sultanate of Oman •Islamic Republic of Pakistan •State of Palestine •State of Qatar •Kingdom of Saudi Arabia •Republic of Senegal •Republic of Sierra Leone •Republic of Somalia •Republic of The Sudan •Republic of Suriname •Syrian Arab Republic •Republic of Tajikistan •Republic of Togo •Republic of Tunisia •Republic Of Turkey •Republic of Turkmenistan •Republic of Uganda •UAE •Republic of Uzbekistan •Republic of Yemen Source: http://www.oicexchanges.org/members/oic-member-state-countries. 2 Islam Religion. https://www.britannica.com/topic/Islam. 3 Holt, P. M., Lambton, A. K. S. & Lewis, B. (eds). (2008). The Cambridge History

of Islam Volume 2A The Indian Sub-Continent, South-East Asia, Africa and the Muslim West. Cambridge, UK: Cambridge University Press. p. ix.

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the Middle East), than to other great religions, like Buddhism, Hinduism, or Confucianism (Chapter 6). Like Judaism, Islam believes in divine law that regulates all aspects of human life, and like Christianity, it is characterized by a messianic “triumphalism”; both Christians and Muslim believe in the superiority of their religion over the others.4 What made Islam special is that there was no separation of religion and state. Muslims became a religious and a political community at the same time, with a Prophet as head of state.5 As emphasized by Bernard Lewis, terms like lay, temporal, or secular were alien to Islam and until modern times their equivalents did not even exist in the Arabic language.6 However, most Muslim societies no longer conform to this ideal and have separate state and religious institutions.7 Mohammad was born in Mecca in 570 A.D. He was God’s last prophet. He was visited by Archangel Gabriel who ordered him to recite the words of Allah.8 Mohammed received his first revelation at the age of 40 and went on receiving revelations for another 23 years. When he died in 632 A.D, he had completed his spiritual mission as the divine revelations stopped. Since these revelations provided the law of the community, they had to be recorded in written form. This happened under the third caliph,9 Uthman. This is the Quran, the word of God. It contains stories similar to those found in the Old Testament and the New Testament. The task which remained for the Muslim community was to spread the revelation of God throughout the world.10 The most significant division within Islam to date occurred over the succession of Mohammad. Shiite Muslims, who represent about 10– 15% of Muslims, see the first three caliphs as illegitimate successors of 4 Lewis, B. (2003). The Crisis of Islam, Holy War and Unholy Terror. New York, USA: Random House Trade Paperbacks. pp. 4–5. 5 Ibid., p. 6. 6 Ibid., p. 10. 7 Lapidus, I. M. (2002). A History of Islamic Societies. Cambridge, UK: Cambridge

University Press. p. 815. 8 BBC. (2011). Prophet Muhammad. http://www.bbc.co.uk/religion/religions/islam/ history/muhammad_1.shtml. 9 A politico-religious successor to the Islamic prophet Muhammad and a leader of the entire ummah (community). 10 Lewis, B. (2003). The Crisis of Islam, Holy War and Unholy Terror. New York, USA: Random House Trade Paperbacks. p. 7.

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Mohammad; only caliph Ali and his descendants are true successors. The Sunnis, however, see the first three caliphs as legitimate successors. In the early period of Islam, non-aggression treaties were allowed and concluded with non-Muslim societies to secure Muslim communities against outside threats.11 As Islam considers the other monotheistic religions, Judaism and Christianity, as forms of the same Abrahamic religion (distorted by people), Jews and Christians as “Peoples of the Book” (i.e. having received divine revelations that were recorded in a written form) were always treated favourably compared to other religions (the pagans). Both enjoyed better treatment under Islam than either Jews or Muslims did in Christian societies at that time.12 The excellent relationship between the Muslim communities and the Christian Kingdom of Abyssinia is a well-known example.13 Since divine revelations gave guidance to the community both in war and in peace, there are/were Quranic passages that could be quoted in both cases: those promulgating a tolerant attitude towards the believers of other—monotheistic—religions, and those that call for armed resistance. For example, the Quran was often used to justify armed resistance against European (non-Muslim) powers.14 There was also a visible contradiction among those parts of the Quran which recognized other monotheistic communities as worthy of salvation through adherence to their own traditions, while other parts considered Islam—especially their own interpretation of Islam—as the only source of salvation.15 (Heresy, consequently, is as much a part of Islam as of Christianity.) The openness to religious pluralism—according to Ali Akbar Alikhani—is a consequence of the fact that it is stipulated in the Quran that if God had so wished, He could have placed all human beings in a single nation, sharing the same belief, but God intentionally did not do so.16 Consequently, no state has the right to force another 11 Kissinger, H. (2014). World Order. London, UK: Penguin Press. p. 104. 12 History of the World. (n.d.). History of Islam. http://www.historyworld.net/wrl

dhis/PlainTextHistories.asp?groupid=509&HistoryID=aa56>rack=pthc. 13 Khatab, S. & Bouma, G. D. (2007). Democracy in Islam. Abingdon, UK: Routledge. p. 33. 14 Sachedina, A. (2009). Islam and the Challenge of Human Rights. Oxford, UK: Oxford University Press. p. 193. 15 Ibid., p. 203. 16 Alikhani, A. A. (2016). Fundamentals of Islam in International Relations. In: D.

Abdelkader, N. Manabilang Adiong, & R. Maurielle (eds), Islam and International

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state or nation to follow the path it prefers. On the other hand, the Quran makes it very clear that Islam is the perfect religion, but this does not prevent its believers respecting other religions (which in practice meant Judaism and Christianity) too.17 On careful research of the Quran, Alikhani was of the view that all verses regarding war and jihad served defensive purposes and none of them encouraged violence or war.18 Early Islamic texts state that enemies should not prevent each other from having access to water or food. Gene W. Heck also emphasized that the Quran restricts the use of force to self-defence and the “expansion of the propagation of God’s Word”. The latter could be achieved by missionary means as well. He also underlined that the actual conduct of war was regulated by certain rules, restricting hostilities to the battlefield and combatant soldiers.19 During the Age of the Caliphates (600–1050), Muslims occupied a large part of the Middle East, including Syria, Palestine, Iran, and Iraq. They also conquered territories in Europe, Africa, and Asia, including former empires, with their well-established religious, military, and administrative practices. The caliphate system evolved into the Ottoman Empire by the mid-sixteenth century, with its capital in Istanbul. At that time, there were two other important Muslim empires. The Safavid dynasty of Persia represented the Shiite Muslims, and the Moghul Empire in the East, covered a large part of India led by a Muslim minority.20 One of the reasons for the Ottoman Empire’s unprecedented success was the institution of military slavery, which meant that non-Muslim children were taken from their parents, enslaved, and forcibly converted to Islam.21 The whole system was based on meritocracy, providing the best soldiers and officers for the empire. However, since no Muslims could be legally enslaved, this military and civilian bureaucracy was only open to Relations, Contributions to Theory and Practice. Basingstoke, UK: Palgrave Macmillan. p. 9. 17 Ibid., p. 11. 18 Ibid., pp. 12–14. 19 Heck, G. W. (2007). When Worlds Collide: Exploring the Ideological Foundations of the Clash of Civilizations. Lantham, MD: Rowman and Littlefield Publishers. p. 34. 20 History of the World. (n.d.). History of Islam. http://www.historyworld.net/wrl dhis/PlainTextHistories.asp?groupid=509&HistoryID=aa56>rack=pthc. 21 Fukuyama, F. (2011). The Origins of Political Order: From Prehuman Times to the French Revolution. New York, NY: Farrar, Straus and Giroux. p. 191.

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foreigners who were loyal to the rulers rather than to any tribe. The key feature of the institution was that neither the land nor the offices they were given belonged to them; they could not be inherited.22 The institution of military slavery represented the proper solution for state-building in the context of the strong Arabic tribal traditions “saved Islam itself as a major world religion”.23 During its golden age, the Ottoman Empire was bigger and stronger than all of the Western European states combined. In line with its concept of a single universal empire, it refused to accept European states as either legitimate or equal.24 However, after the Ottoman Empire reached its military limits and could no longer expand its territories, its gradual weakening began. It had to conclude strategic alliances to maintain maximum freedom of action. In the late nineteenth century, the Ottoman Empire as the sick man of Europe was part of the Westphalian international order as a provisional member, trying to maintain the European balance of power.25 The Sykes-Picot Agreement of 1916 between Britain and France determined the division of the Middle East even before the end of World War I. As a result, Syria and Lebanon belonged to France, while Britain received influence over Mesopotamia, later Iraq. Palestine and Transjordan became British mandates. In 1917, the British government issued the Balfour Declaration, supporting the establishment of a Jewish state in Palestine, but not prejudicing the civil and religious rights of non-Jewish communities in the territory.26 As a reward of World War I, France and Britain were entitled to mandates and protectorates and were given the right to draw and redraw the boundaries in the region by creating new nation-states.27 Although not all Muslim territories were colonized, most of them found themselves in a dependent situation, in a political, cultural, or

22 Ibid., p. 190. 23 Ibid., p. 192. 24 Kissinger, H. (2014). World Order. London, UK: Penguin Press. pp. 108–110. 25 Ibid., p. 110. 26 Ibid., p. 112. 27 Milton-Edwards, B. (2018). Contemporary Politics in the Middle East. Cambridge,

UK: Polity Press. p. 21.

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economic sense.28 In 1924, the secular Turkish state abolished the caliphate system, the main symbol of Pan-Islamic unity.29 Nayef Al-Rodhan identified seven turning points in the history of the Islamic world during the last hundred years. 1. 1915–1922: Arab world was divided by colonial powers. 2. 1948 British withdrawal from Palestine and the emergence of the Palestinian question. 3. The 1967 war and the Arab defeat by Israel. 4. The 1979 revolution in Iran and its after-effects on regional politics. 5. 1987–1991: a critical period when the Palestinian intifada and the first Gulf War started. 6. 2001: the 9/11 attacks in the USA and the US-led invasion of Afghanistan and subsequently Iraq.30 7. 2010: the Arab Spring which was mentioned by him as the seventh turning point. According to Al-Rodhan, the Arab Spring led to one of the most significant and negative transformations in the region since decolonization. However, in most countries, this decolonization process only meant the replacement of European dominance by a national(ist) authoritarian regime.31 As a consequence of the failure of these secular, authoritarian regimes, often dominated by the military, the religious discourse became the main tool of the opposition, not like in Europe where it was a secular

28 Encyclopedia Britannica. (n.d.). Islamic History from 1683 to the Present: Reform, Dependency, and Recovery. https://www.britannica.com/topic/Islamic-world/Islamic-his tory-from-1683-to-the-present-reform-dependency-and-recovery. 29 Kissinger, H. (2014). World Order. London, UK: Penguin Press. p. 112. 30 Al-Rodhan, N. (n.d.). The Arab-Islamic World and Global Geopolitics: Endoge-

nous vs. Exogenous Factors. In: The Age of Perplexity: Rethinking the World We Knew. https://www.bbvaopenmind.com/en/articles/the-arab-islamic-world-and-glo bal-geopolitics-endogenous-vs-exogenous-factors/. 31 Esposito, J. L. (n.d.). Contemporary Islam: Challenges and Opportunities: Reformation or Revolution. http://www.oxfordislamicstudies.com/article/book/islam-978019 5107999/islam-9780195107999-chapter-15.

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one.32 John L. Esposito listed those crises which were the main catalysts of the rise of political Islam: • The 1967 Arab–Israeli war (Six-Day War) in which Israel decisively defeated the combined Arab armies of Egypt, Syria, and Jordan, and transformed the liberation of Palestine into a transnational Islamic issue. • The destruction of the Indonesian Communist Party (at the time, the largest in the entire non-communist world) and the establishment of an aggressively secular nationalist ‘New Order’ government in Indonesia in 1965–1966. • The 1969 Malay-Chinese riots in Kuala Lumpur, which reflected growing tensions between the Malay Muslim majority and a significant Chinese minority. • The Lebanese Civil War (1975–1990), which led to the emergence of major Shia groups. • The Iranian Revolution of 1978–1979, a historic event which wielded a long-term global impact and crystallized views in the West of Islam as the new global threat, successor to the fallen Soviet Union.33 During the Cold War period, the Middle East also became a battlefield for the USA and the USSR. Washington was interested in establishing a political and strategic relationship with Israel and it had a strong economic interest in the Arabian Peninsula as one of the main oil importers of the world. At the same time, the Soviet Union had established political alliances in the region but was not as active and successful from an economic point of view as Washington.34 Since World War II, the most visible and significant crisis of the region, almost permanently dominating the international news, was the Arab– Israeli conflict. The Israeli victory in 1967 against the joint Arab forces 32 Esposito, J. L., Sonn, T. & Voll, J. O. (Eds). (2016). Islam and Democracy After

the Arab Spring. Oxford, UK: Oxford University Press. p. 12. 33 Ibid., p. 2. 34 Al-Rodhan, N. (n.d.). The Arab-Islamic World and Global Geopolitics: Endoge-

nous vs. Exogenous Factors. In: The Age of Perplexity: Rethinking the World We Knew, Chapter 3. https://www.bbvaopenmind.com/en/articles/the-arab-islamic-world-and-glo bal-geopolitics-endogenous-vs-exogenous-factors/.

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was one of the most important causes of the appearance of political Islam. The political sensitivity of the conflict is well demonstrated by the fact that Egypt was expelled from the Arab League because of its peace treaty with Israel in 1978.35 There were only a few occasions when this conflict was overshadowed: the Iraq-Iran War, the 9/11 attacks, the Arab Spring, the Syrian war, and the appearance of the Islamic State. 7.2.2

Sources of Islamic Law

The common misunderstanding about Islamic law, about its wholly divine and immutable nature, is the consequence of not making a distinction between the sources and methods of Islam. In practice, it means that Shari’a (right path) refers to the “corpus of the revealed law as contained in the Quran and in the authentic Traditions (Sunnah) of the Prophet Muhammad”36 and as such it is textually immutable. Fiqh (understanding), on the other hand, refers to methods of law, the human interpretation of the Shari’a. Fiqh is much bigger in volume than Shari’a, but this jurisprudence is not a divine part of the Shari’a laid down in the Quran and in the Sunnah.37 The Quran is “the word of God” revealed to Muhammad over some 23 years. From more than 6000 verses, according to jurists, 350–500 have legal content.38 The Sunnah, as the other main source of the Shari’a, contains a lifetime of sayings and deeds of the Prophet, called the hadith. In cases of conflict between the two main sources, the Quran prevails and it is important to note that not all parts of the traditions are considered authentic by Muslims. Fiqh is the corpus of human interpretations of the divine law; consequently, it contains extrapolated rulings, which, therefore, gives the option of adaptation to new, modern circumstances. Thus it provides the opportunity to eliminate possible contradictions between international human rights standards and

35 Esposito, J. L., Sonn, T. & Voll, J. O. (Eds) (2016). Islam and Democracy After the Arab Spring. Oxford, UK: Oxford University Press. p. 10. 36 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK: Oxford University Press. pp. 33–34. 37 Khatab, S. & Bouma, G. D. (2007). Democracy in Islam. Abingdon, UK: Routledge. p. 26. 38 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK: Oxford University Press. p. 35.

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Islamic jurisprudence.39 Besides the Quran and the Sunnah as embodied in the hadith, Shari’a recognizes two other sources of law, the ijtihad (analogical reasoning) and the ijma or consensus of the ulama (body of religious legal scholars).40 7.2.3

Compatibility of Islam and International Human Rights Standards

The notion of the modern nation-state spread globally in the nineteenth century and brought with it the concept of human rights. This strong, “centralized power over the society” and this “state monopoly of control over resources” never existed before in the Islamic world.41 As underlined by Ann Elizabeth Mayer, the emergence of human rights protection was the result of the associated legal institutions which were also transplanted as an integral part of the model of the modern nation-state.42 Muslims in this context should try to distinguish between the Western dominance which they felt throughout their history and the universality of human rights as part of the achievements or the results of cultural modernity. The confusion of the two can lead to civilizational clashes. Abdullahi Ahmed An-Na’im described this situation very bluntly, emphasizing that “those Muslims who claim to be rejecting human rights because they are Western should also reject territorial states, international trade and financial institutions, and economic and other relations that are premised on Western models”.43 The question of the compatibility between Islam and the international human rights regime is vital as it concerns the life of 1.5 billion believers of the world’s fastest-growing religion. The Arab–Israeli war of 1967, generally considered as the final blow to Arab nationalism, exposed the

39 Sachedina, A. (2010). Islam and the Challenge of Human Rights. Oxford, UK: Oxford Scholarship Online. p. 30. 40 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle East. Boulder, CO: Lynne Rienner Publishers. p. 68. 41 Mayer, A. E. (1999). Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Press. p. 9. 42 Ibid., pp. 9–10. 43 An-Na’im, A. A. (2009). Islam and the Secular State. Harvard University Press.

p. 115.

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issue in a new context.44 With the new waves of Palestinian refugees, it reflected the “failure of secular nationalists and states to protect their people, both culturally and materially”.45 The problem becomes even more complex by the fact that Islam never treated religion or politics as two separate institutions.46 Fred Halliday gave four possible responses to this question.47 • Islam is compatible with international human rights standards. • Human rights can only be fully realized within the framework of Islamic law. • Human rights are part of an imperialistic agenda. • Islam is incompatible with international human rights standards. Mashood A. Baderin also mentioned a fifth possible response, according to which international human rights represent a hidden anti-religious agenda.48 In this context, it is worth noting—as emphasized by Bassam Tibi—that neither those rejecting human rights as part of a Western conspiracy nor those establishing exclusively Islamic human rights schemes are supportive of the substance of human rights.49 According to Mayer, the authors of these Islamic human rights schemes “uphold the primacy of the revelation over reason and none endorse reason as a source of law”.50 In her view, they could have acknowledged those parts of the Islamic heritage which are in line with international human

44 Mayer, A. E. (1999). Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Press. p. 1. 45 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle East. Boulder, CO: Lynne Rienner Publishers. p. 21. 46 Ibid., p. 12. 47 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK:

Oxford University Press. p. 13. 48 Ibid., p. 13. 49 Tibi, B. (1994). Islamic Law/Shari’a, Human Rights, Universal Morality and

International Relations. Human Rights Quarterly, 16:286–287. 50 Ibid., p. 297.

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rights standards, such as the “concern for human welfare, justice, tolerance, and egalitarianism”. Instead, they diluted human rights to legitimize the opposition of the elite concerning human rights.51 Anver M. Emon, Mark S. Ellis, and Benjamin Glahn list four widely used methods to address the question of compatibility: 1. Identifying those parts of Islamic law which are compatible with international human rights standards, while considering the incompatible areas of Islamic law outdated. 2. Stating that Islamic law provided human rights protection long before it appeared in the Western doctrine. 3. There is no common ground between the two, based upon a cultural relativist position. 4. Emphasizing the importance of a dialogue about a common ground at an abstract level, by listing the core values of both and the common ground exists where the two lists overlap. They also followed a fifth, genealogical approach, paying more attention to the “historical, intellectual and political contours of each tradition”, while searching for a common ground (“clearing ground” approach).52 The importance of a dialogical approach was also one of the main messages of the regional meeting of the CoE in 1993, preparing the World Conference on Human Rights: By tracing the linkages between constitutional values on the one hand and the concepts, ideas and institutions which are central to Islam or the Hindu-Buddhist tradition or other traditions, the base of support for fundamental rights can be expanded and the claim to universality vindicated. The Western World has no monopoly or patent on basic human rights. We must embrace cultural diversity, but not at the expanse of universal minimum standards.53 51 Mayer, A. E. (1999). Islam and Human Rights. Tradition and Politics. Boulder, CO: Westview Press. p. 192. 52 Emon, A. M., Ellis, M. S. & Glahn, B. (2012). From ‘Common Ground’ to ‘Clearing Ground’: A Model for Engagement in the 21st Century. In: A. M. Emon, M. S. Ellis, & B. Glahn (eds), Islamic Law and International Human Rights Law: Searching for Common Ground? Oxford, UK: Oxford University Press. pp. 2–4. 53 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK: Oxford University Press. pp. 5–6.

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The 4th Principle of the Rome Declaration on Human Rights in Islam also encourages “dialogue amongst cultures and civilizations in a manner that would contribute to a better understanding of human rights”.54 This “common discourse about ethics” became even more pressing due to the “increasing role of Islam in world politics and the increased presence of Muslims in Europe and in North America” which made the interactions between the two civilizations/cultures more intense.55 On the other hand, Sayed Khatab and Gary D. Bouma believe that this struggle is not between civilizations but more within the civilizations themselves as in both Islam and Christianity some forces oppose and some support the extension of human rights.56 In Islam, it means that the old traditionalists are usually trying to “Islamize modernity”, while the reformers are trying to modernize Islam. The starting point should be that the main objective of the international human rights system is to provide adequate protection for the individual against the misuse of state authorities and to enhance their dignity.57 Therefore, only those solutions which are willing and able to provide this protection are sustainable. In Islamic traditions, however, human rights are entirely owned by God; individuals can only enjoy them in their relationship with God and within the believers’ community. The focus is on social justice not on individual human rights.58 In this context, Mashood A. Baderin made it clear that the position which holds that the individual has no rights but just obligations to God is against the spirit and the overall objective of Shari’a.59 This is the case even though the concept of a “rights-bearing citizen” is missing from the Islamic legal discourse. However, it does not mean the rejection of individual rights and the existence of individual human rights does not 54 Ibid., pp. 5–6. 55 Tibi, B. (1994). Islamic Law/Shari’a, Human Rights, Universal Morality and

International Relations. Human Rights Quarterly, 16:298. 56 Khatab, S. & Bouma, G. D. (2007). Democracy in Islam. Abingdon, UK: Routledge.

p. 3. 57 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK: Oxford University Press. p. 14. 58 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle East. Boulder, CO: Lynne Rienner Publishers. p. 72. 59 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK: Oxford University Press. p. 15.

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result in the negation of religious commitments and obligations.60 We should see that the most pressing human rights problems faced by Muslim societies today are not related to “cultural preferences or religious-cultural authenticity”, but to the serious human rights violations committed by their governments, regardless of their cultural or ideological facade.61 Despite these facts and considerations, it is important to see that the acceptance of international human rights norms is more likely to happen if they are presented to the Muslim community as something consistent with their belief in Islam.62 This aim can be achieved by a dual approach. First, there is a need for an internal discussion among Muslims. Then a cultural dialogue should take place between Muslims and non-Muslims. Some Muslim researchers who want to reform Islam say that the objective of the first process should be the reinterpretation of certain parts of the Shari’a, including the one dealing with the status of women and freedom of religion.63 Mahmood Monshipouri goes further and asks for a “total cultural renovation along with an enlightened interpretation of the Shari’a” as the best safeguard for the human rights of Muslim societies.64 Without that enlightened interpretation of the Shari’a, the “fate of human rights in the Muslim world will remain in the hand of autocratic secular regimes”.65 According to other liberal Muslim thinkers like Abdullahi AnNa’im (Sudan) or Muhammed S. al-Ashmawi (Egypt) the application of the Shari’a would contribute to the establishment of totalitarian regimes; Shari’a is “not the appropriate vehicle for Islamic self-determination”.66

60 Sachedina, A. (2009). Islam and the Challenge of Human Rights. Oxford, UK: Oxford University Press. p. 151. 61 Afshari, R. (1994). An Essay on Islamic Cultural Relativism in the Discourse of

Human Rights. Human Rights Quarterly, 16:236, 249. 62 An-Na’im, A. A. (2015). Islam and Human Rights. In: J. Witte & M. C. Green, Religion and Human Rights: An Introduction. Oxford, UK: Oxford Scholarship Online. p. 58. 63 Ibid. 64 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle

East. Boulder, CO: Lynne Rienner Publishers. p. 29. 65 Ibid., p. 64. 66 Tibi, B. (1994). Islamic Law/Shari’a, Human Rights, Universal Morality and

International Relations. Human Rights Quarterly, 16:279.

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Regarding the real role of the Shari’a in the life of Muslim societies, most researchers emphasize that during the colonial period Shari’a principles were replaced by European legislation; the main areas remaining are family and civil law where the Shari’a still plays a significant role.67 This colonial legal order continued to operate in the new nation-states as well; there was no return to the pre-colonial administration of justice. Consequently, from a strictly legal point of view, the Shari’a does not have any effect on Muslim states when deciding to ratify or implement international human rights treaties.68 However, the sociological and moral challenge remains: Does the Muslim public feel that certain human rights norms are not consistent with the Shari’a? Muslim states, when they fail to perform their obligations under international human rights treaties, are not referring to the Shari’a as the reason; they object to certain interpretations (and not the letters of the text) which do not take Islamic values into account.69 This is a sign of the global acceptance of the notion of human rights. It does not mean, however, that there are not several different interpretations regarding the implementation of certain human rights provisions. In the interests of the better protection of human rights in the Muslim world, an enlightened interpretation of the Shari’a should be encouraged in line with the point made by Fouad Ajami: “Civilizations do not control states, states control civilizations”.70 The selective quotation of sources and historical evidence to support one position in an isolated issue is not the right approach.71 Reforms should aim at providing sufficient reasoning in Muslim societies for the existence of human rights, in the shadow of a culture that emphasizes responsibilities, without mentioning

67 An-Na’im, A. A. (2015). Islam and Human Rights. In: J. Witte & M. C. Green, Religion and Human Rights: An Introduction. Oxford, UK: Oxford Scholarship Online. p. 63. 68 Ibid., p. 67. 69 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK:

Oxford University Press. p. 5. 70 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle East. Boulder, CO: Lynne Rienner Publishers. p. 65. 71 An-Na’im, A. A. (2015). Islam and Human Rights. In: J. Witte & M. C. Green, Religion and Human Rights: An Introduction. Oxford, UK: Oxford Scholarship Online. p. 65.

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rights.72 However, to have a substantive discussion among Muslims on the real meaning of cultural relativism and on the ways to address the existing human rights concerns of the Islamic world, legitimate governments elected through free and fair elections are needed in the region. It is not Islam which prevents democratic developments and the (better) protection of human rights in the Muslim world but political rulers who use carefully selected parts of Islam to maintain their oppressive rule and to strengthen their legitimacy.73 The main source of violence in the region is not Islam, but the economic and political failures of corrupt regimes.74

7.3

Regional/Identity-Based Organizations 7.3.1

League of Arab States

The League of Arab States (LAS) in an intergovernmental organization which was founded in 1945 and based in Cairo. It currently has 22 member states. Syria’s membership was suspended in 2011. Palestine, which is recognized by the organization as a state, is also a member.75 All members are also members of the OIC. As many Arab states, including a few founding members of the LAS, were not independent in 1945, the first of the three main goals of the organization was the promotion of independence from foreign rule of Arab lands. The second aim was to strengthen cooperation among the emerging independent Arab states, and the third was to oppose the efforts of Britain and the international community to establish a Jewish entity or state in Palestine.76 In this context, the original impetus to create an Arab organization (“an Arab

72 Sachedina, A. (2010). Islam and the Challenge of Human Rights. Oxford, UK: Oxford Scholarship Online. p. 12. 73 Esposito, J. L., Sonn, T. & Voll, J. O. (eds). (2016). Islam and Democracy After the Arab Spring. Oxford, UK: Oxford University Press. p. 8. 74 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle East. Boulder, CO: Lynne Rienner Publishers. p. 92. 75 Hausler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander, M., Ho Tu Nam, N., Okeowo, A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. European Commission. pp. 99–100. 76 Gunn, J. & Lagresa, A. (2016). Engagement with Regional Multilateral Organizations. Case Study: OIC and League of Arab States. Frame, Fostering Human Rights Among European Policies. European Commission. pp. 7–8.

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United Nations”) came from the British who encouraged this cooperation so that Arabs could protect their interests in a more efficient way against the Axis powers.77 The LAS, like the OIC cannot be identified either geographically (by a region), or topically (on an economic or policy issue). Both have an element of identity as the organizing principle: the Arab race/ethnicity/culture in the case of the LAS, and religion for the OIC.78 As the Pact of the League of Arab States had been concluded before the first universal human rights instruments, like the UDHR or the Genocide Convention, it is not surprising that there is no reference to human rights in the Pact. There was also no reference to religion, Islam, or God; the most important leaders of the Arab independence movement in the 1940s and 1950s were secular leaders, like Gamal Abdel Nasser.79 The Pact focuses on issues such as self-determination, sovereignty, and noninterference in the internal affairs of states. In 2015, there was an initiative to include human rights in the Pact, but it was rejected. Consequently, non-interference remains the guiding principle of the organization even today.80 The first LAS human-rights-related body was the Arab Permanent Committee on Human Rights (APCHR) established in 1968 by the Council of the LAS, immediately after the 1967 war was lost against Israel.81 The emphasis, however, was more on the protection of the interests of the Arab people and not on the rights of individuals living in member states. The main topics of the Committee were described by Boutros Boutros Ghali: “rights of combatants in the event of war or armed conflict in accordance with the provision of the Geneva Conventions of 1949; the legitimacy of the struggle waged by the Palestinian

77 Hausler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander, M., Ho Tu Nam, N., Okeowo, A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. European Commission. p. 110. 78 Ibid., p. 100. 79 Ibid., pp. 113–114. 80 Gunn, J., & Lagresa, A. (2016). Engagement with Regional Multilateral Organizations. Case Study: OIC and League of Arab States. Frame, Fostering Human Rights Among European Policies, European Commission. p. 8. 81 Ibid., p. 11.

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Resistance and the protection of holy and archaeological sites, in accordance with the principles established by international law”.82 Despite its particular focus, the APCHR prepared several important regional human rights documents, like the Draft Declaration for an Arab Charter of Human Rights of 1971, the Declaration of the Rights of Arab Citizens (1964), and the most recent Draft Charter on Human and Peoples’ Rights in the Arab World of 1986. However, the Committee mainly used the cause of human rights—which was and still is a serious concern—as a political weapon to challenge Israel, in particular, about their treatment of Arab citizens living in the territories occupied by Israel.83 Responding to criticisms regarding the political nature of the APCHR in 2006, the Council created a Specialized Subcommittee of Experts of the APCHR, which was revised and renamed in 2010 to Committee of Experts, consisting of seven independent experts.84 In 1992, a Human Rights Department was established within the General Secretariat, providing logistical and administrative support to the APCHR as a non-policy-making body. In the 1970s, as a result of the resurgence of Islam in everyday life in general, and political Islam in particular, the LAS started to refer more and more often to Islam and the Shari’a as a means to understand and subscribe to international human rights standards as happened at the time of the creation of the OIC.85 Consequently, the LAS used religious reasons to not apply international standards, while also referring to international standards regarding human rights violations committed by Israel.86 The LAS took its most significant step towards the establishment of a modern human rights regime in 2004, when it adopted the Arab Charter on Human Rights (ACHR), which came into effect in 2008. (A 1994 82 O’Sullivan, D. (1998). The History of Human Rights Across the Regions: Universalism vs Cultural Relativism. The International Journal of Human Rights, 2(3):22, 32. 83 Ibid., p. 33. 84 Hausler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander,

M., Ho Tu Nam, N., Okeowo, A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. European Commission. pp. 123–124. 85 Ibid., p. 118. 86 Ibid., p. 8.

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attempt to adopt an ACHR had failed to get the sufficient number of ratifications and never entered into force.87 ) The first and only independent expert committee of the LAS was the Arab Human Rights Committee (AHRC), which came into being in 2009, following the entry into force of the ACHR. The 2014 Rules of Procedure of the Committee recognized its competence to interpret the Arab Charter.88 The last institution worth mentioning in this context is the Arab Court of Human Rights, which is not yet operational due to the lack of sufficient ratifications. The Statute of the Court was approved by the LAS on 7 September 2014, the result of 20-year process. The Statute has been heavily criticized by researchers because the Court would have limited competence only and be restricted to interstate cases; individuals would have no access to the Court.89 Consequently, its role of protecting the human rights of individuals living in the Arab world would be limited. 7.3.2

Organisation of Islamic Cooperation

The Islam Summit conference in September 1969 in Rabat, decided to set up the OIC, with a permanent secretariat in Jeddah, Saudi Arabia. (According to the Charter, it is temporarily based in Jeddah, until it can move to the “liberated” city of Jerusalem.90 ) In reality, the OIC was established formally in 1972, with the adoption of the Charter of the Islamic Conference, which came into force in 1974.91 Although there is a certain rhetorical support for human rights in the Charter, the main focus is on state sovereignty and non-interference in the internal affairs of other member states. One of the most visible characteristics of the Charter 87 Emon, A. M., Ellis, M. S. & Glahn, B. (2012). From ‘Common Ground’ to ‘Clearing Ground’: A Model for Engagement in the 21st Century. In: A. M. Emon, M. S. Ellis, & B. Glahn (eds), Islamic Law and International Human Rights Law: Searching for Common Ground? Oxford, UK: Oxford University Press. p. 48. 88 Hausler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander, M., Ho Tu Nam, N., Okeowo, A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. European Commission. p. 124. 89 Magliveras, K. & Naldi, G. (2016). The Arab Court of Human Rights: A Study in Impotence. https://www.persee.fr/doc/rqdi_0828-9999_2016_num_29_2_2248. 90 Ibid., p. 141. 91 Ibid., p. 138.

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is its language about Islam. In its preface, it says it will “preserve Islamic spiritual, ethical, social and economic values, which will remain one of the most important factors of achieving progress for mankind”.92 The OIC (until 2011, the Organization of the Islamic Conference) is the second-largest intergovernmental organization after the UN with its 57 member states. It includes 30% of UN members, 25% of the world’s surface, and 22% of the global population.93 It is interesting to note that in nine OIC member states, Muslims do not represent the majority of society and that India, with the third largest Muslim community, is not a member of the organization, although Delhi frequently expresses its wish to join.94 Neither the rules of acceptance nor the rules of expulsion are clear. For example, Egypt was expelled in 1979 because it signed a peace treaty with Israel.95 It was readmitted 10 years later in 1989. The main human rights body within the OIC is the Independent Permanent Human Rights Commission, which appeared first in the 2008 OIC Charter, but only formally launched its activity in 2011. Its mandate is to “promote the civil, political, social and economic rights enshrined in the organization’s covenants and declarations and in universally agreed human rights instruments, in conformity with Islamic values”. The reference to “Islamic values” gives a possible understanding, according to which the Commission may promote international human rights to the

92 Emon, A. M., Ellis, M. S. & Glahn, B. (2012). From ‘Common Ground’ to ‘Clearing Ground’: A Model for Engagement in the 21st Century. In: A. M. Emon, M. S. Ellis, & B. Glahn (eds), Islamic Law and International Human Rights Law: Searching for Common Ground? Oxford, UK: Oxford University Press. p. 19. 93 Petersen, M. J. (2012). Islamic or Universal Human Rights? Danish Institute for International Studies. http://pure.diis.dk/ws/files/66504/RP2012_03_Islamic_human_r ights_web.pdf. 94 Emon, A. M., Ellis, M. S. & Glahn, B. (2012). From ‘Common Ground’ to ‘Clearing Ground’: A Model for Engagement in the 21st Century. In: A. M. Emon, M. S. Ellis, & B. Glahn (eds), Islamic Law and International Human Rights Law: Searching for Common Ground? Oxford, UK: Oxford University Press. pp. 15–16. 95 Hausler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander, M., Ho Tu Nam, N., Okeowo, A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. European Commission. p. 138.

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extent they are consistent with Islam. The positive reading of that qualification is that Islam is fully consistent with human rights; consequently, it should be promoted by the Commission.96 There were a few obvious reasons behind the establishment of the Commission. The OIC wanted to participate more actively in the international community. There was a need for more legitimacy and support from member state populations. It reflected the internal changes of power relations, namely the increasing influence of moderate member states. Finally, the election of Ekmeleddin Ihsanoˇglu as Secretary-General97 in 2005 made human rights an important part of OIC policy.98 The Commission’s mandate is not only limited from a substantive perspective, but also from a procedural one, as it does not have enforcement or sanctioning power; it just has an advisory function. Furthermore, the 18 members of the Commission who are elected for three years and can be re-elected for a further three-year term, are nominated by governments; civil servants are not excluded from nomination.99 Before turning to the question of Islamic human rights instruments, one institution in a pending status should be mentioned: the International Islamic Court of Justice. The Statute was adopted in 1987 by the Islamic Summit, but so far it has not been ratified by the number of member states required for its entry into force. Although there is no reference to human rights in its statute, it could play an important role in bringing OIC documents into harmony with international law and other relevant international standards.100

96 Ibid., p. 142. 97 Ekmeleddin Ihsanoˇ glu as Secretary-General took several initiatives to reform the

OIC’s agenda and strategies in various fields, with the motto: “modernization and moderation”. He initiated schemes of action with regard to promotion of understanding, tolerance, principles of human rights, democracy, and establishment of dialogue between the OIC’s member states and with other countries and communities of the world. 98 Petersen, M. J. (2012). Islamic or Universal Human Rights? Danish Institute for International Studies. pp. 10–11. http://pure.diis.dk/ws/files/66504/RP2012_03_ Islamic_human_rights_web.pdf. 99 Hausler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander, M., Ho Tu Nam, N., Okeowo, A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. European Commission. p. 143. 100 Ibid., p. 144.

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7.4 7.4.1

Islamic Human Rights Instruments

Universal Islamic Declaration of Human Rights (1981)

The drafting of the Universal Islamic Declaration of Human Rights (UIDHR) was done under the auspices of the London-based Islamic Council and then presented to UNESCO. The main philosophy behind the Declaration is that the concept of human rights is a divine one and “human dignity cannot be reduced to a series of secular norms”.101 Iran was the major force behind the drafting of the Declaration. Two years after the Iranian Revolution, they made it very clear at the UN that according to their view, the UDHR represented a “secular interpretation of the Judeo-Christian tradition which could not be implemented by Muslims”, consequently, a separate document needed to be drafted based on the Islamic principles. Certain Islamic intellectuals even claimed that “the Shari’a preceded the United Nations by 1400 years, in setting forth the true rights of the human person”.102 The UIDHR expresses reservations against UDHR articles concerning security, torture, marriage, freedom of thought, and freedom of expression.103 7.4.2

Cairo Declaration on Human Rights in Islam (1990)

The Cairo Declaration on Human Rights in Islam was adopted on 5 August 1990 by the OIC. The Declaration—in line with traditional Islamic thought—stipulates that all rights are derived from God and that the Shari’a is the “only source of reference” for the protection of human

101 Olayemi, A. A. M., Alabi, A. M. H. & Buang, A. H. (2015). Islamic Human Rights Law: A Critical Evaluation of UIDHR and CDHRI in Context of UDHR. Journal of Islam, Law and Judiciary, 1(3):30– 31. https://www.researchgate.net/publication/281120061_Islamic_Human_Rights_Law_ A_Critical_Evaluation_of_UIDHR_CDHRI_In_Context_Of_UDHR. 102 O’Sullivan, D. (1998). The History of Human Rights Across the Regions: Universalism vs Cultural Relativism. The International Journal of Human Rights, 2(3):34. 103 Emon, A. M., Ellis, M. S. & Glahn, B. (2012). From ‘Common Ground’ to ‘Clearing Ground’: A Model for Engagement in the 21st Century. In: A. M. Emon, M. S. Ellis, & B. Glahn (eds), Islamic Law and International Human Rights Law: Searching for Common Ground? Oxford, UK: Oxford University Press. p. 113.

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rights in Islamic states.104 Abdul Azeez Maruf Olayemi, Abdul Majeed Hamzah Alabi, and Ahmad Hidayah Buang explain the adoption of the Cairo Declaration—together with the UIDHR—and the “inconsistency of the philosophy of the Universal Declaration of Human Rights”. They are of the view that the secular philosophy behind the UDHR cannot represent fully the interests of the Muslim people and most Muslim countries were not present when the UDHR was adopted in 1948. The two Islamic human rights documents are, therefore, complementary to the UDHR and provide the religious foundation for individual human rights.105 The Pakistani Ambassador Masood Khan, the Permanent Representative to the UN Office in Geneva in 2007, also emphasized this complementary nature of the Cairo Declaration, contrary to the frequent opinion by human rights experts that it would create an “alternative” human rights catalogue.106 The ambassador emphasized that the Cairo Declaration addressed the religious and cultural specificity of the Muslim countries. Although, the fact that there is no single reference to the UDHR and that all rights in the Declaration are subject to the Shari’a limits them substantially; gender equality and freedom of religion go against this complementary nature. However, the lack of any enforcement mechanism or interpretative organ rendered the Cairo Declaration a dormant document, very rarely referred to by individuals or by the OIC itself.107 As the success of the OIC, in 1997 the OHCHR included the Cairo Declaration in Human Rights: A Compilation of International Instruments: Volume II. Regional Instruments, which was considered by certain states and scholars as a sign of international acceptance.108 The Cairo Declaration expressed reservations against UDHR articles regarding freedom of movement, asylum, freedom of expression,

104 Olayemi, A. A. M., Alabi, A. M. H. & Buang, A. H. (2015). Islamic Human Rights Law: A Critical Evaluation of UIDHR and CDHRI in Context of UDHR. Journal of Islam, Law and Judiciary, 1(3):29–32. 105 van Hüllen, V. (2015). Just Leave Us Alone: The Arab League and Human Rights, p. 146. https://core.ac.uk/download/pdf/159465650.pdf. 106 International Humanist and Ethical Union (IHEU). (2008). Islamic Law vs Human Rights. https://iheu.org/islamic-law-vs-human-rights/. 107 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK: Oxford University Press. p. 228. 108 International Humanist and Ethical Union (IHEU). (2008). Islamic Law vs Human Rights. https://iheu.org/islamic-law-vs-human-rights/.

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freedom of assembly, and public office.109 It showed more concern about restrictions on the state dealing with the opposition, while the UIDHR stressed the rights relating to political opposition. In a way, the Cairo Declaration was a response to the UIDHR which was drafted by Islamist opposition groups, many of whom were in exile.110 7.4.3

Arab Charter on Human Rights (2004)

The first ACHR was adopted by the Council in 1994, but never entered into force as it did not receive the sufficient number of ratifications. It also received harsh criticism from different human rights organizations. The International Commission of Jurists, for example, highlighted that its Preamble was not based on universal principles, but instead referred to the Cairo Declaration, which was considered by the Jurists as a document threatening the intercultural consensus the international human rights instruments were based on.111 The Charter—according to the Jurists— gives a second-class status to non-Muslim and non-Arab peoples living in the region. The right to be free from slavery and the right to a fair trial by an independent judiciary are missing from the text. The Charter fails to recognize the right to adopt a religion of one’s choice. Finally, the list of non-derogable rights is shorter than international standards would require and the Charter lacks any monitoring and reporting mechanism. In 2003 the Council of the LAS tasked the Arab Standing Committee on Human Rights to modernize the Charter, and bring it in line with international standards.112 However, the draft prepared by the Committee did not result in any improvement in the Charter. To address 109 Emon, A. M., Ellis, M. S. & Glahn, B. (2012). From ‘Common Ground’ to

‘Clearing Ground’: A Model for Engagement in the 21st Century. In: A. M. Emon, M. S. Ellis, & B. Glahn (eds), Islamic Law and International Human Rights Law: Searching for Common Ground? Oxford, UK: Oxford University Press. pp. 113–114. 110 Ibid., p. 114. 111 International Commission of Jurists. (2003). Arab Charter on Human Rights

Must Meet International Standards. https://www.icj.org/arab-charter-on-human-rightsmust-meet-international-standards/. 112 Zerrougui, L. (2008). The Arab Charter on Human Rights. Lecture Given as Part of the High-Level Panel on the 60th Anniversary of the Universal Declaration of Human Rights at the Alumni Conference on the 25th Anniversary of the Human Rights Centre at the University of Essex, 4–6 July 2008, pp. 8–9. http://projects.essex.ac.uk/ehrr/v7n2/ zerrougui.pdf.

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this situation, an expert group of six leading scholars was appointed. Five of the six accepted this assignment and met at the end of 2003. It was the first time that NGOs were also involved in the drafting process. The experts decided not to address certain parts of the original draft, like the one which refers to Zionism as racism, as they did not want to spark heavy political debates within the LAS, but they signalled these inconsistencies in a separate letter addressed to the Secretary-General of the LAS and the Standing Committee.113 The final text of the Charter adopted in May 2004 by the Arab Summit in Tunis was different in certain aspects from the one suggested by the expert group, but it was still a major improvement compared to the original text of the 1994 Charter. This “modernized” text came into force in 2008, after receiving the sufficient number of ratifications. This is the first document by the LAS that officially accepts international human rights standards, in conformity with the universality and indivisibility of human rights.114 This modernized version of the Charter contains a wider list of non-derogable rights, and also includes the right to a fair trial and the right to be free from slavery.115 Unfortunately, the new Charter was unable to provide a meaningful independent monitoring body. The Committee established by the Charter had a very weak mandate. It could only discuss and provide comments regarding governmental reports on the implementation of the Charter and lacked any serious enforcement mechanism.116 It is telling, however, that most of the state parties to the Charter cannot even meet these very light obligations regarding preparing reports. As noted by Mohammed Fadel, these kinds of Arab human rights mechanisms could only be efficient and effective after the democratization of the Arab world, a world

113 Ibid., p. 10. 114 Hausler, K., Kállai, P., Kortvelyesi, Zs., Majtényi, B., Sosa, L., Timmer, A., Killander,

M., Ho Tu Nam, N., Okeowo, A., Gunn, J. & Lagresa, A. (2016). Human Rights, Democracy and Rule of Law: Different Organizations, Different Conceptions? Frame, Fostering Human Rights Among European Policies. European Commission. pp. 127–128. 115 Zerrougui, L. (2008). The Arab Charter on Human Rights. Lecture Given as Part of the High-Level Panel on the 60th Anniversary of the Universal Declaration of Human Rights at the Alumni Conference on the 25th Anniversary of the Human Rights Centre at the University of Essex, 4–6 July 2008, p. 13. 116 Fadel, M. (2014). Is There a Future for an Arab Human Rights Mechanism? Not Without Democracy. Netherlands Quarterly of Human Rights, 32(1):5–6.

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that currently regards democratization as a threat to human rights, which would inevitably empower illiberal elements of the society.117 Although the Arab Charter is still far from perfect and does not meet international standards in all aspects, it represents a significant step towards the development of an effective human rights mechanism in the Arab world.

7.5

Muslim Human Rights Diplomacy at Global Multilateral Forums 7.5.1

United Nations General Assembly

Seven Asian and African states that were among the 51 founding members118 present in 1945 at the establishment of the UN now members of the OIC: Egypt, Iran, Iraq, Lebanon, Saudi Arabia, Syria, and Turkey. In the course of the decolonization process, UN membership was the first and most visible sign of a country’s independence. The UN gave moral and political legitimacy to the former colonial states in urgent need of it. The current 57 members of the OIC represent 29.5% of the 193 members of the United Nations. United Nations General Assembly Resolution 181 on the Future Government of Palestine The adoption of one of the most important UNGA resolutions still having a significant impact on world politics and in particular on the Muslim world took place a little more than two years after the establishment of the UN. On 29 November 1947, the UNGA passed Resolution 181 entitled Future government of Palestine 119 based on the Partition Plan, calling for the partition of the British–ruled Palestine Mandate into a Jewish state and an Arab state. The resolution was adopted with 33 votes120

117 Ibid., pp. 5–7. 118 The Charter was signed on 26 June 1945 by the representatives of 50 countries;

Poland signed on 15 October 1945. There were 51 founding members in 1945. http:// www.un.org/depts/dhl/unms/founders.shtml. 119 The text of the resolution. https://unispal.un.org/DPA/DPR/unispal.nsf/0/7F0 AF2BD897689B785256C330061D253. 120 The following 33 states supported the UNGA resolution on the Partition Plan: Australia, Belgium, Bolivia, Brazil, Byelorussian S.S.R., Canada, Costa Rica,

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in favour, 13 against, and 10 abstentions.121 The Zionist movement officially accepted the Partition Plan. However, all ten Muslim states voted against the resolution, alongside Cuba, Greece, and India. The abstaining states were mostly Latin American members of the UN, such as Argentina, Chile, Columbia, El Salvador, Honduras, and Mexico, as well as China, Ethiopia, the UK, and Yugoslavia. The Partition Plan was based on the principle that both peoples (Jews and Arabs) living in the territory of Palestine were entitled to national independence and, therefore, to the establishment of their state by adopting a democratic form of governance and guaranteeing the rights of national minorities.122 Muslim opponents of the Partition Plan were of the view that “Jews were a religious community rather than a people, and consequently they were not entitled to a state of their own”.123 Two reports were prepared by the UN Special Committee on Palestine (UNSCOP) for the discussion of UNGA Resolution 181. A minority report arguing for a federative solution with one single state was supported by Yugoslavia, Iran, and India. Finally, the majority report by Canada, Czechoslovakia, Guatemala, the Netherlands, Peru, Sweden, and Uruguay was adopted, which emphasized that the Belfour Declaration and the Mandate involved international commitments to the Jewish people as a whole. The most important reason for suggesting the twostate solution was inspired by the reality on the ground, namely, the existence of the two peoples in Palestine, whose claims were both valid but seemingly irreconcilable.124 UNSCOP took into account the fact that the space to be allocated to the Jewish state should be able to absorb Czechoslovakia, Denmark, Dominican Republic, Ecuador, France, Guatemala, Haiti, Iceland, Liberia, Luxemburg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland, Sweden, Ukrainian S.S.R., Union of South Africa, USA, USSR, Uruguay, and Venezuela. https://www.mfa.gov.il/mfa/foreignpolicy/peace/ guide/pages/un%20general%20assembly%20resolution%20181.aspx. 121 Encyclopedia Britannica. (n.d.). United Nations Resolution 181. https://www.bri tannica.com/topic/United-Nations-Resolution-181. 122 Yakobson, A. & Rubinstein, A. (2010). Israel and the Family of Nations: The Jewish Nation-State and Human Rights. Abingdon, UK: Routledge. p. 2. 123 Ibid., pp. 15–16. 124 Yakobson, A. & Rubinstein, A. (2010). Israel and the Family of Nations: The Jewish

Nation-State and Human Rights. Abingdon, UK: Routledge. pp. 17–19.

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future Jewish immigrants and therefore they received more than 50% of the territory, despite the demographic proportions in the area (650,000 Jews and 1,200,000 Arabs). The Arab states—contrary to the two solutions mentioned—wanted to have one single Arab state in the territory with a Jewish minority. According to this scenario, immigration to the country would have been controlled by the government of this Arab state. Jamal Husseini, VicePresident of the Arab Higher Committee for Palestine, suggested during the debate in 1947 that Palestine would be established on democratic lines and the Arab state would respect human rights and the rights of all minorities, including the Jewish population.125 As this position was not reconcilable with any of the Committee’s plans, no other consolidated proposal was submitted to the UNGA as an alternative to the Partition Plan. The chances for adopting the Arab proposal were not strengthened by the Nazi past of the recognized leader of the Palestinian Arabs, the Grand Mufti of Jerusalem Haj Amin Al-Husseini. The Arab states often used the argument during the discussion that the existence of Israel would break up the territorial continuity of the Arab world and as an “alien body” in the region would undermine stability in the Middle East, deteriorate the Arab–Jewish relationship,126 and strengthen anti-Semitism in the region.127 The final adoption of the Partition Plan by the required two-thirds majority was largely due to the support of the USSR, followed by the other members of the Communist bloc.128 This decision, surprising perhaps in light of the Communist Party’s old opposition to Zionism, was maybe inspired by the wish to weaken the British Empire and to expel it from Palestine.

125 Ibid., pp. 28–33. 126 Not surprisingly there were riots against the Jews in Egypt, Syria, Iraq, and other

Arab states after the adoption of the Partition Plan. 127 Yakobson, A. & Rubinstein, A. (2010). Israel and the Family of Nations: The Jewish Nation-State and Human Rights. Abingdon, UK: Routledge. pp. 44–52. 128 Ibid., p. 21.

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Universal Declaration of Human Rights Among the 58 states who negotiated the UDHR, the first129 and till now one of the most influential human rights documents, there were 20 states from Latin America, four from Africa, and 14 from Asia. Ergo only 20 states belonged to the European and Western World. The prevailing view among states and international lawyers is that “the norms of the UDHR have become binding as part of customary international law, legal principles of the so-called civilized nations” even though several states abstained during its adoption. According to Charles Norchi, the UDHR “represents a broader consensus on human dignity than any single culture or tradition”.130 In the context of this chapter, it should be also mentioned that of the 58 UN member states present in 1948 during the adoption of the UDHR, ten are now OIC members (Afghanistan joined the UN in 1946; Pakistan and Yemen in 1947). From these ten states, only Saudi Arabia abstained, and Yemen failed to vote on 10 December 1948.131 The other eight states supported the adoption of the UDHR. Cultural relativists challenged the UDHR on several grounds. In 1977, Jamil Murad Baroody, the Saudi delegate to the UN, explicitly criticized the UDHR claiming that it embodied “an exclusively Western approach to the human rights questions”.132 In 1984, the Permanent Representative of Iran to the UN went even further stating that the UDHR “did not accord with the system of values recognized by the Islamic Republic of Iran” and “his country would therefore not hesitate to violate its prescriptions”.133 Mahathir bin Mohamad, the Prime Minister of Malaysia in 1997, urged the UN to mark the fiftieth anniversary of the UDHR by revisiting its contents as the human rights norms contained therein appear 129 If we do not count the Genocide Convention, which was adopted on 9 December 1948, one day before the adoption of the UDHR. 130 Ayton-Shenker, D. (1995). The Challenge of Human Rights and Cultural Diversity. United Nations Background Note, DPI/1627/HR-March, p. 2. 131 Equal Rights Trust. (2016). Global Citizenship Commission, The Universal Declaration of Human Rights in the 21st Century. A Living Document in a changing World. NYU Global Institute for Advanced Study. https://www.equalrightstrust.org/ertdocume ntbank/Brown-Universal-Declaration-Human-Rights-21C.pdf. 132 Lakatos, I. (2018). Thoughts on Universalism Versus Cultural Relativism, with Special Attention to Women’s Rights. Pécs Journal of International and European Law, I:6, 8. 133 Burke, R. (2010). Decolonization and the Evolution of International Human Rights. Philadelphia, PA: University of Pennsylvania Press. p. 142.

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to focus excessively on individual rights while neglecting the rights of society. Makau Mutua highlighted that many articles of the UDHR echo the US Constitution and the jurisprudence of Western European states. He said that this was due to a dominance of the West in the early UN, and even most of the Latin American delegates shared a Western point of view in this regard. In 1944, the American Law Institute issued the Statement of Essential Human Rights, which was strongly influenced by Latin American lawyers; this document had a serious impact on the text of the UDHR. During the debate on the Draft Declaration in the UNGA Third Committee chaired by Charles Malik from Lebanon—after it had been completed by the CHR—over one-third of the proposed amendments came from four nonWestern states, including two Muslim states: Cuba, Panama, Lebanon, and Egypt.134 Charles Malik reported to the UNGA that the draft UDHR received wide support among member states, as indicated by the fact that 88.08% of the 1233 individual votes cast had been affirmative, while only 3.73% were negative; 18 articles were adopted without any opposition.135 Finally, in the context of this research, the Saudi abstention on the UDHR should be mentioned. The position of the Saudi delegation can be explained by two reasons. They could not support the wording of Article 16 on equal marriage rights and they objected to Article 18 stipulating the right “to change his religion or belief”.136 Baroody argued that such sentiments had led to crusades and religious wars, charging that “throughout history, missionaries had often abused their rights by becoming the forerunners of political intervention and there were many instances where peoples had been drawn into murderous conflict by the missionaries’ efforts to convert them”.137 In his statement, he never referred to Islamic doctrine or the prohibition against apostasy. However, later it was considered by many that Article 18 would run against Islamic 134 Lakatos, I. (2018). Thoughts on Universalism Versus Cultural Relativism, with Special Attention to Women’s Rights. Pécs Journal of International and European Law, I:9. 135 Morsink, J. (1999). The Universal Declaration of Human Rights: Origins, Drafting and Intent. Philadelphia, PA: University of Pennsylvania Press. p. 11. 136 Ibid., p. 24. 137 Waltz, S. E. (2004). Universal Human Rights: The Contribution of Muslim States.

Human Rights Quarterly, 26:815–817.

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precepts. This understanding of the article was not shared by several Muslim delegations and during the vote on this paragraph four states abstained, and none opposed. Regarding Article 16, Baroody suggested replacing the term “equal rights” with “full rights as defined in the marriage laws of their country”. He was of the view that there should not be uniform standards, but that each country should govern marriage rights itself. As a response to his suggestion, the representative of Pakistan, Shaista Ikramullah, stated that equal rights do not mean identical rights and that the difference in religion can be a legal obstacle to marriage.138 Although none of these proposals was adopted, Muslim states supported the final draft of the UDHR, except for Saudi Arabia. Role of Muslim Delegations During Certain Important General Assembly Debates on Human Rights Third World countries played an important role already in the first years of the UN during the human rights discussions of the UNGA. In 1950, John Humphrey, the first director of the Human Rights Division highlighted in his diary that “the ‘backward’ countries are in revolt”, referring to the growing confidence of several Arab and Asian delegates.139 This was not surprising, given that human rights issues were one area where they could have an independent opinion, not being under pressure from the USA or the USSR.140 Western delegations agreed not to have a leading role in human rights questions if, in return, solidarity remained strong in security issues—which were considered much more important during the Cold War period. One of the most emblematic discussions which had already started in the 1940s and 50s concerned the recognition of individual petitions. A group of developing countries led by Charles Malik from Lebanon and including states like Egypt, Syria, India, Guatemala, and the Philippines, submitted several proposals on that issue.141 However, their suggestions received moderate support among Western delegations, not to mention 138 An-Na’im, A. A. (n.d.). The Position of Islamic States Regarding the Universal Declaration of Human Rights, pp. 185–186. http://www.dwc.knaw.nl/DL/publications/ PU00010805.pdf. 139 Burke, B. (2010). Decolonization and the Evolution of International Human Rights. Philadelphia, PA: University of Pennsylvania Press. p. 2. 140 Ibid., p. 7. 141 Ibid., pp. 61–69.

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the Soviet bloc. An important development happened in 1961 when the first Special Committee on Decolonization was established to monitor the implementation of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. It was followed by the creation of the Special Committee on Apartheid. Both committees were allowed to receive petitions and launch investigations. The question of individual petitions became a crucial issue regarding the first human rights instruments. While most of the Third World delegations supported the inclusion of the institution of individual petitions to the ICERD, the majority objected to the same regarding the ICCPR.142 The result is well known: the article concerning the individual petitions was moved to an Optional Protocol. The issue of petitions followed in the 1970s when there was a strong Soviet-Arab diplomatic campaign to prevent all individual communications to the then recently expanded Sub-Commission on Prevention of Discrimination and Protection of Minorities. Roland Burke highlighted the paradox in the development of the UN human rights system, namely that the Third World was much more successful in the 1960s, when most countries in Africa and Asia were dictatorships with very poor human rights records than in the 1950s when the UN was dominated by democracies. Ironically, as he put it: “…an alliance of African and Asian dictatorships facilitated the construction of a human rights system that contained the unprecedented potential for the future investigation of their own regimes”.143 It is interesting to note that in the 1950s the cultural relativist language was mainly used by Western colonial powers, which resisted extending human rights to their colonies, which were—in their view—“at the lower stage of development”. Arab states were particularly willing to modify or transform traditional culture and practices as a result of the rise of Pan-Arab nationalist governments.144 Another important discussion we should mention here is that on the post of the High Commissioner for Human Rights, which started in the mid-1960s and represented the most prolonged human rights debate in the UNGA. The post was finally created in 1993. The opposition of the

142 Ibid., p. 75. 143 Ibid., p. 90. 144 Ibid., p. 126.

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Soviet-Arab bloc concerning the post was characterized by radical cultural relativist statements, referring to states’ sovereignty, Western paternalism, and European imperialism among others.145 Baroody, the group’s spokesperson, was a Lebanese Christian representing Saudi Arabia. He was probably the most influential figure in this period regarding the UN’s human rights programme. His main credo was that in a divided world, there are no universal human rights to be monitored. In this context, he challenged the UDHR as only representing a Western approach to human rights. However, several delegations from the Third World, like Senegal and Uganda, remained supportive of the initiative despite all the cultural relativist lobbying, portraying the post of the High Commissioner as a Western initiative.146 As noted by Roland Burke, the Afro-Asian bloc was not hijacked by the Soviet Union, rather Moscow tried to exaggerate its affinities with the Third World and misused a small number of client states but never controlled the whole process. This was demonstrated by the petitions case which was finally won with Afro-Asian support against the will of the Communist Bloc.147 Finally, the UNGA adopted an important resolution148 by an overwhelming majority on 16 October 2018 temporarily granting the “State of Palestine” additional rights and privileges, allowing it to lead the biggest bloc of developing countries, at the United Nations, the G77, in 2019. As a result, Palestine’s delegates were able to co-sponsor proposals and amendments, make statements, and raise procedural motions. They held these extra rights for the duration of the state’s chairmanship of the G77. One hundred and forty-six states voted in favour of the Resolution, while only three countries—the USA, Israel, and Australia—opposed it. Fifteen countries abstained.

145 Ibid., pp. 131–137. 146 Ibid., pp. 140–141. 147 Ibid., p. 148. 148 UNGA Resolution A/73/L.5 on Chair of the G 77 for 2019. http://undocs.org/ A/73/L.5.

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7.5.2

United Nations Human Rights Treaty Bodies

It is worth analysing the cooperation by those OIC member states with UN treaty bodies who were members of the HRC in 2017. The following 13 OIC member states sat on the HRC in 2017: Albania from the EEG; Bangladesh, Indonesia, Qatar, Kyrgyzstan, UAE, Iraq, and Saudi Arabia from the Asia–Pacific Group; and Nigeria, Cote d’Ivoire, Togo, Egypt, and Tunisia from the African Group. Looking at the ratification of the eight UN human rights instruments based on the report prepared by the URG,149 the average number of ratified treaties is 6.8 in the case of HRC member states from the OIC. This is the second-lowest rate if we are comparing it with the rates of classical UN regional groups. Only the Asia–Pacific Group has a lower rate, with a 6.5 average ratification. The African Group was at 7.1, which is just a bit lower than GRULAC at 7.5, and the EEG at 7.2, and the same as WEOG. Six states (Azerbaijan, Kuwait, Kyrgyzstan, Oman, Turkmenistan, and Uzbekistan) from the OIC (Kyrgyzstan is the only member of the HRC) are fully up to date with their treaty body reporting and, therefore, they belong to an exclusive club of 33 states within the same category in the world as highlighted by the High Commissioner for Human Rights in his statement during the thirty-fifth session of the Council.150 Besides them, however, we have countries with reports overdue with 23 years (Cote d’Ivoire), 18 years (Bangladesh, Nigeria), 13 years (Egypt), and 7 years (Indonesia). The number of accepted communications procedures regarding the eight treaty bodies (there are five altogether) is very low among OIC members. Five states (Indonesia, Iraq, Qatar, UAE, Egypt) did not accept any; Saudi Arabia accepted one; Bangladesh, Kyrgyzstan, Cote d’Ivoire, and Nigeria accepted two; while Togo, Tunisia, and Albania are parties to four communications procedures.

149 Universal Rights Group. (2017). The Human Rights Council in 2017. Leadership, Resolve and Cooperation at the UN’s Main Human Rights Body. pp. 38–39, 44–45, 50–51, 55. https://www.universal-rights.org/urg-policy-reports/human-rightscouncil-2017/. 150 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights Council 35th session: Opening Statement by Zeid Ra’ad United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-access-and-lack-coo peration-un-bodies-will-not-diminish-scrutiny-states-human.

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One of the most visible signs of cultural relativism is a high number of reservations to a human rights treaty. In this context, religious beliefs play a significant role, since most of the so-called general reservations relate to certain religions. The URG prepared a significant piece of research in this regard, demonstrating that religion-based reservations account for more than 40% of all reservations.151 Not surprisingly, CEDAW has the highest number of reservations (440) with 60% influenced by religious beliefs. It is followed by the CRC, with 425 reservations; almost 50% of which are religion-based. This is not accidental, since they are so-called implementing treaties dealing with cultural and social issues, like the role of women in society or in the family, or the rights of the child. Based on their statistics, Muslim states are often the ones making this sort of reservation, but there are also reservations by Catholic majority states.152 Most of these general reservations exclude the application of the given treaty if there is a contradiction between any terms of the Convention and the norms of Islamic law. Regarding CEDAW, there were 10 religion-based reservations (Brunei, Libya, Malawi, the Maldives, Mauritania, Oman, Pakistan, Saudi Arabia, Singapore, and Tunisia), all of them are from OIC members except for Singapore and Malawi. Twelve states submitted general reservations (Afghanistan, Brunei, Djibouti, the Holy See, Iran, Kuwait, the Maldives, Mauritania, Pakistan, Singapore, Saudi Arabia, and Qatar). Except for the Holy See and Singapore, they are all OIC member states as well. There are far fewer religion-based reservations to other treaties. For example, in the case of UNCAT, only from Qatar and the Holy See, and regarding the ICERD, only Saudi Arabia. In the case of the ICCPR only Israel, Egypt, and Yemen made such a reservation. The URG research had an interesting finding regarding the Convention on the Rights of Persons with Disabilities (CRPD), namely that Muslim-majority states that made religion-based reservations to older treaties, like CEDAW or the CRC, ratified this treaty without any general reservation.153

151 Universal Rights Group. (2017). The March of Universality? Religion-Based Reservations to the Core UN Treaties and What They Tell Us About Human Rights and Universality in the Twenty-First Century. Policy Report May 2017, p. 2. 152 Ibid., p. 3. 153 Ibid., pp. 20–25.

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The research by the URG indicated other positive trends between 1991 and 2012. Nine states withdrew their religion-based general reservations to core UN human rights treaties and seven of them were OIC member states. From the 19 states that lifted their religion-based specific reservations, 17 were OIC members. It is interesting to note in that context that the UN Human Rights Committee in its General Comment 24 underlined that “…reservations may encourage states which consider that they have difficulties in guaranteeing all the rights in the Covenant nonetheless to accept the generality of obligations in that instrument. Reservations may serve a useful function to adapt specific elements in their laws to the inherent rights of each person as articulated in the Covenant. However, it is desirable in principle that states accept the full range of obligations, because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being”.154 One of the important conclusions of the URG report was that the international community should encourage domestic reflection or reform in a given country rather than engage in “top-down demands” to lift reservations at any cost; this approach can be counterproductive in many places.155 Research by Basak Cali concluded that the ratification of the ICCPR in the Middle East in most of the cases would make “empty promises in the absence of domestic incentives to reform existing legal and political structures”.156 In our context, that there are four important countries from the region who are not parties to the Covenant (Oman, Saudi Arabia, Qatar, and the UAE), although three of them (Saudi Arabia, Qatar, and the UAE) ratified the ACHR, thus choosing a sub-regional alternative to the protection of civil and political rights.157 It is telling, however, 154 UN Human Rights Committee. (1994). CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 994, CCPR/C/21/Rev.1/Add.6. https://www.refworld.org/ docid/453883fc11.html. 155 Universal Rights Group. (2017). The March of Universality? Religion-Based Reser-

vations to the Core UN Treaties and What They Tell Us About Human Rights and Universality in the Twenty-First Century. Policy Report May 2017. p. 41. 156 Cali, B. (2018). Influence of the ICCPR in the Middle East. In: D. Moeckli, H. Keller, & C. Heri, The Human Rights Covenants at 50: Their Past, Present, and Future. Oxford, UK: Oxford University Press. p. 128. 157 Ibid., p. 130.

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that all states from the region are States Parties to the ICESCR, CERD, the CRC, UNCAT, the CRPD, and (except for Iran), CEDAW. It is interesting to see that while in the 1970s most of the reservations did not refer to the Shari’a, there are frequent references in the post-1980s reservations. All Arab states provide a formal legal status to the ICCPR. However, most of the countries can be characterized by the prevalence of domestic constitutionalism and open conflicts between the ICCPR and domestic law.158 Cali mentions three possible explanations for the primacy of the domestic legal frameworks in the Middle East: the authoritarian or majoritarian political structure, the prevalence of instability and violence in the region which seriously affects considerations regarding the balance between security and human rights, and the lack of independent and impartial judicial institutions.159 7.5.3

United Nations Human Rights Council160

As mentioned in Chapter 2, the replacement of the former CHR with the HRC was mainly the result of heavy criticism about the over-politization of the work of the CHR, the composition of the Commission (human rights violators were sitting on the Commission to defend themselves), and the dominance of the West which was using double standards against the Global South, by criticizing only those states not supporting the political and economic agenda of the developed world. The creation of the Council certainly addressed part of this problem by its composition which gave almost three-quarters majority to the Global South (Asia– Pacific Group 13 seats, African Group 13 seats, GRULAC 8 seats, EEG 6 seats, and WEOG 7 seats). Consequently, no decision can be taken

158 Ibid., p. 138. 159 Ibid., pp. 147–148. 160 The following 13 OIC member states were sitting on the HRC in 2017: Albania from the EEG; Bangladesh, Indonesia, Qatar, Kyrgyzstan, UAE, Iraq, and Saudi Arabia from the Asia–Pacific Group; and Nigeria, Cote d’Ivoire, Togo, Egypt, and Tunisia from the African Group.

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without the support of the South and even Asia and Africa can pass decisions without the support of the other three regional groups. In theory, it should enhance the legitimacy of the decisions taken by the new body.161 The most interesting and complicated case among the OIC member states is Turkey, which participates fully in both WEOG and the Asia– Pacific Group, but for electoral purposes is considered a member of WEOG only.162 The situation is even more complex, given that Turkey is also a member of the European human rights organization, the CoE. The particular social situation of the country is well demonstrated by recent research that shows that despite, or as a direct result of the ongoing Islamization process, atheism is growing in Turkey.163 Before turning to the work of the HRC in 2017, it is worth examining how the Council reacted to the events of the Arab Spring in 2011. First of all, it is important to note that neither the HRC since its establishment in 2006, nor its predecessor the CHR had ever mandated a Special Rapporteur to investigate the MENA region—except the OPT— before the Arab Spring.164 Tuba Turan, on surveying CHR and HRC resolutions between 1994 and 2010 concluded that the most important human rights body of the UN never gave appropriate attention to important drivers of the Arab Spring, in particular to the poor human rights records of the MENA region. The main reason behind this unfortunate phenomenon was that both bodies were only able and willing to address gross, systemic, and widespread human rights violations and, therefore, they could not handle situations which did not reach this level of violence. It was also clear from the documents that both the OHCHR and the UNDP had limited access to the region as most states were unwilling to cooperate. Consequently, the founding principles—such as non-intervention and states sovereignty—prevented the UN effectively

161 Adam, A. (2017). Perspectives on a decade of Asian Foreign Policy at the UN Human Rights Council. Forum-Asia Working Paper Series No. 2. p. 14. https://www. forum-asia.org/?p=24828. 162 https://www.un.org/depts/DGACM/RegionalGroups.shtml. 163 Ögreten, T. (2019). Atheism Grows in Turkey as Recep Tayyip Erdogan Urges

Islam. DW Academie. https://www.dw.com/en/atheism-grows-in-turkey-as-recep-tayyiperdogan-urges-islam/a-47018029. 164 Turan, T. (2018). The UN’s Response to the Underlying Causes of the Arab Spring Before and After the Eruption of Events: A Critical Assessment of the UN’s Pursuit of Its Core Values and Purposes. Middle Eastern Studies, 54(4):683, 692.

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addressing those problems in the region which later contributed to the uprisings in 2011.165 In 2011, the OHCHR sent missions to Bahrein, Egypt, Libya, Tunisia, and Yemen to address the root causes of human rights violations. That same year, it opened a country office in Tunisia at the request of the Foreign Minister166 ; the following year, it opened an office in Yemen. Despite the technical assistance and advocacy provided by the UN, the only country where significant progress was achieved was Tunisia. A resolution was adopted in March 2011 on the cooperation between Tunisia and the OHCHR.167 On 25 February 2011, the HRC convened a special session on Libya, and by the adopted resolution it condemned the gross and systematic human rights violation, established an International Commission of Inquiry, and called on the UNGA to consider suspending Libya’s membership in the HRC. On this unprecedented decision, the UNGA suspended Libya’s membership on 1 March 2011. In September 2011, the HRC adopted a resolution suggesting the resumption of Libya’s membership, which was approved by the UNGA in November 2011.168 The HRC conducted three special sessions in 2011 on Syria and established an urgent fact-finding mission by the OHCHR. Later it established an International Commission of Inquiry, which found serious human rights violations committed by the Syrian military.169 The HRC is still adopting resolutions on Syria every year without having too much effect on the ground. In June/July 2011, the OHCHR carried out an assessment mission regarding Yemen. The report found that government security forces had used excessive force against civilians and that the government had not initiated credible independent investigations to bring the perpetrators of serious human rights violations to justice.170 However, as a result

165 Ibid., p. 693. 166 Rathgeber, T. (2012). New Prospects for Human Rights? The Human Rights Council

between the Review Process and the Arab Spring. Bonn, Germany: Friedrich Ebert Stiftung. p. 10. 167 Ibid., p. 10. 168 Ibid., p. 11. 169 Ibid. 170 Ibid., p. 12.

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of strong international pressure, the government agreed to an HRC resolution on technical assistance. Despite similarities with these three country situations, there were no resolutions on Bahrain or Egypt. The OHCHR sent a small team of senior officers to Egypt in late March 2011, but Cairo managed to avoid the adoption of any resolution. In Bahrain, an Independent Commission of Inquiry was established on the order of the Sheikh of Bahrain to investigate alleged human rights violations during and after the protests in February/March 2011. Subsequently, Bahrain received international criticism for not implementing fully the recommendations of the International Commission of Inquiry.171

7.6

Main Sessions of the Human Rights Council in 2017

7.6.1

Thirty-Fourth Session of the United Nations Human Rights Council (27 February–24 March 2017)

The human rights situation in OIC member states dominated the annual report of the High Commissioner for Human Rights. Zeid Ra’ad Al Hussein expressed his concerns about the human rights violations in Iraq, about the measures taken in Turkey under the state of emergency which appeared to target criticism of the government rather than terrorism, about violence and destruction in South Sudan, and over the serious deterioration of the human rights situation in the northern and central regions of Mali. The High Commissioner was concerned about the restrictions on religious and cultural rights in Iran. He highlighted that in Egypt, civil society, HRDs, journalists, and media professionals were being methodically silenced by arrests, prosecutions, travel bans, closure orders, and punitive financial measures. The High Commissioner emphasized that in Bahrain, the government had imposed increased restrictions on civil society and political groups since June 2016. He also expressed deep concern that four countries, China, Iran, Saudi Arabia, and Pakistan—three of which are members of the OIC—were responsible for around 90% of all executions carried out in 2016. He was 171 Turan, T. (2018). The UN’s Response to the Underlying Causes of the Arab Spring Before and After the Eruption of Events: A Critical Assessment of the UN’s Pursuit of Its Core Values and Purposes. Middle Eastern Studies, 54(4):695–696.

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also concerned that Bahrain, Gambia, Indonesia, Jordan, and Kuwait recently retreated from formal or informal commitments to moratoria on the death penalty and also the stated intention of the Maldives and Turkey to reinstate capital punishment. On the other hand, he mentioned that Togo had ratified and acceded to the Second Optional Protocol of the ICCPR. The alarming human rights situation in the OPT and the State of Palestine was also highlighted by the High Commissioner. Regarding the OPT, he underlined that widespread discrimination was depriving Palestinians of their basic rights and called for an end to the prolonged detention without trial of a large numbers of detainees. He emphasized that Israel’s blockade of Gaza, which amounts to collective punishment, continued to deprive people of access to even basic goods and services. In the State of Palestine, he was concerned that both the Palestinian Authority and the authorities in Gaza had increased their use of administrative and arbitrary detention, with increasing allegations of torture and ill-treatment in both the West Bank and Gaza against political opponents, journalists, and activists. On the other hand, he welcomed Uzbekistan regarding its judicial reform, Tunisia for its continued efforts to place human rights at the centre of its transition and its exemplary cooperation with the OHCHR, Gambia where incoming President Adama Barrow had publicly committed to upholding human rights in a broad range of reforms, including his decision for the Gambia to remain a party to the ICC and his commitment to establishing a Truth and Reconciliation Commission.172 Country Situations An analysis of the voting behaviour of the 13 OIC members of the of the Council regarding country situations proved interesting. There were five resolutions on the human rights situation in the Middle East (Human rights in Syrian Golan, Human Rights in the OPT, Accountability in the OPT, Self-determination, and Israeli settlements ). All of them were submitted by Pakistan on behalf of the OIC. Both the sub-Saharan 172 OHCHR. (2017). High Commissioner for Human Rights on the Activities of His Office and Recent Human Rights Developments. Item 2: Annual Report and Oral Update to the 34th session of the Human Rights Council. http://www.ohchr.org/EN/NewsEv ents/Pages/DisplayNews.aspx?NewsID=21316&LangID=E.

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and Asian countries in this question usually ally with the OIC position and support these resolutions condemning Israel, which is not surprising as influential members of these groups are also members of the OIC.173 There was a remarkable exception, however: Togo. Togo was the only member of the HRC together with the USA voting against all five resolutions. This is not surprising in light of the close cooperation between the Togolese government and Israel in recent years. Benjamin Netanyahu, the Israeli Prime Minister met President Faure Gnassingbé twice in 2017. It was indicative of the relationship that the Togolese President wrote the following in the guestbook during his visit: “I dream of Israel’s return to Africa and Africa’s return to Israel”.174 The Togolese foreign minister’s opinion is also telling in this regard. Robert Dussey said: “The African continent is booming and Israel holds the solution for African development”.175 Besides establishing strong political and economic ties with Israel, the Togolese government—despite the questions about the legitimacy of the President and the serious human rights violations— receives a significant amount of development aid from the USA (USD$13 million in 2016).176 The other OIC member state which voted differently was Albania, again not surprising in light of Tirana’s EU membership aspirations. Regarding voting on the resolution on the human rights situation in Iran, submitted by a Core Group (Sweden, USA, North Macedonia, and Moldova), the OIC members of the African Group almost unanimously abstained during the vote, except Egypt, which voted against the resolution. The Asia–Pacific OIC members were more significantly divided as their voting pattern was shaped by the Sunni-Shiite rivalry and regional security policy considerations. As a result, while Qatar, Saudi Arabia, and the UAE supported it, Bangladesh, Indonesia, Iraq, and Kyrgyzstan voted against the resolution.

173 United Nations. (2018). Report of the Human Rights Council on Its 34th Session, A/HRC/34/2, 14 June 2018, pp. 137–140. https://www.ohchr.org/en/hrbodies/hrc/ regularsessions/session34/pages/34regularsession.aspx. 174 Hooper, S. (2017). Togo: How Repressive West African State Built Close Ties with Israel. Middle East Eye, 22 December 2017. http://www.middleeasteye.net/news/togohow-repressive-west-african-state-built-close-ties-israel-1894664807. 175 Ibid. 176 Ibid.

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In the case of the resolution on Syria, Cote d’Ivoire and Togo were supportive, while the other African OIC members abstained. The resolution submitted by a Core Group (USA, France, UK, Germany, Italy, Kuwait, Morocco, Jordan, Saudi Arabia, and Turkey) was supported by Qatar, Saudi Arabia, and the UAE among the Asia–Pacific OIC members, while Bangladesh, and Indonesia, abstained, and Iraq and Kyrgyzstan voted against.177 Albania, as usual, voted with the EU and supported the resolution. The OIC members of the HRC were divided in the case of the resolution on Cooperation with Georgia, where Togo and Albania supported the resolution submitted by the country concerned, and the other OIC member states abstained. Thematic Issues Besides Pakistan who submitted a resolution on behalf of the OIC on Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against persons based on religion or belief, other OIC states were only involved in tabling resolutions as members of Core Groups. Indonesia was a member of a Core Group which submitted the resolution on the Right to food. The Maldives was part of a Core Group tabling a resolution on Human rights and the environment and it was also member of a Core Group which prepared the resolution on Promoting the Voluntary Technical Assistance Trust Fund to support the participation of Least Developed Countries and Small Island Developing States in the work of the Human Rights Council. The resolution submitted by Egypt, Saudi Arabia, Jordan, Morocco, and Algeria on Effects of terrorism on the enjoyment of all human rights was even divisive within the Asia–Pacific Group, but the OIC members of the HRC were relatively unified on that issue as 11 OIC members supported it, with the only abstention by Kyrgyzstan and the negative vote by Albania in line with the EU’s position. The resolution requested the Advisory Committee of the HRC to prepare a report on the negative effects of terrorism on the enjoyment of all human rights and fundamental freedoms, with particular focus on economic, social, and cultural rights. The EU could not support the text because it believes that the discussion

177 United Nations. (2018). Report of the Human Rights Council on Its 34th Session, A/HRC/34/2, 14 June 2018, pp. 66–67.

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on the impact of terrorism on the economy is not within the mandate of the HRC. There were three resolutions traditionally voted upon along the North–South division line. The first one on Foreign debt tabled by Cuba was supported by the whole OIC group except Albania, who voted against it. The second on Human rights and unilateral coercive measures tabled by Venezuela on behalf of NAM, and the third was on Illicit funds tabled by Egypt, Libya, and Tunisia on behalf of the African Group, were adopted accordingly following the same pattern from the OIC point of view.178 The resolution run by Norway on the Mandate of the Special Rapporteur on the situation of human rights defenders always provokes heated discussions within the HRC as it is about the philosophy member states have regarding civil society. Quite a few OIC member states have become co-sponsors of the resolution, like the Maldives, Albania, Benin, Cote d’Ivoire, Djibouti, Guinea, the State of Palestine, Indonesia, and Togo. The level of tension about the question in this session was well marked by the fact that there were five amendments to the resolution tabled by Russia, China, Cuba, and Pakistan. They intended to delete any reference to the term “human rights defenders” and to downgrade the reference to the work of the Special Rapporteur. Egypt, Nigeria, Qatar, Saudi Arabia, and the UAE supported the amendments; Bangladesh supported most of the amendments, while Albania, Cote d’Ivoire, Indonesia, Iraq, Kyrgyzstan, Togo, and Tunisia voted against them. In this context, it is worth mentioning the so-called Like-Minded Group (LMG), a cross-regional group of counties that started in the 2010s. During most of its operation it has been led by Egypt and almost half of the members are also OIC member states.179 One of the areas where the Group became very active was the situation of HRDs, the protection of civil society, and the question of reprisals against those cooperating with the UN. The LMG supported restrictions in that field as they were of the view that several NGOs were adding to the polarization of the Council and their operation was not in line with the rules of 178 Ibid., pp. 42–56. 179 According to the statement delivered on 28 of March 2014, by the Permanent

Representative of Egypt on behalf of the LMG, the following states belonged to the LMG: Algeria, Bahrain, Bangladesh, Belarus, China, Cuba, Ecuador, Egypt, India, Myanmar, Pakistan, Russia, Saudi Arabia, South Africa, Sri Lanka, UAE, and Venezuela.

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procedures of the HRC. In line with this position, the LMG was against any country situation—except the human rights situation in the OPT — condemning the so-called naming-and-shaming practice of the HRC. The LMG also emphasized the security and stability considerations of states and highlighted the importance of balance between civil and political rights on one hand and economic, social, and cultural rights on the other. It became an active and semi-influential group, trying to block certain initiatives, mostly without much real success. A joint statement by the Group of Friends of the R2P was led by Rwanda and the Netherlands, underscoring the preventive aspect of the R2P. R2P has several strong supporters in Africa and besides the Friends of R2P in New York, there is also a Geneva-based R2P Core Group consisting of three African states—Rwanda, Ghana, and one OIC member, Nigeria, together with Australia, Uruguay, and Hungary. These countries are willing to argue the real meaning of the concept even with their African partners. They do not support the negative sentiments shared by many African and Asian countries concerning the whole notion of R2P as a result of fear that it can be used for military intervention against them, as happened in the case of Libya. 7.6.2

Thirty-Fifth Session of the United Nations Human Rights Council (6–23 June 2017)

During the presentation of his annual report, the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein focused on the cooperation with UN human rights mechanisms. He started his introduction—as the first Muslim High Commissioner—by referring to the human rights situation of the Palestinian people. He underlined that the Palestinian people had gone through a “half-century of deep suffering under an occupation imposed by military force. An occupation which has denied the Palestinians many of their most fundamental freedoms, and has often been brutal in the way it has been realized; an occupation whose violations of international law have been systematic, and have been condemned time and again by virtually all States”. He highlighted three disgraceful incidents of personal threats and insults directed against Special Procedures mandate holders.180 One of 180 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights

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them concerned an OIC member state, namely the situation of the Special Rapporteur on Iran who was “subjected to smear and hate campaigns”. In the context of cooperation with HRC special procedures, Indonesia was mentioned with 21 pending requests for visits by the Special Procedures, and that the country has received only two mandate holders since 2008. Egypt was also mentioned with 11 pending requests for visits, with the most recent mission took place seven years ago, just before the Arab Spring. In contrast, he listed eight states that had devoted considerable efforts to cooperating with mandate holders, facilitating more than five country visits in the past five years. There was one OIC member state among them, namely Tunisia. It was also quite striking that according to the High Commissioner, 74 states have overdue reports to UN treaty bodies for a decade or longer and that there are only 33 states—including six OIC member states fully up to date with their reporting (Azerbaijan, Kuwait, Kyrgyzstan, Oman, Turkmenistan, and Uzbekistan). Country Situations During the thirty-fifth session, three resolutions on country situations were adopted by a vote. The resolution on Syria was adopted by 27Y:8N:12A. It was no surprise that Iraq and Kyrgyzstan did not support the initiative submitted by a Core Group (USA, France, UK, Germany, Italy, Kuwait, Morocco, Jordan, Saudi Arabia, and Turkey) while Albania, Qatar, Saudi Arabia, the UAE, Cote d’Ivoire, and Togo supported it. The other members of the OIC abstained.181 It was also not surprising that the OIC member states were a little divided concerning the resolution on Belarus , which was finally adopted with a vote of 18Y:8N:21A. Albania supported the resolution submitted by the EU, while Egypt voted against it. The other members of the OIC abstained.182

Council 35th Session: Opening Statement by Zeid Ra’ad United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-access-and-lack-coo peration-un-bodies-will-not-diminish-scrutiny-states-human. 181 UNHRC. (2017). Report of the Human Rights Council on Its 35th Session, A/HRC/35/2, pp. 58–59. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessi ons/Session35/Pages/35RegularSession.aspx. 182 Ibid., pp. 59–60.

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It was more interesting that certain divisions existed in the case of the resolution on Ukraine, which was submitted by Ukraine. Only Iraq and Albania supported it. The other members of the OIC abstained. This resolution on technical assistance was adopted with a vote of 22Y:6N:19A.183 Thematic Issues It was not surprising that because during this session most of the controversial thematic resolutions were strongly influenced by North–South political differences, the OIC members of the Council voted unanimously in all of them (International solidarity, Right to peace, International cooperation, Protection of family, and Contribution of development ). Only Albania supported the EU line regarding these five resolutions, with three negative votes and two abstentions. 7.6.3

Thirty-Sixth Session of the United Nations Human Rights Council (11–29 September 2017)

In his regular update the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein focused on the lack of consistency between many states’ internal and external human rights policy that undermines the credibility of the Council.184 OIC member states were often referred to by the High Commissioner in his statement. He encouraged Bangladesh to maintain open borders for the Rohingya refugees and appreciated the government’s constructive engagement with his Office. He was concerned that the Pakistani authorities often encouraged intolerance of minorities or minority views, sometimes with deadly consequences. He regretted the reluctance of both India and Pakistan to engage with his Office on human rights concerns. The High Commissioner expressed concern regarding the human rights situation in the Maldives, where the government was increasingly cracking down on critical views as the general elections approached. He highlighted that the human rights situation in 183 Ibid., p. 79. 184 Al Hussein, Z. R. (2017). Denial of Access and Lack of Cooperation with UN

Bodies Will Not Diminish Scrutiny of a State’s Human Rights Record. Human Rights Council 35th Session: Opening Statement by Zeid Ra’ad United Nations High Commissioner for Human Rights. https://reliefweb.int/report/world/denial-access-and-lack-coo peration-un-bodies-will-not-diminish-scrutiny-states-human.

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Yemen was extremely alarming, and urged the establishment of an international and independent investigative body to carry out comprehensive investigations of violations and abuses of international human rights law and international humanitarian law. Regarding Syria, he described the crisis as something which had redefined the meaning of the word “horror”. He continued to call for a referral by the Security Council to the ICC to address the serious human rights violations. In Iraq, the defeat of the Islamic State of Iraq and the Levant (ISIL) forces in Mosul and Talafar released hundreds of thousands of civilians from the brutal rule of this armed group. He urged the authorities to address the long-standing grievances of all ethnic and religious communities to promote reconciliation and stability. He underlined that the OPT continued to witness serious violations of international humanitarian law and human rights law by the Israeli authorities. The High Commissioner expressed his concern that in Egypt, the state of emergency declared in April 2017 had been used to justify the systematic silencing of civil society and the closure of civic space, under the guise of countering terrorism. He highlighted in his statement that since June 2016, the government of Bahrain had imposed severe restrictions on civil society and political activism through arrests, intimidation, travel bans, and closure orders, with increasing reports of torture by the security authorities. Iran was mentioned because of the severe restrictions on freedom of opinion and expression. Finally, he mentioned the human rights situation in Turkey, which has continued to deteriorate. On the other hand, he noted positively the steps taken in Sudan regarding the relations with his Office. Country Situations The OIC members of the Council were divided on three of the four country-specific resolutions adopted by the HRC by a vote. On the resolution on Syria, Iraq as usual voted against it, while Albania, Qatar, Saudi Arabia, Cote d’Ivoire, Togo, and the UAE supported it. The other members of the OIC Group (Bangladesh, Indonesia, Kyrgyzstan, Nigeria, Egypt, and Tunisia) abstained.185 The Council renewed the Mandate of the Commission of Inquiry on Burundi for one year by a voted (22Y:11N:14A) resolution submitted by 185 UNHRC. (2018). Report of the Human Rights Council on Its 36th Session, A/HRC/36/2, pp. 48–49. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessi ons/Session36/Pages/36RegularSession.aspx.

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the EU.186 Albania of course as an EU candidate country supported the initiative, while Egypt, Saudi Arabia, and the UAE were against it. The other OIC members of the HRC abstained. Tunisia, on behalf of the African Group, submitted a competing resolution on the Mission by the Office of the United Nations High Commissioner for Human Rights to improve the human rights situation and accountability in Burundi (23Y:14N:9A). Not surprisingly, this resolution received broader support from the OIC members as Egypt, Cote d’Ivoire, Nigeria, Togo, Tunisia, Bangladesh, Iraq, Saudi Arabia, and the UAE supported it, while only Albania voted against it. The other OIC members abstained. Independent Expert to an OHCHR office.187 Thematic Issues The OIC members of the Council voted in a quite coherent way concerning most of the sensitive thematic resolutions. (Mercenaries; Democracy and equitable international order; Right to development; Right of peasants; Composition of the staff of the OHCHR; Unilateral coercive measures; From rhetoric to reality). Only Albania, which in complete harmony with the EU’s position, voted against five of them and abstained regarding the resolutions on the Right to development and on the Right of peasants. Regarding the Cuban resolution on the Composition of the staff of the OHCHR,188 Togo alone abstained, just like in case of the resolution on unilateral coercive measures.189 The OIC members of the HRC were also divided during the vote on the resolution on Reprisals, which was critical for the support of those who want to cooperate with the UN. While Albania, Cote d’Ivoire, Tunisia, and Iraq supported this initiative, the other OIC member states abstained (28Y:0N:19A). However, before this final vote, there were 19 hostile amendments; three of them were adopted by the Council. Egypt was one of the key players in this attack against the resolution, besides Russia, Venezuela, China, and India.190 186 Ibid., pp. 47–48. 187 Ibid., p. 167. 188 Ibid., pp. 13–14. 189 Ibid., p. 35. 190 Ibid., pp. 54–63.

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The OIC states were even more divided in the case of the resolution on the Death penalty, tabled by a Core Group containing Benin. It was Egypt who asked for a vote on this initiative. Albania, Togo, Kyrgyzstan, and Cote d’Ivoire supported the initiative, while Bangladesh, Iraq, Qatar, Saudi Arabia, Egypt, and the UAE rejected it. The other members of the OIC abstained.191

7.7

Conclusions

This chapter showed that the Muslim world is much more diverse than it is often considered by the general public and that it is time to overcome the rigid picture about this religion and the region as “hot, bearded camel riders, desert-like, poor, underdeveloped, backward, governed by Muslim fanatics and tyrants, characterized by rich Arabs in London and Arab terrorists blowing up planes”.192 Careful research of the Quran proves—according to certain experts— that most of the verses regarding war and jihad served defensive purposes and they do not encourage violence or war. It is important to search for proper answers to the question of the compatibility between Islam and the international human rights regime, which is vital for the life of the 1.5 billion believers of the world’s fastest-growing religion. The problem becomes even more complex because Islam never treated religion and politics as two separate institutions. Answers to the challenging question of compatibility which result in the dilution of human rights to legitimize the opposition of the Muslim elite concerning human rights are insupportable. Finding a solution is even more pressing due to the “increasing role of Islam in world politics and the increased presence of Muslims in Europe and in North America” which makes interactions between the two civilizations/cultures more intense.193 This struggle is not just between civilizations; it is also going on within the civilizations themselves as in both Islam and Christianity there are forces who oppose and forces who support the

191 Ibid., pp. 38–42. 192 Milton-Edwards, B. (2018). Contemporary Politics in the Middle East. Cambridge

UK: Polity Press. p. 3. 193 Tibi, B. (1994). Islamic Law/Shari’a, Human Rights, Universal Morality and International Relations. Human Rights Quarterly, 16:298.

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extension of human rights.194 In Islam, it means that the old traditionalists are usually trying to “Islamize modernity”, while the reformers are trying to modernize Islam. The most pressing human rights problems faced by Muslim societies today are not related to “cultural preferences or religious-cultural authenticity”, but the serious human rights violations committed by their governments, regardless of their cultural or ideological facade.195 The acceptance of international human rights norms is more likely to happen if they are presented to the Muslim community as being consistent with their belief in Islam.196 This aim can be achieved using a dual approach. First, there is a need for an internal discussion among Muslims. Then a cultural dialogue should take place between Muslims and nonMuslims. The objective of the first process could be achieved by the reinterpretation of certain parts of the Shari’a, including the one dealing with the status of women and freedom of religion.197 Without that enlightened interpretation of the Shari’a, the “fate of human rights in the Muslim world will remain in the hand of autocratic secular regimes”.198 That Muslim states in most cases do not refer to the Shari’a as a reason for failing to perform their obligations under international human rights treaties,199 is a sign of global acceptance of the notion of human rights. This, however, does not mean that universalism exists in human rights. Different interpretations regarding the implementation of certain human rights provisions still remain. Human rights are often considered in the Muslim world as a “Western product”, alien to their culture. Contrary to this understanding of human rights, their emergence was a result of the associated legal institutions

194 Khatab, S. & Bouma, G. D. (2007). Democracy in Islam. Abingdon, UK: Routledge. p. 3. 195 Afshari, R. (1994). An Essay on Islamic Cultural Relativism in the Discourse of Human Rights. Human Rights Quarterly, 16:236, 249. 196 An-Na’im, A. A. (2015). Islam and Human Rights. In: J. Witte & M. C. Green, Religion and Human Rights: An Introduction. Oxford, UK: Oxford Scholarship Online. p. 58. 197 Ibid. 198 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle

East. Boulder, CO: Lynne Rienner Publishers. p. 64. 199 Baderin, M. A. (2005). International Human Rights and Islamic Law. Oxford, UK: Oxford University Press. p. 5.

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which were also transplanted as an integral part of the modern nationstate model.200 Muslims in this context should be able to distinguish between the Western dominance which they felt throughout their history and the universality of human rights as part of the achievements of cultural modernity. Confusing the two can lead to clashes between civilizations.201 In the interests of better protecting human rights in the Muslim world, an enlightened interpretation of the Shari’a should be encouraged in line with the point made by Fouad Ajami: “civilizations do not control states, states control civilizations”.202 The selective quotations of sources and historical evidence to support one position in isolated issues is not a sustainable solution.203 It is not Islam which prevents democratic developments and the (better) protection of human rights in the Muslim world but the political rulers who use carefully selected parts of Islam to maintain their oppressive rule and to strengthen their legitimacy.204 The main source of violence in the region is not Islam but the economic and political failures of corrupt regimes.205 The founding documents of identity-based organizations in the Muslim world, such as the LAS and the OIC, contain no references to human rights, although there were attempts to include them. Consequently, they both operate according to the guiding principles of noninterference and state sovereignty. The LAS frequently uses religious arguments in order not to use international standards, although it refers willingly to international human rights standards regarding the (alleged) human rights violations committed by Israel. However, the modernized text of the ACHR only came into force in 2008. It officially accepts

200 Mayer, A. E. (1999). Islam and Human Rights. Tradition and Politics. Boulder, CO: Westview Press. pp. 9–10. 201 Tibi, B. (1994). Islamic Law/Shari’a, Human Rights, Universal Morality and International Relations. Human Rights Quarterly, 16:288–289. 202 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle East. Boulder, CO: Lynne Rienner Publishers. p. 65. 203 An-Na’im, A. A. (2015). Islam and Human Rights. In: J. Witte & M. C. Green,

Religion and Human Rights: An Introduction. Oxford, UK: Oxford Scholarship Online. p. 65. 204 Esposito, J. L., Sonn, T. & Voll, J. O. (Eds). (2016). Islam and Democracy After the Arab Spring. Oxford, UK: Oxford University Press. p. 8. 205 Monshipouri, M. (1998). Islamism, Secularism, and Human Rights in the Middle East. Boulder, CO: Lynne Rienner Publishers. p. 92.

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international human rights standards and which, although not perfect, still represents a significant step towards the development of an effective human rights mechanism in the Arab world. Although the UDHR was often criticized by certain parts of the Muslim world as a Western approach to human rights, several Muslim delegations and experts played an important role in its drafting. It was adopted by all Muslim countries, except for Saudi Arabia, which has never used Islamic arguments regarding their concerns. Regarding the relationship of Muslim states with UN human rights treaty bodies, the very low acceptance of communications procedures could be explained by the authoritarian or majoritarian political structures of many states, the prevalence of instability and violence in the region, giving more emphasis to security considerations vis-à-vis a human rights viewpoint, and the lack of independent and impartial judiciary.206 Looking at the work of the most important human rights body of the UN, it is striking to acknowledge that neither the HRC nor its predecessor the CHR ever mandated a special procedure to investigate the Middle East before the events of the Arab Spring. As Turan noted, the main human rights body of the UN was unable to address in time, with a preventive aim, the main drivers of the Arab Spring; the HRC only reacted when the uprisings and related violence started in the region. As it became clear from this chapter, the OIC is one of the most active participants of the HRC, submitting several resolutions in each sessions, mainly focusing on Middle East issues. The other regional organization, the Arab League is not as visible in the Council, however it also closely follows the work of the Council concerning the human rights situation in the Middle East and not surprisingly it welcomed in 2021 the UN Human Rights Council’s resolution to create an international commission to investigate Israel’s violations against the Palestinians.207 It should be mentioned, however, that the League of Arab States, for example, received technical assistance from the Office of the UN High Commissioner for Human Rights in 206 Cali, B. (2018). Influence of the ICCPR in the Middle East. In: D. Moeckli, H. Keller, & C. Heri (eds), The Human Rights Covenants at 50: Their Past, Present, and Future. Oxford, UK: Oxford University Press. pp. 147–148. 207 Shalhub, D. (2021). Arab League Welcomes UN Commission to Probe Israel’s Violations. UN Human Rights Council Adopts Resolution to Form Commission to Investigate Israeli Violations Against Palestinians, Anadolu Agency 30.05.2021. https:// www.aa.com.tr/en/middle-east/arab-league-welcomes-un-commission-to-probe-israels-vio lations/2258717.

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order to revise the 1994 version of the Arab Charter, aimed at making it in line with international human rights standards.208 Upon careful research of the 13 OIC member states who were also members of the HRC in 2017, it is interesting to see that the OIC Group is far from being united on many important issues. The first area of disagreement relates to certain country situations, like Iran, or Syria, where Muslim solidarity was overwritten by the traditional SunniShiite rivalry and other regional security policy considerations. The second category concerns the protection of civil society and HRDs, where the main division line is between those governments (Togo, Cote d’Ivoire, Indonesia, Iraq) that find this issue crucial for the interests of a sustainable democracy based on the rule of law and those who consider the activity of NGOs a threat to the sustainability of their power. The third area is the question of the death penalty, where the OIC members are also very divided. Muslim solidarity was very strong in the HRC concerning the situation of the Palestinian people, which is not surprising, but for example the mixed reactions by the Muslim world to China’s Uyghur policy indicates the political limits of this solidarity.209 These examples indicate that the OIC states do not form a monolithic group from a human rights point of view. Although there is a long way to go, there is a fair chance that in the medium-term perspective, several OIC states will follow a much more open and cooperative approach towards the international protection and promotion of human rights, provided that the misuse of Islamic thoughts can be prevented.

208 Regional Arrangements for the Promotion and Protection of Human Rights. A/HRC/39/58. Report of the Human Rights Council Advisory Committee, p. 11. 209 Related articles:

Coca, N. (2019). Are Indonesia and Malaysia Ready to Stand Up for China’s Muslims? The Diplomat, 28 January 2019. https://thediplomat.com/2019/01/are-indonesia-andmalaysia-ready-to-stand-up-for-chinas-muslims/. Tiezzi, S. (2019). Why Turkey Breaking Its Silence on China’s Uyghurs? The Diplomat, 12 February 2019. https://thediplomat.com/2019/02/why-is-turkey-bre aking-its-silence-on-chinas-uyghurs/. Ensor, J. (2019). Saudi Crown Prince Defends China’s Right to Put Uighur Muslims in Concentration Camps. The Telegraph, 22 February 2019. https://www.telegraph.co. uk/news/2019/02/22/saudi-crown-prince-defends-chinas-right-put-uighur-muslims-con centration/.

CHAPTER 8

The United Nations Human Rights Council: A Platform for the Clash of Civilizations or a Forum of Cross-Regional Cooperation?

As technology accumulates and people in more parts of the planet become interdependent, the hatred between them tends to decrease, for the simple reason that you can’t kill someone and trade with him too. Steven Pinker Canadian psychologist1

8.1 Bloc Voting at the United Nations Human Rights Council There is not a lot of research so far on the voting patterns within the HRC. However, both Erik Cox and Steven Seligman are of the view that the Council is not much different from its predecessor, the CHR,2 as both bodies are run by states who try to “advance their own self-interested political agenda”. Seligman also found that democracies were more likely to support country-focused resolutions, except for those targeting Israel.

1 Pinker, S. (2002). The Blank State: The Modern Denial of Human Nature. London, UK: Allen Lane. 2 Hug, S. & Lukács, R. (2014). Preferences or Blocs? Voting in the United Nations Human Rights Council. The Review of International Organizations, 9:89.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6_8

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However, his overall assessment was that the HRC has become even more politicized than its predecessor.3 Simon Hug and Richard Lukács found in their research that the EU and the OIC have the clearest stance in most questions.4 Based on the work of the first six years of the HRC, Rosa Freedman is of the view that the “OIC is the dominant group at the Council”.5 Hug and Lukács analysed the 70 votes that occurred in the course of the first 13 sessions of the HRC and concluded that OIC or EU membership influences the voting behaviour of those states. However, this bloc membership does not systematically affect voting behaviour.6 They also found that countries that often or frequently engaged in torturing people vote differently from those not doing so.7 Their final conclusion was that voting behaviour is largely affected by the preferences of the member states and this effect is stronger than group membership. An interesting finding was that the main sponsorship has an important effect on voting behaviour,8 i.e. members of the group are more likely to vote in favour if a country belonging to the group submits the given resolution. Eduard Jordaan tried to find an explanation for the policy shift within the African Group regarding country situations after the Arab Spring. He considered three possible causes to explain why the African Group became more willing after 2010 to address country-specific human rights violations, like the case of Cote d’Ivoire, Libya, or Eritrea.9 According to his findings, this positive change was not due to the better domestic human rights situation of African Group members, but was, to a lesser extent, the result of the loss of influence of influential regressive states. But what made a real difference was the active US diplomacy carried out 3 Seligman, S. (2011). Politics and Principle at the UN Human Rights Commission and Council (1992–2008). Israel Affairs, 17(4):538–539. 4 Hug, S. & Lukács, R. (2014). Preferences or Blocs? Voting in the United Nations Human Rights Council. The Review of International Organizations, 9:90. 5 Freedman, R. (2013). The United Nations Human Rights Council. A Critique and Early Assessment. Abingdon, UK: Routledge. p. 126. 6 Hug, S. & Lukács, R. (2014). Preferences or Blocs? Voting in the United Nations Human Rights Council. The Review of International Organizations, 9:102. 7 Ibid., p. 98. 8 Ibid., p. 103. 9 Jordaan, E. (2016). The African Group on the United Nations Human Rights

Council: Shifting Geopolitics and Liberal International Order. African Affairs, 115:490.

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by the Obama administration in Geneva between 2010 and 2013 at the HRC, aimed at building cross-regional support on important issues.10 A Forum-Asia working paper from 2014 also detected some sort of opening on the side of OIC member states concerning country-specific human rights situations, which was reflected in “significant inconsistencies in OIC members’ voting behaviour in the Human Rights Council”.11 The only area where bloc voting remained was on initiatives regarding the human rights situation in Palestine. In this context, the paper mentions resolutions on Eritrea, the DPRK, Burma/Myanmar, Mali, Libya, and Cote d’Ivoire, among others, where the OIC was willing to join the consensus.12 The support of Muslim minorities in non-OIC member states became one of the main priorities of the Organization. Its involvement in the HRC concerning the Rohingya Muslim minority in Burma/Myanmar even caused tensions with ASEAN.13 Hug’s study proved that the political division lines and consequently the voting patterns of the CHR and the HRC were very similar. He even detected some increase in the level of politicization regarding the HRC.14 He found it striking that in case of both the CHR and the HRC the same countries were at the “endpoints of the one-dimensional policy space namely Libya, China, and Cuba on one side and the United States with partners on the other”.15 Freedman went even further, by stating that the different regional and political alliances had a negative effect on the proceedings of the Council as they undermined the work of the HRC in its early years.16 Rochelle Terman and Erik Voeten carried out an important research regarding the relevance of political groups, partnerships, and alliances in

10 Ibid., pp. 501–502. 11 Adam, A. (2014). Understanding the Role of the Organization of Islamic Coop-

eration in Human Rights. Forum-Asia Working Paper Series No. 1 (September 2014). p. 2. 12 Ibid., p. 18. 13 Ibid., p. 24. 14 Hug, S. (2015). Dealing with Human Rights in International Organizations. Journal

of Human Rights, 15(1):22. 15 Ibid., p. 32. 16 Freedman, R. (2013). The United Nations Human Rights Council. A Critique and

Early Assessment. Abingdon, UK: Routledge. p. 126.

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the work of the UPR, the only universal human rights peer review mechanism in the world. It was not surprising that states are more willing to participate in the review of their strategic partners and their comments and recommendations to them are less severe than in the case of others. The regions have a similar effect on state behaviour.17 In relation to these facts, states are more willing to accept recommendations coming from geopolitical sympathizers, than from others.18 Edward R. McMahon’s research also confirmed visible regional patterns in the UPR. African and Asian states are making a much smaller number of recommendations than representatives of other regional groups. Asia and Africa (and, to a slightly lesser extent GRULAC) are most inclined to accept recommendations coming from within their own regions.19 Asian and African states tend to be less confrontational in addressing human rights issues amongst themselves, while GRULAC finds itself between WEOG on the one hand, and Asia and Africa on the other. EEG data are similar to that of WEOG.20 Finally, McMahon’s supports the findings in Chapter 4 of this book, that GRULAC and perhaps EEG regions could play a mediating role between WEOG and Africa/Asia.21

8.2 Culturally Sensitive and Divisive Issues on the Agenda of the Human Rights Council 8.2.1

North–South Divisions in the 2017 Sessions of the Human Rights Council

Before addressing the issue of culturally sensitive topics on the agenda of the HRC in general, it is worth looking at those resolutions in 2017, which resulted in a complete North–South divide within the Council, but mainly due to political and not cultural reasons.

17 Terman, R. & Voeten, E. (2017). The Relational Politics of Shame. Evidence from the Universal Periodic Review. The Review of International Organizations, 13(1):14. 18 Ibid., p. 16. 19 McMahon, E. R. (2010). Herding Cats and Sheep: Assessing State and Regional

Behaviour in the Universal Periodic Review Mechanism of the United Nations Human Rights Council. pp. 26–27. https://www.upr-info.org/sites/default/files/general-doc ument/pdf/-mcmahon_herding_cats_and_sheeps_july_2010.pdf. 20 Ibid., p. 35. 21 Ibid.

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During the thirty-fourth session of the HRC, three resolutions were voted traditionally on a North–South division line. The first was on Foreign debt tabled by Cuba. The resolution was adopted (31Y:16N) with no abstention. Besides the European states and a few developed countries outside of Europe (USA, Japan, Republic of Korea), only Brazil voted against the resolution.22 Interestingly, Greece became a co-sponsor of the initiative. The second was on Human rights and unilateral coercive measures tabled by Venezuela on behalf of NAM, which was adopted (32Y:15N) with no abstention. This voting also brought a clear North– South divide as only European states, plus the USA, Japan, and the Republic of Korea voted against the resolution.23 The third was on the Negative impact of the non-repatriation of funds of illicit origin on the enjoyment of human rights, and the importance of improving international cooperation tabled by Egypt, Libya, and Tunisia on behalf of the African Group. It was adopted (30Y:1N) with 16 abstentions. Only the USA voted against the resolution, while all European states, Japan, and the Republic of Korea abstained.24 During the thirty-fifth session of the HRC, several resolutions reflected North–South political differences: International solidarity, the Right to peace, International cooperation, the Protection of family, and the Contribution of development. The resolution on Human rights and international solidarity tabled by Cuba was not supported by Western states because they were of the view that international solidarity as a moral principle and political commitment does not meet the requirement of a legal concept and human rights. The resolution was adopted by a vote of 32Y:15N:0A. Besides the European states, only Japan, the USA, and the Republic of Korea voted against the resolution.25 Regarding the resolution on the Promotion of the right to peace also run by Cuba, the main concern of the EU was that there is no internationally agreed definition of “peace” and that there is no legal basis for this right. The resolution was adopted 22 OHCHR. (2017). Report of the Human Rights Council on its 34th Session, p. 43. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session34/Pages/ 34RegularSession.aspx. 23 Ibid., p. 51. 24 Ibid., p. 50. 25 OHCHR. (2017). Report of the Human Rights Council on its 35th Session,

p. 32. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session35/Pages/ 35RegularSession.aspx.

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by a vote of 32Y:11N:4A. Albania, Georgia, Portugal, and Switzerland abstained, and besides the European states, only the USA and Japan voted against the resolution.26 The resolution on the Enhancement of international cooperation in the field of human rights tabled by Venezuela on behalf of NAM was not supported by the EU as they thought that international cooperation cannot substitute national efforts in promoting and protecting human rights and that human rights protection cannot rely only on the enhancement of international cooperation. The resolution was adopted by a vote of 32Y:3N:12A. Hungary, the Republic of Korea, and the USA voted against the resolution; however, Hungary subsequently stated that it had intended to abstain. All other European states and Japan abstained.27 The last thematic resolution on the Contribution of development to the enjoyment of all human rights marked an important development, as it was the first initiative by China in the HRC. The resolution was adopted by a vote of 30Y:13N:3A. Georgia, Panama, and the Republic of Korea abstained. Besides the European states, only Japan and the USA voted against the resolution. The main concern of the EU regarding this initiative was that according to their assessment it sought to place development above human rights.28 During the thirty-sixth session of the HRC, there were three resolutions submitted by Cuba, which were very sensitive and provoked a North–South division within the HRC. The first on the Composition of the Staff of the Office of the United Nations High Commissioner for Human Rights was adopted (33Y:12N) with 1 abstention.29 All European states together with Japan, the USA, and the Republic of Korea voted against the resolution, which was based on the notion that there is an imbalance in the regional representation of the staff of the OHCHR. The only surprise was the abstention of Togo. The second Cuban initiative on the Use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination was adopted (32Y:15N) and provided a complete North–South divide with all European states voting against it, together with the USA, Japan, and the Republic of 26 Ibid., p. 33. 27 Ibid., p. 36. 28 Ibid., p. 49. 29 OHCHR. (2017). Report of the Human Rights Council on its 36th Session, p. 14. https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session36/Pages/ 36RegularSession.aspx.

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Korea.30 The third Cuban resolution on the Mandate of the Independent Expert on the promotion of a democratic and equitable international order was also adopted (32Y:15N) with all HRC member states voting in the same way as in case of the second resolution.31 The EU was of the view that the mandate had exhausted its potential, and therefore, it should not be retained. The common feature of these resolutions was that only European states and a few developed countries outside of Europe (USA, Japan, and the Republic of Korea) had concerns about them. The abstention of Togo relating to the initiative on the Composition of the OHCHR was the only unexpected move by an African state, which, however, had already showed a separate line of foreign policy regarding Middle East resolutions. The role of Cuba in framing issues that lead to a complete North–South divide within the HRC is impressive; Havana is very talented at finding topics to unify the Global South, and thereby serving indirectly the interests of its own special ideological war against Washington. Most of the topics, like foreign debt, mercenaries, the promotion of a democratic and equitable international order, the composition of the staff of the OHCHR, or the promotion of the right to peace, have no or only a very distant connection to international human rights law, but they are suitable for making a political case against the West. 8.2.2

Traditional Values

While the UN has always been categorical about the universality of human rights, regional organizations and documents are keener to emphasize the importance of cultural specificities. Articles 17(3) and 18(2) of the African Charter of Human and Peoples’ Rights explicitly refer to “traditional values as underpinning and directing the content of the African version of human rights”.32 The Cairo Declaration on Human Rights in Islam goes even further by subordinating the provisions of the Declaration to the authority of Shari’a.33 The Asian Human Rights Declaration includes 30 Ibid., p. 30. 31 Ibid., p. 31. 32 Fagan, A. & Fridlund, H. (2016). Relative Universality, Harmful Cultural Prac-

tices and the United Nations’ Human Rights Council. Nordic Journal of Human Rights, 34(1):26. 33 Ibid., p. 26.

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references to “responsibilities to all other individuals, the community and the society where one lives”.34 The initiative on traditional values has clear foundations on which to build upon. Robert Horvath clearly explains how the “rights talk” of the early 1990s in Russia changed in two decades and how Russian diplomats and clerics started to use cultural relativism as a weapon to “deflect criticism of their human rights records”.35 The first clear indication of this policy shift was the tabling of a resolution in 2009 in the HRC together with Belarus, China, Singapore, and Sri Lanka entitled Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind.36 The resolution was adopted on 2 October 2009 (26Y:15N:6A). Besides the EU member states, Chile, Japan, Mauritius, Mexico, Norway, the Republic of Korea, and the USA voted against this cross-regional initiative. Argentina, Bosnia and Herzegovina, Brazil, Ghana, Ukraine, and Uruguay abstained. Although the resolution did not contain any definition of traditional values, it “recognized that all cultures share common values belonging to humankind which contribute to the advancement of human rights and requested the High Commissioner to convene a workshop on how ‘a better understanding of traditional values of human kind underpinning international human rights norms and contribute to the promotion and protection of human rights and fundamental freedoms”.37 During the workshop on traditional values of humankind, which took place on 4 October 2010, Navi Pillay, the UN High Commissioner for Human Rights, emphasized that “traditions and values change over time, and are viewed and interpreted differently by various actors in the society. While there were traditions in line with human rights, others were in conflict with them”.38 She made it very

34 Ibid., p. 27. 35 Horvath, R. (2016). The Reinvention of “Traditional Values”: Nataliya Narochnit-

skaya and Russia’s Assault on Universal Human Rights. Europe-Asia Studies, 68(5):868. 36 Resolution 12/21 Adopted by the Human Rights Council, Promoting Human Rights and Fundamental Freedoms through a Better Understanding of Traditional Values of Humankind. https://www.right-docs.org/doc/a-hrc-res-12-21/. 37 Fagan, A. & Fridlund, H. (2016). Relative Universality, Harmful Cultural Practices and the United Nations’ Human Rights Council. Nordic Journal of Human Rights, 34(1):28–29. 38 OHCHR. (2010). Workshop on Traditional Values of Humankind, A/HRC/16/37 Report of the United Nations High Commissioner for Human Rights, 13 December

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clear that those traditional values which were not in line with international human rights law and aimed at “eroding the universal authority of human rights must be rejected”.39 Those states supporting the notion of traditional values argued that traditional values should not be confused with harmful practices and that human rights should not be monopolized by a few states; the universality of human rights must work in parallel with traditional values. On the other side, those countries uncomfortable with the notion of traditional values argued that traditions must not be used to justify human rights abuses and that they were not defined in a satisfactory manner.40 Although it became clear that it was not possible to have an agreement among member states on the reconciliation of traditional values with universal human rights norms, Russia and its allies submitted the resolution again in 2011, which was adopted by 24 to 14, with 7 abstentions,41 meaning that support for the initiative had diminished since the workshop. Although the resolution welcomed the outcome of the workshop, interestingly in operative paragraph 3, it only affirmed dignity, freedom, and responsibility from the concepts of the workshop, but not equality.42 The resolution requested the HRC Advisory Committee (AC) “to prepare a study on how a better understanding and appreciation of traditional values of dignity, freedom and responsibility can contribute to the promotion and protection of human rights”.43 The preliminary study prepared by Vladimir Kartashkin, the Russian member of the AC, underlined that traditional values were important because they were the moral

2010, p. 3, para 5. https://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/ A-HRC-16-37.pdf. 39 Ibid., p. 29. 40 Ibid. 41 Ibid., p. 30. 42 Murphy, M. (2013). ‘Traditional Values’ vs Human Rights at the UN. Open

Democracy, 18 February. https://www.opendemocracy.net/en/5050/traditional-valuesvs-human-rights-at-un/. 43 HRC Resolution 16/3 on Promoting Human Rights and Fundamental Freedoms through a Better Understanding of Traditional Values of Humankind, 24 March 2011, operative para 6. https://www.right-docs.org/doc/a-hrc-res-16-3/.

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underpinnings that sustained the respect for human rights44 and if international human rights agreements were not in line with them, they could not be considered valid. The report also emphasized the need for responsible behaviour by the individual in relation to the state.45 This approach, emphasizing the priority of traditional values over human rights, was not accepted by the rest of the AC, and a revised study was prepared reaffirming the primacy of human rights over traditional values.46 The revised study confirmed that there was no agreed definition of traditional values and that certain traditions were not in line with international human rights standards.47 The study concluded that states and sometime nonstate actors had a responsibility “to take sustained and systematic action to modify or eliminate stereotypes and negative, harmful and discriminatory practices justified by traditional values”.48 On the other side, however, the report highlighted that those regional, cultural, and religious specificities, which were consistent with universal human rights standards, could be instrumental “in promoting the awareness, acceptability and implementation of human rights in diverse local contexts”.49 In September 2012, before the report came out, the HRC adopted another resolution by the same sponsors on Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind, which was adopted (25Y:15N) with 7 abstentions.50 The resolution requested the Office of the United Nations High 44 Horvath, R. (2016). The Reinvention of ‘Traditional Values’: Nataliya Narochnit-

skaya and Russia’s Assault on Universal Human Rights. Europe-Asia Studies, 68(5):885. 45 Fagan, A. & Fridlund, H. (2016). Relative Universality, Harmful Cultural Practices and the United Nations’ Human Rights Council. Nordic Journal of Human Rights, 34(1):31. 46 Horvath, R. (2016). The Reinvention of ‘Traditional Values’: Nataliya Narochnitskaya and Russia’s Assault on Universal Human Rights. Europe-Asia Studies, 68(5):886. 47 OHCHR. (2012). Study of the Human Rights Council Advisory Committee on Promoting Human Rights and Fundamental Freedoms through a Better Understanding of Traditional Values of Humankind, A/HRC/22/71, 6 December 2012, para 7, para 11. https://www.ohchr.org/documents/HRBodies/HRCouncil/AdvisoryCom/Ses sion10/A.HRC.22.71_en.pdf. 48 Ibid., para. 76. 49 Ibid., para. 79. 50 Resolution 21/3 Adopted by the HRC on Promoting Human Rights and Funda-

mental Freedoms through a Better Understanding of Traditional Values of Humankind: Best Practices, 27 September 2012. https://www.right-docs.org/doc/a-hrc-res-21-3/.

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Commissioner for Human Rights (OHCHR) to collect information from stakeholders on best practices in the application of traditional values as a driver for human rights.51 The EU refused to provide best practices, but stated that traditional values are subjective, not like universal human rights standards, which are codified, and that the discourse about traditional values could lead to a misleading interpretation of existing human rights norms and thereby undermine their universality.52 The contributions of states outside of Europe (e.g. Honduras, Guatemala, and Indonesia) also marked concern about referring to traditional values as a justification for harmful cultural practices. Several Muslim states underlined that some human rights principles can be found in the teachings of Islam and the correct interpretation of this religion can further human rights.53 The main sponsors of this initiative explored all the possibilities available within the HRC: organizing a workshop, asking for a study, and collecting the views of stakeholders. As Horvath noted, the fact that traditional values are not specific geographically made it possible for Moscow and its partners to attract a larger and more diverse coalition of states. As this was the period when the activities of NGOs dealing with LGBTI rights became more visible, the Russian initiative also managed to shift the focus from political liberty to the human rights situation of sexual minorities, which is much less threatening for authoritarian regimes.54 The last resolution on traditional values was adopted in 2012 and not surprisingly its ideological continuation happened shortly after its termination, in 2014, by focusing on the protection of the family, which was not just considered by the supporters of the notion as a main unit of the society, but also as the key actor in transmitting traditional values from one generation to another.

51 Fagan, A. & Fridlund, H. (2016). Relative Universality, Harmful Cultural Practices and the United Nations’ Human Rights Council. Nordic Journal of Human Rights, 34(1):32–33. 52 Contribution of the European Union: Traditional Values, 15 February 2013. https://www.ohchr.org/Documents/Issues/HRValues/EU.pdf. 53 Ibid., p. 33. 54 Horvath, R. (2016). The Reinvention of ‘Traditional Values’: Nataliya Narochnit-

skaya and Russia’s Assault on Universal Human Rights. Europe-Asia Studies, 68(5):887.

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8.2.3

Protection of the Family

In June 2014, an interesting cross-regional coalition of states (Bangladesh, China, Côte d’Ivoire, Egypt, El Salvador, Mauritania, Namibia, Qatar, Russian Federation, Sierra Leone, and Tunisia) submitted a resolution on Protection of the family.55 The resolution was co-sponsored by additional 91 states, mostly from Asia and Africa, and was adopted 26Y:14N:6A. Besides the European members of the HRC only Chile, Japan, the Republic of Korea, and the USA voted against the resolution. Argentina, Brazil, Costa Rica, Mexico, Peru, and the former Yugoslav Republic of Macedonia (now North Macedonia) abstained. From GRULAC, only Venezuela supported the initiative. Besides reaffirming that the family is the natural and fundamental unit of society and entitled to protection by society, the resolution requested the High Commissioner for Human Rights to convene a panel discussion on the subject. The panel discussion—as requested—took place on 15 September 2014. In her opening remarks, Jane Connors, a Director at the OHCHR, stressed the importance of accepting the “diverse forms and functions of families, including married couples with, or without children, cohabiting couples and their children, single parents and their children, families headed by grandparents or including grandparents, older children caring for siblings and other children, registered partnership with or without children, and same-sex parents and their children”.56 One part of the delegations, mostly Western and GRULAC countries, in line with Connors, acknowledged the diversity of families and emphasized that the focus should be on the protection of individuals within the family. Others stressed that families are the key means of ensuring welfare and stability, promoting traditional values in society, and protecting human rights.57 In June 2015, the cross-regional Core Group (Belarus also joined the group) tabled the next resolution on this topic: Protection of the family: contribution of the family to the realization of the right to an adequate

55 Resolution 26/11 Adopted by the HRC on the Protection of the Family, June 2014. https://www.right-docs.org/doc/a-hrc-res-26-11/. 56 Summary of the HRC Panel Discussion on the Protection of the Family, A/HRC/28/40, 22 December 2014, para 5. https://documents-dds-ny.un.org/doc/ UNDOC/GEN/G14/247/75/PDF/G1424775.pdf?OpenElement. 57 Ibid., para 17.

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standard of living for its members, particularly through its role in poverty eradication and achieving sustainable development. This time the initiative was co-sponsored by 95 states, besides the 12 main sponsors. The resolution was finally adopted (29Y:14N) with 4 abstentions. The increased support for the initiative was due to the changes within GRULAC, as now Bolivia (Plurinational State of), Cuba, El Salvador, Paraguay, and Venezuela supported the resolution, with Argentina, Brazil, and Mexico abstaining.58 The resolution again recognized the crucial role of the family in the “preservation of cultural identity, traditions, morals, heritage and the values system of society” and also noted that “single-headed households, child-headed households and intergenerational households are particularly vulnerable to poverty and social exclusion”.59 Not surprisingly, however, other forms of families were not mentioned in the text. Resolution 29/22 finally requested the High Commissioner to “prepare a report on the impact of the implementation by States of their obligations under relevant provisions of international human rights law with regard to the protection of the family, and on the contribution of families in realizing the right to an adequate standard of living for their members, particularly through their role in poverty eradication and in achieving sustainable development, while giving due consideration to the status of the family in the developments related to the on-going work on the future sustainable goals and the post-2015 development agenda”.60 It was indicative that the EU, in its response to this request, highlighted that the protection should be extended “to all families, and all individuals within them, and should be fully reflective of established human rights standards in relation to human rights of women, gender equality and the rights of the child”.61 Besides the EU, 24 states and 81 civil society organizations replied to the request.62 58 HRC Resolution 29/22 on Protection of the Family: Contribution of the Family to the Realization of the Right to an Adequate Standard of living for Its Members, Particularly Through Its Role in Poverty Eradication and Achieving Sustainable Development, 3 July 2015. https://www.right-docs.org/doc/a-hrc-res-29-22/. 59 Ibid., Operative paras 6 and 13. 60 Ibid., operative para 29. 61 EU response to the Note Verbale of 2 September 2015, with reference to the

HRC Resolution 29/22. https://www.ohchr.org/EN/HRBodies/HRC/Pages/Protectio nFamily.aspx. 62 Ibid.

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In 2016, the resolution focused on the Role of the family in supporting the protection and promotion of human rights of persons with disabilities and was adopted by the HRC 32Y:12N:3A.63 This time, the resolution was tabled by 13 main sponsors (Saudi Arabia and Uganda had joined the group, while Namibia had left it) and then subsequently joined by 72 co-sponsors. On this occasion, from GRULAC, Panama voted against the resolution, while Mexico abstained, alongside Georgia and the former Yugoslav Republic of Macedonia (North Macedonia now). HRC Resolution 32/23 decided to “convene a one-day inter-sessional seminar on the impact of the implementation by States of their obligations under relevant provisions of international human rights law with regard to the protection of the family on the role of the family in supporting the protection and promotion of the rights of persons with disabilities, and to discuss challenges and best practices in this regard”.64 In 2017, the resolution focused on the Role of the family in supporting the protection and promotion of the human rights of older persons. Interestingly, the number of main sponsors rose to 28 states (Algeria, Bahrain, Bangladesh, Belarus, China, Comoros, Côte d’Ivoire, Djibouti, Egypt, El Salvador, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine (State of), Qatar, Russian Federation, Saudi Arabia, Somalia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates, and Yemen), while the number of co-sponsors significantly reduced to 8 (Afghanistan, Bosnia and Herzegovina, Burundi, Ghana, Indonesia, Kenya, Maldives, and Nigeria). Resolution 35/13 was adopted by 30 to 12, with 5 abstentions.65 It was the first time that an EU member (Hungary) abstained, alongside Brazil, Georgia, Panama, and the Republic of Korea.66 Following the tradition of the previous year and in the interests of keeping the topic on the agenda, the resolution decided to convene “a one-day inter-sessional seminar on the impact of

63 Resolution 32/23 Adopted by the HRC on Protection of the Family: Role of the Family in Supporting the Protection and Promotion of Human Rights of Persons with Disabilities, 1 July 2016. https://www.right-docs.org/doc/a-hrc-res-32-23/. 64 Ibid., operative para 24. 65 Resolution 35/13 Adopted by the HRC on Protection of the Family: Role of the

Family in Supporting the Protection and Promotion of Human Rights of Older Persons. June 2017. https://www.right-docs.org/?q=35%2F13. 66 Ibid.

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the implementation by States of their obligations under relevant provisions of international human rights law concerning the protection of the family on the role of the family in supporting the protection and promotion of the human rights of older persons, and to discuss challenges and best practices in this regard”.67 Several NGOs raised their concerns regarding the resolution. They were of the view that this initiative “reinforces ageist stereotypes, fails to adequately recognize older persons as individual rights holders and falls far short of States’ obligations to respect, protect and fulfil their rights”. The paper prepared by the NGOs made it very clear that the so-called “Protection of the Family resolutions that aim to subvert the universality of international human rights; stifle diversity and autonomy; and to shift rights protections away from family members, including older persons, into the institution of the family”. They were concerned that “the resolution attempts to instrumentalize older persons and their rights towards these ends”.68 In summary, the main sponsors of this initiative aimed at building up a narrative about the traditional form of family (man, woman, child(ren)) and to have the widest possible support for that, they were willing to focus on different vulnerable groups, like older persons, or persons with disabilities, or popular topics like poverty eradication or sustainable development. The only vulnerable group, which was excluded deliberately from the project, was the LGBTI group, and consequently, those families made up of same-sex couples. This issue managed to attract the support of most Asian and African states, and the sympathy of several conservative GRULAC and European governments. 8.2.4

Sexual Orientation and Gender Identity

The first attempt to put the LGBTI human rights situation on the agenda of the most important human rights body of the UN took place in 2003 when Brazil tabled a resolution on Sexual orientation and gender identity (SOGI) rights, but the Commission on Human Rights decided to

67 Ibid., operative para 30. 68 AWID. (2017). Strong Concerns on ‘Protection of the family’ Resolution at HRC

35, 19 June 2017. https://www.awid.org/news-and-analysis/hrc-35-strong-concerns-res olution-protection-family.

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postpone the decision.69 In 2006, Norway presented a joint statement on behalf of 54 states (no African states in the group) regarding SOGI rights.70 In 2011, South Africa submitted a resolution, together with 44 co-sponsors, on Human rights, sexual orientation and gender identity. Resolution 17/19 was adopted by a vote of 23Y:19N:3A. Japan, the Republic of Korea, Mauritius, Thailand, and the USA supported the resolution besides European and all GRULAC countries. Burkina Faso, China, and Zambia abstained. From Europe, the Russian Federation and the Republic of Moldova voted against the resolution.71 The resolution asked for a study72 to document “discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world, and how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity”.73 The HRC also decided to convene a panel discussion on that topic.74 The panel discussion on violence and discrimination against individuals based on their sexual orientation and gender identity, which took place on 7 March 2012 at the HRC, marked the first occasion that an intergovernmental body of the UN had held a formal debate on the topic.75 The OIC decided to boycott this first UN panel discussion, arguing that “behaviour promoted under the concept of sexual orientation is against

69 Voss, M. J. (2017). Contesting Sexual Orientation and Gender Identity at the UN

Human Rights Council. Human Rights Review, 19(1):7. 70 Joint statement delivered by Norway on Behalf of 54 States on Sexual Orientation and Gender Identity, Third Session of the HRC, 1 December 2006. https://arc-intern ational.net/global-advocacy/sogi-statements/2006-joint-statement/. 71 Resolution 17/19 Adopted by the HRC on Human Rights, Sexual Orientation and Gender Identity, 17 June 2011. https://documents-dds-ny.un.org/doc/UNDOC/GEN/ G11/148/76/PDF/G1114876.pdf?OpenElement. 72 OHCHR. (2011). Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their sexual orientation and gender identity, Report A/HRC/19/41 of the UN High Commissioner for Human Rights, 17 November. https://www.ohchr. org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf. 73 Ibid., operative para 1. 74 Ibid., operative para 2. 75 Summary of the Panel discussion on ending violence and discrimination against

individuals based on their sexual orientation and gender identity. https://www.ohchr. org/Documents/Issues/Discrimination/LGBT/SummaryHRC19Panel.pdf.

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the teachings of various religions including Islam”.76 One of the most visible consequences of this vehement opposition of SOGI rights was the introduction of a resolution by a Core Group led by Egypt, in 2014, on the Protection of the family, which we have already discussed. In 2014, as South Africa was no longer willing to run the resolution for internal political reasons, a Core Group of four GRULAC countries (Brazil, Chile, Columbia, and Uruguay) tabled the next resolution to the HRC. Resolution 27/32 had 46 co-sponsors and was adopted by a vote of 25Y:14N:7A.77 Several African states, like Burkina Faso, Congo, Namibia, and Sierra Leone, abstained, alongside China, India, and Kazakhstan. From Asia, Japan, the Philippines, the Republic of Korea and Viet Nam supported the initiative. So far (June 2021), the last substantial resolution on SOGI rights was tabled in 2016 by a Core Group of seven GRULAC countries (Argentina, Brazil, Chile, Columbia, Costa Rica, Mexico, and Uruguay), with the cosponsorship of 32 additional states. Resolution 32/2 was finally adopted with a vote of 23Y:18N:6A. From the African Group Botswana, Ghana, Namibia, and South Africa abstained, alongside India and the Philippines. The resolution was supported by Mongolia, the Republic of Korea, and Viet Nam from Asia. No African state supported the initiative. Overall support of the resolution also decreased as it decided to appoint an Independent Expert for a period of three years on protection against violence and discrimination based on sexual orientation and gender identity.78 The contested nature of the initiative was clear from the large number of amendments introduced to the original text, aimed at transforming it to a general resolution on discrimination. (In total there were 17 votes on the resolution.79 ) In July 2019, the HRC adopted a technical resolution (41/18 on the Mandate of the Independent Expert on 76 Adam, A. (2014). Understanding the Role of the Organization of Islamic Cooperation in Human Rights. Forum-Asia Working Paper Series No. 1 (September 2014). p. 31. http://www.forum-asia.org/uploads/publications/2014/September/FA%20Work ing%20Paper%201-OIC%20and%20human%20rights.pdf. 77 Resolution 27/32 Adopted by the HRC on Human Rights, Sexual Orientation and

Gender Identity, 26 September 2014. https://www.right-docs.org/doc/a-hrc-res-27-32/. 78 Resolution 32/2 Adopted by the HRC on Human Rights, Sexual Orientation and Gender Identity, 30 June 2016, operative para 3. https://www.right-docs.org/doc/a-hrcres-32-2/. 79 Voss, M. J. (2017). Contesting Sexual Orientation and Gender Identity at the UN Human Rights Council. Human Rights Review, 19(1):9.

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protection against violence and discrimination based on sexual orientation and gender identity), by which it extended the mandate of the Independent Expert for a further period of three years.80 This resolution was adopted by a recorded vote of 27Y:12N:7A, indicating an increased support compared to 2016. This time, African states were among those supporting the mandate extension (Rwanda, Tunisia, and South Africa), besides several countries from the Asia–Pacific Group (Fiji, Nepal, Japan, and the Philippines). It was the first time, however, that an EU member state (Hungary) abstained. In summary, although SOGI remains one of the most contested issues on the HRC’s agenda, the original sharp regional divisions are softening and more and more African and Asian states are supporting the protection against violence and discrimination based on sexual orientation and identity, alongside European and GRULAC countries. This, however, does not mean that all these countries would be supportive of the legal institution of registered partnership or same-sex marriage. As the main sponsors are from GRULAC, this initiative cannot be framed as a North–South issue. An important element is that it is always easier to find states to support a resolution than to get them to vote against it; the initiator states, therefore, have an advantage compared to those governments who want to block an initiative. 8.2.5

Defamation of Religion

Besides the SOGI resolutions, the most contentious issue on the CHR/HRC agenda was the initiative by the OIC relating to the defamation of religion. The first two resolutions, in 1999 and 2000, were adopted without a vote, although the EU had made its reservations clear regarding the definition of “defamation”.81 The first vote took place in 2001 when the Commission adopted the resolution on Combating defamation of religions as a means to promote human rights, social harmony, and religious and cultural diversit y by a vote of 28Y:15N:9A. In 2002, a vote on a resolution on Combating defamation of religions 80 Resolution 41/18 Adopted by the HRC on Human Rights, Sexual Orientation and Gender Identity, 12 July 2019, operative para 2. https://undocs.org/A/HRC/RES/ 41/18. 81 Becket Fund for Religious Liberty. (2008). Defamation of Religion. p. 3. https:// web.archive.org/web/20090206220325/http://www.becketfund.org/files/73099.pdf.

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received 30 votes in favour, 15 against, and 8 abstentions. In 2003, 2004, and 2005, by similar votes, the CHR approved a resolution on Combating defamation of religions. Although in 2002 and 2003, the resolution gained favourable votes, it lost votes in 2004, but regained them in 2005.82 In March 2007, the first time it was on the agenda of newly established HRC, and it was adopted by a vote of 24Y:9N:14A. In 2008, its support decreased (21Y:10N:14A). This was the first time that the combined number of no votes and abstentions outnumbered the yes votes. In the same year, the OIC managed to achieve an amendment to the mandate of the Special Rapporteur on Freedom of Expression, who was requested to “report on instances where the abuse of the right of freedom of expression constitutes an act of racial or religious discrimination”.83 The OIC considered the violent incidents in the early 2000s a result of the defamation of Islam and the Prophet. In March 2008, the Final Communiqué of the eleventh session of the Islamic Summit Conference (Dakar) called for a legally binding international instrument against the defamation of religions. Human rights groups made it very clear from the beginning that the defamation of religion initiative protected an ideology, while human rights law protected groups and individuals.84 On 26 March 2009, the HRC passed the resolution by a vote of 23Y:11N:13A.85 It was already indicative that Argentina, Brazil, Bosnia and Herzegovina, Burkina Faso, Ghana, India, Japan, Madagascar, Mauritius, Mexico, Republic of Korea, Uruguay, and Zambia abstained, while besides the Western/EU states, Chile, and Ukraine voted against the resolution. A serious decline of support occurred in 2010, when the defamation resolution was adopted by a vote of 20Y:17N:8A,86 indicating 82 Ibid., p. 3. 83 Ibid. 84 Adam, A. (2014). Understanding the Role of the Organization of Islamic Cooperation in Human Rights. Forum-Asia Working Paper Series No. 1 (September 2014). p. 30. http://www.forum-asia.org/uploads/publications/2014/September/FA%20Work ing%20Paper%201-OIC%20and%20human%20rights.pdf. 85 Resolution 10/22 Adopted by the HRC on Combating Defamation of Religions, 26 March 2009. https://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_ 10_22.pdf. 86 Resolution 13/16 Adopted by the HRC on Combating Defamation of Religions, 25 March 2010. https://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A. HRC.RES.13.16_AEV.pdf.

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that a significant majority of HRC member states had serious reservations concerning the OIC text. The change in the international mood about the initiative was marked by the fact that only seven non-OIC members (Bolivia, China, Cuba, Nicaragua, Philippines, Russian Federation, and South Africa) supported the draft. As a result of decreasing international support in 2011, the OIC announced that it had changed the title and the language of the resolution, which would now focus on addressing religious intolerance and incitement to hatred. Consequently, in March 2011, the HRC adopted without a vote, a resolution on Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence against, persons based on religion or belief.87

8.3

Cross-Regional Cooperation Within the HRC

Unfortunately for the outside world, including academia and the international media, only the above-mentioned divisive issues are interesting; they paint a picture of the HRC as the perfect platform for implementing Samuel Huntington’s vision of the clash of civilizations. However, there are numerous areas where the representatives of different regional groups are cooperating. Even in 2017, when the highest number of resolutions voted on was registered in the history of the HRC, it was not higher than 32% of all adopted texts.88 However, it is even more interesting to go through the main sponsors of the adopted resolutions, which clearly indicate that several important resolutions were submitted by a cross-regional coalition of UN member states. During the thirty-fourth session of the HRC (27 February 2017–24 March 2017) from the 41 resolutions, 14 were submitted by a crossregional coalition of states (in the case of 9 resolutions at least 3 or more regional groups were represented in the coalition) on topics like minorities, the right to privacy in the digital age, adequate housing, human rights, democracy and the rule of law, the right to work, birth registration, regional arrangements for the promotion and protection of human rights, 87 Adam, A. (2014). Understanding the Role of the Organization of Islamic Cooperation in Human Rights. Forum-Asia Working Paper Series No. 1 (September 2014). p. 30. 88 Human Rights Council. (2017). Universal Rights Group Report, p. 18. https:// www.universal-rights.org/urg-policy-reports/human-rights-council-2017/.

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human rights and the environment, human rights in South Sudan, human rights in North Korea, and the human rights situation in the Syrian Arab Republic.89 During the thirty-fifth session of the HRC (6 June 2017–23 June 2017) from the 37 adopted resolutions, 17 were submitted by a crossregional coalition of states (in the case of 15 resolutions, 3 or more regional groups were represented in the Core Group) on topics like trafficking in persons; internally displaced persons; persons with disabilities; human rights situation in the Syrian Arab Republic; business and human rights; independence of the judiciary; youth and human rights; national policies and human rights; the contribution of parliaments to the work of the HRC; child, early, and forced marriage; extreme poverty; and the negative impact of corruption.90 During the thirty-sixth session of the HRC (11 September 2017–29 September 2017) from the 32 adopted resolutions, 11 were submitted by a cross-regional coalition of states (in case of 8 resolutions, at least 3 or more regional groups were represented in the Core Group) on topics like the death penalty; enforced or involuntary disappearances; the promotion of truth, justice, reparation, and guarantees of non-recurrence; full enjoyment of human rights by all women and girls; conscientious objection to military service; human rights in the Syrian Arab Republic; assistance to Somalia; human rights education; mental health and human rights; cooperation with the UN, its representatives and mechanisms in the field of human rights; and technical assistance.91 Looking at the regional groups of the Global South, we can find Algeria, Angola, Benin, Botswana, Burkina Faso, Cote d’Ivoire, Djibouti, Egypt, Ethiopia, Ghana, Guinea-Bissau, Mauritius, Morocco, Mozambique, Namibia, Senegal, Sierra Leone, Somalia, Tunisia, Uganda, and Zambia from the African Group (21 states); Fiji, Indonesia, Japan,

89 OHCHR. (2017). Report on the 34th Session of the Human Rights Council, Universal Rights Group Report, 27 March 2017. https://www.universal-rights.org/urghuman-rights-council-reports/report-34th-session-human-rights-council/. 90 OHCHR. (2017). Report on the 35th Session of the Human Rights Council, Universal Rights Group Report, 27 June 2017. https://www.universal-rights.org/urghuman-rights-council-reports/report-35th-session-human-rights-council/. 91 OHCHR. (2017). Report on the 36th Session of the Human Rights Council, Universal Rights Group Report, 2 October 2017. https://www.universal-rights.org/urghuman-rights-council-reports/report-36th-session-human-rights-council/.

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Jordan, Korea (Republic of), Kuwait, Maldives, Mongolia, Philippines, Qatar, Singapore, Thailand, Timor-Leste, and Saudi Arabia from the Asia–Pacific Group (14 states); and Argentina, Barbados, Brazil, Cabo Verde, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Honduras, Mexico, Paraguay, Peru, and Uruguay from GRULAC (14 states) participating in at least one cross-regional group submitting a resolution to the HRC. It is also clear from the numbers that GRULAC is the most cooperative region given the relatively small size of the group—followed by Africa and then Asia. It is interesting to note that among these cross-regional initiatives only a few, like the one on the Promotion and protection of human rights of peasants and other people working in the field of human rights (submitted by Bolivia, Cuba, Ecuador, and South Africa) or the resolution on the Protection of the family: role of the family in supporting the protection and promotion of human rights of older persons (submitted by Bangladesh, Belarus, China, Cote d’Ivoire, Egypt, El Salvador, Mauritania, Morocco, Qatar, Russia, Saudi Arabia, Tunisia, and Uganda) were not considered by many observers to strengthen the present international human rights standards. It is also remarkable to see the number of important cross-regional statements delivered at the plenary sessions of the HRC. In this context, we can mention the Rule of Law joint statement delivered on 26 September 2016 on behalf the Rule of Law Core Group (Italy, Japan, Mexico, Morocco, UK) that was subsequently joined by 75 states.92 The Group was extended later by Ethiopia and their joint statement was joined by 80 states in March 2019.93 Another interesting case was the statement delivered by Switzerland in September 2015 on behalf of 33 states, regarding the human rights situation in Bahrain. Four regional groups (WEOG, EEG, GRULAC, African Group) were represented among the

92 HRC 33, Rule of Law Joint Statement, 26 September 2016. https://www.gov.uk/ government/news/human-rights-council-33-rule-of-law-joint-statement-26-september2016. 93 Human Rights Council 40: Joint Statement by the Rule of Law Core Group. The implementation of the rule of law by national governments is the key to securing the promotion and protection of human rights and fundamental freedoms. https://www.gov.uk/government/news/human-rights-council-40-joint-statementby-the-rule-of-law-core-group.

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33 states.94 In March 2018, an important cross-regional statement was delivered by the Netherlands on the strengthening of the Council on behalf of 49 states, including representatives of all regional groups.95 In June 2017, it was also the Netherlands that delivered a joint statement on behalf of 47 states regarding the improvement of HRC membership.96 These examples are not an exhaustive list; there were many other important cross-regional statements on pertinent topics like Cooperation with representatives of the UN in the field of human rights (the so-called Reprisals resolution), or R2P, delivered at the HRC in the last decade. In Sect. 8.2.2 on traditional values, the notion of harmful cultural practices was mentioned. In this context, there is an emerging consensus within the HRC on condemning these practices. One of the most striking examples of this positive trend is that the HRC adopted the resolution submitted by Chile, Guatemala, and Gabon (on behalf of the African Group) without a vote in 2013 on a high-level panel on the Identification of good practices in combating female genital mutilation.97 Most recently, in July 2018, the HRC also adopted a resolution without a vote on this same subject.98 Another important resolution is the one on Strengthening efforts to prevent and eliminate child, early and forced marriage: challenges, achievements, best practices and implementation gaps adopted in 2013 by the HRC without a vote.99 A similar resolution was adopted without a vote by the HRC in 2019 on the Consequences of child, early and forced marriage, submitted by a cross-regional Core Group 94 33 States Join 5th UN Joint Statement on Human Rights in Bahrain. https://www. adhrb.org/2015/09/ngos-welcome-5th-un-joint-statement-on-human-rights-in-bahrain/. 95 Joint Statement on Human Rights Council Strengthening. https://www.permanent representations.nl/documents/speeches/2018/03/23/joint-statement-on-human-rightscouncil-strengthening. 96 Joint Statement by the Netherlands on Behalf of 47 Countries. https://unwatch. org/joint-statement-improving-unhrc-membership/. 97 Resolution 24/117 Adopted by the HRC on The High-Level Panel on the Identification of Good Practices in Combating Female Genital Mutilation, 2013. https://www. right-docs.org/doc/a-hrc-dec-24-117/. 98 Resolution 38/6 Adopted by the HRC on the Elimination of Female Genital Mutilation. https://www.right-docs.org/doc/a-hrc-res-38-6/. 99 Resolution 24/23 Adopted by the Human Rights Council Strengthening Efforts to Prevent and Eliminate Child, Early and Forced Marriage: Challenges, Achievements, Best Practices, and Implementation Gaps, 27 September 2013. https://documents-dds-ny.un. org/doc/UNDOC/GEN/G13/180/20/PDF/G1318020.pdf?OpenElement.

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(Argentina, Canada, Honduras, Italy, Montenegro, Netherlands, Poland, Sierra Leone, Switzerland, UK, Uruguay, and Zambia).100 Lastly, a politically important joint initiative should be mentioned, representing the most significant cooperation between the EU and the OIC within the framework of the HRC. In September 2018, the two regional groups jointly submitted a resolution on the human rights situation in Myanmar, establishing An independent mechanism to collect, consolidate, preserve, and analyse evidence of the most serious international crimes and violation of international law.101 The two regional groups also tabled a resolution addressing the deplorable human rights situation of the Muslim community in Myanmar in September 2019.

8.4 Most Recent Developments in the Human Rights Council During the COVID-19 Pandemic It is worth expanding our cases of cross-regional cooperation and of divisions among the different regional groups during the first pandemic in the history of the mankind which effected every single corner of our Globe. The 43rd session of the HRC was held in two segments as due to the pandemic it had been suspended on 13 March 2020 and was resumed on 15 June. An important initiative of cross-regional cooperation was launched by Switzerland, Norway, Sierra Leona, and Uruguay aimed at highlighting the central role the HRC should play regarding the preventive agenda of the UN. This cross-regional group clearly indicated that they would like to achieve a general consensus within the international community regarding the importance of the preventive mandate of the HRC.102 There was another important issue during this session where

100 Resolution Adopted by the HRC on the Consequences of Child, Early, and Forced Marriage. https://www.healthpolicy-watch.org/wp-content/uploads/2019/07/HRC-Res olution-L8.Rev1-Childhood-Marriage-English.pdf. 101 Outcomes of the Thirty-Ninth Session of the HRC from an EU Perspective. https://eeas.europa.eu/headquarters/headquarters-Homepage/51335/outcomes-39thsession-human-rights-council-eu-perspective_me. 102 Report on the 43rd Session of the Human Rights Council, Universal Rights Group. https://www.universal-rights.org/blog/report-on-the-43rd-session-of-the-humanrights-council/.

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HRC member states managed to reach a consensus, namely on the resolution addressing the human rights violations by law enforcement officers against people of African descent.103 During the 45th session of the HRC, there were heated debates about the importance of traditional family roles and hierarchies. Russia “attacked” the resolution of the Rights of the Child with several hostile amendments aimed at strengthening the rights of parents over their children, making their participation “in decision-making conditional upon the permission /direction of parents and other adults”. Most of the proposed amendments were withdrawn finally, and the two remaining ones were rejected by 13:27, with 6 abstentions.104 In course of this session, the core group which was already mentioned with regard to their statement on the importance of prevention within the mandate of the HRC managed to submit a resolution on this topic and it was finally adopted by 32:3, with 11 abstentions. In course of the 46th session of the HRC (22 February–24 March 2021), there were a few important statements by groups of states strongly supporting China and attacking the practice of Western states to criticize the internal human rights diplomacy of other governments. It was a clear massage addressed to Washington that they do not want to accept the status quo ante when the US delegation dominated the agenda and the work of the HRC.105 China started to become more and more active in the last few years of the Council; however the return of the US to the HRC after the Trump administration made the clashes between the 2 superpowers unavoidable. The Chinese statement—on behalf of a group of states—criticizing the operation of Australian offshore detention centres and the alleged war crimes committed by the Australian overseas military personal, certainly represents a new phase in the Chinese external human rights diplomacy, making it as visible as their economic and trade

103 Report on the 43rd Session of the Human Rights Council, Universal Rights Group. 104 Report on the 45th Session of the Human Rights Council, Universal

Rights Group. https://www.universal-rights.org/urg-human-rights-council-reports/rep ort-on-the-45th-session-of-the-human-rights-council/. 105 Report on the 46th Session of the Human Rights Council, Universal Rights Group, https://www.universal-rights.org/blog/report-on-the-46th-session-of-the-humanrights-council/.

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diplomacy.106 A statement with a similar philosophy behind was delivered by Belarus on behalf of a group of states, including Iran, China, Burundi, Russia, Syria, or Venezuela, criticizing the human rights situation of EU member states and the UK. Cuba managed to get 64 states to join a statement, which defended the Chinese “people-centred philosophy” and asked the international community to stop interfering into the internal affairs of China.107 The response by the USA to the above-mentioned attacks arrived during the same session, and in a statement on behalf of 53 states, these governments were making it very clear that the human rights violations by a state cannot be considered as an internal affair and those states which committed them must be held accountable.108 In order to reinforce its position, Washington also joined the statement delivered by Finland on behalf of 31 states on the human rights situation in Egypt109 and the statement delivered by Poland on behalf of 44 states on the human rights situation in Russia.110 An important feature of the session was that many states—especially with poorer human rights records—criticized the practice of human rights sanctions. The traditional resolution tabled by the Non-Aligned Movement on unilateral coercive measures was adopted by 30:15, with 2 abstentions.111 The resolution certainly neglected the fact that most of the new sanction regimes adopted recently by the international community were so-called smart sanctions targeting only the leading figures of a

106 Joint Statement Delivered by China on Behalf of a Group of Countries at Item 4 General Debate, 46th Session of the Human Rights Council, 12. March 2021. http:// www.china-un.ch/eng/dbdt/t1860569.htm. 107 64 Countries Voice Opposition to Unfounded Allegations against China on Human Rights, Xinhua, 1 March 2021. http://www.xinhuanet.com/english/2021-03/13/c_1 39807296.htm. 108 Joint Statement under Item 8 at the 46th Session of the United Nations Human Rights Council. https://geneva.usmission.gov/2021/03/19/joint-statementunder-item-8/. 109 Joint Statement by Finland on Behalf of a Group of Countries on Egypt, 12 March 2021. https://geneva.usmission.gov/2021/03/12/joint-statement-on-human-rig hts-in-egypt/. 110 Cross-Regional Joint Statement, 12. March 2021. https://geneva.usmission.gov/ 2021/03/12/joint-statement-on-the-deteriorating-situation-of-human-rights-in-russia/. 111 The Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, Human Rights Council Resolution No.A/HRC/46/L.4. https://documents-ddsny.un.org/doc/UNDOC/LTD/G21/061/10/PDF/G2106110.pdf?OpenElement.

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regime, trying to avoid their negative effects on the whole society. It was also very telling that China tabled a hostile amendment to the resolution on Belarus, which was critical about the sanctions imposed against Minsk and it was almost adopted by the HRC (12:18:17).112 It was the first time that a specific COVID-19 focused resolution was adopted by the HRC on ensuring equitable, affordable, timely, and universal access for all countries to vaccines. Although this resolution was adopted by consensus, it made it very clear that the pandemic made the inequalities among states even larger and it was also reflected in their access to vaccination. Finally, it should be mentioned in relation to the results of the pandemic that by that session the Human Rights Council became the first UN body using digital voting technology.113 From the 47th session of the HRC—which was the last one before the closure of the manuscript of this book taking place between the 21 June and the 13 July 2021—the interactive debate between member states and the High Commissioner, Michelle Bachelet should be highlighted. During this debate, the High Commissioner underlined the importance of respecting civil, political, and socio-economic rights during the pandemic and that vaccines should be considered as public good, and states should guarantee the equitable access to them. Madame Bachelet expressed the wish to create a “human rights economy” through measures like progressive taxation, efficient and equitable allocation of resources, fighting corruption, and enhanced international cooperation.114 An important cross-regional statement was delivered by Denmark on behalf of 46 states, suggesting a “Sustainable Recovery Pledge”, according to which human rights should be put in the heart of efforts to “build back better” after the pandemic by the promotion of democratic principles, ensuring effective civil society participation, fighting inequalities and discrimination, and adopting an environmentally sensitive approach to recovery efforts.

112 Report on the 46th Session of the Human Rights Council, Universal Rights

Group. https://www.universal-rights.org/blog/report-on-the-46th-session-of-the-humanrights-council/. 113 Ibid. 114 Report on the 47th Session of the Human Rights Council, Universal Rights

Group. https://www.universal-rights.org/nyc/uncategorized-nyc/report-on-the-47th-ses sion-of-the-human-rights-council/.

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8.5

Final Thoughts

The answer to the question posed in the title of this chapter can be split into two. Based on the main findings of this research, we can safely state that the HRC did not become a platform for the clash of civilizations. It does not mean, however, that there are not issues that are sharply dividing the HRC membership and that there are easy solutions to overcome these debates. However, most of them are not civilizational issues but related to the existing economic, social, and political problems of the Global South, which are misused by several HRC member states to escalate tensions between the North and the South. If we look at the sensitive human rights issues, like country situations, or the question of civil society space, or the prevention of reprisals against those who are cooperating with the UN in the field of human rights, we find that the division lines are not among civilizations. Instead, they are between those countries that consider the protection and promotion of human rights worldwide as an important political aim and those that are interested in the weakening of the international human rights monitoring system, making their human rights abusing policy sustainable, without any serious international consequences. Yet all of the main cultures and civilizations can be reconciled with the accepted international human rights standards, and therefore, most of the references to cultural particularities only serve the political purposes of the elite to justify their poor human rights records. The answer to the second part of the question contained in the title, namely whether the HRC has become a platform for cross-regional cooperation, is much more positive and affirmative now than it was a few decades ago. Despite all temporal fall backs, the development of international human rights standards is unstoppable. In parallel, the level of democratization is increasing at a global scale, and consequently, the scope of acceptable traditions is also in a constant state of change. As Steven Pinker brilliantly demonstrated, our common civilization has achieved incredible progress in all aspects of our human well-being, but we still tend to focus on the negative developments in our world and neglect the remarkable achievements that mankind can show.115

115 Pinker, S. (2018). Enlightenment Now: The Case for Reason, Science, Humanism, and Progress. London, UK: Penguin Books Limited.

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Conclusion

This book had two hypotheses. The first, more general one, was based on the assumption that the cultural norms of all major civilizations, regions, and cultures can be reconciled—within certain limits—with the universally accepted international human rights standards. The research proved that this hypothesis was correct, meaning that all major civilizations contain those values that form the basis of the UDHR. It does not result, however, in a complete universalism of the world regarding human rights as different cultures frequently emphasize different aspects. For instance, some cultures and religions see rights and responsibilities as a unity; others give more importance traditionally to obligations towards the community than to rights. However, the very high ratification rate of the major international human rights instruments prove that all major civilizations accept the value-system represented by them, and most of the discussion is only about their implementation. The second, more specific hypothesis was that there is more and more cross-cultural cooperation within the HRC, which is not seen by the general public. This also proved to be correct, as the increasing number of resolutions submitted by cross-regional coalitions clearly demonstrates. These tendencies underline that there are more and more states in the Global South and in the North that are willing to cooperate with each other in order to enhance the cause of human rights, even against the majority of their region. The fate of artificially created divisive issues shows that they cannot be maintained in the long run. States are more willing to cooperate with other countries belonging to different cultures or civilizations in order to ameliorate the international protection and promotion of human rights, than to be part of coalitions aimed at undermining the international human rights regime.

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Index

A Acquis communitaire, 85 Adhikara, 243 Ad Hoc Human Rights Court in Indonesia, 261 Advisory Committee (UN HRC), 23, 42, 43, 271, 323, 343, 344 Afghanistan, 18, 122, 154, 155, 210, 232, 262, 264, 287, 309, 315, 348 African Charter on Democracy, Elections and Governance (African Democracy Charter), 207 African Charter on Human and Peoples’ Rights, 200–203 African Charter on the Rights and Welfare of the Child, 198 African Commission on Human and Peoples’ Rights, 200, 202, 204 African Court of Human and Peoples’ Rights, 198, 253 African Court of Justice and Human Rights, 204, 205, 210, 211

African Economic Community (AEC), 204, 205 African Governance Architecture (AGA), 207 African Group, 13, 25–27, 32, 41, 47, 49, 119, 124, 125, 129–131, 133, 134, 137, 172, 173, 175, 180–182, 216, 219, 220, 222–226, 229, 266, 271, 276, 314, 317, 322, 324, 329, 336, 339, 355–357 African Peer Review Mechanism (APRM), 206, 215 Age of Commerce, 234 Age of the Caliphates, 285 Ahisma, 244 Albania, 314, 322–324, 326–330, 340 Algeria, 175, 271, 323, 324, 348, 355 Algiers Declaration, 203 Al-Husseini, Haj Amin, 308 Al Hussein, Zeid Ra’ad, 114, 121, 125, 126, 129, 173, 176, 179, 180, 214, 217, 218, 221, 266,

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 I. Lakatos, Comparative Human Rights Diplomacy, https://doi.org/10.1007/978-3-030-97095-6

399

400

INDEX

268, 272, 275, 314, 320, 325, 327 Alliance for the Peoples of Our America (ALBA), 156 Al-Rodhan, Nayef, 287, 288 American Convention on Human Rights, 150 American Declaration on the Rights and Duties of Man, 160, 161 American Law Institute, 310 Amparo proceedings, 149 Amsterdam Treaty, 98 Angola, 355 An-Na’im, Abdullahi, 8, 290, 294, 295, 311, 331, 332 Annan, Kofi, 7, 16, 20, 21, 24, 30, 39, 116 Apartheid, 213 Arab Charter on Human Rights (ACHR), 298, 299, 304, 316, 332 Arab Court of Human Rights, 299 Arab Human Rights Committee (AHRC), 299 Arab League, 282, 289, 333 Arab Permanent Committee on Human Rights (APCHR), 297, 298 Arab Spring, 53, 287, 289, 318, 320, 326, 333, 336 Arab Standing Committee on Human Rights, 304 Argentina, 18, 140, 143, 146, 152, 154–156, 168, 169, 178, 182, 183, 185, 186, 307, 342, 346, 347, 351, 353, 356, 358 Arias, Óscar, 139 Article 7 procedure, 76, 77, 80, 82, 89, 134 Ascherio, Marta, 39, 40 ASEAN Human Rights Declaration, 258

ASEAN Intergovernmental Commission on Human Rights (AICHR), 255–259, 279 ASEAN Plus Three (APT), 254, 260 Ashoka, 57, 247 Asian Human Rights Declaration, 341 Asian states, 13, 14, 52, 232, 245, 248, 250, 251, 253, 260, 263, 264, 266, 267, 271, 272, 275, 278, 279, 338, 352 Asian values, 232, 239, 244–252, 277, 278 Asia-Pacific Economic Cooperation (APEC), 254, 260 Asia-Pacific Group, 13, 25, 40, 41, 117, 125, 129, 134, 173, 214, 216, 231, 252, 264–267, 269–271, 273, 275–277, 279, 314, 317, 318, 323, 356 Association of Southeast Asian Nations (ASEAN), 97, 253–259, 279, 337 Atlantic Charter, 196 AU Constitutive Act, 204 Australia, 126, 221, 306, 313, 325 Austria, 121, 122, 127, 131 Azerbaijan, 314, 326 Azikiwe, Nnamdi, 196 B Bagde, Uttamkumars, 240–242 Bahrein, 319 Bakar, Osman, 250 Bangkok Declaration, 244 Bangladesh, 210, 232, 262, 263, 265, 266, 270, 272, 274, 276, 277, 314, 317, 322–324, 327–330, 346, 348, 356 Bangladesh International Criminal Tribunal, 261 Banjul Charter, 200 Barbados, 140, 175, 356

INDEX

Baroody, Jamil Murad, 309–311, 313 Bary, William Theodore de, 238, 246–248 Beijing, 30, 235, 236 Belarus, 22, 26, 30, 33, 116, 118, 223, 273, 324, 326, 342, 346, 348, 356, 360, 361 Belfour Declaration, 307 Belgian Congo, 195 Belgium, 30–32, 38, 92, 113, 114, 122, 123, 126, 164, 195, 306 Benelux, 107 Benin, 227, 324, 330, 355 Bhutan, 232, 266, 272 Bloc voting, 335, 337 Bogdandy, Armin, 20, 22, 24, 30, 32, 37, 41, 43, 88 Boko Haram, 28 Bolívar, Simón, 158 Bolivia, 18, 140, 143, 144, 146, 151, 169, 172, 174, 175, 177, 180, 181, 186, 210, 262, 306, 347, 354, 356 Bolton, John, 157 Böröcz, József, 63, 64 Bosnia-Herzegovina, 19 Botswana, 130, 208, 214, 215, 219, 220, 223–227, 229, 249, 355 Boutros Boutros-Ghali, 297 Brantner, Franziska, 111, 118 Brazil, 126, 140, 144, 146, 156, 169, 172, 174–178, 180, 182–186, 275, 306, 339, 342, 346–349, 351, 353, 356 BREXIT, 95, 96 Brussels, 55, 93, 95, 99, 100, 107, 111, 115, 195, 196 Budapest Centre for Mass Atrocities Prevention, xxviii Buddhism, 232, 233, 237, 240–243, 247, 278, 283 Bulgaria, 78

401

Burke, Roland, 172, 213, 265, 309, 312, 313 Burkina Faso, 217, 350, 351, 353, 355 Burma, xxviii, 236, 240, 245, 264, 267, 337 Burundi, 28, 130, 181, 209, 214, 218–221, 223–227, 348, 360 Byelorussian SSR, 170, 264

C Cairo Declaration on Human Rights in Islam, 302, 341 Cali, Basak, 316, 317, 333 Cambodia, 235, 240, 256, 261, 268, 275 Canada, 104, 112, 157, 168, 185, 306, 307, 358 Caste system, 196, 240, 243, 244 Caudillismo, 145 Central African Republic (CAR), 28, 125, 224, 225 Central America, 147, 154 Central American Federation, 158 Central and Eastern Europe, 72, 77, 95 Chad, 281 Chang, Peng-chun, 264, 265 Charter of Fundamental Rights (EU), 67, 70, 74, 75, 79, 83, 97, 135 Chechnya, 21, 51, 116 Chile, 18, 126, 140, 143, 144, 146, 147, 152, 156, 168, 169, 171, 172, 176, 183, 185, 186, 264, 307, 342, 346, 351, 353, 356, 357 China, 10, 18, 21, 30, 51, 58, 63, 104, 111, 125, 126, 133, 137, 182, 186, 232–236, 242, 245, 248, 264–266, 268–270, 272–278, 307, 320, 324, 329,

402

INDEX

334, 337, 340, 342, 346, 348, 350, 351, 354, 356, 359–361 Christianity, 58, 59, 233, 234, 237, 282–285, 293, 330 Churchill, Winston, 60 CIA, 263 Cireu system, 109 Civil and political rights, 11, 17, 34, 149, 164, 199, 201, 203, 240, 244, 246, 248, 249, 316, 325 Civil Liberties Committee (European Parliament), 82, 91 Civil society, 3, 19, 21, 36, 44, 46, 50, 51, 59, 67, 102, 103, 121, 125, 129, 134, 152, 186, 199, 207, 215, 229, 253, 258, 259, 267, 272, 320, 324, 328, 334, 347, 361, 362 Code of Conduct for Special Procedures Mandate Holders (Resolution 5/2), 32 Code of Conduct on Arms Exports, 106 Cold War, 2, 16, 17, 20, 51, 62, 96, 135, 155, 203, 236, 253, 254, 288, 311 Colonial period, 142, 190, 194, 213, 295 Columbia, 118, 143, 146, 147, 156, 168, 169, 182, 183, 185, 186, 210, 262, 307, 351 Committee of Ministers, 166 Committee of Permanent Representatives (COREPER), 83 Committee on Development (DEVE), 101 Committee on International Trade (INTA), 101 Committee on Women’s Rights and Gender Equality (FEMM), 101 Common Foreign and Security Policy (CFSP), 96–98, 101, 135

Commonwealth, 264 Communist Bloc, 62, 170, 264, 308, 313 Community of Latin American and Caribbean States (CELAC), 156 Complaint procedure, 23, 41, 42 Composition of the OHCHR, 341 Confucius, 1, 57 Congo, 195, 214, 219, 223, 224, 226, 227, 351 Congress of Panama, 158 Connors, Jane, 346 Constitutional Treaty, 67 Consultative Group, 31 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 203, 204, 256, 259, 315, 317 Convention on the Rights of Persons with Disabilities (CRPD), 68, 315, 317 Convention on the Rights of the Child (CRC), 114, 203, 256, 259, 315, 317 Cooperation and Verification Mechanism (CVM), 78 Coordination Committee of Special Procedures, 35, 36 Copenhagen Commission, 89 Copenhagen criteria, 66, 76, 89, 96 Copenhagen dilemma, 56, 87 Costa Rica, 140, 146, 147, 164, 165, 169, 171, 176, 182–186, 306, 346, 351, 356 Cote d’Ivoire, 28, 314, 317, 323, 324, 326, 328–330, 334, 336, 337, 355, 356 Council for the Promotion of Pan-American Democracy, 159 Council of Europe (CoE), xxviii, 8, 9, 11, 56, 59–62, 64, 68, 69, 74,

INDEX

80, 84, 86, 89, 98, 135, 166, 292, 318 Country-specific resolutions, 19–21, 30, 47, 51, 180, 181, 220, 275, 276, 328 Court of Justice of the European Union (CJEU), 68, 75, 80, 84–86, 88 Crimea, 9 Croatia, 19, 113, 114, 123, 126, 131 Cuba, 18, 27, 30, 112, 118, 124, 127, 128, 132, 133, 137, 140, 146, 147, 150, 155, 156, 158, 160–163, 169, 171, 172, 174–178, 180–183, 185, 186, 271, 272, 274, 307, 310, 324, 337, 339–341, 347, 354, 356, 360 Cultural relativism, 4–8, 12, 137, 187, 213, 238, 265, 268, 294, 296, 298, 302, 315, 331, 342 Cyprus, 117, 121, 124, 125, 232 Cyrus Cylinder, 57 Czechoslovakia, 170, 264, 307 Czech Republic, 75, 92, 137 D Daoism, 233 Darfur, 28 Declaration of the Rights of Arab Citizens, 298 Declaration on the Granting of Independence to Colonial Countries and Peoples, 213, 312 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 44 Declaration Toward a Global Ethic, 237 Defamation of religion, 352, 353 Dembour, Marie- Benedicte, 8

403

Democracy, Rule of Law and Fundamental Rights Monitoring Group, 91 Democratic People’s Republic of Korea (DPRK), xxviii, 33, 268, 275, 337 Democratic Republic of the Congo (DRC), 28, 118, 222 Denmark, 61, 78, 114, 121, 122, 126, 307, 361 Dharma, 240, 243 Djibouti, 190, 222, 315, 324, 348, 355 Dominican Republic, 140, 169, 172, 173, 307 Donnelly, Jack, 1, 2, 5, 6, 8, 17, 18, 191, 192, 242, 245, 248, 249 Duranti, Marco, 59–63, 68 Durban Declaration and Programme of Action, 29, 111 Dutch, 67, 234 E Eastern-European Group (EEG), 13, 25, 40, 41, 52, 95, 113–115, 117, 125, 129, 134, 173, 214, 216, 265, 266, 314, 317, 338, 356 East Timor, 18 Economic, social, and cultural rights, 11, 28, 34, 44, 104, 164, 174, 201, 264, 271, 323, 325 Ecuador, 140, 143, 146, 151, 158, 169, 172–181, 183, 185, 307, 324, 356 Egypt, 124, 133, 137, 175, 182, 185, 205, 213, 214, 216, 227, 271, 274, 277, 288, 289, 294, 300, 306, 310, 311, 314, 315, 317, 319, 320, 322–324, 326, 328–330, 339, 346, 348, 351, 355, 356, 360

404

INDEX

Ellis, Mark S., 292, 299, 300, 302, 304 El Salvador, 18, 140, 148, 155, 156, 169, 172, 174, 175, 177, 179, 180, 307, 346–348, 356 Emon, Anver M., 292, 299, 300, 302, 304 English Bill of Rights, 1, 57 Equatorial Guinea, 198, 210 Eritrea, 33, 125, 185, 221, 336, 337 Ethiopia, 58, 154, 207, 213, 214, 219, 223, 224, 226, 227, 275, 307, 355, 356 EU–China human rights dialogue, xxviii EU enlargement, 56, 110, 135 EU HOMs, 110 Eurobarometer, 71, 73 European Commission, 65, 67, 73, 76–81, 83, 86, 87, 92, 98–100, 102, 103, 107, 201, 204, 205, 207, 296–301, 305 European Community (EC), 56, 107 European Convention on Human Rights (ECHR), 7, 59–62, 65–70, 73, 74, 80, 83, 164, 252 European Council, 65, 66, 76, 80, 81, 83, 91, 94, 96, 98, 109 European Court of Human Rights (ECtHR), 7, 60–62 European Court of Justice (ECJ), 65, 66, 74, 75, 81, 85, 88, 94 European Economic Area/European Free Trade Association (EEA/EFTA), 103 European Economic Community (EEC), 56, 85 European External Action Service (EEAS), 98–100, 103–106, 109, 111, 119, 120, 135

European Instrument for Democracy and Human Rights (EIDHR), 101, 102 European Movement, 60, 64 European Neighbourhood Policy, 103 European Parliament, 65–67, 75–78, 80–82, 87, 90–94, 98, 100, 101, 103, 115–117, 119 European Parliament Committee on Civil Liberties, Justice and Home Affairs, 76 European Political Community (EPC), 64 European Union Action Plan on Human Rights and Democracy, 102 European Union Annual Report on Human Rights and Democracy in the World, 103 European Union Delegation (EUDEL), 95, 96, 100, 106, 109, 111, 117, 119, 120 European Union (EU), 13, 14, 24, 30, 56, 63–80, 82–128, 130–137, 174, 180, 220, 222–226, 237, 259, 269, 271, 273, 274, 276, 279, 322, 323, 326, 327, 329, 336, 339–342, 345, 347, 348, 352, 353, 358, 360 European Union Ombudsman, 86 EU Rule of Law Framework, 78, 79 EU Special Representative for Human Rights, 99, 135 EU Strategic Framework on Human Rights and Democracy, 102 Exit Card, 89 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), 44, 45

INDEX

F Fernyhough, Timothy, 192 Fifth Committee, 110 Finland, 78, 121, 360 Fiqh, 289 First Committee, 110 Five Lay Precepts, 240 Forced and early marriage, 178, 355, 357 Foreign direct investment (FDI), 48 Forum on Minority Issues, xxviii, 44 France, 51, 59, 61, 64, 107, 114, 121, 122, 124, 126, 127, 131, 141, 171, 235, 270, 273, 286, 307, 323, 326 Freedman, Rosa, 24, 25, 30, 33, 34, 49, 336, 337 Freedom House, 34 Freeman, Michael, 4 French Declaration on the Rights of Man and the Citizens, 1, 57 French Revolution, 143 Frouville, Olivier de, 35, 46 Fukuyama, Francis, 9, 285 Fundamental Rights Agency (FRA), 67, 80, 86, 89

G Gacaca Courts, 212 Gambia, 209, 218, 321 Gaza, 117, 321 Geneva, 35, 51, 95, 100, 107, 110, 113, 120, 135, 136, 221, 229, 303, 325, 337 Geneva Conventions of 1949, 297 Georgia, 124, 126, 210, 262, 340, 348 Germany, 60, 64, 78, 107, 113, 121, 123, 124, 127, 131, 132, 135, 226, 235, 270, 273, 319, 323, 326

405

Ghana, 196, 214, 217, 219–221, 223, 224, 226, 227, 229, 325, 342, 348, 351, 353, 355 Gilmour, Andrew, 47 Globalization, 4–7, 254 Great Britain, 64, 142 Greece, 62, 121, 123, 124, 129, 137, 307, 339 Grenada, 140 Group of Latin America and Caribbean (GRULAC), 13, 40, 41, 52, 112, 122, 125, 129, 134, 140, 169, 172, 175–178, 180–187, 214, 216, 265, 266, 314, 338, 346–352, 356 G77, 107, 313 Guantanamo, 51 Guatemala, 18, 140, 148, 169, 182, 183, 307, 311, 345, 357 Guinea, 324 Guyana, 140, 183

H Habeas Corpus Act, 1, 57 Hadith, 289, 290 Haiti, 28, 125, 140, 147, 155, 169, 174, 307 Halliday, Fred, 291 Heck, Gene W., 285 Helsinki Final Act, 198 Henkin, Louis, 238 High Commissioner for Human Rights, 114, 121, 125, 129, 171, 173, 176, 179, 214, 217, 221, 224, 266, 268, 269, 272, 275, 312, 314, 320, 325, 327, 333, 346 High Representative for Foreign Affairs and Security Policy, 135 Hinduism, 232, 233, 237, 242–244, 278, 283

406

INDEX

Honduras, 140, 167–170, 173, 176, 178, 182, 183, 210, 262, 264, 307, 345, 356, 358 Horvath, Robert, 342, 344, 345 Howard, Rhoda, 7, 191, 192 Hug, Simon, 336, 337 Human rights clauses, 96, 97, 104, 105 Human rights defenders (HRDs), 51, 103, 105, 125, 267, 268, 272, 273, 279, 320, 324, 334 Human rights dialogues, 99, 100, 104 Human rights diplomacy, 2–4, 10, 13, 14, 19, 56, 69, 94–98, 105, 135–137, 154, 155, 183, 231, 278, 282, 359 Human rights guidelines, 100, 105 Humphrey, John, 170, 171, 311 Hungary, 63, 75–77, 82, 93, 94, 113, 114, 123, 124, 126–129, 131, 137, 153, 221, 224, 227, 325, 340, 348, 352 Huntington, Samuel P., 9, 146, 354 Hybrid Court for South Sudan, 218 I Iceland, 307 India, 104, 137, 182, 232, 235, 236, 243, 264–266, 269, 270, 272, 273, 275–277, 285, 300, 307, 311, 324, 327, 329, 351, 353 Indonesia, 105, 232, 233, 236, 243, 245, 256–258, 265, 266, 268, 270–272, 276, 277, 288, 314, 317, 321–324, 326, 328, 334, 345, 348, 355 Inoue, Tatsuo, 247, 248 Institution-Building Resolution, 37 Inter-American Charter of Social Guarantees, 161 Inter-American Commission on Human Rights, 162, 185

Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará), 167 Inter-American Convention to Prevent and Punish Torture, 166 Inter-American Court of Human Rights, 162, 164–166 Inter-American Democratic Charter, 167 Inter-American Human Rights System, 151, 163, 165 Inter-American Treaty on Reciprocal Assistance, 160 International Commission of Jurists, 304 International Conference of the American Republics, 158 International Convention Against Torture and Other Cruel Inhuman, or Degrading Treatment or Punishment (UNCAT), 315, 317 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 114, 124 International Court of Justice (ICJ), 301 International Covenant on Civil and Political Rights (ICCPR), 114, 165, 173, 218, 312, 315–317, 321 International Covenant on Economic, Social and Cultural Rights (ICESCR), 114, 317 International Criminal Court (ICC), 167–169, 209–211, 232, 260–263, 321, 328 International Criminal Law Treaty, 145

INDEX

International Criminal Tribunal for Rwanda (ICTR), 212 International Labour Organization (ILO), 58, 103, 194 International Union of American Republics (Pan-American Union), 158 Iran, 18, 22, 26, 104, 112, 116, 118, 124, 125, 174, 184, 232, 264, 268, 270, 272, 285, 287, 302, 306, 307, 315, 317, 320, 328, 334, 360 Iraq, 18, 57, 116, 122, 155, 210, 232, 262, 264, 265, 268, 270, 272, 273, 275–277, 285–287, 306, 308, 314, 317, 320, 322–324, 326–330, 334, 348 Iraq-Iran War, 289 Ireland, 61, 121 Islam, 10, 146, 233, 234, 237, 268, 282–286, 288–294, 296–298, 300, 301, 330–332, 345, 351, 353 Islamic State, 28, 231, 289, 303 Islamic State of Iraq and the Levant (ISIL), 328 Israel, 17–19, 22, 28, 49, 219, 267, 269, 287–289, 297, 298, 300, 308, 313, 315, 321, 322, 332, 333, 335 Italy, 58, 61, 64, 107, 114, 121, 124, 126, 127, 131, 235, 270, 273, 323, 326, 356, 358

J Japan, 104, 119, 122, 178, 232–236, 265, 267, 269–279, 339–342, 346, 350–353, 355, 356 Japan, the United States, Canada, Australia and New Zealand (JUSCANZ), 95

407

Jordan, 124, 127, 175, 232, 270, 271, 273, 288, 321, 323, 326, 348, 356 Jourová, Vera, 92 Judaism, 282–285 Justice Scoreboard, 77

K Kartashkin, Vladimir, 343 Kenya, 214, 219, 223, 224, 226, 227, 348 Khmer Rouge, 261 King Charles, 143 King Leopold II, 195 Kirkpatrick Doctrine, 154 Kissinger, Henry, 154, 233, 236, 284, 286, 287 Koran, 1, 57, 141 Korea, 233, 235, 236, 271–274, 356 Kuala Lumpur Declaration, 256 Kufuor, Kofi Oteng, 196, 199–202 Kumar, Dinesh, 160–162, 165, 166 Kuwait, 124, 127, 131, 232, 266, 270, 272, 273, 314, 315, 321, 323, 326, 348, 356 Kyrgyzstan, 232, 265, 266, 270–273, 276, 277, 314, 317, 322–324, 326, 328, 330

L Langlois, Anthony J., 248, 249 Laos, 235, 256 Latin American and Caribbean states, 13, 14, 144, 160, 167, 169, 178 Latin American Confederacy Treaty, 145 Latinobarómetro, 147 Latvia, 113, 114, 123, 126 Law of Lagos, 197 Laws of Burgos, 142

408

INDEX

League of Arab States (LAS), 296, 297, 333 League of Nations, 58 Lebanon, 27, 232, 264, 286, 306, 310, 311, 348 Lewis, Bernard, 282, 283 Leyen, Ursula von der, 91 Liberia, 213, 217, 307 Libya, 26–28, 120, 124, 175, 217, 220, 221, 271, 315, 319, 324, 325, 336, 337, 339, 348 Like-Minded Group (LMG), 324, 325 Lisbon Treaty, 67, 68, 75, 79, 97, 98, 107, 109, 117, 135 Lithuania, 114, 126, 131 Lloret-Blackburn, Roger, 268 Lukács, Richard, 335, 336 Luxembourg, 65, 84, 121 M Maastricht Treaty on European Union (TEU), 65, 67, 68, 70, 76, 78, 79, 81, 82, 89, 90, 96, 101 Macedonia, 270 Mackerras, Colin, 233, 234, 237, 239 Magna Carta, 1, 57, 134 Main, Alexander, 156–158 Malaysia, 232, 245–247, 256, 268 Maldives, 232, 267, 270–272, 275, 315, 321, 323, 324, 327, 348, 356 Mali, 33, 125, 217, 218, 220, 320, 337 Malik, Charles, 264, 265, 310, 311 Mallory, Conall, 24–27 Malta, 75, 82, 117 Mandate holders, 31, 32, 35, 36, 113, 114, 117, 119, 125, 176, 221, 326 Mandela, Nelson, 101, 189 Maputo Protocol, 203, 204

Marshall Islands, 22, 232 Mauritania, 190, 315, 346, 348, 356 Mayer, A.E., 290, 291, 332 McMahon, Edward, 39, 40 Mecca, 141, 283 Mello, Sergio Viera de, 15 Mexican-American War, 144 Mexico, 126, 140, 143, 149, 156–158, 169, 171, 175, 176, 178, 182, 183, 186, 307, 342, 346–348, 351, 353, 356 Middle East, 18, 117, 123, 124, 137, 174, 218, 219, 227, 268, 283, 285, 286, 288, 308, 316, 317, 321, 333, 341 Minorities, 2, 33, 44, 58, 59, 66, 70, 89, 96, 101, 112, 127, 185, 216, 250, 264, 288, 307, 308, 327, 337, 345, 354 Moghul Empire, 285 Mohammed, 283 Moldova, 123, 270, 322 Mongolia, 232, 233, 261, 265, 266, 270–272, 276, 277, 351, 356 Monroe Doctrine, 153, 159 Montenegro, 270, 358 Morocco, 124, 127, 131, 175, 270, 271, 273, 275, 323, 326, 348, 355, 356 Müller, Jan-Werner, 89 Müllerson, Rein, 5–8 Multiannual Financial Framework (MFF), 91, 93, 94 Multinational companies, 3 Muslim states, 13, 14, 190, 282, 295, 307, 310, 311, 315, 331, 333, 345 Mutua, Makau, 192–194, 310 Myanmar, xxviii, 28, 33, 119, 125, 210, 232, 240, 245, 256, 262, 263, 267–269, 272, 275, 324, 337, 358

INDEX

N Namibia, 203, 216, 346, 348, 351, 355 Napoleon, 143, 145, 158 Nasser, Gamal Abdel, 297 Netherlands, 27, 38, 64, 78, 107, 109, 113, 123, 131, 159–166, 191–194, 196, 221, 307, 325, 357, 358 New Partnership for Africa’s Development (NEPAD), 206 New York, 6, 12, 45, 95, 100, 107, 109–111, 113, 117, 141, 143–145, 162–164, 171, 208, 221, 231, 238, 277, 283, 285, 325 Nicaragua, 18, 140, 148, 151, 154, 169, 185, 187, 307, 354 Nice Treaty, 81, 96 Niger, 282 Nigeria, 18, 196, 211, 214–216, 219, 221, 223, 224, 226, 227, 314, 317, 324, 325, 328, 329, 348 Nmehielle, Vincent O. Orlu, 191–194, 196 Noguchi, Motoo, 261 Non-Aligned Movement (NAM), 107, 119, 124, 128, 133, 175, 181, 236, 271, 274, 324, 339, 340 Non-discrimination, 85, 89, 105 Non-governmental organizations (NGOs), 3, 21, 31, 37, 38, 45, 46, 50, 125, 129, 130, 198, 199, 204, 215, 305, 324, 334, 345, 349 Norchi, Charles, 12, 309 North Korea, 112, 119, 125, 355 Norway, 272, 307, 324, 342, 350, 358 Nyerere, Julius, 197

409

O Occupied Palestinian Territories (OPT), 28, 30, 31, 318, 321, 328 Office of the High Commissioner for Human Rights (OHCHR), 10, 11, 28, 29, 33, 34, 36, 37, 43, 50, 51, 53, 113, 114, 126, 127, 130–132, 135, 136, 175, 177, 180, 183–185, 208, 215, 221, 222, 225, 258, 270, 303, 318–321, 339–342, 344–346, 350, 355 Oligarchic Republicanism, 145 Organisation of Islamic Cooperation (OIC), 13, 27, 28, 49, 119, 123, 268, 269, 271, 281, 282, 296–303, 306, 309, 314–318, 320–330, 332–334, 336, 337, 350, 352–354, 358 Organization of African Unity (OAU), 197–200, 203–205 Organization of American States (OAS), 154, 158, 160, 162–167 Orientalism, 247 Ottoman Empire, 233, 285, 286 P Pacific Islands Forum (PIF), 253, 254, 259 Pakistan, 123, 125, 137, 232, 264, 268, 269, 271, 272, 275, 309, 311, 315, 320, 321, 323, 324, 327 Palau, 22, 232 Palestine, 28, 29, 210, 267, 285–288, 296, 307, 308, 313, 337, 348 Pan Africanism, 196 Panama, 140, 155, 159, 169, 171, 172, 174, 175, 177, 180, 181, 183, 307, 310, 340, 348 Pan-American conferences, 145

410

INDEX

Paraguay, 140, 143, 167–169, 172, 174–177, 180–183, 185, 307, 347, 356 Parliamentary assembly, 101 Partition Plan, 306–308 Pasture, Patrick, 57, 60, 62 Patel, Gayatri, 8, 217 Pease, Kelly-Kate, 4 Peer Review and Horizontal Solange, 90 Peru, 140, 144–146, 148, 152, 156–158, 168, 169, 175, 179, 182, 183, 185, 307, 346, 356 Petition of Right, 1, 57 Pew Research Centre, 72 P5 countries, 21, 51 Philippines, 18, 210, 232, 236, 256, 261, 262, 264–266, 268–270, 272, 273, 275, 277, 307, 311, 351, 352, 354, 356 Pillay, Navi, 342 Pinker, Steven, 335, 362 Poland, 80, 82, 93, 94, 114, 121, 126, 129, 137, 169, 170, 264, 306, 307, 358, 360 Polygamy, 8, 196, 204, 217 Portugal, 113, 121–124, 126, 128, 131, 133, 137, 143, 147, 182, 184, 340 Post-Cold War era, 9 President Barroso, 78 President Bush, 155 President Carter, 148 President Clinton, 155 President Duarte, 262 President Nixon, 153 President Obama, 155, 156 President Reagan, 154, 155 President Trump, 13, 156 President Wilson, 153, 235 Prophet, 283, 289, 353

Protection of family, 127, 177, 274, 327, 339 Q Qatar, 131, 232, 265, 270, 272–275, 277, 314–317, 322–324, 326, 328, 330, 346, 348, 356 Quran, 282–285, 289, 290, 330 R Rathgeber, Theodor, 34, 50, 319 Reding, Viviane, 90 Renteln, Alison Dundes, 6, 8, 265 Responsibility to protect (R2P), 206, 221, 325, 357 Reverse Solange, 88 Reynders, Didier, 92 Right to peace, 127, 128, 223, 341 Robert Schuman Foundation, 72 Rohingya, 263, 327 Roma, 75, 86, 185 Roman Catholic Church, 58 Romania, 78, 82, 121, 126 Rome Declaration on Human Rights in Islam, 293 Rome Statute, 167, 168, 260–263 Roosevelt, Eleanor, 38 Roosevelt, Franklin D., 153 Roosevelt, Theodore, 153 Rule of Law Mechanism, 91, 93, 94, 134 Russia, 9, 10, 27, 51, 103, 104, 111, 112, 125, 126, 133, 137, 182, 186, 223, 227, 235, 262, 272, 277, 324, 329, 342–345, 356, 359, 360 Rwanda, 130, 212, 214, 219–223, 225–229, 325, 352 S São Tomé and Principe, 173

INDEX

Saudi Arabia, 124, 127, 170, 175, 232, 264, 265, 268, 270–277, 299, 306, 309, 311, 313–317, 320, 322–324, 326, 328–330, 333, 348, 356 Scheppele, Kim Lane, 87 Second Committee, 110 Security Council, 24, 156, 212, 213, 282, 328 Seligman, Steven, 19, 49, 335, 336 Senegal, 184, 197, 198, 201, 202, 211, 227, 313, 355 Sexual orientation and gender identity (SOGI), 33, 48, 349–352 Shari’a, 282, 289–291, 293–295, 298, 302, 303, 317, 330–332, 341 Shestack, 4 Shiite, 322 Shinto, 233 Siam, 235, 264 Sierra Leone, 223, 346, 351, 355, 358 Silva, Marisa Viegas e, 41, 43, 49 Singapore, 232, 234, 244–247, 255, 256, 266, 271, 272, 315, 342, 356 Sir Charles Eliot, 242 Six-Day War, 288 Slovakia, 75, 82, 137 Slovenia, 77, 113, 114, 121, 123, 133, 137 Smith, Karen, 97, 102, 106, 111, 112, 115–117, 119 Smith, Peter H., 145–148 Social Forum, 44, 178 Somalia, 33, 118, 190, 222, 348, 355 South Africa, 18, 19, 132, 170, 181, 209, 214, 223, 226, 227, 264, 350–352, 354, 356 South Asian Association for Regional Cooperation (SAARC), 253, 254, 259

411

Southeast Asia, 233, 234, 236 Soviet Union, 146, 170, 236, 264, 288, 313 Spaak, Paul-Henri, 62 Spain, 64, 71, 142–144, 158 Spanish-American War, 144, 152, 234 Spanish Crown, 142 Special Committee on Apartheid, 312 Special Committee on Decolonization, 312 Special procedures, 29, 30, 32–35, 37, 38, 42, 50, 51, 53, 176, 272, 325, 326, 333 Special Rapporteur, 29, 31, 33, 35, 44, 53, 76, 113, 125, 176, 185, 216, 221, 222, 226, 229, 269, 272, 276, 279, 318, 324, 326, 353 Sri Lanka, 28, 118, 119, 232, 270, 275, 324, 342 Sub-Commission on the Promotion and Protection of Human Rights, 23, 43 Sub-Saharan African states, 13, 14, 190, 191, 214, 217, 219, 220, 224, 229 Sudan, 19, 26, 33, 112, 216, 218, 224, 225, 294, 328, 348 Sunnah, 289, 290 Sunnis, 284 Sweden, 61, 114, 121, 123, 126, 270, 307, 322 Switzerland, 340, 356, 358 Sykes-Picot Agreement, 286 Systemic infringement procedure, 87 Szijjártó, Péter, 127 T Tanzania, 211, 216, 217, 221 Terra nullius , 194 Thailand, 232, 245, 256–258, 264, 271, 278, 350, 356

412

INDEX

Thematic mandates, 30, 31, 33, 51, 176 Third Committee, 18, 25, 47, 48, 95, 100, 110–113, 171 Third-generation rights, 34 Third World, 17, 213, 265, 311–313 Tibet, 21, 51, 240, 242 Togo, 123, 214, 218–220, 223, 224, 226, 227, 229, 314, 317, 321–324, 326, 328–330, 334, 340, 341 Tomuschat, Christian, 31, 32, 172 Traditional values, 150, 201, 341–346, 357 Tragedy of Great Power Politics, 9 Treaty Establishing the European Economic Community (Treaty of Rome), 64 Treaty of Amsterdam, 66 Treaty of Extradition, 145 Treaty of Nice, 67 Treaty on the Functioning of the European Union (TFEU), 75, 86, 88–90, 100 Trump, Donald, 13, 157, 158 Tunisia, xxviii, 124, 126, 130, 175, 180, 214, 224, 271, 276, 314, 315, 317, 319, 321, 324, 326, 328, 329, 339, 346, 348, 352, 355, 356 Turan, Tuba, 318, 320, 333 Turkmenistan, 116, 118, 232, 266, 272, 314, 326

U Uganda, 25, 198, 313, 348, 355, 356 Uighurs, 334 Ukraine, 9, 127, 177, 210, 223, 262, 267, 273, 327, 342, 353 Ukrainian SSR, 170, 264 UN Charter, 2, 37, 170, 198, 215

UN Commission on Human Rights (CHR), 2, 13, 16–24, 26–31, 35, 36, 38, 41, 43, 45, 47, 48, 50–52, 59, 99, 115, 116, 118, 171, 172, 215, 218, 264, 266, 310, 317, 318, 333, 335, 337, 349, 352, 353 UNESCO, 302 UNGA Third Committee, 47, 310 UN Human Rights Committee, 316 UN Human Rights Council (HRC), 12–14, 16, 17, 19–36, 38–40, 42–53, 63, 95, 98–100, 103, 110, 113–122, 125, 126, 129–133, 135–137, 172, 173, 176, 180–186, 191, 214–216, 218–222, 224, 225, 229, 232, 265–267, 269–272, 274–277, 279, 282, 314, 317–320, 322–326, 328, 329, 333–342, 344–346, 350–359, 361–363 Union of South American Nations (UNASUR), 156 United Arab Emirates (UAE), 232, 265, 270, 272, 273, 275–277, 314, 316, 322–324, 326, 328–330, 348 United Kingdom (UK), 4–8, 17, 20, 21, 24, 25, 30, 31, 35–39, 45, 46, 51, 53, 56, 58–63, 65–69, 74–78, 95, 96, 113, 114, 121–124, 127, 131–133, 141, 210, 226, 262, 270, 273, 307, 323, 326, 356, 358, 360 United Nations Alliance of Civilizations (UNAOC), 9 United Nations Economic and Social Commission for the Asia and the Pacific (UNESCAP), 254 United Nations General Assembly (UNGA), 18, 22–27, 29, 47, 95, 99, 103, 107–111, 115, 120,

INDEX

169, 172, 213, 214, 216, 232, 264, 282, 306, 308, 310–313, 319 United Nations (UN), 2, 8, 13, 16, 21, 22, 24, 36, 37, 46, 48, 51–53, 55, 62, 95, 98, 107–109, 111, 113, 116, 117, 120, 123, 125, 135, 136, 155, 169, 170, 172, 176, 181, 185, 186, 190, 193, 196, 197, 206, 213–215, 221, 227, 229, 231, 232, 252, 254, 260, 264, 265, 269, 272, 279, 300, 302, 306, 307, 309–313, 322–324, 329, 333, 349, 350, 358, 362 United States of America (USA), 3, 10, 13, 18, 20, 22, 24, 51, 64, 87, 95, 104, 115, 118, 120, 123, 124, 126–128, 131, 142, 144, 146, 148, 149, 151–160, 169, 197, 215, 219, 220, 225, 234, 235, 237, 270, 273, 276, 287, 288, 311, 313, 322, 323, 326, 336, 337, 339–342, 346, 350, 359, 360 Universal Declaration of Human Rights (UDHR), 2, 12, 37, 39, 59–61, 97, 161, 169–171, 191, 196, 197, 238, 243, 248, 264, 265, 282, 297, 302, 303, 309–311, 313, 333, 363 Universal Islamic Declaration of Human Rights (UIDHR), 302–304 Universalism, 4–7, 12, 217, 244, 265, 298, 302, 331, 363 Universality, 4, 5, 8, 9, 97, 102, 172, 192, 193, 201, 240, 244, 245, 255, 268, 290, 292, 305, 332, 341, 343, 345, 349 Universal Periodic Review (UPR), 8, 9, 23, 25, 28, 30, 36–40, 46,

413

49–51, 53, 185, 215–217, 268, 338 Universal Rights Group (URG), 47, 48, 112–114, 121, 122, 125, 126, 129, 131, 134, 172, 173, 176, 178, 182, 214, 223, 224, 228, 265, 275, 314–316, 361 UN Office of the Special Adviser on Africa (OSAA), 207 UN Special Committee on Palestine (UNSCOP), 307 UN treaty bodies, 37, 113, 126, 172, 176, 214, 216, 222, 272, 314, 326 Uruguay, 18, 140, 143, 146, 147, 154, 169, 171, 173, 176, 178, 182, 186, 221, 307, 325, 342, 351, 353, 356, 358 USAID, 157 US Constitution, 57, 310 Uzbekistan, 118, 232, 266, 269, 272, 314, 321, 326

V Veda, 243 Venezuela, 22, 124, 128, 133, 140, 143, 146, 147, 151, 157, 158, 167–169, 172–177, 179–181, 183–187, 210, 262, 269, 271, 274, 277, 324, 329, 339, 340, 346, 347, 360 Venice Commission, x Vietnam, 18, 232, 233, 235, 245, 256 Viljoen, Frans, 198–200, 202–206, 212, 214 Visegrád countries, 137 Voeten, Erik, 337, 338 Voluntary Fund for Financial and Technical Assistance, 39

414

INDEX

W Wahyuningrum, Yuyun, 255, 257, 258 Western European and Others Group (WEOG), 13, 20, 25–27, 40, 41, 52, 95, 113–115, 117, 125, 128, 133, 173, 214, 216, 232, 265, 314, 317, 318, 338, 356 Western Hemisphere, 153 Wheeler, Ron, 18 Whitehead, Laurence, 140–142, 146 White Paper on Intercultural Dialogue, 9 Wirtz, Bill, 72 Women’s rights, 9, 40, 172, 217, 310 Working Group on Communications, 42 Working Group on Situations, 42 Working Party on Fundamental Rights, Citizens’ Rights and Free

Movement of Persons (FREMP), 83 Working Party on Human Rights (COHOM), 99, 100, 111 World Conference on Human Rights, 244, 255, 292 World War II (WWII), 2, 58, 64, 71, 84, 153, 159, 253, 288 Y Yemen, 170, 232, 264, 268, 309, 315, 319, 328, 348 Yew, Lee Kuan, 245, 246 Yugoslavia, 170, 264, 307 Yugoslavian War, 9 Z Zimbabwe, 26, 108, 116, 118, 221 Zionism, 305, 308